J-S08036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAVONN ERIC CLANCY :
:
Appellant : No. 1037 WDA 2016
Appeal from the PCRA Order June 16, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001902-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, Javonn Eric Clancy, appeals from the order entered in the
Beaver County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
A prior decision of this Court sets forth the relevant facts of this appeal
as follows:
[O]n July 30, 2012, [Appellant] and Dyquane Norman as
well as several other witnesses to this incident were
present at the Linmar Terrace community center…. Upon
leaving the community center, [Appellant], Norman, and
several other individuals walked to the 300 block of Linmar
Terrace to relax. Approximately 15 to 20 minutes later,
[Marquay Lavar] Riggins [(“Victim”)] arrived at Linmar
Terrace…. [Victim] approached Norman with the intention
of discussing and settling a dispute involving an alleged
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1
42 Pa.C.S.A. §§ 9541-9546.
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robbery of [Victim’s] cousin by Norman’s and [Appellant’s]
friend, Damontae Williams.
While they were resolving their dispute, [Appellant]
approached [Victim] and Norman, cut between them, and
began to insult [Victim. Victim] responded to [Appellant’s]
insults by approaching him and asking him what the
problem was. At that point, [Appellant] punched [Victim],
and [Victim] knocked [Appellant] to the ground and began
hitting him. After grappling with [Appellant] on the ground
for several seconds, [Victim] was pulled off of [Appellant]
by Norman, Devay Owens, and Tyquale Owens. Once
[Appellant] and [Victim] were separated, [Appellant]
pulled a gun from his clothing and fired multiple shots at
[Victim. Victim] attempted to run from [Appellant] but
was shot three times in the back. [Victim] collapsed in the
street nearby, and [Appellant] fled the scene. After fleeing
Linmar Terrace, [Appellant] was seen running into a
nearby wooded area and in downtown Aliquippa. Once
[Victim] collapsed, Norman and Devay Owens called 911,
and the fire department and medic rescue arrived to
render assistance to [Victim]. Ultimately, however,
[Victim] died as a result of the gunshot wounds.
On that same date of July 30, 2012, Detective Sergeant
Steve Roberts of the Aliquippa Police Department issued a
“be on the lookout” alert for [Appellant] and obtained a
warrant for his arrest. Despite attempts to secure
[Appellant’s] arrest, [Appellant] continued to avoid
apprehension until September 4, 2012, when [he] turned
himself in to authorities….
Commonwealth v. Clancy, No. 1594 WDA 2013, unpublished
memorandum at 1 (Pa.Super. filed Aug. 29, 2014), appeal denied, 631 Pa.
723, 112 A.3d 649 (2015) (quoting Trial Court Opinion, filed Aug. 28, 2013,
at 4-5). The prior trial court opinion also provides:
Between the date of the shooting and the date [Appellant]
surrendered to law enforcement, [Appellant] remained in
contact with Norman through Facebook. During that time,
[Appellant] utilized the Facebook username of “Snitch-Free
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Jay” and made several comments to Norman regarding the
shooting….
(Id. at 5-6). The Commonwealth charged Appellant with first-degree
murder and firearms not to be carried without a license.2 Appellant
proceeded to a jury trial on April 8, 2013.
At trial, Dyquane Norman testified that he argued with Appellant on
Facebook after the shooting:
[COMMONWEALTH]: Did you have any contact with
him after this incident?
[MR. NORMAN]: Yeah, we got into it on Facebook
through messages.
[COMMONWEALTH]: And what was, and what is his
Facebook page?
[MR. NORMAN]: I think it was, no, I know it was
Snitch-Free-Jay.
[COMMONWEALTH]: Snitch-Free-Jay. What does
“snitch free” mean?
[MR. NORMAN]: That he’s not a snitch, I guess.
[COMMONWEALTH]: What does being a snitch mean?
[MR. NORMAN]: Telling on somebody.
[COMMONWEALTH]: Is that sort of the mentality in
Linmar?
[MR. NORMAN]: Yeah, basically, yeah.
(N.T. Trial, 4/10/13, at 121). Detective Roberts also testified about the
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2
18 Pa.C.S.A. §§ 2502(a) and 6106(a)(1), respectively.
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“snitch free” outlook in Linmar:
[COMMONWEALTH]: What does “snitch free” mean to
you?
[DET. ROBERTS]: It means that you won’t rat, you
won’t tell about things, you won’t tell the police about
things that happen, crimes that happen within the
community that you might have witnessed or have
information on.
[COMMONWEALTH]: How long have you been an
officer in the City of Aliquippa?
[DET. ROBERTS]: 15 years.
[COMMONWEALTH]: Have you encountered this type
of attitude?
[DET. ROBERTS]: Yes, multiple times.
[COMMONWEALTH]: And is it an attitude that you
would say is prevalent in Aliquippa?
[DET. ROBERTS]: Yes, it is.
[COMMONWEALTH]: How about in Linmar Terrace?
[DET. ROBERTS]: Yes, it’s very prevalent in
Linmar Terrace?
(N.T. Trial, 4/11/13, at 33).
The Commonwealth also questioned Appellant about his Facebook
profile name:
[COMMONWEALTH]: Snitch-Free-Jay, that’s you;
right?
[APPELLANT]: Yes.
[COMMONWEALTH]: What does “snitch free” mean?
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[APPELLANT]: Just a, just a name I put, sir.
[COMMONWEALTH]: I’m sorry?
[APPELLANT]: It’s just a name I put, sir.
[COMMONWEALTH]: What does to be “snitch free”
mean?
[APPELLANT]: It means not to snitch.
