Commonwealth v. Scott

J-A07039-19
2019 PA Super 185COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NALIK SHARIFF S. SCOTT :
:
Appellant : No. 604 EDA 2017
Appeal from the Judgment of Sentence December 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004102-2012,
CP-51-CR-0004104-2012, CP-51-CR-0004106-2012
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: Filed: June 11, 2019
Appellant, Nalik Shariff S. Scott, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after a jury
convicted him of three counts of first-degree murder and related offenses
described infra.1 Appellant asserts twelve claims of trial court error, none of
which has merit. We affirm.
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1 We observe that Appellant’s single notice of appeal lists three trial court
docket numbers. On June 1, 2018, our Supreme Court decided
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which, in accordance
with the official note to Pa.R.A.P. 341, held that separate notices of appeal
must be filed when one or more orders resolves issues arising on more than
one docket. “The failure to do so will result in quashal of the appeal.” Id. at
977. The Supreme Court, however, applied Walker prospectively. Id.
Therefore, because the instant appeal preceded Walker, we decline to quash
it.
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* Former Justice specially assigned to the Superior Court.
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The trial court aptly sets forth pertinent facts and procedural history of
the case sub judice, as follows:
On December 21, 2016, following a capital murder jury trial before
[the trial court], defendant Nalik Shariff Scott [hereinafter
“Appellant”] was convicted of three counts of first-degree murder
(18 Pa.C.S. § 2502), three counts of robbery (18 Pa.C.S. § 3701),
one count of criminal conspiracy (18 Pa.C.S. § 903), one count of
carrying a firearm without a license (18 Pa.C.S. § 6106), one
count of carrying a firearm on the streets of Philadelphia (18
Pa.C.S. § 6108), and one count of possessing an instrument of
crime (18 Pa.C.S. § 907). Appellant was tried with his co-
defendant Ibrahim Muhammed. As the jury was unable to reach
a consensus following a penalty phase hearing, the [trial court]
imposed an aggregate sentence of three consecutive life
sentences to be followed by fifty to one hundred years’
incarceration (18 Pa.C.S. § 1102(a)(1)). Appellant filed post-
sentence motions, which the [trial court] denied on January 25,
2017.
FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of [numerous
Philadelphia Police detectives and officers, a Philadelphia
Firefighter lieutenant, a Delaware State Chief Medical Examiner,
and several eyewitnesses. Co-Defendant Muhammed presented
testimony from Philadelphia Police detectives and officers, several
physicians, and numerous eyewitnesses. Appellant Scott
presented the testimony of six Philadelphia Police Detectives.]
Viewed in the light most favorable to the Commonwealth as the
verdict winner, the evidence established the following.
On September 6, 2011, Porfirio Nunez, his wife Juana Nunez, and
his sister Lina Sanchez, were working at their family owned
Lorena’s Grocery, which was located at the corner of 50th and
Parrish Streets in Philadelphia. N.T. 12/7/16, at 223-224, 227.
Also working that day were Porfirio and Juana’s daughters, Jessica
and Laura Nunez. N.T. at 12/7/16 at 227.[] At approximately
7:55 p.m., Porfirio was located by the back refrigerators, while
Lina and Juana were in the back food preparation area and Jessica
and Laura were at the front registers. N.T. 12/7/16 at 228;
12/8/16 at 216; 12/9/16 at 228. At that time, defendant
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[hereinafter “Appellant”] and Ibrahim Muhammed entered the
store. N.T. 12/7/16 at 228.
Upon entering, Appellant went behind the counter where Laura
and Jessica were located and grabbed Laura by her hair, while
Muhammed went to the back of the store where Lina and Juana
were located. N.T. 12/7/16 at 228-229, 237; 12/8/16 at 216-
217, 219-220. After Appellant grabbed Laura’s hair, he pushed
her to the ground, causing Laura and Jessica to scream. N.T.
12/7/16, at 228, 230; 12/8/16 at 216. Hearing his daughters’
screams, Porfirio came out to the aisle to see what was going on
at the front of the store. N.T. 12/7/16 at 228. Appellant, who
was in possession of a 9-millimeter handgun, pointed the firearm
at Porfirio and shot him through the arm and into his chest. N.T.
12/7/16 at 228, 230-232; 12/8/16, at 193-194; 12/12/16, at 323,
328-329. Porfirio then ran into the back of the store. N.T. at
12/7/16, at 228, 232. Hearing the gunshot, Muhammed then took
out his own gun and began shooting Juana and Lina. N.T.
12/7/16, at 233. Muhammed shot Lina Sanchez in her abdomen
and back before shooting Juana in the chest and top of her head.
N.T. 12/7/16, at 233-236; 12/8/16, at 198-204. Muhammed then
turned towards Porfirio and shot him three times in the chest and
back. N.T. 12/7/16, at 233-236; 12/8/16, at 190.
After shooting Porfirio, Juana, and Lina, Muhammed walked
towards Jessica while Appellant, still holding Laura to the floor,
yelled at Jessica to “give [him] the money.” N.T. 12/7/16, at 234-
236; 12/8/16, at 217. Believing that she was about to be shot,
Jessica opened the cash register. N.T. 12/7/16, at 236. Appellant
and Muhammed then grabbed what they could from the register
before leaving through the front door and fleeing the area. N.T.
