J-S46010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SHAWN N. FREEMORE,

                            Appellant                   No. 3107 EDA 2015


           Appeal from the PCRA Order Entered September 11, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000258-2009


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 03, 2016

        Appellant, Shawn N. Freemore, appeals from the post-conviction

court’s September 11, 2015 order denying his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          Appellant raises

several claims of trial counsel’s ineffectiveness.      After careful review, we

affirm.

        The facts underlying Appellant’s convictions are unnecessary to our

disposition of his claims herein.        We need only note that in September of

2011, Appellant and a co-defendant, Ian Seagraves, were tried before a jury

for crimes related to the stabbing death of Michael Goucher. On September

21, 2011, Appellant was convicted of first-degree murder, conspiracy to

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*
    Retired Senior Judge assigned to the Superior Court.
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commit murder, and tampering with or fabricating evidence.1 On December

12, 2011, Appellant was sentenced to a term of life imprisonment without

the possibility of parole for first-degree murder, and a consecutive,

aggregate term of 8½ to 20 years’ imprisonment for his other two offenses.

He filed a timely notice of appeal, and after this Court affirmed his judgment

of sentence, our Supreme Court denied his subsequent petition for allowance

of appeal. Commonwealth v. Freemore, 82 A.3d 1074 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 82 A.3d 1074 (Pa. 2014).

        On April 22, 2015, Appellant filed the timely, pro se PCRA petition

underlying the present appeal. Counsel was appointed and filed an amended

petition on Appellant’s behalf, raising several claims of trial counsel’s

ineffectiveness.      The Commonwealth filed an answer, and the court

conducted an evidentiary hearing on July 6, 2015, at which Appellant’s trial

counsel, Robin A. Spishock, Esq., testified.     On September 21, 2015, the

PCRA court issued an order, and an accompanying opinion, denying

Appellant’s petition.

        Appellant filed a timely notice of appeal, and also timely complied with

the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of



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1
    See 18 Pa.C.S. §§ 2502(a), 903, and 4910, respectively.




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errors complained of on appeal.       Herein, he presents three issues for our

review:

      A. Was trial counsel ineffective for failing to file appropriate pre-
      trial motions to exclude the prejudicial evidence collected by the
      Commonwealth in violation of both the Pennsylvania and United
      States Constitutions?

      B. Was trial counsel ineffective for failing to object to prejudicial
      and outrageous comments made by the prosecution during its
      closing arguments?

      C. Was trial counsel ineffective for failing to raise appropriate
      issues on appeal to the appellate courts?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We begin by noting that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.”   Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has directed that the

following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, 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.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing

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     Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
     Pennsylvania, we have refined the Strickland performance and
     prejudice test into a three-part inquiry. See [Commonwealth
     v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
     prove counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali,
     608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
     prove any of these prongs, his claim fails.” Commonwealth v.
     Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
     omitted).      Generally,   counsel's   assistance    is  deemed
     constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate
     his client's interests. See Ali, supra. Where matters of strategy
     and tactics are concerned, “[a] finding that a chosen strategy
     lacked a reasonable basis is not warranted unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.”
     Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
     quotation marks omitted). To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel's unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
     quotation marks, and citation omitted). “‘[A] reasonable
     probability is a probability that is sufficient to undermine
     confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
     86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
     598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
     U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     In Appellant’s first issue, he avers that Attorney Spishock was

ineffective for failing to seek the suppression of notebooks seized from

Appellant’s vehicle during the execution of a search warrant.       Appellant

contends that the seizure of those notebooks exceeded the scope of the

search warrant, as “[n]o mention [was] made anywhere in the body of the



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warrant regarding the collection of any notebooks, composition books or

other personal items belonging to Appellant.”      Appellant’s Brief at 9-10.

Appellant further suggests that the notebooks were not lawfully seized under

the ‘plain view doctrine,’ as they were not “obviously incriminatory[,]” but

“only became so upon reading and analysis, which occurred after they were

seized.” Id. at 10; see also Commonwealth v. Turner, 982 A.2d 90, 92

(Pa. Super. 2009) (stating that for the ‘plain view’ exception to the warrant

requirement to apply, “the incriminating character of the item must be

‘immediately apparent’”) (citations omitted).

