Com. v. Bonner, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRENCE BONNER, No. 3972 EDA 2017
Appellant
Appeal from the PCRA Order, December 11, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0015853-2008
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2019
Terrence Bonner appeals from the December 11, 2017 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The relevant facts of this case were summarized by a prior panel of
this court on direct appeal and need not be reiterated in full here. See
Commonwealth v. Bonner, 27 A.3d 255, 255-257 (Pa.Super. 2011),
appeal denied, 40 A.3d 1233 (Pa. 2012). In sum, in the early morning
hours of April 13, 2008, appellant broke into the home of the victims,
N.P. ("Husband") and M.M. ("Wife"), robbed them at knifepoint, sexually
assaulted wife, and stole their vehicle. On September 25, 2009, a jury
found appellant guilty of burglary, robbery, robbery of a motor vehicle,
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possessing instruments of crime, and indecent assault' in connection with
this incident. Following his convictions, the trial court sentenced appellant to
an aggregate term of 13 to 26 years' imprisonment on November 20, 2009.
Appellant filed a timely notice of appeal on December 9, 2009.2
On August 17, 2011, a panel of this court affirmed appellant's
judgment of sentence, and our supreme court denied allowance of appeal on
March 13, 2012. Id. Appellant did not seek review with the United States
Supreme Court. On April 9, 2012, appellant filed a timely pro se PCRA
petition, and Michael L. Doyle, Esq. ("Attorney Doyle"), was appointed to
represent him. On May 16, 2014, Attorney Doyle filed an amended PCRA
petition on appellant's behalf. Attorney Doyle subsequently left the practice
of law, and appellant's current counsel, Zak T. Goldstein, Esq.
("PCRA counsel"), was appointed to represent him. On May 5, 2017, PCRA
counsel filed a second amended PCRA petition on appellant's behalf. On
October 24, 2017, the Commonwealth filed a motion to dismiss appellant's
second amended petition. On November 13, 2017, the PCRA court provided
appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file a response
' 18 Pa.C.S.A. §§ 3502(a), 3701(a), 3702(a), 907(a), and 3126(a),
respectively.
2 Appellant was represented during his jury trial by Peter L. Maas, Esq. ("trial
counsel"), and on direct appeal by Karl Baker, Esq. and Owen Larrabee, Esq.
(collectively, "appellate counsel").
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to the PCRA court's Rule 907 notice. Thereafter, on December 11, 2017, the
PCRA court dismissed appellant's petition without an evidentiary hearing.
This timely appeal followed.3
Appellant raises the following issues for our review:
I. Whether the PCRA Court erred in denying
[a]ppellant's [PCRA] Petition because trial
counsel was ineffective in failing to object to
the prosecution's closing argument about crime
in Philadelphia because the argument was
unfairly prejudicial and calculated only to
inflame the passions of the jury[?]
II. Whether the PCRA Court erred in denying
[a]ppellant's [PCRA] Petition because trial
counsel was ineffective in failing to object and
request a mistrial or cautionary jury instruction
when the Commonwealth presented
identification evidence and argued in closing
that the complainants had successfully
identified [a]ppellant as the person who
burglarized their home after the
Commonwealth, in order to defeat a defense
motion for a pre-trial lineup, stipulated at the
preliminary hearing that the witnesses would
never identify [a]ppellant as the person who
burglarized their home[?]
III. Whether the PCRA Court erred in denying
[a]ppellant's [PCRA] Petition where appellate
counsel in [a]ppellant's direct appeal was
ineffective in failing to challenge [a]ppellant's
conviction based on the sufficiency of the
evidence where the only evidence connecting
[a]ppellant to the crime was the presence of
3 The record reflects that on December 12, 2017, the PCRA court directed
appellant to file a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b). Appellant filed his timely Rule 1925(b)
statement on December 15, 2017, and the PCRA court filed its Rule 1925(a)
opinion on June 6, 2018.
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his fingerprints on an inherently movable
object which was taken during the crime
approximately half an hour to an hour later[?]
Appellant's brief at vii -viii.
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's
findings will not be disturbed unless there is no support for the findings in
the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). "This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding." Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
When the PCRA court denies a petition without an evidentiary hearing,
as is the case here, we "examine each issue raised in the PCRA petition in
light of the record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an evidentiary
hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.
2004). This court has long recognized that there is no absolute right to an
evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941
(Pa.Super. 2006) (citation omitted). "It is within the PCRA court's discretion
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to decline to hold a hearing if the petitioner's claim is patently frivolous and
has no support either in the record or other evidence." Commonwealth
v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted).
Appellant's first two claims concern the effectiveness of his trial
counsel. To prevail on a claim of ineffective assistance of counsel under the
PCRA, a petitioner must establish the following three factors: "first[,] the
underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that Appellant was prejudiced."
