J-A07041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LARRY J. ROWE                              :
                                               :   No. 1263 MDA 2017
                       Appellant               :

                   Appeal from the PCRA Order July 11, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0002181-2015


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 19, 2018

        Appellant Larry J. Rowe appeals from the Order entered on July 11,

2017, in the Court of Common Pleas of Lancaster County denying his first

petition filed under the Post Conviction Relief Act (PCRA).1 We affirm.

        We need not reproduce the facts and procedural history of this case,

which are aptly summarized by the PCRA court in its Pa.R.A.P. 1925(a)

Opinion. See PCRA Court Opinion, filed 9/18/17, at 1-4.

        In his brief, Appellant presents the following questions for our review:

        A. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN
        AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD
        HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE
        ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN
        TRIAL COUNSEL FAILED TO OBJECT, SEEK A CAUTIONARY
        INSTRUCTION, FILE A MOTION IN LIMINE, AND/OR SEEK A
        MISTRIAL DUE TO REPEATED REFERENCES TO DEFENDANT'S
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07041-18


     PRIOR BAD ACTS, PAROLEE STATUS, AND PRISON STATUS
     DURING TRIAL IN THAT DEFENDANT'S STATE PAROLE AGENT
     AND VARIOUS POLICE OFFICERS REFERRED TO HIM AS
     DELINQUENT AND AN ABSCONDER, REFERENCED MISSED
     APPOINTMENTS WITH PAROLE AGENT, DEFENDANT'S CONSTANT
     DRUG USE, BEING TRANSPORTED TO YORK COUNTY PRISON AND
     INCARCERATED IN LANCASTER COUNTY PRISON, THERE WERE
     ITEMS IN DEFENDANT'S ROOM AND KITCHEN THAT WERE
     CONNECTED TO CRIMINAL ACTIVITY (DRUGS AND PACKAGING
     MATERIAL) AND THE FIREARM FOUND UNDER THE PILLOW WAS
     REPORTED STOLEN. THE AFORESAID TRIAL ATTORNEY
     OMISSIONS WERE OF ARGUABLE MERIT, THERE WAS NO
     REASONABLE BASIS FOR NOT OBJECTING, SEEKING A CURATIVE
     INSTRUCTION, FILING A MOTION IN LIMINE TO PRECLUDE PRIOR
     BAD ACTS, OR DEMANDED A RULE 404(B)(3) MOTION FROM THE
     COMMONWEALTH THAT WOULD HAVE PREVENTED ANY
     REFERENCES TO AFORESAID OBJECTIONABLE AREAS AND
     DEFENDANT WAS PREJUDICED BY THE INTRODUCTION OF THIS
     TESTIMONY/EVIDENCE SUCH THAT HE IS ENTITLED TO A NEW
     TRIAL.

     B. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN
     AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD
     HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE
     ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN
     TRIAL COUNSEL FAILED TO OBJECT, REQUEST A MISTRIAL
     AND/OR    SEEK   A   CURATIVE    INSTRUCTION   DUE   TO
     PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT BY
     THE COMMONWEALTH        WHEN PROSECUTOR       PRESENTED
     PERSONAL OPINION IN THE FORM OF CALLING DEFENDANT A
     LIAR AND ALL COMMONWEALTH WITNESSES ARE NOT LIARS.
     THE AFOREMENTIONED TRIAL ATTORNEY OMISSIONS WERE OF
     ARGUABLE MERIT, THERE WAS NO REASONABLE BASIS FOR NOT
     OBJECTING, REQUESTING A MISTRIAL AND/OR SEEKING A
     CURATIVE INSTRUCTION DUE TO THE PROSECUTORIAL
     MISCONDUCT AND DEFENDANT WAS PREJUDICED BY THIS
     COMMONWEALTH CLOSING ARGUMENT SUCH THAT HE IS
     ENTITLED TO A NEW TRIAL.

     C. WHETHER APPELLANT RAISED A GENUINE ISSUE OF FACT IN
     AMENDED PCRA PETITION, IF RESOLVED IN HIS FAVOR, WOULD
     HAVE ENTITLED HIM TO RELIEF OR THAT THE COURT OTHERWISE
     ABUSED ITS DISCRETION IN DENYING PCRA HEARING WHEN
     TRIAL   COUNSEL'S    FAILURE    TO    OBJECT,  SEEK   A

                               -2-
J-A07041-18


      CAUTIONARY/CURATIVE INSTRUCTION, FILE A MOTION IN
      LIMINE AND/OR SEEK A MISTRIAL DUE TO REPEATED
      REFERENCES TO DEFENDANT'S PRIOR BAD ACTS AND THE
      PROSECUTORIAL MISCONDUCT IN THE FORM OF PERSONAL
      OPINION DURING CLOSING ARGUMENT HAD THE CUMULATIVE
      EFFECT OF PREJUDICE TO DEFENDANT. THE AFOREMENTIONED
      TRIAL ATTORNEY OMISSIONS WERE OF ARGUABLE MERIT, AS
      THERE WAS NO REASONABLE BASIS FOR NOT OBJECTING,
      SEEKING A CURATIVE/CAUTIONARY INSTRUCTION, FILING A
      MOTION IN LIMINE, DEMANDING A COMMONWEALTH RULE
      404(B)(3) MOTION OR SEEKING A MISTRIAL. DEFENDANT WAS
      PREJUDICED BY THE CUMULATIVE EFFECT OF THE AFORESAID
      TRIAL ATTORNEY OMISSIONS SUCH THAT HE IS ENTITLED TO A
      NEW TRIAL.

