Com. v. Peay, J ( 2015 )

J-S57004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JALIK PEAY
Appellant No. 495 EDA 2013
Appeal from the Judgment of Sentence September 27, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011915-2010
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 22, 2015
Appellant, Jalik Peay, appeals from the September 27, 2012 aggregate
judgment of sentence of 20½ to 41 years’ imprisonment, imposed after a
jury convicted Appellant of one count each of attempted murder, aggravated
assault, carrying a firearm without a license, carrying a firearm in public in
Philadelphia, and possession of an instrument of a crime (PIC).1 After
careful review, we affirm.
The trial court summarized the relevant factual and procedural
background of this case as follows.
At approximately 9:30 p.m. on March 2, 2010,
Shikeem Alexander-Frederick got into his silver Buick
sedan and drove to the neighborhood store to
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1
18 Pa.C.S.A. §§ 901(a), 2702(a), 6106(a)(1), 6108 and 907(a),
respectively.
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purchase cigarettes. When he arrived at this
intersection, he encountered [Appellant] as well as
Ashia Terry and Arron Williams, three men known for
their affiliation to a gang called the Jungle Mob
Soldiers (JMS).
Mr. Alexander-Frederick and [Appellant] got
into a verbal argument, which escalated into
[Appellant] brandishing a .357 Smith and Wesson
revolver and emptying its chamber into Mr.
Alexander-Frederick.
[Mr.] Alexander-Frederick was rushed to
Einstein Medical Center in extremely critical condition
resulting from five gunshot wounds: two to the left
side of his back, a third to his left thigh, a fourth to
his left hand, and a fifth wound to his left mandible.
Doctors surgically removed bullet fragments, later
determined to be of the .357/.38 caliber family, from
his left lung. Additionally, Mr. Alexander-Frederick
suffered a fractured sternum, three fractured ribs, a
severely lacerated liver, a damaged gallbladder and
colon, and fifty percent of his small intestine was
removed. Doctors performed no less than twelve
surgeries to repair the damage to his body and
placed him in a medically-induced coma for
approximately one month.
An investigation ensued. Two deformed
projectiles were recovered from the intersection of
Chew [Avenue] and Locust [Street]. This ballistic
evidence established that these projectiles were from
a .38 caliber revolver. A .357 Smith and Wesson
revolver belongs to the .38 caliber family.
Detectives conducted several witness
interviews. Mr. Jesse Jones told the police and
testified that in the early afternoon of March 2, 2010,
when he was outside on the 5500 block of Crowson
Street, [Appellant] and Ashia Terry approached him
and asked “what’s up with Keem … when is a good
time to get (rob) him?”
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Mr. Darnell Powell told the police and testified
that he was waiting for the bus at the corner of Chew
and Locust at about 9:15 p.m. or 9:30 p.m. on the
evening of March 2, 2010. He told police that a guy
exited a Buick, went into and exited the pizza shop,
and upon exiting the pizzeria, starting arguing with
another man. The men argued for a few minutes
before one of them shot the other.
Mr. Michael Edward Woodson stated that on
March 2, 2010, he walked past [Appellant], Ashia
Terry, and Arron Williams on the porch at 5534
Crowson Street “and as soon [as] I sat down in my
homie’s living room I heard about eight shots …
about ten to fifteen minutes went by and [Appellant]
came from the bottom of the block to the middle of
the block … where I was at. You can tell that he was
paranoid, sweating and nervous.”
Mr. Alexander-Frederick regained
consciousness on April 7, 2010. On that day, while
talking to his girlfriend, Lovewanda Carter, Mr.
Alexander-Frederick said that [Appellant] shot him.
Ms. Carter informed Detective Knecht of this fact,
and on April 9, 2010, the Detective came to Einstein
Medical Center to memorialize a statement from the
victim. During this interview, Mr. Alexander-
Frederick stated, “… someone called my name then I
heard six gunshots. I felt like I was hit everywhere.
