J.   S66040/18

NON-PRECEDENTIAL DECISION                - SEE SUPERIOR COURT I.O.P.                   65.37
COMMONWEALTH OF PENNSYLVANIA                    :         IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                      v.

TERRENCE BONNER,                                             No. 3972 EDA 2017

                           Appellant


                 Appeal from the PCRA Order, December 11, 2017,
             in   the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-0015853-2008


BEFORE:    GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JANUARY 07, 2019

       Terrence     Bonner   appeals     from       the    December   11,       2017    order

dismissing his petition filed pursuant to the Post Conviction Relief Act

("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

       The relevant facts of this case were summarized by                 a   prior panel of

this court on direct appeal and need not be reiterated in full here.                     See

Commonwealth v. Bonner, 27 A.3d 255, 255-257 (Pa.Super. 2011),
appeal denied, 40 A.3d 1233            (Pa. 2012).        In sum, in the early morning

hours of April 13, 2008, appellant broke into the home of the victims,

N.P. ("Husband") and M.M.        ("Wife"), robbed them at knifepoint, sexually

assaulted wife, and stole their vehicle.             On September 25, 2009, a            jury
found appellant guilty of burglary, robbery, robbery of               a       motor vehicle,
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possessing instruments of crime, and indecent assault' in connection with

this incident. Following his convictions, the trial court sentenced appellant to

an aggregate term of 13 to 26 years' imprisonment on November 20, 2009.

Appellant filed       a   timely notice of appeal on December 9, 2009.2

          On August         17, 2011,     a   panel of this court affirmed           appellant's

judgment of sentence, and our supreme court denied allowance of appeal on

March 13, 2012.            Id. Appellant      did not seek review with the United States

Supreme Court.              On April 9, 2012, appellant filed a           timely pro se     PCRA

petition, and Michael           L.   Doyle, Esq. ("Attorney Doyle"), was appointed to

represent him.            On May 16, 2014,       Attorney Doyle filed an amended            PCRA

petition on appellant's behalf. Attorney Doyle subsequently left the practice

of    law,   and          appellant's    current     counsel,     Zak     T.   Goldstein,   Esq.

("PCRA counsel"), was appointed to represent him.                       On May 5, 2017, PCRA

counsel filed     a       second amended PCRA petition on appellant's behalf.                On

October 24, 2017, the Commonwealth filed                  a     motion to dismiss appellant's

second amended petition. On November 13, 2017, the PCRA court provided

appellant with notice of its intention to dismiss his petition without                         a


hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file                    a   response




'    18   Pa.C.S.A.        §§   3502(a), 3701(a), 3702(a), 907(a), and 3126(a),
respectively.

2 Appellant was represented during his jury trial by Peter L. Maas, Esq. ("trial
counsel"), and on direct appeal by Karl Baker, Esq. and Owen Larrabee, Esq.
(collectively, "appellate counsel").

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to the PCRA court's Rule 907 notice. Thereafter, on December 11, 2017, the

PCRA    court dismissed appellant's petition without an evidentiary hearing.

This timely appeal followed.3

       Appellant raises the following issues for our review:

             I.     Whether the PCRA Court erred in denying
                    [a]ppellant's [PCRA] Petition because trial
                    counsel was ineffective in failing to object to
                    the prosecution's closing argument about crime
                    in Philadelphia because the argument was
                    unfairly prejudicial and calculated only to
                    inflame the passions of the jury[?]

             II.    Whether the PCRA Court erred in denying
                    [a]ppellant's [PCRA] Petition because trial
                    counsel was ineffective in failing to object and
                    request a mistrial or cautionary jury instruction
                    when        the    Commonwealth        presented
                    identification evidence and argued in closing
                    that the complainants had successfully
                    identified [a]ppellant as the person who
                    burglarized     their     home      after     the
                    Commonwealth, in order to defeat a defense
                    motion for a pre-trial lineup, stipulated at the
                    preliminary hearing that the witnesses would
                    never identify [a]ppellant as the person who
                    burglarized their home[?]

