Com. v. Bush, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEREMIAH BUSH :
:
Appellant : No. 376 EDA 2020
Appeal from the PCRA Order Entered January 13, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001940-2009
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 07, 2020
Appellant Jeremiah Bush appeals the order of the Court of Common
Pleas of Chester County denying his petition pursuant to the Post-Conviction
Relief Act (PCRA).1 For the reasons set forth below, we find Appellant is not
entitled to collateral relief. As such, we affirm the PCRA court’s order.
Appellant was charged in connection with the October 21, 2006 murder
of Jonas (“Sonny”) Suber (hereinafter “the victim”), who was shot eight times
in his home in Coatesville, PA. The Commonwealth accused Appellant of
driving co-defendant Eric Coxry to the victim’s home and acting as a getaway
driver after Coxry shot the victim. Affidavit of Probable Cause, 2/20/09, at 1.
At a jury trial, Appellant was implicated in the murder plot through the
testimony of Clarence Milton, April Brown, and Robert Matthews. Milton
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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testified that he had contact with Appellant shortly before and after the victim
was shot. Notes of Testimony (N.T.), 5/15/13, at 476-84. On October 20,
2006, the day before the murder, Milton encountered Appellant and Coxry at
a known drug house owned by Keisha Washington in Coatesville, PA. Id. at
476. Milton recalled that Coxry was flashing a .45 caliber pistol and discussing
a “beef” between the victim and Duron Peoples. Id. at 479-80. Milton heard
Coxry bragging that Peoples was going to pay him $20,000 to “take care of
the situation.”2 Id. at 476, 480-81. While Coxry and Appellant left
Washington’s residence at different points that night, Milton remained there
and fell asleep.
The next morning, on October 21, 2006, Milton again saw Appellant at
Washington’s residence. When Milton asked Appellant where he had been,
Appellant indicated that “they went and took care of that situation.” N.T.,
5/15/13, at 483. Milton pressed Appellant for more information, asking
Appellant who “they” were and what the “situation” was. Appellant indicated
that he and Coxry and murdered the victim. Id. at 484. While Appellant
clarified that he did not shoot the victim, he admitted that he acted as the
getaway driver. Id.
____________________________________________
2 Duron Peoples and Shamone Woods were also charged in connection with
the victim’s murder. In addition, there are multiple witnesses that testified to
the complicated set of facts that surrounded the victim’s murder. For the sake
of simplicity and clarity for the reader, we have limited our discussion of the
factual background to the information necessary to resolve Appellant’s claims
on appeal.
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April Brown also agreed to testify for the prosecution and similarly
indicated that she spoke with Appellant at Keisha Washington’s house on
October 21, 2006, the night after the victim’s murder. N.T., 5/14/13, at 375-
384. Brown recalled that she was upset and confused as she had been
stopped by police, who subsequently confiscated her vehicle. Id. at 375-76.
In response, Appellant became “paranoid” and apologized to Brown for using
her car that morning. Id. at 376-77. As Brown was unaware that Appellant
had taken her car, she pushed Appellant for more information. Appellant
indicated that he had taken Coxry in Brown’s car to handle “some business.”
Id. at 377. At that point, Appellant became evasive about Brown’s line of
questioning and directed her to talk to Coxry. Id. at 377-83.
When Brown contacted Coxry, he asked her to get the car back, refused
to speak about the matter over the phone, and directed her to come speak
with him in person in Philadelphia. N.T. 5/15/13, at 378, 382-83. On October
22, 2006, when Brown met Coxry in Philadelphia, Coxry admitted that he had
been paid to shoot the victim, but indicated that it was “either him or me.”
Id. at 382-84.
The Commonwealth also presented the testimony of Robert Matthews,
Appellant’s cellmate in prison. Matthews claimed that Appellant shared with
him that he had been implicated in a murder-for-hire plot by April Brown.
