J-A05011-18

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

JON SMITH , 

 Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 678 EDA 2017

Appeal from the PCRA Order January 17, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008131-2010

BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED MARCH 23, 2018

Appellant Jon Smith appeals from the Order dismissing his Petition filed 

pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”). 

He avers that trial and appellate counsel provided ineffective assistance of 

counsel. After careful review, we affirm on the basis of the PCRA court’s 

Opinion filed May 18, 2017.

On April 20, 2012, a jury found Appellant guilty of First-Degree Murder, 

Carrying a Firearm without a License, Carrying a Firearm on a Public Street, 

and Possession of an Instrument of Crime in connection with the death of 

George Williams on October 4, 2009, caused by multiple gunshots. The court 

sentenced him to life without parole for the Murder conviction and concurrent 

sentences of incarceration for the other offenses. After the denial of postsentence motions, Appellant appealed. This Court affirmed the judgment of 
J-A05011-18

- 2 -

sentence and the Pennsylvania Supreme Court denied allowance of appeal. 

Commonwealth v. Smith, No. 1525 EDA 2012 (Pa. Super. filed Oct. 16, 

2013) (unpublished), appeal denied, No. 592 EAL 2012 (Pa. filed Apr. 9, 

2014). 

On September 8, 2014, Appellant filed a timely pro se PCRA petition, 

which he amended after retaining counsel. After filing a Notice of Intent to 

Dismiss pursuant to Pa.R.Crim. 907, the PCRA court dismissed the Petition 

without a hearing on January 17, 2017. 

Appellant timely appealed. Both Appellant and the PCRA court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues in his Brief:

1. Did the PCRA Court err by denying Appellant relief 

asserting that appellate counsel was ineffective for his 

failure to raise on appeal the trial court’s denial of trial 

counsel’s request for a voluntary manslaughter charge?

2. Did the PCRA Court err by denying Appellant relief on his 

claim asserting that trial counsel rendered ineffective 

assistance of counsel when he failed to object to the 

Commonwealth’s prejudicial questions concerning 

alleged threats made to Rashann Jones and failed to 

request a related cautionary instruction? 

Appellant’s Brief at 7.

We review the denial of a PCRA Petition to determine whether the record 

supports the PCRA court’s findings and whether its Order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). There 

is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court 
J-A05011-18

- 3 -

can determine from the record that there are no genuine issues of material 

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

Both of Appellant’s issues assert ineffective assistance of counsel. The 

law presumes counsel has rendered effective assistance. Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating 

ineffectiveness rests on Appellant. Id. To satisfy this burden, Appellant must 

plead and prove by a preponderance of the evidence that: “(1) his underlying 

claim is of arguable merit; (2) the particular course of conduct pursued by 

counsel did not have some reasonable basis designed to effectuate his 

interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable 

probability that the outcome of the challenged proceeding would have been 

different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). 

Failure to satisfy any prong of the test will result in rejection of the appellant’s 

ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 

994, 1002 (Pa. 2002).

In his first issue, Appellant asserts that appellate counsel provided 

ineffective assistance for failing to assert that the trial court abused its 

discretion when it refused to provide a voluntary manslaughter jury 

instruction. 

Our Crimes Code defines the offense of voluntary manslaughter as 

follows:

A person who kills an individual without lawful justification 

commits voluntary manslaughter if at the time of the killing he is 
J-A05011-18

- 4 -

acting under a sudden and intense passion resulting from serious 

provocation by:

(1) the individual killed.

****

18 Pa.C.S.A. § 2503.

A court will provide a jury instruction for voluntary manslaughter only if 

a criminal defendant “establish[es] that the trial evidence would ‘reasonably 

support’ a verdict based on the desired charge[.]” Commonwealth v. 

Hairston, 84 A.3d 657, 668 (Pa. 2014). A defendant “may not claim 

entitlement to an instruction that has no basis in the evidence presented 

during trial.” Id. Moreover, “a trial court shall only instruct on an offense 

where the offense has been made an issue in the case[.]” Commonwealth 

v. Browdie, 671 A.2d 668, 674 (Pa. 1996).

In his May 18, 2017 Opinion, the Honorable Jeffrey P. Minehart 

comprehensively addressed Appellant’s claim of entitlement to a voluntary 

manslaughter instruction and counsel’s effectiveness with a thorough review 

of the statutory and case law relevant to voluntary manslaughter and jury 

instructions, citations to the record, and a thoughtful and complete analysis. 

