J-S29021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

SHAMSIDDIN Q. SALLAM

                            Appellant                 No. 1451 EDA 2016


                   Appeal from the PCRA Order April 14, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006240-2011
                                          CP-51-CR-0006241-2011

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                               FILED JULY 20, 2017

       Appellant, Shamsiddin Sallam, appeals the order of the Court of

Common Pleas of Philadelphia County, entered April 14, 2016, that denied

without a hearing his first petition filed under the Post Conviction Relief Act

(“PCRA”).1 We affirm the order on the basis of the PCRA court’s opinion.

       In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. See PCRA Ct. Op., 4/14/16, at 1-

4. Appellant was arrested and charged on April 12, 2010, with murder and

related offenses for the fatal shootings of Gregory Jarvis and Harry Williams.

On October 11, 2012, a jury found Appellant guilty of two counts of first-

____________________________________________

* Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
J-S29021-17


degree murder, as well as robbery, carrying a firearm without a license,

carrying a firearm on public streets in Philadelphia, and possession of an

instrument of crime.2       On December 6, 2012, Appellant was sentenced to

imprisonment for a term of life followed by ten to twenty years.3 Appellant

filed a direct appeal on December 13, 2012.          This Court affirmed the

judgment of sentence on October 10, 2013.4

        On February 10, 2015, Appellant filed a timely pro se PCRA petition.

Counsel appointed for Appellant filed an amended petition on January 4,

2016.5     That petition challenged (1) the effectiveness of trial counsel for

failing to request a mistrial after the trial court sustained his objection to a

comment made by the prosecutor during opening argument at his jury trial,6

and (2) the effectiveness of appellate counsel for waiving a claim regarding
____________________________________________
2
    18 Pa.C.S. §§ 2502(a), 3701, 6106, 6108, and 907(a), respectively.
3
  The trial court imposed a mandatory sentence of life imprisonment without
parole for each count of murder of the first degree, and shorter terms of
imprisonment for the lesser charges, to be run concurrently. Appellant was
also sentenced to a consecutive term of ten to twenty years’ imprisonment
on the charge of robbery.
4
 Commonwealth v. Sallam, 87 A.3d 881 (Pa. Super. 2013) (unpublished
memorandum), appeal denied, 87 A.3d 319 (Pa., Mar. 12, 2014).
5
  In light of the amended petition, the PCRA court properly declined to
address the claims in Appellant’s pro se PCRA petition. See PCRA Ct. Op. at
5 n.2 (citing Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011)
(PCRA counsel is presumed to raise all meritorious issues within an amended
petition)).
6
 On Appellant’s direct appeal, this Court had held that trial counsel failed to
preserve this issue for appellate review by failing to request a mistrial.



                                           -2-
J-S29021-17


another comment made by the prosecutor during opening argument. 7                      On

March 15, 2016, the PCRA court issued a notice of its intent to dismiss

Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.8 The

PCRA court dismissed Appellant’s petition on April 14, 2016.                This appeal

followed.

        Appellant raises the following issue for our review:

        Did the Honorable PCRA Court err when it denied [Appellant]’s
        Amended PCRA Petition without conducting a Hearing and all
        where [Appellant] properly pled and would have been able to
        prove that he was entitled to PCRA relief?

Appellant’s Brief at 3.

        In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the    PCRA    court    and    whether     the   ruling   is   free   of   legal   error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017)

(citation omitted).

        Appellant contends that trial counsel was ineffective in failing to move

for a mistrial after the prosecutor engaged in prosecutorial misconduct

during his opening statement, and that appellate counsel was ineffective for

further waiving the claim on appeal.           Appellant’s Brief at 10.     Specifically,
____________________________________________
7
  On the direct appeal, we had held both that trial counsel had waived this
issue for failing to request a mistrial, and that appellate counsel had further
waived the issue by making only a bald assertion in his brief that the
prosecutor’s comment was improper.
8
    Counsel did not respond to the Rule 907 notice.


                                           -3-
J-S29021-17


Appellant asserts that he is entitled to a new trial because of two statements

made by the prosecutor: first, the prosecutor’s statement that Appellant had

written a letter to Jarvis during a prior incarceration, as it informed the jury

that Appellant had a criminal history; and second, the prosecutor’s

statement to the jury that a surveillance video he would introduce during his

case-in-chief was “going to scream at [them],” even though they would not

be able to see the faces of the individuals in the video. See id. at 10-11.