12/7/16, at 131-133, 238-239; 12/8/16, at 217.
Police responded to the store to find Porfirio, Juana, and Lina
[lying] on the floor inside the store. N.T. 12/6/16, at 270-272.
Lina, who was still showing signs of life, was rushed to the Hospital
at the University of Pennsylvania. N.T. 12/6/16, at 273-276, 298;
12/8/16, at 201. Juana and Porfirio were similarly transported to
the hospital, though they did not show signs of life at the time.
N.T. 12/6/16, at 281. Police recovered three projectiles and nine
9mm fired cartridge cases from the scene. N.T. 12/6/16, at 203-
204, 208-09; 12/12/16, at 32-333. The medical examiner
recovered five bullets from the bodies of the victims. N.T.
12/12/16, at 323.
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Porfirio was shot a total of five times: twice in his chest,
perforating his spleen, diaphragm, vertebrae, and spinal cord;
once in his arm and chest, penetrating his left lung, heart,
esophagus, and liver; once in his back, penetrating his lungs and
vertebrae; and once in his hand. N.T. 12/8/16 at 190, 193-194.
Lina Sanchez was shot a total of two times: once in the upper
back, penetrating her back, neck, and mouth; and once in the
abdomen, penetrating her colon, liver, and right kidney. N.T.
12/8/16, at 198-199. Juana was shot a total of three times: once
in the base of her neck; once in her chest, penetrating her left
lung, left pleura, and vertebrae; and once in the head, penetrating
her brain and vertebrae. N.T. 12/8/16, at 202-204.
In early February, 2012, narcotics police officers observed
Muhammed selling marijuana near the corner of Reedland Street
and 62nd Street in Philadelphia, and subsequently arrested him.
N.T. 12/9/16, at 106-111. Following his arrest, Muhammed
informed police that he had information about robberies and
shootings. N.T. 12/9/16 at 114, 116.
Muhammed was brought to the Southwest detectives’
headquarters and talked with Detective Joseph Murray, who
began to believe that Muhammed may have been involved in the
Parrish Street murders at Lorena’s Grocery. N.T. 12/9/16, at 149-
150, 154. Muhammed was then brought to the Homicide Unit,
where he was interviewed by Detective Thomas Gaul. N.T.
11/9/16, at 251-252.
Muhammed was given Miranda warnings and ultimately provided
a statement inculpating himself in the murders. N.T. 12/9/16, at
254-259, 270; 12/12/16 at 89-99. Muhammed admitted to police
that he and “Leek” went into the store to rob it, that he was in the
back of the store with the women, that he heard a gunshot, and
then pulled out his own gun and began firing. N.T. 12/12/16,
at94-95. Muhammed stated that he was firing indiscriminately
and that he may have shot a man accidentally as he was leaving
the store. N.T. 12/12/16, at 94-95. Muhammed identified
Appellant as his co-conspirator in the robbery/homicides. N.T.
12/12/16, at 96.
On February 10, 2012, police detectives prepared a photo spread
containing Appellant’s photograph and brought it to Jessica and
Laura, who both independently identified Appellant. N.T. 12/7/16,
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at 272-273; 12/8/16, at 237-238; 12/13/16, at 94-96, 112-113.
Later that day, Jessica was brought to police headquarters where
she identified Muhammed in a photo spread. N.T. 12/7/16, at
275-276; 12/13/16, at 97.
Trial Court Opinion, 6/14/17, at 1-6.
Appellant presents the following questions for our review:
1. Whether The Honorable [Trial Court] erred in preventing the
defense from inquiring about potential jurors’ bias against
Muslims?
2. Whether The Honorable Trial Court erred by, during jury selection,
automatically disqualifying potential jurors who indicated they
would have any moral, religious or conscientious scruples that
would prevent or substantially impair them from returning a death
sentence or a life sentence without providing an opportunity for
follow-up questions by counsel or the court to further explore the
nature of those potential issues?
3. Whether The Honorable Trial Court erred by denying the defense’s
Batson motion?
4. Whether The Honorable Trial Court erred by permitting the
prosecutor to, during opening argument, repeatedly refer to the
defendants as “evil” with the object of prejudicing the jury against
the defendants and erred by permitting the prosecutor to commit
misconduct by consistently making impermissible appeals to
emotion and racial bias throughout the trial?
5. Whether The Honorable Trial Court erred by allowing the
prosecutor to impermissibly lead key witnesses during direct
examination over numerous sustained defense objections to the
impermissible conduct, such that the defense was prejudiced and
erred by denying the defense a full and fair opportunity to cross-
examine Commonwealth witnesses regarding their perception and
memory of the incident?
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6. Whether The Honorable Trial Court erred by denying the defense’s
motion to preclude the Commonwealth from presenting expert
testimony concerning the quality of a video relevant to the
defense’s case due to the untimeliness of his report, that
testimony’s irrelevance, and the prejudice caused to the defense
by such expert testimony?
7. Whether The Honorable Trial Court erred by permitting the
prosecutor to impermissibly elicit irrelevant and highly prejudicial
testimony concerning witness’ [sic] fear of testifying and other
evidence related to witness intimidation, erred in permitting that
line of questioning and erred by allowing the prosecutor to
impermissibly argue inflammatory evidence not of record
concerning a witness’ [sic] failure to identify the defendant at a
line-up due to his fear of defense counsel or other motivations not
of record?
