J-S36014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                       v.

TERRELL WRIGHT

                            Appellant                      No. 3106 EDA 2015


                Appeal from the PCRA Order September 18, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011742-2008


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                  FILED August 4, 2017

       Appellant,    Terrell   Wright,    appeals   from   the   order   entered   on

September 18, 2015, in the Court of Common Pleas of Philadelphia, denying

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Wright raises four allegations of the ineffective

assistance of trial counsel.1 We affirm.

____________________________________________


1
  The only transcript initially in the certified record was the verdict from April
12, 2010. Trial started on April 6. Obviously, we need more than just a
transcript of the verdict to resolve four claims of the ineffective assistance of
trial counsel.

  It is an appellant’s responsibility to ensure that the certified record contains
all the items necessary to review his claims. See, e.g., Commonwealth v.
Tucker, 143 A.3d 955, 963 (Pa. Super. 2016). And the Rules of Appellate
Procedure provide for this by requiring an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised on appeal. See
Pa.R.A.P. 1911(a). Indeed, the rule provides a suggested form for an
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                       _______________________
(Footnote Continued)

appellant to use. See id., at (c). Furthermore, the Court of Common Pleas of
Philadelphia County has issued a local rule of judicial administration that
provides that an appellant must request a transcript using a “Transcript
Order Form.” See Phila. County L.R. 5000.5(a). When a litigant is requesting
the transcript for the purpose of an appeal, the form must be filed with the
trial court as well as with the Prothonotary of the appropriate appellate
court. See id., at (c)(2)(i, x).

 Appellant has privately retained counsel, Norris E. Gellman, Esquire, and
Margeaux Cigainero, Esquire. And Appellant’s counsel have not complied
with Rule 1911 nor with Rule 5000.5. Instead, counsel simply carbon copied
the court reporter on the notice of appeal. See Notice of Appeal, filed
September 30, 2015.

        When the appellant … fails to conform to the requirements of
      Rule 1911, any claims that cannot be resolved in the absence of
      the necessary transcript or transcripts must be deemed waived
      for the purpose of appellate review. It is not proper for either the
      Pennsylvania Supreme Court or the Superior Court to order
      transcripts nor is it the responsibility of the appellate courts to
      obtain the necessary transcripts.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(internal citations omitted).

 Despite the dictates of Preston, we examined the lower court docket
entries and confirmed that transcripts were filed of record for the direct
appeal. As such, we had our deputy prothonotary contact the lower court’s
prothonotary to inquire about the transcripts. The next day, the lower court
electronically filed the transcripts with this Court.

  We also have to mention the reproduced record counsel filed. It consists of
just twelve pages of the prosecutor’s closing argument. We refer counsel to
Pa.R.A.P. 2152(a). Also, counsel have failed to append a copy of the PCRA
court’s opinion to their brief in violation of Pa.R.A.P. 2111(b).

 Frankly, counsels’ actions in their failure to follow the rules are simply
unacceptable.



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      We assume the parties’ familiarity with the facts and the procedural

history of this case, which we describe only as necessary to explain our

decision. We refer an interested reader to the PCRA court’s decision, see

PCRA Court Opinion, filed 7/25/16, and to this Court’s decision from the

direct appeal, see Commonwealth v. Wright, 2430 EDA 2010, at 1-4 (Pa.

Super., filed May 7, 2012) (unpublished memorandum).

      A jury convicted Wright of first-degree murder, attempted murder,

aggravated assault, and possession of an instrument of crime. The trial court

imposed an aggregate term of imprisonment of life without the possibility of

parole. The convictions stem from Wright’s fatal shooting of Jarrett

Washington and the wounding of Sherrieff Watkins.

      Wright filed a direct appeal. And we affirmed his judgment of

sentence. Our Supreme Court denied Wright’s petition for allowance of

appeal. Wright, through privately retained counsel, timely filed a PCRA

petition, raising claims of the ineffective assistance of trial counsel. The

PCRA court issued a Rule 907 notice of its intention to dismiss without a

hearing. Wright filed objections, but the court subsequently dismissed the

petition. This timely appeal follows.

