J-A07041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : LARRY J. ROWE : : No. 1263 MDA 2017 Appellant :
Appeal from the PCRA Order July 11, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002181-2015
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 19, 2018
Appellant Larry J. Rowe appeals from the Order entered on July 11,
2017, in the Court of Common Pleas of Lancaster County denying his first
petition filed under the Post Conviction Relief Act (PCRA).1 We affirm.
We need not reproduce the facts and procedural history of this case,
which are aptly summarized by the PCRA court in its Pa.R.A.P. 1925(a)
Opinion. See PCRA Court Opinion, filed 9/18/17, at 1-4.
In his brief, Appellant presents the following questions for our review:
A. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN TRIAL COUNSEL FAILED TO OBJECT, SEEK A CAUTIONARY INSTRUCTION, FILE A MOTION IN LIMINE, AND/OR SEEK A MISTRIAL DUE TO REPEATED REFERENCES TO DEFENDANT'S ____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546. ____________________________________ * Former Justice specially assigned to the Superior Court. J-A07041-18
PRIOR BAD ACTS, PAROLEE STATUS, AND PRISON STATUS DURING TRIAL IN THAT DEFENDANT'S STATE PAROLE AGENT AND VARIOUS POLICE OFFICERS REFERRED TO HIM AS DELINQUENT AND AN ABSCONDER, REFERENCED MISSED APPOINTMENTS WITH PAROLE AGENT, DEFENDANT'S CONSTANT DRUG USE, BEING TRANSPORTED TO YORK COUNTY PRISON AND INCARCERATED IN LANCASTER COUNTY PRISON, THERE WERE ITEMS IN DEFENDANT'S ROOM AND KITCHEN THAT WERE CONNECTED TO CRIMINAL ACTIVITY (DRUGS AND PACKAGING MATERIAL) AND THE FIREARM FOUND UNDER THE PILLOW WAS REPORTED STOLEN. THE AFORESAID TRIAL ATTORNEY OMISSIONS WERE OF ARGUABLE MERIT, THERE WAS NO REASONABLE BASIS FOR NOT OBJECTING, SEEKING A CURATIVE INSTRUCTION, FILING A MOTION IN LIMINE TO PRECLUDE PRIOR BAD ACTS, OR DEMANDED A RULE 404(B)(3) MOTION FROM THE COMMONWEALTH THAT WOULD HAVE PREVENTED ANY REFERENCES TO AFORESAID OBJECTIONABLE AREAS AND DEFENDANT WAS PREJUDICED BY THE INTRODUCTION OF THIS TESTIMONY/EVIDENCE SUCH THAT HE IS ENTITLED TO A NEW TRIAL.
B. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN TRIAL COUNSEL FAILED TO OBJECT, REQUEST A MISTRIAL AND/OR SEEK A CURATIVE INSTRUCTION DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT BY THE COMMONWEALTH WHEN PROSECUTOR PRESENTED PERSONAL OPINION IN THE FORM OF CALLING DEFENDANT A LIAR AND ALL COMMONWEALTH WITNESSES ARE NOT LIARS. THE AFOREMENTIONED TRIAL ATTORNEY OMISSIONS WERE OF ARGUABLE MERIT, THERE WAS NO REASONABLE BASIS FOR NOT OBJECTING, REQUESTING A MISTRIAL AND/OR SEEKING A CURATIVE INSTRUCTION DUE TO THE PROSECUTORIAL MISCONDUCT AND DEFENDANT WAS PREJUDICED BY THIS COMMONWEALTH CLOSING ARGUMENT SUCH THAT HE IS ENTITLED TO A NEW TRIAL.
C. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN TRIAL COUNSEL'S FAILURE TO OBJECT, SEEK A
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CAUTIONARY/CURATIVE INSTRUCTION, FILE A MOTION IN LIMINE AND/OR SEEK A MISTRIAL DUE TO REPEATED REFERENCES TO DEFENDANT'S PRIOR BAD ACTS AND THE PROSECUTORIAL MISCONDUCT IN THE FORM OF PERSONAL OPINION DURING CLOSING ARGUMENT HAD THE CUMULATIVE EFFECT OF PREJUDICE TO DEFENDANT. THE AFOREMENTIONED TRIAL ATTORNEY OMISSIONS WERE OF ARGUABLE MERIT, AS THERE WAS NO REASONABLE BASIS FOR NOT OBJECTING, SEEKING A CURATIVE/CAUTIONARY INSTRUCTION, FILING A MOTION IN LIMINE, DEMANDING A COMMONWEALTH RULE 404(B)(3) MOTION OR SEEKING A MISTRIAL. DEFENDANT WAS PREJUDICED BY THE CUMULATIVE EFFECT OF THE AFORESAID TRIAL ATTORNEY OMISSIONS SUCH THAT HE IS ENTITLED TO A NEW TRIAL.
