Com. v. Watson, L.

J-S37027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LUZAY WATSON,

Appellant No. 1218 WDA 2015

Appeal from the PCRA Order July 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011093-2009

BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016

Appellant, Luzay Watson, 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 prior panel of this Court summarized the factual

history of this case as follows:

On the morning of May 14, 2009, the victim, Davon Young,
dropped off Soneida Goshay at his sister, Donika Gay’s residence
in St. Clair Village. St. Clair Village was a close knit, yet often
violent, housing project community in the City of Pittsburgh,
Allegheny County. Young was accompanied by Aaron Doswell,
and Goshay was left in the company of another of Young’s
sisters, Nikki Gay, who was at the residence watching Donika’s
two young children. Young and Doswell left the area.

While the two women were at the residence, Appellant’s
cousin, Tameika [last name unknown] came to the home looking
for Young to confront him about money that he owed to her.
Tameika was very upset about the matter, asking whether
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Young still drove a silver vehicle, and emphasizing that she
needed her money. Tameika left but stated that she was going
to call off work to get her “gun” to address the matter.

Late that afternoon Young and Doswell returned to pick up
Goshay. Young was driving the silver vehicle that Tameika
referenced early in the day. Nikki Gay informed Young of the
circumstances of Tameika’s visit, and Young unsuccessfully
attempted to contact Tameika by phone.

Young, Goshay, and Doswell began to leave the area with
Young driving the silver vehicle on Cresswell Street which exists
[sic] St. Clair Village. As they drove along Cresswell Street,
Appellant pursued the vehicle on foot, getting Young’s attention
by yelling, “yo yo yo”. Young recognized Appellant, stopped the
car, and got out of the vehicle to speak with Appellant.

Appellant confronted Young about the money ($500) owed
to him. Appellant became agitated by Young’s lack of an
appropriate response. As the argument continued Blaine Revis,
a relative of Appellant, approached and handed Appellant a
semiautomatic pistol. Appellant chambered a round and walked
over to Young’s vehicle, took the keys from the ignition and
angrily told Goshay and Doswell that he would kill all of them.
He told Goshay to get out of the vehicle and “go hide”. He
ordered an unknown male to watch Doswell as he sat in the
vehicle. Goshay left, returned to the Gay residence and alerted
Nikki Gay that Young was in danger. Nikki Gay frantically ran
toward Cresswell Street.

Appellant again approached Young and the argument
resumed. Appellant swung at Young and missed. Young started
to retaliate but apparently thought better of it because Appellant
was armed. Appellant stepped back and pointed the gun at
Young. Appellant then shot Young multiple times, and Young
collapsed to the ground. Appellant turned to persons in the
immediate area and stated, “Don’t you all mother fuckers think
you should be going somewhere”. Appellant fled the area
disposing of the weapon as he did so. Nikki Gay arrived to find
her brother collapsed on the ground in an obviously life
threatening condition.

Young was emergently transported to a local hospital but
died shortly thereafter. An autopsy indicated that Young was

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shot 3-5 times with the fatal wound being a gunshot wound to
the trunk. That bullet perforated the descending aorta-the
largest artery in the body; caused massive internal bleeding and
death.

The police investigation soon led to the identification of
Appellant.

Commonwealth v. Watson, 856 WDA 2011, 75 A.3d 562 (Pa. Super. filed

April 23, 2013) (unpublished memorandum at 1-3) (internal citations and

footnotes omitted).

As a result of this incident, Appellant was tried before a jury on

October 15-22, 2010, and was found guilty of first degree murder.

Appellant was sentenced to a period of life imprisonment without the

possibility of parole. Post-sentence motions were timely filed and the trial

court denied them on May 2, 2011. Appellant filed a direct appeal to this

Court on May 27, 2011. This Court affirmed Appellant’s judgment of

sentence on April 23, 2013, and Appellant’s petition for allowance of appeal

to our Supreme Court was denied on September 12, 2013.

