J-S36011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHONTEE LATHAM

                            Appellant                No. 1360 WDA 2014


                   Appeal from the PCRA Order July 14, 2014
               In the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0001266-2008


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 16, 2015

        Appellant, Shontee Latham, appeals pro se from the PCRA1 order

entered July 14, 2014, by the Honorable Dominick Motto, Court of Common

Pleas of Lawrence County. We affirm.

        The PCRA court summarized the factual history as follows.

        On the evening of September 30, 2008, [Sherbelle] Hall was at
        her neighbor’s house at 219 West Lincoln Avenue in the Lincoln
        housing project in New Castle[, Pennsylvania] hanging out with
        friends when she looked outside and saw [Latham] leaning on a
        car that did not belong to him parked outside the residence. Ms.
        Hall recognized [Latham] so she went outside and told him to
        get off the car and when he wouldn’t leave[,] she nudged him to
        try to make him move. [Latham] told Ms. Hall that no one was
        going to disrespect him and proceeded to pull a gun out of his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J-S36011-15


       pocket and fired a bullet into the air right above her head. Ms.
       Hall started yelling at [Latham] and began to walk away when
       [Latham] started following her and telling her that no one is
       going to disrespect him[.] [H]e [then] pointed a gun at [Ms.
       Hall’s] chest and told her he would “put one in her.” Ms. Hall
       walked away from [Latham] and went back to her house and
       called the police.

PCRA Court Opinion, 7/14/14 at 2-3 (citation omitted).

       On April 23, 2010, a jury convicted Latham of firearms not to be

carried without a license, possession of a firearm prohibited, recklessly

endangering another person, and terroristic threats.2           On August 6, 2010,

the trial court sentenced Latham to five to ten years’ imprisonment.             This

Court affirmed Latham’s judgment of sentence on appeal. Commonwealth

v. Latham, 60 WDA 2011 (Pa. Super., filed Oct. 18, 2011) (mem. op.).

Latham did not seek allocatur with the Pennsylvania Supreme Court.

       Latham filed a timely pro se PCRA petition. The PCRA court appointed

counsel to represent Latham as a first time, indigent PCRA petitioner.

Subsequently, Latham filed a pro se “Motion to Dismiss Counsel and Proceed

Pro Se,” expressing dissatisfaction with his court-appointed counsel.            The

PCRA court granted Latham’s motion, and Latham proceeded to represent

himself throughout the PCRA hearing. At the conclusion of the hearing, the

court denied Latham’s PCRA petition. This timely pro se appeal followed.3
____________________________________________


2
   18 Pa.C.S.A.        §§   6106(a)(1),        6106(a)(1),   2705   and   2706(a)(1),
respectively.
3
 On July 16, 2015, this Court remanded the proceedings and directed the
PCRA court to conduct a hearing and an on-the-record colloquy to confirm
(Footnote Continued Next Page)


                                           -2-
J-S36011-15



      Latham raises the following issues for our review.

      1. Whether my conviction resulted from ineffective assistance of
         counsel which so undermined the truth determining process
         that no reliable adjudication of guilt or innocence could have
         taken place?

      2. Whether trial counsel was ineffective in failing to seek
         suppression of police testimony regarding the unlawful forced
         entry into my home and arresting me in my shower?

      3. Whether trial counsel was ineffective for eliciting damaging
         hearsay testimony and submitted additional hearsay
         testimony to my prejudice.

      4. Whether trial counsel was ineffective for failing to impeach
         Sherbell[e] Hall with her multiple prior contradictory
         inconsistent statements.

      5. Whether trial counsel was ineffective for his failure to object
         to the prosecutor’s closing argument and moving for a
         mistrial on the grounds of:
            a. Appealing to the emotions of the jury
            b. Bolstering the credibility of witnesses, and
            c. Injecting facts not in evidence.

Appellant’s Brief at 5.

      “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.


