J-S50012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DERRON J. SMITH

                        Appellant                   No. 1302 EDA 2014


                 Appeal from the PCRA Order April 4, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0127112-2004


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 29, 2015

     Appellant, Derron J. Smith, appeals from the order denying his petition

pursuant to the Post Conviction Relief Act (“PCRA”). We conclude that the

PCRA court properly concluded that none of Smith’s claims of ineffective

assistance of counsel merited relief. We therefore affirm.

     A previous panel of this Court set forth the factual and procedural

background of this case.

     Smith’s conviction follows a shooting incident in which he and
     co-conspirator Byron Holeman shot Marcus and Malika Spivey at
     the front steps of their home on North 19th Street in
     Philadelphia. On October 9, 2004, Smith and Holeman ventured
     to the Spivey home and confronted Marcus Spivey as his sister,
     Malika, then twelve years’ [sic] old, sat on the front step
     coloring. Seconds into the altercation, Holeman drew a gun and
     began firing, two of his bullets finding their targets in Marcus
     Spivey’s leg and abdomen. Smith then pulled [a] gun of his own
     and, in a hail of gunfire, shot Malika Spivey in the knee. Upon
     hearing the ruckus outside, Marcus[‘s] and Malika’s mother,
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     Lorrane Huff, ran to the door of the family’s home and saw
     Smith, whom she later identified in a photo array, running
     toward her shooting in the direction of the house.           As
     neighborhood children ran past her to seek refuge, Huff dragged
     her screaming daughter inside while another bystander called
     the police. At the time of these events, Smith was seventeen
     years old.

     At trial, the Commonwealth called, among others, Malika Spivey,
     Lorrane Huff, and numerous officers who responded to the scene
     as well as an expert in ballistics.      Malika, who is hearing
     impaired, testified through a sign language interpreter that she
     was sure of Smith’s identity because she remembered his face
     and a keloid scar on the right side of his neck.              The
     Commonwealth did not call Marcus Spivey, however, and in its
     closing argument asserted that Marcus’s testimony was not
     necessary as Marcus had been shot by Holeman rather than
     Smith and his testimony would have added nothing to that of the
     other witnesses. Smith elected not to testify and offered no
     other evidence in his defense. In his closing argument the
     prosecutor, in addition to discounting the need for Marcus
     Spivey’s testimony, emphasized the certainty of Malika’s
     testimony, stating[,] “She focused on the face, the face that
     brought death to her doorstep[.]” He argued in addition that
     such circumstances leave a lasting effect: “I have often heard it
     said that when you go through a traumatic event it has the
     effect on some people of triggering almost a recording session.”
     Defense counsel objected to both references but uttered only the
     word “objection.” Significantly, he did not offer a reason for the
     objection and did not request action from the trial judge to
     remedy the remarks to which he objected.

Commonwealth v. Smith, No. 1447 EDA 2007, at 2-3 (filed June 20,

2008) (unpublished memorandum).          The jury convicted Smith on all

charges, and the trial court subsequently imposed an aggregate sentence of

imprisonment of 20 to 40 years.

     On direct appeal, Smith raised two issues: prosecutorial misconduct

during the closing argument, and merger of certain of his convictions. This


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Court concluded that Smith had waived his claim of prosecutorial misconduct

by failing to preserve it in the trial court. We further held that several of

Smith’s convictions should have merged for sentencing purposes, and

remanded for re-sentencing. However, the illegal sentences did not affect

the aggregate term, as they ran concurrently to other, affirmed sentences.

      On January 21, 2009, the Supreme Court of Pennsylvania denied

Smith’s petition for allowance of appeal, and on November 4, 2009, Smith

filed a pro se PCRA petition. Counsel was appointed to represent Smith, and

an amended, counseled petition was filed. The PCRA court denied Smith’s

petition on April 4, 2014. This timely appeal followed.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, ___ U.S. ___, 134 S. Ct. 639 (2013). We

review the PCRA court’s legal conclusions de novo. See Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011).

      On appeal, Smith raises three issues for our review. In his first two

issues, Smith challenges the effectiveness of his trial counsel.   In his final

issue, he challenges the effectiveness of appellate counsel.

