Com. v. Childs, C.

J-S09030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COSIL LOUIS CHILDS
Appellant No. 2609 EDA 2016
Appeal from the PCRA Order entered July 21, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0005497-2012
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 24, 2017
Appellant, Cosil Louis Childs, appeals from the July 21, 2016 order
entered in the Court of Common Pleas of Delaware County, denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
From the record we glean the following factual and procedural
background. Appellant was charged with criminal attempt to acquire or
obtain possession of a controlled substance by misrepresentation
(Oxycodone), an ungraded felony.1 Testimony at his jury trial revealed that
when Appellant attempted to have a prescription for Oxycodone filled, the
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*
Retired Senior Judge assigned to the Superior Court.
1
63 P.S. § 390-8(13); 35 P.S. § 780-113(a)(12).
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pharmacist became suspicious and contacted the ordering physician who
denied writing the order. Appellant testified that the prescription was
legitimate.
On April 17, 2013, the jury convicted Appellant. The trial court
sentenced him to a term of five to ten years in a state correctional
institution. He did not file a direct appeal but filed a timely PCRA petition
seeking reinstatement of his direct appeal rights. Appellant’s rights were
reinstated and he asked this Court to set aside his judgment of sentence,
claiming the trial court should have granted a mistrial after the prosecutor
referred to Appellant as a “liar” during closing argument. We affirmed his
judgment of sentence and granted his counsel’s application to withdraw,
finding the mistrial issue waived for defense counsel’s failure to lodge an
objection. Commonwealth v. Childs, 1136 EDA 2014, unpublished
memorandum (Super. Ct. filed February 19, 2015).
On July 13, 2015, Appellant filed the instant PCRA petition. Appointed
counsel filed an amended petition. Following a hearing, the PCRA court
denied the petition by order entered July 21, 2016. This timely appeal
followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
In his appeal, Appellant asks us to consider one issue:
Was the [PCRA] court in error for dismissing [Appellant’s]
petition for post conviction relief averring that trial counsel was
ineffective for failing to object to remarks of the assistant district
attorney during her closing argument wherein she repeatedly
called [Appellant] a liar?
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Appellant’s Brief at 4.
In Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en
banc), this Court reiterated:
“On appeal from the denial of PCRA relief, our standard and
scope of review is limited to determining whether the PCRA
court’s findings are supported by the record and without legal
error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
2013) (citation omitted). “[Our] scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in
the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
131 (2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this Court applies
a de novo standard of review to the PCRA court’s legal
conclusions.” Id.Id. at 1214-15. Further,
“Counsel is presumed effective, and appellant bears the burden
of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341,
961 A.2d 786, 796 (2008). The Pierce[2] test requires appellant
to prove, with respect to counsel’s performance, that: “(1) the
underlying claim has arguable merit; (2) no reasonable basis
existed for counsel’s actions or failure to act; and (3) petitioner
suffered prejudice as a result of counsel’s error such that there is
a reasonable probability that the result of the proceeding would
have been different absent such error.” [Commonwealth v.
Lesko, 15 A.3d 345, 373–74 (Pa. 2011)] (citing Pierce, at
975). Failure to prove any prong of this test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278
(2006).
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2
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (footnote, brackets,
and additional citation omitted).
Appellant argues that the prosecutor’s remarks during closing
argument constituted prosecutorial misconduct and that his trial counsel was
ineffective for failing to object. Appellant contends the following remarks
were improper:
To believe the defendant’s testimony, you must believe that
everybody else who came in here was lying, everyone else, just
not the defendant.
I ask you, again, ladies and gentlemen, please do not reward the
defendant for getting up on the stand and lying to [you],
because that’s what he did. He completely lied. He was jittery.
He kept moving all over the place.
Well, ladies and gentlemen, I submit to you the defendant is a
liar. He lied to you and do not reward him for doing such.
Appellant’s Brief at 10 (citing Notes of Testimony, 4/17/13, at 30-31).
The PCRA court aptly explained:
Upon a claim of prosecutorial misconduct, the trial court must
determine whether there was misconduct and, if so, determine
what, if any prejudice result. Commonwealth v. Culver, 51
A.3d 866, 871 (Pa. Super. 2012). The appellate court reviews
that determination for an abuse of discretion. Id. “Our review
of prosecutorial remarks and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant
received a fair trial, not a perfect trial.” Commonwealth v.
Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citing
Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998)).