Brief for Appellant at 1-3.
When reviewing an order denying PCRA relief, this Court must discern
whether the record supports the PCRA court's determination and whether the
PCRA court's determination is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa.Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be
disturbed unless there is no support for the findings in the certified record. Id.
(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[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 or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him.”
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[Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,] 886 [ (Pa. 2010) ] (citing Strickland[ v. Washington, 104 S.Ct. 2053 (1984)] ). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali, supra. Where matters of strategy and tactics are concerned, “[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, quotation marks, and citation omitted). “ ‘[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.’ ” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 311-12 (2014).
After careful review of the parties' briefs, the certified record on appeal,
and relevant case law, we conclude that the trial court's opinion, authored by
Judge Donald R. Totaro, cogently disposes of each issue Appellant has raised
on appeal. We, therefore, affirm the trial court's Order denying Appellant’s
PCRA petition without a hearing and adopt the well-reasoned opinion of the
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trial court as the decision of this Court. We direct that a copy of the trial court's
September 18, 2017, Opinion be attached to any future filings in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/19/2018
-5- Index of Record Circulated 03/01/2018 09:49 AM
OCTOBER 13, 2017 RE: LARRY J. ROWE CP CR NO: CP-36-CR-0002181-2015 SUPERIOR CR NO: 1263 MDA 2017
INDEX OF RECORD – OPINION
1. INDEX OF RECORD
2. OPINION Opinion
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL
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rr, 0, :::0 PA R.A.P. 1925 OPINION C, -0 C> c 'Z BY TOTARO, J. z. --l (;,.) •• -� :< '(;Jl 0 (ft
Before the Superior Court of Pennsylvania is an appeal from an order entered oij;Tuly 11,
2017, dismissing the Amended Petition for Post-Conviction Relief Pursuant to the Post
Conviction Relief Act ("PCRA"), filed by Randall L. Miller, Esquire ("PCRA counsel"), on
behalf of Larry J. Rowe ("Appellant"). On August 10, 2017, Appellant filed a Notice of Appeal.
For the reasons that follow, the appeal should be denied.
PROCEDURAL AND FACTUAL BACKGROUND
On April 2, 2015, while state parole agents were executing an arrest warrant for
Appellant at 234 E. Fulton Street#1, Lancaster, Pennsylvania, officers observed a marijuana
pipe, clear plastic bag containing marijuana, and copper mesh wire in plain view. See Search
Warrant Affidavit of Probable Cause. While securing the residence, officers also saw in plain
view a box of clear plastic baggies in the bedroom and a pizza box in the kitchen with a delivery
label marked "31 Mar 15, Larry ROWE, 234 E Fulton St. apt# 1 ph# 717-406-5039." Id.
Based on this information, a search warrant was obtained for the residence, at which time officers
found a Sig Sauer .380 semi-automatic handgun with one round in the chamber and a magazine
holding five additional rounds of ammunition. See Receipt/Inventory of Seized Property. On April 8, 2015, Appellant was charged with persons not to possess, use, manufacture,
control, sell, or transfer a firearm; receiving stolen property; possession of oxycontin; possession
of diazepam; possession of marijuana; and possession of drug paraphernalia. See Police
Criminal Complaint. 1 According to charging documents, Appellant was the sole occupant of the
first floor living area where the firearm was found and he was prohibited from possessing a
firearm due to a prior burglary conviction in 2002. See Affidavit of Probable Cause.
On May 11, 2016, following a suppression hearing,2 Appellant proceeded to trial by jury
on the sole count of persons not to possess, use, manufacture, control, sell, or transfer a firearm.
(Notes of Testimony at 4-5) (hereinafter "N.T."). Appellant was found guilty. Id. at 359. On
July 27, 2016, after completion of a pre-sentence investigation report, Appellant was ordered to
undergo imprisonment in the state correctional institution for a period of not less than five years
nor more than ten years, which was within the standard range of the sentencing guidelines. See
Sentencing Guidelines Worksheet; Sentencing Order. The remaining counts were dismissed.
See Sentencing Order.
On August 5, 2016, trial counsel filed a post-sentence motion alleging that the evidence
was insufficient to support the conviction and the guilty verdict was against the weight of the
1 18 Pa.C.S.A. § 6105(a)(l); 18 Pa.C.S.A. § 3925(a); 35 P.S. § 780-113(a)(16); 35 P.S. § 780- 113(a)(16); 35 P.S. § 780-113(a)(31); 35 P.S. § 780-113(a)(32); respectively. 2 On December 17, 2015, Michael V. Marinaro, Esquire ("trial counsel") filed an Omnibus Pretrial Motion and Motion to Suppress Evidence alleging the residence was unlawfully searched while police were executing an arrest warrant on Appellant, and therefore any items observed during execution of the arrest warrant or items seized based on the subsequent illegal search warrant should be suppressed. See Omnibus Pretrial Motion. Following the suppression hearing, the court found that officers were properly in the residence to execute an arrest warrant on Appellant when they saw contraband in plain view, and from those observations the officers had sufficient probable cause to obtain a search warrant for the residence. (Notes of Testimony, Suppression Hearing at 81-87). Thus, Appellant's Motion was denied. Id. at 87.