      Interestingly, Appellant makes absolutely no mention of the basis on

which the PCRA court ruled that his suppression claim lacked arguable merit.

Specifically, the court explained:

            The notebooks in question were obtained during a search
      of [Appellant’s] car on February 12-13, 2009. Return of Service
      and Inventory, Feb. 23, 2009, p.1. The items to be seized were:

         Any and all items capable of producing sharp force trauma
         including but not limited to knives, axes, hatchets,
         cleavers and saws. Other items to be search[ed] for and
         seized[:] trace evidence including but not limited to bodily
         fluids, blood, plasma, saliva, semen, hairs to include head,
         body and pubic hair; in addition to fingerprint evidence.
         Clothing evidence such as jackets, shirts, pants, gloves
         and other clothing. Vehicle ownership information. A
         mini/small recorder and other items such as wallets, credit
         card and ATM cards. Items which may have belonged to
         the victim Michael Goucher.

      Appl. for Search Warrant and Authorization, Feb. 12, 2009, p. 1
      (emphasis added). The notebooks were found on the dashboard
      and in the passenger seat of the vehicle. Notes of Testimony,
      Trial, Vol. III [(9/15/11)], p. 75 …. The officer [who] collected
      the notebooks testified at trial that some of the pages appeared

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     to have blood on them. Id. at p. 90. Furthermore, the officer
     collected the notebooks because of the blood on the pages and
     not their content. Id. at 91.

           [Appellant’s] only argument for this [suppression] claim is
     that the seizure of the notebooks was outside the scope of the
     search warrant. [Appellant] has not alleged that the warrant
     was illegally issued. Furthermore, [Appellant] does not seem to
     dispute that once seized, the contents of the notebooks were
     incriminating in nature and subject to the plain view doctrine.
     [Appellant’s Brief] in Supp. Of His [PCRA Petition], p. 4 …. (“[The
     notebooks] only became [obviously incriminatory] upon reading
     and analysis, which occurred after they were seized.”). Thus, we
     will only analyze whether the notebooks were properly seized
     within the scope of the search warrant.

            “The scope of a lawful search pursuant to a warrant is
     defined by the object of the search and the places in which there
     is probable cause to believe it may be found.” Commonwealth
     v. Taylor, 771 A.2d 1261, 1265-66 (Pa. 2001) (quotations [and
     citations] omitted). Search warrants “must describe the items to
     be seized with specificity.” Commonwealth v. Janda, 14 A.3d
     147, 160 (Pa. Super. 2011) [(citation omitted)]. Additionally, “a
     lawful search generally extends to the entire area in which the
     object of the search may be found.” Commonwealth v. Rega,
     933 A.2d 997, 1013 (Pa. 2007) [(citation omitted)].

            The warrant at issue in this case authorized seizure of,
     inter alia, “trace evidence including but not limited to … blood[.]”
     Appl. for Search Warrant and Authorization, Feb. 12, 2009, p.1.
     Blood evidence could have been anywhere in [Appellant’s] car,
     including on the notebooks. Indeed, the officer who conducted
     the search testified that the notebooks had blood on some of the
     pages. [Notes of Testimony, Trial,] Vol. III [(9/15/11)], p. 90.
     The collection of the notebooks that appeared to have blood on
     them was well within the scope of this warrant which authorized
     the seizure of trace evidence, including blood.               Thus,
     [Appellant’s] argument that the seizure of the notebooks was
     outside the scope of the warrant lacks merit and [Appellant’s]
     PCRA claim fails.

PCRA Court Order & Opinion (PCO), 9/21/15, at 5-6.




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      Appellant does not acknowledge the PCRA court’s rationale for finding

that his underlying suppression claim lacks arguable merit, let alone provide

any argument or legal authority to refute the court’s decision that the

notebooks fell within the scope of the search warrant because they

contained blood evidence. Our review of the certified record confirms that

the warrant did, in fact, authorize the seizure of ‘trace evidence’ including

blood, and that the searching officer seized the notebooks because they

appeared to have blood on them. See Application for Search Warrant and

Authorization, 2/12/09 (filed 2/24/09), at 1 (unnumbered) (Docket Entry

12); Receipt/Inventory of Seized Property, 2/12-13/09, at 1 (unnumbered)

(Docket Entry 12) (listing “Mead Notebook [with] Blood Stains” and “Black

Book [with] Blood Stains”). Because Appellant offers no discussion of why

the notebooks would have been suppressed as being seized outside the

scope of the warrant, when those notebooks contained trace blood evidence,

he has failed to demonstrate that his underlying suppression claim has

arguable merit. Accordingly, we agree with the PCRA court that Appellant’s

first ineffectiveness claim is meritless.

