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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
LARRY D. OLIPHANT,                          :          No. 1427 EDA 2015
                                            :
                          Appellant         :


                   Appeal from the PCRA Order, May 12, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0302351-2005


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 18, 2016

      Larry D. Oliphant appeals from the May 12, 2015 order denying his

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

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The relevant facts, as summarized by a prior panel of this court on

direct appeal, are as follows:

                   On the evening of November 18, 2004,
             [a]ppellant and his co-defendant, Ronald Bethea,
             were at the house of Mr. Bethea’s cousin. While
             there, Mr. Bethea received a telephone call that “one
             of his boys” had been attacked at the corner of 8 th
             and Butler Streets. After discussing the situation
             with    [a]ppellant   and     another     confederate,
             Donzell White, the three men decided to go to the
             corner of 8th and Butler Streets to avenge the
             beating. Mr. Bethea asked his cousin to drive the
             men there, but his cousin refused to get involved.
             Mr.    Bethea    then    recruited    his   girlfriend,
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          Chaka Jenkins, to drive the men to the location of
          the beating in his cousin’s dark blue minivan.

                Mr. Bethea told [a]ppellant and Mr. White, “I
          am doing something about this,” and provided
          [a]ppellant with a .45 caliber handgun. Mr. White
          gave [a]ppellant a one-piece “Dickie” jumpsuit to
          wear over his yellow tee-shirt and camouflage pants.
          Appellant also donned a camouflage hat.

                When they arrived at the corner of 8th and
          Butler Streets, Mr. Bethea pointed out a man on the
          street who was working on his car. Mr. Bethea said
          to [a]ppellant, “That’s the guy right there.” The
          group then drove around the block.          Appellant
          informed Mr. Bethea, “I’ll take care of it for you,”
          and exited the minivan with the handgun protruding
          from his jumpsuit pocket. While [a]ppellant was
          looking for his target, the others continued to drive
          around the area. Mr. Bethea noticed a heavy police
          presence and instructed Ms. Jenkins to drive back to
          the corner of 8th and Butler Streets to look for
          [a]ppellant.     Once they spotted [a]ppellant,
          Mr. Bethea warned him “there were too many cops
          around.”       Nevertheless,    [a]ppellant  assured
          Mr. Bethea he would “take care of it.”

                Appellant continued to search for his target,
          and the others drove to a nearby pizza shop to await
          [a]ppellant’s completion of the “job.” After some
          time, Mr. Bethea became concerned [a]ppellant was
          taking too long, so he again directed Ms. Jenkins to
          drive the men back to the corner of 8th and Butler
          Streets. As the minivan approached the intersection,
          the group spotted [a]ppellant, who jumped into the
          front passenger seat of the minivan. Once in the
          vehicle, [a]ppellant informed the others, “I got him.”
          Several police cars and an ambulance truck arrived
          at the scene of the crime, and Ms. Jenkins quickly
          drove away.

                Police found the victim lying on the street. Six
          fired cartridge casings surrounded the area of the
          victim’s body. As it turned out, the victim was an


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              innocent bystander, and not [a]ppellant’s initial
              target. Several witnesses informed police they had
              observed a black male at the crime scene wearing a
              Dickie jumpsuit and a camouflage hat. One witness
              noticed the man in the jumpsuit and camouflage hat
              climb into a blue minivan, and recalled the letters
              “YPV” on the license plate.

                    Moments later, police officers heard the flash
              information over the radio and spotted the minivan a
              few blocks from the crime scene. A search of the
              minivan revealed a Dickie jumpsuit and handgun in
              the vehicle. Subsequent firearms testing confirmed
              that the six fired cartridge casings found at the crime
              scene had come from the handgun found in the
              vehicle.   The Commonwealth charged [a]ppellant
              and Mr. Bethea with murder and related offenses.

Commonwealth v. Oliphant, 987 A.2d 821 (Pa.Super. 2009), appeal

denied, 608 Pa. 620 (Pa. 2010) (unpublished memorandum at 1-4).

