Com. v. Anderson, R. ( 2024 )

J-A10030-24
2024 PA Super 271COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT M. ANDERSON :
:
Appellant : No. 710 EDA 2023
Appeal from the PCRA Order Entered February 8, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013588-2013
BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED NOVEMBER 13, 2024
Appellant, Robert Anderson, appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
(“PCRA”), collaterally challenging his jury conviction of murder in the third
degree.1 Appellant raises multiple claims of prior counsel’s ineffective
assistance based on 15 separate comments in the prosecutor’s summation
and a discretionary trial court ruling. All of the claims are resolvable on the
trial court record. We affirm.
On direct appeal, this Court found the trial court’s statement of facts to
have been supported by the record, reproduced as follows:
On July 13, 2013, Daimeen Walker and Josiah McClarence were
involved in an altercation with Giovanni Bain and Nkingi Jones in
southwest Philadelphia. Following the incident, Mr. Walker called
Tyreek Hall, also known as “Southwest Reek,” for help. Driving a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
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gold Buick, Mr. Hall and Appellant picked up Mr. Walker and Mr.
McClarence and asked them to identify the men with whom they
had brawled. After Mr. Walker and Mr. McClarence did so,
Appellant and Mr. Hall switched cars, getting into a rented silver
Ford Mustang.
At approximately 4:00 p.m., Appellant and Mr. Hall drove to North
64th Street, where Mr. Jones and Mr. Bain were playing basketball
with brothers Aaron and Tremaine Rogers. Mr. Hall asked if any of
the men had been bothering his cousin. Mr. Jones informed him
that the fight was over. At that time, Appellant told Mr. Hall to
“get busy” with the young men. Mr. Hall took a gun from his
waistband and fired seven times into the crowd before fleeing with
Appellant.
Police responded to the scene and were provided with a
description of the perpetrators. As they began to search for
evidence, officers discovered Tremaine Rogers lying face down in
the back yard of 905 N. 64th Street. Mr. Rogers had suffered a
gunshot wound to the lower back and was pronounced dead at the
scene.
Police interviewed Mr. Bain, Mr. Jones, and Aaron Rogers, who
described both the fistfight and shooting. Police also interviewed
Mr. McClarence and Mr. Walker, who identified Mr. Hall as
“Southwest Reek” and Appellant as “Bobby.” From two photo
arrays, Mr. Bain, Mr. Jones, and Mr. Rogers identified Appellant as
the driver and Mr. Hall as the shooter. Further investigation
revealed that on June 26, 2013, Appellant rented a gray Ford
Mustang. Although the car was due to be returned July 27, 2013,
Appellant exchanged the car on July 13, 2013 at 5:32 p.m.,
approximately one half hour after Mr. Rogers was pronounced
dead.
Commonwealth v. Anderson, No. 2117 EDA 2015, 2017 WL 2558644, *1
(Pa. Super., filed June 13, 2017) (the “Direct Appeal”) (footnote omitted).
In addition, when the shooting started, Justin Mond was standing in front of
the house and fled up the street. N.T. 3/9/15, 193-197. A projectile was found
two months later in the front door of a house in line with where a gunshot
fired by co-defendant at Mond might have gone. N.T. 3/6/15, 40-44, 188-190.
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Appellant and co-defendant Hall were jointly tried by a jury before the
Honorable Sandy L.V. Byrd starting March 3, 2015. At trial, co-defendant Hall
testified he was acting in self-defense and claimed Aaron Rogers had a gun on
the night of the murder. N.T. 3/9/15, 9-131. Appellant did not testify.
On March 12, 2015, the jury returned its verdict finding Appellant guilty
of murder in the third degree.2 N.T. 3/12/15, 50. On June 26, 2015, the court
imposed a term of 20 to 40 years’ incarceration.
Appellant filed a timely appeal and raised three claims: the insufficiency
of the evidence; trial court error in denying a mistrial for the prosecutor’s
reference to Appellant’s post-arrest silence and characterization of defense
arguments in summation; and trial court error in engaging in a shouting match
with and admonishment of trial counsel. This Court affirmed the judgment of
sentence on June 13, 2017. The Supreme Court of Pennsylvania denied a
petition for allowance of appeal on November 22, 2017. See Commonwealth
v. Anderson, 174 A.3d 1024 (Table).
Appellant filed a timely pro se PCRA petition on September 5, 2018.
Retained PCRA counsel filed an amended petition. The Commonwealth filed a
Motion to Dismiss, to which Appellant filed a response.
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2 The jury also found Appellant not guilty of murder in the first degree, criminal
conspiracy and possessing an instrument of crime. N.T. 3/12/15, 50. Co-
defendant Hall was tried under Docket No. CP-51-CR-0013587-2013. The jury
found co-defendant guilty of murder in the third degree and possessing an
instrument of crime. Id., 44. It found him not guilty of murder in the first
degree and conspiracy. Id.
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The Honorable Scott DiClaudio, presiding as the PCRA court, issued a
Notice of Intent to Dismiss the Petition in accordance with Pa.R.Crim.P. 907
on January 5, 2023, stating the reasons it found each of the claims meritless.
