Com. v. Rogers, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM ROGERS
Appellant No. 3605 EDA 2013
Appeal from the Judgment of Sentence entered September 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007426-2012
BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, William Rogers, appeals from the September 27, 2013
judgment of sentence imposing life in prison without parole for first-degree
murder, a concurrent three to six year sentence for unlawful possession of a
firearm, and a concurrent two to five year sentence for possession of an
instrument of crime.1 We affirm.
The testimony of multiple eyewitnesses established that Appellant shot
the victim after an altercation that occurred on the 2200 block of West
Edgeley Street in North Philadelphia on March 14, 2012. The trial court
summarized the pertinent facts:
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18 Pa.C.S.A. §§ 2502(a), 6106, and 907, respectively.
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Zahir Wiggins testified that on 3/14/12, he was walking on
the 2200 block of West Edgeley Street between 5:00 P.M. and
5:30 P.M. when he heard shots and saw a group of people
running from the area where a male, later identified as the
decedent, was lying in the middle of the sidewalk.
Approximately 45 seconds after hearing the shots, he saw
[Appellant], aka ‘Slug’, who[m] he knows from the Raymond
Rosen projects, running down 23rd Street with something in his
hand. He did not know what [Appellant] was holding.
Mr. Wiggins testified that five minutes prior to hearing the
gunshots and seeing the decedent lying on the sidewalk, he saw
‘Diddy’, ‘Ab’ and [Appellant] engaged in a fistfight with the
decedent.
Mr. Wiggins provided a signed statement to homicide
detectives on 3/29/12 at 2:50 P.M. In that statement, he
indicated that he saw [Appellant] running down Edgeley Street
toward 24th Street holding a gun down by his leg.
At trial, Mr. Wiggins testified that he did not want to testify
because his family still lives in the area where the incident
occurred and he felt threatened for them.
Nyteisha Sanders testified that on 3/14/12 between 5:15
and 5:30 P.M., she was at a store at 23rd and Diamond Streets,
when she heard gunshots and saw a group of people standing
over a male lying on the ground, bleeding. She testified that she
did not see the shooting or who did the shooting. And, that she
did not see [Appellant] running away from the area.
In a signed statement given by Ms. Sanders to homicide
detectives on 5/14/12, she indicated that as she was walking
back from the store she saw [Appellant] standing on the corner
at 23rd and Edgeley Streets pointing a gun at a male, later
identified as the decedent, and saying to the decedent “I told
you not to come back.’ [Appellant] then started shooting at the
decedent. [Appellant] was wearing a gray hoodie. After
shooting at the decedent, [Appellant] ran with two (2) other
males across Edgeley Street and up Judson Street. She had
seen [Appellant] before in the neighborhood for approximately a
year. [Appellant] has a tattoo on his neck that reads ‘Slug.’ She
identified and signed a photograph of [Appellant].
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Shanae Talley, Zahir Wiggins’ sister, testified that at
approximately 5:15 P.M. on March 14, 2012, she was standing
at 23rd and Edgeley Streets talking to a friend when she heard
gunshots. She turned around to see Appellant, who[m] she
knows from the neighborhood as ‘Slug,’ running down Edgeley
Street.
In her signed statement of 3/19/12, Ms. Talley indicated
that she saw a tall, light-skinned male she knows as ‘Slug’
standing on the corner. She did not see a gun but saw ‘fire’
coming from an item he was pointing. Immediately after
hearing the gunshots, she saw ‘Slug’ run down Edgeley Street to
Judson Street. She could only see the side of his face but knew
it was Slug because he was wearing a gray hoodie that she had
seen him wearing before and she knows him from the
neighborhood.
In her April 17, 2012 statement, Ms. Talley identified and
signed a photo of [Appellant].
Enrico Crispo testified that he was at a community meeting
at the recreation center located at 23rd and Edgeley Streets on
3/14/12. After the meeting as he was walking to his car, a black
male, 5’8” tall, weighing 140-150 pounds, wearing jeans and a
dark sweatshirt walked by him at a fast pace. Mr. Crispo looked
back at the male and saw him reach into the back of his pants
and pull out a modern-looking black gun that was ‘not a revolver
type.’ The male proceeded north to the southwest corner of 23 rd
and Edgeley Streets. As the male approached the corner, he
nodded at two (2) younger black males who were sitting on
bikes at the corner. The males on the bikes separated allowing a
clear path between the male with the gun and another male,
later identified as the decedent. The male with the gun shot the
decedent from approximately twenty-five feet away. The
decedent collapsed on the corner. The shooter walked away
quickly, travelling west on Edgeley Street. Mr. Crispo could not
identify the shooter.
