Opinion
J-S37019-15 No. 1695 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHRISTOPHER WILLIS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0603401-2005
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ. MEMORANDUM BY SHOGAN, J.:
Christopher Willis ("Appellant") appeals from the order denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, a panel of this Court summarized the underlying facts and procedural history of this case as follows:
In January 2005, [Appellant] was arrested in connection with the October 4, 2003 shooting death of Terrence Barron ("Barron") in Philadelphia, Pennsylvania. On January 26, 2009, Willis and his alleged co-conspirator, Derrick Davis ("Davis") stood trial before a jury as co-defendants.Commonwealth v. Willis , 2772 EDA 2009, 23 A.3d 1079 (Pa. Super. filed January 11, 2011) (unpublished memorandum at 1-3). That panel affirmed the judgment of sentence, id. at 8, and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Willis , 27 A.3d 225 (Pa. 2011).
At the trial, an eyewitness, William Flournoy, III ("Flournoy"), testified as follows: At approximately 2-2:30 a.m.
on October 4, 2003, Flournoy was in an upstairs bedroom at the residence that he shared with Barron when he became aware that Barron was arguing with two men downstairs. N.T., 1/28/09, at 7-13, 109. Flournoy walked into the hallway towards the stairs to investigate and heard a shot as he approached the top of the stairs. Id. at 11, 29. He descended the stairs, obtaining an unobstructed view of the dining area, where he saw three men, [Appellant], Davis, and Barron. Id. at 11-15, 115-18. Barron was lying on his stomach on the floor, and [Appellant] was holding a gun and standing over him. Id. at 21, 118; N.T., 1/29/09, at 47.
At Davis's request, [Appellant] handed him the gun. N.T., 1/28/09, at 19-22, 119-22. Davis fired a warning shot towards Flournoy. Id. at 24. Flournoy raced back upstairs, hearing an additional shot as he ran, and waited in the upstairs hallway until he heard Davis and [Appellant] walking towards the front door. Id. at 11, 24-25.
Flournoy again descended the stairs and observed Davis walk over to Barron, place the gun underneath him, and fire a shot into his chest. Id. at 11-12, 25-26, 125-128. [Appellant] and Davis then left the residence and drove away in the same vehicle. Id. at 29-30. When the police arrived, Barron was conscious but unable to speak, and he died shortly thereafter. Id. at 12; N.T., 1/27/09, at 7-12; N.T., 1/26/09, at 61. Dr. Bennett Preston, the medical examiner, testified that Barron suffered eight bullet wounds, two of which constituted fatal wounds to his lungs. Id. at 63-65, 72.
The jury convicted [Appellant] of [murder, possessing an instrument of crime, recklessly endangering another person, and criminal conspiracy (murder)]. On July 28, 2009, the trial court sentenced him to life in prison for murder, a concurrent sentence of five to fifteen years [of] incarceration for conspiracy, a concurrent sentence of two to five years [of] incarceration for possession of an instrument of crime, and no further penalty for recklessly endangering another person. [Appellant] filed post-sentence motions, which the trial court denied.
Mr. Barron's first name is spelled "Terrance." N.T., 1/26/09, at 60.
Co-defendant Derrick Davis filed an appeal at 2045 EDA 2014.
Appellant filed the instant PCRA petition on August 20, 2012. The PCRA court filed a Pa.R.Crim.P. 907 notice on March 24, 2014, advising Appellant of its intent to dismiss the petition, and then formally denied relief on May 16, 2014. This timely appeal followed. Appellant and the PCRA court complied with Pa.R.A.P. 1925.
The certified record indicates that Appellant filed a motion to amend and supplement his original PCRA petition and an amended PCRA petition on February 19, 2014. Docket Nos. 22 and 23. The Commonwealth filed a supplemental motion to dismiss on March 13, 2014. Docket No. 24. However, the record does not contain an order of court granting leave to file the amended petition. See Commonwealth v. Baumhammers , 92 A.3d 708, 730 (Pa. 2014) (citing Pa.R.Crim.P. 905(A) and Commonwealth v. Porter , 35 A.3d 4, 12 (Pa. 2012), for rule that leave to amend must be sought and obtained; because amendments are not "self-authorizing," petitioners may not automatically "amend" their PCRA petitions via responsive pleadings). Therefore, we shall not consider the amended petition or the supplemental motion to dismiss.
On appeal, Appellant presents the following questions for our consideration:
I. Was trial counsel ineffective because he failed to object to and move for a mistrial when the judge's charge conveyed his personal opinion that the accuracy of the identification of Appellant was not in doubt?
II. Was trial counsel ineffective for failing to object to the court's charge which defined reasonable doubt unconstitutionally?
III. Was trial counsel ineffective because he failed to object to the court's final charge in which it defined first degree murder as not requiring "planning or previous thought or any particular length of time?"
IV. Was trial counsel ineffective because he failed to object to the court's charge which omitted a required finding of shared intent to commit first degree murder from the crime of conspiracy to commit murder?
V. Was trial counsel ineffective because he did not object to the court's incomplete charge on alibi?
VI. Did trial counsel fail to properly object on confrontation grounds to the admission of a computerized printout to establish a nexus between Appellant and his co-defendant?
