J-S59005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
QUADIYR N. WHITE,                        :
                                         :
                        Appellant        :      No. 1738 EDA 2013


            Appeal from the PCRA Order Entered May 17, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0000990-2009.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 21, 2014

      Appellant, Quadiyr N. White, appeals from the order denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

      On Appellant’s direct appeal, a panel of this Court set forth the trial

court’s summation of the evidence as follows:

            Dominique Wilson, who was seventeen (17) on the night of
      the shooting testified that at about 11:59 p.m. on August 13,
      2008, he was on the 2600 block of West Girard Avenue in front
      of the Lincoln Chicken store. He was there with his friends Tag
      and Rob. They had been there about fifteen minutes when the
      witness heard gunfire and saw [Appellant,] whom he knew as
      Mr. P[,] shooting the decedent. The witness knew both
      [Appellant] and the decedent from the neighborhood. Just a few
      minutes prior to the shooting, the witness saw [Appellant] and
      [the] decedent shake hands. After hearing the first shot, the
      witness saw the decedent running towards 26th Street, being
      chased by [Appellant] who was firing at him with a black

*Retired Senior Judge assigned to the Superior Court.
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     revolver. The decedent appeared to the witness to be unarmed.
     The witness believed he heard about six (6) shots.             The
     [decedent] fell, but got up and ran around the corner.
     [Appellant] turned and ran towards 27th Street, making a turn
     up Taney Street. Following the shooting, the witness gave a
     statement to the police and identified [Appellant’s] picture as the
     shooter.

            Rene Tindal also witnessed the shooting. This witness was
     about a door or two away from the chicken restaurant waiting
     for his girlfriend to come home from work on the trolley. He saw
     [Appellant] go into the restaurant. The decedent came out of
     the restaurant followed by [Appellant]. The decedent looked
     back and started running. [Appellant] came up upon him and
     started firing. The witness testified that it was no more than five
     (5) to ten (10) seconds between the time the decedent came out
     of the restaurant and [Appellant] came up behind him and
     started firing, as the decedent tried to run away. This witness
     also described the gun as a revolver. He also heard five (5) or
     six (6) shots. The witness believed [Appellant] emptied his gun.
     To this witness, the decedent also appeared to be unarmed. The
     witness also saw the victim trip and get up during the attack and
     saw [Appellant] run away into a little street, which he identified
     on a map as Taney Street. He also saw the other eyewitnesses,
     Dominique Wilson and Craig Robinson at the scene.            Craig
     Robinson (Rob), who was sixteen (16) at the time of the
     shooting also testified. He testified that he was at the shooting
     scene with Tag and Dominique Wilson. His description of the
     shooting was similar to the testimony given by the other two
     [eyewitnesses]. However, [in court], he declined to identify
     [Appellant] as the shooter. However, in a statement given to
     police on the afternoon following the shooting, he identified
     [Appellant] as the shooter and identified [Appellant’s] photo as
     the shooter. At trial, the witness acknowledged his prior police
     statement and further testified that in October 2008, he was
     threatened not to come to court.

Commonwealth v. White, 564 EDA 2010, 31 A.3d 749 (Pa. Super. filed

June 21, 2011) (unpublished memorandum at 1–3) (quoting Trial Court

Opinion, 11/23/10, at 3–4 (record citations omitted)).


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     The PCRA court summarized the procedural history as follows:

            From February 9, 2010 through February 16, 2010,
     Appellant was tried before [the trial c]ourt, sitting with a jury.
     At the conclusion of the trial, the jury found him guilty of First
     Degree Murder, Possessing an Instrument of Crime (PIC) and a
     Violation of the Uniform Firearms Act.

           [The trial c]ourt sentenced Appellant to life imprisonment
     for murder and imposed concurrent prison sentences of three
     and one half (3 ½) to seven (7) years for the firearms offense
     and one (1) to two (2) years for PIC. The Superior Court
     affirmed the judgment of conviction, docketed at 564 EDA 2010.
     The Supreme Court denied Allocatur, docketed at No. 429 EAL
     2011.

            Appellant timely filed a PCRA Petition.     Subsequently,
     current counsel, George Henry Newman[,] filed an Amended
     Petition, alleging two claims of ineffective assistance of prior
     counsel. The Commonwealth responded and filed a Motion to
     Dismiss the PCRA [petition]. After a thorough review of the
     pleadings, the record and the law and after complying [with] the
     procedural requirements contained in Pa.R.Crim. P. 907, [the
     PCRA c]ourt dismissed the petition without granting a hearing.
     The instant timely appeal followed.

PCRA Court Opinion, 4/23/14, at 1–2 (internal footnotes omitted).

