J-S16036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SALIM D. BROKENBOROUGH

Appellant No. 1606 MDA 2014

Appeal from the PCRA Order September 12, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001775-2010

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED JUNE 18, 2015

Salim D. Brokenborough appeals from the order entered September 

12, 2014, that dismissed, after an evidentiary hearing, his first petition 

seeking relief pursuant to the Pennsylvania Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. § 9541–9546.1 In this appeal, Brokenborough claims 

____________________________________________

1

Initially, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to 

dismiss the issues raised in Brokenborough’s amended PCRA petition. Those 

issues are discussed in the PCRA court’s December 23, 2013 opinion, that 

accompanied the order of Rule 907 notice.

The evidentiary hearing was held after Brokenborough filed a 

supplemental PCRA petition in response to the PCRA court’s Rule 907 notice, 

and raised the claim that trial counsel was ineffective in failing to timely 

convey a plea offer. The claim of ineffectiveness in failing to timely convey a 

plea offer was the only issue presented at the hearing. This issue is 

addressed in the PCRA court’s decision filed September 12, 2014, that 

accompanied the order dismissing Brokenborough’s amended PCRA petition 

and supplemental PCRA petition. 
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trial counsel was ineffective in failing to (1) timely convey a plea offer made 

by the Commonwealth, (2) raise sufficiency of the evidence on appeal, and 

(3) object to Agent Carolina’s expert qualifications. See Brokenborough’s 

Brief, at 4. Based upon the following, we affirm. 

As we write primarily for the parties who are well acquainted with the 

factual and procedural history, we need not reiterate the background of the 

case, which has been fully set forth in the PCRA court’s decisions. See PCRA 

Court Opinion, 9/12/2014, at 1–4; PCRA Court Opinion, 12/23/2013, at 1–6. 

Briefly, the underlying case involved a criminal conspiracy in trafficking 

cocaine and marijuana to customers in several counties from Philadelphia to 

Lancaster.2 Brokenborough proceeded to a jury trial with four of his coconspirators, of which there were eight originally. He was convicted of three 

counts of delivery or possession with intent to deliver a controlled substance, 

corrupt organizations, criminal conspiracy, and criminal use of 

communication facility. The trial court sentenced Brokenborough to an 

aggregate sentence of 10 to 20 years’ incarceration. On appeal, this court 

affirmed the judgment of sentence. Commonwealth v. 

Brokenborough, 81 A.3d 993 (Pa. Super. 2013) (unpublished 

____________________________________________

2 A detailed factual background of this case is set forth in this Court’s 

published decision in Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 

2013), appeal denied, 80 A.3d 775 (Pa. 2013). Huggins was one of 

Brokenborough’s co-conspirators.
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memorandum). Brokenborough then filed a timely pro se PCRA petition, 

after which counsel was appointed, an evidentiary hearing was held, and 

relief was denied. This appeal followed.3

Initially, we note the legal principles that guide our review:

In PCRA appeals, our scope of review “is limited to the findings 

of the PCRA court and the evidence on the record of the PCRA

court's hearing, viewed in the light most favorable to the 

prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952 

A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because 

most PCRA appeals involve questions of fact and law, we employ 

a mixed standard of review. Commonwealth v. Pitts, 603 Pa. 

1, 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court’s 

factual findings and credibility determinations supported by the 

record. Commonwealth v. Henkel, 2014 PA Super 75, 90 A.3d 

16, 20 (Pa. Super. 2014) (en banc). In contrast, we review the 

PCRA court’s legal conclusions de novo. Id.

... “It is well-established that counsel is presumed effective, and 

[a PCRA petitioner] bears the burden of proving ineffectiveness.” 

Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1137 

(Pa. 2009); see also Commonwealth v. Pierce, 515 Pa. 153, 

527 A.2d 973, 975 (Pa. 1987) (“We . . . presume that counsel is 

acting effectively.”); accord Strickland v. Washington, 466 

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) 

(establishing the elements a defendant must prove to show 

IAC). As the Supreme Court of the United States has stated, 

“counsel should be ‘strongly presumed to have rendered 

adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment,’ and . . . the 

burden to ‘show that counsel’s performance was deficient’ rests 

squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17, 

187 L. Ed. 2d 348 (2013) (quoting Strickland, 466 U.S. at 687, 

690).

____________________________________________

3 Brokenborough timely filed a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal in response to the order of the PCRA court.
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To prevail on an IAC claim, a PCRA petitioner must plead and 

prove by a preponderance of the evidence that (1) the 

underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for acting or failing to act; and (3) the 

petitioner suffered resulting prejudice. Commonwealth v. 

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Pierce, 

527 A.2d at 975-76). A petitioner must prove all three factors of 

the “Pierce test,” or the claim fails. Id. In addition, on appeal, a 

petitioner must adequately discuss all three factors of the 

“Pierce test,” or the appellate court will reject the claim. 

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779–780 (Pa. Super. 

2015) (en banc).

