Opinion
1921 EDA 2020 1922 EDA 2020 J-S02006-22
03-08-2022
COMMONWEALTH OF PENNSYLVANIA v. ANGELO MARTINEZ Appellant COMMONWEALTH OF PENNSYLVANIA v. ANGELO MARTINEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered September 10, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011251-2007
Appeal from the PCRA Order Entered September 11, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011256-2007
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM
OLSON, J.
Appellant, Angelo Martinez, appeals from the orders entered September 10 and 11, 2020, which denied his first petition filed under the Post-Conviction Relief Act ("PCRA"). We affirm.
The PCRA court summarized the factual and procedural history as follows:
On June 21, 2007, at approximately 5:00 p.m., Jennifer Patrick ("Jennifer") and her sister, Diane Patrick ("Diane" [also referred to by her nickname "Dirt"]) were outside their home with [Diane's five-year-old daughter] and neighbors near the corner of Emerald and Somerset streets in the City and County of Philadelphia. At that time, co-defendants Angel Maldonado and [Appellant] drove [Appellant's] Pontiac Bonneville to that location where they began "setting up the corner" to sell drugs. Diane approached Maldonado and told him[, ] "We're not allowing that here Angel." Maldonado responded, "it's me Dirt, it's me." Diane replied, "I don't care who it is, it's not happening here." [Appellant], standing next to Maldonado, pointed to the sisters and said[, ] "Man, F*ck them bitches, f*ck them!"
Jennifer and Diane then began walking [Diane's daughter] to the corner store for ice cream. As the sisters walked away, Maldonado pulled up his shirt and yelled[, ] "F*ck it," revealing a black handgun in his waistband. [Appellant] continued to point at the sisters yelling, "F*ck them bitches!" After they returned from the store, Jennifer brought her niece into her house. Diane approached Maldonado and [Appellant], who were still standing on the corner, and told them both to leave.
Raheem Haines [("Raheem")], who lived across the street and was friends with Jennifer and Diane, heard the argument and came out of his house to stop the argument. As the argument escalated, Jennifer tapped her finger on Maldonado's forehead and said, "You're a f*cking nut for showing a gun while my niece is out here." In response, Maldonado pulled out his gun and shot Jennifer once in her stomach. Jennifer fell to the ground and cried out[, ] "He shot me!" Diane began to scream and hit Maldonado with her fists. Maldonado then shot Diane in her chest and neck.
As Raheem [] tried to intervene, [Appellant] punched Raheem and threw him to the ground. Maldonado then repeatedly shot Raheem in the head and torso as he laid on the ground. As Jennifer crawled away, Maldonado continued to shoot at her, as he and [Appellant] ran to [Appellant's] car and drove away from the scene. Diane was pronounced dead at a nearby hospital. Raheem [] was pronounced dead at the scene. Jennifer was taken
to a hospital and underwent successful emergency surgery for her gunshot wound.
Police responded to the scene and began searching for Maldonado and [Appellant]. The pair were caught and arrested after they were identified by eyewitnesses. A Barretta 9mm handgun was recovered after a search of [Appellant's] car.
[]In 2010, [A]ppellant was tried jointly with [co-defendant] Maldonado. [Appellant] was found guilty on May 7, 2010 of two [] counts of third-degree murder, one count of attempted murder, and one count of aggravated assault. On June 6, 2010, [A]ppellant was sentenced to an aggregate term of life plus years' incarceration. Appellant's conviction and judgment of sentence was affirmed by [this] Court on February 14, 2012. [See Commonwealth v. Martinez, 46 A.3d 816 (Pa. Super. 2012) (unpublished memorandum).] Appellant did not seek review with our Supreme Court but rather filed the instant PCRA petition on February 4, 2013.PCRA Court Opinion, 3/23/21, at 1-3 (some footnotes omitted).
