J-S09030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                                 Appellee

                       v.

COSIL LOUIS CHILDS

                                 Appellant                      No. 2609 EDA 2016


               Appeal from the PCRA Order entered July 21, 2016
               In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0005497-2012


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                        FILED MAY 24, 2017

        Appellant, Cosil Louis Childs, appeals from the July 21, 2016 order

entered in the Court of Common Pleas of Delaware County, denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

        From the record we glean the following factual and procedural

background.      Appellant was charged with criminal attempt to acquire or

obtain    possession        of     a   controlled   substance    by   misrepresentation

(Oxycodone), an ungraded felony.1 Testimony at his jury trial revealed that

when Appellant attempted to have a prescription for Oxycodone filled, the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    63 P.S. § 390-8(13); 35 P.S. § 780-113(a)(12).
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pharmacist became suspicious and contacted the ordering physician who

denied writing the order.      Appellant testified that the prescription was

legitimate.

      On April 17, 2013, the jury convicted Appellant.           The trial court

sentenced him to a term of five to ten years in a state correctional

institution. He did not file a direct appeal but filed a timely PCRA petition

seeking reinstatement of his direct appeal rights.       Appellant’s rights were

reinstated and he asked this Court to set aside his judgment of sentence,

claiming the trial court should have granted a mistrial after the prosecutor

referred to Appellant as a “liar” during closing argument. We affirmed his

judgment of sentence and granted his counsel’s application to withdraw,

finding the mistrial issue waived for defense counsel’s failure to lodge an

objection.    Commonwealth v. Childs, 1136 EDA 2014, unpublished

memorandum (Super. Ct. filed February 19, 2015).

      On July 13, 2015, Appellant filed the instant PCRA petition. Appointed

counsel filed an amended petition.       Following a hearing, the PCRA court

denied the petition by order entered July 21, 2016.          This timely appeal

followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      In his appeal, Appellant asks us to consider one issue:

      Was the [PCRA] court in error for dismissing [Appellant’s]
      petition for post conviction relief averring that trial counsel was
      ineffective for failing to object to remarks of the assistant district
      attorney during her closing argument wherein she repeatedly
      called [Appellant] a liar?


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Appellant’s Brief at 4.

       In Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en

banc), this Court reiterated:

       “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). “[Our] scope of review is limited to the
       findings of the PCRA court and the evidence of record, viewed in
       the light most favorable to the prevailing party at the PCRA court
       level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
       131 (2012) (citation omitted). “The PCRA court’s credibility
       determinations, when supported by the record, are binding on
       this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
       244, 259 (2011) (citation omitted). “However, this Court applies
       a de novo standard of review to the PCRA court’s legal
       conclusions.” Id.


Id. at 1214-15. Further,

       “Counsel is presumed effective, and appellant bears the burden
       of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341,
       961 A.2d 786, 796 (2008). The Pierce[2] test requires appellant
       to prove, with respect to counsel’s performance, that: “(1) the
       underlying claim has arguable merit; (2) no reasonable basis
       existed for counsel’s actions or failure to act; and (3) petitioner
       suffered prejudice as a result of counsel’s error such that there is
       a reasonable probability that the result of the proceeding would
       have been different absent such error.” [Commonwealth v.
       Lesko, 15 A.3d 345, 373–74 (Pa. 2011)] (citing Pierce, at
       975). Failure to prove any prong of this test will defeat an
       ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
       258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be
       deemed ineffective for failing to raise a meritless claim.
       Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278
       (2006).
____________________________________________


2
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (footnote, brackets,

and additional citation omitted).

      Appellant   argues   that      the   prosecutor’s   remarks   during   closing

argument constituted prosecutorial misconduct and that his trial counsel was

ineffective for failing to object.     Appellant contends the following remarks

were improper:

      To believe the defendant’s testimony, you must believe that
      everybody else who came in here was lying, everyone else, just
      not the defendant.

      I ask you, again, ladies and gentlemen, please do not reward the
      defendant for getting up on the stand and lying to [you],
      because that’s what he did. He completely lied. He was jittery.
      He kept moving all over the place.

      Well, ladies and gentlemen, I submit to you the defendant is a
      liar. He lied to you and do not reward him for doing such.

Appellant’s Brief at 10 (citing Notes of Testimony, 4/17/13, at 30-31).