[COMMONWEALTH]: Not to snitch, not to tell people
or go to the police and tell on your friends; right?
[APPELLANT]: I mean I guess, yes.
(Id. at 133-34). The Commonwealth then asked Appellant about the
murder weapon:
[COMMONWEALTH]: How long did you possess that
gun?
[APPELLANT]: I had it for, like, a week.
[COMMONWEALTH]: You only had it a week?
[APPELLANT]: Yeah.
[COMMONWEALTH]: Where did you get it from?
[DEFENSE COUNSEL]: Objection to relevance, Your
Honor. It’s not─
THE COURT: Side bar.
(WHEREUPON, the following proceedings were had at side
bar:)
THE COURT: All right. State your objection.
[DEFENSE COUNSEL]: Your Honor, he is trying to
prove a possessory offense of a firearm. He’s not charged
with received it or stealing it or anything along those lines.
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It’s beyond the scope and is irrelevant to these
proceedings.
[COMMONWEALTH]: Your Honor, the theory of this
case is that he is a snitch-free person. There is a lot of his
testimony that he skipped. He has been on the lam for
over a month. I plan to ask him everything, what friends,
how did he get to Pittsburgh.
THE COURT: This is a whole different from
his objection.
[COMMONWEALTH]: It goes─
THE COURT: His objection is you are asking
where he got the gun, and he objected and says it’s not
relevant. He is not on trial for receiving stolen property.
The only charge he is on is firearms not be carried without
a license. Now, if you are going to tell me how where he
got it at is relevant, I will listen. If not, I will sustain the
objection.
[COMMONWEALTH]: It is. It goes to the relevancy of
his character, Judge, that he is that snitch-free, and he’s
not going to rat out his friends.
THE COURT: It has nothing to do with how he
got the gun and if it does, I have to balance the probative
value versus the prejudicial value. Sustained.
[COMMONWEALTH]: Thank you.
(WHEREUPON, the side bar proceedings were concluded,
and thereafter the following proceedings were had in open
[c]ourt:)
THE COURT: I sustained the objection.
(Id. at 137-39). The Commonwealth also questioned Appellant about his
flight after the shooting:
[COMMONWEALTH]: And then you went to
Pittsburgh?
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[APPELLANT]: Yes.
[COMMONWEALTH]: How do you get to Pittsburgh?
[APPELLANT]: I got a ride.
[COMMONWEALTH]: A ride by whom?
[APPELLANT]: A friend of mine.
[COMMONWEALTH]: Who’s that friend?
[APPELLANT]: Just a friend.
[COMMONWEALTH]: Who’s that friend?
[APPELLANT]: It was just a friend of mine, sir.
[COMMONWEALTH]: You’re Snitch-Free-Jay you don’t
rat; right?
[APPELLANT]: I said it was just a friend, sir.
[COMMONWEALTH]: Who’s that friend?
[APPELLANT]: It was just a friend of mine.
[COMMONWEALTH]: Tell me who that friend is.
[DEFENSE COUNSEL]: Asked and answered, Your
Honor. At this point he is badgering the witness.
[COMMONWEALTH]: Your Honor, he is refusing to
answer the question.
THE COURT: He said a friend.
[COMMONWEALTH]: What friend?
[APPELLANT]: A friend, sir.
[COMMONWEALTH]: Where does this friend live?
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[APPELLANT]: It was just a friend of mine, sir.
[COMMONWEALTH]: Snitch-Free-Jay; right?
[APPELLANT]: If that’s what you want to call
me, sir.
[COMMONWEALTH]: You go to Pittsburgh. Where at
in Pittsburgh?
[APPELLANT]: I went to a friend of mine’s
house in Pittsburgh, sir.
[COMMONWEALTH]: Do you know the name of that
friend?
[APPELLANT]: It was just a friend, sir.
[COMMONWEALTH]: Snitch-Free-Jay.
[APPELLANT]: That’s what you call me, sir.
[COMMONWEALTH]: Is that where you stay?
[APPELLANT]: Where?
[COMMONWEALTH]: That unnamed, unknown friend
in Pittsburgh?
[APPELLANT]: Yes, sir.
[COMMONWEALTH]: What part of Pittsburgh?
[APPELLANT]: It’s just on the North Side, sir.
[COMMONWEALTH]: What’s the address?
[APPELLANT]: I don’t know─
[DEFENSE COUNSEL]: I would object─
* * *
[DEFENSE COUNSEL]: I would object to relevance,
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Your Honor.
[COMMONWEALTH]: Your Honor, I have a right to
know where he went.
THE COURT: Side bar.
(WHEREUPON, the following proceedings were had at side
bar:)
THE COURT: Okay. Let’s hear your
objections.
[DEFENSE COUNSEL]: Your Honor, I am going to
object as to relevance at this point. It’s more than clear
that [Appellant] left the scene and was gone for over a
month. The Commonwealth is going to get the flight to
avoid apprehension charge to the jury.
To get into the details, there is no relevancy to it, because
he is not charged with any other offense relating to that
conduct. The fact that he was gone for a month is enough.
THE COURT: I can’t hear you.
[DEFENSE COUNSEL]: The fact that he was gone is
enough. Where he went and what he did isn’t relevant,
because he is not charged with one of those offenses. At
this point, the purpose of the question is to badger the
witness.
THE COURT: Okay. Your response.
[COMMONWEALTH]: Your Honor, there is testimony
that while he is away he is still making contact with
Dyquane Norman. Obviously this goes to his “snitch free”
attitude. This is very relevant. He is on the lam for a
month.
THE COURT: The standard for relevancy is
does it have a tendency to prove a relevant point.
