J-S51027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                    v.                    :
                                          :
 RONALD DAVIS                             :
                                          :
                    Appellant             :
                                          :   No. 1680 EDA 2017

                 Appeal from the PCRA Order April 28, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0003650-2013


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                      FILED NOVEMBER 26, 2018

      Appellant Ronald Davis appeals from the order denying his first timely

petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546, following a hearing. Appellant asserts that trial counsel was ineffective

for failing to introduce evidence of the timeline of events and for failing to

object to the prosecutor’s remarks during closing argument regarding

Appellant’s association with his co-defendant, Justin Johnson. We affirm.

      The relevant facts of this matter include the following:

         On March 8, 2013, Marshauna Hinton [(Complainant)]
         entered her home on Locust Street in Norristown,
         Montgomery County, and found two men inside the
         residence. She promptly fled and called police.
         [Complainant] later identified co-defendant, Justin Johnson,
         from a photo line-up, and he was arrested that same day.
         Johnson admitted his involvement, and informed police that
         he and [Appellant] had committed a string of burglaries in
         Norristown in early 2013, including the one at
         [Complainant’s] home. [Appellant] was initially charged on
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           March 21, 2013, with the Hinton burglary. However, the
           complaint was withdrawn and a revised complaint was filed
           on April 15, 2013, charging [Appellant] with numerous
           crimes, 68 counts in all, including robbery,[1] burglary,[2]
           [receiving stolen property],[3] and conspiracy,[4] for the
           2013 Norristown burglaries.

        Commonwealth v. Davis, No. 397 EDA 2015 [(filed Dec. 30,
        2015),] at 2. By [o]rder of April 30, 2014, the multiple burglaries
        were ultimately severed by the [trial c]ourt, and ordered to be
        tried separately.

        [At a jury trial, held on September 3 and 4, 2014, regarding the
        burglary on Locust Street], Justin Johnson testified that he and
        [Appellant] entered the home at 1215 Locust Street. Prior to
        entering the home, they knocked on the front door and yelled
        through the mail slot to determine if anyone was home. Satisfied
        the house was empty, the [Appellant] went behind the house, and
        gained entry into the home, and opened the front door from the
        inside and let Johnson into the home. Both men went to the
        second floor of the home to look for valuables. After a few
        minutes, at approximately 11:15 a.m., [Complainant] arrived
        home, and saw Johnson [and another individual in a mask with a
        gun]. Both men fled the home and ran to [Appellant’s] home on
        Cherry Street. It took less than five minutes to arrive at Cherry
        Street. They sorted the jewelry and discussed meeting at the
        Norristown Transportation Center to take the train to Lou’s Pawn
        Shop in Upper Darby. They were in the home on Cherry Street
        for about five to ten minutes. Johnson was arrested while
        [walking] to his mother’s house, a five minute walk from Cherry
        Street, to change his clothes. [Appellant traveled to Lou’s Pawn
        Shop in Upper Darby, passing several other pawn shops in
        Norristown.] At 2:51 p.m., records from Lou’s Pawn Shop . . .
        show that [Appellant] sold a ring taken from the Locust Street
        burglary.
____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).

2
    18 Pa.C.S. § 3502(a)(2).

3
    18 Pa.C.S. § 3925(a).

4
    18 Pa.C.S. § 903(a)(1).


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PCRA Ct. Op., 9/11/17, at 1-2 (some citations omitted).

      During closing arguments, Appellant’s counsel conceded that Appellant

had received stolen property, but argued that Appellant had not been involved

in the burglary itself. Moreover, Appellant’s counsel challenged the credibility

of Johnson based on Johnson’s prior convictions and argued that Johnson’s

testimony that Appellant participated in the Locust Street burglary was

inconsistent and unworthy of belief. See N.T. Trial, 9/4/14, at 85-86, 95-98.

      The Commonwealth, during its closing argument, stated that Johnson

was a known criminal and someone with whom Appellant associated. Id. at

121-23. The prosecutor also stated that fifteen minutes elapsed between the

burglary and Johnson’s arrest.    Id. at 136.    In asserting that only fifteen

minutes   passed    between    the   burglary   and   Johnson’s    arrest,   the

Commonwealth referred to Johnson’s testimony that (1) it took fewer than

five minutes to go from the burglary at 1215 Locust Street to Appellant’s home

at 1007 Chestnut Street, (2) Johnson and Appellant were at Appellant’s home

for approximately five minutes, and (3) Johnson then headed to his mother’s

house to change clothes, which was took another five minutes, but was unable

to change his clothes because he was arrested. Id. at 135-36; see also N.T.

Trial, 9/3/14, at 154-160.

