J-S74037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

BRIAN JAMES-PAUL HINES

                            Appellant                  No. 981 EDA 2016


                Appeal from the PCRA Order February 18, 2016
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-CR-0000843-2009


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                           FILED OCTOBER 31, 2016

        Appellant, Brian James-Paul Hines, appeals from the February 18,

2016 order, denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On November 9, 2009, following a confrontation regarding a stolen

heater, Appellant shot Gary Hoffner in the face.1 Appellant turned himself in

to the Pennsylvania State Police. He was advised of his Miranda2 rights and

gave two statements to state troopers.         In his first statement, Appellant

claimed that Mr. Hoffner drew a gun first, and during the ensuing struggle,

the gun went off. Several hours later, after further questioning, Appellant

____________________________________________


1
  See PCRA Court Opinion (PCO), 5/5/16, at 2-4, for a more detailed factual
history of this case.
2
  Miranda v. Arizona, 86 S. Ct. 1602 (1966).


*
    Former Justice specially assigned to the Superior Court.
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gave a second statement, in which he admitted he had brought the gun to

the scene and shot Mr. Hoffner.

       Prior to trial, Appellant filed a motion to suppress the second

statement, alleging that it was the product of a coercive interrogation.

Appellant did not testify at the suppression hearing.   After testimony and

argument, the suppression court denied Appellant’s motion.

       A jury trial commenced July 18, 2011, and concluded on July 20,

2011. The jury found Appellant not guilty of attempted murder 3 but did find

him guilty of the remaining charges: aggravated assault, firearms not to be

carried without a license, simple assault, recklessly endangering another

person, and terroristic threats. 4

       On October 17, 2011, and by amended order dated October 19, 2011,

the trial court sentenced Appellant to 72 to 144 months of incarceration for

aggravated assault and a consecutive 12 to 24 months of incarceration for

firearms not to be carried without a license, followed by four years of

probation.5 Appellant retained new counsel for post-sentence proceedings.6
____________________________________________


3
  18 Pa.C.S. § 901(a).
4
  18 Pa.C.S. § 2702; 18 Pa.C.S. § 6106; 18 Pa.C.S. § 2701; 18 Pa.C.S. §
2705; 18 Pa.C.S. § 2706(a)(1), respectively. The trial court dismissed with
prejudice the charge of terroristic threats.
5
   For purposes of sentencing, the sentences for simple assault and REAP
merged with the sentence for aggravated assault.
6
    The procedural history following Appellant’s sentence is somewhat
complicated.    Post-sentence counsel did not perfect Appellant’s direct
appeal.    Subsequently, Appellant pro se filed a PCRA petition raising
allegations of ineffective assistance of counsel and governmental
(Footnote Continued Next Page)


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      Appellant timely filed a direct appeal and court-ordered Pa.R.A.P.

1925(b) statement, and the trial court issued a responsive opinion.

      On July 14, 2014, this Court affirmed Appellant’s judgment of sentence

and dismissed his claims relating to ineffective assistance of counsel without

prejudice, as no colloquy had been conducted to determine whether

Appellant had waived his right to PCRA review.       See Commonwealth v.

Hines, 105 A.3d 789 (Pa. Super. 2014) (unpublished memorandum).

Appellant did not petition the Pennsylvania Supreme Court for allowance of

appeal.

      On January 17, 2015, Appellant pro se filed a timely PCRA petition.7

Appointed counsel filed an amended petition on July 30, 2015.         Appellant

contended that trial counsel, Stephen Vlossak, was ineffective for failing to

request a mistrial during the testimony of Trooper Patrick Finn; in advising

Appellant not to testify at the suppression hearing and at trial; for failing to

object and request a mistrial during the prosecutor’s closing argument; and

for failing to pursue Appellant’s claim that his initials on his statement were



                       _______________________
(Footnote Continued)

interference. The PCRA court held evidentiary hearings on December 18,
2012, and February 21, 2013. Following the evidentiary hearings, the PCRA
court reinstated Appellant’s direct appeal rights nunc pro tunc. See PCRA
Court Memorandum Opinion, 3/1/13, at 1-6.
7
  See Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super. 2013)
(noting that when a petitioner’s direct appeal rights are reinstated nunc pro
tunc in his first PCRA petition, a subsequent PCRA petition will be considered
a first petition for timeliness purposes.)



