Com. v. Jones, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARWIN HART-JONES :
:
Appellant : No. 2954 EDA 2019
Appeal from the Order Entered September 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013806-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 5, 2021
Appellant, Darwin Hart-Jones, appeals from the order dismissing,
without a hearing, his timely-filed, Post Conviction Relief Act1 (“PCRA”)
petition. Appellant argues that his trial attorney provided ineffective
assistance of counsel (“IAC”) by failing to request a mistrial after successfully
objecting to two instances of prosecutorial misconduct. After careful review,
we affirm.
As this Court briefly summarized during the direct appeal in this case,
[o]n June 30, 2011, Khalif Gonzalez was walking westbound on
Horrocks Street with his friend Tyree Branch. Gonzalez testified
that he saw [Appellant] standing at the corner of Horrocks and
Unruh Streets, dressed in black with a hoodie covering the top of
his forehead and ears. As the pair passed [Appellant], Branch said
to [him], “[W]hat are you looking at pussy?” A minute or two
later, Gonzalez heard three gunshots[,] and he and Branch ran
towards their respective homes. Gonzalez, who received a
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1 42 Pa.C.S. §§ 9541-9546.
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gunshot wound to his right arm, looked back at [Appellant] and
saw him tuck a black gun with a clip into the front of his waistband.
Branch, who was shot in the back, ultimately died from his
wounds.
Commonwealth v. Hart-Jones, No. 1291 EDA 2013, unpublished
memorandum at 1 (Pa. Super. filed Feb. 20, 2015).
Following a trial held in March of 2013, a jury convicted Appellant of
first-degree murder, attempted murder, aggravated assault, and two
violations of the Uniform Firearm Act (“VUFA”).2 Appellant filed a direct appeal
to this Court. We affirmed his judgment of sentence, and our Supreme Court
denied further review. Commonwealth v. Hart-Jones, 120 A.3d 387 (Pa.
Super. 2015) (unpublished memorandum), appeal denied, 125 A.3d 776 (Pa.
2015).
Appellant filed a timely, pro se PCRA petition on June 6, 2016, and a pro
se amended PCRA petition on September 1, 2016. Subsequently appointed
PCRA counsel, George Yacoubian, Esq., filed another amended PCRA petition
on August 18, 2017. Attorney Yacoubian filed two supplemental amended
PCRA petitions on May 18, 2018, and August 18, 2018. Soon thereafter, the
PCRA court granted Attorney Yacoubian leave to withdraw, and appointed
present counsel, James Lloyd, Esq., on Appellant’s behalf. Attorney Lloyd filed
a supplemental amended PCRA petition on December 31, 2018. On June 11,
2019, the Commonwealth moved to dismiss Appellant’s PCRA petition without
a hearing.
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2 See 18 Pa.C.S. §§ 2502(a), 901(a), 2702(a), 6106(a)(1), 6108.
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On August 21, 2019, the PCRA court issued notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition without a hearing,
and then dismissed the petition by order dated September 30, 2019.
Appellant filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on
December 4, 2019.
Appellant now presents the following questions for our review:
Did the PCRA [c]ourt err and/or abuse its discretion when it denied
[A]ppellant[]’s petition under the PCRA seeking a new trial based
upon a claim that trial counsel was ineffective for failing to seek a
mistrial when:
a. the prosecutor, without a good faith basis to do so, posed
a question which elicited extremely prejudicial and
inadmissible information in the presence of the jury, and
where that information was essential to the prosecutor’s
case; and/or
b. the prosecutor, during closing arguments, made a wholly
improper emotional plea to the jury…?
Appellant’s Brief at 4.
We apply the following standards to Appellant’s IAC claims, as stated by
our Supreme Court:
Our standard of review in PCRA appeals is limited to determining
whether the findings of the PCRA court are supported by the
record and free from legal error. The PCRA court’s factual
determinations are entitled to deference, but its legal
determinations are subject to our plenary review.
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
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or innocence could have taken place.” 42 Pa.C.S. §
9543(a)(2)(ii). Generally, counsel’s performance is presumed to
be constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
relief, a petitioner must demonstrate that counsel’s performance
was deficient and that the deficiency prejudiced the petitioner.
Strickland v. Washington, 466 U.S. 668, 687 … (1984). 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.”
Id. at 694…. Applying the Strickland performance and prejudice
test, this Court has noted that a properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (some
citations and quotation marks omitted).
Some further background is required to address Appellant’s claims.
Gonzalez was the only eyewitness to identify Appellant as the shooter. The
limited physical evidence in this case neither supported nor refuted Appellant’s
identification by Gonzalez. When initially interviewed at the hospital
immediately following the shooting, Gonzalez did not identify his assailant.