Brief for Appellant at 1-3.

       When reviewing an order denying PCRA relief, this Court must discern

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

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

31 A.3d 317, 319 (Pa.Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be

disturbed unless there is no support for the findings in the certified record. Id.

(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [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 “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel's performance
      was deficient and that such deficiency prejudiced him.”


                                      -3-
J-A07041-18


      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [ (Pa. 2010) ] (citing Strickland[ v. Washington, 104 S.Ct.
      2053 (1984)] ). In Pennsylvania, we have refined the Strickland
      performance and prejudice test into a three-part inquiry. See
      [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
      1987)]. Thus, to prove counsel ineffective, the petitioner must
      show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and (3)
      the petitioner suffered actual prejudice as a result.
      Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
      “If a petitioner fails to prove any of these prongs, his claim fails.”
      Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
      260 (2013) (citation omitted). Generally, counsel's assistance is
      deemed constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate his
      client's interests. See Ali, supra. Where matters of strategy and
      tactics are concerned, “[a] finding that a chosen strategy lacked
      a reasonable basis is not warranted unless it can be concluded
      that an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.” Colavita,
      606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
      omitted). To demonstrate prejudice, the petitioner must show that
      “there is a reasonable probability that, but for counsel's
      unprofessional errors, the result of the proceedings would have
      been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
      607, 613 (2012) (quotation, quotation marks, and citation
      omitted). “ ‘[A] reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the
      proceeding.’ ” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
      (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 311-12 (2014).

      After careful review of the parties' briefs, the certified record on appeal,

and relevant case law, we conclude that the trial court's opinion, authored by

Judge Donald R. Totaro, cogently disposes of each issue Appellant has raised

on appeal. We, therefore, affirm the trial court's Order denying Appellant’s

PCRA petition without a hearing and adopt the well-reasoned opinion of the


                                      -4-
J-A07041-18


trial court as the decision of this Court. We direct that a copy of the trial court's

September 18, 2017, Opinion be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/19/2018




                                        -5-
                                                                               Index of Record
                                                            Circulated 03/01/2018 09:49 AM




                                            OCTOBER 13, 2017
                                            RE: LARRY J. ROWE
                                            CP CR NO: CP-36-CR-0002181-2015
                                            SUPERIOR CR NO: 1263 MDA 2017

                     INDEX OF RECORD – OPINION

1. INDEX OF RECORD

2. OPINION
                                                                                                                   Opinion




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                           CRIMINAL


COMMONWEALTH OF PENNSYLVANIA
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       Before the Superior Court of Pennsylvania is an appeal from an order entered oij;Tuly 11,

2017, dismissing the Amended Petition for Post-Conviction Relief Pursuant to the Post­

Conviction Relief Act ("PCRA"), filed by Randall L. Miller, Esquire ("PCRA counsel"), on

behalf of Larry J. Rowe ("Appellant"). On August 10, 2017, Appellant filed a Notice of Appeal.

For the reasons that follow, the appeal should be denied.

                          PROCEDURAL AND FACTUAL BACKGROUND

       On April 2, 2015, while state parole agents were executing an arrest warrant for

Appellant at 234 E. Fulton Street#1, Lancaster, Pennsylvania, officers observed a marijuana

pipe, clear plastic bag containing marijuana, and copper mesh wire in plain view. See Search

Warrant Affidavit of Probable Cause. While securing the residence, officers also saw in plain

view a box of clear plastic baggies in the bedroom and a pizza box in the kitchen with a delivery

label marked "31 Mar 15, Larry ROWE, 234 E Fulton St. apt# 1 ph# 717-406-5039." Id.

Based on this information, a search warrant was obtained for the residence, at which time officers

found a Sig Sauer .380 semi-automatic handgun with one round in the chamber and a magazine

holding five additional rounds of ammunition. See Receipt/Inventory of Seized Property.
        On April 8, 2015, Appellant was charged with persons not to possess, use, manufacture,

control, sell, or transfer a firearm; receiving stolen property; possession of oxycontin; possession

of diazepam; possession of marijuana; and possession of drug paraphernalia. See Police

Criminal Complaint. 1 According to charging documents, Appellant was the sole occupant of the

first floor living area where the firearm was found and he was prohibited from possessing a

firearm due to a prior burglary conviction in 2002. See Affidavit of Probable Cause.

        On May 11, 2016, following a suppression hearing,2 Appellant proceeded to trial by jury

on the sole count of persons not to possess, use, manufacture, control, sell, or transfer a firearm.

(Notes of Testimony at 4-5) (hereinafter "N.T."). Appellant was found guilty. Id. at 359. On

July 27, 2016, after completion of a pre-sentence investigation report, Appellant was ordered to

undergo imprisonment in the state correctional institution for a period of not less than five years

nor more than ten years, which was within the standard range of the sentencing guidelines. See

Sentencing Guidelines Worksheet; Sentencing Order. The remaining counts were dismissed.

