Com. v. Armsted, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAMUS ARMSTED
Appellant No. 643 EDA 2013
Appeal from the Judgment of Sentence November 7, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006189-2011
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 17, 2014
Shamus Armsted1 brings this appeal from the judgment of sentence
imposed on November 7, 2012, in the Court of Common Pleas of
Philadelphia County. A jury found Armsted guilty as an accomplice of two
counts of aggravated assault by causing serious bodily injury, and two
counts of recklessly endangering another person (REAP), as to two victims,
Marcus Woods and Elisa Walker.2 The trial court sentenced Armsted to
seven to 20 years’ incarceration. However, the trial court granted Armsted’s
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*
Retired Senior Judge assigned to the Superior Court.
1
The certified record also reflects the spelling of Appellant’s surname as
“Armstead”. For purposes of this appeal, we will refer to Appellant as
“Armsted”.
2
18 Pa.C.S. §§ 2702(a)(1), and 2705, respectively.
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post sentence motion to arrest judgment with respect to the one count of
aggravated assault relating to Elisa Walker, and reduced that count to
simple assault. The trial court resentenced Armsted to a term of
incarceration of six to 14 years. In this appeal, Armsted claims (1) the
evidence was insufficient to support the guilty verdicts for aggravated
assault and REAP “because the evidence failed to prove that [Armsted] aided
and abetted the commission of the offenses,” (2) the evidence was
insufficient to support the guilty verdict for aggravated assault “because the
evidence failed to prove that the victim, Marcus Woods, suffered ‘serious
bodily injury’ as defined by Pennsylvania law,” (3) “the cumulative effect of
numerous instances of prosecutorial misconduct” violated his right to a fair
trial, requiring the award of a new trial, and (4) the trial court erred in failing
to instruct the jury, as requested by Armsted, regarding “mere presence.”
Armsted’s Brief, at 4. Based upon the following, we affirm.
The trial court has aptly summarized the facts of this case as follows:
[Armsted] entered a plea of not guilty and asserted his
right to a jury trial. The sum and substance of the evidence
introduced at trial is as follows:
Witness Testimony
On March 18, 2011, a group of protesters gathered on the
corner of Hawthorne and Margaret Streets in Philadelphia. The
group, which had been staging daily protests for about a week
prior, had been organized by JaVese Phelps-Washington. Ms.
Washington’s 20 year-old son was shot and killed inside a bar
located at the corner of Hawthorne and Margaret Streets on
February 19, 2011. Following his death, the bar was closed for a
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few weeks. When it re-opened, Ms. Washington organized the
protests.
On March 18, 2011, one of the protesters was Marcus
Woods, a young man known by the nickname “Cheese.” Woods
was “acting out of order,” throwing rocks at the bar, opening the
door and yelling at people inside, speaking over a bullhorn, and
making gestures at surveillance cameras.
At approximately 11:18 p.m., [Armsted] and two other
men arrived at the protest in a dark SUV. All three men exited
the vehicle and [Armsted] said “What’s up now, Cheese?” to
Woods. Woods replied, “Go ahead with that.” The two men
from [Armsted’s] SUV pulled out handguns and the protesters
began to run away. One of the men then fired more than a
dozen shots from two guns into the dispersing crowd.
Immediately after the shooting, [Armsted] and one of the men
that arrived with him got back into [Armsted’s] SUV and left the
area.
Woods and another protester, Elisa Walker, were both shot
as they fled. Ms. Walker received a bullet graze wound to her
leg for which she received treatment at an emergency room.
Woods received treatment at Aria Hospital that night for a
gunshot wound to his buttocks. At the hospital, police recovered
the jeans and underwear that Woods was wearing that night.
Each item of clothing had a bullet hole in the rear and massive
blood stains.
During the days preceding the shooting, [Armsted] and his
employees had made a number of complaints to the police about
the protesters but they were dissatisfied with the police
response. Several video surveillance cameras had been recently
installed both inside and outside of the bar by [Armsted].
[Armsted] was able to access these cameras remotely.
The Video
Following the shooting on March 18, 2011, police
recovered a video recording of the incident from the bar
pursuant to a search warrant. The video shows [Armsted’s] SUV
arrive at approximately 11:17 p.m. However, [Armsted] parked
his SUV in such a way that only a very small portion of the rear
of the SUV is visible in the video footage.