        On September 11, 2007, appellant proceeded to a jury trial alongside

his co-defendant, Ronald Bethea.        Appellant was represented at trial by

Robert Gamburg, Esq. (hereinafter, “trial counsel”).           Following a six-day

trial, appellant was found guilty of first-degree murder and possessing

instruments of crime (“PIC”).1       On November 26, 2007, appellant was

sentenced to a mandatory term of life imprisonment for the first-degree

murder conviction and a consecutive term of two-and-one-half to five years’

imprisonment     for   PIC.2    On   December     5,   2007,    appellant   filed   a


1
    18 Pa.C.S.A. §§ 2502 and 907, respectively.
2
  Appellant’s co-defendant, Robert Bethea, was found guilty of one count of
criminal conspiracy to commit third-degree murder and was subsequently
sentenced to 20 to 40 years’ imprisonment.


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post-sentence motion for a new trial arguing, inter alia, that the trial court

erred in instructing the jury on accomplice liability and criminal conspiracy.

(See post-sentence motion, 12/5/07 at ¶¶ 23-29.)                On April 3, 2008,

appellant’s    motion     was   denied   by    operation   of   law,   pursuant    to

Pa.R.Crim.P. 720(B)(3). Appellant filed a timely notice of appeal on April 25,

2008.

        On October 20, 2009, a panel of this court affirmed appellant’s

judgment of sentence, and our supreme court denied allowance of appeal on

September 7, 2010. On April 29, 2011, appellant filed a timely pro se PCRA

petition, and Sondra Rodrigues, Esq. (“Attorney Rodrigues”) was appointed

to    represent    him.    Attorney   Rodrigues    subsequently      withdrew,    and

Daniel Silverman, Esquire (“Attorney Silverman”) was appointed on June 12,

2013.

        On September 30, 2013, Attorney Silverman filed an amended PCRA

petition on appellant’s behalf. The Commonwealth filed its motion to dismiss

appellant’s amended PCRA petition on January 2, 2014. On March 12, 2015,

the     PCRA      court   provided    appellant    with    notice,     pursuant    to

Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a

hearing. Thereafter, on May 12, 2015, the PCRA court dismissed appellant’s

petition without a hearing.      This timely appeal followed on May 13, 2015.

The PCRA court did not order appellant to file a statement of errors




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complained of on appeal, pursuant to Pa.R.A.P. 1925(b).          Nonetheless,

appellant filed a Rule 1925(b) statement on May 13, 2015.

      On appeal, appellant raises the following issues for our review:

            1.    Was trial counsel ineffective for failing to
                  object to the trial court’s incomprehensible and
                  error-filled instructions on how the jury could
                  find liability for first-degree murder?

            2.    Was trial counsel ineffective for failing to
                  object to the trial court’s repeated instructions
                  explicitly prohibiting the jury from considering
                  the fact that the Commonwealth never
                  presented the testimony of critical witness
                  Donzell White?

            3.    Was trial counsel ineffective for failing to
                  (a) object    to    the   prosecutor’s   closing
                  statement when he repeatedly argued that
                  [a]ppellant’s    prior  threats   of   violence,
                  introduced for a limited purpose, showed
                  [a]ppellant’s propensity for violence and that
                  the jury should convict [a]ppellant because his
                  other crimes proved he is a violent man
                  generally who is prone to killing[,] and
                  (b) request      the     required     cautionary
                  instruction?

            4.    Was trial counsel ineffective for failing to
                  object to the prosecutor’s abject vouching
                  when explaining, without any supporting
                  evidence, why the Commonwealth did not
                  charge Commonwealth witness Chaka Jenkins?

Appellant’s brief at 3-4.3



3
   Appellant was represented by different counsel on direct appeal, and
although allegations of layered ineffectiveness is generally required, the
failure to object to various alleged trial errors would be subject to waiver on
direct appeal.


