Com. v. Braswell, X.

J-S18045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
XAVIER BRASWELL :
:
Appellant : No. 3091 EDA 2022
Appeal from the PCRA Order Entered November 10, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008185-2016
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 1, 2023
Appellant, Xavier Braswell, appeals from the order entered in the Court
of Common Pleas of Philadelphia County, which denied his first petition filed
under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,
following an evidentiary hearing. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Appellant was
arrested in connection with the murder of Shelton Merritt, and represented by
counsel, he proceeded to a jury trial, which resulted in a mistrial on November
3, 2017, when the jury failed to render a unanimous verdict. On May 14,
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* Former Justice specially assigned to the Superior Court.
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2018, Appellant, represented by counsel,1 appeared for a jury retrial. The
trial court summarized the testimony presented at the retrial as follows:
At about 11:45 p.m., on July 24, 2016, [Appellant], his
cousin Alex Rice (“Rice”), his friend Robert Renfro (“Renfro”),
Rice’s sister Shadele Rice (“Shadele”), and a woman identified as
“Lee Lee” entered the River Deck club on 417 North Columbus
Boulevard in Philadelphia. Around the same time, a separate
group of people including the decedent Shelton Merritt (“the
decedent”), his friends Zachary Gorczynski (“Gorczynski”) and
Jonathan Jones (known as “Jalil”), and two other males arrived at
the River Deck club. The latter group was not permitted to enter
because two of its members were wearing T-shirts, so they
continued to stand outside in line. N.T., 5/14/18, at 117-20; N.T.,
5/15/18, at 179-89.
Inside the club, Renfro became involved in a fight and was
kicked at and punched by multiple people. After the fight, Renfro
told [Appellant] that he had been assaulted and pointed out the
group of people who had done it. Soon after, Shadele approached
Renfro and told him that Rice was involved in a fight outside the
club. On his way out, Renfro observed [Appellant] in a fight with
the same group of people with whom he had fought. Outside the
club, Renfro saw the decedent and numerous other people
assaulting Rice, with one individual hitting Rice with a bottle,
which caused him to fall to the ground. N.T., 5/14/18, at 120;
N.T., 5/15/18, at 112-21.
After the altercation with Rice, the decedent and his friends
left the club and walked towards their car, a Ford Explorer SUV
parked on the north side of Callowhill Street, near the intersection
of Christopher Columbus Boulevard and about two blocks away
from the River Deck. The group got into the vehicle, with the
decedent seated in the back row. Shortly thereafter, [Appellant],
Rice, and Renfro approached the vehicle. Rice and Renfro
approached the driver’s side, where they confronted Jones.
[Appellant] approached the passenger’s side of the vehicle, and
Gorczynski exited the front passenger’s seat to speak with him.
[Appellant] asked Gorczynski to identify the person who had
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1 At the jury retrial, Appellant was represented by Joseph Green, II, Esquire,
who was lead defense counsel, and W. Fred Harrison, Esquire, who was co-
counsel.
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knocked out Rice, then drew a 9-millimeter semi-automatic
handgun and pointed it at Gorczynki. [Appellant] pulled the
trigger but the gun failed to fire. Gorczynski ran and told the group
in the SUV that [Appellant] had a gun. The group exited the SUV,
but the decedent, who was seated in the back row, was unable to
escape the vehicle. [Appellant] fired nine times into the SUV,
fatally shooting the decedent. N.T., 5/14/18, at 123-30; N.T.,
5/16/18, at 229, 239; N.T., 5/17/18, at 238-39.
After the shooting, [Appellant] fled towards a nearby
parking lot, pursued by Gorczynski and others. There, Gorczynski
observed [Appellant] throw an object into the water. The object
was never recovered. N.T., 5/14/18, at 123-30; N.T., 5/16/18,
at 229, 239; N.T., 5/17/18, at 238-39.
At 11:45 p.m., Philadelphia Police Sergeant David DeCrosta
responded to a priority radio call reporting gunshots. Upon
arriving at the scene, he discovered the decedent lying with his
torso outside of the SUV and his legs inside. Sergeant DeCrosta
observed that the decedent had suffered a gunshot wound to the
head and was bleeding heavily. He immediately placed the
decedent into his patrol car and drove to Hahnemann University
Hospital, where the decedent was pronounced dead at 12:07 a.m.
N.T., 5/16/18, at 7-18.
Dr. Lindsay Simon, Associate Medical Examiner for the City
of Philadelphia, performed the autopsy of the decedent. Dr.
Simon concluded that the decedent had suffered one gunshot
wound to the top of his head, five gunshot wounds to the back,
and one gunshot wound to the right side of his neck. All of the
gunshots were fired from an indeterminate range. The decedent
also suffered abrasions on his arm caused by broken glass, as well
as abrasions on his neck, right thigh, and the front of his right
knee. There were no visible defensive wounds. Dr. Simon
determined that the manner of death was homicide caused by
multiple gunshot wounds. N.T., 5/14/18, at 63-95.
