J-S79038-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
               Appellee                 :
                                        :
                  v.                    :
                                        :
LUIS ALONZO VILLATORO,                  :
                                        :
               Appellant                :   No. 1619 EDA 2014

           Appeal from the PCRA Order Entered May 22, 2014,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division, at No(s): CP-39-CR-0002514-2009

BEFORE:    ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 19, 2015

     Luis Alonzo Villatoro (Appellant) appeals from the May 22, 2014 order

which “denied and dismissed” his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On April 26, 2010, a jury convicted Appellant of one count of criminal

homicide – murder in the third degree, and four counts of recklessly

endangering another person (REAP).      These charges stemmed from the

shooting death of Angel Ramos Rodriguez.1     On June 18, 2010, Appellant

was sentenced to an aggregate term of 24 to 48 years’ incarceration. After

filing a post-sentence motion on June 28, 2010, Appellant filed amended

post-sentence motions on October 19, 2010, which were denied on October



1
  A panel of this Court previously set forth the factual history underlying
Appellant’s convictions in Commonwealth v. Villatoro, 34 A.3d 214 (Pa.
Super. 2011) (unpublished memorandum).

*Retired Senior Judge assigned to the Superior Court.
J-S79038-14


21, 2010. On November 5, 2010, Appellant appealed to this Court, which

affirmed   Appellant’s     judgment    of   sentence   on      September    1,   2011.

Commonwealth v. Villatoro, 34 A.3d 214 (Pa. Super. 2011) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal to

our Supreme Court. On September 17, 2012, Appellant, through counsel,

timely filed the instant PCRA petition.2       Following two hearings, the PCRA

court “denied and dismissed” the petition on May 22, 2014.                 Thereafter,

Appellant timely filed this appeal.3

      Appellant raises one issue for our review: “[w]hether the PCRA court

erred in finding that trial counsel was not ineffective for failing to object and

move for a mistrial as a result of the Commonwealth’s actions and

comments     during   closing[.]”       Appellant’s    Brief    at   2   (unnecessary

capitalization omitted).




2
   See 42 Pa.C.S. § 9545(b)(1) (providing that all PCRA petitions must be
filed within one year of the date that the petitioner’s judgment becomes
final, unless an exception applies). Appellant had until October 2012 to file
timely his PCRA petition. See 42 Pa.C.S. § 9545(b)(3) (providing that a
judgment becomes final at the conclusion of direct review or expiration of
time for seeking review); Pa.R.A.P. 1113(a) (providing that “a petition for
allowance of appeal shall be filed … within 30 days after the entry of the
order of the Superior Court”).
3
 The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and none
was filed.



                                        -2-
J-S79038-14


      We begin by noting that, in reviewing the propriety of an order

denying PCRA relief, this Court is limited to determining whether the

evidence of record supports the PCRA court’s findings, and whether the

ruling is free of legal error. Commonwealth v. Carr, 768 A.2d 1164, 1166

(Pa. Super. 2001).    The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. See id.

      In reviewing the PCRA court’s denial of Appellant’s claims of ineffective

assistance of counsel, we bear in mind that counsel is presumed to be

effective.   Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).              To

overcome this presumption, Appellant bears the burden of proving the

following: “(1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel’s deficient performance.” Id. Appellant’s

claim will be denied if he fails to meet any one of these three prongs. Id.

      In support of his claim, Appellant argues that trial counsel was

ineffective for failing to object to and move for a mistrial on the basis that,

during her closing statement, the prosecutor improperly (1) made repeated

comments and gestures while displaying a firearm, and (2) made multiple

comments regarding Appellant’s credibility.

      [T]he first prong of the ineffectiveness test is that the underlying
      claim has merit. In the context of prosecutorial misconduct



                                      -3-
J-S79038-14


     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.

Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005) (citation

omitted).

     “It is well established that a prosecutor is permitted wide latitude to

advocate the Commonwealth’s case, and may properly employ a degree of

rhetorical flair in so doing.” Commonwealth v. Keaton, 729 A.2d 529, 540

(Pa. 1999).

     The prosecutor is allowed to vigorously argue his case so long as
     his comments are supported by the evidence or constitute
     legitimate inferences arising from that evidence. In considering
     a claim of prosecutorial misconduct, our inquiry is centered on
     whether the defendant was deprived of a fair trial, not deprived
     of a perfect one. Thus, a prosecutor’s remarks do not constitute
     reversible error unless their unavoidable effect … [was] to
     prejudice the jury, forming in their minds fixed bias and hostility
     toward the defendant so that they could not weigh the evidence
     objectively and render a true verdict. Further, the allegedly
     improper remarks must be viewed in the context of the closing
     argument as a whole.

Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009) (internal

quotation marks omitted) (quoting Commonwealth v. Washington, 700

A.2d 400, 407-408 (Pa. 1997)).

     Appellant first takes issue with trial counsel’s failure to object to or

move for a mistrial as a result of the following comments and gestures made



                                    -4-
J-S79038-14


by the prosecutor during her closing argument, which Appellant argues

served no purpose other than to inflame the passions, fears, and prejudices

of the jury.