               We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court and
      the evidence of record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.




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

citations omitted).

      All four of Wright’s issues allege the ineffective assistance of trial

counsel. We assume counsel’s effectiveness and Wright bears the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004). To do so, Wright must establish, by pleading and proving, the

underlying issue has arguable merit, counsel’s actions lacked an objective

reasonable basis, and actual prejudice resulted from counsel’s act or failure

to act. See Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super.

2012). A failure to satisfy any prong of the test will require rejection of the

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

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of

arguable merit is a legal determination.” Commonwealth v. Barnett, 121

A.3d 534, 540 (Pa. Super. 2015) (citation omitted). As explained below,

Wright is unable to establish this prong in three of his claims. And the final

claim we find waived for the failure to cite any authority.

      Wright’s first issue on appeal takes exception to trial counsel’s failure

to object to the trial court’s instruction on “demeanor evidence.” Appellant’s

Brief, at 11. The pertinent portion of the jury charge is set forth below.

      You, as the jury, must consider and weigh the testimony of each
      witness and give it such weight as in your judgment it is fairly
      entitled to receive. The matter of the credibility of a witness,
      that is whether his or her testimony is believable and accurate in

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      whole or in part[,] is solely for your determination. I’ll mention
      some of the factors that might bear on that determination.

      Whether the witness has any interest in the outcome of the case
      or has friendship or animosity toward the other persons
      concerned in the case, the behavior of the witness on the
      witness stand, and his or her demeanor, his or her manner of
      testifying, and whether he or she showed any bias or prejudice
      which might color his or her testimony, the accuracy of his or
      her memory and recollection, his or her ability and opportunity
      to acquire knowledge of or to observe matters concerning which
      he or she testified, the consistency or inconsistency of his or her
      testimony or inconsistency with any prior statement, as well as
      its reasonableness in light of all the evidence in the case.

N.T., Trial, 4/9/10, at 97-98 (emphasis added).

      Wright objects to the emphasized language. See Appellant’s Brief, at

11. According to Wright, trial counsel should have objected to the instruction

as it invited the jurors “to make outcome determinative credibility

determinations based on how the witness appeared while testifying – a

judgment based solely on personal predilections with no standards imposed

to guide those predilections.” Id. Simply put, that the jurors could have

voted to convict based simply on their not liking a particular witness. This,

Wright   contends,   “violated   due   process   of   law   under   the   federal

constitution.” Id., at 14.

      For this sweeping assertion, Wright provides no conclusive citation to

authority—from any jurisdiction. See id., at 14-19. He simply cites to




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general principles on evidentiary inferences and concludes it should be so. 2

One wonders how trial counsel was supposed to have lodged an objection

when Wright, on collateral review, is unable to identify any authority, from

anywhere, to support his position. In any event, due process requires “that,

where demeanor evidence is critical, the ultimate factfinder in a criminal

case must hear the witnesses on whose testimony his findings will be

based.” United States v. Raddatz, 447 U.S. 667, 695 n.1 (1980)

(Marshall, J., dissenting) (citation omitted). That happened here.

       What Wright really advances in this collateral proceeding is a

suggestion that the law should be changed, calling it “laughable” in its

current form. Appellant’s Brief, at 16. But we must assess trial counsel’s

effectiveness “under the law in existence at the time of trial,” not according

to Wright’s novel argument. Commonwealth v. Spotz, 896 A.2d 1191,

1210 (Pa. 2006). And we turn next to scrutinize the disputed jury instruction

by examining the pertinent law.



____________________________________________


2
   Wright further makes the claim that this alleged error constitutes a
structural defect. Again, this claim has absolutely no support in case law.
The United States Supreme Court has identified the following, and only the
following, as structural defects: the complete denial of counsel, the denial of
the right of self-representation, the denial of the right to public trial, the
denial of the right to trial by jury by the giving of a defective reasonable-
doubt instruction, and the erroneous disqualification of a criminal
defendant’s choice of retained counsel. See Commonwealth v. Sandusky,
77 A.3d 663, 671 (Pa. Super. 2013).