8. Whether The Honorable Trial Court erred in permitting the
prosecutor to argue that defense counsel were wealthy and that
defendants had hired expensive defense lawyers and experts to
defend them, in contrast to the prosecutor’s more meager
finances, in an attempt to inflame the prejudices of the jury?
9. Whether the Honorable Trial Court erred in permitting the
prosecutor to agree to limit his cross-examination of a defense
medical witness with regard to other, nationally recognized cases
she had handled in the past to the state and year those cases
occurred because to do otherwise would solicit irrelevant and
prejudicial testimony, then deliberately solicit said information
and also impermissibly put before the jury a video indicating the
expert’s involvement in a nationally recognized sensational case?
10. Whether The Honorable Trial Court erred by allowing the
prosecutor to impermissibly manufacture rules of evidence and
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imply untrue facts during his cross-examination of defense private
investigator, thereby prejudicing the jury against the defense and
defense’s investigation into the case. See, inter alia, N.T.
12/19/16, 259-286.
11. Whether The Honorable Trial Court erred by permitting the
prosecutor to make arguments about evidence that was not in the
record, make outrageous arguments which were designed to
prejudice the jury against defense counsel and the defendants,
and misrepresent the contents of the record and erred by
permitting the prosecutor to commit misconduct by consistently
making impermissible appeals to emotion and racial bias
throughout the trial?
12. Whether The Honorable Court erred in denying the defense’s
motion for a mistrial, as the prosecutor misrepresented the record
and consistently made impermissible inflammatory appeals to
emotion and racial bias throughout the trial including but not
limited to closing argument?
Appellant’s brief, at 6-7.
Appellant’s first issue implicates the trial court’s administration of voir
dire questioning. In assessing Appellant's claim, we are guided by the
following standard of review.
The scope of voir dire rests in the sound discretion of the trial
court, whose decision will not be reversed on appeal absent
palpable error. The purpose of voir dire is to ensure the
empaneling of a competent, fair, impartial, and unprejudiced jury.
The scope of voir dire should therefore be limited to questions that
attempt to disclose a potential juror's lack of qualification or fixed
opinion regarding the defendant's guilt or innocence. A
prospective juror's personal views are of no moment absent a
showing that these opinions are so deeply embedded as to render
that person incapable of accepting and applying the law as given
by the court.
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Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa.1998) (internal
citations and quotation marks omitted).
Specifically, Appellant contends that the trial court erred during voir dire
when it “prevented him” from asking individual venirepersons about potential
bias against Muslims. Appellant and Co-Defendant are Muslims, have Muslim
names, and groom themselves according to the Muslim faith, which made their
faith an important aspect of trial, Appellant maintains. Also, one detective
had stated on the record that he recognized co-defendant Muhammed by his
“Osama bin Laden nose.”
In fact, the issue of addressing venirepersons about possible anti-
Muslim bias first arose when the Commonwealth filed a motion in limine
seeking to preclude from voir dire any discussion of potential juror bias against
Muslims. Defense counsel contested the motion and argued that such
questioning was necessary, particularly given the detective’s comments.
The court agreed that voir dire on this issue was appropriate because
the detective’s alleged comments would permit cross-examination of the
detective and others to explore whether an anti-Muslim bias may have
improperly influenced their investigation. The court ruled, however, that a
single question directed to the group of venirepersons would suffice. Over
Commonwealth objection, the trial court therefore indicated that it would ask
the entire group of venirepersons, “Defendants are African-American Muslims.
[Is there] [a]nything about that fact that would affect your ability to be fair
and impartial in this case?” N.T. 11/28/16 at 61.
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When the court then asked defense counsel, “Is what I’m doing
satisfactory to you?”, counsel replied, “It’s better,” and followed that
sentiment with “I will accept your ruling.” N.T. 11/28/16, at 63. The court
reiterated its request that defense counsel not “do individual voir dire about
religion[,]” to which defense counsel assured the court, “I heard your ruling
and we will follow it.” N.T. at 63-64. Subsequently, during voir dire, the one
venireperson out of 300 who answered, “yes” to the court’s group question
was dismissed.
While the record demonstrates that counsel preferred to ask each
individual venireperson the question regarding religious bias, he never
objected to the court’s proposed voir dire question. Therefore, we deem
Appellant’s issue waived. See Commonwealth v. Houck, 102 A.3d 443 (Pa.
Super. 2014) (holding timely and specific objection at appropriate stage of
proceedings required to preserve claim for appellate review).
Even if we did not find waiver, we would find no merit to Appellant’s
claim. Precedent acknowledges that a trial court should prevent the creation
of “racial issues in a case where such issues would not otherwise have
existed.” Commonwealth v. Richardson, 473 A.2d 1361, 1364 (Pa. 1984).
The trial court should avoid the creation of racial issues because it “might
focus jurors' attentions upon skin color rather than upon the guilt or innocence
of the accused.” Id. This precept is especially important because the creation
of a racial issue “might interfere with the delicate balance of an impartial trial
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atmosphere, thereby beclouding the trial with prejudicial suggestions and
implications.” Id.In the seminal case of Richardson, the defendant, an African American
man, was charged with raping a white woman. During voir dire, the defendant
requested that the trial court ask venirepersons five specific questions, each
of which was designed to uncover racial biases. The trial court refused and,
instead, asked the prospective jurors the single question of whether the racial
difference between defendant and victim presented such a problem that it
could interfere with their honest appraisal of the case and with their ability to
be completely fair to both the Commonwealth and the defendant.
