J-S36019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS MARINELLI :
:
Appellant : No. 1445 EDA 2016
Appeal from the PCRA Order March 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0306911-2001,
CP-51-CR-0507251-2002, CP-51-CR-0507261-2002,
CP-51-CR-0507271-2002, CP-51-CR-0507281-2002,
CP-51-CR-0507291-2002, CP-51-CR-0507301-2002,
CP-51-CR-0507311-2002, CP-51-CR-0507321-2002,
CP-51-CR-0507331-2002, CP-51-CR-0507341-2002,
CP-51-CR-0507351-2002, CP-51-CR-0507361-2002,
CP-51-CR-0507371-2002, CP-51-CR-0507381-2002,
CP-51-CR-0507391-2002, CP-51-CR-0507401-2002,
CP-51-CR-0507411-2002, CP-51-CR-0507421-2002,
CP-51-CR-0507431-2002, CP-51-CR-0507441-2002,
CP-51-CR-0507451-2002, CP-51-CR-0507461-2002,
CP-51-CR-0507481-2002, CP-51-CR-0507491-2002,
CP-51-CR-0507511-2002, CP-51-CR-0507521-2002,
CP-51-CR-0507531-2002, CP-51-CR-0507541-2002,
CP-51-CR-0507551-2002, CP-51-CR-0507561-2002,
CP-51-CR-0507581-2002, CP-51-CR-0507591-2002,
CP-51-CR-0507601-2002, CP-51-CR-0507681-2002,
CP-51-CR-0507691-2002, CP-51-CR-0507701-2002,
CP-51-CR-0507711-2002, CP-51-CR-0507721-2002,
CP-51-CR-0507741-2002, CP-51-CR-0507761-2002,
CP-51-CR-0507821-2002, CP-51-CR-0507831-2002,
CP-51-CR-0507991-2002, CP-51-CR-0508001-2002,
CP-51-CR-0508011-2002, CP-51-CR-0508021-2002
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2018
J-S36019-18
Nicholas Marinelli (“Appellant”) appeals pro se from the Order entered
by the Philadelphia County Court of Common Pleas dismissing his Petition filed
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”).
We affirm.
On April 16, 2004, the court sentenced Appellant to an aggregate term
of 25 to 50 years’ imprisonment followed by 10 years’ probation after a jury
convicted him of forty-five counts of Burglary.1 The court denied Appellant’s
post-sentence motions. After the trial court twice reinstated Appellant’s direct
appeal rights nunc pro tunc, Appellant timely appealed from only four of the
forty-five convictions.2,3 This court affirmed those four Judgments of
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1 The evidence presented at trial included Appellant’s statements made to
police officers as they drove him around neighborhoods in northeast
Philadelphia asking him about specific houses they had listed on a log as
having been burglarized.
2 Six of the burglaries were second-strike offenses pursuant to 42 Pa.C.S.
§9714. Of the four dockets over which we have jurisdiction in this PCRA
Petition, the court sentenced Appellant to the mandatory minimum terms of
incarceration of ten to twenty years, to run concurrently, for an aggregate
term of incarceration of 10 to 20 years. For a case not appealed, the court
imposed a sentence of 10 to 20 years that was to be served consecutively to
the sentence imposed on one of the four preserved dockets. The court
sentenced Appellant below the guidelines on the remaining 39 counts of
Burglary to terms of incarceration of 47-94 days, with all counts to run
consecutively to the mandatory minimum sentences, for an aggregate term
of incarceration of 5 to 10 years on those 39 cases. Commonwealth v.
Marinelli, No. 462 and 463 EDA 2001 (Pa. Super. filed Apr. 8, 2009).
3Appellant appealed from the convictions entered on docket numbers CP-51-
CR-0507401-2002, CP-51-CR 0507681-2002, CP-51-CR 0508011-2002, and
CP-51-CR 0507251-2002.
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Sentence. See Commonwealth v. Marinelli, Nos. 462 and 463 EDA 2007
(Pa. Super. filed Apr. 8, 2009). Appellant did not seek relief from the
Pennsylvania Supreme Court. His Judgments of Sentence on the forty-one
unappealed convictions, thus, became final on May 16, 2004. With respect to
the remaining four convictions that he had appealed, his Judgments of
Sentence became final on May 8, 2009.