      At the conclusion of the trial, the jury convicted Appellant of burglary,

criminal conspiracy and receiving stolen property, but acquitted him of

robbery. Appellant was sentenced on January 9, 2015, to 4½ to 9 years of

incarceration. On direct appeal, on December 30, 2015, this Court affirmed

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the judgment of sentence and permitted Appellant’s counsel to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967).

      Appellant filed a timely pro se petition under the PCRA, which the PCRA

court docketed on January 21, 2016. Counsel was appointed, who filed an

amended PCRA petition. Attached to Appellant’s pro se petition was a police

report dated March 27, 2013, which was not introduced into evidence at trial,

but which indicated that police were dispatched to the scene of the burglary

at approximately noon on March 8, 2013 and that Johnson was arrested at

1:13 PM. See Police Report, 3/27/13.

      The Commonwealth filed a response, and Appellant filed an addendum.

A hearing on the PCRA petition was held on March 23, 2017. At the hearing,

the timeframe in which Johnson was arrested following the burglary was

expanded and established to be one hour and twenty minutes. See N.T. PCRA

Hr’g, 3/23/17, at 11. By order of April 28, 2017, the PCRA court found that

trial counsel was not ineffective and dismissed Appellant’s PCRA petition.

      This timely appeal followed.     Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      1. Whether the PCRA [c]ourt erred in finding that trial counsel was
         not ineffective where trial counsel failed to introduce evidence
         of the timeline of events, which would have bolstered the
         defense theory that Appellant purchased [a] stolen item after
         the burglary[.]

      2. Whether the PCRA [c]ourt erred in finding that trial counsel was
         not ineffective where trial counsel failed to object to [the]
         prosecutor’s unduly prejudicial remarks regarding Appellant’s

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         “association/friendship” with his co-defendant[,] who had an
         extensive criminal record[,] during closing argument in
         violation of Appellant’s due process rights, and the prohibition
         against admission of prior bad character evidence[.]

Appellant’s Brief at 4.

      In both issues, Appellant contends that the PCRA court erred in

dismissing ineffective assistance of counsel claims. The following principles

govern our review:

      Our standard of review of a PCRA court’s denial of a petition for
      postconviction relief is well-settled: We must examine whether
      the record supports the PCRA court’s determination, and whether
      the PCRA court’s determination is free of legal error. The PCRA
      court’s findings will not be disturbed unless there is no support for
      the findings in the certified record.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation

omitted). Additionally,

      [i]t is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (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.

Id. (citation omitted).

      In his first issue, Appellant asserts that trial counsel was ineffective for

failing to establish an accurate timeline related to Johnson’s arrest, which

would have made it more plausible that Appellant was not involved in the

burglary and instead had purchased a ring afterward from Johnson. Appellant

specifically argues that



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      [t]rial counsel should have presented evidence that established
      there was an hour and twenty minutes that went by between
      [Complainant] calling the police, and Justin Johnson being
      arrested to support the defense theory that there was time for
      Appellant to have received the stolen ring, not that he was a
      participant in the burglary. In addition, trial counsel should have
      objected to the Commonwealth’s continued assertion during his
      closing argument that there was only a fifteen-minute time period.

Appellant’s Brief at 19. Since one hour and twenty minutes elapsed between

Complainant calling the police and Johnson being arrested, Appellant had

more time to have purchased the ring that he sold at the pawnshop. According

to Appellant, this supports his argument that he was not a participant in the

burglary itself. Id.

      By way of background to this issue, when asked about the significance

of the longer period of time at the PCRA hearing, trial counsel testified that

      [i]n [his] view, based on the evidence as it came into the case, [it
      would not] have made a difference because of the testimony of
      Justin Johnson and the evidence regarding the pawn shop. [He
      did not] think it would have made a difference.

N.T. PCRA Hr’g, 3/23/17, at 64.

      The PCRA court denied relief on this claim, concluding:

      Further development regarding the specific amount of time that
      elapsed between the burglary and Justin Johnson’s arrest would
      not have created the probability of a different outcome, thereby
      failing to satisfy the prejudice prong. Even fifteen minutes would
      have been enough time for Johnson to meet [Appellant] and sell
      him the ring. Furthermore, trial counsel did pursue a strategy
      wherein he argued that [Appellant] was only guilty of receiving
      stolen property.

PCRA Ct. Op., 9/11/17, at 6.




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      We agree with the PCRA court. Appellant asserts that the fifteen-minute

timeframe made it appear more likely that he was involved in the underlying

burglary.   However, either amount of time was sufficient for him to have

received stolen property from Johnson.       The jury was presented with the

theory that Appellant had merely received stolen property, which was

plausible under the timeline established at trial.

