Com. v. McCullum, E.

J-S49033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EIANE TAHI MCCULLUM :
:
Appellant : No. 1608 MDA 2017
Appeal from the Judgment of Sentence August 4, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001078-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 27, 2018
Appellant Eiane Tahi McCullum appeals pro se from the judgment of
sentence of life imprisonment entered in the Court of Common Pleas of
Dauphin County on August 4, 2017, following his convictions of Murder of the
Second Degree1 and related offenses. Upon our review, we affirm.
A detailed recitation of the facts and procedural history herein is not
necessary for our disposition. Notwithstanding, the trial court aptly set forth
the procedural history and relevant facts underlying this appeal in its Opinion
pursuant to Pa.R.A.P.1925(a) which we incorporate herein by reference. See
Trial Court Opinion, filed 1/30/18, at 1-9.
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1 18 Pa.C.S.A. § 2502(b).
____________________________________
* Former Justice specially assigned to the Superior Court.
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The trial court denied Appellant’s post sentence motion on September
14, 2017, and Appellant filed a timely, counselled notice of appeal on October
16, 2017.2 In its Order entered on October 24, 2017, the trial court directed
Appellant to file a concise statement of the matters complained of on appeal.
On December 15, 2017, the trial court granted Appellant’s motion for
extension of time to file a 1925(b) statement and further indicated the concise
statement would be due on or before January 15, 2018. Appellant filed an
untimely, counselled concise statement on January 16, 2018,3 and the trial
court filed its Rule 1925(a) Opinion on January 30, 2018, wherein it addressed
the merits of the issues Appellant raised in his concise statement.
On February 5, 2018, Appellant submitted to the trial court his
Application for Grazier4 Hearing and Self Representation and for permission
to file a supplemental Rule 1925(b) statement of matters complained of on
appeal. The trial court forwarded Appellant’s pro se filing to trial counsel who
filed a petition for a Grazier Hearing on behalf of Appellant on February 12,
2018. On February 20, 2018, the trial court denied counsel’s petition stating
it lacked jurisdiction due to Appellant’s pending direct appeal.
On March 5, 2018, counsel filed with this Court a Petition to Stay Appeal
and Remand Matter to Trial Court for Grazier hearing. In a Per Curiam Order
____________________________________________
2 October 14, 2017, fell on a Saturday.
3 This error is not fatal to Appellant’s appeal, see infra.
4 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (requiring on-
the-record inquiry to determine whether waiver of counsel is knowing,
intelligent and voluntary).
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entered on March 13, 2018, this Court, inter alia, directed the trial court to
hold a hearing pursuant to Grazier within thirty days and to notify us, in
writing and within the thirty-day period, of all actions taken. The trial court
complied and on April 13, 2018, entered an Order in this Court permitting
Appellant to proceed pro se and granting him thirty days from the receipt of
documents from trial counsel to submit an amended concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant filed his “Supplemental and Amendment Statement of Matter
Complained of Pursuant to Rule 1925(b)” on May 31, 2018. Therein, Appellant
presented four allegations of prosecutorial misconduct during trial. On June
15, 2018, the trial court filed a Supplemental Opinion wherein it determined
Appellant had waived his various challenges to statements made by the
Prosecutor during opening statements and closing arguments regarding
Appellant’s credibility and guilt, the credibility of Commonwealth witnesses,
and co-defendant’s guilty pleas.
In his brief, Appellant sets forth the following Statement of Questions
Presented:
1. Whether the prosecutor’s remarks in summation indicated
the opinion of guilt by the prosecuting attorney.
2. Whether the prosecutorial misconduct vouching for the
credibility of the Commonwealth’s witnesses denied Appellant a
fair trial?
3. Whether the prosecutor committed prosecutorial
misconduct when the prosecutor commented codefendant’s guilty
pleas?
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4. Whether the prosecutor expressed personal opinions about
the guilt of [Appellant] and expressed personal opinion about
[Appellant’s] credibility?