Commonwealth v. Watson, 856 WDA 2011, 75 A.3d 562 (Pa. Super. filed

April 23, 2013), appeal denied, 239 WAL 2013, 74 A.3d 1031 (Pa. filed

September 12, 2013).

Appellant filed a pro se PCRA petition on December 20, 2013. Counsel

was appointed, and an amended PCRA petition was filed on July 28, 2014. A

second amended petition was filed on December 23, 2014. The PCRA court

issued a notice of intent to dismiss Appellant’s petition on June 9, 2015, and

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an order denying Appellant’s PCRA petition was entered on July 9, 2015.

Appellant filed a timely notice of appeal on August 10, 2015.1 Both parties

complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. Was [Appellant’s] claim for relief properly cognizable under
the Post-Conviction Relief Act?

II. Did the lower court abuse its discretion in denying the
petition alleging counsel’s ineffectiveness without a hearing,
where [Appellant] established the merits of the claim that trial
counsel was ineffective for failing to move to exclude the
admission into evidence of prison telephone calls made using
another inmate’s identification number insofar as the
Commonwealth failed to authenticate that the calls were made
by [Appellant]?

III. Did the lower court abuse its discretion in denying the
petition alleging counsel’s ineffectiveness without a hearing,
where [Appellant] established the merits of the claim that trial
counsel was ineffective for failing to object to the prosecutor’s
misleading and prejudicial repeated references to another
murder for which [Appellant] was not on trial during opening
remarks and closing arguments?

Appellant’s Brief at 4.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31
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1
We note that because August 8, 2015, fell on a Saturday, Appellant had
until Monday, August 10, 2015, to file his notice of appeal. See 1 Pa.C.S.
§ 1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation.); Commonwealth v. Green, 862
A.2d 613, 618 (Pa. Super. 2004).

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A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)). Furthermore, it is well established that “[t]he PCRA court need not

hold a hearing on every issue appellant raises, as a hearing is only required

on genuine issues of material fact.” Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010) (citations and quotations omitted). “A trial court’s

decision not to hold a hearing will only be reversed when the trial court

abused its discretion.” Commonwealth v. Collins, 888 A.2d 564, 579 (Pa.

2005).

In his first issue, Appellant argues that his claim for relief is properly

cognizable under the PCRA. Appellant’s Brief at 23. Appellant asserts that

his petition was filed within one year of the date his sentence became final

and that he is currently serving a sentence of imprisonment for crimes for

which he was convicted. Id. He further contends that his challenges to the

effectiveness of counsel are recognized under the PCRA. Id. Finally, he

asserts that his issues currently raised have not been previously litigated,

nor have they been waived. Id.

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We agree with Appellant’s assertion that Appellant’s claim for relief is

properly cognizable under the PCRA.2 42 Pa.C.S. §§ 9541-9546; see also

Commonwealth v. Lesko, 15 A.3d 345, 360-361 (Pa. 2011) (outlining

criteria for claims cognizable under the PCRA). Thus, we shall review the

two additional issues Appellant presents on appeal.

Appellant’s second and third claims allege ineffective assistance of

counsel (“IAC”). When considering an allegation of IAC, counsel 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. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet the prejudice

prong of the ineffectiveness standard, a defendant must show that there is a

‘reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Commonwealth v. Reed,

42 A.3d 314, 319 (Pa. Super. 2012). A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any one of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden

____________________________________________

2
We note that there has been no suggestion by the Commonwealth or the
PCRA court that Appellant’s claim for relief was not cognizable under the
PCRA.

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of proving ineffectiveness rests with Appellant.” Commonwealth v. Rega,

933 A.2d 997, 1018 (Pa. 2007).

In his second issue, Appellant argues that the PCRA court abused its

discretion in denying his amended PCRA petition without a hearing based on

his claim that trial counsel was ineffective. Appellant’s Brief at 24.

Appellant posits that trial counsel was ineffective for failing to move to

exclude from evidence transcripts of prison telephone calls that were made

using another inmate’s identification number. Id. Appellant avers that the

Commonwealth failed to authenticate that the calls were made by Appellant

and therefore the calls were improperly admitted into evidence. Id.