2 evidence. See Motion. The Motion also requested a modification of sentence. Id. That motion
was denied on August 8, 2016. See 8/8/16 Order. On August 12, 2016, trial counsel filed a
Motion to Withdraw as Counsel, which was granted on August 18, 2016. See Motion; 8/18/16
Order. On September 7, 2016, MaryJean Glick, Esquire ("appellate counsel") filed a Notice of
Appeal to the Superior Court of Pennsylvania, and on September 28, 2016, counsel filed a
Statement of Errors Complained of on Appeal alleging the trial court erred in denying
Appellant's suppression motion. See Statement. On October 14, 2016, the appeal was
discontinued. See Notice of Discontinuance of Action.
On January 12, 2017, Appellant timely filed a prose PCRA motion. 3 PCRA counsel was
appointed on January 20, 2017, and counsel filed an amended PCRA petition on March 21, 2017
alleging that trial counsel provided ineffective assistance for failing to: (1) object, seek a
cautionary instruction, file a motion in limine, or seek a mistrial due to repeated references to
Appellant's prior bad acts and prison status; (2) object, request a mistrial, or seek a cautionary
instruction due to prosecutorial misconduct during closing argument in the form of personal
opinion; (3) make a motion for a demurrer or directed verdict of acquittal; (4) object, file a
motion in limine, or seek a cautionary instruction regarding Appellant's predicate prior
convictions for burglary and felony drugs, and deliberately questioning Appellant on said
convictions; and (5) object to the trial court's written submission of jury instructions to the jury.
See Amended Petition for Post-Conviction Relief Pursuant to the Post-Conviction Relief Act.
3 In his pro se Motion, Appellant alleged trial counsel provided ineffective assistance of counsel for "failing to object to an illegal search and seizure where the search warrant video clearly establishes that the police officers could not have viewed the contents of the bag that served as a basis for the search warrant without first opening the bag illegally[.]" See PCRA Motion. Appellant further alleged trial counsel was ineffective for failing to object to the court's instruction on constructive possession. Id.
3 Pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, this court
conducted an independent review of the record and concluded the amended PCRA petition was
patently frivolous, the allegations were not supported by the record, and there were no genuine
issues concerning any material fact. Therefore, on June 9, 2017, the court provided notice of its
intent to dismiss Appellant's amended petition without a hearing for the reasons stated therein.
See Rule 907 Notice. On July 11, 2017, after reviewing Appellant's Motion for Reconsideration
of Rule 907 Notice and determining it did not contain anything new for the court's consideration
that would result in a change to the findings as detailed in the Rule 907 Notice, the court entered
an order denying the amended PCRA petition. See 7/11/17 Order.
On August 10, 2017, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania. A Statement of Errors Complained of on Appeal ("Statement") was filed on
August 31, 2017, alleging the PCRA court's decision to dismiss Appellant's amended PCRA
petition without a hearing was an abuse of discretion because: (1) trial counsel failed to object,
seek a cautionary instruction, file a motion in limine, and/or seek a mistrial due to repeated
references to Appellant's prior bad acts, parolee status, and prison status during trial; (2) trial
counsel failed to object, request a mistrial, and/or seek a curative instruction due to alleged
prosecutorial misconduct during closing argument by the Commonwealth in the form of personal
opinion; and (3) trial counsel's failure to object, seek a cautionary/curative instruction, file a
motion in limine, and/or seek a mistrial due to repeated references to Appellant's prior bad acts
and the prosecutorial misconduct in the form of personal opinion during closing argument had
the cumulative effect of prejudice to Appellant. See Statement. This opinion is written pursuant
to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
4 DISCUSSION
To obtain relief under the PCRA,a petitioner must plead and prove by a preponderance
of the evidence that: (1) he has been convicted of a crime under the laws of this Commonwealth
and is currently serving a sentence of imprisonment,probation or parole for that crime; (2) the
conviction resulted from one or more of the statutorily enumerated errors; (3) the allegation of
error has not been previously litigated or waived; and (4) the failure to litigate the issue prior to
or during trial or on direct appeal could not have been the result of any rational,strategic or
tactical decision by counsel. 42 Pa.C.S.A. § 9543.
Ineffective assistance of counsel is a statutorily enumerated error under the PCRA. 42
Pa.C.S.A. § 9543 (a)(2)(ii). To prevail on a claim of ineffective assistance of counsel,a
petitioner must show that "(1) the underlying claim is of arguable merit; (2) the particular course
of conduct pursued by counsel did not have some reasonable basis designed to effectuate his
interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the
outcome of the proceedings would have been different." Commonwealth v. Lambert, 797 A.2d
232,243 (Pa. 2001) (emphasis added); see also Stricklandv. Washington, 466 U.S. 668 (1984).