     On appeal, Appellant presents the following questions for our review:

     I.    Did not the PCRA court err in dismissing [Appellant’s]
           PCRA petition, without a hearing, where trial counsel was
           ineffective for failing to both object to prosecutorial
           misconduct which occurred when the prosecutor asked
           witness Robinson if he was afraid of [Appellant], and to
           ask for a mistrial, or in the alternative, a curative
           instruction, after his objection to this totally improper
           question was sustained?

     II.   Did not the PCRA court err in dismissing [Appellant’s]
           PCRA petition without a hearing where trial counsel was
           ineffective for failing to object to the Court’s chastising


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            defense counsel on multiple occasions in the presence of
            the jury, for failing to object to the Court’s overly injecting
            itself in the trial in a partisan manner and further, for
            failing to request a mistrial?

Appellant’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error.    Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,

877 A.2d 479, 482 (Pa. Super. 2005)).        Great deference is granted to the

findings of the PCRA court, and these findings will not be disturbed unless

they have no support in the certified record. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003). There is no right to an evidentiary

hearing on a PCRA petition, and the PCRA court may decline to hold a

hearing if the claims are patently frivolous and without a trace of support in

the record. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001). On review, we examine the issues raised in the petition in light of

the record to determine whether the PCRA court erred in concluding that

there were no genuine issues of material fact and in denying relief without

an evidentiary hearing. Id.

      In post-conviction collateral proceedings, the petitioner bears the

burden to plead and prove eligibility for relief. 42 Pa.C.S. § 9543(a). When

considering an allegation of ineffective assistance of counsel (“IAC”) raised


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under 42 Pa.C.S. § 9543(a)(2)(ii), the PCRA court presumes that counsel

provided effective representation unless the petitioner pleads and proves

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

reasonable basis for his or her conduct; and (3) Appellant was prejudiced by

counsel’s action or omission.     Commonwealth v. Pierce, 527 A.2d 973,

975–976 (Pa. 1987).         “In order to meet the prejudice prong of the

ineffectiveness standard, a petitioner must show that there is a reasonable

probability that but for the act or omission in question the outcome of the

proceeding would have been different.” Commonwealth v. Wallace, 724

A.2d 916, 921 (Pa. 1999). An IAC claim will fail if the petitioner does not

meet any of the three prongs.        Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656

(Pa. 2003)).

        Our Supreme Court recently reiterated the standard and scope of

review when the PCRA court dismisses cognizable claims without a hearing,

as follows:

        To obtain reversal of a PCRA court’s summary dismissal of a
        petition, an appellant must show that he raised a genuine issue
        of fact which, if resolved in his favor, would have entitled him to
        relief. The controlling factor in this regard is the status of the
        substantive assertions in the petition. Thus, as to ineffectiveness
        claims in particular, if the record reflects that the underlying
        issue is of no arguable merit or no prejudice resulted, no
        evidentiary hearing is required. For each such claim, we review
        the PCRA court’s action for an abuse of discretion.




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Commonwealth v. Baumhammers, 92 A.3d 708, 726–727 (Pa. 2014)

(internal citations omitted).

       Appellant first argues that the trial court erred in dismissing his

petition without a hearing because trial counsel was ineffective for failing to

request a mistrial or curative instruction after the trial court sustained his

objection to the district attorney’s question of eyewitness Craig Robinson:

“Are   you   afraid   of   the   defendant?”   N.T.,   2/12/10,   at   46.   The

Commonwealth counters that:

       [a] mistrial is an extreme remedy that is necessary only “where
       the alleged prejudicial event may reasonably be said to deprive
       the defendant of a fair and impartial trial.” Commonwealth v.
       Boczkowski, 845 A.2d 75, 94 (Pa. 2004).

                                       * * *

       Robinson had given a statement to the police which he recanted
       at trial. On cross-examination, defense counsel elicited that
       Robinson had supposedly signed his statement without reading it
       because “I was scared” (N.T. 2/12/10, 42). The question before
       the jury was whether the prior statement or the trial testimony
       was true. Thus, it was not improper for the prosecutor to follow-
       up on [re-direct] examination by asking the witness if he was
       afraid of defendant.

                                       * * *

             Nonetheless, the witness never answered the question,
       and the trial court instructed the jury that counsel’s questions
       are not evidence (N.T. 2/9/10, 17). Thus, even assuming the
       unanswered question was improper, it certainly did not warrant
       the extreme remedy of a mistrial.




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Commonwealth’s Brief at 8–10 (citing Commonwealth v. Collins, 702 A.2d

540, 543–544 (Pa. 1997), and Commonwealth v. Bryant, 462 A.2d 785,

787–788 (Pa. Super. 1983)).              Regarding a curative instruction, the

Commonwealth observes that Appellant “did not develop his claim in the

PCRA court, and does not develop it on [sic] his appellate brief.” Id. at 11.

