Com. v. Medlen, T.

J-A35006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACY MEDLEN,
Appellant No. 344 WDA 2014
Appeal from the Judgment of Sentence Entered January 27, 2014
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000328-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 05, 2016
Appellant, Tracy Medlen, appeals from the judgment of sentence of
20-40 years’ incarceration, following his conviction for attempted murder
and related offenses. Herein, Appellant presents multiple challenges to the
trial court’s evidentiary rulings and jury instructions. He also asserts that
the prosecutor engaged in prosecutorial misconduct while cross-examining
him, and during the Commonwealth’s closing arguments. After careful
review, we affirm.
The trial court summarized the facts adduced at trial as follows:
On or about January 17, 2013, [Appellant] was arrested
and charged with various offenses stemming from conduct that
occurred on December 29, 2012.
During the trial, the jury heard evidence that the police
were called in response to a 911 call that a man, Brandon
Sarasnick, (hereinafter referred to as "Victim") had been stabbed
at the Lincoln Terrace apartments. By [Appellant]'s own
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admission, he testified he deliberately stabbed the Victim and
thereafter formulated a false alibi defense. Accordingly, the
principal question for the jury was whether [Appellant] had the
specific intent required to convict him of Attempted Homicide.
Ms. Tori[] Thomas testified that she was introduced to
[Appellant] a few weeks prior to the incident as the boyfriend of
her cousin, Shelissa Chandler, a co-defendant in the instant
matter. Ms. Thomas testified that when she met the Defendant
she noticed that he had a tattoo spelling "CUT" across his neck.
Testimony demonstrated that on the morning of December
29, 2013, Ms. Chandler was staying at Ms. Thomas' apartment
when she received a phone call from [Appellant]. [Appellant]
informed Ms. Chandler that his mother had passed away that
morning and asked Ms. Chandler for a ride. Ms. Chandler
refused to provide him with a ride and they began to argue.
Later that day, Ms. Thomas arrived at Pickles Bar where
she saw [Appellant]. Ms. Chandler subsequently arrived at
Pickles Bar and communicated to Ms. Thomas that she was going
to instigate an argument with [Appellant].
The [V]ictim … testified that on December 29, 2012, he
went to Pickles Bar alone. At the bar, he joined two males and a
female shooting pool. While he was shooting pool, Ms. Chandler
approached the Victim and exchanged pleasantries.
Thereafter, the Victim rode to the Cozy Corner Bar with the
group of people with whom he had been shooting pool. While at
the Cozy Corner, Ms. Chandler re-approached the Victim and
engaged in conversation with him before offering to ride him
home. The Victim agreed and Ms. Chandler drove the Victim,
Ms. Thomas and Ms. Thomas' sister home from the bar. While
en route, Ms. Chandler told the Victim that she wanted to make
a stop to smoke marijuana at Ms. Thomas' apartment. The
Victim stated that he just wanted to go home and that he does
not smoke marijuana. Ms. Chandler ignored Victim's request and
drove to the Lincoln Terrace apartments where Ms. Thomas
resided.
While the Victim and others were talking in Ms. Thomas'
kitchen, [Appellant] walked in and sat down. Testimony
demonstrated that [Appellant] was eating cereal at the kitchen
table when he began yelling and shouting profanities directed
toward Ms. Thomas and Ms. Chandler. The Victim left the kitchen
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and went into the living room by himself. [Appellant]'s yelling
persisted and Ms. Thomas directed everyone to leave her
apartment, as her children were asleep upstairs. At this
juncture, the Victim proceeded to walk back through the kitchen
to exit through the rear kitchen door. Suddenly, [Appellant] got
up and grabbed a steak knife. He approached the Victim and
put one arm around Victim and held the steak knife in the other
hand. The Victim then removed [Appellant]'s hand from his
shoulder and exited the apartment through the rear door of the
kitchen. Ms. Chandler followed the Victim, exiting the apartment.
Ms. Thomas testified that [Appellant] was instigating the event
and that the Victim did not try to engage in a fight or argument
with [Appellant].
After the Victim exited Ms. Thomas' apartment, he walked
toward Ms. Chandler's car. Ms. Thomas testified that at this
point [Appellant] pursued the Victim with the knife in hand.
Testimony demonstrated that Ms. Thomas began screaming
"He's coming. He has that knife. He is coming." The Victim was
standing near the rear of the passenger side of Ms. Chandler's
car when he heard Ms. Thomas screaming. The Victim turned
around and witnessed [Appellant] walking aggressively toward
him. The Victim then put his hands up in front of his face in
order to defend himself. Testimony demonstrated that
[Appellant] lunged at Victim with the knife and stabbed him in
the chest. The Victim fell onto the trunk of the car and began
screaming that he could not breathe. [Appellant] walked away
and knocked on Ms. Bre Ann Watts' door. The Victim then began
banging on the passenger side of Ms. Chandler's car and asked
her to ride him to the hospital. However, Ms. Chandler would
not unlock the door. [Appellant] then reapproached the Victim
and flinched at him before entering Ms. Chandler's now unlocked
passenger door. [Appellant] entered the car and he and Ms.
