J-S82045-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
MAURICE SHOATZ,                          :
                                         :
                 Appellant               :     No. 1282 EDA 2018

                  Appeal from the PCRA Order April 4, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007113-2012

BEFORE:    LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 12, 2019

     Maurice Shoatz (Appellant) appeals from the April 4, 2018 order

dismissing without an evidentiary hearing his petition filed under the Post

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

     We begin by providing a brief background.          On April 22, 2012, at

approximately 9:50 p.m., Officer Timothy Dunne and his partner, Officer

John Merrigan, were on patrol in the City of Philadelphia when they observed

a black Chevrolet Tahoe double-parked. N.T., 4/7/2014, at 50-52, 94. The

vehicle displayed an “indigenous native person” license plate, which Officer

Dunne knew to be an invalid license plate associated with “sovereign citizen”

groups. Id. at 52-56. Shortly thereafter, Officer Dunne observed Appellant

exit a convenience store, enter the vehicle, and drive away. Id. at 52.




*Retired Senior Judge assigned to the Superior Court.
J-S82045-18

     Officer Dunne initiated a traffic stop and Appellant complied. Officer

Dunne approached the driver’s side of the vehicle while Officer Merrigan

approached the passenger’s side. Id. at 57-58, 94. After refusing Officer

Dunne’s request to roll down the vehicle’s tinted windows, Officer Dunne

opened the driver’s side door and was immediately met by Appellant who

handed Officer Dunne an identification card bearing the following: “Banu

Tallahassiy, Native American.” Id. at 58-59. Appellant then reached for his

waistband. Id. at 59. Appellant complied with Officer Dunne’s directive to

put his hands on the steering wheel, but soon thereafter reached for his

waistband a second time.      Id. at 59-60.    At that point, Officer Dunne

restrained Appellant’s hands and conducted a pat down for his safety. Office

Dunne immediately felt, and subsequently retrieved, a firearm from

Appellant’s waistband. Id. at 60. A second search incident to arrest yielded

eight tinfoil packets of the controlled substance, PCP.     Id. at 65. Upon

questioning, Appellant admitted there was a second firearm in the vehicle,

which Office Dunne retrieved. Id. at 63.

     Based upon the foregoing, Appellant was charged with, inter alia,

possession of a firearm by a prohibited person, firearms not to be carried

without a license, and possession of a controlled substance.        Appellant

eventually proceeded to a jury trial. At trial, Officers Dunne and Merrigan

testified as indicated above. Following Appellant’s trial, Appellant was found

guilty of the aforementioned offenses. On August 12, 2014, Appellant was



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sentenced to 6½ to 15 years’ imprisonment.        Appellant appealed and this

Court affirmed Appellant’s judgment of sentence on July 15, 2016, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on March 14, 2017. Commonwealth v. Shoatz, 154 A.3d 857 (Pa.

Super. 2016) (unpublished memorandum), appeal denied, ___A.3d___, 426

EAL 2016 (Pa. 2017).

        On May 23, 2017, Appellant pro se timely filed a PCRA petition.

Counsel was appointed, and an amended petition was filed on August 2,

2017.     On March 5, 2018, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant did not file a response, and on April 4, 2018, the PCRA court

dismissed Appellant’s petition. Appellant timely filed a notice of appeal.1

        On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.    Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted).     To prevail on a petition for PCRA relief, a

petitioner must plead and prove, by a preponderance of the evidence, that

his conviction or sentence resulted from one or more of the circumstances

enumerated in 42 Pa.C.S. § 9543(a)(2). In this case, Appellant contends,



1
 The PCRA court did not order Appellant to file a concise statement pursuant
to Pa.R.A.P. 1925, but it did author an opinion in support of its decision to
deny Appellant’s petition. See PCRA Court Opinion, 7/24/2018.



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inter alia, that trial counsel was ineffective for failing to object to several

instances of alleged prosecutorial misconduct. Specifically, Appellant avers

trial counsel should have objected to inflammatory remarks made by the

Commonwealth during the Commonwealth’s closing argument. We review

this claim mindful of the following.

      “[C]ounsel is presumed to be effective, and the petitioner bears the

burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d

130, 150 (Pa. 2018).

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

      To succeed on a claim of ineffective assistance of counsel based
      on trial counsel’s failure to object to prosecutorial misconduct,
      the defendant must demonstrate that the prosecutor’s actions
      violated a constitutionally or statutorily protected right, such as
      the Fifth Amendment privilege against compulsory self-
      incrimination or the Sixth Amendment right to a fair trial, or a
      constitutional interest such as due process. 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.