             III.   Whether the PCRA Court erred in denying
                    [a]ppellant's [PCRA] Petition where appellate
                    counsel in [a]ppellant's direct appeal was
                    ineffective in failing to challenge [a]ppellant's
                    conviction based on the sufficiency of the
                    evidence where the only evidence connecting
                    [a]ppellant to the crime was the presence of

3 The record reflects that on December 12, 2017, the PCRA court directed
appellant to file a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b). Appellant filed his timely Rule 1925(b)
statement on December 15, 2017, and the PCRA court filed its Rule 1925(a)
opinion on June 6, 2018.

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                     his  fingerprints on an inherently movable
                     object which was taken during the crime
                     approximately half an hour to an hour later[?]

Appellant's brief at vii -viii.

        Proper appellate review of      a PCRA      court's dismissal of       a PCRA   petition

is   limited to the examination of "whether the PCRA court's determination is

supported by the record and free of legal error." Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's

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

the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). "This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support       a    contrary holding."         Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

        When the PCRA court denies        a   petition without an evidentiary hearing,

as is the case here, we "examine each issue raised in the PCRA petition in

light of the record certified before it in order to determine if the PCRA court

erred in its determination that there were no genuine issues of material fact

in   controversy and       in   denying relief without conducting an evidentiary

hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.

2004). This court has long recognized that there                   is no   absolute right to an

evidentiary hearing.            Commonwealth v. Hart, 911 A.2d 939, 941
(Pa.Super. 2006) (citation omitted).          "It   is   within the PCRA court's discretion



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

has no support either in the record or other evidence."                          Commonwealth
v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted).

         Appellant's first two claims concern the effectiveness of his trial

counsel. To prevail on          a   claim of ineffective assistance of counsel under the

PCRA, a     petitioner must establish the following three factors:                      "first[,] the
underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that Appellant was prejudiced."

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

               [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.

Commonwealth v. Spotz, 84 A.3d 294, 311                        (Pa. 2014) (internal quotation

marks       omitted;        some      brackets        in   original),   citing     42     Pa.C.S.A.

§    9543(a)(2)(ii).

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

demonstrating ineffectiveness rests on appellant."                       Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal

denied, 30 A.3d 487            (Pa. 2011).   Additionally, counsel        is   not ineffective for




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failing to raise   a   claim that is devoid of merit.   Commonwealth v. Ligons,
971 A.2d 1125, 1146 (Pa. 2009).

       Appellant contends that trial counsel was ineffective for failing to

object to comments the prosecutor made during her closing argument that

referenced crime in Philadelphia.           (Appellant's brief at 4.)     Specifically,

Assistant District Attorney Allyson Busch ("ADA Busch") made the following

comments during her closing statement which appellant now challenges on

appeal:

             Now, the defense would like you to ask us for more,
             always more. More prints from the house, more
             work by the police, more investigation       .   Ladies
                                                              .   .   .


             and gentlemen as I told you from the beginning, this
             is real crime in Philadelphia. This is not CSI, it's not
             a TV show. I don't get to write in everything I wish I
             could possibly have in a case. That's not what the
             law requires.     These are detectives and police
             officers that have gone up elevators with you just as
             you have every day this week. You've seen what
             crime is like in Philadelphia. You've seen what
             this Criminal Justice Center is. It is a shame
             that our Crime Scene Unit can't go to every
             single home invasion where a knife has been
             held to someone's throat. That we're so plagued
             by other things that they have to stay busy with.
             That our cops have limited resources. But they did a
             heck of a lot in this case. They held the scene. They
             tried to print the house where they thought that they
             could possibly get prints. They lifted prints that just
             were no good.

Notes of testimony, 9/24/09 at 149-150 (emphasis added).

       Appellant argues that ADA Busch's comments were "prejudicial,

inflammatory, and burden -shifting" and that trial counsel's failure to object



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on this basis entitles him to a new trial. (Rule 1925(b) statement, 12/15/17

at   ¶   la; see also appellant's brief at vii, 6-7.)      We disagree.

          "Our standard of review for       a    claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion." Commonwealth v.