On appeal, the defendant claimed that the trial court erred by refusing
to ask all five of his proposed questions. Exercising discretionary review from
this Court’s reversal of the trial court, the Pennsylvania Supreme Court held
that
[u]nder the circumstances, where there are not factors present to
infuse the case with an enhanced racial sensitivity, and racial
differences were not a focus of evidence at trial, the one voir dire
question posed by the trial court was sufficiently specific and
probing to reveal prejudices which might have bearing upon the
case.
Richardson, 473 A.2d at 1364.
Here, while one detective’s comment invited reasonable concern
warranting inquiry into potential prejudices, the record shows that race or
religious belief was not otherwise a focus of the evidence. Guided by
Richardson, therefore, we would conclude that the court’s single, group
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question adequately addressed defense concerns, such that we would reject
Appellant’s claim on the merits were waiver not applicable.
In Appellant’s second issue, he argues that the court erred when it
dismissed potential jurors who indicated their morals and beliefs would
prevent or substantially impair them from imposing the death penalty.
Instead, Appellant asserts, defense counsel should have been given an
opportunity to ask follow-up questions in an attempt to rehabilitate the
potential jurors and show they were willing and able to eliminate the influence
of scruples and impose a sentence consistent with legal principles.
The trial court responds that it asked questions of the jury precisely in
accordance with the Pennsylvania Supreme Court decision in
Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012). In Keaton, the Court
held that a judge’s wide latitude in supervising voir dire included the power to
dismiss potential jurors who answered death penalty qualification questions
by stating their beliefs precluded them from imposing a death sentence. It
was reasonable for the trial court to conclude, given such an answer, that
further questioning would be illogical and fruitless. Id. at 1069-70.
Here, the dismissed jurors expressed the same preclusions as the jurors
did in Keaton. They did not merely say they “objected” to the death penalty;
they claimed their beliefs would necessarily prevent them from imposing the
death penalty. Therefore, as Appellant directs us to nothing distinguishing the
present case from Keaton, we find no reversible error on this issue.
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Next, we address Appellant’s challenge to the trial court’s denial of his
Batson2 motion. Specifically, Appellant maintains that the prosecutor
violated Batson by excluding four African-American venirepersons with its
first five peremptory challenges. We disagree.
A Batson claim presents mixed questions of law and fact.
Therefore, our standard of review is whether the trial court's legal
conclusions are correct and whether its factual findings are clearly
erroneous.
In Batson, the [Supreme Court of the United States] held that a
prosecutor's challenge to potential jurors solely on the basis of
race violates the Equal Protection Clause of the United States
Constitution. When a defendant makes a Batson challenge
during jury selection:
First, the defendant must make a prima facie showing
that the circumstances give rise to an inference that
the prosecutor struck one or more prospective jurors
on account of race; second, if the prima facie showing
is made, the burden shifts to the prosecutor to
articulate a race-neutral explanation for striking the
juror(s) at issue; and third, the trial court must then
make the ultimate determination of whether the
defense has carried its burden of proving purposeful
discrimination.
Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018) (citations
and quotation marks omitted). “The trial court should consider the totality of
circumstances when determining whether the prosecutor acted with
discriminatory intent or engaged in purposeful discrimination.”
Commonwealth v. Towles, 106 A.3d 591, 602 (Pa. 2014) (citation omitted).
This Court must give great deference to a trial court's determination that
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2 Batson v. Kentucky, 476 U.S. 79 (1986).
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peremptory challenges were free of discriminatory intent, and we will not
overturn the determination unless it was clearly erroneous. See id.The particular venireperson pool in question comprised nine Caucasians,
nine African-Americans, and four Hispanics. According to Appellant, the
Commonwealth’s reasons for striking four African Americans—who had
nothing in common besides being African American, Appellant argues—were
pretextual. For example, one worked in a prison, which Appellant says
ostensibly favored the Commonwealth. Another purportedly “stared at the
prosecutor” for extended periods of time, a reason Appellant also summarily
dismisses as an improper basis for removal.
The trial court responds, first, that of the six venirepersons from this
group who were ultimately chosen for the jury, four were African-American.
Also, the court found the Commonwealth’s explanations for each of its five
peremptory challenges to be both credible and race-neutral. The respective
explanations were: attenuated residency in Philadelphia; prison employment
duties included assessing inmates’ medical needs and health issues; unusual
staring at the prosecutor even when other persons were asking him questions;
and young age and immature manner.
In the totality of these circumstances, we find no error where the
Commonwealth provided the court with plausible, race-neutral explanations
for each peremptory challenge and the trial court found Appellant failed to
carry his burden of proving purposeful discrimination with his claim of pretext.
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See Towles, supra at 602; Edwards, supra at 971. Appellant's Batson
issue, therefore, merits no relief.
In his next issue, Appellant assails the court’s ruling “permitting” the
prosecutor to call the defendants “evil” and to appeal to the jury’s emotions
and racial biases.
In opening arguments, the prosecutor stated that “evil walked in the
grocery store” and one of the victims “looked into the face of evil.” N.T.