The first issue raised by Brokenborough is a claim of trial counsel’s 

ineffectiveness for failing to timely convey a plea offer made by the 

Commonwealth. The PCRA court, following an evidentiary hearing, rejected 

Brokenborough’s claim. See N.T., 7/17/2014. We have carefully reviewed 

the record, the parties’ respective briefs, and the applicable law. Having 

done so, we conclude the PCRA judge, the Honorable David L. Ashworth, 

correctly and cogently analyzed this issue, and no further discussion is 

warranted. Therefore, we adopt Judge Ashworth’s extensive, well-supported 

September 12, 2014 opinion as dispositive of Brokenborough’s first claim of 

ineffectiveness. See PCRA Court Opinion, 9/12/2014, at 5–11.
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Brokenborough next claims counsel was ineffective for failing to raise 

the issue of the sufficiency of the evidence on appeal.4 Specifically, 

Brokenborough states: “The PCRA court incorrectly found that the totality of 

the evidence presented at trial by the Commonwealth was sufficient to 

establish that Mr. Brokenborough delivered or possessed with intent to 

deliver a controlled substance on at least three occasions and concluded, 

therefore, that an appeal on this basis would have been unsuccessful.” 

Brokenborough’s Brief, at 13. 

Brokenborough also disputes the PCRA court’s finding that the trial 

record established that the Commonwealth presented sufficient evidence to 

meet its burden of proof on the charge of corrupt organizations. 

Brokenborough contends he “did not know the basic structure of the 

enterprise nor was he aware of what, if any, role he played in the alleged 

distribution scheme.” Id. at 13. He states he “knew the names of no other 

co-conspirators in the alleged drug organization.” Id. Brokenborough 

asserts that an appeal on this basis had merit and would have been 

successful. Id. 

____________________________________________

4

Following the conclusion of the Commonwealth’s case at trial, trial counsel 

joined in the motion for judgment of acquittal on the basis of insufficiency of 

the Commonwealth’s evidence. The trial court denied the motion. N.T., 

4/18/2011, at 1488–1489.
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Brokenborough adds that his “convictions for criminal conspiracy and 

corrupt use of a communications facility similarly lacked sufficient 

evidentiary support.” Id. at 14.

The relevant statute regarding possession with intent to deliver 

prohibits the following:

Except as authorized by this act, the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or possessing with intent 

to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

Regarding corrupt organizations, Section 911 of the Crimes Code 

provides, in pertinent part: 

It shall be unlawful for any person employed by or associated 

with any enterprise to conduct or participate, directly or 

indirectly, in the conduct of such enterprise’s affairs through a 

pattern of racketeering activity. 

18 Pa.C.S. § 911(b)(3). The term “enterprise” is defined as “any individual, 

partnership, corporation, association or other legal entity, and any union or 

group of individuals associated in fact although not a legal entity, engaged in 

commerce and includes legitimate as well as illegitimate entities and 

governmental entities.” 18 Pa.C.S. § 911(h)(3). “Racketeering activity” is 

defined to include any violation of Section 780-113 of The Controlled 

Substance, Drug, Device and Cosmetic Act. 18 Pa.C.S. § 

911(h)(1)(ii). “Racketeering activity” is also defined to include, inter alia, a 
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conspiracy to commit any of the offenses set forth in subparagraph (ii). 18 

Pa.C.S. § 911(h)(1)(iii). A “pattern of racketeering activity” means “a 

course of conduct requiring two or more acts of racketeering activity one of 

which occurred after the effective date of this section.” 18 Pa.C.S. § 

911(h)(4).

With regard to criminal conspiracy, the Crimes Code provides, in 

relevant part:

A person is guilty of conspiracy with another person or persons 

to commit a crime if with the intent of promoting or facilitating 

its commission he ... agrees with such other person or persons 

that they or one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to commit 

such crime[.] 

18 Pa.C.S. § 903(a)(1).

Finally, the Crimes Code defines criminal use of a communication 

facility as follows:

A person commits a felony of the third degree if that person uses 

a communication facility to commit, cause or facilitate the 

commission or the attempt thereof of any crime which 

constitutes a felony under this title or under the act of April 14, 

1972 (P.L.233, No.64), known as The Controlled Substance, 

Drug, Device and Cosmetic Act. Every instance where the 

communication facility is utilized constitutes a separate offense 

under this section.

18 Pa.C.S. § 7512(a).

The charges against Brokenborough arose from his role in supplying 

co-defendant David Lambert with cocaine and marijuana for Lambert’s drug 

business. The PCRA court, in evaluating the arguable merit of the 
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underlying sufficiency claim, concluded the totality of the evidence 

established Brokenborough delivered or possessed with intent to deliver on 

at least three occasions, namely, September 14, 2008, September 16, 2008, 

and September 29, 2008.5 See PCRA Court Opinion, 12/23/2013, at 10. In 

reaching this conclusion, the PCRA court reasoned:

