J-S70030-18

                                2019 PA Super 74


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TYRECE LIGON                             :
                                          :
                    Appellant             :   No. 139 EDA 2018

               Appeal from the PCRA Order December 8, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0001138-2012


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY McLAUGHLIN, J.:                          FILED MARCH 11, 2019

      Tyrece Ligon, appeals from the order entered in the Philadelphia County

Court of Common Pleas, which denied his first petition brought pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Ligon

claims trial counsel was ineffective for failing to object to the prosecutor’s

allegedly impermissible remarks made during closing arguments to the jury.

We affirm.

      The PCRA court accurately set forth the facts of this case in its opinion

filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) and we do

not reiterate them in their entirety for purposes of this appeal. Instead, we

note the following factual background relevant to Ligon’s instant PCRA

petition, as gleaned from the PCRA court opinion. On January 18, 2011,

Howard Filmore (“the victim”) had an argument with his long-time girlfriend,

Linda Burrell and asked her to vacate their shared residence. In response,
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Burrell sought the help of her two adult daughters, Latrice Burrell and Shamira

Stanfield, in confronting the victim. Ligon, the instant Appellant, is the

boyfriend of Latrice Burrell. Ligon drove both daughters to the scene and an

altercation ensued. Shamira struck the victim with an aluminum baseball bat

and Ligon shot the victim in the back as he attempted to flee.

      Police Officer Charles Nelson transported the victim to the hospital

where he identified Ligon as the shooter and provided a written statement

regarding exactly what happened during the altercation. Further, after he was

released from the hospital and recovering at home, the victim was shown a

photographic array by police and he once again was able to identify Ligon as

the shooter. The victim also identified Ligon as the shooter during Ligon’s

preliminary hearing on January 26, 2012.

      However, at trial, the victim claimed that he did not recall the incident

and declined to identify Ligon. He specifically asserted that he was not afraid

of Ligon, but had been smoking “angel dust” around the time of the alleged

shooting. Ligon’s defense emphasized the victim’s unhelpful testimony and

supposed drug use during closing arguments to a jury:

      [Defense Counsel]: The first witness, [the victim], I think we can
      all agree was a fairly horrible witness for everybody. It was a
      painful experience for all of us to sit through.

            But [the victim] did shed light on a couple of issues that I
      want to bring to your attention. One, [the victim] is addicted to
      PCP and in 2011 was smoking PCP daily, multiple ties a day. He
      was likely high. He said that. That’s why he didn’t want to stay in
      the hospital. That’s why he was ripping the tubes out of his arms.
      He didn’t want people to know he was intoxicated.


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N.T., 4/10/14 at 50.

      The prosecutor responded during the Commonwealth’s closing:

      [Prosecutor]: Did he get up on that stand [at trial] and lie?
      Absolutely. His memory isn’t failed. He didn’t do every drug he
      could think of under the sun as he was sitting on that stand. Give
      me a break. No. But know why he said that. Know why.

             It’s a whole different circumstance when you’re sitting in
      Temple Hospital and you’re talking to detectives without Ligon
      around. It’s a different circumstance when you’re giving a photo
      array and you’re asked to circle somebody and Ligon’s not there;
      right? It’s whole different situation. But when you walk in this
      courtroom, all bets are off. It’s a totally different story at that
      point.

                                     ***

            We ask you to come in this courtroom, sit on that stand face
      to face with the defendant. We ask you to say your name. We ask
      you to spell it so everyone knows exactly who you are. That’s what
      our system requires. We ask them to sit up here in front of
      someone they know is a cold-blooded killer, who tried to kill them.

            So I call them witnesses. That’s what they’re called. But
      when they come to this courtroom and they leave, they’re called
      something else in the neighborhood. They’re not called witnesses.
      They’re not called victims. They’re called rats and they’re called
      snitches, and that’s not okay. I understand it, but it’s not ok.

Id. at 80-82.

      Ligon’s trial counsel did not object to the prosecutor’s closing argument.

Ultimately, the jury convicted Ligon of aggravated assault, possession of an

instrument of crime, carrying a firearm without a license, carrying a firearm

on a public street in Philadelphia, and criminal conspiracy, and the trial court




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convicted him of one count of persons not to possess a firearm.1 Particularly

significant here, we note that the jury found Ligon not guilty of attempted

first-degree murder.2 On July 18, 2014, the trial court sentenced Ligon to an

aggregate term of 15 to 30 years’ imprisonment. This Court affirmed his

judgment of sentence on July 12, 2016, Commonwealth v. Ligon, 154 A.3d

851 (Pa.Super. 2016), and Ligon did not seek review with the Pennsylvania

Supreme Court.

