Com. v. Williams, J.

J. A20012/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES WILLIAMS, : No. 4 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, November 9, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0007513-2010,
MC-51-CR-0039412-2009
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2014
James Williams appeals from the judgment of sentence entered on
November 9, 2012, in the Court of Common Pleas of Philadelphia County
following his convictions of first degree murder and carrying a firearm in
public in Philadelphia. Following careful review, we affirm.
FACTUAL HISTORY
On August 4, 2009, the police received a radio call about a shooting
near 30th and Mifflin Streets in Philadelphia. Upon arrival, the police
observed the body of Nathanial Nazario (“the victim”) and his Cadillac, which
was parked near the body. The victim sustained eight gunshot wounds.
Expert testimony established that the wounds were inflicted from a distance
of more than three feet. No firearm was recovered but the police found four
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.9 millimeter cartridge casings that were ejected from the same firearm.
Investigators were unable to determine the caliber of the bullets recovered
from the decedent’s body.
On the evening of his death, the victim brought a friend of the family,
Jennifer Colon (“Colon”), to visit his sister, Lizette Nazario (“Lizette”), who
was pregnant; Lizette lived in the Tasker Homes located at 30 th and
Mifflin Streets. (Notes of testimony, 11/5/12 at 7.) The victim double
parked his car and went into the house. Lizette came out and talked with
Colon.1
Soon thereafter, Markeem Williams (“Mar-Mar”), who lived around the
corner, arrived and talked with Lizette’s neighbor, “Butter.” Exiting the
house and observing Mar-Mar, the victim asked his sister if “that [was]
Mar?” The victim then approached Mar-Mar and an argument began. (Id.
at 127.) By this point, Butter had joined the conversation with Colon and
Lizette. The victim directed Colon to get in the car and they left; the victim
was upset and said, “we gonna straighten this shit out once and for all . . .
the niggas down here are jealous and I’m tired of this shit. They calling my
boy a liar.” (Id .at 129.) Mar-Mar walked back to his porch where appellant
and a group of men were waiting.
1
At trial, Colon stated that she had been smoking PCP before they arrived
and taking Xanax; she testified that her memory was vague as she was
“drunk and high.” (Id. at 8-9.)
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Sometime thereafter, the victim and Colon drove to Kelcey Little’s
(“Little”) house on Corlies Street, which was about four blocks away and
asked Little to take a “drive.” They then proceeded to the 3000 block of
Mifflin Street where three men were on the porch. (Id. at 129.) The victim
and Little got out of the car, while Colon remained inside.
The victim and Little walked up to a fence where Mar-Mar and
appellant met them. (Id. at 15, 130.) An argument broke out, and Colon,
who was nervous, exited the car to ask the victim to take her home. (Id. at
15, 130-131.) The victim, Colon, and Little were returning to the car when
appellant walked behind them stating “come on back,” trying to talk to the
victim. Appellant then fired shots at the victim; Colon and Little ran. (Id. at
17, 131.) The victim sustained eight gunshot wounds to his back, chest,
and right arm, as well as a graze gunshot wound to the back of his right
shoulder. When officers arrived on the scene, in response to a radio call for
a shooting, the victim was unresponsive and was pronounced dead.
After the shooting, Mar-Mar’s mother called and told him and appellant
that the police were there and they should not return to the area; appellant,
who had been living with Mar-Mar’s mother, did not return. (Notes of
testimony, 11/1/12 at 194-198, 207-208.) Between 7:00 a.m. and
8:00 a.m., Detective William Holmes and other officers went to the area to
conduct a neighborhood survey and try to find witnesses. (Notes of
testimony, 11/2/12 at 7.) After speaking to Mar-Mar’s brother, Shakir,
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Detective Holmes spoke to Modesty Ligon, who lived at 3000 Mifflin Street.
(Id. at 12.) As they spoke, a man with shoulder-length dreadlocks ran from
the area behind Mar-Mar and Ligon’s house, jumped a fence, got in a car,
and sped away. Detective Holmes did not see his face. (Id. at 13-15.)
Lizette testified that she did not know of any other person in the area
besides appellant who wore dreadlocks down to their shoulders. (Id. at
124, 162.)
Colon was brought to the police station three and a half hours after the
shooting and gave a statement about six hours after the shooting. (Notes of
testimony, 11/5/12 at 26.) In her statement, Colon told the police that she
“seen the whole thing.” (Id. at 28.) She told the detectives that she did not
know the men who shot the victim but she “got a good look at them.” (Id.)
She explained that they left Lizette’s house and as they pulled away, the
victim stated: “We gonna straighten this shit out once and for all . . . the
niggas down here are jealous, I’m tired of this shit. They calling my boy a
liar.” (Id. at 33.)
They parked across the street from the house and three guys were
standing on the porch; Colon described appellant’s clothing and appearance,
and that of his cohort, in great detail. Colon stated the first man she
observed was heavyset, 20 to 30 years old. (Id. at 34.) She stated the
second man, appellant, was tall, 19 to 22 years old, approximately 6 feet
2 inches tall with brown skin. (Id. at 34-35.) Colon told the detectives that
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appellant did not have a defined beard but did have braided hair parted in
the middle and down to his shoulders. (Id. at 35.) Appellant was wearing a
white T-shirt and dark colored shorts, which were almost capri length.
(Id.)2 Colon described the third person, who she claimed was arguing with
the victim earlier on the side of his sister’s house, as approximately 6 foot
and was approximately 18 to 19 years old. This man had dark skin and a
short haircut; he was also wearing a white shirt and dark capris. (Id.)
In her statement, Colon claimed that the boy with the braids walked
behind them and kept saying “come on back” to the victim. (Id. at 36.)