12/6/16, at 50-51. Neither Appellant’s counsel nor Co-Defendant’s counsel
objected during the opening, although, afterward and outside the presence of
the jury, Co-Defendant’s counsel called the remark highly inappropriate and
requested a curative instruction. Significantly for our purposes, Appellant’s
counsel elected not to join in the objection but instead stated, “let me deal
with it myself.” N.T. at 120.
The court, agreeing with Co-Defendant’s counsel that a curative
instruction was in order, issued the following instruction:
You heard some comments from the prosecutor [where he] used
the word “evil,” and I just want to be clear . . . that was not
appropriate, that you need to be dispassionate and consider the
evidence without being overwhelmed by emotion . . . . You need
to look at the facts, look at the evidence, and determine whether
or not the Commonwealth has proved guilt beyond a reasonable
doubt. That’s your job.
N.T. at 120-21. Both Appellant’s counsel and Co-Defendant’s counsel
accepted this instruction.
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As shown, Appellant’s counsel objected neither to the prosecutor’s
comments nor to the curative instruction, while also stating a preference to
deal with the comments in his remarks. Given this record, we find the issue
waived. See Houck, supra.
Next, Appellant contends that the trial court erroneously allowed the
prosecutor to ask leading questions while denying Appellant the opportunity
to cross-examine Commonwealth witnesses on their perception and memory
of the incidents about which they testified. Initially, we observe that Appellant
offers no argument in his brief to support his assertion regarding the improper
leading of witnesses. Therefore, this aspect of the present issue is waived.
See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)
(explaining that the failure to develop a legal argument in support of a claim
results in waiver of the issue).
Appellant asserts that the court improperly sustained two
Commonwealth objections to portions of the cross-examination of a key
witness, Laura Nunez, regarding her ability to recollect investigators’ physical
features, as he claims this line of questioning pertained to Nunez’s ability to
identify her assailants. The first objection occurred when Appellant’s counsel
prefaced a question to Ms. Nunez by stating he was “just curious” why she
had a limited memory of what a white police officer looked like, and the second
occurred when he asked what a detective, whom Nunez identified as a black
male, looked like. N.T. 12/9/16, at 54, 57.
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The court explains that it sustained objections to both questions on
relevancy grounds, as the interviews in question had occurred months after
the robbery/murders, such that the connection between Ms. Nunez’s ability to
recollect the investigators’ respective appearances and her ability to recollect
her assailants was too tenuous to be relevant.
As a general rule, questions concerning the admissibility of evidence are
committed to the sound discretion of the trial judge, whose rulings will not be
disturbed on appeal absent an abuse of that discretion. See Commonwealth
v. Kennedy, 959 A.2d 916, 923 (Pa. 2008). In terms of remoteness, this
Court has indicated that this generally affects the weight—but not the
admissibility—of the evidence; further, the Court has emphasized the
deference due to the trial court in the exercise of its discretion.
Commonwealth v. Reed, 990 A.2d 1158, 1168 (2010).
Our review of Appellant’s argument against the two rulings in question,
however, reveals that he failed to support this bare assertion of error with any
reference to legal authority. Accordingly, this issue affords him no relief.
Commonwealth v. Russell, --- A.3d ----, 2019 PA Super 143 (filed May 3,
2019) (finding claim waived for failure to cite any authority in support of
position).3
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3 The same failure to cite to authority defeats Appellant’s remaining argument
charging undue restriction of his cross-examination rights. Specifically,
Appellant contends the court erroneously sustained an objection to counsel’s
cross-examination of Ms. Nunez after he had asked her how she could credibly
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In Appellant’s sixth enumerated issue, he argues that the court erred
when it denied a defense motion to preclude the Commonwealth from
presenting expert testimony from Detective James Dunlap regarding the
quality of video surveillance footage obtained from a store located near the
crime scene. Defense counsel objected to the expert testimony because
Detective Dunlap had not submitted an expert report prior to trial pursuant to
Pa.R.Crim.P. 573, and because counsel had made representations to the jury
regarding the video during opening arguments.
The trial court opines that Appellant has waived this claim because
defense counsel agreed with the court’s ruling, after argumentation on the
point, that Detective Dunlap was permitted to testify about technical aspects
of video quality but not about what the video may or may not have depicted.
The record supports the trial court’s opinion. During discussion on this
issue, the court observed it discerned nothing objectionable or prejudicial
about the detective’s testimony. N.T. 12/13/16, at 88-89. Appellant’s counsel
concurred, stating “I don’t have a problem with it now, Judge, and I will state
that for the record . . . in all fairness, I will withdraw the issues that I raised
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claim to have seen co-defendant Muhammed’s face when he grabbed her hair
from behind. See N.T. 12/9/16, at 69-71. The record, however, belies the
implication that the ruling prevented further development of this point.
In fact, the objection was limited to the phrasing of the question, and the court
not only permitted counsel to rephrase the question that he, himself, admitted
was “probably phrased poorly,” but also allowed him to ask several follow-up
questions to develop the theory that Ms. Nunez’s view of Muhammed was
limited. N.T. at 71-72. Accordingly, were we to address this argument on its
merits, we would find it unavailing.
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before.” N.T. at 89-90. This issue, therefore, is waived for purposes of
appellate review.