        In disposing of Appellant’s first claim, the PCRA court concluded that

“Appellant could never have satisfied the ‘arguable merit’ or ‘prejudice’

prongs of the ineffective assistance test” because:

        the jury was aware that the witness previously identified
        Appellant as the shooter; declined to do so at trial; and received
        anonymous threats. The purpose of the evidence concerning
        threats was to assist the jury in assessing the witness’s
        credibility concerning his changed version of events. The jury
        specifically was instructed by this Court that there was no
        evidence that Appellant was behind the threats; this evidence of
        threats was not evidence of Appellant’s guilt; and was to be used
        only to assess the witness’ credibility. N.T. 2/15/10, 154–155.
        When, on redirect, the prosecutor sought to ask the improper
        question concerning whether the witness was afraid of Appellant,
        the Court sustained the timely objection. The question was not
        answered.      The jury was aware that questions were not
        evidence; only answers were evidence as the jury previously was
        so instructed. N.T. 2/9/10[,] 17. No additional relief would have
        been warranted had it been requested.

PCRA Court Opinion, 4/23/14, at 6–7.

        The Commonwealth’s assertion that a mistrial is an extreme remedy is

correct. See Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011)

(“A mistrial is an extreme remedy that is required only where the challenged

event    deprived   the   accused   of    a     fair   and   impartial   trial.”),   and


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Commonwealth        v.   Bryant,   67     A.3d    716,   728    (Pa.   2013)   (citing

Travaglia). Moreover, “the trial court is vested with discretion to grant a

mistrial whenever the alleged prejudicial event may reasonably be said to

deprive the defendant of a fair and impartial trial.”          Commonwealth v.

Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012), appeal denied, 69 A.3d

600 (Pa. 2013) (quoting Commonwealth v. Judy, 978 A.2d 1015, 1019–

1020 (Pa. Super. 2009)).       “In making its determination, the court must

discern whether misconduct or prejudicial error actually occurred, and if so,

. . . assess the degree of any resulting prejudice. Our review of the resulting

order is constrained to determining whether the court abused its discretion.”

Id. (quoting Judy, 978 A.2d at 1019–1020).

        Generally, “threats against a witness are not admissible as an

admission of guilt against the accused unless the accused is linked in some

way to the making of the threat.”               Collins, 702 A.2d at 544 (citing

Commonwealth v. Carr, 259 A.2d 165, 167 (Pa. 1969)). “Nevertheless,

an exception to the rule exists where the evidence in question was not

offered to prove the accused’s guilt ‘but to explain a witness’s prior

inconsistent statement.’” Bryant, 462 A.2d at 788 (citing Carr, 259 A.2d at

167).

        Our review of the record confirms that, when the prosecutor asked the

challenged    question   of   Robinson,    suggesting     a    connection   between




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Robinson’s fear and Appellant, trial counsel successfully objected, and

Robinson did not answer the question.        N.T., 2/12/10, at 46–47.      The

prosecutor then asked Robinson without objection, “Were you afraid to come

to court today?” Id. at 47. Robinson responded, “Yes.” Id.

      The portion of the re-direct examination of Robinson to which

Appellant objects was prompted by Robinson’s failure to testify at trial

consistently with his previous statement to the police, in which Robinson had

stated that Appellant shot the victim in the back. The Commonwealth’s line

of questioning about the threats was permissible to demonstrate that

Robinson’s motive for changing his testimony was fear of the consequences

if he testified truthfully. Collins, 702 A.2d at 544. Although the challenged

question was improper, it did not produce an answer. Hence, there was no

evidence on which the jury could base a connection between Appellant and

the alleged threats as the reason for Robinson’s inconsistent testimony.

Furthermore, the trial court gave preliminary instructions to the jury that

“statements made by counsel do not constitute evidence,” only the witness’

answers are evidence. N.T., 2/9/10, at 17. Additionally, the trial court gave

specific final instructions that the jury could not use the threats as evidence

of Appellant’s guilt, that no one introduced evidence of Appellant’s

involvement in the threats, and that the jury could only use evidence of the

threats to assess Robinson’s credibility. N.T., 2/16/10, at 154–155. As the




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Commonwealth asserts, “These thorough instructions, which the jurors are

presumed to have followed, eliminated any conceivable risk that the jurors

would assume on the basis of an unanswered question that [Appellant] was

the source of the threats.” Commonwealth’s Brief at 10 (citations omitted).

      Based on the foregoing, we conclude that no prejudicial error occurred.

Hogentogler, 53 A.3d at 878. Accordingly, we discern no abuse of the trial

court’s discretion in determining that no PCRA relief was warranted.

