Com. v. Hamilton, D. ( 2022 )

J-A20015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAQUAN HAMILTON :
:
Appellant : No. 233 EDA 2022
Appeal from the PCRA Order Entered December 20, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001391-2014
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2022
Appellant, Daquan Hamilton, appeals from the post-conviction court’s
December 20, 2021 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal, Appellant
contends that his trial counsel was ineffective and, thus, the court erred by
denying his petition. After careful review, we affirm.
The facts of Appellant’s underlying convictions were previously
summarized by this Court, as follows:
On the evening of December 26, 2013, Appellant and Khaleef
Jones visited an apartment complex in Pottstown. Appellant told
Jones that he wanted to get his stuff out of one of the apartments.
Steven Burns was inside the apartment with George Hashimbey
and Angel Luna. When Appellant knocked on the door, Burns
opened the door but would not let Appellant inside. N.T., 6/17/15,
at 8-10, 90-96.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant and Jones left the apartment building, but they returned
shortly after midnight on the morning of December 27, 201[3].
Before entering the building, Appellant handed Jones a .380
caliber gun and armed himself with a silver revolver. Id. at 93-
94. Appellant and Jones returned to Burns’ apartment, and
Appellant told Jones to cover his face as they entered the elevator.
They knocked on the apartment door, and Burns partially opened
it. Appellant shoved his pistol into Burns’ abdomen and forced his
way inside. Id. at 10-11, 90-96. Burns and Appellant fought on
the floor inside the door. Appellant yelled, “Shoot the nigger.” As
they struggled, Appellant fired his silver pistol, killing Hashimbey.
Id. at 12-14, 98-99. Burns testified that he saw Appellant shoot
Hashimbey. Id. at 14-15. Jones fired one shot into Burns’ hip
and ran down the stairs. Jones testified that he heard two shots
after exiting the apartment. Id. at 99. Burns went into the
hallway to ask a neighbor for help, and he remained there until
police and paramedics arrived. Id. at 12-17, 98-99. The
Commonwealth’s ballistics expert testified that the bullet
recovered from Hashimbey’s body came from a .357 caliber gun,
a different caliber from the gun Jones was carrying. N.T.,
6/16/15, at 50.
Approximately ninety minutes after the shooting, Philadelphia
Police [Detective] William Lynch stopped Appellant’s car in a high
crime neighborhood in North Philadelphia. When [Detective]
Lynch ran the tags, he discovered a “try-and-locate” alert.
Appellant, who was a passenger in the car, ran when he saw the
police lights, but Jones stayed inside. Police arrested both men
and recovered a .380 caliber gun from Jones’ person during the
arrest. N.T., 6/16/15, at 122-23. The police impounded the car
and obtained a search warrant to search its passenger
compartment. During the search, they recovered two cell phones
and a fired .357 cartridge casing. N.T., 6/16/15, at 130-39.
Subsequently, a Montgomery County detective obtained another
search warrant to examine the contents of the cell phones.2
2 Appellant sought to suppress the contents of his cell phone
in pre-trial motions, which the trial court denied.
***
At the conclusion of trial, the Commonwealth introduced letters
that Appellant sent Jones while both men were incarcerated
following their arrest. The first letter suggested that both men
claim that Burns let them enter the apartment immediately before
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the shooting, and that Appellant “just came to get my clothes and
see my cousin.” N.T., 6/18/15, at 21. “Nobody was [supposed]
to get hurt,” Appellant continued, but Burns caused the shootings
by starting a fight with Appellant. Id. In a second letter,
Appellant stated that the Commonwealth was not offering him a
plea bargain and was threatening to charge him with second-
degree murder. Id. at 22-23. Appellant continued:
I’m sorry for getting you in this shit. My lawyer said if I get
on the stand, it would do more harm than good. Dam bro,
I fucked up, but we can’t cry over spilled milk … I need you
to get on the stand and blame everything on [Burns]. Keep
your head up. Fuck these crackers.
Id. at 23.
During closing argument, defense counsel did not deny that
Appellant was present in the apartment during the shootings.
Instead, counsel contended that any actions that Appellant took
were in self-defense. N.T., 6/18/15 at 74-93. The jury found
Appellant guilty of second-degree murder, burglary[,] and other
offenses.
Commonwealth v. Hamilton, No. 1477 EDA 2016, unpublished
memorandum at 1-4 (Pa. Super. filed Sept. 18, 2018).
