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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LUIS ALONZO VILLATORO, :
:
Appellant : No. 1619 EDA 2014
Appeal from the PCRA Order Entered May 22, 2014,
in the Court of Common Pleas of Lehigh County,
Criminal Division, at No(s): CP-39-CR-0002514-2009
BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 19, 2015
Luis Alonzo Villatoro (Appellant) appeals from the May 22, 2014 order
which “denied and dismissed” his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On April 26, 2010, a jury convicted Appellant of one count of criminal
homicide – murder in the third degree, and four counts of recklessly
endangering another person (REAP). These charges stemmed from the
shooting death of Angel Ramos Rodriguez.1 On June 18, 2010, Appellant
was sentenced to an aggregate term of 24 to 48 years’ incarceration. After
filing a post-sentence motion on June 28, 2010, Appellant filed amended
post-sentence motions on October 19, 2010, which were denied on October
1
A panel of this Court previously set forth the factual history underlying
Appellant’s convictions in Commonwealth v. Villatoro, 34 A.3d 214 (Pa.
Super. 2011) (unpublished memorandum).
*Retired Senior Judge assigned to the Superior Court.
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21, 2010. On November 5, 2010, Appellant appealed to this Court, which
affirmed Appellant’s judgment of sentence on September 1, 2011.
Commonwealth v. Villatoro, 34 A.3d 214 (Pa. Super. 2011) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal to
our Supreme Court. On September 17, 2012, Appellant, through counsel,
timely filed the instant PCRA petition.2 Following two hearings, the PCRA
court “denied and dismissed” the petition on May 22, 2014. Thereafter,
Appellant timely filed this appeal.3
Appellant raises one issue for our review: “[w]hether the PCRA court
erred in finding that trial counsel was not ineffective for failing to object and
move for a mistrial as a result of the Commonwealth’s actions and
comments during closing[.]” Appellant’s Brief at 2 (unnecessary
capitalization omitted).
2
See 42 Pa.C.S. § 9545(b)(1) (providing that all PCRA petitions must be
filed within one year of the date that the petitioner’s judgment becomes
final, unless an exception applies). Appellant had until October 2012 to file
timely his PCRA petition. See 42 Pa.C.S. § 9545(b)(3) (providing that a
judgment becomes final at the conclusion of direct review or expiration of
time for seeking review); Pa.R.A.P. 1113(a) (providing that “a petition for
allowance of appeal shall be filed … within 30 days after the entry of the
order of the Superior Court”).
3
The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and none
was filed.
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We begin by noting that, in reviewing the propriety of an order
denying PCRA relief, this Court is limited to determining whether the
evidence of record supports the PCRA court’s findings, and whether the
ruling is free of legal error. Commonwealth v. Carr, 768 A.2d 1164, 1166
(Pa. Super. 2001). The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record. See id.
In reviewing the PCRA court’s denial of Appellant’s claims of ineffective
assistance of counsel, we bear in mind that counsel is presumed to be
effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To
overcome this presumption, Appellant bears the burden of proving the
following: “(1) the underlying substantive claim has arguable merit; (2)
counsel whose effectiveness is being challenged did not have a reasonable
basis for his or her actions or failure to act; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance.” Id. Appellant’s
claim will be denied if he fails to meet any one of these three prongs. Id.
In support of his claim, Appellant argues that trial counsel was
ineffective for failing to object to and move for a mistrial on the basis that,
during her closing statement, the prosecutor improperly (1) made repeated
comments and gestures while displaying a firearm, and (2) made multiple
comments regarding Appellant’s credibility.
[T]he first prong of the ineffectiveness test is that the underlying
claim has merit. In the context of prosecutorial misconduct
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during closing arguments, Appellant must demonstrate that
there is merit to the contention that trial counsel should have
objected or requested a cautionary instruction due to the
prosecutor’s misconduct. Appellant can only do so if he can
show that the prosecutor was, in fact, engaging in misconduct.
Otherwise, there is no merit in the contention of trial counsel
ineffectiveness.
Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005) (citation
omitted).
“It is well established that a prosecutor is permitted wide latitude to
advocate the Commonwealth’s case, and may properly employ a degree of
rhetorical flair in so doing.” Commonwealth v. Keaton, 729 A.2d 529, 540
(Pa. 1999).
The prosecutor is allowed to vigorously argue his case so long as
his comments are supported by the evidence or constitute
legitimate inferences arising from that evidence. In considering
a claim of prosecutorial misconduct, our inquiry is centered on
whether the defendant was deprived of a fair trial, not deprived
of a perfect one. Thus, a prosecutor’s remarks do not constitute
reversible error unless their unavoidable effect … [was] to
prejudice the jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the evidence
objectively and render a true verdict. Further, the allegedly
improper remarks must be viewed in the context of the closing
argument as a whole.
Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009) (internal
quotation marks omitted) (quoting Commonwealth v. Washington, 700
A.2d 400, 407-408 (Pa. 1997)).