See Sentencing Order.

        On August 5, 2016, trial counsel filed a post-sentence motion alleging that the evidence

was insufficient to support the conviction and the guilty verdict was against the weight of the

        1
          18 Pa.C.S.A. § 6105(a)(l); 18 Pa.C.S.A. § 3925(a); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-
113(a)(16); 35 P.S. § 780-113(a)(31); 35 P.S. § 780-113(a)(32); respectively.
         2 On December 17, 2015, Michael V. Marinaro, Esquire ("trial counsel") filed an Omnibus
Pretrial Motion and Motion to Suppress Evidence alleging the residence was unlawfully searched while
police were executing an arrest warrant on Appellant, and therefore any items observed during execution
of the arrest warrant or items seized based on the subsequent illegal search warrant should be suppressed.
See Omnibus Pretrial Motion. Following the suppression hearing, the court found that officers were
properly in the residence to execute an arrest warrant on Appellant when they saw contraband in plain
view, and from those observations the officers had sufficient probable cause to obtain a search warrant
for the residence. (Notes of Testimony, Suppression Hearing at 81-87). Thus, Appellant's Motion was
denied. Id. at 87.

                                                    2
evidence. See Motion. The Motion also requested a modification of sentence. Id. That motion

was denied on August 8, 2016. See 8/8/16 Order. On August 12, 2016, trial counsel filed a

Motion to Withdraw as Counsel, which was granted on August 18, 2016. See Motion; 8/18/16

Order. On September 7, 2016, MaryJean Glick, Esquire ("appellate counsel") filed a Notice of

Appeal to the Superior Court of Pennsylvania, and on September 28, 2016, counsel filed a

Statement of Errors Complained of on Appeal alleging the trial court erred in denying

Appellant's suppression motion. See Statement. On October 14, 2016, the appeal was

discontinued. See Notice of Discontinuance of Action.

        On January 12, 2017, Appellant timely filed a prose PCRA motion. 3 PCRA counsel was

appointed on January 20, 2017, and counsel filed an amended PCRA petition on March 21, 2017

alleging that trial counsel provided ineffective assistance for failing to: (1) object, seek a

cautionary instruction, file a motion in limine, or seek a mistrial due to repeated references to

Appellant's prior bad acts and prison status; (2) object, request a mistrial, or seek a cautionary

instruction due to prosecutorial misconduct during closing argument in the form of personal

opinion; (3) make a motion for a demurrer or directed verdict of acquittal; (4) object, file a

motion in limine, or seek a cautionary instruction regarding Appellant's predicate prior

convictions for burglary and felony drugs, and deliberately questioning Appellant on said

convictions; and (5) object to the trial court's written submission of jury instructions to the jury.

See Amended Petition for Post-Conviction Relief Pursuant to the Post-Conviction Relief Act.


        3
           In his pro se Motion, Appellant alleged trial counsel provided ineffective assistance of counsel
for "failing to object to an illegal search and seizure where the search warrant video clearly establishes
that the police officers could not have viewed the contents of the bag that served as a basis for the search
warrant without first opening the bag illegally[.]" See PCRA Motion. Appellant further alleged trial
counsel was ineffective for failing to object to the court's instruction on constructive possession. Id.

                                                     3
        Pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, this court

conducted an independent review of the record and concluded the amended PCRA petition was

patently frivolous, the allegations were not supported by the record, and there were no genuine

issues concerning any material fact. Therefore, on June 9, 2017, the court provided notice of its

intent to dismiss Appellant's amended petition without a hearing for the reasons stated therein.

See Rule 907 Notice. On July 11, 2017, after reviewing Appellant's Motion for Reconsideration

of Rule 907 Notice and determining it did not contain anything new for the court's consideration

that would result in a change to the findings as detailed in the Rule 907 Notice, the court entered

an order denying the amended PCRA petition. See 7/11/17 Order.

        On August 10, 2017, Appellant filed a Notice of Appeal to the Superior Court of

Pennsylvania. A Statement of Errors Complained of on Appeal ("Statement") was filed on

August 31, 2017, alleging the PCRA court's decision to dismiss Appellant's amended PCRA

petition without a hearing was an abuse of discretion because: (1) trial counsel failed to object,

seek a cautionary instruction, file a motion in limine, and/or seek a mistrial due to repeated

references to Appellant's prior bad acts, parolee status, and prison status during trial; (2) trial

counsel failed to object, request a mistrial, and/or seek a curative instruction due to alleged

prosecutorial misconduct during closing argument by the Commonwealth in the form of personal

opinion; and (3) trial counsel's failure to object, seek a cautionary/curative instruction, file a

motion in limine, and/or seek a mistrial due to repeated references to Appellant's prior bad acts

and the prosecutorial misconduct in the form of personal opinion during closing argument had

the cumulative effect of prejudice to Appellant. See Statement. This opinion is written pursuant

to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.