               Whereupon Attorney Zampogna displays rifle

                                      ***

             This defendant had to fire this rifle at Angel in the window.
      [Simulating pointing and firing weapon] And then this defendant
      had to fire this rifle at Angel in the window. [Simulating pointing
      and firing weapon] And then this defendant had to fire this rifle
      at Angel in the window. [Simulating pointing and firing weapon]
      And then this defendant had to fire this rifle at Angel in the
      window. [Simulating pointing and firing weapon] And then this
      defendant had to fire this rifle at Angel in the window.
      [Simulating pointing and firing weapon] And then this defendant
      had to fire this rifle at Angel in the window. [Simulating pointing
      and firing weapon] And finally, then, the defendant had to fire
      this rifle at Angel in the window one more time. [Simulating
      pointing and firing weapon] Seven times. Seven pulls of that
      trigger at the kitchen window.

N.T., Closing Arguments-Bethany Zampogna, 4/26/2010, at 18-19.

      In support of his claim, Appellant cites Commonwealth v. Parker,

882 A.2d 488 (Pa. Super. 2005), wherein a panel of this Court held “that it

was error for [a] trial judge to allow the prosecution to use and display [a]

gun during its opening statement,” as it “served no constructive purpose and

… the prejudicial effect of the display clearly outweighed any slight probative

value.”   Parker, 882 A.2d at 494.     Although the Parker Court ultimately

concluded that such error was harmless in light of the overwhelming

evidence of the appellant’s guilt that was presented at trial, id. at 494-95,



                                     -5-
J-S79038-14


Appellant argues that the circumstances of this case do not warrant the

same conclusion.

      This Court has observed that, during closing arguments, “counsel may

reasonably display exhibits which are in evidence and may use such exhibits

demonstratively as long as the demonstration is for illustration purposes and

does not constitute the creation of new evidence.”       Commonwealth v.

Wise, 444 A.2d 1287, 1290 (Pa. Super. 1982) (addressing prosecutor’s use

of photographs during closing); see also Commonwealth v. Stark, 526

A.2d 383, 373 (Pa. Super. 1987) (holding that a “prosecutor’s use of [a

recorded confession, which was received into evidence during trial,] during

his closing to illustrate his arguments regarding [the defendant’s] intent on

the night of the murder was not error”). Moreover, a prosecutor “must be

free to present his or her arguments with logical force and vigor,” and

“prosecutorial misconduct will not be found where comments were based on

the evidence or proper inferences therefrom or were only oratorical flair.”

Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014).

      Upon review, we agree with the PCRA court that the prosecutor’s

actions and comments in utilizing the rifle did not amount to prosecutorial

misconduct. Rather, they were reasonably based on the evidence presented

at trial and proper inferences therefrom.   Thus, the prosecutor’s gestures

and statements in this regard constituted a proper use of oratorical flair and




                                    -6-
J-S79038-14


“vigorous prosecutorial advocacy.”     Commonwealth v. Miles, 681 A.2d

1295, 1302 (Pa. 1996).      Because Appellant has failed to prove that his

underlying claim has arguable merit, he is not entitled to relief on this basis.

      Moreover, assuming arguendo that Appellant’s claim had arguable

merit, Appellant fails to establish that he suffered prejudice. “Prejudice

means that, absent counsel’s conduct, there is a reasonable probability the

outcome of the proceedings would have been different.” Commonwealth v.

Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). In fact,

as explained by the PCRA court,

      [d]uring that particular point in the closing argument, [the
      prosecutor] was attempting to argue to the jury that
      [Appellant’s] actions and words (previously testified to in trial)
      demonstrated the mens rea appropriate for a murder in the first
      degree conviction. Ultimately, the jury did not render such a
      verdict, only convicting [Appellant] of murder in the third degree
      and four counts of [REAP].

PCRA Court Opinion, 5/22/2014, at 14. Accordingly, Appellant is not entitled

to relief on this basis.

      Appellant also takes issue with trial counsel’s failure to object to or

move for a mistrial based on the prosecutor’s references to Appellant’s

testimony and his version of events as being either “unreasonable,”

“inexplicable,” not making “sense,” or “invented.”       Appellant’s Brief at 7

(citing N.T., Closing Arguments-Bethany Zampogna, 4/26/2010, 3, 6-10, 13,

15). Appellant argues that these references constitute improper statements




                                      -7-
J-S79038-14


of the prosecutor’s opinion regarding Appellant’s credibility and that any

prejudice Appellant suffered could not have been remedied through a

curative instruction.

      Initially, we have reviewed Appellant’s PCRA petition and note that

Appellant failed to include this issue therein.   Issues not raised in a PCRA

petition cannot be considered on appeal.     Commonwealth v. Lauro, 819

A.2d 100, 103 (Pa. Super. 2003). Nevertheless, even if it were reviewable,

we would conclude that Appellant’s issue is without merit.