On February 9, 2016, Appellant was sentenced to an aggregate term of
life imprisonment, without the possibility of parole. He filed a timely direct
appeal, and after this Court affirmed his judgment of sentence, our Supreme
Court denied his subsequent petition for permission to appeal. See
Commonwealth v. Hamilton, 198 A.3d 460 (Pa. Super. 2018), appeal
denied, 207 A.3d 906 (Pa. 2019).
Appellant thereafter filed the timely, pro se PCRA petition underlying the
present appeal, raising numerous claims of ineffective assistance of trial
counsel. PCRA counsel was appointed but filed a petition to withdraw.
Ultimately, the PCRA court issued an order denying relief on all of Appellant’s
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claims except for two. It scheduled an evidentiary hearing to address those
remaining issues and appointed new counsel to represent Appellant. Newly-
appointed counsel filed an amended petition on Appellant’s behalf raising
several more claims, including a challenge to the legality of Appellant’s
burglary sentence. An evidentiary hearing was conducted on August 10,
2021. After the hearing, the court denied all of Appellant’s issues except for
his legality of sentencing challenge.1
Appellant filed a timely notice of appeal, and he complied with the PCRA
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court thereafter filed its Rule 1925(a)
opinion. Herein, Appellant states three issues for our review:
I. Was trial counsel ineffective for failing to object to the try-and-
locate testimony of Detective Lynch because no evidence was
presented to show that the Commonwealth had a reasonable
suspicion to stop the vehicle?
II. Was trial counsel ineffective for not requesting the court to
charge on simple assault because simple assault was the crime
that the court instructed the jury that … [A]ppellant intended to
commit while instructing the jury on the charge of burglary?
III. Was trial counsel ineffective for not objecting to the Assistant
District Attorney’s argument that the testimony of Khaleef Jones
and Steven Burns was truthful?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
____________________________________________
1 Specifically, “[t]he court found, and the Commonwealth agreed, that
[Appellant’s] burglary conviction should have merged with his second-degree
murder conviction for sentencing purposes.” Commonwealth’s Brief at 6 n.2.
Thus, the court vacated Appellant’s sentence for burglary, which was a
concurrent term of 6 to 12 years’ incarceration.
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“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he or she received ineffective
assistance of counsel, our Supreme Court has directed that the following
standards apply:
[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. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali, …
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
these prongs, his claim fails.” Commonwealth v. Simpson, …
66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
counsel’s assistance is deemed constitutionally effective if he
chose a particular course of conduct that had some reasonable
basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
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actually pursued.” Colavita, … 993 A.2d at 887 (quotation and
quotation marks omitted). 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.” Commonwealth v.
King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
marks, and citation omitted). “‘[A] reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting
Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694….)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant first argues that his trial counsel was ineffective for failing to
object, at the suppression hearing, to Detective Lynch’s testimony that he
stopped the vehicle in which Appellant was a passenger after “he ran the tag
of the vehicle, and the tag came back try-and-locate.” Appellant’s Brief at 10
(citing N.T. Hearing, 6/15/15, at 6). Specifically, the detective testified as
follows:
[The Commonwealth:] Detective, did you run the tag of that
vehicle?
[Detective Lynch:] Yes, I did.
[The Commonwealth:] What did you find out?
[Detective Lynch:] The tag came back as a try-and-locate.
[The Commonwealth:] And why, initially, were you following that
vehicle?
[Detective Lynch:] Because the tag came back as a try-and-
locate.
***
[The Commonwealth:] When you say try-and-locate, what do you
mean?
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[Detective Lynch:] Tag’s [sic] get entered as try-and-locate when
someone has permission to have a vehicle and basically they don’t
return it in a timely fashion and so they get entered as try-and-
locate.
[The Commonwealth:] Does a police report get filed?
[Detective Lynch:] Yes, it does.
[The Commonwealth:] Does the person who had that vehicle file
the police report?
[Detective Lynch:] The owner files the police report, correct.
[The Commonwealth:] And this tag came back as a try-and-
locate?
[Detective Lynch:] Yes, it did.
[The Commonwealth:] Did you stop the vehicle?
[Detective Lynch:] Yes, I did.
N.T. Hearing, 6/15/15, at 6-7.
Appellant argues that his trial counsel should have objected and “moved
to strike the testimony” of Detective Lynch “because there was no evidence
whatsoever entered by the Commonwealth to show that there was reasonable
suspicion for the try-and-locate to be entered into the police computer.”
Appellant’s Brief at 10. Citing Commonwealth v. Bondi, 234 A.2d 191 (Pa.
