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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRELL MACK :
:
Appellant : No. 2723 EDA 2016
Appeal from the PCRA Order August 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002453-2007
BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 26, 2017
Appellant, Darrell Mack, appeals from the order of the Philadelphia
County Court of Common Pleas, which denied his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court previously set forth most of the relevant facts of this case
as follows:
On April 23, 2006, at 11:18 p.m., police responded to a
radio call about a shooting at 45th and Laird Streets in
Philadelphia. Police found 19-year-old Brian Woolfolk
[“Victim”] lying on the ground and bleeding from his head.
A bicycle was next to his body. Medics
pronounced…[V]ictim dead at the scene. He had been
shot four times: in the head, in each shoulder, and in his
left buttock. Ballistic evidence recovered from the street
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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and…[V]ictim’s body were determined to be .38/357
caliber and all fired from the same weapon.
As a result of their investigation into the shooting, the
police obtained an arrest warrant for Appellant on October
20, 2006. The next day, [the police] executed the arrest
warrant, and obtained and executed a search warrant for
Appellant’s home. There, the police recovered a cell
phone, Appellant’s social security card, and a used
shooting range paper target. A ballistics expert
determined that the bullet holes in the paper target were
consistent with the bullets used to kill…[V]ictim. …
A neighbor, Ms. Bates, testified at trial that she witnessed
Appellant (whom she knew as “Dirty D”)
approach…[V]ictim and talk with him. Appellant rifled
through…[V]ictim’s pockets. When…[V]ictim dismounted
his bike, Ms. Bates heard gunshots. She ran out of her
house, saw…[V]ictim lying in the street, and screamed
“Dirty D just shot him.” Another neighbor, Ms. Calloway,
told detectives that she heard gunshots on April 23rd while
she was in bed. She saw Ms. Bates outside screaming,
“Dirty D just shot him.” Ms. Calloway also stated that she
had seen Appellant carrying something that looked like a
gun prior to the shooting. At trial, however, Ms. Calloway
denied seeing Appellant with a gun. The Commonwealth
introduced her prior [inconsistent] statement through the
testimony of Detective Morton.
* * *
Commonwealth v. Mack, No. 545 EDA 2009, unpublished memorandum at
1-3 (Pa.Super. filed September 24, 2012).
The next witness, Walter Williams, sent the police a letter from prison
and claimed to have information about Victim’s murder. When interviewed,
Mr. Williams told the police that he saw Victim sitting on his bike talking to
Appellant at 45th and Laird Street, heard gunshots several seconds later, and
saw Appellant going through Victim’s pockets while Victim was lying on the
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ground. Mr. Williams also said he saw Appellant holding a gun in his hand.
At trial, Mr. Williams recanted his statement. The Commonwealth asked Mr.
Williams if anyone approached him about this case before trial, and Mr.
Williams said an investigator questioned Mr. Williams at his house. The
Commonwealth introduced Mr. Williams’ prior inconsistent statement
through the testimony of Detective Morton. Detective Morton said he
contacted Mr. Williams about testifying at Appellant’s trial, and Mr. Williams
indicated he was concerned about his family’s safety and his well-being.
During closing arguments, the prosecutor addressed Mr. Williams’ recanted
statement:
What else is interesting? They talk about this investigator
coming out, Walter Williams told us about, that an
investigator from the defense came out to him and he
signed a statement for them. He says in that statement,
he says to you: “They are on my porch at my house,” at
an address they keep repeating wasn’t the address he
gave to police.
They are not doing anything wrong, I don’t mean to
suggest that, by interviewing witnesses.
He moved away from his old address and people are
coming to this house and asking him: “I am working for
[Appellant] and I want to know: What did you see on that
night?
Walter Williams is: “Oh, my God. I am at a new house and
they still found me and they want me to say what I knew
about that night.”
He doesn’t say: “I lied to the police about the violation of
parole.” He says: “I don’t know [Appellant]. I have
nothing to do with this, nothing to do with this case”
because [Mr. Williams] is panicking.
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[Mr. Williams] has a guy on his porch who found him,
sought him out and still asking him about this case.
Walter Williams is scared to death, just as he told
Detective Morton; he is afraid. He doesn’t want to put his
life at stake. He wanted to tell the police originally what
happened. When push comes to shove, it’s his life as
opposed to [Victim’s] life, who is already dead.
(N.T. Trial, 10/29/08, at 17-18) (emphasis added).2
Procedurally, a jury convicted Appellant on October 29, 2008, of first
degree murder, robbery, and firearms not to be carried without a license.
The court sentenced Appellant on January 29, 2009, to life imprisonment for
the murder conviction, a consecutive term of five (5) to ten (10) years’
imprisonment for the robbery conviction, and a consecutive term of three
and a half (3½) to seven (7) years’ imprisonment for the firearms
conviction. This Court affirmed the judgment of sentence on September 12,
2012, and our Supreme Court denied allowance of appeal on May 13, 2013.
Appellant did not seek further direct review, and his judgment of sentence
became final on August 11, 2013.
Appellant timely filed a pro se PCRA petition on May 2, 2014. The
PCRA court appointed counsel, who subsequently filed an amended PCRA
petition and supporting brief on November 9, 2015. On May 3, 2016, the
Commonwealth filed a motion to dismiss Appellant’s PCRA petition. The
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2
We observe there are three separate transcripts for October 29, 2008. The
relevant transcript begins with the prosecutor’s closing arguments.
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PCRA court issued notice on July 15, 2016, of its intent to dismiss
Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant did not
respond. The PCRA court denied relief on August 19, 2016. On August 22,
2016, Appellant timely filed a notice of appeal. The PCRA court ordered
Appellant on August 31, 2016, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied
on September 8, 2016.
Appellant raises two issues for our review:
[WHETHER] APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE ON APPEAL A CLAIM THAT THE
PROSECUTOR ENGAGED IN PROSECUTORIAL
MISCONDUCT WHEN SHE MADE AN ARGUMENT FROM
WHICH THE JURY COULD INFER THAT [APPELLANT]
THREATENED WITNESSES[?]
[WHETHER] TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO A CLOSING COMMENT MADE BY
THE PROSECUTOR REGARDING WHAT MAY HAVE
OCCURRED TO THE MURDER WEAPON[?]
(Appellant’s Brief at 7).
Our standard of review of a grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). 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
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denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over
the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,
44, 18 A.3d 244, 259 (2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable George W.
Overton, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed November 4, 2016, at 3-10)
(finding: (1) viewed in context, prosecutor’s comment did not imply
Appellant threatened witness (Mr. Williams) to prevent him from testifying;
rather, prosecutor suggested witness recanted portions of his original
statement at trial and refused to admit that he had spoken with police
because witness panicked; prosecutor argued witness feared implications of
being involved with Appellant’s case; witness told police he feared for safety
of himself and his family; prosecutor gave jury possible explanation for
witness’ partial recantation; prosecutor’s statement was proper; (2) in his
closing argument, trial counsel emphasized that police did not find gun
and/or bullets in Appellant’s home; it was proper for prosecutor to respond
by saying it was no surprise that Appellant did not retain possession of
murder weapon because there was six-month gap in time between incident
in April 2006 and Appellant’s arrest in October 2006; prosecutor suggested
explanation for why police did not find murder weapon in Appellant’s home
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and highlighted that police found shooting range target with holes consistent
with ammunition police found at scene of incident and in Victim’s body;
prosecutor’s statements were proper; because his claims lack arguable
merit, Appellant failed to carry his burden under the Strickland test for
ineffective assistance of counsel). Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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