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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DERRON J. SMITH
Appellant No. 1302 EDA 2014
Appeal from the PCRA Order April 4, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0127112-2004
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 29, 2015
Appellant, Derron J. Smith, appeals from the order denying his petition
pursuant to the Post Conviction Relief Act (“PCRA”). We conclude that the
PCRA court properly concluded that none of Smith’s claims of ineffective
assistance of counsel merited relief. We therefore affirm.
A previous panel of this Court set forth the factual and procedural
background of this case.
Smith’s conviction follows a shooting incident in which he and
co-conspirator Byron Holeman shot Marcus and Malika Spivey at
the front steps of their home on North 19th Street in
Philadelphia. On October 9, 2004, Smith and Holeman ventured
to the Spivey home and confronted Marcus Spivey as his sister,
Malika, then twelve years’ [sic] old, sat on the front step
coloring. Seconds into the altercation, Holeman drew a gun and
began firing, two of his bullets finding their targets in Marcus
Spivey’s leg and abdomen. Smith then pulled [a] gun of his own
and, in a hail of gunfire, shot Malika Spivey in the knee. Upon
hearing the ruckus outside, Marcus[‘s] and Malika’s mother,
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Lorrane Huff, ran to the door of the family’s home and saw
Smith, whom she later identified in a photo array, running
toward her shooting in the direction of the house. As
neighborhood children ran past her to seek refuge, Huff dragged
her screaming daughter inside while another bystander called
the police. At the time of these events, Smith was seventeen
years old.
At trial, the Commonwealth called, among others, Malika Spivey,
Lorrane Huff, and numerous officers who responded to the scene
as well as an expert in ballistics. Malika, who is hearing
impaired, testified through a sign language interpreter that she
was sure of Smith’s identity because she remembered his face
and a keloid scar on the right side of his neck. The
Commonwealth did not call Marcus Spivey, however, and in its
closing argument asserted that Marcus’s testimony was not
necessary as Marcus had been shot by Holeman rather than
Smith and his testimony would have added nothing to that of the
other witnesses. Smith elected not to testify and offered no
other evidence in his defense. In his closing argument the
prosecutor, in addition to discounting the need for Marcus
Spivey’s testimony, emphasized the certainty of Malika’s
testimony, stating[,] “She focused on the face, the face that
brought death to her doorstep[.]” He argued in addition that
such circumstances leave a lasting effect: “I have often heard it
said that when you go through a traumatic event it has the
effect on some people of triggering almost a recording session.”
Defense counsel objected to both references but uttered only the
word “objection.” Significantly, he did not offer a reason for the
objection and did not request action from the trial judge to
remedy the remarks to which he objected.
Commonwealth v. Smith, No. 1447 EDA 2007, at 2-3 (filed June 20,
2008) (unpublished memorandum). The jury convicted Smith on all
charges, and the trial court subsequently imposed an aggregate sentence of
imprisonment of 20 to 40 years.
On direct appeal, Smith raised two issues: prosecutorial misconduct
during the closing argument, and merger of certain of his convictions. This
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Court concluded that Smith had waived his claim of prosecutorial misconduct
by failing to preserve it in the trial court. We further held that several of
Smith’s convictions should have merged for sentencing purposes, and
remanded for re-sentencing. However, the illegal sentences did not affect
the aggregate term, as they ran concurrently to other, affirmed sentences.
On January 21, 2009, the Supreme Court of Pennsylvania denied
Smith’s petition for allowance of appeal, and on November 4, 2009, Smith
filed a pro se PCRA petition. Counsel was appointed to represent Smith, and
an amended, counseled petition was filed. The PCRA court denied Smith’s
petition on April 4, 2014. This timely appeal followed.
“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). We
review the PCRA court’s legal conclusions de novo. See Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011).
On appeal, Smith raises three issues for our review. In his first two
issues, Smith challenges the effectiveness of his trial counsel. In his final
issue, he challenges the effectiveness of appellate counsel.