Appellant construes the prosecutor’s comment about the video as an

impermissible voucher for a piece of evidence.     See id.    Appellant asserts

that because the statements were made at the onset of trial, the jurors

“could have been very impressed, and all in the wrong way” by the

prosecutor’s statements. Id.

      With regard to PCRA claims alleging ineffective assistance of counsel,

this Court has held:

      Counsel is presumed to have been effective. To overcome this
      presumption, a PCRA petitioner must plead and prove that: (1)
      the underlying legal claim is of arguable merit; (2) counsel's
      action or inaction lacked any objectively reasonable basis
      designed to effectuate his client's interest; and (3) prejudice, to
      the effect that there was a reasonable probability of a different
      outcome if not for counsel's error.

Andrews, 158 A.3d at 1263 (quotation marks and citation omitted).

“Prejudice is established if there is a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different.”

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).


                                     -4-
J-S29021-17


Furthermore, “[a]n evidentiary hearing is not mandatory for all claims raised

in a PCRA petition.” Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008),

cert. denied, 558 U.S. 1082 (2009). A PCRA petitioner is required to show

that he is entitled to an evidentiary hearing due to the presence of genuine

issues of material fact on a meritorious issue. Commonwealth v. Rivera,

108 A.3d 779, 788 n.4 (Pa. 2014).

      A mistrial is only granted when a defendant has been deprived of his

right to a fair trial.   See Commonwealth v. Chamberlain, 30 A.3d 381,

420 (Pa. 2011), cert. denied, 132 S.Ct. 2377 (2012).       In the context of

remarks made by counsel,

      [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. The court must evaluate a
      prosecutor's challenged statement in the context in which it was
      made.    Finally, not every intemperate or improper remark
      mandates the granting of a new trial; reversible 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 that the jurors could not
      weigh the evidence and render a true verdict.

Commonwealth v. Hanible, 30 A.3d 426, 465 (Pa. 2011) (quotation

marks, citations, and brackets omitted), cert. denied, 133 S.Ct. 835

(2013). “[P]rosecutorial misconduct will not be found where comments were

based on the evidence or proper inferences therefrom or were only oratorical

flair.” Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009).




                                    -5-
J-S29021-17


       Furthermore, “[m]ere passing references to criminal activity will not

require reversal unless the record indicates that prejudice resulted from the

reference.”    Commonwealth v. Stafford, 749 A.2d 489, 496 (Pa. Super.

2000) (internal quotation marks and citation omitted), appeal denied, 795

A.2d 975 (Pa. 2000).           “A mistrial is not necessary where cautionary

instructions are adequate to overcome prejudice.”        Commonwealth v.

Chamberlain, 30 A.3d 381, 422 (Pa. 2011).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Barbara A.

McDermott, we conclude that there is no merit to the issue Appellant has

raised on appeal. The PCRA court opinion properly disposed of the question

presented.     See PCRA Ct. Op. at 7-8 (finding (1) that the prosecutor’s

passing reference to Appellant’s prior incarceration was insufficient to

prejudice the jury against Appellant, and that any prejudice caused by the

comment was cured by the trial court’s immediately responsive instruction to

the jury;9 and (2) that cell phone records placed Appellant at the location of

the surveillance footage, that the prosecutor’s remark that the surveillance

video would “scream” was “nothing more than a rhetorical flourish,

insufficient to warrant a mistrial,” and that the jury was instructed that the

opening remarks were not to be considered as evidence). Accordingly, we
____________________________________________
9
   We also note that evidence of Appellant’s prior incarceration was
introduced at trial, including through Appellant’s own testimony. See N.T.,
10/10/12, at 196-97, 206.


                                           -6-
J-S29021-17


affirm on the basis of the PCRA court’s opinion. The parties are instructed to

attach the opinion of the PCRA court in any filings referencing this Court’s

decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2017




                                    -7-
                                                                                                 Circul~~\Vet}               01 :55 PM


                                                                                                            APR l4 20\6
                          IN THE COURT OF COMMON PLEAS                                                           ;i...r~I~
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                            Olfo,~mial·
                              CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANtA                          : CP-51-CR-0006240-201 l
                                                      : CP-51-CR-0006241-2011

                                                       CP-51-CR-0006240-2011 Cc_mm. v, Salfem, shomslddin   a.
       v.                                                                   Op:niO<l




SHAMSIDDIN SALLAM                                           HI II7432929411
                                                                  1111111111111 Ill

