from the PCRA Order July 25, 2016 In the Court of Common
Pleas of Chester County Criminal Division at No(s):
BEFORE: SHOGAN, OTT, JJ. and STEVENS, P.J.E. [*]
Lawrence ("Appellant") appeals from the order
entered in the Court of Common Pleas of Chester County
dismissing his first petition filed pursuant to the Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S.§
9541-9546. Upon careful review of Appellant's seven
ineffective assistance of counsel claims, we affirm.
memorandum decision disposing of Appellant's direct
appeal, we summarized the pertinent history of the
case as follows:
On the evening of January 5, 2010, Lawrence and his
girlfriend, Shanita Johnson ("Johnson"), were
sitting in the living room of Lawrence's residence,
located in Coatesville, Pennsylvania, when they heard a loud
noise and glass breaking at the back door. Lawrence
immediately went to investigate, when he saw three
individuals fleeing the scene, one of whom wore a somewhat
distinctive leather jacket with a design on the back.
Lawrence was angered by the attempted invasion of his home,
and he called a friend, Sham[aou]r Hall ("Hall"),
to assist him in locating the intruders. Hall subsequently
picked Lawrence up in Hall's vehicle and they set off in
search of the intruders. In a nearby alley, Hall and Lawrence
located a man wearing a leather jacket with a design on the
back. Thinking that this man [later identified as Ranay
Vaughn] was one of the intruders, Lawrence jumped from
Hall's moving vehicle, chased the man, and shot him
several times, causing his death.
Following the shooting, Lawrence left the area and relocated
to Georgia, where he lived under an alias. In August 2010,
police arrested Lawrence in Georgia, and he was extradited to
Pennsylvania and charged with criminal homicide and various
other crimes related to the January 5, 2010 shooting.
The matter proceeded to a jury trial, at the close of which
the jury found Lawrence guilty of first-degree murder and
persons not to possess firearms. Thereafter, the trial court
sentenced Lawrence to life in prison. Lawrence timely filed
post-sentence Motions, challenging the weight of the evidence
and seeking reconsideration of his sentence. The trial court
denied these Motions, after which Lawrence filed a timely
Notice of appeal.
Id., at 1-2.
Court affirmed judgment of sentence on August 9, 2013, and
the Pennsylvania Supreme Court denied Appellant's
petition for allowance of appeal on January 8, 2014. On
January 2, 2015, Appellant filed a pro se PCRA
petition and the PCRA court appointed counsel. On July 28,
2015, appointed counsel filed an amended petition requesting
an evidentiary hearing for only two issues raised in the
pro se petition, namely, those alleging improper
prosecutorial remarks made in opening and closing statements.
The amended petition otherwise explained counsel's
position that no merit existed to support a hearing for the
remaining fourteen pro se issues. Dissatisfied with
appointed counsel's advocacy, Appellant filed a pro
se "Petition for Stay" requesting time to
retain private counsel, which the court granted.
PCRA court continued Appellant's case until November 9,
2015, on which date private counsel entered her appearance
and filed a motion for continuance to allow her time to
prepare for an evidentiary hearing. The court granted the
motion. On January 21, 2016, counsel filed a motion for leave
to file an amended petition raising five additional issues to
the original two raised in prior counsel's amended
petition. The court granted counsel's motion and
authorized her to question witnesses on all claims presented
in her amended petition.
evidentiary hearing took place on February 1, 2016, after
which the court accepted briefs for its consideration. On May
13, 2016, the PCRA court issued a Notice of Intent to Dismiss
the matter and granted Appellant 20 days to respond.
Receiving no response from Appellant, the court dismissed
Appellant's petition on July 25, 2016, having concluded
Appellant failed to establish ineffective assistance of
counsel by either trial or appellate counsel. This timely
presents the following questions for our review:
I. WAS COUNSEL CONSTITUTIONALLY INEFFECTIVE UNDER THE SIXTH
AMENDMENT FOR FAILING TO OBJECT TO A PORTION OF THE
PROSECUTOR'S OPENING STATEMENT WHICH EXPRESSED THE
PROSECUTOR'S PERSONAL OPINION AND SET A TONE OF DRAMA,
PASSION AND PREJUDICE AGAINST THE APPELLANT AND FOR FAILING
TO SEEK A CURATIVE/CAUTIONARY INSTRUCTION DIRECTING THE JURY
TO DISREGARD THE STATEMENT?
II. WAS COUNSEL CONSTITUTIONALLY INEFFECTIVE UNDER THE SIXTH
AMENDMENT FOR FAILING TO OBJECT TO A PORTION OF THE
PROSECUTOR'S CLOSING STATEMENT WHEREIN THE PROSECUTOR
VOUCHED FOR AND GAVE HIS PERSONAL OPINION OF THE CREDIBILITY
OF THE WITNESSES AND THE APPELLANT'S GUILT?
III. WERE APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE
SIXTH AMENDMENT WERE [SIC] VIOLATED BY TRIAL COUNSEL'S
INEFFECTIVE FAILURE TO REQUEST A CORRUPT AND POLLUTED CHARGE
RELATED TO HALL'S TESTIMONY?
IV. DID APPELLATE COUNSEL VIOLATE APPELLANT'S FOURTEENTH
AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION BY ADMITTING IN
THE BRIEF TO THE SUPERIOR COURT ON DIRECT APPEAL THAT
APPELLANT WAS THE SHOOTER?