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
[A] PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that
his conviction or sentence resulted from the
[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth -determining process that no reliable
adjudication of guilt or innocence could have taken
place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
"[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant." Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal
denied, 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for
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failing to raise a claim that is devoid of merit. Commonwealth v. Ligons,
971 A.2d 1125, 1146 (Pa. 2009).
Appellant contends that trial counsel was ineffective for failing to
object to comments the prosecutor made during her closing argument that
referenced crime in Philadelphia. (Appellant's brief at 4.) Specifically,
Assistant District Attorney Allyson Busch ("ADA Busch") made the following
comments during her closing statement which appellant now challenges on
appeal:
Now, the defense would like you to ask us for more,
always more. More prints from the house, more
work by the police, more investigation . Ladies
. . .
and gentlemen as I told you from the beginning, this
is real crime in Philadelphia. This is not CSI, it's not
a TV show. I don't get to write in everything I wish I
could possibly have in a case. That's not what the
law requires. These are detectives and police
officers that have gone up elevators with you just as
you have every day this week. You've seen what
crime is like in Philadelphia. You've seen what
this Criminal Justice Center is. It is a shame
that our Crime Scene Unit can't go to every
single home invasion where a knife has been
held to someone's throat. That we're so plagued
by other things that they have to stay busy with.
That our cops have limited resources. But they did a
heck of a lot in this case. They held the scene. They
tried to print the house where they thought that they
could possibly get prints. They lifted prints that just
were no good.
Notes of testimony, 9/24/09 at 149-150 (emphasis added).
Appellant argues that ADA Busch's comments were "prejudicial,
inflammatory, and burden -shifting" and that trial counsel's failure to object
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on this basis entitles him to a new trial. (Rule 1925(b) statement, 12/15/17
at ¶ la; see also appellant's brief at vii, 6-7.) We disagree.
"Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion." Commonwealth v.
Harris, 884 A.2d 920, 927 (Pa.Super. 2005) (citations omitted), appeal
denied, 928 A.2d 1289 (Pa. 2007). Not every unwise remark on a
prosecutor's part, however, constitutes reversible error. Id. "Prosecutorial
misconduct occurs when the effect of the prosecutor's comments would be
to prejudice the trier of fact, forming in its mind fixed bias and hostility
toward the defendant so that it could not weigh the evidence objectively and
render a true verdict." Commonwealth v. Duffy, 832 A.2d 1132, 1137
(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).
Counsel['s] remarks to the jury may contain fair
deductions and legitimate inferences from the
evidence presented during the testimony. The
prosecutor may always argue to the jury that the
evidence establishes the defendant's guilt, although
a prosecutor may not offer his personal opinion as to
the guilt of the accused either in argument or in
testimony from the witness stand. Nor may he or
she express a personal belief and opinion as to the
truth or falsity of evidence of defendant's guilt,
including the credibility of a witness.
Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal
denied, 788 A.2d 372 (Pa. 2001), cert. denied, 535 U.S. 1059 (2002).
Following our careful review, we agree with the PCRA court that
ADA Busch's comments, when read as a whole, were not so prejudicial as to
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warrant that a new trial be granted. "A petitioner establishes prejudice
when he demonstrates that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different." Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa.
2009) (citations and internal quotation marks omitted). "[A] prosecutor is
permitted fairly wide latitude in advocating for the Commonwealth, including
the right to argue all fair conclusions from the evidence, to respond to
defense arguments, and to engage in a certain degree of oratorical flair."
Harris, 884 A.2d at 931. All such comments must be reviewed in the
context in which they were made. Commonwealth v. Robinson, 877 A.2d
433, 441 (Pa. 2005).
Here, the record reflects that ADA Busch's references to crime in
Philadelphia were not the type of comments that would cause the jury to
form a fixed bias or hostility towards appellant and prevent it from rendering
a fair and impartial verdict. Rather, ADA Busch's comments were a fair
response to trial counsel's repeated arguments throughout trial bemoaning
the lack of fingerprint and DNA evidence presented by the Commonwealth.
(See notes of testimony, 9/23/09 at 40-42; 9/24/09 at 135-137.)
Accordingly, appellant's trial counsel had no basis upon which to object, and
appellant's underlying ineffectiveness claim must fail. See Commonwealth
v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) (stating, "counsel will not be
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considered ineffective for failing to pursue meritless claims."), appeal
denied, 828 A.2d 350 (Pa. 2003).
Appellant also contends that trial counsel was ineffective for failing to
object to comments ADA Busch made during her closing argument that
referenced the fact that appellant fit the description of the assailant given by
the victims at trial. (Appellant's brief at 10.) Specifically, ADA Busch stated
as follows:
They may not be able to say it was [appellant], but
boy did they get a good description of him, five-foot
eight, dark complexion, wearing a purple T-shirt with
writing on it, a bandana on his head. We know
[appellant] a month later had a black doo rag on.
Late 30's, clean shaven, medium build, athletic. May
15 of last year [appellant] looked something a lot
more like this. Gray hair not very visible especially if
it's covered, no beard. They can't name him or
but [sic] they can tell you exactly what he looks like
and that's what they did.
