Com. v. Carter

• Citation: 855 A.2d 885
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. John CARTER, Appellant.
• Decision Date: 23 July 2004
• Court: Superior Court of Pennsylvania

855 A.2d 885

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
John CARTER, Appellant

Superior Court of Pennsylvania.

Submitted April 19, 2004.

Filed July 23, 2004.

855 A.2d 887

William C. Kaczynski, Pittsburgh, for appellant

Sally K. Kaye, Pittsburgh, for Commonwealth, appellee.

Before: JOYCE, ORIE MELVIN and McCAFFERY, JJ.

OPINION BY JOYCE, J.:

¶ 1 John Carter, Appellant, appeals from the order dated May 7, 2003, which denied his petition brought pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546. We affirm. The relevant facts and procedural history have been previously summarized by this Court as follows.

On October 30, 1995, Tommy Smith was walking in a public parking lot when Appellant and his co-defendant, Milo Davis, approached Mr. Smith, ordered him to the ground at gunpoint, and took his money. A few minutes later, Appellant and Davis approached George Kirkland and Albert Alston and demanded money. Mr. Kirkland began backing up and Davis fired a fatal shot at him; Mr. Alston was able to escape.

Appellant and his co-defendant were captured and charged with various offenses in connection with the two incidents. Appellant filed a pre-trial omnibus motion seeking transfer to juvenile court, the suppression of statements Appellant made to the police, severance of his trial from Davis' trial, the exclusion of his prior criminal convictions and the suppression of Albert Alston's pre-trial identification of Appellant from a photographic array on the basis that it was unduly suggestive. The motion was denied, and Appellant proceeded to a jury trial, following which he was convicted of the crimes discussed supra.

Appellant was sentenced to, inter alia, life in prison on November 26, 1996, and a post-sentence motion to modify his sentence was filed on December 5, 1996. On March 21, 1997, the trial court granted the motion to modify [in part and it was denied by operation of law in part.] ... Appellant filed a timely appeal from all of his convictions on April 21, 1997.

855 A.2d 888

Commonwealth v. Carter, 752 A.2d 418 (Pa.Super.2000) (unpublished memorandum)

¶ 2 On January 12, 2000, this Court affirmed Appellant's judgment of sentence. A petition for allowance of appeal was filed with the Supreme Court and denied on June 20, 2001. Commonwealth v. Carter, 566 Pa. 635, 781 A.2d 138 (Pa.2001). Appellant filed a pro se PCRA petition on June 12, 2002 and counsel was appointed. An amended petition was filed on Appellant's behalf. Thereafter, on May 7, 2003, the PCRA court dismissed Appellant's petition without a hearing. This appeal followed, which raises the following issues for our consideration.

I. Whether the trial court erred in refusing to grant post-conviction relief or an evidentiary hearing on [Appellant's] ineffectiveness claims, where prior counsel failed to preserve all objections to a prosecution closing argument which impermissibly disparaged and ridiculed defense counsel and strategy, accusing counsel of "muddying the water," "playing dirty", (sic) "throwing an ink cloud," and attempting to "prejudice the jury," and which described the [Appellant] as having a "diminished heart and soul."

And, whether this argument also unfairly diverted the jury from its proper role of evaluating the evidence under the reasonable doubt standard, encouraged the jury to focus on defense counsel's and defendant's character, and unfairly prejudiced and undercut [Appellant's] constitutional rights to due process, [a] fair trial, the presumption of innocence, and proof beyond reasonable doubt.

II. Whether the trial court erred in refusing to grant post-conviction relief or to find the ineffectiveness of prior counsel, where prior counsel failed to assert and preserve a meritorious challenge to the voluntariness of [Appellant's] juvenile confession, and where said counsel unilaterally abandoned this issue in spite of [Appellant's] strenuous objections.

III. Whether the trial court erred in refusing to grant post-conviction relief or to find the ineffectiveness of prior counsel, where counsel failed to recognize, assert and preserve a constitutional challenge to the applicability, propriety and legality of a mandatory life sentence without parole imposed upon a juvenile convicted of felony-murder, where other jurisdictions have so ruled.

IV. Whether the trial court erred in refusing to grant post-conviction relief where [Appellant] was unconstitutionally denied his right to a jury culled from a panel which included juvenile citizens, and where prior counsel failed to assert and preserve his constitutional contentions.

V. Whether the trial court erred in refusing to grant post-conviction relief where prior appellate counsel failed to identify, raise or preserve any of the foregoing meritorious claims on direct appeal, and where prior counsel improperly abandoned and relinquished these claims over [Appellant's] strenuous objections.

Appellant's Brief, at 5 (full capitalization omitted).¹

855 A.2d 889

¶ 3 Appellant's first issue alleges that the prosecuting attorney engaged in misconduct during the closing argument. During closing arguments, the prosecutor argued to the jury that the defense was attempting to "muddy the water" by throwing an octopus-type ink cloud over the facts. Specifically, the prosecutor stated

So how does this wealth of information that we have and we are now talking we have (sic) eyewitness identification, fingerprints and statements, how is this degree of evidence overcome? I am reminded of a story that the writer, Victor Hugo, tells us about an octopus who really has no feet to attack its enemies like a bird, it has no claws like a lion and it has no teeth like an alligator. What the octopus does when it attacks is it releases a big pouch filled with ink into the water, and this ink is released and it clouds up the water. And the octopus swims away while the water is still muddied up, and his enemies cannot see him.

Why I tell you that is you have been given a big ink pouch in this case. I want to take that apart for you right now. What's the first element of this ink pouch? First of all, you are told that the eyewitnesses are not worthy of your belief.

N.T., 8/01/97 at 832-33. The ink bag allusion was referred to again in relation to defense counsels' attack of the identification testimony, fingerprints, police conduct, and the integrity of the evidence. Id. at 835, 841, 843, 847, 781 A.2d 138. Appellant contends that in doing so, the prosecutor "impermissibly and unfairly disparaged and ridiculed defense counsel and strategy, diverted the jury from its proper role of evaluating the evidence under the reasonable doubt standard, encouraged the jury to focus on defense counsel's character, and unfairly undercut [Appellant's] constitutional rights to due process, the presumption of innocence, fair trial, and proof beyond a reasonable doubt." Appellant's brief, at 15.

A prosecutor is generally allowed to vigorously present and argue his case, as long as the comments are supported by evidence and contain inferences which are reasonably derived from that evidence. It is well-settled law that attorneys' statements or questions at trial are not evidence. The focus of this Court's consideration of claims regarding prosecutorial misconduct is to determine whether the defendant was deprived of a fair trial and not whether the defendant was deprived of a perfect trial. Thus, prosecutorial remarks constitute reversible error only where the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.

Commonwealth v. Kemp, 562 Pa. 154, 753 A.2d 1278 (2000) (citations omitted). We will evaluate Appellant's contentions with this standard in mind.

¶ 4 Our review convinces us that the prosecutor's...