VII. Was trial counsel ineffective for failing to object to blatant prosecutorial misconduct in summation and move for a mistrial?
VIII. Was trial counsel ineffective because he failed to move for a mistrial or curative instructions when the prosecutor resorted to further misconduct in summation by
A. Unconstitutionally derogating alibi witness Ms. Willis and
B. Unconstitutionally characterizing Appellant and his co-defendant as drug dealer and enforcer?
Appellant's Brief at 4 (reordered for ease of disposition).
IX. Was trial counsel ineffective because he failed to interview and call two defense witnesses both of whom exculpated Appellant?
X. Was the conviction obtained in violation of due process of law because the only witness to connect Appellant to the crime was a crack addict whose testimony was contrary to the physical evidence?
When reviewing the propriety of an order denying PCRA relief, this Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014).
In order to obtain collateral relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence of ineffective assistance of counsel ("IAC") pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). To plead and prove an IAC claim, 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. Rykard , 55 A.3d 1177, 1189-1190 (Pa. Super. 2012). A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any one of these prongs. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). We reiterate that counsel's representation is presumed to have been effective, unless the petitioner proves otherwise. Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999). Further, we have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Appellant's first five issues allege counsel's ineffectiveness in failing to object to various aspects of the trial court's jury charge. When reviewing a challenge to a jury instruction, we must review the jury charge as a whole to determine if it is fair and just. Commonwealth v. Baker , 963 A.2d 495 (Pa. Super. 2008). A trial court has broad discretion in phrasing its jury instructions and can choose its own words as long as the law is clearly, adequately, and accurately described to the jury. Commonwealth v. Cam Ly , 980 A.2d 61 (Pa. 2009). The trial court commits an abuse of discretion only when there is an inaccurate statement of the law. Baker , 963 A.2d at 507. We will not review a charge by taking isolated comments out of context. Commonwealth v. Miller , 746 A.2d 592, 604 (Pa. 2000).
First, Appellant argues that trial counsel was ineffective because he failed to move for a mistrial during the trial court's charge regarding the eyewitness testimony of William Flournoy ("Flournoy"). According to Appellant, the trial court included in its charge, without objection, the prefatory description of the Pennsylvania Standard Suggested Criminal Jury Instruction ("PaSSCJI") on identification testimony, which provides: "Identification testimony, accuracy not in doubt." Appellant's Brief at 12 (N.T. 2/2/09, at 139-140) (emphasis supplied). By including this sentence, Appellant contends, the trial court impermissibly "added its weight to the Commonwealth's case," which would cause the jury to believe that Flournoy's identification of Appellant was not in doubt. Id. at 14-15. The trial court's "invasion of the province of the jury was aggravated," Appellant continues, by its instructions on Flournoy's identification of co-defendant Derrick Davis ("Davis"), which included the prefatory description, "Identification testimony, accuracy in doubt." Id. at 15-16. According to Appellant, this instruction would cause the jury to believe that Flournoy's identification of the co-defendant was dubious. Id. at 16.
In response, the Commonwealth asserts that "the instruction as a whole communicated that it was for the jurors alone to decide whether to believe Flournoy's testimony." Commonwealth's Brief at 27. Additionally, the Commonwealth distinguishes the cases relied on by Appellant in support of his position. Commonwealth's Brief at 26-27.
We agree with the Commonwealth that Appellant's reliance on the cases cited at pages 13 through 15 of his brief is misplaced.
The PCRA court disposed of Appellant's challenge as follows:
This court provided a charge to the jury which included a jury instruction for positive identification when accuracy was in doubt and not in doubt. This court did not convey its personal opinion to the jury as the Appellant has claimed. In fact, this court reminded the jury that they were the sole factfinders in this case.9 Looking at the positive identification charge in its entirety the law was clearly, adequately and accurately presented to the jury for its consideration. Therefore, the Appellant has failed to show that trial counsel was ineffective in objecting to a standard charge to the jury regarding positive identification. Hence, this claim is without merit.
PCRA Court Opinion, 8/22/14, at 7.9 It is not for me to decide what are the true facts concerning the charges against the defendants. You, the jury, are the sole and only judges of the facts. It
is your responsibility to weigh the evidence, and based on that evidence and the logical inferences which flow from that evidence, to find the facts and apply the rules of law which I give you to the facts as you find them and then to decide whether the defendants have or have not been proven guilty of any of the charges. N.T. 2/2/2009, p. 131-132.
Upon review of the jury charge as a whole, we conclude that Appellant's challenge to two isolated phrases from the PaSSCJI introducing identification testimony lacks merit. We note that the trial court introduced the various components of its charge with a descriptive heading. See for example , N.T., 2/2/09, at 133 (presumption of innocence), 134 (reasonable doubt), 142 (first degree murder), 153 (conspiracy), and 156 (accomplice liability). N.T., 2/2/09, at 133-179. Moreover, the PCRA court found that Flournoy consistently identified Appellant as being involved in the murder of Terrance Barron. Trial Court Opinion, 8/22/14, at 5-7. Furthermore, the trial court suggested in its instruction that Flournoy's identification of co-defendant Davis was less than certain. N.T., 2/2/09, at 141. Recognizing that this case involved both types of identification testimony, "accuracy not in doubt" and "accuracy in doubt," the trial court instructed the jury on how to evaluate Flournoy's identification testimony regarding both defendants. Id. at 139-142. In doing so, the trial court listed factors and circumstances the jury should consider when deciding whether to accept Flournoy's eyewitness testimony. Id. at 136-142. Thus, despite Appellant's urging, our review of the jury charge, and specifically the thorough instruction on both types of identification testimony, compels the conclusion that the trial court adequately and accurately presented the law to the jury. Thus, counsel was not ineffective for failing to raise a meritless challenge.