[COMMONWEALTH]: It goes to his─
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THE COURT: So, it’s basically materiality and
also the relationship. Now, in this particular case the fact
the he fled after the fact has a potential relevancy to the
Commonwealth in regard to consciousness of guilt for
flight.
Now, the Commonwealth can ask him where he went. You
can ask him several times where he went. If he just says
friends, but at a certain point, Mr. Quinn, he is not going to
say, and now it’s becoming redundant, so you can ask
your questions. But if he says, a friend and you ask who is
the friend and he says a friend again, then it’s time to
move on.
[COMMONWEALTH]: And then before it was objected
to I asked the address, so I am moving on with a different
question.
THE COURT: I understand that, but, you
know, it becomes cumulative. I can sustain his objection
that way, but I am going to let you have latitude, because
it is relevant in regards to consciousness of guilt, Mr.─ so I
am going to overrule the objection, but ask you to keep it
within reason. If it becomes cumulative, well, he can
renew his objection.
MR. QUINN: Yes, Your Honor.
(WHEREUPON, the side bar proceedings were concluded
and thereafter the following proceedings were had in open
[c]ourt:)
THE COURT: All right. I have overruled the
objection.
(Id. at 150-55).
On April 12, 2013, the jury convicted Appellant of first-degree murder
and carrying a firearm without a license. The court sentenced Appellant on
May 29, 2013, to life imprisonment on the murder conviction, with a
concurrent term of 2 to 7 years’ imprisonment on the firearms conviction.
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On Monday, June 10, 2013, Appellant timely filed post-sentence motions,
which the court denied on August 28, 2013. This Court affirmed the
judgment of sentence on August 29, 2014, and our Supreme Court denied
allowance of appeal on March 9, 2015.
Appellant filed his first PCRA petition on August 13, 2015, and the
PCRA court appointed counsel. On November 17, 2015, Appellant filed an
amended PCRA petition. Following a hearing, the PCRA court denied
Appellant’s petition on June 16, 2016. On July 15, 2016, Appellant filed a
timely notice of appeal. That same day, the PCRA court ordered Appellant to
file a concise statement of matters complained of on appeal, pursuant to
Pa.R.A.P. 1925(b); Appellant timely complied on August 5, 2016.
Appellant raises two issues for our review:
WHERE THE COMMENTS OF THE PROSECUTING ATTORNEY
IN CLOSING ARGUMENT AND THE TESTIMONY ELICITED
BY THE COMMONWEALTH CREATED A SITUATION WHERE
THE UNAVOIDABLE EFFECT OF SUCH COMMENTS WAS TO
PREJUDICE THE JURY, FORMING IN THEIR MINDS FIXED
BIAS AND HOSTILITY TOWARDS [APPELLANT] SO THAT
THEY COULD NOT WEIGH THE EVIDENCE OBJECTIVELY
AND RENDER A TRUE VERDICT, WAS TRIAL COUNSEL
INEFFECTIVE FOR FAILING TO OBJECT TO THOSE
STATEMENTS AND EVIDENCE?
UNDER CIRCUMSTANCES WHERE THE TRIAL JUDGE
CLEARLY STATED THAT THE FACEBOOK ACCOUNT NAME
OF “SNITCH-FREE-JAY” COULD BE USED FOR A LIMITED
PURPOSE AND WHERE THE PROSECUTOR EXCEEDED THE
SCOPE OF THE USE OF THE ACCOUNT NAME BY USING
THAT NAME IN SUCH A WAY THAT TRIAL COUNSEL
CONCEDED WAS “HURTFUL TO MY CLIENT’S CASE,”
“ABSOLUTELY DAMAGING” TO HIS CLIENT’S STRATEGY TO
PURSUE A MANSLAUGHTER VERDICT, AND THE KIND OF
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“LABEL” THAT WEARS AWAY AT THE MANSLAUGHTER
DEFENSE THAT HE WAS TRYING TO BUILD UP FOR HIS
CLIENT, WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING
TO OBJECT TO EXPANDED USE OF THE “SNITCH-FREE-
JAY” TESTIMONY?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record supports the court’s determination and
whether the court’s decision is free of legal error. Commonwealth v. Ford,
947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319
(2008). This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings. Commonwealth v.
Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
“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, 593 Pa. 726,
928 A.2d 1289 (2007).
In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a
perfect one.
Not every unwise remark on a prosecutor’s part constitutes
reversible error. Indeed, the test is a relatively stringent
one. Generally speaking, a prosecutor’s comments do not
constitute reversible error unless the unavoidable effect of
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such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility toward [the defendant]
so that they could not weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct, however,
will not be found where comments were based on evidence
or proper inferences therefrom or were only oratorical flair.
In order to evaluate whether comments were improper, we
must look to the context in which they were made.
Finally, when a trial court finds that a prosecutor’s
comments were inappropriate, they may be appropriately
cured by a cautionary instruction to the jury.
Id. at 927 (quoting Commonwealth v. DeJesus, 567 Pa. 415, 438, 787
A.2d 394, 407-08 (2001), cert. denied, 537 U.S. 1028, 123 S.Ct. 580, 154
L.Ed.2d 441 (2002)). “[A] new trial is required only when a prosecutor’s
improper remarks are prejudicial, i.e., when they are of such a nature or
delivered in such a manner that they may reasonably be said to have
deprived the defendant of a fair and impartial trial.” Commonwealth v.
