Com. v. Williams, S. ( 2016 )

J. S67006/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAHEED WILLIAMS, : No. 3275 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, September 21, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003684-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2016
Shaheed Williams appeals from the September 21, 2015 aggregate
judgment of sentence of 28 to 56 years’ imprisonment imposed after a jury
found him guilty of attempted murder, aggravated assault, witness
intimidation, criminal conspiracy, and unlawful possession of a firearm.1
After careful review, we affirm.2
The trial court summarized the lengthy factual background of this case
as follows:
On November 22, 2010, on the 2400 block of
Turner Street, in Philadelphia, after witnessing
Aki Jones place a gun to the head of a juvenile
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901, 2702, 4952, 903, and 6105, respectively.
2
The Commonwealth has not filed a brief in this matter.
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female, Michael Vessels called police. Vessels also
heard Jones shoot the gun into the air. Jones was
arrested the same day.
According to Tiffany Reid (Jones’ girlfriend at
the time), prior to Jones’ preliminary hearing for the
gun matter, Jones did not know the identity of the
witness against him. Jay Thomas, Jones’ friend, was
supposed to reach out to Troy Cooper (also known as
“Taz”) for information on the witness as Cooper and
the witness lived on the same block.
On December 13, 2010, Vessels testified at a
Preliminary Hearing against Jones. Reid, who was
present at the hearing, informed Jones that she saw
the witness there. At some point after the
preliminary hearing, Cooper informed Jones of
Vessels’ name and address.
About a week after the preliminary hearing,
Cooper approached Vessels and disclosed that the
person arrested for shooting the gun was his friend.
Cooper told Vessels that he did not need to go to
court on this matter. In response, Vessels told
Cooper that because he called 9-1-1 the day Jones
was arrested, he felt obligated to go to court.
In March or April 2011, Jones, while
incarcerated, devised a plan to prevent Vessels from
testifying against him. Jones told Reid that, if need
be, the witness would be harmed to prevent him
from going to court. Jones’ plan involved Thomas,
whose role was to find Vessels and kill him. At
Jones’ request, Reid contacted Thomas, and relayed
that Jones said to “handle it,” referring to the
witness, [to] which Thomas replied, “I know, I got
it.”
In the subsequent months, Cooper approached
Vessels numerous times about Vessels not testifying.
In one conversation, Cooper told Vessels that Jones’
girlfriend would provide $500 for Vessels not to
testify. As the conversations about not testifying
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increased, Vessels avoided Cooper by entering the
neighborhood from different directions.
On September 19, 2011–a week before the
start of Jones’ trial, scheduled to start on []
September 26–Jones, from prison, instructed Reid to
call Thomas in a three-way call. During the
three-way call, Jones stated, “Yeah, that’s part one.
Part one, I was away.” Thomas replied, “Yeah. And
now we got to get part two out of the way.” At trial,
Reid testified that “part two,” which was always part
of the plan, was to find Vessels and to shoot him to
ensure that he did not go to court.
On September 23, 2011–just three days before
the start of Jones[’] trial–in a recorded call between
Jones and Reid, Jones stated “Jay [Thomas] gonna
be on post.” At trial, Reid testified that the term
“post” meant that Thomas would wait for Vessels
outside of his house to see whether he was going to
court.
On this same date, September 23, in another
phone call between Reid and Jones, Jones instructed
Reid to call Pop Hoagie (Charles Alexander). Reid
testified that both Jones and Cooper knew Alexander
from the neighborhood. Two days later, on
September 25–the day before the scheduled trial–
Alexander approached Reid at a basketball court and
gave her $500. Approximately fifteen minutes after
Reid collected the money, Jones and Reid discussed,
in a recorded prison call, the money amount. Jones
then directed Reid to give the money to Cooper[.]
....
On September 25, 2011, the day before Vessels was
shot on the street, Reid took the money to Cooper’s
house. While at Cooper’s house, Reid spoke with
[appellant] and exchanged phone numbers. Reid
testified at trial that Jones knew [appellant] as they
were from the same neighborhood. After exchanging
numbers, [appellant] asked Reid to call him at 6:30
the next morning so that he could stand post outside
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Vessels’ house. [Appellant] informed Reid that if he
saw Vessels going to court, he would kill him.