Next, Appellant contends that trial counsel was ineffective for failing to object to the court's charge on reasonable doubt. Appellant highlights the following jury instruction:
A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause, hesitate, or refrain from acting upon a matter of highest importance in his or her own affairs or to his or her own interests.Appellant's Brief at 27 (citing (N.T. 2/2/09, at 134-135) (emphasis in original). According to Appellant, "[t]his definition contained two markedly different concepts - (1) 'pause, hesitate...from acting' and (2) 'refrain from acting'. . . . These are two entirely different standards . . . [which] offered the jury a choice between the correct formulation of reasonable doubt and one which grossly overstated the degree of doubt required for acquittal." Id. at 27, 29. Contrarily, the Commonwealth argues that Appellant's challenge lacks merit because the Pennsylvania appellate courts "have upheld reasonable doubt instructions almost identical to those given in this case." Commonwealth's Brief at 38 (citing Commonwealth v. Romero , 938 A.2d 362, 379-380 (Pa. 2007), Commonwealth v. Uderra , 862 A.2d 74, 92 (Pa. 2004), and Commonwealth v. Trippett , 932 A.2d 188, 200 (Pa. Super. 2007)).
The PCRA court addressed the underlying claim as follows:
Here, the Appellant claims the isolated phrase "refrain from acting" in the jury charge regarding reasonable doubt was unconstitutional. However, when the jury charge regarding reasonable doubt is viewed in its entirety it is difficult to argue that the instruction was not fair and complete. This court provided an appropriate jury charge regarding reasonable doubt based on well[-]founded case law. There is no required jury charge on the definition of "reasonable doubt" in this Commonwealth. Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968). However, the Pennsylvania Supreme Court approved a reasonable doubt charge in a previous case and defined it as [follows]:
The defendant comes before you presumed to be innocent and the burden is upon the Commonwealth to prove his guilt beyond a reasonable doubt. A reasonable doubt cannot be a doubt fancied or conjured up in the minds of the jury to escape an unpleasant verdict; it must be an honest doubt arising out of the evidence itself, the kind of doubt that would restrain a reasonable man (or woman) from acting in a matter of importance to himself (or herself) (emphasis added).
PCRA Court Opinion, 8/22/14, at 7-8 (footnotes omitted).
Commonwealth v. Jones, 386 Pa. Super. 467, 472-[4]73, 563 A.2d 161, 163-[1]64 (1989) aff'd, 529 Pa. 149, 602 A.2d 820 (1992), quoting Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954). This court's charge to the jury regarding reasonable doubt is aligned with prior [sic] precedent. This court did not abuse its discretion or provide the jury with an erroneous charge.
After reviewing Pennsylvania case law and the jury charge as a whole, we agree with the PCRA court that Appellant's challenge lacks merit. In fact, Appellant has ignored long-standing precedent from our Supreme Court rejecting the very argument Appellant raises herein:
We most recently considered an ineffectiveness claim of the type that appellant now raises in Commonwealth v. (Damon) Jones , 590 Pa. 202, 912 A.2d 268 (2006) (plurality). The jury instruction at issue in Jones defined reasonable doubt as "a doubt as would cause a reasonably prudent, careful, and sensible person to pause, hesitate, and restrain himself or herself before acting upon a matter of highest importance in his or her own affairs." Id. at 287 (internal quotation marks omitted). Like appellant here, Jones argued that "the addition of the words 'pause' and 'restrain' unconstitutionally reduced the prosecution's burden of proof as it improperly elevated the level of doubt required before a juror would find reasonable doubt." Id. at 287. Citing a string of cases in which this Court has consistently approved of reasonable doubt instructions containing the word "restrain," we rejected Jones' underlying allegation of error and therefore denied his ineffectiveness claim. Id. at 287-[2]88. Likewise, in Commonwealth v. Gibson , 553 Pa. 648, 720 A.2d 473, 481-[4]82 (1998), we rejected the appellant's argument that the trial court's repeated use of the phrase "stop, hesitate and seriously consider" improperly led the jury to believe that reasonable doubt is a doubt that would require the reasonable person to refrain from acting altogether rather than to merely hesitate before acting. See also Commonwealth v. Hawkins , 567 Pa. 310, 787 A.2d 292, 301-02 (2001) (upholding instruction that "a mere hesitation in and of itself is not a reasonable doubt, but a hesitation ... may become a reasonable doubt when and if that hesitation becomes a restraint"); Commonwealth v. Pearson , 450 Pa. 467, 303 A.2d 481, 484-85 (1973) (rejecting appellant's argument that trial court's use of the phrase "halt, hesitate and refuse to take action" indicated necessity for existence of stronger doubt in jurors' minds than law required).Commonwealth v. Cook , 952 A.2d 594, 630-631 (Pa. 2008). See also Commonwealth v. Montalvo , 986 A.2d 84, 107 (Pa. 2009) (" Cook and the cases that precede it, all of which hold that jury charges such as these are acceptable, are controlling here. Consequently, [a]ppellant's claim of ineffective assistance lacks merit."). Clearly, counsel was not ineffective for failing to raise this meritless challenge.