Defense counsel is presumed to be effective,and the burden of proving constitutional
ineffectiveness of counsel rests on a defendant. Commonwealth v. Burno, 94 A.3d 956, 972 (Pa.
2014). The failure by a petitioner to address any of the three prongs will defeat an ineffective
assistance of counsel claim. Commonwealth v. Walker, 36 A.3d 1,7 (Pa. 2011).
A court is not required to analyze the elements of an ineffective assistance of counsel
claim in any particular order,but may proceed first to any element of the test where a claim may
fail. Commonwealth v. Hannibal, 156 A.3d 197,207 (Pa. 2016). If the court begins by
5 determining the underlying claim is meritless, trial counsel may not be found ineffective and
there is no need to evaluate the other required elements of ineffective assistance of counsel. Id.
When determining whether the underlying claim is of arguable merit,the threshold
inquiry is whether the issue/argument/tactic which forms the basis for the assertion of
ineffectiveness is of arguable merit. Commonwealth v. Smith,_ A.3d _ (Pa. Super. 2017).
"Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Id
(quoting Commonwealth v. Poplawski, 852 A.2d 323,327 (Pa. Super. 2004).
When determining whether the particular course of conduct chosen by counsel had a
reasonable basis designed to effectuate a defendant's interest,counsel is given broad discretion to
determine trial tactics and strategy. Commonwealth v. Fowler, 703 A.2d 1027, 1029 (Pa. 1997).
"An evaluation of counsel's performance is highly deferential, and the reasonableness of
counsel's decisions cannot be based on the distorting effects of hindsight." Commonwealth v.
Kelley, 136 A.3d 1007,1012 (Pa. Super. 2016) (quoting Commonwealth v. Saranchak, 866 A.2d
292,304 (Pa. 2005). A PCRA petitioner must prove,at a minimum,that "an alternative not
chosen offered a potential for success substantially greater than the course actually pursued."
Commonwealth v. Johnson, 139 A.3d 1257,1276 (Pa. 2016). Boilerplate allegations and bald
assertions are not sufficient. Commonwealth v. Paddy, 15 A.3d 431,443 (Pa. 2011). The
applicable test is not whether alternative strategies were more reasonable employing a hindsight
evaluation of the record,but whether counsel's decision had any reasonable basis to advance the
petitioner's interests. Commonwealth v. Mason, 130 A.3d 601,618 (Pa. 2015).
When determining whether there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel's alleged ineffectiveness,a petitioner
6 must establish resulting prejudice or the claim will fail. Commonwealth v. Miller, 987 A.2d 638,
648-49 (Pa. 2009). A reasonable probability that the result would have been different is a
probability that is sufficient to undermine confidence in the outcome of the proceedings. Burno,
94 A.3d at 972. A petitioner must show that ineffective assistance of counsel so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Whitney, 708 A.2d 471,475 (Pa. 1998). Unsupported speculation will
not suffice. Commonwealth v. Reid, 99 A.3d 427,468 (Pa. 2014).
Finally,while Appellant alleges the PCRA court abused its discretion by dismissing the
amended PCRA petition without a hearing,a PCRA court is only required to hold a hearing
where the petition or the Commonwealth's answer raises an issue of material fact.
Commonwealth v. Eichinger, 108 A.3d 821,849 (Pa. 2014). In Commonwealth v. Brown,_
A.3d _ (Pa. Super. 2017),where the PCRA court denied an appellant's amended PCRA
petition without an evidentiary hearing on a claim of ineffective assistance of counsel after
finding the issues presented therein lacked arguable merit,the Superior Court held that no further
purpose would have been served by an evidentiary hearing because appellant presented no issues
of material fact. Id. In Hannibal, supra, the Supreme Court held that "[t]o obtain reversal of a
PCRA court's decision to dismiss a petition without a hearing,an appellant must show that he
raised a genuine issue of fact which,if resolved in his favor,would have entitled him to relief, or
that the court otherwise abused its discretion in denying a hearing." 156 A.3d at 207 (quoting
Commonwealth v. D'Amato, 856 A.2d 806,820 (Pa. 2004); see also Pa.R.Crim.P. 907(1).4
4 In responding to Appellant's amended PCRA petition, the Commonwealth initially agreed an evidentiary hearing should be held on Appellant's claim that trial counsel was ineffective for failing to object, seek a curative instruction, file a motion in limine, and/or seek a mistrial in relation to evidence of
7 I. Appellant is not entitled to relief based on trial counsel's failure to object, seek a cautionary instruction, file a motion in limine, and/or seek a mistrial due to repeated references to Appellant's prior bad acts, parolee status, and prison status during trial.