18 Pa.C.S.A. §§ 2502, 901(a) and 2702(a), respectively.
Appellant timely filed the instant PCRA petition, his first, on February 4, 2013. The PCRA court appointed counsel who filed an amended PCRA petition on May 15, 2018. Appellant later retained private counsel who filed a second amended petition and memorandum of law on January 2, 2020. Within his amended petitions, Appellant alleged that his trial counsel was ineffective for failing to object to the trial court's jury instruction regarding reasonable doubt and for failing to object to the trial court's cautionary instruction regarding certain parts of Jennifer Patrick's testimony.
The Commonwealth filed a motion to dismiss Appellant's petition on March 10, 2020. On July 29, 2020, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. On August 12, 2020, Appellant filed a response which did not raise any new claims or averments. Consequently, the PCRA court dismissed Appellant's PCRA petition on September 11, 2020.
The Commonwealth filed a prior motion to dismiss on January 29, 2019, after which Appellant filed a subsequent amended petition. As a result, the Commonwealth filed the second motion to dismiss, which "supersede[d] the Commonwealth's [prior] filing." See Commonwealth Motion to Dismiss, 3/10/20, at 10 n.4.
On November 5, 2020, the PCRA court entered an order directing Appellant to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant failed to timely file his concise statement. Nevertheless, the PCRA court permitted Appellant to file his concise statement on March 10, 2021. See Pa.R.A.P. 1925(b)(2)(i) (authorizing judges to "enlarge the time period initially specified or permit an amended or supplemental [concise s]tatement to be filed"). The PCRA court issued its Rule 1925(a) opinion on March 23, 2021.
The record demonstrates that, in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and its progeny, Appellant filed a separate notice of appeal at each trial docket. This Court consolidated Appellant's separate appeals.
Appellant raises the following issues:
1. Did the PCRA [court] abuse its discretion in holding [that] Appellant's claim that trial counsel was ineffective for failing to object to the trial court's erroneous reasonable doubt instruction was without merit?
2. Did the PCRA [court] abuse its discretion in holding [that] Appellant's claim that trial counsel was ineffective for failing to object to the trial court's cautionary instruction was without merit?Appellant's Brief at 2.
Our standard of review for challenges to the denial and dismissal of petitions filed pursuant to the PCRA is well-settled.
We must determine whether the findings of the PCRA court are supported by the record and whether the court's legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court's credibility determinations, when supported by the record, are binding; however, this [C]ourt applies a de novo standard of review to the PCRA court's legal conclusions. We must keep in mind that the petitioner has the burden of persuading this Court that the PCRA court erred and that such error requires relief. Finally, this Court may affirm a valid judgment or order for any reason appearing of record.Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations omitted).
Both of Appellant's claims assert that trial counsel was ineffective. Counsel is presumed to be effective and "the burden of demonstrating ineffectiveness rests on [the] appellant." Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a preponderance of the evidence that[] (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim.Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal citations and quotation marks omitted).
A claim has arguable merit where the factual averments, if accurate, could establish [grounds] for relief. See Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) ("if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim . . ., he or she will have failed to establish the arguable merit prong related to the claim"). Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, [whether an unchosen alternative] offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some quotations and citations omitted). If a claim fails under any necessary element of the applicable test, the court may proceed to that element first. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). Moreover, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 801.
As discussed more fully below, an appellant must plead and prove all three prongs of the ineffective assistance of counsel test to warrant collateral relief. See Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017). Contrary to his concise statement which properly framed Appellant's issues as challenges to the PCRA court's dismissal of his claims as a whole, Appellant narrowed his issues before this Court solely to the court's determinations regarding the arguable merit prong. In so doing, Appellant waived any challenge to the PCRA court's determinations on the remaining reasonable basis and prejudice prongs of the ineffectiveness test. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
A PCRA petitioner is not automatically entitled to an evidentiary hearing on his petition. Specifically, a PCRA petition may be dismissed without a hearing if the PCRA court "is satisfied from [its review of the petition] that there are no genuine issues concerning any material fact and that the [petitioner] is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings." Pa.R.Crim.P. 907(1). If, however, the PCRA petition raises material issues of fact, the PCRA court "shall order a hearing." Pa.R.Crim.P. 908(A)(2). Thus, "[t]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal quotations and citations omitted).