Appellant next contends that the trial court erroneously permitted the
Commonwealth to explore the issue of witness intimidation during its cross-
examination of defense witnesses whose testimonies diverged from earlier
incriminating statements against co-defendant Muhammed and, by
association, Appellant. We disagree.
At trial, the Commonwealth presented evidence that co-defendant
Muhammed had confessed to his involvement in two other robberies as well
as in the grocery store murders at issue in the case sub judice. Muhammed
sought to discredit his confession by presenting witnesses who testified that
he had no involvement with the other robberies, the implication arising that if
part of his confession were undermined then his confession to the grocery
store murders would also be placed in doubt. A fortiori, Appellant argues, the
case against him as Muhammed’s cohort likewise would weaken.
In response to this testimony, the Commonwealth sought to elicit on
cross-examination that the witnesses had been intimidated or threatened into
providing this testimony. Part of this proffer consisted of evidence showing
someone had taken photographs of people in the courtroom and courtroom
lobby during trial and posted them to Appellant’s Facebook page. The
witnesses testified they, in fact, felt fearful and intimidated from the
photographs. N.T. 12/14/16, at 22-23, 111-112; 12/16/16, at 164-166.
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The court ruled that because the witnesses were now testifying in a
manner completely contradictory to their earlier sworn statements and
testimonies, it was proper for the Commonwealth to explore the possibility of
witness intimidation. The court instructed the jury on the limited purpose of
such evidence:
THE COURT: Ladies and gentlemen, I’m admitting [Witness
Rodriguez’s testimony that she feared for her safety] only to the
extent that, if you find that that was said, to the extent that you
find it helpful in evaluating the behavior and testimony of this
witness.
There’s been no evidence that any of that has anything to do with
these two defendants, and so you may not infer from anything
that you just heard that there is evidence of consciousness of guilt
or misconduct on the part of the defendants. There’s been no
evidence of that. You understand the limited purpose for which
I’ve allowed it.
N.T. at 164-167.
Later, the court gave another instruction explaining the limited purpose
of the Facebook photographs admitted into evidence.
THE COURT: [Y]ou just saw those photographs that were on
[Appellant’s] Facebook page of this courtroom. That evidence is
admissible for one purpose only, that is to say on the issue of
whether any witnesses in this case were intimidated. . . .
You may not consider the evidence that you just saw as evidence
of consciousness of guilt on the part of the defendants, since
there’s no evidence in this case that the defendants were
responsible for postings on [Appellant’s] Facebook page.
So the only reason you may consider it, to the extent you find it’s
probative of the issue, is on whether witnesses who testified here
were intimidated.
N.T. 12/20/16, at 48.
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Appellant now complains, “The Commonwealth was permitted to
discredit the defense without any substantive evidence that the defendants
had threatened or intimidated anyone. As a result, a new trial should be
granted.” Appellant’s brief at 29.
Our courts have “long recognized that any attempt by a defendant to
interfere with a witness's testimony is admissible to show a defendant's
consciousness of guilt.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.
2007). So, too, have we permitted the Commonwealth to develop a line of
questioning designed to reveal that a witness changed his testimony for fear
of the consequences of testifying truthfully. See, e.g., Commonwealth v.
Collins, 702 A.2d 540, 544 (Pa. 1997) (recognizing well-established
precedent that third-party threats are admissible to explain a witness's prior
inconsistent statement).
Contrary to Appellant’s apparent belief, it was not necessary for the
Commonwealth first to establish Appellant’s or Co-Defendant’s direct
involvement in the Facebook photographs before gaining admission of such
evidence. The evidence was relevant not to show either defendant’s
consciousness of guilt but to show, instead, a possible reason for the
witnesses’ sudden disavowals of prior statements implicating Co-Defendant in
other robberies. The admission of the evidence for this purpose is consistent
with precedent set forth in Collins, and the trial court properly instructed the
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jury as to the limited purpose of the evidence. Accordingly, we find no merit
with Appellant’s evidentiary challenge.4
In his eighth issue, Appellant contends the court improperly allowed the
prosecutor to make a closing argument that included references to the
defendants’ hiring of expensive expert witnesses, whereas the Commonwealth
had far fewer resources with which to make its case. Specifically, Appellant
claims not only that the statements were false, as Co-Defendant was
represented by a court-appointed attorney and relied upon court-appointed
funds to hire his mental health experts, but also that they unfairly prejudiced
the jury against the defendants. Appellant’s brief, at 31.
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) (citation
omitted). Like the defense, the prosecution is accorded reasonable latitude
and may employ oratorical flair in arguing its version of the case to the jury.
Commonwealth v. Williams, 896 A.2d 523, 542 (Pa. 2006) (citations
omitted).
____________________________________________
4 While Appellant’s Statement of Questions Presented assails the
Commonwealth’s reference to such evidence in closing arguments, his
Argument section does not develop this aspect of the claim.
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In addition, a challenged prosecutorial comment must be viewed not in
isolation but in the context in which it was made. Commonwealth v.
Hutchinson, 25 A.3d 277, 307 (Pa. 2011). We will not find prosecutorial
misconduct from comments based on the evidence or derived from proper
inferences. Commonwealth v. Chester, 587 A.2d 1367, 1377 (Pa. 1991).
Our review of prosecutorial remarks and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant received a fair trial,
not a perfect trial. Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.Super.
2009).