All of Smith’s issues are premised on claims of ineffective assistance of
counsel.
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[T]o prevail on his ineffectiveness allegations, Appellant must
demonstrate that the underlying claim is of arguable merit; that
no reasonable strategic basis existed for counsel's act or
omission; and that counsel’s error resulted in prejudice, or, in
other words, that there is a reasonable probability that the
outcome would have been different.
Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (citation
omitted).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of
arguable merit is a legal determination.” Commonwealth v. Barnett, ___
A.3d ___, ___, 2015 WL 4550107 at *3 (Pa. Super., filed July 29, 2015)
(citation omitted). “In considering whether counsel acted reasonably, we
look to whether no competent counsel would have chosen that action or
inaction.” Id. (citation omitted). We also consider whether “the alternative,
not chosen, offered a significantly greater potential chance of success.” Id.
(citation omitted).
[P]rejudice exists where there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. This probability is sufficient when it undermines
confidence in the outcome of the proceeding. Counsel is
presumed to have rendered constitutionally effective
representation.
Id. (citation omitted).
In his first issue, Smith contends that the PCRA court erred in
concluding that trial counsel was not ineffective for failing to file a post-
sentence motion challenging the weight of the evidence supporting one of
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his convictions for attempted murder. Specifically, Smith argues that it is
undisputed that he did not shoot Marcus Spivey, and that the weight of the
evidence at trial did not establish that he had conspired with Holeman’s
attempt to murder Spivey. Thus, Smith asserts, trial counsel was ineffective
for failing to preserve this issue in a post-sentence motion.
Smith is correct in noting that trial counsel’s failure to raise a weight
claim in a post-sentence motion caused that issue to be waived. See
Pa.R.Crim.P., Rule 607(a). Thus, we begin our analysis of whether trial
counsel was ineffective for failing to do so by determining whether Smith’s
underlying weight claim has arguable merit. Our standard of review
applicable to a challenge to the weight of the evidence is as follows.
[A] verdict is against the weight of the evidence only when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. It is well established that a weight of the
evidence claim is addressed to the discretion of the trial court. …
The role of the trial court is to determine that notwithstanding all
the evidence, certain facts are so clearly of greater weight that
to ignore them, or to give them equal weight with all the facts, is
to deny justice. A motion for a new trial on the grounds that the
verdict is contrary to the weight of the evidence concedes that
there is sufficient evidence to sustain the verdict; thus the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence, the
function of an appellate court … is to review the trial court's
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight
of the evidence. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion. It is for this reason that the trial court’s
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denial of a motion for a new trial based on a weight of the
evidence claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
citations and quotation marks omitted). In the context of a claim for
ineffectiveness of trial counsel for failing to properly raise the claim before
the trial court, we review the PCRA court’s exercise of discretion based upon
the record. See Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa.
Super. 2013).
Here, the PCRA court found this claim waived, concluding that Smith’s
1925(b) statement was insufficiently specific to allow it to address the issue.
The relevant portion of Smith’s statement states: “The PCRA court erred by
denying appellant post conviction relief because trial counsel was ineffective
because he did not file a post-sentence motion and preserve the issue that
his conviction for attempted [murder] was against the weight of the
evidence.” The PCRA court is correct in noting that this statement is too
vague to allow for review. See Commonwealth v. Seibert, 799 A.2d 54,
62 (Pa. Super. 2002). Thus, we find this claim waived. 1
____________________________________________
1
In any event, Smith’s claim that trial counsel was ineffective for failing to
raise a weight of the evidence claim is an extraordinarily difficult claim to
prove has arguable merit. “A verdict is said to be contrary to the evidence
such that it shocks one’s sense of justice when the figure of Justice totters
on her pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes him to
almost fall from the bench, then it is truly shocking to the judicial
conscience.” Commonwealth v. Boyd, 73 A.3d 1269, 1274-1275 (Pa.