                       _______________________
(Footnote Continued)

Latham’s desire to proceed pro se. On August 28, 2015, the PCRA court
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), and affirmed that Latham had made a knowing, voluntary and
intelligent waiver of his right to counsel and that he continued to desire to
proceed pro se. Latham additionally executed a written waiver of counsel on
that date. Accordingly, we will now proceed to address the merits of
Latham’s appeal.



                                            -3-
J-S36011-15



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).

      It is well settled that

      [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
      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).           “Generally, where matters of

strategy   and   tactics   are   concerned, counsel’s    assistance     is   deemed

constitutionally effective if he chose a particular course that had some

reasonable    basis    designed     to    effectuate   his   client's    interests.”

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation


                                         -4-
J-S36011-15



omitted). A failure to satisfy any prong of the test will require rejection of

the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

       Latham’s first issue on appeal merely constitutes a blanket statement

of trial counsel’s ineffectiveness to which he devotes no argument. We will

therefore proceed to address the specific allegations raised in issues two

through five.

       Latham first contends that trial counsel was ineffective for failing to

suppress police testimony at trial concerning the forced entry into Latham’s

home and his subsequent arrest therein. This claim misses the mark.

       The police testimony detailing the events leading up to Latham’s arrest

do not constitute evidence, as such, that would be subjected to a

suppression motion.       See Pa.R.Crim.P. 581(A) (“The defendant’s attorney,

or the defendant if unrepresented, may make a motion to the court to

suppress any evidence alleged to have been obtained in violation of the

defendant’s rights.” (emphasis added)). Thus, there was simply no basis on

which to seek suppression of the statements made by police detailing

Latham’s arrest.4       Latham’s underlying claim therefore has no arguable

merit.


____________________________________________


4
 In any event, we note that trial counsel did file a Motion to Suppress “any
and all items of evidence and statements obtained at the place Defendant
was staying and in which he was arrested without warrant on the morning of
Sep. 30, 2008[.]” Defendant’s Omnibus Motion, 3/2/09. The trial court
denied the suppression motion following a hearing.



                                           -5-
J-S36011-15



     To the extent Latham argues that trial counsel was ineffective for

failing to seek a motion in limine to preclude the police testimony, counsel

testified at the PCRA hearing that he did not seek to preclude the testimony

regarding the circumstances of Latham’s arrest because he “needed the jury

to hear that the police never found a gun.” N.T., PCRA Hearing, 1/31/14 at

96. Given that Latham was charged with firearms-related offenses, it was

entirely reasonable that trial counsel would have wanted to elicit the fact

that a firearm was not discovered in Latham’s residence at the time of his

arrest shortly after the incident was alleged to have occurred. We therefore

find that trial counsel had a reasonable basis for not seeking to preclude the

police testimony. Accordingly, counsel was not ineffective.

     Latham next argues that trial counsel was ineffective for eliciting

damaging hearsay testimony while questioning the victim on the existence

of other witnesses to the gunshot.         Latham objects to the following

exchange.

     Q:     Did any of them see outside during this incident?

     A:   No. They heard the gunshot and they stayed – they didn’t
     come out, no.

     Q:     Did any of them see a gunshot?

     A:     From inside, they seen it.

     Q:     Who?

     A:    Let’s see, Ashley Wells, Ashley Wise, and Theresa was
     upstairs – no, Tina was outside. I don’t know if Talesha seen –

     Q:   So, you claim that all of these girls actually saw a
     gunshot?


                                     -6-
J-S36011-15


     A:    Yes.

     Q:    Ashley Wise included?

     A:    Yes.

N.T., Trial, 4/20/10 at 42.   Latham argues that he was prejudiced when

counsel permitted the victim to reference hearsay statements by the alleged

witnesses to the shooting. This argument ignores the fact that counsel later

used these statements to impeach the victim’s credibility.

     Q:    You said Ashley Wise would have seen the gunshot?

     A:    She said – she told me that she seen him, yes. She’s not
     here today. I couldn’t get in contact with her.

     Q:     Do you know that Ashley spoke with the police officer after
     this incident?