However, two days later, he provided a statement to homicide detectives,
describing the shooter as “six feet tall, slim, light-skinned, about nineteen
years of age, and dressed in all black clothing.” PCRA Court Opinion (PCO),
12/4/19, at 4. Gonzalez identified Appellant from a photo array, and from an
in-person lineup. Id. He also identified Appellant at the preliminary hearing.
Id.
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In order to bolster Gonzalez’s identification of Appellant, the
Commonwealth intended to secure the testimony of Alphonso Glenn, who
purportedly heard Appellant admit to the shooting.3 Id. at 6. During the
prosecutor’s opening argument to the jury, the Commonwealth informed the
jury that it intended to call Glenn, that they intended to elicit from him
evidence of Appellant’s admission, and that the Commonwealth did not
anticipate that he would testify willingly. Id. Ultimately, the Commonwealth
was unable to secure Glenn’s testimony because they could not locate him.
Id.
Failure to Request a Mistrial Due to Prosecutorial Misconduct During the
Cross-Examination of a Defense Witness
Appellant’s first IAC claim concerns trial counsel’s failure to request a
mistrial during the prosecutor’s questioning of defense witness Ajare Mathis,
Appellant’s girlfriend. As explained by the PCRA court, while being cross-
examined by the prosecutor, Mathis
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3 The defense presented some evidence inconsistent with Gonzalez’s
identification for Appellant. For instance, Appellant’s sister, Shakura Hart,
testified that she saw Appellant wearing a white T-shirt and blue pants a few
hours before the shooting. See N.T. Trial, 3/27/13, at 146-58. Jose DeLeon
testified that he saw a man in a dark, hooded sweatshirt running from the
scene of the shooting. DeLeon saw the man get into a Cadillac that
immediately sped away. Thirty seconds later, Deleon saw Appellant walking
away from the scene of the shooting, and he observed that Appellant was
wearing a white T-Shirt and blue jeans. DeLeon also indicated that he could
have easily mistaken the man he saw getting into Cadillac for Appellant. See
id. at 60-90. Thus, evidence of Appellant’s admission to the crime, if found
credible by the jury, could have served to dispel reasonable doubt about the
identification of Appellant as the shooter.
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testified that she learned about the murder when she heard that
Glenn was being questioned by detectives and mentioned
[Appellant]’s name. The prosecutor then asked Mathis[,] “So did
you hear that Fonz [Alphonso Glenn] told detectives that
[Appellant] admitted to doing it?” Prior to the witness answering,
the question was immediately objected to[,] [t]he objection was
sustained[,] and the question was stricken from the record.
Additionally, the prosecutor was admonished by the [trial c]ourt.
Specifically, the [c]ourt stated[,] “[t]hat is totally objectionable,”
and “move to strike and don’t do that again.” N.T. [Trial],
3/27/[]13[,] at 112.
Following the testimony of Mathis, the [trial c]ourt issued the
following curative instruction to the jury:
Ladies and gentlemen, just one thing, remember when I told
you, when I spoke to you in the beginning of this week that
questions are not evidence and that opening arguments and
closing arguments are not evidence. Now you heard some
information in this courtroom and I said sustained and
ordered that it be stricken but I need to be really clear with
you. This person, Alfonso Glenn, has not testified in this
case. Anything that anyone says that he said, you cannot
consider because he is not here to be cross-examined. His
testimony can’t be tested. That is why you hear me saying
sustained. Don’t do that. Now I think you heard possibly
during opening arguments and just now in questioning by
the District Attorney at least, that words from -- they call
him Fonz -- Alfonso Glenn’s mouth. You are to disregard all
of that.
[Id.] at 139.
PCO at 6-7.
Although Appellant’s trial counsel objected to the question, and despite
the fact that the trial court specifically instructed the jury to disregard the
offensive question and its implications, Appellant maintains that his trial
attorney provided constitutionally-deficient assistance of counsel by failing to
further request a mistrial. The PCRA court acknowledged that Appellant’s
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claim likely satisfied the first two prongs of the IAC test, in that Appellant’s
IAC claim had arguable merit, and that his trial counsel should have requested
a mistrial. Id. at 7. However, the court determined that Appellant cannot
demonstrate the prejudice prong of his IAC claim, finding that the following
factors sufficiently mitigated the potential prejudice stemming from the
prosecutor’s misconduct, so as not to deprive Appellant of a fair trial: 1) the
question was immediately objected to by defense counsel; 2) the court struck
the question from the record before the witness could answer; 3) the court
admonished the prosecutor; and 4) the court gave a curative instruction. See
id. at 7-8. The PCRA court also noted that this Court,
previously addressed this issue in dicta after it determined that
the claim was waived by trial counsel for failure to request a
mistrial on direct appeal. The Superior Court found that had trial
counsel requested a mistrial, the trial court would have been
within its discretion to deny it. Furthermore, the Superior Court
found that “the court’s response, striking the question from the
record and giving a curative instruction, was sufficient to remove
any prejudice [Appellant] may have suffered.”