I fell to the ground. Before I passed out I looked
and saw [Appellant] … smiling at me.” Detective
Knecht also produced an eight-person photo array
that included [Appellant]’s photo. Mr. Alexander-
Frederick immediately identified [Appellant] as the
man who shot him.
On April 15, 2010, Philadelphia Police executed
an arrest warrant and search warrant for
[Appellant]’s residence located at 5518 Chew
Avenue. In [Appellant]’s second-floor bedroom,
police recovered a .357 Smith and Wesson revolver
loaded with six live rounds and a loaded .25 caliber
semiautomatic Raven Arms handgun. At trial, the
ballistician could not testify with one hundred
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percent scientific certainty that the bullet fragments
recovered from Mr. Alexander-Frederick’s body were
fired from [Appellant]’s .357 revolver.
The preliminary hearing was scheduled for
June 17, 2010. Mr. Alexander-Frederick, who was
released from the hospital at the end of May 2010,
met with [the Commonwealth] a week prior to the
hearing. During these preparations, he reaffirmed
that he would testify, under oath, that [Appellant]
was indeed the man who shot him on March 2, 2010.
However, [Appellant] took steps to ensure that
Mr. Alexander-Frederick would not testify against
him. While incarcerated, by way of letters and
telephone conversations, [Appellant] remained in
contact with members of the JMS and his family and
made several references to ending Mr. Alexander-
Frederick’s life.
At 5:45 p.m. on June 12, 2010, five days
before the preliminary hearing, Mr. Alexander-
Frederick was executed on the front porch of his
home located at 500 Ashmead Street. He suffered
approximately seven gunshot wounds and died
almost instantly. At the time this trial commenced,
no one, including [Appellant], was charged with the
murder of Shikeem Alexander-Frederick.
Trial Court Opinion, 2/25/14, at 4-7 (internal citations and footnotes
omitted).
On October 26, 2010, the Commonwealth filed an information charging
Appellant with the above-listed offenses, as well as one count each of
terroristic threats, simple assault, and recklessly endangering another
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person (REAP).2 On June 7, 2012, Appellant proceeded to a jury trial, at the
conclusion of which, the jury found Appellant guilty of one count each of
attempted murder, aggravated assault, carrying a firearm without a license,
carrying a firearm in public in Philadelphia, and PIC. The terroristic threats,
simple assault, and REAP charges were nolle prossed. On September 27,
2012, the trial court imposed an aggregate sentence of 20½ to 41 years’
imprisonment.3 On October 5, 2012, Appellant filed a timely post-sentence
motion, which the trial court denied on February 1, 2013. On February 8,
2013, Appellant filed a timely notice of appeal.4
On appeal, Appellant raises the following issues for our review.
[1.] Did the trial court improperly admit unduly
prejudicial hearsay evidence from the
deceased complaining witness at this jury trial,
violating Appellant[’s] confrontation rights?
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2
18 Pa.C.S.A. §§ 2706(a)(1), 2701(a) and 2705, respectively.
3
Specifically, the trial court sentenced Appellant to 18 to 36 years’
incarceration for attempted murder, one and one-half to three years for
firearms not to be carried without a license, and one to two years for
carrying firearms in public in Philadelphia. All sentences were to run
consecutively and no further penalty was imposed on the remaining two
charges.
4
On August 14, 2013, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days. Appellant
did not timely comply. However, on November 19, 2013, this Court granted
Appellant’s application for a remand to the trial court to file a Rule 1925(b)
statement within 60 days. Appellant timely complied with this Court’s order
on December 3, 2013. The trial court filed its Rule 1925(a) opinion on
February 25, 2014.
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[2.] Did the trial court improperly admit extensive
and unduly prejudicial other acts evidence
pursuant to Pennsylvania Rule of Evidence
404(b)?
[3.] Did the [Commonwealth]’s statements during
his closing argument unduly prejudice
Appellant[,] … improperly comment on
[Appellant]’s silence, or improperly attempt to
shift the Commonwealth’s burden?
Appellant’s Brief at 2.