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      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.” Commonwealth. v. Soto, 2015

WL 8551090, at *3 (Pa.Super. 2015) (citation omitted).               In order to be

eligible   for    PCRA    relief,   a   defendant   must   plead   and   prove   by   a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).               Further,

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

      Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as is the case here, we review the PCRA court’s decision

for an abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595,

604 (Pa. 2013), cert. denied,               U.S.     , 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

                 the right to an evidentiary hearing on a
                 post-conviction petition is not absolute. It is within
                 the PCRA court’s discretion to decline to hold a
                 hearing if the petitioner’s claim is patently frivolous


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            and has no support either in the record or other
            evidence. It is the responsibility of the reviewing
            court on appeal to examine each issue raised in the
            PCRA petition in light of the record certified before it
            in order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

      Instantly, all four of appellant’s claims challenge the effectiveness of

his trial counsel. To prevail on a claim of ineffective assistance of counsel

under the PCRA, a petitioner must plead and prove by a preponderance of

the   evidence    that   counsel’s   ineffectiveness     “so   undermined    the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.”     42 Pa.C.S.A. § 9543(a)(2)(ii).       Specifically, a

petitioner must establish the following three factors:

            first the underlying claim has arguable merit;
            second, that counsel had no reasonable basis for his
            action or inaction; and third, that Appellant was
            prejudiced.

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014),

appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted). “A petitioner

establishes prejudice when he demonstrates that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Commonwealth v. Johnson, 966

A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks omitted).



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      “[C]ounsel   is   presumed     to   be   effective   and   the   burden   of

demonstrating ineffectiveness rests on appellant.”          Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted). Additionally, we note that counsel cannot

be found ineffective for failing to raise a claim that is devoid of merit. See,

e.g., Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      In his first issue, appellant contends that his trial counsel was

ineffective in failing to object to the trial court’s “incomprehensible” jury

instruction on accomplice liability for first-degree murder. (Appellant’s brief

at 9-10, 14-19.)   Appellant further argues that this erroneous instruction

permitted “the jury to infer the intent to kill on the part of the accomplice

merely because the shooter used a deadly weapon on a vital part of the

decedent’s body.” (Id. at 12.) We disagree.

      Preliminarily, we note that,

            when evaluating the propriety of jury instructions,
            this Court will look to the instructions as a whole,
            and not simply isolated portions, to determine if the
            instructions were improper. We further note that, it
            is an unquestionable maxim of law in this
            Commonwealth that a trial court has broad discretion
            in phrasing its instructions, and may choose its own
            wording so long as the law is clearly, adequately,
            and accurately presented to the jury for its
            consideration. Only where there is an abuse of
            discretion or an inaccurate statement of the law is
            there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (citations and bracket omitted).


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      Here, the record reflects that during appellant’s trial, the trial court

instructed the jury at great length on the concept of accomplice liability as it

relates to first-degree murder and later clarified its instructions to the jury. 4

(See notes of testimony, 9/18/07 at 24-28, 32-34, 39-44, 64-65, 94-100.)

On direct appeal, a panel of this court reviewed appellant’s challenge to the

accomplice liability instruction and concluded that it was entirely proper.

See Commonwealth v. Oliphant, 987 A.2d 821 (Pa.Super. 2009), appeal

denied, 608 Pa. 620 (Pa. 2010) (unpublished memorandum at 7-8).

      In reaching this decision, this court reasoned that,

            [w]ith respect to the accomplice liability
            instruction, the record makes clear [a]ppellant
            was the principal shooter in the crime. The
            jury instructions as a whole make clear the
            [trial] court’s discussion of accomplice liability
            expressly        referred        to      [appellant’s
            co-defendant, Ronald] Bethea.          Moreover, the
            jury convicted [a]ppellant as the principal and not as
            an accomplice. Thus, the jury instructions did not
            prejudice [a]ppellant, and his issue merits no relief.

Id. (citation omitted; emphasis added).

      Upon review, we agree that the trial court’s jury instructions, when

read as a whole, clearly and accurately conveyed the applicable law with

respect to accomplice liability and first-degree murder.            Contrary to

appellant’s assertions, the trial court’s instructions did not “authoriz[e] the



4
  Although the accomplice liability charge was addressed on direct appeal, to
the extent that appellant’s claim differs to some degree from that previously
addressed by this court, we will review the claim.


                                      -9-
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jury to find [a]ppellant guilty either as the principal or an accomplice.”