      Next, Appellant argues that Attorney Spishock acted ineffectively by

not objecting to a remark by the prosecutor during closing arguments. The

entirety of Appellant’s argument in support of this issue is the following:

            During trial, [the prosecutor] referred to [] Appellant as a,
      “homicidal [G]insu chef.” After objection by defense counsel
      when such representation was made, [the trial court] agreed
      that such representation was inappropriate, sustained such
      objection and told the jury to disregard the comment. When

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       [the prosecutor] used the exact same phrase in his closing
       argument, however, no such objection was made. Thus, this
       inflammatory and prejudicial comment was allowed to be
       considered by the jury during deliberations without any
       correction by the [c]ourt.

             Had an objection been made by trial counsel, [the court]
       would surely have sustained such objection, based on his earlier
       ruling, and it would have provided the jury a chance to be
       reminded that this phrase was out of bounds. It cannot be
       predicted with any certainty what effect this might have [had] on
       the jury, of course, but it is certainly a possibility that the jury
       might have drawn a negative inference against the
       Commonwealth[,] which might have led to [] Appellant[’s] being
       convicted of a lesser offense.

Appellant’s Brief at 11-12.

       Appellant’s scant argument, which contains no citation to the record or

any legal authority, is inadequate to demonstrate that the PCRA court erred

by rejecting this ineffectiveness claim.         In doing so, the PCRA court

concluded that Appellant failed to demonstrate that he was prejudiced by the

un-objected-to remark by the prosecutor:

            A review of the record reveals that the [prosecutor] …
       asked the following question during cross[-]examination of
       [Appellant]: “You some kind of homicidal Ginzu [sic] chef or
       what?” N.T. [Trial,] Vol. V [(9/19/11)], p. 173.[2] Counsel for
       Co-Defendant Seagraves … promptly objected “to the
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2
  For contextual purposes, just prior to the Commonwealth’s question,
Appellant testified that he ‘blacked out’ during the murder, and woke to find
himself holding two knives with the victim lying on the ground. See N.T.
Trial, 9/19/11 (Vol. V), at 172. Because the victim had been stabbed, and a
meat cleaver was discovered near the victim’s body, the Commonwealth
asked Appellant, “And you also happened to have a meat cleaver on you,
too?” Id. at 173. Appellant replied, “I always carried a meat cleaver on
me[,]” id., to which the Commonwealth asked the objected-to question,
“You some kind of homicidal Ginzu [sic] chef or what?” Id.



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     characterization” and this [c]ourt sustained that objection. Id.
     In closing arguments, [the prosecutor] again mentioned this
     characterization: “And that is why I said something about the
     homicidal [G]inzu [sic] chef because he wakes up, comes to, the
     victim is there.” N.T. [Trial,] Vol. VII [(9/21/11)], p. 69. At the
     time of the comment during closing argument, [the prosecutor]
     was going through [Appellant’s] testimony, pointing out
     weaknesses and inconsistencies. Id. at 68-72.

     …

           Prosecutorial remarks “fall within the ambit of fair
     comment if they are supported by evidence and they contain
     inferences which are reasonably derived from that evidence.”
     Commonwealth v. Hardcastle, 546 A.2d 1101, 1109 (Pa.
     1988). Moreover, an improper remark by a prosecutor will only
     “constitute reversible error [if] the language [is] such that its
     unavoidable effect would be to prejudice the jury, forming in
     their minds [a] fixed bias and hostility toward the defendant, so
     that they could not weigh the evidence and render a true
     verdict.” Id.