N.T., 5/15/13, at 565-66. Matthews asserted that Appellant indicated that
Brown and the victim’s wife “needed to be gotten rid of” and asked Matthews
to kill the women when he was released from prison. Id. at 566-67, 573. As
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such, Matthews wrote a letter to the prosecutor’s office detailing that Appellant
had asked him to harm these women. Id. at 579-581.
On May 16, 2013, the jury convicted Appellant with first-degree murder,
second-degree murder, criminal conspiracy (two counts), burglary, and
aggravated assault. On May 29, 2013, Appellant was sentenced to life
imprisonment without the possibility of parole for the first-degree murder
charge pursuant to 18 Pa.C.S.A. § 1102(a) along with concurrent sentences
of eighteen to forty years’ imprisonment for one of the conspiracy charges and
four to eight years’ imprisonment for the burglary charge. Appellant filed a
post-sentence motion which was subsequently denied. On February 4, 2015,
this Court affirmed the judgment of sentence and on June 11, 2015, our
Supreme Court denied Appellant’s petition for allowance of appeal.
On February 26, 2016, Appellant filed a pro se PCRA petition.3 The PCRA
court appointed Appellant counsel, who filed an amended petition on June 13,
2018. On February 26, 2019, the PCRA court issued notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On
January 13, 2020, the PCRA court dismissed Appellant’s petition. Appellant
filed a timely appeal and complied with the PCRA court’s direction to file a
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3 Appellant’s petition meets the PCRA timeliness requirements. Generally, a
PCRA petition “including a second or subsequent petition, shall be filed within
one year of the date the judgment of sentence becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review. 42 Pa.C.S.A. §
9545(b)(3).
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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Appellant raises the following issues for our review on appeal:
A. The PCRA Court erred by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging that he
was entitled to a new trial predicated on a Brady violation
committed by the Commonwealth for the reasons set forth in
Issue III of the amended petition filed by Teri Heimbaugh,
Esquire.
B. The PCRA Court erred by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging that
trial counsel was ineffective for failing to impeach Clarence
Milton with available impeachment evidence.
C. The PCRA Court erred by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging that
trial counsel was ineffective for failing to timely object and
move for a mistrial or cautionary i[n]structions when the
prosecutor elicited hearsay from Clarence Milton.
D. The PCRA Court erred by denying Appellant an evidentiary
hearing and post-conviction relief on his constitutionally
based claim alleging that trial counsel was ineffective for not
presenting accurate law with regard to counsel’s attempt to
have suppressed Robert Matthews’ testimony.
E. The PCRA Court erred by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging that
trial counsel was ineffective for failing to object when the
prosecutor elicited irrelevant and highly prejudicial evidence
related to guns and drugs, impermissibly bolstering Milton’s
veracity, and inferring [sic] to Appellant’s right to remain
silent.
Appellant’s Brief, at ii-iii (reordered for ease of review).
Our standard of review is well-established:
[o]ur review of the grant or denial of PCRA relief is limited to
examining whether the PCRA court's findings of fact are supported
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by the record, and whether its conclusions of law are free from
legal error. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,
226 n.9 (2016). The PCRA court's credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court's legal
conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d
618, 627 n.13 (2017).
Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971 (2018).
Further,
A petitioner is not entitled to a PCRA hearing as a matter of right;
the PCRA court can decline to hold a hearing if there is no genuine
issue concerning any material fact, the petitioner is not entitled to
PCRA relief, and no purpose would be served by any further
proceedings.
Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.Super. 2018) (en banc)
(citation omitted).
First, Appellant claims the PCRA court erred by dismissing his claim that
he was entitled to a new trial based on his assertion that the Commonwealth
withheld exculpatory evidence, violating Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194 (1963). We are guided by the following precedent:
In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83
S.Ct. at 1196–97. The Supreme Court subsequently held that the
duty to disclose such evidence is applicable even if there has been
no request by the accused, United States v. Agurs, 427 U.S. 97,
107, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342 (1976), and that the
duty may encompass impeachment evidence as well as directly
exculpatory evidence, United States v. Bagley, 473 U.S. 667,
676–77, 105 S. Ct. 3375, 3380–81, 87 L. Ed. 2d 481 (1985).