In his third issue, Appellant complains that trial counsel was ineffective for failing to object to the court's instruction on first degree murder. Again, Appellant highlights an isolated portion of the jury charge, as follows:
A person has the specific intent to kill if he or she has a fully formed intent to kill and is conscious of his or her own intention. As my earlier definition of malice indicates, a killing by a person who has the specific intent to kill is a killing with malice.Appellant's Brief at 39 (citing N.T., 2/2/09, at 147-148) (emphasis omitted).
Stated differently, a killing is with specific intent to kill if it is willful, deliberate, and premeditated.
The specific intent to kill, including the premeditation needed for first-degree murder does not require planning or previous thought or any particular length of time. It can occur quickly. All that is necessary is that there be time enough so that the defendant can and does fully form an intent to kill and is conscious of that intention.
Our review of Appellant's brief reveals that Appellant has abandoned his previous complaint that the trial court erred in defining first degree murder as not requiring planning or previous thought or any particular length of time. Memorandum of Law Supporting Petition for Post Conviction Collateral Relief, 8/20/13, at 15 (unnumbered). Rather, Appellant focuses his current challenge to the trial court's instruction on the intent element of first degree murder. Appellant's Brief at 39-47. The Commonwealth counters that Appellant has waived his intent-based arguments because he did not raise them in his PCRA petition. Commonwealth's Brief at 29 n.9. We agree. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Therefore, we decline to address Appellant's intent-based challenge to the trial court's instruction on first degree murder as support for an IAC claim.
Appellant's fourth IAC claim is that trial counsel failed to object to the court's charge which omitted a required finding of shared intent from the instruction on conspiracy to commit murder. Appellant's Brief at 54. The challenged instruction reads as follows:
To sum up, a defendant may not be found guilty of first-degree murder unless the defendant himself or herself had the specific intent to commit such a murder and then solicited, commanded, encouraged, requested the other person to commit it, or aid it, agreed to aid, or attempt to aid the other person in planning or committing it.N.T., 2/2/09, at 157-158. According to Appellant, "[t]his instruction did not adequately communicate the person who did not do the killing had to harbor the specific intent to kill which was shared with the actual killer." Appellant's Brief at 54. Both the Commonwealth and the trial court direct our attention to the additional instruction provided regarding conspiracy and accomplice liability in the context of first degree murder, which was based on PaSSCJI 8.306(b). Commonwealths' Brief at 31 (citing N.T., 2/2/09, at 160-161); PCRA Court Opinion, 8/22/14, at 10-11 (same).
Our review of the record compels the following conclusion reached by the PCRA court, which we adopt as our own:
This instruction proves [the trial court] unequivocally emphasized that a conspiracy for first degree murder required that both defendants shared the specific intent to commit the murder. Therefore, the Appellant's frivolous claim that [the trial court] failed to properly instruct the jury on shared intent in aPCRA Court Opinion, 8/22/14, at 11. As the record supports the PCRA court's findings, we agree that Appellant is not entitled to relief. See Commonwealth v. Roney , 79 A.3d 595, 639 (Pa. 2013) (affirming denial of relief where record supports PCRA court's conclusion that claims regarding grave risk aggravating factor were meritless).
conspiracy did not warrant an objection by trial counsel. Hence, this claim is without merit.
Appellant's fifth allegation of trial counsel's ineffectiveness is based on counsel's failure to object to the trial court's incomplete definition of alibi. Appellant's Brief at 48. We decline to address this issue. In order to preserve a claim for appellate review, an appellant must comply when the trial court orders him to file a statement of matters complained of on appeal, and any issues not raised in the statement will be deemed waived. See Commonwealth v. Castillo , 888 A.2d 775 (Pa. 2005) (reaffirming bright line rule of Commonwealth v. Lord , 719 A.2d 306 (Pa. 1998)). Here, Appellant complied with the trial court's directive but did not include the alibi issue in his Rule 1925(b) statement. Therefore, this issue is waived. Castillo , 888 A.2d at 776.
Next, Appellant contends that trial counsel failed to object to the admission of a computerized prison visitor log. Appellant's Brief at 55. Although Appellant recognizes that the prison log was a business record, he argues that its admission "violated the [Sixth Amendment] Confrontation Clause because the person who prepared the hard copy and later the computerized records did not testify." Id. Additionally, Appellant asserts that admission of the log "was unfairly prejudicial" because it established a nexus between Appellant and co-defendant Davis, it enhanced the likelihood of a conspiracy, and it lacked an indicia of reliability. Id. at 56.