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forged, a claim he later abandoned on appeal.       Amended PCRA Petition at

¶ 18.

        The PCRA court held an evidentiary hearing on October 15, 2015.

Appellant testified that his second statement to the police was the result of

coercive interrogation tactics and not voluntarily given, and that although he

wished to testify at the suppression hearing and at trial, Mr. Vlossak advised

him against it. See Notes of Testimony (N. T.), PCRA evidentiary hearing,

10/15/15, at 10-20, 24-26. Appellant admitted counsel informed him of his

right to testify but claimed that he did not prepare and would not have

known what to do on the stand. Id. at 26.

        Mr. Vlossak, on the other hand, stated that Appellant did not express

a desire to testify at the suppression hearing, and he advised Appellant not

to testify. See N. T., at 45. He recommended Appellant not testify at trial

after Appellant gave a “new” version of the shooting. Id. at 52. Mr. Vlossak

was concerned that Appellant’s differing accounts of the events would render

his   testimony   unbelievable.     Id.    at   52-54.   He   discussed   this

recommendation again at the close of the Commonwealth’s case with

Appellant and his family. Id. at 52-54.

        With regard to Appellant’s other issues, Mr. Vlossak made numerous

objections to Trooper Finn’s statements and assumed that, as a result, the

jury would understand that the testimony was improper. See N. T., at 56.

Thus, he did not feel a mistrial was warranted. Id. at 60-61. Mr. Vlossak

suggested that he does not interrupt another attorney’s closing argument

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out of respect. See N. T., at 62-63. Rather, he waits until his opponent has

finished before asking for a specific instruction from the judge, which he did

in the instant matter. Id. at 63.

      On February 18, 2016, the trial court issued a memorandum opinion

denying Appellant’s petition. Appellant timely appealed and filed a court-

ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises five issues on appeal, all relating to ineffective

assistance of counsel:

      1. Did the trial court err in not finding that trial counsel was
      ineffective for advising the defendant not to testify at the pre-
      trial suppression hearing?

      2. Did the trial court err in not finding that trial counsel was
      ineffective for advising defendant not to testify at trial?

      3. Did the trial court err in not finding that trial counsel was . . .
      ineffective for failing to repeatedly object and seek[] a mistrial
      when the investigating state trooper rendered his personal
      opinion that the defendant had lied?

      4. Did the trial court err in not finding that trial counsel was
      ineffective for not objecting to, seeking an immediate curative
      instruction and not seeking a mistrial during the prosecutor’s
      closing argument in which he repeatedly expressed his personal
      opinion that defendant lied while at the same time bolstering the
      testimony of prosecution witnesses?

      5. Did the trial court err in not finding that the cumulative effect
      of trial counsel’s errors prejudiced defendant to such an extent
      as to deprive him of a fair trial?

Appellant’s Brief at 3-4.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

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record and free of legal error. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007).     We afford the court’s findings deference unless

there is no support for them in the certified record.     Commonwealth v.

Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Appellant raises a number of issues relating to ineffective assistance of

counsel. Ultimately, they are meritless.

      We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence that: (1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).




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      In his first issue, Appellant contends that counsel was ineffective for

advising Appellant not to testify at the pre-trial suppression hearing.

According to Appellant, had he testified, he would have “explained the

coercive nature” of the interviews. Additionally, he claims the decision not

to testify had no reasonable basis, as the scope of any direct examination

could have been limited to the interrogation interview. Appellant’s Brief at

11   (citing   Pa.R.Crim.P.   581(H)   (“The   defendant   may    testify   at   [a

suppression] hearing, and if the defendant does testify, the defendant does

not thereby waive the right to remain silent during trial.”)).        Appellant’s

claim is without merit.