“That’s when the boy with the braids came out with the gun. He fired like
two shots at [the victim] and then I took off.” (Id.) She claimed that the
man who initially argued with the victim was next to the shooter. (Id. at
40.) Colon identified the “guy who was with the guy with the braids” from a
photo array. (Id. at 41.)3 Four days later, the detectives showed Colon an
array of eight photographs. She told the detectives that “number 7
[appellant] looks like the guy who shot [the victim] but his braids were a
2
At trial, Colon stated these were not the exact answers she gave to the
police. (Id. at 37-39.) During her direct testimony, she stated that one
person had long hair and another had short hair: “I don’t know if it was
dreads, if it was braids. [The police] kept interrogating me if it was dreads,
if it was braids. I don’t know.” (Id. at 23.) Colon also denied seeing the
shooters’ faces. (Id.)
3
Appellant denied making this identification at trial. (Id. at 41.)
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little longer.” (Id. at 50.) She signed the photograph and wrote in it, “the
guy who did the shooting.” (Id. at 50-64, 137-142.)4
Little talked to the police he provided a statement wherein he
explained the following:
[The victim] drove off down Corlies Street to Mifflin
and pulled over by the stop sign on Mifflin. He got
out of the car and walked right over to the guy Mar’s
house who lives there. I was still in the back seat of
the car. I then saw [the victim], [Mar-]Mar’s friend
Man-Man walking toward the side of Mar’s house. I
didn’t know what was going on so I got out and
walked back there on the side with them. [The
victim] and Mar was standing there talking and
Man-Man was just standing there not saying
anything.
The next thing I remember was the girl coming out
of the car and coming over to tell [the victim] to
come on. [The victim] then started walking away
from where Mar and Man-Man were and that’s when
I heard a loud gunshot. I took off running.
Notes of testimony, 11/1/12 at 260.5 Little told the police he did not see
who fired the shots and did not see the gun, but averred that the shots
came from where appellant and Mar-Mar were standing. (Id. at 152, 267.)
When asked if he knew of any problems the victim was having with Mar-Mar
4
At trial, Colon denied that she signed the photograph. She testified that
when Detective Burns had her sign the page acknowledging that she had
seen the photo array, the page was blank. She also testified that she did
not write, “the guy who did the shooting” on the photograph. (Id. at 50-53,
84.)
5
Little denied that the victim parked at Mar-Mar’s house and that he ever
saw Mar-Mar or appellant. (Id. at 265-267.)
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or Man-Man, Little stated “they was jealous of him or something. [The
victim] had a nice car and always had pretty girls with him.” (Id. at 270.)6
In his statement, Little stated he had known Mar-Mar and appellant for
approximately 4 years. He did not remember what they were wearing the
night of the shooting. However, he said Mar’s hair was cut close and
appellant’s was in dreads. (Id. at 273.) Little was shown photographs and
identified Mar-Mar and appellant. (Id. at 274-276.)7
Mar-Mar’s mother testified that she knew appellant extremely well.
Upon seeing the photo of appellant, she told the police that it was an
accurate description of appellant but that “[appellant’s] hair is a little longer
now, same style, just longer.” (Notes of testimony, 11/1/12 at 213-220.)
PROCEDURAL HISTORY
On August 12, 2009, the police obtained an arrest warrant for
appellant; and on August 26, 2009, appellant turned himself in to the police.
Consistent with his arrest photograph, Detective Burns stated that in August
of 2009, appellant was wearing his hair in a “dreadlocked” style. No arrest
warrant was issued for Mar-Mar. Appellant was charged with first degree
murder, conspiracy to commit murder, several violations of the uniform
firearms act, and possessing an instrument of crime.
6
At trial, Little denied making this statement to detectives. (Id. at 270.)
7
At trial, Little did not recall making these identifications and denied
knowing Mar-Mar or appellant. (Id. at 275-277.)
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A March 2, 2012 jury trial resulted in a hung jury. Thereafter, a jury
trial commenced on November 1, 2012. The parties stipulated that
appellant was not licensed to carry a firearm. On November 9, 2012,
appellant was found guilty of first degree murder and carrying a firearm in
public in Philadelphia; the remaining charges were nolle prossed.
Appellant was sentenced to a mandatory term of life imprisonment without
parole on the homicide charge and did not receive any additional sentence
on the remaining charge. On November 15, 2012, appellant filed a
post-sentence motion, which was denied on December 12, 2012. Appellant
filed a timely notice of appeal on December 21, 2012, and raises the
following issues on appeal:
I. Under the Fifth and Fourteenth Amendments of
the U.S. Constitution as well as Article I, § 9 of
the Pennsylvania Constitution, did the Trial
Court erroneously deny Appellant’s mistrial
motion where the prosecutor’s opening
statement improperly alleged that Appellant
did not speak to the police because he knew he
was “guilty” of the murder?
II. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, were
Appellant’s convictions supported by
insufficient evidence where the prosecution
failed to establish beyond a reasonable doubt
that Appellant was responsible for the fatal
shooting?
III. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously conclude that Appellant’s
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convictions were not against the weight of the
evidence?
IV. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously deny Appellant’s mistrial
motion where the prosecution summation
improperly (1) argued that there were “implied
threats” against witnesses without any
“supporting” evidence in the record; and
(2) referred to defense counsel’s arguments as
“tactics and trickery?”
V. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously permit the prosecution to
bolster the testimony of a prosecution witness?
VI. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court err where it provided an incomplete
“circumstantial evidence” charge?
Appellant’s brief at 4-5.
The first issue presented is whether the trial court erred in denying his
motion for a mistrial; appellant claims the prosecution made a reference to
appellant’s “pre-arrest silence” in the opening statement. (Appellant’s brief
at 24.) After a review of the record, we agree with the Commonwealth that
appellant’s constitutional pre-arrest right to silence was not violated.
We review the trial court’s decision to deny a mistrial for an abuse of
discretion. Commonwealth v. Boone, 862 A.2d 639, 646 (Pa.Super.
