J-S36022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

GABRIEL RIZZARIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2347 EDA 2020

Appeal from the PCRA Order Entered November 30, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1301042-2006

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED MARCH 07, 2022

Appellant, Gabriel Rizzario, appeals pro se and nunc pro tunc from the 

order entered in the Philadelphia County Court of Common Pleas, which denied 

his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

This Court has previously set forth the relevant facts and procedural 

history of this case as follows. 

Robert Bullock, the surviving victim, testified that on June 

30, 2005 at 11:55 P.M. he walked to the corner of Auburn 

and Boudinot to meet his friend Tattoo, Eddie Almodovar. 

Mr. Almodovar was riding a bike and was engaged in an 

argument with his girlfriend Yolanda when Mr. Bullock 

approached the corner. There were approximately ten to 

fifteen people out on the street. There were a number of 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
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people sitting and standing around 2823 Boudinot including 

murder victim, Colleak Cottom, an 18 year old black male.

The witness further testified that he saw Appellant whom he 

knows as Shorty come from between two parked cars as Mr. 

Almodovar rode down the Street. Appellant was a friend of 

Mr. Almodovar. Mr. Bullock had only met Appellant once or 

twice on other occasions. Mr. Bullock turned and began to 

walk down the street. He then remembered being shot in 

the back of the head and went blank. Before the shooting, 

the only person behind him was Appellant. The next thing 

Mr. Bullock remembered was sitting in a car bench seat 

beside 2823 Boudinot. Mr. Bullock walked to Kensington 

and Summerset where police were flagged down and he was 

taken to Temple Hospital. Mr. Bullock suffered five gunshot 

wounds, four to his face including a bullet lodged under his 

scalp and a shot in the arm which caused nerve damage.

He was treated and released from Temple Hospital in one 

day. The bullet remains lodged in his head. Mr. Bullock has 

nerve damage in his arm which continues.

Mr. Almodovar testified that after arguing with his exgirlfriend Yolanda he rode up and down the street and then 

stopped at the corner of Boudinot and Auburn to speak with 

his friend Mr. Bullock. While on his bike next to Mr. Bullock 

he heard two shots, turned and saw Appellant whom he has 

known for at least two months with a silver revolver in his 

hand shoot Mr. Bullock and then repeatedly shoot into the 

crowd. He saw Appellant shoot Mr. Cottom. The ambulance 

came quickly and took Mr. Cottom to the hospital. Mr. 

Almodovar testified that he did not know where Mr. Bullock 

had gone. Mr. Almodovar further acknowledged that at the 

preliminary hearing he testified there were two men who 

shot guns. Mr. Almodovar also testified at the preliminary 

hearing that he did not see Appellant shoot. At trial Mr. 

Almodovar explained that he did so because of threats made 

to him in prison.

Commonwealth v. Rizzario, No. 1098 EDA 2008, unpublished 

memorandum at 1-2 (Pa.Super. filed July 21, 2009) (citation omitted), appeal 

denied, 606 Pa. 648, 992 A.2d 888 (2010).
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On September 12, 2007, a jury convicted Appellant of third-degree 

murder, aggravated assault, possession of a firearm without a license, and 

possessing instruments of crime. On December 5, 2007, the court sentenced 

Appellant to an aggregate term of 21 to 42 years of imprisonment. This Court 

affirmed the judgment of sentence on July 21, 2009, and our Supreme Court 

denied Appellant’s petition for allowance of appeal on April 7, 2010. See id.

On August 10, 2010, Appellant filed a timely first PCRA petition pro se. 

The court appointed counsel, who filed a Turner/Finley2letter and motion to 

withdraw as counsel on October 5, 2011. The court subsequently issued 

notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 

907, and Appellant filed a pro se response to the notice. The PCRA court 

denied PCRA relief on November 30, 2011, and let counsel withdraw. 

Following a subsequent PCRA petition seeking reinstatement of his 

appeal rights nunc pro tunc, on August 24, 2020, the PCRA court granted 

Appellant leave to appeal nunc pro tunc from the November 30, 2011 order 

denying his first PCRA petition. On September 4, 2020, Appellant timely filed 

a pro se notice of appeal nunc pro tunc. On December 28, 2020, the court 

ordered Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b). 

Following the grant of an extension of time, Appellant filed his concise 

statement on January 26, 2021. Appellant filed a supplemental concise 

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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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statement on May 18, 2021.

Appellant raises five issues for our review: 

Whether Robert Bullock and Eddie Almodovar’s testimonies 

at [the] preliminary hearing [were] hearsay and insufficient 

to establish a prima facie case against Appellant.