Brief for Appellant at 3 (unnecessary capitalization omitted).
At the outset, we note that Appellant’s status as a pro se litigant does
not entitle him to any advantage, and a layperson choosing to represent
himself in a legal proceeding to a reasonable extent assumes the risk that his
lack of legal training will place him at a disadvantage. Thus, a pro se litigant
must comply with the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Ray, 134 A.3d 1109, 1114–15 (Pa.Super. 2016).
Although filed untimely, Appellant’s initial concise statement of matters
complained of on appeal filed on January 16, 2018, presented challenges to
the sufficiency and weight of the evidence, the admission and exclusion of
certain of evidence, the trial court’s instructions to the jury, and the trial
court’s denial of defense counsel’s request to withdraw during the course of
trial during trial. Appellant also challenged therein the trial court’s imposition
of a life sentence. Appellant did not raise any of the aforementioned claims
in his “Supplemental and Amendment” concise statement filed on May 31,
2018.
It is axiomatic that in order to preserve a claim for appellate review, an
appellant must comply whenever the trial court orders him or her to file a
Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925,
and any issues not raised in a Rule 1925(b) statement will be deemed waived.
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Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)
quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1998). As such, Appellant has waived these claims on appeal,5 and we next
consider those he presented in his supplemental concise statement and in his
appellate brief.
Each of Appellant’s challenges pertains to the prosecutor’s remarks
during opening and closing argument. However, we have reviewed the
prosecutor’s entire opening statement and closing argument and in doing so
discerned that Appellant failed to make a timely and specific objection to the
challenged statements either during or after the respective arguments. As
this Court recently reiterated:
[I]n order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error, such as an erroneous jury
instruction, will result in waiver of that issue. On appeal, the
Superior Court will not consider a claim which was not called to
the trial court's attention at a time when any error committed
could have been corrected.... By specifically objecting to any
obvious error, the trial court can quickly and easily correct the
problem and prevent the need for a new trial. Additionally, the
appellate court should not be required to waste judicial resources
correcting a problem that the trial court could have easily
corrected if it had been given the opportunity to avoid the
necessity of granting a new trial.
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5The trial court addressed these issues in its January 30, 2018, Opinion filed
pursuant to Pa.R.A.P 1925(a) and concluded they were meritless. See Trial
Court Opinion, filed 1/30/18, at 10-23. Were we to review these issues on
appeal, we would find no error.
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Fillmore v. Hill, 445 Pa.Super. 324, 665 A.2d 514, 515–16
(1995), appeal denied, 544 Pa. 609, 674 A.2d 1073 (1996)
(citations omitted); Pa.R.A.P. 302(a).
Tong-Summerford v. Abington Mem'l Hosp., 2018 WL 2947918 at *9 (Pa.
Super. filed June 13, 2018). Therefore, we agree with the trial court that the
assertions of error Appellant presents herein are waived.
Even if he had not waived these claims, these issues lack merit, for as
the trial court stated: “all of the Prosecutor’s comments were fairly within the
parameters for opening statements and closing remarks.” Supplemental
Opinion, filed 6/15/18, at 3. The challenged remarks the prosecutor made
during his opening statement pertained to anticipated testimony and merely
informed the jury from whom it would hear during trial. The excerpts of the
prosecutor’s closing argument involve his suggesting that certain testimony
and physical evidence should be credited and show Appellant’s guilt. Such
arguments are proper. See Commonwealth v. Bryant, 620 Pa. 218, 237,
67 A.3d 716, 727–28 (2013) (citations omitted)(“While it is improper for a
prosecutor to offer any personal opinion as to guilt of the defendant or
credibility of the witnesses, it is entirely proper for the prosecutor to
summarize the evidence presented, to offer reasonable deductions and
inferences from the evidence, and to argue that the evidence establishes the
defendant's guilt.”). Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2018
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