Com. v. Rizzario, G.

J-S36022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GABRIEL RIZZARIO :
:
Appellant : No. 2347 EDA 2020
Appeal from the PCRA Order Entered November 30, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1301042-2006
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED MARCH 07, 2022
Appellant, Gabriel Rizzario, appeals pro se and nunc pro tunc from the
order entered in the Philadelphia County Court of Common Pleas, which denied
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
This Court has previously set forth the relevant facts and procedural
history of this case as follows.
Robert Bullock, the surviving victim, testified that on June
30, 2005 at 11:55 P.M. he walked to the corner of Auburn
and Boudinot to meet his friend Tattoo, Eddie Almodovar.
Mr. Almodovar was riding a bike and was engaged in an
argument with his girlfriend Yolanda when Mr. Bullock
approached the corner. There were approximately ten to
fifteen people out on the street. There were a number of
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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people sitting and standing around 2823 Boudinot including
murder victim, Colleak Cottom, an 18 year old black male.
The witness further testified that he saw Appellant whom he
knows as Shorty come from between two parked cars as Mr.
Almodovar rode down the Street. Appellant was a friend of
Mr. Almodovar. Mr. Bullock had only met Appellant once or
twice on other occasions. Mr. Bullock turned and began to
walk down the street. He then remembered being shot in
the back of the head and went blank. Before the shooting,
the only person behind him was Appellant. The next thing
Mr. Bullock remembered was sitting in a car bench seat
beside 2823 Boudinot. Mr. Bullock walked to Kensington
and Summerset where police were flagged down and he was
taken to Temple Hospital. Mr. Bullock suffered five gunshot
wounds, four to his face including a bullet lodged under his
scalp and a shot in the arm which caused nerve damage.
He was treated and released from Temple Hospital in one
day. The bullet remains lodged in his head. Mr. Bullock has
nerve damage in his arm which continues.
Mr. Almodovar testified that after arguing with his ex-
girlfriend Yolanda he rode up and down the street and then
stopped at the corner of Boudinot and Auburn to speak with
his friend Mr. Bullock. While on his bike next to Mr. Bullock
he heard two shots, turned and saw Appellant whom he has
known for at least two months with a silver revolver in his
hand shoot Mr. Bullock and then repeatedly shoot into the
crowd. He saw Appellant shoot Mr. Cottom. The ambulance
came quickly and took Mr. Cottom to the hospital. Mr.
Almodovar testified that he did not know where Mr. Bullock
had gone. Mr. Almodovar further acknowledged that at the
preliminary hearing he testified there were two men who
shot guns. Mr. Almodovar also testified at the preliminary
hearing that he did not see Appellant shoot. At trial Mr.
Almodovar explained that he did so because of threats made
to him in prison.
Commonwealth v. Rizzario, No. 1098 EDA 2008, unpublished
memorandum at 1-2 (Pa.Super. filed July 21, 2009) (citation omitted), appeal
denied, 606 Pa. 648, 992 A.2d 888 (2010).
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On September 12, 2007, a jury convicted Appellant of third-degree
murder, aggravated assault, possession of a firearm without a license, and
possessing instruments of crime. On December 5, 2007, the court sentenced
Appellant to an aggregate term of 21 to 42 years of imprisonment. This Court
affirmed the judgment of sentence on July 21, 2009, and our Supreme Court
denied Appellant’s petition for allowance of appeal on April 7, 2010. See id.On August 10, 2010, Appellant filed a timely first PCRA petition pro se.
The court appointed counsel, who filed a Turner/Finley2 letter and motion to
withdraw as counsel on October 5, 2011. The court subsequently issued
notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.
907, and Appellant filed a pro se response to the notice. The PCRA court
denied PCRA relief on November 30, 2011, and let counsel withdraw.
Following a subsequent PCRA petition seeking reinstatement of his
appeal rights nunc pro tunc, on August 24, 2020, the PCRA court granted
Appellant leave to appeal nunc pro tunc from the November 30, 2011 order
denying his first PCRA petition. On September 4, 2020, Appellant timely filed
a pro se notice of appeal nunc pro tunc. On December 28, 2020, the court
ordered Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b).
Following the grant of an extension of time, Appellant filed his concise
statement on January 26, 2021. Appellant filed a supplemental concise
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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statement on May 18, 2021.