Chandler drove away from the scene.
The Victim then began walking around and looking for aid.
Ms. Thomas testified that she went outside to assist the Victim.
She began throwing snow on the wound to help stop the
bleeding and then ran to various neighbors' homes to find help.
Ms. Rashea Watts and Bre Ann Watts came to their door. After
being alerted by Ms. Thomas that the Victim had been stabbed,
they came outside and called the police. Ms. Watts, concerned
that the Victim could not wait for an ambulance because he was
pale, bleeding profusely and going in and out of consciousness,
drove the Victim to Washington Hospital in her car.
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Officer Jonathon Steiner testified that he received a call at
approximately 2:30 a.m. on December 29, 2012, that a male
had been stabbed at Lincoln Terrace apartments. When Officer
Steiner arrived at the scene, he observed Ms. Thomas visibly
shaken. She initially informed Officer Steiner that the Victim
was stabbed outside, but that she did not know what happened,
failing to disclose any further information for her own safety.
Later, however, Ms. Thomas disclosed that she witnessed the
totality of the event including identifying [Appellant] as a tall
white male with the tattoo "CUT" across his neck.
The Victim was taken to Washington Hospital and then was
immediately Lifeflighted to [U.P.M.C.] Presbyterian Hospital [in]
Pittsburgh[,] where he underwent surgery. He had suffered a
collapsed lung and was treated for a week and a half before
being discharged. The Victim later returned to Presbyterian
Hospital for a second surgery.
Trial Court Opinion (TCO), 12/3/14, at 4-8 (footnotes omitted).
On September 19, 2013, following a jury trial, Appellant was convicted
of attempted murder,1 aggravated assault (AA),2 and recklessly endangering
another person (REAP).3 On January 27, 2014, the trial court sentenced
Appellant to 20-40 years’ incarceration for attempted murder, and to no
further penalty for AA and REAP. Appellant filed a timely notice of appeal on
February 26, 2014, and a timely, court-ordered Pa.R.A.P. 1925(b) statement
on August 14, 2014. The trial court issued its Rule 1925(a) opinion on
December 3, 2014.
Appellant now presents the following questions for our review:
____________________________________________
1
18 Pa.C.S. §§ 901, 2502.
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 2705.
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1. Whether the [trial c]ourt made reversible error by allowing
the admission of several tape recordings of jail phone calls,
specifically #664393, 664517, 671415, 672680[?]
2. Whether the [trial c]ourt made reversible error by allowing
Detective Rush to interpret the significance of each jail phone
call, which resulted in prejudice to [Appellant?]
3. Whether the [trial c]ourt made reversible error by allowing
Deputy Warden Strawn to testify that the phone call recordings
were compiled after previous Defense Counsel filed an alibi
defense and subpoenaed the recordings[?]
4. Whether, during the cross examination of [Appellant], the
[trial c]ourt made reversible error by overruling Defense
Counsel’s objections to the harassing, confrontational nature of
the [prosecutor]’s questioning[?]
5. Whether the [trial c]ourt made reversible error in failing to
give a corrective instruction when, in his closing statement, the
[prosecutor] stated, incorrectly, that both Tori Thomas and
Brandon Sarasnick testified that [Appellant] did not knock on
any doors after the stabbing[?]
6. Whether the [trial c]ourt made re[v]ersible error in failing to
give a corrective instruction when, in his closing statement, the
[prosecutor] incorrectly stated the Defense had presented the
position that [Appellant] would be innocent of homicide if the
victim had died[?]
7. Whether the [trial c]ourt made reversible error in giving the
jury the instruction that there was no question that they could
apply the inference of specific intent, with regard to attempted
homicide, because a deadly weapon had been used on a vital
part of the victim’s body[?]
8. Whether the [trial c]ourt made reversible error at the time of
sentencing, by allowing the prosecution to play a video recording
of an altercation at the jail, which involved [Appellant] and
occurred after the guilty verdict in this matter[?]
Appellant’s Brief, at 7 (citations to the record omitted).
Appellant’s jail phone calls
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Appellant’s first claim concerns the admission of recordings of his
phone calls from jail.
“Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion.” Commonwealth v.
Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002), cert.
denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003)
(quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781
A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d
1245, 1251 (Pa. Super. 2013). “An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super.
2005), appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007).
Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en
banc).
Appellant presents specific arguments with respect to each of four
recordings played before the jury. However, his arguments generally
challenge the relevance of the admitted jail phone call recordings, as well as
their potential for undue prejudice. In this regard, the following standards
apply: “All relevant evidence is admissible, except as otherwise provided by
law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. Evidence
is relevant if “(a) it has any tendency to make a fact more or less probable
than it would be without the evidence;” and “(b) the fact is of consequence
in determining the action.” Pa.R.E. 401. The comment to Rule 401 also
directs that: “Whether evidence has a tendency to make a given fact more
or less probable is to be determined by the court in the light of reason,
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experience, scientific principles and the other testimony offered in the case.”