The Commonwealth’s evidence at trial to support the drug 

delivery charges included: intercepted telephone conversations 

between Lambert and [Brokenborough]; intercepted telephone 

conversations between Lambert and others in which 

[Brokenborough] or his drugs were discussed; interpretation of 

language used in these conversations by Agent David Carolina, 

who had been qualified and accepted as an expert in the 

“interpretation of drug and street jargon”; testimony of 

surveillance agents; testimony of agents who conducted search 

warrants and seized various items which included cocaine and 

marijuana; and the testimony of Felicia Cooper and Justin Judd, 

who were co-conspirators in the corrupt organization. This 

evidence, when considered in its entirety, clearly presented 

sufficient circumstantial evidence from which the jury could 

conclude that Lambert and [Brokenborough] engaged in each 

controlled substance delivery for which they were charged. The 

calls set up the players, the time, the drug, the quantity, and the 

price. The deliveries were confirmed in various instances by 

follow-up calls complaining about the quantity or the quality of 

the drug, by calls which asked to do it again, or by agents who 

were surveilling the meet as explained in the telephone 

conversations. 

Cooper and Judd confirmed the fact that Lambert delivered 

cocaine and marijuana, as well as the fact that they had used 

the substances and knew from personal use that the substances, 

in fact, were cocaine and marijuana. Additionally, cocaine and 

marijuana were seized from Judd, who testified that Lambert 

____________________________________________

5 The PCRA court noted that “[o]ne of the three counts of delivery or 

possession with intent to deliver was withdrawn by the Commonwealth at 

sentencing, however.” PCRA Court Opinion, 12/23/2013, at 10 n.11.
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had delivered them, which was corroborated by telephone calls. 

These substances tested positive for cocaine and marijuana. 

Cocaine was also recovered from co-defendant David Huggins 

which tested positive for cocaine. The co-conspirators’ 

testimony, as well as the drug seizures, corroborates the fact 

that Brokenborough sold cocaine and marijuana to Lambert, who 

in turn sold it to the other co-conspirators, which corroborates 

the interpretations by Agent Carolina that [Brokenborough] sold 

cocaine and marijuana to Lambert.

Evidence supporting the fact that the charged deliveries occurred 

came from other conversations which discussed the quality or 

quantity of drugs delivered, conversations in which Lambert told 

others that he had received the drugs, or observations made by 

surveillance agents who were in place based on the 

arrangements made in the telephone conversations. The actual 

observation of an exchange between [Brokenborough] and 

Lambert is not necessary to prove a delivery beyond a 

reasonable doubt. Moreover, the seizure of drugs from 

[Brokenborough] was also not necessary to prove beyond a 

reasonable doubt that [Brokenborough] delivered cocaine and 

marijuana to Lambert. It is well established in this 

Commonwealth that the identity of an illegal drug may be 

established by circumstantial evidence without ever producing 

the actual contraband at trial. Commonwealth v. Rickabaugh,

706 A.2d 826, 844 (Pa. Super. 1997). ... 

PCRA Court Opinion, 12/23/2013, at 11–13 (record citations and footnote 

omitted).

The PCRA court further opined that the evidence satisfied the elements 

of the offense of corrupt organizations, in that “[Brokenborough] and his 

seven co-conspirators engaged in at least three acts of selling drugs,”6

“‘[t]he David Lambert Organization’ was a group of individuals associated in 

____________________________________________

6

PCRA Court Opinion, 12/23/2013, at 15.
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fact and engaged in commerce, i.e., the illegal sale of drugs,”7and 

Lambert’s reference to a customer in an intercepted phone call with 

Brokenborough, and the weight and frequency of the purchases, would 

provide Brokenborough with information that Lambert was not using all the 

cocaine and marijuana himself.8 The PCRA court specifically noted, “There is 

no requirement that [Brokenborough] personally knows the other individuals 

involved in the conspiracy and/or corrupt organization.” PCRA Court Opinion 

12/23/2013, at 16–17, citing 18 Pa.C.S. § 903(b) and Commonwealth v. 

Donahue, 630 A.2d 1238, 1246 (Pa. Super. 1993) (“[Defendant] knew the 

basic structure of the enterprise and was aware of his role in the distribution 

scheme. It was not necessary that he specifically know each person 

associated with the enterprise.”). 

In addition, the PCRA court found that the evidence supporting the 

crimes of delivery or possession with intent to deliver and corrupt 

organizations also supported the criminal conspiracy conviction. Finally, the 

PCRA court found the evidence also showed Brokenborough had used a 

____________________________________________

7

Id. at 16.

8 See id. at 16.
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phone to arrange the drug deliveries, which supported his conviction for 

criminal use of a communication facility.9

Based on our review, we conclude the record confirms the PCRA 

court’s determination that Brokenborough’s sufficiency claim lacks arguable 

merit. It is well established that appellate counsel cannot be deemed 

ineffective for failing to raise a meritless claim. Commonwealth v. 

Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008). Here, the PCRA court 

applied the correct legal standards for analyzing ineffectiveness and 

sufficiency of the evidence, and thoroughly evaluated the evidence under the 

applicable criminal statutes. See PCRA Court Opinion, 12/23/2013, at 9–20. 