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      “It is solely the province of the trier of fact to pass upon the credibility

of witnesses and to give it such weight as may be accorded to the evidence

therein produced. The factfinder is free to believe all, part or none of the

evidence.” Commonwealth v. Shaver, 460 A.2d 742, 745 (Pa. 1983)

(citations omitted). And to help the jurors assess credibility, trial courts

often read § 4.17 Credibility of Witnesses, General, of the Pennsylvania

Suggested Standard Criminal Jury Instruction.

      The trial court’s instruction in this case largely tracks the standard

instruction. Compare N.T., Trial, 4/9/10, at 97-98, with Pa. SSJI (Crim) §

4.17. And our Supreme Court has given its imprimatur to § 4.17. See

Commonwealth v. Snoke, 580 A.2d 295, 299 (Pa. 1990) (“These

instructions provided the jury with those factors that are properly considered

in ascertaining credibility.”)

      Wright especially objects to the trial court’s reference to “demeanor.”

It means “[t]he way in which one behaves or conducts oneself.” Webster’s II

New College Dictionary 300 (1995). It is true that § 4.17 does not

specifically use the word “demeanor” in the instruction. But it is implicitly

considered in the instruction. See Pa. SSJI (Crim) § 4.17(1)(d) (“Did the

witness testify in a convincing manner? [How did [he] [she] look, act, and

speak while testifying?”) (brackets in original). And our Supreme Court has

instructed that

      the question of whether a particular witness is testifying in a
      truthful manner is one that must be answered in reliance upon

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       inferences drawn from the ordinary experiences of life and
       common knowledge as to the natural tendencies of human
       nature, as well as upon observations of the demeanor and
       character of the witness.

Commonwealth v. Seese, 517 A.2d 920, 922 (Pa. 1986) (citing Danovitz

v. Portnoy, 161 A.2d 146, 149 (Pa. 1960) (“In determining the weight to be

attached to the testimony of a witness it is proper to consider his

appearance, general bearing, conduct on the stand, demeanor, manner of

testifying, such as candor or frankness, or the clearness of his statement,

and even the intonation of his voice.”)) (emphasis added).3

       The trial court’s instruction was legally sound. There was no basis for

trial counsel to object. And “[c]ounsel will not be deemed ineffective for

failing to raise a meritless claim.” Spotz, 896 A.2d at 1210 (citation

omitted).

       Wright’s next two issues assert trial counsel’s ineffectiveness for failing

to object to certain of the prosecutor’s statements during closing arguments.

       In accord with the long-standing principle that a prosecutor must
       be free to present his or her arguments with logical force and
       vigor, this Court has permitted vigorous prosecutorial advocacy
       as long as there is a reasonable basis in the record for the
       [prosecutor’s] comments. Prosecutorial comments based on the
       evidence or reasonable inferences therefrom are not
       objectionable, nor are comments that merely constitute
____________________________________________


3
  Indeed, there is a suggested standard jury instruction for the trial court to
provide before the testimony of witnesses, instructing the jurors to
“[o]bserve each witness as he or she testifies” when judging credibility. Pa.
SSJI (Crim) § 2.04(2). The trial court provided that instruction. See N.T.,
Trial, 4/6/10, at 22.



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         oratorical flair. Furthermore, the prosecution must be permitted
         to respond to defense counsel’s arguments. Any challenged
         prosecutorial comment must not be viewed in isolation, but
         rather must be considered in the context in which it was offered.

                                        …

         The standard by which the court considers allegations of
         improper prosecutorial comments is a stringent one:

            Comments by a prosecutor constitute reversible error
            only where their unavoidable effect is to prejudice the
            jury, forming in their minds a fixed bias and hostility
            toward the defendant such that they could not weigh the
            evidence objectively and render a fair verdict.

Commonwealth v. Hutchinson, 25 A.3d 277, 306-307 (Pa. 2011) (all

citations and quotation marks omitted; brackets in original).

         Wright first objects to the portion of the prosecutor’s closing

argument, which he claims, “posited a clash of cultures” where one culture

has a “credo of ‘no snitch’” while the other is “law abiding.” Appellant’s Brief,

at 22.