Regarding the authentication of evidence, Pa.R.E. 901 provides as

follows, in relevant part:

Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.

(b) Examples. The following are examples only--not a
complete list--of evidence that satisfies the requirement:

***

(4) Distinctive Characteristics and the Like. The
appearance, contents, substance, internal patterns,
or other distinctive characteristics of the item, taken
together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a
person’s voice--whether heard firsthand or through
mechanical or electronic transmission or recording--

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based on hearing the voice at any time under
circumstances that connect it with the alleged
speaker.

(6) Evidence About a Telephone Conversation. For a
telephone conversation, evidence that a call was
made to the number assigned at the time to:

(A) a particular person, if circumstances,
including self-identification, show that
the person answering was the one
called; or

(B) a particular business, if the call was
made to a business and the call related
to business reasonably transacted over
the telephone.

Pa.R.E. 901.

Furthermore, the comment to Pa.R.E. 901 provides, in relevant part,

as follows:

Comment: Pa.R.E. 901(a) is identical to F.R.E. 901(a) and
consistent with Pennsylvania law. The authentication or
identification requirement may be expressed as follows: When a
party offers evidence contending either expressly or impliedly
that the evidence is connected with a person, place, thing, or
event, the party must provide evidence sufficient to support a
finding of the contended connection. See Commonwealth v.
Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth
v. Pollock, 414 Pa. Super. 66, 606 A.2d 500 (1992).

In some cases, real evidence may not be relevant unless its
condition at the time of trial is similar to its condition at the time
of the incident in question. In such cases, the party offering the
evidence must also introduce evidence sufficient to support a
finding that the condition is similar. Pennsylvania law treats this
requirement as an aspect of authentication. See
Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381
(1980).

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Demonstrative evidence such as photographs, motion pictures,
diagrams and models must be authenticated by evidence
sufficient to support a finding that the demonstrative evidence
fairly and accurately represents that which it purports to depict.
See Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530 (1956).

***

Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania
law has permitted evidence to be authenticated by circumstantial
evidence similar to that discussed in this illustration. The
evidence may take a variety of forms including: evidence
establishing chain of custody, see Commonwealth v.
Melendez, 326 Pa. Super. 531, 474 A.2d 617 (1984); evidence
that a letter is in reply to an earlier communication, see Roe v.
Dwelling House Ins. Co. of Boston, 149 Pa. 94, 23 A. 718
(1892); testimony that an item of evidence was found in a place
connected to a party, see Commonwealth v. Bassi, 284 Pa.
81, 130 A. 311 (1925); a phone call authenticated by evidence
of party’s conduct after the call, see Commonwealth v. Gold,
123 Pa. Super. 128, 186 A. 208 (1936); and the identity of a
speaker established by the content and circumstances of a
conversation, see Bonavitacola v. Cluver, 422 Pa. Super. 556,
619 A.2d 1363 (1993).

Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania
law has permitted the identification of a voice to be made by a
person familiar with the alleged speaker’s voice. See
Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806
(1977).

Pa.R.E. 901, cmt. Moreover, this Court has explained that “when seeking to

introduce testimony as to the content of a telephone conversation, the

identity of the caller may be established by circumstantial evidence.”

Commonwealth v. Stewart, 450 A.2d 732, 733 (Pa. Super. 1982).

The Commonwealth presented the testimony of Samuel Pastor

(“Pastor”) and Detective Vonzal Boose (“Detective Boose”) for purposes of

authenticating the telephone calls at issue. Pastor was an employee of the

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Allegheny County Jail (“the Jail”), assigned to the internal affairs division.

N.T., 10/20/10, at 375. Pastor was familiar with the telephone system in

the Jail. Id. He described the process by which inmates at the Jail are

permitted to make telephone calls. Id. at 375-376. He explained that when

an inmate arrives at the Jail, he is assigned a distinctive PIN number that

allows him to make telephone calls to persons outside the Jail. Id. at 375.