Whether trial counsel was ineffective for failure to object to 

[the] prosecutor’s statement that Appellant changed 

appearance in support of consciousness of guilt. 

Whether trial counsel was ineffective for failure to object to 

[the] prosecutor’s closing argument on presumption of 

innocence. 

Whether trial counsel was ineffective for failure to object to 

[the] prosecutor’s inflammatory statement describing 

Appellant as judge, jury and executioner when the evidence 

doesn’t support such statement. 

Whether trial counsel was ineffective for failure to object to 

photos of [the] autopsy of Mr. Colleak Cottom and injuries 

to Mr. Robert Bullock as inflammatory. 

(Appellant’s Brief at 3) (unnecessary capitalization omitted).

This Court has explained:

Our standard of review of the denial of a PCRA petition is 

limited to examining whether the evidence of record 

supports the court’s determination and whether its decision 

is free of legal error. This Court grants great deference to 

the factual findings of the PCRA court if the record contains 

any support for those findings. [W]e review the court’s legal 

conclusions de novo. 

Commonwealth v. Washington, ___ A.3d ___, 2022 PA Super 18, *5 (filed 

Feb. 1, 2022) (en banc) (citations and quotation marks omitted).

In his first issue, Appellant argues that the Commonwealth did not 

establish a prima facie case at his preliminary hearing. Appellant asserts that 
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the Commonwealth relied solely on hearsay evidence to establish the 

elements of the offenses for which he was charged, which was insufficient to 

establish a prima facie case under Commonwealth v. McClelland, ___ Pa. 

___, 233 A.3d 717 (2020). Appellant concludes that he is entitled to relief on 

appeal. We disagree.

Preliminarily, we observe the general rule that “any issue not raised in 

a Rule 1925(b) statement will be deemed waived for appellate review.” 

Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.Super. 2020), appeal 

denied, ___ Pa. ___, 250 A.3d 468 (2021) (citing Commonwealth v. Lord, 

553 Pa. 415, 719 A.2d 306 (1998)). See also Pa.R.A.P. 1925(b)(4)(vii) 

(stating that issues not included in concise statement and/or not raised in 

accordance with rule are waived).

Here, Appellant did not include his first issue on appeal in either his 

initial or supplemental concise statements. (See Rule 1925(b) Statement, 

filed 1/26/21, and Rule 1925(b) Statement, filed 5/18/21). Accordingly, his 

first issue is waived for appellate review.3 See Bonnett, supra. 

In his remaining four issues, Appellant alleges ineffective assistance of 

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3 Moreover, even if Appellant had not waived his claim, we note that he would 

not be eligible for relief under McClelland because any alleged defect at the 

preliminary hearing was cured at Appellant’s jury trial. See Commonwealth 

v. Rivera, 255 A.3d 497, 503 (Pa.Super. 2021), appeal granted on other 

grounds, 494 MAL 2021, 2022 WL 536442 (Pa. Feb. 23, 2022) (stating: “the 

Supreme Court did not intend to extend McClelland’s holding to cases such as 

this one, where the complained-of defect in the preliminary hearing is 

subsequently cured at trial”).
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counsel. “Pennsylvania law presumes counsel has rendered effective 

assistance.” Commonwealth v. Davis, 262 A.3d 589, 595 (Pa.Super. 2021) 

(citation omitted). When asserting a claim of ineffective assistance of counsel, 

the petitioner is required to demonstrate: (1) the underlying claim has 

arguable merit; (2) counsel had no reasonable strategic basis for his action or 

inaction; and (3) but for the errors and omissions of counsel, there is a 

reasonable probability that the outcome of the proceedings would have been 

different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).

Under the traditional ineffectiveness test, “[t]he threshold 

inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and 

which forms the basis for the assertion of ineffectiveness is 

of arguable merit. . . .” Commonwealth v. Pierce, 537 

Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or 

meritless claim.” Commonwealth v. Poplawski, 852 A.2d 

323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable 

basis’ test to determine whether counsel’s chosen 

course was designed to effectuate his client’s 

interests. If we conclude that the particular course 

chosen by counsel had some reasonable basis, our 

inquiry ceases and counsel’s assistance is deemed 

effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations 

omitted).

Prejudice is established when [an appellant] 

demonstrates that counsel’s chosen course of action 

had an adverse effect on the outcome of the 

proceedings. The [appellant] must show that there is 

a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability 
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is a probability sufficient to undermine confidence in 

the outcome. . . .

