J-S32004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    DARRELL MACK                               :
                                               :
                      Appellant                :       No. 2723 EDA 2016

                  Appeal from the PCRA Order August 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002453-2007


BEFORE:       GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 26, 2017

        Appellant, Darrell Mack, appeals from the order of the Philadelphia

County Court of Common Pleas, which denied his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This Court previously set forth most of the relevant facts of this case

as follows:

          On April 23, 2006, at 11:18 p.m., police responded to a
          radio call about a shooting at 45th and Laird Streets in
          Philadelphia.    Police found 19-year-old Brian Woolfolk
          [“Victim”] lying on the ground and bleeding from his head.
          A    bicycle   was     next   to   his  body.       Medics
          pronounced…[V]ictim dead at the scene. He had been
          shot four times: in the head, in each shoulder, and in his
          left buttock. Ballistic evidence recovered from the street
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1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
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         and…[V]ictim’s body were determined to be .38/357
         caliber and all fired from the same weapon.

         As a result of their investigation into the shooting, the
         police obtained an arrest warrant for Appellant on October
         20, 2006. The next day, [the police] executed the arrest
         warrant, and obtained and executed a search warrant for
         Appellant’s home.     There, the police recovered a cell
         phone, Appellant’s social security card, and a used
         shooting range paper target.            A ballistics expert
         determined that the bullet holes in the paper target were
         consistent with the bullets used to kill…[V]ictim. …

         A neighbor, Ms. Bates, testified at trial that she witnessed
         Appellant     (whom     she    knew       as    “Dirty   D”)
         approach…[V]ictim and talk with him. Appellant rifled
         through…[V]ictim’s pockets. When…[V]ictim dismounted
         his bike, Ms. Bates heard gunshots. She ran out of her
         house, saw…[V]ictim lying in the street, and screamed
         “Dirty D just shot him.” Another neighbor, Ms. Calloway,
         told detectives that she heard gunshots on April 23rd while
         she was in bed. She saw Ms. Bates outside screaming,
         “Dirty D just shot him.” Ms. Calloway also stated that she
         had seen Appellant carrying something that looked like a
         gun prior to the shooting. At trial, however, Ms. Calloway
         denied seeing Appellant with a gun. The Commonwealth
         introduced her prior [inconsistent] statement through the
         testimony of Detective Morton.

                                   *     *   *

Commonwealth v. Mack, No. 545 EDA 2009, unpublished memorandum at

1-3 (Pa.Super. filed September 24, 2012).

      The next witness, Walter Williams, sent the police a letter from prison

and claimed to have information about Victim’s murder. When interviewed,

Mr. Williams told the police that he saw Victim sitting on his bike talking to

Appellant at 45th and Laird Street, heard gunshots several seconds later, and

saw Appellant going through Victim’s pockets while Victim was lying on the

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ground. Mr. Williams also said he saw Appellant holding a gun in his hand.

At trial, Mr. Williams recanted his statement. The Commonwealth asked Mr.

Williams if anyone approached him about this case before trial, and Mr.

Williams said an investigator questioned Mr. Williams at his house.         The

Commonwealth     introduced   Mr.   Williams’   prior   inconsistent   statement

through the testimony of Detective Morton.         Detective Morton said he

contacted Mr. Williams about testifying at Appellant’s trial, and Mr. Williams

indicated he was concerned about his family’s safety and his well-being.

During closing arguments, the prosecutor addressed Mr. Williams’ recanted

statement:

         What else is interesting? They talk about this investigator
         coming out, Walter Williams told us about, that an
         investigator from the defense came out to him and he
         signed a statement for them. He says in that statement,
         he says to you: “They are on my porch at my house,” at
         an address they keep repeating wasn’t the address he
         gave to police.

         They are not doing anything wrong, I don’t mean to
         suggest that, by interviewing witnesses.

         He moved away from his old address and people are
         coming to this house and asking him: “I am working for
         [Appellant] and I want to know: What did you see on that
         night?

         Walter Williams is: “Oh, my God. I am at a new house and
         they still found me and they want me to say what I knew
         about that night.”

         He doesn’t say: “I lied to the police about the violation of
         parole.” He says: “I don’t know [Appellant]. I have
         nothing to do with this, nothing to do with this case”
         because [Mr. Williams] is panicking.