                                    OPINION AND ORDER

McDermott, J.                                                                                               April 14, 2016

Procedural History
       On April 12, 2010, the Petitioner, Shamsiddin Sallam, was arrested and charged with

Murder and related offenses in CP-51-CR-0006240-2011, and Murder and Robbery in CP-51-

CR-0006241-2011.     On October 3, 2012, the Petitioner appeared before this Court and elected to

be tried by a jury. On October 11, 2012, the jury returned guilty verdicts of First-Degree

Murder, Firearms not to be Carried without a License, Carrying Firearms in Public in

Philadelphia, and Possession of an Instrument of Crime ("PIC") in CP-51-CR-0006240-2011,

and guilty verdicts of First-Degree Murder and Robbery in CP-51-CR-0006241-2011.

       On December 6, 2012, in CP-51-CR-0006240-2011,             this Court imposed the mandatory

sentence of life imprisonment without parole for First-Degree Murder, and concurrent sentences

of three and one-half to seven years for Firearms Not to be Carried Without a License, oneto

two years for Carrying Firearms in Public in Philadelphia, and one to two years for PIC. In CP-

51-CR-0006341-2011, this Court imposed the mandatory sentence of life imprisonment without

parole for First-Degree Murder, to be served concurrently with the penalties imposed in CP-51-
. ·CR-0006240~2011, and a consecutive term of ten to twenty years imprisonnient for Robbery, for

 a total sentence of life imprisonment without parole plus ten to twenty years ..

         On December 10, 2012, trial counsel Darryl A. Irwin, Esquire withdrew and Mitchen S.

 Strutin, Esquire was appointed. On December 13, 2012, the Petitioner filed a timely Notice of

 Appeal. On appeal, the Petitioner challenged this Court's admission of a letter and a surveillance

 videotape as evidence, denial of his request for mistrial, and the weight and sufficiency of the

 evidence. On October 10, 2013, the Superior Court affirmed the Judgment of Sentence. On

 March 12, 2014, our Supreme Court denied Allowance of Appeal.

         On February 10, 2015, the Petitioner filed a timely prose Post-Conviction Relief Act

 ("PCRA") petition. On August 5, 2015, Lee Mandell, Esquire was appointed as PCRA Counsel.

 On January 4, 2016, PCRA Counsel filed an Amended Petition. On March 4, 2016, the

 Corrunonwealth filed a Motion to Dismiss. On March 15, 2016, this Court issued a Notice of

 Intent to Dismiss pursuant to Pa.R.Crim.P. 907. On March 31, 2016, the Petitioner,pro se, filed

 a response to this Court's Rule 907 Notice.1 PCRA Counsel did not file a response to this

 Court's Rule 907 Notice.



         On direct appeal, the Superior Court adopted this Court's statement of facts and recited

 them as follows:

                      On September 7, 2009, at 3:31 p.m., Police Officer Earl
                  Tilghman, in response to a radio call, went to 349 North 62nd Street.
                  Upon arrival, Officer Tilghman ... encountered a male wearing a
                  bulletproof vest holding a gun, later identified as Ezekiel Donnie,
                  and another male coming down the steps. Officer Tilghman

