Com. v. Anderson, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
ROBERT M. ANDERSON
Appellant No. 2117 EDA 2015
Appeal from the Judgment of Sentence June 26, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013588-2013
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017
Appellant, Robert M. Anderson, appeals from the judgment of sentence
of twenty to forty years of incarceration, imposed June 26, 2015, following a
jury trial resulting in his conviction for third degree murder.1 We affirm.
We adopt the following statement of facts from the trial court’s
opinion, which in turn is supported by the record. See Trial Court Opinion
(TCO), 6/9/16 at 1-7.
On July 13, 2013, Daimeen Walker and Josiah McClarence were
involved in an altercation with Giovanni Bain and Nkingi Jones in southwest
Philadelphia. Following the incident, Mr. Walker called Tyreek Hall, also
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1
See 18 Pa.C.S. § 2502(c).
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known as “Southwest Reek,” for help.2 Driving a gold Buick, Mr. Hall and
Appellant picked up Mr. Walker and Mr. McClarence and asked them to
identify the men with whom they had brawled. After Mr. Walker and Mr.
McClarence did so, Appellant and Mr. Hall switched cars, getting into a
rented silver Ford Mustang.
At approximately 4:00 p.m., Appellant and Mr. Hall drove to North
64th Street, where Mr. Jones and Mr. Bain were playing basketball with
brothers Aaron and Tremaine Rogers. Mr. Hall asked if any of the men had
been bothering his cousin. Mr. Jones informed him that the fight was over.
At that time, Appellant told Mr. Hall to “get busy” with the young men. Mr.
Hall took a gun from his waistband and fired seven times into the crowd
before fleeing with Appellant.
Police responded to the scene and were provided with a description of
the perpetrators. As they began to search for evidence, officers discovered
Tremaine Rogers lying face down in the back yard of 905 N. 64th Street.
Mr. Rogers had suffered a gunshot wound to the lower back and was
pronounced dead at the scene.
Police interviewed Mr. Bain, Mr. Jones, and Aaron Rogers, who
described both the fistfight and shooting. Police also interviewed Mr.
McClarence and Mr. Walker, who identified Mr. Hall as “Southwest Reek” and
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2
Appellant and Mr. Hall were tried together; Mr. Hall’s appeal is docketed at
3670 EDA 2015.
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Appellant as “Bobby.” From two photo arrays, Mr. Bain, Mr. Jones, and Mr.
Rogers identified Appellant as the driver and Mr. Hall as the shooter.
Further investigation revealed that on June 26, 2013, Appellant rented a
gray Ford Mustang. Although the car was due to be returned July 27, 2013,
Appellant exchanged the car on July 13, 2013 at 5:32 p.m., approximately
one half hour after Mr. Rogers was pronounced dead.
In March 2015, the matter proceeded to jury trial. Mr. Hall testified
that he was acting in self-defense and claimed that Aaron Rogers had a gun
on the night of the murder. No other evidence supported this statement.
Appellant did not testify in his own defense, and the jury was instructed
accordingly.
During trial, Appellant’s trial counsel, Jack McMahon, raised his voice
during cross-examination of a police detective and following the court
overruling an objection. See Notes of Testimony (N.T.), 3/6/15, at 176-
184. In front of the jury, Mr. McMahon accused the court of yelling. Id. at
176. After sending the jury from the room, the court admonished Mr.
McMahon for raising his voice to the court and stated that if he could not
control his behavior in front of the jury, he would be held in contempt. Id.
at 176-184.
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Following trial, the jury convicted Appellant of third degree murder and
acquitted him of criminal conspiracy and possessing an instrument of crime.3
In June 2016, the court sentenced Appellant to twenty to forty years of
incarceration.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court issued a
responsive opinion.
On appeal, Appellant raises the following questions for our review:
1. Is the evidence insufficient as a matter of law to sustain
Appellant’s conviction for murder in the third degree?