As we agree with the PCRA court that the record in this case did not warrant 

a sufficiency challenge on appeal, no PCRA relief is due on this 

ineffectiveness claim.

Lastly, Brokenborough argues that trial counsel was ineffective in 

failing to object to the qualifications of Agent Carolina as an expert.10

____________________________________________

9 The PCRA court noted that the criminal use of communication facility 

charge was withdrawn by the Commonwealth at sentencing. See PCRA 

Court Opinion, 12/23/2013, at 18 n.13.

10 In Brokenborough’s direct appeal, he raised a challenge to Agent 

Carolina’s testimony as both an expert and a fact witness. This Court

rejected Brokenborough’s claim, citing to the decision in the direct appeal of 

one of Brokenborough’s co-defendants, Commonwealth v. Huggins 68 

A.3d 962, 967 (Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013), 

wherein this Court held that the agent could testify in a dual role. See

Commonwealth v. Brokenborough, 81 A.3d 993 (Pa. Super. 2013) 

(unpublished memorandum). 
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Specifically, Brokenborough argues Agent Carolina had never been qualified 

as an expert prior to his trial. Brokenborough contends trial counsel had no 

strategic reason for failing to object to Agent David Carolina’s qualifications 

in order to try to prevent his testimony from being admitted at trial. 

In reviewing this ineffectiveness claim, we note:

The standard for qualification of an expert witness is a liberal 

one. The test to be applied when qualifying an expert witness is 

whether the witness has any reasonable pretension to 

specialized knowledge on the subject under investigation. 

Commonwealth v. Wallace, 2002 PA Super 367, 817 A.2d 485 

(Pa. Super. 2002). If he does, he may testify and the weight to 

be given to such testimony is for the trier of fact to determine. 

Id. A witness does not need formal education on the subject 

matter of the testimony, and may be qualified to render an 

expert opinion based on training and experience. The 

qualification of a witness as an expert rests within the sound 

discretion of the trial court, and the courts determination in this 

regard will not be disturbed absent an abuse of discretion. 

Commonwealth v. Serge, 837 A.2d 1255, 1260 (Pa. Super. 2003), aff'd, 

586 Pa. 671, 896 A.2d 1170 (Pa. 2006), cert. denied, 549 U.S. 920 (2006).

At trial, Agent Carolina was offered as an expert in the areas of 

cocaine, marijuana, wiretap investigations, and in the interpretation of drug 

and street jargon. See N.T., 4/6/2011, at 424. The PCRA court opined: 

“All defense counsel rigorously cross-examined the proferred expert about 

his qualifications, notably pointing out that it was Agent Carolina’s first time 

testifying as an expert.” PCRA Court Opinion, id. at 30. The PCRA court 

noted that none of the defense attorneys objected to the Commonwealth’s 

request that the court accept Agent Carolina as an expert. Id. The PCRA 
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court found the absence of any objection “suggest[ed] that there was a 

consensus among counsel for [Brokenborough’s] co-defendants that Agent 

Carolina possessed the requisite education, training, and experience to give 

expert opinions in these areas.” Id. at 29. The PCRA court further opined 

that the court properly allowed the expert testimony of Agent Carolina based 

on his qualifications, despite the fact that it was his first time testifying as a 

trial expert, summarizing Agent Carolina’s qualifications, as follows:

After leaving the Philadelphia Police Department in 2001, Agent 

Carolina joined the Pennsylvania Office of the Attorney General 

where he was involved in over 200 drug investigations in nine 

years. (N.T., Trial at 417–18). His training included the 

Attorney General Academy, the Drug Enforcement 

Administration’s Basic Narcotics School, the Pennsylvania State 

Police Wiretap School, the Department of Justice Interdiction 

Training, the Attorney General Meth School, and Pennsylvania 

Top Gun, a narcotics school. (Id. at 420.) Agent Carolina’s 

experience included undercover narcotics work (Id. at 421), and 

wiretap of over 6,000 intercepted conversations. (Id. at 422–

23.).

PCRA Court Opinion, 12/23/2013, at 32 n.18.

Based on our review, we agree with the PCRA court that 

Brokenborough’s ineffectiveness claim lacks arguable merit. While this case 

was Agent Carolina’s first time testifying as an expert, that fact of itself does 

not disqualify him as every expert witness testifies for the first time at some 

point. Furthermore, we find no abuse of discretion in the PCRA court’s 

reasoning that the “consensus” of defense counsel serves to show that 

Brokenborough’s trial counsel’s decision not to object was reasonable. 

Finally, to the extent Brokenborough argues for the first time in this appeal 
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that because Agent Carolina testified to issues of ultimate fact trial counsel 

should have objected to allowing Agent Carolina to testify, we find this 

argument likewise fails. In this regard, this Court, in deciding the direct 

appeal of one of Brokenborough’s co-conspirators, opined:

Based upon a plain meaning interpretation of the various rules at 

play, when read in pari material, we conclude that the rules do 

not preclude a single witness from testifying, or offering 

opinions, in the capacity as both a lay and expert witness on 

matters that may embrace the ultimate issues.

Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013), appeal 

denied, 80 A.3d 775 (Pa. 2013). 

It is evident that counsel had no meritorious grounds upon which to 

object to Agent Carolina’s qualifications, and, had counsel objected, the 

court would have overruled his objection. Counsel cannot be deemed 

ineffective for failing to raise a meritless objection. Therefore, we conclude 

that the PCRA court properly rejected Brokenborough’s claim that trial 

counsel was ineffective in not objecting to Agent Carolina’s qualifications as 

an expert witness.

Order affirmed.11

____________________________________________

11 In the event of further proceedings, the parties are directed to attach a 

copy of Judge Ashworth’s September 12, 2014 opinion to this memorandum, 

regarding Brokenborough’s PCRA claim that trial counsel was ineffective for 

failing to timely convey a favorable plea offer made by the Commonwealth.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/2015
218 Pa. C.S.A. § 911 (b)(3)(4), 18 Pa. C.S.A. § 903, 18 Pa. C.S.A. § 7512(a), and 35 

P.S. § 780-113(a)(30), respectively. 

1For a more detailed discussion of the factual and procedural history of this case, see 

this Court's previous opinions dated October 6, 2011, Novc1;-,1Jer 21, 2011, and December 23, 

2013. 

--··· ------- 

criminal conspiracy, criminal use of communication facility, and violations of the 

Controlled Substance, Drug, Device and Cosmetic Act.2 

against Petitioner on October 22, 2009. The-charges included corrupt organizations, 

follows.1 As a result of a Grand Jury Presentment, a criminal complaint was filed 

The factual and procedural history of this case may be briefly summarized as 

I. Background 

Brokenborough's amendedmotion and supplemental motion will be dismissed. 

Pa. R.Crim.P. 907 Notice. Following an evidentiary hearing in this matter, 

Salim Brokenborough has filed a supplemental motion pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541-9546, in response to this Court's 

BY: ASHWORTH, J., SEPTEMBER 12, 2014 

SALIM BROKENBOROUGH 

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OPINION 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

l 

Circulated 06/04/2015 11:11 AM
2 

3Brokenborough received consecutive sentences of five to ten years for criminal 

conspiracy and five to ten years for one charge of delivery or possession with intent to deliver. 

Brokenborough received concurrent sentences of 21 to 42 months for corrupt organizations, 

and 2 to 4 years for an additional delivery or possession with intet1t to deliver" conviction. One 

count of delivery or possession with intent to deliver and the criminal use of communication 

facility charge were withdrawn by the Commonwealth at sentencing. 

4Pursuant to this Court's directive, Brokenborough furnished a statement of errors 

· complained of on appeal which raised two issues: (1) whether the Court erred by allowing Agent 

Carolina to testify in the dual role of case agent and expert witness and to draw conclusions 

from and summarize facts for the jury beyond the scope of his expertise; and (2) whether the 

Court erred in failing to set aside the jury's verdict imposing mandatory minimum sentences 

relating to the weight of controlled substances without the presence of physical evidence. My 

Rule 1925(a) Opinion of November 21, 2013, addressed these issues for the appellate court. 

raise the insufficiency of the evidence on appeal; (2) failure to object to jurisdiction and 

August 12, 2013, a counseled amended motion was filed, in which Brokenborough 

claimed ineffective assistance by trial counsel in the following particulars: (1) failure to 

A Conrad, Esquire, was appointed to represent Petitioner on his collateral claims. On 

Petitioner filed a timely pro se petition for post conviction collateral relief. Jeffrey 

-~ Court of Pennsylvania. 

memorandum opinion. No petition for allowance of appeal was filed with the Supreme 

was denied by Opinion and Order dated October 6, 2011. 

Petitioner filed a direct appeal to the Superior Court of Pennsylvania (1875 MDA 

2011 )4 where this Court's judgment of sentence was affirmed in an unpublished 

deliver a controlled substance. On August 4, 2011, Petitioner received an aggregate 

sentence of 10 to 20 years' incarceration.3 A post sentence motion to modify sentence 

communication facility, as well as two counts of delivery or possession with intent to 

Petitioner was found guilty of corrupt organizations, criminal conspiracy, criminal use of 

The case proceeded to a jury trial on April 4, 2011, at the conclusion of which 

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3 

"Petitioner filed a prose amended petition in response to the Rule 907 Notice on 

January 3, 2014, in which he raised a Batson claim, which had previously been withdrawn by 

Brokenborough's appointed counsel, and additional ineffective assistance of counsel claims, 

including the plea offer issue. An order was entered on January 8, 2014, rejecting this filing 

because Petitioner is represented by counsel and, as a criminal defendant, Petitioner has no 

constitutional right to hybrid representation during PCRA proceedings. Commonwealth v. 

Jette, 611 Pa. 166, 23 A.3d 1032, 1038-40 (2011); Commonwealth v. Pursell, 555 Pa. 233, 

724 A.2d 293, 302 (1999); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993); 

Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). See also Pa.R.Crirn.P. 

576(A)(4). 

5Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). 