Appellant’s first issue on appeal has two components; however, we
address both parts together because they are intertwined. Appellant argues
that the trial court erred when it admitted into evidence certain statements
of the victim. Specifically, Appellant avers that the Commonwealth failed to
meet its burden under both the forfeiture by wrongdoing exception to the
rule against hearsay and the Confrontation Clause. Id. at 14, 20. We begin
by noting our well-settled standard of review.
The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted), appeal denied, 83
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A.3d 167 (Pa. 2013). However, the determination of “[w]hether Appellant
was denied [his] right to confront a witness under the confrontation clause
of the Sixth Amendment is a question of law for which our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Dyarman, 33 A.3d 104, 106 (Pa. Super. 2011) (citation omitted), affirmed,
73 A.3d 565 (Pa. 2013), cert. denied, Dyarman v. Pennsylvania, 134 S.
Ct. 948 (2014).
“Hearsay means a statement that … the declarant does not make while
testifying at the current trial or hearing; and … a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
“Hearsay is not admissible except as provided by [the Pennsylvania Rules of
Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or
by statute.” Pa.R.E. 802.
This Court has long recognized that to insure a party
the guarantees of trustworthiness resulting from a
declarant’s presence in court, a proponent of hearsay
evidence must point to a reliable hearsay exception
before such testimony will be admitted. Thus, the
burden of production is on the proponent of the
hearsay statement to convince the court of its
admissibility under one of the exceptions.
Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal
quotation marks and citations omitted).
Rule 804 contains numerous exceptions to hearsay, including the one
at issue in this case, pertaining to forfeiture by wrongdoing. The relevant
part of the Rule provides as follows.
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Rule 804. Exceptions to the Rule Against
Hearsay--When the Declarant is Unavailable as
a Witness
…
(b) The Exceptions. The following are not excluded
by the rule against hearsay if the declarant is
unavailable as a witness:
…
(6) Statement Offered Against a Party That
Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully
caused--or acquiesced in wrongfully causing--the
declarant’s unavailability as a witness, and did so
intending that result.
Pa.R.E. 804(b)(6).
Likewise, the Sixth Amendment provides in relevant part that “[i]n all
criminal prosecutions, the accused shall enjoy the right … to be confronted
with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.
Washington, 541 U.S. 36 (2004), the United States Supreme Court
declared a dramatic change in Confrontation Clause doctrine.5 The Court
held that “[t]estimonial statements of witnesses absent from trial [may be]
admitted only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Id. at 59.
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5
The Confrontation Clause of the Sixth Amendment is applicable to the
States via the Due Process Clause of the Fourteenth Amendment.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citation
omitted).
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Crawford generally divests the Confrontation Clause from state hearsay law
and evidence rules.6 See generally Ohio v. Clark, 135 S. Ct. 2173, 2180
(2015).
However, the United States Supreme Court has held that the
Confrontation Clause contains an exception of forfeiture by wrongdoing.
Giles v. California, 554 U.S. 353, 359 (2008). At common law,
“unconfronted testimony would not be admitted without a showing that the
defendant intended to prevent a witness from testifying.” Id. at 361
(emphasis in original). The High Court noted that Federal Rule of Evidence
804(b)(6) “codifies the forfeiture doctrine.” Id. at 367. Federal Rule
804(b)(6) and Pennsylvania Rule 804(b)(6) are identical. Compare
Fed.R.E. 804(b)(6), (allowing admission of “[a] statement offered against a
party that wrongfully caused--or acquiesced in wrongfully causing--the
declarant’s unavailability as a witness, and did so intending that result[]”,
with Pa.R.E. 804(b)(6) (same). Therefore, if the Commonwealth met its
burden under Rule 804(b)(6), it will have a fortiori satisfied the exception to
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6
Prior to Crawford, the controlling case in this area was Ohio v. Roberts,
448 U.S. 56 (1980). In Roberts, the United States Supreme Court held
that the Confrontation Clause permitted the use of hearsay testimony of an
unavailable declarant at trial if it fell into a “firmly rooted hearsay exception”
or if the statement bore “particularized guarantees of trustworthiness.” Id.
at 66.