2. Did the trial court err in failing to grant Appellant’s motion for
a mistrial when the prosecutor engaged in misconduct and drew
explicit adverse inferences in relation to Appellant’s post-arrest
silence?
3. Did the trial court err and cause irreparable harm to Appellant
by engaging in shouting/admonishment with Appellant’s trial
counsel?
Appellant’s Brief at 4.
First, Appellant claims that the evidence was insufficient to sustain his
conviction for third degree murder. See Appellant’s Brief at 9-13.
Essentially, Appellant contends he had no knowledge that Mr. Hall was
armed and no evidence was introduced to show that Appellant intended for
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3
See 18 Pa.C.S. § 903 and 907, respectively. Appellant’s co-defendant, Mr.
Hall, was convicted of third degree murder and possession of an instrument
of crime.
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Mr. Hall to shoot the decedent. Id. Appellant notes he was acquitted of
conspiracy, and that Mr. Hall believed he was acting in self-defense.
Accordingly, Appellant concludes that these facts render his conviction
unsustainable. Id.
We review a challenge to the sufficiency of the evidence as follows.
In determining whether there was sufficient evidentiary support
for a jury’s finding [], the reviewing court inquires whether the
proofs, considered in the light most favorable to the
Commonwealth as a verdict winner, are sufficient to enable a
reasonable jury to find every element of the crime beyond a
reasonable doubt. The court bears in mind that: the
Commonwealth may sustain its burden by means of wholly
circumstantial evidence; the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court’s rulings thereon were correct; and the trier of
fact, while passing upon the credibility of witnesses and the
weight of the evidence, is free to believe all, part, or none of the
evidence.
Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations
omitted).
Third degree murder occurs when a person commits a killing which is
neither intentional nor committed during the perpetration of a felony but
contains the requisite malice. See Commonwealth v. Morris, 958 A.2d
569, 576 (Pa. Super. 2008); 18 Pa.C.S. § 2502(c). Third degree murder
requires no specific intent to kill. Commonwealth v. DiStefano, 782 A.2d
574, 582 (Pa. Super. 2001). The mens rea for third degree murder is
malice, which has been defined as
[w]ickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social
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duty, although a particular person may not be intended to be
injured . . . [M]alice may be found where the defendant
consciously disregarded an unjustified and extremely high risk
that his actions might cause serious bodily injury.
DiStefano, 782 A.2d at 582 (internal quotations and citations omitted).
Further, malice can be shown by “proving that a defendant used a
dangerous weapon on a vital part of another’s body.” Commonwealth v.
Clark, 411 A.2d 800, 802 (Pa. Super. 1979). In the instant case, it is
beyond dispute that the evidence showed a dangerous weapon, a gun, was
used on a vital part of Mr. Rogers’ body, namely, his torso.
Appellant did not fire the fatal shot but was instead convicted under
the theory of accomplice liability. The Crimes Code defines an accomplice as
a person who with the intent of promoting or facilitating the commission of
the offense, 1) solicits such other person to commit it or 2) aids, agrees, or
attempts to aid such other person in planning or committing it. See
Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005);
see also 18 Pa.C.S. § 306. Thus, the Commonwealth must establish that
Appellant intended to facilitate or promote the underlying offense and that
he actively participated in the crime by soliciting or aiding the principal, Mr.
Hall. Id. Significantly,
[b]oth requirements may be established wholly by circumstantial
evidence. Only the least degree of concert or collusion in the
commission of the offense is sufficient to sustain a finding of
responsibility as an accomplice. No agreement is required, only
aid.
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Kimbrough, 872 A.2d at 1251 (internal citations and quotations omitted);
see also Commonwealth v. Gooding, 818 A.2d 546, 550-51 (Pa. Super.
2003) (finding evidence sufficient to establish guilt where defendant drove
another man to an apartment where he retrieved a gun, then drove
conspirator to the scene of the crime).