      It is settled that it is improper for a prosecutor to express a
      personal belief as to the credibility of the defendant or other
      witnesses.    However, the prosecutor may comment on the
      credibility of witnesses. Further, a prosecutor is allowed to
      respond to defense arguments with logical force and vigor. If
      defense counsel has attacked the credibility of witnesses in
      closing, the prosecutor may present argument addressing the
      witnesses’ credibility.

Chmiel, 889 A.2d at 544.

      As explained by the PCRA court, defense counsel’s closing argument

“highlighted the testimony of various Commonwealth witnesses, including

Rocky Jimenez, Jr. and his motive to lie on the stand in order to protect his

father, Rocky Jimenez, Sr.”       PCRA Court Opinion, 5/22/2014, at 13.

Specifically, defense counsel stated that Rocky, Jr., was

      somebody with a motive to tell the story the way they want it to
      be told, to tell the story in a light that’s most favorable to his
      father. He’s close to his father, he looks up to him, he’s going to
      come in and sit in this courtroom and say anything he can to
      make his father look good. He has no allegiance to [Appellant].



                                     -8-
J-S79038-14



N.T., Closing Arguments-David Nicholls, 4/26/2010, at 17-18.       Moreover,

defense counsel noted the following with regard to the credibility of other

Commonwealth witnesses: (1) that Carlos Valentine got “up on the stand

[and] pretty much admits everything he told the police was a lie,” (2) that

Gladynel Rivera “was probably the most credible of the witnesses that [the

jury] saw,” (3) that two other individuals had “close connections with Rocky,

at his house all the time,” and that many of the witnesses were involved in

prior criminal behavior. Id. Defense counsel then requested that the jury

consider all of those factors when deciding who was telling the truth. Id. at

18.   Moreover, defense counsel indicated to the jury that if it looked

“carefully at the facts, it’s going to be very difficult for [it] to come to a

conclusion beyond a reasonable doubt that [Appellant] ever had the intent to

kill anybody. It just doesn’t make any sense.” Id. at 21.

      In her closing argument, the prosecutor asked the jury whether it

made any sense that those involved in the incident went to “shoot a fair

one,” and she suggested that “it [wa]s unreasonable to believe that their

plan was to do anything other than what they did.”              N.T., Closing

Arguments-Bethany Zampogna, 4/26/2010, at 3. The prosecutor also stated

that it was the jury’s recollection that governs, but also that Appellant’s

testimony regarding how the gun was handled prior to and after the

shooting did not make “sense,” was “inexplicable” and “invented,” and that it




                                    -9-
J-S79038-14


was “unreasonable” to believe Appellant’s version of events in that regard.

Id. at 6-10, 13. Moreover, the prosecutor stated,

      [W]hile I believe that his statement is unreasonable and does
      not make sense, ladies and gentleman, even if you accept what
      he says as true, despite all of the other evidence, even if you
      accept that there was this gun exchange at the green car and
      then another exchange back, … even if you believe that, …
      [Appellant] is guilty as an accomplice … .

Id. at 15.

      Upon review, we conclude that the prosecutor’s statements constituted

a proper use of oratorical flair, and they were made in fair response to

defense      counsel’s   statements    during   closing   argument.          See

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (“While a

prosecutor cannot offer his views as to a defense strategy, he can fairly

respond to attacks on a witness’s credibility.”). Moreover, to the extent that

the comments represented the prosecutor’s personal belief as to Appellant’s

credibility, we note that

      not every unwise, intemperate, or improper remark made by a
      prosecutor mandates the grant of a new trial. Reversible error
      occurs only when the unavoidable effect of the challenged
      comments would prejudice the jurors and form in their minds a
      fixed bias and hostility toward the defendant such that the jurors
      could not weigh the evidence and render a true verdict. 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. The touchstone is the fairness of
      the trial, not the culpability of the prosecutor.




                                      - 10 -
J-S79038-14


Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citations and

internal quotation marks omitted).     Viewing the prosecutor’s comments in

the context of the closing argument as a whole, we agree with the PCRA

court that they did not have the unavoidable effect of prejudicing the jury

such that it could not weigh the evidence and render a true verdict.

      As a final point, the trial court instructed the jury that, inter alia, the

jury was the “sole and only judge[] of the facts,” the jury was not bound “by

the recollections of counsel in their arguments to” it, and the jury was “the

sole judge[] of the credibility of the witnesses and of their testimony.”4

N.T., 4/26/2010, at 7, 8, 12. It is well-settled that “[t]he law presumes that

the jury will follow the instructions of the court.” Commonwealth v. Spotz,

896 A.2d 1191, 1224 (Pa. 2006). Thus, Appellant was not prejudiced by

counsel’s failure to object.

      For the reasons stated above, Appellant is not entitled to relief on his

ineffective-assistance-of-counsel claims. Accordingly, we affirm the order of

the PCRA court denying and dismissing Appellant’s petition.

      Order affirmed.




4
   Prior to the commencement of closing arguments, the trial court also
informed the jury that those arguments did not constitute evidence and that
it was the jury’s recollection of the evidence that guided its deliberations.
N.T., 4/26/2010, at 3.


                                     - 11 -
J-S79038-14


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/19/2015




                          - 12 -
