Com. v. Crawford, S.

J-S75044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN C. CRAWFORD,
Appellant No. 1776 EDA 2014
Appeal from the Judgment of Sentence entered April 21, 2014,
in the Court of Common Pleas of Chester County,
Criminal Division, at No(s): CP-15-CR-0002624-2013
BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 08, 2014
Sean Crawford (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of simple assault, 18 Pa.C.S.A. §
2701(a)(1).
The trial court summarized the pertinent facts and procedural history
as follows:
On July 21, 2013, Officer David Spigarelli of the West
Goshen Police Department was dispatched to investigate a report
of a female assault victim. Upon arriving at the scene, Ms.
Hayman stated to Officer Spigarelli that she was struck in the
face by her fiancé, [Appellant]. Upon instructions from Officer
Spigarelli, another officer took [Appellant] into custody for the
assault on Ms. Hayman. [Appellant had previously pled guilty
and was convicted of assaulting Ms. Hayman at Docket No 3465-
2011].
On January 28, 2014, a jury trial in the above matter
began. The Commonwealth presented four witnesses. First, lay
witnesses, David Fuller and Denise Phipps, testified that they did
not observe the altercation between [Appellant] and Ms.
Hayman, but observed Ms. Hayman coming towards them. She
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was upset and bleeding from the nose. Ms. Hayman related to
Mr. Fuller and Ms. Phipps that [Appellant] had punched her in
the face and had taken two of her four children. The
Commonwealth also presented expert medical testimony from
Barry R. Smoger, M.D., who testified that he examined x-rays
taken of Ms. Hayman’s face on July 21, 2013 after she was
transported to the hospital. He diagnosed her with a facial bone
fracture. The last witness to testify on behalf of the
Commonwealth was Ms. Hayman.
Ms. Hayman testified that on July 21, 2013, she and her
fiancé, [Appellant], were at West Goshen Park with her four
children. Ms. Hayman testified [that Appellant] informed her
that he was ending their relationship. When she questioned
[Appellant] about how he planned to take care of his children’s
needs, [Appellant] became “mad” that Ms. Hayman was thinking
he was not going to be providing for his children and he pulled
her hair. When she struggled to get free, [Appellant] punched
her in the nose. It was Ms. Hayman’s testimony that she
escaped from [Appellant] and ran across the street to where Mr.
Fuller and Ms. Phipps were working in the yard.
After the close of the Commonwealth’s case, [Appellant’s]
attorney made a motion for judgment of acquittal. [The trial
court] denied the motion. [Appellant] notified the [trial court]
that he intended to forgo his right to testify or present any
evidence. A brief colloquy took place between the [trial court]
and Appellant about his decision.
[The trial court] then went over the jury charge with both
counsel in chambers. [Appellant’s counsel] placed an objection
on the record to [the trial court’s] intention to instruct the jury
on consciousness of guilt as requested by the Commonwealth.
During closing statements, [Appellant] objected to a
statement of the Commonwealth referring to the fact that the
Commonwealth had not called the children to testify about the
altercation. [The trial court] overruled both objections.
Trial Court Opinion, 8/7/14, at 2-4 (footnotes and citations to notes of
testimony omitted).
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At the conclusion of trial, the jury found Appellant guilty of simple
assault. Appellant filed a post-sentence motion on April 30, 2014, which the
trial court denied without a hearing on May 9, 2014. Appellant filed a notice
of appeal on June 9, 2014. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Did the trial court err in overruling [Appellant’s] objection to
the prosecutor’s comments during her closing argument
regarding her decision not to call certain eyewitnesses, when
the facts underlying those comments were not in evidence?
2. Did the [trial court] err in instructing the jury on
“Consciousness of Guilt” where there was no evidence that
[Appellant] left the scene in order to avoid apprehension by
the police?
Appellant’s Brief at 4.
In his first issue, Appellant argues that the trial court erred in
overruling his objection to improper comments by the prosecutor during
closing arguments. Appellant’s Brief at 13-15. Our standard of review for a
claim of prosecutorial misconduct is limited to whether the trial court abused
its discretion. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super.
2005) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007). In
considering such a claim, our attention is focused on whether the defendant
was deprived of a fair trial, not a perfect one. Id.
[I]n reviewing prosecutorial remarks to determine their
prejudicial quality, comments cannot be viewed in isolation but,
rather, must be considered in the context in which they were
made. Our review of prosecutorial remarks and an allegation of
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prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial.
***
It is well settled that a prosecutor has considerable latitude
during closing arguments and his arguments are fair if they are
supported by the evidence or use inferences that can reasonably
be derived from the evidence. Further, prosecutorial misconduct
does not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by forming in
their minds a fixed bias and hostility toward the defendant, thus
impeding their ability to weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct is evaluated
under a harmless error standard.
In determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by a
prosecutor must be examined within the context of defense
counsel's conduct. It is well settled that the prosecutor may
fairly respond to points made in the defense closing. Moreover,
prosecutorial misconduct will not be found where comments
were based on the evidence or proper inferences therefrom or
were only oratorical flair.
Commonwealth v. Judy, 978 A.2d 1015, 1019–1020 (Pa. Super. 2009)
(internal citations omitted).
Appellant objects to the following comments made by the
Commonwealth during its closing argument, relative to the altercation
between Appellant and Ms. Hayman:
Assistant District Attorney: [Appellant] mentioned that
there were no other eye
witnesses aside from the
children. I think it is an
undisputable fact the children
were present in the park that
day. They probably saw
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what happened. There was
evidence, there was
testimony that Sania and
Jordan were extremely
upset. Call them? I didn’t
call them to the stand. In
Chester County we are not
in the business of calling
an eight year old ... to
testify against someone
who is very involved in
their lives. That’s why
they didn’t testify today.