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On the video, the shooter from [Armsted’s] SUV walks
toward the crowd of protesters. As he does so, the protesters
walk quickly away and some of them duck between parked cars.
[Armsted] walks in the same direction as the shooter at this
point.
The shooter then walks to the southwest corner of
Hawthorne and Margaret Streets where the protesters had been
gathered, raises both hands to chest height and begins shooting
in the direction of the fleeing protesters. As he does so,
[Armsted] continues to walk toward the shooter and stops when
he gets to the southwest corner of Hawthorne and Margaret.
The shooter then runs in the direction of the fleeing
protesters. [Armsted] then begins to walk backwards from the
corner of Hawthorne toward his SUV while continuing to look in
the direction of the shooter. Moments later, the shooter can be
seen running in the direction of the SUV. The weight of
[Armsted’s] SUV then shifts twice within seconds before it pulls
away from its parking spot at 11:18 p.m.
[Armsted’s] Testimony
[Armsted] testified that he and his wife owned the bar in
February and March of 2011. He had the video surveillance
system installed and confirmed that he was able to view the
surveillance cameras remotely so that he was always able to see
what was happening there. [Armsted] testified that the
protesters had been causing problems for the bar on a daily
basis, including staging protests, threatening employees,
vandalizing employee vehicles and throwing rocks.
[Armsted] claimed that he went to the bar at
approximately 11:18 on March 11, 2011, to celebrate an
employee’s birthday and serve a cease and desist letter on Ms.
Washington. The letter stated that the protests were provoking
violence and directed Ms. Washington to have no further contact
with the bar either inside or outside the premises.
[Armsted] further testified that he drove to the bar alone,
but when he was about a block away he stopped because he saw
some people standing around a van with broken windows.
[Armsted] asked them if they worked at the bar and they replied
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that they did not. One man was angry and stated Cheese was
provoking the protesters to damage cars. [Armsted] asked the
man to describe Cheese and the man said that he would show
[Armsted] who Cheese was. [Armsted] then let that man and
another stranger into his SUV and drove to the bar. [Armsted]
parked the SUV in a “blind spot” of the video surveillance
system.
When [Armsted] arrived at the protest with the two men,
[Armsted] approached the crowd and asked “What’s up, is this
Cheese?” According to [Armsted], at this point the protesters
started to run away and the men accompanying him began
shooting at them. [Armsted] did not enter his bar, but instead
got back in the SUV and drove away immediately. He did not
call 911.
Later that night, [Armsted] found out that people were
injured in the shooting, but did not contact the police or review
the video surveillance. However, he did speak with a defense
attorney and the attorney’s investigator prior to his arrest.
[Armsted] testified that he rented the SUV. [Armsted]
returned the rental car without contacting the police or allowing
them to attempt to obtain fingerprints or other evidence with
regards to the armed men that rode with him. [Armsted] was
arrested a week after the shooting.
Trial Court Opinion, 8/23/2013, at 1–4 (record citations omitted).
As stated above, the jury found Armsted guilty as an accomplice of
two counts of aggravated assault by causing serious bodily injury, and two
counts of REAP, relating to the victims Woods and Walker. The jury
acquitted Armsted of two counts of attempted murder, two counts of
aggravated assault by attempting to cause serious bodily injury, two counts
of aggravated assault by causing bodily injury with a deadly weapon, two
counts of conspiracy to commit murder, two counts of conspiracy to commit
aggravated assault, one count of carrying a firearm without a license, and
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one count of possession of an instrument of crime.3 As previously discussed,
the trial court ultimately imposed an aggregate sentence of six to 14 years’
incarceration. This appeal followed.4
Armsted first contends the evidence was insufficient as a matter of law
to support the guilty verdicts for aggravated assault by causing serious
bodily injury and REAP because the evidence failed to prove that he aided
and abetted the commission of the offenses.
Our standard of review is well settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction
to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the
evidence in the light most favorable to the verdict winner
giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
We must defer to the finder of fact at the time of trial:
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
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3
18 Pa.C.S. §§ 901, 2702(a)(1), 2702(a)(4), 903, 6106(a)(1), and 907(a),
respectively.