Davis, 554 A.2d 104, 111 (Pa.Super. 1989), appeal denied, 524 Pa. 617,
571 A.2d 380 (1989).
“A prosecutor has great discretion during closing argument. Indeed,
closing ‘argument’ is just that: argument.” Commonwealth v. Brown, 911
A.2d 576, 580 (Pa.Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830
(2007). Settled Pennsylvania law states, “[T]he prosecutor may fairly
respond to points made in the defense closing. Moreover, prosecutorial
misconduct will not be found where comments were based on the evidence
or proper inferences therefrom….” Commonwealth v. Hogentogler, 53
A.3d 866, 878 (Pa.Super. 2012) (quoting Commonwealth v. Judy, 978
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A.2d 1015, 1019-20 (Pa.Super. 2009)).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel, 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. Commonwealth v. Turetsky, 925 A.2d 876, 880
(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The
petitioner must demonstrate: (1) the underlying claim has arguable merit;
(2) counsel lacked a reasonable strategic basis for his action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Id. “The petitioner bears the burden of proving all three prongs of the test.”
Id. “Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the…test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs have been
met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797
(2008).
A defendant raising an ineffectiveness claim is required to show
counsel’s ineffectiveness was of such magnitude that it “could have
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reasonably had an adverse effect on the outcome of the proceedings.”
Commonwealth v. Pierce, 515 Pa. 153, 162, 527 A.2d 973, 977 (1987).
In other words, there must be a reasonable probability that, but for
counsel’s error, the outcome of the proceedings would have been different.
Commonwealth v. Cox, 581 Pa. 107, 125, 863 A.2d 536, 546 (2004). “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Commonwealth v. Chambers, 570 Pa. 3, 22, 807 A.2d
872, 883 (2002). “When it is clear the party asserting an ineffectiveness
claim has failed to meet the prejudice prong of the ineffectiveness test, the
claim may be dismissed on that basis alone, without a determination of
whether the first two prongs have been met.” Commonwealth v. Wright,
599 Pa. 270, 320-21, 961 A.2d 119, 148-49 (2008).
For purposes of disposition, we combine Appellant’s issues. Appellant
first argues trial counsel should have objected to several comments the
Commonwealth made in its closing argument. Appellant asserts the
Commonwealth referred to Appellant as cold, emotionless, “a dangerous
man,” “a killer,” and a “cold-blooded killer,” who committed “a cowardly
killing.” Appellant submits the Commonwealth’s reference to Appellant as a
cold-blooded killer was an expression of the prosecutor’s personal belief,
which constitutes prosecutorial misconduct under Commonwealth v.
Capalla, 322 Pa. 200, 185 A. 203 (1936). Appellant contends the
Commonwealth stated Appellant was disingenuous and lying in his pursuit of
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a voluntary manslaughter verdict. Appellant avers the Commonwealth also
noted Victim was unable to respond to attacks on Victim’s character at trial
as a result of Appellant’s conduct. Appellant maintains trial counsel was
ineffective for failing to object to these comments in the Commonwealth’s
closing argument as unduly prejudicial.
Appellant further argues trial counsel should have objected to the
Commonwealth’s use of Appellant’s Facebook profile name, Snitch-Free Jay,
which impugned Appellant’s character. Appellant contends the
Commonwealth used Appellant’s Facebook username to label Appellant as
“snitch free,” imply Appellant had something to hide, and depict Appellant’s
consciousness of guilt. Appellant submits the Commonwealth’s illustration of
him as “snitch free” eroded Appellant’s defense in pursuit of a voluntary
manslaughter verdict. Appellant maintains trial counsel was ineffective for
failing to object to the Commonwealth’s use of Appellant’s Facebook profile
name as unduly prejudicial character evidence. Appellant concludes this
Court should reverse and remand for a new trial. We disagree.
Instantly, concerning Appellant’s first claim, the PCRA court reasoned
the Commonwealth’s closing argument comments did not constitute
prosecutorial misconduct:
[S]uch statements must be considered in the context of
the evidence and the reasonable inferences from that
evidence. [Commonwealth] v. Chamberlain, 612 Pa.
107, 153, 30 A.3d 381 408 (2011)[, cert. denied, ___ U.S.
___, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012)]
([providing] prosecutor [was] free to argue that the
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defendant was a “murderer” where inferences from the
evidence led to the conclusion that the defendant
murdered the victim in the case). … Further, the
prosecution is entitled to present an argument based upon
the evidentiary record “as to why the defense theory [is]
not worthy of belief.” [Commonwealth] v. Cooper, 596
Pa. 119, 142, 941 A.2d 655, 669 (2007).
* * *
[Appellant] admittedly shot and killed [Victim] in this case.
His defense was that he should be convicted of voluntary
manslaughter rather than first-degree murder. The
Commonwealth’s statement [regarding Victim’s
unavailability at trial] was thus merely a statement of the
undisputed evidence in this case that [Appellant] killed
[Victim], as well as a response to [Appellant]’s argument
and evidence about [Victim’s] alleged drug dealing.
Indeed, [t]he Pennsylvania Supreme Court has previously
found exactly the same “forever silenced” language to be
unobjectionable as being a legitimate argument by the
Commonwealth in a case of first-degree murder.
[Commonwealth] v. Hall, 549 Pa. 269, 287, 701 A.2d
190, 199 (1997)[, cert. denied, 532 U.S. 1082, 118 S.Ct.
1534, 140 L.Ed.2d 684 (1998)] ([stating]: “Here, the
‘forever silenced’ remark…was an attempt by the
prosecutor to explain to the jury the difficulty of proving
the intent to kill and that such intent must be inferred from
the facts and circumstances surrounding the killing since
the victim cannot testify”). The prosecution’s argument in
this statement was thus plainly unobjectionable.