On the same day that Reid dropped the money
off to Cooper, Cooper approached Vessels outside his
home and offered him the $500 not to appear in
court. Cooper said, “they finally dropped it off,”
referring to the money. Vessels replied that he could
not take it. Cooper responded with, “then it is
whatever.” Vessels testified at trial that he
understood “whatever” to mean “anything goes” and
that “if you don't do what I want you to do, then I’m
going to do something to you.”
The next day, September 26, 2011, at
6:30 a.m., Reid called [appellant]. Reid testified at
trial that this was the wake-up call that [appellant]
had requested so he could stand post outside
Vessels’ home. After the wake-up call, there were
another four phone calls between [appellant] and
Reid, from 7:06 and 9:11 a.m.
That morning, September 26, at around
9:30 a.m., Vessels left his house on the way to meet
a member of his church. As he walked to the corner
on the next block, [appellant] jumped out,
immediately drew a silver revolver, and said, “You
like to talk.” [Appellant] then placed the gun six
inches from Vessels’ face and pulled the trigger.
Vessels blocked the shot with his wrist. [Appellant]
fired again, shooting Vessels in the side. After the
second shot, Vessels took off running, with
[appellant] in close pursuit. While Vessels ran,
[appellant] fired several more shots, striking Vessels
in his elbow and back, the latter of which knocked
him to the ground. [Appellant] then stood over
Vessels, and said[,] “you won’t talk no more,” and
shot Vessels in the neck.
Within a few minutes of the shooting, at
9:45 a.m., [appellant] called Reid. At 9:56 a.m.,
Reid called [appellant] back. At 9:59 a.m., Reid sent
a text message to [appellant], followed by an
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exchange of several more text messages. Lastly, at
2:59 p.m., Reid called [appellant].
On the same day, Reid also spoke with
[appellant] in person. According to Reid, [appellant]
informed her that Vessels did not go to court and
described in detail how he had shot him. [Appellant]
told Reid that he spotted Vessels leaving his house,
dressed like he was ready to go to court. [Appellant]
then ran around the corner, up a block, approached
Vessels from behind, and shot him. [Appellant] told
Reid that Vessels had placed his hand in front of his
face and was shot in the arm. He also told Reid that
he shot Vessels five times, and that he tried to keep
shooting, but the gun jammed.
In January 2012, [p]olice encountered
[appellant] and recovered his cell phone. Police
retrieved a photograph from the phone which
depicted a revolver. At trial, Special Agent Detective
Charles Bowman testified that the description of the
gun used to shoot Vessels was similar to the
photograph of the revolver found on [appellant’s] cell
phone. Bullet fragments recovered at the shooting
scene of Vessels were also consistent with a
.38 caliber or 9 millimeter, which are both capable of
being fired from a revolver.
On February 14, 2012, the Bureau of Alcohol,
Tobacco, Firearms (“ATF”) executed a search
warrant on Tiffany Reid’s home. From her home,
federal agents recovered a letter sent to Reid by
Jones from prison. The letter was addressed to
Lulu Blackchild. (Lulu is Reid’s middle name and
Jones sometimes referred to her by that name.)
Written on the back of the letter was “The date is
5/25/11 and the last letter received from you is
5/18. Payback is fair.” At trial, Reid testified that
the handwriting was Jones’. Inside the envelope was
a transcript of Vessel[s’] preliminary hearing
testimony regarding the incident in which Jones had
shot a gun into the air.
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On November 14, 2012, Vessels identified
[appellant] from a photographic array as his shooter.
At trial, Vessels again positively identified
[appellant].
In March of 2014, Carla Reid received a letter
at her home addressed to her daughter, Tiffany Reid.
The letter was addressed from another prisoner,
Jacque Walker, with a return address from the
Philadelphia prison system. Jones was imprisoned
with Walker in the same building at the CFCF, and in
the same pod (Pod One), at the time the letter was
post-marked (March 26, 2014). In the letter, the
author threatened Tiffany Reid and her family.