Upon review, we reject Appellant's argument as premised on a fundamental misunderstanding of the Confrontation Clause. In doing so, we adopt as our own the following, well-reasoned analysis of the PCRA court:
The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Prior precedent states this applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 . . . (1965). In general, this right is related to testimonial evidence and provides the [a]ppellant with the opportunity to confront witnesses that have testified against him. See Crawford v. Washington, 541 U.S. 36 . . . (2004) (defendant's right to confront and cross-examine witnesses against him, under the Confrontation Clause, applies to those who bear testimony against him, which is typically a solemn declaration or affirmation made for purpose of establishing or proving some fact).PCRA Court Opinion, 8/22/14, at 11-13 (footnotes and some internal citations omitted).
Here, the Appellant is contesting testimony that does not violate his Sixth Amendment Right to Confrontation because it qualifies as records maintained in the ordinary course of business and is not testimonial evidence. The purpose of the business records exception to the hearsay rule is to permit the admission of records made in the regular course of business where the sources of information, method and time of preparation are such as to justify their admission. Commonwealth v. McEnany, 1999 PA Super 112, 732 A.2d 1263 (Pa. Super. Ct. 1999). At trial, Dorothy Harris, the Custodian of Records for the Philadelphia Prison System testified that the visitation records admitted as evidence were kept in the normal course of business. The witness thoroughly described the visitation procedures that were in place in CFCF. On August 4, 2006, the co-defendant, Derrick Davis, visited the Appellant in
CFCF at approximately 11:19 am and wrote his relationship to the Appellant, his license number, address and date of birth.
The witness confirmed this identifying information in the list of visitors and explained computerized visitation records for each prisoner are kept in the ordinary course of business. The computerized records of the Appellant's visitors in CFCF were kept in the normal course of business and qualified as an exception to hearsay under the business records exception. Since, the computerized printout of the Appellant's visitor list in CFCF did not violate the Appellant's Sixth Amendment Right to Confrontation[,] there was no necessity for trial counsel to make an objection regarding the admission of the records. Therefore, trial counsel was not ineffective for failing to make an objection to a meritless claim.
Appellant's seventh and eighth issues present IAC claims based on alleged prosecutorial misconduct. Prosecutorial misconduct does not occur unless the unavoidable effect of the comments at issue is to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Commonwealth v. Riggle , 2015 PA Super 147, ___ A.3d ___ (filed July 7, 2015) (quoting Commonwealth v. Bryant , 67 A.3d 716, 727-728 (Pa. 2013)). A "prosecutor must be free to present his or her arguments with logical force and vigor." Commonwealth v. Chmiel , 30 A.3d 1111, 1146 (Pa. 2011) (quoting Commonwealth v. Robinson , 864 A.2d 460, 517 (Pa. 2004)). Pennsylvania courts have permitted prosecutorial advocacy "as long as there is a reasonable basis in the record for the [prosecutor's] comments." Robinson , 864 A.2d at 516. "Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair." Chmiel , 30 A.3d at 1145 (citation omitted). Furthermore, the prosecution must be permitted to respond to defense counsel's arguments. Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson , 864 A.2d at 517 (emphasis supplied).
Appellant first argues that trial counsel should have requested a mistrial or curative instruction after the following portion of the prosecutor's summation:
Ladies and gentlemen of the jury, there is only one thing that each and every one of you have [sic] to decide, and the real issue today is what is each and every one of you prepared to do about it. What are you prepared to do about it? That's all we're here to decide.Appellant's Brief at 23 (citing N.T., 2/2/09, at 73). According to Appellant, the prosecutor invited the jury to "lynch" Appellant and base its verdict on concern for public safety, not on the facts of the case. Id.
In support of its contrary position, the Commonwealth submits a more complete excerpt of the prosecutor's closing:
The evidence in this case is beyond the preponderance of the evidence. . . . It is clear and convincing. It is beyond a reasonable doubt that on October 4, 2003 Derrick Davis and Christopher Willis shot and killed Terrance Barron. Seven times, they shot him seven times in his body as he laid on the groundCommonwealth's Brief at 19-20 (quoting N.T., 2/2/09, at 73-74) (emphasis in original).
attempting to defend himself. He was unarmed. He was in his house. There was an argument.
Ladies and gentlemen of the jury, there is only one thing that each and every one of you have [sic] to decide, and the real issue today is what is each and every one of you prepared to do about it. What are you prepared to do about it? That's all we are here to decide.
Now, we always start from a place of common sense. My grandmom used to say Use your mother wit. You always begin from a place of common sense. The judge is going to tell you at the appropriate time you can make reasonable inferences based on the evidence. So let's put this testimony together and make some reasonable inferences based on the evidence.
The PCRA court disposed of this issue as follows:
In this instance, the Appellant claims trial counsel was ineffective for not moving for a mistrial after the prosecution's summation. This claim is without merit. First, the Appellant claims the prosecution's summation provided the jury with no choice but to find the Appellant guilty because the closing did not include any law or mention the juries' [sic] sworn duty.15 . . . The Appellant fails to consider the entire summation presented by the prosecution in this case, and instead chooses to focus on an incidental portion of the closing. In fact, the prosecution did remind the jury of their duty by stating the need to make "reasonable inferences based on the evidence" and later reminding the jury that they are depending on their recollection of the evidence, not the prosecutor's recollection.16 Coincidently, the jury was also reminded by this court of their sworn duty prior to summations and throughout the closings when proper objections were made by the Appellant's trial counsel. Moreover, the prosecution based their entire closing on evidence that was presented throughout trial. The prosecution merely suggested that the jury had one decision to make based off of the evidence. The prosecution's suggestion can hardly be characterized as an invitation for the jury to disregard their sworn duty. The Appellant has not proven that the prosecutor's
closing influenced the juries' [sic] verdict or that trial counsel was ineffective for not objecting to the portion of the closing the Appellant contest[s].
