Com. v. Williams, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL WILLIAMS,
Appellant No. 3078 EDA 2016
Appeal from the Judgment of Sentence August 10, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0003416-2012
CP-51-CR-0003419-2012
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 27, 2017
Appellant, Michael Williams, appeals nunc pro tunc from the judgment
of sentence imposed after his jury conviction of criminal conspiracy—
aggravated assault, burglary, and fleeing or attempting to elude a police
officer.1 We affirm.
We take the following background facts and procedural history from the
trial court’s December 7, 2016 opinion and our independent review of the
certified record.
On January 10, 2012, around 7:00 p.m., Philadelphia Police
Officer Christopher Culver and his partner, Officer Don Williams,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 903(a) and 3502(a), and 75 Pa.C.S.A. § 3733(a).
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patrolled the 2800 block of Ruth Street in full uniform in a marked
police car in Philadelphia. (See N.T. Trial, 6/03/15, at 29-30). An
unidentified white female ran towards their car, pointed at a silver
Chevy Impala with tinted windows that was driving away, and said
she had been robbed.[a] (See id. at 30, 40, 42). The officers
pursued the car with lights and sirens. (See id. at 31). While in
pursuit, they checked the car’s license plate number and found
that it was registered to a Jeep rather than an Impala. (See id.
at 41). They attempted a traffic stop. (See id. at 31-32). The
driver initially complied, but drove off at a high speed as soon as
Officer Williams exited the squad car. (See id.). The officers took
off after them and later identified Appellant as the driver of the
Impala. (See id. at 31-32, 127).
[a] The trial court instructed the jurors that the
statements made by the unidentified white female are
introduced for the sole purpose of explaining the
officers’ actions and are not offered for the truth.
(See N.T. Trial, 6/03/15, at 30-31).
During the pursuit, the Impala nearly struck a police car
from the 24th District and sped through all stop signs and traffic
lights. (See id. at 42-43, 46). The car struck a barrier at Front
Street but continued to drive down the wrong way on Huntingdon
Street with a blown tire. (See id. at 33, 40-46). When the chase
reached Emerald Street, the Appellant’s co-defendant, Yassir
Gayle,[2] leaned out of the passenger side and shot twice at the
officers’ car. (See id. at 33, 46; N.T. Trial, 6/05/15, at 164-66).
The officers radioed for help and a police helicopter unit began
tracking the Impala from the air. (See N.T. Trial, 6/03/15, at 32,
47).
Gayle and the other passenger, Eric Livingston, ran out of
the car on the 2100 block of Frankford Avenue. (See id. at 51-
53, 84). Officers pursued them on foot and attempted an arrest,
which led to a violent struggle with kicking and punching. (See
id. at 53-55). Approximately a dozen other officers converged on
the scene and eventually completed the arrest. (See id. at 84).
The arresting officers recovered two loaded, operable handguns
with obliterated serial numbers. (See id. at 56; N.T. Trial,
6/05/15, at 184). Counsel[] stipulated at trial that none of the
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2 Yassir Gayle filed a separate appeal at docket number 230 EDA 2016.
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defendants were licensed to carry firearms at that time. (See N.T.
Trial, 6/05/15, at 208).
The Appellant drove off after letting Gayle and Livingston
out of the car. He eventually crashed the Impala into a parked
car at Memphis and Firth Streets, jumping from the moving
vehicle just before collision. (See N.T. Trial, 6/04/15, at 13). He
then fled on foot, attempted to enter a nearby house through an
alleyway door, took off his vest, and threw it away. He continued
looking for a place to hide, climbing over yard fences and walls.
The helicopter unit relayed his location to officers on the ground.
(See id. at 7-8, 88).
The Appellant eventually entered a house, occupied by Ms.