2004). A mistrial is necessary only when “the incident upon which the
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motion is based is of such a nature that its unavoidable effect is to deprive
the defendant of a fair trial by preventing the jury from weighing and
rendering a true verdict.” Commonwealth v. Parker, 957 A.2d 311, 319
(Pa.Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009).
Appellant argues that in her opening statement, the prosecutor stated
that Mar-Mar’s mother told appellant and Mar-Mar that the police wanted to
talk to appellant and directs our attention to the following:
And [Mar-Mar’s mother] gets messages to [Mar-Mar
and appellant], the cops are looking for you, and she
tells them don’t come around here. And guess
what? They don’t because they know that they’re
guilty and they know that they were just involved in
this murder.
Notes of testimony, 11/1/12 at 48. Appellant avers “the prosecutor’s
commentary referred to Appellant’s failure to ‘talk’ to homicide detectives.
The prosecutor’s commentary was impermissible.” (Appellant’s brief at 25.)
Appellant relies on Commonwealth v. Molina, 33 A.3d 51 (Pa.Super.
2011) (en banc), appeal granted in part, 51 A.3d 181 (Pa. 2012), in
which this court held that the defendant’s pre-arrest, pre-Miranda8 silence
could not be used as substantive evidence of guilt at trial. In Molina, the
defendant refused to go to police headquarters to be interviewed by the
police. Id. at 54. At closing argument, the Commonwealth argued that the
defendant’s refusal to cooperate with detectives should factor into the jury’s
8
Miranda v. Arizona, 384 U.S. 436 (1966).
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decision. Id. The Molina court held that the Commonwealth cannot use a
non-testifying defendant’s pre-arrest silence to support its contention that
the defendant is guilty of the crime charged as such is an impermissible
burden on the exercise of the Fifth Amendment privilege. Id. at 62.
We disagree with appellant’s argument that the prosecutor’s comment
implicated his pre-arrest right to silence due to the prosecutor’s use of the
word “talk” and find no basis for a mistrial. Rather, we agree with the trial
court that the prosecutor’s remarks were concerning appellant’s
concealment, which is proper evidence of consciousness of guilt.
Commonwealth v. Coyle, 203 A.2d 782, 289 (Pa. 1964). Conduct of an
individual indicating consciousness of guilt is not a testimonial statement of
guilt protected by the privilege against compulsory self-incrimination. See
Commonwealth v. Robinson, 324 A.2d 441, 450 (Pa.Super. 1974)
(admission into evidence of defendant’s refusal to submit to breathalyzer
test under implied consent law does not violate defendant’s Fifth
Amendment privilege against self-incrimination). For example, our courts
have explained that flight, escape from custody, and the suppression of
evidence are non-communicative acts unprotected by the privilege against
compulsory self-incrimination. Id; Commonwealth v. Collins, 269 A.2d
882 (Pa. 1970). Thus, unlike the defendant in Molina who refused to be
interviewed by detectives, appellant concealed his whereabouts. There is no
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evidence that appellant was confronted by the police and refused to answer
questions. Cf. Molina, supra.Where evidence exists that a defendant committed a crime, knew he
was wanted, and fled or concealed himself, such evidence is admissible to
establish consciousness of guilt. See Commonwealth v. Tinsley, 350 A.2d
791, 792-793 (Pa. 1976). A defendant’s knowledge may be inferred from
the circumstances attendant to his flight. See Commonwealth v. Rios,
684 A.2d 1025, 1035 (Pa. 1996); see also Tinsley, 350 A.2d at 793
(concluding that such an inference was justified where the evidence revealed
that the defendant abandoned his normal pattern of living without
explanation and could not be located at his residence or place of
employment or through contacts to his relatives). Here, there was evidence
that appellant disrupted his normal pattern of living following the murder
and his knowledge that he was a person of interest could be inferred from
the testimony that the police informed Mar-Mar’s mother that they wanted
to talk to him.
Next, appellant claims that the evidence was insufficient to sustain his
convictions. (Appellant’s brief at 29-38.) Appellant avers that none of the
Commonwealth’s witnesses positively identified appellant as the shooter nor
did any forensic evidence link him to the crime.
“A claim challenging the sufficiency of the evidence is
a question of law.” Commonwealth v. Weston,
561 Pa. 199, 749 A.2d 458 (2000). “For questions
of law, our scope of review is plenary.”
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Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d
618 (2007). “In reviewing a sufficiency challenge, a
court determines whether the evidence, viewed in
the light most favorable to the verdict winner, is
sufficient to enable the fact-finder to find every
element of the crime beyond a reasonable doubt.”
Id.Commonwealth v. Robinson, 936 A.2d 107, 108 (Pa.Super. 2007),
appeal denied, 948 A.2d 804 (Pa. 2008).
The Commonwealth presented statements from eyewitnesses to the
police that appellant had been the shooter. Testimony was presented that
appellant and his cohort argued with the victim. When the victim began to
walk away, appellant followed him and repeatedly urged him to come back.
When the victim declined to do so, appellant repeatedly shot him in the
back. The jury was free to discount appellant’s theory and to credit the
testimony of the witnesses who positively identified appellant as the
gunman. Accordingly, we hold that sufficient evidence was presented to
permit the jury to properly conclude that appellant was guilty of the first
degree murder beyond a reasonable doubt.
Appellant also argues that he did not match the description of the
shooter. (Appellant’s brief at 32.) Appellant points to Colon’s testimony
that she told the police the shooter had “braided hair parted in the middle
and down to his shoulders.” Appellant’s claim is reliant upon his assertion
that there is a difference between “braided hair” and “dreadlocks.” (Id. at
32-33.) Appellant, however, ignores that Colon saw appellant’s photograph
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and identified him as the shooter. Additionally, Little testified that the shots
came from where appellant and his cohort were standing. Such testimony is
sufficient to establish appellant’s identity.
