Com. v. Ortiz, W ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM ORTIZ, : No. 3301 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, June 18, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0001116-2012,
CP-51-CR-000-1119-2012, CP-51-CR-0001122-2012,
CP-51-CR-0001561-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 22, 2016
William Ortiz appeals the judgment of sentence in which the Court of
Common Pleas of Philadelphia County, after a jury trial, sentenced him to
serve an aggregate of 36 to 72 years’ imprisonment for four counts of
aggravated assault, four counts of possession of an instrument of crime,
possession of a firearm prohibited, firearms not to be carried without a
license, and carrying firearms on public streets in Philadelphia.1
The facts as recounted by the trial court are as follows:
On July 5, 2011, Sergeant Joseph McDonald
responded to a call for multiple gunshots in the area
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a), 907(a), 6105(a)(1), 6106(a)(1), and 6108,
respectively.
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of Ann Street and Amber Street in Philadelphia,
Pennsylvania. Sergeant McDonald pulled onto
Bellmore Avenue, saw people congregated, and
began to clear the area and mark it off as a crime
scene. Counsel stipulated to three people being
wounded by gunshots: Angel Rodriguez, Sianie
Pena, and [appellant]. Sergeant McDonald testified
the street was littered with numerous shell casings
from a handguns [sic] and a shotgun. Sergeant
McDonald further testified a blue van, pickup truck,
and house near the scene were riddled with bullet
holes. . . .
. . . . Officer Ronald Weitman, stipulated as an
expert in ballistics and firearms identification,
testified that a total of nine fired cartridge casings
from a .45 caliber gun, eight fired cartridge casings
from a .40 caliber gun, and seven fired cartridge
casings from a .380 caliber gun were all recovered
near the intersection of Orleans and Amber
Street’s [sic].
On July 5, 2011, at approximately 5:30 [p.m.],
Angel Rodriguez, entered a grocery store at the
corner of Bellmore Avenue and Amber Street, to buy
a soda. Mr. Rodriguez left the store and crossed
Amber Street, when he was shot in his right rib cage.
. . . . Mr. Rodriguez did not sustain damage to any
organs or vital areas. In his statement made to
detective Ronald Aitken on July 12, 2011,
Mr. Rodriguez stated that “This guy ([appellant]), he
was in the same store I was in when the shooting
[occurred].” However, at trial, Mr. Rodriguez
testified that he could not recall seeing [appellant] in
the store with him, and stated he knew [appellant]
from the neighborhood. Mr. Rodriguez testified he
heard gunfire from both directions on Amber Street
from Orleans Street to Stella Street.
Sianie Pena, a two-year-old victim, was playing
in the backyard of her godfather’s house when a
stray bullet struck her. . . . Sianie suffered a
gunshot wound to her right shoulder. On July 18,
2011, the bullet was removed surgically.
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[Appellant] suffered gunshot wounds to his
lower left quadrant, right lower quadrant, and right
back area. [Appellant] was taken to Episcopal
Hospital by his friends, Isaias Justiniano and Jose
Melendez. [Appellant] underwent surgery and was
released on July 16, 2011.
Detective Leahy testified that Mr. Justiniano’s
statement from . . . July 6, 2011, indicated, “I
noticed that Wreck[Footnote 1] [appellant] was
trying to get into his car and as he tried to get up
the first time, he fell to his knees. He got back up
and then I noticed as he tried to get back up that he
dropped a few things from his hands. I couldn’t tell
what he was dropping[,] but I heard a loud clang
when whatever it was hit the ground.” Detective
Leahy further testified that he took Mr. Justiniano’s
statement verbatim, and Mr. Justiniano was given an
opportunity to make any changes to his statement
after he reviewed it. Detective Leahy testified that
two other individuals, Angel Castro and Julio Medina,
were arrested with [appellant] and Mr. Justiniano, in
relation to the shooting on July 5, 2011.
