Com. v. White, Q.

J-S59005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
QUADIYR N. WHITE, :
:
Appellant : No. 1738 EDA 2013
Appeal from the PCRA Order Entered May 17, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0000990-2009.
BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2014
Appellant, Quadiyr N. White, appeals from the order denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
On Appellant’s direct appeal, a panel of this Court set forth the trial
court’s summation of the evidence as follows:
Dominique Wilson, who was seventeen (17) on the night of
the shooting testified that at about 11:59 p.m. on August 13,
2008, he was on the 2600 block of West Girard Avenue in front
of the Lincoln Chicken store. He was there with his friends Tag
and Rob. They had been there about fifteen minutes when the
witness heard gunfire and saw [Appellant,] whom he knew as
Mr. P[,] shooting the decedent. The witness knew both
[Appellant] and the decedent from the neighborhood. Just a few
minutes prior to the shooting, the witness saw [Appellant] and
[the] decedent shake hands. After hearing the first shot, the
witness saw the decedent running towards 26th Street, being
chased by [Appellant] who was firing at him with a black
*Retired Senior Judge assigned to the Superior Court.
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revolver. The decedent appeared to the witness to be unarmed.
The witness believed he heard about six (6) shots. The
[decedent] fell, but got up and ran around the corner.
[Appellant] turned and ran towards 27th Street, making a turn
up Taney Street. Following the shooting, the witness gave a
statement to the police and identified [Appellant’s] picture as the
shooter.
Rene Tindal also witnessed the shooting. This witness was
about a door or two away from the chicken restaurant waiting
for his girlfriend to come home from work on the trolley. He saw
[Appellant] go into the restaurant. The decedent came out of
the restaurant followed by [Appellant]. The decedent looked
back and started running. [Appellant] came up upon him and
started firing. The witness testified that it was no more than five
(5) to ten (10) seconds between the time the decedent came out
of the restaurant and [Appellant] came up behind him and
started firing, as the decedent tried to run away. This witness
also described the gun as a revolver. He also heard five (5) or
six (6) shots. The witness believed [Appellant] emptied his gun.
To this witness, the decedent also appeared to be unarmed. The
witness also saw the victim trip and get up during the attack and
saw [Appellant] run away into a little street, which he identified
on a map as Taney Street. He also saw the other eyewitnesses,
Dominique Wilson and Craig Robinson at the scene. Craig
Robinson (Rob), who was sixteen (16) at the time of the
shooting also testified. He testified that he was at the shooting
scene with Tag and Dominique Wilson. His description of the
shooting was similar to the testimony given by the other two
[eyewitnesses]. However, [in court], he declined to identify
[Appellant] as the shooter. However, in a statement given to
police on the afternoon following the shooting, he identified
[Appellant] as the shooter and identified [Appellant’s] photo as
the shooter. At trial, the witness acknowledged his prior police
statement and further testified that in October 2008, he was
threatened not to come to court.
Commonwealth v. White, 564 EDA 2010, 31 A.3d 749 (Pa. Super. filed
June 21, 2011) (unpublished memorandum at 1–3) (quoting Trial Court
Opinion, 11/23/10, at 3–4 (record citations omitted)).
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The PCRA court summarized the procedural history as follows:
From February 9, 2010 through February 16, 2010,
Appellant was tried before [the trial c]ourt, sitting with a jury.
At the conclusion of the trial, the jury found him guilty of First
Degree Murder, Possessing an Instrument of Crime (PIC) and a
Violation of the Uniform Firearms Act.
[The trial c]ourt sentenced Appellant to life imprisonment
for murder and imposed concurrent prison sentences of three
and one half (3 ½) to seven (7) years for the firearms offense
and one (1) to two (2) years for PIC. The Superior Court
affirmed the judgment of conviction, docketed at 564 EDA 2010.
The Supreme Court denied Allocatur, docketed at No. 429 EAL
2011.
Appellant timely filed a PCRA Petition. Subsequently,
current counsel, George Henry Newman[,] filed an Amended
Petition, alleging two claims of ineffective assistance of prior
counsel. The Commonwealth responded and filed a Motion to
Dismiss the PCRA [petition]. After a thorough review of the
pleadings, the record and the law and after complying [with] the
procedural requirements contained in Pa.R.Crim. P. 907, [the
PCRA c]ourt dismissed the petition without granting a hearing.
The instant timely appeal followed.
PCRA Court Opinion, 4/23/14, at 1–2 (internal footnotes omitted).
