Com. v. Ogelsby, L. ( 2018 )

J. A16040/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAMAR P. OGELSBY, : No. 749 EDA 2017
:
Appellant :
Appeal from the PCRA Order, February 10, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005339-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 10, 2018
Lamar P. Ogelsby appeals from the February 10, 2017 order denying his
petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A prior panel of this court summarized the lengthy factual history of this
case as follows:
On December 24, 2006, at approximately 3:00 a.m.,
Officer Tyrone Harding of the Police Department of the
University of Pennsylvania was patrolling his district
when he heard gunshots, and then a woman
screaming. He drove toward the sounds and found
the woman on the 3900 block of Market Street. The
woman, Tamia Hill, was standing next to a prone and
unresponsive male named Robert Rose
[(“the victim”)], who was bleeding profusely from a
wound in his chest. [The victim] was lying in the bike
lane on the south side of Market Street. [The victim]
subsequently died from his wounds. Philadelphia
Police Officer Kenneth Bolton was called to secure the
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scene, where he found several shell casings in .45 and
9mm calibers. The casings were on the surface of
Market Street. A total of eight .45 ACP fired cartridge
casings were found at the scene of the shooting, along
with thirteen 9mm Luger fired cartridge casings.
Khalif Hill lived at 3962 Market Street and knew
[the victim] through his cousin, Tamia Hill. At the
time of the shooting, Tamia Hill lived at 3950 Market
Street, across the courtyard from Khalif Hill, and was
dating [the victim]. Khalif Hill knew [appellant] as
“Kool-Aid.” Immediately after the shooting, he came
out of his residence and saw Tamia Hill and his cousin
Troy Hill standing over [the victim]. He stayed
outside for a few minutes, but left when the police and
emergency vehicles began to arrive.
Approximately one week later, Khalif Hill was
questioned by members of the Homicide Division of
the Philadelphia Police Department. He did not give a
statement, but on September 30, 2010, almost
four years later, he was arrested in connection with
narcotics, and was again taken to the Homicide
Division, at which time he told the police that he had
seen the shooting, and that he had seen the two men
who shot [the victim] fleeing the scene. At that time,
he told police that two men he knew as Mike and
Kool-Aid shot [the victim], and that Mike held a black
gun and Kool-Aid held a machine-gun style weapon
with two hands. He identified Michael Gibbons and
[appellant] as the two shooters. He also said that
Troy Hill told him that Mike and Kool-Aid had killed
[the victim]. He said that Troy also told him that
[the victim] had bought a car from Kool-Aid but the
transmission failed, and that because Kool-Aid was
unwilling to give [the victim] his money back, he shot
him instead. At trial, Khalif said that he had not
actually witnessed the shooting or heard the shots and
he did not see Mike and Kool-Aid leave the scene, but
that otherwise his statement was truthful. He also
said that he did not want to testify, and that he was
nervous to do so because it could be dangerous.
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Khalif Hill was held as a material witness in this case,
due to the fact that he had tried to avoid giving
testimony at the preliminary hearing and had actively
evaded Commonwealth attempts to secure his
testimony during the weeks prior to trial. He testified
that [appellant’s] uncle and another man broke into
his house with a gun in the months before trial, robbed
him, and asked him why he took the stand. He also
testified that Michael Gibbons had encountered him a
week before trial in the basement of the Criminal
Justice Center and had asked him to change his
testimony.
Tamia Hill was dating [the victim] at the time of his
death, and she was with him the day that he saw a
Pontiac Bonneville for sale and asked [appellant]
about the car. [The victim] decided to buy it, so they
retrieved $3,500.00 in order to purchase it. Later,
when she went with [the victim] to transfer the title,
she saw [appellant’s] name on the old title. They
transferred the title into her name.
On the morning of December 23, 2006, Tamia Hill and
[the victim] had discussed the car and the issues that
they were having with its performance. Later that
evening, she heard [the victim] preparing to leave the
house, and [the victim] asked her brother, Troy Hill,
to walk out with him because the car was acting up.
Shortly thereafter, she heard gunshots and went
outside to find [the victim] lying in the street.
After the shooting, Tamia Hill accompanied detectives
to the Homicide Division, where she gave a statement.
She gave a second statement on February 25, 2007,
in which she first mentioned the trouble with the
Bonneville. She had never seen the car again after
the shooting and she . . . reported it stolen.