Genwa Gliwa and her mother, through an unlocked back door on
Cumberland Street, between Memphis and Tulip Streets. (See id.
at 88-89). The Gliwas noticed sudden police activity outside their
house with sirens and helicopters. (See id. at 89). A few minutes
later, Ms. Gliwa sensed the Appellant standing in a hallway behind
her and her mother. (See id.). They realized he must have been
the cause of the police activity and became very frightened,
screaming at him to leave. (See id. at 92-93). Ms. Gliwa testified
that he wanted them to hide him from police or to give him
different clothes to wear. (See id. at 93). She screamed that she
was going to call the cops. He told her not to reach for her phone
and picked up her dog. (See id.). She was afraid he intended to
hurt the dog. (See id.). Eventually, Ms. Gliwa convinced the
Appellant to leave, and she pushed him out the front door and
shut it behind him. (See id. at 94). She testified that, by this
time, there were thirty to forty police officers outside their house,
along with fifteen to twenty neighbors who had come out to see
the commotion. (See id. at 107, 110). Officers immediately
approached the Appellant, who claimed he was a lawful resident
there. He was quickly apprehended when it became clear that he
could not confirm basic information like the address of the house.
(See id. at 107).
(Trial Court Opinion, 12/07/16, at 3-5) (one footnote omitted; some record
citations and record citation formatting provided).
On June 9, 2015, the jury convicted Appellant of the aforementioned
crimes. On August 10, 2015, the trial court sentenced him to an aggregate
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term of not less than seventeen nor more than thirty-four years’ incarceration,
plus eight years of probation. The court denied Appellant’s motion for
reconsideration on November 23, 2015. On December 21, 2015, Appellant
filed an appeal that this Court quashed as untimely. On July 28, 2016,
Appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, seeking reinstatement of his appeal rights nunc pro
tunc. The court granted the petition on September 19, 2016. This timely
appeal followed.3
Appellant raises nine questions for this Court’s review:4
1. Whether the trial court abused its discretion in denying
Appellant’s motion in limine to exclude admission of the hearsay
police report of an unidentified white female declarant, who
pointed to a silver Chevrolet Impala and told police that she was
robbed by the occupants, including Appellant and the [c]o-
[d]efendants, where such hearsay evidence is not admissible
under the excited utterance exception, because the woman’s
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3Pursuant to the trial court’s order, Appellant filed a timely statement of errors
complained of on appeal, on October 8, 2016. The court filed an opinion on
December 7, 2016. See Pa.R.A.P. 1925.
4We remind counsel of the oft-cited quote of the Honorable Ruggero J. Aldisert
of the United States Court of Appeals for the Third Circuit:
I have said in open court that when I read an appellant’s brief that
contains ten or twelve points, a presumption arises that there is
no merit to any of them. I do not say that it is an irrebuttable
presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.
Aldisert, The Appellate Bar: Professional Competence and Professional
Responsibility—A View From the Jaundiced Eye of One Appellate Judge, 11
Cap.U.L.Rev. 445, 458 (1982).
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statement was wholly uncorroborated by the police or other
civilian witnesses, and the probative value of the hearsay was
outweighed by its prejudicial impact, thereby denying Appellant a
fair trial?
2. Whether the trial court abused its discretion in denying
Appellant’s motion in limine to exclude admission of a bullet
projectile recovered from the scene, where the projectile was
excluded as having been fired from any of the firearms recovered
by police in the case sub judice, and, therefore, had zero probative
value, which was outweighed by its prejudicial impact, thereby
prejudicing Appellant’s right to a fair trial?
3. Whether the evidence was insufficient to support the jury’s
verdict finding Appellant guilty of [b]urglary, where there were no
facts alleged that Appellant engaged in criminal activity after
entering a dwelling without permission?
4. Whether there was insufficient evidence to support
Appellant’s conviction for [c]riminal [c]onspiracy to [c]ommit
[a]ggravated [a]ssault, where there were no facts establishing an
agreement between Appellant and [c]o-[d]efendant Gayle for Mr.
Gayle to fire a gun in the direction of police officers, Appellant was
acquitted by [the] jury of committing [a]ggravated [a]ssault, and
Appellant was separated from the [c]o-[d]efendants prior to their
altercation with police and was not even aware of the scuffle?
5. Whether the trial court abused its discretion in holding that
the object offense underlying Appellant’s conviction for [c]riminal
[c]onspiracy was [a]ggravated [a]ssault, where Appellant was
charged with [c]onspiracy generally but acquitted of [a]ggravated
[a]ssault?
6. Whether the trial court abused its discretion in imposing a
manifestly excessive sentence of ten (10) to twenty (20) years for
Appellant’s conviction for [b]urglary (F1), because Appellant’s
sentence greatly exceeded the aggravated guideline range of
forty-eight (48) months to ninety-six (96) months, where
Appellant had a prior record score of two and the offense gravity
score for first degree [b]urglary is nine, and the sentence is
greater than that necessary to satisfy Appellant’s rehabilitative
needs?