On appeal, Appellant presents the following questions for our review:
I. Did not the PCRA court err in dismissing [Appellant’s]
PCRA petition, without a hearing, where trial counsel was
ineffective for failing to both object to prosecutorial
misconduct which occurred when the prosecutor asked
witness Robinson if he was afraid of [Appellant], and to
ask for a mistrial, or in the alternative, a curative
instruction, after his objection to this totally improper
question was sustained?
II. Did not the PCRA court err in dismissing [Appellant’s]
PCRA petition without a hearing where trial counsel was
ineffective for failing to object to the Court’s chastising
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defense counsel on multiple occasions in the presence of
the jury, for failing to object to the Court’s overly injecting
itself in the trial in a partisan manner and further, for
failing to request a mistrial?
Appellant’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005)). Great deference is granted to the
findings of the PCRA court, and these findings will not be disturbed unless
they have no support in the certified record. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super. 2003). There is no right to an evidentiary
hearing on a PCRA petition, and the PCRA court may decline to hold a
hearing if the claims are patently frivolous and without a trace of support in
the record. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2001). On review, we examine the issues raised in the petition in light of
the record to determine whether the PCRA court erred in concluding that
there were no genuine issues of material fact and in denying relief without
an evidentiary hearing. Id.In post-conviction collateral proceedings, the petitioner bears the
burden to plead and prove eligibility for relief. 42 Pa.C.S. § 9543(a). When
considering an allegation of ineffective assistance of counsel (“IAC”) raised
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under 42 Pa.C.S. § 9543(a)(2)(ii), the PCRA court presumes that counsel
provided effective representation unless the petitioner pleads and proves
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his or her conduct; and (3) Appellant was prejudiced by
counsel’s action or omission. Commonwealth v. Pierce, 527 A.2d 973,
975–976 (Pa. 1987). “In order to meet the prejudice prong of the
ineffectiveness standard, a petitioner must show that there is a reasonable
probability that but for the act or omission in question the outcome of the
proceeding would have been different.” Commonwealth v. Wallace, 724
A.2d 916, 921 (Pa. 1999). An IAC claim will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656
(Pa. 2003)).
Our Supreme Court recently reiterated the standard and scope of
review when the PCRA court dismisses cognizable claims without a hearing,
as follows:
To obtain reversal of a PCRA court’s summary dismissal of a
petition, an appellant must show that he raised a genuine issue
of fact which, if resolved in his favor, would have entitled him to
relief. The controlling factor in this regard is the status of the
substantive assertions in the petition. Thus, as to ineffectiveness
claims in particular, if the record reflects that the underlying
issue is of no arguable merit or no prejudice resulted, no
evidentiary hearing is required. For each such claim, we review
the PCRA court’s action for an abuse of discretion.
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Commonwealth v. Baumhammers, 92 A.3d 708, 726–727 (Pa. 2014)
(internal citations omitted).
Appellant first argues that the trial court erred in dismissing his
petition without a hearing because trial counsel was ineffective for failing to
request a mistrial or curative instruction after the trial court sustained his
objection to the district attorney’s question of eyewitness Craig Robinson:
“Are you afraid of the defendant?” N.T., 2/12/10, at 46. The
Commonwealth counters that:
[a] mistrial is an extreme remedy that is necessary only “where
the alleged prejudicial event may reasonably be said to deprive
the defendant of a fair and impartial trial.” Commonwealth v.
Boczkowski, 845 A.2d 75, 94 (Pa. 2004).
* * *
Robinson had given a statement to the police which he recanted
at trial. On cross-examination, defense counsel elicited that
Robinson had supposedly signed his statement without reading it
because “I was scared” (N.T. 2/12/10, 42). The question before
the jury was whether the prior statement or the trial testimony
was true. Thus, it was not improper for the prosecutor to follow-
up on [re-direct] examination by asking the witness if he was
afraid of defendant.
* * *
Nonetheless, the witness never answered the question,
and the trial court instructed the jury that counsel’s questions
are not evidence (N.T. 2/9/10, 17). Thus, even assuming the
unanswered question was improper, it certainly did not warrant
the extreme remedy of a mistrial.
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Commonwealth’s Brief at 8–10 (citing Commonwealth v. Collins, 702 A.2d
540, 543–544 (Pa. 1997), and Commonwealth v. Bryant, 462 A.2d 785,
787–788 (Pa. Super. 1983)). Regarding a curative instruction, the
Commonwealth observes that Appellant “did not develop his claim in the
PCRA court, and does not develop it on [sic] his appellate brief.” Id. at 11.
