Opinion
J-S29021-17 No. 1451 EDA 2016
07-20-2017
COMMONWEALTH OF PENNSYLVANIA v. SHAMSIDDIN Q. SALLAM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006240-2011 CP-51-CR-0006241-2011 BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E. MEMORANDUM BY SOLANO, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Shamsiddin Sallam, appeals the order of the Court of Common Pleas of Philadelphia County, entered April 14, 2016, that denied without a hearing his first petition filed under the Post Conviction Relief Act ("PCRA"). We affirm the order on the basis of the PCRA court's opinion.
In its opinion, the PCRA court fully and correctly set forth the relevant facts and procedural history of this case. See PCRA Ct. Op., 4/14/16, at 1-4. Appellant was arrested and charged on April 12, 2010, with murder and related offenses for the fatal shootings of Gregory Jarvis and Harry Williams. On October 11, 2012, a jury found Appellant guilty of two counts of first- degree murder, as well as robbery, carrying a firearm without a license, carrying a firearm on public streets in Philadelphia, and possession of an instrument of crime. On December 6, 2012, Appellant was sentenced to imprisonment for a term of life followed by ten to twenty years. Appellant filed a direct appeal on December 13, 2012. This Court affirmed the judgment of sentence on October 10, 2013.
18 Pa.C.S. §§ 2502(a), 3701, 6106, 6108, and 907(a), respectively.
The trial court imposed a mandatory sentence of life imprisonment without parole for each count of murder of the first degree, and shorter terms of imprisonment for the lesser charges, to be run concurrently. Appellant was also sentenced to a consecutive term of ten to twenty years' imprisonment on the charge of robbery.
Commonwealth v. Sallam , 87 A.3d 881 (Pa. Super. 2013) (unpublished memorandum), appeal denied , 87 A.3d 319 (Pa., Mar. 12, 2014).
On February 10, 2015, Appellant filed a timely pro se PCRA petition. Counsel appointed for Appellant filed an amended petition on January 4, 2016. That petition challenged (1) the effectiveness of trial counsel for failing to request a mistrial after the trial court sustained his objection to a comment made by the prosecutor during opening argument at his jury trial, and (2) the effectiveness of appellate counsel for waiving a claim regarding another comment made by the prosecutor during opening argument. On March 15, 2016, the PCRA court issued a notice of its intent to dismiss Appellant's petition without a hearing, pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed Appellant's petition on April 14, 2016. This appeal followed.
In light of the amended petition, the PCRA court properly declined to address the claims in Appellant's pro se PCRA petition. See PCRA Ct. Op. at 5 n.2 (citing Commonwealth v. Jette , 23 A.3d 1032, 1044 (Pa. 2011) (PCRA counsel is presumed to raise all meritorious issues within an amended petition)).
On Appellant's direct appeal, this Court had held that trial counsel failed to preserve this issue for appellate review by failing to request a mistrial.
On the direct appeal, we had held both that trial counsel had waived this issue for failing to request a mistrial, and that appellate counsel had further waived the issue by making only a bald assertion in his brief that the prosecutor's comment was improper.
Counsel did not respond to the Rule 907 notice.
Appellant raises the following issue for our review:
Did the Honorable PCRA Court err when it denied [Appellant]'s Amended PCRA Petition without conducting a Hearing and all where [Appellant] properly pled and would have been able to prove that he was entitled to PCRA relief?Appellant's Brief at 3.
In reviewing an appeal from the denial of PCRA relief, "this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error." Commonwealth v. Andrews , 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
Appellant contends that trial counsel was ineffective in failing to move for a mistrial after the prosecutor engaged in prosecutorial misconduct during his opening statement, and that appellate counsel was ineffective for further waiving the claim on appeal. Appellant's Brief at 10. Specifically, Appellant asserts that he is entitled to a new trial because of two statements made by the prosecutor: first, the prosecutor's statement that Appellant had written a letter to Jarvis during a prior incarceration, as it informed the jury that Appellant had a criminal history; and second, the prosecutor's statement to the jury that a surveillance video he would introduce during his case-in-chief was "going to scream at [them]," even though they would not be able to see the faces of the individuals in the video. See id. at 10-11. Appellant construes the prosecutor's comment about the video as an impermissible voucher for a piece of evidence. See id. Appellant asserts that because the statements were made at the onset of trial, the jurors "could have been very impressed, and all in the wrong way" by the prosecutor's statements. Id.
With regard to PCRA claims alleging ineffective assistance of counsel, this Court has held:
Counsel is presumed to have been effective. To overcome this presumption, a PCRA petitioner must plead and prove that: (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.Andrews , 158 A.3d at 1263 (quotation marks and citation omitted). "Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012). Furthermore, "[a]n evidentiary hearing is not mandatory for all claims raised in a PCRA petition." Commonwealth v. Clark , 961 A.2d 80, 94 (Pa. 2008), cert. denied , 558 U.S. 1082 (2009). A PCRA petitioner is required to show that he is entitled to an evidentiary hearing due to the presence of genuine issues of material fact on a meritorious issue. Commonwealth v. Rivera , 108 A.3d 779, 788 n.4 (Pa. 2014).
A mistrial is only granted when a defendant has been deprived of his right to a fair trial. See Commonwealth v. Chamberlain , 30 A.3d 381, 420 (Pa. 2011), cert. denied , 132 S.Ct. 2377 (2012). In the context of remarks made by counsel,
[A] prosecutor has reasonable latitude during his closing argument to advocate his case, respond to arguments of opposing counsel, and fairly present the Commonwealth's version of the evidence to the jury. The court must evaluate a prosecutor's challenged statement in the context in which it was made. Finally, not every intemperate or improper remark mandates the granting 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.Commonwealth v. Hanible , 30 A.3d 426, 465 (Pa. 2011) (quotation marks, citations, and brackets omitted), cert. denied , 133 S.Ct. 835 (2013). "[P]rosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair." Commonwealth v. Judy , 978 A.2d 1015, 1020 (Pa. Super. 2009).
Furthermore, "[m]ere passing references to criminal activity will not require reversal unless the record indicates that prejudice resulted from the reference." Commonwealth v. Stafford , 749 A.2d 489, 496 (Pa. Super. 2000) (internal quotation marks and citation omitted), appeal denied , 795 A.2d 975 (Pa. 2000). "A mistrial is not necessary where cautionary instructions are adequate to overcome prejudice." Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Barbara A. McDermott, we conclude that there is no merit to the issue Appellant has raised on appeal. The PCRA court opinion properly disposed of the question presented. See PCRA Ct. Op. at 7-8 (finding (1) that the prosecutor's passing reference to Appellant's prior incarceration was insufficient to prejudice the jury against Appellant, and that any prejudice caused by the comment was cured by the trial court's immediately responsive instruction to the jury; and (2) that cell phone records placed Appellant at the location of the surveillance footage, that the prosecutor's remark that the surveillance video would "scream" was "nothing more than a rhetorical flourish, insufficient to warrant a mistrial," and that the jury was instructed that the opening remarks were not to be considered as evidence). Accordingly, we affirm on the basis of the PCRA court's opinion. The parties are instructed to attach the opinion of the PCRA court in any filings referencing this Court's decision.
We also note that evidence of Appellant's prior incarceration was introduced at trial, including through Appellant's own testimony. See N.T., 10/10/12, at 196-97, 206. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/20/2017
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