Com. v. Ligon, T. , 206 A.3d 515 ( 2019 )

J-S70030-18
2019 PA Super 74COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRECE LIGON :
:
Appellant : No. 139 EDA 2018
Appeal from the PCRA Order December 8, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001138-2012
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
OPINION BY McLAUGHLIN, J.: FILED MARCH 11, 2019
Tyrece Ligon, appeals from the order entered in the Philadelphia County
Court of Common Pleas, which denied his first petition brought pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Ligon
claims trial counsel was ineffective for failing to object to the prosecutor’s
allegedly impermissible remarks made during closing arguments to the jury.
We affirm.
The PCRA court accurately set forth the facts of this case in its opinion
filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) and we do
not reiterate them in their entirety for purposes of this appeal. Instead, we
note the following factual background relevant to Ligon’s instant PCRA
petition, as gleaned from the PCRA court opinion. On January 18, 2011,
Howard Filmore (“the victim”) had an argument with his long-time girlfriend,
Linda Burrell and asked her to vacate their shared residence. In response,
J-S70030-18
Burrell sought the help of her two adult daughters, Latrice Burrell and Shamira
Stanfield, in confronting the victim. Ligon, the instant Appellant, is the
boyfriend of Latrice Burrell. Ligon drove both daughters to the scene and an
altercation ensued. Shamira struck the victim with an aluminum baseball bat
and Ligon shot the victim in the back as he attempted to flee.
Police Officer Charles Nelson transported the victim to the hospital
where he identified Ligon as the shooter and provided a written statement
regarding exactly what happened during the altercation. Further, after he was
released from the hospital and recovering at home, the victim was shown a
photographic array by police and he once again was able to identify Ligon as
the shooter. The victim also identified Ligon as the shooter during Ligon’s
preliminary hearing on January 26, 2012.
However, at trial, the victim claimed that he did not recall the incident
and declined to identify Ligon. He specifically asserted that he was not afraid
of Ligon, but had been smoking “angel dust” around the time of the alleged
shooting. Ligon’s defense emphasized the victim’s unhelpful testimony and
supposed drug use during closing arguments to a jury:
[Defense Counsel]: The first witness, [the victim], I think we can
all agree was a fairly horrible witness for everybody. It was a
painful experience for all of us to sit through.
But [the victim] did shed light on a couple of issues that I
want to bring to your attention. One, [the victim] is addicted to
PCP and in 2011 was smoking PCP daily, multiple ties a day. He
was likely high. He said that. That’s why he didn’t want to stay in
the hospital. That’s why he was ripping the tubes out of his arms.
He didn’t want people to know he was intoxicated.
-2-
J-S70030-18
N.T., 4/10/14 at 50.
The prosecutor responded during the Commonwealth’s closing:
[Prosecutor]: Did he get up on that stand [at trial] and lie?
Absolutely. His memory isn’t failed. He didn’t do every drug he
could think of under the sun as he was sitting on that stand. Give
me a break. No. But know why he said that. Know why.
It’s a whole different circumstance when you’re sitting in
Temple Hospital and you’re talking to detectives without Ligon
around. It’s a different circumstance when you’re giving a photo
array and you’re asked to circle somebody and Ligon’s not there;
right? It’s whole different situation. But when you walk in this
courtroom, all bets are off. It’s a totally different story at that
point.
***
We ask you to come in this courtroom, sit on that stand face
to face with the defendant. We ask you to say your name. We ask
you to spell it so everyone knows exactly who you are. That’s what
our system requires. We ask them to sit up here in front of
someone they know is a cold-blooded killer, who tried to kill them.
So I call them witnesses. That’s what they’re called. But
when they come to this courtroom and they leave, they’re called
something else in the neighborhood. They’re not called witnesses.
They’re not called victims. They’re called rats and they’re called
snitches, and that’s not okay. I understand it, but it’s not ok.
Id. at 80-82.
Ligon’s trial counsel did not object to the prosecutor’s closing argument.
Ultimately, the jury convicted Ligon of aggravated assault, possession of an
instrument of crime, carrying a firearm without a license, carrying a firearm
on a public street in Philadelphia, and criminal conspiracy, and the trial court
-3-
J-S70030-18
convicted him of one count of persons not to possess a firearm.1 Particularly
significant here, we note that the jury found Ligon not guilty of attempted
first-degree murder.2 On July 18, 2014, the trial court sentenced Ligon to an
aggregate term of 15 to 30 years’ imprisonment. This Court affirmed his
judgment of sentence on July 12, 2016, Commonwealth v. Ligon, 154 A.3d
851 (Pa.Super. 2016), and Ligon did not seek review with the Pennsylvania
Supreme Court.