In his first issue, Appellant argues that trial counsel was ineffective for failing to object to the trial court's jury instruction regarding reasonable doubt. Upon review, we conclude that Appellant's claim warrants no relief.
The trial court instructed:
Now, ladies and gentlemen, this burden that the Commonwealth bears, it is the highest burden in the law. Proof beyond a reasonable doubt. There is nothing higher. It is the greatest burden of all. But that does not mean that the Commonwealth must prove its case beyond all doubt. That is not the standard. The Commonwealth is not required to answer every single possible question. The Commonwealth is not required to meet some kind of mathematical certainty. The Commonwealth is not required to demonstrate the complete impossibility of innocence.
A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause, to hesitate, to refrain from acting upon a matter of the highest importance to their personal affairs. It is something that would arise out of your own interest. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of each of the crimes charged. Now, ultimately what I'm going to do this afternoon is give you the definition of each crime. We call these the elements. What must the Commonwealth prove? What is the standard that the Commonwealth must reach? We will talk about that momentarily.
But let's be clear about reasonable doubt. I find it helpful to think about it in this way. Now, each one of you has somebody in your life you love. That's the benefit of me having the opportunity to talk with you individually. I know there is someone you love. Take a moment and think if your precious one, the one you love, is told by their physician that they have a life-threatening condition and that that life-threatening condition required surgery. Now, you're probably going to ask for a second [opinion]. You might even ask for a third opinion. If you're like me, you will start researching the disease. You will start asking questions. What do you know? What do you know about this disease? What do you know about the treatment protocols? Who are the best doctors in town? Shucks, who are the best doctors in the country? What do I do to get the best care possible for my loved one? What are my options?
Now, ladies and gentlemen, at some moment the question will be called, are you going forward with the surgery to your loved ones or not? If you go forward - because you have moved beyond all doubt. There are no guarantees. There are no promises. If you go forward, it's because you have moved beyond all reasonable doubt. A reasonable doubt must be a real doubt. It may not be a doubt that is imagined or manufactured to avoid carrying out an unpleasant responsibility. You may not find a citizen guilty based upon a mere suspicion of guilt.
The Commonwealth bears its burden on proving each defendant guilty beyond a reasonable doubt. If the Commonwealth has met that burden, then the person is no longer presumed to be innocent and you should find him guilty. On the other hand, if the Commonwealth has not met its burden, you must find him not guilty.N.T., 5/4/10, at 108-111.
"[I]t is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion in phrasing its instruction, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations omitted). Thus, jury instructions will not be found in error if, taken as a whole, they adequately and accurately set forth the applicable law. Commonwealth v. Daniels, 963 A.2d 409, 410 (Pa. 2009).
Herein, Appellant contends that the instruction "when taken as a whole does not properly instruct the jury on the law and suggests a higher degree of doubt than that which is constitutionally required for an acquittal." Appellant's Brief at 8-9. In support of his argument, Appellant cites a non-precedential federal district court case, Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017). Brooks examined the same trial judge's reasonable doubt jury instruction and concluded it impermissibly elevated the level of doubt required for acquittal.
Notably, Appellant cites no authority, nor can we find any, from either this Court or our Supreme Court that supports his position. Rather, this Court previously addressed, and consistently rejected, the precise Brooks-based challenge to the reasonable doubt instruction at issue herein. E.g., Commonwealth v. Parker, 260 A.3d 135 (Pa. Super. 2021) (unpublished memorandum); Commonwealth v. Gamble, 258 A.3d 505 (Pa. Super. 2021) (unpublished memorandum); Commonwealth v. Drummond, 249 A.3d 1153 (Pa. Super. 2021) (unpublished memorandum); Commonwealth v. King, 245 A.3d 1061 (Pa. Super. 2020) (unpublished memorandum); Commonwealth v. Vando, 242 A.3d 457 (Pa. Super. 2020) (unpublished memorandum); Commonwealth v. Warner, 240 A.3d 943 (Pa. Super. 2020) (unpublished memorandum); Commonwealth v. Santiago, 240 A.3d 180 (Pa. Super. 2020) (unpublished memorandum); Commonwealth v. Moore, 2019 WL 6825166 (Pa. Super. 2019) (unpublished memorandum); Commonwealth v. Nam, 2019 WL 3946049 (Pa. Super. 2019) (unpublished memorandum). After reviewing the certified record, including the parties' briefs and the PCRA court opinion, we conclude Appellant's first issue is meritless, particularly in light of this Court's consistent rejection of identical claims. See King, 245 A.3d 1061 at *5 n.4 (stating "this argument has not prevailed in any precedential decision, and we are not bound by the decision in Brooks.").