Troy Hill, Tamia Hill’s brother, had sold drugs for
[appellant] in 2007 or 2008. He worked with a runner
named Nate, who was responsible for taking daily
proceeds to [appellant] or Michael Gibbons. He saw
[the victim] outside in the street on the night of the
shooting, calling [appellant’s] name and complaining
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loudly about the Bonneville. He then saw [the victim]
approach local drug dealers who were, at that time,
working with Nate; [the victim] smacked them
several times, reached into their pockets, and took
money from them.
Troy Hill knew that [the victim] was high on ecstasy
and tried to calm him down, but [the victim] would
not be deterred, and after robbing the drug dealers he
came back inside the Hill residence and then left again
in search of the Bonneville. Hill went with him, but as
soon as they went outside he saw [appellant] and
Gibbons running toward [the victim]. [Appellant] told
Gibbons “hit that nigga,” and both of them fired on
[the victim]. [The victim] tried to run, but collapsed
from his wounds . . . .
Troy Hill did not talk to authorities about what he had
seen, because he did not want to endanger his
mother, who lived in the housing development at the
scene of the shooting. In May of 2009, while he was
in federal custody pending trial in two robberies, he
spoke with federal prosecutors and an FBI agent.
During his proffer, he said he witnessed this murder.
At that time, his family had moved and would
presumably no longer be in danger were he to say
what he had seen. In August of 2009, Hill entered
into a plea agreement. He received a twenty-two year
sentence . . . .
***
Sean Harris lived at the housing development on the
3900 block of Market Street for several months during
2006 and knew [the victim] well enough to say hello
to him. He also recognized [appellant], [whom] he
knew as Kool-Aid. On the night of the shooting, he
was driving his intoxicated friend home in his friend’s
Dodge Caravan, and he parked it across Market Street
from the housing development. As he was opening
the door to get out of the Caravan, he heard gunshots.
He immediately got back in the Caravan. When he
looked out the window, he saw [appellant] shooting at
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least ten times at [the victim] with a large black gun,
held with both hands.
Harris called 911 immediately. However, because he
was scared, he stayed in the Caravan all night. It was
cold, and he turned the vehicle on in order to keep
warm. At a certain point, it ran out of gasoline, and
his friend went to get more. At approximately 7:00 in
the morning, he finally emerged from the vehicle.
On December 27, 2006, . . . Harris was approached
by an officer from the University of Pennsylvania’s
Police Department. The officer asked him if he was
okay, and he said that he was not, and that he had
not slept since he saw [the victim’s] murder. When
the officer entered Harris’ information, he told Harris
that there was an outstanding warrant for his arrest,
and took him into custody. He was taken to the
Homicide Division of the Philadelphia Police
Department and interviewed by detectives about the
murder.
Initially, Harris told the detectives what happened but
identified a different person as the shooter because he
was afraid of reprisal if he identified [appellant].
Later, he felt guilty about identifying the wrong
person, and in January of 2012, while he was in
custody on another matter, he was again taken to talk
to detectives about this murder. He explained to them
that he did not identify [appellant] in 2006 because
he was afraid for his own safety, but that in all other
respects, his prior statement was correct. He
confirmed that [appellant] is the man he saw shoot
[the victim]. The Commonwealth did not offer him
anything in consideration for his testimony, though he
did testify that he had hoped that the detectives he
spoke to would help him with his case.
Commonwealth v. Oglesby, 113 A.3d 358 (Pa.Super. 2014) (unpublished
memorandum at 1-3, quoting trial court opinion, 10/29/13 at 2-5, 6-7),
appeal denied, 117 A.3d 1281 (Pa. 2015).
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The PCRA court set forth the relevant procedural history of this case as
follows:
On June 18, 2013, after a jury trial, [appellant] was
convicted of First-Degree Murder and Conspiracy to
Commit Murder. This Court immediately imposed the
mandatory sentence of life imprisonment without
parole for First-Degree Murder, and a concurrent
sentence of twenty to forty years for Conspiracy, for
a total sentence of life imprisonment without parole.
On March 27, 2015, a jury convicted [appellant’s]
co-defendant Michael Gibbons of First-Degree Murder
and Conspiracy to Commit Murder.[Footnote 1]
[Footnote 1] See CP-51-CR-0007309-
2013. Gibbons was arrested three
months prior to [appellant’s] instant trial.
The Honorable Lilian Ransom imposed a
total sentence of life imprisonment
without parole.
[Appellant] appealed and on November 25, 2014, the
Superior Court affirmed the judgment of sentence.