The third issue presented is whether the trial court abused its
discretion in denying appellant’s weight of the evidence claim. Appellant
challenges the weakness of the identifications made by Lizette, Colon, Little,
and Detective Holmes. We find appellant’s claims concerning Lizette and the
detective to be waived as appellant failed to raise these contentions at the
conclusion of trial or in his post-sentence motion. Rather, in his
post-sentence motion, appellant presents the following argument:
Here, the Commonwealth relied upon the testimony
of two witnesses: Jennifer Colon and Kelcey Little.
The testimony of these witnesses were [sic] against
the weight of the evidence. To illustrate, Ms. Colon
provided contradictory statements to the police.
Furthermore, Mr. Little stated to the police in his
August 6, 2009 statement to the police that he had
heard shots but did not see anyone shooting. He
added that he had not seen [appellant] with a gun
that night. Mr. Little’s testimony did not contradict
Mr. Little’s assertion that he had not seen [appellant]
shoot the decedent.
Docket #11. Thus, we limit our review to appellant’s claims concerning
Colon and Little and the remaining arguments included in his brief are
waived. Pa.R.A.P. 302(a); Commonwealth v. Kane, 10 A.3d 327, 333
(Pa.Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011) (no review of
theory of relief distinct from one raised at trial).
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Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
omitted) (citations omitted).
Appellant argues that Colon’s testimony was unreliable and she
provided contradictory statements to the police. As stated previously, Colon
gave a detailed description of appellant to the police and also admitted that
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she was intoxicated. Likewise, appellant takes issue with Little’s testimony
and claims that Little lied.
The jury, as fact-finder, was in the best position to evaluate the
credibility and veracity of the witnesses. Appellant’s defense at trial was
misidentification. Testimony was presented that witnesses identified
appellant from a photographic array. The trial court found that when
viewing the testimony of the witnesses and all of the evidence presented in
conjunction with one another, the court could not find that the verdict was
against the weight of the evidence. (Trial court opinion, 6/18/13 at 13.) In
sum, the jury’s verdict did not shock the trial court’s sense of justice and
was amply supported by credible evidence. No relief is due.
The fourth issue before this court is whether the trial court erroneously
denied appellant’s motion for a mistrial in response to the prosecutor’s
summation. Appellant alleges that the prosecutor improperly argued that
“implied threats” existed without evidence to support such a statement and
improperly referred to the arguments of defense counsel as “tactics and
trickery.” After a thorough review of the record, the briefs of the parties,
the applicable law, and the well-reasoned opinion of the trial court, it is our
determination that there is no merit to this issue. The trial court’s opinion
comprehensively discussed and properly disposes of this matter and,
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accordingly, we adopt that opinion as our own and affirm on that basis. 9
(Id. at 6-8.)
In the fifth issue presented, appellant argues Lizette’s testimony that
she was telling the truth was improper bolstering by the prosecutor.
(Appellant’s brief at 49-54.) We agree with the Commonwealth that
appellant’s claim is waived and, even if preserved, meritless.
Appellant’s argument centers on the prosecutor’s question to Lizette,
“are you telling the truth?” to which she answered “Yes, I am.” (Notes of
testimony, 11/2/12 at 160.) Our review of the notes of testimony indicates
that appellant did not object when the prosecutor asked this question to
Lizette. (Id.) While the defense did object to two other questions that
pertained to the cross-examination of this witness, the witness did not
answer either question as the first objection was sustained and a side-bar
was held following the second objection. Appellant did not pose an objection
during the prosecutor’s questioning of Lizette on the basis of improper
bolstering. Therefore, this issue has been waived. See Pa.R.A.P. 302(a);
Commonwealth v. Rivera, 983 A.2d 1211, 1229 (Pa. 2009) (“This Court
has held that the lack of a contemporaneous objection constitutes a waiver
of any challenge to the prosecutor’s closing remarks.”).
9
Additionally, we note the trial court’s cautionary instruction was sufficient
to overcome any potential prejudice that may have resulted. It is well
settled that a jury is presumed to follow the instructions of the court.
Commonwealth v. Natividad, 938 A.2d 310, 326 n.9 (Pa. 2007).
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Moreover, had appellant preserved his claim, no relief would be due.
The Pennsylvania Supreme Court has stated that “[i]mproper bolstering or
vouching for a government witness occurs where the prosecutor assures the
jury that the witness is credible, and such assurance is based on either the
prosecutor’s personal knowledge or other information not contained in the
record.” Commonwealth v. Smith, 995 A.2d 1143, 1157 (Pa. 2010).
Here, the prosecutor elicited the basis for the witness’ frustrated demeanor
on cross-examination, and the witness asserted she was not lying. The
prosecutor did not offer her personal opinion about Lizette’s veracity, nor did
the Commonwealth indicate that evidence not before the jury supported the
testimony. As the court stated in Commonwealth v. Stokes, 38 A.3d 846,
867 (Pa.Super. 2011), “A witness’s own personal assurance that he would
not lie. . . . is not impermissible bolstering, as the jury must nevertheless
decide if the witness himself is being truthful.”
The last issue before this court is whether the trial court erred in
instructing the jury on circumstantial evidence. Appellant argues the court
did not state that before the jury could draw inferences from facts, they
must first conclude those facts are true. (Appellant’s brief at 54-55.)
We begin by noting that counsel is not entitled to the jury instruction
of his choice. Commonwealth v. Ohle, 470 A.2d 61 (Pa. 1983). The
wording of an instruction is vested in the broad discretion of the trial judge
and is proper as long as it is adequate, accurate, and clear. Id. at 70.