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7. Whether the trial court abused its discretion when it refused
to grant Appellant’s request for a curative instruction to remedy
the prosecutor’s inflammatory suggestion that Appellant’s trial
counsel was a racist during his summation to the jury, thereby
prejudicing Appellant’s right to a fair trial?
8. Whether the trial court abused its discretion when it refused
to grant Appellant’s request for a curative instruction to remedy
the prosecutor arguing the nature of the muzzle flash created by
the alleged firing of [c]o-[d]efendant Gayle’s firearm, where such
facts were not presented into the evidence?
9. Whether the trial court abused its discretion in sending jury
instruction for second degree aggravated assault to jury during
deliberations, where the Commonwealth only moved on the
charge of first degree [a]ggravated [a]ssault for alleged [c]o-
[d]efendant shooting firearm in the direction of police officers, but
the jury’s request for further instructions on [a]ggravated
[a]ssault pertained to pre-arrest scuffle between [c]o-
[d]efendants and police, which was not a focus of the
Commonwealth’s case-in-chief, thereby prejudicing Appellant’s
right to a fair trial?
(Appellant’s Brief, at 6-8).5
In his first issue, Appellant argues that the trial court abused its
discretion in denying his motion in limine to exclude testimony regarding “an
unidentified white female declarant, who pointed to a silver Chevrolet Impala
and told police that she was robbed by the occupants[.]” (Id. at 18)
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5 Appellant’s sixty-page brief violates Pennsylvania Rule of Appellate
Procedure 2035(a)(1) because it does not contain a certificate of compliance
certifying that it complies with the word-count limit. See Pa.R.A.P. 2135(a)(1)
(“A principal brief shall not exceed 14,000 words and a reply brief shall not
exceed 7,000 words[.] . . . A party shall file a certificate of compliance with
the word count limit if the principal brief is longer than 30 pages[.]”).
Although we could quash on this basis, in the interest of judicial economy we
decline to do so.
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(unnecessary capitalization and emphasis omitted). Specifically, he maintains
that the statement was inadmissible hearsay that was “not admissible under
the excited utterance exception” because it was uncorroborated and its
probative value was outweighed by its prejudicial impact. (Id. (unnecessary
capitalization and emphasis omitted); see id. at 18-27). Appellant’s issue
does not merit relief.
In evaluating the denial or grant of a motion in limine, our
standard of review is well-settled. When ruling on a trial court’s
decision to grant or deny a motion in limine, we apply an
evidentiary abuse of discretion standard of review. A trial court
has broad discretion to determine whether evidence is admissible,
and a trial court’s ruling regarding the admission of evidence will
not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support to be clearly erroneous. If the evidentiary question
is purely one of law, our review is plenary.
Commonwealth v. Gill, 158 A.3d 719, 725 (Pa. Super. 2017) (citation
omitted).
Pennsylvania Rule of Evidence 801(c) defines hearsay as an out of court
statement “offer[ed] in evidence to prove the truth of the matter asserted[.]”
Pa.R.E. 801(c)(2); see id. at (c)(1). “Thus, any out of court statement offered
not for its truth but to explain the witness’s course of conduct is not hearsay.”
Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012), cert. denied,
569 U.S. 922 (2013) (citation omitted).
Here, we first note that the statement at issue was not admitted
pursuant to the excited utterance exception to the hearsay rule. The
unidentified individual’s statement that she had been robbed was not offered
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for the truth of the matter at all, but “to explain the [subsequent] actions of
the police officers” in pursuing Appellant and his co-defendants. (N.T. Trial,
6/03/15, at 30-31). Therefore, because the statement was not offered for the
truth of the matter asserted, it was not hearsay. See Johnson, supra at
1035.
Additionally, at Appellant’s request, the court expressly instructed the
jury that the statement was offered only to explain the officers’ course of
conduct, thereby limiting any potential prejudicial impact. (See N.T. Trial,
6/03/15, at 11-12, 30-31). The jury is presumed to have followed this
instruction. See Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017)
(“[J]urors are presumed to follow the court’s instructions[.]”) (citation
omitted). Accordingly, Appellant’s first issue lacks merit.
