J-S67022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

PHYRAK VANN

                            Appellant                      No. 2676 EDA 2015


                   Appeal from the PCRA Order August 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0403001-2006
                             CP-51-CR-1207771-2005



BEFORE: FORD ELLIOT, P.J.E., RANSOM, J., and STEVENS, P.J.E*

MEMORANDUM BY RANSOM, J.:                               FILED OCTOBER 27, 2016

         Phyrak Vann (Appellant) appeals from the August 7, 2015 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         In October 2005, Appellant and a number of individuals confronted

Anthony Garman, Jr. at his home.               Appellant shot Mr. Garman, Jr. three

times and shot his father, Anthony Garman, Sr., once. Appellant was tried

with co-defendant Khalil Phinizee.1 In May 2007, a jury convicted Appellant

____________________________________________


1
  Appellant and Mr. Phinizee were initially tried in December 2006; however,
that trial resulted in a hung jury. Appellant’s second trial resulted in his
conviction. PCRA Court Opinion, February 16, 2016, at 1.



*
    Former Justice specially assigned to the Superior Court.
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of two counts of aggravated assault, two counts of attempted murder, and

one count each of criminal conspiracy and carrying a firearm without a

license.2   In June 2007, Appellant was sentenced to an aggregate term of

fifteen to thirty years’ imprisonment. This Court affirmed the judgement of

sentence on December 29, 2008. Commonwealth v. Vann, 965 A.2d 304

(Pa. Super. 2008) (unpublished memorandum), appeal denied, 974 A.2d

1162 (Pa. 2009).

        Appellant pro se filed a PCRA petition on June 15, 2010. Thereafter,

counsel was appointed and filed an amended petition on Appellant’s behalf,

asserting ineffective assistance of trial counsel on several grounds.       The

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition as meritless in March 2013.       Appellant timely filed a

response thereto, as well as another amended petition for collateral relief.

See Second Amended Petition, 9/15/2014. In August 2015, the PCRA court

dismissed Appellant’s petition without an evidentiary hearing.        Appellant

timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The

PCRA court issued a responsive opinion.

        Appellant presents the following questions for our review:

        1.    Did the [PCRA court] err in failing to hold an evidentiary hearing
        to determine whether the trial counsel’s failure to properly examine

____________________________________________


2
    Respectively, see 18 Pa.C.S. §§ 901(a), 2702(a), 903(a), and 6106(a)(1).


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      the physical evidence and present a theory of defense that conflicted
      with it was ineffective assistance of counsel;

      2.    Did the [PCRA court] err in failing to hold an evidentiary hearing
      to determine whether trial counsel’s failure to object to instances of
      prosecutorial misconduct was ineffective assistance of counsel?

Appellant’s Brief at 10.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.   Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      In this case, the PCRA court dismissed the Appellant’s petition without

a hearing.    There is no absolute right to an evidentiary hearing. See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding there were no genuine issues of

material fact and in denying relief without an evidentiary hearing.” Id.

      We presume counsel is effective.    Commonwealth v. Washington,

927 A.2d 586,594 (Pa. 2007). To overcome the presumption and establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

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actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).     “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Springer, 961 A.2d at 1267 (citing Commonwealth v. Natividad, 938

A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008).

         Appellant first contends that trial counsel was ineffective for pursuing a

defense strategy that did not comport with the physical evidence adduced at

trial.   According to Appellant, counsel’s decision was egregious because a

defense     of   others   justification   was    a    more   viable   defense   theory.3

Appellant’s Brief at 14.