6Alfhough the counseled motion initially contained a seventh claim alleging that trial 

counsel should have preserved for, and raised .9D, appeal the Issue of a violation of Batson v. 

Kentucky, 476 U.S. 79 (1986), that claim was subsequently withdrawn from the motion. 

. . 

the Commonwealth prior to trial.' An evidentiary hearing was held on July 17, 2014, 

amended motion or to otherwise respond to the notice. Petitioner filed a counseled 

supplemental PCRA motion on January 17, 2014, alleging, for the first time, ineffective 

assistance of counsel due to counsel's failure to convey a favorable plea offer made by 

R.Crim.P. 907, of my intention to dismiss Salim Brokenborouqh's amended PCRA 

., 

motion without further proceedings. Brokenborough was given 30 days to either file an 

By Order and Opinion dated December 23, 2013, I gave notice, pursuant to Pa. 

hearing. 

was not entitled to relief and asking the Court to deny the amended motion without a 

and (6) failure to request a Kloiber" instruction.6 ( See Amended Petition at ~m 13-39.) 

The Commonwealth filed a response on December 19, 2013, arguing that Petitioner 

co-defendants; (4) failure to object to the qualification of Agent Carolina as an expert 

witness; (5) eliciting prejudicial testimony regarding Petitioner's incarceration status; 

venue in Lancaster County; (3) failure to request severance of Petitioner's case from his 

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4 

conclude that counsel's chosen strategy lacked a reasonable basis only if the petitioner 

proves that "an alternative not chosen offered a potential for success substantially 

Chmiel, 612 Pa. 333, 361, 30 A.3d 1111, 1127 (2011). The appellate courts will 

any reasonable basis to advance the interests of the defendant. Commonwealth v. 

The applicable test is not whether alternative strategies were more reasonable, 

employing a "hindsight" evaluation of the record, but whether counsel's decision had 

Commonwealth v. Fowler, 447 Pa. Super. 534, 540, 670 A.2d 153, 155-56 (1996}. 

counsel is accorded broad discretion to determine tactics and strategy. 

With respect to whether counsel's acts or omissions were reasonable, defense 

(1987)). 

at 76 (citing Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76 

suffered prejudice. See 42 Pa. C.S.A. § 9543(a)(2)(ii); Spotz, 616 Pa. at 187, 47 A.3d 

preponderance of the evidence that: (1) the underlying claim has arguable merit; (2) 

., 

trial counsel had no reasonable basis for proceeding as he did; and (3) the petitioner 

must overcome the presumption that counsel is effective by establishing by a 

of ineffective assistance of counsel made in the post conviction context, a petitioner 

supplemental motion for post-conviction collateral relief. In order to prevail on a claim 

Petitioner has raised a single claim of ineffective assistance of counsel in his 

II. Eligibility for PCRA Relief 

Briefs having been filed by the parties, this matter is ripe for disposition. 

where Brokenborough and his trial counsel, Cory Miller, Esquirel provided testimony. 

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client. In Missouri v. Frye, - U.S.-, 132 S.Ct. 1399 (2012), the United States 

It is undisputed that trial counsel had a duty to communicate any offer to his 

that the offer was communicated only after the expiration of the offer. (Brief in Support 

of Defendant's Post-Conviction Collateral Rellef at 2w3.) 

. . 

exchange for a plea of guilty (Supplemental Motion for Post-Conviction Collateral Relief 

at 1l 3.) He further testified at the PCRA hearing that he "never seen [sicJ the deal" and 

that Miller never conveyed the Commonwealth's offer to him. (N.T., PCRA Hearing at 

25-26.) However, in his post-hearing brief, Appellant admits that his trial counsel did 

properly inform him of the Commonwealth's plea offer but he alleges, for the first time, 

informed him of the Commonwealth's favorable offer" of eight years' incarceration in 

Petitioner has averred in his supplemental motion that trial counsel "never 

Ill. Discussion 

443 (2011)); 

ensuing .prejudice cannot satisfy a petitioner's burden to prove tha_t counsel was 

·ineffec;tive." Id. (quoting Commonwealth v. Paddy, 609 Pa. 272, 292, 15 A.3d 431, 

stress that boilerplate allegations and bald assertions of no reasonable basis and/or 

but for counsel's ineffectiveness. Chmiel, 612 Pa. at 362, 30 A.3d at 1127-28. "We 

reasonable probability that the outcome of the proceedings would have been different 

To establish the prejudice prong, the petitioner must show that there ls a 

Commonwealth v. Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006)). 

greater than the course actually pursued." Id. at 361-62, 30 A.3d at 1127 (quoting 

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6Petitioner was being held at that time in a federal detention center in Philadelphia. 

(N.T., PCRA Hearing at 9, 20, 32.) 

15), and clearly remembered communicating the offer to Petitioner by telephone8 (Id. at 

15-16), and discussing it with him "in detail." (Id. at 11-12.) He recalled that he 

on August 27, 2010. (See Petitioner's Exhibit No. 1.) 