Harris, 884 A.2d 920, 927 (Pa.Super. 2005) (citations omitted), appeal
denied, 928 A.2d 1289             (Pa.   2007).       Not every unwise remark on        a


prosecutor's part, however, constitutes reversible error. Id. "Prosecutorial

misconduct occurs when the effect of the prosecutor's comments would be

to prejudice the trier of fact, forming in its mind fixed bias and hostility

toward the defendant so that it could not weigh the evidence objectively and

render      a   true verdict."   Commonwealth v. Duffy, 832 A.2d 1132, 1137
(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).

                  Counsel['s] remarks to the jury may contain fair
                  deductions and legitimate inferences from the
                  evidence presented during the testimony.         The
                  prosecutor may always argue to the jury that the
                  evidence establishes the defendant's guilt, although
                  a prosecutor may not offer his personal opinion as to
                  the guilt of the accused either in argument or in
                  testimony from the witness stand. Nor may he or
                  she express a personal belief and opinion as to the
                  truth or falsity of evidence of defendant's guilt,
                  including the credibility of a witness.

Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal
denied, 788 A.2d 372         (Pa. 2001),   cert. denied, 535      U.S. 1059 (2002).

          Following our careful review, we agree with the PCRA court that

ADA Busch's comments, when read as               a   whole, were not so prejudicial as to



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warrant that        a   new trial be granted.       "A petitioner establishes prejudice

when he demonstrates that there is          a   reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different."         Commonwealth v. Johnson, 966 A.2d 523, 533                   (Pa.

2009) (citations and internal quotation marks omitted).              "[A] prosecutor    is

permitted fairly wide latitude in advocating for the Commonwealth, including

the right to argue all fair conclusions from the evidence, to respond to

defense arguments, and to engage in             a   certain degree of oratorical flair."

Harris, 884 A.2d at 931.            All such comments must be reviewed in the

context in which they were made. Commonwealth v. Robinson, 877 A.2d

433, 441 (Pa. 2005).

        Here, the record reflects that ADA Busch's references to crime in

Philadelphia were not the type of comments that would cause the jury to

form    a   fixed bias or hostility towards appellant and prevent it from rendering

a    fair and impartial verdict.      Rather, ADA Busch's comments were           a   fair

response to trial counsel's repeated arguments throughout trial bemoaning

the lack of fingerprint and DNA evidence presented by the Commonwealth.

(See        notes   of testimony,    9/23/09 at 40-42; 9/24/09 at 135-137.)

Accordingly, appellant's trial counsel had no basis upon which to object, and

appellant's underlying ineffectiveness claim must fail. See Commonwealth

v.   Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) (stating, "counsel will not            be




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considered ineffective for failing to pursue meritless claims."), appeal

denied, 828 A.2d 350            (Pa. 2003).

       Appellant also contends that trial counsel was ineffective for failing to

object to comments ADA Busch made during her closing argument that

referenced the fact that appellant fit the description of the assailant given by

the victims at trial. (Appellant's brief at 10.) Specifically, ADA Busch stated

as follows:

              They may not be able to say it was [appellant], but
              boy did they get a good description of him, five-foot
              eight, dark complexion, wearing a purple T-shirt with
              writing on it, a bandana on his head. We know
              [appellant] a month later had a black doo rag on.
              Late 30's, clean shaven, medium build, athletic. May
              15 of last year [appellant] looked something a lot
              more like this. Gray hair not very visible especially if
              it's covered, no beard. They can't name him or
              but [sic] they can tell you exactly what he looks like
              and that's what they did.



              I guess the defense would have you believe, I guess,
              even though there's absolutely no evidence of this in
              the record, that some man came in at 4:30 in the
              morning at 1211 South Juniper looking a heck of a
              lot like [appellant], same build, height, skin color,
              something on his head, terrorized them, took their
              car, drove around awhile, parked it.           .   .   .




              .   .The evidence shows that a man that looks just
                      .


              like him broke into that house, took the keys, took
              the car, left his prints, drove it around, parked in his
              hurry to escape a violation home invasion that he
              had         just committed.   .   .   .




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Notes of testimony, 9/24/09 at 146, 151-152.

        Appellant contends that these comments were the equivalent of

informing     he      jury "that the complainants                 had    successfully identified

[a]ppellant as the person who burglarized their home[,]" and that the

Commonwealth was precluded from doing so because it had stipulated at the

December 4, 2008 preliminary hearing that the victims could not identify

appellant as the perpetrator. (Appellant's brief at vii, 11-15; see also notes

of testimony, 12/4/08 at 4-6.)

