J-S37020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DERRICK DAVIS,

                         Appellant                      No. 2045 EDA 2014


                Appeal from the PCRA Order June 27, 2014
           In the Court of Common Pleas of Philadelphia County
   Criminal Division at No(s): CP-51-CR-0006649-2007, Nos. CP-51-CR-
                               0006712-2007


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED AUGUST 27, 2015

      Derrick Davis (“Appellant”) 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 direct appeal, a panel of this Court summarized the underlying

facts and procedural history of this case as follows:

             On March 12, 2007, [Appellant] was arrested and charged
      in connection with the October [4], 200[3] shooting death of
      Terr[a]nce Barron (“Barron”) and the August 5, 2006 shooting of
      William Flournoy (“Flournoy”), the only eyewitness to Barron’s
      murder. [Appellant] filed a motion to suppress Flournoy’s
      identification of him as the shooter in both incidents, and after
      holding an evidentiary hearing the trial court denied the motion.
      On January 26, 2009, [Appellant] and Christopher Willis, his
      alleged co-conspirator in Barron’s death, were tried as co-
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       defendants at a jury trial. The jury convicted [Appellant] of the
       above-referenced crimes.[1]

              On August 12, 2009, [Appellant] received the following
       concurrent sentences: life in prison (for first degree murder),
       10–20 years of incarceration (for conspiracy), 10–20 years of
       incarceration (for attempted murder), 1–2 years of incarceration
       (for retaliation against a witness), 5–10 years of incarceration
       (for intimidating a witness), and 1–2 years of incarceration (for
       each of two counts of possession of an instrument of crime). He
       received no further penalty for aggravated assault and for
       recklessly endangering another person.

Commonwealth v. Davis, 17 A.3d 390, 393 (Pa. Super. 2011).2                That

panel affirmed the judgment of sentence, id. at 399, and the Pennsylvania

Supreme Court denied allowance of appeal. Commonwealth v. Davis, 29

A.3d 371 (Pa. 2011).

       Appellant filed the instant PCRA petition on July 26, 2012. The PCRA

court filed a Pa.R.Crim.P. 907 notice on May 16, 2014, advising Appellant of

its intent to dismiss the petition without a hearing, and then formally denied

relief on June 27, 2014.        This timely appeal followed.   Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents the          following questions for our

consideration:
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1
  Co-defendant Christopher Willis was also convicted and filed an appeal at
1695 EDA 2014.
2
  For a detailed recitation of the facts underlying the murder of Terrance
Barron see this Court’s decision in Commonwealth v. Willis, 2772 EDA
2009, 23 A.3d 1079 (Pa. Super. filed January 11, 2011) (unpublished
memorandum at 1–3).



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      I.     Did the trial court err in denying relief where the
             prosecutor referred to [A]ppellant during closing argument
             as an “enforcer” and stated that the victim’s murder was
             “drug-related” when there was no evidence to support
             either of those claims?

      II.    Did the trial court err in failing to conduct an evidentiary
             hearing on [A]ppellant’s claim that trial counsel was
             prejudicially ineffective when he failed to object to the
             prosecutor’s    “enforcer”   and     “drug-related  murder”
             statements during closing argument?

      III.   Did the trial court err when it concluded that the United
             States Supreme Court’s holding in Miller v. Alabama, 132
             S.Ct. 2455 (2012) that it is unconstitutional to sentence a
             defendant who was a juvenile at the time he committed a
             murder to life imprisonment without the possibility of
             parole does not apply retroactively to cases in which the
             defendant’s conviction became final before Miller was
             decided?

Appellant’s Brief at 1–2.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).               We

grant great deference to the PCRA court’s findings that are supported in the

record and will not disturb them unless they have no support in the certified

record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

      In order to obtain collateral relief, a PCRA petitioner must establish by

a preponderance of the evidence that his conviction or sentence resulted

from one or more of the circumstances enumerated in 42 Pa.C.S.

§ 9543(a)(2).   Instantly, Appellant claims ineffective assistance of counsel

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(“IAC”) pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).3 To plead and prove IAC, a

petitioner must establish: (1) that the underlying issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act.         Rykard, 55 A.3d

1177, 1189–1190 (Pa. Super. 2012).               A claim of ineffectiveness will be

denied if the petitioner’s evidence fails to meet any one of these prongs.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). We reiterate that

counsel’s representation is presumed to have been effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999). Further, we have explained that trial counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

       Appellant argues that counsel was ineffective in failing to object to the

prosecutor’s inappropriate reference to Appellant as “an enforcer” and

characterization of the crime as a “drug-related murder.” Appellant’s Brief

at 8. According to Appellant, “there was no evidence presented at trial that


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3
   Additionally, we note that Appellant combines his discussion of the first
two issues in his appellate brief. This violates Pa.R.A.P. 2119(a), which
provides as follows: “The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.”       Nonetheless, because our appellate review is not
hampered, we shall address Appellant’s first two issues.