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Upon examination of the charge as a whole, we find it was fair and
proper. The trial court’s opinion comprehensively discussed and properly
disposes of this matter and, accordingly, we adopt that portion of its opinion
as our own and affirm on that basis.10 (Trial court opinion, 7/18/13 at 16.)
We deny the Commonwealth’s petition for permission to file a
response to appellant’s reply brief as it is unnecessary. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
10
Again, it is well settled that a jury is presumed to follow the instructions of
the court. Natividad, supra.
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Circulated 11/24/2014 12:27 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA
v. CP-51-CR-0007513-2010
JAMES WILLIAMS
FILED
JUN 18 lOl3
CrIminal Appeals Unit
OPINION First Judicial Oistrict of ?A
CARPENTER, J. June 18, 2013
Defendant James Williams ("Williams") was charged with and found guilty of
Murder of the First Degree (H1) and Carrying Firearms in Public in Philadelphia (M1) on
bill of information CP-51-CR-0007513-2010. These charges arose from the shooting
death of Nathaniel Nazario on August 4, 2009 near the intersection of New Hope Street
and Mifflin Street in the City and County of Philadelphia. This court requests that the
Superior Court uphold the convictions and affirm the sentence imposed in this matter.
PROCEDURAL HISTORY
On November 1, 2012, Williams elected to exercise his right to a jury trial and
pled not guilty to the above listed charges. On November 5, 2012, this court denied
Williams' Motion for Judgment of Acquittal at the close of the Commonwealth's case.
On November 9, 2012, the jury found Williams guilty of First Degree Murder (H1) and
Carrying Firearms in Public in Philadelphia (M1). At the conclusion of the trial, this court
Circulated 11/24/2014 12:27 PM
sentenced Williams to the mandatory term of Life imprisonment without parole on the
homicide charge and did not impose any additional sentence on the remaining charge.
On November 15, 2012, Williams filed a Post-Sentence Motion, which this court denied
on December 12, 2012.
On December 21, 2012, this court received a Notice of Appeal and on February
7, 2013, upon completion of the notes of testimony, Williams was served an Order
directing him to file a concise statement of the matters complained on appeal pursuant
to Pa.RAP.1925(b). On February 14, 2013, this granted Williams' Motion for Extension
of Time to File a 1925(b) Statement. On March 1,2013, this court received Williams'
1925(b) response which raised the following issues on appeal:
- --l1,-ln-violati()n of. Appellanfs-r;ght.against.selfoincriminatiolUJndeLlbaBfth'--______
and Fourteenth Amendments of the U.S. Constitution as well as Article
I, § 9 of the Pennsylvania Constitution, [this] court denied Appellant's
timely motion for a mistrial where the prosecutor's opening statement
remarked that Appellant and his alleged co-conspirator did not speak
to the police because "they know that they're guilty and they know that
they were just involved in this murder." (N.T. 11/1/12 at 48-49,54-68).
2. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, [this] court denied Appellant's
timely requests for a mistrial where the prosecution summation
improperly (1) argued that there were "implied threats" against
witnesses where there was no evidence in the record concerning
'implied threats"; (2) referred to Appellant's arguments as "tactics and
trickery"; and (3) used Powerpoint to visually reinforce every point in
the prosecution summation. (NT 1117/12 at 81-82, 121-22). The
cautionary instructions that [this] court provided concerning the
"implied threats" did not sufficiently cure the unfair prejudice resulting
from the prosecution's comments. (NT 1117112 at 151-52).
3. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, Appellant's convictions were
supported by insufficient evidence where (1) no Commonwealth
witness made a positive identification of Appellant as the shooter; and
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(2) no forensic evidence (e.g. ballistics) linked Appellant to the fatal
shooting.
4. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Conslitution as well as Article I, §
9 of the Pennsylvania Constitution, Appellant's convictions were
against the weight of the evidence where all of the Commonwealth
witnesses (1) were not present at the homicide; (2) at the lime of the
homicide were under the influence of controlled sUbstances which
impaired their ability to accurately observe and recall events; andlor (3)
gave mulliple inconsistent statements.
5. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constrtution as well as Article I, §
9 of the Pennsylvania Conslitulion, [this] court overruled Appellant's
timely objection to the Commonwealth's bolstering where the
Commonwealth asked its witness. "Can you explain what it is about the
way [Appellant's counsel] asks you questions that is so frustrating."
(N.T. 11/2112 at 159-60).
- - - - - - -60-1 n- violation .-of-Appellant~ue -p rocess --+ights-unde L1b!LSixtlLanud__
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, [this] court overruled Appellant's
timely objection to [this] court's jury instructions that failed to make it
sufficiently clear that (1) the Commonwealth must prove all of the
elements of the charged offense; and (2) before the jurors may draw
inferences from facts (e.g. circumstantial evidence), the jurors must
first conclude that these facts are true. (N.T. 111711 2 at 139-143. 180).
FACTS
Late In the evening on August 4,2009, the viclim, Nathaniel Nazario ("Nazario")
brought a friend of the family, Jennifer Colon ("Colon"), to visit Nazario's sister, lizzette,
at their mother's house on New Hope Street, which Is "catty corner" from Mifflin Street.
Soon thereafter, Markeem Williams ("Mar" or "Markeem") walked from his house on
Mifflin Street toward New Hope Street and started having a conversation with the
Nazarios's next door neighbor. While talking with the neighbor, Markeem was on his
cell phone with defendant James Williams (' Man-Man"), who was on the porch of
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Markeem's house on Mifflin Street. During the time that Markeem was talking with the
neighbor on New Hope Street, Nazario joined the conversation. For a few moments,
the neighbor, Markeem and Nazario were conversing and then the neighbor walked
away. Things between Nazario and Markeem became heated. Throughout the
conversation, Markeem remained on his cell phone with defendant Man-Man, who
continued to stand on Markeem's porch On Mifflin Street. Eventually, Markeem and
Nazario ended their conversation. Markeem walked back toward his house and Nazario
and Colon drove away.