Although the letter was not in Jones’ handwriting,
the author referenced “Zaire” as his son–Jones and
Reid’s child–and referenced several of Reid’s family
members by name. The letter was also signed with
“A.DoTTTTTT,” Jones’ nickname. After reading the
letter, Carla Reid took it directly to the police.
Jones’ letter also references the shooter in the
subject crime. Any reference to [appellant’s]
involvement in the actual shooting of Vessels[] was
redacted with neutral phrases. Portions of the letter
that potentially exonerated [appellant] were left in
with defense counsel’s approval.
Trial court opinion, 12/23/15 at 2-8 (citations to notes of testimony and
footnotes omitted).
On February 28, 2014, appellant was arrested and charged in
connection with this incident. On June 8, 2015, appellant proceeded to a
jury trial alongside co-defendant Jones and was subsequently found guilty of
the aforementioned offenses on June 15, 2015. On September 21, 2015,
the trial court sentenced appellant to an aggregate term of 28 to 56 years’
imprisonment. On September 30, 2015, appellant filed a post-sentence
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motion arguing that the verdict was against the weight and sufficiency of the
evidence, that his right against self-incrimination was violated, and that his
aggravated-range sentence should be modified. (See “Motion for
Post-Sentence Relief,” 9/30/15 at ¶¶ I-III.) The trial court denied
appellant’s post-sentence motion on October 13, 2015. Thereafter, on
October 29, 2015, appellant filed a timely notice of appeal. On November 2,
2015, the trial court ordered appellant to file a concise statement of errors
complained of on appeal in accordance with Pa.R.A.P. 1925(b). Appellant
filed his timely Rule 1925(b) statement on November 23, 2015, and the trial
court issued its Rule 1925(a) opinion on December 23, 2015.
On appeal, appellant raises the following issues for our review:
I. Was [a]ppellant deprived of his state and
federal constitutional right of confrontation by
the admission of statements of a non-testifying
co-defendant implicating [a]ppellant in the
shooting for which he was charged?
II. Was [a]ppellant deprived of his state and
federal constitutional right against
self-incrimination when a Philadelphia Police
Detective testified that [a]ppellant ended an
interview when asked where he was on the day
of the shooting that was the subject of the
trial?
III. Did the admission of a photograph of a gun
allegedly retrieved from [a]ppellant’s mobile
phone violate [a]ppellant’s right of due process
guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution
and Article I, Section 9 of the Pennsylvania
Constitution?
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IV. Did the Commonwealth’s attorney violate
[a]ppellant’s right of due process by referring
during closing arguments [] to guilty verdicts
reached by other juries in cases unrelated to
[a]ppellant’s?
V. Did the [trial] court impose an illegal sentence
of 20 to 40 years on the charge of [a]ttempted
[m]urder when there was no specific finding by
the jury that [a]ppellant inflicted serious bodily
injury?
Appellant’s brief at 4-5.
Appellant first argues that his rights under the Confrontation Clause 3
were violated when the trial court permitted the Commonwealth to introduce
a March 26, 2014 letter that Jones wrote to Reid implicating appellant in the
shooting. (Id. at 14.) Appellant contends that despite the trial court’s
redaction of his nickname -- Pizza -- from said letter, “it was obvious from
the content of the letter and other evidence . . . that Jones was referring to
[a]ppellant.” (Id. at 14, 18-19.) In support of this contention, appellant
cites the following three redacted portions of Jones’ letter:
Original: How they saying Pizza is the shooter all
of a sudden?
Redacted: How they saying who shooter all of a
sudden?
******
3
The Confrontation Clause of the Sixth Amendment, made applicable to the
States via the Fourteenth Amendment, provides 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.
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Original: I no you aint tell them people you the
one that told Pizza to do that shit. It’s in
yall phones records dummy. You texted
him making sure he out there & all that!
Redacted: I no you aint tell them people you the
one that told someone to do that shit.
It’s in yall phones records dummy. You
texted him making sure he out there &
all that!
******
Original: I talk to Pizza already and I know what’s
is on his mind. He don’t want to believe
it is you who is saying name. He will find
out and he know my plans with you and
he got some n****s that will move too.
