Commonwealth v. Scott ( 2016 )

J-S56044-16
2016 PA Super 182COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON DAVID SCOTT,
Appellant No. 1485 MDA 2015
Appeal from the Judgment of Sentence August 4, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002370-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 19, 2016
This is an appeal from the judgment of sentence entered by the
Honorable Edward E. Guido of the Court of Common Pleas of Cumberland
County after Appellant Jason David Scott was convicted of burglary, criminal
trespass, and criminal mischief.1 Appellant challenges the sufficiency of the
evidence supporting his convictions and claims he is entitled to a mistrial
based on comments made by the prosecutor in closing argument. After
careful review, we affirm.
On January 13, 2015, at approximately 5:00 a.m., South Middleton
School District officials were notified that the burglary alarm system at Rice
Elementary School in Mt. Holly Springs had been activated at a time when
____________________________________________
1
18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(2), respectively.
*Former Justice specially assigned to the Superior Court.
J-S56044-16
the school was not open to the public. The school’s business manager
arrived on the scene and chased an intruder from the inside of the school.
State troopers investigated the incident and discovered the teachers’ lounge
and several offices had been ransacked. The officers opined that the
intruder attempted to access the school through the back windows as they
noticed that numerous screens had been removed from exterior windows.
However, the officers inferred that the intruder gained entry by damaging a
locked door.
Subsequently, the troopers were able to identify Appellant as a
suspect after viewing video surveillance footage that recorded images of the
intruder. The images showed an intruder whose appearance resembled
Appellant. After noting that one image depicted the intruder smoking a
cigarette, the officers discovered a cigarette butt underneath one of the back
exterior windows of the school. Subsequent testing revealed that the
cigarette butt contained traces of Appellant’s DNA.
Appellant was charged with the aforementioned offenses; he
proceeded to a jury trial on the burglary and criminal trespass charges and a
bench trial on the criminal mischief charge. Appellant was convicted of all
three charges. On August 4, 2015, the trial court sentenced Appellant to an
aggregate term of 2½ to 10 years imprisonment and ordered him to pay
restitution and the costs of prosecution. This timely appeal followed.
Appellant complied with the trial court’s direction to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
-2-
J-S56044-16
Appellant raises the following issues for review on appeal:
I. Was the evidence sufficient to sustain a conviction beyond
a reasonable doubt if one were to preclude the highly
inflammatory and prejudicial evidence introduced by the
Commonwealth?
II. Did the trial court err when it denied Appellant’s motion for
a mistrial after the Commonwealth’s closing argument
improperly stated that [] Appellant did not present alibi
witnesses?
Appellant’s Brief, at 6.
First, Appellant challenges the sufficiency of the evidence supporting
all of his convictions. Our standard of review for sufficiency claims is as
follows:
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. Britton, 134 A.3d 83, 86 (Pa.Super. 2016).
-3-
J-S56044-16
The basis for Appellant’s sufficiency challenge to all three convictions is
his claim that the Commonwealth failed to prove that he was the intruder
that committed the acts in question. Specifically, Appellant contends that
the school principal did not recognize Appellant from the video footage and
points out that the Commonwealth found no fingerprints connecting him to
the crimes. Appellant dismisses the DNA evidence on the cigarette butt
found underneath a window, as his mother testified that Appellant had
brought her to the school on prior occasions as her granddaughter was
enrolled there. Contending the Commonwealth’s case is based on inferences
and conjecture, Appellant denies that the Commonwealth presented
sufficient evidence to link him to the relevant crimes. We disagree.
The police investigation revealed that the intruder had rummaged
through the contents of several offices and the teachers’ lounge, presumably
in an attempt to commit theft. The Commonwealth presented video
surveillance footage which showed the school district business manager
chasing out an intruder that resembled Appellant. The video also showed
the intruder smoking a cigarette. After troopers investigated the back
windows of the school where the intruder had removed screens in an
attempt to access the building, the officers discovered a cigarette butt with
traces of Appellant’s DNA on it.
We acknowledge that Appellant tried to explain the presence of the
cigarette by presenting the testimony of his mother who claimed that
Appellant had visited the school on other occasions. However, as noted
-4-
J-S56044-16
above, the factfinder was free to believe all, some, or none of the evidence.
Id. We will not disturb the factfinders’ credibility findings, which are
supported by the evidence of record. Accordingly, we conclude the trial
court did not err in denying Appellant’s sufficiency claim.
Second, Appellant claims he is entitled to a mistrial based on
comments made by the prosecutor in closing argument. Our standard of
review for the denial of a motion for a mistrial is limited to assessing
whether the trial court abused its discretion. Commonwealth v. Cash,
___Pa.___, 700 CAP, 2016 WL 3002910, at *8 (Pa. filed May 25, 2016).
More specifically, this Court has provided the following standards for
reviewing a claim of prosecutorial misconduct in a closing statement:
it is well settled that any challenged prosecutorial comment must
not be viewed in isolation, but rather must be considered in the
context in which it was offered. Commonwealth v. Correa,
444 Pa.Super. 621, 664 A.2d 607 (1995). Our review of a
prosecutor's comment and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant
received a fair trial, not a perfect trial. Commonwealth v.