      A decision to testify on one’s own behalf is, ultimately,

      to be made by the accused after full consultation with counsel.
      In order to support a claim that counsel was ineffective for
      failing to call the appellant to the stand, the appellant must
      demonstrate either that (1) counsel interfered with his client’s
      freedom to testify, or (2) counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision by
      the client not to testify on his own behalf.

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa. Super. 2003) (quoting

Commonwealth v. Thomas, 783 A.2d 328, 334 (Pa. Super. 2001)).

Counsel is not ineffective where the decision not to call the defendant was

reasonable.    Id. at 711; see also Commonwealth v. Haynes, 577 A.2d

564, 569 (Pa. Super. 1990) (noting that counsel does not act unreasonably

when he advises a defendant not to testify at a suppression hearing to

strategically avoid revealing the contents of testimony in advance of trial).


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      Counsel and Appellant testified at evidentiary hearings during the

pendency of both Appellant’s first and second PCRAs and the PCRA court,

examining both evidentiary hearings, found credible trial counsel’s testimony

regarding his concern that Appellant would be subject to cross-examination

by the prosecution, which would enable them to obtain additional evidence

prior to trial, and that he discussed this concern with Appellant.          See

Brown, 48 A.3d at 1277 (noting that the findings of the PCRA court are

treated with deference if supported by the record). Appellant himself admits

that counsel advised him of his right to testify.         Thus, Appellant cannot

demonstrate that trial counsel interfered with his freedom to testify, nor can

he demonstrate that the advice given was so unreasonable as to render him

unable to make a knowing and intelligent decision regarding his testimony.

See Haynes, 577 A.2d at 569.

      Moreover, although Appellant claims that the direct examination could

have been limited to the interrogation, his point is unconvincing.        While

direct examination may be limited, the right of cross-examination “extends

beyond   the   subjects   testified   to    on   direct   examination.”     See

Commonwealth v. Travaglia, 661 A.2d 352, 360 (Pa. 1995) (citing

Commonwealth v. Dobrolenski, 334 A.2d 268, 273 (Pa. 1975) (“The

privilege against self-incrimination does not entirely shield a criminal

defendant from cross-examination.”))




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        Next, Appellant claims trial counsel was ineffective for advising

Appellant not to testify at trial.   According to Appellant, he could have

explained “his side” of the story, namely that the second statement was not

made voluntarily.    Appellant’s Brief at 16-18.   Appellant’s claim is without

merit.

        As noted above, Appellant must demonstrate either that counsel

interfered with his freedom to testify, or that counsel gave specific advice so

unreasonable that his decision was not knowing and intelligent; however,

counsel is not ineffective where the decision not to call Appellant to the

stand was reasonable. See Todd, 820 A.2d at 711.

        In the instant case, the PCRA court credited counsel’s testimony that

Appellant’s differing accounts of the shooting was problematic and, if

subjected to cross-examination, would undercut counsel’s strategy of relying

upon Appellant’s first statement to the police.      After counsel made that

recommendation, Appellant did not request to testify at trial again.       We

defer to the PCRA court’s credibility determinations. See Brown, 48 A.3d at

1277.     Counsel’s express concern that Appellant’s testimony would be

impeached by the contents of his second statement was reasonable.

Accordingly, counsel was not ineffective. See Todd, 820 A.2d at 711.

        Appellant next claims that trial counsel was ineffective for not

objecting to and failing to request a mistrial after Trooper Patrick Finn




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testified that Appellant had lied in his first statement, 8 which usurped the

jury’s fact-finding function. We disagree, as the statement did not implicate

the trooper’s personal belief in Appellant’s guilt, and to the extent that it

may be interpreted in that light, it was not prejudicial.

       A mistrial is to be granted “only when an incident is of such a nature

that its unavoidable effect is to deprive Appellant of a fair trial.”

