Com. v. Huff, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 HUFF :
:
Appellant : No. 3136 EDA 2019
Appeal from the Judgment of Sentence Entered October 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000615-2017
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: Filed: September 30, 2021
Appellant, Robert Huff, appeals from the judgment of sentence entered
on October 4, 2019, following his jury trial convictions for aggravated assault,
conspiracy to commit murder, and conspiracy to commit aggravated assault.1
We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On December 5, 2016, D.T.,2 a seventeen-year-old male, agreed to
sell $5,500.00 worth of crystal methamphetamine to a buyer in Morrisville,
Pennsylvania on behalf of Appellant. During the exchange, however, the
buyer absconded with the narcotics without paying for them, later claiming
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1) (aggravated assault) and 903 (conspiracy).
2 We use the minor victim’s initials to protect his identity.
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that the drugs weighed less than the previously agreed upon amount.
Thereafter, Appellant’s co-defendant shot the victim in the hip, finger, and
back of the head. The victim ultimately survived and told police what
transpired. On December 15, 2016, the Commonwealth charged Appellant
with the aforesaid crimes, as well as attempted murder and possession of an
instrument of crime (PIC).3 On April 13, 2018, a jury found Appellant not
guilty of attempted murder and PIC, but deadlocked on the remaining charges.
The trial court declared a mistrial. On April 15, 2019, the Commonwealth
retried Appellant on the aggravated assault and two conspiracy charges. On
April 22, 2019, the jury found Appellant guilty of the aforementioned offenses.
On October 4, 2019, the trial court sentenced Appellant to an aggregate term
of 15 to 30 years of imprisonment.4 This timely appeal resulted.5
____________________________________________
3 18 Pa.C.S.A. §§ 901 (criminal attempt) and 907 (PIC).
4 The trial court imposed two, consecutive terms of seven-and-one-half to 15
years of imprisonment for aggravated assault and conspiracy to commit
murder. The conspiracy to commit aggravated assault conviction merged for
sentencing purposes.
5 Appellant filed a post-sentence motion October 10, 2019, which the trial
court denied by order entered on October 25, 2019. On November 1, 2019,
Appellant filed a notice of appeal. On November 4, 2019, the trial court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on November 12,
2019. On February 12, 2020, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
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On appeal, Appellant presents a sole issue6 for our review:
I. Did the trial court abuse its discretion in denying Appellant’s
motion for a mistrial following the Commonwealth’s
prosecutorial misconduct during closing arguments?
Appellant’s Brief at 2.
Appellant claims that “[t]he trial court erred in denying Appellant’s
motion for a mistrial based on [] prosecutorial misconduct during closing
arguments where the Commonwealth thrice asked the jury to infer Appellant’s
prior bad acts.” Id. at 4 (record citations omitted). Appellant challenges the
following statements made by the Commonwealth during closing arguments:
The question is why did [the co-defendant] shoot [the victim], and
the answer to that question is because he screwed [Appellant].
[Appellant] took a loss. [There is a] theme about taking an L or
taking a loss, and it was the [Appellant’s] loss. He lost money and
he lost his reputation.[7]
* * *
So[,] in the drug game if you burn somebody, you know, you
might get killed like [the victim]. The problem with that is that's
not real life. The law says that you can't do that. So just because
[the victim] made [Appellant] take a loss, that doesn't mean that
he can order that [the victim] be shot in the back of the head.
Talk about corroboration, [the co-defendant] tried to shoot [the
victim] in the face, but [the victim] put his hand [up].[8]
____________________________________________
6 Appellant raised additional issues in his Rule 1925(b) statement, but he has
abandoned them on appeal. See Commonwealth v. Heggins, 809 A.2d
908, 912 n.1 (Pa. Super. 2002) (citation omitted) (“[A]n issue identified on
appeal but not developed in the appellant's brief is abandoned and, therefore,
waived.”).
7 N.T., 4/18/2019, at 161.
8 N.T., 4/18/2019, at 163-164.
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* * *
Not only did [Appellant] not make money, but he looked like a
loser because he took a loss. […W]hen you take a loss, you've got
to keep your dignity, just move on.[9]
* * *
[The Commonwealth is] not trying to create smoke and mirrors.