Id. (comment). “The court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
The trial court states that, in general, the recordings were admitted to
establish that Appellant “was making false statements” and “fabricating a
defense.” TCO, at 9. Thus, the court admitted this evidence as
demonstrative of Appellant’s consciousness of guilt. Additionally, the court
indicates that the recordings “confirmed that [Appellant] was an actor at the
scene of the crime[,]” which was “of vital importance as [Appellant] initially
intended to present an alibi defense.” Id.The first recording at issue was designated as #664393. Appellant’s
argument with regard to this recording is, in its entirety, as follows:
Recording #664393 is a phone conversation from January 29,
2013 in which a person purported as being [Appellant] stated
that he thought everything was "taken care of," and Tori Thomas
wasn't going to show up at his hearing. He stated that "dude"
isn't a problem, but Tori is. Since Ms. Thomas did testify, there
is no reason for the prosecution to explain her absence.
Similarly, [the Victim] identified [Appellant] in his testimony
before this tape was played. The evidence was not offered to
rebut any previous testimony and it contained no evidence that
had a tendency to make a consequential fact more or less
probable. The prejudicial effect of this hearsay evidence
outweighed its relevance and it should have been excluded.
Appellant’s Brief, at 13.
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Appellant’s single paragraph argument regarding recording #664393
raises three distinct claims. First, that the recording was not relevant
evidence; second, that the recording was more prejudicial than probative;
and third, that the recording was hearsay.
As to relevance, we agree with the Commonwealth that this evidence
was relevant to demonstrate Appellant’s consciousness of guilt. Recording
#664393 suggests that Appellant was engaged in some effort to prevent or
discourage Tori Thomas from testifying against him. See Commonwealth
v. Petro, 176 A. 46, 48 (Pa. Super. 1934) (“[T]he [C]ommonwealth may
show an attempt by the defendant to intimidate its witnesses.”). The fact
that Ms. Thomas ultimately did testify speaks only to Appellant’s lack of
success in that endeavor, not to his consciousness of guilt. See Cover v.
Commonwealth, 8 A. 196, 198 (Pa. 1887) (“It is always admissible to show
that the defendant has attempted to destroy testimony tending to prove his
own guilt.”) (emphasis added). Appellant cites no case law suggesting that
consciousness-of-guilt evidence is only relevant for rebuttal purposes. Thus,
Appellant’s claim that recording #664393 was not relevant evidence lacks
merit.
Appellant also complains that recording #664393 was prejudicial, but
fails to explain why. Elsewhere, Appellant does argue that all of the
recordings were prejudicial because of foul language. However, Appellant
does not specifically argue that recording #664393 contained such language.
In any event, Appellant fails to cite to any case law suggesting that the
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presence of foul language is grounds for excluding evidence as unduly
prejudicial. Accordingly, this aspect of Appellant’s claim is also without
merit.
Finally, Appellant’s suggestion that recording #664393 was excludable
hearsay evidence was not raised before the trial court. N.T., 9/16/13-
9/19/13, at 167-168. Accordingly, it is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). In any event, even if Appellant preserved such a
claim, it clearly would lack merit. Appellant’s out-of-court statements are
not barred as inadmissible hearsay because they fall within the opposing
party’s statement exception to the hearsay rule. See Pa.R.E. 803(25).
Accordingly, we ascertain no abuse of discretion in the trial court’s admitting
recording #664393.
The second recording at issue was designated as #664517.
Appellant’s argument with regard to this recording is, in its entirety, as
follows:
Recording #664517 is a phone conversation from January 30,
2013 about what [Appellant]'s defense should be. An
unidentified man instructs [Appellant] to find loop holes, like
self-defense or crime-of-passion. They speculate about whether
the death of [Appellant]'s mother could be used as a mitigating
circumstance. The recording does not contain admissions of
guilt. The recording was played prior to [Appellant]'s testimony.
The defense did not present an alibi defense at trial. The
Commonwealth cannot, therefore, argue that the recording was
any sort of rebuttal. The prejudicial effect of this hearsay
evidence outweighed its relevance and it should have been
excluded.
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Appellant’s Brief, at 13.
The essence of Appellant’s argument appears to be that his
consideration of numerous, potentially incompatible defenses was only
relevant if raised to rebut an alibi defense at trial.4 We find Appellant’s
contention unconvincing. Appellant does not develop any argument, or
present any case law, suggesting that his consideration of multiple and
arguably incompatible defenses was not properly considered admissible as
consciousness-of-guilt evidence in the Commonwealth’s case-in-chief. Nor
does he develop any argument, or cite to any case law, suggesting that
consideration of numerous conflicting defense strategies was only admissible
as evidence of consciousness of guilt if that evidence was offered in rebuttal
to an alibi defense actually presented at trial. Indeed, our own review of
relevant case law fails to uncover any such proscriptions. Certainly,
evidence of a defendant’s consideration of incompatible defenses will often
be inadmissible when protected by attorney-client privilege; but no such
privilege-based bar to otherwise relevant evidence is at issue here. Given
Appellant’s failure to articulate, with supporting authority, the reason why
this evidence was irrelevant, this aspect of his claim regarding recording
#664517 lacks merit.