[Footnote 1] The written statement
indicates “Rec” as the alias for
[appellant] but the Notes of Testimony
indicate “Wreck.”
. . . . At trial, Mr. Justiniano testified that he did not
recall that part of his statement, and claimed that
the word “clang” was not a part of his vocabulary.
Mr. Justiniano further testified he had seen
[appellant] drop his phone and keys, and it must
have been the phone that made the “clang” noise.
Mr. Justiniano testified that the reason he failed to
tell the detectives that [he] saw [appellant] drop
anything was that he was trying to make his
statement as short as possible, and wanted to leave.
At trial, Mr. Melendez testified he did not know
[appellant] by any name other than William Ortiz.
Mr. Melendez testified he did not see [appellant]
drop a gun at the scene of the crime, or mention a
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gun at all to Detective Ronald Aitken, who took
Mr. Melendez[’s] statement. However,
Mr. Melendez’s testimony was contradictory to his
statement made to Detective Aitken on July 6, 2011
and July 12, 2011. In his statement made on July 6,
2011, Mr. Melendez referred to [appellant] as
“Wreck” multiple times, and acknowledged the name
“Wreck” in response to questions made by Detective
Aitken. In the same statement, Mr. Melendez stated
he saw [appellant] drop a “dark-colored gun.” In his
statement made to Detective Aitken on July 12,
2011, Mr. Melendez stated the reason [appellant]
was out on the block that particular day was because
he “hustles around the area.” Mr. Melendez testified
that the statement he gave on July 12, 2011, was
just a regurgitation of the statement he made on
July 6, 2011. Mr. Melendez testified that he did not
ID [appellant] with a gun on the night of the
shooting. However, in his statement made on
July 12, 2011, Mr. Melendez confirmed for the
detective that he had identified [appellant] with a
gun on the night of the shooting. Mr. Melendez
further testified that the statements he made to
Detective Aitken on July 6, 2011, and July 12, 2011
were both dated, signed, and reviewed by
Mr. Melendez.
Trial court opinion, 1/30/16 at 2-6 (citations omitted).
Following appellant’s convictions and sentencing, appellant filed a
post-sentence motion which was denied by operation of law on October 27,
2014.
Appellant raises the following issues before this court:
I. Whether [appellant] is entitled to an arrest of
judgment and/or new trial in the
above-captioned matter on the ground that the
verdict is against the weight of the evidence
since the Commonwealth’s own witnesses
placed [appellant] inside the corner store at
Amber and Bellmore Streets at the time of the
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shooting and the wounds on [appellant’s] body
were inconsistent with him being one of the
shooters involved in the incident in question?
II. Whether [appellant] is entitled to an arrest of
judgment in the above-captioned matter on
the ground that the evidence was insufficient
to sustain [appellant’s] conviction at CP-51-
CR-0001119-2012 (complt. Julio Medina) and
CP-51-CR-0001122-2012 (complt. Angel
Castro) since the Commonwealth’s evidence
failed to establish that [appellant] was one of
the shooters in the incident in question and
also failed to establish that complainants
Julio Medina and Angel Castro were even
present at the scene at the time of the
incident?
III. Whether [appellant] is entitled to an arrest of
judgment in the above-captioned matter on
the ground that the evidence was insufficient
to sustain [appellant’s] convictions at CP-51-
CR-0001116-2012 (complt. Angel Rodriguez)
and CP-51-CR-0001561-2012 (complt. Siani[e]
Pena) since [appellant] was acquitted of
Conspiracy (F1) and the Commonwealth’s
evidence failed to establish that [appellant]
fired the shots which struck either Angel
Rodriguez or Siani[e] Pena and in fact, failed
to even establish that [appellant] was a
shooter in the alleged incident giving rise to
the charges?
