J-S89030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL JAMES
Appellant No. 142 EDA 2016
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0200501-2001
CP-51-CR-0200511-2001
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 15, 2017
Michael James appeals from the December 10, 2015 order of the
Philadelphia County Court of Common Pleas denying his petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The trial court set forth the factual history of this case as follows:
At approximately 2:00 a.m., on October 26, 2000, Dai Yun
Zheng [] and his father Sin Tang Zheng [] were closing
their restaurant located at 3621 North 22nd Street in the
City and County of Philadelphia, Pennsylvania, when they
were approached by Michael James . . . , Steven James,
and Dennis Wright. Sin Tang Zheng recognized these men
as customers who frequently came into his store. [James],
Wright, and Steven James in concert muscled their way
into the Zheng family restaurant. Sin Tang Zheng noticed
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*
Former Justice specially assigned to the Superior Court.
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that the co-defendant, Steven James, had a gun. After
pushing their way into the store, [James] and his cohorts
ultimately forced the Zhengs into the basement where
they were beaten and tied up. The three men repeatedly
went throughout the property to look for money and
continuously asked the Zhengs about the location of the
money. The entire ordeal lasted approximately fifty (50)
minutes. Although [James] and his cohorts finally found
the money, Dai Yun Zheng (the son) was fatally shot and
killed. Sin Tang Zheng (the father) suffered a critical
wound to his head. After the shooting, [James] and his
cohorts fled the restaurant. Sin Tang Zheng crawl[ed]
upstairs to telephone the police, however, for fear that he
would not articulate the information correctly because of
his wounds, and his limited English, he called a friend and
told the friend to call the police. Sin Tang Zheng passed
out before the police arrived. Upon the arrival of the
police, he was transported to Temple University Hospital[.]
Dai Yun Zheng was found dead at the scene from the fatal
wound to the head. A couple of days later, officers of the
Philadelphia Police Department went to the hospital and
showed Sin Tang Zheng a series of photo arrays which
included the photos of [James], Dennis Wright, and Steven
James. He positively identified all three men.
[James] filed several pre-trial motions to suppress
including but not limited to identification, physical
evidence, and statements all of which were denied. On
October 22, 2003, a jury found [James] guilty of First
Degree Murder, Attempted Murder, Robbery, Criminal
Conspiracy to Robbery, and Possessing an Instrument of
Crime.[1] The Commonwealth had previously filed notice of
its intention to seek the death penalty. [James]
successfully litigated a motion to quash the aggravators.
Thereafter, [James] was sentenced to a mandatory period
of life in prison without the possibility of parole and to
consecutive terms of ten (10) years to twenty (20) years
for Robbery, Conspiracy, and Attempted Murder and two
and a half (2 ½) years to five (5) years on the PIC all
consecutive to each other and to the life sentence
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1
18 Pa.C.S. §§ 2502, 3701, 903, 907, respectively.
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imposed. Although appellate counsel was provided to
Michael James, [James] sought leave and was granted
permission to proceed pro se.
Tr. Ct. Op., 10/18/04, at 1-3 (footnotes and citations omitted).
On February 7, 2006, this Court affirmed James’ judgment of
sentence. On August 15, 2006, the Pennsylvania Supreme Court denied his
petition for allowance of appeal. On September 8, 2006, James filed a PCRA
petition and a motion to proceed pro se. Following an August 8, 2007
Grazier2 hearing, the PCRA court granted James’ motion to proceed pro se.
On December 22, 2008, the PCRA court dismissed James’ PCRA petition
without a hearing. On December 14, 2009, this Court affirmed the trial
court’s dismissal of James’ claim that trial counsel was ineffective for failing
to object to the admission of the .32-caliber handgun, but remanded for
further proceedings as to James’ remaining claims. We concluded that the
PCRA court had erred in finding James’ remaining ineffective assistance of
counsel claims had been previously litigated.
On March 24, 2015, James filed an application for leave to file original
process and a petition for writ of mandamus with the Pennsylvania Supreme
Court. On May 12, 2015, the Supreme Court granted the application for
leave and the petition for mandamus and ordered the common pleas court to
adjudicate the PCRA petition.
