Com. v. Boyd, K.

J-S84024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEYON DURANE BOYD :
:
Appellant : No. 1999 EDA 2015
Appeal from the PCRA Order October 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005028-2008
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED APRIL 18, 2019
Keyon Durane Boyd appeals, nunc pro tunc, from the order entered
October 24, 2014, in the Philadelphia County Court of Common Pleas,
dismissing his first petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Boyd seeks relief
from the sentence of life imprisonment imposed on April 20, 2009, following
his jury conviction of first-degree murder and related offenses for the June
2006 shooting death of Stephen Rochard. On appeal, Boyd contends the PCRA
court erred by dismissing his petition without first conducting an evidentiary
hearing with respect to his claims of direct appeal counsel’s ineffectiveness.
For the reasons below, we affirm.
The facts underlying Boyd’s conviction were summarized by a panel of
this Court in the memorandum decision affirming his judgment of sentence on
direct appeal:
J-S84024-18
The evidence at trial established that at 12:20 a.m., on June
27, 2006, the victim, Stephen Rochard, and three confederates
walked down the 1800 block of Filmore Street toward a group of
men playing dice on a porch. Rochard and his cohorts were all
armed with guns and wore black clothing with black masks or
bandanas covering their faces. Rochard and his friends opened
fire when they were halfway down the block. Terrell Boyd,
[Boyd’s] cousin, who was standing in a parking lot across the
street, heard the gunshots and believed the men were firing at
him. Boyd pulled out a 9-millimeter handgun and returned fire in
the direction of the gunmen, emptying his clip of its ten or eleven
bullets before fleeing to a friend’s house. One of the dice players,
Brian Garland, also returned fire but then, with his gaming
companions, fled the scene.
One of the bullets fired by either Boyd or Garland struck
Rochard in the left buttock, causing him to fall face-down, and
drop his gun, a .40 caliber black-and-silver handgun. Rochard
screamed “don’t leave me,” to his cohorts, who fled the scene.
[Boyd], who was not one of the dice players and had not been
involved in the incident, boasted to his friends and family
members that he walked over to Rochard and asked him if he was
okay. [Boyd] then picked up Rochard’s gun and shot him three
times in the back. Two of the bullets went into Rochard’s lungs,
causing fatal wounds.
[Boyd’s cousin Terrell], who was hiding at a friend’s house,
received a call from Justin Heard, one of the dice players, telling
him to return to the parking lot. [Terrell] retuned to the lot, where
Heard was “hanging out” with Garland, Christopher Knight
(another of the dice players) and [Boyd]. [Boyd] bragged to them
about killing Rochard with his own weapon and showed them the
.40 caliber black-and-silver handgun.
Less than one week later, [Boyd] bragged to another friend,
Dion Fowler, about killing Rochard. [Boyd] showed the .40 caliber
black-and-silver handgun to Fowler and offered to sell or trade it
to him. When they could not reach a deal, [Boyd] and [Terrell]
kept the gun in a “hiding spot” until [Terrell] arranged to sell it to
someone in New Jersey for $350.00 or $400.00.
Commonwealth v. Boyd, 29 A.3d 847 [2577 EDA 2009] (Pa. Super. 2011)
(unpublished memorandum at 4-6).
-2-
J-S84024-18
Boyd was arrested and charged with first-degree murder, criminal
conspiracy, carrying a firearm without a license, and possession of an
instrument of crime.1 On April 3, 2009, a jury convicted him of all charges,
with the exception of criminal conspiracy. Boyd was sentenced, on April 20,
2009, to a mandatory term of life imprisonment for the murder conviction,
and a concurrent term of one to two years’ imprisonment for each of the
remaining offenses. Boyd’s judgment of sentence was affirmed by a panel of
this Court,2 and the Pennsylvania Supreme Court denied his petition for
allowance of appeal. See Boyd, supra, 29 A.3d 847 (unpublished
memorandum), appeal denied, 31 A.3d 290 (Pa. 2011).
On February 14, 2012, Boyd filed a timely, pro se, PCRA petition,
challenging direct appeal counsel’s ineffectiveness for failing to consult with
him regarding the issues raised on direct appeal.3 The petition sat dormant
for two years until Boyd filed a pro se motion for leave to file an amended
petition on January 21, 2014, claiming his due process and equal protection
____________________________________________
1 See 18 Pa.C.S. §§ 2502, 903, 6107, and 907, respectively.
2 On direct appeal, Boyd challenged the weight and sufficiency of the evidence
supporting his convictions, as well as the admission of evidence regarding his
intention to provide information to federal authorities concerning other crimes.