IV. Whether [appellant’s] sentence of 15-30 years
for Aggravated Assault (F1) at CP-51-CR-
0001561-2012 should be vacated on the
ground that the sentence is illegal in that it
exceeds the statutory maximum established by
18 Pa.C.S.[A.] § 1103?
V. Did the lower court err in denying [appellant’s]
request for a mistrial after the prosecutor
committed prosecutorial misconduct by
improperly stated [sic] in closing argument,
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“tell [appellant] it’s not okay to turn your
neighborhoods into a shooting gallery.”?
Appellant’s brief at 3-4.
Initially, appellant contends that he is entitled to an arrest of judgment
and/or a new trial because the verdict was against the weight of the
evidence in that the Commonwealth’s own witnesses placed appellant inside
a corner store at the time of the shooting and appellant’s wounds were
inconsistent with him acting as one of the shooters. Specifically, appellant
argues that because Angel Rodriguez testified that appellant was in the store
at the corner of Bellmore and Amber Streets, that meant he could not be at
the corners where the shooting took place. Similarly, appellant argues that
the fact that he sustained gunshot wounds to both sides of his body
indicated that he was caught in a crossfire of two groups of shooters as
opposed to him acting as a shooter.
[T]he weight of the evidence is
exclusively for the finder of fact who is
free to believe all, part, or none of the
evidence and to determine the credibility
of the witnesses. An appellate court
cannot substitute its judgment for that of
the finder of fact . . . thus, we may only
reverse the lower court’s verdict if it is so
contrary to the evidence as to shock
one’s sense of justice. Moreover, where
the trial court has ruled on the weight
claim below, an appellate court’s role is
not to consider the underlying question
of whether the verdict is against the
weight of the evidence, . . . rather,
appellate review is limited to whether the
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trial court palpably abused its discretion
in ruling on the weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
With respect to this issue of whether the verdict was against the
weight of the evidence, the trial court reasoned:
Although in his statement to Detective Aitken,
Mr. Rodriguez stated [appellant] was with him in the
store right before the shooting, at trial he testified
that he could not recall [appellant] being in that
store. As Mr. Rodriguez indicated different facts at
different times, it is well within the discretion of the
jury to determine which facts are true. The jury
heard the mere inconsistency in Mr. Rodriguez’s
testimony but was still able to determine the facts of
the case.
[Appellant] contends that his wounds were
inconsistent with him being one of the shooters
involved in the incident. There was no evidence
presented to infer the injuries sustained by
[appellant] were inconsistent with him being one of
the shooters in the incident. The injuries [appellant]
sustained to his lower left quadrant, lower right
quadrant, and right back area, could have all been
sustained during, or after, his direct involvement in
the shooting. There is circumstantial evidence
demonstrating [appellant] was in a shootout, and he
could have been wounded at any point.
Trial court opinion, 1/30/16 at 9.
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This court determines that the trial court did not abuse its discretion.
Rodriguez presented conflicting evidence. The jury, as the fact-finder, had
the authority to believe all, part, or none of Rodriguez’s testimony. See
Commonwealth v. Keaton, 729 A.2d 529, 540 (Pa. 1999). In addition,
the trial court correctly stated that there is nothing in the record to support
appellant’s contention that the location of his wounds proves that he was not
one of the shooters. The evidence appellant cites does not lead to the
conclusion that the jury’s verdict shocked one’s sense of justice.
Appellant next contends that he is entitled to an arrest of judgment on
the basis that the evidence was insufficient to sustain his convictions at
CP-51-CR-0001119-20112 and CP-51-CR-0001122-2012 because the
Commonwealth’s evidence failed to establish that he was one of the shooters
at the incident and failed to establish that the complainants Julio Medina
(“Medina”) and Angel Castro (“Castro”) were present at the scene at the
time of the incident.2 Appellant asserts that the record does not contain any
evidence that either Medina or Castro were present at the time of the
shooting, were intended targets, or were harmed in any way. Further,
appellant asserts that the Commonwealth failed to produce any eyewitness
testimony that identified him as a participant in the shooting.