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On December 10, 2015, the Honorable Lillian H. Ransom3 filed an
opinion in support of the dismissal of James’ PCRA petition.4
James raises the following issues on appeal:
I. DID THE COMMON PLEAS COURT ABUSE [ITS]
DISCRETION BY DENYING [JAMES’] POST CONVICTION
PETITION STATING THAT THE REASON FOR DENYING THE
PCRA PETITION WAS THAT TRIAL COUNSEL WAS NOT
INEFFECTIVE DURING THE APPELLANT’S TRIAL?
II. DID THE COMMON PLEAS COURT ERR[] WHEN IT
DELAYED FOR OVER FIVE YEARS FROM THE DATE THE
SUPERIOR COURT REMANDED THIS CASE BACK TO THE
COMMON PLEAS COURT FOR ADJUDICATION OF THE I.A.C.
CLAIMS RAISED BY THE APPELLANT?
III. DID THE COMMON PLEAS COURT ABUSE [ITS]
DISCRETION AND ERR BY NOT CONDUCTING AN
EVIDENTIARY HEARING ?
James’ Brief at 2.
I. Ineffective Assistance of Counsel
In his first issue, James maintains the PCRA court erred when it
dismissed the ineffective assistance of counsel claims raised in his PCRA
petition. James argues his trial counsel was ineffective for failing to: (1)
object to the trial court’s response to the jury’s question regarding the first-
degree murder elements; (2) object to the trial court’s instruction on
____________________________________________
3
Judge Ransom was sworn in as a member of this Court in August
2016, following her appointment to the Court in June 2016. Judge Ransom
was not involved in the review of this appeal.
4
The Honorable Renee Cardwell Hughes presided over the trial, but
retired prior to the issuance of the December 10, 2015 Rule 1925(a) opinion.
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accomplice testimony; (3) object to the admission of Sin Tang Zheng’s prior
consistent statement; (4) call James’ grandfather as a witness; (5) object to
the admission of rap lyrics; (6) investigate an alibi defense; (7) file a motion
to sever; (8) object to the assistant district attorney’s reference to Joyce
Wu, M.D. during closing argument; (9) object to the assistant district
attorney’s opening statement; (10) object to the assistant district attorney’s
closing argument; (11) investigate the promises made to Garfield Adams in
exchange for his testimony against James; (12) investigate potential
witnesses and DNA evidence; (13) object when the assistant district
attorney struck young African Americans from the jury; (14) request a
mistrial after Steven James caused a scene in the courtroom; and (15)
object and request a mistrial when the assistant district attorney referenced
Islam and Allah.5
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
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5
James raised four additional ineffectiveness claims. However, on
appeal, he concedes that, in our December 14, 2009 memorandum, this
Court found that the PCRA court did not err in dismissing James’ ineffective
assistance of counsel claim for failure to object to the introduction of the
.32-caliber revolver. James’ Br. at 9; Memorandum, 116 EDA 2009, at 8-10
(Pa.Super. filed Dec. 14, 2009). Further, on appeal, he abandoned his
counsel ineffectiveness claims for failing to (1) object to a reference to the
assistant district attorney’s wife; (2) object to a jury instruction regarding
Adams’ testimony; and (3) request that the trial be transferred due to media
exposure. James’ Br. at 28-29, 32.
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evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).
“To demonstrate prejudice, the petitioner must show that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.’” Id. at 312 (quoting
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). “[C]ounsel is
presumed to be effective and the burden of demonstrating ineffectiveness
rests on appellant.” Ousley, 21 A.3d at 1244 (quoting Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any
one of the three [ineffectiveness] prongs results in the failure of petitioner’s
claim.” Id. (quoting Rivera, 10 A.3d at 1279).
First, James argues that his counsel was ineffective for failing to object
to the trial court’s response to the jury’s question regarding the elements of
first-degree murder. James maintains that counsel should have objected
when the trial court informed the jury, in response to a jury question, that
the Commonwealth did not need to prove which defendant was the shooter.
After the trial court received a question from the jury, the following
exchange occurred:
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THE FOREPERSON: They think – they are trying to get the
clarification of where the difference between the first and
second.
THE COURT: Okay, Gentlemen, can you stipulate that I
can answer that question?
