Com. v. Glass, J.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2015
• Docket: 3401 EDA 2014
• Status: Unpublished

Opinion

J-S54021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH GLASS

Appellant No. 3401 EDA 2014

Appeal from the PCRA Order November 14, 2014 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005614-2010

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED October 6, 2015

Appellant, Joseph Glass, appeals from the order entered November 14,

2014, in the Court of Common Pleas of Bucks County, which denied his Post

Conviction Relief Act1 (“PCRA”) petition. No relief is due.

The factual history of this matter is well known to the parties, so we

rely upon the PCRA court’s recitation of the facts as set forth on pages one

to three of the March 30, 2015 opinion. Briefly, on February 10, 2011, the

trial court sentenced Glass to 10 to 24 years in prison and ordered to pay

restitution of $198,916.32, following his convictions for arson and recklessly

endangering another person. This Court affirmed Glass’s judgment of

sentence on appeal, and the Pennsylvania Supreme Court denied allocatur. ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546. J-S54021-15

See Commonwealth v. Glass, 50 A.3d 720 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013). Glass timely filed the instant PCRA

petition. The PCRA court conducted an evidentiary hearing, after which, the

court dismissed the petition. This timely appeal followed.

“On 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), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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) (citation

omitted).

In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. See 42

Pa.C.S.A. § 9543(a)(3). “[T]his Court applies a de novo standard of review

to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011) (citation omitted).

As this Court has repeatedly stated,

[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective

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reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011).

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013).

Glass argues that trial counsel was ineffective for failing to object to

instances of prosecutorial misconduct during the Commonwealth’s closing

argument, or to otherwise request the trial court issue a cautionary

instruction to the jury. We disagree. We have previously recognized that

“[n]ot every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial.” Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006). “Comments by a prosecutor 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 the defendant so they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003), quoting Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).

Furthermore, according to the Pennsylvania Supreme Court in Commonwealth v. Chmiel[, 889 A.2d 501, 543-44 (Pa. 2005)]:

In determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in [fair] response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.

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Commonwealth v. Collins, 70 A.3d 1245, 1252-53 (Pa. Super. 2013),

appeal denied, 80 A.3d 774 (Pa. 2013).

While “it is improper for a prosecutor to express a personal belief as to

the credibility of the defendant or other witnesses,” the “prosecutor may

comment on the credibility of witnesses.” Commonwealth v. Judy, 978

A.2d 1015, 1020 (Pa. Super. 2009) (citation omitted) (emphasis added).

“[W]hen assessing a claim of [prosecutorial misconduct], the appellate court

must consider whether the prosecutor made a deliberate attempt to destroy

the objectivity of the factfinder or merely summarized the evidence

presented at trial with the oratorical flair permitted during argument.”

Commonwealth v. Novasak, 606 A.2d 477, 481 (Pa. Super. 1992)

(citation omitted).

We have reviewed Glass’s issue raised on appeal, along with the briefs

of the parties, the certified record and the applicable law. Having

determined that the Honorable Diane E. Gibbon’s March 30, 2015 opinion

ably and comprehensively disposes of the issue on appeal, with appropriate

reference to the record and without legal error, we affirm based on that

opinion. See PCRA Court Opinion, 3/30/15 at 3-12.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2015

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