Com. v. Banks, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMIL BANKS,
Appellant No. 2262 EDA 2014
Appeal from the Judgment of Sentence July 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009614-2012
BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2015
Jamil Banks appeals from the aggregate judgment of sentence of thirty
to sixty years incarceration imposed by the trial court after a jury found him
guilty of third-degree murder, conspiracy to commit murder, possession of
an instrument of crime (“PIC”), and carrying an unlicensed firearm, and the
court found him guilty of persons not to possess a firearm. We affirm.
The trial court delineated the salient facts as follows.
On April 12, 2008, at about 12:30 p.m., Joan Hill was
working at an insurance office located at 5637 Chew Avenue
when she saw a blue Lincoln town car park with the engine
running on Woodlawn Avenue. A man, later identified as
defendant Salmond, dressed in women’s Muslim clothing exited
the vehicle. Hill believed the man was going to rob Skyline
Restaurant, located around the corner, so she called 9-1-1 and
gave the license plate number of the vehicle.
*
Former Justice specially assigned to the Superior Court.
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At around noon that day, Kerron Denmark and Kenneth
Wiggins went to Skyline Restaurant and Wiggins ordered food.
Immediately after they left the restaurant with Wiggins carrying
his food, a man approached them asking for marijuana. As
Denmark and Wiggins were walking down the street someone
yelled “don’t f’ing move.” Denmark heard gunshots and ran
away.
On April 12, 2008, at 12:44 p.m., while on routine patrol,
Police Officer Christopher Mulderrig was flagged down by a man
on the street and told there had been a shooting about two
blocks away. When Officer Mulderrig arrived at 5643 Chew
Avenue, he observed a male, later identified as Wiggins, lying in
the street with a gunshot wound to the chest. Wiggins
subsequently died from this gunshot to his chest.
After the murder, Detective Thorsten Lucke recovered
surveillance video from Skyline Restaurant. The surveillance
video showed Wiggins and Kerron Denmark enter Skyline
Restaurant. While the men are inside the restaurant, a vehicle
drives by on Chew Avenue and turns left at the corner.
Defendant Banks and defendant [Quentin] Salmond, wearing
women’s Muslim clothing, emerge from the area where the car
had turned from Chew Avenue. The defendants walk towards
Skyline Restaurant. Defendant Salmond stops in an alley while
defendant Banks enters the restaurant. Defendant Banks buys a
bottle of soda, leaves the restaurant, and stands with defendant
Salmond in the alley, out of sight of the camera. After Wiggins
gets his food, he and Denmark leave the restaurant and walk
down the street. Defendant Banks follows closely behind Wiggins
and Denmark while defendant Salmond follows farther back. The
defendants confront Wiggins and Denmark and Wiggins falls to
the ground. Quickly thereafter everyone runs away.
Police Officer Joanne Gain of the Crime Scene Unit
recovered two .22 caliber fired cartridge casings, a Nike Air
Jordan sneaker, and a Mountain Dew bottle from the murder
scene. Officer Gain tested the Mountain Dew bottle for finger
prints and DNA. According to Police Officer John Cannon, an
expert in firearms identification, these two .22 caliber fired
cartridge casings were fired from the same unrecovered firearm.
The bullet recovered from the decedents body and the fired
cartridge casings were not fired from the same firearm.
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On April 14, 2008, at about 9:00 p.m., an unlicensed blue
Lincoln town car was found on fire in the area of Tenth Street
and Chew Avenue. Lieutenant Rodney Wright of the Philadelphia
Fire Department determined that the vehicle was burned
intentionally.
On April 15, 2008, Charles Hayward gave a statement to
police. Hayward explained that in February he had sold the blue
Lincoln town car that Hill had called in to 9-1-1 to Bernard
Salmond, defendant Salmond’s brother. According to Hayward,
about a week previously, Wiggins had robbed defendant
Salmond after they had been gambling.
On April 17, 2008, Richard Hack, a friend of Wiggins, gave
a statement to police. Hack explained that two days before the
murder, defendant Salmond, Wiggins, and himself were
gambling. Defendant Salmond and Wiggins argued about a
gambling debt and then Wiggins choked defendant Salmond and
took $1000 from him. For the next couple of nights, defendant
Salmond and his friends were in the area looking for Wiggins.
On January 13, 2010, Robert Bluefort told police that
about three weeks after the murder, defendant Salmond
confessed to him that he shot Wiggins. According to defendant
Salmond he had to shoot or be shot. Bernard Salmond told
Bluefort that the police had questioned Hayward because the car
that was used in the murder was in his name. Bluefort and
Bernard Salmond then discussed burning the vehicle. Bernard
Salmond stayed with Bluefort for about a month after the
murder.
Trial Court Opinion, 10/3/14, at 2-4.