In his second claim, Appellant argues that the court abused its discretion
in denying his motion in limine to suppress a bullet projectile recovered from
the crime scene. (See Appellant’s Brief, at 27-30). He maintains that the
evidence was more prejudicial than probative where it was excluded as having
been fired by any of the firearms recovered in the case sub judice. (See id.).
Appellant’s issue is waived.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). In this case, a review of the
record confirms the Commonwealth’s observation that Appellant neither
objected to the evidence in question, nor moved to preclude it, in the trial
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court. (See Commonwealth’s Brief, at 15-16). Instead, he asked for an offer
of proof if the Commonwealth was going to introduce the “street bullet.” (N.T.
Trial, 6/03/15, at 7-8). The Commonwealth provided an offer of proof and
the trial court stated, “Okay. I will allow that in. That’s fine.” (Id. at 9; see
id. at 8-9). At no point, either before the offer of proof, or after the court’s
ruling, did Appellant object to the bullet’s admission. (See id. at 7-9).
Therefore, this issue is waived for our review. See Pa.R.A.P. 302(a).6
In his third claim, Appellant challenges the sufficiency of the evidence
to support his burglary conviction “where there were no facts alleged that
Appellant engaged in criminal activity after entering the dwelling without
permission.” (Appellant’s Brief, at 30) (unnecessary capitalization and
emphasis omitted). This issue is waived and would not merit relief.
Appellant’s one paragraph argument on this claim does not contain any
pertinent citation to authorities, discussion, or citation to the record, as is
required by the Pennsylvania Rules of Civil Procedure. (See Appellant’s Brief,
at 30); Pa.R.A.P. 2119(a)-(c). Therefore, this claim is waived. See
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014), cert. denied, 135
S. Ct. 480 (2014) (“[T]o the extent appellant’s claims fail to contain developed
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6 Moreover, we briefly note that, Appellant utterly fails to establish how he
was prejudiced by the admission of the bullet fragment. (See Appellant’s
Brief, at 27-30). In fact, he actually used the evidence to his own advantage.
(See N.T. Trial, 6/08/15 Volume II, at 66) (counsel arguing that projectile
“doesn’t belong to this shooting. That is reason to doubt. That is not guilty.”).
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argument or citation to supporting authorities and the record, they are
waived[.]”).
Moreover, the issue would not merit relief. Our standard of review of
this matter is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Scott, 146 A.3d 775, 777 (Pa. Super. 2016), appeal
denied, 166 A.3d 1232 (Pa. 2017) (citation omitted).
Section 3502 of the Crimes Code provides, in pertinent part, that “[a]
person commits the offense of burglary if, with the intent to commit a crime
therein, the person . . . enters a building or occupied structure . . . that is
adapted for overnight accommodations in which at the time of the offense any
person is present[.]” 18 Pa.C.S.A. § 3502(a)(1)(ii). Also, pursuant to section
5126 of the Crimes Code, flight to avoid apprehension, “[a] person who
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willfully conceals himself or moves or travels within or outside this
Commonwealth with the intent to avoid apprehension, trial or punishment
commits a felony of the third degree . . . .” 18 Pa.C.S.A. § 5126(a).
In this case, the Commonwealth presented evidence that, after he led
police on a high speed vehicle chase, Appellant fled from the officers on foot.
He ran down an alley, climbing over fences and walls looking for a place to
hide, before finally entering the backdoor of Ms. Gliwa’s occupied home. Once
inside, he asked the people present either to hide him or provide him with
new clothing. Appellant only vacated the premises after Ms. Gliwa repeatedly
screamed at him to leave.
The foregoing facts establish that Appellant entered the Gliwa home with
the intent of committing a crime therein, namely he was attempting to flee to
avoid apprehension. Accordingly, the trial court properly found that the
evidence was sufficient to support Appellant’s conviction of burglary. See
Scott, supra at 777. Appellant’s third claim would lack merit, even if it were
not waived.
In his fourth issue, Appellant argues that there was insufficient evidence
to convict him of conspiracy to commit aggravated assault because there was
no evidence of an agreement, and he was acquitted of the underlying crime.
(See Appellant’s Brief, at 32-36). We disagree.