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the victim’s murder had anything to do with the illegal narcotics business

much less proof that [A]ppellant was an ‘enforcer’ for his co-defendant.” Id.

      Prosecutorial misconduct does not occur unless the unavoidable effect

of the comments at issue is to prejudice the jurors by forming in their minds

a fixed bias and hostility toward the defendant, thus impeding their ability to

weigh the evidence objectively and render a true verdict. Commonwealth

v. Riggle, 2015 PA Super 147, ___ A.3d ___ (Pa. Super. filed July 7, 2015)

(quoting Commonwealth v. Bryant, 67 A.3d 716, 727–728 (Pa. 2013)). A

“prosecutor must be free to present his or her arguments with logical force

and vigor.”   Commonwealth v. Chmiel, 30 A.3d 1111, 1146 (Pa. 2011)

(quoting Commonwealth v. Robinson, 864 A.2d 460, 517 (Pa. 2004)).

Pennsylvania courts have permitted prosecutorial advocacy “as long as there

is a reasonable basis in the record for the [prosecutor’s] comments.”

Robinson, 864 A.2d at 516.          “Prosecutorial comments based on the

evidence or reasonable inferences therefrom are not objectionable, nor are

comments that merely constitute oratorical flair.” Chmiel, 30 A.3d at 1145

(citation omitted).    Furthermore, the prosecution must be permitted to

respond to defense counsel’s arguments. Id. Any challenged prosecutorial

comment must not be viewed in isolation, but rather must be considered

in the context in which it was offered.        Robinson, 864 A.2d at 517

(emphasis supplied).




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      Applying the above legal standards, the PCRA court addressed the

prosecutor’s “enforcer” reference as follows:

      It is clear that the prosecution’s closing remarks were reasonably
      based on the record from this trial and did not merit a
      mistrial. . . . On October 4, 2003, William Flournoy was present
      during the murder of Terrance Barron, as they shared a home
      together along with the victim’s then girlfriend, Valerie Ware.
      During the investigation of this murder and the subsequent
      trial[,] William Flournoy identified the Appellant and [co-
      defendant] Christopher Willis as the individuals that murdered
      Terrance Barron.

            On March 31, 2005, William Flournoy testified at a
      preliminary hearing as a Commonwealth witness against
      Christopher Willis.    Subsequently, on July 14, 2006 William
      Flournoy resided with his elderly parents on Paschall Avenue and
      was visited by the Appellant. At trial William Flournoy testified
      that his doorbell rang at approximately 11:30 p.m. William
      Flournoy opened the door and stated, “I saw a young black male
      standing outside with a pizza box in his hand.” Then, William
      Flournoy told the individual the pizza was not for him and closed
      the door. A few moments later, William Flournoy’s doorbell rings
      again and the same individual was standing in his doorway. The
      witness testified that “it registered that was the guy in the house
      that I saw the night Terry was murdered . . . he was holding the
      pizza box with one hand like this and he had – I would say he
      had his gun in his right hand under the pizza box.”             The
      Appellant locked eyes with William Flournoy and fired his gun.
      William Flournoy “ducked” in order to not be shot and the bullet
      went through the screen door and up into the ceiling. William
      Flournoy looked out the peep hole of his door and watched the
      Appellant get into a green car and speed away. William Flournoy
      never reported this incident to the police because he did not
      want his elderly parents to live in fear that they could be
      attacked in their home.

            This was not the Appellant’s only attempt to kill William
      Flournoy.   On August 5, 2006 at approximately 12:05 am
      William Flournoy was returning from a local deli, riding his bike
      home when he noticed a green car coming around the bend.
      William Flournoy testified that he saw the Appellant “jump out of
      his car and had his hands on his hip.” The victim attempted to

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      flee into a vacant lot near his home but could not manage to
      escape being shot by the Appellant. William Flournoy testified at
      this trial and stated, “I heard the shot ring out. The shot came
      in my chest, traveled up – actually came in my lower stomach,
      traveled up, came out my chest, went up, broke my jaw, and
      shattered my teeth.”       William Flournoy was treated for his
      injuries at the University of Pennsylvania Hospital for several
      days, was questioned by police in reference to this shooting, and
      told the police “that he was a witness for a murder and he was
      shot by one of the people that he knows murdered Terry.” On
      January 31, 2007, after being shown photos by detectives,
      William Flournoy, identified the Appellant as the individual who
      attempted to kill him and as one of Terrance Barron’s
      murderers. . . .

                                * * *

      When viewing this case as a whole, the evidence and testimony
      presented at this trial indicate that the Appellant acted as an
      enforcer when viewing the term in even its most elementary
      form.    At trial, the witness and subsequent victim William
      Flournoy identified the Appellant not only as the individual that
      participated in the murder of Terrance Barron but also as the
      individual that attempted to kill him.

PCRA Court Opinion, 9/10/14, at 5–7 (footnotes omitted).