Redacted: I talk to someone already and I know
what is on someone’s mind. Someone
don’t want to believe it is you who is
saying name. Someone will find out
and that person know my plans with
you and that person got some [n]****
that will move too.
Id. at 18, citing notes of testimony, 6/11/15, at 217-220 (emphasis in
original). Appellant argues that the probative value of this letter is
outweighed by its prejudicial impact and challenges the admission of these
statements on the grounds that they violated the United States Supreme
Court’s decision in Bruton v. United States, 391 U.S. 123 (1968), and its
progeny. (Appellant’s brief at 14-17, 19.) This claim is meritless.
In the seminal case of Bruton, the United States Supreme Court
recognized a narrow exception to the general rule that cautionary
instructions are sufficient to eradicate any potential prejudice in joint trials.
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Bruton, 391 U.S. at 124-126. The United States Supreme Court held that a
defendant is deprived of his rights under the Confrontation Clause when his
non-testifying co-defendant’s confession naming him as a participant in the
crime is introduced at trial, even if the jury is instructed to consider that
confession only against the co-defendant. Id. at 135-136.
Our supreme court has recently summarized Bruton and its progeny
as follows:
The general rule in a joint trial of
co-defendants is that the law presumes that the jury
can follow an appropriate instruction, which explains
that evidence introduced with respect to only one
defendant cannot be considered against other
defendants. Bruton departed from this salutary
general rule only by concluding that where there are
“powerfully incriminating statements” admitted
against a non-testifying co-defendant who stands
side by side with the accused, such statements can
be devastating as well as inherently suspect when
they shift the blame to the accused. Following
Bruton, the U.S. Supreme Court has approved
redaction and a limiting instruction as a means of
eliminating the possible spillover prejudice arising
from the admission of a non-testifying
co-defendant’s confession against that co-defendant
at a joint trial. Bruton and its progeny establish
Sixth Amendment norms governing state criminal
trials, and this Court has had ample opportunity to
consider and apply the precepts. In our own
implementation of this federal law, we have
explained that the challenged co-defendant’s
statement must be incriminating on its face and that
redactions involving the substitution of neutral
pronouns . . . instead of names or other obvious
methods of deletion, do not obviously identify the
other co-defendants.
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Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014) (citations
omitted).
Applying these well-settled principles, we conclude that the statements
in Jones’ letter did not give rise to a Bruton violation because they did not
explicitly reference or facially incriminate appellant in any way. As the trial
court recognized in its opinion,
[t]he letter was properly redacted with all references
to [appellant] related to the shooting replaced by
neutral phrases, such as “who” and “someone.” . . .
[B]ased on the evidence presented at trial, it was not
automatic that [appellant] was the shooter
referenced in Jones’ letter, as the jury was free to
believe [] Thomas shot Vessels.
Trial court opinion, 12/23/15 at 9-10.
Furthermore, the record reflects that the trial court provided two
separate cautionary instructions to the jury emphasizing that they were
prohibited from considering the contents of this letter against appellant.
Specifically, the trial court instructed the jury as follows:
Members of the jury, remember I told you
some evidence can be admitted and you have to
consider evidence in this case against one defendant
and not the other defendant. Statements of
co[-]conspirators can be admitted against each other
when conspiracy is ongoing. But by the date of this
letter, clearly there is no evidence that the
conspiracy was still ongoing at that time. So this
evidence is only admissible against Aki Jones, and I
[will] talk about that when I give my final
instruction.
Notes of testimony, 6/11/15 at 222.
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And I also just want to remind you there was some
evidence during this trial that was specially admitted
against Mr. Jones that was [sic] pertained to him and
did not pertain to [appellant]. And I’m talking about
that letter that was allegedly sent to Mr. [sic] Reid.
Because, remember . . . statements of the
co[-]conspirator during the course of the conspiracy
can be admitted and are admitted against each of
the co[-]conspirators. Once the conspiracy has
ended, then that evidence can only, in any
statement made by one co[-]conspirator, cannot be
introduced because that conspiracy has ended. So if
you were a previous conspirator, what you then say
after it is over with does not pertain to the other
person. So that’s why I’m reminding you that the
contents of that letter was [sic] introduced as
evidence against Mr. Jones and not [appellant].