“A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its commission
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he . . . agrees to aid such other person in the planning or commission of such
crime[.]” 18 Pa.C.S.A. § 903(a)(2).
Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the circumstances
surrounding such conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt.
Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Furthermore, flight, along with other circumstantial
evidence, supports the inference of a criminal conspiracy.
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), appeal
denied, 42 A.3d 1059 (Pa. 2012) (citations and quotation marks omitted).
Further:
Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed in
furtherance of the conspiracy. Even if the conspirator did not act
as a principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),
appeal denied, 805 A.2d 521 (Pa. 2002) (citations omitted).
Here, the evidence established that Appellant and his co-conspirators
led the police on a high-speed chase in the City of Philadelphia. During the
pursuit, Appellant’s co-defendant fired at the officers with a semi-automatic
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handgun while Appellant continued to drive recklessly through the city streets
in an attempt to evade them. Once the car was disabled, Appellant and the
two other individuals ran away, attempting to elude police officers on foot.
Based on the foregoing, we conclude that there was sufficient evidence
to support the jury’s finding that this “web of evidence” linked Appellant to
the conspiracy, beyond a reasonable doubt, and that he was “liable for acts of
co-conspirators committed in furtherance of the conspiracy.” Devine, supra
at 1147 (citation omitted); Lambert, supra at 1016. Hence, although
Appellant was acquitted of aggravated assault, the evidence supported the
jury’s conviction of criminal conspiracy to commit aggravated assault. See
Scott, supra at 777. Appellant’s fourth issue lacks merit.
In his fifth issue, Appellant claims that “the trial court abused its
discretion in holding that the object offense underlying [his] conviction for
conspiracy was aggravated assault, where [he] was charged with conspiracy
generally and acquitted of aggravated assault.” (Appellant’s Brief, at 36).
This allegation lacks merit.
First, we observe that the trial court did not hold, either during trial or
at sentencing, (see id. at 36-39), that the object offense underlying the
criminal conspiracy charge was aggravated assault. It is the Commonwealth
that prepares the information identifying the crimes and their elements, and
files it with the trial court. See Pa.R.C.P. 560(A). The information in this
case, which was read to the jury, expressly identified the overt act of the
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conspiracy as an attempt to assault the complainants, Officers Culver and
Williams. (See Information, 4/02/12, at 1, 3; N.T. Trial, 6/03/15, at 14).
Therefore, Appellant’s claim that the trial court abused its discretion when it
“held” that the underlying crime to the conspiracy charge was aggravated
assault lacks merit.
Moreover, we note briefly that, to the extent that Appellant maintains
that the court’s conspiracy charge to the jury was insufficient because it did
not identify the underlying crime of the conspiracy, (see Appellant’s Brief, at
36-39), this claim is waived for his failure to object at trial. See
Commonwealth v. Messersmith, 860 A.2d 1078, 1087 (Pa. Super. 2004),
appeal denied, 878 A.2d 863 (Pa. 2005) (challenge to jury instructions waived
where appellant failed to object during trial); see also Pa.R.Crim.P. 647(B).
Also, Appellant’s argument that, because he was acquitted of aggravated
assault, the criminal conspiracy conviction should be understood to include a
lesser predicate offense, (see Appellant’s Brief, at 39-45), would similarly lack
merit. It is well-settled that criminal conspiracy and aggravated assault are
separate crimes, and the acquittal on one charge does not preclude conviction
on the other. See Commonwealth v. Phillips, 879 A.2d 1260, 1263 (Pa.
Super. 2005) (“The mere fact that a defendant is acquitted of the underlying
charge is irrelevant to guilt on a related conspiracy charge.”) (citation
omitted). Appellant’s fifth claim of error lacks merit.
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In his sixth issue, Appellant claims that the trial court abused its
discretion in imposing a manifestly unreasonable sentence of not less than ten
nor more than twenty years’ imprisonment on his burglary conviction. (See
Appellant’s Brief, at 45-49). Specifically, he maintains that the “sentence
greatly exceeded the aggravated guideline range[,]” “is grossly
disproportionate to the nature and circumstances of the offense, and [is]
greater than that necessary to satisfy [his] rehabilitative needs.” (Id. at 45)
(unnecessary capitalization and emphasis omitted). This claim lacks merit.