In disposing of Appellant’s first claim, the PCRA court concluded that
“Appellant could never have satisfied the ‘arguable merit’ or ‘prejudice’
prongs of the ineffective assistance test” because:
the jury was aware that the witness previously identified
Appellant as the shooter; declined to do so at trial; and received
anonymous threats. The purpose of the evidence concerning
threats was to assist the jury in assessing the witness’s
credibility concerning his changed version of events. The jury
specifically was instructed by this Court that there was no
evidence that Appellant was behind the threats; this evidence of
threats was not evidence of Appellant’s guilt; and was to be used
only to assess the witness’ credibility. N.T. 2/15/10, 154–155.
When, on redirect, the prosecutor sought to ask the improper
question concerning whether the witness was afraid of Appellant,
the Court sustained the timely objection. The question was not
answered. The jury was aware that questions were not
evidence; only answers were evidence as the jury previously was
so instructed. N.T. 2/9/10[,] 17. No additional relief would have
been warranted had it been requested.
PCRA Court Opinion, 4/23/14, at 6–7.
The Commonwealth’s assertion that a mistrial is an extreme remedy is
correct. See Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011)
(“A mistrial is an extreme remedy that is required only where the challenged
event deprived the accused of a fair and impartial trial.”), and
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Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (citing
Travaglia). Moreover, “the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial.” Commonwealth v.
Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012), appeal denied, 69 A.3d
600 (Pa. 2013) (quoting Commonwealth v. Judy, 978 A.2d 1015, 1019–
1020 (Pa. Super. 2009)). “In making its determination, the court must
discern whether misconduct or prejudicial error actually occurred, and if so,
. . . assess the degree of any resulting prejudice. Our review of the resulting
order is constrained to determining whether the court abused its discretion.”
Id. (quoting Judy, 978 A.2d at 1019–1020).
Generally, “threats against a witness are not admissible as an
admission of guilt against the accused unless the accused is linked in some
way to the making of the threat.” Collins, 702 A.2d at 544 (citing
Commonwealth v. Carr, 259 A.2d 165, 167 (Pa. 1969)). “Nevertheless,
an exception to the rule exists where the evidence in question was not
offered to prove the accused’s guilt ‘but to explain a witness’s prior
inconsistent statement.’” Bryant, 462 A.2d at 788 (citing Carr, 259 A.2d at
167).
Our review of the record confirms that, when the prosecutor asked the
challenged question of Robinson, suggesting a connection between
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Robinson’s fear and Appellant, trial counsel successfully objected, and
Robinson did not answer the question. N.T., 2/12/10, at 46–47. The
prosecutor then asked Robinson without objection, “Were you afraid to come
to court today?” Id. at 47. Robinson responded, “Yes.” Id.
The portion of the re-direct examination of Robinson to which
Appellant objects was prompted by Robinson’s failure to testify at trial
consistently with his previous statement to the police, in which Robinson had
stated that Appellant shot the victim in the back. The Commonwealth’s line
of questioning about the threats was permissible to demonstrate that
Robinson’s motive for changing his testimony was fear of the consequences
if he testified truthfully. Collins, 702 A.2d at 544. Although the challenged
question was improper, it did not produce an answer. Hence, there was no
evidence on which the jury could base a connection between Appellant and
the alleged threats as the reason for Robinson’s inconsistent testimony.
Furthermore, the trial court gave preliminary instructions to the jury that
“statements made by counsel do not constitute evidence,” only the witness’
answers are evidence. N.T., 2/9/10, at 17. Additionally, the trial court gave
specific final instructions that the jury could not use the threats as evidence
of Appellant’s guilt, that no one introduced evidence of Appellant’s
involvement in the threats, and that the jury could only use evidence of the
threats to assess Robinson’s credibility. N.T., 2/16/10, at 154–155. As the
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Commonwealth asserts, “These thorough instructions, which the jurors are
presumed to have followed, eliminated any conceivable risk that the jurors
would assume on the basis of an unanswered question that [Appellant] was
the source of the threats.” Commonwealth’s Brief at 10 (citations omitted).
Based on the foregoing, we conclude that no prejudicial error occurred.
Hogentogler, 53 A.3d at 878. Accordingly, we discern no abuse of the trial
court’s discretion in determining that no PCRA relief was warranted.