Pastor further explained that because all telephone calls made from the Jail

to outside phone numbers are recorded, inmates often switch PIN numbers

in an attempt to fool the Jail officials, conceal their identity, and evade

detection. Id. at 376-379, 383. Pastor confirmed that Appellant and

another inmate, Gerod Garrett, were on the same pod at the Jail at the

same time, and thereby had access to each other. Id. at 383. In addition

to a PIN number, each incoming inmate is assigned a Department of

Corrections (“DOC”) number, which is unique to the inmate and remains

with that inmate, even if the inmate leaves the Jail and later returns. Id. at

376. Appellant’s DOC number is 143451. Id.

Detective Boose was employed as a detective with the City of

Pittsburgh homicide squad. N.T., 10/20/10, at 385. In the course of his

investigation into the shooting death of Davon Young, Detective Boose

requested from the Jail the recordings of telephone calls made by Appellant.

Id. at 387. Detective Boose received and listened to the telephone call

recordings that were made using Appellant’s PIN number. Id. at 387.

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Detective Boose stated that he did not hear anything relevant to his

investigation on those calls. Id. at 387. As a result, Detective Boose

gathered the telephone numbers that received calls made from the Jail using

Appellant’s PIN number. Id. at 387. Detective Boose then cross-referenced

those numbers with other calls made from the Jail, and discovered additional

calls from the Jail to those same outside telephone numbers, but made using

another inmate’s PIN number. Id. at 387-388. Detective Boose explained

that he conducted this cross-referencing of telephone numbers based on his

knowledge that “normally inmates switch [PIN] numbers thinking that we

wouldn’t listen and tricks that they use that we discover.” Id. at 388.

Based on his cross-reference of the telephone calls made, Detective Boose

determined that Appellant had used the PIN number assigned to Gerod

Garrett to make the telephone calls.3 Id. at 388.

The Commonwealth presented at trial the audio recordings and

accompanying transcripts of twenty-nine telephone calls made from the Jail

using Gerod Garrett’s PIN number during the period between June 11, 2009,

and August 22, 2009. N.T., 10/20/10, at 379-380, 393-394; Exhibits 39-68

and 39A-68A. The Commonwealth and Appellant stipulated to the admission

of these exhibits. N.T., 10/20/10, at 379. Following the playing of each

recording, Detective Boose identified the parties on the call. Id. at 394-407.
____________________________________________

3
Appellant’s counsel stipulated that the PIN number used for these calls
belonged to Gerod Garrett. Id. at 388.

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In each call, Detective Boose identified Appellant as one of the parties

speaking on the call. Id. at 394-407. In many of the calls, Appellant

provided information that identified him as the inmate making the call,

despite the use of Gerod Garrett’s PIN number. Id. at 394-407.

Specifically, Exhibit 54 was a call between Jennifer Cheeseman and

Appellant. N.T., 10/20/10, at 401; Exhibit 54A. 4 During this call, Appellant

provided his unique DOC number, 143451, so that Jennifer Cheeseman could

send Appellant mail. N.T., 10/20/10, at 401;5 Exhibit 54A. In several of the

calls, the speaker identified himself by Appellant’s nickname “Scrooge,” and

referenced his brothers, “Grease” and “KO,” numerous times.6 N.T., 398,

399, 400, 401, 405, 406; Exhibits 47A, 49A, 51A, 55A, 66A, 68A. On these

calls, Appellant also discussed his court dates, N.T., 10/20/10, at 314, 400,

405; Exhibits 51, 66, the details of his charges, N.T., 10/20/10, at 400;

Exhibit 53, and repeatedly directed his brothers to locate the witnesses

relevant to his case and eliminate them, even talking about “some girl [who]

got shot up there” on the day that Monnica (“Nikki”) Gay, a witness who
____________________________________________

4
The transcripts correlating to each call were labeled the same as the actual
recording, with the addition of an “A” after each number.
5
During his testimony, Detective Boose inadvertently transposed two of the
numbers in Appellant’s DOC number.
6
Evidence introduced at trial established that Appellant went by the
nickname “Scrooge,” Appellant’s brother Kevin Watson went by the
nickname “KO,” and Appellant’s other brother Charles Cabiness went by the
nickname “Grease.” N.T., 10/15/10, at 188, 429.