On August 25, 2016, Ligon filed a timely pro se PCRA petition. Appointed
counsel filed an amended petition on April 17, 2017. Following a hearing on
November 3, 2017, the PCRA court issued notice of intent to dismiss Ligon’s
petition pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed Ligon’s
petition on December 8, 2017. The instant timely appeal followed and Ligon
filed a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal.
Ligon raises the following single issue for review:
1. Did the PCRA court commit legal error by not finding that
the prosecution’s characterization of [Ligon] as a ‘cold
blooded killer’ was prejudicial and warrant[ed] a new trial,
if trial counsel had objected and made a motion?
Ligon’s Br. at 1.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 907(a), 6106(a), 6108, 903(c), and 6105(a)(1),
respectively.
2 18 Pa.C.S.A. §§ 901(a), 2502(a).
-4-
J-S70030-18
the evidence of record and whether it is free of legal error.” Commonwealth
v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
Ligon’s sole issue on appeal concerns his trial counsel’s alleged
ineffectiveness. A PCRA petitioner will only prevail on a claim that trial counsel
was ineffective through pleading and proving each 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 if not for counsel’s error.” Commonwealth
v. Grove, 170 A.3d 1127, 1138 (Pa.Super. 2017) (quoting Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017)). A failure to plead or
prove any prong will defeat an ineffectiveness claim. Id. Further:
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 ineffective 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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii)) (internal quotation marks and brackets omitted).
"[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant." Ousley, 21 A.3d at 1244. Additionally,
counsel is not ineffective for failing to raise a claim that is devoid of merit.
Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
-5-
J-S70030-18
Germane to this appeal are the elements required to support a
conviction for attempted murder:
[u]nder the Crimes Code, “[a] person commits an attempt when
with intent to commit a specific crime, he does any act which
constitutes a substantial step towards the commission of the
crime.” 18 Pa.C.S.A. § 901(a). A person may be convicted of
attempted murder if he takes a substantial step toward the
commission of a killing, with the specific intent in mind to commit
such an act. See 18 [Pa.C.S.A.] §§ 901, 2502. The substantial
step test broadens the scope of attempt liability by concentrating
on the acts the defendant has done and does not any longer focus
on the acts remaining to be done before the actual commission of
the crime. The mens rea required for first-degree murder, specific
intent to kill, may be established solely from circumstantial
evidence. [T]he law permits the fact finder to infer that one
intends the natural and probable consequences of his acts.
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008) (most
internal citations and quotation marks omitted).
In this case, Ligon claims that his trial counsel was ineffective for failing
to object to the prosecutor’s characterization of him as a “cold-blooded killer”
during the Commonwealth’s closing arguments. Ligon argues that this
characterization was tantamount to prosecutorial misconduct. He specifically
points to Commonwealth v. Capalla, 185 A. 203 (Pa. 1936), as the seminal
case establishing that the verbiage “cold-blooded killer” should be considered
per se prejudicial and thereby entitles defendants to a new trial. In light of the
specific factual circumstances at issue in this case and the recent precedent
issued by our Supreme Court in Commonwealth v. Clancy, 192 A.3d 44 (Pa.
2018), we cannot agree.
-6-
J-S70030-18
It is axiomatic that during closing arguments the prosecution “is limited
to making comments based upon the evidence and fair deductions and
inferences therefrom.” Commonwealth v. Joyner, 365 A.2d 1233, 1236 (Pa.
1976). Indeed, given the critical role that the Commonwealth plays in the
administration of justice, a prosecutor has been historically prohibited from
expressing “a personal belief regarding a defendant’s guilt or innocence or the
veracity of the defendant or the credibility of his witnesses.” Commonwealth
v. Novasak, 606 A.2d 477, 481 (Pa.Super. 1992).
However, because trials are necessarily adversarial proceedings,
prosecutors are entitled to present their arguments with reasonable latitude.
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002). Moreover, it is
well settled that defendants are entitled to a fair trial, not a perfect one.
Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation
omitted). “Thus, a prosecutor’s remarks do not constitute reversible error
unless their unavoidable effect . . . [was] to prejudice the jury, forming in
their minds fixed bias and hostility toward the defendant so that they could
not weigh the evidence objectively and render a true verdict.” Id. (quoting
Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009)).
Ligon specifically relies on the often cited Capalla for the proposition
that a prosecutor’s reference to a defendant as “a cold blooded killer”
constitutes per se reversible error. Indeed, in that case, our Supreme Court
admonished that no defendant should be characterized by the prosecutor as
a “cold blooded killer” until convicted of murder. Capalla, 185 A. at 205. The
-7-
J-S70030-18
Court reasoned that such a reference would be “equivalent to an expression
of belief on the part of the district attorney that the defendant was guilty of
murder in the first degree.” Id. at 206.