Furthermore, the prosecution's Brady obligation extends to
exculpatory evidence in the files of police agencies of the same
government bringing the prosecution. Kyles v. Whitley, 514 U.S.
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419, 438, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490 (1995);
Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1142
(2001).
On the question of materiality, the Court has noted that “[s]uch
evidence is material ‘if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Strickler v. Greene, 527
U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999)
(quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). The
materiality inquiry is not just a matter of determining whether,
after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to
support the jury's conclusions. “Rather, the question is whether
‘the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the
verdict.’” Strickler, 527 U.S. at 290, 119 S.Ct. at 1952 (quoting
Kyles, 514 U.S. at 435, 115 S.Ct. at 1566). “Thus, there are three
necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.” Burke, 781 A.2d at 1141
(citing Strickler, 527 U.S. at 281–82, 119 S.Ct. at 1948).
Importantly, the Court has noted that the duty imposed upon the
prosecution under Brady is a limited one. See, e.g.,
Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846,
51 L. Ed. 2d 30 (1977) (“[t]here is no general constitutional right
to discovery in a criminal case, and Brady did not create one”);
see also Kyles, 514 U.S. at 436–37, 115 S.Ct. at 1567 (“[T]he
Constitution is not violated every time the government fails or
chooses not to disclose evidence that might prove helpful to the
defense.... We have never held that the Constitution demands an
open file policy ....”). This Court has also recognized Brady's
limited requirements, and has noted that Brady does not grant a
criminal defendant unfettered access to the Commonwealth's files.
See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883,
887 n. 3 (2004) (defendant has no general right under the
Constitution or Brady to search Commonwealth files);
Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176
(1999) (“[T]he Commonwealth is, in the first instance, the judge
of what information must be disclosed.... ‘Defense counsel has no
constitutional right to conduct his own search of the State's files
to argue relevance.’”) (quoting Pennsylvania v. Ritchie, 480
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U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40 (1987));
Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284,
297 (1998), cert. denied, 528 U.S. 836, 120 S. Ct. 97, 145 L. Ed. 2d
82 (1999) (Brady is not a general rule of discovery in criminal
cases).
Commonwealth v. Lambert, 584 Pa. 461, 470–71, 884 A.2d 848, 853–54
(2005).
Specifically, Appellant claims the Commonwealth failed to provide the
defense with a statement that Khalil Bell made to Philadelphia police officers
in February 2011 before Appellant was tried in this case in Chester County in
May 2013. Bell is the brother of Clarence Milton, the witness that testified
that Appellant told him that he served as Coxry’s getaway driver after the
victim’s murder. Bell did not testify at Appellant’s trial.
In support of this claim, Appellant presented an affidavit from Bell, dated
August 22, 2017, indicating that Bell told the officers in February 2011 that
Appellant had no involvement in the victim’s murder. Bell asserts in the
affidavit that “[n]ever did I make any incriminating statements against
Jerimiah [sic] Bush in regards to this homicide case.” Bell Affidavit, 8/22/17,
at 1.
Bell asserts that the officers who took his statement told Bell to stop
claiming Appellant was not the getaway driver as they intended to prosecute
Appellant for the victim’s murder. Bell contends that he signed a statement
that the officers had drafted without reading it as he believed he would be
given favorable treatment with respect to his own unrelated criminal charges.
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Bell characterizes his February 2011 statement as a “lie,” and asserts that he
wishes to recant this statement. Id.