Appellant raises five issues for our review:
Whether Robert Bullock and Eddie Almodovar’s testimonies
at [the] preliminary hearing [were] hearsay and insufficient
to establish a prima facie case against Appellant.
Whether trial counsel was ineffective for failure to object to
[the] prosecutor’s statement that Appellant changed
appearance in support of consciousness of guilt.
Whether trial counsel was ineffective for failure to object to
[the] prosecutor’s closing argument on presumption of
innocence.
Whether trial counsel was ineffective for failure to object to
[the] prosecutor’s inflammatory statement describing
Appellant as judge, jury and executioner when the evidence
doesn’t support such statement.
Whether trial counsel was ineffective for failure to object to
photos of [the] autopsy of Mr. Colleak Cottom and injuries
to Mr. Robert Bullock as inflammatory.
(Appellant’s Brief at 3) (unnecessary capitalization omitted).
This Court has explained:
Our standard of review of the denial of a PCRA petition is
limited to examining whether the evidence of record
supports the court’s determination and whether its decision
is free of legal error. This Court grants great deference to
the factual findings of the PCRA court if the record contains
any support for those findings. [W]e review the court’s legal
conclusions de novo.
Commonwealth v. Washington, ___ A.3d ___, 2022 PA Super 18, *5 (filed
Feb. 1, 2022) (en banc) (citations and quotation marks omitted).
In his first issue, Appellant argues that the Commonwealth did not
establish a prima facie case at his preliminary hearing. Appellant asserts that
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the Commonwealth relied solely on hearsay evidence to establish the
elements of the offenses for which he was charged, which was insufficient to
establish a prima facie case under Commonwealth v. McClelland, ___ Pa.
___, 233 A.3d 717 (2020). Appellant concludes that he is entitled to relief on
appeal. We disagree.
Preliminarily, we observe the general rule that “any issue not raised in
a Rule 1925(b) statement will be deemed waived for appellate review.”
Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 250 A.3d 468 (2021) (citing Commonwealth v. Lord,
553 Pa. 415, 719 A.2d 306 (1998)). See also Pa.R.A.P. 1925(b)(4)(vii)
(stating that issues not included in concise statement and/or not raised in
accordance with rule are waived).
Here, Appellant did not include his first issue on appeal in either his
initial or supplemental concise statements. (See Rule 1925(b) Statement,
filed 1/26/21, and Rule 1925(b) Statement, filed 5/18/21). Accordingly, his
first issue is waived for appellate review.3 See Bonnett, supra.
In his remaining four issues, Appellant alleges ineffective assistance of
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3 Moreover, even if Appellant had not waived his claim, we note that he would
not be eligible for relief under McClelland because any alleged defect at the
preliminary hearing was cured at Appellant’s jury trial. See Commonwealth
v. Rivera, 255 A.3d 497, 503 (Pa.Super. 2021), appeal granted on other
grounds, 494 MAL 2021, 2022 WL 536442 (Pa. Feb. 23, 2022) (stating: “the
Supreme Court did not intend to extend McClelland’s holding to cases such as
this one, where the complained-of defect in the preliminary hearing is
subsequently cured at trial”).
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counsel. “Pennsylvania law presumes counsel has rendered effective
assistance.” Commonwealth v. Davis, 262 A.3d 589, 595 (Pa.Super. 2021)
(citation omitted). When asserting a claim of ineffective assistance of counsel,
the petitioner is required to demonstrate: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable strategic basis for his action or
inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
Under the traditional ineffectiveness test, “[t]he threshold
inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and
which forms the basis for the assertion of ineffectiveness is
of arguable merit. . . .” Commonwealth v. Pierce, 537
Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or
meritless claim.” Commonwealth v. Poplawski, 852 A.2d
323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable
basis’ test to determine whether counsel’s chosen
course was designed to effectuate his client’s
interests. If we conclude that the particular course
chosen by counsel had some reasonable basis, our
inquiry ceases and counsel’s assistance is deemed
effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations
omitted).
Prejudice is established when [an appellant]
demonstrates that counsel’s chosen course of action
had an adverse effect on the outcome of the
proceedings. The [appellant] must show that there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability
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is a probability sufficient to undermine confidence in
the outcome. . . .
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d
872, 883 (2002) (some internal citations and quotation
marks omitted).
Davis, supra at 596.