Here, viewing Appellant’s actions in the light most favorable to the
Commonwealth as the verdict winner, we may conclude that the evidence
was sufficient to sustain Appellant’s conviction as an accomplice. Appellant
accompanied Mr. Hall to meet Mr. Walker after the two were called for
assistance following a brawl. Appellant drove Mr. Hall, Mr. McClarence, and
Mr. Walker to identify the young men involved in the altercation. Prior to
driving to the scene of the crime, Appellant switched to a rental car. During
the confrontation, Appellant ordered Mr. Hall to “get busy” with the young
men. Following the confrontation, Appellant fled with Mr. Hall and almost
immediately attempted to conceal the car involved in the shooting.
Despite Appellant’s contention that he was unaware Mr. Hall was
carrying a gun and that he did not intend for a shooting to occur, we note
that no agreement is required, only aid. See Kimbrough, 872 A.2d at
1251. Appellant provided that aid by facilitating Mr. Hall’s arrival and
departure from the scene, delivering the inciting words leading to the fatal
shooting, and concealing the getaway vehicle. Accordingly, the evidence
was sufficient to sustain his conviction for third degree murder. Diggs, 949
A.2d at 877; Morris, 958 A.2d at 576; Gooding, 818 A.2d at 550-51.
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Appellant’s argument regarding his acquittal of possession of an
instrument of crime and conspiracy is equally meritless. An acquittal is not a
specific factual finding as to any evidence; the law requires only that the
evidence be sufficient to support the verdicts as rendered. See
Commonwealth v. Rakowski, 987 A.2d 1215, 1220 (Pa. Super. 2010).
Next, Appellant claims that the court erred in failing to grant his
motion for a mistrial for two instances of prosecutorial misconduct. See
Appellant’s Brief at 13. First, Appellant contends the prosecutor committed
misconduct by drawing explicit, adverse inferences in relation to Appellant’s
post-arrest silence. Id. Second, Appellant argues that the prosecutor’s
characterization of defense arguments as “concocted,” “ridiculous,” and
“absurd” constituted misconduct. Id. at 20.
It is well-settled that the review of a trial court’s denial of a
motion for mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . . discretion is abused. A trial court may grant
a mistrial only where the incident upon which the motion is
based is of such a nature that its unavoidable effect is to deprive
the defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict. A mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (quoting
Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011)).
With reference to a claim of prosecutorial misconduct in a closing
statement,
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it is well settled that in reviewing prosecutorial remarks to
determine their prejudicial quality, comments cannot be viewed
in isolation but, rather, must be considered in the context in
which they were made. Our review of prosecutorial remarks and
an allegation of prosecutorial misconduct requires us to evaluate
whether a defendant received a fair trial, not a perfect trial.
Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal
citations and quotations omitted). A prosecutor has considerable latitude
during closing arguments when the comments are supported by the
evidence. See Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super.
2008). Further, a prosecutor may respond to defense arguments with
logical force and vigor. See Commonwealth v. Chmiel, 889 A.2d 501, 544
(Pa. 2005).
First, Appellant claims that the prosecutor improperly commented on
his post-arrest silence. See Appellant’s Brief at 13. Such remarks are
prohibited and considered innately prejudicial. See Commonwealth v.
Clark, 626 A.2d 154, 158 (Pa. 1993). In making such a claim, it “must be
clear that the reference is to post-arrest silence.” Commonwealth v.
Mitchell, 839 A.2d 202, 213 (Pa. 2003).
We first note that Appellant’s brief does not cite to relevant authority
or appropriate portions of the record. See Pa.R.A.P. 2119(a) (requiring
citation to the record and pertinent authority); see also Commonwealth v.
McMullen, 745 A.2d 683, 689 (Pa. Super. 2000) (noting that assertions
unsupported by argument and authority result in the waiver of claims).
Appellant spends approximately five pages of his brief citing to case law
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regarding post arrest silence but does not identify a specific comment by the
prosecutor in support his claim. See Appellant’s Brief at 13-19. Instead, he
cites to pages of the record, including counsel’s request for a mistrial,
without further elaboration. Id. Accordingly, we find that he has waived
this claim. See McMullen, 745 A.2d at 689.