4
Armsted timely complied with the court’s order to file a statement of errors
complained of on appel pursuant to Pa.R.A.P. 1925(b).
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not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from
the combined circumstances.
Furthermore, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered.
Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (quotations
and citations omitted), appeal denied, 80 A.3d 777 (Pa. 2013).
We begin by setting forth the definitions of the relevant crimes. A
person may be convicted of Aggravated Assault graded as a first degree
felony if he “attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life.” 18 Pa.C.S. §
2702(a)(1).5 “Serious bodily injury” is defined as “[b]odily injury which
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5
As previously mentioned, the jury found Armsted guilty of two counts of
aggravated assault by causing serious bodily injury, and acquitted Armsted
of two counts of aggravated assault by attempting to cause serious bodily
injury.
Also, as stated above, the trial court granted Armsted’s post-sentence
motion in part, and arrested judgment with respect to one count of
aggravated assault by causing serious bodily injury, as to Elisa Walker, and
reduced that count to simple assault.
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creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
Section 2705 of the Crimes Code, pertaining to REAP, provides that “[a]
person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S. § 2705.
An accomplice is legally accountable for the conduct of another person
involved in committing the crimes. 18 Pa.C.S. § 306(b)(3). The Crimes Code
defines an accomplice as follows:
A person is an accomplice of another person in the commission
of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it[.]
18 Pa.C.S. § 306(c). “All theories that are recognized under our law to hold
one responsible for the criminal acts of another require the existence of a
shared criminal intent.” Commonwealth v. Cox, 353 A.2d 844, 846 (Pa.
1976) (citations omitted).
A defendant cannot be an accomplice simply based on evidence
that he knew about the crime or was present at the scene.
However, the circumstances change if there is additional
evidence that the defendant intended to aid in the commission of
the underlying crime, and then did or attempted to do so. The
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amount of aid “need not be substantial so long as it was offered
to the principal to assist him in committing or attempting to
commit the crime.” Commonwealth v. Murphy, 577 Pa. 275,
286, 844 A.2d 1228, 1234 (2004).
Toritto, supra, 67 A.3d at 35.
Here, Armsted argues that the Commonwealth failed to proved that
there was a shared criminal intent between himself and the shooter.
Specifically, Armsted asserts:
[T]he Commonwealth did not contend that [Armsted] was the
actual shooter. There was also no suggestion at trial that
[Armsted] even possessed a firearm, or acted as a lookout, or
otherwise did anything to aid or encourage the gunman to fire
shots at anyone. Indeed, there is no evidence that, prior to
getting out of the SUV, he even knew that the other men were
armed.
Armsted’s Brief at 18. In support of this argument, Armsted points to
Commonwealth v. Menginie, 383 A.2d 870 (Pa. 1978), Commonwealth
v. Johnson, 513 A.2d 476 (Pa. Super. 1986), Commonwealth v.
Cunningham, 447 A.2d 615 (Pa. Super. 1981), and Commonwealth v.
Fields, 333 A.2d 745 (Pa. 1975). Based upon our review, we conclude the
cited cases are distinguishable, and Armsted’s argument is without merit.
In Menginie, a verbal confrontation between the occupants of two
cars at a drive-in restaurant quickly escalated to a point where Menginie and
all but one of the other occupants of both cars alighted from their vehicles,
at which point the passenger who remained in Menginie’s vehicle exited,
drew a gun, and fatally shot the victim. Menginie and his passengers then
drove away. Menginie, 382 A.2d at 871–872. Menginie was convicted of,
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inter alia, voluntary manslaughter and conspiracy. On appeal, the
Pennsylvania Supreme Court reversed Menginie’s convictions and discharged
him, finding:
There is no indication that appellant had ever met or known the
victim prior to this encounter, thus no inference can be drawn
that revenge or vindication was the basis for an agreement to
‘get’ the victim. More importantly, there is no evidence that
appellant encouraged, acquiesced in, or even knew that the
person in the rear seat had a gun, or that he intended to use it.