____________________________________________
4
It is true that Appellant did not ultimately present an alibi defense at trial;
however, he did issue notice of an alibi defense prior to trial. Subsequently,
following a change of counsel, Appellant’s alibi defense was abandoned.
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As to whether recording #664517 was hearsay, this argument is
wholly undeveloped and, in any event, it has been waived. Pa.R.A.P.
302(a). Appellant did not object to recording #664517 on hearsay grounds
at trial. Additionally, as noted above, if such a claim had been preserved, it
would be meritless because Appellant’s own statements are generally not
barred by the hearsay rule. Moreover, Appellant’s only objection at trial
regarding the prejudicial nature of recording #664517 was with regard to
discussions contained therein pertaining to his consideration of entering a
guilty plea. See N.T., 9/16/13-9/19/13, at 170. The trial court agreed to
redact any plea-related discussions. Id. Thus, we ascertain no abuse of
discretion in the trial court’s admitting recording #664517.
The third recording at issue was designated as #671415. Appellant’s
argument with regard to this recording is, in its entirety, as follows:
Recording #671415 is a phone conversation from March 5, 2013
in which a person identified by the prosecution as [Appellant]
instructs a person purported as being Ms. Chandler to have a
friend write a letter to him apologizing and affirming that her
testimony is coerced by police threats. Ms. Chandler was never
called to testify. Aside from the obvious effect of crude
language, this evidence prejudices the jury against [Appellant]
by painting him as a conniving, desperate man. It does not,
however, tend to prove any fact in question. The prejudicial
effect of this hearsay evidence outweighed its relevance and it
should have been excluded.
Appellant’s Brief, at 13.
Our review of the record indicates that Appellant did not specifically
object to the admission of recording #671415 on any grounds. See N.T.,
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9/16/13-9/19/13, at 172-74. Accordingly, this matter has been waived.
Pa.R.A.P. 302(a).
The final recording at issue was designated as #672680. Appellant’s
argument with regard to this recording is, in its entirety, as follows:
Recording #672680 is a phone conversation from March 11,
2013 in which a person purported as being [Appellant] claims to
not having been involved in the assault and that there is a
mistake in identification. He states that it only matters what
"they" can prove and that "shorty" needs to say it wasn't him.
This, again, may have been proper only as rebuttal evidence.
Since it was not used as such, it was inadmissible. The
prejudicial effect of this hearsay evidence outweighed its
relevance and it should have been excluded.
Appellant’s Brief, at 13.
For the same reasons discussed above with respect to recordings
#664393 and #664517, we ascertain no abuse of discretion in the trial
court’s admission of recording #672680.
Detective Rush’s interpretations of Appellant’s jail phone calls
In his second claim of error, Appellant contends that the trial court
erred by allowing a police officer to “interpret” the aforementioned
recordings of Appellant’s jail phone calls. Detective Daniel Rush of the City
of Washington Police Department was the lead investigator in the instant
case. As part of discovery, the defense requested any jail phone call
recordings made by Appellant. Detective Rush, in conjunction with Deputy
Warden Strawn of the Washington County Jail, compiled and reviewed those
recordings. N.T., 9/16/13-9/19/13, at 157. The recordings were admitted
during the course of Detective Rush’s testimony. When Detective Rush was
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asked by the prosecutor about the significance of a particular recording,
Appellant objected as follows:
Objection, your honor. I think, again, it's improper for the police
officer to interpret to the jury what they just heard. If they're
concerned about the jury not being able to understand or hear,
transcripts could be produced of the call. It's improper for an
interpretation from the detective as to what the jury just heard.
Id. at 197.
In response, the prosecutor argued that the jury was free to accept or
reject Detective Rush’s interpretation of the recordings. Id. at 197-198.
The trial court disagreed, and instructed the prosecutor, “You can ask did
something draw your attention or what significance it is in your
investigation, but to have him interpret that, that's the jury's function.” Id.
at 198. The prosecutor then asked Detective Rush, “What significance is
that to your investigation?” Id. No further objections were lodged by
Appellant.
Appellant contends Detective Rush’s “interpretations” prejudiced him.
However, it is clear that following Appellant’s objection, the trial court
directed the prosecutor to reframe his questioning in line with Appellant’s
objection. When the prosecutor did so, Appellant issued no further
objections. Thus, the trial court effectively sustained Appellant’s objection,
and Appellant did not subsequently complain that the court’s instructions
were insufficient to remedy his concern, nor did he request a mistrial when
Detective Rush answered the reframed question. Accordingly, we ascertain
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no abuse of discretion in the trial court’s treatment of Appellant’s objection,
and conclude, therefore, that Appellant’s second claim lacks merit.