A claim challenging the sufficiency of the
evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
2
Appellant was charged under four different docket numbers. Two of them
listed the complainants as Julio Medina and Angel Castro, respectively.
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(2000). In that case, our Supreme Court set forth
the sufficiency of the evidence standard:
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
A person will be found 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.” 18 Pa.C.S.A. § 2702(a)(1). The
term “serious bodily injury” is defined by statute as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
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disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301.
[T]he charge of aggravated assault can be supported
. . . if the evidence supports a finding of an attempt
to cause such injury. A person commits an attempt
when, with intent to commit a specific crime, he
does any act which constitutes a substantial step
toward the commission of that crime. An attempt
under Subsection 2702(a)(1) requires some act,
albeit not one causing serious bodily injury,
accompanied by an intent to inflict serious bodily
injury.
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012)
(quotations and quotation marks omitted).
Where the victim suffers serious bodily injury, the Commonwealth is
not required to prove specific intent. Commonwealth v. Nichols, 692 A.2d
181, 185 (Pa.Super. 1997). Instead, the Commonwealth must establish that
the defendant acted recklessly under circumstances that manifested an
extreme indifference to the value of human life. Id. In order to prevail on a
theory of recklessness, the Commonwealth must prove that the defendant
acted with malice. Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super.
2007).
Malice exists where there is a
“wickedness of disposition, hardness of
heart, cruelty, recklessness of
consequences, and a mind regardless of
social duty, although a particular person
may not be intended to be injured.”
Commonwealth v. Pigg, 391 Pa.Super.
418, 571 A.2d 438, 441 (1990), appeal
denied, 525 Pa. 406, 581 A.2d 565- 10 -
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(1990) (quoting Commonwealth v.
Drum, 58 Pa. 9, 15 (1868). Where
malice is based on a reckless disregard
of consequences, it is not sufficient to
show mere recklessness; rather, it must
be shown the defendant consciously
disregarded an unjustified and extremely
high risk that his actions might cause
death or serious bodily injury. See
Commonwealth v. Scales, 437
Pa.Super. 14, 648 A.2d 1205, 1207
(1994), appeal denied, 540 Pa. 640,
659 A.2d 559 (1995) (regarding third
degree murder). A defendant must
display a conscious disregard for almost
certain death or injury such that it is
tantamount to an actual desire to injure
or kill; at the very least, the conduct
must be such that one could reasonably
anticipate death or serious bodily injury
would likely and logically result. See
[Commonwealth v.] O’Hanlon, . . .
[539 Pa. 478,] 653 A.2d [616] at 618
[(1995)] (regarding aggravated assault).
[Commonwealth v.] King, 731 A.2d [145] at 147-
148 [(Pa.Super. 1999)].
Bruce, 916 A.2d at 664.
With respect to this sufficiency issue, the trial court determined:
There is sufficient circumstantial evidence to
prove [appellant] possessed the intent to shoot and
thus cause serious bodily injury to Julio Medina and
Angel Rodriguez. Based on Mr. Justiniano’s
testimony, a reasonable jury could conclude that the
“clang” noise he heard when he observed [appellant]
drop a few things from his hands, was in fact a gun.
A reasonable jury could also conclude that
[appellant] possessed a gun based on Mr. Melendez’s
testimony that he saw [appellant] drop a
“dark-colored gun.” Mr. Melendez testified that
[appellant] was out on the block that particular day
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. . . because he “hustles around the area.” The
circumstantial evidence indicates that the shooting
occurred due to a dispute concerning the area in
which [appellant] “hustled.” While there was
inconsistent testimony as to Julio Medina and Angel
Castro’s involvement in the shooting, they were both
arrested on the same day of the shooting. The
totality of circumstantial evidence is adequate to
enable a reasonable jury to conclude that [appellant]
intended to shoot Julio Medina and Angel Castro, but
instead struck Angel Rodriguez and Sianie Pena.