Even if we did not find waiver, an examination of the portions of
argument cited to by Appellant do not reveal any inference by the
prosecutor regarding Appellant’s post-arrest silent but, instead, discuss Mr.
Hall’s testimony regarding his claim of self-defense. While it is possible the
record does contain such an inference, it is Appellant’s responsibility to cite
to the appropriate portions of argument and testimony. See
Commonwealth v. Miller, 731 A.2d 1121, 1124 (Pa. Super. 1998) (noting
that this court will not act as appellant’s counsel and consider undeveloped
issues). Accordingly, the prosecutor did not commit misconduct, and
Appellant’s claim is without merit. See Judy, 978 A.2d at 1019.
Second, Appellant claims that the prosecutor committed misconduct by
characterizing Appellant’s case as “concocted” and “ridiculous.” See
Appellant’s Brief at 19-20. He claims that the prosecutor made these
comments referring to both Appellant and Mr. Hall, that there was no
evidence at trial in relation to this issue, and that Appellant was unable to
respond. Id.
An examination of the record shows that the prosecutor stated, in
part:
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The only person who ever said that Aaron Rogers was not
playing basketball was Southwest Reek, and you know why he
said it. You know why he said it, because the fact that he was
playing makes this concocted, ridiculous self-defense claim go
down the tube . . . . that was the defense in this case . . . . they
had to go with something so they went with that.
See TCO at 18. “They” refers to Mr. Hall and the defense team, where both
counsel made argument that Mr. Hall had acted in self-defense. As
discussed, supra, a prosecutor may respond to arguments made by the
defense with logical vigor. See Chmiel, 889 A.2d at 544. Accordingly, the
prosecutor did not commit misconduct during this argument. Id.
Finally, Appellant claims that the trial court erred in
“shouting/admonishing” Appellant’s trial counsel. See Appellant’s Brief at
21. He contends that this alleged yelling caused Appellant “lasting and
irreparable harm” and prejudice, which affected the entire trial. Id. In
support of this contention, he avers that this was a “close verdict” and
argues the trial court does not deny “yelling.” Id. at 21-22.
As discussed, supra, the incident occurred when the court overruled
one of Mr. McMahon’s objections and Mr. McMahon became argumentative,
accusing the court, in front of the jury, of yelling. The court noted that Mr.
McMahon had been yelling for the last half hour and that he needed to stop.
The jury was then removed from the courtroom. All other remarks
exchanged between the court and Mr. McMahon were made outside of the
presence of the jury.
We have observed that
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[e]very unwise or irrelevant remark made in the course of the
trial by a judge, does not compel the granting of a new trial. A
new trial is required when the remark is prejudicial; that is,
when it is of such a nature or substance or delivered in such a
manner that it may reasonably be said to have deprived the
defendant of a fair and impartial trial.
Commonwealth v. Ragan, 645 A.2d 811, 821 (Pa. 1994) (quoting
Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 1973) (emphasis in
original). Further, it is well-settled that “the trial judge has discretion in
determining the point at which further cross-examination will be of no value,
and his ruling will not be reversed in the absence of an abuse of that
discretion.” Commonwealth v. Marker, 331 A.2d 883, 887 (Pa. Super.
1974).
Here, Appellant cites to no further case law in support of his position
that the trial judge’s remark or tone of voice prejudiced him. From an
examination of the record, we conclude that the trial court decided that
cross-examination had devolved into argument, and it merely attempted to
maintain order in the courtroom. Further, Appellant has not demonstrated
how this decision prejudiced him. The jury was capable of observing Mr.
McMahon’s courtroom demeanor and volume for itself, and any further
exchanges between Mr. McMahon and the court occurred outside of the
jury’s presence. We discern no abuse of discretion in the court’s decision
and cannot find that Appellant was deprived of a fair and impartial trial as a
result. See Ragan, 645 A.2d at 821; Marker, 331 A.2d at 887.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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