[See Commonwealth v. Oglesby, 113 A.3d 358(Pa.Super. 2014), appeal denied, 117 A.3d 1281(Pa. 2015).] On July 8, 2015, our Supreme Court
denied Allowance of Appeal. [See id.]
On April 13, 2016, through retained private counsel,
[appellant] filed a timely [PCRA] petition. On June 9,
2016, the Commonwealth filed a response. On
October 24, 2016, upon leave from this Court,
[appellant] filed an Amended Petition. On
November 22 and November 23, 2016, this Court held
an evidentiary hearing. On January 13, 2017,
[appellant] filed a Memorandum of Law, and the
Commonwealth responded on January 26, 2017.
On February 10, 2017, after hearing argument, this
Court denied [PCRA] relief. On February 13, 2017,
[appellant] appealed and on March 6, 2017, he filed a
Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b).
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PCRA court opinion, 4/12/17 at 1-2. The PCRA court filed a comprehensive,
20-page Rule 1925(a) opinion on April 12, 2017.
Appellant raises the following multi-layered issues for our review:
I. Where police promised to not charge a
cooperating witness for a narcotics violation so
long as he gave a statement implicating
[a]ppellant in the murder at issue, did the
Commonwealth violate Brady v. Maryland[,
373 U.S. 83 (1963)] by failing disclose the
explicit non-prosecution deal?
II. Where a cooperating witness shot a defense
witness in the same courtyard as the murder in
this case and only six months later, did the
Commonwealth violate [Brady] by suppressing
the police investigative file regarding the
subsequent shooting?
III. Did the cumulative prejudice from both
Commonwealth Brady violations, which
suppressed favorable impeachment evidence
and allowed two cooperating witnesses and the
prosecutor to mislead the jury with impunity,
deprive [a]ppellant of a fair trial?
IV. Was prior counsel ineffective for not objecting
to cross-examination of [a]ppellant that
improperly painted him as a liar, and for not
raising this claim on direct appeal if the issue
was preserved?
V. Was prior counsel ineffective for not objecting
to the improper bolstering of two cooperating
witnesses, and for not raising these claims on
direct appeal if the issues were preserved?
VI. Where the prosecutor, in closing argument,
referred to existence of studies proving that a
Commonwealth witness was telling the truth,
which were not in evidence because he made
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them up, was prior counsel ineffective for not
objecting?
VII. Where the testimony of Waleed Caldwell, who
was related to two cooperating witnesses, would
have placed a firearm and the victim’s car in one
of those witness’ possession shortly after the
murder, and impeached important parts of that
witness’ testimony, was prior counsel ineffective
for not calling this known witness to testify?
VIII. Was prior counsel ineffective for not calling a
known fact and alibi witness, Samika Glenn,
when [a]ppellant had told police that he was
with her in the weeks after the [victim] was
killed and testified to the same, which prior
counsel knew would happen?
IX. Where prior counsel could not recall when he
discovered the undisclosed police investigative
file regarding a cooperating witness shooting a
defense witness, was he ineffective for not filing
a motion to remand if it was discovered while
direct appeal was pending?
X. Did the cumulative prejudice from each instance
of prior counsel’s ineffective assistance
establish prejudice?
Appellant’s brief at 5-6.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation
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omitted). In order to be eligible for PCRA relief, a defendant must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
Further, these issues must be neither previously litigated nor waived.
42 Pa.C.S.A. § 9543(a)(3).
A. Brady violation claims
Issues I-III
Appellant first argues that the Commonwealth deliberately concealed
evidence from him in violation of Brady. Specifically, appellant contends the
prosecution committed Brady violations by failing to disclose “significant
impeachment evidence,” namely that: (1) Commonwealth witness Khalif Hill
avoided narcotics charges in exchange for his testimony; and
(2) Commonwealth witness Troy Hill shot defense witness Khalil Gardner six
months after the instant homicide in the identical location. (Appellant’s brief
at 14-22.) Appellant further avers that the cumulative prejudice from the
Commonwealth’s Brady violations deprived him of a fair trial. (Id. at 22-27.)
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. Thus, “a Brady violation only exists when the evidence is material
to guilt or punishment, i.e., when there is a reasonable probability that, had
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the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa.
2008) (citation, internal quotation marks and footnote omitted); see also
Commonwealth v. Roane, 142 A.3d 79, 89 (Pa.Super. 2016) (stating, when
a Brady claim is advanced under the PCRA, an appellant can only obtain relief
by establishing that the alleged violation “so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” (citation and internal quotation marks omitted)).