I guess the defense would have you believe, I guess,
even though there's absolutely no evidence of this in
the record, that some man came in at 4:30 in the
morning at 1211 South Juniper looking a heck of a
lot like [appellant], same build, height, skin color,
something on his head, terrorized them, took their
car, drove around awhile, parked it. . . .
. .The evidence shows that a man that looks just
.
like him broke into that house, took the keys, took
the car, left his prints, drove it around, parked in his
hurry to escape a violation home invasion that he
had just committed. . . .
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Notes of testimony, 9/24/09 at 146, 151-152.
Appellant contends that these comments were the equivalent of
informing he jury "that the complainants had successfully identified
[a]ppellant as the person who burglarized their home[,]" and that the
Commonwealth was precluded from doing so because it had stipulated at the
December 4, 2008 preliminary hearing that the victims could not identify
appellant as the perpetrator. (Appellant's brief at vii, 11-15; see also notes
of testimony, 12/4/08 at 4-6.)
Upon review, we find that appellant's claim that trial counsel was
ineffective for failing to object to ADA Busch's closing argument on this basis
is meritless. It is well settled that a prosecutor is permitted to argue
reasonable and legitimate inferences from the testimony presented at trial.
See Chmiel, 777 A.2d at 466. Contrary to appellant's contention, neither
victim in this case specifically identified appellant as their assailant at trial,
but merely described the physical characteristics of the individual who
assaulted them on the morning in question. Wife testified that the individual
who broke into her home and assaulted her was between 5'8" and 5'9" in
height, had a medium build, and a dark complexion. (Notes of testimony,
9/23/09 at 79.) Likewise, Husband testified that Wife's assailant had an
average, athletic build, dark skin, and was wearing a bandana and "purplish"
T-shirt. (Id. at 123-124.) ADA Busch's comments during her summation
merely asked the jury to draw a reasonable inference that appellant, who
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matched the physical description given by the victims, was the individual
who broke into their home. See Chmiel, 777 A.2d at 466. These
comments were supported by the record and were entirely proper.
Accordingly, trial counsel had no basis upon which to object, and appellant's
ineffectiveness claim must fail. See Rivera, 816 A.2d at 292 (stating,
"counsel will not be considered ineffective for failing to pursue meritless
claims[]").
In his final claim, appellant argues that appellate counsel were
ineffective for failing to argue on direct appeal that the Commonwealth failed
to present sufficient evidence to prove his identity as the perpetrator.
(Appellant's brief at 16.) In support of this contention, appellant avers that
the only evidence linking him to this crime was the fingerprint evidence
recovered from inside the victims' vehicle, "an inherently movable object,"
and that the Commonwealth "failed to eliminate the possibility that [he] had
been in the car on a previous occasion. . . ." (Id. at xvi, 18-19.) Appellant
maintains that there were numerous other explanations as to why his
fingerprints were discovered inside the vehicle, including the fact that he
may have entered the vehicle to search for valuables on another occasion;
or that he may have entered the vehicle for some other purpose in the hour
it had been missing. (Id. at 19.) Appellant argues that appellate counsel
had no reasonable basis for failing to pursue this particular argument on
appeal. (Id.) We disagree.
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It is well settled that "post -conviction relief claims alleging that
counsel had provided ineffective assistance are generally to be considered
distinct from the underlying claims that the trial court erred, even though
such underlying claims of error had been litigated on direct appeal."
Commonwealth v. Kimbrough, 938 A.2d 447, 450 (Pa.Super. 2007);
Commonwealth v. Collins, 888 A.2d 564, 571-572 (Pa. 2005). "As we
made clear in Collins, although we will analyze a distinct claim of
ineffectiveness that is based on the underlying issue decided on direct
appeal, in many cases those claims will fail for the same reasons they failed
on direct appeal." Commonwealth v. Washington, 927 A.2d 586, 607
(Pa. 2007), citing Collins.
Upon review, we agree with the PCRA court that appellant's underlying
sufficiency claim lacks arguable merit, and thus, appellant's ineffectiveness
claim must fail. The record reflects that on direct appeal, a panel of this
court held that there was sufficient evidence to sustain appellant's conviction
for robbery of a motor vehicle. See Bonner, 27 A.3d at 257-258.
Specifically, the Bonner court found that evidence established that appellant
took the victim into the kitchen with a knife at her throat, repeatedly
threatened to kill her until she handed over the keys to her car, and
ultimately fled from the house in victim's car. Id. at 258. As this court has
already concluded that there was sufficient evidence for the jury to infer that
appellant was the perpetrator of the crimes in question, any alternative
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argument to the contrary would have also failed. As noted, appellate
counsel cannot be deemed ineffective for failing to raise a claim that is
devoid of merit. See Ligons, 971 A.2d at 1146.
Based on the foregoing, we discern no error on the part of the PCRA
court in dismissing appellant's petition without conducting an evidentiary
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 1/7/19
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