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Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (citations and

quotation marks omitted).

       The Commonwealth is entitled to comment during closing
      arguments on matters that might otherwise be objectionable or
      even outright misconduct, where such comments constitute fair
      response to matters raised by the defense, or where they are
      merely responsive to actual evidence admitted during a trial.
      Furthermore, prosecutorial misconduct will not be found where
      comments were based on the evidence or proper inferences
      therefrom or were only oratorical flair.

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012) (citations

omitted). See also Busanet, 54 A.3d at 64 (“[A] prosecutor is free to

present his argument with logical force and vigor so long as there is a

reasonable basis in the record for the prosecutor’s remarks. Further,

reversible error arises from a prosecutor’s comments only where their

unavoidable effect is to prejudice the jurors, forming in their minds a fixed

bias and hostility toward the defendant such that they could not weigh the

evidence objectively and render a fair verdict.”) (citation omitted).

      In this case, Appellant cites the following three statements made by

the Commonwealth during its closing argument, which he claims constituted

prosecutorial misconduct.

      If I had come in here and shown you this license plate, this
      license, this gun, all of these bullets, this gun -- oh, and then the
      PCP that was also on [Appellant], then I think we’d have a
      problem. Then maybe we’d have an issue as beyond a
      reasonable doubt. Maybe we would. I don’t know. Maybe. But,
      folks, reasonable doubt, despite what [defense] counsel wants
      you to believe is not a manufactured doubt. It’s not a doubt like,
      “Oh, I can't imagine, maybe on some planet.” But this didn’t



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      happen that way. It’s not manufactured. It has to be reasonable.
      It has to be something that you can actually explain to yourself.

      I asked -- you know, counsel, [Appellant] doesn’t have to
      provide any evidence. They don’t have to provide anything. He
      can sit there and not say a word. And that’s fine. But why?
      Really? Where’d the guns come from? I mean there’s zero
      explanation for -- if it didn’t happen the way that Officer Dunne
      and Officer Merrigan said it happened, how the heck did it
      happen? I mean, there’s zero evidence that it happened any
      other way than [what] Officer Dunne and Officer Merrigan said.

                                    ***

      And I hope and I’m thankful that this isn’t a case where
      [Appellant] got ahold of that firearm with nine bullets in the
      magazine and was able to do anything with it. I’m thankful that
      Officer Dunne got that gun before anything else happened,
      because this case would be very different and it would be
      a lot longer.

                                    ***

      The only doubt that could be is a[n] imagined one, a
      manufactured one, because there’s no evidence that it went
      down any other way other than how the officers say it did.

N.T., 4/7/2014, at 139-140, 142, 146 (emphasis added). Appellant contends

trial counsel rendered ineffective assistance when he failed to object to these

statements.2



2 In his brief, Appellant suggest that in addition to objecting, counsel should
have sought a mistrial, see Appellant’s Brief at 22, but provides no
argument to support his contention that the objectionable statements made
by the Commonwealth were so egregious as to warrant a mistrial if one were
requested. See Commonwealth v. Green, 467 A.2d 1346, 1348-49 (Pa.
Super. 1983) (“Although prosecutorial misconduct is never countenanced by
the courts, it is not proper to order a new trial at every instance of a
prosecutor’s improper remarks. Only those remarks which preclude objective
(Footnote Continued Next Page)


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      After reviewing the closing arguments made by both parties and the

testimony presented at trial, the PCRA court determined that the statements

made by the Commonwealth did not constitute prosecutorial misconduct.

See PCRA Court Opinion, 7/24/2018, at 4-8.             As such, the PCRA court

concluded that Appellant’s claim lacked arguable merit because trial counsel

could not have been ineffective for failing to object to statements that were

not objectionable.         Moreover, the PCRA court found Appellant failed to

establish prejudice.

            [Appellant] failed to establish a reasonable probability that
      the outcome of the proceedings would have been different but
      for counsel’s alleged failure. [Appellant] also failed to state
      exactly what curative measures should have been requested. …
      [T]he jury was given the correct burden of proof and jury
      instructions by the [trial c]ourt immediately after the
      Commonwealth made closing arguments. There is no indication
      the results would have been different if [t]rial [c]ounsel
      requested a mistrial or curative measures, therefore [Appellant]
      cannot demonstrate prejudice.

Id. at 8.