Notice of Intent to Dismiss, 2-3; Trial Court Record, 389-390. The PCRA court
dismissed the petition on February 24, 2023. Order, 2/24/2023; Trial Court
Record, 403. Appellant filed a timely Notice of Appeal, and Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Trial Court
Record, 404, 422-424.
Appellant raises four claims on appeal, as follows:
I. Did trial and direct appeal counsel render ineffective
assistance for failure to object to and argue all available
instances in support of his Petitioner’s claim of prosecutorial
misconduct? …
II. Was direct appeal counsel ineffective for failing to quote and
discuss the prosecution’s improper references to petitioner’s
post-arrest silence? …
III. Did the court below err in failing to consider cumulative
prejudice when evaluating the above issues, since there are
more than one issue meeting the first prong of the
ineffectiveness analysis? …
IV. Was direct appeal counsel ineffective for failing to raise on
appeal the trial court’s refusal to have the testimony of co-
defendant Hall read back to the jury?
Appellant’s Brief, 3.
We review an order denying a PCRA petition to determine whether the
PCRA court’s decision is supported by the evidence of record and free of legal
error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018);
Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). The PCRA
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court need not hold an evidentiary hearing if it “can determine from the record
that no genuine issues of material fact exist.” Commonwealth v. McCready,
295 A.3d 292, 298 (Pa. Super. 2023) (citation omitted). We review the PCRA
court’s legal conclusions de novo. Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011).
To obtain relief on a claim of prior counsel’s ineffective assistance, a
PCRA petitioner must satisfy the performance and prejudice test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984). “In Pennsylvania, we
have applied the Strickland test by looking to three elements: the petitioner
must establish that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Commonwealth v. Robinson, 82
A.3d 998, 1005 (Pa. 2013) (citing Commonwealth v. Pierce, 527 A.2d 973,
975 (Pa. 1987)). The Sixth Amendment right to counsel is recognized “not for
its own sake, but because of the effect it has on the accused’s right to a fair
trial.” Robinson, 82 A.3d at 1005 (internal quotation marks omitted).
With regard to the second prong (reasonable basis), “we do not
question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable basis.”
Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). We
will hold that counsel’s strategy lacked a reasonable basis only if
the petitioner proves that a foregone alternative “offered a
potential for success substantially greater than the course actually
pursued.” Spotz, 18 A.3d at 260. Our review of counsel’s
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performance “must be highly deferential.” Commonwealth v.
Tharp, … 101 A.3d 736, 772 (Pa. 2014) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). To establish the third
element (prejudice), the petitioner must show that there is a
reasonable probability that the outcome of the proceedings would
have been different but for counsel’s action or inaction. [Hanible,
30 A.3d at 439].
Brown, 196 A.3d at 150–51 (internal citations edited for clarity). A failure to
satisfy any of the three prongs is fatal to a claim of counsel’s ineffective
assistance. Id. at 151; Commonwealth v. Midgley, 289 A.3d 1111, 1119
(Pa. Super. 2023).
Appellant’s initial set of claims, which he combines as though one, are
based on the prosecutor’s summation. It alleges both trial and appellate
counsel’s ineffective assistance in raising only some of the numerous allegedly
objectionable instances, rather than all. Appellant’s Brief, 23-26. Appellant
bases this allegation of ineffective assistance on ten specific comments made
by the prosecutor, separated into two categories. While some comments were
within the objections made at trial, the majority were not and so appellate
counsel could not be faulted for not having raised them in the direct appeal.
Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013) (“we hold that
Grant’s general rule of deferral to PCRA review remains the pertinent law on
the appropriate timing for review of claims of ineffective assistance of
counsel”).3
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3 Appellant also argues that trial counsel’s “failure to object to these additional
instances of prosecutorial misconduct damaged direct appeal counsel’s ability
(Footnote Continued Next Page)
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A prosecutor enjoys substantial latitude to present argument with
“logical force and vigor.” Commonwealth v. Bryant, 67 A. 3d 726, 728 (Pa.
2013) (citation omitted); Commonwealth v. Marshall, 633 A.2d 1100, 1107
(Pa. 1993) (citations omitted). “While it is improper for a prosecutor to offer
any personal opinion as to guilt of the defendant or credibility of the witnesses,
it is entirely proper for the prosecutor to summarize the evidence presented,
to offer reasonable deductions and inferences from the evidence, and to argue
that the evidence establishes the defendant’s guilt.” Bryant, 67 A.3d at 727-
728. A prosecutor does not commit misconduct merely by summarizing the
evidence “with the oratorical flair allowed during argument,” Marshall, 633
A.2d at 1107, or by fairly commenting on the evidence and responding to
defense arguments. Commonwealth v. Wayne, 720 A.2d 456, 468 (Pa.
1998). The bounds of “oratorical flair” afford the prosecution significant
leeway in this regard, but “when statements deteriorate into impermissible
characterizations and inflammatory name-calling that are divorced from the
record or irrelevant to the elements of the crime at issue, they are
substantially unwarranted and must be scrutinized for prejudicial effect[.]”