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 

872, 883 (2002) (some internal citations and quotation 

marks omitted).

Davis, supra at 596.

In his second, third, and fourth issues on appeal, Appellant alleges trial 

counsel was ineffective for failing to object to certain portions of the 

prosecutor’s closing argument. Appellant argues that trial counsel should 

have objected to the prosecutor’s statement that Appellant’s change of

appearance demonstrated consciousness of guilt. Specifically, Appellant 

claims that there was no evidence that his new facial tattoo and new haircut 

were an attempt to deceive the court or the jury. Additionally, Appellant 

claims trial counsel was ineffective for failing to object to the prosecution’s 

description of the presumption of innocence. Appellant also maintains trial 

counsel should have objected to the prosecutor’s statement that Appellant 

was “the judge, the jury and the executioner.” (Appellant’s Brief at 10) (citing 

N.T. Trial, 9/10/07, at 47). He argues that the prosecutor’s statement was 

not a fair deduction or inference based on the evidence presented at trial, 

which Appellant claims did not establish that he was the shooter. Appellant 

concludes trial counsel’s failure to object in these regards constitutes 

ineffectiveness and warrants a new trial. We disagree.

It is well settled that: 
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The prosecutor is allowed to vigorously argue [her] case so 

long as [her] comments are supported by the evidence or 

constitute legitimate inferences arising from that evidence. 

In considering a claim of prosecutorial misconduct, our 

inquiry is centered on whether the defendant was deprived 

of a fair trial, not deprived of a perfect one. Thus, a 

prosecutor’s remarks do not constitute reversible error 

unless their unavoidable effect . . . [was] 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. Further, the allegedly 

improper remarks must be viewed in the context of the 

closing argument as a whole.

Commonwealth v. Smith, 604 Pa. 126, 162–63, 985 A.2d 886, 907 (2009) 

(citation omitted).

Here, during closing argument, the prosecutor stated: 

Consciousness of guilt, what do we mean? Well, we mean 

that the defendant who has been described here over and 

over again in these statements as having facial hair, what 

did he look like; that, suddenly, he comes into court before 

this jury, and the facial hair which he is described repeatedly 

as having, described by Robert Bullock, described by Eddie 

Almodovar, described by Detective Marano, suddenly, he 

doesn’t have that facial hair anymore. You can also consider 

that in between the time of meeting with Detective Marano 

and coming before you, that the defendant has gotten 

himself a new teardrop tattoo underneath his eye. You can 

consider that he changed his appearance.

(N.T. Trial, 9/10/07, at 73-74).

Noting the prosecution’s leeway to address facts and draw reasonable 

inferences, the PCRA court found that the prosecutor was “free to point to her 

preferred inference drawn” from Detective Marano’s testimony about the 

contrast in Appellant’s appearance in his arrest photo and his appearance in 

the courtroom. (PCRA Court Opinion, filed May 6, 2021, at 6). Further, upon 
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review of the prosecutor’s closing argument in its entirety, we cannot say that 

the effect of the challenged portion of the closing argument was so prejudicial 

as to form in the jury’s minds a “fixed bias and hostility toward the defendant 

so that they could not weigh the evidence objectively and render a true 

verdict.” See Smith, supra. 

With respect to the presumption of innocence, the prosecutor explained: 

Now you hear about and the judge will instruct you on this 

idea of the presumption of innocence. You heard it at the 

beginning of trial, you will hear it at the jury instructions at 

the end. When we begin a criminal trial and we say that the 

defendant is presumed innocent, it doesn’t erase what he 

has done. It doesn’t mean that he didn’t commit this killing 

and the attempted killing of another person. It means that 

we presume that he didn’t, and that the Commonwealth will 

come forward and present its evidence to you, and in this 

case I have done just that.

(N.T. Trial, 9/10/07, at 45-46).

In evaluating this ineffectiveness claim, the PCRA court reasoned:

Counsel would have no reasonable basis to object to this 

language. It is an accurate statement of the law. The 

prosecutor is correct that the presumption of innocence is 

not a declaration of innocence. It is an affirmation that the 

defendant is under no obligation to prove his innocence. It 

is the articulation of the settled legal principle that it is solely 

the burden of the Commonwealth to produce evidence of 

guilt beyond a reasonable doubt.

(PCRA Court Opinion at 5) (citation omitted). We agree with the PCRA court’s 

analysis. Appellant has failed to show how the prosecutor’s statement 

constituted an inaccurate statement of the law that would have warranted an 

objection from trial counsel. 
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With respect to the prosecutor’s comment about Appellant being the 

“judge, jury and executioner,” the prosecutor stated: “One question in this 

case may be why do you care? It is a nighttime shooting on a drug corner. 

