February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MARCUS M. CHRISTIE, Appellant
Appeal from the PCRA Order entered May 12, 2010, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-1200451-2004.
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.
Marcus M. Christie ("Appellant") appeals from the order denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.
The PCRA court recited the facts as follows:
[A]t about 11:43 p.m. on March 1, 2004, Police Officer Thomas Anderosky #1854, in response to a radio call went to Franklin and Diamond Streets in Philadelphia. He found the decedent, Dwight Johnson, lying unconscious partially outside the open driver's door of a green Pontiac. Although his feet were still in the car, it appeared that the rest of his body fell out of the car. He appeared to have a head wound.
Ten (10) fired 9mm cartridges and nine (9) fired .40 caliber cartridges, as well as bullet fragments were recovered from the scene. Portions of six other bullets were recovered from the car. One bullet fragment was removed from the head of the victim. The decedent was shot once through the forehead. The bullet passed through his brain and caused numerous fractures of the skull. The shot was fatal.
The Commonwealth presented three witnesses who at one time stated he or she was at or near the scene of the crime. Its first witness, Hiram [Ramos] testified at this trial only that he knew both [Appellant and his co-defendant] and at the time of the killing he was inside his grandmother's house at 2051 North Franklin Street when he heard several gunshots. Before the jury he denied seeing anyone commit the killing.
The Commonwealth then questioned [Mr. Ramos] concerning several statements he gave to the police as well as his prior testimony given at Appellant's preliminary hearing that were inconsistent with his trial testimony. Specifically, just a few hours after the shooting, [Mr.] Ramos was interviewed by homicide detectives. He told the detectives he was inside a house at 2108 N. 8th Street, when he heard gunshots. He went to the door and saw the decedent, who he knew[, ] standing by the green car. More gunshots erupted. The [decedent] was struck and someone who was shooting jumped into the car and the car, being driven by a female[, ] drove off. [Mr. Ramos] then went to Franklin and Diamond Streets were he again saw the car with the decedent being dragged out of it.
On August 2, 2004, [Mr. Ramos] was again interviewed by homicide detectives. At that time, Mr. [Ramos] was incarcerated at Camp Hill and the interview occurred at the prison. In that interview he stated shortly before the shooting he saw the decedent by the green car. He also saw Appellant, [Appellant's] co-defendant and others standing on the street. [Mr. Ramos] went home. About ten minutes later, he saw two people shooting from inside a car into the green car. After the shooting stopped, he saw [Appellant's] co-defendant flee and he also saw [Appellant] jump into the car with the decedent and it sped off.
On November 23, 2004, prior to Appellant's preliminary hearing, [Mr. Ramos] again spoke with the detectives. He again told the detectives he saw Appellant and [Appellant's] co-defendant shoot the decedent.
Reba Goldstein testified that shortly before the shooting she was in a store at the corner of Franklin and Diamond Streets. The decedent came in. Appellant was already in the store accompanied by [his co-defendant] and another. Appellant threatened the decedent, telling him, he would get hurt if he remained in [Appellant's] neighborhood. [Appellant's co-defendant] stood nearby and the third individual stood by the door. After the man left, [Ms. Goldstein] again saw Appellant on the street. He pulled out a gun and walked past her. Shortly thereafter she heard several gunshots and she ran home.
Eugene Booker testified that he saw both [Appellant and his co-defendant] together. Shortly before the killing, he saw the decedent's car and saw the decedent in the store arguing. The decedent came out of the store, walked to his car and yelled something. He heard the decedent say "He would be back." After the decedent got into the driver's seat, the [Appellant and his co-defendant] walked over to his car and repeatedly shot at him.
PCRA Court Opinion, 6/7/11, at 2-4 (citations to notes of testimony omitted).
Appellant and his co-defendant were tried together. On March 9, 2006, a jury convicted both men of first-degree murder and criminal conspiracy. On June 1, 2006, the trial court sentenced Appellant to a mandatory life sentence for the murder conviction, and a consecutive eighteen to thirty-six year sentence for the conspiracy conviction. Appellant filed a timely appeal to this court. In an unpublished memorandum filed on May 30, 2008, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Christie, 954 A.2d 33 (Pa.Super. 2008). Appellant did not file a petition for allowance of appeal to our Supreme Court.
On September 26, 2008, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, and PCRA counsel filed an amended petition. The Commonwealth ultimately filed a motion to dismiss Appellant's amended PCRA on March 26, 2010. On April 9, 2010, the PCRA court entered an order affording Appellant Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Appellant filed his response on May 3, 2010. By order entered May 13, 2010, the PCRA court dismissed Appellant's amended PCRA petition. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
On October 6, 2010, in response to Appellant's pro se request, this Court remanded the case for the PCRA court to conduct a Grazier hearing regarding Appellant's legal representation. On March 25, 2011, the PCRA court held the Grazier hearing, at which time Appellant withdrew his petition to proceed pro se, and agreed to continued representation by PCRA counsel.