                                                   4
                                             DISCUSSION

        To obtain relief under the PCRA,a petitioner must plead and prove by a preponderance

of the evidence that: (1) he has been convicted of a crime under the laws of this Commonwealth

and is currently serving a sentence of imprisonment,probation or parole for that crime; (2) the

conviction resulted from one or more of the statutorily enumerated errors; (3) the allegation of

error has not been previously litigated or waived; and (4) the failure to litigate the issue prior to

or during trial or on direct appeal could not have been the result of any rational,strategic or

tactical decision by counsel. 42 Pa.C.S.A. § 9543.

       Ineffective assistance of counsel is a statutorily enumerated error under the PCRA. 42

Pa.C.S.A. § 9543 (a)(2)(ii). To prevail on a claim of ineffective assistance of counsel,a

petitioner must show that "(1) the underlying claim is of arguable merit; (2) the particular course

of conduct pursued by counsel did not have some reasonable basis designed to effectuate his

interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the

outcome of the proceedings would have been different." Commonwealth v. Lambert, 797 A.2d

232,243 (Pa. 2001) (emphasis added); see also Stricklandv. Washington, 466 U.S. 668 (1984).

Defense counsel is presumed to be effective,and the burden of proving constitutional

ineffectiveness of counsel rests on a defendant. Commonwealth v. Burno, 94 A.3d 956, 972 (Pa.

2014). The failure by a petitioner to address any of the three prongs will defeat an ineffective

assistance of counsel claim. Commonwealth v. Walker, 36 A.3d 1,7 (Pa. 2011).

       A court is not required to analyze the elements of an ineffective assistance of counsel

claim in any particular order,but may proceed first to any element of the test where a claim may

fail. Commonwealth v. Hannibal, 156 A.3d 197,207 (Pa. 2016). If the court begins by


                                                  5
determining the underlying claim is meritless, trial counsel may not be found ineffective and

there is no need to evaluate the other required elements of ineffective assistance of counsel. Id.

       When determining whether the underlying claim is of arguable merit,the threshold

inquiry is whether the issue/argument/tactic which forms the basis for the assertion of

ineffectiveness is of arguable merit. Commonwealth v. Smith,_ A.3d _ (Pa. Super. 2017).

"Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Id

(quoting Commonwealth v. Poplawski, 852 A.2d 323,327 (Pa. Super. 2004).

       When determining whether the particular course of conduct chosen by counsel had a

reasonable basis designed to effectuate a defendant's interest,counsel is given broad discretion to

determine trial tactics and strategy. Commonwealth v. Fowler, 703 A.2d 1027, 1029 (Pa. 1997).

"An evaluation of counsel's performance is highly deferential, and the reasonableness of

counsel's decisions cannot be based on the distorting effects of hindsight." Commonwealth v.

Kelley, 136 A.3d 1007,1012 (Pa. Super. 2016) (quoting Commonwealth v. Saranchak, 866 A.2d

292,304 (Pa. 2005). A PCRA petitioner must prove,at a minimum,that "an alternative not

chosen offered a potential for success substantially greater than the course actually pursued."

Commonwealth v. Johnson, 139 A.3d 1257,1276 (Pa. 2016). Boilerplate allegations and bald

assertions are not sufficient. Commonwealth v. Paddy, 15 A.3d 431,443 (Pa. 2011). The

applicable test is not whether alternative strategies were more reasonable employing a hindsight

evaluation of the record,but whether counsel's decision had any reasonable basis to advance the

petitioner's interests. Commonwealth v. Mason, 130 A.3d 601,618 (Pa. 2015).

        When determining whether there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel's alleged ineffectiveness,a petitioner


                                                 6
must establish resulting prejudice or the claim will fail. Commonwealth v. Miller, 987 A.2d 638,

648-49 (Pa. 2009). A reasonable probability that the result would have been different is a

probability that is sufficient to undermine confidence in the outcome of the proceedings. Burno,

94 A.3d at 972. A petitioner must show that ineffective assistance of counsel so undermined the

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

place. Commonwealth v. Whitney, 708 A.2d 471,475 (Pa. 1998). Unsupported speculation will

not suffice. Commonwealth v. Reid, 99 A.3d 427,468 (Pa. 2014).

        Finally,while Appellant alleges the PCRA court abused its discretion by dismissing the

amended PCRA petition without a hearing,a PCRA court is only required to hold a hearing

where the petition or the Commonwealth's answer raises an issue of material fact.

Commonwealth v. Eichinger, 108 A.3d 821,849 (Pa. 2014). In Commonwealth v. Brown,_

A.3d _ (Pa. Super. 2017),where the PCRA court denied an appellant's amended PCRA

petition without an evidentiary hearing on a claim of ineffective assistance of counsel after

finding the issues presented therein lacked arguable merit,the Superior Court held that no further

purpose would have been served by an evidentiary hearing because appellant presented no issues

of material fact. Id. In Hannibal, supra, the Supreme Court held that "[t]o obtain reversal of a

PCRA court's decision to dismiss a petition without a hearing,an appellant must show that he

raised a genuine issue of fact which,if resolved in his favor,would have entitled him to relief, or

that the court otherwise abused its discretion in denying a hearing." 156 A.3d at 207 (quoting

Commonwealth v. D'Amato, 856 A.2d 806,820 (Pa. 2004); see also Pa.R.Crim.P. 907(1).4


         4 In responding to Appellant's amended PCRA petition, the Commonwealth initially agreed an
evidentiary hearing should be held on Appellant's claim that trial counsel was ineffective for failing to
object, seek a curative instruction, file a motion in limine, and/or seek a mistrial in relation to evidence of

                                                      7
I.      Appellant is not entitled to relief based on trial counsel's failure to object, seek a
        cautionary instruction, file a motion in limine, and/or seek a mistrial due to repeated
        references to Appellant's prior bad acts, parolee status, and prison status during trial.