Whjle Miller testified that he never "had an opportunity" to provide a copy of the 

.offer to Petitioner (N.T., PCRA Hearing at 11 ), he "distinctly recall[ed] eight years" (Id. at 

also Petitioner's Exhibit No. 1.) The Assistant Attorney General in the case, Iva 

· Dougherty, _offered an aggregate sentence on all counts of eight years. (Id. at 11: see 

a/soPetitioner's Exhibit No. 1.) The offer was made on August 16, 2010, and it expired 

that he received a plea offer from the Commonwealth. (N. T., PCRA Hearing at 9; see 

At the PCRA hearing in the instant case, trial counsel, Cory Miller, acknowledged 

plea offer in a timely manner. 

settled that counsel will be guilty of ineffective assistance for failing to communicate a 

the Frye Court held that counsel could be held ineffective for "allow[ing] the offer to 

expire without advising the defendant or allowing him to consider it." ld. Thus, it is welldefense counsel did not inform the defendant of the plea offer; and after the offer 

lapsed the defendant still pleaded guilty, but on more severe terms. Under these facts, 

favorable to the defendant." - U.S. at-, 132 S.Ct. at 1408 .. Specifically, in Frye, 

formal offers from the prosecution to accept a plea on terms and conditions that may be 

counsel because, "as a general rule, defense counsel has the duty to communicate 

Supreme Court held that the defendant established a claim of ineffective assistance of 

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9A scheouhnq order was entered on August 23, 2010, requiring the filing of all pre-trial 

motions by October 29, 2010, and scheduling a hearing on all pre-trial motions for January 31, 

2011, and a three-week trial for April 4. (See Order of August 23, 2010.) This schedullng order 

was filed during the 12-day period that the Commonwealth's plea offer was open. 

prison "absolutely stands" out in his memory. (Id.) Miller concluded his testimony by 

Miller further testified, "with certainty," that he requested an offer from the 

Commonwealth for his client. (N.T., PCRA Hearing at 17.) The offer of eight years in 

go to trial. (Id. at 18.) 

telephone conversation to be sure it was Petitioner's intention to reject the offer and to 

going to trial. (N.T., PCRA Hearing at 13-14.) However, Miller remarked that an offer 

"is important; make no mistake." (Id. at 16.) He added: "If this is an offer that my client 

is interested in taking, then that's what we'll do. I'm not going to talk him out of an 

offer."· (Id.) Which is why Miller specifically recalled asking his client twice during their 

getting close to trial and our minds were already made up." (Id.) 

Miller specifically recalled Petitioner laughing at the offer when it was presented 

l to him and that Miller agreed that it was an "extreme offer" and they were better off 

13.) He continued: "I can say that it was clearly before the trial, because we were 

wasn't in the wintertime because it was rather warm outside." (N.T., PCRA Hearing at 

offer to Petitioner, Miller stated that he could not specifically recall when it was but "it 

In response to PCRA counsel's questioning as to exactly when he provided the 

(Id. at 12.) 

approaching "a trial or pretrial motion hearing" date or "something ... of significance. "9 

became aware of the offer "in the summer months" and that the parties were 

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Frye, - U.S. at-, 132 S. Ct. at 1409. S.ee also Commonwealth v. Hernandez, 79 

defendants must demonstrate a reasonable probability they would 

have accepted the earlier plea offer had they been afforded effective 

assistance of counsel. Defendants must also demonstrate a 

reasonable probability the plea would.have been entered without the 

prosecution cancel_ing it or the trial court refusing to accept it, if they 

had the authority to exercise that discretion under state law. To 

establish prejudice in this instance, it is necessary to show a 

reasonable probability that the end result of the criminal process 

would have been more favorable by reason of a plea to a lesser 

charqe or a sentence of less prison time. 

expiration of the offer, Petitioner must also establish prejudice in order to successfully 

raise such an ineffectiveness claim. To establish prejudice in this regard, 

either failing to communicate the plea.offer entirely or communicating it after the 

Even assuming, arguendo, that Miller rendered deficient performance by 

timely communication of the offer to Petitioner and that Petitioner rejected lt.: 

Post-Conviction Collateral Relief at 3.) This is an unfair misrepresentation of Miller's 

testimony and must be rejected. The evidence clearly establishes that Mille/made a 

take advantage of the offer had come and gone." (See Brief in Support of Defendant's 

at 25-26.) Rather, he now argues that Miller only communicated the offer "on or about 

the time of trial in April of 2011" and that it was "a laughing matter because the time to 

(Supplemental Motion for Post-Conviction Collateral Relief at 1J 3; N.T., PCRA Hearing 

position that trial counsel never informed him of the Commonwealth's "favorable offer." 