References to Appellant’s pre-trial alibi notice
Appellant’s third claim concerns the testimony of Deputy Warden
Strawn, who testified that the aforementioned recordings had been compiled
in response to Appellant’s pre-trial alibi notice. Appellant objected that the
reference to the alibi motion was irrelevant and prejudicial because he had
stipulated to the authenticity of the recordings. The trial court overruled the
objection. N.T., 9/16/13-9/19/13, at 188-89. In its opinion, the trial court
states:
Deputy Warden Strawn testified that he oversees that daily
operation of the Washington County Correctional Facility
including the monitoring and recording of all inmate telephone
calls. The Deputy Warden's testimony was relevant as it showed
when the calls were received by [Appellant], and by whom the
calls were made. The testimony simply demonstrated the
chronology and development of the foundation for the
introduction of [Appellant]'s statements made during the
recorded calls.
TCO, at 14.
In addition, as discussed above, evidence of Appellant’s giving an alibi
notice was also relevant to his consciousness of guilt. Thus, Appellant’s
claim that Deputy Warden Strawn’s reference to the same was irrelevant is
meritless. As to the prejudicial nature of that evidence, we note that the
record demonstrates that the mentioning of Appellant’s alibi notice by
Deputy Warden Strawn was, as the trial court indicates, only made for the
purpose of establishing the chronology of the conversations heard on the
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recordings. Deputy Warden Strawn did not in any way opine at length
regarding the nature or merits of Appellant’s alibi notice.
Moreover, Appellant fails to offer any supporting case law for his
argument that such evidence is unduly prejudicial. Appellant references
Pa.R.Crim.P. 567(F) to support his claim, but that Rule is, at best, not
germane to his argument and, at worst, may actually serve to undermine his
claim.
Rule 567 sets forth the rules governing alibi defense notices.
Subsection F dictates:
(F) Failure to Call Witnesses. No adverse inference may be
drawn against the defendant, nor may any comment be made
concerning the defendant's failure to call available alibi
witnesses, when such witnesses have been prevented from
testifying by reason of this rule, unless the defendant or the
defendant's attorney shall attempt to explain such failure to the
jury.
Pa.R.Crim.P. 567(F) (emphasis added).
Thus, while Rule 567(F) does proscribe references to a defendant’s
failure to call “available” alibi witnesses, it only does so when such witnesses
fail to testify “by reason of” Rule 567. For instance, Rule 567(B) states:
(B) Failure to File Notice.
(1) If the defendant fails to file and serve the notice of alibi as
required by this rule, the court may exclude entirely any
evidence offered by the defendant for the purpose of proving the
defense, except testimony by the defendant, may grant a
continuance to enable the Commonwealth to investigate such
evidence, or may make such other order as the interests of
justice require.
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(2) If the defendant omits any witness from the notice of alibi,
the court at trial may exclude the testimony of the omitted
witness, may grant a continuance to enable the Commonwealth
to investigate the witness, or may make such other order as the
interests of justice require.
Pa.R.Crim.P. 567(B).
Thus, Rule 567(F) implicitly suggests that references to a defendant’s
failure to call an alibi witnesses may be made by the prosecution when that
witness’ testimony was not presented at trial for reasons other than
Appellant’s failure to comply with the notice requirements of Rule 567.
Appellant concedes that he was not prevented from calling an alibi witness
by operation of Rule 567. Appellant’s Brief, at 16. Nevertheless, Appellant
believes the “spirit of this rule still applies.” Id. Appellant simply
misunderstands the nature and purpose of this rule. Rule 567(F) does not
set forth a general policy disfavoring references to abandoned alibi defenses.
Instead, it serves to correct potential, unfair prejudice, which might arise
when a defendant has been prevented from offering an alibi witness at trial
due to that defendant’s failure to properly comply with the notice
requirements set forth in Rule 567. Thus, Rule 567(F) operates to protect a
defendant who wishes to offer an alibi witness, but cannot do so due to a
procedural bar. It would be extremely unfair for a prosecutor to comment
adversely on a defendant’s failure to call an alibi witness when the alibi
witness is both available and willing to testify but procedurally barred from
doing so. Rule 567 does not serve to protect a defendant from any mention
of an abandoned alibi defense when that defendant has abandoned that
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defense altogether for strategic or substantive reasons. Thus, we ascertain
no prejudice in the mentioning of Appellant’s alibi notice based on the
“spirit” of Rule 567(F). Accordingly, we conclude that the trial court did not
abuse its discretion when it permitted Deputy Warden Strawn to briefly
reference Appellant’s pre-trial alibi notice.
Prosecutorial misconduct during cross-examination
Next, Appellant contends the prosecutor engaged in a course of
prosecutorial misconduct while cross-examining him. Appellant complains
that the prosecutor’s questions were “harassing” and “confrontational [in]
nature[.]” Appellant’s Brief, at 17.
