Com. v. Lawrence, E ( 2021 )

J-A16018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDIA ANTONIO LAWRENCE :
:
Appellant : No. 1017 MDA 2020
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003473-2017
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 19, 2021
Edia Antonio Lawrence (Appellant) appeals from his judgment of
sentence imposed in the York County Court of Common Pleas following his
jury convictions of one count each of second degree murder, conspiracy,
burglary, simple assault, and terroristic threats, and two counts of robbery.1
On appeal, he challenges: (1) the evidence identifying him as the perpetrator;
and (2) the Commonwealth’s closing arguments and the trial court’s jury
instructions concerning second degree murder. After careful review, we
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(b), 903, 3502(a)(1)(i), 2701(a)(3), 2706(a)(1),
3701(a)(1)(i), 3701(a)(1)(ii), respectively.
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Appellant was accused of committing, along with two cohorts, a home
invasion, robbery, and the homicide of Appellant’s ex-girlfriend, Ahshantianna
Johnson (Victim), at her home in Mount Wolf, Pennsylvania. Appellant was
charged with one count each of first degree murder, second degree murder,
burglary, simple assault, and terroristic threats, and two counts each of
robbery and conspiracy.2 This case proceeded to a jury trial on March 10,
2020, where the Commonwealth presented the following evidence.
The Victim’s mother, Noemi Capo (Capo), testified that on March 25,
2017, around 2:15 a.m., three men, all wearing gloves and masks, entered
her home in Mount Wolf. N.T., Jury Trial Vol. II, 3/10/20, at 194-95, 206.
Capo, her two sons, and the Victim all lived there, but at the time, only Capo
was home. Id. at 196-97. Capo knew Appellant as the Victim’s ex-boyfriend,
and referred to him as “Richie,” a name that Appellant used. Id. at 200, 205;
N.T. Jury Trial Vol. IIII,3 3/12/20, at 665. Capo identified Appellant by his
voice, mannerisms, familiarity, and by “the things he was asking for in [her]
house.” N.T., 3/10/20, at 138, 224. For instance, Appellant knew what sports
Capo’s sons played, knew where her sons kept their PlayStation 4, and had
“very distinctive” “beady eyes.” Id. at 138, 206, 228, 249. Appellant
previously visited Capo’s home “around 50” times and Capo spoke with him
____________________________________________
2 18 Pa.C.S. § 2502(a).
3 The cover of this transcript is entitled “Jury Trial Vol. IIII” (and not “IV”).
For ease of review, we use this title in our citation.
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for a “couple [of] minutes” “[a] month” before the incident. Id. at 200-01.
Capo also heard his voice about “five times” when he had been at her home.
Id.
Appellant directed Capo to call the Victim while holding a “knife and a
[metal] bat” and told her if she “yell[ed] or ma[de] any kind of noise, he would
bash [her] head in.” N.T., 3/10/20, at 212. During the incident, Appellant
directed one of his co-conspirators to retrieve duct tape from the car, which
he then placed on the entertainment stand. Id. at 230. Capo identified the
knife and duct tape at trial. Id. at 229, 231. After Capo asked the Victim to
come to her home, Appellant took her phone. Id. at 215.
After luring the Victim home, Capo asked to use the bathroom. N.T.,
3/10/20, at 219-20. When Appellant allowed her to do so, she “ran outside
the house.” Id. As she was running from the home, she saw the Victim “drive
[towards the house] in her car.” Id. at 221. Capo knocked on several
neighbors’ doors until neighbor Troy McClane answered and she begged him
to call the police. Id. at 222. McClane drove Capo back to her home, where
police had already arrived. Id. at 223. Capo immediately told police one of
the perpetrators was a man named “Richie.” Id. at 134, 138. Capo identified
Appellant as “Richie” at trial. Id. at 205. Items stolen from the home include
televisions, the Victim’s sneakers, two jackets, including one belonging to the
Victim, money, a PlayStation 4 remote control, and Capo’s phone. Id. at 224,
258.
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The Commonwealth presented the following testimony of Quincy Lamarr
Gray, Capo’s neighbor. Between 2:00 and 3:00 a.m. on March 25, 2017, he
“heard a loud banging noise and some arguing.” N.T., 3/10/20, at 287. He
heard “at least one or two male voices and a female voice.” Id. One of the
voices said “help me.” Id. at 288. Gray also saw a “black figure in the
grass[.]” Id. at 288-89.