Rios, 554 Pa. 419, 721 A.2d 1049 (1998). Thus, it is well
settled that statements made by the prosecutor to the jury
during closing argument will not form the basis for granting a
new trial “unless the unavoidable effect of such comments would
be to prejudice the jury, forming in their minds fixed bias and
hostility toward the defendant so they could not weigh the
evidence objectively and render a true verdict.”
Commonwealth v. Fletcher, 580 Pa. 403, 434–35, 861 A.2d
898, 916 (2004) (quotation and quotation marks omitted). The
appellate courts have recognized that not every unwise remark
by an attorney amounts to misconduct or warrants the grant of a
new trial. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d
28 (1991). Additionally, like the defense, the prosecution is
accorded reasonable latitude, may employ oratorical flair in
arguing its version of the case to the jury, and may advance
-5-
J-S56044-16
arguments supported by the evidence or use inferences that can
reasonably be derived therefrom. Commonwealth v. Carson,
590 Pa. 501, 913 A.2d 220 (2006); Commonwealth v. Holley,
945 A.2d 241 (Pa.Super. 2008). Moreover, the prosecutor is
permitted to fairly respond to points made in the defense's
closing, and therefore, a proper examination of a prosecutor's
comments in closing requires review of the arguments advanced
by the defense in summation. Commonwealth v. Chmiel, 585
Pa. 547, 889 A.2d 501 (2005).
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016).
Appellant points to the following statement in contending that the
prosecutor improperly implied that it was Appellant’s duty to provide alibi
witnesses other than his mother:
Today we’re at the end of the trial, and [Appellant] has
presented a case, has presented evidence. You are allowed to
consider what mom said. You are allowed to consider what mom
didn’t say. You’re allowed to consider all of that to decide
whether the Commonwealth has proved the case or not. Mom
didn’t say, oh, I remember the 13th, I remember the middle of
January well, and he was with me every night all night. Other
witnesses didn’t come in to present alibis. The only thing he
could tell you about January of 2013 is that mom needed a ride
sometimes because she had a hip replacement.
In January she needed one ride in the middle of the day to
the front entrance of the building, the same front entrance that
you see [Appellant] fleeing from in the video, from the office.
Mr. Boley told you that that door where you see him coming out
and then fleeing, that’s the office door. That’s the office door
that mom is talking about, okay, in the door and out the door.
She delivered the book and back out to the car [sic]. That’s no
excuse for the cigarette being in the back of the building.
Notes of Testimony (N.T.), 3/18/15, at 129-130.
Our review of the aforementioned comment reveals that the
prosecutor did not shift the burden of proof for Appellant to prove his
innocence, but rather highlighted the weaknesses in Appellant’s alibi
-6-
J-S56044-16
defense. The prosecutor’s statement was a fair response to defense
counsel’s closing, in which he repeatedly referred to testimony of Appellant’s
mother, who attempted to explain the presence of Appellant’s cigarette on
school premises in claiming that Appellant had brought her to the front door
of the building to return her granddaughter’s library book on one unknown
occasion in January 2013. Thus, it was proper for the trial court to give the
prosecutor latitude in advancing an argument which was supported by the
evidence at trial. We find the prosecutor’s comment did not amount to
misconduct.
Moreover, the trial court subsequently gave the jury a thorough
instruction, emphasizing that the Commonwealth had the burden to prove
Appellant’s guilt beyond a reasonable doubt and that Appellant was not
required to produce any evidence:
[T]he defendant is presumed to be innocent. The mere
fact that he was arrested and is accused of a crime is not
evidence against him. The Defendant is presumed innocent
throughout the trial and at all times unless and until you
conclude, based upon a careful and impartial consideration of the
evidence, that the Commonwealth has proven his guilt beyond a
reasonable doubt.
It is not the Defendant’s burden to prove that he is not
guilty. Instead, it is the Commonwealth that always has the
burden of proving each and every element of the crime charged
and that the Defendant is guilty of that crime beyond a
reasonable doubt. A person accused of a crime is not required
to present evidence or prove anything in his own defense. If the
Commonwealth’s evidence fails to meet its burden, then your
verdict must be not guilty. On the other hand, if the
Commonwealth’s evidence does prove beyond a reasonable
-7-
J-S56044-16
doubt that the defendant is guilty, then your verdict should be
guilty.
N.T., 3/18/15, at 132-33. Juries are presumed to follow the trial court’s
instructions. Commonwealth v. Burno, 626 Pa. 30, 65, 94 A.3d 956, 977
(2014), cert. denied sub nom. Burno v. Pennsylvania, 135 S. Ct. 1493,
191 L. Ed. 2d 435 (2015). As a result, we agree with the trial court’s
assessment that the prosecutor’s comment did not warrant the grant of a
new trial.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
-8-