Super. 1967), Appellant argues that “where police officers stop a vehicle as a
result of information received from another source[,] that source of
information must be presented to the suppression court so that the court has
enough facts to determine if it was a valid stop.” Id. at 11. Because here,
Detective Lynch “never produced the police report,” or “testified that he ever
saw said police report[,]” there was “no evidence that the try-and-locate was
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authentic.” Id. Appellant contends, therefore, that the detective’s testimony
was insufficient to establish he had reasonable suspicion to stop the vehicle in
which Appellant was riding. Consequently, he insists that his trial counsel was
ineffective for not objecting to, and moving to strike, Detective Lynch’s
testimony.
Initially, we observe that this Court already decided that “Detective
Lynch … reasonably suspected that the driver was operating the car without
authorization.” Hamilton, No. 1477 EDA 2016, unpublished memorandum at
10. We explained: “The detective ran the tags because the car was in a known
high-crime area in North Philadelphia, and he learned that a ‘try-and-locate’
notice was on the registration, which meant that the car might have been a
rental that was not returned on time. N.T., 6/15/15, at 9, 11-12. These
factors gave the detective reasonable suspicion to stop the car for further
investigation.” Id.
Arguably, however, we did not address Appellant’s specific claim that
his counsel should have objected to Detective Lynch’s testimony on the basis
that proof of the police report underlying the ‘try-and-locate’ notice was
required. In this regard, we agree with the Commonwealth and the PCRA
court that Appellant’s reliance on Bondi is misplaced. See Commonwealth’s
Brief at 15; PCRA Court Opinion (PCO), 3/4/22, at 5. As the PCRA court
explained:
Bondi involved an arrest warrant utilizing the standard of
probable cause, with an unidentified informant as the source of
the information supporting the warrant. The present matter
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involved a vehicle stop utilizing a reasonable suspicion standard,
with a known source of the computer database information.
To explain, a stop is subject to review under the reasonable
suspicion standard -- a lesser standard than probable cause at
issue in Bondi. Reasonable suspicion to justify a car stop is
viewed from the standpoint of an “objectively reasonable police
officer.” Commonwealth v. Chase, 960 A.2d 108[, 120] (Pa.
2008). Clearly, Detective Lynch had objectively reasonable
suspicion to stop a vehicle whose license plate matched one of the
missing try-and-locate vehicles in the police database. The
database report provided the reasonable suspicion to make the
stop. No further corroborating evidence was necessary.
Moreover, the source of the try-and[-]locate at issue was the
owner of the vehicle, who filed a police report indicating that the
vehicle had not been returned. Thus, the source was reliable.
PCO at 6.
We agree with the court’s analysis. Bondi involved probable cause and
an unidentified informant, while this case involves reasonable suspicion and
information from the police department’s computer database. Thus, Bondi is
inapplicable, and we agree with the court that Detective Lynch had reasonable
suspicion to stop Appellant’s vehicle based on the try-and-locate notification.
Therefore, Appellant’s underlying claim of ineffectiveness lacks arguable
merit.
In any event, even if the stop of Appellant’s vehicle was illegal, we would
agree with PCRA court that he has failed to demonstrate that he was
prejudiced by the admission of the evidence recovered during the stop. The
court reasoned:
Appellant claims that “[t]rial counsel’s failure to object prejudiced
[him], because, if properly objected to, the stop should have been
declared illegal, and all of the evidence resulting therefrom[, i.e.,
a] cell phone and [a] .357 fired cartridge casing[,] would have
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been suppressed.” However, even if the cell phone and cartridge
casing had been suppressed, there was still ample trial evidence
to support Appellant’s conviction via testimony from co-
defendant, Khaleef Jones; testimony from witness Steven Burns;
the King Street Commons surveillance video; and, … Appellant’s
own letter to co-[d]efendant Jones telling Jones to testify and
blame everything on Burns…. None of this evidence resulted from
the car stop at issue.
Id. (brackets added by the PCRA court and citations to the record omitted).
Appellant does not offer any response to the court’s conclusion that the
testimony of Jones and Burns, the surveillance video, and his inculpatory letter
to Jones was sufficient to support the verdict, even without the evidence
obtained as a result of the vehicle stop. Accordingly, we would conclude that
he has not established that he was prejudiced by counsel’s failure to object to
Detective Lynch’s testimony, even if doing so would have led to the
suppression of the at-issue evidence.
In Appellant’s next issue, he avers that his trial counsel acted
ineffectively by not requesting a jury instruction on simple assault. Appellant
was not charged with simple assault. However, the court instructed the jury
that, to convict Appellant of burglary, it must find “that [Appellant] entered
the apartment indicated in the trial[,] … [and] that [he] entered that location
with the intent to commit a crime therein, in this case, simple assault.”
