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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LARRY D. OLIPHANT, : No. 1427 EDA 2015
:
Appellant :
Appeal from the PCRA Order, May 12, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0302351-2005
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
Larry D. Oliphant appeals from the May 12, 2015 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The relevant facts, as summarized by a prior panel of this court on
direct appeal, are as follows:
On the evening of November 18, 2004,
[a]ppellant and his co-defendant, Ronald Bethea,
were at the house of Mr. Bethea’s cousin. While
there, Mr. Bethea received a telephone call that “one
of his boys” had been attacked at the corner of 8 th
and Butler Streets. After discussing the situation
with [a]ppellant and another confederate,
Donzell White, the three men decided to go to the
corner of 8th and Butler Streets to avenge the
beating. Mr. Bethea asked his cousin to drive the
men there, but his cousin refused to get involved.
Mr. Bethea then recruited his girlfriend,
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Chaka Jenkins, to drive the men to the location of
the beating in his cousin’s dark blue minivan.
Mr. Bethea told [a]ppellant and Mr. White, “I
am doing something about this,” and provided
[a]ppellant with a .45 caliber handgun. Mr. White
gave [a]ppellant a one-piece “Dickie” jumpsuit to
wear over his yellow tee-shirt and camouflage pants.
Appellant also donned a camouflage hat.
When they arrived at the corner of 8th and
Butler Streets, Mr. Bethea pointed out a man on the
street who was working on his car. Mr. Bethea said
to [a]ppellant, “That’s the guy right there.” The
group then drove around the block. Appellant
informed Mr. Bethea, “I’ll take care of it for you,”
and exited the minivan with the handgun protruding
from his jumpsuit pocket. While [a]ppellant was
looking for his target, the others continued to drive
around the area. Mr. Bethea noticed a heavy police
presence and instructed Ms. Jenkins to drive back to
the corner of 8th and Butler Streets to look for
[a]ppellant. Once they spotted [a]ppellant,
Mr. Bethea warned him “there were too many cops
around.” Nevertheless, [a]ppellant assured
Mr. Bethea he would “take care of it.”
Appellant continued to search for his target,
and the others drove to a nearby pizza shop to await
[a]ppellant’s completion of the “job.” After some
time, Mr. Bethea became concerned [a]ppellant was
taking too long, so he again directed Ms. Jenkins to
drive the men back to the corner of 8th and Butler
Streets. As the minivan approached the intersection,
the group spotted [a]ppellant, who jumped into the
front passenger seat of the minivan. Once in the
vehicle, [a]ppellant informed the others, “I got him.”
Several police cars and an ambulance truck arrived
at the scene of the crime, and Ms. Jenkins quickly
drove away.
Police found the victim lying on the street. Six
fired cartridge casings surrounded the area of the
victim’s body. As it turned out, the victim was an
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innocent bystander, and not [a]ppellant’s initial
target. Several witnesses informed police they had
observed a black male at the crime scene wearing a
Dickie jumpsuit and a camouflage hat. One witness
noticed the man in the jumpsuit and camouflage hat
climb into a blue minivan, and recalled the letters
“YPV” on the license plate.
Moments later, police officers heard the flash
information over the radio and spotted the minivan a
few blocks from the crime scene. A search of the
minivan revealed a Dickie jumpsuit and handgun in
the vehicle. Subsequent firearms testing confirmed
that the six fired cartridge casings found at the crime
scene had come from the handgun found in the
vehicle. The Commonwealth charged [a]ppellant
and Mr. Bethea with murder and related offenses.
Commonwealth v. Oliphant, 987 A.2d 821 (Pa.Super. 2009), appeal
denied, 608 Pa. 620 (Pa. 2010) (unpublished memorandum at 1-4).
On September 11, 2007, appellant proceeded to a jury trial alongside
his co-defendant, Ronald Bethea. Appellant was represented at trial by
Robert Gamburg, Esq. (hereinafter, “trial counsel”). Following a six-day
trial, appellant was found guilty of first-degree murder and possessing
instruments of crime (“PIC”).1 On November 26, 2007, appellant was
sentenced to a mandatory term of life imprisonment for the first-degree
murder conviction and a consecutive term of two-and-one-half to five years’
imprisonment for PIC.2 On December 5, 2007, appellant filed a
1
18 Pa.C.S.A. §§ 2502 and 907, respectively.
2
Appellant’s co-defendant, Robert Bethea, was found guilty of one count of
criminal conspiracy to commit third-degree murder and was subsequently
sentenced to 20 to 40 years’ imprisonment.