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the Confrontation Clause.7 Commonwealth v. King, 959 A.2d 405, 416
(Pa. Super. 2008). To satisfy its burden under Rule 804(b)(6), the
Commonwealth “must establish by a preponderance of the evidence that:
“(1) the defendant … was involved in, or responsible for, procuring the
unavailability of the declarant … and (2) the defendant … acted with the
intent of procuring the declarant’s unavailability as an actual or potential
witness.” Id. at 415, quoting United States v. Dhinsa, 245 F.3d 635, 653-
654 (2d Cir. 2001), cert. denied, Dhinsa v. United States, 534 U.S. 897
(2001).
In this case, as detailed by the trial court, the Commonwealth
presented ample evidence that Appellant was involved in procuring
Alexander-Frederick’s unavailability, thus precluding him from testifying at
Appellant’s trial. In its motion in limine, the Commonwealth provided
transcribed telephone conversations from when Appellant was incarcerated
awaiting trial. Therein, Appellant discussed with his father the witnesses
who were going to testify against him at his upcoming trial.
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7
The parties do not appear to dispute that Alexander-Frederick’s statements
to the police at the hospital were testimonial and Appellant was not afforded
a prior opportunity to cross-examine him. See, e.g., Hammon v. Indiana,
547 U.S. 813, 830 (2006) (concluding that victim’s statement to police
during interview that took place in her living room after domestic
disturbance was testimonial for the purposes of the Confrontation Clause).
Therefore, unless the Commonwealth met its burden under the forfeiture by
wrongdoing exception, the Confrontation Clause would have rendered
Alexander-Frederick’s statements inadmissible.
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Commonwealth’s Motion In Limine, 11/22/11, at 12. Appellant identified
Alexander-Frederick by name to his father. Id. at Exhibit C-8, at 13.
Appellant also discussed “a rat” with another caller and how the caller should
“get someone to go up there and talk to that bull though man.”
Commonwealth’s Motion In Limine, 11/22/11, at 14. Appellant and this
caller also discussed how the caller reacts in “certain situations.” After
Alexander-Frederick talked to the police, Appellant, while speaking with his
father, discussed how Alexander-Frederick “got two sets of bullets in him.”
Id. at 15. His father responded by saying “[h]e aint [sic] gonna testify and
all that[.]” Id.
After careful review, we conclude Appellant is not entitled to relief.
The Commonwealth’s recorded conversations, as highlighted above,
demonstrate that Appellant actively discussed and threatened the person
who was talking to the police about his case. As the Commonwealth points
out, “[t]he physical evidence and statements from the witnesses only
indicate the presence of one shooter and one gun in shooting Mr. Alexander-
Frederick the first time.” Id. at 16. Therefore, it is logical that Appellant’s
use of the term “two sets of bullets” more likely than not referred to an
instruction to injure Alexander-Frederick a second time, with a second set of
bullets. As the telephone calls also reveal, the discussions were all in the
context of Alexander-Frederick testifying in Appellant’s case. Therefore, we
conclude the Commonwealth did meet its burden of showing that Appellant
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was involved in procuring Alexander-Frederick’s unavailability for the
purpose of him not testifying in Appellant’s case. As a result, the trial court
did not abuse its discretion in admitting Alexander-Frederick’s statement
under Rule 804(b)(6), and Appellant’s Confrontation Clause rights were not
violated. See Fischere, supra; Dyarman, supra.
In his second issue, Appellant avers that the trial court abused its
discretion when it admitted evidence of certain bad acts pursuant to the res
gestae exception under Pennsylvania Rule of Evidence 404(b). The
Commonwealth counters that the trial court did not abuse its discretion as
the evidence completed the history of the case for the jury.
Commonwealth’s Brief at 13. The Commonwealth also avers that the
evidence was admissible to show consciousness of guilt. Id.
Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to
show that a defendant acted in conformity with
those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to
prove some other relevant fact, such as
motive, opportunity, intent, preparation, plan,
knowledge, identity, and absence of mistake or
accident. [Id. at] 404(b)(2). In determining
whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance
the probative value of such evidence against
its prejudicial impact. Commonwealth v.
