J-S40021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAREEM KELLAM                              :
                                               :
                       Appellant               :   No. 3470 EDA 2017

                    Appeal from the PCRA Order May 7, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0806992-2006

BEFORE:      LAZARUS, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 13, 2018

       Appellant, Kareem Kellam, appeals from the May 7, 2014 Order entered

in the Philadelphia County Court of Common Pleas dismissing his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm on the basis of the PCRA court’s Opinion.

       The relevant facts and procedural history, as gleaned from the certified

record and the PCRA court’s December 1, 2017 Opinion, are as follows. The

Commonwealth charged Appellant with Second-Degree Murder, Criminal

Conspiracy to Commit Murder, Robbery, Firearms Not to be Carried Without a

License, Carrying Firearms in Public In Philadelphia, and Possession of a

Firearm Prohibited1 arising from Appellant’s role in the March 8, 2002 robbery

and murder of Jimmy Williams.

____________________________________________


1 18 Pa.C.S. §§ 2502(b); 903(a)(1); 3701(a)(1); 6106(a)(1); 6108; and
6105(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40021-18



        On October 25, 2007, Appellant’s jury trial commenced. Relevant to the

instant appeal, at Appellant’s trial, the prosecutor represented to the jury in

his opening statement that Jamal Lewis would testify that, among other

things, Appellant had confessed to him that he participated in the robbery and

murder of the victim. However, Lewis ultimately refused to testify. In addition

to the court’s general instruction to the jury at the beginning of trial that

counsels’ opening remarks are not evidence for them to consider when

rendering a verdict, the court also specifically addressed Lewis’s refusal to

testify. See N.T., 10/25/17, at 13, 18-19; 11/1/07 at 94-95.

        On November 6, 2007, the jury convicted Appellant of Second-Degree

Murder, Robbery, and Criminal Conspiracy. On January 9, 2008, the trial court

sentenced Appellant to a mandatory sentence of life imprisonment for his

Murder conviction, and consecutive sentences of 10 to 20 years’ imprisonment

for his Robbery and Conspiracy convictions.            Appellant did not file a Post-

Sentence Motion or a timely direct appeal.

        Following reinstatement of his direct appeal rights nunc pro tunc, on

April 7, 2011, this Court affirmed Appellant’s Judgment of Sentence in part

and reversed in part,2 and on August 31, 2011, the Pennsylvania Supreme

Court    denied    Appellant’s     Petition    for   Allowance   of   Appeal.   See

Commonwealth v. Kellam, No. 509 EDA 2009 (Pa. Super. filed April 7,



____________________________________________


2This Court affirmed Appellant’s Judgment of Sentence as to his Murder and
Conspiracy convictions, but vacated Appellant’s Robbery conviction.

                                           -2-
J-S40021-18



2011) (unpublished memorandum), appeal denied, No. 248 EAL 2011 (Pa.

filed August 31, 2011).

      On April 6, 2012, Appellant filed a pro se PCRA Petition challenging the

effectiveness of his trial counsel. The PCRA court appointed counsel, Dennis

Turner, Esquire, who filed an Amended Petition on September 23, 2013. In

the Amended Petition, Appellant alleged he was denied the effective

assistance of counsel because his trial counsel failed to ask for a curative

instruction or a mistrial when it became apparent that a Commonwealth

witness, Jamal Lewis, was not going to testify to substantiate the prosecutor’s

opening statement that Appellant had confessed his involvement in the

underlying crime to Lewis. Amended PCRA Petition, 9/23/13, at 8.

      On March 24, 2014, the PCRA court issued a Notice of Intent to Dismiss

Appellant’s Amended PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907. Appellant did not file a Response to the PCRA court’s Rule 907 Notice.

On May 7, 2014, the PCRA court dismissed Appellant’s Amended Petition.

Appellant did not file a timely appeal from the May 7, 2014 Order.

      On June 9, 2014, Attorney Turner filed a Petition for Nunc Pro Tunc

Reinstatement of Appellate Rights explaining that he had inadvertently failed

to file a timely Notice of Appeal from the May 7, 2014 Order dismissing

Appellant’s Amended PCRA Petition.

      On October 1, 2014, the PCRA court removed Attorney Turner as

counsel and appointed Earl Kaufman, Esquire, to represent Appellant.

