Commonwealth v. Clancy

• Decision Date: 21 August 2018
• Docket Number: No. 42 WAP 2017,42 WAP 2017
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Javonn Eric CLANCY, Appellant
• Court: Pennsylvania Supreme Court

192 A.3d 44

COMMONWEALTH of Pennsylvania, Appellee
v.
Javonn Eric CLANCY, Appellant

No. 42 WAP 2017

Supreme Court of Pennsylvania.

Submitted: March 5, 2018
Decided: August 21, 2018

Frank Nicholas Martocci, Esq., for Appellant.

Leo Bouwers, Esq., Angela May Reed Strathman, Esq., Beaver County District Attorney's Office, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT

In this discretionary appeal, Javonn Eric Clancy challenges the dismissal of the petition he filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 -46. In that petition, Clancy alleged that his trial counsel was ineffective for failing to object to purportedly inflammatory statements made by the prosecutor during closing arguments. Specifically, the prosecutor characterized Clancy as a "dangerous man" and a "cold blooded killer." We hold that, within the context of the instant case, the prosecutor's statements constituted permissible oratorical flair. Accordingly, we conclude that Clancy's claim of ineffectiveness of counsel lacks arguable merit. We affirm the order of the Superior Court.

On July 30, 2012, Clancy was on the 300 block of Linmar Terrace in Aliquippa, Beaver County, talking with several individuals, including Dyquane Norman. Marquay Lavar Rigins approached Norman to discuss a past robbery. Clancy inserted himself between the two men, insulted Rigins, and punched Rigins in the face. Rigins responded by knocking Clancy to the ground and hitting him. The men grappled on the ground for a few moments until Norman intervened. Once Clancy and Rigins were separated, Clancy drew a handgun and fired multiple shots at Rigins. As Rigins attempted to flee, Clancy shot him three times in the back. One bullet pierced Rigins' aorta, ultimately causing his death.

Clancy dropped the gun and fled Linmar Terrace. He ran into a nearby wooded area and emerged into a yard on Green Street. Susan Ours, the owner of the property, asked Clancy whether he needed help. When Ours informed Clancy that he was on private property, Clancy apologized and began walking down Green Street. Clancy then stopped at a convenience store, purchased a bottle of water, and went to a friend's house to charge his cell phone. Soon after, Clancy fled to Pittsburgh, in adjoining Allegheny County. Clancy evaded authorities until he turned himself in on September 4, 2012.

The Commonwealth charged Clancy with criminal homicide, 18 Pa.C.S. § 2501, and carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). At trial, Clancy argued to the jury that his actions did not

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amount to first-degree murder because he had been moved by passion as a result of the fight with Rigins. Clancy testified that, "my anger took over me ... I just pulled the gun out ... I heard one bang, and then after that I just heard the click." Notes of Testimony ("N.T."), Trial Vol. III, 4/11/2013, at 125. Clancy further testified that he neither aimed the gun at Rigins nor intended to shoot him.

The Commonwealth presented several witnesses, including Norman, who testified that Clancy verbally engaged and struck Rigins first with little provocation, and that Clancy fired multiple shots directly at Rigins as the latter fled. The prosecutor displayed and asked questions about a twelve-second surveillance video that partially depicted the events at issue. Although the fight and the shooting occurred outside of the camera's frame, the video appeared to show Clancy's hand pulling something out of his pants before bystanders in the area began to run away. The video also depicted one bystander running alongside Rigins as he fled.

During his closing argument, the prosecutor disputed Clancy's claim that he indiscriminately shot his gun in anger, pointing out that Clancy shot Rigins three times in the back without hitting any of the bystanders. The prosecutor further argued:

[T]he fact that residents of Linmar, given how the snitch[-]free mentality runs rampant ... the fact that they came forward speaks volumes, because even in their eyes, this was a cowardly act of murder.

* * *

[Clancy is] trying to win points with you. [His testimony] was so insincere, and if you have had an opportunity to watch him throughout this trial, he doesn't sit over here on an island.... Cold, collected, no emotion from him. He's a killer, a killer.