* * *
In [Commonwealth v. Burno, 626 Pa. 30, 62, 94 A.3d
956, 975 (2014), cert. denied, ___ U.S. ___, 135 S.Ct.
1493, 191 L.Ed.2d 435 (2015)], the defendant objected to
the Commonwealth’s statement during closing argument
that “[t]he coward shot him while he was down on the
ground. I know that. Fact.” … In that case, the Supreme
Court held that the defendant’s argument did not even
meet the arguable merit prong of the [ineffective
assistance of counsel] test. …
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When viewed in context, we conclude the
prosecutor’s statement, suggesting [the defendant]
shot [Victim] while [Victim] was lying on the ground,
was a permissible appeal to the jury to make a
logical inference from the evidence adduced at trial
in support of the Commonwealth’s theory, which was
naturally opposed to the defense’s theory. The
statement was a fair comment based on the
evidence presented at trial….
[Burno, supra at 62, 94 A.3d at 975.] Similarly, the
prosecution’s argument in this case that the killing of the
victim was cowardly was likewise based upon the evidence
that [Appellant] shot the victim as [the victim] fled across
the street, and that [Appellant] should therefore be found
guilty of first-degree murder and not merely voluntary
manslaughter. Additionally, in calling [Appellant] a killer,
the assistant district attorney “did not merely label
Appellant a murderer.” [Chamberlain, supra, at 153],
30 A.3d at 408. “Rather,” as in Chamberlain, the
Commonwealth, “argued that the evidence and the
reasonable inferences therefrom led to the conclusion that
Appellant was a murderer. By asserting that the evidence
led to the conclusion that Appellant was guilty, the
prosecutor did not advocate his personal belief of
Appellant’s guilt.” Id.
With regard to the Commonwealth’s references to
[Appellant] being cold and collected, similar arguments
have also been held equally permissible. See, e.g., [Hall,
supra]. In Hall, a capital case, the prosecution offered
the following argument:
And I would like to end by stating that the only thing
colder than the grave of [the victim], is this guy’s
heart. The only thing colder, because he put him
there, and he made sure he was going there.
Because if he didn’t shoot the second time, we might
not be here. But he wanted to put him there the
first time, and the instinct saved him, and the
second time there was no instinct in the world that
could have saved him, because he intentionally shot
and killed him. And he walked out coolly, calmly,
and collected, with a .357 revolver waving at patrons
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in the store.
Id. at 289, 701 A.2d at 200. The defendant challenged
the remark as improper. The Supreme Court disagreed:
A distinguishing feature of first-degree murder is the
presence of malice which may be found from the
circumstances surrounding the murder. Malice can
be demonstrated by evidence of “wickedness of
disposition, hardness of heart, wanton conduct,
cruelty, recklessness of consequences and a mind
regardless of social duty.” Here, the prosecutor’s
comments were not made for the sole purpose of
inflaming the passion of the jury and impairing their
ability to render a fair verdict. Rather, the
prosecutor was recounting the evidence produced at
trial and how this evidence showed that appellant
killed the victim with the necessary malice for first-
degree murder. Therefore, we find that the
prosecutor’s reference to appellant’s “cold heart” was
proper argument since he was merely arguing a
reasonable inference which could be drawn from the
evidence.
Id. at 289-90, 701 A.2d at 200 (internal citation omitted).
As in Hall, …the Commonwealth’s argument was based
upon the evidence presented at trial, as demonstrated by
another portion of argument: “[COMMONWEALTH]:…He’s
so cool and collected, he stops at a store and gets water
after having just emptied his firearm, three shots in the
back of an unarmed man. Not only does he drink water.
He starts making phone calls.” [N.T. Trial, 4/12/13, at
42]. There is no material difference between this
argument and the Commonwealth’s permissible argument
in Hall, where the prosecution stated:
After he was laughing, joking, showing guns…he
went back to Philly, he went back to McDonald’s, he
ate, went home, and then he went to visit his
daughter. After he shot and killed a man, just went
about as in every other perfect normal day. That
tells you tons about his mind, what was in it.
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Hall[, supra] at 288, 701 A.2d at 200. Thus, the
Commonwealth’s argument, essentially that [Appellant]
had the required malice to be found guilty of first-degree
murder contrary to the argument at trial that he should be
found guilty only of manslaughter, was clearly
unobjectionable. Id.
[Appellant] cites…[Commonwealth] v. Capalla, 322 Pa.
200, 204, 185 A. 203, 205 (1936), in which the
Pennsylvania Supreme Court held that it was reversible
misconduct for a prosecutor to refer to the [d]efendant as
a “cold blooded killer.” This [c]ourt has devoted
substantial research to this issue, and has determined that
the last time this case was cited in a published decision
was in 1991, [Commonwealth] v. MacBride, …587 A.2d
792, 796-97 ([Pa.Super.] 1991),[appeal denied, 529 Pa.
618, 600 A.2d 534 (1991)]…. The last time it was cited by
the Pennsylvania Supreme Court was in 1987,
[Commonwealth] v. White, 515 Pa. 348, 352-53, 328
A.2d 596, 598-99 (1987)…. Thus, Capalla has not been
cited once for twenty-five years, and not with reference to
calling a defendant a “cold blooded killer” in over thirty
years.