Appellant does not cite to any specific objection he made, or specific
conduct by the prosecutor which he finds particularly egregious. Instead,
Appellant directs our attention to a span of more than 30 pages in the trial
transcript. Appellant’s Brief, at 17 (citing N.T., 9/16/13-9/19/13, at 239-
73). Our review of that portion of the record does indicate that the cross-
examination of Appellant was contentious. Numerous objections were
lodged by defense counsel for a variety of reasons. Some of these
objections were overruled, and some were sustained. Often, the trial court
effectively sustained Appellant’s objections by directing the prosecutor to
rephrase his questions in order to comport with defense counsel’s objection.
As to any specific objection, such matters are waived, as Appellant did not
properly preserve any particular objection in his Pa.R.A.P. 1925(b)
statement. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any
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issues not raised in a 1925(b) statement will be deemed waived.”). In any
event, we deem any claim based on a particular objection as meritless
because Appellant has failed to meaningfully develop such a claim for our
review. “[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).
Appellant does appear to be arguing that the prosecutor engaged in
pattern of behavior that constituted prosecutorial misconduct, regardless of
the resolution of any complaint about a particular comment or question
made during the cross-examination of Appellant. See Appellant’s Brief, at
17 (“There was a total disregard for the solemnity of the court and an
anything-goes attitude with regard to cross-examination.”). However, it is
well-settled that no number of failed individual prosecutorial misconduct
claims can attain merit collectively. See Commonwealth v. Culver, 51
A.3d 866, 882 (Pa. Super. 2012). Accordingly, we conclude that Appellant’s
fourth claim of error is waived and/or meritless.
Prosecutorial misconduct during closing argument –
mischaracterization of testimony
Next, Appellant claims that the trial court erred when it failed to issue
a specific corrective instruction to the jury after the prosecutor ostensibly
misconstrued the nature of the testimony of the Victim and Tori Thomas.
Appellant contends that, during closing remarks, the prosecutor incorrectly
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stated that the Victim and Thomas testified that Appellant did not knock on
any doors after the stabbing. He argues that “the [prosecutor]’s
mischaracterization of this testimony caused prejudice to [Appellant] and the
[c]ourt erred in declining to give a detailed curative instruction to the jury.”
Appellant’s Brief, at 18.
Appellant testified that he knocked on several doors following the
stabbing in an attempt to obtain help for the Victim. N.T., 9/16/13-9/19/13,
at 231. Appellant believes his testimony demonstrated that he lacked the
specific intent to kill the Victim, the core theory of his defense to the charge
of attempted murder. Appellant believes the prosecutor misconstrued the
testimony of Ms. Thomas and the Victim because: “Ms. Thomas testified that
[Appellant] knocked on at least one door. [The Victim] testified that he did
not see where [Appellant] went.” Appellant’s Brief, at 19.
Appellant’s claim arises out of the following remarks by the prosecutor,
which he believes are not consistent with Ms. Thomas’ and the Victim’s
actual testimony:
[The Victim] and [Ms. Thomas] both said that after he got
stabbed, [the Victim] said he walked away, he wasn’t knocking
on no doors. He walked away, he returned, he looked like he
was going to hit me again, knocked me out of the way and
[said]: let’s get the fuck out of here.
[Appellant] says he was knocking on doors asking for help.
There’s a line from Macbeth, Macbeth was asked like: why did
you act in a certain way that you did – this is from Macbeth –
the guy answered: “Who can be wise, amazed, temperate and
furious, [l]oyal and neutral in the moment?” No man. You can’t
have conflicted emotions like that. You can’t tell me you’re
stabbing a guy with a knife and a second later you’re
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(demonstrating knocking) – let’s get help for this guy. That’s
BS. Nobody does that. What he did was walk around – [the
Victim] said: I thought he was trying to ditch the knife
someplace. He came back, walked around, comes back, maybe
he didn’t want to be seen over there where the body was going
to be, comes back and he flees the scene. That’s evidence of
guilt.
N.T. (closing arguments), 9/17/13, at 31.
It is well established that a prosecutor is free to argue that the
evidence leads to guilt and is permitted to suggest all favorable
and reasonable inferences that arise from the evidence. A
prosecutor also may argue his case with logical force and vigor.
Additionally, a trial court's decision not to grant a new trial based
on prosecutorial misconduct will not be reversed on appeal
absent an abuse of discretion.
Commonwealth v. Rios, 684 A.2d 1025, 1032-33 (Pa. 1996) (internal
citations omitted).
The trial court indicates that it did not find the prosecutor’s closing
remarks as having mischaracterized the testimony of the Victim or Ms.
Thomas. The court states:
As the record demonstrates, there was no mischaracterization of
the evidence. Ms. Thomas testified that [Appellant] knocked on
Breann Watts' door before leaving the scene with Ms. Chandler.
However, there was no testimony by Ms. Thomas demonstrating
that [Appellant] knocked on her neighbor's door in order to get
help for the Victim. In fact, Ms. Thomas testified, "they just
stabbed him and left him to bleed to death on my stoop."