We note that our Supreme Court granted allowance of appeal in Drummond to analyze this precise issue but has yet to issue its determination. See Commonwealth v. Drummond, 261 A.3d 1035 (Pa. filed August 25, 2021).
Moreover, the Brooks decision was not decided until 2017, seven years after Appellant's trial; thus, defense counsel could not have objected to the reasonable doubt instruction on the grounds addressed by the federal court. See Commonwealth v. Hays, 218 A.3d 1260, 1272 (Pa. 2019) ("The law in Pennsylvania is clear that counsel cannot be deemed ineffective for failing to predict changes in the law."). Accordingly, the PCRA court did not err in dismissing Appellant's first claim without an evidentiary hearing.
In Appellant's second issue, he argues that trial counsel provided ineffective assistance by not objecting to the trial court's curative instruction that purportedly bolstered the credibility of Jennifer Patrick.
Generally, a prosecutor or trial court "commits improper bolstering when it places the government's prestige behind a witness through personal assurances as to the witness's truthfulness, and when it suggests that information not before the jury supports the witness's testimony." Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014) ("Reid I"). The prosecutor or trial court, however, "may make fair comment on the admitted evidence," and such comment "must be evaluated in the context in which the comment was made." Commonwealth v. Reid, 259 A.3d 395, 429 (Pa. 2021) ("Reid II"). A trial court does not err where it "merely allude[s] to evidence produced by the Commonwealth at trial while instructing the jury that it could accept all, part, or none of the evidence." Commonwealth v. Fletcher, 750 A.2d 261, 271 (Pa. 2000), abrogated on other grounds, Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). We presume that the jury follows the trial court's instructions. Reid II, 259 A.3d at 429.
By way of background, the Commonwealth called Jennifer as a victim and eyewitness of the shooting incident on June 21, 2007. At several points, Jennifer became confused during questioning and the trial court stepped in for clarification. See, e.g., N.T., 4/27/10, at 80, 89-90, 92-93, 105-106, 109, 110, and 111-115. During one such exchange, Jennifer explained her confusion as follows:
You just got to bear with me because I take medication. You just got to bear with me because I'm not on my medication right now. So you have to bear with me. I am on a lot of medication because of this incident.Id. at 84. Thereafter, counsel for Maldonado questioned Jennifer regarding the timing of certain events surrounding the shooting, including the circumstances and timing of an outstanding bench warrant for her failure to appear in court. See id. at 110-115. Jennifer again became confused with the line of questioning, at which point the trial court attempted to clarify. Id. Ultimately, when the trial court asked her whether the homicide detectives picked her up for an interview, Jennifer answered, "I was in protective custody." Id. at 115. The trial court blamed this "mess" on Maldonado's counsel before dismissing the jury to discuss resolution of the confusion. Id. at 115.
During the discussion with counsel, the trial court criticized the Commonwealth for failing to notify the trial court or defendants' counsel that Jennifer was ever placed in witness protection by the Commonwealth. See id. at 118-119 ("I'm talking about whether she was placed in witness relocation at the Commonwealth's expense and you didn't tell me and you didn't tell them." Such information was "disclosable" as "highly relevant with respect to motivation."). The discussion continued into the next day, when the Commonwealth admitted that it did not inform the defendants prior to trial that Jennifer was placed in witness relocation as a result of alleged threats made by Izzy Martinez, Appellant's brother, toward Jennifer and her family members. See N.T., 4/28/10, at 8-11.