See Boyd, supra, 24 A.3d 847 (unpublished memorandum at 2).
3 Boyd noted he did not want an attorney appointed to litigate his petition, but
rather, he wanted to proceed pro se. See Motion for Post Conviction Relief,
2/14/2012, at 7.
-3-
J-S84024-18
rights had been violated by the delay in his proceedings. Thereafter, on March
6, 2014, appointed counsel filed an amended petition,4 in which he challenged
the ineffective assistance of direct appeal counsel. In response, the
Commonwealth filed a motion to dismiss the petition on June 23, 2014,
arguing that Boyd’s claims were meritless. By order entered October 24,
2014, the PCRA court dismissed the petition without first conducting an
evidentiary hearing.5 Boyd filed an untimely, pro se notice of appeal on
February 16, 2015, which this Court quashed on April 9, 2015. See 562 EDA
2015. Thereafter, on April 21, 2015, PCRA counsel filed a second petition,
seeking reinstatement of Boyd’s appellate rights, which the court granted by
order entered June 1, 2015. This timely nunc pro tunc appeal followed.
In both issues raised on appeal, Boyd argues the PCRA court erred in
failing to hold an evidentiary hearing on his claims that direct appeal counsel
rendered ineffective assistance. “This Court’s standard of review regarding an
order denying a petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa. Super. 2018)
(citation omitted), appeal denied, 198 A.3d 1046 (Pa. 2018). Moreover,
[t]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
____________________________________________
4 It is unclear from the record when PCRA counsel was appointed.
5The PCRA court did not first issue Boyd notice of its intent to dismiss the
petition as required by Pa.R.Crim.P. 907.
-4-
J-S84024-18
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.” “To obtain reversal of
a PCRA court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which,
if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Roney, 79 A.3d 595, 604–605 (Pa. 2013), cert. denied,
135 S. Ct. 56 (U.S. 2014).
Furthermore, where, as here, the defendant alleges counsel rendered
ineffective assistance, we note:
“In order to obtain relief under the PCRA premised upon a
claim that counsel was ineffective, a petitioner must establish
beyond a preponderance of the evidence that counsel’s
ineffectiveness ‘so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken
place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
considering such a claim, courts presume that counsel was
effective, and place upon the appellant the burden of proving
otherwise. Id. at 906. “Counsel cannot be found ineffective for
failure to assert a baseless claim.” Id.
To succeed on a claim that counsel was ineffective,
Appellant must demonstrate that: (1) the claim is of arguable
merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s ineffectiveness prejudiced
him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
2003).
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). “To
demonstrate prejudice, a petitioner must show that there is a reasonable
probability that, but for counsel’s actions or inactions, the result of the
proceeding would have been different.” Commonwealth v. Mason, 130 A.3d
601, 618 (Pa. 2015).
-5-
J-S84024-18
In his first issue, Boyd argues direct appeal counsel was ineffective for
failing to “raise and brief the issue of [trial court] error in permitting
hypothetical questions not based on facts in [evidence].” Boyd’s Brief at 9.
Boyd’s claim focuses on questions posed by the prosecutor to the
Commonwealth’s firearms expert.
It is well-settled that a party may ask an expert a hypothetical question
so long as “there is evidence of record supporting the hypothetical.”
Commonwealth v. Galvin, 985 A.2d 783, 801 (Pa. 2009), cert. denied, 559
U.S. 1051 (2010). However, an expert’s opinion may not be based upon
conjecture or guesswork. See id. Accord Commonwealth v. Petrovich,
648 A.2d 771, 772 (Pa. 1994) (“[A]n expert may give an opinion in response
to a hypothetical, provided the set of facts assumed in the hypothetical is
eventually supported by competent evidence and reasonable inferences
derived therefrom[.]”).
In the present case, Boyd insists two hypothetical questions the
prosecutor posed to the firearms expert were based on facts not in evidence.
See Boyd’s Brief at 9. After the expert testified extensively regarding the
ballistics evidence recovered from the scene, including the number and
location of fired 9mm and .40-caliber cartridge cases, the Commonwealth
asked the expert a hypothetical question involving the potential locations of
the various shooters at the time when the weapons were fired. See N.T.,
4/1/2009, at 164-166. Defense counsel objected to the question, insisting
there was no evidence supporting the factual scenario the Commonwealth
-6-
J-S84024-18
described. See id. at 166. The trial court, however, overruled the objection,
stating:
The purpose of the hypothetical is just that. He may answer the
hypothetical, assuming he understands it, and you may ask a
hypothetical that fits the facts that you see.