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testified against Appellant at his preliminary hearing on the Davon Young

murder charge, was killed. N.T., 10/20/10, at 397-399, 405, 406; Exhibits

46-50, 65, 68.

Indeed, on two of the calls, Appellant explained to the other party why

he could speak freely on the recorded line. The following exchange, in

relevant part, took place during the call placed on June 17, 2009, and

transcribed at Exhibit 50A:

Kevin Watson: Alright, that don’t mean cuz, look, what
motherfuckers see us doing don’t mean we’re
not doing shit when you don’t see us, cuz, you
gotta understand that, we’re not just chilling in
the fuckin’ hood, cuz, like niggas be out!

And I’m not about to talk about this shit on the
phone, cuz.

Luzay Watson: This ain’t my PIN number, I don’t give a fuck
about this number, cuz. That’s why I’m saying
what the fuck I’m saying, cuz.

Exhibit 50A at 3. On a call placed July 16, 2009, Appellant explained to the

other party on the call, in light of that person’s hesitation to speak freely

that: “Naw, this ain’t my PIN number, you ain’t gotta worry about nothin’.”

Exhibit 65A at 1.

The trial court came to the following conclusion in determining that the

calls were properly authenticated and provided this explanation to Appellant

in its notice of intent to dismiss Appellant’s PCRA petition pursuant to

Pa.R.Crim.P. 907:

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[Appellant] claims that counsel was ineffective for failing to
move to exclude the admission into evidence of prison telephone
calls from another inmate’s PIN number, based on the argument
that the Commonwealth failed to authenticate that the calls were
made by [Appellant]. The Commonwealth offered sufficient
authentication evidence to support a finding that [Appellant] was
the person speaking in those phone calls. Specifically, Detective
Vonzal Boose: (1) listened to phone calls made by [Appellant]
using his PIN; (2) cross-referenced the number called with other
inmate’s PINs used to call those same numbers; (3) identified
that Gerod Garrett’s PIN called the same numbers that were
called by [Appellant] using his own PIN; (4) listened to the calls
made to those numbers under Garrett’s PIN; and (5) identified
[Appellant’s] voice in those phone calls. Additionally, [Appellant]
identified himself on the phone calls using Garrett’s PIN by
providing his unique DOC number to Jennifer Cheeseman,
introducing himself by his street name (“Scrooge”) and
referencing his brother’s by their street names, by discussing his
court dates and charges, and stating that he could talk freely
because he was not using his own PIN. As such, Detective
Boose was able to identify [Appellant] was the caller on the
contested calls based on voice identification and [Appellant’s]
own identification. The underlying claim lacks merit and
[Appellant] was not prejudiced by counsel’s failure to object to
the admission of this evidence.

Notice of intention to dismiss pursuant to Pa.R.Crim.P. 907, at 1-2.

We agree. The extensive circumstantial evidence in this case

establishes that Appellant was the speaker on the recorded telephone calls

using Gerod Garrett’s PIN number. Stewart, 450 A.2d at 733. Additionally,

after having listened to the multiple recordings made by Appellant using his

own PIN number and during which he identified himself, Detective Boose

would have developed a basis upon which to recognize Appellant’s voice.

Thus, Detective Boose’s identification of Appellant’s voice is based, not only

on the significant circumstantial evidence presented at trial, but also on his

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own recognition of Appellant’s voice on the recordings. Thus, the recordings

and the related transcripts were properly authenticated and admitted into

evidence. Accordingly, there is no underlying merit to Appellant’s claim that

counsel was ineffective for failing to move to exclude from admission these

recorded calls. Spotz, 84 A.3d at 311. Because the ineffectiveness claim

lacked arguable merit, the trial court did not abuse its discretion by denying

the petition alleging counsel’s ineffectiveness without a hearing. See

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001)

(“There is no right to an evidentiary hearing on a PCRA petition, and the

PCRA court may decline to hold a hearing if the claims are patently frivolous

and without a trace of support in the record.”) Appellant’s second claim

lacks merit.