Id. at 872. The Menginie Court concluded: “We hold that on the present
record the prosecution has failed to establish an agreement or common
understanding, either explicit or implied, formed either before or during this
confrontation, to commit the act for which appellant was charged.” Id. at
873.
In Johnson, three men, including Johnson, and a woman were exiting
a bar at the precise moment the victim rode past the bar on his bicycle. One
of the men with Johnson said, “Here comes a white boy. Let’s get him.”
Johnson, 513 A.2d at 477. Shortly after those words were spoken, another
man pulled out a gun and fatally shot the victim. Johnson fled with the other
men and woman. Id. Johnson was convicted of conspiracy to commit murder
and/or robbery. On appeal, this Court reversed the judgment of sentence,
finding “there was no overt evidence of an agreement that included Johnson
in which he assented to go along with the commission of the crime.” Id. at
478.
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In Cunningham, a panel of this Court reversed a third degree-
murder conviction based upon accomplice liability where the evidence
showed that Cunningham beat the victim’s leg with a baseball bat, but the
fatal blow clearly came from Cunningham’s co-defendant, who struck the
victim with a piece of wood while Cunningham attempted to stop the co-
defendant. Cunningham was observed chasing the victim through a vacant
lot, detaining him by hitting him in the leg with a baseball bat, and
identifying him to the co-defendant as the person who had burglarized the
co-defendant’s apartment. Id. at 616–617. When the co-defendant caught
up, he beat the victim with an ax handle. Id. at 616. Other testimony
revealed that Cunningham did not see the co-defendant approaching with a
piece of wood and that he attempted to stop the co-defendant. Id. This
Court found that Cunningham’s identification and detainment of the victim,
in light of the totality of the circumstances, were insufficient to prove
accomplice liability.
In Fields, the defendant was charged and convicted of murder and
conspiracy. The evidence at trial established that Fields and his co-
conspirator approached the victim as he sat on a set of stairs and one of the
men asked if the victim was “from 29.” Id. at 746. Before the victim could
respond, the co-conspirator shot him five times. The men fled and a witness
saw the defendant “move his hands ‘down into his pants ... Like he had
something under his shirt.’” Id. The Pennsylvania Supreme Court reversed
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the judgment of sentence, reasoning: “There is nothing in the testimony to
indicate Fields had any prior knowledge of [his cohort’s] lethal intent or that
he in any way counseled or participated in the shooting.” Id. at 747.
In all of these cases there was a lack of evidence of shared criminal
intent between the defendants and the actors who committed the crimes
because the situations developed in spontaneous and unanticipated ways.6
The present case contrasts with the cited cases.
Here, there was evidence that Armsted was angry with the protestors,
that he was dissatisfied with the police response, that Woods was a
protestor who particularly misbehaved on the night of the shooting, that
Armsted had remote access to video surveillance of the inside and outside of
the bar, and that Armsted drove an SUV with two men, including the
shooter, to the location of the protestors. Armsted approached, asked which
protestor was Woods, and at that point gunfire erupted. The video shows
the shooter with both arms raised, chasing individuals who are running
away. The video also shows Armsted walking in the direction of the shooter,
then walking backward, and looking in the direction of the shooter. After the
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6
Both conspiracy and accomplice liability require proof of shared intent, but
accomplice liability does not require proof of an agreement as conspiracy
does. See Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa. Super.
2002), affirmed, 844 A.2d 1228 (Pa. 2004). We note that Menginie,
Johnson and Fields were cases involving conspiracy convictions. We
further note that, in the present case, the jury acquitted Armsted of
conspiracy, specifically, two counts of conspiracy to commit murder, and two
counts of conspiracy to commit aggravated assault.
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shooting, the shooter is seen running in the direction of the SUV. Armsted
returns to the SUV. The SUV then shifts slightly downward just before it
leaves the parking spot. Armsted did not contact police. Additionally, he
returned the rented SUV without making it available to police for possible
evidence relating to the men who rode with him.
Armsted’s position on appeal asks us to draw inferences from the
evidence that are favorable to him rather than the Commonwealth, which is
contrary to our standard of review. Moreover, the jury was entitled to
disregard Armsted’s account of the incident. See Commonwealth v.