In order to establish the existence of a Brady violation, a defendant
must demonstrate that: “(1) evidence was suppressed by the prosecution;
(2) the evidence, whether exculpatory or impeaching, was favorable to the
defendant; and (3) prejudice resulted.” Commonwealth v. Cousar, 154
A.3d 287, 301 (Pa. 2017) (citation omitted).
Prejudice is demonstrated where the evidence
suppressed is material to guilt or innocence. Further,
[f]avorable evidence is material, and constitutional
error results from its suppression by the government,
if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.
Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (citations and
internal quotation marks omitted).
Upon careful review, we agree with the PCRA court that appellant failed
to meet his burden of establishing that the Commonwealth’s suppression of
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the aforementioned evidence prejudiced him. As the PCRA court properly
concluded in its opinion:
[appellant] presents no evidence to establish that the
prosecutor knew of Khalif Hill’s agreement with police
at the time of the instant matter, he can only prove
that the prosecutor knew of the agreement at the time
of [appellant’s] co-defendant Michael Gibbons’ trial [in
2015]. Moreover, [appellant] cannot demonstrate
prejudice. At trial, Khalif Hill recanted his prior
statement to police that he observed the shooting,
and instead testified that he was asleep at the time of
the shooting. [(Notes of testimony, 6/11/13 at 112.)]
Evidence of a deal would only serve to impeach the
truthfulness of Khalif Hill’s police statement, and is
thus merely cumulative of his recantation on the
stand. The jury considered Khalif Hill’s recantation
and rejected it.
....
The Commonwealth clearly violated its duty under
Brady to disclose evidence that Troy Hill was involved
in an unrelated shooting. However, [appellant]
cannot demonstrate prejudice, as it is unlikely that
such information would sway the jury’s verdict.
[Appellant] presented Gardner himself as a witness,
and he testified that Troy Hill shot him in that very
same courtyard, and was reluctant to come forward
due to threats from the Hill family. [(Notes of
testimony, 6/13/13 at 187-197.)] Even if the jury
credited this testimony, the fact that Troy Hill shot
Gardner does not make it more probable that Troy Hill
shot the [victim]. Moreover, Sean Harris testified that
he knew both [appellant] and the [victim] and saw
[appellant] shoot at the [victim] at least ten times
with a large black gun. [(Notes of testimony, 6/10/13
at 192-200.)] Disclosure of an arrest or any other
evidence corroborating Gardner’s testimony would not
have altered the outcome.
....
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. . . . Here, the Commonwealth presented significant
evidence from independent witnesses to secure
[appellant’s] conviction.
PCRA court opinion, 4/12/17 at 15-17 (citation formatting corrected). We find
that the record supports the PCRA court’s conclusions.
Additionally, we reject appellant’s contention that the cumulative
prejudice resulting from the Commonwealth’s alleged Brady violations
deprived him of a fair trial. It is well settled that “where a claimant has failed
to prove prejudice as the result of any individual errors, he cannot prevail on
a cumulative effect claim unless he demonstrates how the particular
cumulation requires a different analysis.” Commonwealth v. Wright, 961
A.2d 119, 158 (Pa. 2008) (emphasis added).
Although cumulative prejudice from individual claims
may be properly assessed in the aggregate when the
individual claims have failed due to lack of prejudice,
nothing in our precedent relieves an appellant who
claims cumulative prejudice from setting forth a
specific, reasoned, and legally and factually supported
argument for the claim.
Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (citation
omitted), cert. denied, 566 U.S. 1035 (2012). Appellant has failed to do so
in this instance. See Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa.
2005) (stating, “[t]he cumulative impact of meritless Brady claims cannot be
grounds for relief.”). Accordingly, appellant’s Brady claims fail.
Appellant’s remaining claims allege the ineffective assistance of counsel.
Preliminarily, we note that appellant was represented during both his jury trial
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and on direct appeal by Dennis Cogan, Esq. (hereinafter, “trial counsel” or
“appellate counsel.”) For the ease of our discussion, these claims are
addressed in a slightly different order than presented in appellant’s brief.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove by a preponderance of the evidence that
counsel’s ineffectiveness “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). Specifically, a petitioner must establish the
following three factors: “first[,] the underlying claim has arguable merit;
second, that counsel had no reasonable basis for his action or inaction; and
third, that [a]ppellant was prejudiced.” Commonwealth v. Charleston, 94
A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014)
(citation omitted). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal
denied, 30 A.3d 487 (Pa. 2011).