 1 Petitioner is currently represented by counsel. Upon receipt ofthe Petitioner's prose response to this Court's Rule
 907 Notice, this Court forwarded the Petitioner's motion to counsel and took no further action. See Commonwealth
 v. Hall, 476 A:Zd 7, 9-10 (Pa. Super. 1984) ("An accused's prose actions have no legal effect while defense
 counsel remains authorized to represent the accused in all aspects of the proceedings."); Commonwealth v. Jette, 23
 A.3d 1032, 1044 (Pa. 2011) ("The proper response to any prose pleading is to refer the pleading to counsel, and to
 take no further action on the prose pleading unless counsel forwards a motion.").
                                                                                                                     2
confiscated a Jimenez arms 9-millimetet from Mr. Donnie. Officer
  Tilghman entered the building and found a Caucasian male and an
  African American male, later identified as Harry Williams
· ('Williams') and Gregory Jarvis (' Jarvis')[,] respectively, in
  [Williams'] apartment on the first floor. Williams was screaming
  and Jarvis appeared to be deceased.
       Jarvis was pronounced dead at 3 :42 p.m. at the scene by medics.
  He had suffered four gunshot wounds. One shot was to the left front
  of the neck and hit [Jarvis'] innominate artery and the upper part of
  the right lung. One shot went through the left arm, then went into
  his left chest area and exited near his right armpit. One bullet entered
  through the left side of the back, hitting [Jarvis'] ribs, spleen,
  diaphragm, esophagus, the inferior vena cava, and the right lung and
  then exited out of the right upper chest area. One bullet hit the left
  hip, fracturing the left side of the pelvis, and was recovered lodged
  in the muscles of the pelvis.
       Williams was taken to the University of Pennsylvania Hospital
  where he remained about a month until he died at 11 :42 a.m. on
   October 3, 2009. Williams suffered at least four gunshot wounds,
  one to the left flank, one to the lower left side of the back, one to the
  right thigh, and one to the left side of the chest. The wounds caused
   injuries to his stomach, duodenum, liver, spleen, right leg, and
   femur. During his hospital stay, Williams had complications
   including pneumonias, recurrent infections in the abdomen, and
   collection of fluid in the abdomen, and a total of eight surgeries.
       Officers recovered eight, 9-millimeter fired cartridge casings
   and one projectile from 349 North 62nd Street. No firearm was
   recovered from inside the apartment. All of the fired cartridge
   casings were determined to be fired from the same firearm; which
   was not recovered. The two bullets recovered by the Medical
   Examiner's officer, the projectile recovered from the crime scene,
   and the bullet jacket recovered from the hospital, were all fired from
   a single firearm.
        [The Petitioner] and Jarvis had known each other for at least six
   years prior to the murder. The Commonwealth introduced a letter
   written by [the Petitioner] while he was incarcerated at SCI
   Pittsburgh that was sent on April 4, 2003 to Jarvis. In the letter [the
   Petitioner] referenced 'half a brick/ a known drug term. In March
   2009, Jarvis fronted [the Petitioner] cocaine; however, [the
   Petitioner] never paid Jarvis for it. At the end of August and
   beginning of September 2009, [the Petitioner] called Jarvis multiple
   times but Jarvis did not respond because [the Petitioner] owed him
   money. On September 7, 2009, at around 11 :30 a.m. Jarvis did
   accept a call from [the Petitioner] and agreed to supply [the
    Petitioner] with cocaine to sell.


                                                                              3
                    On September I 5, 2009, at around 1:00 a.m., after calling his
               friend, Shawn Hawkins ('Hawkins'), [the Petitioner] met him. [The
               Petitioner] told Hawkins that he had shot two people.            [The
               Petitioner] told Hawkins that one of the victims died but the white
               guy survived and was in the hospital and that he shot them because
               one of the victims had said he had five bricks of cocaine but [had]
               only brought [] half of a brick. [The Petitioner] knew that the police
               were looking for him and asked Hawkins to help him sell crack
               cocaine. Hawkins agreed to help. The Commonwealth introduced
               [the Petitioner's] cell phone records which corroborated that on
               September 15[ ], 2009, [the Petitioner] . had brief phone
               conversations with Hawkins at 12:34 a.m., 12:41, a.m., 12:48 a.m.
               and 12:52 a.m.
                    [The Petitioner's] cell phone records revealed that Williams and
               [the Petitioner] called each other multiple times, and spoke for
               various lengths of time on September 1, September 4, September 5
               and September 7. On September 7th, 2009, [the Petitioner] called
               Williams at 1 :34 p.m., 1:37 p.m., 2:30 p.m., 2:40 p.m., 2:45, p.m.,
               and. 4:20 p.m. [The Petitioner] did not call Williams again until he
               called him three times on September 10, after Jarvis called [the
               Petitioner] on September 8[]. [The Petitioner] also called Williams
               on September 11.
                    [The Petitioner] and Jarvis called each other multiple times on
               September 3, September 4, September 5, September 6, and
               September 7. On September 7, 2009, [the Petitioner] and Jarvis
               called each other at 11 :08 a.m., 11 :23 a.m., 1:08 p.m., 1 :34 p.m.,
               2:30 p.m., and 2:37 p.m.
                    Cell site 309 is located in Cobbs Creek Park in Philadelphia. Its
               alpha sector covers the geographical area that includes 349 North
               62nd Street. On September 7, 2009, between 2:59 p.m. and 3:34
               p.m., [the Petitioner's] phone utilized the alpha sector of cell site
               309.

Commonwealth v. Sal/am, 3403 EDA 2012 at *1-2 (Pa. Super. Oct. 10, 2013) (non-precedential

decision).

