J-S09030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

COSIL LOUIS CHILDS

Appellant No. 2609 EDA 2016

Appeal from the PCRA Order entered July 21, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No: CP-23-CR-0005497-2012

BEFORE: SHOGAN, STABILE, and PLATT,*JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 24, 2017

Appellant, Cosil Louis Childs, appeals from the July 21, 2016 order 

entered in the Court of Common Pleas of Delaware County, denying his 

petition for collateral relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

From the record we glean the following factual and procedural 

background. Appellant was charged with criminal attempt to acquire or 

obtain possession of a controlled substance by misrepresentation 

(Oxycodone), an ungraded felony.1 Testimony at his jury trial revealed that 

when Appellant attempted to have a prescription for Oxycodone filled, the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 63 P.S. § 390-8(13); 35 P.S. § 780-113(a)(12).
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pharmacist became suspicious and contacted the ordering physician who 

denied writing the order. Appellant testified that the prescription was 

legitimate. 

On April 17, 2013, the jury convicted Appellant. The trial court 

sentenced him to a term of five to ten years in a state correctional 

institution. He did not file a direct appeal but filed a timely PCRA petition 

seeking reinstatement of his direct appeal rights. Appellant’s rights were 

reinstated and he asked this Court to set aside his judgment of sentence, 

claiming the trial court should have granted a mistrial after the prosecutor 

referred to Appellant as a “liar” during closing argument. We affirmed his 

judgment of sentence and granted his counsel’s application to withdraw, 

finding the mistrial issue waived for defense counsel’s failure to lodge an 

objection. Commonwealth v. Childs, 1136 EDA 2014, unpublished 

memorandum (Super. Ct. filed February 19, 2015). 

On July 13, 2015, Appellant filed the instant PCRA petition. Appointed 

counsel filed an amended petition. Following a hearing, the PCRA court 

denied the petition by order entered July 21, 2016. This timely appeal 

followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

In his appeal, Appellant asks us to consider one issue:

Was the [PCRA] court in error for dismissing [Appellant’s] 

petition for post conviction relief averring that trial counsel was 

ineffective for failing to object to remarks of the assistant district 

attorney during her closing argument wherein she repeatedly 

called [Appellant] a liar?
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Appellant’s Brief at 4.

In Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en 

banc), this Court reiterated: 

“On appeal from the denial of PCRA relief, our standard and 

scope of review is limited to determining whether the PCRA

court’s findings are supported by the record and without legal 

error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 

2013) (citation omitted). “[Our] scope of review is limited to the 

findings of the PCRA court and the evidence of record, viewed in 

the light most favorable to the prevailing party at the PCRA court 

level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 

131 (2012) (citation omitted). “The PCRA court’s credibility 

determinations, when supported by the record, are binding on 

this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 

244, 259 (2011) (citation omitted). “However, this Court applies 

a de novo standard of review to the PCRA court’s legal 

conclusions.” Id.

Id. at 1214-15. Further, 

“Counsel is presumed effective, and appellant bears the burden 

of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341, 

961 A.2d 786, 796 (2008). The Pierce[2]test requires appellant 

to prove, with respect to counsel’s performance, that: “(1) the 

underlying claim has arguable merit; (2) no reasonable basis

existed for counsel’s actions or failure to act; and (3) petitioner 

suffered prejudice as a result of counsel’s error such that there is 

a reasonable probability that the result of the proceeding would 

have been different absent such error.” [Commonwealth v. 

Lesko, 15 A.3d 345, 373–74 (Pa. 2011)] (citing Pierce, at 

975). Failure to prove any prong of this test will defeat an 

ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 

258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be 

deemed ineffective for failing to raise a meritless claim. 

Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 

(2006). 

____________________________________________

2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (footnote, brackets, 

and additional citation omitted).

Appellant argues that the prosecutor’s remarks during closing 

argument constituted prosecutorial misconduct and that his trial counsel was 

ineffective for failing to object. Appellant contends the following remarks 

were improper:

To believe the defendant’s testimony, you must believe that 

everybody else who came in here was lying, everyone else, just 

not the defendant. 

I ask you, again, ladies and gentlemen, please do not reward the 

defendant for getting up on the stand and lying to [you], 

because that’s what he did. He completely lied. He was jittery. 

He kept moving all over the place.

Well, ladies and gentlemen, I submit to you the defendant is a 

liar. He lied to you and do not reward him for doing such. 

Appellant’s Brief at 10 (citing Notes of Testimony, 4/17/13, at 30-31).

The PCRA court aptly explained:

Upon a claim of prosecutorial misconduct, the trial court must 

determine whether there was misconduct and, if so, determine 

what, if any prejudice result. Commonwealth v. Culver, 51 

A.3d 866, 871 (Pa. Super. 2012). The appellate court reviews 

that determination for an abuse of discretion. Id. “Our review 

of prosecutorial remarks and an allegation of prosecutorial 

misconduct requires us to evaluate whether a defendant 

received a fair trial, not a perfect trial.” Commonwealth v. 

Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citing 

Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998)). 

The Pennsylvania Supreme Court has summarized the law 

concerning a prosecutor’s closing arguments:

Generally, a prosecutor’s arguments to the jury are not a 

basis for the granting of a new trial unless the unavoidable 
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effect of such comments would be to prejudice the jury, 

forming in their minds fixed bias and hostility towards the 

accused which would prevent them from properly weighing 

the evidence and rendering a true verdict.

Commonwealth v. Jones, 546 Pa. 161, 199, 683 A.2d 1181, 

1199 (1996) (emphasis added). In the present case, 

[Appellant’s] claims concerning the closing arguments of the 

prosecution fall far short of this standard.

PCRA Court Opinion, 9/28/16, at 6-7.

We find no error in the PCRA court’s conclusion. The crux of the trial 

was credibility. As the court explained, defense counsel challenged the 

credibility of the prosecution witnesses in his closing argument while 

contending Appellant testified “truthfully.” Id. at 9 (citing N.T. 4/17/13, at 

10).

He argued that the pharmacist, Dr. Lawson, was “trying to 

embellish” his testimony when describing [Appellant] as “fidgety 

and nervous.” (N.T. 4/17/14 p. 13). Further counsel argued 

that Dr. Schwab, a University of Pennsylvania Trauma Surgeon, 

testified falsely. He argued: 

Well I would submit to you it’s because he knew he was 

seeing my client on the side, as [Appellant] testified to, 

and he wanted that—he didn’t want anyone to know that 

he was, in essence, double-dipping, because he has a lot 

to use [sic]. I will use a phrase that I’ve heard when I was 

younger, pigs get fat and hogs get slaughtered. And Dr. 

Schwab was trying not to be a hog.

(N.T. 4/17/13 pp. 15-16)

. . . Isn’t it more likely that as my client testified, he saw 

Dr. Schwab. He saw Dr. Schwab after hours. Dr. Schwab 

was getting money from him. And Dr. Schwab had a lot to 

lose. (p. 17).
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. . . So it’s nice that he was a very good doctor, once. But 

now he’s trying to get cash from my client and then does 

not want to own up to the fact of what he did.

(N.T. 4/17/13 p. 18).

Id. at 10.

As our Supreme Court recognized in Commonwealth v. Chmiel, 889 

A.2d 501 (Pa. 2005),

[T]he first prong of the ineffectiveness test is that the underlying 

claim has merit. Pierce, 527 A.2d 973. In the context of 

prosecutorial misconduct during closing arguments, Appellant 

must demonstrate that there is merit to the contention that trial 

counsel should have objected or requested a cautionary 

instruction due to the prosecutor's misconduct. Appellant can 

only do so if he can show that the prosecutor was, in fact, 

engaging in misconduct. Otherwise, there is no merit in the 

contention of trial counsel ineffectiveness. 

We find there is no basis for relief because there was nothing 

wrong with the prosecutor’s remarks and counsel cannot be 

faulted for failing to pursue a meritless claim. In determining 

whether the prosecutor engaged in misconduct, we must keep in 

mind that comments made by a prosecutor must be examined 

within the context of defense counsel’s conduct. It is well settled 

that the prosecutor may fairly respond to points made in the 

defense closing. Moreover, prosecutorial misconduct will not be 

found where comments were based on the evidence or proper 

inferences therefrom or were only oratorical flair.

Id. at 543-44 (citations and internal quotations omitted).

After reviewing Chmiel and other relevant case law discussing 

prosecutorial statements made during closing arguments, the PCRA court 

concluded:

A prosecutor is allowed to respond to defense arguments with 

logical force and vigor. Here, the prosecutor’s comments 

represented fair response to [Appellant’s] contentions. The 
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defense in the case sub judice was based upon the theory that 

he was telling the truth and all of the other witnesses at trial 

were lying. Therefore, the prosecutor’s comments represented 

a fair response to [Appellant’s] arguments. 

PCRA Court Opinion, 9/28/16, at 13 (citation omitted). Further, the trial 

judge, who was also the PCRA court judge, reminded the jurors that 

counsels’ arguments were not evidence and inferences drawn by counsel 

were not binding on the jury. Id. 

We find the PCRA court’s findings are supported by the record. 

Further, we find no error in the court’s legal conclusion that Appellant’s claim 

lacks arguable merit. Just as our Supreme Court determined in Chmiel, we 

find here that “there is no basis for relief because there was nothing wrong 

with the prosecutor’s remarks and counsel cannot be faulted for failing to 

pursue a meritless claim.” Chmiel, 889 A.2d at 533. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2017