Sometime thereafter, Nazario and Colon drove to Kelcey Little's ("little") house
on Corlies Street, which was about four blocks from the intersection of New Hope and
_ _ Mifflin-Street..and _asked..litt l ejo..takea:dtive ~~Tbejbree..then pm.cee.dedjo the 3000
block of Mifflin Street. Nazario and Little got out of the car, while Colon remained
inside. Nazario and Little walked up to a fence where Markeem and Man-Man met
them. An argument broke out, and Colon exited the car to ask Nazario for a Cigarette
and to take her home. Nazario, Colon, and Little were returning to the car when Man-
Man shot Nazario. Nazario sustained eight gunshot wounds to his back, chest, and
right arm, as well as a graze gunshot wound to the back of his right shoulder. When
officers arrived on scene, in response to a radio call for a shooting, Nazario was
unresponsive and he was pronounced dead.
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DISCUSSION
Denial of Motion for a Mistrial
Generally, comments by a prosecutor do not constitute reversible error 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 that they could not weigh the
evidence objectively and render a true verdict' The decision to grant a mistrial is within
the discretion of the trial judge, who is in the best position to determine the effect of the
prosecuto(s remark on the jury: In evaluating whether such remark constituted
prosecutorial misconduct, thus warranting the grant of a mistrial , the trial court shall
employ a harmless error standard.' The trial court's decision to deny a request for a
- ----mistrial.will not-be-r,,"versed-6xcepUor an-abuse..oldiscretion_4 _ __ -------
A. Prosecutor's Opening Statement
On appeal, Williams claims that this court erred in denying his motion for a
mistrial when the prosecutor remarked in her opening statement that he and his alleged
co-conspirator did not speak to the police because "they know that they're guilty and
\heyknow that they were just involved in this murder: ' This court disagrees. The
courts of this Commonwealth have long held that when a person commits a crime,
knows that he is wanted, and subsequently conceals himself, such conduct is proper
evidence of consciousness of guilt" The prosecutor's sta tement at issue in the instant
1 Com. v. Simmons. 662 A2d 621 , 639 (Pa . 1995).
2 Com. v. Brown, 711 A.2d 444,454-55 (Pa. 1998).
3 Com. v. Judy, 978 A.2d 1015. 1020 (Pa. Super. CI. 2009).
4 rd.
'N.T. 11/1/12 at 46:20·22 ..
• Com. v. Coyle, 203 A.2d 782, 789 (1964).
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appeal was made in the context of her argument that the evidence to be presented at
trial would demonstrate the defendants consciousness of guilt. Such argument was
properly made and did not prejudice the jury such that the jury was precluded from
weighing the evidence objectively and rendering a true verdict; therefore, Williams'
assertion that this court erred in denying his motion for a mistrial must fail.
B. Prosecutor'·s Summation
Similarly, Williams claims that this court erred in denying his motion for a mistrial
during closing arguments when the prosecutor argued that there were "implied threats"
against witnesses, referred to Williams' arguments as "tactics and trickery", and used
- - --4Powerfloint- slides to--Visually-reinforce-el/el¥~oinLjn-heLsummalian..-.JbilLc.aur1_ __
disagrees. A prosecutor has reasonable latitude during closing argument to advocate
the Commonwealth's case, respond to arguments of opposing counsel, and fairly
present the Commonwealth's version of the evidence to the jury.7 A prosecuto~s
arguments are fair if they are supported by the evidence or use inferences that can
reasonably be derived from the evidence'
With regard to the "implied threats" at issue in the instant matter, the prosecuto~s
statements about the culture of the city and the difficult situation faced by witnesses in
criminal cases were made in an effort to explain the concept of witnesses "going south".
These statements offered a fair explanation of the testimony presented to the jury and
were a fair response to the defense's clOSing remarks that made alternative implications
of the witnesses' testimony. Defense counsel stated ''You've heard a lot of testimony,
7 Com. v. Cooper, 941 A.2d 655, 668 (Pa. 2007).
• COm. v. Judy, 978 A.2d 1015, 1020 (Pa. Super. Ct. 2009).
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people getting on the stand under oath, sworn to tell the truth, calling on a higher
authority than what's in this courtroom to help them be straight up and honest. Have
you heard that from the so called eyewitnesses in this case?'" These remarks implored
the jury to view the evidence in one manner, while the prosecutor's arguments offered a
different perspective. Most importantly, however, the prosecutor explicitly told the jury
that "there's no evidence in this case that the defendant or anyone on behalf of the
defendant specifically threatened any of these witnesses[.]"'o Moreover, this court
provided the jury with the following cautionary instruction:
And I think that in the course of arguments there may have been mention
to you about whether, you know, the culture on the street, about why
people do or don't come to court. Remember, ... it's your common sense
and human experience that evaluates why someone came to court and
-- ~- ---whaI-tAeir-iestimoRy..was an(j-583 A.2d 459, 470 (Pa. Super. 1990).
\3 N.T. 111712012 at 77:11 -1 3.
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that referred to the prosecutor as a magician 14 and described her as using her "little
tweezers"" to pick informa~on out of a statement. Thus, in the context of the trial, Ihe
prosecuto(s closing remarks were a fair response to the defense's earlier commentary
and did not prejudice the jury.
Finally, with regard to the prosecutor's use of PowerPoint slides during her
closing remarlId."N.T. 11n12012 at 57:5-12.
"N.T. 111712012 at 50:22-25: 51 :2-25; 52:2-10.