Based upon the testimony set forth above, Petitioner retracts from his initial 

Petitioner is simply false. (Id. at 17-18.) 

asserting that Petitioner's allegation that he failed to communicate the plea offer to 

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Commonwealth. (N.T., PCRA Hearing at 19.) Brokenborough made it "very clear" to 

his trial counsel that he was not going to take an eight-year plea. (Id.) Miller 

unless it was substantially lower than the eight-year minimum offered by the 

Miller stated unequivocally that Brokenborough was not going to accept any offer 

won." (Id. at 17.) ' I· 

I 

chances were better going to trial (Id. at 14, 17, 18), as "[t]his was a case that could be 

decided to take the case to trial. (Id. at 7; see also 17.) Both parties agreed that their 

testified that Petitioner, after discussing the merits of the case "at length" with Miller, 

case took ~o and one-half days to complete indicated to Miller and Petitioner that "the 

Commonwealth had a very difficult case to put together." (Id. at 16.) As such, Miller 

physical evidence. (Id. at 6-7, 19.) Also, the fact that the preliminary hearing in this 

Commonwealth's offer was a favorable offer. (N.T., PCRA Hearing at 13-14.) Miller 

explained that he believed theCornmonwealth had a weak case, as there was a lack of 

was facing for violating federal parole. (Id.) 

On the other hand, Miller testified that neither he nor Petitioner thougtit the 

attempted to get the eight-year sentence to run concurrently with a five-year term he 

despite the perceived weakness of the Commonwealth's case, was that he could have 

The only explanation offered as to why Brokenborough would have accepted the offer, 

self-serving testimony that he "would have took [sic] it." (N.T., PCRA Hearing at 27.) 

Commonwealth's offer of an eight-year aggregate sentence is Broken borough's own 

The only evidence to support the notion that Petitioner would have accepted the 

A.3d 649, 653 (Pa. Super. 2013). A PCRA petitioner bears the burden of proof, and 

that burden is a preponderance of the evidence standard. 42 Pa. C.S.A. § 9543(a). 

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10As Petitioner is unable to establish by a preponderance of the evidence that he would 

have accepted the offer, it is unnecessary to evaluate the additional requirements that the 

prosecution would not revoke the offer, if it had the authority to do so, and the trial court would 

ultimately accept the plea. Frye, - U.S. at-, 132 S. Ct. at 1409. 

without further proceedings. 

Hearing at 4.) Therefore, Petitioner's remaining PCRA claims will also be dismissed 

conceded that a ruling has already been rendered on those other claims. (N.T., PCRA 

December 23, 2013, stating my intention to dismiss those claims, pursuant to 

Pa.R.Crim.P. 907. Petitioner has faired to provide any additional evidence or argument 

as to why the remaining claims should not be dismissed. Furthermore, PCRA counsel 

As for the remaining claims under the PCRA, I issued an Opinion and Order on 

be dismissed. 

burden of establishing that he suffered any prejudice as a result of his trial counsel's 

alleged deficient performance with regard to the plea offer." Accordingly, this claim will 

upon the record before me, I must conclude that Petitioner has failed to meet his 

ineffective assistance of counsel test. Frye, - U.S. at-, 132 S. Ct. at 1409. Based 

communicated to him by trial counsel, in order to satisfy the prejudice prong of the 

evidence that there was a "reasonable probability" that he would have accepted the 

plea offer that included an eight-year minimum term of incarceration had it been timely 

As noted above, Petitioner needs to establish by a preponderance of the 

18-19.) 

"wholeheartedly" agreed with his client's assessment of the offer. (Id. at 13-14, 16-17, 

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For the reason~ set forth above, Brokenborough's amended motion and 

supplemental motion will be dismissed. 

Accordingly, I enter the folfowing: 

IV. Conclusion 

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r: 

Copies to: William R. Stoycos, Senior Deputy Attorney General, Pennsylvania Office 

of Attorney General, Appeals and Legal Services Section, 161h Floor, 

Strawberry Square, Harrisburg, PA 17120 

Jeffrey A. Conrad, Esquire, Clymer Musser & Conrad, P.C., 408 West Chestnut 

Street, Lancaster, PA 17608 

date of this final Order to appeal to the S.uperlor Court of Pennsylvania. Failure to appeal within 

· 3q days will result in the loss of appellate rights. 

It i~ further ORDERED that Petitioner shall have the right, if indigent. to appeal in torme 

pauperis and to proceed with assigned counselas provided in Pa. R.Crim.P. 122. 

I certify this document to be fifed 

. In the Lancaster County Office of 

~;l~ii~f)th°Jou:~ . · 

=~· \1.~:J:·.r<= .,.0 

::.-c"·~:: ·,~ 

· \'i,_,~.... .' ··: .. ,l Joshua G. Parsons 

~ .... ,,,,~~"'"''''''" · Clerk o/ the Courts 

. ATIEST: 

assistance of counsel in the preparation of that appeal. Petitioner shall have 30 days from the 

Petitioner is advised that he has the right to appeal from this Order and the right to 

that said motions are DISMISSED. 

conviction collateral relief motion of Salim Brokenborouqh, and the supplement thereto, the 

briefs filed by the parties, and after an evldentiary hearing in this matter, it is hereby ORDERED ~~, 

AND NOW, this 121h day of September, 2014, upon consideration of the amended post 

ORDER 

No.1775-2010 

SALIM BROKENBOROUGH 

V. 

COMMONWEALTH OF.PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

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