V. WAS COUNSEL CONSTITUTIONALLY INEFFECTIVE UNDER THE SIXTH
AMENDMENT FOR FAILING TO REQUEST/MOVE FOR DISCLOSURE OF AND
PRESENT TO THE JURY MATERIAL AND RELEVANT PORTIONS OF THE
VIDEOTAPE FROM THE MIDWAY BAR; DIRECT APPEALS COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE AND PRESENT A RELATED CLAIM
TH AT THE PROSECUTION FAILED TO DISCLOSE MATERIAL EVIDENCE
PURSUANT TO BRADY V. MARYLAND VIOLATING APPELLANT'S
FOURTEENTH AMENDMENT RIGHTS?
VI. WERE APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE
SIXTH AMENDMENT WERE [SIC] VIOLATED BY COUNSEL'S
INEFFECTIVE FAILURE TO TIMELY OBJECT TO THE PROSECUTOR'S
MISREPRESENTATION OF THE TESTIMONY OF THE MEDICAL EXAMINER,
VII. WERE THE APPELLANT'S RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS VIOLATED BASED UPON THE CUMULATIVE
IMPACT OF THE ABOVE ERRORS[?]
Appellant's brief at 3-4.
appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA
court's findings are supported by the record and without
legal error." Commonwealth v. Edmiston, 65 A.3d
339, 345 (Pa. 2013) (citation omitted). "[Our] scope of
review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the
prevailing party at the PCRA court level."
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012)
is presumed effective; thus, an appellant has the burden of
proving otherwise. See Commonwealth v. Wright, 961
A.2d 119, 148 (Pa. Super. 2004). "In order for Appellant
to prevail on a claim of ineffective assistance of counsel,
he must show, by a preponderance of the evidence, ineffective
assistance of counsel which ... so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place."
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
Super. 2005) (citation omitted).
To prevail on his ineffectiveness claims, Appellant must
plead and prove by a preponderance of the evidence that (1):
the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3)
Appellant suffered prejudice because of counsel's action
or inaction. With regard to the [reasonable basis] prong, we
will conclude that counsel's chosen strategy lacked a
reasonable basis only if Appellant proves that an alternative
not chosen offered a potential for success substantially
greater than the course actually pursued. To establish the
[prejudice] prong, Appellant must show that there is a
reasonable probability that the outcome of the proceedings
would have been different but for counsel's action or
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011)
(internal quotation marks and citations omitted). See
also Strickland v. Washington, 466 U.S. 668 (1984)
(holding ineffectiveness established with evidence that
counsel committed specific error or omission unsupported by
reasonable strategy and of such magnitude as to probably have
affected the outcome).
first argues that trial counsel was constitutionally
obligated to object when the prosecutor began his opening
statement by repeating an offensive statement Appellant
allegedly made in the immediate aftermath of shooting Ranay
"Fuck that nigger ain't nobody going to rob
me." Those are the words of the Defendant immediately
after he shot Ranay Vaughn 5 or 6 times. Those are the words
of the Defendant after he stalked, hunted down and killed
Ranay Vaughn leaving him dead in an alleyway in Coatesville.
Those are the words ladies and gentlemen of a cold-blooded
N.T. 2/1/16 at 8 (quoting 6/4/12, at 41). According to
Appellant, the prosecutor's statement did not inform the
jury of the background of the case or represent a fair
inference from upcoming evidence. Instead, the comments at
issue were purely prejudicial, impeding a jury's ability
to render an impartial, dispassionate verdict, Appellant
concludes. We disagree.
A prosecutor is generally allowed to vigorously present and
argue the case, as long as the comments are supported by
evidence and contain inferences reasonably derived from that
evidence. Commonwealth v. Kemp, 562 Pa. 154, 753
A.2d 1278, 1281 (2000). "The focus of this Court's
consideration of claims regarding prosecutorial misconduct is
to determine whether the defendant was deprived of a fair
trial and not whether the defendant was deprived of a perfect
trial." Id., at 1282 (citing Commonwealth
v. LaCava, 542 Pa. 160, 666 A.2d 221, 231 (1995));
see also Commonwealth v. Holloway, 524 Pa. 342, 572
A.2d 687 (1990). Thus, "prosecutorial misconduct does
not occur unless the 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." Commonwealth v. Paddy, 569 Pa.
47, 800 A.2d 294, 316 (2002).
Commonwealth v. Cuevas, 832 A.2d 388, 394 (Pa.
Cuevas, the prosecutor used the same offensive and
contemptuous words the defendant allegedly used during his
deadly beating of the victim. Reasoning that the quotation
was both undisputedly accurate and relevant to the mens
rea element of the crime, our Supreme Court perceived no
Here, the prosecution was required to prove appellant killed
Riddick with malice. The prosecutor used the same offensive
words appellant uttered to express his disdain for the victim
during the beating. "[E]vidence concerning the
relationship between the defendant and a homicide victim is
relevant and admissible for the purpose of proving ill will,
motive or malice." Commonwealth v. Myers, 530
Pa. 396, 609 A.2d 162, 164 (1992) (citing Commonwealth v.
Gibson,363 Pa.Super. 466, 526 A.2d 438, 440 (1987)).
With the established latitude afforded a prosecutor to
vigorously present his case and the need to prove beyond a
reasonable doubt each element of each crime, there was no
misconduct here. The prosecutor was merely using
appellant's exact words in the context and manner in
which he conveyed them. Likewise, the prosecutor's
imagery regarding the ...