Around 11:45 p.m., Lieutenant Sean Dandridge of the
Philadelphia Police Department arrived at the River Deck club in
response to the fight, and he held a brief conversation with the
manager outside the club. Lieutenant Dandridge then heard eight
or nine shots in rapid succession. He got into his patrol vehicle
and drove to a nearby parking lot where an unknown Latino male
on a dirt bike stopped him, pointed towards [Appellant], and
shouted, “He just shot my boy.” Lieutenant Dandridge spotted
[Appellant] running. [Appellant] ignored Lieutenant Dandridge’s
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commands to get on the ground for eight to ten seconds before
complying. While Lieutenant Dandridge waited for backup to
arrive, six males ran up from behind him, converged on
[Appellant], and began punching and kicking him. Approximately
thirty seconds later, more police cars arrived, and the other males
fled. Lieutenant Dandridge and the other officers detained
[Appellant], as well as Rice and Renfro, who were nearby, and
transported them to the homicide unit at the Police Administration
Building. N.T., 5/17/18, at 147-56.
At the homicide unit, Detective James Pitts interviewed
Renfro, who identified [Appellant] as the shooter. Detectives
Scally and Peterman interviewed Rice, who told them that
[Appellant] was the only person standing by the SUV during the
shooting. N.T., 5/15/18, at 145-48; N.T., 5/16/18, at 139-57.
In the early morning on July 25, 2016, [several officers,
including] Officer Clyde Frasier of the Crime Scene Unit, arrived
on the scene. Officer Frasier observed and photographed nine 9-
millimeter fired cartridge casings (“FCCs”), as well as two bullet
projectile fragments, blood stains, and shattered glass on the
sidewalk near the SUV. Officer Frasier submitted the FCCs and
projectiles to the Firearms Identification Unit. Ballistician Norman
DeFields received the ballistic evidence and identified all nine FCCs
as 9-millimeters, including eight Hornady Critical Defense Bullets,
an expanding hollow-point type of bullet designed to create more
damage. Officer DeFields determined that the ballistic evidence
was consistent with someone shooting into the SUV. N.T.,
5/17/18, at 9-44, 238-52.
At trial, Renfro testified that he saw [Appellant] shooting
into the SUV. Rice testified that he did not remember going into
the River Deck club because he was drunk, and that he only
remembered being assaulted outside, passing by the SUV, then
hearing gunshots and running towards the club. He testified that
he did not see [Appellant] at the SUV, but at the intersection of
Callowhill and Christopher Columbus streets during the shooting.
He testified that he did not remember giving a statement to the
police. Rice’s testimony was impeached at trial by his police
statement, as well as a video recording of his interview with
detectives. N.T., 5/15/18, at 133-35; N.T., 5/16/18, at 132-88.
At trial, [Appellant] presented the testimony of Police
Officers Patrick Greider and Gregory Neal, who came into contact
with Jones shortly after the incident. [Appellant] also called to the
stand independent firearm and forensic consultant Frederick
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Wentling, who testified that the more a gun is fired, the more
gunshot residue it causes, and forensic scientist, Hung Le, who
tested [Appellant’s] clothing and did not find any gunshot residue.
Additionally, [Appellant] presented the testimony of Fatimot
Adekanmbi, a member of the DNA laboratory within the City of
Philadelphia’s Criminalistics Unit, who examined [Appellant’s]
clothes and did not find the decedent’s DNA. N.T., 5/18/18, at 6-
13, 26-28, 51, 98-103, 114-19.
Trial Court Opinion, filed 8/6/18, at 2-5.
At the conclusion of all evidence, on May 21, 2018, the jury convicted
Appellant of first-degree murder and related firearm offenses. See 18
Pa.C.S.A. §§ 2502(a), 6108, and 907(a). On May 21, 2018, the trial court
imposed the mandatory term of life in prison for first-degree murder, as well
as a concurrent aggregate term of one year to two years in prison for the
firearm offenses. Appellant filed timely post-sentence motions, which the trial
court denied.
Appellant filed a timely direct appeal to this Court presenting the
following sole issue: “Did the trial court cause structural error by repeatedly
interjecting its comments during witness testimony and chastising defense
counsel in front of the jury, [and] deny Appellant a fair trial?”
Commonwealth v. Braswell, No. 1893 EDA 2018, at *2 (Pa.Super. filed
9/11/19) (unpublished memorandum). This Court found the issue to be
waived and, in the alternative, found no merit to the claim. See id.
Accordingly, we affirmed Appellant’s judgment of sentence. See id. On March
4, 2020, our Supreme Court denied Appellant’s petition for allowance of
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appeal, and Appellant did not file a petition for a writ of certiorari with the
United States Supreme Court.