In his third issue, Appellant again argues that the PCRA court abused

its discretion in denying, without a hearing, his amended PCRA petition

alleging ineffective assistance of counsel. Appellant’s Brief at 32. In this

context, Appellant asserts that trial counsel was ineffective for failing to

object to the prosecutor’s misleading and prejudicial repeated references to

the murder of Nikki Gay, for which Appellant was not on trial, during opening

remarks and closing argument. Id. at 32. The prosecutor referenced the

fact that Appellant’s brother, Charles Cabiness, had been arrested and

charged in connection with the murder of Nikki Gay, who had testified at

Appellant’s preliminary hearing a month prior to her death. Id. Appellant

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maintains that introduction of this evidence was extremely prejudicial as

opposed to probative regarding who committed the crime in the instant

matter. Id. at 33. Appellant posits that these remarks effectively stripped

Appellant of the presumption of innocence. Id. at 37. Appellant further

asserts that comments made during the prosecutor’s closing statement,

referencing the murder of Nikki Gay and the fact that she was a witness

against Appellant, improperly directed the jury to find Appellant guilty

because he had Nikki Gay killed. Id. at 38. Despite these alleged

improprieties, Appellant’s trial counsel raised no objections to the comments

made during the opening and closing statements. Id. at 39. Appellant

asserts that he was prejudiced by counsel’s omission because if counsel had

timely and properly objected, there is a reasonable probability that the

outcome of the proceeding would have been different. Id. at 43.

In addressing prosecutorial misconduct alleged to have occurred in

opening and closing statements, our Supreme Court has provided the

following guidance:

In accord with the long-standing principle that a
“prosecutor must be free to present his or her arguments with
logical force and vigor,” this Court has permitted prosecutorial
advocacy “as long as there is a reasonable basis in the record for
the [prosecutor’s] comments.” Prosecutorial comments based
on the evidence or reasonable inferences therefrom are not
objectionable, nor are comments that merely constitute
oratorical flair. Furthermore, the prosecution must be permitted
to respond to defense counsel’s arguments. Any challenged
prosecutorial comment must not be viewed in isolation, but
rather must be considered in the context in which it was offered.

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It is improper for a prosecutor to offer his or her personal
opinion as to the guilt of the accused or the credibility of any
testimony. However, it is well within the bounds of proper
advocacy for the prosecutor to summarize the facts of the case
and then ask the jury to find the accused guilty based on those
facts.

The standard by which the court considers allegations of
improper prosecutorial comments is a stringent one:

Comments by a prosecutor constitute reversible
error only where their unavoidable effect is to
prejudice the jury, forming in their minds a fixed bias
and hostility toward the defendant such that they
could not weigh the evidence objectively and render
a fair verdict.

Commonwealth v. Chmiel, 30 A.3d 1111, 1146-1147 (Pa. 2011).

Appellant objects to the following comments made during the

prosecution’s opening statement:

What is going to make that more obvious and difficult is when
you find out that, in fact, one of the Commonwealth’s witnesses,
one of the people that was potentially to testify in this case was
murdered because they already testified at a previous hearing.

***

One of those witnesses, her name was Monnica Gay, who
testified at that hearing and within a month of that time that she
testified she was found dead, shot in the head in St. Clair
Village. So keep that in mind, all right. Keep that in the back of
your heads when you see these witnesses testify because it is
not an easy thing. Not only do they have to sit here and face
the person that they are accusing they know, in the back of their
mind a witness was murdered.

Now, hopefully from watching the news, TV movies, you
know there is a common theme about snitching. It is not done
in this community. In that neighborhood you don’t do that. The
common phrase is snitches end up in ditches. That is what
ended up [happening] to one of the witnesses in this case.

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Appellant’s Brief at 36 (citing N.T., 10/18/10, at 37-39).