Trial Court Opinion, 8/7/14, at 2-4 (record citations omitted).
On September 27, 2013, a jury found Appellant guilty of the
aforementioned offenses. The trial court imposed sentence the same day.
Appellant filed a timely post-sentence motion for a new trial on October 2,
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2013. The trial court denied that motion on December 9, 2013 and
Appellant filed this timely appeal on December 17, 2013.
Appellant raises two issues for our review:
I. Did the prosecutor commit misconduct in summation
when she told the jury she had personal knowledge
that ‘the defendant does not tell the truth,’ which
because of its impact on the verdict requires
reversal?
II. Did the prosecutor commit misconduct when she
condemned an entire section of the city as having a
lawless culture where law enforcement is a base
value and assisting criminals is a positive value such
as to require reversal?
Appellant’s Brief at 6. Appellant unsuccessfully sought a mistrial after the
prosecutor’s alleged misconduct during closing argument. We review the
order denying a mistrial as follows:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene, declaration of a
mistrial serves not only the defendant’s interest but, equally
important, the public’s interest in fair trials designed to end in
just judgments. Accordingly, the trial court is vested with
discretion to grant a mistrial whenever the alleged prejudicial
event may reasonably be said to deprive the defendant of a fair
and impartial trial. In making its determination, the court must
discern whether misconduct or prejudicial error actually
occurred, and if so, . . . assess the degree of any resulting
prejudice. Our review of the resulting order is constrained to
determining whether the court abused its discretion. Judicial
discretion requires action in conformity with [the] law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if,
in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason.
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Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009). Mistrial
is an “extreme remedy” necessary “only when an incident is of such a nature
that its unavoidable effect is to deprive the appellant of a fair and impartial
tribunal.” Id.
The Judy Court analyzed prosecutorial misconduct in the context of a
closing argument. The prosecutor’s remarks “cannot be viewed in isolation
but, rather, must be considered in the context in which they were made.”
Id. (quoting Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super.
2006), appeal denied, 907 A.2d 1102 (Pa. 2006)). “It is well settled that a
prosecutor has considerable latitude during closing arguments and his
arguments are fair if they are supported by the evidence or use inferences
that can reasonably be derived from the evidence.” Id. at 1020 (quoting
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008), appeal
denied, 959 A.2d 928 (Pa. 2008)). “Further, prosecutorial misconduct does
not take place unless the unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias and hostility
toward the defendant, thus impeding their ability to weigh the evidence
objectively and render a true verdict.” Id. “Prosecutorial misconduct is
evaluated under a harmless error standard.” Id.
Pennsylvania courts hold prosecutors to the standards set forth in the
American Bar Association Standards:
Argument to the jury.
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(a) The prosecutor may argue all reasonable inferences
from evidence in the record. It is unprofessional conduct for the
prosecutor intentionally to misstate the evidence or mislead the
jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to
express his personal belief or opinion as to the truth or
falsity of any testimony or evidence or the guilt of the
defendant.
(c) The prosecutor should not use arguments calculated to
inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which
would divert the jury from its duty to decide the case on the
evidence, by injecting issues broader than the guilt or innocence
of the accused under the controlling law, or by making
predictions of the consequences of the jury's verdict.
Id. at 1020 (emphasis added) (quoting American Bar Association Standards,
§ 3-5.8).
“[T]he prosecutor may fairly respond to points made in the defense
closing.” Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005), cert.
denied, 549 U.S. 848 (2006). “A remark by a prosecutor, otherwise
improper, may be appropriate if it is in fair response to the argument and
comment of defense counsel.” Id. (quoting Commonwealth v. Trivigno,
750 A.2d 243, 249 (Pa. 2000) (plurality)).
Appellant first challenges the prosecutor’s statement that she knew
the defendant did not tell the truth. For context, the record reflects that
defense counsel, during his closing, argued that Appellant’s statement,
assuming its correctness, “totally refutes the facts of the other witnesses,
the eyewitnesses.” N.T. Trial, 9/27/13, at 45.
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The prosecutor assessed Appellant’s statement in her closing:
Here is his statement. What did he say? Painfully, and
you know what, I know [Appellant] does not tell the truth.
He did not tell the truth – (Indicating).
[Appellant’s Counsel]: Objection, move for a mistrial.
[Prosecutor]: He is a fibber.
[Appellant’s Counsel]: Personal opinion.
The Court: Overruled. It is argument.
N.T. Trial, 9/27/13, at 80 (emphasis added). The prosecutor went on to
explain, in light of the evidence, why Appellant’s statement was not
believable. Id. at 80-90.
