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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES WILLIAM MOORE, :
:
Appellant : No. 606 WDA 2014
Appeal from the PCRA Order March 19, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0014425-2004
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 18, 2015
Appellant, James William Moore, appeals from the order entered in the
Allegheny County Court of Common Pleas denying his timely first Post
Conviction Relief Act1 (“PCRA”) petition after two evidentiary hearings.
Appellant contends trial counsel was ineffective for not objecting to the
prosecutor’s comment during closing argument that the victim was
unarmed. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
opinion. See PCRA Ct. Op., 9/24/14, at 1-2. Appellant timely filed a court-
ordered Pa.R.A.P. 1925(b) statement, and he raises the following issues:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9545.
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Whether Appellant’s prior trial and appellate counsel were
ineffective, which in the circumstances of the particular
case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken
place.
Whether there was a violation of the Constitution of this
Commonwealth or the Constitution of the United States
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
Id. at 5.
We summarize his arguments for both issues. Appellant contends his
trial counsel was ineffective by not objecting to the prosecutor’s comment
during closing arguments that the record established the victim was
unarmed. Id. at 6. Appellant states the prosecutor knew that a knife was
found on the victim. He contends appellate counsel was ineffective by not
raising trial counsel’s alleged ineffectiveness on direct appeal. We hold
Appellant is due no relief.
“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. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
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ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)
(punctuation marks and citations omitted).
After careful review of the record, the parties’ briefs, and the well-
reasoned decision by the Honorable David R. Cashman, we affirm on the
basis of the PCRA court’s opinion. See PCRA Ct. Op. at 3-6 (holding
Appellant never knew victim had pocketknife and never invoked self-defense
when arrested; trial counsel testified he would not have objected to avoid
highlighting that fact; trial counsel’s failure to object was not ultimately
prejudicial; and court instructed jury that prosecutor’s argument is not
evidence). We reiterate that counsel’s failure to object did not establish
prejudice. Indeed, Appellant testified he never saw the victim with a
weapon and an independent eyewitness corroborated Appellant’s testimony.
N.T. Trial, 5/3/06 to 5/4/06, at 89, 248. Accordingly, having discerned no
basis for relief, we affirm the order below. See Abu-Jamal, 941 A.2d at
1267.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL'I'H OF PENNSYLVANIA
COUNTY OF ALLEGHENY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
CC No. 200414425
Superior Court o~;p~~2014
vs. D" Crtrri. Utjvi' I
/i/r:;ho/8;i D1v;~;o'lI._
JAMES WILLIAM MOORE er,Y .•• tt A~ n
OPINION Cot.J17t/;~s
JUDGE DAVID R. CASHMAN
308 Courthouse.
436 Grant Street
Pittsburgh, PA· 15219
(412) 350-3905
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Copies Sent To:
- J
Michael Streily, Esquire (Interoffice)
Office of the District Attorney
4th Floor, Courthouse
Pittsburgh, PA 15219
Christy P. Foreman, Esquire
(US Mail)
Fifth Floor, 220 Grant Street
Pittsburgh, PA 15219-2027
Circulated 05/01/2015 01:19 PM
IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA ) CC No. 200414425
vs. ) Superior Court No. 606WDA2014
JAMES WILLIAM MOORE )
OPINION
The appellant, James Moore, (hereinafter referred to as "Moore"), has
appealed from the Order of Court denying him post-conviction relief. Moore was
convicted of third degree murder following a jury trial before this Court on May 8,
2006. He was sentenced to a term of imprisonment of fifteen to thirty years, to be
followed by a ten-year period of probation. A direct appeal was filed to the
Pennsylvania Superior Court, post-sentence motions were filed nunc pro tune, and
the Superior Court remanded so that post-trial motions could be litigated.
A hearing on post-trial motions occurred on December 10, 2007. A timely
notice of appeal was later filed on March 30, 2008, in which Moore challenged the
prosecutor's argument to the jury as well as counsel's effectiveness in failing to
object to the prosecutor's argument. On January 10, 2009, a panel of the Superior
Court affirmed the judgment of sentence. On November 18, 2010, the Pennsylvania
Supreme Court denied Moore's petition for allowance of appeal. On March 10, 2(
a prose petition under the Post-Conviction Relief Act was filed. Attorney Christ
Foreman was appointed to represent Moore. On November 9, 2011, Ms. Foremai
filed an amended petition for post-conviction relief on Moore's behalf. The
Commonwealth filed an answer to that petition on November 23, 2011. Two
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evidentiary hearings were held with respect to the claim for post-conviction relief.