Following three years of inaction, on October 17, 2017, the PCRA court

                                     -3-
J-S40021-18



removed Attorney Kaufman and appointed Stephen O’Hanlon, Esquire, to

represent Appellant, and reinstated Appellant’s PCRA appeal rights nunc pro

tunc.    This timely appeal followed.     Both Appellant and the PCRA court

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

        Appellant raises the following issue on appeal:

        The PCRA court erred in dismissing Appellant’s PCRA Petition
        because trial counsel was ineffective for not objecting and
        requesting a mistrial when the prosecutor committed
        prosecutorial misconduct by vouching as to the prospective
        testimony of Jamal Lewis when Lewis did not eventually testify
        and when Appellant was prejudiced in the context of allowing an
        alleged admission of murder by Appellant to be revealed to the
        jury and Appellant was denied his Sixth Amendment right to
        confront incriminating evidence against him.

Appellant’s Brief at 4.

        This Court’s “standard of review for an order denying post-conviction

relief is limited to whether the trial court's determination is supported by

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

Allen, 732 A.2d 582, 586 (Pa. 1999). Further, “[t]he PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).

        Appellant alleges that his trial counsel provided ineffective assistance

Appellant’s Brief at 8-12.

        In order to establish eligibility for PCRA relief, a petitioner must prove

by a preponderance of the evidence that the conviction resulted from

“[i]neffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

                                       -4-
J-S40021-18



adjudication of guilt or innocence could have taken place.”       42 Pa.C.S. §

9543(a)(2)(ii).

      In analyzing claims of ineffective assistance of counsel, we presume that

trial counsel was effective unless the PCRA petitioner proves otherwise.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).

      In order to succeed on a claim of ineffective assistance of counsel,

Appellant must demonstrate (1) that the underlying claim is of arguable merit;

(2) that counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).       Appellant bears the burden of

proving each of these elements, and his “failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

      A prosecutor “is not required to conclusively prove all statements”

contained in her opening argument. Commonwealth v. Brown, 711 A.2d

444, 456 (Pa. 1998). “If the prosecutor has a good faith and reasonable basis

to believe that a certain fact will be established, he or she may properly refer

to it during the opening argument.” Id.

      The Honorable Jeffrey P. Minehart, who presided over all of the

proceedings in this case, has authored a comprehensive, thorough, and well-

reasoned Opinion, citing the record and relevant case law in addressing

Appellant’s challenge to his counsel’s representation. After a careful review

of the parties’ arguments and the record, we adopt the PCRA court’s Opinion

                                     -5-
J-S40021-18



as our own and conclude that Appellant’s issue warrants no relief. See PCRA

Ct. Op., 12/1/17, at 3-9 (concluding that Appellant’s ineffectiveness claim fails

because: (1) Appellant failed to establish that his underlying claim had

arguable merit because the prosecutor referenced Appellant’s inculpatory

statement to Lewis in good faith; and (2) Appellant failed to prove the

prosecutor’s statement prejudiced him because, inter alia, the evidence of

Appellant’s guilt was overwhelming).     Accordingly, we affirm the denial of

PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




                                      -6-
0044_Opinion
               ..
                                                                                                                    Circulated 10/19/2018 11:43 AM



                                                                                                                                            FILED
                        IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA         DEC O 12017
                                          CRIMINAL TRIAL DIVISION           Office of Judicial Records
                                                                                                                                  Appeals/Post Trial


                    COMMONWEAL TH OF PENNSYLVANIA                                   COURT OF COMMON PLEAS
                                                                                    PHILADELPHIA COUNTY

                                              vs.                                    NO.: CP-5 I-CR-0806992-2006
                                                                                               ------
                    KAREEM KELLAM,                                                        CP-51-CR-0806992-2�-c - - • •         .   - -·,
                                                                                                            Opini;:1m. II. Ke{lam, Kareem
                                                Defendant


                                                                                              III/IIII/ IIIII/IIIIIII Ill
                                                                                               . _    8036380091
                                                                   OPINION                           ----

                             Defendant, Kareem Kellam, was convicted of committing murder of the second

                    degree, robbery and criminal conspiracy on November 6, 2007, following a jury trial

                    before this Court. These charges arose out of an incident during which defendant

                    conspired with three other individuals to rob Mr. Jimmy Williams.                            When Williams

                    resisted, he was shot and killed.1 On January 9, 2008, this Court imposed the mandatory

                    sentence of life imprisonment on the murder conviction and consecutive sentences of ten

                    to twenty years' incarceration on the conspiracy and robbery charges.2

                            Following the imposition of sentence, defendant did not file a post-sentence .

                    motion or a notice of appeal.           On June 18, 2008, defendant filed a timely petition

                    pursuant to the Post-Conviction relief Act (hereinafter PCRA), 42 Pa.C.S. § 9541 et seq.