MR. SAX: Absolutely.
MR. SIEGEL: Certainly.
MS. RUDENSTEIN: Yes.
THE COURT: All right, very good.
Murder in the first degree. We already know all murders
involve malice. We already know that second degree
murder means that there was a felony committed. In my
case it is a robbery. And, that a murder occurred in the
course of a robbery.
First degree murder is a murder in which there was a
specific intent to kill.
Premeditation – and premeditation can be instantaneous.
You can plan it for eight years. But, it is a premeditated
decision, a specific intent to kill. Period. Okay.
I mean, that is the critical distinction. To find first degree
murder, you must find that there was a specific intent to
kill.
You may find the specific intent by direct evidence, by
circumstantial evidence. You may infer specific intent from
the use of a deadly weapon on a vital organ in the body.
In order – each one of these defendants is charged with
murder in the first degree.
In order to find murder in the first degree, you have to
examine each person and say: Did that person possess
the specific intent to kill; yes or no?
Move to the next person. Did that person possess the
specific intent to kill; yes or no?
Move to the third person: Did that person possess the
specific intent to kill? All right.
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...
THE FOREPERSON: Another thing we have been
discussing, does that mean we have to prove shooter?
THE COURT: No.
THE FOREPERSON: Okay.
N.T., 10/17/03, at 129-31.6 The instructions and answers to the jury’s
question, read as a whole, accurately described the elements of first- and
second-degree murder, including that, although the Commonwealth need
not prove that James was the shooter, it had to establish that James had the
specific intent to kill. Therefore, counsel cannot be found ineffective for
failing to object. See Commonwealth v. Speight, 854 A.2d 450, 461 (Pa.
2004) (finding counsel not ineffective where the charge given, “[r]ead as a
whole, . . . sufficiently instructed the jury regarding the requirement that an
individual must have specific intent to kill in order to be found guilty of first
degree murder as an accomplice”). Accordingly, we conclude the PCRA
court’s finding that James’ ineffectiveness claim lacked merit is supported by
the record and free of legal error.
James next argues that trial counsel was ineffective for failing to
object to the trial court’s instruction regarding accomplice liability. He
claims the trial court should have instructed the jury that Garfield Adams
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6
Further, the trial court gave proper instructions regarding first- and
second-degree murder during the pre-deliberation jury instructions, and
instructed the jury as to conspiracy and accomplice liability. N.T., 10/17/03,
at 49-79.
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was an accomplice and, therefore, his testimony was “from a polluted
source, and suspect as to such testimony being reliable.” James’ Br. at 11.
The Pennsylvania Supreme Court has stated:
As we explained in Commonwealth v. Chmiel, []639
A.2d 9, 13 ([Pa.] 1994), “in any case where an accomplice
implicates the defendant, the judge should tell the jury
that the accomplice is a corrupt and polluted source whose
testimony should be viewed with great caution.” See also
Commonwealth v. Collins, [] 957 A.2d 237 ([Pa.] 2008).
For an accomplice charge to be required, the facts need to
permit an inference that the witness was an accomplice.
Chmiel, 639 A.2d at 13; Commonwealth v. Sisak, []
259 A.2d 428 ([Pa.] 1969). “If the evidence is sufficient to
present a jury question with respect to whether the
prosecution’s witness was an accomplice, the defendant is
entitled to an instruction as to the weight to be given to
that witness’s testimony.” Chmiel, 639 A.2d at 13;
Commonwealth v. Mouzon, [] 318 A.2d 703 ([Pa.]
1974).
Commonwealth v. Smith, 17 A.3d 873, 906 (Pa. 2011).
The PCRA court concluded that this claim lacked merit because the
trial court instructed the jury using the standard jury instruction regarding
testimony from an accomplice and, therefore, there was no basis to support
the ineffectiveness claim. Opinion, 12/10/15, at 3 (“1925(a) Op.”).
The trial court provided the following jury instruction:
When [a Commonwealth witness] was so involved in the
crime charged that he was an accomplice, his testimony
has to be judged by special precautionary rules.
Experience shows that an accomplice, when caught, will
often try to blame falsely the crime on someone else. He
may testify falsely in hope of obtaining favorable treatment
or for some corrupt or wicked motive.