Viewing the opening statement in its entirety, however, it is clear that

in this portion of the statement, the prosecutor was attempting to explain

why witnesses, who were about to testify, would likely appear to be

uncooperative or unhelpful to the Commonwealth at trial, despite their

proximity to the killing. The relevant subsequent comments omitted by

Appellant provide this understanding:

So while it might be your first instinct perhaps where you grew
up if you see a crime that you report it to the police, it is not like
that here. This is a different world entirely from what you are
used to. It is going to be a common theme in this case. You are
going to see it and a lot of the questions that you have is why
didn’t they do this, why didn’t they do that? It is all coming back
to that one thing they are afraid to testify. It is not done. They
know what is going to happen to them if they do.

This occurred May 14, 2009, Thursday, around 3:30p.m.,
kids getting out of school, a lot of people around, committed in
broad daylight. Again, the same thing, to have the ability and
the lack of fear to commit a murder like this in front of so many
witnesses just goes to show you that they don’t expect anyone
to testify. They think they can get away with it. No one is going
to come forward and in this case a lot of people didn’t. You are
going to hear that 15, so 10, 15 people were outside but I only
have four people that were involved and two of which that
actually saw it happen. Out of all the people that witnessed this,
no one comes forward. Only four people in this case are going
to testify and, in fact, two of those are people that actually
witnessed it.

N.T., 10/18/10, at 38-40.

Thus, the discussion of the murder of Nikki Gay in the context of

retaliation against witnesses was presented as an explanation of the

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relationships among the parties involved in the case and a contextualization

about the witnesses’ potential apprehension in testifying. It was not an

improper characterization by the prosecutor intended to inflame the jury or

prejudice Appellant. Instead, the prosecutor’s comments were based on the

evidence, and the inferences therefrom, that would be presented at trial.

Chmiel, 30 A.3d at 1147. Accordingly, we cannot agree that the

prosecutor’s comments related to Nikki Gay’s death and retaliation against

witnesses constituted prosecutorial misconduct.

Appellant next challenges comments made by the prosecutor in his

closing statement. The following is the statement to which Appellant

objects:

Now the only point which I’m going to address that
defense talked about because I’m not sure if you are able to pick
up on it is this, that is about Niki Gay, Monnica Gay, her murder.
The argument is that she had nothing to do with this, unrelated
to this case. That is simply not true. She was killed because
she testified against [Appellant]. He had her killed. He told his
brother get rid of these witnesses. She is one of the witnesses
they found and killed.

***

You are going to give [Appellant] – if you think he thought all of
this through, he doesn’t care who was killed. He isn’t smart to
realize which witness said what. He wants them all dead . . .
Look at the message. Obviously it is going to scare to death
anybody that would come forward. You heard them, witnesses
were out there. It is not and should not be a surprise why only
three of them testified.

Appellant’s Brief at 38 (citing N.T, 10/21/10, at 467-468).

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Again, we note that “[a]ny challenged prosecutorial comment must not

be viewed in isolation, but rather must be considered in the context in which

it was offered.” Chmiel, 30 A.3d at 1147. Thus, viewing the closing

statement in its entirety, it is apparent that the prosecutor was again

attempting to explain why so few witnesses testified despite there being

many more eyewitnesses. N.T., 10/21/10, at 468-469.7

Because none of Appellant’s assertions of prosecutorial misconduct

during opening and closing arguments has merit, Appellant cannot satisfy

the arguable merit prong of the test for ineffective assistance of trial

counsel. Accordingly, the PCRA court did not abuse its discretion by

dismissing Appellant’s PCRA petition without a hearing. Jordan, 772 A.2d at

1014. Thus, Appellant’s third claim also fails.

Order affirmed.

____________________________________________

7
In his appellate brief, Appellant also challenges the prosecutor’s comments
regarding the testimony of a witness, Chelsea Rankin. Appellant’s Brief at
38. This issue, however, was not raised in Appellant’s Pa.R.A.P. 1925(b)
statement and is therefore waived. Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (“Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.”).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2016

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