         Appellant’s claim is without merit.            At Appellant’s first trial, he

unequivocally denied shooting anyone and denied having a gun.                   Notes of

Testimony (N.T.), 12/15/06, at 56-57.                This testimony was admissible at

Appellant’s second trial.       See, e.g., Commonwealth v. Boyle, 447 A.2d

250, 256 (Pa. 1982) (“It has long been recognized that testimony from an


____________________________________________


3
 Appellant suggests he shot the victims in defense of Mr. Phinizee. See 18
Pa.C.S. § 506.


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earlier trial may be introduced in the prosecution's case against a defendant

regardless of whether that defendant takes the stand or not in the second

proceeding.”) (internal citations omitted).    At his second trial, Appellant

testified for a second time that he never had his hands on a gun on the day

of the incident. N.T., 5/2/07 Vol. II, at 163-164. The PCRA court observed

that, “a defense of others defense in the retrial would have faced the

insurmountable problem that defendant would have to completely diverge

from his previous sworn testimony and give a diametrically different version

of the events.” PCRA Court Opinion at 6. We agree. Appellant could not

reconcile shooting the victims in defense of another while, at the same time,

denying he shot anyone.     Accordingly, Appellant is entitled to no relief on

this ground.

     Now we turn to the defense theory actually proffered by trial counsel.

Appellant claims baldly that trial counsel “failed to investigate physical

evidence” because fired cartridge casings were found where an eyewitness

placed   Appellant.     Appellant’s   Brief   at   16.   To   contradict   the

Commonwealth’s evidence, trial counsel presented three witnesses who

testified that Appellant was not the shooter. N.T., 5/2/07 Vol. II, at 78-79,

134-35, 163-64.       Coupled with four character witnesses trial counsel

presented to testify to Appellant’s reputation for being a peaceful and law-

abiding person, the record supports the PCRA court's observations as to the




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reasonableness of trial counsel's defense.       PCRA Court Opinion at 6-7.

Accordingly, we discern no error.4

       In his second issue, Appellant asserts that trial counsel was ineffective

in failing to object to numerous instances of prosecutorial misconduct.

Appellant’s Brief at 22.        Appellant avers the prosecutor (1) engaged in

speculative argument, (2) improperly attacked witness credibility, (3)

expressed sympathy for the victims, and further asserts (4) these actions

resulted in cumulative prejudice against him. Appellant’s Brief at 22-24, 23-

24, 25, respectively. Appellant’s assertions are without merit.

       Before elaborating on the specifics of Appellant's claim, we recognize

the following:

       A “prosecutor has reasonable latitude during his closing
       argument to advocate his case, respond to arguments of
       opposing counsel, and fairly present the Commonwealth's
       version of the evidence to the jury.” Commonwealth v. Cox,
       983 A.2d 666, 685 (Pa. 2009) (quoting Commonwealth v.
       Tedford, 960 A.2d 1, 29 (Pa. 2008)). “[N]ot every intemperate
       or improper remark mandates the granting of a new trial;” id.,
       “[r]eversible error occurs only when the unavoidable effect of
       the challenged comments would prejudice the jurors and form in
       their minds a fixed bias and hostility toward the defendant such
____________________________________________


4
  Where the record on appeal clearly establishes the reasonable basis prong
the issue may be decided without an evidentiary hearing to determine trial
counsel's actual strategies. Commonwealth v. Williams, 899 A.2d 1060,
1065 (Pa.2006) (citing Commonwealth v. McGill, 832 A.2d 1014
(Pa.2003)). We have reviewed the record. There was no need for a
hearing, as counsel’s actions were clearly reasonable. Id.




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      that the jurors could not weigh the evidence and render a true
      verdict.” Id. “The touchstone is fairness of the trial, not the
      culpability of the prosecutor.” Id.

      Appellant characterized the comments of the prosecutor as pure

speculation. We disagree. The Commonwealth argued that Mr. Phinizee had

been badly beaten and embarrassed in a fight with Mr. Garman, Jr.,

obtained a weapon, then returned to the scene to lure Mr. Garman, Jr. into a

fight so as to shoot him. N.T., 5/3/07, at 211-17. As noted by the PCRA

court, this was a fair inference based on evidence espoused at trial. It was

established that Mr. Garmon, Jr., and Mr. Phinizee entered into two fistfights

prior to Mr. Phinizee returning to Mr. Garmon’s street with a firearm. N.T.,

5/1/07, at 19-23; N.T., 5/2/07 Vol. I, at 56-58.         Indeed, statements

attributed to Mr. Phinizee alluded to his willingness to use a firearm on Mr.