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to put before this Court a full picture of the objectionable nature of the speech
as a whole.” Appellant’s Brief, 28. As discussed below, none of these ten
comments warranted relief and therefore appellate counsel’s alleged inability
to present a full picture was not damaged. “While criminal defendants often
believe that the best way to pursue their appeals is by raising the greatest
number of issues, actually, the opposite is true: selecting the few most
important issues succinctly stated presents the greatest likelihood of success.”
Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993). See
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004).
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Commonwealth v. Clancy, 192 A.3d 44, 65 (Pa. 2018); Commonwealth
v. Crumbley, 270 A.3d 1171, 1182 (Pa. Super.), appeal denied, 284 A.3d
884 (Pa. 2022). Reversible error occurs only if the prosecutor has deliberately
attempted to destroy the factfinder’s objectivity. Commonwealth v. Miles,
681 A.2d 1295, 1300 (Pa. 1996).
An ineffectiveness claim based on counsel’s failure to object to a
prosecutor’s closing argument has merit where it is demonstrated that the
comment deprived the petitioner of a constitutional or statutory right, such as
the right to a fair trial or due process. See Commonwealth v. Tedford, 960
A.2d 1, 28-29 (Pa. 2008). “The touchstone is the fairness of the trial, not the
culpability of the prosecutor.” Id. at 28. The PCRA court ruled that it “is
apparent that none of [the comments raised in the petition] were so egregious
that the unavoidable effect would be that the jury was unable to properly
weigh the evidence and render a true verdict.” PCRA Court Opinion, 5. We
agree.
In the direct appeal, Appellant raised a claim of trial court error in
denying a motion for mistrial based on multiple specific comments in the
prosecutor’s closing argument. We recognize that an allegation of
ineffectiveness based on a failure to object to the prosecutor’s closing
argument is a different legal claim than one of trial court error in denying a
mistrial based on the same argument. See Commonwealth v. Collins, 888
A.2d 564, 573 (Pa. 2006) (“a Sixth Amendment claim of ineffectiveness raises
a distinct legal ground for purposes of state PCRA review under §
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9544(a)(2)”). Nonetheless, “the [ineffectiveness] claim may fail on the
arguable merit or prejudice prong for the reasons discussed on direct appeal.”
Id. Appellant’s failure to delineate his PCRA claim from that raised on direct
appeal, however, obfuscates the effect of that ruling on the claims raised in
the petition. Also, Appellant’s legal theory that raising more allegations of
improper argument by the prosecutor would have resulted in relief in the
direct appeal, Appellant’s Brief, 27, rests on the whether any of the additional
claims have merit because this Court found no merit to those raised in the
direct appeal. Direct Appeal, *4-*5.4
Appellant listed five comments by the prosecutor that he alleges
disparaged defense counsel, as follows:
These are some great attorneys. They can do a lot to wipe things
away. …
And these wonderful attorneys can get up here and try and pull
the wool over your eyes and tell you that is not why he fired. …
It along with several of the other things that were said by defense
attorneys in their closing is blatantly and provably not true. …
There are a lot of things that great defense attorneys can do. They
can shade a lot of things. They can gild things the way they want
them gilded. …
Ladies and gentlemen, in this case these two individuals, these
two attorneys, got up and did a great job of trying to make you
think Aaron Rogers had a gun . . . He admitted to murder and no
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4 Appellant sought review of the trial court’s denial of a mistrial on the basis
of: allegedly improper comment on post-arrest silence; and describing
defense arguments with words such as “concocted” and “ridiculous.” See
Direct Appeal, *4-*5. This Court held that the arguments were not improper.
Id.
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amount of fancy lawyering or clever attorneys can make that go
away. They have tried to pull the wool over your eyes.
Appellant’s Brief, 26.
“[I]n order to evaluate whether the comments were improper, we do
not look at the comments in a vacuum; rather we must look at them in the
context in which they were made.” Commonwealth v. Weiss, 776 A.2d 958,
968 (Pa. 2001); Crumbley, 270 A.3d at 1182. Of the five comments Appellant
lists, each was proper in context as they were grounded in the facts of the
case or fair response to the arguments made by defense counsel. See Clancy,
192 A.3d at 65 (“we should not preclude or condemn a prosecutor’s
characterizations of the defendant that are both based upon the record and
that inherently inform elements of an offense at issue, especially where the
remarks constitute a fair response to defense counsel's argument”). See,
e.g., Commonwealth v. Henry, 706 A.2d 313, 330-31 (Pa. 1997)
(references to defense as “ridiculous” did not constitute misconduct);
Commonwealth v. Davis, 565 A.2d 458, 466 (Pa. Super. 1989) (no
misconduct where prosecutor’s argument, though “arguably sarcastic,” was
based on evidence); Commonwealth v. Maxwell, 477 A.2d 1309, 1316-17
(Pa. 1984) (prosecutor’s summation permissibly characterized defense
counsel as “blowing smoke”).