Appellant’s issue challenges the discretionary aspects of his sentence.
“It is well settled that, with regard to the discretionary aspects of sentencing,
there is no automatic right to appeal.” Commonwealth v. Edwards, 71
A.3d 323, 329 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013)
(citation omitted).
Further,
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the
concise statement raises a substantial question that the sentence
is appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant’s attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the substantive
merits of the case.
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Id. at 329-30 (citation omitted).
Instantly, Appellant filed a timely notice of appeal, preserved his claim
in a timely post-sentence motion, and included a separate Rule 2119(f)
statement in his appellate brief. (See Notice of Appeal, 9/15/16; Post-
Sentence Motion for Reconsideration of Sentence, 8/17/15, at unnumbered
pages 1-2; Appellant’s Brief, at 17). As such, he is in technical compliance
with the requirements for challenging the discretionary aspects of his
sentence. Additionally, we conclude that Appellant has raised a substantial
question.7 See Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super.
2013), appeal denied, 91 A.3d 161 (Pa. 2014) (“Appellant’s claim that the
sentencing court disregarded rehabilitation and the nature and circumstances
of the offense in handing down its sentence presents a substantial question
for our review.”) (citations omitted). Accordingly, we will consider the merits
of Appellant’s issue.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
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7 The Commonwealth maintains that Appellant’s challenge is “unreviewable”
due to his failure to identify which specific provision of the Sentencing Code
was violated by the court’s sentence. (Commonwealth’s Brief, at 28-29). We
disagree. See, e.g., Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.
Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa. 2000) (“[W]e hold
that Rule 2119(f) requires only that [an] appellant’s statement allow us to
determine the allegation of trial court error and the immediate context of the
allegation as it relates to the prescribed sentencing norms.”). In this case, we
conclude that Appellant’s statement, though brief, satisfies this requirement.
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sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015), appeal
denied, 126 A.3d 1282 (Pa. 2015) (citation omitted).
In every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in
open court a contemporaneous statement of reasons in support of
its sentence.
The statute requires a trial judge who intends to sentence a
defendant outside of the guidelines to demonstrate on the record,
as a proper starting point, [its] awareness of the sentencing
guidelines. Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion a sentence which
takes into account the protection of the public, the rehabilitative
needs of the defendant, and the gravity of the particular offense
as it relates to the impact on the life of the victim and the
community, so long as [it] also states of record the factual basis
and specific reasons which compelled [it] to deviate from the
guideline range.
When evaluating a challenge to the discretionary aspects of
sentence . . . it is important to remember that the sentencing
guidelines are advisory in nature. If the sentencing court deems
it appropriate to sentence outside of the guidelines, it may do so
as long as it offers reasons for this determination. . . .
Commonwealth v. Kitchen, 162 A.3d 1140, 1147 (Pa. Super. 2017)
(citation omitted). Finally, “we presume that the court properly considered
and weighed all relevant factors in fashioning [Appellant’s] sentence[]” where
it had the benefit of a presentence investigation report (PSI). Id. (citation
omitted).
In this case, the trial court explained:
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The Commonwealth affirmed and the [c]ourt noted that the
Sentencing Guidelines recommended [thirty-six to forty-eight]
months of incarceration for this conviction. (See N.T. Sentencing,
8/10/15, at 7). However, the longer sentence imposed by the
court nevertheless fell within the statutory guidelines for first-
degree felony [b]urglary.[b] On the record, the trial court adopted
the Commonwealth’s reasons as its own reasons for imposing the
longer sentence. (See id. at 57-58). [T]he Appellant has a long
history of previous convictions, and he had been disciplined three
times for having drug paraphernalia and electronic devices while
incarcerated. (See id. at 45-46). Moreover, the Commonwealth
also read a statement from Mrs. Gliwa and her daughter that they
“no longer felt safe in [their] home” due to the Appellant’s actions
and that “[t]his break-in has severely affected [Mrs. Gliwa’s] life
and [her] daily schedule.” (Id. at 48). Considering the history of
crimes committed by the Appellant, [his] likelihood of recidivism,
and the danger posed by [him] to the public, the court did not
abuse its discretion in imposing the sentence for the [b]urglary
conviction.
