Com. v. Sampson

• Citation: 900 A.2d 887
• Court: Pennsylvania Superior Court
• Decision Date: 23 May 2006
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kareem SAMPSON, Appellant.

Page 887

900 A.2d 887

COMMONWEALTH of Pennsylvania, Appellee v. Kareem SAMPSON, Appellant.

Superior Court of Pennsylvania.

Submitted November 7, 2005.

Filed May 23, 2006.

Jules Epstein, Philadelphia, for the Com., appellee.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for appellant.

BEFORE: FORD ELLIOTT, LALLY-GREEN, and JOHNSON, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Kareem Sampson, appeals from the order denying his PCRA¹ petition on November 4, 2004, without a hearing. We affirm.

¶ 2 The facts and procedural history of the case are as follows:

In March of 1999, [Appellant] telephoned Natise Johnson to question her about her brother's relationship with [A]ppellant's former fiancée, Crystal Mack. [1] Unhappy with Natise Johnson's responses, [Appellant] went to Natise Johnson's home located at 5428 Lansdowne Avenue, in the City and County of Philadelphia. Natise Johnson had known [A]ppellant since middle school, so she allowed [him] into the living room where they began to talk. During their conversation, Natise Johnson informed [Appellant] that "Crystal was a big girl and could do whatever she wants." Frustrated with the situation, [A]ppellant put his gun to Natise Johnson's face and ordered her to tell him the whereabouts of her brother and Mack. She refused. [A]ppellant fired four times in Natise Johnson's head. Natise Johnson was found dead on the kitchen floor by her father later that day when he returned from work. At the time of her murder, Natise Johnson was nine (9) months pregnant. Her unborn child died twenty minutes after the shooting from a lack of oxygen.

[1] Crystal Mack and the [A]ppellant had dated for years and shared a child. She had left the [A]ppellant's home and started dating Natise Johnson's brother.

Following a jury trial, [Appellant] was found guilty of the first degree murder of Natise Johnson and first degree murder of her unborn child. After [the] penalty phase, the jury could not reach a unanimous decision on the issue of penalty. Appellant was sentenced to two concurrent terms of life in prison without parole.

At trial, [A]ppellant was represented by Ronald Joseph, Esquire. Subsequent to trial Mitchell Strutin, Esquire, was appointed for direct appeal. On August 13, 2002, the Superior Court affirmed the judgment of sentence. Petition for Allowance of Appeal to the Supreme Court was filed and subsequently denied on April 14, 2003.

On September 2, 2003, [A]ppellant filed a pro se Post Conviction Relief Act (PCRA) petition. After the Commonwealth's response and [A]ppellant's supplemental response, the PCRA [c]ourt issued a [Rule] 907 Notice on September 30, 2004 deeming the issues raised in the PCRA petition meritless. This appeal flows from the denial of [A]ppellant's PCRA petition.

PCRA Court Opinion, 6/22/05, at 1-2.

¶ 3 Appellant raises the following issues on appeal:

I. [Whether] Appellant was denied the effective assistance of counsel, a fair trial, and Due Process of Law, when trial counsel failed to object to the prosecutor's closing argument which ... injected issues of passion and otherwise irrelevant material, including the contention that a verdict of third-degree murder would be tantamount to an acquittal and giving the firearm back to [A]ppellant?

II. [Whether] Appellant was denied effective assistance of counsel, a fair trial, and Due Process of Law, standing alone and cumulatively, when trial counsel failed to object to the trial court's ... instructions on transferred intent, character evidence, and evidence of consciousness of guilt?

III. [Whether] Appellant was denied the effective assistance of direct appeal counsel and Due Process of Law, when direct appeal counsel failed to identify the record-based claims of error contained in Petitioner's counseled Amended Petition?

Appellant's Brief at 5.²

¶ 4 The first issue we must address is whether Appellant was denied the effective assistance of counsel when trial counsel failed to object to the prosecutor's closing argument. Appellant asserts that the prosecution's closing argument injected issues of passion and otherwise irrelevant material. Specifically, the closing argument included the contention that a verdict of third-degree murder would be tantamount to an acquittal and giving the firearm back to Appellant. See N.T., 3/20/00, at 51.

¶ 5 This appeal is from the dismissal of Appellant's PCRA petition. Our "standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and free of legal error." Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super.2003). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Id.

¶ 6 In order to prevail on a claim of ineffective assistance of counsel, an appellant must show three things: "that the underlying claim has arguable merit, that counsel's performance was not reasonably designed to effectuate the defendant's interests, and that counsel's unreasonable performance prejudiced the defendant." Commonwealth v. Lynch, 820 A.2d 728, 733 (Pa.Super.2003). "A defendant is required to show actual prejudice; that is, that counsel's ineffectiveness was of such magnitude that it `could have reasonably had an adverse effect on the outcome of the proceedings.'" Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1307 (1994), citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 977 (1987).

¶ 7 In his first claim on appeal, Appellant asserts that trial counsel was ineffective because he failed to object to statements made by the prosecutor during closing arguments. The following rules regarding prosecutorial misconduct in closing arguments are well settled.

In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Generally, comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be 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.

Commonwealth v. Correa, 444 Pa.Super. 621, 664 A.2d 607, 609 (1995), citing Commonwealth v. Jubilee, 403 Pa.Super. 589, 589 A.2d 1112, 1114 (1991). "This Court has established that the conduct of the prosecutor at closing argument is circumscribed by the concern for the right of a defendant to a fair and impartial trial." Id. In defining what constitutes impermissible conduct during closing argument, Pennsylvania follows Section 5.8 of the American Bar Association (ABA) Standards. Id. Section 5.8 provides:

Argument to the jury.

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.

Id.

¶ 8 Turning to the facts of this case, we first consider the prosecutor's statements in the context in which they were made. In his summation, the prosecutor responded to Appellant's defense that he lacked the intent to kill by stating:

We got the imprint of the gun on her cheek. And he wants to say there's not specific intent to kill? The imprint of the gun on her cheek, a gunshot into her brain. Then we have a gunshot into her nose a couple inches away, and a gunshot behind her ear a couple inches away. And we all want to go home and be happy with third degree murder. He didn't intend to kill. You know what, that's no more justice, third degree murder in this case, than if you give him this gun back and let him walk out of the courtroom. You might as well do that. Because third-degree murder would be equivalent to that. You know what he did, inches away.

N.T., 3/20/00, at 51.

¶ 9 When the prosecutor's comments are considered in light of Appellant's defense that he lacked specific intent to kill, it is evident that the prosecutor did not use this argument in a manner calculated to inflame the passions or prejudices of the jury. The record reflects that the prosecutor's statement was not, as Appellant asserts, "a plebiscite on the issue of guns in the community." See Appellant's Brief at 13. The prosecutor simply restated the evidence that had been presented regarding the shooting in order to show that killing the victim was Appellant's intent at the time of the act. He also used rhetorical flair to argue that ignoring such clear evidence of intent would be tantamount to ignoring clear evidence of the killing itself. Prosecutors are entitled to use rhetorical flair to make their point. See Commonwealth v. Ogrod, 576 Pa. 412, 839 A.2d 294, 340 (2002).

¶ 10 By concluding that the prosecutor's closing argument was not improper, it follows that we cannot conclude that trial counsel was ineffective for failing to object. Thus, Appellant's claim of ineffective assistance fails because the underlying claim lacks arguable merit. Furthermore, even if the underlying claim had been meritorious, and assuming that counsel had no reasonable basis for not objecting, the record does not indicate a reasonable probability that the outcome of the proceedings would have been different if counse...