Garmon, Jr. N.T., 5/2/07, at 58.

      Appellant next takes issue with portions of the prosecutor’s closing

that characterized the testimony of the co-defendant as a lie. N.T., 5/3/07,

at 206.   Appellant avers the statements constitute the personal opinion of

the prosecutor; however, the record evinces these statements were

argument regarding contradictions in the evidence. Id. at 205-08, 210-11.

This argument, calling into question the credibility of the defense, was

proper. Commonwealth v. Charleston, 94 A.3d 1012, 1023-4 (Pa. Super.

2014) (prosecutor’s closing arguments, challenging defense credibility based

on the inconsistencies of defendant’s testimony, was proper).       Appellant

further asserts that trial counsel’s failure to join co-counsel’s objection to
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this segment of the prosecutor’s argument rendered trial counsel ineffective,

as the issue was deemed previously waived by this Court. See Vann, 965

A.2d 304, at *10-11. However, counsel will not be considered ineffective for

failing to pursue meritless claims. Commonwealth v. Pursell, 724 A.2d

293, 304 (Pa. Super. 1999).

       Appellant also avers that counsel should have objected when the

prosecutor argued that Mr. Phinizee’s theft conviction showed “he had a bad

reputation for telling the truth.”             N.T., 5/3/07, at 210.          This was an

inaccurate statement of the law. See Pa.R.E. 405(a) (“When evidence of a

person's character or character trait is admissible, it may be proved by

testimony about the person's reputation.”). However, as Mr. Phinizee’s theft

conviction    was    admissible     to   attack    his   credibility,   the   prosecutor’s

mischaracterization of the conviction as reputation evidence could not have

prejudiced Appellant. See Pa.R.E. 609(a) (“For the purpose of attacking the

credibility of any witness, evidence that the witness has been convicted of a

crime, whether by verdict or by plea of guilty or nolo contendere, must be

admitted if it involved dishonesty or false statement.”).5

       Appellant asserts that the prosecutor improperly attempted to evoke

sympathy for the victims’ family by stating the following:

____________________________________________


5
  We also note that the trial court, not counsel, is responsible for charging
the jury with applicable rules of law. See Commonwealth v. Scott, 73
A.3d 599, 602 (Pa. Super. 2013).


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      "It's hard for the Garmon family -- for any individual to get up
      on that stand and tell you what actually happened, a day that
      they will never forget.      How do you think it would feel if
      something like that happened to you and you want somebody to
      believe you and people are accusing you, trying to cross -
      examine you and tell you what you didn't see … And I want you
      to have that same courage that the Garmon family had in
      testifying before you, telling you what happened to them, have
      that same courage to hold both of these defendant's
      accountable."

N.T., 5/3/07, at 222, 230-31.

      While it is improper for a prosecutor to invoke sympathy with a jury by

asking the jurors to stand in the shoes of the victims, where the remarks

were of limited duration and were not part of a focused attempt to appeal to

the passions of the jury, they will not entitle the defendant to relief.     See

Commonwealth v. Clark, 421 A.2d 374, 378-79 (Pa. Super. 1980), aff'd

mem., 461 A.2d 794 (Pa. 1983).

      Finally, Appellant asserts that the cumulative effect of the prosecutor’s

remarks, unfettered by trial counsel’s lack of objection in each instance, may

warrant relief.   See Commonwealth v. Perry, 644 A.2d 705, 709 (Pa.

1994)   (concluding    that   multiple   instances   of   ineffectiveness,   “in

combination,” prejudiced defendant). However, the record establishes that

each of the alleged instances of prosecutorial misconduct were meritless.

Accordingly, Appellant was not entitled to relief in the cumulative.

      Based on our view of these claims, there was no need for an

evidentiary hearing in this case. Appellant asserts legal challenges based on


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the established record.   There is no dispute of material fact. As such, the

PCRA court did not err in declining to hold an evidentiary hearing.

      For the above reasons, we discern no error in the PCRA court's

decision to dismiss Appellant’s petition without a hearing. Appellant’s claims

are without merit. He is entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2016




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