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post-sentence motion for a new trial arguing, inter alia, that the trial court
erred in instructing the jury on accomplice liability and criminal conspiracy.
(See post-sentence motion, 12/5/07 at ¶¶ 23-29.) On April 3, 2008,
appellant’s motion was denied by operation of law, pursuant to
Pa.R.Crim.P. 720(B)(3). Appellant filed a timely notice of appeal on April 25,
2008.
On October 20, 2009, a panel of this court affirmed appellant’s
judgment of sentence, and our supreme court denied allowance of appeal on
September 7, 2010. On April 29, 2011, appellant filed a timely pro se PCRA
petition, and Sondra Rodrigues, Esq. (“Attorney Rodrigues”) was appointed
to represent him. Attorney Rodrigues subsequently withdrew, and
Daniel Silverman, Esquire (“Attorney Silverman”) was appointed on June 12,
2013.
On September 30, 2013, Attorney Silverman filed an amended PCRA
petition on appellant’s behalf. The Commonwealth filed its motion to dismiss
appellant’s amended PCRA petition on January 2, 2014. On March 12, 2015,
the PCRA court provided appellant with notice, pursuant to
Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a
hearing. Thereafter, on May 12, 2015, the PCRA court dismissed appellant’s
petition without a hearing. This timely appeal followed on May 13, 2015.
The PCRA court did not order appellant to file a statement of errors
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complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Nonetheless,
appellant filed a Rule 1925(b) statement on May 13, 2015.
On appeal, appellant raises the following issues for our review:
1. Was trial counsel ineffective for failing to
object to the trial court’s incomprehensible and
error-filled instructions on how the jury could
find liability for first-degree murder?
2. Was trial counsel ineffective for failing to
object to the trial court’s repeated instructions
explicitly prohibiting the jury from considering
the fact that the Commonwealth never
presented the testimony of critical witness
Donzell White?
3. Was trial counsel ineffective for failing to
(a) object to the prosecutor’s closing
statement when he repeatedly argued that
[a]ppellant’s prior threats of violence,
introduced for a limited purpose, showed
[a]ppellant’s propensity for violence and that
the jury should convict [a]ppellant because his
other crimes proved he is a violent man
generally who is prone to killing[,] and
(b) request the required cautionary
instruction?
4. Was trial counsel ineffective for failing to
object to the prosecutor’s abject vouching
when explaining, without any supporting
evidence, why the Commonwealth did not
charge Commonwealth witness Chaka Jenkins?
Appellant’s brief at 3-4.3
3
Appellant was represented by different counsel on direct appeal, and
although allegations of layered ineffectiveness is generally required, the
failure to object to various alleged trial errors would be subject to waiver on
direct appeal.
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Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth. v. Soto, 2015
WL 8551090, at *3 (Pa.Super. 2015) (citation omitted). In order to be
eligible for PCRA relief, a defendant must plead and prove by a
preponderance of the evidence that his conviction or sentence arose from
one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further,
these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3).
Where the PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as is the case here, we review the PCRA court’s decision
for an abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595,
604 (Pa. 2013), cert. denied, U.S. , 135 S.Ct. 56 (2014) (citation
omitted). Moreover,
the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous
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and has no support either in the record or other
evidence. It is the responsibility of the reviewing
court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it
in order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal
citations omitted).
Instantly, all four of appellant’s claims challenge the effectiveness of
his trial counsel. To prevail on a claim of ineffective assistance of counsel
under the PCRA, a petitioner must plead and prove by a preponderance of
the evidence that counsel’s ineffectiveness “so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a
petitioner must establish the following three factors:
first the underlying claim has arguable merit;
second, that counsel had no reasonable basis for his
action or inaction; and third, that Appellant was
prejudiced.
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014),
appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted). “A petitioner
establishes prejudice when he demonstrates that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Commonwealth v. Johnson, 966
A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks omitted).
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“[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d
487 (Pa. 2011) (citation omitted). Additionally, we note that counsel cannot
be found ineffective for failing to raise a claim that is devoid of merit. See,
e.g., Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
In his first issue, appellant contends that his trial counsel was
ineffective in failing to object to the trial court’s “incomprehensible” jury
instruction on accomplice liability for first-degree murder. (Appellant’s brief
at 9-10, 14-19.) Appellant further argues that this erroneous instruction
permitted “the jury to infer the intent to kill on the part of the accomplice
merely because the shooter used a deadly weapon on a vital part of the
decedent’s body.” (Id. at 12.) We disagree.