Evidence of prior bad acts is not admissible to prove character or to show conduct in
conformity with that character. Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012).
However,evidence of other crimes may be relevant and admissible where such evidence was part
of the chain or sequence of events which became part of the history of the case,and formed part
of the natural development of the facts. Commonwealth v. Green, 76 A.3d 575,583-84 (Pa.
Super. 2013). This evidence is admissible to complete the story of the crime on trial,by proving
its immediate context of happenings near in time and place. Commonwealth v. Perkins, 546
A.2d 42,46 (Pa. 1988).
There is no need to sanitize the evidence so as to deprive the Commonwealth of their
ability to prove a defendant's guilt beyond a reasonable doubt. Commonwealth v. McCutchen,
454 A.2d 547,549 (Pa. 1982). Evidence of other crimes is not precluded merely because it
prejudices the defense. Commonwealth v. Brown, 414 A.2d 70,75 (Pa. 1980). All evidence of
guilt is prejudicial to the defense, and the rules of evidence only prohibit unfair prejudice.
Commonwealth v. Hairston, 84 A.3d 657,670 (Pa. 2014). In Commonwealth v. Robinson, 480
A.2d 1229 (Pa. Super. 1984),there was no abuse of discretion in admitting prior bad acts
evidence under the natural development of facts exception where reference to prior criminal
conduct was necessary to complete the picture,was not offered to prove a general criminal
disposition,and the Commonwealth did not attempt to establish details. Id. at 1232-33.
Appellant's prior bad acts. See Commonwealth's Answer. However, the Commonwealth then asserted that a hearing would show the issue was lacking in merit. Id. As such, the Commonwealth did not raise an issue of material fact or acknowledge that Appellant had raised an issue of material fact.
8 In the instant case, Appellant complains his state parole agent testified that Appellant
absconded, missed appointments, and could not be found at his approved address. Appellant also
objects to.reference to his drug use by his parole officer, the trip to York County Prison after his
arrest, incarceration in Lancaster County Prison, items found in the house during the arrest and
search which appeared to be connected to criminal activity, and the fact that the firearm he was
charged with possessing was stolen. However, all of the above were part of the chain or
sequence of events that formed the history of this case and were part of its natural development.5
The search for Appellant began because he was on parole, he missed appointments, he
was no longer living at his approved residence, his whereabouts were unknown, and he was using
drugs. (N.T. at 49-55, 61-63, 68-70). Consequently, an arrest warrant was issued for violating
parole, not for new criminal charges. Id at 52-53. Appellant's conduct in this regard was part of
the chain of events that formed the history of this case and explained why officers were at the
residence to arrest Appellant when the firearm was found. Without this information, the jury
would be left to speculate as to why police were at the residence and question whether their
conduct was lawful. The testimony that Appellant was not living at his approved residence was
also relevant to prove his constructive possession of the firearm, by showing circumstantially that
he was more than just a visitor to the house where the firearm was found. 6
In Commonwealth v. Miller, 450 A.2d 40 (Pa. Super. 1982), the Superior Court held that
evidence of a defendant's arrest by a parole officer for parole violations was admissible to
5 An ineffectiveness claim rooted in trial counsel's failure to file a motion in limine is patently frivolous when the evidence is probative. Commonwealth v. Copenhefer, 719 A.2d 242,254 (Pa. 1998). 6 Appellant testified that he was living at his approved address and was a visitor to 234 E. Fulton Street, #1, when the gun was found. (N.T. at 293-97).
9 demonstrate the circumstances surrounding the arrest,and to place the charge of resisting arrest
in its proper context. Id at 43-44. Moreover,testimony from a parole officer that he knew the
defendant did not prejudice the defendant even though the testimony may have implied the
defendant had a prior criminal record. Commonwealth v. Carpenter, 515 A.2d 531,534 (Pa.
1986). As such,this evidence was relevant and admissible in the present case.
During Appellant's arrest police found marijuana and a marijuana pipe in plain view,
which was used to obtain a search warrant for the residence. (N.T. at 99,113-16). While
executing the search warrant,the firearm in question was found. Id at 116,162-63. Finding
those items was admissible to establish the sequence of events,natural development of the case,
complete the story of the crime on trial,and provide context for the reason police obtained a
search warrant which led to discovery of the firearm. In Commonwealth v. Johnson, 849 A.2d
1236 (Pa. Super. 2004),a gun found during a proper inventory search was admissible where the
defendant was arrested for marijuana found in plain view. Id at 1238-39. Likewise,drugs and
drug paraphernalia found in plain view during execution of the arrest warrant are admissible to
explain why police obtained the search warrant which led to discovery of the firearm.
Assuming,arguendo, Appellant's drug use or possession of items connected to drug use
did not form the history of this case,counsel's failure to object did not prejudice Appellant
because the references were infrequent and innocuous in the context of the overall trial. See
Commonwealth v. King, 57 A.3d 607,624-25 (Pa. 2012). In explaining why police obtained a
search warrant,witnesses testified to items connected to criminal activity found in the house.