Discussion

        The Petitioner avers that ( 1) trial counsel was ineffective for failing to request a mistrial

based on the prosecutor's remarks during opening argument that the Petitioner was previously

incarcerated; and (2) appellate counsel was ineffective for failure to preserve an appellate




                                                                                                         4·
      challenge to trial counsel's failure to request a mistri~l based on the prosecutor's opening remark

      that a surveillance video would "scream at" the jury.2

              To warrant relief based on an ineffectiveness claim, a petitioner must show that such

      ineffectiveness "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."

      Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006); 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is

      presumed to have rendered effective assistance. Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa.

      2013) (citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)).

              To overcome the presumption, the Petitioner has to satisfy the performance and prejudice

      test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of

      Pennsylvania has applied the Strickland test by looking to three elements, whether (1) the

      underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or

      failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's

      lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been

      different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-1196 (Pa. 2012)(citing

      Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). If a claim fails under any necessary

      element of the Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at

      1195-1196. Counsel will not be deemed ineffective for failing to raise a meritless claim. Jones,
                                                      '
· !   912 A.2d at 278 (citing Commonwealth v. Darrick Hall, 701 A.2d 190, 203 (Pa. 1997)).




      2Within his original prose PCRA petition, the Petitioner averred that trial counsel was ineffective for failing to (1)
      investigate a witness; (2) enter a letter from the prosecutor inter evidence; (3)conduct pre-trial investigation of
      defense witness Neremiah Jenkins; (4) prepare the Petitioner to testify on his own behalf. The Petitioner further
      alleged two waived issues that were not addressed on direct appeal: whether this Court abused its discretion in
      admitting inflammatory photographs and in granting the Commonwealth its continuance request to accommodate a
      witness. Since PCRA Counsel is presumed to raise all meritorious issues within an Amended Petition, this Court
      need not address the above prose claims. See Commonwealth v. Jette, 23 A.3d 1032, 1044-1045 (Pa. 2011).

                                                                                                                               5
        "Mistrials should be granted only when an incident is of such a nature that its

unavoidable effect is to deprive appellant of a fair trial." Commonwealth v. Johnson, 815 A.2d

563, 576 (Pa. 2002) (citing Commonwealth v. Lewis, 567 A.2d 1376, 1383 (Pa. 1989)). On

review, appellate courts consider the nature of the reference and whether the Commonwealth's

conduct was intentional. Commonwealth v. Powell, 956 A.2d 406, 421 (Pa. 2008). Curative

instructions are sufficient to cure any prejudice which may have been caused by the comments

made by the prosecutor. Commonwealth. v. Robinson, 864 A.2d 460, 519 (Pa. 2004).(citing

Commonwealth v. Carter, 643 A.2d 61, 77 (Pa. 1994)).

        A petitioner is required to establish that his claims have not been previously litigated or

waived. 42 Pa.C.S. § 9543(a)(3). On collateral review, a layered ineffectiveness claim is

regarded as distinct from the underlying claim. Commonwealth v. Collins, 888 A.2d 564, 573

(Pa. 2005). Nevertheless, a layered claim cannot be sustained where the underlying claim is

unmeritorious.   Commonwealth v. Williams, 950 A.2d 294, 300 (Pa. 2008); Commonwealth v.

McGill, 832A.2d 1014, 1021-1022 (Pa. 2003).

        Within a layered claim, a petitioner must plead that appellate counsel was ineffective for

failing to raise the ineffectiveness of prior counsel. McGill, 832 A.2d at 1022. A petitioner must

then demonstrate that (1) the underlying claim of error is of arguable merit; (2) counsel had no

reasonable basis for the action or omission in question; and (3) counsel's action or omission

caused prejudice to the petitioner such that the outcome of the proceedings would have been

different.   Commonwealth v. Washington, 880 A.2d 536, 540 (Pa. 2005). Since the Petitioner

must prove the underlying merit of his claim, he must also develop all three prongs of the

Strickland test as to the ineffectiveness of trial counsel, Commonwealth v. Hall, 872 A.2d 1177,

1184 (Pa. 2005) (citing McGill, 832 A.2d at 1022).