Our review indicates that the record supports the PCRA court’s findings and 

its conclusion contains no legal error. Accordingly, we adopt the PCRA court’s 

Opinion as our own and affirm the denial of relief. See PCRA Court Op., at 4-

10 (concluding that no evidence supported a voluntary manslaughter 

instruction where the record showed that (a) the victim had done nothing to 
J-A05011-18

- 5 -

cause or provoke Appellant to shoot him, (b) Appellant had returned to the 

scene ten to fifteen minutes after his fight with the victim, and (c) after a brief 

and calm exchange of words, Appellant fired twelve shots at the victim; and 

finding the ineffectiveness claim without merit because Appellant’s defense at 

trial was that he did not shoot the victim).

In his second issue, Appellant avers trial counsel rendered ineffective 

assistance by failing to object when the prosecutor asked eyewitness Rashann

Jones questions about allegedly threatening “looks” Jones had received from

trial spectators in the hallway outside the courtroom. Appellant’s Brief at 21-

22. Appellant characterizes the prosecutor’s questions as prejudicial, and 

avers counsel should have asked the trial court to give “a cautionary 

instruction advising the jury that the testimony elicited by the prosecutor from 

Jones could not be used as evidence of consciousness of Appellant’s guilt.”

Id. at 22. 

Judge Minehart aptly addressed this issue as follows:

The claim rests upon questions posed to Jones, the first cousin of 

whom had a child with [Appellant], after he repudiated the 

contents of his statement to police, which was given shortly after 

the incident occurred, wherein he incriminated defendant in the 

shooting, and also denied seeing defendant flee the scene holding 

a gun and attempting to calm the victim down after the fight.

... [T]he law is clear that evidence that a witness is fearful of 

retaliation is admissible to explain the action of the witness, such 

as renouncing the contents of a statement or denying having 

witnessed an event that the witness previously acknowledged 

seeing. Commonwealth v. Floyd, 431 A.2d 984, 989 (Pa. 1981) 

(Commonwealth has right to attempt to establish intimidation as 

explanation for actions of witness); Commonwealth v. Bryant, 
J-A05011-18

- 6 -

462 A.2d 785, 788 (Pa. Super. 1983) (evidence that witness 

subjectively feared that appellant’s family might threaten him or 

his family if he testified against appellant properly admitted ‘to 

reconcile inconsistencies in the witness’ pre-trial and at trial 

statements’); Commonwealth v. Collins, 702 A.2d 540, 544 

(Pa. 1997) (testimony that witness was afraid of defendant 

properly admitted to explain why witness did not testify in 

conformity with prior statements and testimony where testimony 

was not admitted to establish defendant’s guilt). 

Thus, this claim was rejected because [Appellant] failed to

establish that it had merit given that the Commonwealth had the 

right to pose the questions it did to Jones after he went ‘south.’ 

[The claim] was also deemed lacking in merit because [Appellant] 

failed to establish that the questions complained of, which clearly 

did not implicate [Appellant] in any threats or the witness’s 

concern about testifying, prejudiced him. [Appellant] did not and 

could not establish that had counsel objected to the questions or 

had he requested and received cautionary instructions, the 

outcome of the trial would have been different. 

PCRA Ct. Op., at 13-14 (paragraph break added).

Our review of the record supports the PCRA court’s conclusions. The 

court properly applied the relevant law and, thus, we discern no errors of law. 

Accordingly, we affirm the PCRA court’s denial of relief.

The parties are directed to annex a copy of the PCRA court’s May 18, 

2017 Opinion to all future filings.

Order affirmed.

Judge Murray joins the memorandum.

President Judge Emeritus Stevens concurs in result.
J-A05011-18

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/18
1

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA FILED CRIMINAL 

TRIAL DIVISION

MAY 8 2017

Office of Judicial Recorc

Appeals/Post Trial

COMMONWEALTH OF PENNSYLVANIA: COURT OF COMMON

. PLEAS OF PHILADELPHIA

. COUNTY

vs. CRIMINAL TRIAL 

DIVISION

PROCEDURAL HISTORY

Defendant, Jon Smith, was charged as of the above bill and term number with, 

inter alia, Murder, Generally, Carrying a Firearm without a License, Carrying a Firearm 

on a Public Street, and Possession of an Instrument of Crime. All charges arise from an 

incident that occurred on October 4, 2010, during which defendant shot and killed one 

George Williams.