Powell, 598 Pa. 224, 956 A.2d 406, 419
(2008).
[Commonwealth v. Sherwood, 982 A.2d 483, 497
(Pa. 2009), cert. denied, Sherwood v.
Pennsylvania, 559 U.S. 1111 (2010)]. The
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Commonwealth must prove beyond a reasonable
doubt that a defendant has committed the particular
crime of which he is accused, and it may not strip
him of the presumption of innocence by proving that
he has committed other criminal acts.
Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d
631, 633 (1979); Commonwealth v. Constant,
925 A.2d 810, 821 (Pa. Super. [2006]), appeal
denied, 594 Pa. 675, 932 A.2d 1285 (2007).
Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc),
appeal denied, 72 A.3d 603 (Pa. 2013). Although Rule 404(b) is colloquially
known as a rule prohibiting evidence of prior bad acts, our cases have held
that, consistent with the text of Rule 404, its exceptions may permit the
Commonwealth to introduce evidence of subsequent bad acts.
Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005) (citation
omitted), appeal dismissed, 924 A.3d 1203 (Pa. 2007). Our Supreme Court
has long recognized a res gestae or “complete story” exception to Rule
404(b)(1). See Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002)
(stating, evidence of other crimes may be admissible “where [it] was part of
the chain or sequence of events which became part of the history of the case
and formed part of the natural development of the facts[]”) (citation
omitted).
Our Supreme Court and this Court have recognized that a defendant’s
subsequent bad acts directed at a witness are generally admissible under the
res gestae exception to Rule 404(b)(1). In Commonwealth v. Flamer, 53
A.3d 82 (Pa. Super. 2012), Flamer and his uncle were arrested for the
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murder of the victim, Allen Moment, Jr. Id. at 84. Before Flamer’s trial,
“the Commonwealth planned to call Abdul Taylor, who, according to the
Commonwealth, had knowledge of the plot by [Flamer and his uncle] to kill
Moment.” Id. at 85. Taylor was killed three months before trial. Id. The
Commonwealth sought to introduce multiple pieces of evidence showing that
Flamer and his uncle conspired with the gunman to kill Taylor to prevent him
from testifying. This Court held that “evidence of a conspiracy by [Flamer
and his uncle] to kill Taylor to prevent him from testifying at the Moment
murder trial … [was admissible] to show the history of the case and the
guilty conscience of the defendants.” Id. at 86-87. This is consistent with
the cases from our Supreme Court. See, e.g., Commonwealth v.
Murphy, 657 A.2d 927, 932 (Pa. 1995) (stating, “[t]he facts behind the
murder of [a witness] were so interwoven with the facts of the case [for
which the defendant was on trial] that such evidence was properly admitted
as res gestae[]”).
Here, the Commonwealth introduced the following evidence.
(1) [Appellant]’s affiliation with the Jungle Mob
Soldiers; (2) Ashia Terry and Arron Williams[’]
affiliation with the Jungle Mob Soldiers; (3) recorded
telephone conversations [Appellant] had with his
father and Ashia Terry while incarcerated regarding
his case; (4) testimony from Raul West describing
the events of June 12, 2010, the day Mr. Alexander-
Frederick was murdered; (5) the identification that
Arron Williams murdered Mr. Alexander-Frederick;
(6) recorded telephone conversations about
[Appellant] confronting Edward Woodson about his
testimony; (7) [Appellant]’s hand-written letters
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attempting to distance himself from Ashia Terry; (8)
[Appellant]’s hand-written letter attempting to solicit
a women’s help because she is loyal; (9)
[Appellant]’s statement to Mr. Jesse Jones in the
afternoon hours of March 2, 2010 asking when and
where he can find Mr. Alexander-Frederick; and (10)
recorded telephone conversations where [Appellant]
admits to owning the firearms Philadelphia police
recovered while executing a search warrant of
[Appellant]’s home.
Trial Court Opinion, 2/25/14, at 19.