Id. at 8 (quoting Hart-Jones, No. 1291 EDA 2013, unpublished memorandum
at 3).
Appellant argues that he was prejudiced because counsel’s error waived
an associated claim on direct appeal. He further contends that the misconduct
was particularly egregious due to the prosecution’s attempt to put evidence of
Appellant’s purported confession before the jury when it could not secure the
testimony of Glenn.
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We agree with the PCRA court, and this Court’s reasoning during
Appellant’s direct appeal, that Appellant fails to demonstrate that he was
prejudiced by the prosecutor’s question to an extent that the result of the
proceeding—his trial—would have been different, but for the prosecutor’s
misconduct. Specifically, Appellant fails to convince us that the prosecutor’s
question, although clearly inappropriate and worthy of admonition by the trial
court, was so egregious so as to fix the jury’s mind against Appellant,
especially since the misconduct was promptly addressed by the trial court and
the question was struck from the record before it could be answered.
Additionally, the curative instruction to the jury was directly on point and
thorough, and Appellant does not identify any deficiencies therein. “The jury
is presumed to follow the court’s instructions.” Commonwealth v. Roney,
79 A.3d 595, 640 (Pa. 2013). Appellant fails to explain why that presumption
does not apply in, or is overcome by, these circumstances.
“Failure to prove any prong of” the IAC “test will defeat an
ineffectiveness claim.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
2014). As Appellant has failed to satisfy his burden to demonstrate that
counsel’s failure to request a mistrial constituted outcome-determinative
prejudice, his first claim lacks merit.
Failure to Request a Mistrial Following an Emotional Plea by the Prosecutor
During His Closing Argument to the Jury
Similar to his first claim, Appellant argues that his trial counsel was
ineffective for failing to request a mistrial in response to prosecutorial
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misconduct, this time during the Commonwealth’s closing argument. As the
PCRA court explains,
the prosecutor stated in her closing argument[,] “Don’t make me
call Khalif [the surviving victim] and tell him I’m sorry[,] … you
did the right thing ... but it is not enough.” [N.T. Trial, 3/27/13,
at 225.] Although defense counsel objected and the court
sustained the objection, counsel did not request a mistrial.
PCO at 8.
Appellant contends that trial counsel’s failure to request a mistrial
caused him to waive his claim on direct appeal that the prosecutor’s statement
warranted a new trial. Indeed, on direct appeal, Appellant argued that he was
entitled to a new trial due to the prosecutor’s emotional appeal to the jury,
and this Court initially ruled that trial counsel’s failure to request a mistrial
waived his claim. Hart-Jones, 1291 EDA 2013, unpublished memorandum
at 3. However, this Court further stated:
Even if counsel had requested further relief, [Appellant] would not
be entitled to a new a trial. Prosecutorial misconduct will be found
if the argument results in prejudice to the defendant. It does so
when:
[T]he unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict. Due to the nature of a criminal trial, both sides
must be allowed reasonable latitude in presenting their
cases to the jury. Prosecutorial misconduct will not be found
where comments made were done for oratorical flair.
Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super.
2006).
Here, the trial court sustained defense counsel’s objection and
reminded the jury that the prosecutor’s closing argument is not
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evidence. N.T. Trial, 3/27/13, at 166. The court also gave an
instruction that the jury could not consider empathy or sympathy
when reaching a verdict. N.T. Trial, 3/28/13, at 6. Based on the
foregoing, we agree with the trial court’s conclusion that the
comment at issue did not prejudice [Appellant] so as to warrant a
new trial. Accordingly, we discern no abuse of discretion.
Hart-Jones, 1291 EDA 2013, unpublished memorandum at 3–4.
We agree with this Court’s analysis during Appellant’s direct appeal that
Appellant was not prejudiced by the prosecutor’s emotional appeal to the
extent that he was deprived of a fair trial, and we adopt it as our own. Thus,
even if trial counsel had requested and been denied a mistrial, Appellant would
not have been entitled to relief because the prejudice stemming from the
prosecutor’s comment was immediately alleviated by the trial court when the
comment was made. Thus, Appellant’s second claim fails to satisfy the
prejudice prong of the IAC test and, therefore, it also lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2021
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