Care, ladies and gentlemen, because an 18-year-old boy died. Care because 

the defendant went out there and he was the judge, the jury, and the 

executioner.” (N.T. Trial, 9/10/07, at 74). 

The PCRA court explained that the statement “is vigorous argument with 

a rhetorical flourish. Such language is allowed.” (PCRA Court Opinion at 6). 

We agree with the court’s analysis. See Smith, supra. See also 

Commonwealth v. Smallwood, No. 538 MDA 2019 (Pa.Super. Feb. 6, 2020) 

(unpublished memorandum),

4 appeal denied, ___ Pa. ___, 249 A.3d 252 

(2021) (holding that prosecutor’s statement that defendant was “judge, jury, 

and executioner” was permissible oratorical flair). 

Under these circumstances, Appellant cannot demonstrate that trial 

counsel was ineffective for failing to object to the challenged portions of the 

prosecutor’s closing argument. See Davis, supra. Consequently, Appellant’s 

second, third, and fourth issues on appeal merit no relief. 

In his final issue, Appellant claims that trial counsel rendered ineffective 

assistance when he failed to object to the prosecutor introducing into evidence 

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4 See Pa.R.A.P. 126(b) (explaining that we may rely on unpublished 

memorandum from this Court filed after May 1, 2019, for persuasive value).
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and displaying for the jury autopsy photos of the victim’s corpse.5 He claims 

that counsel should have objected to the photos because there was no basis 

for them and they inflamed the emotions of the jurors. Appellant concludes 

counsel’s error warrants a new trial. We disagree.

The admissibility of photographic evidence is within the sound discretion 

of the trial court and involves a two-step process. “First a [trial] court must 

determine whether the photograph is inflammatory.” Commonwealth v. 

Haney, 634 Pa. 690, 712, 131 A.3d 24, 37 (2015) (citation omitted). “This 

Court has interpreted inflammatory to mean the photo is so gruesome it would 

tend to cloud the jury’s objective assessment of the guilt or innocence of the 

defendant.” Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011)

(citation omitted). If the photograph is not inflammatory, “it may be admitted 

if it has relevance and can assist the jury’s understanding of the facts.” 

Haney, supra. “If the photograph is inflammatory, the trial court must decide 

whether or not the photographs are of such essential evidentiary value that 

their need clearly outweighs the likelihood of inflaming the minds and passions 

of the jurors.” Id.

Here, the PCRA court found that this claim lacked merit, explaining:

The autopsy photos were introduced through the testimony 

of Dr. Edwin Lieberman, the medical examiner. They 

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5 Although Appellant’s statement of this question includes a claim that counsel 

also failed to object to photos of the injuries to Mr. Robert Bullock, Appellant

abandoned this allegation in the argument portion of his brief. (See 

Appellant’s Brief at 3, 11).
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demonstrated the nature and extent of Cottom’s fatal 

wound. The autopsy photos were relevant to the jury’s 

understanding of the circumstances and cause of Cottom’s 

death. They demonstrated the medical examiner’s 

explanation of the victim’s position relative to and distance 

from the shooter, the trajectory of the bullet, and the 

presence of a wound on his knee. 

. . . [T]he relevance of the evidence is apparent. There is 

no suggestion on the record that these exhibits were 

duplicative of any other evidence or that they were used for 

any purpose other than to educate the jury about the course 

of events on the night of the shooting. An objection from 

defense would have been unavailing.

(PCRA Court Opinion at 8-9).

Although the PCRA court did not specifically state whether the 

photographs were inflammatory, it proceeded as if the photographs were not 

inflammatory and judged whether they were relevant and assisted the jury’s 

understanding of the facts. See id. See also Haney, supra. We decline to 

reassess the inflammatory nature of the photos.6 We agree with the PCRA 

court’s conclusion that the photographs were both relevant and would assist 

the jury’s understanding of the cause and circumstances of the victim’s death. 

Because Appellant has not proven that his underlying claim has arguable 

merit, he is not entitled to relief. See Davis, supra. Accordingly, we affirm 

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6 Notably, Appellant did not ensure that the photographs at issue were 

included in the certified record. As such, this Court is unable to review them. 

“Our law is unequivocal that the responsibility rests upon the appellant to 

ensure that the record certified on appeal is complete in the sense that it 

contains all of the materials necessary for the reviewing court to perform its 

duty.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006).
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the order denying PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2022