In his second, third, and fourth issues on appeal, Appellant alleges trial
counsel was ineffective for failing to object to certain portions of the
prosecutor’s closing argument. Appellant argues that trial counsel should
have objected to the prosecutor’s statement that Appellant’s change of
appearance demonstrated consciousness of guilt. Specifically, Appellant
claims that there was no evidence that his new facial tattoo and new haircut
were an attempt to deceive the court or the jury. Additionally, Appellant
claims trial counsel was ineffective for failing to object to the prosecution’s
description of the presumption of innocence. Appellant also maintains trial
counsel should have objected to the prosecutor’s statement that Appellant
was “the judge, the jury and the executioner.” (Appellant’s Brief at 10) (citing
N.T. Trial, 9/10/07, at 47). He argues that the prosecutor’s statement was
not a fair deduction or inference based on the evidence presented at trial,
which Appellant claims did not establish that he was the shooter. Appellant
concludes trial counsel’s failure to object in these regards constitutes
ineffectiveness and warrants a new trial. We disagree.
It is well settled that:
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The prosecutor is allowed to vigorously argue [her] case so
long as [her] comments are supported by the evidence or
constitute legitimate inferences arising from that evidence.
In considering a claim of prosecutorial misconduct, our
inquiry is centered on whether the defendant was deprived
of a fair trial, not deprived of a perfect one. Thus, a
prosecutor’s remarks do not constitute reversible error
unless their unavoidable effect . . . [was] to prejudice the
jury, forming in their minds fixed bias and hostility toward
the defendant so that they could not weigh the evidence
objectively and render a true verdict. Further, the allegedly
improper remarks must be viewed in the context of the
closing argument as a whole.
Commonwealth v. Smith, 604 Pa. 126, 162–63, 985 A.2d 886, 907 (2009)
(citation omitted).
Here, during closing argument, the prosecutor stated:
Consciousness of guilt, what do we mean? Well, we mean
that the defendant who has been described here over and
over again in these statements as having facial hair, what
did he look like; that, suddenly, he comes into court before
this jury, and the facial hair which he is described repeatedly
as having, described by Robert Bullock, described by Eddie
Almodovar, described by Detective Marano, suddenly, he
doesn’t have that facial hair anymore. You can also consider
that in between the time of meeting with Detective Marano
and coming before you, that the defendant has gotten
himself a new teardrop tattoo underneath his eye. You can
consider that he changed his appearance.
(N.T. Trial, 9/10/07, at 73-74).
Noting the prosecution’s leeway to address facts and draw reasonable
inferences, the PCRA court found that the prosecutor was “free to point to her
preferred inference drawn” from Detective Marano’s testimony about the
contrast in Appellant’s appearance in his arrest photo and his appearance in
the courtroom. (PCRA Court Opinion, filed May 6, 2021, at 6). Further, upon
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review of the prosecutor’s closing argument in its entirety, we cannot say that
the effect of the challenged portion of the closing argument was so prejudicial
as to form in the jury’s minds a “fixed bias and hostility toward the defendant
so that they could not weigh the evidence objectively and render a true
verdict.” See Smith, supra.With respect to the presumption of innocence, the prosecutor explained:
Now you hear about and the judge will instruct you on this
idea of the presumption of innocence. You heard it at the
beginning of trial, you will hear it at the jury instructions at
the end. When we begin a criminal trial and we say that the
defendant is presumed innocent, it doesn’t erase what he
has done. It doesn’t mean that he didn’t commit this killing
and the attempted killing of another person. It means that
we presume that he didn’t, and that the Commonwealth will
come forward and present its evidence to you, and in this
case I have done just that.
(N.T. Trial, 9/10/07, at 45-46).
In evaluating this ineffectiveness claim, the PCRA court reasoned:
Counsel would have no reasonable basis to object to this
language. It is an accurate statement of the law. The
prosecutor is correct that the presumption of innocence is
not a declaration of innocence. It is an affirmation that the
defendant is under no obligation to prove his innocence. It
is the articulation of the settled legal principle that it is solely
the burden of the Commonwealth to produce evidence of
guilt beyond a reasonable doubt.
(PCRA Court Opinion at 5) (citation omitted). We agree with the PCRA court’s
analysis. Appellant has failed to show how the prosecutor’s statement
constituted an inaccurate statement of the law that would have warranted an
objection from trial counsel.