The trial court further explained its reasoning as follows.
[Appellant]’s statements to Mr. Jesse Jones
inquiring about the victim’s whereabouts in the
afternoon hours of March 2, 2010 is the only act the
Commonwealth moved to introduce that happened
prior to the crime. [Appellant] asked Mr. Jones,
“what’s up with Keem … when is a good time to get
him?” This question strongly suggests that the
shooting was not accidental; it was premeditated
and committed with the intent to take Mr. Alexander-
Frederick’s life. Thus, the requirements of Pa.R.E.
404(b)(2) are met and this evidence is admissible.
…
The remainder of the other bad acts the
Commonwealth moved to admit occurred after March
2, 2010 and were triggered by Mr. Alexander-
Frederick’s signed, adopted statement to Philadelphia
Detectives on April 9, 2010 that identified
[Appellant] as his assailant. This identification is the
only evidence linking [Appellant] to the shooting.
After Mr. Alexander-Frederick identified [Appellant],
[Appellant] was arrested and held in custody.
[Appellant]’s incarceration proved to be his
proverbial Achilles’ heel. Despite [Appellant]’s
forfeiture of his right to privacy while confined, he
maintained contact with his family and members of
the Jungle Mob Soldiers via the prison telephones.
As such, his conversations were recorded. Recorded
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telephone conversations between [Appellant] and his
father on April 17 and 19, 2010 and [Appellant] and
his mother on April 18, 2010 strongly suggest that
once [Appellant] learned the identity of his accuser,
he sought revenge. Recorded telephone
conversations between [Appellant] and [Terry] on
April 17, 2010 and April 20, 2010 allude to the fact
that [Appellant] solicited help from members of the
JMS to eliminate Mr. Alexander-Frederick. Letters
recovered from [Appellant]’s jail cell confirm
[Appellant]’s affiliation with the JMS and his
connections to [Terry]. [Appellant]’s efforts to
prevent Mr. Alexander-Frederick from testifying
against him came to fruition one week prior to the
preliminary hearing when the witness was shot and
killed on the front porch of his home.
…
[T]his evidence would prevent the jury from
wondering what happened to the complaining
witness and would prevent speculation as to why he
was not testifying in court. The evidence admitted
pursuant to Pa.R.E. 404(b) showed exactly where he
went and the circumstances surrounding his death.
… March 2, 2010 simply began this saga. Events
that followed the shooting of Mr. Alexander-Frederick
on March 2, 2010 were appropriately admitted to
enable the jury to properly understand the entire
chain of events.
Id. at 20-23 (internal quotation marks and footnotes omitted).
After careful review, we agree with the trial court’s conclusion. The
Commonwealth’s evidence explained why the complaining witness of the
crime for which Appellant was on trial was not present to testify. The
victim’s death transpired as a direct result of Appellant’s arrest and trial in
this case. Therefore, in our view, the Commonwealth’s evidence
surrounding the victim’s ultimate demise “w[as] so interwoven with the facts
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of the case [for which the defendant was on trial] that such evidence was
properly admitted as res gestae.” Murphy, supra. As a result, the trial
court did not abuse its discretion in granting the Commonwealth’s motion in
limine. See Fischere, supra.
In his third issue, Appellant argues the trial court erred when it denied
his motion for a mistrial following certain statements made by the
Commonwealth in its summation. Appellant’s Brief at 39. The
Commonwealth counters that the trial court properly denied Appellant’s
motion, as its comments were in fair response to those made by Appellant in
his own closing argument to the jury. Commonwealth’s Brief at 15-16.
We begin by stating our standard of review.
It is well-settled that the review of a trial court’s
denial of a motion for a mistrial is limited to
determining whether the trial court abused its
discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will … discretion is
abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is
of such a nature that its unavoidable effect is to
deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict. A
mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation
omitted).
