J. S 02 0 05 /1 9

NON - PRECEDENTIAL DECISION
– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : RASHEEN BROWN , : No. 1372 E DA 20 17
: Appellant :

Appeal from the PCRA Order, May 16, 2017, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0011871

- 2010

BEFORE: GANTMAN , P. J. E. , KUNSELMAN , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2019

Rasheen Brown appeals from the May 16 , 2017 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541

- 9546. After careful review, we a ffirm.

The relevant facts and procedural history of this case , as summarized
by a prior panel of this court on direct appeal, are as follows:

In Septe mber of 2011, a jury convicted [a] ppellant of [indecent assault of a person less than 13 years of age and enda ngering the welfare of children 1 ] based on evidence that he sexually abuse d his 11

- year - old stepdaughter [(hereinafter, “victim”)]

. Appellant was initia lly sentenced to 6 to 14 months’ incarceration, but the court later granted his motion for reconsideration and resentenced him to a t erm of time

- served to 23 months’ incarceration (with immediate parole to hou se arrest), followed by

1 18 Pa.C.S.A. §§ 3126(a)(7) and 4304(a), respectively.J. S 02 0 05 /1 9

- 2

- 5 years’ probation [, on April 30, 2012

. 2 ] Appellant di d not file a direct appeal.
However, [a] ppellant subsequently filed a [PCRA petition], seeking the reinstateme nt of his direct appeal rights. The PCRA court granted t hat petition and [a] ppellant filed a timely notice of appeal nunc pro tunc

. On Septembe r 6, 2013, the [PCRA] c ourt issued an order directing [a] ppellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant filed an untimely Rule 1925(b) statement on September 30, 2013. [ Footnote 1 ]
[ Footnote 1 ] Because the trial court issued a Rule 1925(a) opinion adequately addressing the issue raised by [a] ppella nt herein, the untimeliness of [a]ppellant’ s concise statement does not necessitat e remand under Rule 1925(c)(3). See Pa.R.A.P. 1925(c)(3) (“If an appellant i n a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge.”); Commonwealth v. Burton ,

2 Specifically, t he trial court’s April 30, 2012 order states as follows:

AND NOW, to wit, this 30 th day of April, 2012, [ it ] is hereby ORDERED AND DECREED that [appellant] is sentenced as follows: Time in to twenty[

- ] three month s, [appellant] is to be released from custody at ASD immediately, he is to have immediate parole. Upon release [appellant] is directed to House Arrest and he will be provide d with an electronic monitor. To be followed by five (5) years [’] reporting probation. [Appellant] is permitted to go to Medical Appointments as needed and religious services only.
Trial court order, 4/30/12.J. S 02 0 05 /1 9

- 3

- 973 A.2d 428, 433 (Pa.Super. 2009) (holding that despite the mandate of Rule 1925(c)(3), “if there has been an untimely filing [of a Rule 1925(b) statement], this Co urt may decide the appeal on the merits if the trial court had adequate opportunity to prepare a decision addressing the issues being raised on appeal”).

Commonwealth v. Brown , No. 2404 EDA 2013, unpublished memorandum

at 1

- 2 (Pa.Super. filed December 31, 2014 )

. On December 31, 2014 , a panel of this court affirmed appellant ’s
judgment of sentence, and appellant did not seek allowance of appeal with
our supreme court. Id. On September 21, 2015 , appellant filed a timely
PCRA petition alleging that his tria l counsel 3 was ineffective for failing to object

to the trial court’s jury instruction on indecent assault of a person less than
13 years of age. ( See PCRA petition, 9/21/15 at 2, 4

- 5. ) 4 The Commonwealth
filed an answer to appellant’s PCRA petition on May 12, 2016. Appellant, in
turn, filed a supplemental PCRA petition on November 29, 2016. Thereafter,

o n March 16, 2017 , the PCRA court provided appellant with notice, pursuant

to Pa.R.Crim.P. 907(1), of its intention to dismiss his pe tition without a
hearing. Appellant subsequently filed a notice of appeal o n April 24, 2017