Notes of testimony, 6/15/15, at 36-37.
Courts in this Commonwealth have repeatedly recognized that “when
examining the potential for undue prejudice, a cautionary jury instruction
may ameliorate the prejudicial effect of the proffered evidence.”
Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), cert. denied,
135 S.Ct. 164 (2014) (citations omitted). Jurors are presumed to follow the
trial court’s instructions. Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa.
2013), cert. denied, 135 S.Ct. 50 (2014). Accordingly, for all the foregoing
reasons, we conclude that appellant’s claim of trial court error must fail.
Appellant next argues that the trial court abused its discretion in
allowing the Commonwealth to elicit testimony from Philadelphia Police
Detective James Kopaczewski that referenced appellant’s pre-arrest silence.
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(Appellant’s brief at 20.) Specifically, Detective Kopaczewski testified as
follows:
[The Commonwealth:] And did you ask him where
he was on September 26, 2011?
[Detective Kopaczewski:] I did and he immediately
-- just got up and that was it.
THE COURT: So that was the end of the
interview?
[Detective Kopaczewski]: That’s correct.
Notes of testimony, 6/11/15 at 87. For the following reasons, we disagree.
“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation
omitted). “An abuse of discretion is not merely an error of judgment; rather
discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record.”
Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
Here, appellant avers that Detective Kopaczewski’s testimony violated
his right against self-incrimination guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution. (Appellant’s brief at 20-24.) In support of this
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claim, appellant relies, in large part, on this court’s decision in
Commonwealth v. Molina, 33 A.3d 51 (Pa.Super. 2011), affirmed, 104
A.3d 430 (Pa. 2014). In Molina, an en banc panel of this court held that
“the Commonwealth cannot use a non-testifying defendant’s pre-arrest
silence to support its contention that the defendant is guilty of the crime
charged as such use infringes on a defendant’s right to be free from self-
incrimination.” Molina, 33 A.3d at 62 (citations omitted). The Molina court
further noted that,
[w]e find it of no moment whether the silence
occurred before or after the arrest or before or after
Miranda warnings were administered. The Fifth
Amendment was enacted to protect against
self-incrimination, whether they are in custody
or not, charged with a crime, or merely being
questioned during the investigation of a crime.
We clarify that our finding does not impose a
prima facie bar against any mention of a
defendant’s silence; rather, we guard against the
exploitation of appellant’s right to remain silent by
the prosecution.
Molina, 33 A.3d at 63 (citation and footnote omitted).
Upon review, we conclude that appellant’s reliance on Molina is
misplaced. Unlike Molina, the record in this case indicates that the
Commonwealth, via Detective Kopaczewski, did not offer evidence of
appellant’s pre-arrest silence as substantive evidence of his guilt. Rather, it
is evident that the Commonwealth elicited said testimony for the narrow
purpose of explaining the way his interview with appellant ended. Appellant
also fails to cite to any place in the record wherein the Commonwealth
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referenced appellant’s decision to terminate the interview with
Detective Kopaczewski as implicit evidence of his guilt. We find that our
holding in Commonwealth v. Adams, 39 A.3d 310 (Pa.Super. 2012),
affirmed, 104 A.3d 511 (Pa. 2014), is instructive. In Adams, a panel of
this court concluded that a police officer’s testimony that a defendant “had
nothing to say” during his homicide investigation interview did not violate his
Fifth Amendment right to remain silent. Adams, 39 A.3d at 319. The
Adams court reasoned that this testimony “was offered for a narrow
purpose, namely to demonstrate the nature and focus of the investigation,”
and “neither [the officer] nor the Commonwealth implied that [the
defendant’s] silence constituted a tacit admission of guilt.” Id.Moreover, we note that Detective Kopaczewski’s reference to
appellant’s pre-arrest silence was brief in context. Our supreme court has
recognized that “[e]ven an explicit reference to silence is not reversible error
where it occurs in a context not likely to suggest to the jury that silence is
the equivalent of a tacit admission of guilt[.]” Commonwealth v.
DiNicola, 866 A.2d 329, 337 (Pa. 2005) (citation and parentheses omitted).