On March 22, 2010, Appellant filed a timely pro se PCRA Petition listing
all 45 CCP docket numbers. The court appointed counsel, who filed an
amended PCRA petition. The court thereafter granted Appellant’s request to
proceed pro se after conducting a Grazier4 hearing. The lower court docket
indicates Appellant filed another PCRA Petition on June 10, 2015, after the
Grazier hearing. The court sent a Pa.R.Crim.P. 907 Notice of its intent to
dismiss the Petition without a hearing. On March 22, 2016, the PCRA court
dismissed the Petition.
Appellant timely appealed pro se. The court did not order him to file a
Pa.R.A.P. 1925(b) Statement. The trial court filed a Rule 1925(a) Opinion.
Appellant’s Brief contains the following Statement of Questions
Presented, quoted here verbatim:
I. (a) Did the PCRA Court err in not reinstating the petitioner’s
appellate rights and post-sentence motions where there is no
doubt petitioner’s constitutional rights were violated, whereas the
due process clause of the constitution guarantees the defendant
effective assistance of counsel on first appeal?
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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(b) Did the PCRA Court err in their decision to dismiss
petitioner’s PCRA on all 45 cases due to time bar?
(c) Did the PCRA Court err in failing to reinstate petitioner’s
right to direct appeal and post-sentence motions nunc pro tunc
when the sentence imposed was manifestly excessive, constitutes
a potential life sentence whereas direct appeal counsel failed to
properly argue and preserve “discretionary aspects of sentence”
which is challengeable in this Commonwealth, leaving the
petitioner without any issues for review on direct appeal causing
a constructive denial of assistance of counsel on first appeal?
II. (a) Did the PCRA Court err in not deeming direct appeal
counsel in effective for failing to preserve and argue that
statement taken 6 hours passed arrest without an arraignment
must be suppressed, whereas the lower court erred in allowing
suppressible statement to be entered as the main piece of
evidence at trial?
(b) Whether the “totality of the circumstances” surrounding
the custodial interrogations of petitioner, 6 hours past arrest
without an arraignment were not argued or preserved properly
and were the statements made reliable, voluntary and a product
of the defendant’s free will without promises, gifts or coercion?
III. (a) Whether the PCRA Court erred in not deeming direct
appeal counsel ineffective for not executing a proper direct appeal
on behalf of the petitioner where direct appeal counsel failed to
raise, preserve, and argue the meritorious issue of prosecutorial
misconduct, when, during her closing argument and without any
factual basis, the prosecutor stated that the witnesses were afraid
to testify against petitioner?
(b) Whether the lower court erred in not granting a mistrial
even though trial judge Berry sustained the objection of the
comments made by ADA Melissa Francis in her closing argument,
the comments still heard by the jurors who were left with fixed
bias and were inflamed without any evidentiary basis, which
should have awarded petitioner with a new trial?
(c) Whether the PCRA Court erred by not ruling that direct
appeal counsel was ineffective and constructed the petitioner’s
brief in such a manner it left the petition without any issues for
review on appellant’s first appeal and also with a constructive
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denial of counsel whereas the court should have reinstated the
appellant’s appeal rights and post-sentence motions?
IV. (a) Whether the PCRA Court erred in not finding the petitioner
had a constructive denial of counsel on first appeal whereas the
petition was left with no issues for direct appeal being preserved
or argued properly when there was a violation of the petitioner’s
speedy trial rights and due process, Pa.R.Cr.P. Rule 600, which
was originally argued by trial counsel on September 2, 2003 room
502 where trial judge Berry neither answers nor rules on the
motion made by defendant?
V. (a) Whether the PCRA Court erred in finding the petitioner had
a constructive denial of counsel on first appeal, whereas, the
petitioner, had no issues of merit raised, argued, or preserved
properly when direct appeal counsel was ineffective for failing to
reserve the proper case nos. CP-51-CR-0508021-2002 and CP-
51-CR-0507401-2002 with respect to the “statutory construction
aspects” of the language set forth in section 9714 of the Pa. 2nd
strike statute(s)?
