Opinion
J-S43021-15 No. 3112 EDA 2014
08-03-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. RASSAN RICHARDSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010426-2007
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J. MEMORANDUM BY PANELLA, J.
Appellant, Rassan Richardson, appeals from the order entered October 24, 2014, in the Court of Common Pleas of Philadelphia County, which denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). No relief is due.
The factual history of this matter is well known to the parties, so we direct the reader to the PCRA court's recitation of facts as set forth on pages 1-7 of the Rule 1925(a) opinion filed December 24, 2014. Briefly, a jury convicted Appellant of murder of the third degree, conspiracy and possession of an instrument of crime. On August 15, 2008, the court sentenced Appellant to 22 to 44 years' imprisonment. On appeal, this Court affirmed Appellant's judgment of sentence, the Pennsylvania Supreme Court denied allocator, and the United States Supreme Court denied certiorari. See Commonwealth v. Richardson , 31 A.3d 757 (Pa. Super. 2011) (unpublished memorandum), appeal denied , 34 A.3d 829 (Pa. 2011), cert. denied , --- U.S. ---, 132 S.Ct. 2683 (2012).
Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel who later filed an amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice and subsequently dismissed Appellant's petition. This timely appeal followed.
Appellant raises the following issues for our review.
1. Did the PCRA [c]ourt err in finding that trial counsel was not ineffective and Appellant was not prejudiced when counsel failed to object to and preserve the issue of prosecutorial misconduct when the assistant district attorney said that, unlike defense counsel, the assistant district attorney had to seek the truth and uphold, protect, and defend the Constitution?Appellant's Brief at 4.
2. Did the PCRA [c]ourt err in determining that trial counsel was not ineffective and Appellant was not prejudiced when counsel failed to request a drug usage and effect jury instruction when an eyewitness, Lamar Dawkins, admitted being under the influence of several narcotics when he allegedly identified Appellant as having handed a firearm to co-Defendant?
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania , --- U.S. ---, 134 S. Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler , 36 A.3d 121, 131 (Pa. 2012) (citation omitted).
In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. See 42 Pa.C.S.A. § 9543(a)(3). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
As this Court has repeatedly stated,
[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Chmiel , 612 Pa. 333, 30 A.3d 1111, 1127 (2011).Commonwealth v. Rykard , 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).
We have previously recognized that
"[n]ot every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial." Commonwealth v. Carson , 913 A.2d 220, 242 (Pa. 2006). "Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence
objectively and render a true verdict." Commonwealth v. Stokes , 839 A.2d 226, 230 (Pa. 2003), quoting Commonwealth v. Fisher , 813 A.2d 761, 768 (Pa. 2002).
Furthermore, according to the Pennsylvania Supreme Court in Commonwealth v. Chmiel[ , 889 A.2d 501, 543-44 (Pa. 2005)]:
Commonwealth v. Collins , 70 A.3d 1245, 1252-53 (Pa. Super. 2013) (some bracketed citations omitted), appeal denied , 80 A.3d 774 (Pa. 2013).In determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in [fair] response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
We have reviewed Appellant's issues raised on appeal, along with the briefs of the parties, the certified record, and the applicable law. Having determined that the Honorable Sheila Woods-Skipper's December 24, 2014 opinion ably and comprehensively disposes of Appellant's issues raised on appeal, with appropriate reference to the record and without legal error, we affirm on the basis of that opinion. See PCRA Court Opinion, 12/24/14 at 8-12 (finding: prosecutor's statements made during closing argument amounted to fair response to arguments made by defense counsel during closing; and that trial court adequately instructed jury as to weight of the evidence and how to evaluate the credibility of witness testimony such that specific drug usage instruction was not warranted).
Order affirmed.
President Judge Gantman joins the memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2015
Image materials not available for display.