J-S37022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES BROOKS,                            :
                                          :
                   Appellant.             :   No. 2649 EDA 2018


         Appeal from the PCRA Order Entered, September 7, 2018,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0011224-2012.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                   FILED SEPTEMBER 10, 2019

     James Brooks appeals from the order denying his first petition for relief

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

9546. We affirm.

     In disposing of Brooks’ direct appeal, we quoted the trial court’s

summary of the pertinent facts and procedural history as follows:

        On the evening of January 25, 2012, [Brooks and his co-
        defendant, Tyrone Jefferson (Jefferson)] walked together
        along Bridge Street in the direction of Torresdale Avenue[,
        in Philadelphia]. After the pair crossed Ditman Street, they
        passed a house [on] Bridge Street, where Quadir Bush
        (Bush) and [Bush’s] cousins were celebrating a family
        member’s birthday. Bush’s cousins, Mark Brown (Brown)
        and Darryl Wallace (Wallace), both described feeling uneasy
        as Jefferson and [Brooks] walked past.

        At the intersection of Bridge Street and Torresdale Avenue,
        four of [Brooks’] friends – Ali Ellis (Ellis), Zakeem Singleton
        (Singleton), Dhubair Muhamad (Muhamad), and Mysheer
        Pryor (Pryor) – stood, smoking cigarettes together outside
J-S37022-19


        of a corner store. Jefferson and [Brooks] spoke to Ellis and
        Muhamad for two-and-a-half to five minutes. After that
        conversation, Jefferson and [Brooks] doubled-back [and
        walked] north on Bridge Street in the direction from which
        they had come. Jefferson and [Brooks] walked directly to
        Bush and his cousins, where [Brooks] asked if anyone had
        marijuana. In response, Bush and his cousins laughed; they
        told [Brooks] that they did not have any marijuana.
        [Brooks] pressed [and asked] for drugs a second time. The
        cousins once again answered in the negative, angering
        [Brooks]. Wallace [testified] that [Brooks] “went from 0 to
        100.” [Brooks] then said, “you all think I’m playing[?]” and
        told Jefferson to pass him a gun. Jefferson took a revolver
        from the waistband of his pants and handed it to [Brooks].

        [Brooks] [] pointed the gun at the cousins, prompting
        Wallace and Brown to run for cover. As they ran toward the
        house, [Brooks] aimed the gun at Bush’s head [and pulled]
        the trigger [from] less than two feet away. A single bullet
        penetrated Bush’s head, killing him.           Immediately
        thereafter, Jefferson and [Brooks] ran away together “down
        Torresdale towards Pratt.”

                                   ...

        On September 16, 2013, following a jury trial[, Brooks] was
        found guilty of [first-degree murder, criminal conspiracy,
        and possessing instruments of crime]. That same day, [the
        trial court] sentenced [Brooks] to the mandatory term of life
        imprisonment for murder in the first degree. On September
        20, 2013, [Brooks] filed [a] post-sentence motion[], which
        [the trial court] denied on January 16, 2014.

Commonwealth v. Brooks, 122 A.3d 1124 (Pa. Super. 2015) (citation and

footnote omitted), unpublished memorandum at 1-2.

     Brooks filed a timely appeal to this Court in which he claimed that the

trial court abused its discretion “when it overruled [defense] objections to

comments made by the prosecutor during his closing speech wherein he gave

his personal opinion regarding the testimony given by [a defense witness] and


                                    -2-
J-S37022-19



told the jury that the defense had a duty to interview and take statements

from witnesses even though the police had not done so?”                    Brooks,

unpublished memorandum at 3. We found no merit to this claim and, on June

5, 2015, we adopted the trial court’s opinion as our own and affirmed Brooks’

judgment of sentence. See id. Our Supreme Court denied Brooks’ petition

for allowance of appeal on February 1, 2016. Commonwealth v. Brooks,

131 A.3d 419 (Pa. 2016).

      Brooks filed a timely pro se PCRA petition on November 15, 2016. The

PCRA court appointed counsel, and PCRA counsel filed an amended petition

on October 17, 2017. On May 23, 2018, the Commonwealth filed a motion to

dismiss. On July 16, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intention to dismiss Brooks’ amended petition without a hearing. Brooks

did not file a response. By order entered September 7, 2018, the PCRA court

dismissed Brooks’ amended petition.         This timely appeal followed.      Both

Brooks and the PCRA court have complied with Pa.R.A.P. 1925.