Commonwealth v. Johnson, 815 A.2d 563, 576 (Pa. 2002). Additionally,

we have consistently held that a defendant is “entitled to a fair trial, not a

perfect one.” Commonwealth v. English, 699 A.2d 710, 715 (Pa. 1997).

Further, this Court has previously held that a police officer’s remarks, while

improper, do not necessarily have the unavoidable effect of prejudicing a

jury when made in the course of explaining the officer’s investigatory

process. See generally Commonwealth v. Mancini, 490 A.2d 1377, 1389

(Pa. Super. 1985). The situation is similar to our analysis when a prosecutor

makes improper comments during a closing argument.                 See, e.g.,

Commonwealth v. Chmiel, 30 A.3d 1111, 1146-47 (Pa. 2011) (citation

omitted) (noting that comments by a prosecutor constitute reversible error
____________________________________________


8
  Trooper Finn made statements such as: “you can hear in the interview he
didn’t know because he was making it up;” “he was thinking of what to say;”
“I was questioning him about his inconsistency to see if he could tell the
truth, which he eventually did;” “he was sticking to his initial story, which I
knew was not the truth;” “I am not going to keep questioning him on the
same thing and document his same non-truths;” “eventually he told the
truth” and “he eventually changed his story dramatically.” See Notes of
Testimony (N. T. Trial), 7/18/11—7/20/11, at 122-23, 137, 141.



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only where their unavoidable effect is to prejudice the jury such that they

could not weigh the evidence objectively).

      The record reflects that trial counsel did object four times to this

testimony, and the trial court sustained three of those objections. See N. T.

Trial at 122-23, 141.       Appellant identifies three other instances in which

Trooper Finn commented on Appellant’s veracity and counsel did not object.

Id. at 137, 141. However, prior to questioning Appellant, Trooper Finn had

spoken with Mr. Hoffner and heard his version of events.                Id. at 112.

Trooper Finn continued to question Appellant based on inconsistencies with

Appellant’s story, his statement, his girlfriend’s statement, and the victim’s

and witness’s statements, all of which were eventually presented to the jury.

Id. at 140.

      Thus, we find that the testimony to which Appellant objects was

intended to explain Trooper Finn’s process of investigation and the reasons

he continued to question Appellant following the first statement. Further, to

the   extent     that   Trooper   Finn’s    remarks   constitute   improper   opinion

testimony, they were not prejudicial.               The Commonwealth presented

testimony, including that of Mr. Hoffner and his stepson, to show that other

witnesses had already spoken to police officers prior to their interviewing

Appellant and that the versions of events given by both parties differed

significantly.    Thus, the comments would not have had the unavoidable




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effect of prejudicing the jury, as Trooper Finn’s remarks did not constitute

the sole evidence Appellant’s testimony may not have been credible.

      Finally, the trial court issued an extensive jury charge informing the

jury that the credibility of witnesses was within their sole purview.    See

N. T. Trial at 335, 336, 342-43.         We presume the jury follows the

instructions of the court. Commonwealth v. Cash, 137 A.3d 1262, 1280

(Pa. 2016). Thus, Appellant has not shown how these remarks would have

had an unavoidable effect on the jury, and counsel was not ineffective for

failing to request a mistrial.    See Commonwealth v. Manley, 985 A.2d

256, 266-67 (Pa. Super. 2009) (noting that the trial court may cure taint by

issuing curative instructions).

      Next, Appellant claims counsel was ineffective for his failure to object

to the prosecutor’s closing argument; his failure to seek an immediate

curative instruction following the prosecutor’s closing argument; and his

failure to seek a mistrial following the prosecutor’s closing argument.

According to Appellant, the prosecutor’s remarks were improper. Appellant

explains that the prosecutor’s argument was not “brief, passing, references

to the prosecutor’s opinion regarding the witnesses’ truthfulness, but rather,

blatant bolstering of Commonwealth witnesses and attacks on the credibility

of [Appellant] and his girlfriend.” Appellant’s Brief at 23-28.