Within his brief, Appellant asserts that the PCRA court erred in dismissing his amended PCRA petition without a hearing because he raised factual issues with regard to his several claims of ineffectiveness of trial counsel. Specifically, Appellant argued that trial counsel was ineffective for failing to: 1) object to an improper conclusion of a Commonwealth witness that introduced improper and irrelevant evidence into the case; 2) object to testimony from a Commonwealth fact witness that established her "further credibility" when she was permitted to testify that she told her girlfriend "what she told the jury"; 3) raise and brief the issue of the prosecutor's misconduct during direct examination of Reba Goldstein on direct appeal; and 4) object to prosecutorial misconduct in closing and then failing to ask for a mistrial after an objection to the misconduct was sustained. See Appellant's Brief at 9. We will consider each claim separately.
In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001). Before an evidentiary hearing will be granted, a PCRA petitioner "must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective." Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)). Finally, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish 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. Id. "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant first asserts that trial counsel was ineffective for failing to join in the objection of co-defendant's counsel to the following question posed by the Commonwealth to its ballistics expert: "Could you explain how [your findings] are consistent with two guns and two shooters?" N.T., 3/7/06, at 102. Appellant argues that this was an improper question. According to Appellant:
While there very well may have been evidence of two guns, that does not mean there is evidence of two shooters. Certainly, a ballistics expert who is not present at the scene could not offer that type of evidence. It was an improper conclusion. In the event that the objection logged by co-defendant preserved the issue, then [trial] counsel was ineffective for having failed to raise and brief the issue.
[Appellant] would concede that an expert can usually give an opinion; however, that opinion must be in the field of his expertise. At trial [the expert] properly concluded that the 9mm and 40-caliber ammunition were fired from two separate weapons. That was within his ambit of expertise. However, a ballistics expert has no special expertise in determining how many shooters were present at the scene. That is a matter for fact witnesses and for the conclusions and determination of the jury.
Appellant's Brief at 9-10. Appellant further asserts that because there were "two defendants who were on trial, the evidence, as opined by the [expert], cannot be said to have been harmless." Id. at 9-10.
The PCRA court found no merit to Appellant's claim, reasoning as follows:
First Appellant claims that counsel was ineffective for failing to object to a question posed to the Commonwealth's ballistics expert. As noted above, the evidence, both direct and circumstantial[, ] established that the decedent was shot by two shooters with two different guns. While exploring the issue that two guns were used with the expert, Officer Rone, the prosecutor asked him to explain how the evidence was "consistent with two guns and two shooters." N.T., 3/7/06, [at] 102. In response to that question and over the objection of co-defendant's counsel, Officer Rone explained that the fact that both .9mm casings and .40 caliber casings were found at the scene indicated that two guns were used. He never discussed anything about the number of shooters [that] were involved. N.T., 3/7/06, at 102-3. Accordingly, even if the question about the number of shooters arguably exceeded the scope of the expert's knowledge, no harm whatsoever flowed from the question and no prejudice to Appellant occurred. Accordingly, this claim was baseless on its face. See Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999).
PCRA Court Opinion, 6/7/11, at 6.
Our review of the record supports the PCRA court's conclusion that Appellant's ineffectiveness claim is without merit. In short, Appellant objects to the arguably improper question by the Commonwealth rather than any response. Before the testimony began in Appellant's trial, the trial court instructed the jury that questions by counsel are not evidence, but only the witness's answer to the question are evidence. See N.T., 3/6/06, at 12-13. It is well settled that a jury is presumed to follows the trial court's instructions. See Commonwealth v. Hall, 872 A.2d 1186, n.7 (Pa. 2005) (explaining that the trial court's instruction to the jury that statements and questions of the attorneys do not constitute evidence, cured any prejudice that may have been caused by the prosecutor's comments). Because Appellant has failed to identify any objectionable testimony in Officer Rone's answer to the Commonwealth's question, Appellant cannot establish prejudice. Travaglia, supra.
Appellant's next two claims of ineffectiveness involve Ms. Goldstein's testimony. Appellant's first claim involves the following exchange between Ms. Goldstein and the Commonwealth:
Q. What did you do when you heard the shots?
A. I ran home.
Q. What did you do when you got home?
A. I told the person that I lived with, Marcia Green, what had happened.
Q. Did you tell her what you told the jury?
A. Excuse me?
Q. Did you tell her the same thing basically that you told this jury here today?
N.T., 3/8/06, at 22.