        Evidence of prior bad acts is not admissible to prove character or to show conduct in

conformity with that character. Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012).

However,evidence of other crimes may be relevant and admissible where such evidence was part

of the chain or sequence of events which became part of the history of the case,and formed part

of the natural development of the facts. Commonwealth v. Green, 76 A.3d 575,583-84 (Pa.

Super. 2013). This evidence is admissible to complete the story of the crime on trial,by proving

its immediate context of happenings near in time and place. Commonwealth v. Perkins, 546

A.2d 42,46 (Pa. 1988).

       There is no need to sanitize the evidence so as to deprive the Commonwealth of their

ability to prove a defendant's guilt beyond a reasonable doubt. Commonwealth v. McCutchen,

454 A.2d 547,549 (Pa. 1982). Evidence of other crimes is not precluded merely because it

prejudices the defense. Commonwealth v. Brown, 414 A.2d 70,75 (Pa. 1980). All evidence of

guilt is prejudicial to the defense, and the rules of evidence only prohibit unfair prejudice.

Commonwealth v. Hairston, 84 A.3d 657,670 (Pa. 2014). In Commonwealth v. Robinson, 480

A.2d 1229 (Pa. Super. 1984),there was no abuse of discretion in admitting prior bad acts

evidence under the natural development of facts exception where reference to prior criminal

conduct was necessary to complete the picture,was not offered to prove a general criminal

disposition,and the Commonwealth did not attempt to establish details. Id. at 1232-33.


Appellant's prior bad acts. See Commonwealth's Answer. However, the Commonwealth then asserted
that a hearing would show the issue was lacking in merit. Id. As such, the Commonwealth did not raise
an issue of material fact or acknowledge that Appellant had raised an issue of material fact.

                                                  8
        In the instant case, Appellant complains his state parole agent testified that Appellant

absconded, missed appointments, and could not be found at his approved address. Appellant also

objects to.reference to his drug use by his parole officer, the trip to York County Prison after his

arrest, incarceration in Lancaster County Prison, items found in the house during the arrest and

search which appeared to be connected to criminal activity, and the fact that the firearm he was

charged with possessing was stolen. However, all of the above were part of the chain or

sequence of events that formed the history of this case and were part of its natural development.5

        The search for Appellant began because he was on parole, he missed appointments, he

was no longer living at his approved residence, his whereabouts were unknown, and he was using

drugs. (N.T. at 49-55, 61-63, 68-70). Consequently, an arrest warrant was issued for violating

parole, not for new criminal charges. Id at 52-53. Appellant's conduct in this regard was part of

the chain of events that formed the history of this case and explained why officers were at the

residence to arrest Appellant when the firearm was found. Without this information, the jury

would be left to speculate as to why police were at the residence and question whether their

conduct was lawful. The testimony that Appellant was not living at his approved residence was

also relevant to prove his constructive possession of the firearm, by showing circumstantially that

he was more than just a visitor to the house where the firearm was found. 6

        In Commonwealth v. Miller, 450 A.2d 40 (Pa. Super. 1982), the Superior Court held that

evidence of a defendant's arrest by a parole officer for parole violations was admissible to


        5
          An ineffectiveness claim rooted in trial counsel's failure to file a motion in limine is patently
frivolous when the evidence is probative. Commonwealth v. Copenhefer, 719 A.2d 242,254 (Pa. 1998).
        6
           Appellant testified that he was living at his approved address and was a visitor to 234 E. Fulton
Street, #1, when the gun was found. (N.T. at 293-97).

                                                     9
demonstrate the circumstances surrounding the arrest,and to place the charge of resisting arrest

in its proper context. Id at 43-44. Moreover,testimony from a parole officer that he knew the

defendant did not prejudice the defendant even though the testimony may have implied the

defendant had a prior criminal record. Commonwealth v. Carpenter, 515 A.2d 531,534 (Pa.

1986). As such,this evidence was relevant and admissible in the present case.

       During Appellant's arrest police found marijuana and a marijuana pipe in plain view,

which was used to obtain a search warrant for the residence. (N.T. at 99,113-16). While

executing the search warrant,the firearm in question was found. Id at 116,162-63. Finding

those items was admissible to establish the sequence of events,natural development of the case,

complete the story of the crime on trial,and provide context for the reason police obtained a

search warrant which led to discovery of the firearm. In Commonwealth v. Johnson, 849 A.2d

1236 (Pa. Super. 2004),a gun found during a proper inventory search was admissible where the

defendant was arrested for marijuana found in plain view. Id at 1238-39. Likewise,drugs and

drug paraphernalia found in plain view during execution of the arrest warrant are admissible to

explain why police obtained the search warrant which led to discovery of the firearm.