Defendant was tried before this Court and a jury in April of 2012, At the 

conclusion of the trial, the jury found defendant guilty of First-Degree Murder,

Carrying a Firearm without a License, Carrying a Firearm on a Public Street, and

Possession of an Instrument of Crime, On April 20, 2012, this Court sentenced

CP-51-00081310010

7948757301

Circulated 02/21/2018 10:06 AM
2

defendant to life without parole on the First-Degree Murder charge, three-and-onehalf 

to seven years on the Carrying a Firearm Without a License charge, two-andone-half 

to five years on the Carrying a Firearm on a Public Street charge and twoand-one-half 

to five years on the Possession of an Instrument of Crime charge. The sentences 

imposed on the weapons offenses all were ordered to be served concurrently with each 

other and the life sentence imposed on the first-degree murder conviction,

Following the imposition of sentencing, defendant filed a post-sentence motion. This 

Court denied the motion after which defendant filed a timely notice of appeal as well as a 

requested Pa.R.A.P. 1925(b) statement. On October 16, 2013, the Superior Court affirmed the 

judgment of sentence. Commonwealth v. Smith, 1525 EDA 2012 (Pa. Super. 2013). Defendant 

thereafter filed a petition for allowance of appeal, which the Pennsylvania Supreme Court 

denied on April 9, 2014. Commonwealth v. smith, 592 EAL 2012 (Pa. 2014).

On September 8, 2014, defendant filed apro se petition pursuant to the PostConviction 

Relief -Act. 42 Pa.C.Sø 9541 et seq. Subsequent thereto, after defendant retained 

private counsel, counsel filed an amended petition on defendant's behalf on August 28, 

2015. This Court thereafter made a careful review of the record along with the 

Commonwealth's Motion to Dismiss and determined that defendant failed to raise an 

issue having merit and sent defendant a Pa.R.Crim.P. 907 Notice of intention to Dismiss. 

On January 17, 2017, this Court issued an Order dismissing defendant's PCRA petition 

without a hearing.
3

Defendant thereafter filed apro se notice of appeal.

Following the filing of the appeal, retained counsel filed a motion to withdraw. 

The motion was granted and current counsel, James Lammendola, Esquire, was 

appointed to represent defendant on appeal after it was detennined

that defendant did not have funds to litigate an appeal. Subsequent thereto, Mr.

Lammendola filed a court-ordered 1925(b) statement.

FACTS 

At approximately 1:30 a.m. on October 4, 2010, George Williams, the victim 

herein was with his cousins James Cheely and Calvin Williams at the Platinum Bar and 

Night Club located at Torresdale and Paul Streets in lower

Frankford, when he became involved in a physical altercation with defendant and

I—several other individuals outside of the establishment. After the fight was broken 

up, defendant left the scene while George Williams and Mr. Cheely searched the area 

for George Williams' missing cell-phone.

Approximately fifteen minutes thereafter while Georget Williams was still 

looking for his cell-phone, defendant returned to the scene, approached George Williams 

with a handgun and then fired twelve shots him, four of which struck 

Williams. George Williams was transported to Temple University Hospital where he was 

pronounced dead shortly thereafter. Mr. Cheely subsequently identified defendant from a photo 
4

array as the individual that shot Mr. Williams. Rashann Jones, a bystander who was near the 

scene at the time of the incident, gave a statement in which he identified defendant as the person 

that he observed fleeing the area with a handgun immediately after the shooting.

DISCUSSION

Instantly, defendant raised three claims predicated on the ineffectiveness of

prior counsel. In reviewing the propriety of the PCRA court's dismissal of a petition 

without a hearing, the reviewing court is limited to determining whether the court's 

findings are supported by the record and whether the order in question is free of legal 

error. Commonwealth v, Holmes, 905 A.2d 707, 509 (Pa. Super.

Ct. 2006) citing 870 A.2d 795, 799 (Pa. 2005). The 

PCRA court's finding; will not be disturbed unless there is no support for the findings 

in the certified record. Commonwealth v. Carr 768 A.2d 1164, 1166 (Pa.