“[A] person who has been convicted of a felony may
[b]
be sentenced to imprisonment as follows . . . [i]n the
case of a felony of the first degree, for a term which
shall be fixed by the court at not more than [twenty]
years.” 18 Pa.C.S.A. § 1103(1).
(Trial Ct. Op., at 12-13) (some record citations omitted; citation formatting
provided). In addition to the foregoing, we note that the trial court had the
benefit of a PSI and mental health evaluation. (See N.T. Sentencing, at 46,
54).
Applying the foregoing law to our independent review of the certified
record, we discern no manifest abuse of the court’s sound discretion in
sentencing Appellant. See Caldwell, supra at 770. First, because the court
possessed Appellant’s PSI and mental health reports, we presume that it
properly considered and weighed all relevant information. See Kitchen,
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supra at 1147. Also, although unhappy with his sentence, which he maintains
is not “necessary to satisfy [his] rehabilitative needs[,]” Appellant has failed
to plead and prove that the “court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” (Appellant’s Brief, at 48); Caldwell,
supra at 770 (citation omitted). Hence, Appellant’s sixth issue fails.
In his seventh and eighth claims, Appellant argues that the trial court
abused its discretion when it failed to grant his requests for curative
instructions due to the alleged prosecutorial misconduct committed during the
Commonwealth’s closing argument. (See Appellant’s Brief, at 50-57).
Specifically, he maintains that the prosecutor improperly (1) suggested that
defense counsel is a racist and (2) referred to the muzzle flash of co-
defendant’s gun. (See id.). Appellant is due no relief.
In accord with the long-standing principle that a prosecutor
must be free to present his or her arguments with logical force
and vigor, this Court has permitted prosecutorial advocacy as long
as there is a reasonable basis in the record for the [prosecutor’s]
comments.
Commonwealth v. Chmiel, 30 A.3d 1111, 1146 (Pa. 2011) (citations and
quotation marks omitted; emphasis in original). Further:
A prosecutor may make fair comment on the admitted
evidence and may provide fair rebuttal to defense arguments.
Even an otherwise improper comment may be appropriate if it is
in fair response to defense counsel’s remarks. Any challenge to a
prosecutor’s comment must be evaluated in the context in which
the comment was made.
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Not every unwise, intemperate, or improper
remark made by a prosecutor mandates the grant of
a new trial[.] Reversible error occurs only when the
unavoidable effect of the challenged comments would
prejudice the jurors and form in their minds a fixed
bias and hostility toward the defendant such that the
jurors could not weigh the evidence and render a true
verdict.
While it is improper for a prosecutor to offer any
personal opinion as to the guilt of the defendant or the
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. . . . [The] prosecutor must be
free to present his or her arguments with logical force
and vigor, and comments representing mere
oratorical flair are not objectionable.
Commonwealth v. Burno, 94 A.3d 756, 974 (Pa. 2014), cert. denied, 135
S. Ct. 1493 (2015) (citations and quotation marks omitted).
Here, we begin by addressing Appellant’s claim that the trial court
abused its discretion in failing to give a curative instruction after the
prosecutor suggested defense counsel is a racist. (See Appellant’s Brief, at
50-53). Specifically, Appellant challenges the following argument by the
prosecutor:
What did [defense counsel] think when her kids walked into
the courtroom? That’s a black student; he’s scared of police.
White student—I don’t know—probably not scared of police.
Asian, up in the air. No. Which did she think? The black student,
he’ll run from police. The white student, he’ll stand right still.
He’ll follow commands. No. You know who it is? The kids who
are getting in trouble are the ones who run. They ran from me.
They run from the teachers. Sometimes they’re white.
Sometimes they’re Hispanic. Sometimes they’re black.
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Sometimes they’re Puerto Rican, Asian, whatever. What does she
think of me? What judgments is she making about me right now—
[Defense counsel]: Objection, Your Honor.
[Prosecutor]: —the brown-skinned man in the courtroom?
THE COURT: Overruled. It’s noted for the record. Please
continue.
[Defense counsel]: Am I on trial?
THE COURT: [Counsel].
[Prosecutor]: What judgments is she making about all of you
based on your skin color?
[Defense counsel]: Objection. I have a motion.
THE COURT: Overruled. Continue
(N.T. Trial, 6/08/15 Volume II, at 77-78).