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beyond a reasonable doubt 17 In applying this test, the Superior Court may not weigh
the evidence and substitute its judgment for that of the fact-finder. The facts and
circumstances established by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless, the evidence is so weak and inconclusive that as a matter of law, no probabllrty
of fact may be drawn from the combined circumstance." The Commonwealth may
satisfy its burden of proving an element of the crime beyond a reasonable doubt through
the use of wholly circumstantial evidence. In applying the test, the whole record must
be evaluated and all evidence received must be considered"
On appeal, Williams asserts that the evidence was insufficient to support his
conviGliens·because noCammonwealth..witness.positively identifiedJ:lim..as.tbe.sbooter_ __
nor did any forensic evidence link him to the fatal shooting. This court disagrees. The
evidence presented at trial established that both Jennifer Colon and Kelcey Little were
present at the time of the shooting and both individuals gave statements to police.
Colon's statement indicated that she was present at the time of the shooting, as per her
response "Yes. I was right there. I seen the whole thing."" It also provided the following
description of what had happened immediately prior to the shooting:
Then we just all started walking back to the car. Me and Nate were
together and the other boy that we picked up was just ahead of us. As we
got back to the car, the boy with the braids was walking right behind us
and kept saying , 'Come on back: trying to talk to Nate. Nate just said,
We're gonna leave it at that, ain't no more to say.' That's when the boy
with the braids came out with the gun. He fired like two shots at Nate and
11Com. v. Heberling. a7B A.2d 794 , 795 (Pa. Super. 1996) (citing Com. v. Williams, 650 A.2d 420 (Pa.
1994)).
" Com. v. Cassidy, 668 A2d 1143, 1144 (Pa. Super. 1995).
"Com. v. Valelle, 613 A2d 548, 549 (Pa. 1992).
., N.T. 111512012 at 125:19·20.
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then I took off. There may have been more shots as I was running but I'm
not sure. I just kept running.2'
Colon was able to identify a photo of Mar as "the guy that Nate was arguing with outside
his sister's house(,) [t]he same guy that was with the boy in Ihe braids when he shot
Nate"22 and a photo of Man-Man that she labeled as "the guy who did the shooling: 23
Similarty, Little's statement indicated that he was present at the time of the shooting, as
per his response "Yes. I was there. I ran as soon as I heard the first shot."" It also
provided that the shots "came from right where Mar and Man-Man were"" and when
asked to describe Mar and Man-Man's hairstyles he indicated that "Mar has a close cut
and Man-Man's hair is in dreads .,,2. Little then identifted photos of both Mar and Man-
Man, by those names, to police.
Although, at trial, Colon and Little disavowed many of the averments made in
their respective stateme nts to police, their signed statements were properly admitted as
evidence at trial through the testimony of Detective Burns. Each of the statements was
admissible for its truth as a prior inconsistent statement that was signed and adopted by
the declarant. 27 Moreover, the Pennsylvania Supreme Court has held that where a
wttness at trial recants a statement he previously made to police, the jury is "free to
evaluate both the [witness's) statement to police as well as his testimony at trial
recanting that statement, and [is) free to believe all, part, or none of the evidence.""
The Court specified that '1he mere fact that [an eyewitness] recanted a statement he
"N.T.II/512012 aI131:17-25; 132:2-5.
"N.T. 11/512012 aI133:14-16.
"N.T. 111512012 aI142:20-24.
"N.T. 111512012 aI141:21 -22.
2S N.T. 111512012 at 152:14-15.
"N.T.1115J2012 aI155:3-4.
" See Pa.R.E. 803.1 (1)(b).
" Com. v. Hanible, 836 A.2d 36, 39 (Pa. 2003) .
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had previously made to the police certainly does not render the evidence insufficient to
support [the] conviction."" Further, a reviewing court must consider any prior
inconsistent statements, properly admitted under Pa.R.E 803.1(1), in the same manner
as any other type of validly admitted evidence when determining if sufficient evidence
exists to sustain a criminal conviction.3o
In addition to the facts established by the eyewitnesses, Colon and little, the
other evidence presented at trial included the four fired cartridge casings, all from the
same nine-millimeter gun , that were found at the scene as well as the statements and
testimony of lizelle Nazario and Elissa Barber. At the time of the shooting, Elissa and
lizelle were in nearby houses and heard the gunshots. Lizelle gave a statement to
- - -police detailing-the events-Jeading-up t"~he-sh""ting-and-identified.a-photo-52 A.3d 1139, 1171 (Pa. 2012).
31N.T. 11/212012 at 105-107.
" N.T. 11/112012 at 189-195.
II
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Weight of the Evidence
The standard of review for a challenge to the weight of evidence is well
settled in Pennsylvania. The fact finder is the exclusive judge of the weight of
evidence, is free to believe all, part, or none of the evidence presented, and
detennines the credibility of the witnesses" An appellate court cannot substitute
its judgment for that of the fact finder.'" A verdict will be reversed and a new trial
granted only where the verdict is so contrary to the evidence as to "shock one's
sense of justice.'" A new trial shoold not be granted because of a mere conflict
in the testimony or because the judge on the same facts would have come to
another conclusion .36 Pennsylvania appellate courts have repeatedly
- ··--emphasized-that-"[ojne-of-the-Ieast- assailable-,..,asllns..fof'.{lraRting..or...denying..a-.•. - - __
new trial is the lower court's conviction that the verdict was or was not against the
weight of the evidence.,37
On appeal, Williams asserts that his convictions were against the weight of the
evidence because the Commonwealth wijnesses were not present at the time of the
killing, they were under the influence of controlled SUbstances at the time of the killing,
and they gave multiple inconsistent statements. This court disagrees. As discussed at
length above, the jury heard testimony from eyewitnesses Colon and Little as well as
testimony from lizette and Elissa, who were in the neighborhood. In analyzing whether
the jury verdict is against the weight of the evidence, this court cannot isolate the
" COm. v. Champney. 832 A.2d 403. 408 (Pa. 2004).