(Appellant’s brief at 12.) Accordingly, as there was no basis for trial counsel

to object, appellant’s ineffectiveness claim must fail. See Commonwealth

v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003), appeal denied, 28 A.2d

350 (Pa. 2003) (stating, “it is axiomatic that . . . counsel will not be

considered     ineffective   for     failing     to    pursue       meritless   claims.”);

Commonwealth v. Clark, 961 A.2d 80, 93 (Pa. 2008), cert. denied, 558

U.S. 1082 (2009) (holding that trial counsel cannot be ineffective for failing

to raise a claim that is without merit).

      Appellant further argues, albeit parenthetically, that his appellate

counsel was also ineffective in failing to preserve this claim on direct appeal.

(Appellant’s brief at 19-20.)        As noted, however, appellant has failed to

adequately    demonstrate     that    his      claim   of   trial   counsel’s   purported

ineffectiveness was of arguable merit, and thus, it logically follows that

appellate counsel cannot be deemed to be ineffective in this regard.                  Our

supreme court has recognized that “a determination that [] trial counsel . . .

rendered ineffective assistance is a prerequisite to finding that [any

subsequent counsel] . . . was ineffective.” See Commonwealth v. McGill,

832 A.2d 1014, 1024-1025 (Pa. 2003).

      In his second issue, appellant argues that his trial counsel was

ineffective in failing to object to the trial court’s instruction to the jury that it

should not infer anything from the fact that the Commonwealth never called



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Donzell White to testify at trial. (Appellant’s brief at 21.) Appellant avers

that the trial court’s instructions prevented the jury from considering the

possibility that “[Donzell] White was the real shooter” and that his absence

could be used in “its assessment of the Commonwealth’s case[.]”         (Id. at

22-23.) We disagree.5

      The record reflects that Donzell White testified at the preliminary

hearing that he was in a vehicle with appellant and co-defendant,

Ronald Bethea, the evening of the shooting and provided statements

implicating appellant in the crime. At trial, the Commonwealth elected not

to call Donzell White as a witness and made him available to appellant.

(Notes of testimony, 9/14/07 at 15.)         Appellant’s counsel indicated that

calling Donzell White would prove adverse to appellant’s case and made the

strategic decision not to call him as a witness.       Specifically, appellant’s

counsel stated as follows:

             I was not suggesting to call [Donzell White]. I
             wasn’t intending to call him. It would be a suicide
             mission. They would put me in the hall of shame if I
             called him.

Id. at 16.

      Thereafter, during deliberation, the       jury inquired if they were

permitted to infer that Donzell White was granted immunity by the fact that



5
  To the extent that appellant suggests that an adverse inference instruction
should have been given, the Commonwealth is correct that such an
instruction is not applicable if the witness is available to both sides.


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he was not charged with any crime and did not testify. (Notes of testimony,

9/18/07 at 109, 124-125.)    The jury also inquired as to whether it could

infer anything from Donzell White’s absence in regard to reasonable doubt.

(Id.) Following argument by counsel, the trial court instructed the jury at

length that it must not to infer anything from the fact that White did not

testify.

                 There has been no evidence whatsoever other
           than a question put forth about immunity. So there
           is no evidence in this trial concerning immunity as it
           related to Donzell White.

                 The fact that Donzell White did not appear here
           and give testimony is of no moment. In fact, Donzell
           White was a person who was available to be called
           as a witness by the prosecution and by either of the
           defendants. He was not called, as were a lot of
           people who may have been involved in this particular
           case who were not called. And just like those other
           people who were not listed on that long, lengthy list,
           you did not hear any evidence about anything
           related to Donzell White as it relates to immunity or
           certain other issues.

                 There was evidence about Donzell White. And
           I am not telling you [that] you have to exclude that,
           because, clearly, there was evidence about his
           presence and other matters. You will recall all of the
           evidence that was admissible and admitted with
           respect to Donzell White.

                  I am telling you, you must disregard totally in
           carrying out your deliberations on any verdict on any
           charge anything pertaining to immunity as it related
           to Donzell White or from the fact that he did not
           testify here at this trial.