        On August 25, 2016, Ligon filed a timely pro se PCRA petition. Appointed

counsel filed an amended petition on April 17, 2017. Following a hearing on

November 3, 2017, the PCRA court issued notice of intent to dismiss Ligon’s

petition pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed Ligon’s

petition on December 8, 2017. The instant timely appeal followed and Ligon

filed a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal.

        Ligon raises the following single issue for review:

           1. Did the PCRA court commit legal error by not finding that
           the prosecution’s characterization of [Ligon] as a ‘cold
           blooded killer’ was prejudicial and warrant[ed] a new trial,
           if trial counsel had objected and made a motion?

Ligon’s Br. at 1.

        Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by
____________________________________________


1 18 Pa.C.S.A. §§ 2702(a), 907(a), 6106(a), 6108, 903(c), and 6105(a)(1),
respectively.

2   18 Pa.C.S.A. §§ 901(a), 2502(a).

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the evidence of record and whether it is free of legal error.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      Ligon’s sole issue on appeal concerns his trial counsel’s alleged

ineffectiveness. A PCRA petitioner will only prevail on a claim that trial counsel

was ineffective through pleading and proving each of the following: “(1) the

underlying legal claim is of arguable merit; (2) counsel’s action or inaction

lacked any objectively reasonable basis designed to effectuate his client’s

interest; and (3) prejudice, to the effect that there was a reasonable

probability of a different outcome if not for counsel’s error.” Commonwealth

v. Grove, 170 A.3d 1127, 1138 (Pa.Super. 2017) (quoting Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017)). A failure to plead or

prove any prong will defeat an ineffectiveness claim. Id. Further:

      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 ineffective 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.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing 42 Pa.C.S.A.

§ 9543(a)(2)(ii)) (internal quotation marks and brackets omitted).

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

ineffectiveness rests on appellant." Ousley, 21 A.3d at 1244. Additionally,

counsel is not ineffective for failing to raise a claim that is devoid of merit.

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




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      Germane to this appeal are the elements required to support a

conviction for attempted murder:

      [u]nder the Crimes Code, “[a] person commits an attempt when
      with intent to commit a specific crime, he does any act which
      constitutes a substantial step towards the commission of the
      crime.” 18 Pa.C.S.A. § 901(a). A person may be convicted of
      attempted murder if he takes a substantial step toward the
      commission of a killing, with the specific intent in mind to commit
      such an act. See 18 [Pa.C.S.A.] §§ 901, 2502. The substantial
      step test broadens the scope of attempt liability by concentrating
      on the acts the defendant has done and does not any longer focus
      on the acts remaining to be done before the actual commission of
      the crime. The mens rea required for first-degree murder, specific
      intent to kill, may be established solely from circumstantial
      evidence. [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) (most

internal citations and quotation marks omitted).

      In this case, Ligon claims that his trial counsel was ineffective for failing

to object to the prosecutor’s characterization of him as a “cold-blooded killer”

during the Commonwealth’s closing arguments. Ligon argues that this

characterization was tantamount to prosecutorial misconduct. He specifically

points to Commonwealth v. Capalla, 185 A. 203 (Pa. 1936), as the seminal

case establishing that the verbiage “cold-blooded killer” should be considered

per se prejudicial and thereby entitles defendants to a new trial. In light of the

specific factual circumstances at issue in this case and the recent precedent

issued by our Supreme Court in Commonwealth v. Clancy, 192 A.3d 44 (Pa.

2018), we cannot agree.




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      It is axiomatic that during closing arguments the prosecution “is limited

to making comments based upon the evidence and fair deductions and

inferences therefrom.” Commonwealth v. Joyner, 365 A.2d 1233, 1236 (Pa.

1976). Indeed, given the critical role that the Commonwealth plays in the

administration of justice, a prosecutor has been historically prohibited from

expressing “a personal belief regarding a defendant’s guilt or innocence or the

veracity of the defendant or the credibility of his witnesses.” Commonwealth

v. Novasak, 606 A.2d 477, 481 (Pa.Super. 1992).

      However, because trials are necessarily adversarial proceedings,

prosecutors are entitled to present their arguments with reasonable latitude.

Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002). Moreover, it is

well settled that defendants are entitled to a fair trial, not a perfect one.

Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation

omitted). “Thus, a prosecutor’s remarks do not constitute reversible error

unless their unavoidable effect . . . [was] to prejudice the jury, forming in

their minds fixed bias and hostility toward the defendant so that they could

not weigh the evidence objectively and render a true verdict.” Id. (quoting

Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009)).