           Reading [the prosecutor’s] remark in context, it seems
     that he was not re-characterizing [Appellant] as a “homicidal
     Ginzu [sic] chef” but rather was explaining his previous question
     during cross[-]examination. While this action may or may not
     have been improper, it did not prejudice [Appellant]. After
     closing arguments from both sides, the [c]ourt gave the
     following instruction:

         An argument by a lawyer is designed to draw your
         attention to particularized facts which each lawyer for each
         particular position believes is important and by drawing
         your attention to those facts allows you to follow a path, if
         you will, to a particular conclusion or result. This is an
         argument. It is not testimony. Neither [the prosecutor] or
         Mr. D’Andrea or Ms. Spishock have provided any
         testimonial evidence in the course of this proceeding.
         They have by argument directed your attention to aspects
         of the trial either by testimony of witnesses, physical
         evidence of the case, which they believe have particular
         importance and significance and want you to consider that
         in coming to a particular conclusion that they have
         advanced forward…. [T]hat is what the argument process



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         is. It synthesizes a lot of testimony and evidence in a
         particularized way and leads to a result.

      N.T. [Trial,] Vol. VII [(9/21/11)], p. 93 (emphasis added). “A
      jury is presumed to follow the court’s instructions.”
      Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003)
      (citation omitted).    Thus, [Appellant’s] allegation that “this
      inflammatory and prejudicial comment was allowed to be
      considered by the jury during deliberations without any
      correction by the [c]ourt” is simply unfounded. [Appellant’s Brief
      in Support of PCRA Petition,] p. 6. Assuming, arguendo, that
      Attorney Spishock should have objected and did not have a valid
      reason for not objecting, [Appellant’s] claim must still fail
      because he has not proven that the lack of objection resulted in
      prejudice.

PCO at 9-11.

      Again, Appellant does not explicitly attack the PCRA court’s rationale

for denying his ineffectiveness claim, or provide citation to any legal

authority to support his argument that Attorney Spishock should have

objected to the prosecutor’s remark, that she had no reasonable basis for

failing to do so, or that Appellant was prejudiced by the omission of such an

objection.   In any event, the record supports the court’s conclusion that

Appellant failed to prove he was prejudiced by Attorney Spishock’s failure to

object. The first time the prosecutor made the at-issue comment, defense

counsel for Appellant’s co-defendant objected, and the court sustained that

objection. The at-issue, reiteration of the prosecutor’s 3-word remark came

in the midst of the prosecutor’s lengthy closing argument, see N.T. Trial,

9/21/11, at 58-91, and at the end of trial that spanned seven days. During

that trial, the Commonwealth presented significant evidence demonstrating

Appellant’s guilt, including Appellant’s confession to police that he and


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Seagraves planned to kill Goucher, and that the two did so by repeatedly

stabbing Goucher with a butcher knife and meat cleaver.        See N.T. Trial,

9/16/11 (Vol. IV), at 79-83. Appellant’s minimal and unsupported argument

fails to convince us that the prosecutor’s brief, at-issue remark changed the

outcome of Appellant’s trial.

       Finally, Appellant argues that Attorney Spishock was ineffective for not

raising these two claims on direct appeal.3 Clearly, Attorney Spishock could

not have raised either of these claims on direct appeal because she failed to

preserve them. Specifically, Attorney Spishock did not file a pretrial motion

seeking to suppress the notebooks seized from Appellant’s car on the basis

that their seizure exceeded the scope of the search warrant, and she did not

object to the prosecutor’s remark in his closing argument.          Therefore,

Attorney Spishock could not have asserted either of these underlying claims

on direct appeal.4 See, generally, Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on

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3
  Appellant also baldly states that Attorney Spishock should have asserted,
on appeal, “issues regarding [the] jury charge, inflammatory prosecutorial
language, lack of full and complete discovery, and other key issues….”
Appellant’s Brief at 13. Because Appellant offers no elaboration on the
underlying merits of these claims, he has failed to demonstrate that Attorney
Spishock was ineffective for not asserting them on direct appeal.
4
  Indeed, Attorney Spishock did attempt to raise the suppression claim
discussed herein, and this Court deemed it waived. See Commonwealth v.
Freemore, No. 1710 EDA 2012, unpublished memorandum at 4-5 (Pa.
Super. filed July 23, 2013).



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appeal.”).   Moreover, Attorney Spishock could not have raised, on direct

appeal, claims that she acted ineffectively by failing to preserve these

issues.   See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013)

(reaffirming the prior holding in Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002), that, absent certain circumstances, claims of ineffective

assistance of counsel should be deferred until collateral review under the

PCRA). Consequently, Appellant’s final claim is patently meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2016




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