Appellant’s Brief at 12-13 (quoting N.T., 6/18/15, at 175-76). According to
Appellant, because “the court instructed the jury that simple assault was the
intended crime of the burglary[,] … the elements of simple assault had to be
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conveyed to the jury so that they could properly understand the charge.” Id.
at 13.
Again, we conclude that Appellant’s claim lacks arguable merit. As the
PCRA court aptly explained:
Pursuant to the Pennsylvania Crimes Code, “a person commits the
offense of burglary if, with the intent to commit a crime therein,
the person … enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is
present.” 18 Pa.C.S. [§ 3502](1)(1)(ii) (emphasis added). Thus,
the statute does not require the Commonwealth to allege or prove
the particular crime that the defendant intended to commit after
his forcible entry in the private residence in order to secure a
conviction for burglary. Commonwealth v. Alston, 651 A.2d
1092 ([Pa.] 1994); Commonwealth v. Von Aczel, 441 A.2d 750(Pa. Super. 1981); and[] Commonwealth v. Brown, 886 A.2d
256 (Pa. Super. 2005). Further, if a defendant is not on trial for
a crime supposedly underlying a burglary charge, he is not entitled
to a jury instruction on that charge. Commonwealth v.
Harrison, 663 A.2d 238 (Pa. Super. 1995). It is only if the
Commonwealth specifies the object crime in the Bill of Information
that it must prove that the defendant intended to commit that
specific offense upon entry. Commonwealth v. Brown, 886
A.2d 256 (Pa. Super. 2005).
Here, the Commonwealth did not specify the underlying crime for
burglary in the Bill of information charging … Appellant. The
Commonwealth charged … Appellant with burglary as follows:
COUNT 6: Burglary- Overnight Accommodation, Person
Present 183502A1— Felony 1st Degree[:]
Did unlawfully enter a building or occupies structure, to wit:
262 KING STREET, APARTMENT 524, POTTSTOWN, PA
19404 or separately secured or occupies portion thereof,
being the property of: GEORGE HASHIMBEY AND/OR
STEVEN BURNS at a time when the premises were not open
to the public, without license or privilege, with the intent to
commit a crime therein, and any person present.
(Bill of Information, Para. 2, emphasis added)[.]
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Accordingly, … Appellant was never charged with simple assault,
and consequently, was not entitled to a jury instruction on simple
assault.
Additionally, the trial court instructed the jury in accordance with
the Suggested Criminal Standard Jury Instruction Section 15.3502
which indicates that the trial court need not identify, much less
define, the crime that the defendant intended to commit upon
entering the specified location.
PCO at 7-8 (some brackets omitted).
Having reviewed the cases cited by the PCRA court, we agree that it was
not required to instruct the jury on the elements of simple assault, as
Appellant’s indictment did not charge him with that crime as the predicate
offense to his burglary charge. Moreover, we also agree with the court that
Appellant failed to prove that he was prejudiced “from the absence of a jury
instruction on simple assault, as … Appellant was convicted of aggravated
assault. Thus, surely if … Appellant had been charged with the lesser included
offense of simple assault, and the court had instructed the jury on same, the
Commonwealth would also have met its burden for a conviction on the lesser
offense of simple assault.” Id. at 9. Consequently, no relief is due on
Appellant’s claim that his counsel acted ineffectively by not objecting to the
omission of an instruction on simple assault.
Finally, Appellant maintains that his counsel was ineffective for not
specifically objecting when, during closing arguments, the prosecutor
impermissibly vouched for the credibility of Khaleef Jones. Specifically,
Appellant points to the following portion of the prosecutor’s closing argument:
Members of the jury, Khaleef Jones was telling the truth. I submit
credibility. Was he squirming? Did he not make eye contact with
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you? Did he avoid any of the defense’s questions? Steven Burns
and Khaleef answered every question, even the uncomfortable
ones about their history. I submit, do you think [it] was easy for
Steven -- for Khaleef Jones to sit up here and testify against his
former friend, [in a] packed courtroom? He took responsibility.
Want to know who’s responsible? The only one I submit who took
responsibility was Khaleef Jones. He looked exhausted. What did
he say? He sat here. I believe the testimony was he said, I’m
tired of lying. I don’t want to lie anymore. I have a five-year-old.
I[] [have been] tried. Sentencing is up to the Judge. I don’t want
to lie anymore. I want to take responsibility for my actions. Do
you think [that] was easy for him to do?