Appellant first takes issue with trial counsel’s failure to object to or
move for a mistrial as a result of the following comments and gestures made
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by the prosecutor during her closing argument, which Appellant argues
served no purpose other than to inflame the passions, fears, and prejudices
of the jury.
Whereupon Attorney Zampogna displays rifle
***
This defendant had to fire this rifle at Angel in the window.
[Simulating pointing and firing weapon] And then this defendant
had to fire this rifle at Angel in the window. [Simulating pointing
and firing weapon] And then this defendant had to fire this rifle
at Angel in the window. [Simulating pointing and firing weapon]
And then this defendant had to fire this rifle at Angel in the
window. [Simulating pointing and firing weapon] And then this
defendant had to fire this rifle at Angel in the window.
[Simulating pointing and firing weapon] And then this defendant
had to fire this rifle at Angel in the window. [Simulating pointing
and firing weapon] And finally, then, the defendant had to fire
this rifle at Angel in the window one more time. [Simulating
pointing and firing weapon] Seven times. Seven pulls of that
trigger at the kitchen window.
N.T., Closing Arguments-Bethany Zampogna, 4/26/2010, at 18-19.
In support of his claim, Appellant cites Commonwealth v. Parker,
882 A.2d 488 (Pa. Super. 2005), wherein a panel of this Court held “that it
was error for [a] trial judge to allow the prosecution to use and display [a]
gun during its opening statement,” as it “served no constructive purpose and
… the prejudicial effect of the display clearly outweighed any slight probative
value.” Parker, 882 A.2d at 494. Although the Parker Court ultimately
concluded that such error was harmless in light of the overwhelming
evidence of the appellant’s guilt that was presented at trial, id. at 494-95,
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Appellant argues that the circumstances of this case do not warrant the
same conclusion.
This Court has observed that, during closing arguments, “counsel may
reasonably display exhibits which are in evidence and may use such exhibits
demonstratively as long as the demonstration is for illustration purposes and
does not constitute the creation of new evidence.” Commonwealth v.
Wise, 444 A.2d 1287, 1290 (Pa. Super. 1982) (addressing prosecutor’s use
of photographs during closing); see also Commonwealth v. Stark, 526
A.2d 383, 373 (Pa. Super. 1987) (holding that a “prosecutor’s use of [a
recorded confession, which was received into evidence during trial,] during
his closing to illustrate his arguments regarding [the defendant’s] intent on
the night of the murder was not error”). Moreover, a prosecutor “must be
free to present his or her arguments with logical force and vigor,” and
“prosecutorial misconduct will not be found where comments were based on
the evidence or proper inferences therefrom or were only oratorical flair.”
Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014).
Upon review, we agree with the PCRA court that the prosecutor’s
actions and comments in utilizing the rifle did not amount to prosecutorial
misconduct. Rather, they were reasonably based on the evidence presented
at trial and proper inferences therefrom. Thus, the prosecutor’s gestures
and statements in this regard constituted a proper use of oratorical flair and
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“vigorous prosecutorial advocacy.” Commonwealth v. Miles, 681 A.2d
1295, 1302 (Pa. 1996). Because Appellant has failed to prove that his
underlying claim has arguable merit, he is not entitled to relief on this basis.
Moreover, assuming arguendo that Appellant’s claim had arguable
merit, Appellant fails to establish that he suffered prejudice. “Prejudice
means that, absent counsel’s conduct, there is a reasonable probability the
outcome of the proceedings would have been different.” Commonwealth v.
Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). In fact,
as explained by the PCRA court,
[d]uring that particular point in the closing argument, [the
prosecutor] was attempting to argue to the jury that
[Appellant’s] actions and words (previously testified to in trial)
demonstrated the mens rea appropriate for a murder in the first
degree conviction. Ultimately, the jury did not render such a
verdict, only convicting [Appellant] of murder in the third degree
and four counts of [REAP].
PCRA Court Opinion, 5/22/2014, at 14. Accordingly, Appellant is not entitled
to relief on this basis.
Appellant also takes issue with trial counsel’s failure to object to or
move for a mistrial based on the prosecutor’s references to Appellant’s
testimony and his version of events as being either “unreasonable,”
“inexplicable,” not making “sense,” or “invented.” Appellant’s Brief at 7
(citing N.T., Closing Arguments-Bethany Zampogna, 4/26/2010, 3, 6-10, 13,
15). Appellant argues that these references constitute improper statements
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of the prosecutor’s opinion regarding Appellant’s credibility and that any
prejudice Appellant suffered could not have been remedied through a
curative instruction.
Initially, we have reviewed Appellant’s PCRA petition and note that
Appellant failed to include this issue therein. Issues not raised in a PCRA
petition cannot be considered on appeal. Commonwealth v. Lauro, 819
A.2d 100, 103 (Pa. Super. 2003). Nevertheless, even if it were reviewable,
we would conclude that Appellant’s issue is without merit.
