J. S17011/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JAMES WILLIAM MOORE,                        :
                                            :
                          Appellant         :     No. 606 WDA 2014

                  Appeal from the PCRA Order March 19, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0014425-2004

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 18, 2015

        Appellant, James William Moore, appeals from the order entered in the

Allegheny County Court of Common Pleas denying his timely first Post

Conviction Relief Act1 (“PCRA”) petition after two evidentiary hearings.

Appellant contends trial counsel was ineffective for not objecting to the

prosecutor’s comment during closing argument            that   the   victim was

unarmed. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion. See PCRA Ct. Op., 9/24/14, at 1-2. Appellant timely filed a court-

ordered Pa.R.A.P. 1925(b) statement, and he raises the following issues:


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9545.
J. S17011/15


            Whether Appellant’s prior trial and appellate counsel were
            ineffective, 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.

            Whether there was a violation of the Constitution of this
            Commonwealth or the Constitution of the United States
            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.

Id. at 5.

      We summarize his arguments for both issues. Appellant contends his

trial counsel was ineffective by not objecting to the prosecutor’s comment

during closing arguments that the record established the victim was

unarmed. Id. at 6. Appellant states the prosecutor knew that a knife was

found on the victim. He contends appellate counsel was ineffective by not

raising trial counsel’s alleged ineffectiveness on direct appeal.          We hold

Appellant is due no relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

            [C]ounsel is presumed to have provided effective
            representation unless the PCRA petitioner pleads and
            proves that: (1) the underlying claim is of arguable merit;
            (2) counsel had no reasonable basis for his or her conduct;
            and (3) Appellant was prejudiced by counsel’s action or
            omission. To demonstrate prejudice, an appellant must
            prove that a reasonable probability of acquittal existed but
            for the action or omission of trial counsel. A claim of


                                       -2-
J. S17011/15


          ineffective assistance of counsel will fail if the petitioner
          does not meet any of the three prongs. Further, a PCRA
          petitioner must exhibit a concerted effort to develop his
          ineffectiveness claim and may not rely on boilerplate
          allegations of ineffectiveness.

Commonwealth         v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).

        After careful review of the record, the parties’ briefs, and the well-

reasoned decision by the Honorable David R. Cashman, we affirm on the

basis of the PCRA court’s opinion.         See PCRA Ct. Op. at 3-6 (holding

Appellant never knew victim had pocketknife and never invoked self-defense

when arrested; trial counsel testified he would not have objected to avoid

highlighting that fact; trial counsel’s failure to object was not ultimately

prejudicial; and court instructed jury that prosecutor’s argument is not

evidence).    We reiterate that counsel’s failure to object did not establish

prejudice.    Indeed, Appellant testified he never saw the victim with a

weapon and an independent eyewitness corroborated Appellant’s testimony.

N.T. Trial, 5/3/06 to 5/4/06, at 89, 248. Accordingly, having discerned no

basis for relief, we affirm the order below.     See Abu-Jamal, 941 A.2d at

1267.

        Order affirmed.




                                         -3-
J. S17011/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2015




                          -4-
                                                                      Circulated 05/01/2015 01:19 PM




     IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL'I'H OF PENNSYLVANIA
                              COUNTY OF ALLEGHENY


     COMMONWEALTH OF PENNSYLVANIA        CRIMINAL DIVISION
                                         CC No. 200414425
                                         Superior Court    o~;p~~2014
                vs.                                     D" Crtrri.   Utjvi'   I
                                                       /i/r:;ho/8;i D1v;~;o'lI._
     JAMES WILLIAM MOORE                                      er,Y .•• tt A~ n
                                         OPINION                     Cot.J17t/;~s

                                         JUDGE DAVID R. CASHMAN
                                         308 Courthouse.
                                         436 Grant Street
                                         Pittsburgh, PA· 15219
                                         (412) 350-3905
a
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            !--. -~- ..      r·.,
           '-..'.::.
                                         Copies Sent To:
                       - J




                                         Michael Streily, Esquire (Interoffice)
                                         Office of the District Attorney
                                         4th Floor, Courthouse
                                         Pittsburgh, PA 15219

                                        Christy P. Foreman, Esquire
                                                (US Mail)
                                        Fifth Floor, 220 Grant Street
                                        Pittsburgh, PA 15219-2027
                                                                      Circulated 05/01/2015 01:19 PM




  IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF PENNSYLVANIA
                           COUNTY OF ALLEGHENY
                             CRIMINAL DIVISION



 COMMONWEALTH OF PENNSYLVANIA                   ) CC No. 200414425
          vs.                                   ) Superior Court No. 606WDA2014
 JAMES WILLIAM MOORE                            )

                                       OPINION

        The appellant, James Moore, (hereinafter referred to as "Moore"), has

 appealed from the Order of Court denying him post-conviction relief. Moore was

 convicted of third degree murder following a jury trial before this Court on May 8,

 2006. He was sentenced to a term of imprisonment of fifteen to thirty years, to be

 followed by a ten-year period of probation. A direct appeal was filed to the

 Pennsylvania Superior Court, post-sentence motions were filed nunc pro tune, and

the Superior Court remanded so that post-trial motions could be litigated.