2001). A PCRA court may decline to hold a hearing on the petition 

if the petitioner's claim is patently frivolous and is without a trace of support either 

in the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 101 1 1014 

(Pa. Super. 2001). The reviewing court on appeal must examine each of the issues 

raised in the •PCRA petition in light of the record in order to determine whether the 

PCRA court erred in concluding that there were no genuine issues of

material fact and denying relief Without an evidentiary hearing. (d. See also 

Commonwealth v. Hardcastle 701 A.2d 541, 542 (Pa. 1997).
5

Pennsylvania law presumes counsel is effective and therefore, the burden is

placed upon the defendant to prove otherwise. Commonwealth v. Brown, 767 A.2d

576, 581 (Pa. Super. 2001), citing Commonwealth v. Carpenter, 725 A.2d 154, 161

(Pa. 1999), citing Commonwealth v. Marshall, 633 A.2d 1100 (Pa. 1993); see also 

Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992). Trial counsel has broad discretion in 

matters of trial strategy and the determination of what tactics to employ during litigation. 

Commonwealth v. Choi Chun Lam 684 A.2d 153, 160 (Pa. Super. 1996). Furthermore, "[i]t is 

well established that failed trial tactics of defense counsel are not grounds for a new trial." 

Commonwealth v. Hall 565 A.2d 144, 148 (Pa. 1989). Trial counsel will not be held ineffective 

if there was a reasonable strategic basis for his or her trial tactics. Commonwealth v. Pursell

724

A.2d293, 311 (Pa. 1999).

In order to establish that trial counsel's representation was deficient, defendant must 

establish all of the following three elements, as set forth in Commonwealth v. Pierce, 527, 

A.2d 973, 975-76 (Pa. 1987): (1) the underlying legal claim has arguable merit; (2) counsel 

had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered 

prejudice because of counsel's ineffectiveness. Commonwealth v. Chmiel, 30 A.3d 1 11 1, 

1127 (Pa. 2011), citing Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

The threshold question in reviewing an ineffectiveness claim is whether the issue, argument, 

or tactic which trial counsel failed to use at trial and which is the basis of the ineffectiveness claim 
6

is of arguable merit. Commonwealth v. Balodis 747 A.2d 341, 343 (Pa. 2000). If defendant can 

prove that the argument or tactic which trial counsel failed to use at trial is of arguable merit, then 

the "reasonable basis" test is applied to determine if the course of action chosen by trial counsel

was designed to effectuate his or her client's interest. (d. With regard to the second 

element, defendant must prove that "an alternative [action or inaction] not chosen offered 

a potential for success substantially greater than the course actually pursued." Chmiel, 

supra, citing Commonwealth v. Williams 899 A.2d 1060, 1064 (Pa. 2006) (alteration 

added). To establish prejudice, defendant must demonstrate that there is a reasonable 

probability that, but for counsel's error, the outcome of the, proceeding would have been 

different. Chmiel, supra, at 1127-28, citing

Dennis, supra, at 954.

In his first claim, defendant claims that he should have been granted relief on 

his claim asserting that appellate counsel was ineffective for not raising on direct 

appeal a claim that this Court committed an abuse of discretion by denying a request 

that the jury be instructed on the crime of heat of passion voluntary manslaughter. 

According to defendant, appellate counsel should have raised the claim on appeal 

because the record indicates that the victim was quite upset and excited after he had been 

beaten up by several individuals from 8th Street and had told defendant that the guys from 

8

th Street were no longer permitted on 7th Street. According to defendant, telling young 
7

Philadelphia males that they are not permitted to go to a certain street located in their 

neighborhood is an act of provocation, one which heightens emotions. Defendant's 

Amended Petition, at

offense has been made an issue in the case and where the evidence would reasonably support such a 

verdict." Commonwealth v. Thomas 717 A.2d 468, 478 (Pa. 1998). 1 In Commonwealth v. 

Browdie, 543 Pa. 337, 671 A.2d 668 (1996), our Supreme Court overruled prior cases that had 

held that a defendant was entitled to

an ,instructipp on "heat of passion" voluntary manslaughter even where there was

no evidence to support the verdict, so as to permit the jury to extend mercy to the 

defendant, id., 671 A.2d at 671-672, The Court stated:

... a trial court shall only instruct on an offense where the 

offense has been made an issue in the case and where the trial 

evidence reasonably would support such a verdict.

It is noted that in his amended petition, defendant cited authority that is no longer good law and which 

was overturned by the Browdie decision.

jury voluntary manslaughter given only the
8

Therefore, only where an instruction 

is requested and only if the evidence 

supports "heat of passion" voluntary 

manslaughter, is an instruction thereon 

required Instructions regarding 

matters which are not before the court 

or which are not supported by the 

evidence serve no purpose other than to 

confuse the jury.

Jd., 671 A.2d at 674.