Appellant’s single paragraph, generalized argument specifies neither the
statements he challenges nor where in the record this Court may find the
statements. The trial court’s Pa.R.A.P. 1925(a) Opinion, however, references
several passages during closing arguments where the prosecutor suggests
that the defense experts represented “the best defense money can buy,” and
would “say whatever” if they were paid enough. N.T. at 12/21/16, at 41; Trial
Court Opinion, at 24. Given the trial court’s ability to identify the particular
statements at issue and author a responsive opinion to Appellant’s argument,
we proceed with our review of Appellant’s claim.
The trial court considered the prosecutor’s references to his own
comparatively low hourly rate and deemed them harmless, passing remarks,
even if they were technically inappropriate to the extent they suggested a
disparity in compensation that was not part of the evidentiary record.
Addressing the prosecutor’s commentary on expert witnesses, the trial court
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cited to decisional law holding that reference to an expert’s compensation,
see Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super. 2014),
and history of testifying exclusively for defendants, see Commonwealth v.
Smith, 995 A.2d 1143, 1162-63 (Pa. 2010), may be part of a reasonable
“potential bias” argument against the expert’s opinion.
Moreover, the trial court observes, the record establishes that cross-
examination of the experts’ compensation and history as defense witnesses
supplied an evidentiary basis for the prosecutor’s closing argument suggesting
a potential for bias. On balance, therefore, the court considered the
prosecutor’s closing argument to be within the bounds of fair comment.
Appellant directs us to no pertinent, contrary authority on this point to
support his position, and our own conclusion, after careful review, aligns with
the trial court’s disposition. Accordingly, in the absence of evidence showing
an unavoidable prejudicial effect from the comments in question, Appellant is
due no relief on this claim.
In Appellant’s ninth issue, he argues that the trial court erred in its
response to Co-Defendant’s objection during the prosecution’s cross-
examination of the defense’s expert medical witness. Specifically, the court
had made a pretrial ruling permitting the prosecution on cross-examination to
inform the jury that the medical expert had provided mental health testimony
in previous criminal trials, but preventing it from revealing with any specificity
that one case involved the widely publicized Colorado movie theater shooting
spree, which was tried in the year before the case sub judice. During cross-
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examination, however, the prosecutor named the case specifically, purporting
it was fair response to the expert’s claim that she had only testified for the
defense on two prior occasions, when the “Colorado Theater Shooting” case
represented the third case in which she so testified.
The trial court sustained Co-Defendant’s objection, N.T., 12/19/16, at
62, and during a subsequent break admonished the prosecution for needlessly
revealing the subject matter of the Colorado trial. N.T. at 78-81. The court,
then, reviewed the prosecution’s intended use of a video5 from the Colorado
trial to supplement cross-examination of the expert, and it determined the
video was unnecessary unless the expert directly contradicted areas of her
testimony depicted in the video, at which point the court would conduct a side-
bar discussion prior to approving use of the video. N.T. at 82-87. Neither
defense counsel moved for mistrial, asked the court to determine if any juror
____________________________________________
5 A still of the video was visible momentarily before the court excused the jury
and invited argument on the admissibility of the video. During argument, Co-
Defendant’s counsel noticed the words “Live Theater Shooting Trial” at the
lower left-hand of the screen. N.T. at 80-81. The prosecutors claimed they
could not see the wording, nor could the court see it, but the court ordered
the lights dimmed and asked Co-Defendant’s counsel to sit in the jury box and
say whether the words were visible from that vantage point. N.T. at 81.
Counsel said “Yes, it’s not hard. It says ‘Colorado’ with a big seal, ‘Colorado
County’ behind it in the back of the frame.” N.T. at 81-82. As discussed,
infra, the court excluded the video without prejudice to the prosecution’s right
to reargue the matter should the expert’s pending testimony increase the
probative value of the video.
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observed the writing on the video still, or objected to the court’s handling of
the matter in any way. Moreover, the video was not shown to the jury.
Herein, Appellant now advances a single-page argument cursorily
positing that the prosecutor’s question and the display of the video still were
not harmless because the Colorado case was “covered by the press and [was]
notorious.” Appellant’s brief, at 32. Appellant cites to no authority to support
his position. We, therefore, find the present claim waived. See Russell,
supra. In the alternative, we would concur with the trial court’s apt
observation that Appellant’s counsel did not object to the prosecutor’s cross-
examination, see N.T. 12/19/16 at 60-87, thus compelling a finding of waiver
pursuant to Pa.R.A.P. 302(a).
The same failure to cite to pertinent authority impedes our ability to
review Appellant’s next issue, which maintains that the trial court
impermissibly allowed the prosecutor to impeach the credibility of co-
defendant Muhammed’s investigator. Specifically, the investigator testified
that his interview of Muhammed’s relatives produced statements asserting
that the length and style of Muhammed’s facial hair at the time of one prior
robbery to which Muhammed confessed involvement did not match that worn
by the suspect depicted on a video of the robbery.
On cross-examination, the prosecutor developed a line of questioning
asking why the investigator failed to record such family statements in writing
as he admitted he would normally have done in the course of his business.
The gist of the cross-examination appears to have been that the investigator’s
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failure to memorialize betrayed a motive to avoid producing all his notes,
which may have also contained material contrary to co-defendant
Muhammed’s interest.