N.T., 1/28/14, at 94-95 (emphasis added).
Appellant argues that the prosecutor’s comment deprived him of a fair
trial. Appellant contends that there was no evidence presented at trial that
the Commonwealth opted not to call the children because of their age, and
that he was deprived of the opportunity to present his own evidence or
conduct any cross-examination with regard to why the children did not
testify. Appellant’s Brief at 14-15. The trial court, however, found no merit
to this claim, concluding that the comment was not prejudicial and that
Appellant was not entitled to relief on this basis. We find no abuse of
discretion in the trial court’s determination.
In Commonwealth v. Chmiel, 889 A.2d 501, 543–44 (Pa. 2005), our
Supreme Court explained:
In determining whether the prosecutor engaged in misconduct,
courts must keep in mind that comments made by a prosecutor
must be examined within the context of defense counsel's
conduct. It is well settled that the prosecutor may fairly
respond to points made in the defense closing. A remark
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by a prosecutor, otherwise improper, may be appropriate
if it is in [fair] response to the argument and comment of
defense counsel. Moreover, prosecutorial misconduct will not
be found where comments were based on the evidence or proper
inferences therefrom or were only oratorical flair.
Chmiel, 889 A.2d at 543–44 (emphasis added).
Here, we conclude that the prosecutor’s comments as to why it
declined to call the children to testify, were in fair response to comments by
Appellant’s counsel who, during his preceding closing argument, “opened the
door” to the Commonwealth’s responsive remarks about the children’s
failure to testify. Specifically, during closing, Appellant’s counsel addressed
the jury:
Today Miss Hayman testified her children were ten steps
away or nearby. Yet she also testified early on in the
proceedings they were a mile away. Wait a minute. You
can ask yourself why she did not want her children
called as witnesses, because maybe they would say
a different story. That’s for you to wonder about. In
fact, why is there even no corroborating evidence, why did
the State put on no corroborating evidence [that
Appellant] was in the park that day? ... They could have
done that if they had chosen to do so.
N.T., 1/28/14, at 89-90 (emphasis added).
By asking the jury to speculate about why the Commonwealth did not
call the children as witnesses, Appellant opened the door to the
Commonwealth making responsive closing remarks about the children’s
absence at trial. Given that the Commonwealth’s comments were in fair
response to Appellant’s closing argument, Appellant’s claim of prosecutorial
misconduct fails. See Commonwealth v. Turner, 73 A.3d 1283, 1286,
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n.5. (Pa. Super. 2013) (“[T]his Court may affirm a trial court's decision if it
is correct on any basis.”) (citation omitted).
In his second issue, Appellant argues that the trial court erred in
issuing a “consciousness of guilt” instruction to the jury. Appellant’s Brief at
15-18. “[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated portions, to
determine if the instructions were improper. ... [A] 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. Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible error.” Commonwealth
v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations omitted). “A
jury instruction is proper if supported by the evidence of record. [Our
Supreme Court] has held that when a person commits a crime, knows that
he is wanted therefor, and flees or conceals himself, such conduct is
evidence of consciousness of guilt, and may form the basis [of a conviction]
in connection with other proof from which guilt may be inferred.”
Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (citations and
internal quotations omitted).
Here, the trial court determined that a “consciousness of guilt”
instruction was warranted, and instructed the jury:
Now, you may have heard evidence that tended to show that
[Appellant] left the scene. The credibility, weight, and effect of
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this evidence is for you to decide. Generally speaking, when a
crime has been committed and a person thinks he or she may be
accused of committing it, [and] he or she leaves the scene, that
is a circumstance that may prove a person’s consciousness of
guilt. Such action does not necessarily show consciousness of
guilt in every case. A person may leave the scene for some
other motive, may do so even though innocent. Whether the
evidence of [Appellant] leaving the scene in this case should be
looked at as evidence of consciousness of guilt depends upon the
facts and circumstances of this case and especially upon motives
that may have prompted him to leave. You may not find
[Appellant] guilty solely on the basis of evidence of him leaving
the scene.
N.T., 1/28/14, at 105.
Appellant argues that the instruction was improper because the
Commonwealth presented no evidence that he left the scene in order to
avoid detection by the police. The trial court, however, disagreed,
explaining:
Mr. Fuller and Ms. Phipps testified they observed Ms. Hayman
come from the direction of the park and present herself with a
bloody injury to her face.
Mr. Fuller testified that upon hearing Ms. Hayman relate her
children were in the park he immediately ran to the park to
investigate and saw the individual Ms. Hayman identified as her
fiancé, [Appellant], pulling out of the park’s parking lot in a car.
Mr. Fuller also testified he observed two young children running
toward [Appellant’s] car and screaming. Mr. Fuller went to the
children when he saw they were following the car into the street
and he was worried they would be injured.
Trial Court Opinion, 8/7/14, at 5 (citations to notes of testimony omitted).
In light of this testimony, the trial court concluded that it was not error
to instruct the jury to decide whether Appellant’s actions in leaving the scene
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tended to show a guilty conscience. We conclude that the trial court did not
err in issuing a consciousness of guilt instruction to the jury. We agree with
the trial court that the Commonwealth presented testimony that Appellant
left the scene; Mr. Fuller, in particular, testified that when he ran toward
Appellant, he saw Appellant “pulling out in his car” while two children ran
toward Appellant “screaming, he’s got my brother.” N.T., 1/28/14, at 36-
37. When Mr. Fuller reached the parking lot area of the park, Appellant “had
taken off ... straight toward Westtown Road”. Id. at 38-39. Accordingly, we
find no abuse of discretion in the trial court’s determination that a
consciousness of guilt instruction was warranted. Appellant’s claim that the
trial court’s jury instruction was unsupported by the evidence and improper
is unavailing.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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