       A hearing on post-trial motions occurred on December 10, 2007. A timely

notice of appeal was later filed on March 30, 2008, in which Moore challenged the

prosecutor's argument to the jury as well as counsel's effectiveness in failing to

object to the prosecutor's argument. On January 10, 2009, a panel of the Superior

Court affirmed the judgment of sentence. On November 18, 2010, the Pennsylvania

Supreme Court denied Moore's petition for allowance of appeal. On March 10, 2(

a prose petition under the Post-Conviction Relief Act was filed. Attorney Christ

Foreman was appointed to represent Moore. On November 9, 2011, Ms. Foremai

filed an amended petition for post-conviction relief on Moore's behalf. The

Commonwealth filed an answer to that petition on November 23, 2011. Two




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  evidentiary hearings were held with respect to the claim for post-conviction relief.

 The first hearing occurred on November 20, 2012, while the second hearing occurred

 on March 12, 2014. On March 19, 2014, an Order was entered denying post-

 conviction relief. This timely appeal followed.

        A concise statement of matters complained of on appeal was filed on Moore's

 behalf. Moore essentially claims that the Court erred in failing to grant him post-

 conviction relief based on counsel's ineffectiveness in failing to object to a different

 portion of the prosecutor's closing argument than was previously raised on the

 direct appeal. Specifically, Moore contends that the prosecutor committed

 misconduct and trial counsel was ineffective in failing to object to the prosecutor's

 argument that the victim in his case "was completely unarmed" at the time that

Moore shot him in the front and in the back. Moore's claim relates to a pre-trial

motion in limine where the defense sought to offer evidence that a knife was found

on the victim at the time of his death. A hearing was held pre-trial on the issue of

the admissibility of this knife. The Court ruled at that time that such evidence was

irrelevant and inadmissible. There was no evidence to suggest that Moore had ever

seen a knife on the victim, or that the victim had ever threatened him with a knife.

Rather, the evidence established that a confrontation took place on the street

between the victim and Moore. Moore had walked to the victim's car when an

argument ensued. The victim punched Moore one time. Shortly after that punch,

Moore pulled a gun and shot the victim twice - once in the front and once in the

back. Moore never mentioned at the time of his arrest that the victim had




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 threatened him with a knife. It was only fortuitous that Moore learned of this and

 sought to introduce this fact into evidence. The Court properly ruled that such

 evidence was inadmissible.

        The defense zealously argued for a self-defense justification outcome. The

 prosecution argued in response, "Mr. Rothman [trial counsel] did not mention in his

 closing to you that Mr. Meyers was completely unarmed. The evidence showed he

 had no weapons on him, nothing in the car. Mr. Moore even admitted he didn't see

 any weapons on him." Trial Transcript, Volume II at 78-80. No objection was

 lodged by the defense. Trial counsel testified at the post-conviction relief hearing

that he likely would not have objected for fear of highlighting this particular fact.

       While we find that the prosecutor's argument was less than artful, that

argument was accurate as a matter of the evidence presented to the jury. While the

prosecutor surely knew that a knife was found on the victim, it is clear that the

knife had no bearing in the outcome of the victim's death. Moore did not even know

that the victim had a knife, as it never came into play during their encounter.

       Comments by a prosecutor generally do not constitute _reversible error unless

they have the unavoidable effect of prejudicing the jury, forming in their minds a

fixed bias or hostility toward the defendant so that they could not weigh the

evidence objectively and render a true and correct verdict. Commonwealth v.

D'Ambro, 456 A.2d 140, 144 (Pa. 1983). Prosecutorial misconduct does not occur

where comments are based on the evidence or proper inferences therefrom or were

only oratorical flare. Commonwealth v. Marshall, 633 A.2d 1100, 1110 (Pa.




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  1993). "Comments deemed to be prejudicial cannot be viewed in isolation but,

 rather, must be considered in the context in which they were made."

 Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006).

        The law presumes that juries follow Court's instructions as to the applicable

 law. Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992). In the charge to

 the jury, the Court advised the jury as follows:

              Now, Mr. Rothman and Mr, Zur have been permitted to make opening
       statements and closing arguments. That's their job. They are advocates,
       they represent certain parties in this particular proceeding.

             You should carefully consider what they have said to you. You should
       examine all the facts in light of their analysis and use that in helping you
       decided what those facts are.

              However, anything that they have said to you in their opening
       statements, their closing arguments or even their questions is not evidence.
       The only evidence that you will use to determine what the facts are is the
       testimony of the witnesses that have come forward and. the exhibits that will
       be given to you.

             If anything that they have said to you in those statements conflicts
       with what you remember the testimony to be, disregard what they have said.

             When I say that, again, it is because their statements are not evidence.
      You will be the ultimate factfinders, and it will be your individual and
      collective memories that control the disposition of this.particular case.

      Trial Transcript (VOL II), pages 106-107.


      As Moore's claim has no merit, trial counsel cannot be found to be ineffective

under these circumstances. Commonwealth v. Spatz, 896 A.2d 1191, 1211 (Pa.

2006). Likewise, Moore cannot show that he was prejudiced by the prosecutor's

argument or by his counsel's failure to object to that argument. There was no




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evidence whatsoever of record to suggest that the victim had a weapon that came

into play in this matter. Moore, himself, admitted to seeing no weapon, and

witnesses to this event likewise saw no weapon in the hands of the victim. While a

knife was later found in the victim's pocket, it obviously had no bearing on the facts

of this case, was irrelevant and properly excluded.

      For the within reasons, Moore was properly denied post-conviction relief.

                          BY THE COURT:



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DATED:   ¥dfi _,            (>)11 o2d(;_j




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