Preliminarily, we note that,
when evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is
there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (citations and bracket omitted).
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Here, the record reflects that during appellant’s trial, the trial court
instructed the jury at great length on the concept of accomplice liability as it
relates to first-degree murder and later clarified its instructions to the jury. 4
(See notes of testimony, 9/18/07 at 24-28, 32-34, 39-44, 64-65, 94-100.)
On direct appeal, a panel of this court reviewed appellant’s challenge to the
accomplice liability instruction and concluded that it was entirely proper.
See Commonwealth v. Oliphant, 987 A.2d 821 (Pa.Super. 2009), appeal
denied, 608 Pa. 620 (Pa. 2010) (unpublished memorandum at 7-8).
In reaching this decision, this court reasoned that,
[w]ith respect to the accomplice liability
instruction, the record makes clear [a]ppellant
was the principal shooter in the crime. The
jury instructions as a whole make clear the
[trial] court’s discussion of accomplice liability
expressly referred to [appellant’s
co-defendant, Ronald] Bethea. Moreover, the
jury convicted [a]ppellant as the principal and not as
an accomplice. Thus, the jury instructions did not
prejudice [a]ppellant, and his issue merits no relief.
Id. (citation omitted; emphasis added).
Upon review, we agree that the trial court’s jury instructions, when
read as a whole, clearly and accurately conveyed the applicable law with
respect to accomplice liability and first-degree murder. Contrary to
appellant’s assertions, the trial court’s instructions did not “authoriz[e] the
4
Although the accomplice liability charge was addressed on direct appeal, to
the extent that appellant’s claim differs to some degree from that previously
addressed by this court, we will review the claim.
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jury to find [a]ppellant guilty either as the principal or an accomplice.”
(Appellant’s brief at 12.) Accordingly, as there was no basis for trial counsel
to object, appellant’s ineffectiveness claim must fail. See Commonwealth
v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003), appeal denied, 28 A.2d
350 (Pa. 2003) (stating, “it is axiomatic that . . . counsel will not be
considered ineffective for failing to pursue meritless claims.”);
Commonwealth v. Clark, 961 A.2d 80, 93 (Pa. 2008), cert. denied, 558
U.S. 1082 (2009) (holding that trial counsel cannot be ineffective for failing
to raise a claim that is without merit).
Appellant further argues, albeit parenthetically, that his appellate
counsel was also ineffective in failing to preserve this claim on direct appeal.
(Appellant’s brief at 19-20.) As noted, however, appellant has failed to
adequately demonstrate that his claim of trial counsel’s purported
ineffectiveness was of arguable merit, and thus, it logically follows that
appellate counsel cannot be deemed to be ineffective in this regard. Our
supreme court has recognized that “a determination that [] trial counsel . . .
rendered ineffective assistance is a prerequisite to finding that [any
subsequent counsel] . . . was ineffective.” See Commonwealth v. McGill,
832 A.2d 1014, 1024-1025 (Pa. 2003).
In his second issue, appellant argues that his trial counsel was
ineffective in failing to object to the trial court’s instruction to the jury that it
should not infer anything from the fact that the Commonwealth never called
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Donzell White to testify at trial. (Appellant’s brief at 21.) Appellant avers
that the trial court’s instructions prevented the jury from considering the
possibility that “[Donzell] White was the real shooter” and that his absence
could be used in “its assessment of the Commonwealth’s case[.]” (Id. at
22-23.) We disagree.5
The record reflects that Donzell White testified at the preliminary
hearing that he was in a vehicle with appellant and co-defendant,
Ronald Bethea, the evening of the shooting and provided statements
implicating appellant in the crime. At trial, the Commonwealth elected not
to call Donzell White as a witness and made him available to appellant.
(Notes of testimony, 9/14/07 at 15.) Appellant’s counsel indicated that
calling Donzell White would prove adverse to appellant’s case and made the
strategic decision not to call him as a witness. Specifically, appellant’s
counsel stated as follows:
I was not suggesting to call [Donzell White]. I
wasn’t intending to call him. It would be a suicide
mission. They would put me in the hall of shame if I
called him.
Id. at 16.