B. Ineffective assistance of trial counsel claims
Issue IV
We begin by addressing appellant’s claim that trial counsel was
ineffective in failing to object after the Commonwealth cross-examined him
about his business practice of falsely characterizing the vehicles he sold as
“gifts” in order to avoid paying taxes. (Appellant’s brief at 29-36.) Appellant
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further avers, albeit parenthetically, that trial counsel should have objected
when the Commonwealth referred to this alleged falsehood in its summation.
(Id. at 30, referencing notes of testimony 6/14/13 at 178-179.) For the
following reasons, we disagree.
Generally, “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Pa.R.E. 404(b)(1).
Evidence of prior bad acts may be admissible, however, “when offered to
prove some other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of mistake or accident.”
Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 2012) (citations
omitted), appeal denied, 72 A.3d 603 (Pa. 2013). Prior bad acts evidence
“may also be admissible . . . in situations where the bad acts were part of a
chain or sequence of events that formed the history of the case and were part
of its natural development.” Commonwealth v. Melendez-Rodriguez, 856
A.2d 1278, 1283 (Pa.Super. 2004) (citation omitted). “In determining
whether evidence of other prior bad acts is admissible, the trial court is obliged
to balance the probative value of such evidence against its prejudicial impact.”
Ross, 57 A.3d at 98 (citation omitted).
Here, we find that there is no arguable merit to appellant’s
ineffectiveness claim. The record reveals that trial counsel did, in fact, object
to the Commonwealth’s cross-examination of appellant about his false
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characterization of vehicle sales as “gifts,” and the trial court subsequently
overruled trial counsel’s objection. (See notes of testimony, 6/13/13 at 275.)
Moreover, we find that trial counsel possessed a reasonable basis not
make repeated objections to this particular line of questioning, given that they
likely would have been overruled. The vehicle transaction in this case was
clearly relevant because it formed the motive for the murder and was part of
the sequence of events that formed the history of this case. See Ross, 57
A.3d at 98; Melendez-Rodriguez, 856 A.2d at 1283. Our supreme court has
long recognized that “[c]ross-examination may be employed to test a witness’
story, to impeach credibility, and to establish a witness’ motive for testifying.”
Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation omitted),
certiorari denied, 549 U.S. 848 (2006). Courts in this Commonwealth,
however, are “not required to sanitize the trial to eliminate all unpleasant facts
from the jury’s consideration where those facts are relevant to the issues at
hand . . . .” Commonwealth v. Antidormi, 84 A.3d 736, 752 (Pa.Super.
2014) (citation and internal quotation marks omitted), appeal denied, 95
A.3d 275 (Pa. 2014) (citation omitted). Based on the foregoing, trial counsel
cannot be found ineffective for failing to raise or pursue this meritless claim.
See Commonwealth v. Freeland, 106 A.3d 768, 778 (Pa.Super. 2014)
(stating, “it is axiomatic that [trial] counsel will not be considered ineffective
for failing to pursue meritless claims.” (citation omitted)).
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Issue V
Appellant next argues that trial counsel was ineffective in failing to
object to testimony elicited by the Commonwealth to bolster the credibility of
Commonwealth witnesses Troy Hill and Sean Harris. (Appellant’s brief at 37.)
Specifically, appellant takes issue with Hill’s testimony that various inmates
had attacked him in prison for cooperating with the Commonwealth in its case
against appellant; that he had received offers of money in exchange for not
testifying against appellant; and that individuals took photos of him when he
testified against appellant at the preliminary hearing. (Id.; see also notes of
testimony, 6/12/13 at 58-65.) Appellant also challenges testimony elicited by
the Commonwealth that Harris had requested a transfer from his prison cell
before testifying against appellant because he feared for his life. (Appellant’s
brief at 37; see also notes of testimony, 6/12/13 at 230-233.)
“Improper bolstering or vouching for a government witness occurs
where the prosecutor assures the jury that the witness is credible, and such
assurance is based on either the prosecutor’s personal knowledge or other
information not contained in the record.” Commonwealth v. Chmiel, 30
A.3d 1111, 1180 (Pa. 2011) (citation omitted).