It is settled that it is improper for a prosecutor to express a
personal belief as to the credibility of the defendant or other
witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor. If
defense counsel has attacked the credibility of witnesses in
closing, the prosecutor may present argument addressing the
witnesses’ credibility.
Chmiel, 889 A.2d at 544.
As explained by the PCRA court, defense counsel’s closing argument
“highlighted the testimony of various Commonwealth witnesses, including
Rocky Jimenez, Jr. and his motive to lie on the stand in order to protect his
father, Rocky Jimenez, Sr.” PCRA Court Opinion, 5/22/2014, at 13.
Specifically, defense counsel stated that Rocky, Jr., was
somebody with a motive to tell the story the way they want it to
be told, to tell the story in a light that’s most favorable to his
father. He’s close to his father, he looks up to him, he’s going to
come in and sit in this courtroom and say anything he can to
make his father look good. He has no allegiance to [Appellant].
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N.T., Closing Arguments-David Nicholls, 4/26/2010, at 17-18. Moreover,
defense counsel noted the following with regard to the credibility of other
Commonwealth witnesses: (1) that Carlos Valentine got “up on the stand
[and] pretty much admits everything he told the police was a lie,” (2) that
Gladynel Rivera “was probably the most credible of the witnesses that [the
jury] saw,” (3) that two other individuals had “close connections with Rocky,
at his house all the time,” and that many of the witnesses were involved in
prior criminal behavior. Id. Defense counsel then requested that the jury
consider all of those factors when deciding who was telling the truth. Id. at
18. Moreover, defense counsel indicated to the jury that if it looked
“carefully at the facts, it’s going to be very difficult for [it] to come to a
conclusion beyond a reasonable doubt that [Appellant] ever had the intent to
kill anybody. It just doesn’t make any sense.” Id. at 21.
In her closing argument, the prosecutor asked the jury whether it
made any sense that those involved in the incident went to “shoot a fair
one,” and she suggested that “it [wa]s unreasonable to believe that their
plan was to do anything other than what they did.” N.T., Closing
Arguments-Bethany Zampogna, 4/26/2010, at 3. The prosecutor also stated
that it was the jury’s recollection that governs, but also that Appellant’s
testimony regarding how the gun was handled prior to and after the
shooting did not make “sense,” was “inexplicable” and “invented,” and that it
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was “unreasonable” to believe Appellant’s version of events in that regard.
Id. at 6-10, 13. Moreover, the prosecutor stated,
[W]hile I believe that his statement is unreasonable and does
not make sense, ladies and gentleman, even if you accept what
he says as true, despite all of the other evidence, even if you
accept that there was this gun exchange at the green car and
then another exchange back, … even if you believe that, …
[Appellant] is guilty as an accomplice … .
Id. at 15.
Upon review, we conclude that the prosecutor’s statements constituted
a proper use of oratorical flair, and they were made in fair response to
defense counsel’s statements during closing argument. See
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (“While a
prosecutor cannot offer his views as to a defense strategy, he can fairly
respond to attacks on a witness’s credibility.”). Moreover, to the extent that
the comments represented the prosecutor’s personal belief as to Appellant’s
credibility, we note that
not every unwise, intemperate, or improper remark made by a
prosecutor mandates the grant of a new trial. Reversible error
occurs only when the unavoidable effect of the challenged
comments would prejudice the jurors and form in their minds a
fixed bias and hostility toward the defendant such that the jurors
could not weigh the evidence and render a true verdict. To
constitute a due process violation, the prosecutorial misconduct
must be of sufficient significance to result in the denial of the
defendant’s right to a fair trial. The touchstone is the fairness of
the trial, not the culpability of the prosecutor.
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Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citations and
internal quotation marks omitted). Viewing the prosecutor’s comments in
the context of the closing argument as a whole, we agree with the PCRA
court that they did not have the unavoidable effect of prejudicing the jury
such that it could not weigh the evidence and render a true verdict.
As a final point, the trial court instructed the jury that, inter alia, the
jury was the “sole and only judge[] of the facts,” the jury was not bound “by
the recollections of counsel in their arguments to” it, and the jury was “the
sole judge[] of the credibility of the witnesses and of their testimony.”4
N.T., 4/26/2010, at 7, 8, 12. It is well-settled that “[t]he law presumes that
the jury will follow the instructions of the court.” Commonwealth v. Spotz,
896 A.2d 1191, 1224 (Pa. 2006). Thus, Appellant was not prejudiced by
counsel’s failure to object.
For the reasons stated above, Appellant is not entitled to relief on his
ineffective-assistance-of-counsel claims. Accordingly, we affirm the order of
the PCRA court denying and dismissing Appellant’s petition.
Order affirmed.
4
Prior to the commencement of closing arguments, the trial court also
informed the jury that those arguments did not constitute evidence and that
it was the jury’s recollection of the evidence that guided its deliberations.
N.T., 4/26/2010, at 3.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
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