      Brooks raises the following issues:

         1. Did the PCRA court err in dismissing [Brooks’] PCRA
            Petition without a hearing because trial counsel was
            ineffective for failing to ensure that he received discovery
            on witness retaliation resulting in prejudice to [Brooks]
            and for failing to ensure that the Court’s Order as to same
            was enforced and, as a result, should this matter be
            remanded for an evidentiary hearing and a new trial?

         2. Did the PCRA court err in dismissing [Brooks’] PCRA
            Petition without a hearing because trial counsel was
            ineffective for not objecting to prosecutorial misconduct
            resulting in prejudice to [Brooks] wherein the prosecutor
            made comments during opening statements about a

                                      -3-
J-S37022-19


            drugs turf war when there was no evidence to support
            this theory of the case and should this matter be
            remanded for an evidentiary hearing and a new trial?

Brooks’ Brief at 4. We will address these issues in the order presented.

      Our scope and standard of review is well settled:

             In PCRA appeals, our scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the
      PCRA court's hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court's factual findings and credibility determinations
      supported by the record. In contrast, we review the PCRA court's
      legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

             When the PCRA court has dismissed a petitioner’s PCRA
      petition without an evidentiary hearing, we review the PCRA
      court’s decision for an abuse of discretion. Commonwealth v.
      Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
      discretion to dismiss a petition without a hearing when the court
      is satisfied that there are no genuine issues concerning any
      material fact, the defendant is not entitled to post-conviction
      collateral relief, and no legitimate purpose would be served by
      further proceedings. Id. To obtain a 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 material 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.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      Both of Brooks’ issues allege the ineffective assistance of trial counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,



                                      -4-
J-S37022-19



that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.”   Id.   This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) counsel’s act or omission

prejudiced the petitioner. Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).       Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

      As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

                                      -5-
J-S37022-19



the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

       In its Rule 1925(a) opinion, the PCRA court described the pertinent facts

regarding Brooks’ first ineffectiveness claim as follows:

          On September 9, 2013, during jury selection for this case,
          witness Darryl Wallace entered the courtroom and briefly
          disrupted operations. After the parties had selected the
          next juror to serve on the panel in this case, the Assistant
          District Attorney (ADA) asked this Court to hear a petition
          to hold Mr. Wallace overnight due to security concerns. Mr.
          Wallace was brought into the courtroom, and a lengthy
          discussion then followed between this Court, Mr. Wallace
          and the ADA, in which Mr. Wallace advised that he did not
          want to testify at trial and that he had been approached, on
          at least two occasions, by unknown assailants who
          threatened him not to testify.          [While co-defendant
          Jefferson’s attorney spoke briefly during this exchange,
          Brooks’ counsel did not say anything.]           During this


                                        -6-
J-S37022-19


           discussion, the ADA made clear that he was unaware that
           Mr. Wallace had been approached by individuals threatening
           his safety. At the end of this discussion, the ADA requested
           time to take measures to ensure Mr. Wallace’s safety, and
           this Court granted that request.

PCRA Court Opinion, 1/3/19, at 5 (citations and footnote omitted).

        In his first issue, Brooks alleges that trial counsel was ineffective for

failing to ensure that the Commonwealth complied with the trial court’s order

that it provide discovery regarding threats allegedly made to Mr. Wallace.