                    This Court granted him relief on September 26, 2008, in the form of an order permitting

                    him to file post-sentence motions and if they were denied, a notice of appeal nunc pro

                    tune from the judgment of sentence. Defendant filed said notice after his post-sentence

                    1For a more complete recitation of the facts please the opinion filed by this Court on July 24, 2009.
                    2
                     The sentence imposed on the robbery charge was later vacated on direct appeal because that charged
                    merged for sentencing purposes with the sentence imposed on the murder charge.
motions were denied, and on April 11, 2011, the Superior Court affirmed the judgment of

sentence. (509 EDA 2009). Defendant thereafter filed a petition for allowance of appeal

in the Pennsylvania Supreme Court. The Supreme Court denied it on August 3 I, 201 I.

(248 EAL 2011 ).

        On April 6, 2012, defendant filed a prose PCRA petition.                  On March 5, 2013,

Dennis Turner, Esquire, was appointed to represent him. Mr. Turner filed an amended

petition on September 23, 2013. This Court, after carefully reviewing the record and

defendant's and counsel's various filings sent defendant a Pa.R.Crim.P. 907 notice of

dismissal on March 24, 2014. On May 7, 2013, this Court issued an order denying

defendant post-conviction collateral relief.

        Following the dismissal of his PCRA petition, Mr. Turner failed to timely file a

notice of appeal.      On June 9, 2014, he filed a petition requesting that defendant be

permitted to file a notice of appeal nune pro tune. This Court was unaware of the filing

for some time. On October 1, 2014, after the Court learned of Mr. Turner's Petition, this

Court ordered that Mr. Turner be relieved as counsel and that new counsel be appointed

to represent defendant for the purpose of filing a notice of appeal and then litigating that

appeal. The docket indicates that Earl Kaufman, Esquire, was appointed to represent

defendant. Mr. Kaufman, however, took no action in the matter and there is some doubt

that he was made aware of the appointment. Upon being advised of the inaction in the

matter, this Court on October I 7, 2017, removed Mr. Kaufman as counsel and appointed

Stephen O'Hanlon, Esquire, to represent defendant.                Mr. O'Hanlon thereafter filed a

notice of appeal nunc pro tune and a Pa.R.Crim.P. 907 notice.3


3
  This Court recognizes that there are myriad procedural irregularities in this matter. For example, upon
reviewing the docket in preparation for the hearing held on October 17, 2017, this Court saw several

                                                   2
DISCUSSION

         In his 1925(b) statement defendant argues that trial counsel was ineffective for not

objecting to and requesting a mistrial after Jamal Lewis refused to testify after taking the

witness stand because the prosecutor stated during his opening statement to the jury that

Jamal Lewis would testify to certain events including that defendant confessed to him

that he participated in the robbery and murder of Mr. Williams. Defendant contends that

his right of confrontation was violated because of prosecutorial misconduct, which he

claims violated his right to cross-examine Jamal Lewis about the incriminating remark

the prosecutor attributed to him.               (N.T. 10/25/07, 33-34; 10/31/07, 10-11).                On

November 1, 2008, an effort was made outside the presence of the jury to convince Lewis

to testify, but he again refused to do so. (N.T. 11/1/08, 94-95). Relief was properly

denied on this claim and it is suggested that it be deemed lacking in merit on appeal.

        In reviewing the propriety of the PCRA court's dismissal of a petition without a

hearing, the reviewing court is limited to determining whether the court's findings are

supported by the record and whether the order in question is free of legal error.

Commonwealth v. Holmes, 905 A.2d 707, 509 (Pa. Super. Ct. 2006) citing

Commonwealth v. Halley, 870 A.2d 795, 799 (Pa. 2005). The PCRA court's findings

will not be disturbed unless there is no support for the findings in the certified record.

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

decline to hold a hearing on the petition if the petitioner's claim is patently frivolous and

incorrect docket entries. For example, the entry for January 14, 2016, wrongly states that defendant's right
to file a petition for allowance of Appeal in the Pennsylvania Supreme Court is granted. The entry should
have stated that defendant's right to appeal from the denial of his PCRA petition was reinstated. In any
event, following that date, Mr. Kaufman took no action in the matter. Due to this fact and an apparent
breakdown in court procedure, this Court reinstated defendant's right to appeal from the denial of his
PCRA petition. At the hearing held on October 17, 207, the Commonwealth, recognizing the abandonment
by counsel and the breakdown in court procedure, did not object to the reinstatement of defendant's right to
appeal.