(N.T. at 99,113,137,155,266). In response to trial counsel's question intending to show
Appellant was wanted for technical violations rather than new charges,the parole agent
10 explained she also had problems with his repeated drug use. Id at 61-63,69-70. Appellant was
never questioned about his drug use or the drugs found at the residence. Id at 272-86,293-300.
Identifying the firearm as stolen was relevant and admissible in the present case to dispel
any notion that the firearm lawfully belonged to the owner of the residence or any other
occupant.7 See generally Commonwealth v. Corradino, 588 A.2d 936,937 (Pa. Super. 1991)
(whether a gun was reported stolen was relevant involving the charge of violating the Uniform
Firearms Act because if it had not been stolen it was more likely that appellant had violated the
statute). Assuming,arguendo, reference to the firearm as being stolen was not part of the chain
or sequence of events that formed the history of this case and was not part of its natural
development,just because Appellant was in possession of the firearm does not automatically lead
to the conclusion that he is the one who stole the firearm,and the Commonwealth never made
such an inference. Counsel is not ineffective for failing to object to mere passing references to
criminal activity where evidence of guilt is overwhelming such that no prejudice results from the
references. Commonwealth v. Blystone, 725 A.2d 1197,1204-05 (Pa. 1999).
Although there was testimony that police obtained a DNA sample from Appellant while
he was in Lancaster County Prison,in order to determine whether his DNA was on the firearm in
question,8 there is no rule prohibiting reference to a defendant's current incarceration while
awaiting trial for the crimes charged. Commonwealth v. Johnson, 838 A.2d 663,680 (Pa. 2003).
7 Detective Eric McCrady, LCBP, testified that the firearm was stolen on August 8, 2012. (N.T. at 167). In his testimony, Appellant identified a large number of individuals who either lived at or visited the residence at 234 E. Fulton Street, #1, Lancaster, Pennsylvania, in an attempt to suggest the firearm in question belonged to someone other than himself. Id. at 276-84. 8 (N.T. at 121-23, 270-71).
11 .;y
In Commonwealth v. Horne, 89 A.3d 277 (Pa. Super. 2014), the Superior Court held the trial
court did not abuse its discretion in admitting testimony that the defendant was incarcerated
because the testimony was not unduly prejudicial and the jury could reasonably infer the
defendant was incarcerated on the instant charges rather than some previous offense. Id. at 284;
see also Copenhefer, 719 A.2d at 253 (Supreme Court rejected the appellant's argument that trial
counsel was ineffective for failing to object to a prosecutor's comments that allegedly allowed
the jury to infer he was incarcerated on prior unrelated criminal misconduct rather than on the
pending charges).
Regarding the limited reference to Appellant's incarceration in York County Prison for
the probation violation after his arrest on this charge,9 the Supreme Court has held that no
reference may generally be made to a defendant's prior arrests or incarceration. Johnson, 838
A.2d at 680. However, evidence of incarceration for prior offenses was admissible where a
defendant who escaped from prison was subsequently charged with additional crimes, because
this was part of the history of the event on trial and was part of its natural development.
Commonwealth v. Detrie, 397 A.2d 2, 3-4 (Pa. Super. 1979). Presently, Appellant's prior
criminal convictions for burglary and felony drug offenses were properly before the jury to
establish a violation of 18 Pa.C.S.A. § 6105, and the court gave cautionary instructions on the
limited use of those prior convictions. (N.T. at 268-69, 345-47). Thus, Appellant was not
prejudiced if the jury believed he was incarcerated for violating parole on those prior offenses.
In response to PCRA counsel's assertion that trial counsel should have requested a
general curative instruction, counsel's failure to request a cautionary instruction regarding
9 (N.T. at 59-60, 89).
12 evidence of other crimes or prior bad acts does not constitute per se ineffectiveness, but rather a
defendant must still satisfy each of the three prongs of the test for ineffective assistance of
counsel. Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). In Commonwealth v. Solano,
129 A.3d 1156 (Pa. 2015), defense counsel did not provide ineffective assistance by failing to
ask for a curative instruction regarding a comment about the defendant's prior charges where the
reference was fleeting and counsel could have wished to downplay it rather than bringing it to the
jury's attention. Id. at 1178. In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), there
was no merit to a claim of ineffective assistance of counsel where the bad acts evidence appellant
complained of were not graphic, inflammatory, or extensive. Id. at 306. In the present case the
references were fleeting and they were not graphic, inflammatory, or extensive. Therefore, trial
counsel was not ineffective for declining to ask for a curative instruction.
