Com. v. Glass, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSEPH GLASS
Appellant No. 3401 EDA 2014
Appeal from the PCRA Order November 14, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005614-2010
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED October 6, 2015
Appellant, Joseph Glass, appeals from the order entered November 14,
2014, in the Court of Common Pleas of Bucks County, which denied his Post
Conviction Relief Act1 (“PCRA”) petition. No relief is due.
The factual history of this matter is well known to the parties, so we
rely upon the PCRA court’s recitation of the facts as set forth on pages one
to three of the March 30, 2015 opinion. Briefly, on February 10, 2011, the
trial court sentenced Glass to 10 to 24 years in prison and ordered to pay
restitution of $198,916.32, following his convictions for arson and recklessly
endangering another person. This Court affirmed Glass’s judgment of
sentence on appeal, and the Pennsylvania Supreme Court denied allocatur.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
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See Commonwealth v. Glass, 50 A.3d 720 (Pa. Super. 2012), appeal
denied, 63 A.3d 774 (Pa. 2013). Glass timely filed the instant PCRA
petition. The PCRA court conducted an evidentiary hearing, after which, the
court dismissed the petition. This timely appeal followed.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review
is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted).
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. See 42
Pa.C.S.A. § 9543(a)(3). “[T]his Court applies a de novo standard of review
to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d
244, 259 (Pa. 2011) (citation omitted).
As this Court has repeatedly stated,
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
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reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111, 1127 (2011).
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),
appeal denied, 64 A.3d 631 (Pa. 2013).
Glass argues that trial counsel was ineffective for failing to object to
instances of prosecutorial misconduct during the Commonwealth’s closing
argument, or to otherwise request the trial court issue a cautionary
instruction to the jury. We disagree. We have previously recognized that
“[n]ot every unwise remark made by an attorney amounts to
misconduct or warrants the grant of a new trial.”
Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006).
“Comments by a prosecutor do not constitute reversible error
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.” Commonwealth v.
Stokes, 839 A.2d 226, 230 (Pa. 2003), quoting
Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).
Furthermore, according to the Pennsylvania Supreme Court in
Commonwealth v. Chmiel[, 889 A.2d 501, 543-44 (Pa.
2005)]:
In determining whether the prosecutor engaged in
misconduct, courts must keep in mind that comments
made by a prosecutor must be examined within the
context of defense counsel's conduct. It is well settled that
the prosecutor may fairly respond to points made in the
defense closing. A remark by a prosecutor, otherwise
improper, may be appropriate if it is in [fair] response to
the argument and comment of defense counsel. Moreover,
prosecutorial misconduct will not be found where
comments were based on the evidence or proper
inferences therefrom or were only oratorical flair.
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Commonwealth v. Collins, 70 A.3d 1245, 1252-53 (Pa. Super. 2013),
appeal denied, 80 A.3d 774 (Pa. 2013).
While “it is improper for a prosecutor to express a personal belief as to
the credibility of the defendant or other witnesses,” the “prosecutor may
comment on the credibility of witnesses.” Commonwealth v. Judy, 978
A.2d 1015, 1020 (Pa. Super. 2009) (citation omitted) (emphasis added).
“[W]hen assessing a claim of [prosecutorial misconduct], the appellate court
must consider whether the prosecutor made a deliberate attempt to destroy
the objectivity of the factfinder or merely summarized the evidence
presented at trial with the oratorical flair permitted during argument.”
Commonwealth v. Novasak, 606 A.2d 477, 481 (Pa. Super. 1992)
(citation omitted).
We have reviewed Glass’s issue raised on appeal, along with the briefs
of the parties, the certified record and the applicable law. Having
determined that the Honorable Diane E. Gibbon’s March 30, 2015 opinion
ably and comprehensively disposes of the issue on appeal, with appropriate
reference to the record and without legal error, we affirm based on that
opinion. See PCRA Court Opinion, 3/30/15 at 3-12.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2015
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