[The Commonwealth is] trying to prove the case, but use your
common sense. Don't lose sight of who is on trial and what they
are on trial for. No, [Appellant is] not on trial for being a drug
dealer or selling drugs. [The Commonwealth does not] like to
label [a person] a drug dealer. At some point in his life [Appellant]
decided to sell drugs. It's a different game, it's a different world,
and in that world when you get burned and you take a loss, you
make a decision.[10]
* * *
[The prosecutor stated that she researched the term “taking an
L”] because [she] heard it a lot on the radio and sports radio[.]
[…She explained as follows]. You go to a game and you either
win or you lose, right? You're on a soccer team. You either win
or you lose, football team or whatever. 0 to 1, 0 is the loser. In
this sense, taking the loss means you've already been burned.
You've already been licked and now it's up to you. Are you going
to take it or are you going to do something about it? […I]n this
situation [Appellant] wasn't willing to take it. [The Commonwealth
argued it did not] know how many [losses Appellant] took before
this [and did not] know if [Appellant] had had it.[11]
Appellant’s Brief at 5-6.
Appellant claims it was improper and an ethical violation, for the
Commonwealth to make references to matters which were not in evidence or
____________________________________________
9 N.T., 4/18/2019, at 171.
10 N.T., 4/18/2019, at 175.
11 N.T., 4/18/2019, at 178-179.
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supported by inferences to be drawn from the evidence. Id. at 6-7. In sum,
Appellant argues that the Commonwealth’s “comments were impermissible
references to prior bad acts by Appellant” and posits:
[The Commonwealth] told the jury that taking a loss in the drug
game could lead to getting killed, then suggested to the jury that
this was not Appellant’s first time taking a loss. This created the
inference that Appellant previously engaged in violent retaliatory
behavior for taking previous losses in the drug game, which was
not supported by the record. This inference is not a mere passing
reference to being in the drug game, but implied prior violence at
Appellant’s behest. [The Commonwealth’s] comments were in
violation of the prohibition of prior bad acts evidence [pursuant
to] Pa.R.E. 404.
There was no evidence on the record to support [the
Commonwealth’s] closing arguments regarding [“]taking an L[”]
and its implications.
Id. at 8-9 (record citations omitted). Moreover, Appellant claims that despite
his concession at trial that he was a drug dealer, “a curative instruction would
have been insufficient to cure the taint of framing Appellant as a violent drug
dealer.” Id. at 10. As such, Appellant argues that the trial court should have
declared a mistrial. Id.
This Court adheres to the following standards of review:
In criminal trials, declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene, declaration
of a mistrial serves not only the defendant's interest but,
equally important, the public's interest in fair trials designed
to end in just judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to deprive
the defendant of a fair and impartial trial. In making its
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determination, the court must discern whether misconduct
or prejudicial error actually occurred, and if so, ... assess
the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the
court abused its discretion. Judicial discretion requires
action in conformity with [the] law on facts and
circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion
if, in resolving the issue for decision, it misapplies the law
or exercises its discretion in a manner lacking reason.
Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa. Super.
2008), reversed on other grounds, 986 A.2d 114 (Pa. 2009)
(citations, quotations, and quotation marks omitted).
Moreover, with specific reference to 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, 664 A.2d 607 (Pa.
Super. 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, 721 A.2d 1049 (Pa. 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, 861 A.2d 898, 916 (Pa. 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,
595 A.2d 28 (Pa. 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 arguments supported by the evidence or use
inferences that can reasonably be derived therefrom.
Commonwealth v. Carson, 913 A.2d 220 (Pa. 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
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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, 614–615 (Pa. Super. 2016).
Here, the trial court determined that the above-mentioned closing
statements by the Commonwealth “did not constitute prosecutorial
misconduct.” Trial Court Opinion, 2/12/2020, at 16. More specifically, the
trial court concluded that “[t]he comments at issue do not specifically infer
any previous criminal conduct nor do they reference any specific acts.” Id.Furthermore, the trial court recognized that, during closing arguments,
Appellant “stipulated that [he] was a drug dealer and that the case was about
a drug deal gone wrong.” Id. Finally, the trial court noted that the jury was
issued cautionary instructions before closing arguments and, again, before
deliberations, that counsel’s arguments were not to be considered as
evidence. Id. at 15.