More recent precedent, particularly Hall and
Chamberlain, …indicates that…referring to a defendant in
a murder trial as a “murderer” or “killer,” or a killing as
“cold blooded,” may be regarded as oratorical flare where
there is sufficient evidence to support the allegations that
the defendant killed the victim in the case. The context in
this case should be particularly noted. The sole issue
presented to the jury was whether [Appellant] was guilty
of voluntary manslaughter due to provocation or murder of
the first degree. [Appellant]’s trial counsel argued
strenuously and repeatedly that [Appellant] could only be
found guilty only of voluntary manslaughter. In this
context, the prosecutor’s reference to a “cold blooded”
killing could well be regarded by the lay person and jury
member as argument that the killing was not due to
provocation but rather a “willful, deliberate and
premeditated killing.” 18 Pa.C.S.A. § 2502; Merriam-
Webster, Merriam-Webster’s Collegiate Dictionary, 224
(10th ed. 1995) (defining “in cold blood” as “with
premeditation: DELIBERATELY”).
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* * *
Thus, based upon the more recent precedent, the plain
meaning of the prosecutor’s words, and the context of the
Commonwealth’s argument, the [c]ourt finds nothing
objectionable in these statements which [Appellant]
complains of.
* * *
To summarize, none of the statements [Appellant]
complains of regarding the killing of the victim in this case
can be properly characterized as either objectionable or
impermissible. Rather, as the case law makes abundantly
clear, they were reasonable arguments based upon the
evidence at trial and fair responses to [Appellant]’s own
arguments that preceded it. Because none of the
prosecution’s statements about the killing were
objectionable, [Appellant]’s argument about these
statements fails to have arguable merit. [Appellant]’s trial
counsel was therefore not ineffective.
(PCRA Court Opinion, filed June 16, 2016, at 7-17) (some internal citations,
quotations, and parentheticals omitted).
Concerning the Commonwealth’s statements that Appellant was lying
and disingenuous, the PCRA court reasoned as follows:
“[I]t is settled that the prosecutor may comment on
credibility, as long as the comment does not involve an
assertion of personal opinion.” [Commonwealth] v.
Jones, 571 Pa. 112, 132, 811 A.2d 994, 1006 (2002).
The prosecution is entitled to present an argument based
upon the evidentiary record “as to why the defense theory
[is] not worthy of belief.” Cooper[, supra] at 142, 941
A.2d at 669. The Supreme Court “has held that a
prosecutor’s comments stating that a defendant had lied
were neither unfair nor prejudicial when given in response
to the comments of defense counsel in relation to the
credibility of witnesses, and when they were supported by
the evidence.” [Commonwealth] v. Koehler, 558 Pa.
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334, 363, 737 A.2d 225, 240-41, n.23 (1999)[, cert.
denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 41
(2000)] (specifically noting that the prosecution did not
say “in his opinion” that the defendant had lied).
There is no question that the Commonwealth is permitted
to argue about a [d]efendant’s testimony from the witness
stand as well as his credibility where there is evidence and
reasonable inferences to support it. See, e.g.,
[Commonwealth] v. Floyd, 506 Pa. 85, 93, 484 A.2d
365, 369 (1984) ([providing] argument that the defendant
“out and out lied to you about that particular sentiment”
was a fair inference)…; [Commonwealth] v. Chmiel, 585
Pa. 547, 620, 889 A.2d 501, 544 (2005)[, cert. denied,
529 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006)]
([stating:] “[T]he prosecutor may comment on the
credibility of witnesses”).
The crux of this entire case was whether [Appellant] had
the requisite mental state to form the malice to commit
first-degree murder as opposed to only voluntary
manslaughter. Thus, when [Appellant] took the stand and
testified as to his mental state, and when his trial counsel
presented repeated forceful argument that he had not
formed the requisite malice and that the jury could only
find voluntary manslaughter under the evidence, his
credibility was clearly placed at issue, an issue which the
Commonwealth would have been remiss not to comment
on. Similarly, the Commonwealth was permitted to argue
against [Appellant]’s theory of the case.
Numerous eyewitnesses testified to [Appellant]’s actions
that day. There was ample circumstantial evidence, not
the least of which were the three bullets in the fleeing
victim’s back, to challenge [Appellant]’s assertions that
he…did not intend to kill [Victim]. The Commonwealth was
thus plainly entitled, if not obligated, to argue against
[Appellant]’s assertion that he acted without malice and
that his statements to the contrary should not be believed.
At no time did the assistant district attorney insert his
personal opinion as to [Appellant]’s credibility. His
arguments were thus fair, based upon the evidence, and
clearly responsive to [Appellant]’s own argument. These
comments were thus unobjectionable.
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* * *
To summarize, the argument given by the Commonwealth
on [Appellant]’s credibility and theory of the case was
responsive to trial counsel’s argument and based upon the
evidence admitted at trial and the legitimate inferences
from that evidence. Thus, [Appellant]’s complaints against
these statements do not meet the arguable merit prong [of
the ineffective assistance of counsel test], and
[Appellant]’s trial counsel was therefore not ineffective.
(Id. at 17-21) (internal citations omitted).
Regarding Appellant’s claim that his Facebook username was
objectionable as inadmissible character evidence, the PCRA court also
explained:
[T]here is clearly no issue whatsoever that [Appellant]
created and exercised control over the Facebook page
titled “Snitch-Free Jay,” that he himself selected that name
to identify himself, and that the Facebook page referred to
him. It is also plain based upon that, the testimony which
was given was neither exclusive to [Appellant] nor utilized
as character evidence against him. Rather, the “snitch
free” mentality in both the testimony and the argument by
counsel for both sides was generalized to the entire
community in Linmar, where many people other than
[Appellant] regularly refuse to cooperate with police
investigations. The entire point of this evidence…was to
show that [Appellant] did not believe that witnesses would
come forward to inculpate him. [Appellant]’s trial counsel
also used this evidence in his closing argument against the
credibility of the Commonwealth’s witnesses.