On or about May 28, 2021, Appellant filed a timely, pro se PCRA
petition,2 and after Appellant filed a supplemental pro se PCRA petition, the
PCRA court appointed counsel, who sought to withdraw. Appellant then
retained private counsel, who filed a supplemental PCRA petition on behalf of
Appellant on November 30, 2021.
On March 15, 2022, the PCRA court provided Appellant with notice of its
intent to dismiss the PCRA petition without a hearing; however, Appellant filed
a response, and a supplemental response, in opposition thereto. On July 17,
2022, the PCRA court held an evidentiary hearing, and on August 11, 2022,
the parties filed post-hearing briefs. On August 13, 2022, Appellant filed a
motion for a supplemental PCRA hearing, which the trial court granted, and
on September 9, 2022, the PCRA court held a supplemental evidentiary
hearing.
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2 Appellant’s judgment of sentence became final on June 2, 2020, ninety days
after our Supreme Court denied Appellant’s petition for allowance of appeal
and the time to file a writ of certiorari with the United States Supreme Court
expired. See U.S. Supreme Court Rule 13 (effective January 1, 1990) (stating
that a petition for writ of certiorari to review a judgment of sentence is deemed
timely when it is filed within 90 days). Thereafter, Appellant filed his PCRA
petition on May 28, 2021, which is within one year of when his judgment of
sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly,
Appellant’s first PCRA petition was timely filed.
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By order entered on November 10, 2022, the PCRA court denied
Appellant’s PCRA petition. The PCRA court filed an opinion in support of its
order on November 14, 2022. This timely, counseled appeal followed on
November 30, 2022. The PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) statement, and consequently, no such statement was filed.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Presented” (verbatim):
I. Whether the PCRA court erred in finding trial counsel was
not ineffective where trial counsel did not interview and call
two alibi witnesses?
II. Whether the PCRA court erred in finding trial counsel was
not ineffective for not filing a motion to suppress or
otherwise exclude the prior statements and testimony of
Robert Renfro and Alex Rice which were coerced by police
with promises that they would not be charged with murder
if they gave statements shifting blame for the murder to
[Appellant]?
III. Whether the PCRA court erred in finding that trial counsel
was not ineffective for failing to object to the prosecutor’s
closing argument, which relied on a series of false
misrepresentations in an effort to explain why there was no
physical evidence implicating [Appellant] in the murder?
IV. Whether Appellant was convicted based on the knowing use
of false testimony by the prosecution team?
Appellant’s Brief at 2 (unnecessary bold and capitalization omitted).
Initially, we note our standard of review for an order denying PCRA relief
is limited to whether the record supports the PCRA court’s determination, and
whether that decision is free of legal error. Commonwealth v. Sattazahn,
597 Pa. 648, 952 A.2d 640, 652 (2008). “We must accord great deference to
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the findings of the PCRA court, and such findings will not be disturbed unless
they have no support in the record.” Commonwealth v. Scassera, 965 A.2d
247, 249 (Pa.Super. 2009) (citation omitted).
As relevant here, 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). In reviewing Appellant’s ineffective
assistance of counsel claims, we are mindful that, since there is a presumption
counsel provided effective representation, the defendant bears the burden of
proving ineffectiveness. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282(2010).
To prevail on an ineffective assistance claim, a defendant must establish
“(1) [the] underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis designed to
effectuate his [client’s] interests; and (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the proceedings would
have been different.” Id. at 291 (citations omitted).
We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong
that an appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case. [C]ounsel cannot
be deemed ineffective for failing to raise a meritless claim.
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(citations omitted). See Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d
409, 419 (2009) (“A failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.”) (citation omitted)). “A
claim has arguable merit where the factual averments, if accurate, could
establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701, 707
(Pa.Super. 2013) (en banc) (citation omitted).
Regarding the reasonable basis prong of the ineffective assistance of
counsel test, our Supreme Court has relevantly stated the following:
When assessing whether counsel had a reasonable basis for his
act or omission, the question is not whether there were other
courses of action that counsel could have taken, but whether
counsel’s decision had any basis reasonably designed to effectuate
his client’s interest….[T]his cannot be a hindsight evaluation of
counsel’s performance, but requires an examination of “whether
counsel made an informed choice, which at the time the decision
was made reasonably could have been considered to advance and
protect [the] defendant’s interests.” Our evaluation of counsel’s
performance is “highly deferential.”
Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 463 (2016)
(citations and quotations omitted).
Further,
To demonstrate prejudice, the petitioner must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. [A] reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.
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Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations,
quotation marks, and quotations omitted). See Commonwealth v. Gribble,
580 Pa. 647, 863 A.2d 455, 472 (2004) (“[A] defendant [raising a claim of
ineffective assistance of counsel] is required to show actual prejudice; that is,
that counsel’s ineffectiveness was of such magnitude that it could have
reasonably had an adverse effect on the outcome of the proceedings.”)