PCRA Opinion, 8/22/14, at 13-14.15 Specifically, the Appellant contends that the highlighted portion of the prosecution's closing was an "invitation to lynch" him. . . .
16 N.T. 2/2/09, p. 7, 71, 77, 123.
Upon review, we find support in the record for the PCRA court's ruling. The prosecutor began her closing with a summation of the facts. N.T., 2/2/09, at 73. Following the challenged statements, the prosecutor reviewed the evidence in detail. Id. at 74-116. Moreover, the prosecutor informed the jury, and the trial court reminded the jury repeatedly, of its duty to base its verdict on its recollection of the evidence and reasonable inferences drawn therefrom. Id. at 7, 73-74, 77, 96. Appellant's focus on three sentences at the beginning of the prosecutor's forty-two-page closing ignores longstanding precedent that a summation must not be considered in isolation, but rather in the context in which it was offered. Robinson , 864 A.2d at 517. Contrary to Appellant's assertion, we conclude those three sentences were not an invitation to lynch Appellant and did not cause the jury to form a fixed hostility toward Appellant or prevent the jury from rendering a fair verdict. Chmiel , 30 A.3d at 1146; see also Commonwealth v. Steele , 961 A.2d 786, 832 (Pa. 2008) (holding that a fleeting reference within the context of an entire closing argument is not prejudicial, citing numerous sources of authority). Thus, Appellant's seventh IAC claim lacks merit.
The next instance of prosecutorial misconduct Appellant raises as an IAC claim involves the prosecutor's characterization of the testimony of Ms. Willis, Appellant's grandmother and an alibi witness. The prosecutor stated: "I thought about that and that troubled me. How is it that this lady, who loves [Appellant] so much that she would come in here and talk to you all and say these things to you wouldn't inquire about his whereabouts[;] then it hit me, she already knew where he was." N.T., 2/2/09, at 108-109. Defense counsel objected without success, and the prosecutor continued:
That's why it's no concern for his safety. No need to call him. She knew where he was. She probably sent him to Indiana. How else does he have the means to go? Sounds pretty obscure to me. But that could be the only reason why she was unconcerned about this childs [sic] whereabouts at the time, because she knew where he was, because she sent him there, she helped him get there. Therefore, there was no need to talk to anybody. She knew where he was. That's why she didn't have to tell anybody about that alibi. Because he was off in somewhere out of P.A.[sic], out of Philadelphia, in Indiana, hid away somewhere.N.T., 2/2/09, at 108-109. Defense counsel again objected unsuccessfully, but did not request a curative instruction or a mistrial. Id. at 109.
According to Appellant, trial counsel was ineffective because he did not move for a mistrial after the prosecutor drew inferences about Ms. Willis that were not supported by the record and were based on the prosecutor's personal opinion. Appellant's Brief at 35, 37. The Commonwealth counters that the prosecutor presented a reasonable inference based on Ms. Willis' incredible testimony that:
after the murder, she did not see or speak to [Appellant] again until after he was incarcerated, did not know where he had gone, and did not try to find out where he was, even though he had been living with her for two years at the time of the murder and she knew that the police were looking for him.Commonwealth's Brief at 22 (citing N.T. Vol. I, 1/30/09, at 28, 37-38, 41-45).
Here, the PCRA court recognized that allegedly prejudicial remarks by a prosecutor must be read in context of the case as a whole, with particular view to the evidence presented and reasonable inferences drawn therefrom in order to determine if the comments are prejudicial. PCRA Court Opinion, at 14 (citing Commonwealth v. Raffensberger , 435 A.2d 864 (Pa. Super. 1981)). Moreover, our Supreme Court has found that a prosecutor's suggestion that a witness lied does not warrant a new trial when the statement was a fair inference from irrefutable evidence rather than a broad characterization. Commonwealth v. Floyd , 484 A.2d 365 (Pa. 1984).
In disposing of the instant challenge, the PCRA court considered the prosecutor's claims to be "oratorical flair" and "plausible inferences that related to the credibility" of Appellant's grandmother and supported by the evidence presented in this case. PCRA Court Opinion, 8/22/14, at 15. Specifically, the PCRA court opined as follows:
Regina Willis testified the Appellant lived with her off and on since he was twelve years-old, and consistently for two yearsId. (footnotes omitted).
prior to this murder. Additionally, the witness stated that the Appellant left Philadelphia the morning after the murder and she never inquired about his whereabouts or knew where he was staying. Based on Regina Willis' testimony, the factfinder was left to think of reasons why the Appellant's own grandmother did not inquire as to his whereabouts after having knowledge that detectives had been at her home looking for the Appellant and seeing a news broadcast claiming the Appellant was wanted for murder. Subsequently, at trial the prosecution stated the forgoing facts and posed a rhetorical question to the jury. . . . The prosecution's closing argument was a fair and plausible inference based off of the testimony presented by Regina Willis and did not cause an unfair bias in the juries' [sic] minds. The prosecution's summation was not prejudicial and did not warrant a request for a mistrial, nor did it require this court to declare a mistrial due to manifest necessity.