Rosario-Hernandez, 666 A.2d 292, 296 (Pa. Super. 1995) (“It is the
function of the jury to pass upon the credibility of the witnesses and to
determine the weight to be accorded the evidence produced. The jury is free
to believe all, part or none of the evidence introduced at trial.” (citation
omitted)). Finally, the jury’s verdict is fully supported by the reasonable
inferences from the Commonwealth’s evidence that Armsted either solicited
the shooter or aided him by driving him in the SUV to and from the scene,
and by returning the rented SUV without contacting police and giving them
access to the vehicle for possible evidence. Therefore, we agree with the
conclusion of the trial court that based upon the evidence,
the jury could have found that [Armsted] had the intent of
promoting or facilitating the shooting and that he solicited the
shooter to fire or aided the shooter in planning or perpetrating
the shooting. Under Pennsylvania law, this makes [Armsted]
criminally responsible for each of the crimes as an accomplice.
See 18 Pa.C.S.A. § 306.
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Trial Court Opinion, 8/23/2012, at 8. Accordingly, we reject Armsted’s first
sufficiency challenge.
Armsted also claims the evidence was insufficient to sustain the guilty
verdict for aggravated assault by causing serious bodily injury to Marcus
Woods. Armsted argues that because the jury acquitted him of the
aggravated assault by attempting to cause serious bodily injury to Woods,
“the issue now before this Court is whether the evidence established that
Marcus Woods actually suffered ‘serious bodily injury’ as defined by the
Crimes Code.” Armsted’s Brief, at 28.7 See 18 Pa.C.S. § 2702(a)(1) (“A
person is guilty of aggravated assault if he … attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the
value of human life[.]” (emphasis added)).
As stated above, “serious bodily injury” is defined in the Crimes Code
as “[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S. § 2301. Armsted
maintains the gunshot wound in Woods’s right buttocks did not qualify as
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7
Armsted asserts, “The lower court properly arrested judgment on the count
relating to Elisa Walker, finding that the evidence failed to show that Elisa
Walker suffered ‘serious bodily injury’ as defined by Pennsylvania law.”
Armsted’s Brief, at 27.
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“serious bodily injury.” Armsted relies on the evidence showing that Woods
was completely ambulatory when he walked into the hospital emergency
room and upon discharge, that he was released after four hours of
outpatient treatment, and that he did not require sutures or antibiotics. We
are not persuaded by this argument.
Here, Woods suffered a penetrating entry wound to his right buttocks,
with the bullet able to be felt in the right hip region. See Trial Court
Opinion, 8/23/2013, at 9; Exhibit B. His pants and underwear were
“saturated” with blood. Id.; Exhibit A. Given this evidence, we agree with
the trial court that the penetrating gunshot wound suffered by Woods
qualifies as a “serious bodily injury.” See e.g., Commonwealth v.
Daniels, 354 A.2d 538, 539 (finding defendant caused serious bodily injury
for purposes of aggravated assault where victim was struck by bullet which
remained in his body because doctor recommended against removal).
Moreover, as the trial court pointed out, “[t]he massive blood loss suffered
by Woods was sufficient for the jury to find there was a substantial risk that
he could have bled to death if not for the emergency medical treatment he
received.” Id. at 10. See Commonwealth v. Kramer, 371 A.2d 1008,
1013 (Pa. Super. 1977) (evidence sufficient to establish aggravated assault
where doctor’s testimony that defendant beat children on buttocks, causing
bruising and ruptured blood vessel; defendant “did not only attempt to
cause serious bodily injury, but actually did cause such injuries”); see also
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Commonwealth v. Payne, 868 A.2d 1257, 1262 (Pa. Super. 2005),
(upholding aggravated assault—serious bodily injury conviction where victim
was shot in back; “fact that [victim] did not die was just blind luck”), appeal
denied, 877 A.2d 461 (Pa. 2005). Accordingly, we find no error in the trial
court’s determination that the Commonwealth established the gunshot
wound suffered by Woods was a “serious bodily injury” within the definition
of 18 Pa.C.S. § 2301.
In summary, neither of Armsted’s challenges to the sufficiency of the
evidence presents a basis upon which to disturb the judgment of sentence.