34 Id." Com. v. Passmore. 857 A.2d 697, 708 (Pa. Super. 2004), appea/ danied. 868 A.2d 1199 (Pa. 2005).
3I!J Thompson v. City of PhiladelphiB, 493 A2d 669, 673 (Pa. 1985).
J7 Sea Com. v. Forbes, 867 A..2d 1268, 1273 (Pa. Super. 2005); See ./so Com v. Brown. 648 A.2d 1177(Pa. 1994)
12
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testimony of these witnesses from one another or from other evidence, as the
determination requires an assessment of all evidence presented at trial. Individually,
the statements and photo identifications given by each witness may appear to want for
more descriptive details; however, when viewed in conjunction with one another, in the
context of the entire trial, the similarities between the descriptions and how they
corroborate One another are significant. While a conviction based upon anyone of
these witnesses' testimony, alone, may have been against the weight of the evidence, it
does not mandate a finding that, viewing the testimony as a whole in the context of all
other evidence admitted at trial, the verdict is against the weight of the evidence.
Further, the jury was free to evaluate the various inconsistencies in the witnesses'
- - --statements-and-was-free-to-evaluate the-evidenGe-related -to..witness--use..oLcoDtrolied _ _
substances in its assessment of the weight of the evidence presented at trial. The jury
verdict, reflecting such assessment, was not so contrary to the evidence presented at
trial as to "shock one's sense of justice." Therefore, this court finds no merit in Williams'
challenge to the weight of the evidence presented at trial.
Overruling of Objection to Commonwealth Bolstering
It is well settled in the Pennsylvania courts that as long as a prosecutor does not
assert personal opinions, he or she may, within reasonable limits, comment on the
credibility of a Commonwealth witness.'· Our Supreme Court has opined that this is
especially true when the credibility of the witness has been previously attacked by the
defense." Such commentary is proper because the prosecutor is permitted to respond
"Com. v. Simmons, 662 A.2d 621, 639 (Pa. 1995).
" Id.13
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to the arguments of the defense and "is free to present his or her case with logical force
and vigor:"O A prosecutor, however, must be cognizant to abstain from improper
commentary on a witness' credibility via his own statements or via the elicitation of
improper comments from a Commonwealth witness."
In the instant appeal, Williams avers that this court improperly overruled his
objection to bolstering when the Commonwealth asked its witness, "Can you explain
What it is about the way [defense counsel] asks you questions that's so frustrating?"
This court overruled the objection because the prosecutor was properly questioning her
witness, in the course of redirect examination, to clarify for the jury Why the witness
expressed such frustration during cross-examination. Defense counsel had properly
cross--examined-the witness-on-the-fwhat she-had-obsB"'edand_whalshe.llad, ____
reported, seeking "yes" or "no" responses, thereby highlighting inconsistencies andlor
omissions in an effort to attack her overall credibility as a witness. As a result, the
witness became frustrated in her responses. Thus, on redirect examination, the
prosecutor was free to respond to the attack on the witness' credibility by questioning
the witness as to why she had become frustrated in her responses and giving the
witness the opportunity to clarify any testimony that may have appeared confusing on
cross-examination .
Ove"uling of Objection to Jury Instructions
A trial court has broad discretion in phrasing its instructions to the jury and may
choose its own wording, provided that the law is clearly, adequately, and accurately
.. Com. v. Tedford, 691, 960 A.2d 1, 31-32 (Pa. 2008) (citing Com. v. Koehler, 737 A.2d 225. 240 (Pa.
1999) .
~1'd.
14
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presented to the jury." A trial court's instructions will constitute reversible error only
where there is an abuse of discretion or an inaccurate statement of the law'3 When
assessing a challenge to the trial court's instructions , a reviewing court must review the
charge as whole, not merely isolated fragments, to determine if it is fair and complete."
A. Commonwealth's Burden of Proof Beyond a Reasonable Doubt
On appeal , Williams asserts that this court erroneously overruled his objections
to this court's instructions to the jury. Williams claims that the instructions failed to
make it sufficiently clear that the Commonwealth must prove all of the elements of the
charged offense. This claim is without mer~ and is unsupported by the record. With
- - - -regard-to the-Gommonwealth's-burdeA-of-proof, this~urt-el(plained-numer701 A.2d 492. 511 (Pa . 1997) .
., Id."Com. v. Cook. 952 A2d 594, 626-27 (Pa. 2008); Com. v. HaWkins, 701 A.2d 492, 511 (Pa. 1997) .
.. N.T. 111712012 al 135:2-15; 137:23-25; 138:2-18 .
.. N.T.11171201 2 atI57:9-13; 167 4-17; 1704-11 ; 171 :9-11 ; 172: 13-16.
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B. Circumstantial Evidence
Similarly, Williams claims that this court's instructions on circumstantial evidence
were not sufficiently clear because this court did not specifically charge that "before
jurors may draw inferences from facts, the jurors must first conclude those facts are
true." This claim is also w~hout mer~ when the charge is read as a whole. This court
charged the jury to use their common sense and good judgment" This court then
instructed the jury that "before you can infer a fact, you must consider all of the
evidence in light of reason, experience and common sense and the other instructions
that I will be giving to you and have given to you about what it means on the credibility
of testimony .... • Also, when instructing the jury on assessing credibility, this court
- - - - instructed-the-jurors that- ~ou must-deGide-Credibility-and-weight~f.all.testimony.-and
that means you must decide whether you believe the testimony and how important you
think it is."" In consideration of all of these various portions of the charge, the jury had
ample instruction on how to weigh and assess the evidence, both direct and
circumstantial evidence.
CONCLUSION
For the reasons set forth in this Opinion, the Superior Court should affirm the
jury's finding of guilt and the sentence imposed in this matter. \
\ , ..l
., N.T.11f712012 aI139-140 .
.. N.T.llf712012 aI141-142 .
.. N.T.111712012 aI142-143.
16