Northeast Regional Police Officer Shaun Goodman and Newberry
Township Police Officer Breyer4 responded to the scene at Capo’s home. N.T.,
3/10/20, at 128-29. The two officers entered the front door, which was open.
Id. at 130-31. Officer Goodman saw the back door was also open with “a key
in a dead bolt.” Id. The officers described the home as in “utter disarray.”
Id. at 132-33. Upstairs, Officer Goodman saw “[d]rawers pulled out” as if
“someone was looking for something[.]” Id. at 133, 135.
During his investigation, Officer Goodman heard “an audible groan
coming from the backyard[.]” N.T., 3/10/20, at 131. There, he found the
Victim “laying in the lawn[ ]” with “multiple lacerations across her face.” Id.
at 131-32. The Victim was alive but unresponsive, her face was “covered in
blood,” and she was “gurgling[.]” Id. at 132. Police found a mask in the
backyard where the Victim was found; Capo later identified this mask as the
one worn by Appellant. Id. at 159, 232.
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4 Officer Breyer’s first name is not apparent from the record.
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The Victim was transported to the hospital and passed away five days
later from her injuries. N.T., 3/10/20, at 132, 223. Forensic Nurse Brandi
Castro and Medical and Forensic Pathologist Michael Johnson testified the
Victim sustained
swelling and bruising on her face and arms, two black eyes,
lacerations on her head and hands, a fractured face and skull, and
brain swelling that would have resulted in a significant brain injury
had she survived. Her cause of death was determined to be
homicide by head trauma, consistent with trauma from a heavy
blunt instrument.
Trial Ct. Op., 11/10/20, at 4-5; N.T., Jury Trial Vol. III, 3/11/20, at 464-471,
491, 493-95, 497-98.
The police collected as evidence, inter alia, a wooden bat, a metal bat,
a roll of duct tape, a dead bolt key, and a knife from inside the home and a
scarf, blood, and the mask, described above, from the backyard. N.T.,
3/10/20, at 158-59; N.T., 3/11/20, at 504, 532. Forensic Biologist Sears
examined a DNA sample from both the mask found in the back yard and the
duct tape and concluded that Appellant could not be excluded as a major
contributor. N.T., 3/12/20, at 631, 634-35, 638-39.
Tania Butler, a former classmate of Appellant, testified that Appellant
had “multiple” phone numbers that she used to communicate with him. N.T.,
3/10/20, at 331, 335. In a May 22, 2017, police interview, Butler provided
two phone numbers used by Appellant: (917) 605-6XX8 and (845) 694-9XX3.
Id. at 335. Butler testified that both phone numbers belonged to Appellant
and no one else used them. Id. at 336. Pennsylvania State Trooper James
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Welsch was qualified as an expert in “cell phone technology and mapping of
cell phone data.” N.T., 3/11/20, at 384. He testified the phone associated
with the number (845) 694-9XX3 had “no subscriber information[,]” but that
on March 25, 2017, that phone “traveled from the northeast region of
[Pennsylvania], to the Mount Wolf area . . . and . . . back up to the northeast.”
Id. at 403, 405-06. The phone was in the Mount Wolf area at 2:15 a.m. Id.
at 403. Northeast Regional Detective Brian O’Melko testified that he reviewed
contacts in the Victim’s phone and the phone number (845) 694-9XX3 was
saved under Appellant’s first name. Id. at 512-13.
“During the course of the investigation[,]” Detective O’Melko
interviewed a potential suspect, Konica Ashton. N.T., 3/11/20, at 542. Ashton
posted a video to Facebook, in which she stated she killed the Victim. Id. at
543. However, “at the end [of the same video], she said she was lying[.]”
Id.
The Commonwealth also presented witnesses Shaun Whack and Dakota
Gilbeau, who testified as follows:
[Whack] testified that he sold marijuana for Appellant — he would
sell the marijuana and owe a cut of the money back to Appellant.