      All of Smith’s issues are premised on claims of ineffective assistance of

counsel.


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      [T]o prevail on his ineffectiveness allegations, Appellant must
      demonstrate that the underlying claim is of arguable merit; that
      no reasonable strategic basis existed for counsel's act or
      omission; and that counsel’s error resulted in prejudice, or, in
      other words, that there is a reasonable probability that the
      outcome would have been different.

Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (citation

omitted).

      “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, ___

A.3d ___, ___, 2015 WL 4550107 at *3 (Pa. Super., filed July 29, 2015)

(citation omitted).   “In considering whether counsel acted reasonably, we

look to whether no competent counsel would have chosen that action or

inaction.” Id. (citation omitted). We also consider whether “the alternative,

not chosen, offered a significantly greater potential chance of success.” Id.

(citation omitted).

      [P]rejudice exists where there is a reasonable probability that,
      but for counsel’s errors, the result of the proceeding would have
      been different. This probability is sufficient when it undermines
      confidence in the outcome of the proceeding. Counsel is
      presumed     to    have    rendered      constitutionally effective
      representation.

Id. (citation omitted).

      In his first issue, Smith contends that the PCRA court erred in

concluding that trial counsel was not ineffective for failing to file a post-

sentence motion challenging the weight of the evidence supporting one of


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his convictions for attempted murder.      Specifically, Smith argues that it is

undisputed that he did not shoot Marcus Spivey, and that the weight of the

evidence at trial did not establish that he had conspired with Holeman’s

attempt to murder Spivey. Thus, Smith asserts, trial counsel was ineffective

for failing to preserve this issue in a post-sentence motion.

      Smith is correct in noting that trial counsel’s failure to raise a weight

claim in a post-sentence motion caused that issue to be waived.              See

Pa.R.Crim.P., Rule 607(a).    Thus, we begin our analysis of whether trial

counsel was ineffective for failing to do so by determining whether Smith’s

underlying weight claim has arguable merit.          Our standard of review

applicable to a challenge to the weight of the evidence is as follows.

      [A] verdict is against the weight of the evidence only when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice. It is well established that a weight of the
      evidence claim is addressed to the discretion of the trial court. …
      The role of the trial court is to determine that notwithstanding all
      the evidence, certain facts are so clearly of greater weight that
      to ignore them, or to give them equal weight with all the facts, is
      to deny justice. A motion for a new trial on the grounds that the
      verdict is contrary to the weight of the evidence concedes that
      there is sufficient evidence to sustain the verdict; thus the trial
      court is under no obligation to view the evidence in the light
      most favorable to the verdict winner.

      Significantly, in a challenge to the weight of the evidence, the
      function of an appellate court … is to review the trial court's
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight
      of the evidence. In determining whether this standard has been
      met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion. It is for this reason that the trial court’s


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       denial of a motion for a new trial based on a weight of the
       evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

citations and quotation marks omitted).          In the context of a claim for

ineffectiveness of trial counsel for failing to properly raise the claim before

the trial court, we review the PCRA court’s exercise of discretion based upon

the record.     See Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa.

Super. 2013).

       Here, the PCRA court found this claim waived, concluding that Smith’s

1925(b) statement was insufficiently specific to allow it to address the issue.

The relevant portion of Smith’s statement states: “The PCRA court erred by

denying appellant post conviction relief because trial counsel was ineffective

because he did not file a post-sentence motion and preserve the issue that

his conviction for attempted [murder] was against the weight of the

evidence.”    The PCRA court is correct in noting that this statement is too

vague to allow for review. See Commonwealth v. Seibert, 799 A.2d 54,

62 (Pa. Super. 2002). Thus, we find this claim waived. 1

____________________________________________


1
  In any event, Smith’s claim that trial counsel was ineffective for failing to
raise a weight of the evidence claim is an extraordinarily difficult claim to
prove has arguable merit. “A verdict is said to be contrary to the evidence
such that it shocks one’s sense of justice when the figure of Justice totters
on her pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes him to
almost fall from the bench, then it is truly shocking to the judicial
conscience.” Commonwealth v. Boyd, 73 A.3d 1269, 1274-1275 (Pa.
(Footnote Continued Next Page)