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                  And the second part of the question is: Can
            we infer anything from [Donzell White’s] absence in
            regard to reasonable doubt?

                  I am going to answer that simply the same
            way I answered, that all of those other witnesses
            whose names I read out and they were not called as
            witnesses and did not give testimony -- there was
            perhaps some references or testimony to them, but
            you are not similarly able to infer anything because
            they were not called to testify at trial.

                  Same thing with Donzell White.     It is not
            evidence except insofar as you heard the testimony
            with respect to Donzell White that was admitted.
            Okay?

Id. at 125-127.

      Upon review, we conclude that appellant’s trial counsel had a

reasonable basis not to object to the trial court’s instruction, as the jury was

fully aware that Donzell White was available to be called by the defense, and

his absence at trial did not affect the jury’s ability to speculate that he was

the shooter. As noted, appellant’s trial counsel declined to call Donzell White

at trial, recognizing that his identification of appellant as the shooter would

have certainly damaged “[t]he defense theory that White and not [a]ppellant

was the shooter.” (Appellant’s brief at 23.)

            [Our Supreme] Court has recognized that counsel
            are not constitutionally required to forward any and
            all possible objections at trial, and the decision of
            when to interrupt oftentimes is a function of overall
            defense strategy being brought to bear upon issues
            which arise unexpectedly at trial and require
            split-second decision-making by counsel.




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Charleston, 94 A.3d at 1020 (citation omitted).               “[W]here matters of

strategy   and   tactics   are   concerned, counsel’s     assistance      is   deemed

constitutionally effective if he chose a particular course that had some

reasonable     basis   designed     to     effectuate   his    client’s    interests.”

Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008),

appeal denied, 964 A.2d 894 (Pa. 2009) (citations omitted). Based on the

foregoing, we conclude that appellant is not entitled to relief on this

ineffectiveness claim. See Commonwealth v. Williams, 899 A.2d 1060,

1064 (Pa. 2006) (stating, “[i]f counsel’s chosen course had some reasonable

basis, the inquiry ends and counsel’s assistance is deemed effective.”).

      Appellant next argues that his trial counsel was ineffective in failing to

challenge various comments the prosecutor made during his closing

argument that referenced “[a]pellant’s prior threats of violence” towards

Chaka Jenkins. (Appellant’s brief at 25.)

      At trial, Assistant District Attorney Jude Conroy (“ADA Conroy”)

questioned Chaka Jenkins with regards to a statement she gave to police

that indicated that she “was afraid” of appellant because he had previously

threatened to kill her if she ever cheated on co-defendant Ronald Bethea,

her boyfriend at the time. (See notes of testimony, 9/12/07 at 276-277.)

Jenkins was uncooperative on the stand and testified that she did not recall

the details of the murder or giving said statement to police.             (Id.)   The

Commonwealth also elicited testimony from Detective Levi Morton, who



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indicated that he spoke to Chaka Jenkins a couple months after the murder

and that she had expressed similar concerns. (Notes of testimony, 9/17/07

at 52-53.)

     Thereafter, ADA Conroy referenced this testimony during his closing

statement, arguing to the jury that Chaka Jenkins was unwilling to implicate

appellant and co-defendant Ronald Bethea at trial because she feared them.

Specifically, ADA Conroy made the following comments which appellant now

challenges on appeal:

                   But you have to recognize, ladies and
             gentlemen, as Detective Morton did when he spoke
             to [Chaka Jenkins], it is not an easy thing to come
             into a room and testify about a matter as violent and
             brutal as the taking of [the victim’s] life without
             being scared. She didn’t want to be here. She was
             scared. And despite whatever attitudes she had on
             the stand, it wasn’t an easy thing to come into this
             courtroom, a public courtroom, and testify. So you
             have to keep that in mind when you evaluate this
             woman’s testimony.

                    But that doesn’t relieve the Commonwealth of
             its obligation. I submit to you that you look at what
             she said to Detective Morton; why she was scared;
             that this man had two personalities, the defendant
             Ronald Bethea. [Appellant] threatened to kill her if
             she cheated on Ronald Bethea.