      Next, Appellant challenges the dismissal of his petition without a

hearing because trial counsel was ineffective for failing to object to the trial

court’s chastising defense counsel twice in the presence of the jury and

overly injecting itself in the trial in a partisan manner. Appellant’s Brief at

10. In response, the Commonwealth observes that:

      [a]lthough [Appellant] invoked the words “ineffective assistance
      of counsel” in his petition (PCRA ¶ 6), he did not develop and
      argue this claim as an ineffectiveness claim. See Memorandum
      of Law at 3–7 (discussing this claim without alleging
      ineffectiveness); Response to Commonwealth’s Motion to
      Dismiss at 3–7 (same). Nor does he do so on appeal. Whether
      couched in terms of ineffectiveness or otherwise, this claim
      provides no basis for relief.

Commonwealth’s Brief at 12–13.

      Upon review of the record and Appellant’s brief, we agree with the

Commonwealth      that   Appellant’s   second   IAC   claim   is   undeveloped.

Nevertheless, we understand the crux of his claim and choose to review it.

      The trial court considered Appellant’s allegations and determined that:


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     neither instance warrants PCRA relief. In the first instance,
     during his last question on cross examination of Detective
     Peterman counsel commented upon the evidence instead of
     asking a proper question. The Court told the jury[,] “Any
     comments by counsel are inappropriate.” N.T., 2/12/10[,] 64–
     65. Counsel concluded his examination. The Court’s rather mild
     curative instruction to the jury was appropriate and no PCRA
     relief was warranted.

             The second instance occurred during the re-cross
     examination of Dominique Wilson. N.T. 2/12/10, 136–140 . . .
     We simply will note that this occurred while counsel was
     confronting the witness with his inconsistent testimony from the
     preliminary hearing. When counsel began arguing with the
     witness and read a question and answer out of context, the
     Court told the jury, “Comments by counsel are not appropriate”
     and told counsel, “You can’t take it out of context.” The Court
     comments were appropriate; were mild; did not embarrass; and
     did not demean defense counsel. Under no circumstances did
     the Court’s comments improperly impact upon the jury’s
     consideration of the underlying facts or deprive Appellant of a
     fair trial. Accordingly, no PCRA relief was warranted.

PCRA Court Opinion, 4/23/14, at 7.

     Our Supreme Court has addressed this situation as follows:

           The law is clear that not every unwise or irrelevant remark
     made in the course of trial by a judge constitutes grounds for a
     mistrial and that a new trial is required only where the remark is
     prejudicial. Prejudice will be found only where the remark is of
     such a nature, or delivered in such a manner, that it may
     reasonably be held to have deprived the accused of a fair and
     impartial trial. Commonwealth v. England, 474 Pa. 1, 375
     A.2d 1292 (1977). As we noted in England:

           While we do not condone a display of impatience by
           a trial judge, even where he may have been
           provoked by counsel’s dilatory tactics, we recognize
           that judges are also subject to failings of human
           beings and cannot be expected to be devoid of




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            emotion in the trying or vexing situations they may
            be called upon to confront.

      Id. at 17, 375 A.2d at 1300.

Commonwealth v. Jones, 683 A.2d 1181, 1191 (Pa. 1996).

      Our review of the record reveals that the trial court’s remarks directed

toward defense counsel in the presence of the jury were not so disparaging

as to prejudice Appellant in any manner.      Those comments were largely

directed toward ensuring accurate representation of the evidence and

reminding the jury that defense counsel’s personal comments were not

evidence.   N.T., 2/12/10, at 64–65, 138.    Indeed, the record reveals that

some of the comments were in direct response to defense counsel’s

repeated objections after the trial court had already ruled on a particular

matter. Id. at 136–140. While, at times, the comments of the trial judge

evidenced her impatience with defense counsel, none of her comments were

reflective of any predisposition of the trial judge regarding Appellant’s guilt

or innocence, and none were indicative of any bias in favor of the

prosecution.   Jones, 683 A.2d at 1191–1192.        Moreover, the trial court

properly informed the jurors that they were to be the sole judges of the

facts. N.T., 2/12/10, at 139–140. Notably, in one instance, the trial court

entertained additional argument from defense counsel outside the presence

of the jury. Id. at 141–146. “In short, our review of the record reveals no

intemperate remarks on the part of the trial judge which could be construed


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as creating an atmosphere of unfairness.       Because this claim, too, lacks

merit, Appellant has failed to establish his claim of ineffective assistance of

counsel with respect thereto.” Jones, 683 A.2d at 1191–1192.

      In sum, Appellant failed to prove that counsel was ineffective.

Therefore, no questions of fact necessitated a hearing.        Accordingly, we

conclude that the trial court did not err in denying Appellant collateral relief

without conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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