J-S29021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAMSIDDIN Q. SALLAM
Appellant No. 1451 EDA 2016
Appeal from the PCRA Order April 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006240-2011
CP-51-CR-0006241-2011
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED JULY 20, 2017
Appellant, Shamsiddin Sallam, appeals the order of the Court of
Common Pleas of Philadelphia County, entered April 14, 2016, that denied
without a hearing his first petition filed under the Post Conviction Relief Act
(“PCRA”).1 We affirm the order on the basis of the PCRA court’s opinion.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. See PCRA Ct. Op., 4/14/16, at 1-
4. Appellant was arrested and charged on April 12, 2010, with murder and
related offenses for the fatal shootings of Gregory Jarvis and Harry Williams.
On October 11, 2012, a jury found Appellant guilty of two counts of first-
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* Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541–9546.
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degree murder, as well as robbery, carrying a firearm without a license,
carrying a firearm on public streets in Philadelphia, and possession of an
instrument of crime.2 On December 6, 2012, Appellant was sentenced to
imprisonment for a term of life followed by ten to twenty years.3 Appellant
filed a direct appeal on December 13, 2012. This Court affirmed the
judgment of sentence on October 10, 2013.4
On February 10, 2015, Appellant filed a timely pro se PCRA petition.
Counsel appointed for Appellant filed an amended petition on January 4,
2016.5 That petition challenged (1) the effectiveness of trial counsel for
failing to request a mistrial after the trial court sustained his objection to a
comment made by the prosecutor during opening argument at his jury trial,6
and (2) the effectiveness of appellate counsel for waiving a claim regarding
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2
18 Pa.C.S. §§ 2502(a), 3701, 6106, 6108, and 907(a), respectively.
3
The trial court imposed a mandatory sentence of life imprisonment without
parole for each count of murder of the first degree, and shorter terms of
imprisonment for the lesser charges, to be run concurrently. Appellant was
also sentenced to a consecutive term of ten to twenty years’ imprisonment
on the charge of robbery.
4
Commonwealth v. Sallam, 87 A.3d 881 (Pa. Super. 2013) (unpublished
memorandum), appeal denied, 87 A.3d 319 (Pa., Mar. 12, 2014).
5
In light of the amended petition, the PCRA court properly declined to
address the claims in Appellant’s pro se PCRA petition. See PCRA Ct. Op. at
5 n.2 (citing Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011)
(PCRA counsel is presumed to raise all meritorious issues within an amended
petition)).
6
On Appellant’s direct appeal, this Court had held that trial counsel failed to
preserve this issue for appellate review by failing to request a mistrial.
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another comment made by the prosecutor during opening argument. 7 On
March 15, 2016, the PCRA court issued a notice of its intent to dismiss
Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.8 The
PCRA court dismissed Appellant’s petition on April 14, 2016. This appeal
followed.
Appellant raises the following issue for our review:
Did the Honorable PCRA Court err when it denied [Appellant]’s
Amended PCRA Petition without conducting a Hearing and all
where [Appellant] properly pled and would have been able to
prove that he was entitled to PCRA relief?
Appellant’s Brief at 3.
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017)
(citation omitted).
Appellant contends that trial counsel was ineffective in failing to move
for a mistrial after the prosecutor engaged in prosecutorial misconduct
during his opening statement, and that appellate counsel was ineffective for
further waiving the claim on appeal. Appellant’s Brief at 10. Specifically,
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7
On the direct appeal, we had held both that trial counsel had waived this
issue for failing to request a mistrial, and that appellate counsel had further
waived the issue by making only a bald assertion in his brief that the
prosecutor’s comment was improper.
8
Counsel did not respond to the Rule 907 notice.
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Appellant asserts that he is entitled to a new trial because of two statements
made by the prosecutor: first, the prosecutor’s statement that Appellant had
written a letter to Jarvis during a prior incarceration, as it informed the jury
that Appellant had a criminal history; and second, the prosecutor’s
statement to the jury that a surveillance video he would introduce during his
case-in-chief was “going to scream at [them],” even though they would not
be able to see the faces of the individuals in the video. See id. at 10-11.