                                                     3
is without a trace of support either in the record or from other evidence. Commonwealth

v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). The reviewing court on appeal must

examine each of the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no genuine issues

of material fact and denying relief without an evidentiary hearing.          Id.   See also

Commonwealth v. Hardcastle, 701 A.2d 541, 542 (Pa. 1997).

       Pennsylvania law presumes counsel is effective and therefore, the burden is·

placed upon the defendant to prove otherwise. Commonwealth v. Brown, 767 A.2d 576,

581 (Pa. Super. 2001), citing Commonwealth v. Carpenter, 725 A.2d 154, 161 (Pa. 1999),

citing Commonwealth v. Marshall, 633 A.2d 1100 (Pa. 1993); see also Commonwealth v.

Baker, 614 A.2d 663, 673 (Pa. 1992). Trial counsel has broad discretion in matters of trial

strategy and    the determination of what tactics to employ during litigation.

Commonwealth v. Choi Chun Lam. 684 A.2d 153, 160 (Pa. Super. 1996). Furthermore,

"[i]t is well established that failed trial tactics of defense counsel are not grounds for a

new trial." Commonwealth v. Hall. 565 A.2d 144, 148 (Pa. 1989). Trial counsel will not

be held ineffective if there was a reasonable strategic basis for his or her trial tactics.

Commonwealth v. Pursell. 724 A.2d 293, 311 (Pa. 1999).

       In order to establish that trial counsel's representation was deficient, defendant

must establish all of the following three elements, as set forth in Commonwealth v.

Pierce, 527, A.2d 973, 975-76 (Pa. 1987): (1) the underlying legal claim has arguable

merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of counsel's ineffectiveness. Commonwealth v.




                                             4
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011 ), citing Commonwealth v. Dennis, 950 A.2d 945,

954 (Pa. 2008).

       The threshold question in reviewing an ineffectiveness claim is whether the issue,

argument, or tactic which trial counsel failed to use at trial and which is the basis of the

ineffectiveness claim is of arguable merit. Commonwealth v. Balodis. 747 A.2d 341, 343

(Pa. 2000). If defendant can prove that the argument or tactic which trial counsel failed

to use at trial is of arguable merit, then the "reasonable basis" test is applied to determine

if the course of action chosen by trial counsel was designed to effectuate his or her

client's interest. Id. With regard to the second element, defendant must prove that "an

alternative [action or inaction] not chosen offered a potential for success substantially

greater than the course actually pursued." Chmiel, supra, citing Commonwealth v.

Williams, 899 A.2d 1060, 1064 (Pa. 2006) (alteration added). To establish prejudice,

defendant must demonstrate that there is a reasonable probability that, but for counsel's

error, the outcome of the proceeding would have been different. Chmiel, supra, at 1127-

28, citing Dennis, supra, at 954.

       Further, "[i]f it is clear that if a defendant has not demonstrated that counsel's act

or omission adversely affected the outcome of the proceedings, the claim may be

dismissed on that basis alone and the court need not first determine whether the first and

second prongs have been met." Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007),

citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). A PCRA proceeding

requires a defendant to establish that counsel's ineffectiveness "so undermined the truth-

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




                                              5
place." Rios, supra, citing Pierce. supra, at 221-22; Commonwealth v. Kimball, 724 A.2d

326, 333 (Pa. I 999).

       This Court determined that defendant was not entitled to relief on this claim

because the prosecutor made the complained of opening comments in good faith with the

expectation that Lewis would· testify.     To the prosecutor's chagrin he refused. The

· prosecutor cannot be said to have acted in bad faith. For these reasons, this Court

concluded that defendant failed to establish that the claim possessed arguable merit.

       The law regarding opening statements provides:

                 c...  The opening statement of the prosecution should be
               limited to a statement of the facts which he intends to
                prove, and the legitimate inferences deduced therefrom.
               Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290
               (1975). However, even if remarks made during an opening
               statement in a criminal proceeding are improper, relief will
               only be granted where the unavoidable effect is to prejudice
               the finders of fact as to render them incapable of objective
               judgment. Commonwealth v. Farguharson, 467 Pa. 50, 354
               A.2d 545 ( 1976).