According to Brooks, he “suffered prejudice as a result because he was unable

to properly rebut these allegations.” Brooks’ Brief at 9. In addition, Brooks

claims that he has established a Brady1 violation because “if provided, such

discovery may have been exculpatory given that codefendant counsel

presented significant evidence regarding other potential shooters or may have

[altered] [Brooks’] position in relation to, inter alia, plea negotiation.” Id. at

11.

        The PCRA court found this claim of ineffectiveness lacked arguable

merit.    It concluded:

             At no point in the discussion did the ADA state or even
           suggest that he had any discovery concerning the witness
           intimidation which had allegedly occurred two days earlier,
           nor did this Court order the Commonwealth to provide any
           discovery regarding such information. [At trial, neither trial
           counsel nor the ADA questioned Mr. Wallace concerning the
           details underpinning the alleged threat made against him.]
           [Brooks] did not provide any details regarding his claim so,
           other than what is contained in the record, this Court had
____________________________________________


1   Brady v. Maryland, 373 U.S. 83 (1963).


                                           -7-
J-S37022-19


         no idea what the basis of this claim was. Therefore, without
         more, this Court determined that the factual basis
         underlying [Brooks’] claim was without merit and failed.

PCRA Court Opinion, 1/3/19, at 5-6 (citations and footnote omitted).         In

addition, the PCRA court noted that it advised Brooks of this factual deficiency

in its Rule 907 notice, “but [Brooks] never provided any additional information

to supplement his claim.” Id. at 6.

      Our review of the record supports the PCRA court’s conclusions.        In

essence, the PCRA court found no merit to Brooks’ first issue because the

court never ordered the Commonwealth to provide such discovery and Brooks

had not established that such discovery exists. Thus, the PCRA court did not

err in dismissing Brooks’ first issue without holding a hearing.           See

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in

the absence of a sufficient proffer, a petitioner’s bare assertions would

inappropriately convert an evidentiary hearing into a “fishing expedition” for

possible exculpatory evidence).

      In his second issue, Brooks claims that the PCRA court erred in

dismissing his PCRA petition without a hearing because trial counsel was

ineffective, “for not objecting to prosecutorial misconduct resulting in

prejudice to [him] wherein the [ADA] made comments during opening

statements about a drugs turf war when there was no evidence to support this

theory of the case.” Brooks’ Brief at 8. According to Brooks, “this prejudiced

[him] because the jury was polluted with a false theory of premeditation when




                                      -8-
J-S37022-19



it seems that the shooting of [the victim] was more an instantaneous act

without premeditation associated with First-Degree Murder.” Id. at 12.

      Brooks’ claim involves an allegation of prosecutorial misconduct. Our

standard of review is well settled:

         [P]rosecutorial misconduct does not take place unless the
         unavoidable effect of the comments at issue was to
         prejudice the jurors by forming in their minds a fixed bias
         and hostility toward the defendant, thus impeding their
         ability to weigh the evidence objectively and render a true
         verdict. . . . In reviewing a claim of improper prosecutorial
         comments, our standard of review is whether the trial court
         abused its discretion. When considering such a claim, our
         attention is focused on whether the defendant was deprived
         of a fair trial, not a perfect one, because not every
         inappropriate remark . . . constitutes reversible error.

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations

omitted). “Prosecutorial misconduct, however, will not be found where the

comments were based on evidence or proper inferences therefrom or were

only oratorical flair.”   Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.

Super. 2005) (citation omitted). In order to evaluate whether comments were

improper, we must look to the context in which they were made. Id.

      According to Brooks, the Commonwealth committed prosecutorial

misconduct during its opening statements to the jury. As our Supreme Court

has summarized:

         The principles applicable to such a claim are well
         established. Remarks in a prosecutor’s opening statement
         must be fair deductions from the evidence which he in good
         faith plans to introduce and not mere assertions designed to
         inflame the passions of the jury. The prosecution is not,
         however, required to prove conclusively all statements

                                      -9-
J-S37022-19


        made during the opening [statement]. As long as there is
        a good faith and reasonable basis to believe that a certain
        fact will be established, reference may properly be made to
        it during the opening [statement]. Even if an opening
        [statement] is 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.