As noted, the jury found Appellant guilty of the aforementioned
offenses arising from the shooting death of Mr. Wiggins. On July 28, 2014,
the court imposed sentence. Specifically, it sentenced Appellant to twenty
to forty years imprisonment for third-degree murder, followed by two
consecutive terms of incarceration of five to ten years for conspiracy and
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persons not to possess a firearm. In addition, the court imposed concurrent
sentences of three and one-half to seven years imprisonment for carrying an
unlicensed firearm, and one to two years for PIC. Appellant timely filed a
post-sentence motion on July 30, 2014. The court denied that motion and
this timely appeal ensued.
The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant complied,
and the trial court penned its Rule 1925(a) decision. The matter is now
ready for this Court’s review. Appellant presents one issue for our
consideration.
I. Did the Lower Court err in denying defendant’s request for
a mistrial when the prosecutor committed prosecutorial
misconduct during closing arguments by improperly
shifting the burden of proof by suggesting that if the
defendant wanted DNA evidence he could have provided it
himself?
Appellant’s brief at 3.
We consider whether a new trial is mandated due to prosecutorial
misconduct based on an abuse of discretion standard. Commonwealth v.
Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will
not be reversible error “unless the unavoidable effect of such comments
would be 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. Hawkins, 701 A.2d 492,
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503 (Pa. 1997). Further, “comments by a prosecutor must be examined
within the context of defense counsel's conduct.” Id. It is axiomatic that
the Commonwealth bears the burden of proof in a criminal matter and that
the defendant is not required to present any evidence. Commonwealth v.
Wiggins, 328 A.2d 520 (Pa.Super. 1974).
Here, defense counsel argued during his closing,
Not one detective, not Detective Williams, not Detective
Kelhower, not anybody bothers to get a [DNA] sample from my
client to see if it’s him. Why? Because it might . . . . show it’s
not him
....
But all you had to do was get a DNA profile from my client
and you could have been able to tell if that region excluded him.
You could have been able to tell if you had the right guy and
they didn’t even look.
N.T., 3/11/14, 135-136.
The prosecutor responded with the argument objected to by Appellant
below and on appeal. The prosecution maintained,
But now we have a fingerprint. What are we arguing
about now? We are talking about DNA. DNA on a profile that is
so weak nobody can match to it, but it can exclude somebody
and [defense counsel] has equal access to the person. If he is
so confident his client will be excluded, submit your client for
review. He didn’t do it[.]
Id. at 171.
Appellant argues that the prosecutor’s argument improperly shifted
the burden of proof to him and erroneously suggested that he was required
to present evidence to demonstrate his innocence. In his view, the
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prosecutor’s closing statement infringed on his Fifth Amendment rights.
Appellant continues that the trial court’s general instruction to the jury that
the defendant bore no burden of proving his innocence or presenting
evidence was insufficient because it did not specifically address the
prosecutor’s remark.
The Commonwealth responds that the prosecutor’s closing argument
did not shift the burden of proof and was a fair response to Appellant’s own
summation. It contends that once Appellant argued that the absence of
DNA evidence was a result of a poor police investigation and that police did
not collect DNA because it might show that Appellant was not the culprit, the
prosecutor was allowed to respond. In this respect it relies on
Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). Therein, the
defendant claimed that the prosecutor improperly shifted the burden of proof
during his closing argument by asking why the defendant had not presented
three witnesses that defense counsel had suggested she would call during
defense counsel’s opening statement. The Paddy Court found that the
prosecutor’s remarks were fair response.
Further, the Commonwealth notes that the trial court’s instructions
that the Commonwealth had the burden of proof and that the defendant was
not required to present any evidence or prove anything in his own defense
removed any potential prejudice. The Commonwealth also submits that
Appellant’s position that the trial court’s instructions were insufficient
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because it did not explicitly address the prosecutor’s DNA statement is
waived because he did not object to the adequacy of the instruction.
We find that Appellant is entitled to no relief. A jury is presumed to
follow the court’s instructions. Commonwealth v. Mollett, 5 A.3d 291(Pa.Super. 2010). The court appropriately instructed the jury regarding the
Commonwealth’s burden of proof and that Appellant was not required to
present any evidence. See Commonwealth v. Johnson, 838 A.2d 663,
679 (Pa. 2003). The prosecutor’s passing reference to the fact that
Appellant could have submitted his DNA to his own expert was not so
egregious as to form in the minds of the jurors a fixed bias that they could
not weigh the evidence fairly. Moreover, the prosecutor did not in any way
suggest that Appellant was required to testify, infringing on his right against
compelled testimony. While a prosecutor cannot comment on a defendant’s
failure to testify, it may respond to “questions logically raised by the
evidence or lack thereof, or fair responses to the assertions of defense
counsel[.]” Paddy, supra at 317 (internal citations omitted).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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