Appellant suggests that, had the Commonwealth disclosed Bell’s
statement to the defense, Appellant could have shown that the police were
only interested in obtaining evidence to falsely implicate Appellant and used
unduly suggestive and coercive interrogation tactics to obtain statements from
both Bell and Milton. Moreover, Appellant argues that the statement would
have allowed the defense to have “more effectively cross-examined and
impeached the detectives.” Appellant’s Brief, at 57. Further, Appellant wishes
to investigate Bell’s interrogation further as he indicates that “[w]ho knows
what other evidence was disclosed by other witnesses that was not
documented by the detectives.” Id.
However, Appellant does not show how Bell’s alleged statement would
be considered favorable to the defense as it does not constitute exculpatory
or impeachment evidence. Neither Bell nor Appellant discussed the possible
content of the statement as they assert that Bell signed the statement without
reading it. However, as Bell wishes to recant this statement which he
characterizes as a “lie,” Bell suggests that statement is contrary to his current
viewpoint that Appellant had no involvement in the victim’s murder and
actually implicated Appellant in the victim’s murder. In addition, Appellant
fails to show how a review of Bell’s statement would lead to an inference that
Bell was subjected to coercive interrogation tactics.
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Even assuming this evidence could be considered favorable to the
defense, Appellant has not shown that “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Lambert, supra. We emphasize that our
Supreme Court has characterized recantation testimony as “notoriously
unreliable.” Commonwealth v. Johnson, 600 Pa. 329, 360, 966 A.2d 523,
541 (2009). It would be pure speculation to credit Appellant’s claim that the
disclosure of Bell’s statement (which he admits is untruthful) would have
shown the defense that detectives coerced Bell and other witnesses into giving
false testimony against Appellant. As such, the PCRA court did not err in
rejecting Appellant’s claim that the prosecution had suppressed material
exculpatory evidence under Brady.
Appellant also raises various arguments that trial counsel provided
ineffective representation. We are guided by the following principles:
[a]s originally established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, [104
S. Ct. 2052, 80 L. Ed. 2d 674] (1984), and adopted by
Pennsylvania appellate courts, counsel is presumed to have
provided effective representation unless a PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel's action or
inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the
effect that there was a reasonable probability of a different
outcome at trial if not for counsel's error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
(citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
A.2d 409, 419 (2009).
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Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020).
In his second claim on appeal, Appellant argues that trial counsel was
ineffective for failing to adequately impeach the credibility of Clarence Milton.
As noted above, Milton testified at trial that Appellant confessed to him that
he had been involved in the victim’s murder by acting as the getaway driver
for the shooter, Coxry. Specifically, in his PCRA petition, Appellant presented
three letters that Milton allegedly sent to his brother, Khalil Bell, prior to trial.
While Appellant does not discuss the language of the first two letters in his
appellate brief, Appellant alleges that the language of the third letter suggests
that Milton fabricated his testimony implicating Appellant in the victim’s
murder.
However, Appellant admits that he only gave trial counsel the first two
letters as Bell did not send the third letter to Appellant until 2017. Although
Appellant concedes trial counsel was not aware of the existence of the third
letter at the time of trial, Appellant argues that trial counsel would have
discovered the third letter if he had investigated Bell.
In reviewing a claim that trial counsel was ineffective in failing to
investigate a witness, this Court has held that:
[n]eglecting to call a witness differs from failing to investigate a
witness in a subtle but important way. The failure to investigate
presents an issue of arguable merit where the record
demonstrates that counsel did not perform an investigation. It can
be unreasonable per se to conduct no investigation into known
witnesses. Importantly, a petitioner still must demonstrate
prejudice. To demonstrate prejudice where the allegation is the
failure to interview a witness, the petitioner must show that there
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is a reasonable probability that the testimony the witness would
have provided would have led to a different outcome at trial.
In this respect, a failure to investigate and interview a witness
claim overlaps with declining to call a witness since the petitioner
must prove: (i) the witness existed; (ii) the witness was available
to testify; (iii) counsel knew of, or should have known of, the
existence of the witness; (iv) the witness was willing to testify;
and (v) the absence of the testimony was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 638–39 (Pa.Super. 2014).