The prosecution may not inject a highly prejudicial
personal opinion of [an] appellant’s credibility into
evidence, thereby clearly and improperly intruding
upon the jury’s exclusive function of evaluating the
credibility of witnesses. However, as long as a
prosecutor does not assert his personal opinions, he
or she may, within reasonable limits, comment on the
credibility of a Commonwealth witness. This is
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especially true when the credibility of the witness has
been previously attacked by the defense. This stems
from the general principle that the prosecutor is
permitted to respond to the arguments of the defense
and is free to present his or her case with logical force
and vigor.
Tedford, 960 A.2d at 31-32 (citations and internal quotation marks omitted).
Instantly, our review of the record reveals that the prosecutor did not
improperly vouch for the credibility of Hill or Harris, nor inject a personal
opinion on either witness’s particular credibility. Rather, as recognized by the
PCRA court, “the prosecutor elicited evidence from Hill and Harris to rebut
[appellant’s] attacks on Hill’s delay in identifying [appellant] as the shooter
and Harris’ deliberate misidentification of [appellant], respectively.” (PCRA
court opinion, 4/12/17 at 9 (citation to notes of testimony and footnote
omitted).) The record further reflects that during the examination of Hill and
Harris, trial counsel objected to the Commonwealth’s questioning on four
separate occasions, and the trial court twice instructed the jury that such
evidence was not being offered for the truth of the matter asserted, but to
assess the witness’ credibility. (See notes of testimony, 6/12/13 at 59-62.)
“A prosecutor is permitted fairly wide latitude in advocating for the
Commonwealth, including the right ... to respond to defense
arguments. . . .” Commonwealth v. Harris, 884 A.2d 920, 931 (Pa.Super.
2005), appeal denied, 928 A.2d 1289 (Pa. 2007). Accordingly, appellant’s
trial counsel was not ineffective for failing to object on the basis of this
meritless bolstering claim. See Freeland, 106 A.3d at 778.
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Issue VI
Appellant next argues that trial counsel was ineffective in failing to
object to various comments the prosecutor made during his closing argument.
Specifically, appellant takes issue with the fact that the prosecutor referenced
“studies” implying to the jury that Commonwealth witness Troy Hill was telling
the truth. (Appellant’s brief at 41.) The prosecutor made the following
comments during his summation:
Troy Hill, you know, the defense, I heard disparage
over and over and over again. And I’m not asking you
to like him. And, you know, he’s in jail for quite some
time, quite a substantial period of his life.
And they do studies on lifers in prison, and those are
the ones that have lightbulbs go off that say, you
know what. Those are the ones that change. Those
are the ones that say, I’m facing all these years in jail,
and, you know, I got nothing to show for it in my life
when I meet my maker.
Notes of testimony, 6/14/13 at 143. Appellant argues that the prosecutor’s
reference constituted prosecutorial misconduct and his trial counsel’s failure
to object on this basis entitles him to a new trial. (Appellant’s brief at 43-45.)
We disagree.
“Our standard of review for a claim of prosecutorial misconduct is limited
to whether the trial court abused its discretion.” Harris, 884 A.2d at 927(citations omitted). Not every unwise remark on a prosecutor’s part, however,
constitutes reversible error. Id. “Prosecutorial misconduct occurs when the
effect of the prosecutor’s comments would be to prejudice the trier of fact,
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forming in its mind fixed bias and hostility toward the defendant so that it
could not weigh the evidence objectively and render a true verdict.”
Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003), appeal
denied, 845 A.2d 816 (Pa. 2004).
Counsels’ remarks to the jury may contain fair
deductions and legitimate inferences from the
evidence presented during the testimony. The
prosecutor may always argue to the jury that the
evidence establishes the defendant’s guilt, although a
prosecutor may not offer his personal opinion as to
the guilt of the accused either in argument or in
testimony from the witness stand. Nor may he or she
express a personal belief and opinion as to the truth
or falsity of evidence of defendant’s guilt, including
the credibility of a witness.
Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal
denied, 788 A.2d 372 (Pa. 2001), cert. denied, 535 U.S. 1059 (2002).
Following our careful review, we conclude that the prosecutor’s
comments, when read as a whole, did not warrant that a new trial be granted.
“[A] prosecutor is permitted fairly wide latitude in advocating for the
Commonwealth, including the right to argue all fair conclusions from the
evidence, to respond to defense arguments, and to engage in a certain degree
of oratorical flair.” Harris, 884 A.2d at 931. All such comments must be
reviewed in the context in which they were made. Commonwealth v.
Robinson, 877 A.2d 433, 441 (Pa. 2005).