He pled to third[-]degree murder and numerous other felonies. I
submit he’s the only one who accepted responsibility. He sat there
and stood up like a man and finally told you what happened. [He
m]ay not have been telling the truth last month. He told the truth
yesterday. All the evidence points to that. He did tell the truth
yesterday, and that’s the only time he has to tell the truth was
yesterday.
[Defense Counsel]: Objection.
N.T., 6/18/15, at 121-22. The court did not rule on defense counsel’s
objection, and the Commonwealth continued its closing argument. Id. at 122.
In rejecting Appellant’s claim that counsel should have lodged a specific
objection to the prosecutor’s remarks, or pressed the court for a ruling on the
objection he did make, the PCRA court reasoned that the prosecutor’s
argument was “fair response to defense counsel’s attack on the credibility of
witnesses Jones and Burns.” PCO at 10. It explained:
[T]hroughout his closing argument, defense counsel repeatedly
painted Commonwealth witness, Khaleef Jones[,] as a liar.
Witness Steven Burns’ veracity was also placed into question. ([]
See, [N.T. Trial at] 75-92)[.] Therefore, in fair response to same,
the prosecutor pointed to corroborating evidence as to Jones and
Burns’ testimony throughout his closing. ([Id. at] … 94-141…).
And, towards the end of his closing, the prosecutor argued, “I
submit, maybe [Jones and Burns] lied six months ago. … [T]hey
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might lie tomorrow. Yesterday, they were telling the truth. They
sat there yesterday and told you the truth. If yesterday, and only
yesterday[;] but the physical evidence matches up.” (Id. at …
110)[.] As the transcript makes clear, the prosecutor did not give
his opinion regarding the credibility of Jones and Burns. Rather,
throughout his closing, the prosecutor directed the jury to all of
the evidence supporting the witnesses’ testimony, and then
concluded by stating that such evidence demonstrated that Jones
and Burns gave truthful testimony.
Id. at 10-11.
Notably, on direct appeal, Appellant raised a challenge to the
prosecutor’s remarks as improperly commenting on a witness’s credibility. We
initially concluded that this claim was waived because defense counsel did not
lodge a specific objection. However, we alternatively concluded that
Appellant’s claim that the prosecutor acted improperly by commenting on
Jones’s credibility was “devoid of merit.” Hamilton, 1477 EDA 2016,
unpublished memorandum at 24. We explained:
“[T]he prosecution is accorded reasonable latitude, may employ
oratorical flair in arguing its version of the case to the jury, and
may advance arguments supported by the evidence or use
inferences that can reasonably be derived therefrom.”
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.
2016). The prosecutor herein argued that the witnesses told the
truth on the stand because they were under oath, despite their
earlier lies. These facts—the witnesses had given prior
inconsistent statements and were under oath when they
testified—were in the record. N.T., 6/17/15, at 78-80. Therefore,
the prosecutor advanced arguments that found support in the
record, and he did not improperly vouch for any witness’s
credibility.
Id.Appellant argues, and we agree, that our alternative analysis in this
regard was dicta. Nevertheless, our reasoning is persuasive. Additionally,
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Appellant offers no response to the PCRA court’s conclusion that the
prosecutor’s remarks were fair response to the defense’s closing argument.
Accordingly, he has not met his burden of demonstrating arguable merit in his
claim that his counsel acted ineffectively by not lodging a more specific
objection to, or pressing the court for a ruling on, the prosecutor’s ostensibly
improper remarks.
Moreover, we also agree with the PCRA court that Appellant’s trial
counsel expressed a reasonable basis for objecting as he did, and for not
pursuing a ruling on his objection. At the PCRA hearing, counsel confirmed
that one of the “central themes” of his closing argument was that Jones “was
a liar” and that he attempted to “paint[] him as a liar” by “repeatedly
point[ing] out all the lies and inconsistencies in his testimony[.]” N.T. PCRA
Hearing, 8/10/21, at 28. Accordingly, counsel believed that the prosecutor’s
closing argument was a fair response to his closing, but he objected to the at-
issue remarks by the prosecutor simply to get “him to stop” because “the
mood in the courtroom [was] fairly intense at [that] time….” Id. at 30.
Counsel chose not to press the court for a ruling on his objection because he
did not want the court to state that the prosecutor’s remarks were fair
response and “make the issue highlighted even more.” Id.
Given this testimony by trial counsel, the PCRA court concluded that
counsel “provided … a reasonable basis for declining to follow up on his
objection concerning vouching. Counsel articulated that both the objection
and the lack of follow through were strategic decisions.” PCO at 13. We
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agree. Thus, Appellant’s third and final ineffectiveness claim does not warrant
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2022
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