The reference to “great attorneys,” who can “do a lot to wipe things
away,” N.T. 3/10/15, 131, directly responded to the meager attempt by
defense counsel to undermine Daimeen Walker’s in-court testimony in which
he confirmed that his statement to police reported accurately what happened
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the day of the shooting. N.T. 3/3/15, 253-254. The prosecutor explained that
the only argument presented that the statement was not accurate was that
Walker had been waiting at homicide for a “long time” before speaking with
detectives. Of course, that alleged delay did not undermine Walker’s credibility
in court. N.T. 3/10/15, 130-131.
The reference to “wonderful attorneys” who tried to “pull the wool over
your eyes and tell you that is not why [co-defendant] fired,” N.T. 3/10/15,
155, directly responded to the defense argument that Aaron Rogers
supposedly had a gun and pulled it first. The prosecutor’s comment rested on
the testimony of both Gianni Bain and Nkangi Jones that Aaron Rogers did not
have a gun that day. N.T. 3/3/15, 304; N.T. 3/4/15, 101. This was proper
argument. Commonwealth v. Guilford, 861 A.2d 365, 371–72 (Pa. Super.
2004) (not improper for prosecutor to argue defense counsel “tried to pull the
wool over your eyes” where based on the record or “context of defense
counsel’s conduct”).
The prosecutor’s argument that “things that were said by defense
attorneys in the closing is blatantly and provably wrong”, N.T. 3/10/15, 161,
was directly preceded by his argument based on testimony at trial that the
four surviving victims of the shooting “all cooperated immediately with
whichever officer walked up to them.” Id. The defense had elicited at trial that
police reports indicated that the witnesses were not initially cooperative. N.T.
3/6/15, 205-206. In direct response, the Commonwealth called Officer Dionne
Madison to explain that her report that some persons at the scene were not
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cooperative, used by defense attorneys in cross-examination, referred to the
people who had been inside the house at the time of the shooting and not the
three teenagers outside. Id., 211-212. The prosecutor’s argument was based
directly on trial testimony and therefore proper.
The reference to “great attorneys can … shade a lot of things … can gild
things” referred to defense arguments against the credibility of teenagers
Gianni Bain and Nkingi Jones. N.T. 3/10/15, 167-169. The prosecutor
continued, “[b]ut you can’t change these kids [Jones and Bain] into something
other than what they are,” which were teenagers who choke up and start to
cry when identifying Appellant and co-defendant in a photo array, and
“testified consistently, gave statements consistently.” N.T. 3/10/15, 169. “[A]
prosecutor may respond to challenges to his witnesses’ credibility.”
Commonwealth v. Drummond, 775 A.2d 849, 858 (Pa. Super. 2001) (en
banc).
With respect to the final passage of alleged disparagement, Appellant’s
selectively-edited quotation isolates the complained of comment from its
context. See Appellant’s Brief, 26. That context refutes that the prosecutor
meant to disparage counsel. The prosecutor’s argument was based entirely on
the record evidence of the key factual dispute, whether Aaron Rogers had a
gun. At trial, two witnesses who survived the shooting, Nkingi Jones and
Gianni Bain, testified that co-defendant Hall opened fire on the order of
Appellant and that Aaron Rogers did not have a gun. N.T. 3/3/15, 304, 313-
320, 327-328; N.T. 3/4/15, 87-102. Co-defendant testified that he opened
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fire in response to Aaron Rogers pulling a gun. N.T. 3/9/15, 31-40, 86-94. The
emphasized language in the quotation below is the portion quoted by
Appellant in his brief:
Ladies and gentlemen, in this case these two individuals, these
two attorneys, got up and did a great job of trying to make you
think Aaron Rogers had a gun. But if you look at the evidence in
this case, you know without any question beyond a reasonable
doubt that is not why this man [co-defendant] fired. They came
with the illegal gun. They came with the car they could ditch. They
prepared to shoot it out. They said it themselves. They were ready
to shoot. They came ready to cover up what they did. And
Southwest Reek said and he admitted to murder. He said the
reason he shot was because these kids talked too reckless. He
admitted to murder and no amount of fancy lawyering or clever
attorneys can make that go away. They have tried to pull the wool
over your eyes, ladies and gentlemen. I ask you very simply, don't
let that happen. Don’t let a gun be invented out of thin air.
N.T. 3/10/15, 193. The prosecutor’s argument was plainly based on the record
evidence in fair response to defense arguments. Clancy, 192 A.3d at 65. See
also Guilford, 861 A.2d at 371–72.
Appellant also alleged five separate instances in which the prosecutor
allegedly argued facts not in evidence. Appellant’s Brief, 23-25. These were
rhetorical flourishes. We do not find that the prosecutor’s intent was to mislead
the jury. See Miles, 681 A.2d at 1300. Moreover, as the PCRA court noted
“the jury was instructed that the statements during closing were not evidence
and instead facts presented by witnesses was controlling.” PCRA Court
Opinion, 5. See N.T. 3/10/15, 222-223. “The jury is presumed to follow the
court’s instructions.” Tedford, 960 A.2d at 37.