Appellant asserts that trial counsel was ineffective for failing to object to the Commonwealth's inquiry because it "was patently irrelevant as to whether [Ms. Goldstein] had told her friend what happened, let alone exactly what happened." Appellant's Brief 13. According to Appellant, the admission of this testimony, in essence, was improper admission of a prior consistent statement, offered to bolster Ms. Goldstein's credibility, even though it had not yet been challenged on cross-examination. See id. at 13-14.
The PCRA court found no merit to Appellant's claim, explaining:
[Appellant's] first claim is that trial counsel was ineffective for failing to object when [Ms. Goldstein] testified that following the shooting she ran home and told her roommate what happened and testified that she told the roommate the same thing she told the jury. He claims that this was improper because it was a prior consistent statement introduced before there was an attack upon [Ms. Goldstein's] credibility. Upon review of the entire record, including both defense attorneys' opening arguments, cross examination and closing arguments that their joint strategy was to attack the credibility of the Commonwealth's eye witnesses [sic]. Under such circumstances our appellate courts have held that a trial court, in its discretion may permit the witness to be questioned on direct examination concerning prior consistent statements. As it may be anticipated that prior inconsistent statements will be introduced, the testimony need not wait until rebuttal. See Commonwealth v. Smith, 540 A.2d 246, 253 (Pa. 1988). Accordingly, this claim too was baseless on its face.
PCRA Court Opinion, 6/1/11, at 6-7.
Once again, our review of the record and pertinent case law supports the PCRA court's conclusion. See e.g., Commonwealth v. Cook, 952 A.2d 594, 625 (Pa. 2008) (citing Commonwealth v. Wilson, 861 A.2d 919, 930 (Pa. 2004)) (explaining that when the defense is centered upon attacking a witness's credibility consistent with a basis that would permit introduction of a prior consistent statement to rehabilitate, "the trial court is afforded discretion to admit the prior consistent statement in anticipation of impeachment"). Thus, Appellant cannot be found ineffective for failing to pursue this meritless claim. Loner, supra.
In his third claim of ineffectiveness, Appellant asserts that trial counsel was ineffective for failing to raise on appeal the Commonwealth's misconduct in asking Ms. Goldstein why she moved out of the neighborhood where the shooting occurred. While trial counsel joined co-defendant's counsel in objecting to this inquiry, their objection was overruled, and Ms. Goldstein informed the jury because she "felt like [she] was going to get hurt." N.T., 3/8/06, at 24-25. According to Appellant, "the introduction of evidence which would have established that [Ms. Goldstein] was afraid, and by inference was afraid of [Appellant], should have been excluded as its probative value was outweighed by the danger of unfair prejudice." Appellant's Brief at 15. Appellant contends therefore that trial counsel should have raised this issue on appeal.
The PCRA court found no merit to Appellant's ineffectiveness claim. It reasoned:
Next Appellant alleges that counsel was ineffective for failing to pursue on appeal a preserved claim concerning Ms. Goldstein's testimony.  Ms. Goldstein did testify consistent with [her] prior police statement, … two weeks after the shooting [she] moved from that neighborhood. In response to a question as to why she moved [Ms. Goldstein], over objection stated, "I felt like I was going to get hurt." Appellant now complains that prior was counsel was ineffective for failing to pursue this on appeal, claiming somehow this testimony was overly prejudicial to him. He is mistaken. The brief question and answer indicated [Ms. Goldstein] moved because she felt she was not safe. No mention was made that it was Appellant who made her feel this way. A terrible shooting occurred in her neighborhood and she moved because she was scared. The evidence was relevant and admissible. No reversible error occurred when the [trial court] allowed this one brief question and answer. Accordingly, [trial counsel] was not ineffective for failing to purse this on appeal.
PCRA Court Opinion, 6/7/11, at 7.
Our review of the record supports the PCRA court's conclusion that Ms. Goldstein's brief reference to moving from the neighborhood was not unduly prejudicial to Appellant. Moreover, our research corroborates the Commonwealth's assertion that Appellant's co-defendant raised this same issue on appeal. We found it to be meritless, and adopted the trial court's reasoning in disposing of the issue. See Cintron, supra, unpublished memorandum at 8-9. Thus, Appellant's third ineffectiveness claim fails.
In his final claim of ineffectiveness, Appellant asserts that trial counsel was ineffective for failing to object and/or request a mistrial with regard to two statements made by the prosecutor during the Commonwealth's closing argument. Appellant identifies these instances as follows:
You heard fear in the statements of Hiram Ramos and the testimony at the preliminary hearing of Hiram Ramos [sic]. You heard that Ms. Goldstein, she moved out of the neighborhood quickly after the incident occurred. Why? Fear.