Next, Appellant challenges the dismissal of his petition without a
hearing because trial counsel was ineffective for failing to object to the trial
court’s chastising defense counsel twice in the presence of the jury and
overly injecting itself in the trial in a partisan manner. Appellant’s Brief at
10. In response, the Commonwealth observes that:
[a]lthough [Appellant] invoked the words “ineffective assistance
of counsel” in his petition (PCRA ¶ 6), he did not develop and
argue this claim as an ineffectiveness claim. See Memorandum
of Law at 3–7 (discussing this claim without alleging
ineffectiveness); Response to Commonwealth’s Motion to
Dismiss at 3–7 (same). Nor does he do so on appeal. Whether
couched in terms of ineffectiveness or otherwise, this claim
provides no basis for relief.
Commonwealth’s Brief at 12–13.
Upon review of the record and Appellant’s brief, we agree with the
Commonwealth that Appellant’s second IAC claim is undeveloped.
Nevertheless, we understand the crux of his claim and choose to review it.
The trial court considered Appellant’s allegations and determined that:
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neither instance warrants PCRA relief. In the first instance,
during his last question on cross examination of Detective
Peterman counsel commented upon the evidence instead of
asking a proper question. The Court told the jury[,] “Any
comments by counsel are inappropriate.” N.T., 2/12/10[,] 64–
65. Counsel concluded his examination. The Court’s rather mild
curative instruction to the jury was appropriate and no PCRA
relief was warranted.
The second instance occurred during the re-cross
examination of Dominique Wilson. N.T. 2/12/10, 136–140 . . .
We simply will note that this occurred while counsel was
confronting the witness with his inconsistent testimony from the
preliminary hearing. When counsel began arguing with the
witness and read a question and answer out of context, the
Court told the jury, “Comments by counsel are not appropriate”
and told counsel, “You can’t take it out of context.” The Court
comments were appropriate; were mild; did not embarrass; and
did not demean defense counsel. Under no circumstances did
the Court’s comments improperly impact upon the jury’s
consideration of the underlying facts or deprive Appellant of a
fair trial. Accordingly, no PCRA relief was warranted.
PCRA Court Opinion, 4/23/14, at 7.
Our Supreme Court has addressed this situation as follows:
The law is clear that not every unwise or irrelevant remark
made in the course of trial by a judge constitutes grounds for a
mistrial and that a new trial is required only where the remark is
prejudicial. Prejudice will be found only where the remark is of
such a nature, or delivered in such a manner, that it may
reasonably be held to have deprived the accused of a fair and
impartial trial. Commonwealth v. England, 474 Pa. 1, 375
A.2d 1292 (1977). As we noted in England:
While we do not condone a display of impatience by
a trial judge, even where he may have been
provoked by counsel’s dilatory tactics, we recognize
that judges are also subject to failings of human
beings and cannot be expected to be devoid of
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emotion in the trying or vexing situations they may
be called upon to confront.
Id. at 17, 375 A.2d at 1300.
Commonwealth v. Jones, 683 A.2d 1181, 1191 (Pa. 1996).
Our review of the record reveals that the trial court’s remarks directed
toward defense counsel in the presence of the jury were not so disparaging
as to prejudice Appellant in any manner. Those comments were largely
directed toward ensuring accurate representation of the evidence and
reminding the jury that defense counsel’s personal comments were not
evidence. N.T., 2/12/10, at 64–65, 138. Indeed, the record reveals that
some of the comments were in direct response to defense counsel’s
repeated objections after the trial court had already ruled on a particular
matter. Id. at 136–140. While, at times, the comments of the trial judge
evidenced her impatience with defense counsel, none of her comments were
reflective of any predisposition of the trial judge regarding Appellant’s guilt
or innocence, and none were indicative of any bias in favor of the
prosecution. Jones, 683 A.2d at 1191–1192. Moreover, the trial court
properly informed the jurors that they were to be the sole judges of the
facts. N.T., 2/12/10, at 139–140. Notably, in one instance, the trial court
entertained additional argument from defense counsel outside the presence
of the jury. Id. at 141–146. “In short, our review of the record reveals no
intemperate remarks on the part of the trial judge which could be construed
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as creating an atmosphere of unfairness. Because this claim, too, lacks
merit, Appellant has failed to establish his claim of ineffective assistance of
counsel with respect thereto.” Jones, 683 A.2d at 1191–1192.
In sum, Appellant failed to prove that counsel was ineffective.
Therefore, no questions of fact necessitated a hearing. Accordingly, we
conclude that the trial court did not err in denying Appellant collateral relief
without conducting an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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