(Footnote Continued Next Page)
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Next, Smith argues that counsel was ineffective for failing to preserve
prosecutorial misconduct during closing arguments as an issue for purposes
of direct appeal. We note that while the direct appeal panel found the issue
of prosecutorial misconduct waived pursuant to trial counsel’s failure to
request a remedy or adequately identify the basis of his objection, the panel
explained why, if they could address the claim on the merits, it has no
merit:
Nevertheless, even if we were able to reach the merits of
Smith’s assertions, the record offers no basis for the relief he
requests. “Our standard of review for a claim of prosecutorial
misconduct is limited to ‘whether the trial court abused its
discretion.’” Commonwealth v. Harris, 884 A.2d 920, 927
(Pa. Super. 2005) (quoting Commonwealth v. DeJesus, 787
A.2d 394, 407 (Pa. 2001)). We focus accordingly upon whether
the prosecutor’s remarks or actions denied the defendant a fair
trial. Harris, 884 A.2d at 927. This standard is relatively
stringent. See id.
Not every unwise remark on a prosecutor’s part constitutes
reversible error. … Generally speaking, a prosecutor’s
comments 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 Appellant so that they could not weigh the evidence
objectively and render a true verdict.
Id. Significantly, prosecutorial misconduct is not shown where
the comments at issue were based on the evidence or inferences
reasonably deducible from it. See id. Counsel’s remarks are
not evidence in themselves and counsel are allowed considerable
latitude in arguing their cases to the jury. See Commonwealth
_______________________
(Footnote Continued)
Super. 2013) (citation and internal quotation marks omitted). Our review of
the record leads us to conclude that it is highly unlikely that any jurist would
be shocked by the verdict returned in this case.
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v. Baez, 720 A.2d 711, 729 (Pa. 1998). If, when taken in
context, counsel’s remarks amount only to “oratorical flair,” the
requisite showing had not been made and the trial court is under
no obligation to take corrective measures. See Harris, 884
A.2d at 927.
In this case, the first reference [Smith] challenges is nothing
more than oratorical flair. See N.T., 1/25/07, at 102 (“I have
often heard it said that when you go through a traumatic event it
has the effect on some people of triggering almost a recording
session.”). Contrary to Smith’s assertion, nothing in the
statement purports to scientific fact; indeed, by its plain
language, the statement labels itself as the prosecutor’s personal
reflection on facts in evidence. Malika Spivey testified that she
distinctly recalled the defendant’s face and made reference to
the keloid scar on the right side of his neck. Moreover,
notwithstanding Smith’s assertion of scholarly opinion in other
disciplines, Brief for Appellant at 13, the prosecutor’s reflection
remains consistent with applicable decisions of our appellate
courts. See Commonwealth v. Edwards, 762 A.2d 382, 391
(Pa. Super. 2000) (quoting Commonwealth v. Derrick, 469
A.2d 1111, 1121 (Pa. Super. 1983) (“Whenever the victim of a
crime has an opportunity to observe the criminal, the impression
of the face of an assailant is etched upon the prey by the terror
of the occasion.”). Accord, Commonwealth v. Butler, 512
A.2d 667, 672 (Pa. Super. 1986). Accordingly, we find no basis
upon which to conclude that the statement amounts to
prosecutorial misconduct.
In the second reference Smith challenges, the prosecutor sought
to diminish the importance of any testimony that may have been
offered by the second victim, Marcus Spivey. The prosecutor’s
statement reads as follows:
To say, well, he should go free because Marcus didn’t show.
Use your common sense. If Marcus is over here being shot
at by the light-skinned individual that has been identified,
who do you think he’s going to be focused on? This guy
who’s in front shooting him or the one that is running across
the street shooting his sister?
We don’t need Marcus here. Marcus may have been the
target for everything, but Marcus, his focus is on someone
who has already been dealt with.
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N.T., 1/25/07, 111-12. We find nothing even remotely
prejudicial in these statements. In point of fact, they amount to
nothing more than fair commentary on evidence of record.