         At trial, there were two key witnesses, Sherrieff Watkins and Eddie

Moody. The night before the shooting, they had assaulted Wright’s brother.

Shortly after the shooting, both signed statements identifying Wright as the

shooter, but, at trial, both denied knowing who shot the victim. In response

to this surprising testimony, the Commonwealth had detectives read the

signed statements to the jury.

         “Snitching” featured prominently in both the Commonwealth’s, see

N.T., Trial, 4/6/10, at 38, 41-42, and the defense’s theories of the case. In


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his opening, defense counsel stated, “[t]he defense side in the story is, yes,

there was a fight. It wasn’t over any theft of a gun. It was over supposedly

my client and others saying that Sharrieff [sic] Watkins was a snitch.” Id.,

at 47. And “snitching,” not surprisingly, came up throughout the rest of the

trial.

         Watkins testified that he used the word “snitching” at the hospital, but

would not admit when asked by the prosecutor, “snitching means that you

know who the doer is but you ain’t telling, right?” Id., at 220. Officer Tyric

Armstead testified that after the shooting he observed Watkins, who had

been shot in the arm, and heard him say, “I’m not snitching. I’m going to

handle it.” N.T., Trial, 4/7/10, at 14. Officer Jason Reid testified that Watkins

stated, “I know who shot me, but I ain’t no snitch.” Id., at 152.

         Importantly, Wright’s trial counsel argued during his closing argument

that the only evidence to believe from Watkins and Moody were their

testimonies given under oath and in open court, as their signed statements

were not sworn. See N.T., Trial, 4/9/10, at 42.

         And so, with that background, during her closing argument, the

prosecutor said this:

               Eddie Moody himself, the entire time, okay, when he goes
         south, it’s an interesting south, it’s like selective memory; I
         remember this part, I remember this part, I did say this, yes,
         Ma’am, I said that, but no, I don’t remember this, I don’t
         remember that, I don’t remember that. He never said he didn’t
         say it. He never said Detective Marano put those words in his
         mouth. He just had selective memory loss, and to those parts


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       that he had memory loss to was those parts that only affected
       [Wright’s] name and his take in this whole thing.

              What does common sense tell you about that? Come on,
       folks. It doesn’t take a law degree, it doesn’t take 15 years of
       trying homicide cases to figure this out. You guys are all
       probably smarter than me when it comes to half the things in
       this world, but it doesn’t take much to realize when people go
       south, they go south for a reason. And the reason why they both
       went south is because – I don’t know, something’s happening in
       the neighborhoods.

N.T., Trial, 4/9/10, at 71-72 (emphasis added). At this point, defense

counsel stated, “[o]bjection.” Id.4 The trial court overruled the objection and

the summation continued:

             I can’t explain it. This no-snitch culture, but the law is
       smart. The law responds to what is happening out there, and the
       law says that we are not going to let that culture take over
       what’s happening in the courtroom. We can’t. And that’s why
       you’re going to hear an instruction from the Judge that says that
       that statement read in by Detective Marano and Detective Lucke
       can be considered as substantive evidence. You may use that for
       the truth in determining whether this defendant is guilty.

Id., at 72 (emphasis added).

       Wright objects to the emphasized portions of the charge, arguing that

“[b]y making this issue a clash of cultures, the prosecutor literally created a

significant bias – by the law – in favor of police statements vis a vis recanted

trial testimony.” Appellant’s Brief, at 23. That is a stretch. And that is simply

not what happened here.

____________________________________________


4
 The efficacy of this general objection was null. See Sandusky, 77 A.3d at
670-671.



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      As explained above, we cannot view the comments in isolation, but

must view the prosecutor’s closing argument in its entirety. It is obvious the

prosecutor was making the comments about “snitching” and its “culture” in

fair response to the evidence presented at trial, to the defense’s theory of

the case, and the defense’s closing argument. It also explains to the jury the

Commonwealth’s theory of Watkins’s and Moody’s refusal to identify the

shooter, despite each having signed statements identifying Wright.