      Ligon specifically relies on the often cited Capalla for the proposition

that a prosecutor’s reference to a defendant as “a cold blooded killer”

constitutes per se reversible error. Indeed, in that case, our Supreme Court

admonished that no defendant should be characterized by the prosecutor as

a “cold blooded killer” until convicted of murder. Capalla, 185 A. at 205. The

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Court reasoned that such a reference would be “equivalent to an expression

of belief on the part of the district attorney that the defendant was guilty of

murder in the first degree.” Id. at 206.

      However, Ligon does not discuss subsequent case law that departed

from the rigid standard set forth in Capalla. For example, in Commonwealth

v. D’Amato, 526 A.2d 300, 313 (Pa. 1987), our Supreme Court concluded

that a prosecutor’s closing argument, which characterized the defendant as a

“clever, calculating, and cunning executioner,” did not require reversal. There,

the Court emphasized that the prosecutor’s remarks were made in fair

response to the defense’s characterization of the defendant as an uneducated

man tricked into a confession. Likewise, in Commonwealth v. Chamberlain,

30 A.3d 381, 408 (Pa. 2011), our Supreme Court emphasized that a

prosecutor’s statements must be viewed in light of the evidence presented in

the case. In Chamberlain, the Court held that the prosecutor’s description of

the defendant as a “murderer” did not require reversal where inferences from

the evidence in the case could lead to the conclusion that the defendant had

murdered the victim. Id.

      Most significantly, while the instant case was pending on appeal, the

Pennsylvania Supreme Court issued Clancy, which synthesized the case law

concerning this issue. There, the prosecutor also referred to the defendant as

a “cold blooded killer” during closing arguments. The defendant also sought

reversal of his conviction under the PCRA. After reviewing the applicable case

law, our Supreme Court specifically noted that “since D’Amato this Court has

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tolerated harsh characterizations of the defendant when they are germane to

the law that applies to the case at hand and to a particular element of an

offense at issue.” Clancy, 192 A.3d at 61. The Court specifically endorsed a

two-part analysis, that Pennsylvania courts have consistently utilized, to

review a prosecutor’s remarks: 1) does the substance of the remarks relate

to the facts of the case, the elements of the crimes charged, and constitute a

fair and reasonable rebuttal to the defenses’ arguments and 2) do the remarks

have a prejudicial effect on the jury. Id. at 62.

      In Clancy, the defendant was charged with first-degree murder but

argued that he had only discharged his gun accidentally. Id. at 65. Thus,

under the particular facts of that case, the Pennsylvania Supreme Court

concluded that the prosecutor’s characterization of the defendant as a “cold

blooded murderer” directly related to the premeditation element of the crime

charged, first-degree murder, and was thus a fair response to the defense

argument that the defendant shot the victim in the heat of passion. Id. at 66-

67. Therefore, the Court in Clancy held that the prosecution’s use of the term

“cold blooded killer” “constituted permissible (if aggressive) oratorical flair”

and thus concluded it was unnecessary to evaluate the second prong of

analysis, the remark’s effect on the jury. Id. at 67.

      Likewise, in the instant case, the prosecutor’s characterization of Ligon

as a “cold blooded murderer” is tethered to the evidence adduced at trial, the

elements of the crime charged, and the arguments advanced by the defense.

The victim’s initial statement at the hospital, reiterated at Ligon’s preliminary

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hearing, alleged that Ligon shot the victim in the back as he attempted to flee.

Thus, Ligon was charged with attempted first-degree murder, which requires

a mens rea of a specific intent to kill. Jackson, 955 A.2d at 444. Therefore,

as in Clancy, the term “cold blooded,” as utilized by the prosecutor during

closing arguments, directly related to Ligon’s alleged actions and the mens

rea required for the crime charged. See Clancy, 192 A.3d at 66-67. Further,

as noted above, Ligon’s defense centered around discrediting the victim as

unable to recall events at trial due to continual impairment caused by drug

use. The prosecutor’s use of the term “cold blooded killer” to describe Ligon

was a fair response to explain why the victim, who had previously identified

Ligon as the shooter repeatedly, felt too intimidated to be forthcoming at trial

in the presence of Ligon. See id.

      In light of the forgoing, we conclude that the prosecutor’s use of the

term “cold blooded killer” in this case constituted an isolated use of oratorical

flair that does not require reversal in the particular factual context presented

here. See id.; Paddy, 800 A.2d at 316; Ragland, 991 A.2d at 340.

Therefore, it is unnecessary to proceed to an evaluation of the remark’s effect

on the jury. See Clancy, 192 A.3d at 67. We conclude that Ligon’s

ineffectiveness claim lacks merit because the prosecutor’s closing argument

was not impermissible and thus Ligon’s trial attorney cannot be deemed

ineffective for failing to object. See Ligons, 971 A.2d at 1146. Accordingly,

we affirm the PCRA court’s denial of Ligon’s ineffectiveness claim.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/19




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