Commonwealth v. Lawrence

165 A.3d 34

COMMONWEALTH of Pennsylvania

v.Dante LAWRENCE, Appellant

No. 2633 EDA 2016

Superior Court of Pennsylvania.

Submitted January 9, 2017

Filed May 30, 2017

Teri B. Himebaugh, Philadelphia, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: SHOGAN, OTT, JJ. and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Dante 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.

In our memorandum decision disposing of Appellant's direct appeal,¹ 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.

This 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.

The 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.

Appellant's 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 appeal followed.

Appellant 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, ERICA WILLIAMS?

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.

"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, 619 Pa. 549, 65 A.3d 339, 345 (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, 614 Pa. 159, 36 A.3d 121, 131 (2012) (citation omitted).

Counsel is presumed effective; thus, an appellant has the burden of proving otherwise. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 (Pa. Super. 2008). "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 inaction.

Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 260 (2011) (internal quotation marks and citations omitted). See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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).

Appellant 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 Vaughn:

"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 murderer.

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

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