Appellant sent women to pick the money up rather than picking it
up himself. A couple weeks prior to the incident, [the Victim]
picked up a little over $3, 000 from Whack. Soon after, Appellant
called Whack and stated that [the Victim] “had not contacted him
and that he was going to smack the shit out of her for playing with
his money.” Whack also spoke with Appellant after hearing of [the
Victim’s] death, and Appellant told Whack that “the job was done”
and “it got handled.”
[Gilbeau] testified that prior to the incident at [ ] Capo’s home,
Appellant asked him to go to [the Victim’s] house and see if she
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was home. Appellant told Gilbeau that the reason he was looking
for [the Victim] was that [she] owed Appellant $3,000.
Trial Ct. Op. at 4-5 (footnotes omitted and paragraph break added).
York County Sherriff’s Office Corporal Gary Landis testified that on April
19, 2017, when Appellant was brought in for arraignment, he overheard
Appellant on a phone call directing the recipient “to get[ ] a Play[S]tation 4
controller from a child’s room” and to “get rid of it.” N.T., 3/11/20, at 545-
47.
Appellant testified at trial in his own defense. He stated that on March
24, 2017, he went to work in New York and received two speeding tickets that
day. N.T., 3/12/20, at 665. Appellant admitted to selling marijuana, but
contested the testimony of Commonwealth witness Whack, denying any
“partnership” wherein Appellant would provide or loan Whack marijuana to
sell. Id. at 666. Whack “either had money to pay for [marijuana] or we didn’t
talk.” Id. at 666-67. Appellant claimed this was a “theory the
[Commonwealth] wanted you to hear.” Id. at 666. Appellant admitted that
before the incident, the Victim agreed to do him a favor and “pick up [ ] weed
and pick up [ ] money” from people buying marijuana from him, including
Whack. Id. at 668. The Victim told Appellant she was “going to keep the
money” belonging to Whack. Id. at 668-69. In response, Whack allegedly
called Appellant, angry about the money, and “[d]ays later, [the Victim] was
killed.” Id. at 669-70.
Appellant was found guilty by a jury of one count each of second degree
murder, conspiracy to commit robbery, burglary, simple assault, and
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terroristic threats, and two counts of robbery. Appellant was sentenced on
March 13, 2020, to life without parole for second degree murder and a
consecutive sentence of five to 15 years’ incarceration for conspiracy.
Appellant filed a post-sentence motion for arrest of judgment or a new
trial, which the trial court denied on July 23, 2020. This timely appeal5
followed. Appellant timely complied with the trial court’s order to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises four issues on appeal:
[1.] Whether the evidence was insufficient to convict Appellant of
the robbery of [the Victim] or the robbery of [Capo] or burglary?
[2.] Whether the evidence was insufficient to convict [ ] Appellant
of second[ ]degree murder?
3.Whether the evidence was insufficient to establish criminal
conspiracy to commit robbery?
4. Whether the [Commonwealth’s] closing argument and the jury
instructions violated Appellant’s due process rights by amending
the information to conform to the proof at trial and prejudicing
Appellant by asserting that the motive for the robbery and murder
was revenge over nonpayment of a drug debt which is not a
predicate felony for second degree murder?
Appellant’s Brief at 2-3.6
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5 Appellant filed a notice of appeal from both his judgment of sentence and
the order denying his post sentence motion. “In a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410
n.2 (Pa. Super. 2001) (en banc) (citation omitted), appeal denied, 800 A.2d
932 (Pa. 2002).
6 Appellant’s claims have been reordered for ease of review.
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Preliminarily, we note:
A claim challenging the sufficiency of the evidence is a
question of law. 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. 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. 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
In Appellant’s first three claims on appeal, he avers “[t]he evidence is
insufficient to prove [he] was the individual who killed” the Victim, robbed
Capo, or participated in the home invasion. Appellant’s Brief at 15, 23, 24.