(quotation omitted)).
In his first issue, Appellant claims trial counsel was ineffective in failing
to personally interview3 and call two potential alibi witnesses, Demetrius Tilley
(“Tilley”) and Kyle Lloyd (“Lloyd”), to testify at trial. Appellant contends that,
if called to testify, “[e]ach man [would have] confirmed that Appellant [was]
with him on the date and time of the shooting.” Appellant’s brief at 15.
Specifically, Appellant avers the two men would have testified they were
standing with Appellant outside of the River Deck club at the time the shooting
began, and Appellant did not have a gun. Id. at 15-16. The Commonwealth
contends Appellant’s ineffectiveness claim fails because he voluntarily waived
the right to call additional witnesses at trial. After a careful review, we agree.
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3 Appellant admits that, at the direction of trial counsel, the defense’s private
investigator interviewed Tilley and Lloyd prior to trial; however, he contends
trial counsel was ineffective in failing to personally interview the two men.
Appellant’s Brief at 15.
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At Appellant’s jury trial, the following exchange occurred on-the-record
between the trial court and Appellant at the conclusion of all evidence and
before the attorneys’ closing statements:
THE COURT: Have you made a decision as to whether or not
you wish to testify?
[APPELLANT]: No. Not yet, Your Honor.
THE COURT: Okay. Well, the other things that I’m going to
do is when you come back [from lunch] I’m going to ask you
whether or not anyone forced you, promised you anything in order
for you to make your decision.
Before we take our lunch recess, do you have any questions
about the right to testify, about your right to testify for me?
[APPELLANT]: No, Your Honor.
THE COURT: Are there any witnesses that you wanted
your attorneys to call that they have not called?
[APPELLANT]: No.
THE COURT: All right. So, they’ve presented the case,
the defense that you’ve asked them to present?
[APPELLANT]: Yes.
N.T., 5/18/18, at 152 (emphasis added).4
In Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686 (2008), our
Supreme Court held:
[A]n on-the-record colloquy is a useful procedural tool whenever
the waiver of any significant right is at issue, constitutional or
otherwise, e.g., waiver of a trial, waiver of the right to counsel,
waiver of the right to call witnesses, waiver of the right to
cross-examine witnesses, waiver of rules-based speedy trial time
limits, etc.
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4 When the trial court returned from the lunch recess, Appellant waived his
right to testify.
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Mallory, supra, 941 A.2d at 697 (emphasis added).
Similarly, in Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294(2002), our Supreme Court recognized that “a defendant who makes a
knowing, voluntary, and intelligent decision concerning trial strategy will not
later be heard to complain that trial counsel was ineffective on the basis of
that decision.” Paddy, supra, 800 A.2d at 316. To hold otherwise, the
Supreme Court indicated, “would allow a defendant to build into his case a
ready-made ineffectiveness claim to be raised in the event of an adverse
verdict.” Id. In Paddy, the defendant complained of trial counsel’s
ineffectiveness for failing to call alibi witnesses, in response to which our
Supreme Court held that “this ineffectiveness claim fails for the fundamental
reason that Paddy agreed at trial to his attorney’s decision not to call the
witnesses in question.” Paddy, supra, 800 A.2d at 315.
Subsequently, in Commonwealth v. Brown, 649 Pa. 293, 196 A.3d
130 (2018), our Supreme Court was asked to determine whether an
appellant’s trial counsel was ineffective in failing to present a witness at trial
to impeach another witness’s trial testimony. In concluding the appellant was
not entitled to relief on the ineffectiveness claim, our Supreme Court noted
the following colloquy occurred during the appellant’s trial:
The Court: Now, sir, are there any witnesses that you wanted to
call or anything that you discussed with [trial counsel] that is not
going to happen at this trial? And I know that there's a few
witnesses that are going to be called, and why don't we just state
for the record who those are.
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[Trial Counsel]: Judge, I intend to call Police Officer Kevin Fant, F-
A-N-T, and Detective Gregory Rodden, R-O-D-D-E-N, who was the
assigned detective in this case. And we may call the crime scene
detective who did the crime scene, Detective David Baker and
Detective George Fetters. Detective Fetters has not yet arrived.
We've only interviewed Detective Baker.
The Court: Okay. So those are all the police witnesses. Were there
any other names that you gave to [trial counsel] for the trial
portion of this case, not the penalty phase, that you expected to
testify and whose names just did not hear mentioned?
[Brown]: Negative.
The Court: All right. And are you satisfied with the representation
that you have received from your counsel.
[Brown]: Yes.
Brown, supra, 196 A.3d at 173–74 (citation to record omitted).
Applying the reasoning of Mallory and Paddy, our Supreme Court held:
Brown asserts that trial counsel should have presented
another witness, Akines-Harris, to impeach Anderson’s
credibility.