      Upon our own independent review, we find the PCRA court’s

determinations supported by the record and its legal conclusions are free

from error. Without addressing the arguable merit of Appellant’s claim, and

giving Appellant all reasonable inferences, we agree with the PCRA court

that Appellant has failed to satisfy his burden in proving that the
(Footnote Continued)   _______________________



deliberation by implanting bias and hostility for the defendant in the jurors’
minds will result in mistrial.”) (citation omitted).




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Commonwealth’s comments were so prejudicial as to deny him the right to a

fair trial and that, but for counsel’s omissions, there was a reasonable

probability that the outcome in this case would have been different.              See

Commonwealth v. Burno, 94 A.3d 956, 977 (Pa. 2014) (“[A]ssuming,

arguendo, Burno’s underlying claims did not lack ‘arguable merit,’ he would

not otherwise be entitled to relief since Burno did not meet his burden of

proving prejudice, i.e., that there is a reasonable probability that, but for

counsel’s failure to object to the challenged portions of the prosecutor’s

closing argument, the factfinder would have had a reasonable doubt

respecting guilt.”).

        In this case, following the Commonwealth’s closing argument, the trial

court instructed the jury about the Commonwealth’s burden of proof and the

evidence to be considered, and stated that “[t]he speeches of counsel are

not part of the evidence, and you should not consider them as such.” N.T.,

4/7/2014, at 149-152, 162-63.         Jurors are presumed to follow the trial

court’s instructions. Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.

2014).

        Furthermore, the evidence presented at trial relevant to Appellant’s

guilt   was   overwhelming.      At   Appellant’s   relatively   short   trial,   the

Commonwealth presented, inter alia, the testimony of Officer Dunne. Officer

Dunne testified that during the traffic stop, Appellant disobeyed his orders to

keep his hands on the steering wheel and motioned towards his waistband,



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requiring Officer Dunne to restrain Appellant and conduct a pat down for his

safety. N.T., 4/7/2014, 57-61. As a result of this pat down, Officer Dunne

recovered a firearm.3 Id. at 61. Officer Merrigan, who assisted in the stop

of Appellant’s vehicle, conducted a search of Appellant incident to arrest and

recovered PCP from Appellant’s person.       Id. at 98.    This testimony went

essentially uncontradicted. 4   In light of the foregoing, because Appellant

failed to show that he was prejudiced, his claim fails.5 See Burno 94 A.3d

at 977-78 (holding Burno failed to demonstrate prejudice when the record

reflected that: (1) the jury was instructed that it should not consider the

3
    firearm and ballistics expert testified that the semi-automatic gun
    A
recovered from Appellant was an operable firearm. Id. at 42-43.
Additionally, a certificate of non-licensure, stating that Appellant did not
have a valid license to carry a firearm on the date of the traffic stop, was
entered into evidence. Id. at 117.
4
  At trial Appellant questioned the credibility of Officer Dunne and Officer
Merrigan. See N.T., 4/7/2014, at 25-26, 130-32. Based on the jury’s
verdict, it is clear that the jury credited the officers’ version of events, which
is well within its discretion to do. Commonwealth v. Britton, 134 A.3d 83,
86 (Pa. Super. 2016) (“The trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to believe all,
part or none of the evidence.”) (citation omitted).
5 Lastly, we note that in addition to the aforementioned issue, Appellant
argues that the remarks made by the Commonwealth during its closing
argument violated his due process and other constitutional rights and that
the PCRA court erred when it failed to grant Appellant a new trial on this
basis. See Appellant’s Brief at 10-18.             Appellant’s claim that the
Commonwealth engaged in prosecutorial misconduct could have been raised
in his direct appeal; therefore, this issue is waived. See Commonwealth v.
Bryant, 855 A.2d 726, 735 (Pa. 2004) (“Appellant’s claims [] are waived to
the extent they allege trial court error or prosecutorial misconduct since such
claims could have been raised on direct appeal.”).




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attorneys’ arguments as evidence; and (2) the evidence of Burno’s guilt was

“overwhelming”).    See also Commonwealth v. Daniels, 963 A.2d 409,

419 (Pa. 2009) (“A failure to satisfy any prong of the ineffectiveness test

requires rejection of the claim of ineffectiveness.”).

      Since    Appellant    has   failed    to      meet   his   burden   regarding   his

ineffectiveness claim, we find the PCRA court did not err by dismissing his

petition without a hearing. See Commonwealth v. Jones, 942 A.2d 903,

906 (Pa. Super. 2008) (holding that petitioner was not entitled to an

evidentiary hearing when he failed to meet his burden in proving his trial

counsel was ineffective).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 3/12/19




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