      Our review of the record supports the PCRA court’s findings regarding

the prosecutor’s reference to Appellant as an “enforcer.” N.T., 1/28/09, at

16–17; N.T., 1/29/09, at 40–41.     Additionally, the record indicates that,

during the murder, Flournoy heard Appellant direct co-defendant Willis,

“Pass me the gun.” N.T., 1/28/09, at 11, 19–21. Flournoy then saw Willis

pass Appellant the gun, and Appellant “shot the gun into the ground.” Id.

Such evidence further supports the prosecutor’s inference that Appellant

played the role of enforcer.




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      With regard to the prosecutor’s comment that this was a drug-related

crime,   the    record   contains   evidence   supporting   such   an   inference.

William Flournoy testified that he used crack cocaine and had purchased it

from co-defendant Willis on numerous occasions. N.T., 1/28/09, at 15–17;

N.T., 1/29/09, at 40–41. Terrance Barron also used drugs and had cocaine

in his system when he was shot. N.T., 1/26/09, at 71; N.T., 1/28/09, at 17.

      We agree with the Commonwealth’s assertion that the cases Appellant

relies on in support of his position are distinguishable because “they involve

comments of a very different quantity and quality.” Commonwealth’s Brief

at 15.   Unlike Appellant’s cases, the prosecutor herein made one passing

reference to this being a drug-related case and to Appellant being an

enforcer.      These comments were reasonable inferences drawn from the

evidence adduced at trial and not likely to have the unavoidable effect of

prejudicing the jurors by forming in their minds a fixed bias and hostility

toward Appellant, thus impeding their ability to weigh the evidence

objectively and render a true verdict. Riggle, 2015 PA Super 147. In light

of the record at hand, we conclude that Appellant’s underlying claim lacks

merit. Therefore, his derivative IAC claim does not warrant relief.

      Having argued that the underlying claim has merit, Appellant invites

us to remand for an evidentiary hearing “[t]o the extent that this Court

believes that there is a question of fact” regarding whether counsel had a

rational basis for not objecting to the prosecutor’s offensive closing remarks.


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Appellant’s Brief at 9.   We decline Appellant’s invitation.   The right to an

evidentiary hearing on a PCRA petition is not absolute, and the PCRA court

may decline to hold a hearing if the petitioner’s claims are patently frivolous

with no support in either the record or other evidence. Commonwealth v.

Walls, 993 A.2d 289 (Pa. Super. 2010); Pa.R.Crim.P. 907.             See also

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“There is

no absolute right to an evidentiary hearing on a PCRA petition, and if the

PCRA court can determine from the record that no genuine issues of material

fact exist, then a hearing is not necessary.”). Having found no support in

the record for Appellant’s IAC claim, we further find no abuse of discretion

by the PCRA court in dismissing Appellant’s petition without a hearing.

Thus, Appellant’s second issue does not warrant relief.

      Lastly, Appellant challenges his sentence of life without parole as

unconstitutional pursuant to Miller v. Alabama, ___ U.S. ___, 132 S.Ct.

2455 (2012).     In Miller, the United States Supreme Court held that a

mandatory life sentence without parole imposed on a defendant under the

age of eighteen at the time of his crime violates the Eighth Amendment

prohibition of cruel and unusual punishment.       Our Pennsylvania Supreme

Court has held that the Miller Court did not, itself, give retroactive effect to

the new rule it announced, and Miller is not otherwise retroactive under the




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first Teague4 exception. Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2724 (2014). We are bound by

the decisions of our Supreme Court and, therefore, our decision herein is

controlled by this statement of the law.

       Appellant informally requests that we “stay our hand” on appeal until

the United States Supreme Court reaches a decision regarding the

retroactivity of Miller in State v. Toca, 141 So.3d 265 (La. 2014), cert.

granted, Toca v. Louisiana,___ U.S. ___, 135 S.Ct. 781 (2014), cert.

dismissed, ___ U.S. ___, 135 S.Ct. 1197 (2015).       Appellant’s Brief at 10.

We note, however, that the writ of certiorari granted in part in Toca was

dismissed upon written agreement of the parties under Supreme Court Rule

46(1) on February 3, 2015. On March 23, 2015, the Supreme Court granted

certiorari in State v. Montgomery, 141 So.3d 264 (La. 2014), cert.

granted, Montgomery v. Louisiana, ___ U.S. ___, 135 S.Ct. 1546 (2015),

which also presents the Miller retroactivity question. Until the United States

Supreme Court issues a contrary decision, Cunningham remains the final



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4
   Teague v. Lane, 489 U.S. 288 (1989). The Teague Court “delineated a
general rule of non-retroactivity for new procedural, constitutional rules
announced by the Court, . . . subject to two narrow exceptions. . . . The
exceptions extend to “rules prohibiting a certain category of punishment for
a class of defendants because of their status or offense,” and “watershed
rules of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Cunningham, 81 A.3d at 4–5.



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word in Pennsylvania on the issue of Miller’s retroactivity, and it does not

afford Appellant relief from his life sentence.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2015




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