Appellant acknowledges Capo’s identification of him as one of the three
masked assailants, but maintains, inter alia, the home invaders wore masks,
his DNA was not on the Victim’s clothing or fingernails, and there was no
subscriber information for the cell phone number (845) 694-9XX3. Id. at 15-
16. Appellant also references his trial testimony that he did not participate in
the home invasion. Id. at 20-21. Appellant asserts the only evidence that he
participated came from Capo’s testimony, which was insufficient because it
was given “under stressful circumstances.” Id. at 21. Appellant further
argues “Capo’s identification testimony is offset” by Detective O’Melko’s
testimony “that there was another suspect[,]” Konica Ashton, who stated “she
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was the killer” in a Facebook video. Id. at 25. Appellant reasons that because
“the other conspirators were not identified[,] there was no evidence of the
unity of purpose or intent to achieve a common goal,” for purposes of the
conspiracy charge. Id. at 26. Finally, Appellant claims the expert testimony
regarding Appellant’s DNA “is not proof beyond a reasonable doubt” that he
was the perpetrator. Appellant’s Brief at 21, citing Commonwealth v. Long,
368 A.2d 265 at 267 (Pa. 1977). Appellant insists that based on the evidence
presented, the jury could only “guess” who committed the robbery and thus,
he must be acquitted. Id. at 19, 25-26.
First, we conclude Appellant’s arguments go to the weight, not
sufficiency, of the evidence. See Commonwealth v. Cain, 906 A.2d 1242,
1245 (Pa. Super. 2006) (“[A]ny uncertainty in an eyewitness’s identification
of a defendant is a question of the weight of the evidence, not its
sufficiency.”). Appellant concedes there was evidence identifying him —
Capo’s trial testimony — but essentially argues it should not have been
believed. See Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super.
2006) (“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed[ and] contests the weight that is accorded the testimonial
evidence.”). Therefore, regardless of Appellant’s framing his claims as
challenges to the sufficiency of evidence, we evaluate his arguments pursuant
to weight of the evidence principles.
This Court has stated:
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[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 trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2013) (citation
omitted). In-court testimony identifying the defendant as the perpetrator is
sufficient by itself to establish the identity element of a crime. See
Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (one
witness’s identification is sufficient for conviction and appellant’s assertion
that his own testimony contradicted the identification is irrelevant in a
sufficiency analysis).
Furthermore, a weight of the evidence claim on appeal must have been
properly preserved. See Pa.R.Crim.P. 607(A)(1)-(3). To properly preserve a
weight of the evidence claim, Appellant must raise it with the trial judge in a
motion for a new trial: [ ] orally, on the record, at any time before sentencing;
[ ] by written motion at any time before sentencing; or [ ] in a post-sentence
motion.” Id. “Failure to properly preserve the claim will result in waiver,
even if the trial court addresses the issue in its opinion.” Commonwealth v.
Rivera, 238 A.3d 482, 497 (Pa. Super. 2020) (citation omitted). See also
id. at 498 (“[W]hen an appellate court reviews a weight claim, the court is
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reviewing the exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the evidence.”).
Here, Appellant failed to preserve any of the claims he now raises on
appeal.7 Thus, his present claims raised are waived. See Pa.R.Crim.P.
607(A)(1)-(3); Rivera, 238 A.3d at 497.
Moreover, had Appellant preserved any weight of the evidence claims,
he would not be entitled to relief. Second degree murder is defined as the
following:
A criminal homicide constitutes murder of the second degree when
it is committed while defendant was engaged as a principal or an
accomplice in the perpetration of a felony.
* * *
“Perpetration of a felony.” — The act of the defendant in engaging
in or being an accomplice in the commission of, or an attempt to
commit, or flight after committing, or attempting to commit
robbery, rape, or deviate sexual intercourse by force or threat of
force, arson, burglary or kidnapping.
18 Pa.C.S. § 2502(b), (d).
In relevant part, robbery is defined as:
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7 Although Appellant filed a post-sentence motion, the claims raised therein
were: (1) “drug dealing is not a predicate felony for second degree murder;”
(2) the court erred in not giving a jury instruction “on the lesser included
offense of robbery, which would be theft;” (3) there was no evidence that the
Victim was beaten to death during the robbery or burglary, and instead, the
evidence indicated she was beaten after the robbery or burglary; (4) there
was no evidence that Appellant robbed the Victim; (5) the Commonwealth’s
presentation of the DNA evidence violated the Confrontation Clause; and (6)
the Commonwealth did not identify any of the co-conspirators. Appellant’s
Memorandum of law Support Post-Sentence Motion, 7/17/20, at 9-10.
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(1) A person is guilty of robbery if, in the course of committing a
theft, he:
(i) inflicts serious bodily injury upon another[.]