The record does not support Appellant’s assertion that trial counsel
failed to investigate Bell. Appellant actually admits in his own affidavit
attached to his petition that trial counsel did investigate Bell, but refused to
present Bell as a witness at Appellant’s trial as a matter of strategy based on
his belief that Bell would not provide the defense with favorable testimony.
Appellant’s Affidavit, at 1 (Exhibit P-10).
With respect to the first two letters that Milton allegedly sent to Bell,
Appellant does not develop any analysis to explain how the language used in
the first letter suggests that Milton was confessing that Appellant was not
involved in the victim’s murder. The copy of the second letter in the certified
record is illegible.
Further, Appellant failed to support his unfounded assertion that had
counsel further investigated Bell, trial counsel would have discovered the third
letter and could have impeached Milton with the third letter. Appellant
admitted that while Bell gave him the first two letters prior to trial, Appellant
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was not aware of the third letter’s existence until Bell sent it to him in 2017,
more than three years after Appellant’s trial had concluded.4
Moreover, Appellant’s claim fails to meet the prejudice prong of the
ineffectiveness test. Trial counsel vigorously attacked Milton’s credibility on
cross-examination by confronting Milton with the fact that he would receive
favorable treatment in his own unrelated criminal charges in exchange for
testifying against Appellant. N.T., 5/15/13, at 535-36. As Appellant has not
shown that the outcome of the trial would have been different, we decline to
find trial counsel was ineffective in this respect.
Third, Appellant asserts that trial counsel was ineffective for failing to
timely object and move for a mistrial or a cautionary instruction when the
prosecutor elicited hearsay from Milton. Specifically, Appellant claims that
Milton improperly testified on redirect examination that Coxry had told him
that Appellant acted as his getaway driver. The Commonwealth asserts that
the prosecutor’s inquiry was a fair response to defense counsel’s previous line
of questioning on cross-examination.
Our review of the record shows that trial counsel was the first to elicit
hearsay from Milton on cross-examination when he asked Milton to discuss his
conversation with Coxry:
[Defense counsel:] You also spoke to Eric Coxry about the Suber
murder, didn’t you?
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4Appellant did not raise a claim in his PCRA petition that Milton’s third letter
was after-discovered evidence that entitles him to a new trial.
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[Milton:] Yes, I have.
[Defense counsel:] And Eric Coxry told you that he was the
shooter, correct?
[Milton:] Yes, he did.
[Defense counsel:] And he told you that Shamone Woods paid
him, right?
[Milton:] Yes, he did.
N.T., 5/15/13, at 548-49 (emphasis added).
Immediately thereafter, on redirect examination, the prosecutor asked
Milton to clarify for the jury that Coxry had also identified Appellant as his
getaway driver:
[Defense counsel:] Did Mr. Coxry tell you what role [Appellant]
had in the murder of Mr. Suber?
[Milton:] Yes, he did.
[Defense counsel:] What did he say?
[Milton:] Driver.
Id. at 549.
Our courts have held that “a litigant opens the door to inadmissible
evidence by presenting proof that creates a false impression refuted by the
otherwise prohibited evidence.” Commonwealth v. Nypaver, 69 A.3d 708,
716 (Pa.Super. 2013) (citations omitted). We agree with the PCRA court’s
assessment that defense counsel “opened the door” to this inadmissible
testimony by his own line of questioning on cross-examination asking Milton
for hearsay testimony about what Coxry had told him about Coxry and Woods’
involvement in the victim’s murder. In doing so, the defense created a false
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impression that Coxry implicated himself and Woods in the victim’s murder,
but not Appellant. Thus, it was a fair response for the prosecutor to
subsequently request that Milton tell the jury what Coxry had revealed about
Appellant’s involvement in the crime. Accordingly, this claim fails.
Fourth, Appellant argues that trial counsel was ineffective in failing to
attempt to suppress the testimony of Robert Matthews, Appellant’s cellmate,
who allegedly acted as a jailhouse informant that interrogated Appellant
without counsel in violation of the Fifth and Sixth Amendments of the U.S.