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On the other hand, an accomplice may be perfectly
truthful.
The rules that I give you are to help you determine
between a truthful accomplice and a false accomplice.
You must decide first whether Garfield Adams, Jr. was in
fact an accomplice in the crimes charged. If, after
considering all of the evidence, you find that he was an
accomplice, then you must apply these special rules to his
testimony.
But, if you determine that Garfield Adams, Jr. was not an
accomplice in this matter, then you ignore these
instructions.
Use this test to determine whether Garfield Adams, Jr. was
an accomplice. An accomplice may be defined as a person
who knowingly and voluntarily cooperates with or aids
another in the commission of a crime.
Now, with respect to the special rules that apply to what
we call accomplice testimony, first you should view the
testimony of an accomplice with disfavor because it
comes from a corrupt and polluted source.
Second, you should examine the testimony of the
accomplice closely and accept it only with care and
caution.
Third, you should consider whether the testimony of the
accomplice is supported in whole or in part by other
evidence.
Accomplice testimony is more dependable if it is supported
by independent evidence.
However, even if there is no independent evidence
supporting the testimony, you may still find the defendant
guilty, solely on the basis of an accomplice’s testimony, if,
after using the special rules we have discussed, you are
satisfied beyond a reasonable doubt that the accomplice
testified truthfully and the defendant is guilty.
N.T., 10/17/03, 39-42 (emphasis added). The trial court provided the
proper accomplice testimony instruction, including that the testimony is from
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a corrupt and polluted source. Further, because there was evidence to
support that Adams was an accomplice, see e.g., N.T., 10/15/03, at 13
(Adams supplied gun to James), and to support that he was not an
accomplice, see, e.g., N.T., 10/16/03, at 14-22 (Adams told defendants he
“wasn’t with it,” was not at the scene, and testified he did not know gun
would be used in robbery), the trial court did not err when it permitted the
jury to determine whether Garfield was an accomplice. See Smith, 17 A.3d
at 906. Because the instruction was proper, counsel was not ineffective for
failing to object to the instruction. Accordingly, the PCRA court did not err
when it found this ineffectiveness claim lacked merit.
James next maintains counsel was ineffective for failing to object to
the use of Sin Tang Zheng’s prior consistent statement.
The PCRA Court found that this issue was raised and affirmed on direct
appeal. 1925(a) Op. at 3. On direct appeal, this Court found James waived
his claim that the trial court erred in permitting Officer Han-Chun Kuo to
read Zheng’s prior consistent statement into evidence. Commonwealth v.
James, 61 EDA 2004, unpublished mem. at 13 (Pa.Super. filed Feb. 7,
2006) (“Direct Appeal Mem.”). However, we also concluded that the prior
consistent statement was admissible under Pennsylvania Rule of Evidence
6137 to rehabilitate Zheng because counsel for co-defendant Wright
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7
Rule 613(c) provides:
(Footnote Continued Next Page)
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previously cross-examined Zheng regarding the statement and Zheng was
asked numerous questions regarding “his identification of the defendants
and memory of events.” Id. at 13 n.5.
Because the prior consistent statement was admissible, trial counsel
cannot be ineffective for failing to object to its admission, and we conclude
the PCRA court did not err in dismissing this claim.
James next alleges counsel was ineffective for failing to call his
grandfather as a witness. He claims his grandfather would have testified
that the .32-caliber revolver found in the residence was owned by his
grandfather and in his grandfather’s control.
The PCRA court found James’ ineffectiveness claim lacked merit
because he failed to establish the grandfather’s testimony would have
_______________________
(Footnote Continued)
(c) Witness’s Prior Consistent Statement to
Rehabilitate. Evidence of a witness’s prior consistent
statement is admissible to rehabilitate the witness’s
credibility if the opposing party is given an opportunity to
cross-examine the witness about the statement and the
statement is offered to rebut an express or implied charge
of:
(1) fabrication, bias, improper influence or motive, or
faulty memory and the statement was made before that
which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness's denial or explanation.
Pa.R.Evid. 613(c).