First, we must note that the above comments by the prosecutor in no
way gave an improper personal opinion about Appellant’s guilt. See Burno,
supra at 974. Moreover, our review of the record reveals that the
prosecutor’s comments were made in response to defense counsel’s
statements introducing race as a theory to explain the car chase.
For example, defense counsel argued, in pertinent part, that:
[The officers] thought they saw something with that white
female, right? They jumped the gun. They were there with their
guns and their badges and their big-deal job, and they couldn’t
bother to get a little tiny detail, any kind of detail from that white
female.
* * *
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[They did not think,] we better find out. We better find out
what that lady is talking about before we jump the gun, before we
take our prejudices about Impalas with tinted out windows and
black men, three of them, young, in that Impala.
* * *
Now, you know, I always hesitate a little to start talking
about race and race relations and what happens with crime with
this skin color and this gender and this level of education. I
hesitate to talk about it, but I’m not afraid. I’m not afraid to talk
about it. . . . It’s really on if you’re in a silver Impala with tinted
out windows and you’re a young black man and you’re with two
others. And maybe some of you on this jury could tell me a lot
more about that [than] what I think I understand with this
complexion and this gender and this level of education. But I can
tell you, and maybe we can all agree, about what really seems to
have happened . . . in one of those neighborhoods—one of these
neighborhoods. Those police officers took after that Impala
without a thought. Without a thought with their elite job because
it was on. It was on. We’re going to find those boys.
* * *
Motive. Motive to shoot those three boys—either one of
them, none of them—to when the night sun is flooding and the
officers are whirling by, to pull out one of those firearms and
discharge would be suicide. There would be three young dead
men. It would be suicide. And they knew it. They knew it. They
knew if they pulled over, the exact thing that they feared would
happen[.] . . . That. And it is what happened. . . . They knew that
if they pulled over that that was going to happen, and they knew
if they shot, they would be dead. So they bought themselves
some time and they drove a little more. . . .
(N.T. Trial, 6/08/15 Volume II, at 52-53).
After our independent review of the above portions of argument and the
complete transcript in this matter, we discern no error. Considering the
prosecutor’s statements in context, the trial court properly found that they
were made in response to defense counsel’s closing argument, with the
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oratorical flair allowed an advocate. (See Trial Ct. Op., at 17); Chmiel, supra
at 1146.
Additionally, the trial court, during its jury instructions, advised the jury
that “closing arguments by counsel are not part of the evidence in this trial,
and you should not consider them as such. . . . You are not required . . . to
accept the arguments of any lawyer that you heard.” (N.T. Trial, 6/08/15
Volume I, at 48-49). The jury is presumed to have followed this instruction.
See Aikens, supra at 143. Therefore, Appellant’s seventh issue lacks merit.
Appellant’s eighth argument, that the trial court erred in failing to
provide a curative instruction after the prosecutor’s reference to the muzzle
flash created by co-defendant’s gun, is waived. (See Appellant’s Brief, at 54-
57). Specifically, Appellant failed to request such an instruction. See
Pa.R.A.P. 302(a).8
In his ninth issue, Appellant argues that the trial court abused its
discretion in sending jury instructions on the charge of second degree
aggravated assault during jury deliberations because the Commonwealth
moved on the charge as a crime of the first degree. (See Appellant’s Brief,
____________________________________________
8 Moreover, we note that the trial court properly overruled Appellant’s
objection to the prosecutor’s closing argument about the muzzle flash because
there was a reasonable basis in the record for his comments. (See N.T. Trial,
6/04/15, at 11, 81, 124; N.T. Trial, 6/05/15, at 135, 164); Chmiel, supra at
1146. Therefore, even it not waived, Appellant’s eighth issue would not merit
relief.
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at 57-59). However, Appellant was acquitted of aggravated assault.
Therefore, his ninth issue fails. See Commonwealth v. Weis, 611 A.2d
1218, 1227 (Pa. Super. 1992) (Noting that appellant’s argument afforded him
no relief where he was acquitted of charge).9
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2017
____________________________________________
9We observe that, during deliberation, in response to the jury’s question, the
court provided the supplemental instruction only after allowing all counsel to
suggest language that addressed their complaints. (See N.T. Trial, 6/09/15,
3-4, 24-27).
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