(b) Whether counsel failed to challenge the fact that in both
crimes no violence whatsoever occurs or in imminent, as the term
“crime(s) of violence” is unambiguous with contradiction to the
language set forth under section 9714 regarding “violence” in the
definition of “burglary - ….at the time ….any person is “present”
creates ambiguity in its meaning, hence any ambiguity found in a
penal statue shall be ruled in favor of the defendant, resulting was
the petitioner receiving consecutively enhanced mandatory
sentences for a total of 20-40 years of imprisonment for “2 crimes
of violence” where no violence occurs, questioning this court as to
whether an absurd flow results?
Appellant’s Brief at 11-14.
Standard of Review
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
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supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
PCRA Petition Timeliness
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to consider his PCRA Petition. See
Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that
the timeliness of a PCRA Petition is a jurisdictional requisite). Under the PCRA,
any petition “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1).
A Judgment of Sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
are jurisdictional in nature, and a PCRA court may not address the merits of
the issues raised if the petitioner did not timely file the PCRA petition.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Pennsylvania courts may consider an untimely PCRA petition, however,
if the petitioner pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b)(1)(i)-(iii). For a petitioner to avail himself of one of the
exceptions, he must file his Petition within 60 days of the date the claim could
have been presented. See id. at Section 9545(b)(2).
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Here, Appellant filed his PCRA Petition in connection with all forty-five
Judgments of Sentence, which the trial court had entered simultaneously on
April 16, 2004. After his appeal rights were reinstated nunc pro tunc,
Appellant filed a direct appeal in just four of those cases. With respect to the
remaining forty-one cases, his Judgments of Sentence, thus, became final 30
days after their entry, i.e., May 16, 2004. Accordingly, his PCRA Petitions filed
on March 22, 2010, and June 10, 2015, were untimely as to those forty-one
cases. Because Appellant did not assert any of the timeliness exceptions in
his PCRA Petitions, the trial court was without jurisdiction to consider the
merits of the issues that Appellant raised in connection with those forty-one
cases. Accordingly, this Court is likewise without jurisdiction.
With respect to the remaining four cases that Appellant had directly
appealed, as we noted above, the Judgments of Sentence in those cases
became final on May 8, 2009. Appellant’s PCRA Petition filed on March 22,
2010, was timely with respect to those four cases. 42 Pa.C.S. § 9545(b)(1).
The PCRA court, thus, had jurisdiction to consider the merits of the issues
raised in the Petition with respect to those four cases.
Review of Issues
Once it is determined that the court has jurisdiction, in order to obtain
post-conviction review an eligible petitioner must establish, inter alia, that his
conviction or sentence resulted from one or more of the enumerated errors or
defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation; ineffective
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assistance of counsel; an unlawfully induced plea; improper obstruction by
governmental officials; a case where exculpatory evidence has been
discovered; an illegal sentence has been imposed; or the tribunal conducting
the proceeding lacked jurisdiction. See 42 Pa.C.S. § 9543(a)(2)(i)-(viii). A
petitioner must also establish that the issues raised in the PCRA petition have
not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
Ineffective Assistance of Appellate Counsel
In each of his issues, Appellant claims that appellate counsel was
ineffective. The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in
rejection of the appellant’s ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Courts will not
find that counsel provided ineffective assistance by failing to pursue meritless
claims. Commonwealth v. Dewitt, 412 A.2d 623, 624 (Pa. Super. 1979).
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Issue I
In Issue I(a) and (b), Appellant avers that direct appeal counsel was
ineffective for appealing only four of his forty-five Judgments of Sentence.5
As noted above, Appellant did not file a timely PCRA Petition in those forty-
one cases and a claim of ineffective assistance of counsel is “not sufficient
justification to overcome otherwise untimely PCRA claims.” Commonwealth
v. Lark, 746 A.2d 585, 589 (Pa. 2000). Accordingly, the issue presented in
paragraphs I(a) and (b) garners no relief.
In Issue I(c), Appellant contends that appellate counsel provided
ineffective assistance by failing to raise a challenge to the discretionary
aspects of his sentence. See Appellant’s Brief at 33-35. Appellant avers that
appellate counsel should have argued on appeal that his sentence was harsh
and unreasonable.
We have stated that:
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
____________________________________________
5 Without reference to record, Appellant also asserts that the trial court
violated his “constitutional rights by appointing counsel to only [four] cases
when the petitioner was found guilty by one jury trial of [forty-five] total cases
(convictions) of burglary.” Appellant’s Brief at 29. Due to the voluminous
record, we are unable to verify this claim. Accordingly, this issue is waived.
See Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005) (citations
omitted) (observing it is not the duty of this Court to “scour the record” and
“act as the appellant's counsel” and declining to do so). See Pa.R.A.P. 2119
(b), (c) (requiring citation to record in appellate brief).
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of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
Here, Appellant avers that because the court sentenced him to
consecutive mandatory minimum terms of incarceration, his sentence is
“manifestly excessive” and a “potential life sentence.” Appellant’s Brief at 26.
Although he refers only to the second-strike offenses as erroneously imposed
when he challenges the validity of the mandatory minimum requirement, see
id. at 33-35, he nonetheless contends that when combined with all of the
other sentences imposed, his total sentence of 25-50 years is excessive in
light of the non-violent nature of his crimes, his drug addiction and mental
health issues, and his age. See id. at 35.
As we noted in our consideration of Appellant’s direct appeal:
[O]n the four appealed cases, Appellant was sentenced to the
mandatory minimum. Further, his aggregate sentence on the four
cases appealed is not twenty to forty years as he contends; rather,
it is ten to twenty years. The record clearly reflects that the
sentences on cases [ ]7681[ ], [ ]8011[], and [ ] 7251[], were to
be served concurrently, not consecutive, to the sentence on case
[ ] 7401[ ]. The sentence on case CP-51-CR-0508021-2002, a
case that Appellant did not appeal, was the ten to twenty-year
sentence that was to be served consecutively to the sentence on
case [ ] 7401[ ]. See N.T., 4/16/04, at 40-43; Trial Court Opinion
dated 4/9/08 at 1-3.
This court has specifically stated that a challenge to the
discretionary aspects of sentence, based solely upon a claim that
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the trial court imposed a mandatory minimum sentence, is
frivolous. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.
Super. 2007) [ ]. Further, we have held that the decision to
impose consecutive or concurrent sentences is within the
discretion of the trial court and does not raise a substantial
question on appeal. Commonwealth v. Ahmad, 961 A.2d 884,
887 n.7 (Pa. Super. 2008).
Commonwealth v. Marinelli, 462 EDA 2007, at 4 (Pa. Super. filed Apr. 8,
2009).
As noted above, contrary to Appellant’s contention, the court imposed
the sentences in the cases cognizable in this PCRA Petition to run concurrently,
not consecutively. Additionally, Appellant bases his challenge on the court’s
imposition of mandatory minimum sentences. Such a challenge is frivolous.
Nischan, supra at 355. We will not conclude that appellate counsel provided
ineffective assistance by failing to raise a frivolous claim. Accordingly, the
issue raised in paragraph I(c) warrants no relief.
Issue II
In Issue II, Appellant asserts that appellate counsel was ineffective for
failing to challenge the denial of his suppression motion on appeal. Although
appellate counsel raised the issue in Appellant’s Pa.R.A.P. 1925(b) Statement,
see Trial Ct. Op., dated 4/10/08, at 5-7, counsel did not set forth or brief the
issue in his appellate brief.
In order to determine whether appellate counsel was ineffective, we
must determine whether the underlying claim merit has merit, i.e., whether
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the suppression court properly denied Appellant’s motion to suppress his
statements.
In reviewing the denial of a Motion to Suppress, we are limited to
considering only the Commonwealth’s evidence and “so much of the evidence
for the defense as remains uncontradicted when read in the context of the
record as a whole.” Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa.
Super. 2017) (citation omitted). Where the testimony and other evidence
supports the suppression court’s findings of fact, we are bound by them and
“may reverse only if the court erred in reaching its legal conclusions based
upon the facts.” Id. at 816. It is within the exclusive province of the
suppression court to “pass on the credibility of witnesses and determine the
weight to be given to their testimony.” Id.
“The scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing.” Commonwealth v.
Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016) (citing In re L.J., 79 A.3d
1073, 1087 (Pa. 2013)). This Court will not disturb a suppression court’s
credibility determination absent a clear and manifest error. Commonwealth
v. Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).
In concluding that the trial court properly denied Appellant’s Motion to
Suppress, the trial court noted the following in its Rule 1925(a) Opinion filed
in response to the issues raised on direct appeal in Appellant’s Rule 1925(b)
Statement:
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Appellant avers that his statement to detectives was not given
knowingly, intelligently or voluntarily[;] however testimony
presented showed that Appellant was fully lucid, and coherent in
providing statements to Philadelphia Detectives. Appellant,
subject to his second strike, at least, was familiar with the Criminal
Justice System and fancied himself as being a paralegal. He was
Mirandized on four separate occasions, both verbally, and in
writing. On each occasion, he signed his initials indicating that he
understood the warnings and wanted to waive his right to counsel.