                  Do you think that’s a stretch? Do you think
             maybe they really said this, now that you’ve had a
             chance to see their handy work [sic]? (indicating)

                     Do you think that’s really a stretch to keep
             your mouth shut? Do you think it is really a stretch
             what they did to [the victim], walking down the
             street going to get Chinese food? Do you really think
             it is a stretch?


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Id. at 227-229.

      Appellant argues that the prosecutor’s reference to this testimony

constituted prosecutorial misconduct and his trial counsel’s failure to object

on this basis entitles him to a new trial. (Appellant’s brief at 25-26, 31-32.)

Appellant further avers that, “this evidence was only admissible . . . to

explain why Jenkins was reluctant to implicate [a]ppellant,” and that his trial

counsel, at the very least, should have requested a cautionary instruction

that the jury should only consider it for that limited purpose. (Id. at 25-26.)

We disagree.

      “Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v.

Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 928 A.2d

1289 (Pa. 2007) (citations omitted).         Not every unwise remark on a

prosecutor’s part, however, constitutes reversible error. Id. “Prosecutorial

misconduct occurs when the effect of the prosecutor’s comments would be

to prejudice the trier of fact, forming in its mind fixed bias and hostility

toward the defendant so that it could not weigh the evidence objectively and

render a true verdict.”   Commonwealth v. Duffy, 832 A.2d 1132, 1137

(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).

                  Counsels’ remarks to the jury may contain fair
            deductions and legitimate inferences from the
            evidence presented during the testimony.         The
            prosecutor may always argue to the jury that the
            evidence establishes the defendant’s guilt, although


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             a prosecutor may not offer his personal opinion as to
             the guilt of the accused either in argument or in
             testimony from the witness stand. Nor may he or
             she express a personal belief and opinion as to the
             truth or falsity of evidence of defendant’s guilt,
             including the credibility of a witness.

Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal

denied, 788 A.2d 372 (Pa. 2001).

       Following   our   careful   review,      we    conclude    that   ADA    Conroy’s

comments, when read as a whole, did not warrant that a new trial be

granted or that a specific cautionary instruction be given to the jury. “[A]

prosecutor   is    permitted   fairly    wide     latitude   in   advocating    for   the

Commonwealth, including the right to argue all fair conclusions from the

evidence, to respond to defense arguments, and to engage in a certain

degree of oratorical flair.”   Harris, 884 A.2d at 931.            All such comments

must    be   reviewed     in   the      context      in   which   they   were     made.

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005). Moreover,

we note that,

             a trial court should not instruct the jury on legal
             principles which have no application to the facts
             presented at trial. Rather, there must be some
             relationship between the evidence presented and the
             law upon which an instruction is requested.

Commonwealth v. Taylor, 876 A.2d 916, 925-926 (Pa. 2005) (citations

and internal quotation marks omitted).

       Here, the record reflects that ADA Conroy’s comments were properly

made in response to defense counsel’s argument as to why Chaka Jenkins


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was   not   a   credible   witness.     Specifically,    during   his   summation,

Attorney Gamburg made the following argument to the jury:

            [Chaka Jenkins] is not afraid of [appellant].
            [Appellant] means nothing to her. She doesn’t even
            remember how long she knew him. She knew him
            from [Ronald] Bethea. She doesn’t mean a thing to
            [appellant].

            ....

            Chaka Jenkins is not worthy of any belief . . . She
            lied in front of you. And she talked her way out of a
            murder case.

Notes of testimony, 9/17/07 at 183, 185.

      The record further reflects that ADA Conroy’s comments were made

with a permissible degree of oratorical flair and were not the kind of

comments that would cause the jury to form a fixed bias or hostility towards

appellant and prevent it from properly weighing the evidence and rendering

a fair and impartial verdict.    Accordingly, appellant’s trial counsel had no

basis upon which to object or request a cautionary instruction, and

appellant’s underlying ineffectiveness claim must fail. See Rivera, 816 A.2d

at 292 (stating, “it is axiomatic that . . . counsel will not be considered

ineffective for failing to pursue meritless claims.”).