Thus, a "heat of passion," a voluntary manslaughter must 

be given only if the evidence could rationally support the 

conclusion that, "at the time of the

1 Ing, e e en ant was acting under a sudden and intense passion resulting

from serious provocation by: 1) the individual killed; or (2) 

another whom the actor endeavors to kill, but he negligently or 

accidentally causes the death of the individual killed." 18 

Pa.C.S. 2503(a). "The test for [serious] provocation is whether 

a reasonable person confronted by the same series of events, 

would become impassioned to the extent that his mind would be 

incapable of cool reflection." Commonwealth v. Kim, 888 A.2d 

847, 853 (Pa. Super. 2005) (citation, internal quotation marks, 

and original brackets omitted). In addition, a "heat of passion" 

voluntary manslaughter charge is not required where the accused 

denies having killed the victim. See Commonwealth v. Speight, 

677 A.2d 317, 325 (Pa. 1996) (defendant not entitled to heat of 
9

passion voluntary manslaughter instruction, where such 

instruction would have been inconsistent with his claim that he 

did not kill victim); Commonwealth v. Haynes, 577 A.2d 564, 574 

(Pa. Super. 1990)

(where defendant claims that he did not kill victim, it is proper to omit heat of

passion instruction).

Instantly, the record shows that the initial fight between defendant and the 

victim had ended after which both men went their separate ways. Approximately ten 

to fifteen minutes later as the victim was looking for a lost cell phone and was tying 

his shoe, defendant approached and in a calm voice, defendant said to the victim, 

"[W]hat's this shit you are talking about the guys from 8th Street not being

able to -come to 7th Street anymore?" The victim looked up and told defendant in a 

calm voice that what defendant heard was correct. Defendant immediately pulled a 

gun from his waistband and fired twelve shots at the victim, who unsuccessfully tried 

to duck out of the way. When defendant stopped shooting, he placed the gun back in 

his waistband and walked off in the direction of Paul Street as the rest of the "8th and 

Indiana guys", who were across the street, were laughing (N.T.

4/18/12, 22±-245).

At the time of the killing, defendant had done nothing to cause or provoke

defendant to shoot him. Mere words are insufficient to supply sufficient
10

provocation. See Commonwealth v. Toledo, 529 A.2d 480 (Pa. Super. 1987)

(where evidence showed that defendant was arguing with decedent prior to firing a 

shotgun into decedent's back, evidence did not support a manslaughter charge),

appeal denied, 538 A.2d 876 (Pa. 1988); Commonwealth v. Copeland, 554 A.2d 54, 58 

(Pa. Super. 1989) (mere words, no matter how insulting, cannot constitute sufficient 

provocation).

For this reason alone, this Court did not err in finding no merit to this claim. In addition 

though, the claim lacked merit because defendant claimed at trial that he did not shoot the 

victim. As noted above, a defendant's denial that he did not shoot the victim precludes the 

necessity of giving a "heat of passion" voluntary manslaughter charge. For all of the foregoing 

reasons, it is suggested that

defendant be denied relief with respect to this claim.

In his second issue, defendant argues that he should have been granted relief on the 

second claim set forth in his Amended Petition, which asserted that trial counsel was 

ineffective for not objecting to certain questions posed to James Cheely, which implied, 

without factual support, that defendant approached the victim and that Cheely heard 

and saw defendant just prior to and during the incident, See

Defendant's Amended Petition 1925(b) Statement, Issue 2. He further complains that 

counsel should have objected when the prosecutor argued that defendant left the scene 
11

and retrieved a firearm and that defendant was the only person with a motive to shopt 

the victim because the record did not support the prosecutor's arguments, (d.

In reviewing claims of prosecutorial misconduct, courts must focus on whether 

the accused was deprived of a fair trial and not whether he was deprived of a perfect 

trial. Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa. 1995). Thus, a prosecutor's 

statements do not constitute reversible error unless the unavoidable of the effect of the 

prosecutor's action would be to prejudice the jury, forming in their minds a fixed bias 

and hostility towards the defendant such that they could not weigh the evidence and 

render a true verdict. Commonwealth v. Paddy, 800 A,2d 294, 316 (Pa. 2002). It is 

well settled that the prejudicial effect of a prosecutor's statements are considered in the 

context in which they were made.

728 A.2d 923, 932 (Pa. 1999).

Instantly, a review of the record shows that defendant failed to meet his burden of proof. 

