Opinion
J-S46037-15 No. 2409 EDA 2014
08-31-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MAURICE A. JACKSON, Jackson
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered on July 11, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0012730-2007 BEFORE: MUNDY, OLSON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Maurice A. Jackson ("Jackson") appeals from the dismissal of his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 2008, following a jury trial, Jackson was convicted of first-degree murder, possession of an instrument of crime, and carrying a firearm without a license, arising out of the shooting death of Keith McCorey ("McCorey"). Jackson was sentenced to life in prison without the possibility of parole. Jackson filed Post-Sentence Motions, which were denied. This Court affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Jackson , 26 A.3d 1196 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 24 A.3d 362 (Pa. 2011).
Jackson filed a timely, pro se, PCRA Petition. The PCRA court appointed Jackson counsel, who filed an Amended Petition. The PCRA court issued a Notice of intent to dismiss the Petition without a hearing. Jackson filed a Response. Thereafter, the PCRA court dismissed the PCRA Petition. Jackson filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Jackson raises the following issues for our review:
I. [Whether] the PCRA court err[ed] when it dismissed [the Petition] without a hearing[] where [Jackson] properly pled[,] and would have been able to prove that he was entitled to PCRA relief[,] and more specifically as follows...Brief for Appellant at 3.
a) [Whether] counsel on appeal was ineffective when counsel failed to raise the issue of prosecutorial misconduct[,] where the prosecutor[,] in [the] opening statement[,] referred to the murder of the [McCorey's] brother and[,] of course[,] [] [McCorey's] suffering mother; trial counsel was ineffective when counsel failed to move for a mistrial[?]
b) [Whether] trial counsel was ineffective for failing to object to a witness testifying that[,] at 4:30 in the morning [] "they" could see[,] when that was irrelevant to the issue as to whether the witness could see[?]
c) [Whether] appellate counsel was ineffective for failing to raise an argument on appeal that [Jackson] should be awarded a new trial as the result of the trial court's error in denying a motion for mistrial when the prosecutor engaged in misconduct and asked a question pertaining to [Jackson's] possession of a gun wherein there was no foundation for same[?]
d) [Whether] trial counsel was ineffective for failing to object to an inadequate jury instruction on the issue of alibi[?]
e) [Whether] trial counsel was ineffective when she failed to move for a DNA analysis on a key piece of physical evidence, a hat, found at the scene of the crime[?]
This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that a petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence.Commonwealth v. Carter , 21 A.3d 680, 682 (Pa. Super. 2011) (citations and quotation marks omitted).
Jackson has raised several ineffective assistance of counsel claims. To succeed on an ineffectiveness claim, Jackson must demonstrate by the preponderance of the evidence that
(1) [the] 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 proceedings would have been different.Commonwealth v. Ali , 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test of ineffectiveness will require rejection of the claim. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on Jackson to prove otherwise. Commonwealth v. Hanible , 30 A.3d 426, 439 (Pa. 2011).
In his first claim, Jackson argues that trial counsel was ineffective for not raising the issue of prosecutorial misconduct, and failing to move for a mistrial. Brief for Appellant at 9. Jackson contends that the prosecutor's grossly inflammatory comments prejudiced him, and prevented him from receiving due process of a fair trial. Id. Jackson asserts that there should have been a mistrial for the prosecutorial misconduct. Id.
We note that in his Statement of Questions Involved, Jackson also asserts that appellate counsel was ineffective with respect to the issue of prosecutorial misconduct; however, Jackson's brief only argues that trial counsel was ineffective for failing to seek a mistrial. Thus, the issue as to whether appellate counsel was ineffective has been waived on appeal.
Jackson does not identify which statements made by the prosecutor were grossly inflammatory in the Argument section of his brief. See Pa.R.A.P. 2119(a). Nevertheless, because Jackson references the comments regarding McCorey's brother and mother in his Statement of Questions, we will address the claim.
Here, during his opening statement, the prosecutor referenced the murder of McCorey's brother to explain that the eyewitness, Mylan Harrison ("Harrison"), came forward because he felt bad that McCorey's mother had another son who had been murdered. N.T., 7/29/08, at 50. Jackson's trial counsel immediately objected, and moved for a mistrial. Id. at 63-68. The court sustained the objection, struck the statement from the record, and gave a cautionary instruction to the jury, but denied the motion for a mistrial. Id. at 64-65, 68; see also Commonwealth v. Jones , 668 A.2d 491, 504 (Pa. 1995) (stating that juries are presumed to follow cautionary instructions). In addition to giving the cautionary instruction, the trial court instructed the jury that the arguments of counsel are not evidence. See N.T., 7/29/08, at 68; see also Commonwealth v. Stokes , 839 A.2d 226, 233 (Pa. 2003) (stating that a court's instruction that a prosecutor's comments do not constitute evidence was sufficient to remove any prejudice). Thus, because trial counsel objected and moved for a mistrial, and secured a cautionary instruction from the trial court, Jackson's first ineffectiveness claim is without merit. See Commonwealth v. Freeland , 106 A.3d 768, 778 (Pa. Super. 2014) (stating that trial counsel will not be considered ineffective for failing to pursue claims that lack merit).