Upon review, we discern no abuse of discretion in ruling on Appellant’s
claim of prosecutorial misconduct and conclude the trial court did not err by
failing to grant a mistrial. Initially, we note and as the trial court
acknowledged, Appellant conceded that he was a drug dealer during his
closing argument:
I submit to you the only thing the Commonwealth has proven with
all of this testimony is that my client was a drug dealer. I will
stipulate to that the way I'm stipulating to the evidence that was
recovered yesterday as much as we can to try to get through this.
That's not at issue here. No one is contending that this was not a
drug deal that somehow went bad.
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N.T., 4/18/2019, at 150; see also N.T., 4/18/2019, at 156 (“Yeah, they were
involved in drug dealing. That’s not the question here.”); see also Appellant’s
Brief at 10 (“[t]he defense conceded Appellant was a drug dealer”).
Accordingly, the Commonwealth’s closing argument was a fair response to or
reasonable inference drawn from Appellant’s closing remark, did not reference
any specific prior bad acts by Appellant, and merely postulated a plausible
motive for the crimes at issue.12
Moreover, the trial court issued the following instruction to the jury prior
to closing arguments:
Ladies and gentlemen of the jury, you have now heard all the
evidence that is to be presented in this case. The next step is for
counsel to give you their closing arguments. Even though these
arguments do not constitute evidence, you should consider them
very carefully. In their arguments counsel will call your attention
to evidence that they consider important and ask you to draw
certain inferences from that evidence. Please keep in mind,
however, that you are not bound by their recollections of the
evidence. It is your recollection of the evidence and yours alone
that must guide your deliberations. If there is a discrepancy
between counsel's recollection and your recollection, you are
bound by your own recollection, nor are you limited in your
consideration of the evidence to that which is mentioned by
counsel. You must consider all the evidence that you consider
important to the issues involved.
N.T., 4/18/2019, at 148-149.
Subsequently, after closing arguments and before jury deliberation, the
trial court issued the following jury instruction:
____________________________________________
12 We also conclude that the prosecutor’s references to “taking an L” and
related comments constituted permissible oratorical flair in presenting the
Commonwealth’s closing arguments to the jury.
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It is my responsibility to decide all questions of law. You must
accept and follow my rulings on matters of law. I am not,
however, the judge of the facts. It is not for me to decide what
are the true facts concerning the charges against the defendant.
You, the jury, are the sole and only judges of the facts. It is your
responsibility to weigh the evidence and based on that evidence
and the logical inferences that flow from that evidence to find the
facts, to apply the rules of law that I give you to the facts as you
find them, and then decide whether the defendant has been
proven guilty of any of the charges.
In determining the facts you may only consider the evidence that
has been presented in court and the logical inferences that are
derived from that evidence. You are not to rely upon supposition
or guess on any matters that are not in evidence. You should not
regard as true any evidence that you find to be incredible, that is
unbelievable, even if it is uncontradicted.
Your determination of the facts should not be based on empathy
or prejudice against the defendant for the crime, nor on which
attorney made a better speech, nor on which attorney you like
better.
In my instructions, I might refer to some particular evidence, but
if I do so it would only be to a very limited extent. You are not to
conclude that any evidence that I do call your attention to or which
counsel called your attention to is the only evidence that you
should consider. Rather, it is your responsibility to consider all
the evidence that you believe important in deliberating upon your
verdict.
Moreover, it is your recollection of the evidence and yours alone
that governs your deliberations. You are not bound by my
recollections, nor by the recollections of counsel in their
arguments to you.
Id. at 181-182. We presume the jury followed the trial court’s instructions.
See Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016).
Additionally, Appellant does not argue or proffer evidence that the jury
somehow failed to follow the trial court’s instructions.
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Hence, based upon all of the foregoing, we conclude that the
aforementioned closing comments by the Commonwealth did not have the
unavoidable effect of prejudicing the jury, so they could not weigh the
evidence objectively and render a true verdict. As such, Appellant is not
entitled to relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/21
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