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      Next, Smith argues that counsel was ineffective for failing to preserve

prosecutorial misconduct during closing arguments as an issue for purposes

of direct appeal. We note that while the direct appeal panel found the issue

of prosecutorial misconduct waived pursuant to trial counsel’s failure to

request a remedy or adequately identify the basis of his objection, the panel

explained why, if they could address the claim on the merits, it has no

merit:

      Nevertheless, even if we were able to reach the merits of
      Smith’s assertions, the record offers no basis for the relief he
      requests. “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) (quoting Commonwealth v. DeJesus, 787
      A.2d 394, 407 (Pa. 2001)). We focus accordingly upon whether
      the prosecutor’s remarks or actions denied the defendant a fair
      trial. Harris, 884 A.2d at 927. This standard is relatively
      stringent. See id.

         Not every unwise remark on a prosecutor’s part constitutes
         reversible error.   … Generally speaking, a prosecutor’s
         comments do not constitute reversible error unless the
         unavoidable effect of such comments would be to prejudice
         the jury, forming in their minds fixed bias and hostility
         toward Appellant so that they could not weigh the evidence
         objectively and render a true verdict.

      Id. Significantly, prosecutorial misconduct is not shown where
      the comments at issue were based on the evidence or inferences
      reasonably deducible from it. See id. Counsel’s remarks are
      not evidence in themselves and counsel are allowed considerable
      latitude in arguing their cases to the jury. See Commonwealth
                       _______________________
(Footnote Continued)

Super. 2013) (citation and internal quotation marks omitted). Our review of
the record leads us to conclude that it is highly unlikely that any jurist would
be shocked by the verdict returned in this case.



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     v. Baez, 720 A.2d 711, 729 (Pa. 1998). If, when taken in
     context, counsel’s remarks amount only to “oratorical flair,” the
     requisite showing had not been made and the trial court is under
     no obligation to take corrective measures. See Harris, 884
     A.2d at 927.

     In this case, the first reference [Smith] challenges is nothing
     more than oratorical flair. See N.T., 1/25/07, at 102 (“I have
     often heard it said that when you go through a traumatic event it
     has the effect on some people of triggering almost a recording
     session.”).    Contrary to Smith’s assertion, nothing in the
     statement purports to scientific fact; indeed, by its plain
     language, the statement labels itself as the prosecutor’s personal
     reflection on facts in evidence. Malika Spivey testified that she
     distinctly recalled the defendant’s face and made reference to
     the keloid scar on the right side of his neck.          Moreover,
     notwithstanding Smith’s assertion of scholarly opinion in other
     disciplines, Brief for Appellant at 13, the prosecutor’s reflection
     remains consistent with applicable decisions of our appellate
     courts. See Commonwealth v. Edwards, 762 A.2d 382, 391
     (Pa. Super. 2000) (quoting Commonwealth v. Derrick, 469
     A.2d 1111, 1121 (Pa. Super. 1983) (“Whenever the victim of a
     crime has an opportunity to observe the criminal, the impression
     of the face of an assailant is etched upon the prey by the terror
     of the occasion.”). Accord, Commonwealth v. Butler, 512
     A.2d 667, 672 (Pa. Super. 1986). Accordingly, we find no basis
     upon which to conclude that the statement amounts to
     prosecutorial misconduct.

     In the second reference Smith challenges, the prosecutor sought
     to diminish the importance of any testimony that may have been
     offered by the second victim, Marcus Spivey. The prosecutor’s
     statement reads as follows:

       To say, well, he should go free because Marcus didn’t show.
       Use your common sense. If Marcus is over here being shot
       at by the light-skinned individual that has been identified,
       who do you think he’s going to be focused on? This guy
       who’s in front shooting him or the one that is running across
       the street shooting his sister?

       We don’t need Marcus here. Marcus may have been the
       target for everything, but Marcus, his focus is on someone
       who has already been dealt with.