As to PCRA counsel's argument that trial counsel should have requested a mistrial, a
motion for mistrial is appropriate "where the alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial." Commonwealth v. Jones, 668 A.2d 491, 503 \ (Pa. 1995). A trial is impartial or unfair where an event forms in the jurors' 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. Chmiel, 889 A.2d 501, 542 (Pa. 2005) (internal
quotation and citation omitted). In this case, the alleged prejudicial testimony did not deprive
Appellant of a fair and impartial trial, nor form in the jurors' minds a fixed bias or hostility
toward Appellant that impeded their ability to weigh the evidence objectively, as evidenced by
the fact that the jury did not return with a quick verdict of guilty, but rather requested further
clarification in the law through verbal and then written instructions. (N.T. at 353-58).
13 In the case sub judice, the testimony Appellant believes to be objectionable was probative
as part ofthe history ofthe case. Moreover,it was not offered to prove Appellant's general
criminal disposition,the Commonwealth did not attempt to establish details,and it was fleeting.
Therefore,Appellant has failed to show that his underlying claim is ofarguable merit.
Even ifAppellant has established his underlying claim is ofarguable merit,he has failed
to show there is a reasonable probability the outcome ofthe proceedings would have been
different but for counsel's ineffectiveness. Trooper Richard Drum ofthe Pennsylvania State
Police testified that he entered the residence of234East Fulton Street,Lancaster, Pennsylvania,
on April 2,2015,and found Appellant alone in a bedroom on the first floor. (N.T. at 95-96).
Appellant was laying in bed sleeping with his head on a pillow. Id. at 97-99. State parole agent
Larry Smith testified that when he arrived at the residence he went into a bedroom where he
observed Appellant in the custody ofTrooper Drum. Id at 86-88. No one other than Appellant
and police officers were in the bedroom at that time. Id. at 59,90,299.
John McNabb testified that he was the owner ofthe residence at 234East Fulton Street,
Lancaster,Pennsylvania,and Appellant lived on the first floor. (N.T. at 73-75). Officer Andrew
Mease ofthe Lancaster City Bureau ofPolice ("LCBP") testified he was aware that Appellant
had been living at 234East Fulton Street,Lancaster,Pennsylvania,during March and early April
of2015. Id at 112. Police found a Pennsylvania identification card belonging to Appellant in
the residence,although they did not recall where it was found. (N.T. at 118-19, 131;
CommonwealthExhibit#4). Police also found a pizza box in the kitchen with a delivery label
dated March 31,2015,the address of234E Fulton St. Apt#1,and Appellant's name on the
label. (N.T. at 119-20,131; CommonwealthExhibit#5).
14 On April 2, 2015, Officer Adam Flurry (LCBP) responded to 234 East Fulton Street,
Lancaster, Pennsylvania, and secured the residence until police could obtain a search warrant.
(N.T. at 137). According to Officer Flurry, no one entered or exited the specific area where the
search warrant was later executed or the gun was found. Id. at 138-39. Shortly thereafter,
Officer Mease secured a search warrant for the residence. Id at 113-15.
After the search warrant was obtained, Detective Eric McCrady (LCBP) participated in a
search of the residence. (N.T. at 161). While searching the bedroom where Appellant was
previously located, McCrady found a metallic.purple,Sig Sauer .380 caliber pistol on the bed
where Drum indicated Appellant had been sleeping, which was tucked under the blue pillow
where Drum testified Appellant had his head. Id. at 162. Five rounds were in the magazine and
one round was seated in the chamber ready to be fired. Id. at 163-64.
Officer James Boas testified that Appellant had prior convictions for delivery of cocaine,
delivery of marijuana, and burglary. (N.T. at 266-67). Counsel also stipulated to those
convictions, and the court instructed the jury that they were to consider these prior convictions
only as proof of an element of the specific crime of person not to possess or control a firearm. Id
at 268-69. These convictions rendered Appellant ineligible to possess a firearm. Id. at 270.
After discounting all testimony Appellant finds to be objectionable, this properly
admitted evidence did prove beyond a reasonable doubt that Appellant was in constructive
possession of the firearm. Appellant was alone in a bedroom where the firearm was found,
police found the firearm in the bed where Appellant was sleeping, and the firearm was located
underneath the pillow where Appellant was resting his head. Furthermore, Appellant was not
allowed to possess that firearm due to his previous convictions for burglary and felony drug
15 distribution. Therefore, Appellant has failed to show that but for counsel's ineffectiveness there
is a reasonable probability the outcome of the proceedings would have been different.
II. Appellant is not entitled to relief based on trial counsel's failure to object, request a mistrial, and/or seek a curative instruction due to alleged prosecutorial misconduct during closing argument by the Commonwealth in the form of personal opinion.
Appellant claims the prosecutor engaged in prosecutorial misconduct by expressing her
personal belief as to witness credibility. See Statement. To succeed on this claim, Appellant
must demonstrate the prosecutor's actions violated a statutorily or constitutionally protected right
such as the privilege against compulsory self-incrimination, fair trial, or due process. Busanet,
54 A.3d at 64. To constitute a due process violation, "the prosecutorial misconduct must be of
sufficient significance to result in the denial of the defendant's right to a fair trial." Id.