        Upon review, we find that appellant's claim that trial counsel was

ineffective for failing to object to ADA Busch's closing argument on this basis

is   meritless.       It   is well   settled that      a    prosecutor   is   permitted to argue

reasonable and legitimate inferences from the testimony presented at trial.

See Chmiel, 777 A.2d at 466.                   Contrary to appellant's contention, neither

victim in this case specifically identified appellant as their assailant at trial,

but merely described the physical characteristics of the individual who

assaulted them on the morning in question. Wife testified that the individual

who broke into her home and assaulted her was between 5'8" and 5'9" in

height, had       a   medium build, and        a    dark complexion.          (Notes of testimony,

9/23/09 at 79.)            Likewise, Husband testified that Wife's assailant had an

average, athletic build, dark skin, and was wearing                  a   bandana and "purplish"

T-shirt.    (Id. at 123-124.) ADA Busch's comments during her summation
merely asked the jury to draw              a    reasonable inference that appellant, who



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matched the physical description given by the victims, was the individual

who broke into their home.              See Chmiel, 777 A.2d at 466.              These

comments were supported            by    the record        and   were entirely proper.

Accordingly, trial counsel had no basis upon which to object, and appellant's

ineffectiveness claim must fail.         See Rivera, 816 A.2d at 292 (stating,

"counsel will not be considered ineffective for failing to pursue meritless

claims[]").

        In his final claim, appellant argues that appellate counsel were

ineffective for failing to argue on direct appeal that the Commonwealth failed

to present sufficient evidence to prove his identity as the perpetrator.

(Appellant's brief at 16.) In support of this contention, appellant avers that

the only evidence linking him to this crime was the fingerprint evidence

recovered from inside the victims' vehicle, "an inherently movable object,"

and that the Commonwealth "failed to eliminate the possibility that [he] had

been in the car on    a   previous occasion.   .   .   ." (Id. at xvi, 18-19.) Appellant

maintains that there were numerous other explanations as to why his

fingerprints were discovered inside the vehicle, including the fact that he

may have entered the vehicle to search for valuables on another occasion;

or that he may have entered the vehicle for some other purpose in the hour

it had been missing.       (Id. at 19.) Appellant argues that appellate counsel
had no reasonable basis for failing to pursue this particular argument on

appeal.   (Id.)   We disagree.
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        It   is   well settled that "post -conviction relief claims alleging that

counsel had provided ineffective assistance are generally to be considered

distinct from the underlying claims that the trial court erred, even though

such underlying           claims of error had been litigated on direct appeal."

Commonwealth v. Kimbrough, 938 A.2d 447, 450 (Pa.Super. 2007);
Commonwealth v. Collins, 888 A.2d 564, 571-572                        (Pa. 2005).    "As we

made clear in Collins, although we will analyze                       a   distinct claim of

ineffectiveness that         is   based on the underlying         issue decided on direct

appeal, in many cases those claims will fail for the same reasons they failed

on direct appeal."          Commonwealth v. Washington, 927 A.2d 586, 607
(Pa. 2007), citing        Collins.

        Upon review, we agree with the PCRA court that appellant's underlying

sufficiency claim lacks arguable merit, and thus, appellant's ineffectiveness

claim must fail.       The record reflects that on direct appeal,           a   panel of this

court held that there was sufficient evidence to sustain appellant's conviction

for robbery of        a    motor vehicle.       See Bonner, 27 A.3d at 257-258.

Specifically, the Bonner court found that evidence established that appellant

took the victim into the kitchen with                  a   knife at her throat, repeatedly

threatened to kill her until she handed over the keys to her car, and

ultimately fled from the house         in   victim's car. Id. at 258. As this court has

already concluded that there was sufficient evidence for the jury to infer that

appellant was the perpetrator of the crimes in question, any alternative



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argument to the contrary would have also failed.       As noted, appellate

counsel cannot be deemed ineffective for failing to raise   a   claim that is

devoid of merit. See Ligons, 971 A.2d at 1146.

        Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant's petition without conducting an evidentiary

hearing.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 1/7/19




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