Constitution. Appellant alleges that after Matthews provided the prosecution
with his initial statement, the prosecution “permitted Matthews to return to
the same unit where Appellant was incarcerated solely to obtain further
incriminating statements from him.” Appellant’s Brief, at 37.
We acknowledge that:
“the Commonwealth cannot circumvent a defendant's Sixth
Amendment right to counsel by sending in an informant to
question the defendant in circumstances where police could not
do so themselves without the presence of an attorney for the
defendant. Commonwealth v. Franciscus, 551 Pa. 376, 710
A.2d 1112 (1998). However, where a prisoner volunteers his
complicity in criminal activity to a fellow inmate, he does so at his
own peril. Indeed, “‘the Sixth Amendment is not violated
whenever—by luck or happenstance—the State obtains
incriminating statements from the accused after the right to
counsel has attached’.... [A] defendant does not make out a
violation of that right simply by showing that an informant, either
through prior arrangement or voluntarily, reported his
incriminating statements to the police.” Kuhlmann v. Wilson,
477 U.S. 436, 459, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986)
[(abrogated on other grounds)] (quoting U.S. v. Henry, 447 U.S.
264, 277, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980) (Powell, J.
concurring)). A voluntary jailhouse admission to a fellow inmate
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is not subject to any more protection than a confession made by
the defendant outside of his jail cell to another person willing to
notify authorities.
Commonwealth v. Ogrod, 576 Pa. 412, 470–71, 839 A.2d 294, 329 (2003).
Our Supreme Court has further clarified that:
[i]n order to prove such a violation, the defendant must
demonstrate that the police and the informant took some action,
beyond mere listening, which was designed deliberately to elicit
incriminating remarks. Moreover, the defendant must show that
the informant was acting as an agent of the government.
Individual acts do not become imbued with the character of
governmental action merely because they are later relied upon
and used by the government in furtherance of governmental
objectives.
Commonwealth v. Hawkins, 549 Pa. 352, 377-78, 701 A.2d 492, 505
(1997) (citations omitted).
Appellant does not allege that Matthews was intentionally placed in
Appellant’s cell or that Matthews was acting under an agreement with the
police to serve as an informant. There is no indication that Matthews
deliberately sought to elicit information from Appellant but rather, Matthews
testified that Appellant himself voluntarily divulged information about the
charges he was facing to and asked Matthews to kill two of the witnesses to
the victim’s murder.
Matthews testified that after Appellant shared this information with him
in 2009, he wrote to Chester County prosecutors in February 2010 to report
concern that Appellant was seeking to harm these witnesses. Law
enforcement then met with Matthews in March 2010 to interview him about
his allegations. N.T., 5/13/16, at 571, 578-79. The fact that Matthews shared
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with law enforcement the information that Appellant voluntarily revealed to
him does not lead us to conclude that Appellant’s constitutional rights were
violated. Accordingly, the PCRA court did not err in finding this claim to be
meritless.
Appellant’s fifth claim of error contains several issues which we will
address separately. Appellant claims trial counsel was ineffective in failing to
object when the prosecutor elicited testimony from a witness who indicated
that Appellant’s co-defendant Peoples possessed drugs and firearms not
connected to the crimes charged in this case. However, as Appellant did not
raise this claim in his PCRA petition, it was never decided by the PCRA court.
See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”). As such, this claim has not
been preserved for appellate review.
Appellant also claims trial counsel was ineffective for failing to object
when the prosecutor bolstered Milton’s credibility in closing argument. In
reviewing claims of prosecutorial misconduct, our courts have held:
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.
Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 503
(1997). It is well settled that the prosecutor may fairly respond to
points made in the defense closing. See [Commonwealth v.]
Trivigno, [561 Pa. 232, 244,] 750 A.2d [243, 249 (2000)]
(plurality) (“A remark by a prosecutor, otherwise improper, may
be appropriate if it is in fair response to the argument and
comment of defense counsel”) (citing United States v.