Id. The court also instructed the jury:
But, ladies and gentlemen – that’s why, ladies and gentlemen,
what the expert says is not necessarily correct. You are the fact
finders. You’re the ones that heard all of the evidence and looked
at the chart, heard where the bullets are, and it’s up to you to
determine in the end what the facts are.
Id. Thereafter, the expert was permitted to answer the question, and testified
the physical evidence at the scene was “consistent” with the factual scenario
presented by the Commonwealth. Id. at 167. Later, the Commonwealth
posed a second hypothetical question concerning whether the “grouping” of
the gunshots wounds on the victim’s back shoulder area was consistent with
him having sustained the injury while lying on the sidewalk. Id. at 171.
Again, defense counsel objection, and the trial court permitted the expert to
answer. Thereafter, the expert testified, “It would be consistent.” Id. at 172.
Boyd contends the trial court applied the “wrong legal standard” when
it stated the expert could answer the hypothetical question as long as he
understood it. Boyd’s Brief at 9. We agree. A hypothetical question is
permitted only if the facts provided in the hypothetical are reflected in the
evidence. See Galvin, supra. The witness’s comprehension of the
hypothetical is not the proper gauge for admissibility.
-7-
J-S84024-18
Nevertheless, we agree with the PCRA court’s determination that Boyd
is entitled to no relief. The court found the facts posed in the first hypothetical
were based upon “the trial testimony of Terrell Boyd and the prior police
statement of Dion Fowler concerning the positions of the various gunmen and
the number of shots fired at various places[.]” PCRA Court Opinion,
10/4/2017, at 6-7. Our review of the trial transcript supports the court’s
conclusion. See N.T., 3/31/2009, at 138-150; 4/1/2009, at 20-21. Although
Boyd insists the facts in the hypothetical were not in evidence, he provides no
further explanation or citation to the record. With regard to the second
hypothetical, we agree with the PCRA court that the question was based upon
the autopsy photographs, which depicted the location of the bullet wounds in
the victim’s back shoulder area. See PCRA Court Opinion, 10/4/2017, at 7.
The prosecutor asked the firearms expert if the wounds were consistent with
shots being fired by a person standing while the victim was lying on the
sidewalk. See N.T., 4/1/2009, at 171. This evidence was consistent with the
Commonwealth’s version of the events. See N.T., 3/31/2009, at 155-156
(Terrell Boyd’s testimony that Boyd told him he picked up the victim’s gun as
the victim lay wounded on the sidewalk, and shot him); N.T., 4/1/2009, at
20-21 (Fowler’s statement that Boyd told him he shot the wounded victim,
who was lying on the sidewalk). Boyd failed to establish counsel’s
ineffectiveness because he did not demonstrate: (1) his underlying issue had
arguable merit, (2) direct appeal counsel had no reasonable basis for failing
-8-
J-S84024-18
to raise this meritless claim on direct appeal, and (3) he was prejudiced as a
result. Therefore, no relief is warranted.
Next, Boyd contends appellate counsel was ineffective for failing to raise
a claim of prosecutorial misconduct on direct appeal. Specifically, he
maintains the prosecutor personally vouched for the credibility of witness
Terrell Davis during closing arguments, and improperly testified as to what
occurred during their pretrial prep session. See Boyd’s Brief at 11-12.
It is well-established 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.”
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016) (quotation
omitted), appeal denied, 145 A.3d 724 (Pa. 2016). “Although a prosecutor
may comment on the credibility of the defendant or other witnesses, it is
improper for a prosecutor to express a personal belief as to their credibility.”
Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (emphasis
supplied), cert. denied, 135 S. Ct. 154 (U.S. 2014). However, “[i]f defense
counsel has attacked the credibility of witnesses in closing, the prosecutor
may present argument addressing the witnesses’ credibility.”
Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005), cert. denied, 549
U.S. 848 (2006). Accordingly, “a proper examination of a prosecutor’s
comments in closing requires review of the arguments advanced by the
-9-
J-S84024-18
defense in summation.” Jaynes, supra, 135 A.3d at 615, citing Chimel,
supra.