The Pennsylvania Supreme Court has summarized the law
concerning a prosecutor’s closing arguments:
Generally, a prosecutor’s arguments to the jury are not a
basis for the granting of a new trial unless the unavoidable
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effect of such comments would be to prejudice the jury,
forming in their minds fixed bias and hostility towards the
accused which would prevent them from properly weighing
the evidence and rendering a true verdict.
Commonwealth v. Jones, 546 Pa. 161, 199, 683 A.2d 1181,
1199 (1996) (emphasis added). In the present case,
[Appellant’s] claims concerning the closing arguments of the
prosecution fall far short of this standard.
PCRA Court Opinion, 9/28/16, at 6-7.
We find no error in the PCRA court’s conclusion. The crux of the trial
was credibility. As the court explained, defense counsel challenged the
credibility of the prosecution witnesses in his closing argument while
contending Appellant testified “truthfully.” Id. at 9 (citing N.T. 4/17/13, at
10).
He argued that the pharmacist, Dr. Lawson, was “trying to
embellish” his testimony when describing [Appellant] as “fidgety
and nervous.” (N.T. 4/17/14 p. 13). Further counsel argued
that Dr. Schwab, a University of Pennsylvania Trauma Surgeon,
testified falsely. He argued:
Well I would submit to you it’s because he knew he was
seeing my client on the side, as [Appellant] testified to,
and he wanted that—he didn’t want anyone to know that
he was, in essence, double-dipping, because he has a lot
to use [sic]. I will use a phrase that I’ve heard when I was
younger, pigs get fat and hogs get slaughtered. And Dr.
Schwab was trying not to be a hog.
(N.T. 4/17/13 pp. 15-16)
. . . Isn’t it more likely that as my client testified, he saw
Dr. Schwab. He saw Dr. Schwab after hours. Dr. Schwab
was getting money from him. And Dr. Schwab had a lot to
lose. (p. 17).
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. . . So it’s nice that he was a very good doctor, once. But
now he’s trying to get cash from my client and then does
not want to own up to the fact of what he did.
(N.T. 4/17/13 p. 18).
Id. at 10.
As our Supreme Court recognized in Commonwealth v. Chmiel, 889
A.2d 501 (Pa. 2005),
[T]he first prong of the ineffectiveness test is that the underlying
claim has merit. Pierce, 527 A.2d 973. In the context of
prosecutorial misconduct during closing arguments, Appellant
must demonstrate that there is merit to the contention that trial
counsel should have objected or requested a cautionary
instruction due to the prosecutor's misconduct. Appellant can
only do so if he can show that the prosecutor was, in fact,
engaging in misconduct. Otherwise, there is no merit in the
contention of trial counsel ineffectiveness.
We find there is no basis for relief because there was nothing
wrong with the prosecutor’s remarks and counsel cannot be
faulted for failing to pursue a meritless claim. In determining
whether the prosecutor engaged in misconduct, we must keep in
mind that comments made by a prosecutor must be examined
within the context of defense counsel’s conduct. It is well settled
that the prosecutor may fairly respond to points made in the
defense closing. Moreover, prosecutorial misconduct will not be
found where comments were based on the evidence or proper
inferences therefrom or were only oratorical flair.
Id. at 543-44 (citations and internal quotations omitted).
After reviewing Chmiel and other relevant case law discussing
prosecutorial statements made during closing arguments, the PCRA court
concluded:
A prosecutor is allowed to respond to defense arguments with
logical force and vigor. Here, the prosecutor’s comments
represented fair response to [Appellant’s] contentions. The
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defense in the case sub judice was based upon the theory that
he was telling the truth and all of the other witnesses at trial
were lying. Therefore, the prosecutor’s comments represented
a fair response to [Appellant’s] arguments.
PCRA Court Opinion, 9/28/16, at 13 (citation omitted). Further, the trial
judge, who was also the PCRA court judge, reminded the jurors that
counsels’ arguments were not evidence and inferences drawn by counsel
were not binding on the jury. Id.
We find the PCRA court’s findings are supported by the record.
Further, we find no error in the court’s legal conclusion that Appellant’s claim
lacks arguable merit. Just as our Supreme Court determined in Chmiel, we
find here that “there is no basis for relief because there was nothing wrong
with the prosecutor’s remarks and counsel cannot be faulted for failing to
pursue a meritless claim.” Chmiel, 889 A.2d at 533.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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