Other witnesses, including Malika Spivey and Lorrane Huff,
testified specifically concerning the respective positions of both
the victims and their assailants. The prosecutor’s suggestion,
based upon that evidence, that Marcus Spivey was likely focused
on his own assailant merely recognizes the testimony of those
other witnesses and draws reasonable inferences that the jury,
based upon human experience, could readily dissect and
understand. Accordingly, we find no basis upon which to
characterize the prosecutor’s statements as misconduct.
Smith, at 7-9.
It is true that the quoted language constitutes dicta, but we find its
reasoning correct and adopt it fully as our own. We therefore conclude that
Smith has failed to establish that the underlying claim has arguable merit,
and thus, has failed to establish his claim for ineffective assistance of trial
counsel. Smith’s second issue on appeal merits no relief.
In his final issue, Smith contends that appellate counsel was
ineffective in failing to raise the issue of the sufficiency of the evidence
supporting his conviction for attempted murder of Marcus Spivey.
Specifically, Smith claims that appellate counsel should have argued that the
evidence at trial was insufficient to support a finding that he had the specific
intent to kill Marcus Spivey. We once again conclude that the PCRA court
was correct in concluding that Smith could not establish the arguable merit
of the underlying claim.
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In reviewing a challenge to the sufficiency of the evidence, “[w]e must
determine whether the evidence admitted at trial, and all reasonable
inferences derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, support all of the elements of the offense
beyond a reasonable doubt.” Commonwealth v. Cooper, 941 A.2d 655,
662 (Pa. 2007). Our scope of review is plenary. See Commonwealth v.
Weston, 749 A.2d 458, 460 n.8 (Pa. 2000). We may not weigh the
evidence and substitute our judgment for the fact-finder’s, as the fact-finder
solely determines the credibility of witnesses and is free to believe all, part
or none of the evidence submitted. See Cooper, 941 A.2d at 662. The
Commonwealth may sustain its burden of proving every element of an
offense by means of wholly circumstantial evidence. See Commonwealth
v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013).
To sustain an attempted homicide conviction the Commonwealth must
prove the accused has commited an act that is a substantial step towards
the commission of the crime with a specific intent to kill. See
Commonwealth v. Dale, 836 A.2d 150, 152-153 (Pa. Super. 2003).
“[T]he law permits the fact finder to infer that one intends the natural and
probable consequences of his acts[.]” Commonwealth v. Jackson, 955
A.2d 441, 444 (Pa. Super. 2008) (citation omitted). The intent necessary
for establishing attempted murder is a specific intent to kill. See
Commonwealth v. Geathers, 847 A.2d 730, 735-736 (Pa. Super. 2004).
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The specific intent to kill need not be confined to the intended victim.
“The transferred intent theory provides that if the intent to commit a crime
exists, this intent can be transferred for the purpose of finding the intent
element of another crime.” Commonwealth v. Thompson, 739 A.2d
1023, 1029-1030 (Pa. 1999) (citation omitted). Thus, if a defendant
intended to kill one victim by shooting in the victim’s direction, the intent to
kill is transferred to the innocent bystander who the defendant mistakenly
shot. See Commonwealth v. Jackson, 955 A.2d 441, 445-446 (Pa.
Super. 2008).
Here, the evidence established that Smith unleashed a hail of gunfire
while Holeman and Marcus Spivey were engaged in a dispute. The doctrine
of transferred intent permitted the fact-finder to infer that Smith intended to
kill both Marcus, whom Smith did not shoot, and Malika, whom Smith did
shoot. The reckless nature of the high volume of shots fired allowed the
fact-finder to further infer that Smith was not carefully aiming warning shots
or attempting to merely injure his target, and that Smith intended to kill
both Marcus and Malika. We therefore conclude that Smith cannot establish
the arguable merit of his underlying sufficiency of the evidence claim. As a
result, he has not established that appellate counsel was ineffective, and his
final issue on appeal merits no relief.
Order affirmed. Jurisdiction relinquished.
Judge Mundy joins the memorandum.
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Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2015
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