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Four of the comments listed by Appellant as not having been based on
evidence in the record were:
Josiah did what so many witnesses do in homicides, right? He got
up here and he said I don’t think I said that, that’s not what I said
to Homicide. …
The detective work in this case was called into question, and it
always will be. Every defense attorney in a homicide will get up
and say the assigned detective did a bad job, he should have done
something different.…
Anybody in the police academy can tell you getting up over a
seven foot wall is as easy as putting your hands on it. …
You know why we wait, besides the backlog and all of that?
Because we would have loved to have that gun.
Appellant’s Brief, 23-25.
Josiah McClarence denied his written and signed statement to the police
at trial. See N.T. 3/3/15, 84-128. Thus, the prosecutor’s extrapolation that
“so many witnesses do [the same] in homicides” was of no particular moment
in this case even if there was no evidence that such is commonplace. N.T.
3/10/15, 187. See Appellant’s Brief, 23. The broader, more important and
wholly accurate point the prosecutor made was that the written statement
was “substantive evidence.” N.T. 3/10/15, 187.
Similarly supported by the record generally was the prosecutor’s
reference to “[a]nybody in the police academy.” N.T. 3/10/15, 144. See
Appellant’s Brief, 24-25. The key point here was that Gianni Bain testified that
he had “hop[ped]” the stone wall in the backyard of the victim’s home to
escape from the shooting. N.T. 3/3/15, 320-321. Defense counsel expressed
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disbelief that such was possible on cross-examination and argument. See N.T.
3/4/15, 336; N.T. 3/10/15, 108. The prosecutor directly responded, “I don’t
know, by the way, what people are talking about that Gianni, a six-foot kid,
can’t get up over a seven-foot wall, six-foot athletic kid. Of course he can.
Anybody in the police academy can tell you getting up over a seven-foot wall
is as easy as putting your hands on it and getting over it. And Gianni at the
time was a nineteen-year-old teenager, right? Of course he can get over that
wall.” The reference to the police academy was immaterial to the prosecutor’s
argument, based on trial evidence and common experience, that Gianni Bain’s
testimony was credible. Clancy, 192 A.3d at 65; Drummond, 775 A.2d at
858.
The reference to “[e]very defense attorney in a homicide” by the
prosecutor may have been unsupported rhetoric in isolation. N.T. 3/10/15,
151. See also Appellant’s Brief, 24. However, in this case, the defense did
argue, as the prosecutor said, that “the assigned detective did a bad job, he
should have done something different.” N.T. 3/10/15, 151. See id., 75-79,
81-82, 84-87. Thus, the prosecutor was responding directly to defense closing
argument and relying on evidence in the record. Clancy, 192 A.3d at 65.
On this same line, the prosecutor addressed several specific points the
defense had raised. N.T. 3/10/15, 150-152. One of which was the delay in
examining the ballistics evidence resulting in a report being completed and
turned over to the defense shortly before trial. See id., 151-152; N.T. 3/3/15,
56-57. The defense attacked the delay. N.T. 3/10/15, 84. The prosecutor first
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referred to the officer’s testimony that he was a witness in three trials that
day to explain the backlog. Id., 151. He then argued that ballistics experts
would not want to conduct the examination too soon because additional
evidence might be discovered. Id., 152. For example, in this case, a projectile
was found, across the street, two months after the shooting. It was consistent
with the caliber of ammunition used by co-defendant and located in a direction
in which co-defendant would have fired a shot at the fleeing Justin Mond. The
prosecutor suggested that the examiners would have also been waiting for a
firearm used by co-defendant. Id. Although there was no testimony to directly
support this, it was a reasonable extrapolation from the ballistics expert’s
testimony that without the firearm used in the shooting, it was not possible to
rule in or out the possibility of a second gun having been fired at the scene.
N.T. 3/6/15, 30-31.
The fifth allegation of an argument based on facts not in evidence
referred to the prosecutor discussing his own decision not to carry a firearm
though often in a place where he might come face-to-face with a person
accused of a violent crime, as follows:
Well, here’s the thing about that. I don’t have a gun. I’m a
homicide prosecutor. Every day I go meet with people. I go to
scenes. I go talk to people where I’m in danger. And before I was
a homicide prosecutor I spent five years as a domestic violence
prosecutor and I never had a gun then either. The reason I don’t
have a gun is because my wife is against guns. She hates them.
She won’t let me have one.
When you’re a domestic violence prosecutor, there’s an incredibly
high percentage chance that when you go to the scene, to the
victim’s house, to the survivor’s house, and you go talk to them
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that you’re going to meet the defendant there. But I love my job
and I love my wife, so I don’t carry a gun.
The reason no one ever saw any of these kids with a gun is
because they didn’t have a gun. And they may be able to convince
you that I have a gun too, but the God’s honest truth is this
weekend I’ll be somewhere I shouldn’t be without a gun because
I don’t carry a gun, the same way that Gianni and Aaron and
Tremaine and Nkingi went over that house without a gun because
they didn’t have a gun, and that’s why no one has ever seen any
of them with a gun.