                                                                                                      6
         In his first issue, the Petitioner alleges that trial counsel was ineffective for failure to

 request a mistrial after the Commonwealth stated that the Petitioner communicated with a

. witness while imprisoned on an unrelated matter. In 2003, the Petitioner sent a letter to the

 decedent Jarvis from his location at SCI Pittsburgh, wherein the Petitioner offered Jarvis advice

 on how to sell narcotics: Duririg his opening statement, the prosecutor argued that "he [the

 decedent Jarvis] left behind a letter written by Snap, [the Petitioner], to an old-time, long-time

 acquaintance, an associate, an accomplice. They were inmates-."           N .T. 10/3/2012 at 28. Trial

 counsel immediately objected, and this Court sustained that objection, Id. Trial counsel did not

 motion for mistrial, but this Court immediately gave the jury the following curative instruction:

                THE COURT: Ladies and gentlemen, that objection is sustained. I
                just told you a few minutes ago, sometimes counsel can't prove what
                they want, and it's my job to make a decision at this point -- well,
                throughout the trial -- as to what may or may not be relevant. So it's
                sustained at this point. I'm asking you to disregard, and if things
                change during the trial, then you may hear things.

 Id. at 32. The Commonwealth's      passing reference to the Petitioner's incarceration is insufficient

 to prejudice the jury against the Petitioner. There was absolutely no indication of any prior bad

 act resulting in the Petitioner's incarceration, nor were the contents of the letter disclosed to the

jury. This Court's instruction was clearly sufficient to cure any prejudicial effect, and the jury is

 presumed to follow instructions. See Robinson, 864 A.2d at 519. The Petitioner fails to present

 any contrary evidence.

        In his second issue, the Petitioner avers that appellate counsel was ineffective for failing

 to preserve a challenge to trial counsel's failure to request a mistrial after objecting to the

 prosecutor's opening argument remark about video surveillance evidence. During his opening

 argument, the prosecutor described the contents of a video surveillance tape, stating that

 "[a]lthough you can't see the faces in the video, it's going to scream at you." N.T. 10/3/2012 at


                                                                                                          7
35-36. In a.similar chain of events following the prosecutor's comment about the Petitioner's

prison letter, trial counsel immediately objected to the remark, and this Court sustained that

objection. Id at 36. Trial counsel requested no further relief.

        On direct appeal, appellate counsel argued that this Court erred in permitting the

prosecutor to make the improper remark. In its October 10, 2013 decision, the Superior Court

noted that "[the Petitionerj's brief includes only a bald assertion that the prosecutor's comment

was improper. He does not <level op his argument with citations to authority or to the record."

Sa/lam, 3403 EDA 2012 at *23 (internal citations omitted). The Superior Court accordingly

deemed the argument waived. Id.

        Although appellate counsel clearly failed to preserve the underlying issue on appeal, the

Petitioner is not entitled to relief as the underlying claim is without merit. This Court instructed

the jury that the Commonwealth's    opening remarks are not evidence. N.T. 10/3/2012 at 18.

After this Court sustained the objection, the Commonwealth explained how cell phone analysis

evidence would place the Petitioner at the surveillance camera's location. Id at 36-37. The

Commonwealth ultimately presented the surveillance video as evidence, and the jury remained

free to consider its contents absent any undue influence. The prosecutor's remark was nothing ·

more than a rhetorical flourish, insufficient to warrant a mistrial. Because the Petitioner fails to

demonstrate the merits of the underlying claim, his challenge of appellate counsel's

ineffectiveness likewise fails.




                                                                                                       8
       For the foregoing reasons, the petition is hereby DISMISSED. The Petitioner is hereby

notified that he has thirty (30) days from the date of this Order and Opinion to file an appeal with

the Superior Court.

                                                              BY THE COURT,




                                                              Barbara A. McDermott, J.




                                                                                                       9
'Commonwealth      v. Shamsiddin   Sallam, CP-51-CR-0006240-2011;       CP-51-CR-0006241-2011


                                         PROOF OF SERVICE

      I hereby certify that I am this day serving the foregoing filing upon the personis), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:

                              Philadelphia District Attorney's Office
                              Three South Penn Square
                              Philadelphia, PA 19107
                              Attn: Michael Toczyski, Esquire

 ype of Service:               Hand Delivery

                               Lee Mandell, Esq.
                               1500 JFK Blvd.
                               Suite 405
                               Philadelphia, PA 19102

  pe of Service:               First Class Mail

                               Shamsiddin Sallam
                               KU9113
                               SCI Greene
                               17 5 Progress Drive
                               Waynesburg, PA 15370

 ype of Service:               Certified Mail




rated: April 14, 2




Joseph Duffy
Law
I
     Clerk to the
Honorable Barbara A. McDermott