Trial court opinion, 1/30/16 at 10-11 (citations omitted).
The record reflects that Angel Rodriguez testified that he observed
gunshots coming from two directions with a group of five to ten teenagers
on Stella Street and a similar sized group on Orleans Street. (Notes of
testimony, 4/1/14 at 101-102.) Appellant was shot multiple times in this
incident. Jose Melendez testified when reading from his statement that he
saw appellant drop a gun. (Notes of testimony, 4/3/14 at 125-126.)
Further, Isaias Justiniano (“Justiniano”), who pled guilty to aggravated
assault in the same incident, stated to the police that he heard a loud
“clang” when appellant fell to the ground after he was shot, though
Justiniano did not recall making that statement when he testified. (Notes of
testimony, 4/2/14 at 80-81.) Police recovered approximately 25 cartridge
casings from the corner where appellant had been seen. (Notes of
testimony, 4/3/14 at 74-82.) Justiniano testified that Medina and Castro
were arrested in the shooting incident as well. (Notes of testimony, 4/2/14
at 102.) A jury could reach the conclusion that appellant intended to shoot
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Medina and Castro by firing into the group of people which included them
but instead struck Angel Rodriguez and Sianie Pena. There is circumstantial
evidence which is sufficient to prove the elements of the offense. See
Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013). The evidence
was sufficient to warrant a conviction for aggravated assault with respect to
appellant’s intent to inflict serious bodily injury on Medina and Castro.
Appellant next contends that he is entitled to an arrest of judgment on
the basis that the evidence is insufficient to sustain his convictions at CP-51-
CR-0001116-2012 and CP-51-CR-0001561-2012 for aggravated assault
because he was not convicted of conspiracy and the Commonwealth’s
evidence failed to establish that appellant fired the shots that struck either
Angel Rodriguez or Sianie Pena and failed to establish that appellant was a
shooter in the alleged incident that gave rise to these charges. Appellant
argues that no legal theory exists under which he could be held criminally
liable for the injuries to Rodriguez and Pena other than if the Commonwealth
had established that he actually fired the shots which struck these victims.
With respect to this issue, the trial court opined:
[Appellant] clearly acted with extreme
indifference to human life. All evidence presented
indicates [appellant] fired a gun on a public,
residential street with multiple people around,
ultimately ending with both Angel Rodriguez and two
year old Sianie Pena sustaining injuries. Shooting
multiple rounds, to the extent of leaving vehicles and
homes riddled with bullet holes, clearly constitutes
an offensive act, that under the circumstances, could
almost assure that injury or death will occur. In
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Commonwealth v. Daniels, [354 A.2d 538, 539
(Pa. 1976)], [t]he Supreme Court of Pennsylvania
held there was sufficient evidence of aggravated
assault where the defendant fired a number of shots
in a barroom full of people, striking one bystander.
[Id.] The court held this action constituted reckless
conduct which manifested extreme indifference to
the value of human life, and that the appellant’s
actions caused serious bodily injury to another. Id.In the instant case, Mr. Rodriguez sustained a
gunshot wound to his right rib cage and two year old
Sianie Pena also sustained a gunshot wound to her
right shoulder, which required surgery to remove the
bullet, when [appellant] fired multiple gunshots on a
crowded street. Mr. Rodriguez’s and Sianie Pena’s
injuries both rise to serious bodily injury as
[appellant] demonstrated an extreme indifference to
human life by firing multiple gunshots into a crowded
street.
Trial court opinion, 1/30/16 at 11-12.
This court essentially agrees with the trial court. Evidence was
produced that indicated that appellant was on the corner where the shooting
took place, that he was seen with a gun, shots were fired from the two
groups, and that Angel Rodriguez and Sianie Pena were struck by gunfire in
the area. Although there is no direct evidence to establish that appellant
shot Rodriguez and Pena, there is circumstantial evidence which is sufficient
to prove the elements of the offense. See Sanchez.