***
As the record reflects, Brown participated in a colloquy at
which he was advised of all of the witnesses his trial counsel
intended to call in his defense, and he expressly acknowledged
that after consulting with trial counsel, there were no other
witnesses he wanted to testify on his behalf. As Brown voluntarily
agreed that he did not want to call any other witnesses, he cannot
now complain about trial counsel’s failure to call Akines-Harris to
testify.
Brown, supra, 196 A.3d at 174.
In the case sub judice, similar to as occurred in Brown, Appellant
participated in a colloquy at trial in which he specifically confirmed there were
no other witnesses he wanted his trial attorneys to call, and the defense
presented the case, which Appellant wanted them to present. N.T., 5/18/18,
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at 152. Since Appellant voluntarily agreed he was satisfied with the case
presented by his attorneys, and there were no other witnesses he wanted his
attorneys to call, he cannot now complain about his attorneys’ failure to
investigate further and call Tilley or Lloyd to testify. Thus, Appellant is not
entitled to relief on this claim. See Brown, supra. See also
Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.Super. 2000) (in
rejecting claim trial counsel was ineffective in failing to investigate and call
additional witnesses at trial, the court held the appellant voluntarily waived
his right to call witnesses at trial during a colloquy, so he could not later claim
ineffective assistance or purport he was coerced by counsel).
In his next issue, Appellant claims trial counsel was ineffective in failing
to file a motion seeking to suppress or otherwise exclude Renfro’s and Rice’s
prior statements, as well as their testimony. Appellant avers the “testimony
and statements of Renfro and Rice were tainted by police misconduct including
promises of immunity from prosecution if they were willing to shift the blame
to Appellant.” Appellant’s Brief at 24. Intertwined within this argument,
Appellant claims trial counsel was ineffective in failing to ensure the jury was
aware that detectives allegedly coerced Renfro’s and Rice’s statements, which
implicated Appellant.
In concluding Appellant is not entitled to relief, the PCRA court relevantly
indicated the following:
[Appellant] alleges that trial counsel was ineffective for
failing to insist that the jury be informed that Renfro’s and Rice’s
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testimony [and statements] were corrupted by police promises.
This claim [is meritless] as the jury was informed of the police’s
alleged promises to Renfro and Rice on cross-examination. Trial
counsel conducted an extensive cross-examination of Renfro
wherein he questioned Renfro about his statement to the police
following the shooting and the circumstances surrounding his
statements. Trial counsel questioned Renfro about his prior
testimony at the preliminary hearing when he stated that police
told him he would not be charged if he cooperated. At trial, Rice
claimed that he did not remember his statement to the police
despite being shown his signed statement and a videotape of the
interview. Detective Timothy Scally was called to testify regarding
Rice’s statement, and he testified that no promises or threats were
made to Rice to coerce his statement. The [trial] court also
provided a jury instruction regarding witness credibility informing
the jurors that they “may consider whether the witness had any
potential bias or interest and whether the witness testified for the
prosecution to gain favorable treatment in his own case.” N.T.,
5/16/18, at 37-40, 50-51, 152-53; N.T., 5/17/18, at 85; N.T.,
5/21/18, at 15.
In his [next] claim, [Appellant] assert[s] that trial counsel
was ineffective for failing to file a motion to suppress or exclude
the statements of Renfro and Rice based on the alleged police
coercion….The statements [of Renfro and Rice] were properly
admitted at trial as a prior consistent statement for Renfro and a
prior inconsistent statement for Rice, who claimed that he did not
remember ever giving a statement to the police. Trial counsel
cannot be found to be ineffective for failing to raise a baseless or
frivolous claim. Since a motion to suppress or exclude would have
been frivolous, trial counsel is not ineffective for failing to file it.
[Appellant’s] ineffectiveness claim lacks arguable merit.
Even if this claim had arguable merit, it would still fail as
[Appellant] has not demonstrated that there is a reasonable
probability that the result of the proceedings would have been
different if Renfro’s and Rice’s statements [and testimony] were
suppressed or excluded….[Appellant] was…identified as the
shooter by Gorczynski and Jonathon Jones (“Jones”) at trial.
PCRA Court Opinion, filed 11/14/22, at 24-25.
We agree with the PCRA court’s sound reasoning. Regarding Appellant’s
claim trial counsel was ineffective in failing to ensure the jury was aware of
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alleged police coercion as it relates to Renfro and Rice, the record is clear the
jury heard the circumstances surrounding Renfro’s and Rice’s statements.
Simply put, trial counsel extensively cross-examined Renfro and Rice about
their police statements,5 thus there is no merit to the underlying
ineffectiveness claim. See Johnson, supra (holding trial counsel cannot be
ineffective if underlying claim is meritless).