Appellant’s Brief, 23-24. See N.T. 3/10/15, 175-177.
Although the personal possession of a firearm by the prosecutor was not
a fact in evidence, the argument presented did not ask the jury to base its
verdict on his personal decision. It was offered as an illustration to rebut a
defense argument that Aaron Rogers must have had a gun on him when he
returned to the scene of the initial fight with Gianni Bain and Nkingi Jones.
See N.T. 3/10/24, 26-27, 99-101.5 Rather than asking the jury to decide the
case on a fact not in evidence, the prosecutor was illustrating that it was not
necessarily true, as the defense had argued, that either Aaron Rogers or
Gianni Bain must have possessed a firearm when they returned to the scene
of the initial fight. “It’s one thing to think that somebody may possibly be
getting a gun. It’s a whole ’nother thing to say, oh, that’s crazy, … they would
never have gone back over there without a gun.” N.T. 3/10/15, 176. This was
vigorous argument by the prosecutor based on legitimate inferences from the
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5 The defense argument was based on the testimony of Gianni Bain that after
the initial fight he believed that Josiah McClarence went to get someone
bigger, or a gun, to exact revenge. This belief led Gianni Bain and Nkingi Jones
to tell Aaron Rogers what had happened and to return with him to the area of
the initial fight. N.T. 3/3/15, 303-304, 375-376; N.T. 3/4/15, 84-85, 146-148.
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trial testimony and therefore proper. Commonwealth v. Luster, 71 A.3d
1029, 1048 (Pa. 2013) (en banc).
Appellant’s second enumerated claim in this appeal also is based on five
distinct comments in the prosecutor’s summation. He argues that appellate
counsel provided ineffective assistance “when arguing that improper reference
had been made to [Appellant’s] post-arrest silence, leading this Court to hold
that the issue could not be decided.” Appellant’s Brief, 29. This is only half
correct. This court found waiver because counsel had not provided citations to
the record, Direct Appeal, *4, but it also ruled that “[e]ven if we did not find
waiver, an examination of the portions of argument cited to by Appellant do
not reveal any inference by the prosecutor regarding Appellant’s post-arrest
silen[ce] but, instead, [he] discuss[ed] Mr. Hall’s testimony regarding his
claim of self-defense.” Id. In other words, this Court addressed the merits of
the claim. Therefore, the predicate of the ineffectiveness allegation against
appellate counsel – that the claim was not reviewed – is not correct.
Generally, the Commonwealth may not comment on, or otherwise refer
to, an accused’s post-arrest silence in a subsequent criminal proceeding. E.g.,
Doyle v. Ohio, 426 U.S. 610, 611 (1976); Commonwealth v. Clark, 626
A.2d 154, 156 (Pa. 1993). “[E]ven an explicit reference to silence is not
reversible error where it occurs in a context not likely to suggest to the jury
that silence is the equivalent of a tacit admission of guilt,” Commonwealth
v. Adams, 104 A.3d 511, 517 (Pa. 2014) (quoting Commonwealth v.
Whitney, 708 A.2d 471, 478 (Pa. 1998)), or if it is harmless beyond a
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reasonable doubt. Commonwealth v. Mitchell, 839 A.2d 202, 212-13 (Pa.
2003); Commonwealth v. Boone, 862 A.2d 639, 646 (Pa. Super. 2004).
After our own review, we agree with this Court’s prior ruling on the
merits and conclude that appellate counsel could not have presented the claim
more effectively on direct appeal such that Appellant would have been entitled
to relief. None of the comments cited by Appellant refer directly to him.
Rather, each, either directly by name or in context, referred to co-defendant’s
testimony. Accordingly, the prosecutor was not commenting on Appellant’s
silence at all.
Four of the alleged comments on Appellant’s post-arrest silence are:
And they are fantastic attorneys and they spent all week trying to
convince you that there was a gun there that was never there,
that no evidence ever said was there until the day yesterday when
Tyreek Hall got up here and said not what he said the night of,
right? When he admitted to murder. Not what he said then but
what he said eighteen months later, oh yeah, that one guy Aaron
Rogers, he had a gun. …
There’s only one target left, and that one target is running up the
street. And when he fires at that target, he loses all ability, all
credibility whatsoever to say, oh, I was just shooting this way
because I saw a gun in the waistband of a guy and I didn’t
remember until eighteen months after that I saw that gun. He
loses it all. …
No. He didn’t want us to find that gun because if we found that
gun, you know what we would have found. And so the one guy for
eighteen months who could have turned over that gun, who could
have helped us locate that gun, waits until yesterday to say it was
Southwest Reek, or excuse me, it was Dave from Southwest who
works for the school district. …
And then eighteen months later, after he admits to murder, he
has the audacity to sit in front of you folks and to say, to say in
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front of the family that there was a gun there that he just didn’t
mention for eighteen months.
Appellant’s Brief, 30-31.