       Assuming,arguendo, Appellant's drug use or possession of items connected to drug use

did not form the history of this case,counsel's failure to object did not prejudice Appellant

because the references were infrequent and innocuous in the context of the overall trial. See

Commonwealth v. King, 57 A.3d 607,624-25 (Pa. 2012). In explaining why police obtained a

search warrant,witnesses testified to items connected to criminal activity found in the house.

(N.T. at 99,113,137,155,266). In response to trial counsel's question intending to show

Appellant was wanted for technical violations rather than new charges,the parole agent


                                                10
explained she also had problems with his repeated drug use. Id at 61-63,69-70. Appellant was

never questioned about his drug use or the drugs found at the residence. Id at 272-86,293-300.

        Identifying the firearm as stolen was relevant and admissible in the present case to dispel

any notion that the firearm lawfully belonged to the owner of the residence or any other

occupant.7 See generally Commonwealth v. Corradino, 588 A.2d 936,937 (Pa. Super. 1991)

(whether a gun was reported stolen was relevant involving the charge of violating the Uniform

Firearms Act because if it had not been stolen it was more likely that appellant had violated the

statute). Assuming,arguendo, reference to the firearm as being stolen was not part of the chain

or sequence of events that formed the history of this case and was not part of its natural

development,just because Appellant was in possession of the firearm does not automatically lead

to the conclusion that he is the one who stole the firearm,and the Commonwealth never made

such an inference. Counsel is not ineffective for failing to object to mere passing references to

criminal activity where evidence of guilt is overwhelming such that no prejudice results from the

references. Commonwealth v. Blystone, 725 A.2d 1197,1204-05 (Pa. 1999).

        Although there was testimony that police obtained a DNA sample from Appellant while

he was in Lancaster County Prison,in order to determine whether his DNA was on the firearm in

question,8 there is no rule prohibiting reference to a defendant's current incarceration while

awaiting trial for the crimes charged. Commonwealth v. Johnson, 838 A.2d 663,680 (Pa. 2003).



        7
          Detective Eric McCrady, LCBP, testified that the firearm was stolen on August 8, 2012. (N.T.
at 167). In his testimony, Appellant identified a large number of individuals who either lived at or visited
the residence at 234 E. Fulton Street, #1, Lancaster, Pennsylvania, in an attempt to suggest the firearm in
question belonged to someone other than himself. Id. at 276-84.
        8
            (N.T. at 121-23, 270-71).

                                                    11
.;y




      In Commonwealth v. Horne, 89 A.3d 277 (Pa. Super. 2014), the Superior Court held the trial

      court did not abuse its discretion in admitting testimony that the defendant was incarcerated

      because the testimony was not unduly prejudicial and the jury could reasonably infer the

      defendant was incarcerated on the instant charges rather than some previous offense. Id. at 284;

      see also Copenhefer, 719 A.2d at 253 (Supreme Court rejected the appellant's argument that trial

      counsel was ineffective for failing to object to a prosecutor's comments that allegedly allowed

      the jury to infer he was incarcerated on prior unrelated criminal misconduct rather than on the

      pending charges).

              Regarding the limited reference to Appellant's incarceration in York County Prison for

      the probation violation after his arrest on this charge,9 the Supreme Court has held that no

      reference may generally be made to a defendant's prior arrests or incarceration. Johnson, 838

      A.2d at 680. However, evidence of incarceration for prior offenses was admissible where a

      defendant who escaped from prison was subsequently charged with additional crimes, because

      this was part of the history of the event on trial and was part of its natural development.

      Commonwealth v. Detrie, 397 A.2d 2, 3-4 (Pa. Super. 1979). Presently, Appellant's prior

      criminal convictions for burglary and felony drug offenses were properly before the jury to

      establish a violation of 18 Pa.C.S.A. § 6105, and the court gave cautionary instructions on the

      limited use of those prior convictions. (N.T. at 268-69, 345-47). Thus, Appellant was not

      prejudiced if the jury believed he was incarcerated for violating parole on those prior offenses.

             In response to PCRA counsel's assertion that trial counsel should have requested a

      general curative instruction, counsel's failure to request a cautionary instruction regarding

             9 (N.T. at 59-60, 89).

                                                       12
evidence of other crimes or prior bad acts does not constitute per se ineffectiveness, but rather a

defendant must still satisfy each of the three prongs of the test for ineffective assistance of

counsel. Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). In Commonwealth v. Solano,

129 A.3d 1156 (Pa. 2015), defense counsel did not provide ineffective assistance by failing to

ask for a curative instruction regarding a comment about the defendant's prior charges where the

reference was fleeting and counsel could have wished to downplay it rather than bringing it to the

jury's attention. Id. at 1178. In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), there

was no merit to a claim of ineffective assistance of counsel where the bad acts evidence appellant

complained of were not graphic, inflammatory, or extensive. Id. at 306. In the present case the

references were fleeting and they were not graphic, inflammatory, or extensive. Therefore, trial

counsel was not ineffective for declining to ask for a curative instruction.