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      N.T., 1/25/07, 111-12.         We find nothing even remotely
      prejudicial in these statements. In point of fact, they amount to
      nothing more than fair commentary on evidence of record.
      Other witnesses, including Malika Spivey and Lorrane Huff,
      testified specifically concerning the respective positions of both
      the victims and their assailants. The prosecutor’s suggestion,
      based upon that evidence, that Marcus Spivey was likely focused
      on his own assailant merely recognizes the testimony of those
      other witnesses and draws reasonable inferences that the jury,
      based upon human experience, could readily dissect and
      understand.      Accordingly, we find no basis upon which to
      characterize the prosecutor’s statements as misconduct.

Smith, at 7-9.

      It is true that the quoted language constitutes dicta, but we find its

reasoning correct and adopt it fully as our own. We therefore conclude that

Smith has failed to establish that the underlying claim has arguable merit,

and thus, has failed to establish his claim for ineffective assistance of trial

counsel. Smith’s second issue on appeal merits no relief.

      In his final issue, Smith contends that appellate counsel was

ineffective in failing to raise the issue of the sufficiency of the evidence

supporting   his   conviction   for   attempted   murder   of   Marcus   Spivey.

Specifically, Smith claims that appellate counsel should have argued that the

evidence at trial was insufficient to support a finding that he had the specific

intent to kill Marcus Spivey. We once again conclude that the PCRA court

was correct in concluding that Smith could not establish the arguable merit

of the underlying claim.




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      In reviewing a challenge to the sufficiency of the evidence, “[w]e must

determine whether the evidence admitted at trial, and all reasonable

inferences derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, support all of the elements of the offense

beyond a reasonable doubt.”     Commonwealth v. Cooper, 941 A.2d 655,

662 (Pa. 2007). Our scope of review is plenary. See Commonwealth v.

Weston, 749 A.2d 458, 460 n.8 (Pa. 2000).            We may not weigh the

evidence and substitute our judgment for the fact-finder’s, as the fact-finder

solely determines the credibility of witnesses and is free to believe all, part

or none of the evidence submitted. See Cooper, 941 A.2d at 662.             The

Commonwealth may sustain its burden of proving every element of an

offense by means of wholly circumstantial evidence. See Commonwealth

v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013).

      To sustain an attempted homicide conviction the Commonwealth must

prove the accused has commited an act that is a substantial step towards

the   commission of the     crime   with a specific intent     to   kill.   See

Commonwealth v. Dale, 836 A.2d 150, 152-153 (Pa. Super. 2003).

“[T]he law permits the fact finder to infer that one intends the natural and

probable consequences of his acts[.]” Commonwealth v. Jackson, 955

A.2d 441, 444 (Pa. Super. 2008) (citation omitted).      The intent necessary

for establishing attempted murder is a specific intent to kill.             See

Commonwealth v. Geathers, 847 A.2d 730, 735-736 (Pa. Super. 2004).


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        The specific intent to kill need not be confined to the intended victim.

“The transferred intent theory provides that if the intent to commit a crime

exists, this intent can be transferred for the purpose of finding the intent

element of another crime.”        Commonwealth v. Thompson, 739 A.2d

1023, 1029-1030 (Pa. 1999) (citation omitted).           Thus, if a defendant

intended to kill one victim by shooting in the victim’s direction, the intent to

kill is transferred to the innocent bystander who the defendant mistakenly

shot.    See Commonwealth v. Jackson, 955 A.2d 441, 445-446 (Pa.

Super. 2008).

        Here, the evidence established that Smith unleashed a hail of gunfire

while Holeman and Marcus Spivey were engaged in a dispute. The doctrine

of transferred intent permitted the fact-finder to infer that Smith intended to

kill both Marcus, whom Smith did not shoot, and Malika, whom Smith did

shoot.    The reckless nature of the high volume of shots fired allowed the

fact-finder to further infer that Smith was not carefully aiming warning shots

or attempting to merely injure his target, and that Smith intended to kill

both Marcus and Malika. We therefore conclude that Smith cannot establish

the arguable merit of his underlying sufficiency of the evidence claim. As a

result, he has not established that appellate counsel was ineffective, and his

final issue on appeal merits no relief.

        Order affirmed. Jurisdiction relinquished.

        Judge Mundy joins the memorandum.


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     Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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