Nevertheless, the [t]rial [c]ourt asserts that any
mischaracterization of the testimony was an inadvertent
misstatement of fact. The effect of the prosecutor's argument
was to respond to the [d]efense's closing argument. Since the
defense had vigorously attempted to show [Appellant]'s lack of
intent to kill, the prosecutor's argument was appropriate and by
no means was calculated to inflame the jury or to deny
[Appellant] his right to a fair trial. Moreover, the [t]rial [c]ourt
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instructed the jury that counsel's recollection of the facts is not
binding on the jury.
TCO, at 18-19.
We agree with the trial court’s analysis. Furthermore, the prosecutor’s
remarks did not, as Appellant claims, affirmatively assert that the Victim or
Ms. Thomas had specifically testified that Appellant did not knock on any
doors. With regard to Ms. Thomas, it seems as if the prosecutor began by
speaking about the testimony of the Victim and Ms. Thomas, but then
quickly constrained his comment to focus exclusively on the Victim’s
testimony. Thus, it does not appear that the prosecutor made any specific
assertion about Ms. Thomas’ testimony at all in the passage cited by
Appellant. And, while the Victim did not specifically or literally testify that
Appellant did not knock on any doors, his testimony can be fairly interpreted
as supporting that factual conclusion by omission. The Victim testified that
he observed Appellant’s actions after the stabbing, and he did not mention
Appellant’s knocking on any doors before he eventually fled the scene.
Thus, the factual premise of Appellant’s fifth claim lacks a foundation in the
record. For this reason, and the reasons set forth by the trial court,
Appellant’s fifth claim is meritless.
Prosecutorial misconduct during closing argument –
mischaracterization of defense arguments
Next, Appellant asserts that prosecutorial misconduct occurred when
the prosecutor ostensibly mischaracterized the defense’s closing argument
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as having stated that Appellant would be innocent of homicide if the victim
had died. Appellant argues:
In his closing argument, the prosecutor stated[,] "Suppose
somebody didn't answer and he died there. If you're following
[defense counsel’s] logic then, he didn't commit homicide,
because I didn't mean to do it. That's silly." This statement
mischaracterized [d]efense [c]ounsel's argument and misstates
the law. If [Appellant] had killed [the Victim] without the
specific intent to kill, then he would be innocent of first degree
murder. He would not necessarily be innocent of homicide and
[d]efense [c]ounsel never posited that he would.
After this incorrect description of the law, the jury would be
reasonable in believing that [d]efense [c]ounsel's argument was
ludicrous. If the jury believed that a specific intent to kill had
not been proven, they should have found [Appellant] not guilty
of attempted homicide. By confusing the jury about the
elements of the offense, the prosecutor usurped the criminal
process and may have fooled the jury into following his fictional
characterization of the law. A specific corrective instruction was
necessary to fix this error, but was not given. This error
prejudiced [Appellant] and warrants a reversal.
Appellant’s Brief, at 20.
The trial court’s opinion may be read to suggest that it found the
prosecutor’s remarks to be a fair response to defense counsel’s assertions
during Appellant’s closing argument. See Commonwealth v. Trivigno,
750 A.2d 243, 249 (Pa. 2000) (plurality opinion) (“A remark by a
prosecutor, otherwise improper, may be appropriate if it is in fair response
to the argument and comment of defense counsel.”) (citing United States
v. Robinson, 485 U.S. 25, 31 (1988)); Commonwealth v. Marrero, 687
A.2d 1102, 1109 (Pa. 1996). In any event, the trial court found that remark
did not “interfere[] with the jury’s fair and impartial assessment of the
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evidence” and “did not affect the jury’s ability to render a true verdict.”
TCO, at 19. We agree that there is no merit to Appellant’s claim.
We do not ascertain anything improper regarding the prosecutor’s
statements that would even require invocation of the “fair response”
doctrine. It is not at all obvious from the record that the prosecutor was
attempting to describe the law; instead, it appears as if the prosecutor was
commenting on the credibility of the defense’s position that Appellant lacked
the specific intent to kill when Appellant, unprovoked, had used a knife to
stab the victim in the chest, and then subsequently failed to render any aid.
Appellant’s argument is a red herring, suggesting that the prosecutor’s
remark was making a statement about the law rather than an interpretation
of the facts. To the contrary, the prosecutor’s remark does not appear to
describe the legal theory of the defense as “silly” at all. 5 Rather, the
prosecutor’s remark appears to have labeled “silly” the defense’s
interpretation of the facts as supporting that legal defense. The prosecutor’s
remark was made immediately after a summary of several facts that
supported the conclusion that Appellant had failed to render aid to the Victim
whom Appellant had just stabbed, N.T. (closing arguments), 9/17/13, at 25-
____________________________________________
5
The defense’s legal theory being that lack of specific intent to kill precludes
a conviction for attempted murder. It is not disputed that “[f]or a defendant
to be found guilty of attempted murder, the Commonwealth must establish
specific intent to kill.” Commonwealth v. Geathers, 847 A.2d 730, 734
(Pa. Super. 2004).
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26, and soon after the prosecutor’s critique of Appellant’s self-serving
testimony, id. at 24-25. Accordingly, we ascertain no improper argument by
the prosecutor. As such, Appellant’s claim lacks merit.