Commonwealth v. Jones, 610 A.2d 931, 938-39 (Pa. 1992) (citations

omitted).

     The PCRA court found no merit to this claim. The court first recounted

the context of the challenged comment as follows:

        Prior to the commencement of opening statements, this
        Court instructed the jury that “statements made by counsel,
        that is, any of these three attorneys, does not constitute
        evidence, so they are not binding on you in any way.” N.T.
        9/10/13 at 20. Thereafter, in his opening statement, the
        ADA then asserted:

            As you know, we’re here because, on January 25th of
            2012, these two defendants took the life of a 32-year-
            old man and they did it over nothing. Well, I say it’s
            nothing because it’s hard to fathom that somebody
            would kill another person over something so simple as
            turf. These two guys wanted to sell drugs on a corner
            so bad, they killed [the victim] by shooting him in the
            face.

        Id. at 25-26.

           Shortly after making this statement, the ADA referenced
        that the area of the shooting was frequented by “drug
        dealers and drug addicts,” at which point, counsel for
        [Brooks’] co-defendant objected and moved for mistrial,
        which this Court denied. Id. at 26.

PCRA Court Opinion, 1/3/19, at 7-8.




                                    - 10 -
J-S37022-19



     The PCRA court next cited to testimony at trial that arguably supported

the ADA’s comments:

            Darryl Wallace testified that, at the time of the shooting
        on January 25, 2012, he and the [victim] and three other
        members of their family were standing on the northwest
        corner of Bridge Street and Torresdale Avenue in
        Philadelphia. Mr. Wallace’s group was approached by a
        “short, cross-eyed guy [who] came up and asked us about
        pills. We told him we didn’t have any pills and he left.
        Shortly thereafter, Mr. Wallace observed [Brooks] and his
        co-defendant walking past them, in the direction of a store
        up the street, and observed [Brooks] and his co-defendant
        talking “to the cross-eyed boy.” Mr. Wallace saw [Brooks]
        look in the direction of him and the [victim] on the corner
        and then move to approach them. Mr. Wallace testified that
        [Brooks] asked “where the weed was at.” Mr. Wallace
        testified that at least one member of his group told [Brooks]
        that they didn’t have drugs, and that [Brooks] asked the
        same question again. Mr. Wallace testified that, when his
        group replied once more that they did not have any drugs,
        [Brooks] replie,. “you all think I’m playing,” and told his co-
        defendant to pass him a gun, at which point the co-
        defendant handed [Brooks] a revolver from the waistband
        of his pants and [Brooks] shot the [victim] in the head.

PCRA Court Opinion, 1/3/19, at 8 (citations omitted).

     The PCRA court then explained why Brooks did not establish that the

challenged comments were either improper or prejudicial.             The court

reasoned:

           Though [the trial] testimony may not have been explicit
        as the ADA may have anticipated, this evidence
        demonstrates that the ADA had some good-faith basis to
        assert in his opening statement that the shooting was
        motivated by a dispute over drug territory, and the ADA was
        within the reasonable latitude permitted in opening
        statements to assert that the facts would support this
        theory. Furthermore, the jury is presumed as a matter of

                                    - 11 -
J-S37022-19


       law to have followed this Court’s instructions not to consider
       the ADA’s opening statement as evidence against [Brooks].
       See Commonwealth v. Brown, 786 A.2d 961, 971 (Pa.
       2001) (“The law presumes the jury will follow the
       instructions of the court.”); Commonwealth v. Means,
       773 A.2d 143, 157 (Pa. 2001) (“A pillar of our system of
       trial by jury is that jurors are presumed to follow instructions
       of the court.”)