. On May 16 , 2017 , the PCRA court dismissed appellant’s petition without a

3 Appellant was represented at trial by Andres Jalon , Esq.

4 A ppellant’s PCRA petition does not contain pagination; for the ease of our discussion, we have assigned each page a corresponding number.J. S 02 0 05 /1 9

- 4

-

hearing. Although not ordered to do so, appellant filed a concise statement

of errors c omplained of on appeal, pursuant to Pa.R.A.P. 1925(b) on August
3, 2017. On March 29, 2018, this court was notified that the Honorable Earl
Trent is no longer sitting on the bench and that no opinion will be
forthcoming. 5 , 6

A ppel lant raises the followin g issue for our review:
Did trial counsel’s failure to object and request a correction to the trial court’s incomplete and incorrect charge as to count four of docket CP

- 51

- CR

- 0011871

- 2013, Indecent Assault of a Person Less than Thirteen Years of Age, 18 P a.C.S.A. § 3126(a)(7), constitute ineffective assistance of counsel; and, if so, should the judgment of sentence as to that charge be vacated?

A ppellant’s brief at 3

. Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

5 Appellant’s appeal is properly before us. See Pa.R.A.P. 905(a)(5) ( “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed af ter such entry on the day thereof.” ).

6 W e note that in order to be eligible for PCRA relief, a PCRA petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime” at issue. 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams , 977 A.2d 1174 (Pa.Super. 2009), appeal denied , 990 A.2d 730 (Pa. 2010). The docket reflects that appellant is still serving his sentence, as his probation was revoked on November 9, 2015 following his guilty plea to insurance fraud at CP

- 51

- CR

- 0007456

- 2015 and he was sentenced to additional 4 years’ probation on the instant matter.J. S 02 0 05 /1 9

- 5

-

findings will not be disturbed unless there is n o support for the findings in the

certified record.” Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). In order to be eligible for PCRA relief, a defendant must
plead and prove by a preponderance of the evidence that his convicti on or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Where the PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as is the case here, we review the PCRA court’s decision

for an abuse of discretion. Se e Commonwealth v. Roney , 79 A.3d 595, 604
(Pa. 2013), cert. denied , U.S

. , 135 S.Ct. 56 (2014) (citation
omitted). Moreover,

the right to an evidentiary hearing on a post

- conviction petition is not absolute. It is within the PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is patently fri volous and has no support [in] either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah , 42 A.3d 335 , 338 (Pa.Super. 2012) (internal
citations omitted).

Here , appellant’s sole contention on appeal concerns the purported

in effectiveness of trial counsel. To prevail on a claim of ineffective assistanceJ. S 02 0 05 /1 9

- 6

-

of counsel under the PCRA, a petitioner must plead and prove by a
preponderance of the evidence that counsel’s ineffectiveness “so undermined

the truth

- determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply

a three

- pronged test for determining whether trial counsel was ineffective,

derived from the test articulated by the United States Supreme Court in
Strickland v. Washington , 466 U.S. 668, 687 (1984), and as applied in

Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987). Commonwealth v.
Simpson , 66 A.3d 253, 260 (Pa. 2013).

The Pierce test requires a PCRA petitioner to prove: (1) the underlying legal claim was of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) the petitioner was prejudiced

— that is, but for counsel’ s deficient st ewardship, there is a reasonable likelihood the outcome of the proceedings would have been different.

Id. , citing Pierce , 527 A.2d at 975

. “[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commo nwealth v. Ousley , 21 A.3d
1238, 1242 (Pa.Super. 2011), appeal denied , 30 A.3d 487 (Pa. 2011)
(citation omitted). Additionally, we note that counsel cannot be found
ineffective for failing to raise a claim that is devoid of merit. See
Commonwealth v. Lig ons , 971 A.2d 1125, 1146 (Pa. 2009).
Appellant contends that trial counsel was ineff ective for not objecting to

and not requesting a correction of the trial court’s jury instruction on indecentJ. S 02 0 05 /1 9

- 7

-

assault of a pe rson less than 13 years of age. (Appellant’s brief at 8.)