First, contrary to defendant's assertions, the record contained evidence that defendant 

approached the victim. Cheely testified that he did not see defendant when he first exited the 

bar following the fight, no one was present when he and the victim were searching for 

the missing cell phone, and that defendant approached the victim. (N.T. 4/18/12, 225-

244). Other witnesses also testified that after the fight between the victim and defendant ended, 

both of them separated and Went in different directions. (N.T. 4/19/12, 151-153, 161-166). 
12

Thus, counsel was correctly found not to be ineffective because the questions did have a factual basis 

and were not improper.

Regarding the comments trial counsel's failure to object to comments made by the 

prosecutor during his closing speech discussing motive, relief was properly denied with 

respect thereto because the comments were supported by the record. Phillip Holmes, a 

security guard at the bar testified that defendant, who was much larger than the victim, 

lost the fight the two men had prior to the shooting. (N.T. 4/19/12, 143-148, 156, 167). 

The law permits a prosecutor to draw reasonable inferences form the evidence, to argue 

any legitimate inferences from the evidence, and to present his argument with logical 

force and vigor. Commonwealth v.

Keaton, 729 A.2d 529, 540 (Pa. 1999). Here, given the evidence that defendant lost

the fight to the victim it was not prosecutorial misconduct for the prosecutor to

argue that defendant's motive for shooting the victim was that defendant lost the fight 

between the two men. It was a proper inference supported by the record herein and not 

objectionable.

Finally, even if the prosecutor had acted improperly herein for the reasons 

outlined by defendant, the grant of appellate relief is not required because defendant did not 

establish that the prosecutor's conduct prejudiced him. The record in this matter 

overwhelmingly supported the guilty verdict and, moreover, this Court cautioned the jury that the 
13

jury's recollection of the facts controlled its deliberations and that arguments of counsel were not 

evidence, thereby ameliorating any harm the comments may have had. (N.T. 4/17/12, 165; 4/20/12, 

52). Thus, defendant failed to establish, as he was required to do to obtain relief, that the unavoidable 

effect of the comments and questions complained of was to

deprive him of a trial. Accordingly, it is suggested that relief be denied with respect 

to this claim.

In his final issue, defendant contends that he should have been granted relief 

on his claim that trial counsel was ineffective for not objecting and for not

requesting cautionary instructions regarding questions posed to Rashann Jones that 

asked him if he was concerned about testifying and was afraid for his family. 

According to defendant, the questions were improper because there was no

evidence that Jones had been threatened by anyone, including defendant.

Defendant's Amended PCRA petition, 25-30; 1925(b) Statement, Issue 3.

The claim rests upon questions posed to Jones, the first cousin of whom had a 

child with defendant, after he repudiated the contents of his statement to police, 

which was given shortly after the incident occurred, wherein he incriminated 

defendant in the shooting, and also denied seeing defendant flee the scene holding

a gun and attempting to calm the victim down after the fight. (N.T. 4/18/12, 89-92,

112-114, 117, 121-125;
14

Appellate relief should not be forthcoming on this claim because the law is clear 

that evidence that a witness is fearful of retaliation is admissible to explain the actions of 

the witness, such as renouncing the contents of a statement or denying having witnessed 

an event that the witness previously acknowledged seeing. Commonwealth v. Floyd, 431 

A.2d 984, 989 (Pa. 1981) (Commonwealth

has right to attempt to establish intimidation as explanation for actions of witness); 

Commonwealth v, Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (evidence that witness 

subjectively feared that appellant's family might threaten him or his family if he 

testified against appellant properly admitted "to reconcile inconsistencies in the 

witness' pre-trial and at-trial statements"); Commonwealth v. Collins, 702 A.2d 540-

543-544 (Pa. 1997) (testimony that witness was afraid of defendant properly admitted 

to explain why witness did not testify in conformity with prior statements

and testimony where testimony was not admitted to establish defendant's guilt). Thus, 

this claim was rejected because defendant failed to establish that it had merit given that 

the Commonwealth had the right to pose the questions it did to Jones after he went 

"south." No error occurred in finding it lacking in merit.

It kwas also deemed lacking in merit because defendant, failed to establish that 

the questions complained of, which clearly did not implicate defendant in any threats or 
15

-the witness's concern about testifying, prejudiced him. Given that the evidence of his 

guilt was overwhelming defendant did not and could not establish that had counsel 

objected to the questions or had he requested and received cautionary instructions, the 

outcome of the trial would have been different. Accordingly, it is suggested that defendant 

be denied relief with respect to this claim.

CONCLUSION

For the foregoing reasons, the defendant's assertions of error should be 

dismissed for lack of merit and the order denying him PCRA relief affirmed.

DATE:
16