       As to PCRA counsel's argument that trial counsel should have requested a mistrial, a

motion for mistrial is appropriate "where the alleged prejudicial event may reasonably be said to

deprive the defendant of a fair and impartial trial." Commonwealth v. Jones, 668 A.2d 491, 503
                                                          \
(Pa. 1995). A trial is impartial or unfair where an event forms in the jurors' 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. Chmiel, 889 A.2d 501, 542 (Pa. 2005) (internal

quotation and citation omitted). In this case, the alleged prejudicial testimony did not deprive

Appellant of a fair and impartial trial, nor form in the jurors' minds a fixed bias or hostility

toward Appellant that impeded their ability to weigh the evidence objectively, as evidenced by

the fact that the jury did not return with a quick verdict of guilty, but rather requested further

clarification in the law through verbal and then written instructions. (N.T. at 353-58).


                                                  13
       In the case sub judice, the testimony Appellant believes to be objectionable was probative

as part ofthe history ofthe case. Moreover,it was not offered to prove Appellant's general

criminal disposition,the Commonwealth did not attempt to establish details,and it was fleeting.

Therefore,Appellant has failed to show that his underlying claim is ofarguable merit.

       Even ifAppellant has established his underlying claim is ofarguable merit,he has failed

to show there is a reasonable probability the outcome ofthe proceedings would have been

different but for counsel's ineffectiveness. Trooper Richard Drum ofthe Pennsylvania State

Police testified that he entered the residence of234East Fulton Street,Lancaster, Pennsylvania,

on April 2,2015,and found Appellant alone in a bedroom on the first floor. (N.T. at 95-96).

Appellant was laying in bed sleeping with his head on a pillow. Id. at 97-99. State parole agent

Larry Smith testified that when he arrived at the residence he went into a bedroom where he

observed Appellant in the custody ofTrooper Drum. Id at 86-88. No one other than Appellant

and police officers were in the bedroom at that time. Id. at 59,90,299.

       John McNabb testified that he was the owner ofthe residence at 234East Fulton Street,

Lancaster,Pennsylvania,and Appellant lived on the first floor. (N.T. at 73-75). Officer Andrew

Mease ofthe Lancaster City Bureau ofPolice ("LCBP") testified he was aware that Appellant

had been living at 234East Fulton Street,Lancaster,Pennsylvania,during March and early April

of2015. Id at 112. Police found a Pennsylvania identification card belonging to Appellant in

the residence,although they did not recall where it was found. (N.T. at 118-19, 131;

CommonwealthExhibit#4). Police also found a pizza box in the kitchen with a delivery label

dated March 31,2015,the address of234E Fulton St. Apt#1,and Appellant's name on the

label. (N.T. at 119-20,131; CommonwealthExhibit#5).


                                               14
        On April 2, 2015, Officer Adam Flurry (LCBP) responded to 234 East Fulton Street,

Lancaster, Pennsylvania, and secured the residence until police could obtain a search warrant.

(N.T. at 137). According to Officer Flurry, no one entered or exited the specific area where the

search warrant was later executed or the gun was found. Id. at 138-39. Shortly thereafter,

Officer Mease secured a search warrant for the residence. Id at 113-15.

       After the search warrant was obtained, Detective Eric McCrady (LCBP) participated in a

search of the residence. (N.T. at 161). While searching the bedroom where Appellant was

previously located, McCrady found a metallic.purple,Sig Sauer .380 caliber pistol on the bed

where Drum indicated Appellant had been sleeping, which was tucked under the blue pillow

where Drum testified Appellant had his head. Id. at 162. Five rounds were in the magazine and

one round was seated in the chamber ready to be fired. Id. at 163-64.

       Officer James Boas testified that Appellant had prior convictions for delivery of cocaine,

delivery of marijuana, and burglary. (N.T. at 266-67). Counsel also stipulated to those

convictions, and the court instructed the jury that they were to consider these prior convictions

only as proof of an element of the specific crime of person not to possess or control a firearm. Id

at 268-69. These convictions rendered Appellant ineligible to possess a firearm. Id. at 270.

       After discounting all testimony Appellant finds to be objectionable, this properly

admitted evidence did prove beyond a reasonable doubt that Appellant was in constructive

possession of the firearm. Appellant was alone in a bedroom where the firearm was found,

police found the firearm in the bed where Appellant was sleeping, and the firearm was located

underneath the pillow where Appellant was resting his head. Furthermore, Appellant was not

allowed to possess that firearm due to his previous convictions for burglary and felony drug


                                                15
    distribution. Therefore, Appellant has failed to show that but for counsel's ineffectiveness there

    is a reasonable probability the outcome of the proceedings would have been different.

    II.     Appellant is not entitled to relief based on trial counsel's failure to object, request a
            mistrial, and/or seek a curative instruction due to alleged prosecutorial misconduct
            during closing argument by the Commonwealth in the form of personal opinion.

            Appellant claims the prosecutor engaged in prosecutorial misconduct by expressing her

    personal belief as to witness credibility. See Statement. To succeed on this claim, Appellant

    must demonstrate the prosecutor's actions violated a statutorily or constitutionally protected right

    such as the privilege against compulsory self-incrimination, fair trial, or due process. Busanet,

    54 A.3d at 64. To constitute a due process violation, "the prosecutorial misconduct must be of

    sufficient significance to result in the denial of the defendant's right to a fair trial." Id.