At no time did Appellant ask to stop the interviews, nor did he ask
to speak to a defense attorney. Additionally, Detective Nestal []
testified that on two occasions, March 20 and March 21, he
prepared formal statements to sign, but Appellant refused to sign
either. The first time, Appellant indicated that he wanted to first
speak with a District Attorney and the second time, Appellant
indicated he was going to wait and see whether the complainants
showed up for court. (N.T. 2/9/04 p. 50). This evidence certainly
does not support a finding that Appellant was unapprised or
unaware of his right to remain silent. If anything, it affirms the
notion that he exercised (albeit imperfectly) his right to remain
silent. Appellant’s argument is therefore without merit.
Trial Ct. Op., dated Apr. 10, 2008, at 6-7.
In addition, the suppression court stated the following findings of
facts and conclusions of law following the suppression hearing:
I find that the facts are in accordance with the testimony of the
police whose testimony was clear, concise, and uncontroverted on
cross-examination. For the record, I find the testimony of the
defendant to be totally incredible.
I make the following conclusions of law, one, the statements were
voluntarily given. Two, the requirements of Miranda versus
Arizona[6] were fully complied with. Three, the statements – the
condition of the defendant at all times while he was in police
custody was to make him as comfortable as possible under the
____________________________________________
6 Miranda v. Arizona, 384 U.S. 436 (1966).
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circumstances to provide him with food of his own choice from the
same places that the police are commonly found to eat and, in
fact, the police ate food from the same restaurants and further
that his other needs were also see[n] to including cigarettes and
use of facility.
***
Finally, court finds that none of the statements were taken in
violation of the Davenport rule[7] and its progeny and, therefore,
the motion to suppress is denied.
N.T. Suppression, 12/9/02, at 105-06.
Our review of the record created at the suppression hearing indicates
the court’s findings of fact and credibility determinations are supported by the
evidence. The issue underlying this ineffectiveness claim is, thus, meritless.
Because counsel will not be deemed ineffective for failing to pursue a meritless
claim, Appellant has failed to prove appellate counsel provided ineffective
assistance by failing to challenge the denial of his suppression motion on direct
appeal.
Issue III
In Issue III, Appellant asserts that appellate counsel provided ineffective
assistance by failing to “raise, preserve, and argue” a claim of prosecutorial
misconduct that occurred during closing arguments. Appellant’s Brief at 44.
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7 Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977) (providing that
“[i]f the accused is not arraigned within six hours of arrest, any statement
obtained after arrest but before arraignment shall not be admissible at trial”),
overruled by Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004).
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In reviewing a claim of improper prosecutorial comments, our standard
of review “is whether the trial court abused its discretion.” Commonwealth
v. Hall, 701 A.2d 190, 198 (Pa. 1997). “[W]ith specific reference to a claim
of prosecutorial misconduct in a closing statement, it is well settled that any
challenged prosecutorial comment must not be viewed in isolation, but rather
must be considered in the context in which it was offered.” Commonwealth
v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018) (citation omitted). In
addition, “[o]ur review of a prosecutor's comment and an allegation of
prosecutorial misconduct requires us to evaluate whether a defendant
received a fair trial, not a perfect trial.” Id. (citation omitted).
Thus, it is well settled that statements made by the prosecutor to
the jury during closing argument will not form the basis for
granting a new trial unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds
fixed bias and hostility toward the defendant so they could not
weigh the evidence objectively and render a true verdict. The
appellate courts have recognized that not every unwise remark by
an attorney amounts to misconduct or warrants the grant of a new
trial. Additionally, like the defense, the prosecution is accorded
reasonable latitude, may employ oratorical flair in arguing its
version of the case to the jury, and may advance arguments
supported by the evidence or use inferences that can reasonably
be derived therefrom. Moreover, the prosecutor is permitted to
fairly respond to points made in the defense's closing, and
therefore, a proper examination of a prosecutor's comments in
closing requires review of the arguments advanced by the defense
in summation.
Id. (quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.