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resulted in a different outcome. 1925(a) Op. at 3-4. The court reasoned
that the jury may have used the proposed testimony, that is, that the
revolver belonged to the grandfather and that James resided with the
grandfather, to find James had access to the gun. Id. The PCRA court’s
conclusion that James failed to establish prejudice is supported by the record
and free of legal error.
James next argues that trial counsel was ineffective for failing to
object to the admission of rap lyrics. The PCRA court found that this Court
reviewed and affirmed the admission of the lyrics. 1925(a) Op. at 4. On
direct appeal, we found there was “sufficient circumstantial evidence to
authenticate the rap lyrics as having been written by [James].” Direct
Appeal Mem. at 22. This Court found that James waived any claim that the
lyrics were inadmissible as irrelevant and prejudicial. To the extent James
now argues his counsel should have objected based on the lyrics’ relevance
and prejudicial value, we conclude that claim lacks merit. The lyrics were
relevant, as they discussed guns, fear of the police, and “skippin’
countries.”8 N.T., 10/15/03, at 209-13. Further, the lyrics’ probative value
is not outweighed by the danger of unfair prejudice. See Pa.R.Evid. 403;
Commonwealth v. Flamer, 53 A.3d 82, 89-90 (Pa.Super. 2012) (finding
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8
After the crime, James fled to Canada. N.T., 10/10/03, at 230-37;
N.T., 10/14/03, at 35-36, 48-54, 66-72.
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probative rap lyrics should have been admitted because they were not
prejudicial and noting “[s]tatements that are on balance prejudicial are
statements that inflame the jury to decide the case on that evidence alone
and not legal propositions”). Accordingly, because the underlying claim that
the lyrics were inadmissible lacked merit, we conclude that James’
ineffectiveness claim is meritless, and the PCRA court did not err in
dismissing it.
James next argues counsel was ineffective for failing to investigate an
alibi defense. He maintains that he had been in a fight on the night of the
murder with an individual from Scranton and that the blood on his clothes
was that individual’s blood. He argues that if counsel had contacted the
individual and had a DNA test performed, the test would have established
James was not at the scene of the murder.
To establish counsel was ineffective for failing to interview a witness, a
PCRA petitioner must show that:
(i) the witness existed; (ii) the witness was available to
testify; (iii) counsel knew of, or should have known of, the
existence of the witness; (iv) the witness was willing to
testify; and (v) the absence of the testimony was so
prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014);
Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.Super. 2001)
(quoting Commonwealth v. Fletcher, 292, 750 A.2d 261, 275 (Pa. 2000)).
The PCRA court found that “other than making a bold assertion,
[James] has failed to meet the bare minimum requirements needed to
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establish that such a witness existed, that the witness had anything of
substance about which to testify, that the witness was willing to testify on
[James’] behalf or even that trial counsel knew of the existence of the
witness.” 1925(a) Op. at 4. The PCRA court noted that at trial, the
Commonwealth and James stipulated that the blood found on James’
clothing was not the blood of either victim. 9,10 Id. at 4-5. The record
supports the PCRA court’s factual findings and its determination that trial
counsel was not ineffective for failing to investigate the witness is free from
legal error.
In his next ineffectiveness claim, James argues counsel was ineffective
for failing to argue, in support of the motion for severance, that a joint trial
would violate James’ due process rights because the statement of Steven
James would be admitted and no redaction could make the statement
neutral.
The PCRA court found that counsel filed a motion to sever, which the
trial court denied and this Court affirmed. 1925(a) Op. at 5. Further, this
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9
DNA evidence potentially establishing the blood on James’ clothes
was that of the alibi witness would not preclude James’ participation in the
crime. The parties stipulated that the blood was not the victims’.
10
The PCRA court further noted that James asserted he knew the
purported alibi witness because “they had previously engaged in
transactions involving hot merchandise which was exchanged for cheap
prices.” 1925(a) Op. at 4. The PCRA court reasoned that, even if the alibi
witness existed, the witness “may have had 5th Amendment concerns which
may have precluded testimony.” Id.