      The PCRA court aptly explained:

      Upon a claim of prosecutorial misconduct, the trial court must
      determine whether there was misconduct and, if so, determine
      what, if any prejudice result. Commonwealth v. Culver, 51
      A.3d 866, 871 (Pa. Super. 2012). The appellate court reviews
      that determination for an abuse of discretion. Id. “Our review
      of prosecutorial remarks and an allegation of prosecutorial
      misconduct requires us to evaluate whether a defendant
      received a fair trial, not a perfect trial.” Commonwealth v.
      Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citing
      Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998)).
      The Pennsylvania Supreme Court has summarized the law
      concerning a prosecutor’s closing arguments:

         Generally, a prosecutor’s arguments to the jury are not a
         basis for the granting of a new trial unless the unavoidable

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         effect of such comments would be to prejudice the jury,
         forming in their minds fixed bias and hostility towards the
         accused which would prevent them from properly weighing
         the evidence and rendering a true verdict.

       Commonwealth v. Jones, 546 Pa. 161, 199, 683 A.2d 1181,
       1199 (1996) (emphasis added).              In the present case,
       [Appellant’s] claims concerning the closing arguments of the
       prosecution fall far short of this standard.

PCRA Court Opinion, 9/28/16, at 6-7.

       We find no error in the PCRA court’s conclusion. The crux of the trial

was credibility.   As the court explained, defense counsel challenged the

credibility of the prosecution witnesses in his closing argument while

contending Appellant testified “truthfully.” Id. at 9 (citing N.T. 4/17/13, at

10).

       He argued that the pharmacist, Dr. Lawson, was “trying to
       embellish” his testimony when describing [Appellant] as “fidgety
       and nervous.” (N.T. 4/17/14 p. 13). Further counsel argued
       that Dr. Schwab, a University of Pennsylvania Trauma Surgeon,
       testified falsely. He argued:

         Well I would submit to you it’s because he knew he was
         seeing my client on the side, as [Appellant] testified to,
         and he wanted that—he didn’t want anyone to know that
         he was, in essence, double-dipping, because he has a lot
         to use [sic]. I will use a phrase that I’ve heard when I was
         younger, pigs get fat and hogs get slaughtered. And Dr.
         Schwab was trying not to be a hog.

       (N.T. 4/17/13 pp. 15-16)

         . . . Isn’t it more likely that as my client testified, he saw
         Dr. Schwab. He saw Dr. Schwab after hours. Dr. Schwab
         was getting money from him. And Dr. Schwab had a lot to
         lose. (p. 17).




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         . . . So it’s nice that he was a very good doctor, once. But
         now he’s trying to get cash from my client and then does
         not want to own up to the fact of what he did.

      (N.T. 4/17/13 p. 18).

Id. at 10.

      As our Supreme Court recognized in Commonwealth v. Chmiel, 889

A.2d 501 (Pa. 2005),

      [T]he first prong of the ineffectiveness test is that the underlying
      claim has merit. Pierce, 527 A.2d 973. In the context of
      prosecutorial misconduct during closing arguments, Appellant
      must demonstrate that there is merit to the contention that trial
      counsel should have objected or requested a cautionary
      instruction due to the prosecutor's misconduct. Appellant can
      only do so if he can show that the prosecutor was, in fact,
      engaging in misconduct. Otherwise, there is no merit in the
      contention of trial counsel ineffectiveness.

      We find there is no basis for relief because there was nothing
      wrong with the prosecutor’s remarks and counsel cannot be
      faulted for failing to pursue a meritless claim. In determining
      whether the prosecutor engaged in misconduct, we must keep in
      mind that comments made by a prosecutor must be examined
      within the context of defense counsel’s conduct. It is well settled
      that the prosecutor may fairly respond to points made in the
      defense closing. Moreover, prosecutorial misconduct will not be
      found where comments were based on the evidence or proper
      inferences therefrom or were only oratorical flair.

Id. at 543-44 (citations and internal quotations omitted).

      After reviewing Chmiel and other relevant case law discussing

prosecutorial statements made during closing arguments, the PCRA court

concluded:

      A prosecutor is allowed to respond to defense arguments with
      logical force and vigor.    Here, the prosecutor’s comments
      represented fair response to [Appellant’s] contentions. The

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      defense in the case sub judice was based upon the theory that
      he was telling the truth and all of the other witnesses at trial
      were lying. Therefore, the prosecutor’s comments represented
      a fair response to [Appellant’s] arguments.

PCRA Court Opinion, 9/28/16, at 13 (citation omitted).        Further, the trial

judge, who was also the PCRA court judge, reminded the jurors that

counsels’ arguments were not evidence and inferences drawn by counsel

were not binding on the jury. Id.

      We find the PCRA court’s findings are supported by the record.

Further, we find no error in the court’s legal conclusion that Appellant’s claim

lacks arguable merit. Just as our Supreme Court determined in Chmiel, we

find here that “there is no basis for relief because there was nothing wrong

with the prosecutor’s remarks and counsel cannot be faulted for failing to

pursue a meritless claim.” Chmiel, 889 A.2d at 533.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




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