Accordingly, we conclude that appellant’s constitutional rights were not
violated when Detective Kopaczewski testified.
Appellant next argues that the trial court violated his right to due
process guaranteed by the Fifth and Fourteenth Amendments of the United
States Constitution and Article I, Section 9 of the Pennsylvania Constitution
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by permitting the Commonwealth to introduce a photograph of a revolver
recovered from his cell phone, “where there was no proof that the gun
depicted was the gun used to shoot [Vessels].” (Appellant’s brief at 27.)
Appellant maintains that the photograph in question was inadmissible under
Pennsylvania Rule of Evidence 404(b)(1) and served only to demonstrate he
has a criminal propensity to commit the crimes charged. (Id. at 28-31.)
Appellant further posits he is entitled to a new trial because the prejudicial
impact of this photograph outweighed its probative value. (Id.) We
disagree.
“The threshold inquiry with admission of evidence is whether the
evidence is relevant.” Commonwealth v. Cook, 952 A.2d 594, 612 (Pa.
2008) (citations and bracket omitted). “Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or presumption
regarding a material fact.” Commonwealth v. Edwards, 903 A.2d 1139,
1156 (Pa. 2006), cert. denied, 127 S.Ct. 2030 (2007) (citation and internal
quotation marks omitted).
Generally, “evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity
therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972
A.2d 1182, 1189 (Pa.Super. 2009), appeal denied, 986 A.2d 150 (Pa.
2009) (stating, “[e]vidence of distinct crimes is not admissible against a
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defendant being prosecuted for another crime solely to show his bad
character and his propensity for committing criminal acts.” (citation omitted;
emphasis in original)). Evidence of prior bad acts may be admissible,
however, “when offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and absence of
mistake or accident.” Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super.
2012), appeal denied, 72 A.3d 603 (Pa. 2013) (citations omitted). “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.” Id. (citation omitted).
Upon careful review, we discern no abuse of discretion on the part of
the trial court in admitting the photograph of the revolver into evidence.
Contrary to appellant’s contention, we conclude that the photograph in
question was relevant to establish that appellant had possession and control
of a weapon similar to the one used to shoot Vessels. The evidence at trial
established that the firearm depicted in the photograph was a silver
revolver, the same type of gun used to shoot Vessels. (Notes of testimony,
6/9/15 at 78; see also Commonwealth’s exhibit C-76A.) At trial,
ATF Special Agent Bowman testified that the revolver depicted in the
photograph that was recovered from appellant’s cell phone was similar to
the description of the gun used to shoot Vessels. (Notes of testimony,
6/11/15 at 69, 200-201.) Moreover, Philadelphia Police Officer Jesus Cruz,
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an expert in the field of firearms identification and ballistics, testified that
the bullet fragments recovered from the scene were consistent with
ammunition capable of being fired from this type of revolver. (Id. at 42,
53-54.) Likewise, the probative value of this photograph, given the
conceivable connection of said firearm to the instant crime, clearly
outweighed its prejudicial impact. Accordingly, for all the foregoing reasons,
we discern no abuse of discretion on the part of the trial court in allowing
this photograph to be admitted into evidence.4
We now turn to appellant’s claim that he was deprived of his right to a
fair trial when the prosecutor “commented on the guilty verdicts of other
juries in other cases” during his closing argument. (Appellant’s brief at 31.)
Specifically, appellant challenges the following comments made by the
prosecutor during his summation:
And you heard a little bit about reasonable
doubt. It simply means it is not some impossible
4
Generally, a weapon that “cannot be specifically linked to a crime” is
inadmissible at trial. Commonwealth v. Robinson, 721 A.2d 344, 351
(Pa. 1998), cert. denied, 528 U.S. 1082 (2000). However, our supreme
court has recently clarified this rule, stating as follows:
[t]he only burden on the prosecution is to lay a
foundation that would justify an inference by the
finder of fact of the likelihood that the weapon was
used in the commission of the crime. If a proper
foundation is laid, the weapon is admissible where
the circumstances raise an inference of the likelihood
that it was used.
Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015) (citation and
internal quotation marks omitted).