Thereafter, during deliberation, the jury inquired if they were
permitted to infer that Donzell White was granted immunity by the fact that
5
To the extent that appellant suggests that an adverse inference instruction
should have been given, the Commonwealth is correct that such an
instruction is not applicable if the witness is available to both sides.
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he was not charged with any crime and did not testify. (Notes of testimony,
9/18/07 at 109, 124-125.) The jury also inquired as to whether it could
infer anything from Donzell White’s absence in regard to reasonable doubt.
(Id.) Following argument by counsel, the trial court instructed the jury at
length that it must not to infer anything from the fact that White did not
testify.
There has been no evidence whatsoever other
than a question put forth about immunity. So there
is no evidence in this trial concerning immunity as it
related to Donzell White.
The fact that Donzell White did not appear here
and give testimony is of no moment. In fact, Donzell
White was a person who was available to be called
as a witness by the prosecution and by either of the
defendants. He was not called, as were a lot of
people who may have been involved in this particular
case who were not called. And just like those other
people who were not listed on that long, lengthy list,
you did not hear any evidence about anything
related to Donzell White as it relates to immunity or
certain other issues.
There was evidence about Donzell White. And
I am not telling you [that] you have to exclude that,
because, clearly, there was evidence about his
presence and other matters. You will recall all of the
evidence that was admissible and admitted with
respect to Donzell White.
I am telling you, you must disregard totally in
carrying out your deliberations on any verdict on any
charge anything pertaining to immunity as it related
to Donzell White or from the fact that he did not
testify here at this trial.
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And the second part of the question is: Can
we infer anything from [Donzell White’s] absence in
regard to reasonable doubt?
I am going to answer that simply the same
way I answered, that all of those other witnesses
whose names I read out and they were not called as
witnesses and did not give testimony -- there was
perhaps some references or testimony to them, but
you are not similarly able to infer anything because
they were not called to testify at trial.
Same thing with Donzell White. It is not
evidence except insofar as you heard the testimony
with respect to Donzell White that was admitted.
Okay?
Id. at 125-127.
Upon review, we conclude that appellant’s trial counsel had a
reasonable basis not to object to the trial court’s instruction, as the jury was
fully aware that Donzell White was available to be called by the defense, and
his absence at trial did not affect the jury’s ability to speculate that he was
the shooter. As noted, appellant’s trial counsel declined to call Donzell White
at trial, recognizing that his identification of appellant as the shooter would
have certainly damaged “[t]he defense theory that White and not [a]ppellant
was the shooter.” (Appellant’s brief at 23.)
[Our Supreme] Court has recognized that counsel
are not constitutionally required to forward any and
all possible objections at trial, and the decision of
when to interrupt oftentimes is a function of overall
defense strategy being brought to bear upon issues
which arise unexpectedly at trial and require
split-second decision-making by counsel.
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Charleston, 94 A.3d at 1020 (citation omitted). “[W]here matters of
strategy and tactics are concerned, counsel’s assistance is deemed
constitutionally effective if he chose a particular course that had some
reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008),
appeal denied, 964 A.2d 894 (Pa. 2009) (citations omitted). Based on the
foregoing, we conclude that appellant is not entitled to relief on this
ineffectiveness claim. See Commonwealth v. Williams, 899 A.2d 1060,
1064 (Pa. 2006) (stating, “[i]f counsel’s chosen course had some reasonable
basis, the inquiry ends and counsel’s assistance is deemed effective.”).
Appellant next argues that his trial counsel was ineffective in failing to
challenge various comments the prosecutor made during his closing
argument that referenced “[a]pellant’s prior threats of violence” towards
Chaka Jenkins. (Appellant’s brief at 25.)
At trial, Assistant District Attorney Jude Conroy (“ADA Conroy”)
questioned Chaka Jenkins with regards to a statement she gave to police
that indicated that she “was afraid” of appellant because he had previously
threatened to kill her if she ever cheated on co-defendant Ronald Bethea,
her boyfriend at the time. (See notes of testimony, 9/12/07 at 276-277.)
Jenkins was uncooperative on the stand and testified that she did not recall
the details of the murder or giving said statement to police. (Id.) The
Commonwealth also elicited testimony from Detective Levi Morton, who
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indicated that he spoke to Chaka Jenkins a couple months after the murder
and that she had expressed similar concerns. (Notes of testimony, 9/17/07
at 52-53.)