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          [Mr. Williams] has a guy on his porch who found him,
          sought him out and still asking him about this case.
          Walter Williams is scared to death, just as he told
          Detective Morton; he is afraid. He doesn’t want to put his
          life at stake. He wanted to tell the police originally what
          happened. When push comes to shove, it’s his life as
          opposed to [Victim’s] life, who is already dead.

(N.T. Trial, 10/29/08, at 17-18) (emphasis added).2

       Procedurally, a jury convicted Appellant on October 29, 2008, of first

degree murder, robbery, and firearms not to be carried without a license.

The court sentenced Appellant on January 29, 2009, to life imprisonment for

the murder conviction, a consecutive term of five (5) to ten (10) years’

imprisonment for the robbery conviction, and a consecutive term of three

and a half (3½) to seven (7) years’ imprisonment for the firearms

conviction. This Court affirmed the judgment of sentence on September 12,

2012, and our Supreme Court denied allowance of appeal on May 13, 2013.

Appellant did not seek further direct review, and his judgment of sentence

became final on August 11, 2013.

       Appellant timely filed a pro se PCRA petition on May 2, 2014.     The

PCRA court appointed counsel, who subsequently filed an amended PCRA

petition and supporting brief on November 9, 2015. On May 3, 2016, the

Commonwealth filed a motion to dismiss Appellant’s PCRA petition.        The

____________________________________________


2
  We observe there are three separate transcripts for October 29, 2008. The
relevant transcript begins with the prosecutor’s closing arguments.



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PCRA court issued notice on July 15, 2016, of its intent to dismiss

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.             Appellant did not

respond. The PCRA court denied relief on August 19, 2016. On August 22,

2016, Appellant timely filed a notice of appeal.           The PCRA court ordered

Appellant on August 31, 2016, to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied

on September 8, 2016.

      Appellant raises two issues for our review:

         [WHETHER] APPELLATE COUNSEL WAS INEFFECTIVE FOR
         FAILING TO RAISE ON APPEAL A CLAIM THAT THE
         PROSECUTOR     ENGAGED     IN    PROSECUTORIAL
         MISCONDUCT WHEN SHE MADE AN ARGUMENT FROM
         WHICH THE JURY COULD INFER THAT [APPELLANT]
         THREATENED WITNESSES[?]

         [WHETHER] TRIAL COUNSEL WAS INEFFECTIVE FOR
         FAILING TO OBJECT TO A CLOSING COMMENT MADE BY
         THE PROSECUTOR REGARDING WHAT MAY HAVE
         OCCURRED TO THE MURDER WEAPON[?]

(Appellant’s Brief at 7).

      Our standard of review of a grant or denial of a PCRA petition is limited

to   examining   whether    the   evidence     of   record    supports    the    court’s

determination    and    whether    its    decision    is     free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal


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denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over

the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,

44, 18 A.3d 244, 259 (2011).

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

applicable law, and the well-reasoned opinion of the Honorable George W.

Overton, we conclude Appellant’s issues merit no relief.     The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See PCRA Court Opinion, filed November 4, 2016, at 3-10)

(finding: (1) viewed in context, prosecutor’s comment did not imply

Appellant threatened witness (Mr. Williams) to prevent him from testifying;

rather, prosecutor suggested witness recanted portions of his original

statement at trial and refused to admit that he had spoken with police

because witness panicked; prosecutor argued witness feared implications of

being involved with Appellant’s case; witness told police he feared for safety

of himself and his family; prosecutor gave jury possible explanation for

witness’ partial recantation; prosecutor’s statement was proper; (2) in his

closing argument, trial counsel emphasized that police did not find gun

and/or bullets in Appellant’s home; it was proper for prosecutor to respond

by saying it was no surprise that Appellant did not retain possession of

murder weapon because there was six-month gap in time between incident

in April 2006 and Appellant’s arrest in October 2006; prosecutor suggested

explanation for why police did not find murder weapon in Appellant’s home


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and highlighted that police found shooting range target with holes consistent

with ammunition police found at scene of incident and in Victim’s body;

prosecutor’s statements were proper; because his claims lack arguable

merit, Appellant failed to carry his burden under the Strickland test for

ineffective assistance of counsel). Accordingly, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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