Upon review, we discern support in the record for the PCRA court's findings. Despite knowing that detectives were looking for her grandson for murder, Ms. Willis demonstrated a suspicious lack of interest in Appellant's whereabouts. N.T., 1/30/09, at 28, 37-38, 41-45. The prosecution offered a reasonable inference that Ms. Willis did not inquire about Appellant because she knew where he was. The jury was free to accept this inference as an explanation for Ms. Willis' incredible lack of interest in her grandson. Viewing the prosecution's closing in the context in which it was offered, we conclude that it did not deprive Appellant of a fair trial. Robinson , 864 A.2d at 517. Thus, trial counsel was not ineffective for failing to request a mistrial. Accord Commonwealth v. Ragan , 645 A.2d 811, 829 (Pa. 1994) ("[T]he assertion that appellant's alibi defense had been fabricated was a fair inference based on the evidence and does not warrant a new trial.").
In his final IAC claim based on prosecutorial misconduct, Appellant contends that trial counsel was ineffective for not objecting to the prosecutor's characterization of Appellant and his co-defendant as drug dealer and enforcer, respectively. Appellant's Brief at 37. Appellant concedes that "[t]he evidence did contain references from William Flournoy that he bought drugs from Appellant" and that the victim "had cocaine in his system." Id. at 38. However, Appellant argues, the prosecutor used these facts to "[m]anufactur[e] Appellant into a drug dealer capable of employing an 'enforcer,'" thereby depriving "the verdict of the requisite confidence required [sic] to survive an ineffectiveness claim." Id.
The PCRA court addressed this challenge as follows:
William [Flournoy] testified that he had previously purchased drugs from the Appellant. It is true, as the Appellant claims, that there is no evidence that on this day drugs were sold by the Appellant. However, the characterization that the Appellant is a drug dealer is not prejudicial and is aligned with evidence presented at trial.
Similarly, evidence was presented at this trial that the co-defendant, Derrick Davis, went to William [Flournoy's] home and shot at him through his front door, prior to the preliminary hearings. Then, three weeks later Derrick Davis returned and shot William [Flournoy] in the chest.19 After reviewing the record of this trial, this court concludes that the jury could have determined Derick Davis's actions were aligned with that of an enforcer, and that the Prosecution's summation did not create a fixed bias or hostility toward the Appellant. In this matter it was not necessary for the jury to make an independent conclusion devoid of factual proof because there was actual evidence presented in this case that the jury could reasonably draw the conclusion that Derrick Davis was in fact an enforcer with or without the Prosecution's closing argument. The Appellant has failed to prove that the Prosecution's closing was in any way
prejudicial or that it influenced the juries' [sic] decision making process in any way. Therefore, trial counsel was not ineffective . . . .
PCRA Court Opinion, 8/22/14, at 16.19 At trial William [Flournoy] testified Derrick Davis shot at him and stated, "[A]s I slipped I heard the shot go out. I heard the shot ring out. The shot came in my chest, travelled up - actually came in my lower stomach, travelled up, came out my chest, went up, broke my jaw, took this tooth out." N.T. 1/28/09, p. 17, 34-50, 122.
Our review of the record reveals support for the PCRA Court's findings. N.T., 1/28/09, at 16-17; N.T., 1/29/09, at 40-41. Additionally, during the murder, Flournoy heard co-defendant Davis say to Appellant, "Pass me the gun." N.T., 1/28/09, at 11, 19-21. Flournoy then saw Appellant pass Davis the gun, and Davis "shot the gun into the ground." Id. Based on this record, we agree with the PCRA court that the prosecutor's statements were based on the evidence presented at trial and reasonable inferences drawn therefrom. Thus, Appellant's underlying claim lacks merit.
Appellant's ninth issue asserts that counsel was ineffective for failing to call several defense witnesses who would have exculpated Appellant. Specifically, Appellant argues that trial counsel could have and should have called Appellant's sister and aunt, Bruce Jones, and Aslea Elliot. Appellant's Brief at 51.
To prevail on an IAC claim based on the failure to call a witness, an appellant must prove: "(1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witness's existence; (4) the witness was prepared to cooperate and would have testified on appellant's behalf; and (5) the absence of the testimony prejudiced appellant." Commonwealth v. Chmiel , 889 A.2d 501, 545-546 (Pa. 2005) (citations omitted). Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness's testimony would have been beneficial or helpful in establishing the asserted defense. Id.
In disposing of this IAC claim, we adopt as our own, the well-reasoned analysis of the PCRA court, as follows:
In this instance, the Appellant claims trial counsel was ineffective for failing to call Aslea Elliot, Bruce Jones, Appellant's sister and aunt. Despite Appellant's assertion that the testimony from these witnesses would have changed the verdict in this case, the Appellant has not claimed much less proven that these witnesses existed, were available, that the Appellant informed trial counsel of these witnesses and that trial counsel had no reasonable basis for not calling the witnesses. ["]A decision by trial counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives." Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988).PCRA Court Opinion, 8/22/14, at 17-19. Appellant's final IAC claim lacks merit.