* * *

He's so cool and collected, he stops at a store and gets water after having just emptied his firearm, three shots in the back of an unarmed man. Not only does he drink water. He starts making phone calls.... He goes to a friend's house, a girl. He gives us her name, and he remembers charging his phone, calm, cool, collected ....

* * *

This was a cowardly killing even by Linmar standards.

* * *

He is the lone shooter. He did a cowardly killing. He did a first[-]degree murder.

* * *

That's a dangerous man. That is a cold blooded killer.

N.T., Trial Vol. IV, 4/12/2013, at 35, 37, 42, 45, 47-48. Clancy's trial counsel, Steven Valsamidis, raised no objections.

The jury found Clancy guilty of first-degree murder, 18 Pa.C.S. § 2502(a), and carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). On May 29, 2013, the trial court sentenced Clancy to life imprisonment without the possibility of parole for first-degree murder. The trial court also sentenced Clancy to a concurrent term of two to seven years' imprisonment for carrying a firearm without a license. Clancy filed post-sentence motions challenging the weight and sufficiency of the evidence, which motions the trial court denied on August 28, 2013.

On August 29, 2014, the Superior Court affirmed Clancy's judgment of sentence. See Commonwealth v. Clancy , 1594 WDA 2013, 2014 WL 10803153 (Pa. Super. Aug. 29, 2014). On March 9, 2015, this Court denied Clancy's petition for allowance of appeal. See Commonwealth v. Clancy , 631 Pa. 723, 112 A.3d 649 (2015) (per curiam ).

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On August 13, 2015, Clancy timely filed a pro se PCRA petition. The PCRA court appointed counsel, who, on November 17, 2015, filed an amended PCRA petition. Therein, Clancy argued, inter alia , that his prior counsel was ineffective for failing to object to the above-quoted portions of the prosecutor's closing argument. Clancy asserted that the prosecutor's statements amounted to an impermissible expression of personal belief, that they disparaged a defense "strategy," and that they inflamed the jury.

At a February 26, 2016 evidentiary hearing, Clancy's PCRA counsel called Attorney Valsamidis to testify. Attorney Valsamidis testified that he did not believe that the prosecutor's closing argument was objectionable, and that he believed that the prosecutor's argument would be perceived negatively by the jury. N.T., PCRA Hearing, 2/26/2016, at 56-57. With regard to the "cold blooded killer" remark, Attorney Valsamidis explained:

Given the testimony that had come in, that was the theory of the case that Javonn Clancy had killed Mr. Riggins [sic ]. It's closing argument. There's a certain amount of argument permissible. It did catch my attention because I was wondering if he was going to elaborate on it. If he would have said something to the effect of, "He needs to be punished," he couldn't say that without putting his own opinion into it.

If he would have said, referencing the safety of the jurors at home, the community, something along those lines in conjunction with that statement, that would be playing upon emotion or putting his own opinion in it. But just simply stating that he's a killer, that's the theory of their case. He was permitted to argue it.

* * *

The other reason I didn't object is ... I thought during his closing argument he came across as combative or dislikable [sic ] and almost desperate at times, because the, some of the things that you just referenced weren't supported by the facts, and I felt that he was hanging onto calling him names, referencing how he's a killer.

Id. Attorney Valsamidis further testified that he thought the "dangerous man" remark was permissible argument:

I perceived it as the case. His theory was that he shot somebody, and that's dangerous. I didn't take that as him playing upon the emotion of the jurors.

Id. at 59. The PCRA court denied Clancy's PCRA petition. On July 15, 2016, Clancy filed a timely notice of appeal. On August 5, 2016, Clancy complied with the PCRA court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).¹

In its Pa.R.A.P. 1925(a) opinion, the PCRA court first noted that, to be eligible

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for relief under the PCRA, Clancy had to plead and prove, by a preponderance of the evidence, that the ineffectiveness of his trial counsel "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." PCRA Ct. Op. at 5 (citing 42 Pa.C.S. § 9543(a)(2) ). After setting forth the elements of an ineffective assistance of counsel claim,² the PCRA court explained that courts must consider a prosecutor's statements in the context of the evidence and the reasonable inferences drawn fairly from that evidence. Id. at 7 (citing Commonwealth v. Chamberlain , 612 Pa. 107, 30 A.3d 381...