      We note the following:

      The Commonwealth is entitled to comment during closing
      arguments on matters that might otherwise be objectionable or

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     even outright misconduct, where such comments constitute fair
     response to matters raised by the defense, or where they are
     merely responsive to actual evidence admitted during a trial.
     See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243,
     249 (2000) (plurality opinion) (“A remark by a prosecutor,
     otherwise improper, may be appropriate if it is in fair response to
     the argument and comment of defense counsel.”) (citing United
     States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99
     L.Ed.2d 23 (1998)); Commonwealth v. Marrero, 546 Pa. 596,
     687 A.2d 1102, 1109 (1996).        Furthermore, prosecutorial
     misconduct will not be found where comments were based on
     the evidence or proper inferences therefrom or were only
     oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668
     A.2d 491, 514 (1995).

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012); see also

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009). A trial

court may remove taint through curative instructions.       See Manley, 985

A.2d at 266-67.

     We have reviewed all of the remarks highlighted by Appellant, and we

conclude that there was no prosecutorial misconduct during the closing

argument.     Trial counsel attacked Mr. Hoffner’s credibility, including his

conviction for burglary, alleged unauthorized entry into Appellant’s van, and

inconsistent testimony between Mr. Hoffner and another Commonwealth

witness.   Additionally, trial counsel referred to Appellant’s first and second

statement, and he argued that the evidence supported the first version of

events, while the second statement was coerced.

     Thus, the prosecutor’s statements, implying that Appellant and other

defense witnesses may not have been credible, were “based on the evidence

or proper inferences therefrom.” Jones, 668 A.2d at 514. Evidence was in

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fact introduced to show that Appellant had given police contradictory

statements, relied upon arguing that one statement was more reliable than

the other, and argued repeatedly that the victim’s testimony was not

credible.     The prosecutor fairly responded to trial counsel’s arguments,

based on the evidence and reasonable inferences drawn therefrom, and did

not present his own opinion as to Appellant’s guilt or innocence.              See

Culver, 51 A.3d at 876.

         Appellant contends that if trial counsel had objected and immediately

moved for a mistrial, this mistrial would have been granted. We disagree.

First, while Appellant’s trial counsel did not immediately object to any of

these statements, nor did he request a mistrial at sidebar; the trial court did

make a charge to the jury that it was the jurors’ responsibility to determine

the truthfulness of witnesses.      See N. T. Trial, 306-07.       We have not

identified    any   clear   prosecutorial   error   in   the   portions   of   the

Commonwealth’s closing argument cited by Appellant; these statements

were either unobjectionable, oratorical flair, or fair response to arguments

made by the defense. See Culver, 51 A.3d at 876. Accordingly, the PCRA

court’s dismissal of this claim was supported by the record and free of legal

error.

         Finally, Appellant claims that the cumulative effect of these errors

deprived him of a fair trial.     Appellant’s Brief at 31.     The Pennsylvania

Supreme Court has stated that:


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      It is well-settled that no number of failed ineffectiveness claims
      may collectively warrant relief if they fail to do so individually.
      Accordingly, where ineffectiveness claims are rejected for lack of
      arguable merit, there is no basis for an accumulation claim.
      When the failure of the individual claims is grounded in lack of
      prejudice, however, then the cumulative prejudice from those
      individual claims may be properly assessed.

Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012) (citations and

quotation marks omitted).      Because we do not base our decision on the

prejudice prong of the ineffective assistance of counsel test, Appellant’s

accumulation claim fails.      See Busanet, 54 A.3d at 75; see also

Commonwealth v. Rollins, 738 A.2d 435, 452 (Pa. 1999) (finding that

because none of Appellant’s claims entitled him to relief, his accumulation

claim likewise failed because “no quantity of meritless issues can aggregate

to form a denial of due process”) (citation omitted).

      Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s petition following an evidentiary hearing.     Appellant’s

claims are without merit, and he is entitled to no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2016



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