PCRA; Ineffective Assistance of Counsel

Commonwealth v. Childs, 2017 WL 2274639 (Pa. Super.)(unpublished), allocatur granted Dec. 6, 2017, appeal docket 436 MAL 2017

In 2013 a jury convicted Childs of criminal attempt to acquire or obtain possession of a controlled substance by misrepresentation (Oxycodone).  Childs had taken a prescription for Oxycodone to the pharmacist, the pharmacist was suspicious and called the prescribing doctor, and the doctor denied writing the prescription.  Childs claimed he had been under the doctor’s care outside of the doctor’s regular practice and that the doctor had written the prescription.

At trial, the prosecutor in his closing statement called Childs a liar.  Childs’ attorney did not object.  In Childs’ closing statement, his attorney likewise challenged the credibility of the prosecution witnesses, at one point arguing the doctor was a pig trying not to be a hog that got slaughtered because he was seeing patients outside of his regular practice.

In 2015, on initial appeal via a PCRA petition, the Superior Court affirmed Childs’ conviction and found his claim that the trial court should have granted a mistrial when the prosecutor called Childs a liar was waived because his attorney did not object at trial.

Childs then filed the PCRA petition at issue now, alleging ineffective assistance of counsel because his attorney did not object to the prosecutor’s misconduct in calling Childs a liar during closing statements.  The PCRA court dismissed his petition, finding that to show counsel was ineffective for not objecting to the prosecutor’s conduct, Childs would first have to show that prosecutorial misconduct meriting a new trial occurred, and here the prosecutor’s comments fell far short of meeting that standard – having the unavoidable effect of prejudicing the jury to the extent they could not properly weigh the evidence and render a true verdict.

Relying on Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005), the Superior Court affirmed, holding that there was nothing wrong with the prosecutor’s remarks because the crux of the trial was credibility and in closing statements both the prosecutor and defense counsel challenged the credibility of the opposing witnesses and defense counsel argued that Childs testified truthfully.  Moreover, the trial judge had reminded jurors that counsels’ arguments were not evidence and inferences counsel argued were not binding on the jury.

The Supreme Court granted allocatur to determine:

Was the [PCRA] court in error for dismissing [Childs’] 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 [Childs] a liar?

For more information, contact Kevin McKeon or Dennis Whitaker.