Deadly weapon instruction
Appellant’s penultimate claim is that the trial court erred in regard to
its issuing of an instruction regarding allowable inferences from Appellant’s
use of a deadly weapon. Appellant’s claim and argument, in their entirety,
are as follows:
7. The Court made reversible error in giving the jury the
instruction that there was no question that they could apply the
inference of specific intent, with regard to attempted homicide,
because a deadly weapon had been used on a vital part of the
victim's body.
The United States Supreme Court recently held that[,]
"Any fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a
reasonable doubt." Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013). In his instruction to the jury, the Judge explained
that he had already made that finding of fact, implying that it
would be improper for them to decide otherwise. This
instruction may have caused the jury to rule in favor of the
Commonwealth on vital questions such as intent and sentencing
enhancements. It was improper for the Court to remove these
factual determinations from the jury and should result in a
reversal.
Appellant’s Brief, at 21.
Appellant’s argument contains no citation to the record wherein the
alleged error occurred and/or where this claim was preserved in the trial
court. On this basis alone, we could deem Appellant’s issue waived. See
Commonwealth v. Rozanski, 433 A.2d 1382, 1390 (Pa. Super. 1981)
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(finding an “objection has been waived [where the] appellant has failed to
cite to the record, advising us either at what point in the trial the [error]
occurred, or in what manner his objection was preserved for appellate
review”).
Nevertheless, we ascertain no error in the trial court’s instruction. The
jury was instructed as follows:
When deciding whether [Appellant] had the specific intent
to kill, you should consider all the evidence regarding his words
and conduct and the attending circumstances that may show his
state of mind.
If you believe [Appellant] intentionally used a deadly
weapon on a vital part of the victim’s body, you may regard that
as an item of circumstantial evidence which may, if you choose,
infer that [Appellant] had the specific intent to kill. Again, a
deadly weapon is any firearm, whether loaded or unloaded, any
device designed as a weapon and capable of producing death or
serious bodily injury or any other device or instrumentality [sic]
that in the manner in which it was used or intended to be used is
calculated or likely to produce death or serious bodily injury. In
this case, as you heard, [Appellant] admitted using a knife. I
don’t think there’s any question that is a deadly weapon and also
that the victim was stabbed in the lung, which is also [sic] a vital
part of the victim’s body.
N.T., 9/16/13-9/19/13, at 295-96.
It is well-established that “[t]he specific intent to kill … may be
inferred from the intentional use of a deadly weapon on a vital part of the
body of another human being.” Commonwealth v. Ewing, 264 A.2d 661,
663 (Pa. 1970) (internal quotation marks and citations omitted) (hereinafter,
“deadly weapon presumption”). The trial court’s instruction properly
conveyed this principle.
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Furthermore, there is nothing in the trial court’s elaboration on the
deadly weapon presumption that was improper. As the record plainly
reveals, the court did not, as Appellant contends, instruct the jury that
“there was no question that they could apply the inference of specific intent”
from the use of a deadly weapon. Appellant’s Brief, at 21. The trial court
properly instructed the jury that the choice to apply the deadly weapon
presumption was theirs to make. See N.T., 9/16/13-9/19/13, at 295 (“If
you believe [Appellant] intentionally used a deadly weapon on a vital part of
the victim’s body, you may regard that as an item of circumstantial
evidence which may, if you choose, infer that [Appellant] had the specific
intent to kill.”) (emphasis added).
Moreover, although the court instructed the jury that a knife is a
deadly weapon and that a lung is a vital part of the Victim’s body, Appellant
does not even dispute either of those facts. Indeed, those facts are virtually
self-evident. Regardless, the trial court did not tell the jury that Appellant
acted intentionally (which was an element of the deadly weapon
presumption as recited by the court), nor did the trial court tell the jury that
they must apply the deadly weapon presumption given the undisputed facts.
Accordingly, even if Appellant had not waived this claim, it clearly lacks
merit.
Evidence admitted during sentencing proceedings
Finally, Appellant argues that the trial court erred when it permitted
video evidence during the sentencing phase of his trial showing Appellant
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engaged in an altercation at the jail. Essentially, Appellant contends that the
evidence was not relevant to his sentencing for attempted murder because
the altercation occurred after his conviction. However, Appellant fails to cite
any relevant case law or other legal authority in support of his claim that
this evidence was irrelevant to the formulation of his sentence and, thus, his
argument is meritless on that basis alone. Nevertheless, we believe such
evidence was clearly relevant to assess Appellant’s rehabilitative needs
and/or the protection of the public, both of which are not just relevant
concerns at sentencing, but are matters which the sentencing court is
required to consider. See Commonwealth v. Fullin, 892 A.2d 843, 847-48
(Pa. Super. 2006) (“When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, [the] gravity of offense in relation to impact on
victim and community, and [the] rehabilitative needs of the
defendant....”) (emphasis added, internal quotation marks and citation
omitted). Accordingly, Appellant’s final claim is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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