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Court noted that the motion to sever argued that severance was proper
because “Steve James’ statement was prejudicial and not capable of
redaction so as to prevent harmful inference.” Direct Appeal Mem. at 17
n.7; see Motion to Sever, 5/1/01. Although the motion did not use the term
“due process,” the argument is the same in the motion and in James’ PCRA
petition – that James could not receive a fair trial because the redacted
statement was unfairly prejudicial. Counsel cannot be ineffective for failing
to raise an argument that he raised before the trial court. Accordingly, we
conclude the PCRA court did not err in dismissing the claim.
James next argues that counsel was ineffective for failing to object to
the assistant district attorney’s reference to Joyce Wu, M.D., in the closing
argument where Dr. Wu did not testify at trial.
The PCRA court found the ineffectiveness claim failed because this
Court found on direct appeal that this issue was waived and, even if not
waived, it lacked merit. 1925(a) Op. at 5. On appeal, we found any
objection would have lacked merit because the Commonwealth was
responding to arguments made by James and his co-defendant that the
Commonwealth did not call certain witnesses. Direct Appeal Mem. at 23 n.8
(citing N.T., 10/16/03, at 93-94, 175, 232). This Court noted that the
assistant district attorney “merely pointed out that the defense also had the
right to subpoena witnesses, and if they wanted to hear her testimony, they
should have called her.” Id. (citing N.T., 10/16/03, at 232).
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Because the assistant district attorney’s reference to Dr. Wu was
proper, we conclude that counsel was not ineffective for failing to object to
the reference and that the PCRA court’s determination to dismiss this claim
was free of legal error.
In his next two ineffectiveness claims, James contends trial counsel
was ineffective for failing to object to the assistant district attorney’s
opening statement and closing argument. He argues the opening statement
was improper because the assistant district attorney referenced Steven
James’ redacted statement and said Steven stated that he and two others
were involved. He also argues that the references to James’ rap lyrics and
to James’ statement that “I shot them Chinese” during the closing argument
were improper.
The PCRA court found that James’ Rule 1925(b) statement was too
vague regarding these claims and it, therefore, could not address them.
1925(a) Op. at 5-6. Neither James’ PCRA petition nor his Rule 1925(b)
statement include the specific references contained in the appellate brief
and, therefore, James has waived his challenges to the opening statement
and closing argument. See Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006) (finding claim waived where vague Rule 1925(b)
statement hampered appellate review).
Further, even if James had not waived these challenges, we would
conclude that they lack merit. This Court found on direct appeal that the
trial court properly admitted the redacted statement. Direct Appeal Mem. at
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16-20. Further, as discussed above, the trial court properly admitted the
rap lyrics. In addition, the assistant district attorney properly referenced
James’ statement to Adams that he “shot the Chinese people,” N.T.,
10/15/03, at 27, which also was properly admitted. Accordingly, because
the evidence properly was admitted at trial, the assistant district attorney’s
references to the evidence during his opening statement and closing
argument were proper, and trial counsel was not ineffective for failing to
object.
James next contends counsel was ineffective for failing to investigate
the promises that the Commonwealth made to Garfield Adams in exchange
for his testimony.
The PCRA court found this claim lacked merit because counsel
questioned Adams about his agreement with the Commonwealth. 1925(a)
Op. at 6. At trial, Adams testified regarding his agreement with the
Commonwealth, including that he may receive a sentence of time served.
N.T., 10/15/03, at 31. Further James’ counsel cross-examined Adams
regarding his guilty plea agreement and upcoming sentencing hearing. Id.
at 71-74. Accordingly, we conclude that the record supports the PCRA
Court’s findings, and its conclusion is free of legal error.
James next argues counsel was ineffective for failing to investigate
potential witnesses and DNA evidence. James again argues counsel failed to
interview the potential alibi witness from Scranton and failed to seek DNA
testing of the alibi witness’s blood. James further maintains that the alibi
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witness could have provided contact information for an additional witness.
As discussed above, the PCRA court’s conclusion that counsel was not
ineffective for failing to investigate the alibi witness is supported by the
record and free of legal error.
James next contends counsel was ineffective for failing to object when
the assistant district attorney improperly struck young African American
males from the jury.
To state a Batson11 claim in the context of an ineffective assistance of
counsel claim, the appellant must “make an adequate record specifically
identifying the race of all the venirepersons who had been removed by the
prosecution, the race of the jurors who served, or the race of jurors
acceptable to the Commonwealth who had been stricken by the defense.”