Here, we agree with the PCRA court that the prosecutor’s comments
were properly made in response to trial counsel’s argument that Troy Hill
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agreed to testify on behalf of the Commonwealth in exchange for a lenient jail
sentence. (See notes of testimony, 6/14/13 at 79-80.) The record further
reflects that the prosecutor’s comments were not the kind of comments that
would cause the jury to form a fixed bias or hostility towards appellant and
prevent it from properly weighing the evidence and rendering a fair and
impartial verdict. As noted, “a prosecutor is permitted fairly wide latitude in
advocating for the Commonwealth, including the right . . . to respond to
defense arguments. . . .” Harris, 884 A.2d at 931. Accordingly, appellant’s
trial counsel had no basis upon which to object, and appellant’s underlying
ineffectiveness claim must fail. See Freeland, 106 A.3d at 778 (stating, “it
is axiomatic that [trial] counsel will not be considered ineffective for failing to
pursue meritless claims.”).
Issues VII-VIII
We now turn to appellant’s claims that trial counsel was ineffective in
failing to call a number of witnesses at trial. (See appellant’s brief at 45-50.)
Generally, trial counsel has a duty “to undertake reasonable investigations or
make reasonable decisions that render particular investigations unnecessary.”
Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009). A claim that
counsel was ineffective for failing to investigate or call potential witnesses at
trial requires a petitioner to establish that:
(1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense;
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and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a
fair trial.
Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa.Super. 2013)
(en banc) (citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013).
“Counsel will not be found ineffective for failing to call a witness unless the
petitioner can show that the witness’s testimony would have been helpful to
the defense.” Id. at 811 (citation omitted).
Here, appellant first contends that counsel was ineffective in failing to
call Waleed Caldwell to testify on his behalf. (Appellant’s brief at 45.)
Appellant avers that Caldwell’s testimony would have refuted the testimony of
Commonwealth witness Troy Hill, Caldwell’s cousin, and he was prejudiced by
trial counsel’s failure to introduce his testimony at trial. (Id. at 46-47.) For
the following reasons, we disagree.
At the PCRA hearing, Caldwell indicated that, had he been afforded the
opportunity, he would have testified that he observed Hill driving the victim’s
vehicle two days after the shooting and that Hill had informed him that he
observed the victim get shot but did not identify the two shooters. (Notes of
testimony, 11/23/16 at 10-11.) Caldwell also testified that he observed Hill
with a semi-automatic pistol after the shooting. (Id.)
Counsel, in turn, testified at great length on his strategic decision to
forgo calling Caldwell as a witness, based upon his belief that Caldwell was
reluctant to testify and that his testimony would not be compelling. (Notes of
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testimony, 11/22/16 at 88.) Counsel indicated that Caldwell’s testimony
would have been cumulative because Khalif Hill had already testified on
cross-examination that Troy Hill had driven the victim’s vehicle after the
shooting. (Id. at 88-89.) Counsel further noted that he was concerned that
Caldwell would contradict the testimony of Khalif Hill and diminish the strength
of their theory that it was Troy Hill who shot the victim. (Id.)
“[G]enerally, where matters of strategy and tactics are concerned,
counsel’s assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to effectuate his
client’s interests.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa.
2012). “If counsel’s chosen course had some reasonable basis, the inquiry
ends and counsel’s assistance is deemed effective.” Commonwealth v.
Williams, 899 A.2d 1060, 1064 (Pa. 2006). Based on the foregoing, we find
that trial counsel had a reasonable strategic basis for electing not to call
Caldwell as a witness. Accordingly, appellant’s ineffectiveness claim must fail.
See Charleston, 94 A.3d at 1020.
Appellant also contends that counsel was ineffective in failing to call
Samika Glenn, appellant’s girlfriend and mother of his child, as an alibi
witness. (Appellant’s brief at 47.) Glenn testified at the November 22, 2016
PCRA hearing that appellant was at home with her on the evening of the
shooting and that she recalls his being there “[b]ecause he’s always home at
night” following the birth of their son. (Notes of testimony, 11/22/16 at 207.)
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Appellant avers that introducing Glenn’s testimony at trial would have
corroborated his own testimony and statements to the police that he was not
present at the scene of the shooting and that he was prejudiced by counsel’s
failure to do so. (Appellant’s brief at 48-49.) We disagree.