18 Pa.C.S. § 3701(a)(1)(i). “Serious bodily injury” is defined as a bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ. 18 Pa.C.S. § 2301.
Conspiracy is defined as follows:
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 he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903(a)(1)-(2). The Commonwealth need not identify, arrest, or
prosecute a defendant’s co-conspirators to prove he participated in a
conspiracy. Commonwealth v. Fremd, 860 A.2d 515, 521-22 (Pa. Super
2004).
On the night of the home invasion, Capo immediately identified
Appellant to police as one of the masked assailants. She also identified him
at trial, explaining that she recognized him due to, inter alia, his voice, eyes,
and knowledge of her home. N.T., 3/10/20, at 138, 206. Under Appellant’s
threat of death, Capo was forced to lure the Victim home. This identification
alone was sufficient to convict Appellant if believed by the jury. See Shaffer,
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A.3d at 1253; see Johnson, 180 A.3d at 478. Upon arrival, the Victim was
beaten to death, and a mask with Appellant’s DNA was found in the backyard
near her body. The Commonwealth also presented Whack’s testimony
providing Appellant’s motive to harm the Victim and steal from her, as well as
forensic cell phone technology expert testimony circumstantially establishing
Appellant’s proximity to the crime scene.
Although Appellant testified that he was not one of the perpetrators, the
jury was free to reject his testimony, and was free to believe all, part, or none
of the Commonwealth’s evidence. See Shaffer, A.3d at 1253. The jury
clearly chose to believe the Commonwealth’s evidence and reject Appellant’s
self-serving testimony. Thus, no relief is due.
In his final claim on appeal, Appellant challenges the following closing
argument by the Commonwealth:
[The Victim] had [Appellant’s] money. She had $3,000[.]
[Gilbeau] said [Appellant] was looking for $3,000. That’s your
motive.
* * *
This is [ ] a second[ ]degree murder case. What is different about
second as compared to first? Second[ ]degree murder is a murder
that occurs in conjunction with another felony. In this case, we
have two other felonies that are alleged: One is burglary and
the other is robbery.
Appellant’s Brief at 27-28, quoting N.T., 3/12/20, at 718, 723 (emphases
added).
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Appellant avers the Commonwealth’s closing argument “confused the
jury,” leading it to believe he “killed [the Victim] over her failure to pay a drug
debt.” Appellant’s Brief at 29. Appellant states the Commonwealth’s
“insist[ing this was] the motive” for the crime caused a “reasonable
probability” that the jury convicted him of second degree murder “based on a
crime that is not among the predicate felonies covered by the statute.” Id.Appellant further challenges the following jury instruction regarding
motive:
You have heard [Appellant] was involved in selling marijuana. He
is not on trial for that offense. The evidence is before you for
a limited purpose[,] tending to show [Appellant’s] motive,
opportunity, intent preparation, plan, knowledge identity, absence
of mistake[,] or lack of access. In this case, the Commonwealth
says this was the motive for the crime.
Appellant’s Brief at 28, quoting N.T., 3/12/20, at 741 (emphases added).
Appellant also avers the trial court’s following instructions on second
degree murder were “conflict[ing]:”
[Appellant] has been charged with second degree murder, that is,
felony murder. And to find him guilty, you must find the following
three elements have been proven beyond a reasonable doubt:
First, that [Appellant]killed [the Victim]; second, that the act was
done while committing a robbery and/or burglary; third, that
[Appellant] was acting with malice.
You may find [Appellant] was acting with malice if you are satisfied
beyond a reasonable doubt that they committed the robbery or
burglary, because robbery is a crime that’s inherently dangerous
to human life. As is burglary[;] there does not have to be any
additional proof of malice.
Appellant’s Brief at 29, quoting N.T., 3/12/20, at 752. We conclude no relief
is due.
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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.
[A] prosecutor’s arguments to the jury are [generally]
not a basis for the granting of a new trial unless the
unavoidable effect of such comments would be to prejudice
the jury, forming in their minds fixed bias and hostility
towards the accused which would prevent them from
properly weighing the evidence and rendering a true verdict.
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to present
[his] arguments with logical force and vigor. The prosecutor
is also permitted to respond to defense arguments. Finally,
in order to evaluate whether the comments were improper,
we do not look at the comments in a vacuum; rather we
must look at them in the context in which they were made.
Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (citations
omitted).
The Pennsylvania Supreme Court has stated:
When evaluating jury instructions, the charge must be read as a
whole to determine whether it was fair or prejudicial. The trial
court has broad discretion in phrasing its instructions, and may
choose its own wording so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration.
Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990).
Further, we must address if Appellant preserved a claim that the trial
court erroneously gave a jury instruction. Appellant must object to the
erroneous instruction after it is given and before the jury begins deliberation.
See Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.”); see Commonwealth v. Parker, 104
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A.3d 17, 29 (Pa. Super. 2014) (defendant did not preserve an erroneous jury
instruction claim for appeal when he did not object after the instruction was
given and before the jury began deliberations).
Here, after the trial court instructed the jury, it asked if any “additions
or corrections” were necessary. N.T., 3/12/20, at 760. Appellant’s trial
counsel made no such requests. After making the Commonwealth’s requested
additions, the trial court asked if counsel was “satisfied.” Id. at 763.
Appellant’s counsel replied yes. Id. Accordingly, we find the issue waived.
See Pa.R.Crim.P. 647(C); Parker, 104 A.3d at 29. Additionally, on appeal,
Appellant does not cite the place in the record where he raised a timely
objection. See Pa.R.A.P. § 2117(c) (requiring statement of case to specify
state of proceedings at which issue sought to be reviewed on appeal was
raised), 2119(e) (requiring same of argument section of appellate brief).
Moreover, even if Appellant had preserved his objection, no relief would
be due. We would conclude the jury instructions, read as a whole, were not
prejudicial and the law was adequately presented to the jury for its
consideration. See Prosdocimo, 578 A.2d at 1274. In arguing that
recovering a drug debt is an improper predicate offense for second degree
murder, Appellant conflates the “why” and the “how.” For purposes of our
sufficiency analysis, the “why” – why Appellant broke into this home and
brutalized its inhabitants – is less important than the “how” – the evidence, if
credited by the jury (which it plainly was), establishes that a) the Victim was
killed, and b) she was killed during a break-in, and the perpetrators took items
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of discernable, non-negligible value during that break-in.8 Even if the
perpetrators committed this crime for a bizarre reason not contemplated by
any criminal statute, it is the “how” that establishes the propriety of
application of the second degree murder statute.
We likewise disagree with Appellant’s contention that the trial court’s
instruction for second degree murder was “hopelessly confusing.” See
Appellant’s Brief at 29. Appellant’s challenge to the jury instruction seems to
focus on the trial court’s use of the word “they” – when the court stated that
the jury could convict Appellant of second-degree murder if the jury found
“they committed the robbery or burglary.” See Appellant’s Brief at 29
(emphasis added). Appellant asserts that “[t]his conflicts with the previous
instructions that the jury had to find that Appellant himself committed the
murder.” Id. Our review of the instruction as a whole reveals this focus as
quixotic.
Initially, we note that the word “they” functions in both the singular and
the plural, and has long done so. For example:
There’s not a man I meet but doth salute me
As if I were their well-acquainted friend
William Shakespeare, A Comedy of Errors, Act IV, Scene 3. Thus, this
supposed conflict is not created by the instruction itself, but by Appellant’s
____________________________________________
8 “Under Pennsylvania law the crime of burglary is defined as an unauthorized
entry with the intent to commit a crime after entry.” Commonwealth v.
Alston, 651 A.2d 1092, 1094 (Pa. 1994) (citations omitted); see also 18
Pa.C.S. § 3502.
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J-A16018-21
strained reading of it. This portion of the charge is faithful to the standard
charge for second degree murder, Pa. SSJI (Crim), §15.2502B. This jury
instruction, read as a whole, was not prejudicial and the law was adequately
presented to the jury for its consideration. See Prosdocimo, 578 A.2d at
1274.
Regarding the Commonwealth’s closing argument concerning motive,
we agree with the trial court that Appellant “conflates motive with the explicitly
stated elements of the crime charged.” Trial Ct. Op. at 17. Additionally, the
Commonwealth presented its argument regarding motive logically and without
creating hostility towards Appellant. Thus, this argument is meritless. See
Solomon, 25 A.3d at 383. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/19/2021
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