Commonwealth v. Duffey, 348 A.2d 1178, 1184 (Pa. I 988). In addition, "it is legitimate

during opening statements for a prosecutor ... to verbally describe, in detail, the

evidence he intends to prove," Commonwealth v. Parker, 919 A.2d 943, 951 (Pa. 2007),

as long as the material referenced falls within the scope of what the prosecutor believes,

in good faith, will be available and admissible at trial." Parker, 919 A.2d at 950 n.8.

       Finally, a prosecutor is not required to conclusively prove all statements made

during the opening argument. Commonwealth v. Brown, 711 A.2d 444, 456 (Pa. 1998);

Commonwealth v. Jones, 610 A.2d 931, 93 8 (Pa. 2002). If a prosecutor has a good faith

and reasonable basis to believe that a certain fact will be established, he or she may

properly refer to it during the opening argument. Id. Even if an opening argument is


                                              6
somehow improper, relief will be granted only where the unavoidable effect is to so

prejudice the finders of fact as to render them incapable of objective judgment. Id. When

a comment made by the prosecutor is alleged to have been improper, the comment must

be considered in the context within which it was offered and not in isolation.

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

       In this case, the prosecutor reasonably believed in good faith that Lewis would

testify, having spoken to him prior to trial; and that he would implicate defendant in the

crime. That good faith belief formed the basis for the prosecutor's comments to the jury

in his opening argument. At the time the prosecutor made the complained of comments,

he had every expectation that Lewis would testify in accordance with what he had

previously related about defendant and his co-defendants. He had no forewarning that

Lewis would go "south" and refuse to testify. Because his argument was founded on a

reasonable belief that he would be able to establish that defendant told Lewis that he

participated in the crime, the prosecutor's comments were not improper under the

circumstances. See Commonwealth v. Sam, 635 A.2d 603, 610 (Pa. 1993) (no

misconduct where prosecutor told jury, in opening argument, that appellant's wife would

be a witness; after appellant's wife recanted her original inculpatory statement, prosecutor

declined to call her); Commonwealth v. Sattazahn, 631 A.2d 597, 607 (Pa. Super. 1993)

(motion for mistrial properly denied where prosecutor's opening statement referred to a

witness who heard appellant implicate himself in the robbery-murder; at the time the

statement was made, the prosecutor anticipated calling that witness, but the witness

received death threats and refused to testify at trial). Thus, for these reasons, this Court

determined that there was no merit to defendant's claim and dismissed it.



                                             7
       In any event, even had the claim possessed arguable merit, no relief was due

defendant because he failed to establish prejudice. First, this Court instructed the jury

that the arguments of counsel were not considered as evidence. (N.T. 10/25/2007, 13, 18-

19). Then, after Lewis refused to testify, this Court stated to the jury that after Lewis was

put under oath, he had not actually said anything of substance relating to this case (N.T.

11/01/2007, 94-95). Therefore, any prejudicial effect the prosecutor's opening comments

may have had were effectively ameliorated given that the law presumes that a jury

follows any instructions given it by the Court.). See Commonwealth v. Brown, 987 A.2d

699, 712 (Pa. 2009) (explaining that a "pillar upon which our system of trial by jury is

based is that juries are presumed to follow the instructions of the court") (citation

omitted).

       Second, defendant did not suffer prejudice because the comment did not warrant a

mistrial. A mistrial is an "extreme remedy ... [that]. .. must be granted only when an

incident is of such a nature that its unavoidable effect is to deprive defendant of a fair

trial." Commonwealth v. Vazguez, 617 A.2d 786, 787-88 (Pa. Super. 1992) ( citing

Commonwealth v. Chestnut, 511 Pa 169, 512 A.2d 603 (Pa. 1986), and Commonwealth

v. Brinkley, 480 A.2d 980 (Pa. 1994)). Given that the prosecutor had not acted in bad

faith when he made the complained of comment and the Court gave the jury the

instructions referred to above, defendant would not have been entitled to a mistrial and

this Court would not have granted one had trial counsel moved for a mistrial.

       Finally, defendant was not prejudiced because the evidence of his guilt was

overwhelming. Had the prosecutor not made the complained of comment, the outcome

clearly would not have been different.



                                             8
       Accordingly, for all of the foregoing reasons, it is suggested that defendant's

claim be rejected and that the order denying defendant PCRA relief be affirmed.



CONCLUSION


       Based on the foregoing, the order denying defendant PCRA relief should be

affirmed.



                                            By the Court,




                                           9