Robinson, 485 U.S. 25, 31, 108 S. Ct. 864, 99 L. Ed. 2d 23,
(1988)); Commonwealth v. Marrero, 546 Pa. 596, 687 A.2d
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1102, 1109 (1996). Moreover, “prosecutorial misconduct will not
be found where comments were based on the evidence or proper
inferences therefrom or were only oratorical flair.” Hawkins, 701
A.2d at 503; [Commonwealth v.] Jones, [542 Pa. 464, 512,]
668 A.2d [491, 514 (1995).]
***
It is settled that it is improper for a prosecutor to express a
personal belief as to the credibility of the defendant or other
witnesses. Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d
225 (1999). However, the prosecutor may comment on the
credibility of witnesses. Commonwealth v. Jones, 571 Pa. 112,
811 A.2d 994, 1006 (2002); Commonwealth v. Simmons, 541
Pa. 211, 662 A.2d 621, 639 (1995). Further, a prosecutor is
allowed to respond to defense arguments with logical force and
vigor. Koehler, 737 A.2d at 240; Commonwealth v. Brown,
551 Pa. 465, 711 A.2d 444, 454 (1998). If defense counsel has
attacked the credibility of witnesses in closing, the prosecutor may
present argument addressing the witnesses' credibility. See
Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761, 768
(2002) (rejecting defense contention that the prosecutor
improperly vouched for the credibility of prosecution witnesses
since “[t]he prosecutor was reviewing the testimony of several
prosecution witnesses after [defense] counsel had attacked their
testimony, in an effort to counter the argument of defense
counsel”); Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d
1303, 1305 (1991) (holding that a prosecutor's comments stating
that a defendant had lied were neither unfair nor prejudicial when
given in response to the comments of defense counsel in relation
to the credibility of witnesses, and when they were supported by
the evidence).
***
Even if a [prosecutor’s comments] were an expression of personal
opinion, they cannot be characterized as prosecutorial misconduct
unless their effect was 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. Chmiel, 585 Pa. 547, 618-21, 889 A.2d 501, 543–45
(2005) (some citations omitted).
In particular, Appellant argues that it was improper for the prosecutor
to suggest that “Milton’s testimony should be considered credible by the jury
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because the government required him to be truthful in order to be eligible for
[his own] plea agreement.” Appellant’s Amended PCRA Petition, at 32. We
note that Milton had conceded that his own plea argument in an unrelated
criminal prosecution would be affected by his cooperation as a witness against
Appellant.
In reviewing the record, we find that the prosecutor’s comments
constituted a fair response to defense counsel’s vigorous attack of Milton’s
credibility on cross-examination and closing argument. Specifically, defense
counsel repeatedly argued that Milton had “incentive to try to save his own
skin” and “absolute motivation not to tell the truth.” See N.T., 5/16/13, at
724-25. Moreover, we cannot conclude that the effect of the prosecutor’s
statement was “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.” Chmiel, 585 Pa. at 621, 889 A.2d at
545. As such, this claim fails.
Lastly, Appellant claims that trial counsel was ineffective in failing to
object when the prosecutor elicited testimony from Milton about his waiver of
his Fifth Amendment right to remain silent, which Appellant argues, implicitly
attacked Appellant’s own decision not to waive this right. However, the PCRA
court noted that Appellant had not identified the point in the record where this
alleged error occurred and declined to review Appellant’s claim further. We
agree with this conclusion and find that Appellant has not properly developed
this argument for review. Commonwealth v. Bomar, 573 Pa. 426, 453, 826
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A.2d 831, 847 (2003) (emphasizing that it is “not the obligation of this Court
to pore over the lengthy record [to] identify specific instances in the record
that may support [an] appellant's generic, unsubstantiated claim”).
For the foregoing reasons, we affirm the PCRA court’s order dismissing
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
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