Thereafter, ADA Conroy referenced this testimony during his closing
statement, arguing to the jury that Chaka Jenkins was unwilling to implicate
appellant and co-defendant Ronald Bethea at trial because she feared them.
Specifically, ADA Conroy made the following comments which appellant now
challenges on appeal:
But you have to recognize, ladies and
gentlemen, as Detective Morton did when he spoke
to [Chaka Jenkins], it is not an easy thing to come
into a room and testify about a matter as violent and
brutal as the taking of [the victim’s] life without
being scared. She didn’t want to be here. She was
scared. And despite whatever attitudes she had on
the stand, it wasn’t an easy thing to come into this
courtroom, a public courtroom, and testify. So you
have to keep that in mind when you evaluate this
woman’s testimony.
But that doesn’t relieve the Commonwealth of
its obligation. I submit to you that you look at what
she said to Detective Morton; why she was scared;
that this man had two personalities, the defendant
Ronald Bethea. [Appellant] threatened to kill her if
she cheated on Ronald Bethea.
Do you think that’s a stretch? Do you think
maybe they really said this, now that you’ve had a
chance to see their handy work [sic]? (indicating)
Do you think that’s really a stretch to keep
your mouth shut? Do you think it is really a stretch
what they did to [the victim], walking down the
street going to get Chinese food? Do you really think
it is a stretch?
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Id. at 227-229.
Appellant argues that the prosecutor’s reference to this testimony
constituted prosecutorial misconduct and his trial counsel’s failure to object
on this basis entitles him to a new trial. (Appellant’s brief at 25-26, 31-32.)
Appellant further avers that, “this evidence was only admissible . . . to
explain why Jenkins was reluctant to implicate [a]ppellant,” and that his trial
counsel, at the very least, should have requested a cautionary instruction
that the jury should only consider it for that limited purpose. (Id. at 25-26.)
We disagree.
“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), appeal denied, 928 A.2d
1289 (Pa. 2007) (citations omitted). Not every unwise remark on a
prosecutor’s part, however, constitutes reversible error. Id. “Prosecutorial
misconduct occurs when the effect of the prosecutor’s comments would be
to prejudice the trier of fact, forming in its mind fixed bias and hostility
toward the defendant so that it could not weigh the evidence objectively and
render a true verdict.” Commonwealth v. Duffy, 832 A.2d 1132, 1137
(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).
Counsels’ remarks to the jury may contain fair
deductions and legitimate inferences from the
evidence presented during the testimony. The
prosecutor may always argue to the jury that the
evidence establishes the defendant’s guilt, although
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a prosecutor may not offer his personal opinion as to
the guilt of the accused either in argument or in
testimony from the witness stand. Nor may he or
she express a personal belief and opinion as to the
truth or falsity of evidence of defendant’s guilt,
including the credibility of a witness.
Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal
denied, 788 A.2d 372 (Pa. 2001).
Following our careful review, we conclude that ADA Conroy’s
comments, when read as a whole, did not warrant that a new trial be
granted or that a specific cautionary instruction be given to the jury. “[A]
prosecutor is permitted fairly wide latitude in advocating for the
Commonwealth, including the right to argue all fair conclusions from the
evidence, to respond to defense arguments, and to engage in a certain
degree of oratorical flair.” Harris, 884 A.2d at 931. All such comments
must be reviewed in the context in which they were made.
Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005). Moreover,
we note that,
a trial court should not instruct the jury on legal
principles which have no application to the facts
presented at trial. Rather, there must be some
relationship between the evidence presented and the
law upon which an instruction is requested.
Commonwealth v. Taylor, 876 A.2d 916, 925-926 (Pa. 2005) (citations
and internal quotation marks omitted).
Here, the record reflects that ADA Conroy’s comments were properly
made in response to defense counsel’s argument as to why Chaka Jenkins
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was not a credible witness. Specifically, during his summation,
Attorney Gamburg made the following argument to the jury:
[Chaka Jenkins] is not afraid of [appellant].
[Appellant] means nothing to her. She doesn’t even
remember how long she knew him. She knew him
from [Ronald] Bethea. She doesn’t mean a thing to
[appellant].
....
Chaka Jenkins is not worthy of any belief . . . She
lied in front of you. And she talked her way out of a
murder case.
Notes of testimony, 9/17/07 at 183, 185.