Moreover, as it relates to Appellant’s claim trial counsel was ineffective
in seeking to suppress or exclude the statements and testimony of Renfro and
Rice based on alleged police coercion, we agree with the PCRA court there is
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5 At trial, Renfro testified on direct examination by the Commonwealth that
Appellant was the shooter. On cross-examination, trial counsel asked Renfro
whether the police told him that if he cooperated with the Commonwealth he
would not be charged, and Renfro answered, “I don’t recall.” N.T., 5/16/18,
at 37. Accordingly, trial counsel confronted Renfro with his preliminary
hearing testimony in which Renfro testified the police told him that, if he
cooperated, he would not be charged. Id. at 38-39. Renfro acknowledged he
testified in such a manner at the preliminary hearing. Id. at 39-40. Renfro
also admitted during cross-examination that he cooperated with the police
because he didn’t want to be charged with a murder. Id.
At trial, Rice testified on direct examination by the Commonwealth that
he remembered hearing gunshots at the time in question, but he didn’t
remember anything else about the shooting. Id. at 137. He testified on direct
that he did not remember talking to homicide detectives or making a
statement, let alone a statement that incriminated Appellant. Id. at 138-39.
When the Commonwealth confronted him with his police statement, which was
inconsistent with his trial testimony, Rice testified he did not remember
making the statement. Id. at 138-60. On cross-examination, trial counsel
asked Rice about the shooting, and Rice indicated he had no memory of where
Appellant was located during the shooting. Id. at 201. The Commonwealth
then presented the testimony of Detective Scally, who testified he did not
promise Rice anything or threaten him to give a statement. N.T., 5/17/18, at
85.
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no merit to the underlying claim. Simply put, Appellant did not meet his
burden of demonstrating Renfro and Rice were “coerced” by the police, and
there was no basis for trial counsel to seek exclusion of their statements or
testimony on this basis. See id.
Additionally, we agree with the trial court that, assuming, arguendo,
there is arguable merit to Appellant’s claim, he failed to demonstrate
prejudice. Given the overwhelming evidence of Appellant’s guilt, including the
eyewitness testimony of Gorczynski and Jones, who identified Appellant as the
shooter, Appellant has not demonstrated that “but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Spotz,
supra, 84 A.3d at 311-12 (citations, quotation marks, and quotations
omitted).
In his next issue, Appellant contends trial counsel was ineffective in
failing to object to statements made by the prosecutor during closing
argument. Appellant avers the prosecutor improperly made false statements
to explain why there was no physical evidence implicating Appellant in the
murder. He concludes these false statements were highly prejudicial.
We analyze Appellant’s underlying claim with the following relevant legal
precepts in mind:
In accord with the long-standing principle that a “prosecutor
must be free to present his or her arguments with logical force
and vigor,” this Court has permitted prosecutorial advocacy “as
long as there is a reasonable basis in the record for the
[prosecutor’s] comments.” Commonwealth v. Robinson, 581
Pa. 154, 864 A.2d 460, 516–17 (2004). Prosecutorial comments
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based on the evidence or reasonable inferences therefrom are not
objectionable, nor are comments that merely constitute oratorical
flair. Furthermore, the prosecution must be permitted to respond
to defense counsel’s arguments. Id. Any challenged prosecutorial
comment must not be viewed in isolation, but rather must be
considered in the context in which it was offered. Robinson,
supra, 864 A.2d at 517.
It is improper for a prosecutor to offer his or her personal
opinion as to the guilt of the accused or the credibility of any
testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d
102, 112 (2004). However, it is well within the bounds of proper
advocacy for the prosecutor to summarize the facts of the case
and then ask the jury to find the accused guilty based on those
facts. See id.The standard by which the court considers allegations of
improper prosecutorial comments is a stringent one:
Comments by a prosecutor constitute reversible error
only where their unavoidable effect is to prejudice the
jury, forming in their minds a fixed bias and hostility
toward the defendant such that they could not weigh
the evidence objectively and render a fair verdict.
Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1146-47 (2011)
(citations omitted) (emphasis in original).
In the case sub judice, Appellant avers the prosecutor misrepresented
the evidence when “she stated that Appellant obtained a gun from his blue
Acura, which was parked in the club’s parking lot.” Appellant’s Brief at 28.
Appellant also avers the prosecutor misrepresented the evidence when she
“told the jury that Appellant threw the gun into the river.”6 Id.____________________________________________
6 We note with disapproval that Appellant has not set forth the place in the
certified record where the prosecutor made the statements, which he is now
challenging. However, the PCRA court has set forth specific page numbers in
its opinion, and, thus, we shall refer to the relevant passages appearing at
those cited page numbers in our analysis.
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Regarding the first challenged statement, in context, the prosecutor
indicated the following:
The Defendant—the video stops at 11:32. That’s as much
video as we had from the organization, the club, 11:32.
If I do my math right…that should be 13 minutes away from
11:45. But if I messed it up, you all can do the math.