Contrary to Appellant's assertion that there was a pre-trial ruling precluding Jennifer from testifying about her witness relocation, the record reveals no such ruling. Rather, the Commonwealth failed to give pre-trial notification that Jennifer was in witness relocation, and such information only came to light during Jennifer's testimony at trial. The trial court precluded further testimony regarding the circumstances surrounding Jennifer's witness relocation as a consequence of the Commonwealth's failure to provide the information in discovery.
Counsel for Appellant and Maldonado moved for a mistrial. Maldonado's counsel also argued that the trial court's admonition before the jury that the "mess" was her fault destroyed counsel's credibility and thus would deprive Maldonado of a fair trial. The trial court denied both requests for mistrial, stating "[t]here is nothing to support the fact that this jury cannot be given the appropriate cautionary instructions with respect to how to address what occurred yesterday afternoon." Id. at 23. Rather, the trial court precluded any evidence regarding Izzy Martinez's threats, agreed to instruct the jury that the confusion was not the fault of Maldonado's counsel, determined that all counsel would stipulate to the dates surrounding Jennifer's bench warrant, and decided to attribute Jennifer's witness relocation to "an unrelated case." Id. at 24, 25, 28-30.
At the conclusion of the trial court's discussion with counsel, the jury re-entered the courtroom, and the trial court issued the following curative instruction:
Ladies and gentlemen, thank you for agreeing to come in late today. You know I had other cases to work on. To say it complicated my day is an understatement but that's okay. I want to start[, ] in addition to thanking you for coming in, to ask for your forgiveness. I was irritated yesterday when I last saw you. Just a little irritated. Fine[, ] I was a lot irritated. I work very hard at having things go smoothly and things did not go smoothly yesterday afternoon[, ] and I was not pleased about that. And I did something that was wrong and that I should not have done. I told [Maldonado's counsel that] she created this mess, to quote me. She didn't. Nothing that occurred yesterday afternoon was [Maldonado's counsel's] fault.
There are times, and I would well imagine where you see them in your own life, where the universe kind of comes together and it's like, boom. It was in no way her fault. It was wrong of me to say it. So I apologize to her publicly for saying that. She's a really good lawyer. She works very hard. So part of what has made us late today is my trying to figure out this because that's my job; to make sure the record is clean and that you understand exactly what has occurred.
And what I have been able to determine is that on November 4thof the year 2006[, ] Jennifer Patrick, the witness who was on the stand yesterday, was arrested. She was arrested for crimes related to the possession and sale of drugs. On June 1st, 2007, a bench warrant was issued because she failed to show up in court. Clearly that had nothing to do with this case because the date that is relevant to us is June 21, 2007. That's the day that the citizens in question lost their life. [Jennifer] was injured on that day. She was released from Temple Hospital on June 30th of the year 2007. She stayed with various family and friends between June 30th and September 15th, 2007. She gave her statement to Homicide on September 15th, 2007.
On September 19th, 2007, she testified at the preliminary hearing. One year later[, ] completely unrelated to this case as best I can tell, her bench warrant was lifted on September 18, 2008. Now, [Jennifer] used a term that we don't actually use yesterday. She said she was in protective custody. She also told us at some point during her testimony that she takes medication but she did not take her medicine yesterday. When she used the term "protective custody," she was referring to what we call witness relocation. [Jennifer] was placed in witness relocation from February 12th, 2008, until April 14th, 2008 in a case completely unrelated to this proceeding. It is my conclusion - and you're not required to draw any conclusion that I have reached. My conclusions have no bearing on you. But it is my conclusion that yesterday was a long day. She didn't take her meds. We were asking all these questions about dates and times. I think she got confused. These are the facts. The inferences you draw from these facts and how you use this information is solely for you to decide. But these are the facts for you to use as you deem appropriate.
[Jennifer] did not finish her testimony[.] So we will recall her to the stand and place her under oath at this time. ….Id. at 41-45 (emphasis added). Jennifer then continued her testimony, and trial progressed over the course of the next several days.