* * *
[W]hatever the Commonwealth’s secret theory of the case
may or may not have been [concerning Appellant’s
Facebook profile name], that was not how the [Facebook
username] evidence was used or presented, nor what it
was admitted to show. To the extent the Commonwealth
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made the statements it did [about its theory of the case],
they were argument at sidebar, not evidence. They were
out of the hearing of the jury.
* * *
Further, the testimony clearly shows that, despite repeated
attempts, [Appellant] refused to be responsive to the
Commonwealth’s questions [on cross-examination of
Appellant]. In spite of this, [Appellant]’s attorney did in
fact ultimately raise an objection. The [c]ourt also notes
that it instructed the jury at the very commencement of
the trial that questions and statements by counsel are not
evidence and how the jury should understand objections
and sidebar proceedings.
* * *
The [c]ourt…gave the standard instruction on
consciousness of guilt due to the evidence of [Appellant]’s
flight and concealment, which was supported by the
Facebook evidence as showing that [Appellant] knew that
he was wanted. [N.T. Trial, 4/12/13, at 64-65].
* * *
[Appellant]…admittedly made the Facebook page and
chose to identify himself by the moniker, "Snitch-Free-
Jay." Then, after killing [Victim] and fleeing to the house
of a person [whom] he adamantly refused to identify on
cross-examination, contacted a relation of [Victim] through
his Facebook page…. These were all important facts for
the jury to consider as not only part of the history and
natural development of the events and the offenses, but as
relevant evidence regarding [Appellant]’s knowledge that
he was wanted, the absence of mistake, consciousness of
guilt, identification, motive, and [Appellant]’s credibility as
a witness.
In [Commonwealth] v. King, [959 A.2d 405 (Pa.Super.
2008)], the defendant complained that he was unfairly
prejudiced by testimony concerning a t-shirt which he wore
prior to murdering his victim. [Id. at 417.] The front of
the t-shirt bore a red stop sign and the words, “Stop
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Snitching,” and a tombstone on the back with “R.I.P.”
written on it. Id. at 418. The defendant told the detective
investigating the case that it was a warning and indicated
that the tombstone image was what happened to people
who snitch on him. Id. The court in King held that it was
properly admissible as being relevant and showing the
motive of the defendant in killing the victim and that the
defendant was not prejudiced. Id. …
As the defendant in King, so in this case [Appellant]
“clothed” himself with the moniker “Snitch-Free-Jay.” He
shot [Victim] and fled the scene, and then had a dispute
with a witness, one of [Victim’s] own relations, through his
Facebook page that bore the name he admittedly chose.
To the extent the name was used in evidence and
argument by [the Commonwealth], it was to show
[Appellant]’s identity, consciousness of guilt, and absence
of mistake, as well as the fact that the “snitch free”
mentality was not limited to [Appellant], but rather was
general to the entire community. Just as in King the “stop
snitching” t-shirt showed the defendant’s state of mind in
murdering [Victim], so in this case [Appellant]’s “snitch
free” profile showed his own consciousness of guilt and
state of mind in murdering his victim, i.e., that he fled the
scene and believed that due to the uncooperative
mentality of the locale he would not be inculpated. …
* * *
Most important of all, however, is that no evidence was
presented to show that [Appellant] neglected to cooperate
in other cases or at other times. Nor was evidence
admitted that [Appellant] has a history of not cooperating,
or that he has a reputation of not cooperating, or that he
has some innate trait that makes him less likely to
cooperate. In short, no character evidence was presented.
Rather, the evidence showed that he selected a unique
name for his Facebook profile to identify himself by, and
which evidently reflected his personal opinion or belief,
i.e., his mental state, that people should not cooperate
with law enforcement. [Appellant] thus confuses identity,
beliefs, and states of mind with character traits. The Rules
of Evidence, however, make a sharp and practical
distinction between the two. See, e.g., Pa.R.E. 404(b)(2)
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(distinguishing between evidence presented to show “a
person’s character” and evidence offered for “another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of
mistake, or lack of accident”). …
If anyone in this case demonstrated [Appellant]’s personal
belief that people should not be cooperative with the
authorities, he did so himself on cross-examination when
he adamantly refused, in spite of his oath, to identify
where we went or [whom] he was with. When [Appellant]
chose to testify, he exposed himself as a witness to cross-
examination. A witness, even a defendant-witness, is
subject to having [his] credibility tested. Pa.R.E. 607
([stating:] “The credibility of a witness may be impeached
by any evidence relevant to that issue, except as otherwise
provided by statute or these rules”). [Appellant] was not
confronted with character evidence nor with prior crimes or
wrongs. He was confronted with the name he identified
himself as, a name which was circumstantial evidence of
his identity as well has his personal opinion and beliefs
about speaking to authorities. This type of belief, clearly
evidenced by [Appellant] not in some other case, but in
this case, on the witness stand, at trial, under oath, before
the jury, goes directly to [Appellant]’s credibility as a
witness, and the jury was entitled to hear it.
* * *
Because the [Facebook] evidence was admissible on
multiple bases, because the jury was properly instructed,
because the argument the jury heard was based on the
evidence at trial and responsive to [Appellant]’s
argument…, [Appellant]’s argument that his trial counsel
should have objected has no arguable merit. His trial
counsel was therefore not ineffective.
(Id. at 24-37) (internal citations omitted). Accordingly, the PCRA court
reasoned the claims underlying both of Appellant’s ineffective assistance of
counsel issues lacked arguable merit. See Turetsky, supra.