      “There are many reasons why a witness says one thing outside of

court, and another thing when on the stand. One common reason why

witnesses in criminal cases change their accounts at trial is fear of

reprisal[.]” Commonwealth v. Brown, 52 A.3d 1139, 1189 (Pa. 2012)

(Castille, then-C.J., concurring and dissenting). This gets at the heart of

“snitching” and its “culture” and it is what, as noted above, the prosecutor

was explaining to the jury in this case. (After all, there is the old adage,

“snitches get stitches,” whose popularity is amply demonstrated by Googling

that phrase.)

      As the prosecutor did not commit misconduct in her closing argument,

we cannot find that trial counsel provided ineffective assistance by failing to

raise an effective objection to it.

      Wright next claims trial counsel provided ineffective assistance for

failing to object to the prosecutor’s “testimony” during her closing argument




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and giving her opinion about Wright’s motivation after Watkins and Moody

assaulted his brother. We disagree.

      The prosecutor stated:

            The night before, 24 hours before the shooting, when with
      his brother at his own corner, Lambert and Maderi, he was
      beaten up, by Sherrieff Watkins and Eddie Moody. Not only was
      he beaten up, but his younger brother, Shizz, was beaten up.
      That is one of the strongest motives you’ll ever hear in a criminal
      case.

             His younger brother, his sibling was beaten up at his own
      intersection at his own corner. He couldn’t even get the respect
      that he so wanted at his own corner, and on top of being beaten
      up, his own sibling is being beaten up. Have you ever been so
      angry before than seeing one of your own family members hurt?
      I was telling this story to my sister, my younger sister, and we
      grew up in Upstate New York and she keeps reminding me, and I
      don’t know why she tells this story but probably because of the
      nature of my job, but she likes to remind me of stupid things
      that I used to do when I was a kid. But when I told her this story
      she reminded me of a story when we got into a little altercation,
      my sister and I, with another girl in the playground. And they,
      growing up in Upstate New York, there weren’t many Asians
      back in the early 1980s. And I remember this girl said something
      to my sister and called her a name. And she didn’t call me the
      name but she called my sister the name, and I was probably
      only about ten pounds lighter than I am now, but about as tall as
      I am now, but I went over to that girl who was a good five, six
      inches taller than me and at least twenty pounds more, and I
      grabbed her by the hair and I literally took her to the ground and
      forced her to apologize to my sister. The insult to my sister was
      so egregious that I took more offense to that than my sister did.
      Maybe you understand it, maybe you don’t, I don’t know, but I
      can certainly understand what the defendant was feeling when
      on his own corner his younger brother was beaten up by two
      guys that didn’t belong at that corner.

N.T., Trial, 4/9/10, at 74-76.




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      Wright maintains the unavoidable effect of the prosecutor’s statements

was to prejudice the jury. Did these statements about the prosecutor’s

protection of her sibling, when they were children, form in the jurors’ minds

a fixed bias and hostility toward the defendant such that they could not

weigh the evidence objectively and render a fair verdict? No. The

prosecutor’s statements were nothing more than rhetorical flair. This claim

has no merit.

      In fact, it is worth noting that defense counsel referred to his own

family to illustrate points in support of his theory of the case. See N.T.,

Trial, 4/6/10, at 57; N.T., Trial, 4/9/10, at 46.

      In his final issue on appeal, Wright asserts trial counsel’s ineffective

assistance in failing to request

      jury instructions that would have informed the jury that when
      statements are made under coercive circumstances so their
      voluntariness is questionable, the reliability and accuracy of such
      statements is called into question and if the jury finds such
      coercive circumstances, the jury should regard such statements
      with great caution before accepting them for the truth of their
      content.

Appellant’s Brief, at 32-33.

      Wright,   however,       after   casting   aspersions   on   trial   counsel’s

representation, fails to cite any authority to support this assertion. We find

the claim waived. See Commonwealth v. Hunzer, 868 A.2d 498, 516 (Pa.

Super. 2005) (finding claim waived where appellant “has failed to cite any

legal authority whatsoever in support of this argument”). And “an appellant’s


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belief that a court’s instructions should contain additional explanation or his

chosen dicta will not render a jury charge defective.” Id. (citations and

internal quotation marks omitted).

      Order affirmed.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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