Appellant baldly asserts that such a suggestion was impermissible, but
he fails to develop a legal argument to this end, for which reason we deny him
relief. See Russell, supra. Furthermore, the trial court again notes correctly
that Appellant failed to object to that part of the Commonwealth’s cross-
examination of the investigator presently in question, which results in waiver
pursuant to Pa.R.A.P. 302.
Appellant’s eleventh issue charges the trial court with erroneously
permitting the prosecutor “to make arguments about evidence that was not
in the record, make outrageous arguments which were designed to prejudice
the jury against defense counsel and the defendants, and misrepresent the
contents of the record with appeals to emotion and racial bias throughout the
trial. The court responds to this issue by pointing to Appellant’s Pa.R.A.P.
1925(b) concise statement, which presents this issue broadly and
nonspecifically and cites “generally” to the Notes of Testimony of 12/21/16.
We observe that, generally,
issues not raised in a Rule 1925(b) statement will be deemed
waived for review. An appellant's concise statement must
properly specify the error to be addressed on appeal. In other
words, the Rule 1925(b) statement must be “specific enough for
the trial court to identify and address the issue [an appellant]
wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919
A.2d 956 (2007). “[A] [c]oncise [s]tatement which is too vague
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to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” Id. The
court's review and legal analysis can be fatally impaired when the
court has to guess at the issues raised. Thus, if a concise
statement is too vague, the court may find waiver.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011) (some
internal citations omitted).
Here, we discern no error with the trial court’s conclusion that the
vagueness of Appellant’s Pa.R.A.P. 1925(b) statement on this issue left the
court in a position to guess what specific issues were being raised, thus
impairing its ability to identify the instances of prosecutorial misconduct
alleged. We, therefore, adopt that conclusion as our own.
Furthermore, even if we were to forego Rule 1925(b) waiver and
review the entire notes of testimony of December 21, 2016, in light of
Appellant’s briefed argument, we would find no relief is due. Specifically,
Appellant’s argument does little more than string together a series of what he
deems objectionable remarks during the prosecutor’s closing and summarily
proclaim that they must have prejudiced the jury. The remarks included a
reference to the compensation received by the expert medical witness, an
unidentified comment about the investigator, unspecified privileged
conversations between counsel and employees, and an unspecified comment
co-defendant Muhammed made about the Appellant. Appellant’s brief, at 34.
With respect to these prosecutorial remarks, we conclude Appellant has failed
to develop a meaningful argument that the court erred in “permitting” them.
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Also falling under the broad umbrella of his Pa.R.A.P. 1925(b) statement
in question, Appellant maintains, is his claim that the court improperly
overruled an objection to the prosecutor’s closing argument reminding the
jury that defense counsel never made good on its opening statement promise
that he would prove who really committed the other murders and robberies to
which Muhammed had confessed. Specifically, Appellant maintains the
Commonwealth engaged in improper burden-shifting when it made this
remark.
Initially, this claim was not readily inferable from Appellant’s Rule
1925(b) statement, and we therefore find it waived on that basis. In any
event, we discern no merit to the claim, as this type of Commonwealth
response to the absence of evidence promised by a defendant, however, was
within the bounds of permissible advocacy under the circumstances. See
Commonwealth v. Paddy, 800 A.2d 294, 317 (Pa. 2002) (holding
Commonwealth appropriately reminded jury of absence of evidence promised
by defense). Finally, we note that the trial court clearly instructed the jury
that the Commonwealth, alone, bore the burden of proving every element of
the crimes charged beyond a reasonable doubt. The record, therefore, belies
Appellant’s claim of burden shifting.
In support of his final issue, which assigns error with the court for
denying his motion for mistrial, Appellant begins by summarily arguing:
The cumulative effect of the Commonwealth’s improper cross
examination of multiple defense witnesses, the introduction of
prejudicial evidence, and finally, the inflammatory closing
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argument, should have resulted in a mistrial. “A mistrial is an
‘extreme remedy’ that is only required where the challenged event
deprived the accused of a fair and impartial trial. The denial of a
mistrial is reviewed for an abuse of discretion.” Commonwealth
v. Laird, 988 A.2d 618, 638 (Pa. 2010). The Commonwealth’s
closing argument was so inflammatory, the jurors were tainted by
the statements.
Appellant’s brief, at 36. Appellant predicates this claim, however, on a notion
we have already rejected, namely, that the Commonwealth’s conduct during
trial and closing arguments had the unavoidable effect of prejudicing the jury
so it could not render a fair verdict. This claim, therefore, fails.
In the second part of his final issue, Appellant raises a claim of
cumulative error. Specifically, he contends that the cumulative prejudice
resulting from multiple errors committed throughout the proceedings denied
him a fair trial.
We have repeatedly held that:
an appellant cannot bootstrap a series of meritless claims into a
cumulative claim of error. See Commonwealth v. Rolan, 964
A.2d 398, 411 (Pa.Super. 2008) (“No number of failed claims
may collectively attain merit if they could not do so
individually.”) (quoting Commonwealth v. Williams, 532 Pa.
265, 615 A.2d 716, 722 (Pa. 1992) (emphasis in original).
Commonwealth v. Patterson, 180 A.3d 1217, 1233 (Pa. Super. 2018),
quoting Commonwealth v. Kearney, 92 A.3d 51, 62 (Pa. Super. 2014).
Therefore, we reject Appellant’s final claim.
Judgment of sentence affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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