     A:    I’m not sure if she spoke with them or not, but she showed
     up for me as a witness. So, I’m assuming that she did.

     Q:    Would it surprise you she told – she never told the police
     that she saw Mr. Latham shoot the gun?

     A:    Would it surprise me?

     Q:    Yes.

     A:   Yes, I would be a little bit surprised, because she told me
     she seen it. She showed up for me the first few times that we
     have come to court. This is the first time her not being here.

     Q:    Let me read to you the affidavit of probable cause filed by
     Officer Newton in this case. These are the exact words from his
     report. This Officer then spoke with Ashley Wise. This is after
     the incident occurred. She stated that she was in her residence
     at 219 West Lincoln Avenue when she heard a gunshot.

     A:   OK. She said she heard, okay, not saw a gunshot.         She
     heard a gunshot.

     Q:    She said she looked out the window, and then she claims
     that she saw Latham lower a handgun. She didn’t say she saw a
     gunshot?


                                    -7-
J-S36011-15


       A:   Well, she’s – she told me differently….

       Q:   She told you that, but she told you later that she saw a
       gunshot?

       A:    Later, she told me that she didn’t – no, she didn’t say she
       actually seen the gun, but she said, yes, she seen him lowering
       the hand, and when we were arguing, when he had the gun at
       my chest, she said, yes, she seen that part.

       Q:   Didn’t you just tell me that she told you she saw a
       gunshot?

       A:   She did tell me that.

       Q:   Now you’re saying she didn’t say that?

       A:   I’m saying – assuming it is written down.

       Q:   I guess you’re not sure what you just told me.

Id. at 44-46.

       The PCRA court determined that counsel’s strategy in trying to

“discredit the credibility of the witness or the investigation” was a reasonable

one.    PCRA Court Opinion, 7/14/14 at 10.            The court reasoned that

“[e]ssentially counsel was attempting to bring out inconsistencies in the

statements of the victim and individuals who could have been called as

witnesses to discredit the investigation and to suggest the entire incident

was made up.” Id.

       We have no reason to disagree with the PCRA court’s assessment of

trial counsel’s strategy. Counsel’s use of the affidavit of probable cause to

impeach the witness’s credibility was clearly calculated to undermine the

victim’s testimony and thus, advance Latham’s interest.          The fact that

Latham disagrees with counsel’s strategy does not render it unreasonable.



                                     -8-
J-S36011-15



Therefore, Latham’s claim that counsel was ineffective for permitting the

witness to refer to hearsay statements of the alleged witnesses to the

shooting lacks merit.

         Latham next contends that trial counsel was ineffective for failing to

impeach the victim’s trial testimony with prior inconsistent statements from

the pretrial hearing.     Latham pinpoints five minor inconsistencies in the

victim’s testimony to support his argument. See Appellant’s Brief at 36-39.

         At the PCRA evidentiary hearing, trial counsel testified that he did not

use the preliminary hearing transcript at trial, because he “felt the police

report was more valuable in getting admissions that the complainant was a

liar.”   N.T., PCRA Hearing, 1/31/14 at 69.      Counsel further explained that

“there were not enough significant inconsistencies in [the victim’s pretrial

testimony] to warrant using the [preliminary hearing transcript], which is

why I didn’t.” Id. at 73. The PCRA court agreed with counsel’s assessment,

reasoning that “[a]ttempting to discredit the victim in minor matters such as

the barrel length of the revolver, its color, and whether [Latham] ran or

walked home would have reinforced the testimony as to how the incident

occurred.” PCRA Court Opinion, 7/14/14 at 11.

         We find no abuse of discretion in the PCRA court’s analysis.     Rather

than risk reaffirming the victim’s account of the incident, counsel chose to

forego impeaching the witness on minor details.              This strategy was

reasonably advanced to avoid highlighting the instances where the victim’s

testimony varied. Accordingly, we find trial counsel was not ineffective for

                                       -9-
J-S36011-15



failing to impeach the victim on minor inconsistencies with her pretrial

statements.