Appellant now claims that, by issuing this curative instruction and blaming Jennifer's confusion on failing to take her medication, the trial court "impermissibly bolstered" Jennifer Patrick's testimony during direct examination and discredited testimony during cross-examination which allegedly corroborated Appellant's exculpatory testimony. Appellant's Brief at 18-19. He argues that the instruction was determinative in his convictions because the sole issue at trial was whether he was an accomplice or merely present. Id. at 16.
The PCRA court opined that Appellant's argument is neither supported by the record nor factually correct because the instruction only made the jury aware of Jennifer's bench warrant resulting from an unrelated drug case. PCRA Court Opinion, 3/23/21, at 13. The PCRA court concluded that the curative instruction "did nothing to negate that part of her testimony." Id. Further, the instruction did not bolster Jennifer's testimony or credibility because it provided the jury with an explanation as to the confusion of the timing of events by reminding them that she was charged with a crime and failed to appear for court. The court advised the jury that Jennifer was involved in multiple unrelated criminal matters as both the defendant and witness. Id. at 14-15.
Upon review, we conclude that the trial court's curative instruction did not improperly bolster Jennifer's testimony. Not once during the instruction did the trial court personally assure the jury of Jennifer's truthfulness or credibility, nor did it rely on anything that was not either already part of the record (Jennifer's explanation for her confusion) or stipulated to by the parties (timeline). Instead, the trial court merely provided important context and clarification of a specific portion of testimony while still reminding the jurors that they are not required to come to the same conclusion. Contrary to Appellant's allegations, the trial court did not offer inappropriate personal opinion regarding the credibility of the witness, but rather clarified a timeline and redirected the jury's focus to the relevant presentation of evidence and away from collateral and distracting matters.
We further conclude that the curative instruction encompassed an accurate reflection of the law that the jury is not required to draw the same conclusion as the trial court, and it is the jury's sole decision to draw inferences and use the facts as it deems appropriate. See N.T., 4/28/10, at 44. The trial court further underscored the jury's role as the determiner of facts, credibility, and weight no less than six times throughout its final instructions to the jury. See N.T., 5/4/10, at 31-32, 99-100, 101-105, 111-114, 118-120, and 121. Most relevantly, the trial court stressed:
I feel so strongly about this because as I constantly pointed out to you, it's not the lawyers' perception of the evidence that matters. Frankly, it's not my perception of the evidence that matters. [] I try not to reference the evidence [in my instructions]
because my opinion of the evidence is of no moment. Nor are [the] lawyers' opinions of the evidence relevant to you [because] it's not evidence. It's their opinion. The only opinion of this evidence that matters is yours, period. [] It is your recollection of the evidence that matters.Id. at 104-105. We presume that the jury followed the trial court's instructions. Reid II, supra.
Lastly, we reject Appellant's suggestion that the curative instruction credited all of Jennifer's testimony adverse to Appellant but discredited any of her testimony to his favor. The record does not support this delineation. Alternatively, Appellant benefited from the entire situation. The curative instruction that (1) highlighted Jennifer's confusion, (2) attributed that confusion to her lack of medication during trial, and (3) noted Jennifer's criminal involvement and abscondence, arguably weakened Jennifer's credibility to some degree. Furthermore, the trial court precluded all evidence that Appellant's brother threatened Jennifer and her family. Therefore, based upon our review of the record, including the trial court's curative instruction and the context within which it was made, Appellant's improper bolstering argument is meritless.
Because Appellant is not entitled to relief for either of his claims, we affirm the PCRA court's order dismissing his PCRA petition.
Appellant failed to explain how he was prejudiced by trial counsel's failure to object to either of these instructions in light of the overwhelming evidence introduced against him at trial, including, inter alia, his own inculpatory statements, multiple eyewitnesses placing him at the scene and encouraging the shooter, the murder weapon found in his car, and his missing shoe found under the body of one of the victims. Therefore, even assuming arguendo that Appellant demonstrated that his claims held arguable merit, he could not overcome his burden of demonstrating prejudice to warrant relief on his ineffective assistance of counsel claims.
Order affirmed.
Judgment Entered.