Next, Armsted contends “the cumulative effect of numerous instances
of prosecutorial misconduct that permeated the trial up to and including the
prosecutor’s closing argument violated the defendant’s right to a fair trial
and requires the award of a new trial.” Armsted’s Brief, at 4, 32. In support
of his position, Armsted argues the prosecutor (1) repeatedly referenced
pre-arrest photographic identifications of Armsted, (2) made numerous
unfounded suggestions that other criminal activity was associated with the
bar that by implication was attributable to Armsted as its owner, (3) argued
facts not in evidence by suggesting that Armsted said he was going to fix the
problems himself with the protestors, and that Armsted and his supporters
had threatened witnesses. See Armsted’s Brief, at 32.
“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
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Helsel, 53 A.3d 906, 920 (Pa. Super. 2012) (citation omitted), appeal
denied, 63 A.3d 1244 (Pa. 2013).
With regard to Armsted’s first claim, regarding the prosecutor’s
references to pre-arrest photographic identifications of Armsted, the record
reflects that the counsel objected and moved for a mistrial. See N.T.,
6/6/2012, at 197, 202.
The Pennsylvania Supreme Court has rejected the suggestion that any
trial reference to a defendant’s photograph in police possession is prejudicial
per se. Commonwealth v. Washington, 927 A.2d 586, 605 (Pa. 2007).
Instead,
after the reference to a photograph the controlling question is
whether or not a juror could reasonably infer from the facts
presented that the accused had engaged in prior criminal
activity. A mere passing reference to photographs from which a
reasonable inference of prior criminal activity cannot properly be
drawn does not invalidate the proceedings since there has been
no prejudice as a result of the reference; so too, where it
appears on the face of the record that there is an explanation of
the police possession of the photograph unrelated to any
inference of prior criminal activity.
Id. at 605 (citations omitted).
Here, the trial court reasoned that the reference was “fleeting and
solitary,” and that, since there was evidence that Armsted had cooperative
dealings with police in the month before the shooting, it was “unlikely that
the jury would have inferred that the photo in question was an arrest photo
and that [Armsted] had a prior criminal record.” Trial Court Opinion,
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8/23/2013, at 11. Our review reveals no abuse of discretion in the trial
court’s determination.
With regard to Armsted’s complaint that the prosecutor suggested that
Armsted was involved with other criminal activity was associated with
operating a nuisance bar, the record reflects the offending comment was
made by the Commonwealth’s witness, Ms. Washington, who stated that the
bar “had a long history of shootings,”8 and that trial counsel interposed an
objection and requested a curative instruction. See N.T., 6/1/2012, at 126–
127; 6/4/2012, at 4, 38–39. The trial court sustained counsel’s objection
and gave a curative instruction as requested. See N.T., 6/4/2012, at 38–
39. The jury is presumed to have followed the instructions of the Court. See
Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006). Therefore,
Armsted’s complaint is without merit.
Finally, Armsted contends that the prosecutor mischaracterized the
evidence by suggesting in her closing that Armsted admitted to wanting to
“fix the problem” himself with the protestors and that Armsted and/or his
supporters had threatened witnesses.
[T]he prosecutor is allowed to vigorously argue his case so long
as his 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
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8
N.T., 6/1/2012, at 127.
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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.
Commonwealth v. Bozic, 997 A.2d 1211, 1229 (Pa. Super. 2010) (citation
and internal citations omitted), appeal denied, 13 A.3d 474 (Pa. 2010), cert.
denied, 131 S. Ct. 2939 (2011).
Here, with regard to the comments in the closing argument of the
prosecutor cited by Armsted, the trial court sustained trial counsel’s
objections, and gave curative instructions. See N.T., 6/12/2012, at 5, 6–7.
In its Rule 1925(a) opinion, the trial court opined that the prosecutors’
remarks do not require reversal. The trial court reasoned:
[Armsted] next argues that the Assistant District Attorney
implied that witnesses had been threatened by [Armsted] and/or
his supporters. During closing argument, the prosecutor
suggested that several witnesses were afraid to testify. N.T.,
Trial Volume I, 6/11/2012, at 184–191, 213–214. A natural
inference from her suggestion was that the witnesses were afraid
of [Armsted]. The Court sustained [Armsted’s] objection and
gave the following curative instruction:
And the final objection had to do with sentiment that [the
prosecutor] conveyed to you towards the end of her
closing, where she asked you to use courage in rendering
your verdict. I’m asking you to disregard that comment.