The record further reflects that ADA Conroy’s comments were made
with a permissible degree of oratorical flair and were not the kind of
comments that would cause the jury to form a fixed bias or hostility towards
appellant and prevent it from properly weighing the evidence and rendering
a fair and impartial verdict. Accordingly, appellant’s trial counsel had no
basis upon which to object or request a cautionary instruction, and
appellant’s underlying ineffectiveness claim must fail. See Rivera, 816 A.2d
at 292 (stating, “it is axiomatic that . . . counsel will not be considered
ineffective for failing to pursue meritless claims.”).
Lastly, appellant argues his trial counsel was ineffective in failing to
object to the prosecutor’s closing argument on the basis that it improperly
vouched for Commonwealth witness Chaka Jenkins and attempted to bolster
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her credibility. (Appellant’s brief at 32, 38.) Specifically, appellant
challenges the following comments made by ADA Conroy:
Do you really believe in your heart of hearts
that Chaka Jenkins was the mastermind behind this?
You have to look at their involvement and what they
were given, their corroboration [and] what deal I
gave them for their cooperation.
Did she seem like a cooperative witness to me?
Did she appear to be a cooperative witness to the
Commonwealth? Are you kidding me? It was like
pulling teeth. I thought I went to law school, not
dental school. I was extracting evidence from her.
This is what I am talking about. Apply your
common sense. Is she cooperative? Is she in my
pocket? Whose pocket is she in? Who is controlling
her? Who has the influence over her?
Now, see, that’s common sense. Apply what
they said. Listen to what they said and how they
said it and what I gave her.
It is true. She wasn’t charged with an offense.
If you want to hold that against me, you write a
letter to Lynne Abraham and say, “Mr. Conroy is not
doing his job. He is not charging everyone involved
here.”
Ladies and gentlemen, they all shared a
responsibility in the death of [the victim]. They all
should be charged. But we need witnesses. We
need people to come in and tell us what to do, what
happened, what the facts are. We can’t charge
everyone. And to that extent, you hold that against
me. Really, complain if you think it is inappropriate.
But we have to make tough calls about who should
be charged and who shouldn’t.
And we have to look at all the evidence, to the
totality of the circumstances.
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And you apply your common sense to what
you heard in this courtroom. Do you really in the
heart of your hearts think she was the quarterback,
the Peyton Manning or the Donovan McNabb of this
team?
Notes of testimony, 9/17/07 at 216-217.
“Improper bolstering or vouching for a government witness occurs
where the prosecutor assures the jury that the witness is credible, and such
assurance is based on either the prosecutor’s personal knowledge or other
information not contained in the record.” Commonwealth v. Chmiel, 30
A.3d 1111, 1180 (Pa. 2011) (citation omitted).
The prosecution may not inject a highly prejudicial
personal opinion of [an] appellant’s credibility into
evidence, thereby clearly and improperly intruding
upon the jury’s exclusive function of evaluating the
credibility of witnesses. However, as long as a
prosecutor does not assert his personal opinions, he
or she may, within reasonable limits, comment on
the credibility of a Commonwealth witness. This is
especially true when the credibility of the witness
has been previously attacked by the defense. This
stems from the general principle that the prosecutor
is permitted to respond to the arguments of the
defense and is free to present his or her case with
logical force and vigor.
Commonwealth v. Tedford, 960 A.2d 1, 31-32 (Pa. 2008) (citations and
internal quotation marks omitted).
Instantly, our review of the record reveals that appellant’s trial counsel
had no reasonable basis to object to ADA Conroy’s comments. The record
reflects that ADA Conroy did not improperly vouch for the credibility of
Chaka Jenkins, nor inject a personal opinion on her particular credibility.
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Rather, it is apparent from our review of the record that ADA Conroy’s
comments were made in response to a suggestion by Attorney Brian J.
McMonagle, co-defendant Bethea’s trial counsel, that it was improper that
Chaka Jenkins was not charged by the Commonwealth in this case. (See
notes of testimony, 9/17/07 at 193-194.) As discussed, “a prosecutor is
permitted fairly wide latitude in advocating for the Commonwealth, including
the right . . . to respond to defense arguments. . . .” Harris, 884 A.2d at
931. Accordingly, appellant’s trial counsel was not ineffective for failing to
object on the basis of this meritless vouching claim. See Rivera, 816 A.2d
at 292 (stating, “it is axiomatic that . . . counsel will not be considered
ineffective for failing to pursue meritless claims.”).
For all the foregoing reasons, we affirm the May 12, 2015 order of the
PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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