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With respect to the prosecutor’s comment about Appellant being the
“judge, jury and executioner,” the prosecutor stated: “One question in this
case may be why do you care? It is a nighttime shooting on a drug corner.
Care, ladies and gentlemen, because an 18-year-old boy died. Care because
the defendant went out there and he was the judge, the jury, and the
executioner.” (N.T. Trial, 9/10/07, at 74).
The PCRA court explained that the statement “is vigorous argument with
a rhetorical flourish. Such language is allowed.” (PCRA Court Opinion at 6).
We agree with the court’s analysis. See Smith, supra. See also
Commonwealth v. Smallwood, No. 538 MDA 2019 (Pa.Super. Feb. 6, 2020)
(unpublished memorandum),4 appeal denied, ___ Pa. ___, 249 A.3d 252(2021) (holding that prosecutor’s statement that defendant was “judge, jury,
and executioner” was permissible oratorical flair).
Under these circumstances, Appellant cannot demonstrate that trial
counsel was ineffective for failing to object to the challenged portions of the
prosecutor’s closing argument. See Davis, supra. Consequently, Appellant’s
second, third, and fourth issues on appeal merit no relief.
In his final issue, Appellant claims that trial counsel rendered ineffective
assistance when he failed to object to the prosecutor introducing into evidence
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4See Pa.R.A.P. 126(b) (explaining that we may rely on unpublished
memorandum from this Court filed after May 1, 2019, for persuasive value).
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and displaying for the jury autopsy photos of the victim’s corpse. 5 He claims
that counsel should have objected to the photos because there was no basis
for them and they inflamed the emotions of the jurors. Appellant concludes
counsel’s error warrants a new trial. We disagree.
The admissibility of photographic evidence is within the sound discretion
of the trial court and involves a two-step process. “First a [trial] court must
determine whether the photograph is inflammatory.” Commonwealth v.
Haney, 634 Pa. 690, 712, 131 A.3d 24, 37 (2015) (citation omitted). “This
Court has interpreted inflammatory to mean the photo is so gruesome it would
tend to cloud the jury’s objective assessment of the guilt or innocence of the
defendant.” Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011)
(citation omitted). If the photograph is not inflammatory, “it may be admitted
if it has relevance and can assist the jury’s understanding of the facts.”
Haney, supra. “If the photograph is inflammatory, the trial court must decide
whether or not the photographs are of such essential evidentiary value that
their need clearly outweighs the likelihood of inflaming the minds and passions
of the jurors.” Id.
Here, the PCRA court found that this claim lacked merit, explaining:
The autopsy photos were introduced through the testimony
of Dr. Edwin Lieberman, the medical examiner. They
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5Although Appellant’s statement of this question includes a claim that counsel
also failed to object to photos of the injuries to Mr. Robert Bullock, Appellant
abandoned this allegation in the argument portion of his brief. (See
Appellant’s Brief at 3, 11).
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demonstrated the nature and extent of Cottom’s fatal
wound. The autopsy photos were relevant to the jury’s
understanding of the circumstances and cause of Cottom’s
death. They demonstrated the medical examiner’s
explanation of the victim’s position relative to and distance
from the shooter, the trajectory of the bullet, and the
presence of a wound on his knee.
. . . [T]he relevance of the evidence is apparent. There is
no suggestion on the record that these exhibits were
duplicative of any other evidence or that they were used for
any purpose other than to educate the jury about the course
of events on the night of the shooting. An objection from
defense would have been unavailing.
(PCRA Court Opinion at 8-9).
Although the PCRA court did not specifically state whether the
photographs were inflammatory, it proceeded as if the photographs were not
inflammatory and judged whether they were relevant and assisted the jury’s
understanding of the facts. See id. See also Haney, supra. We decline to
reassess the inflammatory nature of the photos.6 We agree with the PCRA
court’s conclusion that the photographs were both relevant and would assist
the jury’s understanding of the cause and circumstances of the victim’s death.
Because Appellant has not proven that his underlying claim has arguable
merit, he is not entitled to relief. See Davis, supra. Accordingly, we affirm
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6 Notably, Appellant did not ensure that the photographs at issue were
included in the certified record. As such, this Court is unable to review them.
“Our law is unequivocal that the responsibility rests upon the appellant to
ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006).
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the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2022
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