N.T., Trial Volume I, 6/12/2012, at 7.
While the prosecutor’s implications were certainly
unjustified, this Court cannot conclude that the unavoidable
effect of the comments was to compromise the ability of the jury
to render a true verdict. Given the curative instruction and the
jury’s split decision, the Court concludes that the verdict was
based upon an objective and careful weighing of the evidence.
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Finally, [Armsted] claims that during closing argument, the
Assistant District Attorney attributed statements to the police
officers and to [Armsted] which those witnesses did not make.
The prosecutor told the jury that during the meeting between
[Armsted] and police that occurred on the day of the shooting,
the police “basically told him, ‘This is your business, this is your
problem, you fix it … We helped you as much as we can. This is
your problem.’” N.T., Trial Volume I, 6/11/2012, at 195-196.
(emphasis supplied) [sic]. She went on to argue that, as a
result of his admitted dissatisfaction with the police response to
the protestors and the behavior of Woods and other protestors,
[Armsted] decided to fix the problem himself:
And do you know what the defendant said to himself? He
said, If you’re going to do something right, you’ve got to
do it yourself. That’s what he said.
N.T., Trial Volume I, 6/11/2012, at 196.
The transcript reflects that the prosecutor qualified the
purported statements of police with the word “basically.” With
respect to the supposed soliloquy by [Armsted] [deciding to fix
the problem himself], it is clear from the context of the entire
argument and the trial record that the prosecutor fairly argued
to the jury that they should infer that [Armsted] determined that
he would take matters into his own hands. However, in an effort
to purge any improper considerations from the jurors’ minds
during deliberations, this Court gave the following curative
instruction regarding the prosecutor’s comments about the
meeting:
[The prosecutor] referenced that at that meeting
[Armsted] was told that his bar, to paraphrase, was a
problem and [defense counsel] objected. I’m going to
sustain that objection. Obviously, it is your recollection
that controls. There was, we believe, testimony that …
the protests were part of the meeting and perhaps the
homicide that had been committed the week or weeks
before; there wasn’t any direct evidence stating that he
was told that his bar was a “problem,” quote unquote. So
that objection is sustained.
N.T., Trial Volume I, 6/12/2012, at 5–6.
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Viewing the prosecutor’s closing argument, which
encompassed more than 30 pages of the trial transcript, as a
whole, as well as the Court’s instructions, this Court cannot
conclude that these comments caused the jurors to form a fixed
bias and hostility toward [Armsted] in their minds or prevented
them from weighing the evidence objectively and rendering a
true verdict. Thus, any misconduct by the prosecutor does not
warrant a new trial.
Trial Court Opinion, 8/23/2013, at 17–19.
The trial court has fully addressed Armsted’s arguments, the relevant
portions of the record, its curative instructions, and justified its conclusion
that Armsted was not prejudiced by the prosecutor’s comments during
closing argument. We discern no abuse of discretion in the trial court’s
analysis.
In sum, based on our review of Armsted’s contention that he is
entitled to a new trial based upon the “cumulative effect of numerous
instances of prosecutorial misconduct,” we conclude no relief is due. It is
well settled that “no number of failed claims may collectively attain merit if
they could not do so individually.” Commonwealth v. Williams, 615 A.2d
716, 722 (Pa. 1992). Armsted has failed to demonstrate that any of his
claims of prosecutorial misconduct warrant relief individually, and they do
not do so when considered collectively.
Finally, Armsted contends that the trial court committed reversible
error in failing to give the jury a set of specific instructions, as requested by
Armsted.
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[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
Here, Armsted contends that the trial court committed reversible error
in failing to instruct the jury “that his mere presence at the scene of the
crime, knowledge of [a crime’s] commission, and flight from the scene, even
with the shooter if they so found, was insufficient to convict him.” Armsted’s
Brief, at 36. In support of his argument, Armsted cites Commonwealth v.
Henderson, 378 A.2d 393 (Pa. Super. 1977). Armsted’s reliance on
Henderson is misplaced.