However, Ligon does not discuss subsequent case law that departed
from the rigid standard set forth in Capalla. For example, in Commonwealth
v. D’Amato, 526 A.2d 300, 313 (Pa. 1987), our Supreme Court concluded
that a prosecutor’s closing argument, which characterized the defendant as a
“clever, calculating, and cunning executioner,” did not require reversal. There,
the Court emphasized that the prosecutor’s remarks were made in fair
response to the defense’s characterization of the defendant as an uneducated
man tricked into a confession. Likewise, in Commonwealth v. Chamberlain,
30 A.3d 381, 408 (Pa. 2011), our Supreme Court emphasized that a
prosecutor’s statements must be viewed in light of the evidence presented in
the case. In Chamberlain, the Court held that the prosecutor’s description of
the defendant as a “murderer” did not require reversal where inferences from
the evidence in the case could lead to the conclusion that the defendant had
murdered the victim. Id.Most significantly, while the instant case was pending on appeal, the
Pennsylvania Supreme Court issued Clancy, which synthesized the case law
concerning this issue. There, the prosecutor also referred to the defendant as
a “cold blooded killer” during closing arguments. The defendant also sought
reversal of his conviction under the PCRA. After reviewing the applicable case
law, our Supreme Court specifically noted that “since D’Amato this Court has
-8-
J-S70030-18
tolerated harsh characterizations of the defendant when they are germane to
the law that applies to the case at hand and to a particular element of an
offense at issue.” Clancy, 192 A.3d at 61. The Court specifically endorsed a
two-part analysis, that Pennsylvania courts have consistently utilized, to
review a prosecutor’s remarks: 1) does the substance of the remarks relate
to the facts of the case, the elements of the crimes charged, and constitute a
fair and reasonable rebuttal to the defenses’ arguments and 2) do the remarks
have a prejudicial effect on the jury. Id. at 62.
In Clancy, the defendant was charged with first-degree murder but
argued that he had only discharged his gun accidentally. Id. at 65. Thus,
under the particular facts of that case, the Pennsylvania Supreme Court
concluded that the prosecutor’s characterization of the defendant as a “cold
blooded murderer” directly related to the premeditation element of the crime
charged, first-degree murder, and was thus a fair response to the defense
argument that the defendant shot the victim in the heat of passion. Id. at 66-
67. Therefore, the Court in Clancy held that the prosecution’s use of the term
“cold blooded killer” “constituted permissible (if aggressive) oratorical flair”
and thus concluded it was unnecessary to evaluate the second prong of
analysis, the remark’s effect on the jury. Id. at 67.
Likewise, in the instant case, the prosecutor’s characterization of Ligon
as a “cold blooded murderer” is tethered to the evidence adduced at trial, the
elements of the crime charged, and the arguments advanced by the defense.
The victim’s initial statement at the hospital, reiterated at Ligon’s preliminary
-9-
J-S70030-18
hearing, alleged that Ligon shot the victim in the back as he attempted to flee.
Thus, Ligon was charged with attempted first-degree murder, which requires
a mens rea of a specific intent to kill. Jackson, 955 A.2d at 444. Therefore,
as in Clancy, the term “cold blooded,” as utilized by the prosecutor during
closing arguments, directly related to Ligon’s alleged actions and the mens
rea required for the crime charged. See Clancy, 192 A.3d at 66-67. Further,
as noted above, Ligon’s defense centered around discrediting the victim as
unable to recall events at trial due to continual impairment caused by drug
use. The prosecutor’s use of the term “cold blooded killer” to describe Ligon
was a fair response to explain why the victim, who had previously identified
Ligon as the shooter repeatedly, felt too intimidated to be forthcoming at trial
in the presence of Ligon. See id.
In light of the forgoing, we conclude that the prosecutor’s use of the
term “cold blooded killer” in this case constituted an isolated use of oratorical
flair that does not require reversal in the particular factual context presented
here. See id.; Paddy, 800 A.2d at 316; Ragland, 991 A.2d at 340.
Therefore, it is unnecessary to proceed to an evaluation of the remark’s effect
on the jury. See Clancy, 192 A.3d at 67. We conclude that Ligon’s
ineffectiveness claim lacks merit because the prosecutor’s closing argument
was not impermissible and thus Ligon’s trial attorney cannot be deemed
ineffective for failing to object. See Ligons, 971 A.2d at 1146. Accordingly,
we affirm the PCRA court’s denial of Ligon’s ineffectiveness claim.
Order affirmed.
- 10 -
J-S70030-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/19
- 11 -