And two of the witnesses had the courage to get on that stand in front of you and tell you what they saw. That's the surprising thing. The surprising thing isn't that Mr. Ramos did not. The surprising thing is that he ever did. What are the possible defenses that a defense attorney could come up with in a Murder One case?
N.T., 3/9/06, at 56, 71. Trial counsel did not object to either statement. While co-defendant's counsel's objection to the second statement was sustained, neither he nor trial counsel moved for a mistrial.
Appellant asserts that trial counsel was ineffective for failing to object to these statements and for failing to raise the issue on appeal because "the prosecutor was attempting to focus the jury on fear and was pandering to the jury instead of arguing the evidence and letting the chips fall where they might." Appellant's Brief at 16. According to Appellant:
[I]n the instant matter, the language used by the prosecutor would have prevented the jurors from rendering a fair and true verdict because the prosecutor focused on the fact that the witnesses were fearful or terrified and hence, the prosecutor with the broadest of brushes smeared [Appellant], who is presumed to be innocent. There was never any evidence introduced to demonstrate that [Appellant] had actually threatened any of the witnesses; the prosecutor injected that into the trial by innuendo, causing the jury to speculate as to exactly what was happening, and perhaps as to what they were not, [sic].
Appellant's Brief at 17.
Our standard of review for a claim of prosecutorial misconduct is limited to an abuse of discretion. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005) (citation omitted). In considering such a claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one. Id. This Court has observed:
Not every unwise remark on a prosecutor's part constitutes reversible error. Indeed, the test is a relatively stringent one. Generally speaking, a prosecutor's comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward Appellant so that they could not [weigh] the evidence objectively and render a true verdict. Prosecutorial misconduct, however, will not be found where the comments were based on evidence or proper inferences therefrom or were only oratorical flair. In order to evaluate whether comments were improper, we must look to the context in which they were made.
Id. Moreover, "the prosecutor is permitted to respond to defense arguments and is free to present his or her case with logical force and vigor." Commonwealth v. Koehler, 737 A.2d 225, 240 (Pa. 1999) (citation omitted).
The PCRA court found no merit to Appellant's claim of prosecutorial misconduct. With regard to the first instance identified by Appellant, the PCRA court noted that, "given the defense attacks to both witness' credibility and given the proper admission of the testimony, the prosecutor's statement was a fair comment upon the evidence. Accordingly, counsel was not ineffective for failing to object." PCRA Court Opinion, 6/7/11, at 8.
With regard to the second instance identified by Appellant, the PCRA court explained:
Following a timely objection by co-counsel, the [trial court] sua sponte instructed the jury that the defense had no burden of proof and the burden always remains with the Commonwealth. The prosecutor continued and discussed "possible defense arguments that defense could make to you." Following a timely objection by co-counsel [sic], the [trial court] instructed the prosecutor that he could comment on arguments made by defense counsel but not on arguments in general. The prosecutor then focused his argument on the arguments made by defense counsel. See N.T. 3/9/06, [at] 71-71 [sic].
As to both instances of alleged prosecutorial misconduct, the PCRA court concluded:
Here, prior counsel could not have been ineffective because the prosecutor's comments fell far short of prosecutorial misconduct. When the prosecutor briefly exceeded his bounds, the [trial court] properly sustained the objection and properly issued a cautionary instruction. After being focused upon how to shape his argument, the prosecutor properly made his argument. No further relief was necessary. No mistrial was warranted.
PCRA Court Opinion, 6/7/11, at 9.
Once again, our review of the record supports the PCRA court's conclusions. Initially, we note that Appellant provides no argument in his claim of ineffectiveness regarding counsel's failure to request a mistrial. Thus, we will not consider the claim further. See generally, Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa.Super. 2007) (holding that undeveloped claims will not be considered on appeal). Moreover, even if we were to consider the claim, our review supports the trial court's conclusion that, when read in context of the Commonwealth's entire closing, the prosecutor's closing was not unduly prejudicial to Appellant. See Commonwealth v. Ervin, 766 A.2d 859, 865 (Pa.Super. 2000) (explaining that the Commonwealth's comments were proper as they responded to arguments made by defense counsel). Thus, trial counsel cannot be ineffective for failing to pursue this meritless claim. Loner, supra.
In sum, because the PCRA court properly determined that Appellant's ineffectiveness claims were baseless, it did not err in dismissing Appellant's amended PCRA petition without first holding an evidentiary hearing. We therefore affirm the PCRA court's order denying Appellant post-conviction relief.