Appellant next contends that his sentence of 15 to 30 years for
aggravated assault at CP-51-CR-0001561-2012 should be vacated on the
ground that the sentence is illegal in that it exceeds the statutory maximum
set forth in 18 Pa.C.S.A. § 1103. Appellant argues that the maximum
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sentence for this crime was 20 years. The trial court and the
Commonwealth agree with appellant. A review of Section 1103 confirms
appellant’s contention. The Commonwealth asks that this court should
remand to the trial court for resentencing on all offenses.
In Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986),
cert. denied, 480 U.S. 950 (1987), our supreme court held that
proscriptions against double jeopardy do not prevent an appellate court from
remanding for sentencing on all bills of information when the vacation of
various portions of the sentence could undermine the trial court’s sentencing
scheme.
Where, as here, appellant was sentenced on multiple charges
stemming from the same incident, it is possible that the vacation of the
aggravated assault conviction and remand for resentencing could alter the
sentencing scheme of the trial court. Here, the trial court with respect to
the Angel Rodriguez complaint sentenced appellant to a term of 9 to
18 years’ imprisonment for aggravated assault, to a consecutive term of 5 to
10 years’ imprisonment for possession of a firearm prohibited, to a
consecutive term of 3 to 6 years’ imprisonment for carrying a firearm in
public in Philadelphia, and to a consecutive term of 2 to 4 years’
imprisonment for possession of an instrument of crime. With respect to the
Julio Medina complaint, the trial court sentenced appellant to a term of 7½
to 15 years’ imprisonment for aggravated assault and to a term of 2 to
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4 years’ imprisonment for possession of an instrument of crime. These
sentences were concurrent to the “Rodriguez complaint” sentence. With
respect to the Angel Castro complaint, the trial court sentenced appellant to
a term of 7½ to 15 years’ imprisonment for aggravated assault and to a
term of 2 to 4 years’ imprisonment for possession of an instrument of crime.
These sentences were concurrent to the “Rodriguez complaint” sentence.
With respect to the sentence that we have determined was illegal, the trial
court sentenced appellant to a consecutive term of 15 to 30 years’
imprisonment for aggravated assault. He was also sentenced to a
concurrent term of 2 to 4 years’ imprisonment for possession of an
instrument of crime. Because the vacated 15 to 30-year sentence affects
the trial court’s overall sentencing scheme, we will agree to the request of
the Commonwealth and vacate this sentence and remand to the trial court
to resentence appellant.
Finally, appellant contends that the trial court erred when it denied his
request for a mistrial after the prosecutor committed prosecutorial
misconduct when he stated in his closing argument, “And I’m asking you
now to tell [appellant] it’s not okay to turn your neighborhoods into a
shooting gallery.” (Notes of testimony, 4/4/14 at 61.)
Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
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prosecutor constitutes reversible error. A
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)
(internal citations and quotations omitted).
In Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009), in a
murder trial, the prosecutor in her closing argument, stated, “[A]nd the
second message I want to send to [Neal Lamont Patton (“Patton”), the
defendant] is to tell him he can’t get away with murder.” Patton, 985 A.2d
at 1285. Patton objected. The trial court agreed to give a curative
instruction and failed to do so. The jury convicted Patton of first degree
murder. This court affirmed. On appeal to the Pennsylvania Supreme
Court, Patton argued that the prosecutor’s statement was per se prejudicial.
The Pennsylvania Supreme Court affirmed on the basis that while the
comment was inappropriate, it was not so much so as to deny Patton a fair
trial. Id. at 1285-1286. Our supreme court also held that “Prosecutorial
remarks encouraging a jury to ‘send a message’ to the defendant, rather
than the community or criminal justice system, do not invite consideration of
extraneous matters and are not misconduct.” Id. at 1288.
Similarly, here the prosecutor did not ask the jury to send a message
to the community but to appellant as in Patton. This issue has no merit.
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Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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