Commonwealth v. Simpson, 66 A.3d 253, 262 (Pa. 2013) (quoting
Commonwealth v. Spence, 627 A.2d 1176, 1182-83 (Pa. 1993)).
The PCRA court found James failed to state a cognizable claim because
“[t]here is no basis or documentation to support the allegation young African
Americans were actually in the jury pool and there was nothing to support
the claim that, if in the jury pool, members of this protected class were
stricken in a racially discriminatory manner.” 1925(a) Op. at 6-7. The PCRA
Court concluded there was no support for the claim that trial counsel was
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11
Batson v. Kentucky, 476 U.S. 79 (1986).
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ineffective.12 Id. at 7. We conclude that the record supports the PCRA
court’s factual findings and its conclusion is free from legal error.
James next contends that counsel was ineffective for failing to seek a
mistrial after Steven James caused a scene in the courtroom.
The PCRA court concluded:
While it is true that one of the co-defendants (James)
created a disturbance during the trial, the Court took a
recess after excusing the jury from the room. When the
jury returned, the trial judge gave a strongly worded
instruction to the jurors that they were to disregard the
outburst by the co-defendant and not to hold that outburst
against either of the co-defendants. The attorney for the
co-defendant moved the Trial Court for a mistrial which
was denied by that Court, in its discretion.
Commonwealth v. Parker, 957 A.2d 311, 319
(Pa.Super. 2008). There would have been no merit for
trial counsel to join in the motion for a mistrial, therefore
this claim fails.
1925(a) Op. at 7-8 (internal citations to record omitted). The record
supports the PCRA court’s factual findings and its conclusion that counsel
was not ineffective is free of legal error.
James also contends counsel was ineffective for failing to object to the
assistant district attorney’s references to Islam and Allah.
The PCRA court found that James:
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12
Further, counsel objected at the time of jury selection, and the trial
court overruled the objection. N.T., 10/3/03, at 95-104 (co-defendant
raised Batson objection, Commonwealth responded, and trial court found no
violation); id. at 18 (trial court noted issues preserved during jury selection
are relevant for each individual appeal).
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[F]ailed to provide specific cites to what he claims to be
improper references to Islam and Allah during the trial. He
has also failed to set forth any basis to support his
assertion that this undeveloped claim resulted in any
prejudice to him therefore, this Court is unable to
formulate a response and deems the claim to be without
merit.
1925(a) Op. at 8.13 The record supports the PCRA court’s findings and its
conclusions are free from legal error.
II. Delay
In his second issue, James maintains the PCRA court erred because it
did not issue an opinion until more than five years after this Court remanded
for further proceedings. Although the PCRA court should have acted more
quickly in addressing the PCRA petition following remand, the delay did not
result in harm to James, and James is not entitled to relief.
III. PCRA Hearing
In his third issue, James argues the PCRA court erred in dismissing his
petition without a hearing.
A PCRA court must hold a hearing only “where the petition, or the
Commonwealth’s answer, raises an issue of material fact.” Commonwealth
v. Eichinger, 108 A.3d 821, 849 (Pa. 2014). “If a PCRA petitioner’s offer of
proof is insufficient to establish a prima facie case, or his allegations are
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In his brief, James states that the references to Islam and Allah
were in his rap lyrics. However, as discussed above, the rap lyrics were
admissible. Further, the references to Islam and Allah were not prejudicial,
as they would not “inflame the jury to decide the case on that evidence
alone and not legal propositions.” See Flamer, 53 A.3d at 89-90.
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refuted by the existing record, an evidentiary hearing is unwarranted.” Id.
“A PCRA court’s decision denying a claim without a hearing may only be
reversed upon a finding of an abuse of discretion.” Commonwealth v.
Walker, 36 A.3d 1, 17 (Pa. 2011).
Here, the trial counsel ineffectiveness claims raised in James’ PCRA
petition are refuted by the existing record. Accordingly, the PCRA court did
not abuse its discretion by dismissing of the claims without a hearing. See
Eichinger, 108 A.3d at 849.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
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