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standard. It is the same standard upon which
people are convicted of crimes in the city, the
state, this country in every case.
Trial court opinion, 12/23/15 at 15, quoting notes of testimony, 6/12/15 at
130 (emphasis added); see also appellant’s brief at 31.
“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 928 A.2d
1289 (Pa. 2007) (citations omitted). Not every unwise remark on a
prosecutor’s part, however, constitutes reversible error. Id. “Prosecutorial
misconduct occurs when the effect of the prosecutor’s comments would be
to prejudice the trier of fact, forming in its mind fixed bias and hostility
toward the defendant so that it could not weigh the evidence objectively and
render a true verdict.” Commonwealth v. Duffy, 832 A.2d 1132, 1137
(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).
Counsels’ remarks to the jury may contain fair
deductions and legitimate inferences from the
evidence presented during the testimony. The
prosecutor may always argue to the jury that the
evidence establishes the defendant’s guilt, although
a prosecutor may not offer his personal opinion as to
the guilt of the accused either in argument or in
testimony from the witness stand. Nor may he or
she express a personal belief and opinion as to the
truth or falsity of evidence of defendant’s guilt,
including the credibility of a witness.
Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal
denied, 788 A.2d 372 (Pa. 2001).
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Following our careful review, we conclude that the prosecutor’s
comments, when read as a whole, did not warrant that a new trial be
granted. “[A] prosecutor is permitted fairly wide latitude in advocating for
the Commonwealth, including the right to argue all fair conclusions from the
evidence, to respond to defense arguments, and to engage in a certain
degree of oratorical flair.” Harris, 884 A.2d at 931. All such comments
must be reviewed in the context in which they were made.
Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005).
Here, the record reflects that the prosecutor’s comments were made
with a permissible degree of oratorical flair and were not the kind of
comments that would cause the jury to form a fixed bias or hostility towards
appellant and prevent it from properly weighing the evidence and rendering
a fair and impartial verdict. Moreover, the jury was properly instructed
during trial that it was the trial court’s role to instruct the jury on the law,
and that statements made by counsel do not constitute evidence. (See
notes of testimony, 6/8/15 at 31-33; 6/15/15 at 22-27.) As noted, jurors
are presumed to follow the trial court’s instructions. Elliott, 80 A.3d at 445.
Accordingly, appellant’s claim that he is entitled to a new trial on account of
the prosecutor’s comments during closing arguments must fail.
In his final issue, appellant contends that his sentence of 20 to
40 years’ imprisonment for attempted murder was illegal under Apprendi v.
New Jersey, 530 U.S. 466 (2000), because “there was no specific finding
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by the jury that [a]ppellant inflicted serious bodily injury [on Vessels.]”
(Appellant’s brief at 33.) We disagree.
“The determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Stradley, 50 A.3d 769,
772 (Pa.Super. 2012) (citation omitted). The Pennsylvania Supreme Court
summarized the holding in Apprendi as follows:
In Apprendi, the United States Supreme Court
held a New Jersey hate-crime statute
unconstitutional because it permitted the imposition
of a twenty[-]year sentence in place of the otherwise
applicable ten year maximum if the judge
determined, by a preponderance of the evidence,
that the crime was perpetrated in violation of the
statute. The United States Supreme Court
determined that any facts, “other than the fact of a
prior conviction,” that subject a defendant to any
additional penalty beyond a statutory maximum
must be submitted to a jury and be found proved
beyond a reasonable doubt.
Commonwealth v. Gordon, 942 A.2d 174, 175 n.1 (Pa. 2007),
cert. denied, 553 U.S. 1024 (2008), citing Apprendi, 530 U.S. at 490.
The instant matter involves the application of Section 1102 of the
Crimes Code, and, in particular, the “serious bodily injury” requirement.
Read in relevant part, Section 1102 provides as follows:
(c) Attempt, solicitation and conspiracy.--
Notwithstanding section 1103(1) (relating to
sentence of imprisonment for felony), a person
who has been convicted of attempt, solicitation
or conspiracy to commit murder, murder of an
unborn child or murder of a law enforcement
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officer where serious bodily injury results may
be sentenced to a term of imprisonment which
shall be fixed by the court at not more than
40 years. Where serious bodily injury does not
result, the person may be sentenced to a term
of imprisonment which shall be fixed by the
court at not more than 20 years.