The gist of the prosecutor’s arguments challenged co-defendant’s
credibility. Co-defendant claimed that Aaron Rogers had a gun that he pulled
first. This claim was first asserted at the time of trial, after Aaron Rogers had
passed away one month prior. N.T. 3/6/15, 126. The prosecutor contrasted
co-defendant’s testimony at trial to what Daimeen Walker had said co-
defendant told him at the time of the shooting: co-defendant admitted to
shooting “at them” and said, he and Appellant “had to get out of the area
because things went bad. One of the boys was talking too reckless.” N.T.
3/3/15, 222-223. That was not a self-defense claim, and Daimeen Walker
testified at trial that his statement was accurate and true. N.T. 3/3/15, 253.
We find that “the Commonwealth was unarguably entitled to comment on the
credibility of [a defense witness’] belated support of the self-defense theory.”
Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). This was
fair response to defense argument. Id. More importantly the prosecutor’s
arguments were not a comment on Appellant’s post-arrest silence at all. The
allegation of appellate counsel’s ineffective assistance with respect to these
meritless claims thus fails the first prong of the Strickland test.
The fifth alleged comment requires an additional explanation. Appellant
presents it as:
And so even though for the last eighteen months everything
anyone ever said was that there was one gun there . . . they
looked at the menu and they said self defense.
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Appellant’s Brief, 30.
This is the one comment that does not directly reference co-defendant’s
testimony. However, in context, it questioned the credibility of the self-
defense claim, which only co-defendant’s testimony supported. It was made
at the start of the prosecutor’s summation, and was a roadmap to why the
jury should find the Commonwealth’s witnesses more credible than co-
defendant. It referred back to the opening statement when the prosecutor told
the jury he did not know what the defense would be: “In a case like this, they
get three options, right? Our guys weren’t there, our guys weren’t the
shooters, self defense.” N.T. 3/10/15, 123. He noted that five eyewitnesses
to the events testified that Appellant and co-defendant were the assailants.
“So the first two are out. They can’t say it wasn’t them. They can’t say they
weren’t shooting. So they were left with one option and that’s what they went
with.” Id.Immediately following this, the prosecutor reached the selectively
edited quotation that Appellant relies upon. Tellingly, the unedited quotation
contains the explanation, basis and direction of the comment. The unitalicized
argument is the factual context omitted by Appellant, as follows:
And so even though for the last eighteen months everything
anyone ever said was that there was one gun there, was that
Aaron Rogers, a person they claim had a gun, was in the middle
of playing basketball, wearing basketball shorts and a jersey, and
everyone knows you can’t have a loaded weapon on you or a
weapon of any kind while you’re playing basketball, even though
those are the facts, even though every witness was consistent,
even though every witness was cooperative, even though the
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ballistics showed that those kids were telling the truth, they looked
at the menu and they said self defense.
N.T. 3/10/15, 123-124. In its full context, this was an entirely proper
argument, discussing the trial evidence that undermined the credibility of co-
defendant’s testimonial assertion of self-defense. Rolan, 964 A.2d at 410.
Appellant’s third enumerated claim is that the PCRA court erred by not
applying a standard of cumulative prejudice. Appellant’s Brief, 34-35. Such
standard is only applicable if there are multiple errors. “[N]o number of failed
claims may collectively warrant relief if they fail to do so individually.”
Tedford, 960 A.2d at 56. It is only where multiple instances of deficient
performance are found that assessment of prejudice properly may be
premised upon cumulation. Commonwealth v. Johnson, 966 A.2d 523, 532
(Pa. 2009). As we find no merit to any of the 15 summation-based PCRA
claims raised by Appellant, there is no basis to conduct the requested review.
The PCRA court did not err.
Appellant’s fourth enumerated claim alleges direct appeal counsel’s
ineffective assistance for declining to raise on appeal trial court error in
denying trial counsel’s request for the jury to be read co-defendant’s
testimony in response to a jury question. Appellant’s Brief, 36-41. Appellant
misconstrues the jury’s question and the trial court’s ruling.
The decision to permit the reading of trial testimony to the jury during
its deliberation is left to the trial court’s discretion. Commonwealth v.
Johnson, 838 A.2d 663, 677 (Pa. 2003); Commonwealth v. Peterman,
244 A.2d 723, 726 (Pa. 1968). An abuse of discretion “takes one of three
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forms. … It occurs if (1) the trial court committed an error of law; (2) the court
exercised its judgment in a manifestly unreasonable manner; or (3) the court’s
decision was the result of partiality, prejudice, bias or ill-will, as shown by
evidence on the record.” Commonwealth v. Ellis, 313 A.3d 458, 462 (Pa.
Super. 2024), appeal denied, 2024 WL 4440024 (Pa., filed Oct. 8, 2024).
On the first full day of deliberations the jury sent the trial judge the
following note: “Please provide us with a transcript of all of Tyreek Hall’s
testimony.” N.T. 3/11/15, 25. Rule of Criminal Procedure 646 forbids giving a
“transcript of any trial testimony” to a jury while it is deliberating. Pa.R.Crim.P.
646(C)(1).
