Com. v. Oliphant, L.
1427 EDA 2015
| Pa. Super. Ct. | Aug 18, 2016Background
- On Nov. 18, 2004 a shooting occurred; six casings found; victim was an innocent bystander. A blue minivan was linked to the scene; a Dickie jumpsuit and a .45 handgun recovered from the van and ballistics matched the recovered gun.
- Larry D. Oliphant was tried with co-defendant Ronald Bethea; Oliphant convicted of first-degree murder and PIC and sentenced to life plus 2½–5 years.
- Oliphant’s direct appeal was affirmed. He filed a pro se PCRA petition in 2011; after counsel changes an amended PCRA petition was filed and the PCRA court dismissed it without an evidentiary hearing in May 2015.
- Oliphant raised four ineffectiveness claims: (1) failure to object to accomplice-liability jury instruction; (2) failure to object to the court’s instruction precluding adverse inference from nonproduction of witness Donzell White; (3) failure to object/request limiting instruction when prosecutor argued prior threats showed propensity/violence; (4) failure to object to alleged vouching by the prosecutor regarding witness Chaka Jenkins.
- The Superior Court reviewed the PCRA-court dismissal for abuse of discretion and applied the three-prong ineffective-assistance standard (arguable merit, no reasonable basis, prejudice) and examined the record for support.
Issues
| Issue | Plaintiff's Argument (Oliphant) | Defendant's Argument (Commonwealth / Trial counsel) | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for not objecting to accomplice-liability instruction | Jury instruction was incomprehensible and allowed inference of intent to kill for accomplice based on use of deadly weapon | Trial court’s instructions, read as a whole, correctly presented the law; jury convicted Oliphant as principal shooter; no prejudice | Denied — no merit; counsel not ineffective |
| 2. Trial counsel ineffective for not objecting to instruction forbidding inference from Donzell White’s non-testimony | Instruction prevented jury from considering White as real shooter or drawing adverse inference from his absence | White was available to both sides; defense counsel strategically chose not to call him because his testimony would hurt defense; instruction was proper | Denied — tactical decision reasonable; no prejudice |
| 3. Trial counsel ineffective for not objecting/requesting limiting instruction when prosecutor referenced prior threats to Jenkins | Prosecutor used limited-purpose evidence (threats) as propensity evidence; counsel should have sought cautionary instruction | Prosecutor’s comments were fair response to defense attack on Jenkins’ credibility and within permissible advocacy; no improper propensity argument requiring instruction | Denied — comments permissible; objections would be meritless |
| 4. Trial counsel ineffective for not objecting to prosecutor vouching for Jenkins | ADA improperly vouched/bolstered Jenkins’s credibility, using extrinsic knowledge and prosecutorial assurances | Comments were responsive to defense argument and did not assert personal knowledge or improper assurances; within allowable latitude to argue credibility | Denied — not improper vouching; counsel not ineffective |
Key Cases Cited
- Commonwealth v. Oliphant, 987 A.2d 821 (Pa. Super. 2009) (direct-appeal panel upheld accomplice-liability instruction and noted Oliphant was principal shooter)
- Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (standard for PCRA-court abuse-of-discretion review; hearing not required where claim is patently frivolous)
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (PCRA dismissal review limited to record/legal error)
- Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012) (PCRA court may decline evidentiary hearing where claim lacks record support)
- Commonwealth v. Charleston, 94 A.3d 1012 (Pa. Super. 2014) (framework for analyzing counsel’s strategic choices and ineffectiveness)
- Commonwealth v. Rivera, 816 A.2d 282 (Pa. Super. 2003) (counsel not ineffective for failing to raise meritless claims)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (defining improper prosecutorial vouching/bolstering)
- Commonwealth v. Harris, 884 A.2d 920 (Pa. Super. 2005) (standard for prosecutorial-misconduct review; latitude in argument)
- Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (jury-charge review focuses on instructions as a whole; trial court wording permitted if law accurately presented)
- Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008) (prosecutor may respond to defense credibility attacks; limits on asserting personal opinions)