To the extent Jackson argues that the trial court improperly denied the motion for mistrial, such a claim is not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).
In his second claim, Jackson argues that trial counsel was ineffective for failing to object to the testimony of Detective Thomas Gaul ("Detective Gaul") and Officer Clyde Frasier ("Officer Frasier"). Brief for Appellant at 11. Jackson contends that the testimony of Detective Gaul and Officer Frasier, confirming that they could see satisfactorily at 4:30 a.m. while at the crime scene, was irrelevant as to whether Harrison could clearly observe the murder at approximately midnight. Id. at 11-12.
"The threshold inquiry with the admission of evidence is whether the evidence is relevant." Commonwealth v. Flamer , 53 A.3d 82, 84 (Pa. Super. 2012) (quoting Pa.R.E. 402). "The Pennsylvania Rules of Evidence define relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (quoting Pa.R.E. 401).
Harrison testified that he observed Jackson shooting McCorey at approximately 12:00 a.m. N.T., 7/29/08, at 188. During cross-examination, Jackson's trial counsel challenged Harrison's ability to clearly observe the murder, since it occurred late at night. N.T., 7/29/08, at 244-245. Detective Gaul and Officer Frasier testified that, while it was nighttime when they arrived at the crime scene, the scene was illuminated by street lights and the lights on the nearby houses, and they had no trouble seeing the street during their evidence recovery. N.T., 7/30/08, at 39-41; 7/29/08, at 164-66. The testimony of Detective Gaul and Officer Frasier was relevant to corroborate Harrison's eyewitness testimony about the lighting conditions at the time of the crime. See PCRA Court Opinion, 10/31/14, at 5. Thus, we conclude that trial counsel was not ineffective for failing to object to the testimony of the Detective Gaul and Officer Frasier. Accordingly, Jackson's claim lacks merit.
Jackson also claims the prosecutor engaged in misconduct during the cross-examination by asking a prejudicial question of an alibi witness, Ayanna Harris ("Harris"), Jackson's former girlfriend, regarding Jackson's possession of a gun. Brief for Appellant at 12. Jackson argues that trial counsel was ineffective when she did not ask the judge to give a ruling on the motion for mistrial, to sustain the objection and to strike the testimony. Id.
Here, the trial court set forth the relevant law, and determined that trial counsel was not ineffective and the trial court properly removed any potential prejudice. See Trial Court Opinion, 10/31/14, at 5-6. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id .
Jackson also baldly argues that appellate counsel failed to raise the issue of whether the trial court erred in denying the motion for mistrial. Id .; see also Pa.R.A.P. 2119(a) (stating that arguments shall include a discussion of and citation to authorities as are deemed pertinent). Jackson cannot demonstrate that appellate counsel was ineffective for failing to raise this claim on appeal. Here, the trial court struck the question from the record, sustained the objection, and instructed the jury that the question should not be considered evidence. See Commonwealth v. Bryant , 67 A.3d 716, 730 (Pa. 2013) (stating that prompt and effective curative instructions may remove prejudice resulting from improper comments by a prosecutor). Although Jackson claims appellate counsel failed to raise the issue that the trial court erred, the trial court has wide discretion in declaring a mistrial and its decision will not be reversed absent an abuse of discretion. Commonwealth v. Moury , 992 A.2d 162, 175 (Pa. Super. 2010).
In his fourth claim, Jackson argues that trial counsel was ineffective for failing to object to an improper alibi instruction, which failed to reinforce the concept that guilt must always be proved by the Commonwealth regardless of whether or not a jury believes or disbelieves testimony offered by the defendant. Brief for Appellant at 13-14. Jackson contends that the jury instructions were confusing and caused the jury to believe that a reasonable doubt required an alibi. Id. at 14. Jackson claims he is entitled to a new trial. Id. at 14-15
Here, the trial court set forth the relevant law, and determined that the jury instruction was proper and trial counsel was not ineffective for failing to object to it. See Trial Court Opinion, 10/31/14, at 6-7. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
In his last claim, Jackson argues that trial counsel was ineffective for not requesting DNA analysis on a hat found at the scene of the crime. Brief for Appellant at 15. Jackson argues that, because there is nothing in the record to associate the hat with the victim, it could potentially belong to the person who shot McCorey. Id. Jackson claims that if DNA testing revealed that the hat belonged to someone else, it could have at least raised a reasonable doubt about Jackson's guilt. Id. Jackson asserts that an evidentiary hearing should have been held on this issue. Id.
Here, the trial court set forth the relevant law and determined that trial counsel was not ineffective for failing to request a DNA profile on the hat. See Trial Court Opinion, 10/31/14, at 8-9. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id.
Because the PCRA court's ruling is supported by the record and free of legal error, we conclude that the trial court properly dismissed the Petition without a hearing.
The PCRA court may decline to hold a hearing on a petition if the PCRA court determines that a petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Carter , 21 A.3d at 682. Thus, because Jackson's claims are without support from the record, the PCRA court did not abuse its discretion in dismissing the Petition without a hearing.
Order affirmed.
Mundy, J., joins the memorandum.
Olson, J., concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
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