            The prosecutor in the present case told the jury in summation that it was up to them to

    decide the credibility of witnesses. (N.T. at 325-26). In determining Appellant's truthfulness,

    she told the jury they may consider his prior burglary conviction as a crime of dishonesty. Id. at

    325. The prosecutor then stated, "I mean, he has every purpose to be -- to lie here today. Every

    purpose. Every witness I put on there, no reason to lie whatsoever about any of this." Id. at 326.

    The court then provided the following instruction to the jury pursuant to Pa. SSJI (Crim) 3.09:

            The defendant took the witness stand in this case as a witness. In considering the
            defendant's testimony, you are to follow the general instructions I already gave you
            for judging the credibility of any witness. You should not disbelieve the defendant's
            testimony merely because he is the defendant. In weighing his testimony, however,
            you may consider the fact that he has a vital interest in the outcome of this trial. You
            may take the defendant's interest into account just as you would the interest of any
            other witness along with all other facts and circumstances bearing on credibility in
                                                                               ···
            deciding what weight his testimony deserves.

    (N.T. at 341-42).



                                                       16




I
        The prosecutor did not offer her personal opinion on the credibility of Appellant or any

other witness. Rather, the prosecutor's comments were made in the context of summarizing the

law on credibility, how crimen falsi crimes may be used in assessing credibility, and how the jury

may consider Appellant's vital interest in the outcome of the trial when determining whether he

was being truthful. As such, this argument did not violate a constitutionally or statutorily

protected right and counsel will not be deemed ineffective for failing to raise a meritless claim. 10

        Assuming, arguendo, the prosecutor's comments were prejudicial, a defendant must

show the prejudice was not cured by the court's instructions, counsel did not have a reason for

not objecting to the remarks, and counsel's failure to object denied the defendant a fair trial.

Commonwealth v. Thompson, 660 A.2d 68, 75 (Pa. Super. 1995). The prejudicial effect of

remarks can be cured by a trial court's instruction to the jury that counsel's closing arguments are

not evidence. Id. at 76. Presently, the trial court instructed the jury on two separate occasions

that counsel's closing arguments were not to be considered as evidence. (N.T. at 301, 344-45).

Therefore, any prejudicial effect of the remarks was cured by the trial court's instruction.

III.    Appellant is not entitled to relief based on the cumulative effect of alleged prejudice
        from trial counsel's failure to object, seek a cautionary instruction, file a motion in
        limine, and/or seek a mistrial due to references to Appellant's prior bad acts or
        prosecutorial misconduct in the form of personal opinion during closing argument.

        Appellant argues that trial counsel's failure to object, seek a cautionary instruction, file a

motion in limine, and/or seek a mistrial due to repeated references to Appellant's prior bad acts



        10
            In Commonwealth v. Graham, 560 A.2d 129 (Pa. 1989), counsel was not ineffective for
failing to object when the prosecutor expressed his personal opinion about the credibility of the
defendant during closing argument. Id. at 132-33. Moreover, trial counsel was not ineffective for failing
to object to the prosecutor's closing argument because the prosecutor may comment on the credibility of
witnesses. Commonwealth v. Lawrence, _ A.3d _ , (Pa. Super. 2017).

                                                   17
and prosecutorial misconduct in the form of personal opinion during closing argument had the

cumulative effect of prejudice to Appellant. See Statement.

        If counsel is found to be ineffective in more than one instance, the question of whether

prejudice resulted may be tallied cumulatively. Commonwealth v. Johnson, 139 A.3d 1257,

1287-88 (Pa. 2016). However, no number of failed claims may collectively warrant relief if they

fail to do it individually. Id. at 1287. Furthermore, even where there is prejudice in one out of

seven claims of ineffectiveness, there is no cumulation of prejudice to consider and the appellant

will not be entitled to relief. Lawrence, supra.

       In the instant case, because trial counsel was not ineffective in any individual instance, all

of Appellant's failed claims collectively cannot warrant relief. Assuming, arguendo, trial

counsel did provide ineffective assistance of counsel regarding prior bad acts, Appellant is not

entitled to relief where there was ineffective assistance in just one of his claims for which there

was no resulting prejudice. Therefore, Appellant's claim in this regard must be denied.

                                           CONCLUSION

       Based on a thorough review of the record, the PCRA court properly concluded that

Appellant's amended PCRA motion was patently frivolous, the allegations were not supported by

the record, and there were no genuine issues concerning any material fact. Moreover, a hearing

was not necessary to make such a determination. Consequently, this appeal should be denied and

the PCRA court should be affirmed.


                                                        BY THE COURT

     September 18, 2017
      DATE
                                                         o.,,__...
                                                                A·     r�
                                                        DONALD R. TOTARO, JUDGE


                                                   18
               ' . �.




                        ATTEST:


                        Copies:   Amara M. Riley, Esquire, Assistant District Attorney
                                  Randall L. Miller, Esquire, Counsel for Appellant
··1.. .... ·




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