By way of background, Boyd’s claim focuses on a discrepancy between
Terrell Boyd’s statement to police, and his subsequent trial testimony,
concerning the type of gun Brian Garland shot on the night in question. In his
police statement, Terrell claimed Garland had a .40 caliber weapon. See N.T.,
3/31/2009, at 236. However, at trial, he testified he did not know for sure
the type of gun Garland had. See id. at 236-237. Later, Detective John
McNamee, who took Terrell’s police statement, explained that during a pretrial
prep session, Terrell clarified “he believed [the .40 caliber gun] was probably
the type of gun that [Garland] carried, but had not seen him in possession of
that gun or did not know what type of gun he was in possession of when this
incident occurred.” N.T., 4/2/2009, at 101-102. The detective testified Terrell
said, “[h]e did not know for certain” that Garland was shooting a .40 caliber
weapon on the night in question. Id. at 102.
During the defense closing argument, counsel implied the detective and
the prosecutor induced Terrell to change his statement:
They have a theory of the case and they say – I’m not saying
anybody did anything wrong, but, by the way, are you sure he
had a .40, [Garland], are you sure? Because there is no evidence
of .40 fired cartridge casings here. There is nothing wrong with
telling him that. What did you think … Terrell Boyd is going to do?
Geez, I don’t know; maybe I must have been wrong. And he
knows what they want him to say. It’s easy. You can tell a
witness what to say without telling them. Simple as that. A week
before trial, guess what? Changes his mind; he knows. You know
how to ask questions to a witness. That’s what I suggest to you
- 10 -
J-S84024-18
happened, and he knew what he had to say to make sure he gets
his deal.
Id. at 152-153. The prosecutor responded to defense counsel’s allegation as
follows:
Now, there is a suggestion that [defense counsel] made that
Terrell Boyd, when he had that prep last week with me and
Detective McNamee and the DEA agent, that they somehow
molded his testimony to the fact that in his statement, he said
that Brian Garland had a .40 caliber [but that n]o .40 caliber was
fired down here. There is a suggestion that somehow [Terrell]
realized that and molded his testimony.
Folks, let me explain to you the prep session. I had never
met Terrell Boyd. I can’t call a witness to testify in a case –
[Defense Counsel]: I object to what happened.
THE COURT: This is argument, ladies and gentlemen.
Counsel may argue it, but you may only consider the
evidence that was testified to here in the courtroom from
the detective concerning the prep session and who was
there.
But argument is permissible. You may draw any
inferences you wish from that, but you’re the fact finders
and only the facts as you find them should be considered.
[Prosecutor]: The purpose of the prep session was for me to
speak to [Terrell], to go over his – to ask him, Terrell, what
happened that night, and go over the statement that he gave and
ask questions about those – the statement, so that I have some
idea of what the witness is going to say when I call them to testify.
Because, frankly, what kind of lawyer would I be if I called a
witness to testify that I had never spoken to before and hadn’t
gone over the statement with and didn’t know what he was going
to say?
Now, I knew that there were certain things in his statement
that he needed to clarify, not the least of which was when he says
Brian Garland had a .40 caliber gun. You heard Detective
McNamee said that was addressed at the prep. He was asked why
did you think that Brian had had a gun? Did you actually see the
gun? Do you know it to be a .40-caliber gun? Are you positive
- 11 -
J-S84024-18
about that? … Detective McNamee told you that Terrell Boyd
explained that the reason he believed Brian Garland had a gun, a
.40 caliber, was because that’s the type of gun that Brian was
known to carry. It was something that he had known Brian to
have before. It was something that he assumed Brian had that
night.
Id. at 174-176.
Considering the prosecutor’s closing argument in the context of the
entire trial, we conclude Boyd failed to establish prosecutorial misconduct.
The prosecutor did not personally vouch for the credibility of either Terrell
Boyd or Detective McNamee, nor did he “explain what he personally perceived
as to what occurred at the prep session[.]” Boyd’s Brief at 12. Rather, the
prosecutor rebutted defense counsel’s claim that Terrell was implicitly coerced
to clarify his statement during the pretrial prep session, by referring to
Detective McNamee’s testimony. The prosecutor did not state that either the
detective or Terrell were being truthful, nor did he provide his own account of
Terrell’s clarification at the prep session. Therefore, because Boyd has failed
to prove his allegation of prosecutorial misconduct is arguably meritorious, his
second ineffectiveness claim fails as well. See Michaud, supra.
Consequently, we agree with the assessment of the PCRA court that
Boyd failed to set forth sufficient facts demonstrating counsel’s purported
ineffectiveness to justify an evidentiary hearing. As such, we affirm the order
of the PCRA court dismissing Boyd’s petition without first conducting a
hearing.
Order affirmed.
- 12 -
J-S84024-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/19
- 13 -