2016), appeal denied, 135 A.3d 606 (Pa. 2016) (quotation marks and citations
omitted)).
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Appellant challenges the following statements the prosecutor made in
her closing after she noted that two witnesses who came into court did not
identify the defendant: “Were they scared to face him? Were they scared
face-to-face? If they were both telling the truth about that, the description,
why would one say bald and the other blond? Were they scared? Did they
fear the possibility of what could happen?” N.T. Trial, 2/10/04 at 81-82.
Appellant’s counsel then objected and the court sustained the objection.
When the prosecutor then said, “Were they trying not to identify the defendant
in court?” defense counsel again objected and the court sustained the
objection and instructed the prosecutor to “[j]ust comment on the testimony.”
Id. at 82.
Appellant asserts that when the prosecutor stated, “the witnesses were
afraid to testify against [Appellant,]” she “created pre-conceived notion in the
process of deliberations, that the defendant had tampered or threatened the
witnesses.” Appellant’s Brief at 12, 46. He contends that even though the
court sustained his attorney’s objection to the comments, “the comments
were heard and could not be erased from the juror’s minds.” Id. at 46.
Appellant fails to acknowledge the case law cited above that informs our
review of his claim.
First, we consider the challenged statement not in isolation but in the
context in which it was offered. Here, the statement was offered in the context
of closing arguments. Counsel objected and the court sustained the objection.
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Thereafter, during its jury instructions, the court specifically instructed the
jury that statements made by counsel in closing arguments are not to be
considered evidence.8 The law presumes that the jury will follow the
instructions of the court. Commonwealth v. Brown, 786 A.2d 961, 971 (Pa.
2001) (citations omitted). In light of the context in which the isolated
statements were made and the trial court’s subsequent instruction, we cannot
conclude that the “unavoidable effect of such comments” was “to prejudice
the jury, forming in their minds fixed bias and hostility toward” Appellant.
Jones, 191 A.3d at 835.
Further, our review of the trial testimony supports a conclusion that
Appellant received a fair trial. The trial occurred before a jury with multiple
witnesses testifying over six days. In light of the plethora of evidence against
Appellant, we cannot conclude that the prosecutor’s isolated comments made
to the jury during closing arguments rendered the jury unable to “weigh the
evidence objectively and render a true verdict.” Id. Accordingly, there is no
merit to Appellant’s underlying claim. He has, thus, failed to demonstrate that
appellate counsel rendered ineffective assistance of counsel for failing to raise
this meritless claim.
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8 The court specifically informed the jury that, in many instances, closing
arguments contain statements of counsels’ theory of the case made in
advocacy of their clients’ positions. See N.T. Trial, 2/10/04, at 105-06.
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Issue IV
In Issue IV, Appellant asserts that appellate counsel provided ineffective
assistance by failing to raise a Pa.R.Crim.P. 600 speedy trial issue on direct
appeal. He alleges that trial counsel raised the issue by motion before trial
and the trial court held a hearing, but “[i]nstead of making a ruling, the court
shows partiality and exercises ill will or bias by allowing the Commonwealth
another continuance of 6 more months.” Appellant’s Brief at 48-49, 53.
Appellant fails to develop this claim beyond conclusory allegations. See
id. at 49, 52-53. Moreover, he fails to cite to any notes of testimony for the
hearing he alleges occurred on the alleged Rule 600 motion.9 Accordingly,
Appellant’s failure to cite to the record and develop this issue adequately
impairs our ability to review its merits. We, thus, conclude the issue is
waived.10 See Commonwealth v. Thomas, 909 A.2d 860, 862 (Pa. Super.
2006) (deeming issue waived where the appellant failed to cite relevant
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9The PCRA court notes in its Opinion, and our review shows, that the court’s
docket does not indicate that the trial court held any such Rule 600 hearing,
and there are no transcribed notes of testimony for this alleged hearing. See
Trial Ct. Op., dated 7/11/17, at 10.
10 Further, we note that once a trial has occurred, a Rule 600 claim is
technically moot. See Commonwealth v. Sloan, 907 A.2d 460, 464-465
(Pa. 2006) (observing that a Rule 600 issue becomes moot after a defendant
is no longer in pre-trial detention and will be addressed only if the issue raised
is “of a recurring nature yet capable of repeatedly evading review and involves
issues of important public interest”). Appellant has failed to provide any basis
for us to consider the merits of his Rule 600 challenge.