Concerning whether trial counsel had a reasonable basis for failing to
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object to the alleged prosecutorial misconduct and the Commonwealth’s use
of Appellant’s Facebook username, the PCRA court explained:
When asked about the Commonwealth’s argument that
[Appellant] was “cold blooded” and a “killer,”…trial counsel
testified [at the PCRA hearing] that he did not believe the
Commonwealth’s argument and questioning of [Appellant]
was objectionable, and second that he believed the
assistant district attorney’s argument and demeanor would
be perceived negatively by the jury.
* * *
[Appellant]’s trial counsel similarly testified that he
regarded the Commonwealth referring to [Appellant] as
“dangerous” as argument and not opinion. … Regarding
the reference to [Victim] at the beginning of the
Commonwealth’s argument, …trial counsel testified that he
believed that the Commonwealth was simply responding to
his argument and contending that [Victim] was murdered.
…
* * *
Regarding the Commonwealth’s references to [Appellant]
during cross-examination as “Snitch-Free-Jay,” trial
counsel testified that he did not object because he believed
the nature of the cross-examination was hurtful to the
prosecution. …
* * *
[T]rial counsel further elaborated:
[TRIAL COUNSEL]: …I felt that [the
Commonwealth] was ignoring the defense that was
put forward and that that was playing favorably with
the jury, because [the Commonwealth] wasn’t
actually addressing what the defense, itself, was.
[N.T. PCRA Hrg., 2/26/16,] at 85-86 (explaining further
that [trial counsel] did not regard the Commonwealth’s
argument that [Appellant] was “disingenuous”…as an
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impermissible attack on [Appellant]’s defense).
* * *
[Appellant]’s trial counsel in this case has provided, in
great detail, the reasons for acting as he did in the
objections he made as well as the objections he did not
make. He explained his strategy and belief for practically
every individual statement and piece of evidence
[Appellant] challenges. He testified that he believed the
prosecutor’s arguments and cross-examination were being
received unfavorably by the jury and that he did not object
on that basis. [T]his is clearly a reasonable trial strategy,
and it is not for this [c]ourt to second-guess [Appellant]’s
capable trial counsel simply because…[Appellant] was
convicted.
[B]ecause [Appellant]’s trial counsel had a reasonable
strategic basis for what he did and did not do, [Appellant]’s
trial counsel was not ineffective.
(Id. at 38-43) (internal citations to record omitted). Accordingly, the PCRA
court concluded Appellant had failed to meet his burden to prove trial
counsel lacked a reasonable strategic basis for those inactions Appellant
alleged. See Turetsky, supra.
Finally, with respect to whether trial counsel’s alleged ineffective
assistance prejudiced Appellant at trial, the PCRA court reasoned as follows:
Because [Appellant]’s claims have no arguable merit and
his trial counsel had a reasonable strategic basis for his
actions, …[Appellant] cannot be found to have been
prejudiced. But even assuming, arguendo, that any of the
evidence or argument was erroneously not objected to by
[Appellant]’s trial counsel, or that [Appellant]’s trial
counsel did not have a reasonable strategic basis,
[Appellant] still fails to prove what prejudicial effect this
had upon him. …
The weight and sufficiency in this case have already been
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challenged on appeal and affirmed by the Superior Court.
The evidence against [Appellant] was overwhelming.
[Appellant] and [Victim] were in a fight. A surveillance
video showed a great deal except for the actual fight and
shooting, and there were numerous eyewitnesses [who]
testified to seeing both. [Appellant] himself admitted
killing [Victim], who was shot three times from behind as
he fled. One of the bullets pierced his aorta and [Victim]
bled to death in the street. [Appellant] then fled into the
woods, absconded to Pittsburgh, and eluded capture until
finally turning himself in a month later.
[Appellant] posits that if only the Commonwealth had not
called [Appellant] by his admitted self-chosen Facebook
profile name, the trial would have been different. There is
nothing at all in the evidence to show that this is the case.
The jury was properly instructed and a few references to
[Appellant] being “snitch free” when the same term was
applied to the Commonwealth’s witnesses and the Linmar
area as a whole cannot be regarded as prejudicial given
the considerable evidence in the case.
[Appellant] claims if only he had not been called a killer,
the trial would have been different. [Appellant] was on
trial for murder. The very nature of the charges is an
allegation that [Appellant] killed someone. There was no
evidence or implication that [Appellant] had killed before
or that he had a reputation for killing. No reasonable
person in the context of this case could have concluded
that the Commonwealth was arguing anything other than
the murder charge alleged, to wit, that [Appellant] killed
[Victim].
[Appellant] states that if the Commonwealth had not
argued that he was “disingenuous” and “lying,” the result
would have been different. … Given the testimony of
[Appellant]’s trial counsel [at the PCRA hearing] that the
jury appeared to receive the Commonwealth’s argument
negatively, it appears far more likely that the jury was
swayed by the copious amount of evidence…than anything
the prosecutor said.
[Appellant] asserts that referring to him as “cold blooded”
incited the jury to act out of passion rather than according
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to the evidence. [Appellant] himself admitted the killing,
and claimed as his defense that it was provocation, not
planning, that led to the killing. … Given the volume of
evidence in this case, it cannot be said that using a figure
of speech, “cold blooded,” to describe what the
Commonwealth argued was a deliberate killing was
[unduly] prejudicial in this case.
(Id. at 44-46) (internal citations omitted). Accordingly, the PCRA court
determined Appellant had failed to show that but for trial counsel’s alleged
ineffectiveness, there is a reasonable probability the trial outcome would
have been different. See Turetsky, supra. The record supports the court’s
analysis, and we see no reason to disturb it. See Ford, supra; Harris,
supra. Therefore, Appellant’s ineffective assistance of counsel claims fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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Com. v. Clancy, J.
Combined Opinion