          In any event, even assuming the ADA’s comments in the
       opening statement were improper, which this Court finds
       they were not, [Brooks] cannot demonstrate that the
       unavoidable effect of those comments was to prejudice the
       jury against him such that it was fixed in the jury’s minds
       that [Brooks] acted with premeditation and specific intent
       to kill, as this issue was established by the evidence at trial.
       Specific intent to kill may be inferred from a defendant’s use
       of a deadly weapon on a vital part of the victim’s body.
       Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa.
       Super. 2005). Here, both eyewitnesses, Mr. Wallace and
       wtiness Mr. Brown, testified that [Brooks], along with his
       co-defendant, approached the [victim] and his cousins and
       asked for marijuana. Immediately after being told that no
       one in the group had any, [Brooks] turned to his co-
       defendant, demanded a gun, and then pointed it at the
       [victim] and shot the [victim] in the head at close range.
       N.T. 9/10/13, at 88-96; 9/11/13 at 17-26.            [Brooks]
       demand for a deadly weapon from his co-defendant,
       together with his use of that weapon on a vital part of the
       [victim’s] body, was fully sufficient to establish [Brooks’]
       specific intent to kill. The [ADA’s] comments in [his]
       opening statement concerning the motive for this killing
       were not improper, and [Brooks] failed to show that those
       comments fixed in the minds of the jury bias or hostility
       towards [Brooks]. As the [the prosecutor] committed no
       misconduct in [his] opening statement, [Brooks’] claim that
       counsel was ineffective for failing to object lacks arguable
       merit, and this claim fails.




                                   - 12 -
J-S37022-19



PCRA Court Opinion, 1/3/19, at 8-9.2 Once again, our review of the record

supports the PCRA court’s conclusions.

       The record refutes Brooks’ arguments that the “prosecutor engaged in

misconduct by presenting a theory of the case that he was unable to prove

and which sowed seeds of prejudice in the jury’s mind,” and that the “opening

statement of a turf war theory also established premeditation that did not

exist.” Brooks’ Brief at 15. Moreover, Brooks contention that the PCRA court

“attempts to create a good faith basis for the prosecutor from one statement

– “you all think I’m playing?” see id., is baseless. As noted by the PCRA court,

while the prosecutor may have expected that the testimony of the

Commonwealth witnesses would establish the proffered motive for the killing,

the fact that this did not occur, does not vitiate the prosecutor’s good faith

belief. Indeed, our reading of the trial transcripts reveals additional evidence

of a “turf war.” See, e.g., N.T., 9/11/13, at 96 (Mr. Wallace testifies that

they shot the victim “[o]ver a drug corner”).

       Finally, in making his ineffectiveness claim, Brooks only makes a bare

assertion that he “suffered prejudice.” Brooks’ Brief at 15. In making this

assertion, Brooks ignores the Commonwealth evidence, as cited by the PCRA

court above, which supported the jury’s finding that he committed first-degree

murder. See Commonwealth v. Fisher, 769 A.2d 1116, 1124 (Pa. 2001).

____________________________________________


2 In addition, we note that the trial court repeated its admonition to the jury
that “speeches of counsel are not part of the evidence, and you should not
consider it as such” during its final instructions. N.T. 9/16/13, at 39.

                                          - 13 -
J-S37022-19



(holding that “[t]he period of reflection necessary to constitute premeditation

may be very brief; in fact, the design to kill can be formulated in a fraction of

a second”). Thus, for all of these reasons, Brooks second ineffectiveness claim

fails. Commonwealth v. Spotz, 896 A.2d 1191, 1247 (Pa. 2006) (reiterating

that “counsel will not be deemed ineffective for failing to raise a meritless

objection”).

      In sum, because Brooks has not established his ineffective assistance of

counsel claims, the PCRA could did not err in denying Brooks’ petition without

a hearing. Blakeney, supra. We therefore, affirm its order denying Brooks

post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/19




                                     - 14 -