      Moreover, the evidence adduced at trial indicated that Appellant had

participated in the burglary. Appellant’s consciousness of guilt was apparent

in that he chose to bypass several pawn shops in the more immediate area to

travel to Lou’s Pawn Shop in Upper Darby to sell the ring.          Additionally,

Johnson knew Appellant would sell the ring at Lou’s Pawn Shop, making it

more likely that they had committed the burglary together. See N.T. Trial,

9/3/14, at 156. Accordingly, Appellant has not demonstrated a reasonable

probability of a different outcome if the hour-and-twenty-minute timeframe

had been clarified at trial. See Franklin, 990 A.2d at 797.

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

for failing to object to the prosecutor’s allegedly prejudicial remarks regarding

Appellant’s association with Justin Johnson, who had an extensive criminal

record. Appellant’s Brief at 23. Appellant argues that referring to him as a

friend of Johnson’s was a reference to impermissible bad character evidence

that denied Appellant a fair trial.    Id. at 24 (citing Commonwealth v.

Lipscomb, 317 A.2d 205, 207 (Pa. 1975) and Commonwealth v. Scarfo,

611 A.2d 242, 283-84 (Pa. Super. 1992)). Specifically, Appellant argues that

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the “prosecutor relied upon the prior criminal history of Mr. Johnson to argue

that this is an ‘associate’ or even ‘friend’ of Appellant as a basis for a finding

of guilt that is impermissible as bad character evidence.” Id. (citing Pa.R.E.

404(a)(1)).

      By way of background to this claim, the prosecutor stated the following

during closing argument:

      And we’ll get to corroboration which I’m going to suggest to you
      there’s more than enough corroboration in this case for each and
      every one of you to find Justin Johnson to be a credible witness .
      . . And think not just about Justin Johnson as an interested-party
      here; but the reality is that there’s an additional interested party
      involved in this case, a party who I would suggest to you has not,
      just a passing interest, but a vital one, one that would cause that
      person to attempt in any way that they could to discredit
      otherwise credible evidence against them. [Appellant], do not
      forget, though he bears no burden is still an interested party in
      this. And also don’t forget every time we talk about the various
      prior convictions that Justin Johnson has, don’t forget that Justin
      Johnson is at the very least a known associate, if not a friend, of
      [Appellant], the kind of person that [Appellant] associates himself
      with. At the very least, even though, and we’ll get there, defense
      counsel will talk about the ring coming into the possession of
      [Appellant]. The ring got there somehow. Even under their theory,
      which is not evidence, the ring came to [Appellant] through a
      source. And that source, according to their theory that is not
      evidence, is Justin Johnson. So even taking at face value, which
      ultimately, as I said, is argument and not evidence, every time
      you think about those prior convictions that Justin Johnson has,
      you think about how that relates to [Appellant] and his
      associations.

N.T. Trial, 9/4/14, at 122-24.

      A claim of prosecutorial misconduct is evaluated based upon

      “whether the defendant was deprived of a fair trial, not deprived
      of a perfect one. Thus, a prosecutor’s remarks do not constitute
      reversible error unless their unavoidable effect . . . [was] to

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      prejudice the jury, forming in their minds fixed bias and hostility
      toward the defendant so that they could not weigh the evidence
      objectively and render a true verdict.”

Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation

omitted).

      When considering claims that a prosecutor has committed misconduct

in his or her comments to the jury, we note that “the prosecutor may fairly

respond to points made in the defense closing. 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. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citation omitted).

      Here, the PCRA court found that the Commonwealth’s comments about

Johnson

      constituted a proper response to trial counsel’s attack on the
      credibility of Johnson and proper argument regarding the charge
      of receiving stolen property.      Based on Johnson’s history,
      [Appellant] knew or should have known that the ring that came
      into his possession was stolen. Therefore, counsel was not
      ineffective for failing to object.


      Even assuming, arguendo, that the prosecutor’s remarks were
      objectionable and improperly implied that [Appellant] himself had
      a prior record, he did not suffer actual prejudice. While he was
      convicted of burglary, criminal conspiracy and receiving stolen
      property, the jury acquitted him of the charge of robbery.
      Therefore, it is clear that the prosecutor’s argument did not create
      a bias or hostility toward [Appellant] that negated the jury’s ability
      to render a fair verdict.

PCRA Ct. Op., 9/11/17, at 10-11.




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     We agree with the PCRA court.      The comments were fair rebuttal to

attacks on Johnson’s credibility, since they show that Johnson was willing to

be completely honest about his background.        Additionally, the evidence

presented at trial supported the comments the prosecutor made regarding

Johnson and his history. See Judy, 978 A.2d at 1020. Moreover, the jury

was not unfairly prejudiced against Appellant by the prosecutor’s remarks, as

shown by Appellant’s acquittal for robbery.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




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