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authority or develop the issue with analysis). See also Pa.R.A.P. 2119(b),
(c), (e) (setting forth briefing requirements).
Issue V
In Issue V, Appellant avers that appellate counsel provided ineffective
assistance by failing to challenge the “‘statutory construction aspects’ of the
language set forth in 42 Pa.C.S. [§] 9714 of the [ ] 2 nd strike statutes[.]”11
Appellant’s Brief at 54. Appellant further avers that he erroneously received
mandatory sentences on two “‘crimes of violence’ where no violence
occurs[sic][.]” Id. at 54-55. He then parses the words “violence” and
“present” as used in the mandatory minimum statute and the burglary statute,
respectively, to support his argument that he was not violent and no one was
present in two of the burglaries. See id. at 56-60. His argument is an
amalgamation of bare legal concepts that essentially boils down to a challenge
to the sentences imposed for two of the burglaries where he “never showed
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11 42 Pa.C.S. § 9714(a)(1) provides that “[a]ny person who is convicted in
any court of this Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had previously been
convicted of a crime of violence, be sentenced to a minimum sentence of at
least ten years of total confinement, notwithstanding any other provision of
this title or other statute to the contrary.” Section 9714(a.1) provides that
“[a]n offender sentenced to a mandatory minimum sentence under this
section shall be sentenced to a maximum sentence equal to twice the
mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of this title or
other statute to the contrary.” 42 Pa.C.S. § 9714(a.1).
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‘intent to harm’ the victims either verbally or physically” and “was never in
the ‘presence’ of the victims for even the potential for violence to be evident.”
Id. at 57.
For the same reason expressed in our review of Appellant’s Issue (I)(c)
challenging the discretionary aspect of his sentence, we conclude Appellant’s
sentencing issue presented here has no merit. See supra at 9-11.
In addition, with respect to his challenge to the burglary statute itself,
we note that our legislature has defined burglary as follows:
A person commits the offense of burglary if, with the intent to
commit a crime therein, the person:
(1)(i) enters a building or occupied structure, or separately
secured or occupied portion thereof, that is adapted for overnight
accommodations in which at the time of the offense any person is
present and the person commits, attempts or threatens to commit
a bodily injury crime therein;
(ii) enters a building or occupied structure, or separately secured
or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is
present[.]
18 Pa.C.S. § 3502(a)(1)(i-ii).
Our courts have rendered numerous decisions addressing the words
used in the burglary statute and their application to the facts presented in
each case. See Commonwealth v. Rivera, 983 A.2d 767, 770 (Pa. Super.
2009) (listing cases). In addition, the mandatory minimum statute at issue
defines burglary as set forth in 18 Pa.C.S. § 3502(a)(1) as a “crime of
violence.” See 42 Pa.C.S. § 9714(g).
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To the extent that Appellant’s argument challenges the sufficiency of the
evidence supporting his burglary convictions, we adopt the following analysis
provided by the PCRA court as our own and conclude the issue underlying this
ineffectiveness claim has no merit.
Appellant’s claim of ineffective counsel for failing to challenge the
burglaries being classified as crimes of violence fails as the
evidence clearly establishes that Appellant committed six (6)
burglaries of homes while persons were present therein. Section
3502 provides that an individual commits burglary when the
individual has the intent to enter a building or occupied structure
“that is adapted for overnight accommodations in which at the
time of the offense any person is present.”[ ] The definition of a
crime of violence includes the crime of burglary. 42 Pa. C.S. §
9714(g).[ ]
Instantly, the record reveals that Appellant committed six (6)
burglaries of homes while person were present therein. Since
Appellant has committed a burglary, and person were present in
the structure, Appellant has committed a crime of violence. Id.
Therefore, Appellant’s claim of ineffective counsel for failing to
challenge the burglaries being classified as crimes of violence
must be dismissed for lack of arguable merit.
Trial Ct. Op., dated July 11, 2017, at 8-9 (footnotes omitted).
Conclusion
Based on our review of the certified record, including the relevant
transcripts and filings, we conclude that the PCRA court’s findings are
supported by the record and its Order contains no legal error. Accordingly,
we affirm.
Order affirmed.
Judge Kunselman joins the memorandum.
President Judge Gantman concurs in result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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