First, the Appellant claims Aslea Elliot was available to testify at his trial regarding the incidents that occurred on October 4, 2009. Appellant claims that Aslea Elliot had information regarding the true identity of the men who shot and killed the decedent in this matter. However, there is no evidence that Aslea Elliot was available, existed or that trial counsel was informed of her existence. There is no affidavit or any other evidence that Aslea Elliot actually had knowledge of the murder and was prepared to testify on the Appellant's behalf. Commonwealth v. Van Horn, 797 A.2d 983, 989 (Pa. Super. 2002) (relief should not be granted "based on an allegation that a certain witness may have testified in the
absence of an affidavit to show that the witness would in fact testify"). This court can only assume that trial counsel was not aware of the witness's existence and therefore was not ineffective for not procuring Aslea Elliot as a witness.
Next, the Appellant claims that his aunt and sister were available to testify on his behalf at his trial. Again, there was no affidavit or evidence presented to this court that would indicate the Appellant's aunt existed or was available to testify at Appellant's trial. The Appellant claims that his sister, Shane Willis, was available to testify at his trial. There is evidence that trial counsel was aware of the existence of the Appellant's sister because trial counsel completed an investigative interview of Shane Willis on January 1, 2009. However, this interview only demonstrates that trial counsel was aware Shane Willis existed and that she had an alleged alibi for the Appellant on October 4, 2003, not that she was available to testify or that her testimony would have changed the verdict in this case.
Although, Shane Willis attempted to provide an alibi in her interview for the Appellant, the alibi was not new information. The Appellant's grandmother, Regina Willis, had already testified at trial that the Appellant was home all evening and did not leave their shared home on October 4, 2009. Shane Willis only corroborated the Appellant's grandmother's testimony in her interview. See Commonwealth v. Durst, 559. A.2d 504, 506 (Pa. 1982) ("It is well-settled that the failure of trial counsel to call a witness does not constitute ineffective assistance unless there is some showing that testimony of the absent witness would have [been] beneficial in establishing the asserted defense"). The Appellant has failed to prove that trial counsel was ineffective by not having Shane Willis or Appellant's aunt testify at trial, and that counsel's decision caused an unfair verdict at Appellant's trial.
Finally, Appellant claimed that Bruce Jones was available to testify at this trial and had information that would have changed the outcome of this case. This court has reviewed an affidavit signed by Bruce Jones on August 21, 2011 in which he claimed that he knows for certain that the Appellant is not the individual who murdered the decedent in this matter. Coincidently, Bruce Jones stated he previously purchased crack from the "real" assailants, who were never identified, but were observed running out of decedent's home on October 4, 2003.
Again, this affidavit does not prove that Bruce Willis was available at the time the [A]ppellant's trial was taking place, that this testimony would have made a difference in the Appellant's verdict and that trial counsel was even aware of the witness's existence. On the contrary, the affidavit only shows that this alleged witness to this crime waited eight (8) years to come forward with information that he had regarding this murder. Therefore, Appellant has failed to prove that trial counsel was ineffective for not calling Bruce Jones. Hence, this claim is without merit.
Lastly, Appellant asserts that his conviction was obtained in violation of due process, because the only witness to connect Appellant to the crime was a crack addict whose testimony was contrary to the physical evidence. Appellant's Brief at 52. The Commonwealth characterizes this issue as a challenge to the sufficiency of the evidence and argues that it has been previously litigated. Commonwealth's Brief at 10 (citing 42 Pa.C.S. § 9543(a)(3)).
Appellant's purported sufficiency claim actually sounds in weight of the evidence, as he contends the witness' testimony was not credible in light of the physical evidence. This contention amounts to an assertion that his version of events should have been credited over the Commonwealth's evidence. See Commonwealth v. Johnson , 42 A.3d 1017, 1026 (Pa. 2012) (citation omitted) (noting appellant's contention that his explanation concerning his alleged attempts to revive victim should have been credited went to weight, not sufficiency, of evidence).
Appellant raised a weight claim in his post-sentence motion, his Pa.R.A.P. 1925(b) statement of errors, and his direct appeal brief. Post-Sentence Motion, 8/5/09; Pa.R.A.P. 1925(b) Statement, 10/21/09, at ¶ 2; Willis , 2772 EDA 2009, 23 A.3d 1079 (unpublished memorandum at 3) (citing Willis' Brief at 3). On direct appeal, a panel of this Court declined to reach the merits of Appellant's weight challenge, finding it waived because Appellant failed to cite to authority or develop an argument concerning his claim for relief. Willis , 2772 EDA 2009, 23 A.3d 1079 (unpublished memorandum at 8).
Appellant baldly presents this claim as a violation of his constitutional right to due process. Appellant's Brief at 53. Although a due process claim may be cognizable under section 9543(a)(2)(i) of the PCRA, Appellant fails to plead or prove that the alleged violation "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i). Thus, his claim fails.
Based on the foregoing, we conclude that Appellant is not entitled to collateral relief. Accordingly, we affirm the order denying his PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015