A ppellant avers that trial counsel should have objected to the trial court’s jury

instruction because it failed to define the term “indecent contact.” ( Id. at 8

- 10.)
[W] hen evaluating the propriety of jury instructions,

this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper. We further note that, it is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion in phrasing its inst ructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible
error.
Co mmonwealth v. Antidormi , 84 A.3d 736, 754 (Pa.Super. 2014) (citations
and bracket omitted) , appeal denied , 95 A.3d 275 (Pa. 2014)
Here, the tri al court instructed the jury on the charge of indecent assault
of a p e rson less than 13 years of age as follows, tracking , in part, Pennsylvania
Standard Jury Instruction § 15.312C :

The defendant has been charged with indecent assault of a child. To find the defendant guilty of this offense, you must find that the following two elements have been proven beyond a reasonable doubt.
First, that the defendant has indecent contact with [victim] or caused [victim] to have indecent contact with the defendant. Second, that [victim] was less than 13 years old.

N otes of testimony, 9/21/11 at 241

- 242 ; see also Pa.SSJI § 15.312C. On
the second day of deliberations, the court reiterated its instruction regardingJ. S 02 0 05 /1 9

- 8

-

the offense of indecent assault of a person less than 13 years of age

. ( See

notes of testimony, 9/22/11 at 7

- 8.)

“Indecent contact” is defined by statute as “[a]ny touching of the sexual
or other intimate parts of the person for the purpose of arousing or gratifying
sexual desire, in any person.” 18 Pa.C.S.A. § 3101. Although appellant is

correct that the trial court’s inde cent assault instruction did not explicitly

define the term “indecent contact , ” we find that appellant has failed to prove he was prejudiced by trial counsel’s failure to object to the charge on this

basis

. “A petitioner establishes prejudice when he demonstrates that there is
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.

Johnson , 966 A.2d 523, 533 (Pa. 2009) (citations and in ternal quotation

marks omitt ed).
Instantly, appellant contends that “it is very likely that the jury would
not have [found appellant guilt y of] . . . indecent assault of a child had they
been instructed that the crime ‘requires a sexual intent or purpose.’”
(Appellant’s brief at 10.) Contrary to appellant’s contention, however, all of

the alleged criminal conduct was sexual in nature, thereby precluding such a
distinction. Moreover, the term “indecent contact” is clear and unambiguous
and can be discerned by the term’s common us age. See Commonwealth v.
Zambelli , 695 A.2d 848, 849 (Pa.Super. 1997) ( stating that , “where language
of a statute is clear and unambiguous, it must be given effect in accordanceJ. S 02 0 05 /1 9

- 9

-

with its plain and common meaning. ” (citations omitted)). Here, the jury

hea rd considerable evidence t hat appellant repeatedly sexually abused the

minor victim by fondling her breasts and buttocks with his hands, behavior
that ultimately escalated to allegation s that he vaginally ra ped her on several

occasions. 7 ( See notes of testimony, 9/20/11 at 27

- 33 .) Appellant’s actions
were undoubtedly indecent contact according to the common usage of the

term . Thus, e ven if trial counsel had objected to and /or request ed a correction

of the trial court’s jury instruction to define the term “indecent contact,”
appellant has not demonstrated “ a reasonable likelihood the outcome of the
proceedings would have been different. ” See Simpson , 66 A.3d at 260
(citation omitted ).
We need not consider every prong of the Strickland / Pierce test w hen
one prong has not been satisfied, as is the case here. Commonwealth v.
Spotz , 84 A.3d 294, 319 (Pa. 2014) (stating, “[a]bsent a showing of such
prejudice, the claim of ineffectiveness fails, regardless of whether counsel

lacked a ‘reasonable basis.’ ”)

. Accordingly, we conclude that appellant’s

ineffectiveness claim warrants no relief.

Order affirmed.

7 The jury failed to reach a verdict with respect to appellant’s rape, sexual assault , and indecent exposure char ges, and the Commonwealth nolle prosequied those charges.J. S 02 0 05 /1 9

- 10

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/19