With specific reference to a claim of
prosecutorial misconduct in a closing statement, it is
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well settled that “[i]n reviewing prosecutorial
remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather,
must be considered in the context in which they
were made.” Commonwealth v. Sampson, 900
A.2d 887, 890 (Pa. Super. 2006) (citation omitted)[,
appeal denied, 907 A.2d 1102 (Pa. 2006)]. 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).
During its closing argument, the Commonwealth made the following
comment to the jury.
Ladies and gentlemen, that’s less than 24 hours after
he got arrested. Counsel wants to play the rest of
that recording, by all means. He believes there’s
another connotation he could[n’t] have done it.
There’s none. There’s nothing else that he’s talking
about.
N.T., 6/12/12, at 54-55. Appellant argues the Commonwealth improperly
commented on facts not in evidence because the trial court had already
ruled that Appellant could not introduce the referenced recordings.
Appellant’s Brief at 41. Appellant further avers that the Commonwealth
engaged in impermissible burden-shifting. Id. at 42. As noted above, the
Commonwealth argues that the trial court properly concluded that its
comment was a fair response to Appellant’s own summation.
Commonwealth’s Brief at 15-16.
This Court has explained the fair response doctrine in the following
terms.
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While it is improper for a prosecutor to offer any
personal opinion as to guilt of the defendant or
credibility of the witnesses, it is entirely proper for
the prosecutor to summarize the evidence
presented, to offer reasonable deductions and
inferences from the evidence, and to argue that the
evidence establishes the defendant’s guilt. In
addition, the prosecutor must be allowed to respond
to defense counsel’s arguments, and any challenged
statement must be viewed not in isolation, but in the
context in which it was offered. The prosecutor must
be free to present his or her arguments with logical
force and vigor.” Within reasonable bounds, the
prosecutor may employ oratorical flair and
impassioned argument when commenting on the
evidence ….
Commonwealth v. Riggle, --- A.3d ---, 2015 WL 4094427, *7 (Pa. Super.
2015) (citation omitted).
In the case sub judice, Appellant made the following argument in his
summation regarding the tapes in question.
It should be instructed to you as we all heard
yesterday and we’ll talk about these prison tapes in a
moment that [Appellant] who’s been in jail for about
two years awaiting his trial on this case you heard
from those two years about probably 15 minutes of
tape and you heard the [Commonwealth] fastforward
[sic] them through portions of those tapes picking
out snippets that they want to try to use to convince
you that something very cerebral was going on.
…
I think in regards even to those portions of the tape
which the Commonwealth played they felt they were
the most incriminating portions of those tapes they
had all the last two years to go through that’s the
best that they can do.
N.T., 6/12/12, at 16-17, 31.
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The trial court rejected Appellant’s arguments based on the following.
[Appellant] clearly opened the door to the
[Commonwealth]’s comments regarding the prison
tapes. Once the door is opened, [Appellant] cannot
slam it shut because he does not like the animal that
is behind it. The [Commonwealth] simply responded
to these comments. [The Commonwealth] did not
suggest that [Appellant] had to prove his innocence,
and as such, [the Commonwealth’s] comments did
not amount to burden shifting.
Trial Court Opinion, 2/25/14, at 26.
After careful review, we agree with the trial court’s conclusion.
Appellant argued to the jury that the Commonwealth only selected certain
portions of the prison tapes to make Appellant sound the most guilty. The
Commonwealth was free to respond to such argument by simply
commenting that there was more dialogue recorded than what had been
played. As the trial court recognized, the Commonwealth’s response did not
imply that Appellant had the burden to negate the Commonwealth’s case.
However, even if it could be reasonably interpreted to do so, we note
the trial court instructed the jury as part of its charge that a criminal
defendant “is not required to present evidence or to prove anything. If the
evidence that is presented fails to meet the Commonwealth’s burden, your
verdict must be not guilty.” N.T., 6/12/12, at 64-65. It is axiomatic that
the jury is presumed to have followed the trial court’s instructions.
Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation
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omitted). Based on all of these considerations, the trial court did not abuse
its discretion in denying Appellant’s motion for a mistrial.
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are devoid of merit. Accordingly, the trial court’s September 27, 2012
judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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