     Latham next argues that trial counsel was ineffective for failing to

object to instances of prosecutorial misconduct during the Commonwealth’s

closing statement. 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.

Commonwealth v. Collins, 70 A.3d 1245, 1252-53, appeal denied, 80

A.3d 774 (Pa. 2013).

     Latham contends that the prosecutor’s use of the phrase “demeaning

and traumatic” to describe the incident for which Latham was arrested was


                                   - 10 -
J-S36011-15



improper.      Contrary to Latham’s argument, we find the prosecutor’s

comment was properly within the realm of oratorical flair that a prosecutor is

permitted to use during closing arguments and was not likely to destroy the

objectivity of the factfinder.   See Commonwealth v. Novasak, 606 A.2d

477, 481 (Pa. Super. 1992).

      Latham also claims that the prosecutor made impermissible comments

when she stated that although the victim mistakenly told police that the car

on which Latham was leaning was hers, when it was actually her cousin’s,

“everything else she reported to the police accurately.” Appellant’s Brief at

54. We conclude that in making this assertion, the prosecutor was merely

encouraging the jury to draw an inference that could reasonably be derived

from the evidence admitted at trial. See Commonwealth v. Riggle, 119

A.3d 1058, ___, 2015 WL 4094427, at *8 (Pa. Super. 2015). As we find the

prosecutor’s    comments     were    permissible,   counsel   cannot   be   found

ineffective for failing to object.

      Latham lastly argues that the prosecutor impermissibly bolstered the

victim’s credibility by referencing facts outside of the record. Specifically, he

contends that the following portion of the prosecutor’s summation violated

this Court’s pronouncement in Commonwealth v. Jubilee, 589 A.2d 1112

(Pa. Super. 1991).

      When you think about consistency, you think about Sherbelle
      Hall. Okay. This is a transcript. Every pretrial proceeding,
      including the pretrial hearing, is transcribed, okay, and what that
      is, it’s a tool that lawyers use so that when a witness gets on the
      stand, the lawyer can look up how – listen to how they testified

                                      - 11 -
J-S36011-15


      here and then look up to see how they testified at a prior
      hearing. During this trial, defense counsel never, ever picked up
      this little transcript to show any inconsistency in Sherbelle Hall’s
      testimony. Never once. Never once. That shows that for every
      hearing, including this trial, she has said the same thing over
      and over again.

N.T., Trial, 4/22/10 at 11-12. In Jubilee, this Court held that a prosecutor’s

reference to prior consistent preliminary hearing testimony that was not in

evidence improperly bolstered a rape victim’s testimony.

      Our review of the record reveals no indication that the preliminary

hearing transcript, or any other transcript in this matter, was introduced into

evidence at trial. Accordingly, we agree with Latham that the prosecutor’s

reference to Sherbelle Hall’s consistent testimony throughout all of the

proceedings, include the pretrial hearing, improperly bolstered the victim’s

testimony.

      However, even if the prosecutor’s comment was improper, Latham

must still establish that he suffered prejudice as a result, “i.e., there is a

reasonable probability that,      but for counsel’s error, the outcome of the

proceeding would have been different.”         Commonwealth v. Laird, 119

A.3d 972, 978 (Pa. Super. 2015) (citations omitted).       Here, the trial court

instructed the jury that statements made by counsel during summation do

not constitute evidence and that the jury must decide the facts of the case

based upon its own recollection and consideration of the evidence.           N.T.,

Trial, 4/22/10 at 2-3.   “[T]he law presumes that the jury will follow the

instructions of the court.”   Commonwealth v. Miller, 819 A.2d 504, 513

(Pa. 2002) (citations omitted).

                                      - 12 -
J-S36011-15



     We therefore conclude that the trial court’s instructions ameliorated

any prejudice Latham may have suffered. Consequently, trial counsel was

not ineffective for failing to object to the prosecutor’s reference to the

victim’s consistent testimony based upon facts not in evidence.

     Based upon all of the foregoing, we affirm the order dismissing

Latham’s PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




                                   - 13 -