Appellant construes the prosecutor’s comment about the video as an
impermissible voucher for a piece of evidence. See id. Appellant asserts
that because the statements were made at the onset of trial, the jurors
“could have been very impressed, and all in the wrong way” by the
prosecutor’s statements. Id.
With regard to PCRA claims alleging ineffective assistance of counsel,
this Court has held:
Counsel is presumed to have been effective. To overcome this
presumption, a PCRA petitioner must plead and prove that: (1)
the underlying legal claim is of arguable merit; (2) counsel's
action or inaction lacked any objectively reasonable basis
designed to effectuate his client's interest; and (3) prejudice, to
the effect that there was a reasonable probability of a different
outcome if not for counsel's error.
Andrews, 158 A.3d at 1263 (quotation marks and citation omitted).
“Prejudice is established if there is a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different.”
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
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Furthermore, “[a]n evidentiary hearing is not mandatory for all claims raised
in a PCRA petition.” Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008),
cert. denied, 558 U.S. 1082 (2009). A PCRA petitioner is required to show
that he is entitled to an evidentiary hearing due to the presence of genuine
issues of material fact on a meritorious issue. Commonwealth v. Rivera,
108 A.3d 779, 788 n.4 (Pa. 2014).
A mistrial is only granted when a defendant has been deprived of his
right to a fair trial. See Commonwealth v. Chamberlain, 30 A.3d 381,
420 (Pa. 2011), cert. denied, 132 S.Ct. 2377 (2012). In the context of
remarks made by counsel,
[A] prosecutor has reasonable latitude during his closing
argument to advocate his case, respond to arguments of
opposing counsel, and fairly present the Commonwealth's
version of the evidence to the jury. The court must evaluate a
prosecutor's challenged statement in the context in which it was
made. Finally, not every intemperate or improper remark
mandates the granting of a new trial; reversible error occurs
only when the unavoidable effect of the challenged comments
would prejudice the jurors and form in their minds a fixed bias
and hostility toward the defendant such that the jurors could not
weigh the evidence and render a true verdict.
Commonwealth v. Hanible, 30 A.3d 426, 465 (Pa. 2011) (quotation
marks, citations, and brackets omitted), cert. denied, 133 S.Ct. 835
(2013). “[P]rosecutorial misconduct will not be found where comments were
based on the evidence or proper inferences therefrom or were only oratorical
flair.” Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009).
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Furthermore, “[m]ere passing references to criminal activity will not
require reversal unless the record indicates that prejudice resulted from the
reference.” Commonwealth v. Stafford, 749 A.2d 489, 496 (Pa. Super.
2000) (internal quotation marks and citation omitted), appeal denied, 795
A.2d 975 (Pa. 2000). “A mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.” Commonwealth v.
Chamberlain, 30 A.3d 381, 422 (Pa. 2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Barbara A.
McDermott, we conclude that there is no merit to the issue Appellant has
raised on appeal. The PCRA court opinion properly disposed of the question
presented. See PCRA Ct. Op. at 7-8 (finding (1) that the prosecutor’s
passing reference to Appellant’s prior incarceration was insufficient to
prejudice the jury against Appellant, and that any prejudice caused by the
comment was cured by the trial court’s immediately responsive instruction to
the jury;9 and (2) that cell phone records placed Appellant at the location of
the surveillance footage, that the prosecutor’s remark that the surveillance
video would “scream” was “nothing more than a rhetorical flourish,
insufficient to warrant a mistrial,” and that the jury was instructed that the
opening remarks were not to be considered as evidence). Accordingly, we
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9
We also note that evidence of Appellant’s prior incarceration was
introduced at trial, including through Appellant’s own testimony. See N.T.,
10/10/12, at 196-97, 206.
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affirm on the basis of the PCRA court’s opinion. The parties are instructed to
attach the opinion of the PCRA court in any filings referencing this Court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
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Circul~~\Vet} 01 :55 PM
APR l4 20\6
IN THE COURT OF COMMON PLEAS ;i...r~I~
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Olfo,~mial·
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANtA : CP-51-CR-0006240-201 l
: CP-51-CR-0006241-2011
CP-51-CR-0006240-2011 Cc_mm. v, Salfem, shomslddin a.
v. Op:niOCom. v. Sallam, S.
Combined Opinion