The first hearing occurred on November 20, 2012, while the second hearing occurred
on March 12, 2014. On March 19, 2014, an Order was entered denying post-
conviction relief. This timely appeal followed.
A concise statement of matters complained of on appeal was filed on Moore's
behalf. Moore essentially claims that the Court erred in failing to grant him post-
conviction relief based on counsel's ineffectiveness in failing to object to a different
portion of the prosecutor's closing argument than was previously raised on the
direct appeal. Specifically, Moore contends that the prosecutor committed
misconduct and trial counsel was ineffective in failing to object to the prosecutor's
argument that the victim in his case "was completely unarmed" at the time that
Moore shot him in the front and in the back. Moore's claim relates to a pre-trial
motion in limine where the defense sought to offer evidence that a knife was found
on the victim at the time of his death. A hearing was held pre-trial on the issue of
the admissibility of this knife. The Court ruled at that time that such evidence was
irrelevant and inadmissible. There was no evidence to suggest that Moore had ever
seen a knife on the victim, or that the victim had ever threatened him with a knife.
Rather, the evidence established that a confrontation took place on the street
between the victim and Moore. Moore had walked to the victim's car when an
argument ensued. The victim punched Moore one time. Shortly after that punch,
Moore pulled a gun and shot the victim twice - once in the front and once in the
back. Moore never mentioned at the time of his arrest that the victim had
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threatened him with a knife. It was only fortuitous that Moore learned of this and
sought to introduce this fact into evidence. The Court properly ruled that such
evidence was inadmissible.
The defense zealously argued for a self-defense justification outcome. The
prosecution argued in response, "Mr. Rothman [trial counsel] did not mention in his
closing to you that Mr. Meyers was completely unarmed. The evidence showed he
had no weapons on him, nothing in the car. Mr. Moore even admitted he didn't see
any weapons on him." Trial Transcript, Volume II at 78-80. No objection was
lodged by the defense. Trial counsel testified at the post-conviction relief hearing
that he likely would not have objected for fear of highlighting this particular fact.
While we find that the prosecutor's argument was less than artful, that
argument was accurate as a matter of the evidence presented to the jury. While the
prosecutor surely knew that a knife was found on the victim, it is clear that the
knife had no bearing in the outcome of the victim's death. Moore did not even know
that the victim had a knife, as it never came into play during their encounter.
Comments by a prosecutor generally do not constitute _reversible error unless
they have the unavoidable effect of prejudicing the jury, forming in their minds a
fixed bias or hostility toward the defendant so that they could not weigh the
evidence objectively and render a true and correct verdict. Commonwealth v.
D'Ambro, 456 A.2d 140, 144 (Pa. 1983). Prosecutorial misconduct does not occur
where comments are based on the evidence or proper inferences therefrom or were
only oratorical flare. Commonwealth v. Marshall, 633 A.2d 1100, 1110 (Pa.
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1993). "Comments deemed to be prejudicial cannot be viewed in isolation but,
rather, must be considered in the context in which they were made."
Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006).
The law presumes that juries follow Court's instructions as to the applicable
law. Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992). In the charge to
the jury, the Court advised the jury as follows:
Now, Mr. Rothman and Mr, Zur have been permitted to make opening
statements and closing arguments. That's their job. They are advocates,
they represent certain parties in this particular proceeding.
You should carefully consider what they have said to you. You should
examine all the facts in light of their analysis and use that in helping you
decided what those facts are.
However, anything that they have said to you in their opening
statements, their closing arguments or even their questions is not evidence.
The only evidence that you will use to determine what the facts are is the
testimony of the witnesses that have come forward and. the exhibits that will
be given to you.
If anything that they have said to you in those statements conflicts
with what you remember the testimony to be, disregard what they have said.
When I say that, again, it is because their statements are not evidence.
You will be the ultimate factfinders, and it will be your individual and
collective memories that control the disposition of this.particular case.
Trial Transcript (VOL II), pages 106-107.
As Moore's claim has no merit, trial counsel cannot be found to be ineffective
under these circumstances. Commonwealth v. Spatz, 896 A.2d 1191, 1211 (Pa.
2006). Likewise, Moore cannot show that he was prejudiced by the prosecutor's
argument or by his counsel's failure to object to that argument. There was no
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evidence whatsoever of record to suggest that the victim had a weapon that came
into play in this matter. Moore, himself, admitted to seeing no weapon, and
witnesses to this event likewise saw no weapon in the hands of the victim. While a
knife was later found in the victim's pocket, it obviously had no bearing on the facts
of this case, was irrelevant and properly excluded.
For the within reasons, Moore was properly denied post-conviction relief.
BY THE COURT:
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DATED: ¥dfi _, (>)11 o2d(;_j
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