The statements bolded above, in our view, plainly violate the ABA
standards as set forth in Judy. Judy, 978 A.2d at 1020. The prosecutor
unambiguously expressed her personal opinion of Appellant’s veracity.
Nonetheless, the law requires us to consider those statements in context
rather than isolation. Id. After the objectionable statement, the prosecutor
explained in detail – based on the evidence of record and not based on her
opinion – why Appellant’s statement was not believable. Considering the
prosecutor’s statement in context, we believe it was a fair response to
Appellant’s counsel’s assertion that Appellant’s statement completely refutes
all of the testimony evincing his guilt. Per Chmiel, a prosecutor is permitted
to make a fair response to defense counsel’s argument. Chmiel, 889 A.2d
at 543. Id. Furthermore, we must analyze a prosecutor’s conduct under a
harmless error standard. Judy, 978 A.2d at 1020. As set forth above, the
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record contains substantial direct evidence – in the form of eyewitness
testimony – confirming Appellant’s guilt. Given the overwhelming evidence
of Appellant’s guilt and the comparative insignificance of the prosecutor’s
remarks during closing, we cannot conclude the isolated objectionable
remarks warrant a new trial.
Next, Appellant agues the prosecutor committed misconduct when she
“condemned an entire section” of the city of Philadelphia, specifically the
North Philadelphia projects. Appellant’s Brief at 23. Once again, we begin
with a review of the competing arguments of Appellant’s counsel and the
prosecutor. Appellant’s counsel challenged the credibility of several
Commonwealth witnesses because of their delay in coming forward with
statements. N.T. Trial, 9/27/13, at 18-23. Likewise, some of the witnesses’
in-court testimony differed from their statements.
In her closing, the prosecutor offered the following:
The witnesses are scared. This is Philadelphia but more
than Philadelphia, this is the projects in North Philly. These
people, they got to live there. They told you their reasons.
They said [. . . ] my momma lives in those projects. My family
lives in those projects. They live there now. The other young
lady [. . .] does your mother live in those projects? Yes, my 8-
year-old brother lives there. Miss [. . . ], where do you live? I
live in the projects too with my mother. So, ladies and
gentleman of the jury, they know what they saw but the reality
of this case is no matter what you all decide, they are going to
have to go back home and the whole world, everybody in the
projects is going to know that they are tattletales. They are
snitches and that they told.
[Appellant’s counsel]: Objection.
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The Court: Overruled.
Id. at 55-56.
Appellant asserts the prosecutor’s closing argument improperly
bolstered her witnesses’ credibility, and that “she had no right to apologize
for what she viewed as the deficiencies of her witnesses–their in court
testimony–on a cultural basis–arguing that because of their culture or
environment their in court testimony was not to be believed.” Appellant’s
Brief at 23-24.
We discern no misconduct in this portion of the prosecutor’s closing.
The defense challenged the credibility of various Commonwealth witnesses
because they came forward late and/or gave testimony that differed from
their pre-trial statements to police. The prosecutor responded that the
witnesses feared their cooperation with law enforcement could endanger
them in the neighborhoods where they lived, a seemingly fair response to
Appellant’s counsel’s argument. As the trial court explained, one witness,
Zahir Wiggins, stated he did not wish to testify because he had family living
in the vicinity of the murder scene. N.T Trial, 9/24/13, at 225-26. Nyteisha
Sanders testified that her mother and 9-year-old brother live there. N.T.
Trial, 9/25/13, at 49. Shanae Talley lives in the neighborhood with her
mother and children. Id. at 114.
In support of his argument, Appellant cites Commonwealth v.
LaCava, 666 A.2d 221, 236 (Pa. 1995), in which our Supreme Court
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remanded for a new sentencing hearing where the prosecutor committed
misconduct during the summation in the penalty phase of a capital trial. The
prosecutor invited the jury to consider the devastating impact drug dealers
have on their communities, rather than the specific facts of the homicide at
issue. Id. LaCava has no application here. The prosecutor did not attempt
to transform the trial into a referendum on an issue of public importance.
She argued, based on specific evidence, that reluctant witnesses and
witnesses whose testimony differed from their police statements had reason
to fear for their safety and that of their families. We do not believe the
prosecutor engaged in misconduct, much less misconduct “of such a nature
that its unavoidable effect [was] to deprive [Appellant] of a fair and impartial
trial.” Judy, 978 A.2d at 1019. Even if we were to conclude the trial court
erred in overruling Appellant’s objection to this line of argument, such error
is harmless in light of the overwhelming direct evidence of Appellant’s guilt.
In summary, we have concluded Appellant’s assertions of prosecutorial
misconduct do not merit relief. We therefore affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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