The prosecutor in the present case told the jury in summation that it was up to them to
decide the credibility of witnesses. (N.T. at 325-26). In determining Appellant's truthfulness,
she told the jury they may consider his prior burglary conviction as a crime of dishonesty. Id. at
325. The prosecutor then stated, "I mean, he has every purpose to be -- to lie here today. Every
purpose. Every witness I put on there, no reason to lie whatsoever about any of this." Id. at 326.
The court then provided the following instruction to the jury pursuant to Pa. SSJI (Crim) 3.09:
The defendant took the witness stand in this case as a witness. In considering the defendant's testimony, you are to follow the general instructions I already gave you for judging the credibility of any witness. You should not disbelieve the defendant's testimony merely because he is the defendant. In weighing his testimony, however, you may consider the fact that he has a vital interest in the outcome of this trial. You may take the defendant's interest into account just as you would the interest of any other witness along with all other facts and circumstances bearing on credibility in ··· deciding what weight his testimony deserves.
(N.T. at 341-42).
I The prosecutor did not offer her personal opinion on the credibility of Appellant or any
other witness. Rather, the prosecutor's comments were made in the context of summarizing the
law on credibility, how crimen falsi crimes may be used in assessing credibility, and how the jury
may consider Appellant's vital interest in the outcome of the trial when determining whether he
was being truthful. As such, this argument did not violate a constitutionally or statutorily
protected right and counsel will not be deemed ineffective for failing to raise a meritless claim. 10
Assuming, arguendo, the prosecutor's comments were prejudicial, a defendant must
show the prejudice was not cured by the court's instructions, counsel did not have a reason for
not objecting to the remarks, and counsel's failure to object denied the defendant a fair trial.
Commonwealth v. Thompson, 660 A.2d 68, 75 (Pa. Super. 1995). The prejudicial effect of
remarks can be cured by a trial court's instruction to the jury that counsel's closing arguments are
not evidence. Id. at 76. Presently, the trial court instructed the jury on two separate occasions
that counsel's closing arguments were not to be considered as evidence. (N.T. at 301, 344-45).
Therefore, any prejudicial effect of the remarks was cured by the trial court's instruction.
III. Appellant is not entitled to relief based on the cumulative effect of alleged prejudice from trial counsel's failure to object, seek a cautionary instruction, file a motion in limine, and/or seek a mistrial due to references to Appellant's prior bad acts or prosecutorial misconduct in the form of personal opinion during closing argument.
Appellant argues that trial counsel's failure to object, seek a cautionary instruction, file a
motion in limine, and/or seek a mistrial due to repeated references to Appellant's prior bad acts
10 In Commonwealth v. Graham, 560 A.2d 129 (Pa. 1989), counsel was not ineffective for failing to object when the prosecutor expressed his personal opinion about the credibility of the defendant during closing argument. Id. at 132-33. Moreover, trial counsel was not ineffective for failing to object to the prosecutor's closing argument because the prosecutor may comment on the credibility of witnesses. Commonwealth v. Lawrence, _ A.3d _ , (Pa. Super. 2017).
17 and prosecutorial misconduct in the form of personal opinion during closing argument had the
cumulative effect of prejudice to Appellant. See Statement.
If counsel is found to be ineffective in more than one instance, the question of whether
prejudice resulted may be tallied cumulatively. Commonwealth v. Johnson, 139 A.3d 1257,
1287-88 (Pa. 2016). However, no number of failed claims may collectively warrant relief if they
fail to do it individually. Id. at 1287. Furthermore, even where there is prejudice in one out of
seven claims of ineffectiveness, there is no cumulation of prejudice to consider and the appellant
will not be entitled to relief. Lawrence, supra.
In the instant case, because trial counsel was not ineffective in any individual instance, all
of Appellant's failed claims collectively cannot warrant relief. Assuming, arguendo, trial
counsel did provide ineffective assistance of counsel regarding prior bad acts, Appellant is not
entitled to relief where there was ineffective assistance in just one of his claims for which there
was no resulting prejudice. Therefore, Appellant's claim in this regard must be denied.
CONCLUSION
Based on a thorough review of the record, the PCRA court properly concluded that
Appellant's amended PCRA motion was patently frivolous, the allegations were not supported by
the record, and there were no genuine issues concerning any material fact. Moreover, a hearing
was not necessary to make such a determination. Consequently, this appeal should be denied and
the PCRA court should be affirmed.
BY THE COURT
September 18, 2017 DATE o.,,__... A· r� DONALD R. TOTARO, JUDGE
18 ' . �.
ATTEST:
Copies: Amara M. Riley, Esquire, Assistant District Attorney Randall L. Miller, Esquire, Counsel for Appellant ··1.. .... ·