So, the Defendant had 13 minutes to go from the club to his
car to get the gun. And that’s where the gun was, he wasn’t
partying with the gun on his waist. The gun was in the car. He
went to the car, and he got that gun because his car, that little
blue Acura, was parked in the lot. That same lot that he went to,
to try to run back to, to get away from.
N.T., 5/18/18, at 240-41.
Regarding the second challenged statement, in context, the prosecutor
indicated the following:
Let’s deal with—let’s deal with the chase for a minute before
we go to identification.
Zack [Gorczynski] said he chased the Defendant down
Callowhill, across Delaware, Columbus Avenue and saw him toss
a gun.
Now, the cops said, “We looked for the gun, but we couldn’t
find it. If it was a little to the left, we could have missed it. A
little to the right, we could have missed it. We got on our hands
and our knees, on August 8th, and we tried to find it, but we
couldn’t find it.”
We know he had a gun because he is the only person ever,
ever, ever, ever, ever that any of the witnesses said that they saw
shooting.
We know Officer Frasier searched that area thoroughly for a
gun; up the street, under cars, around and so on and so forth.
And we also know that the river is right there. Right there
(indicating).
And the testimony of Gorczynski was that the Defendant
threw that gun away even before he got to [Lieutenant]
Dandridge, before he got to Dandridge.
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Id. at 226-27.
In analyzing these passages, and concluding Appellant was not entitled
to relief on his ineffectiveness claim, the PCRA court indicated the following:
[Appellant] has failed to show that trial counsel was
ineffective because the statements made by the prosecutor were
not improper and did not violate any constitutionally or statutorily
protected right. The comments made by the prosecutor during
closing argument were supported by or were fair inferences from
the evidence presented at trial. The prosecutor’s remarks were
also fair responses to comments made by trial counsel during
closing argument.
The prosecutor’s comment about [Appellant] retrieving a
gun from his car before the shooting was proper as it is based
upon a reasonable inference from the evidence presented at trial.
The prosecutor’s comment is based on the amount of time
between when [Appellant] left the club and when the shooting
occurred. Surveillance video from the River Deck club showed
[Appellant] leaving the club at approximately 11:32 p.m. A police
radio call reported gunshots fired at about 11:45 p.m. Renfro also
provided testimony that [Appellant] did not have a gun at the club
prior to the shooting, and Renfro did not know where [Appellant]
was between leaving the club and the shooting. The prosecutor’s
comment was a fair inference from the evidence presented that
[Appellant] retrieved a gun from his car before the shooting. N.T.,
5/15/18, at 196-98; N.T., 5/16/18, at 7-8, 101, 104-05; N.T.,
5/18/18, at 241.
***
The prosecutor’s references to [Appellant] throwing a gun
into the river were permissible because they were based on
evidence introduced at trial. Although the Philadelphia Police
Marine Unit conducted a search of the river and failed to find a
gun, the prosecutor’s references were supported by Gorczynski’s
testimony. At trial, Gorczynski stated that he saw [Appellant]
throw a gun into the river as he was chasing him. The prosecutor’s
references were also a fair response to trial counsel’s closing
argument in which he stated that Gorczynski’s testimony that he
saw [Appellant] throw the gun in the river should not be credited.
N.T., 5/14/18, at 129, 185; N.T., 5/18/18, at 187-88, 226-27.
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***
[Appellant] has also failed to establish that the prosecutor’s
comments prejudiced him. None of the prosecutor’s statements
during closing argument violated any of [Appellant’s]
constitutional or statutory rights. The prosecutor’s statements
were not so prejudicial that they caused the jury to form a bias or
hostility toward [Appellant] that would make them incapable of
weighing the evidence and rendering a verdict in a fair manner.
Additionally, the [trial] court instructed the jury repeatedly that
the questions and arguments of counsel are not to be considered
evidence. Jurors are presumed to follow the court’s instructions.
See Commonwealth v. Aikens, 641 Pa. 351, 168 A.3d 137, 143
(2017); N.T., 5/14/18, at 26, 30-31; N.T., 5/18/18, at 167. As
the prosecutor’s comments were not improper and did not
prejudice [Appellant], trial counsel was not ineffective for failing
to object.
PCRA Court Opinion, 11/14/22, at 22-24 (citation omitted).