At the November 22, 2016 hearing, counsel testified at great length with
regard to his decision to forgo calling Glenn as an alibi witness, given his
concerns that the jury may not perceive her testimony as credible. (See notes
of testimony, 11/22/16 at 57-60.) The PCRA court, in turn, specifically found
Glenn’s testimony lacked credibility, noting that “she failed to demonstrate an
explicit recollection of the night of the murder; instead she based her
testimony on supposition.” (PCRA court opinion, 4/12/17 at 13.) It is well
established that the PCRA court’s credibility determinations are binding on the
reviewing court, where, as here, the record supports those determinations.
See Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006) (stating, “[w]e
will not disturb the findings of the PCRA court if they are supported by the
record, even where the record could support a contrary holding.”). Based on
the foregoing, appellant’s claim that counsel was ineffective in failing to call
Glenn as an alibi witness fails.
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C. Ineffective assistance of appellate counsel claims
Issues IV-V
We now turn to appellant’s claims that appellate counsel1 rendered
ineffective assistance of counsel. Appellant first contends that appellate
counsel was ineffective in failing to argue on direct appeal that the
Commonwealth: (a) improperly cross-examined appellant on his business
practices; and (b) improperly bolstered the testimony of Troy Hill and
Sean Harris. (See appellant’s brief at 36, 40-41.) We disagree. As discussed,
appellant has failed to adequately demonstrate that his underlying claims of
trial counsel’s purported ineffectiveness in this regard were of arguable merit,
and thus, it logically follows that counsel, on direct appeal, cannot be deemed
ineffective for failing to raise these meritless issues. See Commonwealth v.
Elliott, 80 A.3d 415, 427 (Pa. 2013) (stating, “[i]f the petitioner cannot prove
the underlying claim of trial counsel ineffectiveness, petitioner’s derivative
claim of appellate counsel ineffectiveness fails.” (citation omitted)),
cert. denied, U.S. , 135 S.Ct. 50 (2014).
In reaching this decision, we recognize that appellate counsel testified
at the PCRA hearing that, in his experience, it is not advisable to raise every
potentially meritorious issue on appeal and he made the strategic decision to
1As noted, appellant was represented during both his jury trial and on direct
appeal by Dennis Cogan, Esq.
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raise only those issues that gave appellant the best chance at prevailing. (See
notes of testimony, 11/22/16 at 136-138.)
Issue IX
Appellant also contends that if appellate counsel were aware that the
Commonwealth had violated Brady by failing to disclose during the pendency
of his direct appeal that Troy Hill had shot Khalil Gardner, he was ineffective
in failing to file a motion pursuant to Pa.R.Crim.P. 720(C)2 seeking a new trial
based on after-discovered evidence. (Appellant’s brief at 50-51.) For the
following reasons, this claim fails.
First, this claim is wholly speculative given that appellant is unable to
affirmatively demonstrate that appellate counsel became aware of this Brady
violation during the pendency of his direct appeal. Second, as discussed,
appellant has failed to demonstrate prejudice with respect to this Brady claim,
as the Commonwealth presented overwhelming evidence of appellant’s guilt.
“A petitioner establishes prejudice when he demonstrates that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Commonwealth v. Johnson,
966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks
omitted). Appellant has clearly failed to satisfy this burden in this instance,
2Rule 720(C) provides that “[a] post-sentence motion for a new trial on the
ground of after-discovered evidence must be filed in writing promptly after
such discovery.” Pa.R.Crim.P. 720(C).
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and thus, appellate counsel cannot be found ineffective for failing to pursue
this meritless claim. See Freeland, 106 A.3d at 778.
D. Cumulative prejudice
Issue X
Appellant’s final argument on appeal is that the cumulative prejudice
suffered from counsel’s purported ineffectiveness rendered his trial
unconstitutionally unfair. (See appellant’s brief at 52-53.) We disagree. Our
supreme court has recognized that “no number of failed [ineffectiveness]
claims may collectively warrant relief if they fail to do so individually.”
Johnson, 966 A.2d at 532 (citations omitted). However, when the failure of
individual claims is grounded in lack of prejudice, as are some of appellant’s
claims in the instant matter, then “[the] cumulative prejudice from individual
claims may be properly assessed in the aggregate” Hutchinson, 25 A.3d at
319 (Pa. 2011) (citation omitted). Here, we are satisfied there is no
cumulative prejudice warranting relief. Appellant’s ineffectiveness claims at
issue are, in large part, factually and legally independent, with no reasonable
connection warranting a conclusion that their cumulative effect amounts to
actual prejudice. Accordingly, appellant’s final claim fails.
For all the foregoing reasons, we affirm the February 10, 2017 order of
the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/18
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