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 ...