In Henderson, the instruction at issue recited in general terms the
applicable law on the subjects of accomplice liability and conspiracy. See id.
at 400. This Court reversed and remanded for a new trial because the jury
instruction was lacking and prejudicial for not setting forth the significance
or insignificance of mere presence without any other evidence. See id. at
400. Henderson is distinguishable from the present case.
Here, the trial judge instructed the jury on accomplice liability, stating:
There was an objection about accomplice liability and I’m
sustaining that objection as I’ll also mention later, if someone
helps someone escape after a crime is committed, that in and of
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itself would not make them culpable as an accomplice for the
crime that was committed. Just helping someone escape, if
that’s all there was, would not be enough to make you an
accomplice for purposes of the law. So I wanted to clarify that
and also give you a much fuller instruction on accomplice liability
later.
****
There are [two] basic ways that one defendant may be
criminally responsible for conduct committed by another person
or persons. These two ways may apply, even if the defendant in
question was not present at the time and place when a particular
act occurred. And here I’m talking about conspiratorial liability
and accomplice liability. And just to make this clear for you,
there is an agreement among everyone here that the defendant
did not shoot at anyone that evening. However, if you find that
he meets the requirement beyond a reasonable doubt for being
an accomplice, a conspirator or both in this case, then you can
find him guilty of the underlying charges, even though he didn’t
actually shoot at anyone.
****
There is a second and separate way one defendant can be
liable for the conduct of another person or persons; that is, when
the defendant is an accomplice of the person who actually
commits the crimes at issue. There is a basic difference between
being an accomplice and being a conspirator. In a conspiracy,
people agree to act jointly. To be an accomplice, a person does
[not] have to agree to help someone else. The person is an
accomplice if he or she on his or her own act helps the other
person commit another crime. More specifically, the defendant
is an accomplice of another for a particular crime if the following
two elements are proven beyond a reasonable doubt:
A, that the defendant had the intent of promoting or
facilitating the commission of that crime and; B, the defendant
solicits, commands, encourages or requests the other person to
commit it or aids, agrees to aid or attempts to aid the other
person in planning or committing the crime.
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It is important to understand that a person is not an
accomplice merely because he or she was present when a
crime was committed or knows that a crime is being
committed. And again, it is not enough for the
Commonwealth to show that a person helped someone
flee after a crime was committed in and of itself to make
someone an accomplice. …
N.T., 6/12/2012, at 6–7, 16–19 (emphasis added). See also Trial Court
Opinion, 8/23/2013, at 14–15.
As is evident from the above excerpt, the trial judge’s instruction
specifically conveyed to the jury that Armsted’s “mere presence” and
knowledge of the crime alone would not be sufficient to make him an
accomplice. The trial court’s instruction tracks the language of Pennsylvania
Suggested Standard Jury Instruction (Crim) 8.306(a). As such, we discern
no abuse of discretion. See Commonwealth v. Harris, 979 A.2d 387, 395
(Pa. Super. 2009) (finding no abuse of discretion in trial court’s failure to
give defendant’s requested “mere presence” instruction where the substance
of the proposed charge was included the Standard Jury Instructions, and
thus was covered by the conspiracy charge).9 See also Commonwealth v.
Reid, 99 A.3d 427, 455 (Pa. 2014) (rejecting ineffectiveness claim for failing
to raise on direct appeal trial court’s refusal to give requested mere presence
____________________________________________
9
In Harris, the trial judge had rejected Harris’s proposed “mere presence”
instruction, finding that the concept was covered in the conspiracy charge
and was therefore not necessary. The trial judge explained that since the
filing of Henderson, the decision on which Harris based his proposed
instruction, the Standard Jury Instructions had been revised to incorporate
the findings of that case. See Harris, 979 A.2d at 395 n.9.
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instruction; jury was instructed as to the elements of the crimes charged
and, with respect to the accomplice charge, that “[a] defendant does not
become an accomplice merely by being present at the scene or knowing
about a crime”). Accordingly, we reject Armsted’s challenge to the jury
charge as meritless.
Having reviewed the contentions of Armsted, and finding no basis
upon which to disturb the judgment of sentence, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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