Appellant’s counsel, ultimately joined by co-defendant Hall’s counsel,
argued that the jury “obviously want to hear [co-defendant’s] testimony
again.” N.T. 3/11/15, 26. In doing so, counsel erroneously informed the court
that the Rules do not prohibit giving the jury a transcript of trial testimony.
Id. He added, “I’m not even asking for that at this juncture. I think we can
accommodate their request by having it reread, like we do many, many times
… by the court reporter.” Id., 26-27. The Commonwealth suggested inquiring
of the jury if there was something specific it was “looking for” because reading
back the “whole testimony” would take significant time away from
deliberating. Id., 27. The trial court was concerned that the only way to read
the testimony back would be to have the court reporter “take some time and
organize the notes and decipher the notes as he attempts to read it back.”
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Id., 28. It also noted that in 14 years as a trial judge there had been no
“instance” in which the court “ever had anybody’s testimony read back.” Id.
Thus, after reinstructing the jury on malice, which it also had requested,
the court responded to the jury’s request for a transcript of all of co-
defendant’s testimony:
… you must all recall that when I gave you preliminary instructions
I advised you to pay close attention to the testimony because you
would be called upon to rely on your recollection of the testimony
during the course of your deliberations. Further, you were all
permitted to take notes. My recollection is that the testimony was
two days ago and it consumed approximately an hour. More
crucial to the point with regards to the question you have asked
me, the rules of court, Mr. Foreman, prohibit my sending out any
transcript of any trial testimony. So I invite you ladies and
gentlemen to resume your deliberations and if you have additional
questions or concerns, you should feel free to bring those to my
attention.
N.T. 3/11/15, 33-34. Although the jury did ask multiple additional questions
over the next two days of deliberation, it did not request that co-defendant’s
testimony be read to them.
After the court explained its reasons for not permitting the jury to have
a transcript of co-defendant’s testimony as requested, Appellant’s counsel –
not co-defendant’s – accused the court of “playing semantic games with the
jury.” N.T. 3/11/15, 34.
THE COURT: That’s an insult.
[Trial Counsel]: No, it’s not.
THE COURT: These are intelligent people. They asked for a
transcript.
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[Trial Counsel]: I’m putting something on the record. You can
deny it. I’m putting it on the record.
THE COURT: I’m speaking now.
[Trial Counsel]: I want to put something on.
THE COURT: I’m speaking now. Don’t accuse me of playing
semantic games or any other kind of games. They asked for a
transcript. The rules say they can’t have a transcript.
N.T. 3/11/15, 35. Trial counsel eventually calmed down enough to restate the
objection as the jury wanting “the testimony of Mr. Hall to help them decide
this case. That is clearly what they’ve asked for.” Id., 36. He also added, for
the record, “that the court reporter has indicated within ten minutes, and
probably could have been done already by this point in time, have had that
done and could have read it completely to this jury within an hour to an hour
and a half.” Id.
In response, the court explained its reasoning for denying Appellant’s
renewed objection:
First of all, they didn’t ask to have the testimony read back.
Secondly, they asked for a transcript, which is prohibited by Rule
646. Third, reading testimony back to them doesn’t convey to the
jury the demeanor of the testifying witness and it is not exactly a
reproduction of what happened during the taking of the testimony.
Lastly, I‘m not the least bit concerned about time. It is in my
discretion. I’ve made my ruling and my ruling stands.
N.T. 3/11/15, 37-38.
We discern no abuse of discretion in the court’s ruling. It did not, as
Appellant would have us believe, adopt an “inflexible rule” that testimony
should never be read to the jury. See Appellant’s Brief, 38-39. It merely noted
that doing so was far more difficult than Appellant’s counsel had initially
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suggested. The court plainly stated that it was exercising its discretion to deny
the request by trial counsel to have all of co-defendant’s testimony read back
to the jury.
This was a reasonable exercise of discretion, because co-defendant’s
testimony was recent – certainly compared to the four eyewitnesses who
testified during the first two days of trial – and the court had permitted the
jury to take notes. It would have been reversible error, if rereading co-
defendant’s testimony would place “undue emphasis on one witness’s
testimony.” See Peterman, 244 A.2d at 726. This would have been likely
given that the testimony that contradicted co-defendant’s claim of self-
defense had been heard the week prior. Additionally, the trial court’s concern
that having co-defendant’s testimony read to the jury by the court reporter
would not “convey to the jury the demeanor of the testifying witness” nor
would it “reproduce[e] … what happened during the taking of the testimony”
was sufficient by itself to affirm the court’s exercise of discretion.
Commonwealth v. Patterson, 180 A.3d 1217, 1235 (Pa. Super. 2018)
(holding that it was not an abuse of discretion for a trial court to decline to
have an appellant’s testimony read to a deliberating jury because it “would
not provide the jury with the same benefit of observing [appellant] or his
demeanor or the manner in which [appellant] testified”) (internal quotation
marks omitted).
We find that the underlying claim that the trial court abused its
discretion was without arguable merit. Counsel cannot be deemed ineffective
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for having declined to raise a meritless claim. Commonwealth v. Davis, 262
A.3d 589, 596 (Pa. Super. 2021).
Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Date: 11/13/2024
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