18 Pa.C.S.A. § 1102(c).
“[T]he statute imposes a condition precedent to the imposition of a
maximum term of imprisonment of up to 40 years, specifically, that ‘serious
bodily injury’ must have resulted from the attempted murder. Otherwise,
the sentence shall be not more than 20 years.” Commonwealth v.
Johnson, 910 A.2d 60, 66 (Pa.Super. 2006), appeal denied, 923 A.2d
1173 (Pa. 2007). Serious bodily injury is “a fact that must be proven before
a maximum sentence of forty years may be imposed for attempted
homicide.” Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.Super.
2005), appeal denied, 890 A.2d 1058 (Pa. 2005).
Here, the trial court reasons that appellant’s judgment of sentence for
attempted murder is proper because the jury was presented with ample
evidence to determine that appellant inflicted “serious bodily injury” upon
Vessels. (See trial court opinion, 12/23/15 at 17.) Upon review, we agree
with the trial court’s conclusions. “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 a bodily member or organ.” 18 Pa.C.S.A.
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§ 2301. The evidence at trial established that appellant shot Vessels
five times, including once in the neck, once in the back, and once in the
stomach. (Notes of testimony, 6/9/15 at 66-67, 70-74.) Vessels testified
that he lost the use of his left hand and left side of his body as a result of
the shooting, and suffered nerve damage that causes him to twitch. (Id. at
68.)
We further point out that the jury in fact determined beyond a
reasonable doubt that serious bodily injury occurred when it found appellant
guilty of aggravated assault in violation of 18 Pa.C.S.A. § 2702(a)(1).5 In
this case, the jury instructions were fashioned so that the jury could only
convict appellant of aggravated assault if it found beyond a reasonable doubt
that he intentionally caused serious bodily injury to Vessels. Specifically, the
trial court instructed the jury as follows:
Aggravated assault causing serious bodily
injury. Both [appellant and Jones] have been
charged with aggravated assault. To find either of
these defendants guilty of this offense, you must find
the elements have been proven beyond a reasonable
doubt: First, that the defendant [a]s coconspirator
or his accomplice caused serious bodily injury to []
Vessels. Serious bodily injury is bodily injury that
causes a substantial risk of death or that causes
serious permanent disfigurement or protracted loss
or impairment of the functions of any bodily member
or organ. And second, that the defendant acted
intentionally, knowingly or recklessly under
5
Section 2702(a)(1) provides that “[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[.]”
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circumstances manifesting extreme indifference to
the value of human life.
Notes of testimony, 6/15/15 at 55-56. As noted, the jury is presumed to
follow the trial court’s instructions with regard to the applicable law. Elliott,
80 A.3d at 445. Accordingly, in determining that appellant was guilty of
aggravated assault, the jury in fact concluded that appellant inflicted serious
bodily injury upon Vessels.
Appellant relies, in large part, on this court’s decision in Johnson to
support his assertion that the jury had to be specifically instructed on
“serious bodily injury” for the attempted murder charge. (See appellant’s
brief at 34-35.) The facts of Johnson, however, are distinguishable from
the case sub judice.
In Johnson, this court concluded that the jury did not find serious
bodily injury for the purposes of applying the maximum for attempted
murder, even though the appellant had been convicted of aggravated
assault. Johnson, 910 A.2d at 67-68. However, unlike the instant matter,
there was no evidence in Johnson that the jury convicted the appellant of
aggravated assault on the basis that serious bodily injury actually occurred.
Rather, the evidence in Johnson established that the appellant fired
multiple gunshots at the victim, but only struck her once in the heel of her
foot. Id. at 62. Thus, the jury in Johnson could have convicted the
appellant of aggravated assault based merely on an attempt to commit
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serious bodily injury. As such, Johnson is clearly distinguishable from the
case at hand.
In light of the foregoing, we conclude that the trial court did not error
in imposing a sentence of 20 to 40 years’ imprisonment for the attempted
murder conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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