      Lastly, appellant argues his trial counsel was ineffective in failing to

object to the prosecutor’s closing argument on the basis that it improperly

vouched for Commonwealth witness Chaka Jenkins and attempted to bolster




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her credibility.   (Appellant’s brief at 32, 38.)      Specifically, appellant

challenges the following comments made by ADA Conroy:

                  Do you really believe in your heart of hearts
            that Chaka Jenkins was the mastermind behind this?
            You have to look at their involvement and what they
            were given, their corroboration [and] what deal I
            gave them for their cooperation.

                  Did she seem like a cooperative witness to me?
            Did she appear to be a cooperative witness to the
            Commonwealth? Are you kidding me? It was like
            pulling teeth. I thought I went to law school, not
            dental school. I was extracting evidence from her.

                 This is what I am talking about. Apply your
            common sense. Is she cooperative? Is she in my
            pocket? Whose pocket is she in? Who is controlling
            her? Who has the influence over her?

                   Now, see, that’s common sense. Apply what
            they said. Listen to what they said and how they
            said it and what I gave her.

                   It is true. She wasn’t charged with an offense.
            If you want to hold that against me, you write a
            letter to Lynne Abraham and say, “Mr. Conroy is not
            doing his job. He is not charging everyone involved
            here.”

                  Ladies and gentlemen, they all shared a
            responsibility in the death of [the victim]. They all
            should be charged. But we need witnesses. We
            need people to come in and tell us what to do, what
            happened, what the facts are. We can’t charge
            everyone. And to that extent, you hold that against
            me. Really, complain if you think it is inappropriate.
            But we have to make tough calls about who should
            be charged and who shouldn’t.

                   And we have to look at all the evidence, to the
            totality of the circumstances.



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                 And you apply your common sense to what
           you heard in this courtroom. Do you really in the
           heart of your hearts think she was the quarterback,
           the Peyton Manning or the Donovan McNabb of this
           team?

Notes of testimony, 9/17/07 at 216-217.

     “Improper bolstering or vouching for a government witness occurs

where the prosecutor assures the jury that the witness is credible, and such

assurance is based on either the prosecutor’s personal knowledge or other

information not contained in the record.”     Commonwealth v. Chmiel, 30

A.3d 1111, 1180 (Pa. 2011) (citation omitted).

           The prosecution may not inject a highly prejudicial
           personal opinion of [an] appellant’s credibility into
           evidence, thereby clearly and improperly intruding
           upon the jury’s exclusive function of evaluating the
           credibility of witnesses.  However, as long as a
           prosecutor does not assert his personal opinions, he
           or she may, within reasonable limits, comment on
           the credibility of a Commonwealth witness. This is
           especially true when the credibility of the witness
           has been previously attacked by the defense. This
           stems from the general principle that the prosecutor
           is permitted to respond to the arguments of the
           defense and is free to present his or her case with
           logical force and vigor.

Commonwealth v. Tedford, 960 A.2d 1, 31-32 (Pa. 2008) (citations and

internal quotation marks omitted).

     Instantly, our review of the record reveals that appellant’s trial counsel

had no reasonable basis to object to ADA Conroy’s comments. The record

reflects that ADA Conroy did not improperly vouch for the credibility of

Chaka Jenkins, nor inject a personal opinion on her particular credibility.


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Rather, it is apparent from our review of the record that ADA Conroy’s

comments were made in response to a suggestion by Attorney Brian J.

McMonagle, co-defendant Bethea’s trial counsel, that it was improper that

Chaka Jenkins was not charged by the Commonwealth in this case.          (See

notes of testimony, 9/17/07 at 193-194.)        As discussed, “a prosecutor is

permitted fairly wide latitude in advocating for the Commonwealth, including

the right . . . to respond to defense arguments. . . .” Harris, 884 A.2d at

931. Accordingly, appellant’s trial counsel was not ineffective for failing to

object on the basis of this meritless vouching claim. See Rivera, 816 A.2d

at 292 (stating, “it is axiomatic that . . . counsel will not be considered

ineffective for failing to pursue meritless claims.”).

      For all the foregoing reasons, we affirm the May 12, 2015 order of the

PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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