We agree with the PCRA court’s sound reasoning. Simply put, the
prosecutor’s statements were based on fair and reasonable inferences arising
from the testimony and evidence presented during trial, as well as a fair
response to the defense’s closing argument.7 See Chmiel, supra.Accordingly, there was no basis for trial counsel to object. Id. Moreover, as
the PCRA court indicated, the trial court’s jury instruction, which indicated the
____________________________________________
7 For example, during closing argument, defense counsel suggested Appellant
did not have a gun during the time of the shooting since the River Deck club
pats people down for weapons before they enter the club, and Appellant had
just exited the club before the shooting occurred. N.T., 5/18/18, at 183. Also,
during closing argument, defense counsel pointed to Gorczynski’s testimony
that Appellant dropped the gun in the water by the parking lot, and defense
counsel indicated, “We know that ain’t so.” Id. at 187. The prosecutor was
permitted to make arguments during closing, which were a fair response to
the defense arguments and supported by the record. See Chmiel, supra.- 21 -
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attorneys’ arguments are not evidence, cured any potential prejudice. See
Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 244 (2003) (holding
a trial court’s instruction that a prosecutor’s comments do not constitute
evidence removed any prejudice, as the jury is presumed to follow the court’s
instructions; counsel was not ineffective for failing to object). Thus, Appellant
is not entitled to relief on his ineffective assistance of counsel claim. See Ali,
supra.In his final issue, Appellant claims he has “new evidence” that the
prosecutor permitted false testimony against Appellant at trial. Specifically,
he contends he has discovered “Detective Pitts has been charged with two
counts of felony perjury.”8 Appellant’s Brief at 30. He reasons that Pitts’
misconduct in an unrelated case is evidence that Pitts must have “engaged in
objective police misconduct designed to corrupt [Appellant’s] trial by offering
immunity to a person in exchange for testimony shifting the blame to another
person.” Id.Initially, we note that a claim of after-discovered evidence is cognizable
under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi).
To obtain relief based upon newly-discovered evidence under the
PCRA, [the petitioner] must establish that: (1) the evidence has
been discovered after trial and it could not have been obtained at
or prior to trial through reasonable diligence; (2) the evidence is
____________________________________________
8 Appellant does not explain when he learned of the charges against Detective
Pitts in the unrelated case. However, the PCRA court notes Detective Pitts
was charged on March 3, 2022, which was during the pendency of Appellant’s
instant PCRA petition.
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not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.
Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595–96
(2007).
The standard on PCRA review is whether “the new evidence ‘would have
changed the outcome of the trial if it had been introduced.’” Commonwealth
v. Soto, 983 A.2d 212, 216 (Pa.Super. 2009) (quoting 42 Pa.C.S.A. §
9543(a)(2)(vi)). Where, as here, the claim is based on the improprieties of an
investigating police officer, the petitioner must demonstrate a nexus between
the improprieties and the petitioner’s claim for relief. See Commonwealth
v. Foreman, 55 A.3d 532 (Pa.Super. 2012).
In rejecting Appellant’s claim of after-discovered evidence, the PCRA
court relevantly indicated the following:
[Appellant] raised [an] issue alleging misconduct by
Detective James Pitts, who conducted Renfro’s police
interview….This claim amounts to an after-discovered evidence
claim.
***
On March 3, 2022, Detective Pitts was charged with two
counts of felony perjury. Detective Pitts is alleged to have
physically assaulted a defendant in another case to obtain a
confession and later lied about the interaction during his
testimony at [the defendant’s] trial. Although Detective Pitts
conducted Renfro’s interview, [Appellant] has not presented any
factual averments which show any misconduct by Detective Pitts
in this case. [Appellant] has not alleged with any specificity any
actions taken by Detective Pitts which would amount to
misconduct. Renfro’s interview was recorded, and the video does
not show any inappropriate conduct by the police throughout the
interview. Renfro’s testimony at trial was consistent with his
statement to the police, and Renfro has never alleged that there
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was any misconduct by any of the detectives involved in his
interview.
[Appellant] is not entitled to relief based on Detective Pitts’
alleged misconduct in an unrelated case. At most, [Appellant’s]
claim of misconduct by Detective Pitts could only be used to
impeach the credibility of Renfro. See Commonwealth v.
Johnson, 179 A.3d 1105, 1123 (Pa.Super. 2018) (filing of
criminal charges against detectives in an unrelated matter does
not meet the after-discovered evidence test since such evidence
would be used solely to impeach).
Even without Renfro’s testimony, a different verdict is not
likely if a new trial were granted in this case. As [Appellant] has
failed to establish that the evidence would not be solely used to
impeach the credibility of a witness, and that there is no
reasonable probability that the introduction of the evidence would
result in a different verdict, [Appellant’s] after-discovered
evidence claim concerning Detective Pitts fails.
PCRA Court Opinion, filed 11/14/22, at 25-27.
We agree with the PCRA court’s sound reasoning. Absent proof that
Detective Pitts committed misconduct in Appellant’s case, the evidence of his
misconduct in an unrelated case could only be used for impeachment purposes
if Appellant were granted a new trial. Washington, supra. Also, given
overwhelming evidence of Appellant’s guilt, including the eyewitness
identification testimony of Gorczynski and Jones, Appellant has failed to
demonstrate this “new evidence” would likely compel a different verdict. Id.Thus, Appellant cannot satisfy the after-discovered evidence test. See
Johnson, supra.
For all of the aforementioned reasons, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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