Com. v. Waters, W.

J. A15033/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WESLEY WATERS, :
:
Appellant : No. 118 EDA 2014
Appeal from the Judgment of Sentence September 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0004959-2011
BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015
Appellant, Wesley Waters, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a jury
trial and convictions for robbery,1 conspiracy,2 violations of the uniform
firearms act,3 and possession of an instrument of crime.4 Appellant
contends that the court improperly limited his cross-examination by stating
that if he cross-examined the police on the extent of their investigation, then
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. §§ 6105(a)(1), 6108.
4
18 Pa.C.S. § 907(a).
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the testifying police officer could potentially disclose his prior robbery
conviction. He claims the court erred by allowing a police officer to opine on
whether Appellant acted like a robbery victim. Appellant challenges the
court’s refusal to issue a Kloiber5 instruction and the prosecutor’s comment
during her closing arguments. We affirm.
We adopt the facts set forth by the trial court’s decision. See Trial Ct.
Op., 8/25/14, at 1-3. Following a hung jury and mistrial, Appellant was
again tried by a jury. At the second trial, the following exchange transpired
during the direct examination of Officer Floyd Allen, the arresting officer who
was with her partner:
[Commonwealth]. You get a flash[6] for an armed robbery?
A. Yes.
Q. What do you guys do?
A. Proceed to the area. I happened to be around the
corner from there. Beings [sic] as though the flash said it
happened on Wayne and Seymour, I took Seymour Street
down. As I’m approaching Germantown Avenue, I see
[Appellant] to my left with the gray shirt on standing on
the corner with another male. They were at that point
5
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
6
“A flash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.
1986). Instantly, Officer Allen testified that Appellant and codefendant were
the only two in the area that matched the description in the flash
information, which was “two black males, one with a beard” and a blue,
green, or blue-green hoody. N.T., 7/3/13, at 49, 82-84.
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separating. The other male is starting to walk up Seymour
into the 14th. As I get closer, [Appellant] is making a
head and hand gesture, pointing like this like he has a
gun.
The court: I’m sorry. Repeat that, please.
[A.] Making a head and hand gesture, like the male going
to the left had a gun. So stopped [Appellant]. Put him in
my car for investigation. Went and stopped the other
male. Brought him back to the car. At that point [another
officer, Officer Sommerville, who had arrived at the scene
in response to the flash, see N.T. Trial, 7/3/13, at 91-92]
recovered a weapon which was a revolver [from a trash
can near codefendant Dominic Broadneck7].
* * *
Q. There’s a map behind you there. Can you show the
ladies and gentlemen of the jury the route that you took to
ultimately get to where [Appellant] and codefendant were?
A. This is Seymour here. Knox and Seymour. I basically
just came straight down from Wayne. Straight down
Seymour to Germantown Avenue. [Appellant] was
standing here on this corner. As I’m approaching this
corner, [Appellant] pointing to the other male who is
walking into the 14th District along alongside of I believe
it’s a church, if I’m not mistaken. There’s a trash can right
here which I see the other male stop at. As [Appellant’s]
pointing like this, I’m looking at the male. The male stops
at the trash can which is the side of the building and he
continues to walk. Again, I placed [Appellant] into my
vehicle for investigation purposes and stopped the other
male with the help of Officer Sommerville.
Q. Let me stop you for a second. Can you describe
[Appellant’s] demeanor as he’s standing on the corner kind
of like bobbing his head?
7
The record also indicates codefendant’s last name was Broadnax.
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A. He’s bobbing his head and pointing and making a
gesture that the other male had a gun, but he’s very cool
and very calm. And in my profession—
[Appellant’s counsel.] Objection. It’s not asking for
opinion evidence here.
The court: That’s fine. It’s denied.
[Commonwealth]. You can continue.
A. In my years of service normally when people were
getting robbed, they are excited when they see the police.
They are jumping up and down. They are flagging us
down: Officer, Officer, this man had a gun. He was not
exited [sic] or anything. So for investigation purposes, I
placed [Appellant] in my vehicle so I could stop the other
male and find out what’s going on.
Q. Why did you place [Appellant in your] vehicle [sic] if
he’s kind of acting like a victim?
[Appellant’s counsel.] Objection.
The court: Sustained.
[Commonwealth]. Why did you place [Appellant] in the
rear of your car?
A. A lot of times you get a robbery job. People say, oh,
this male—
[Appellant’s counsel.] Objection. A lot of times? Let’s
limit it to this case.
The court: That’s fine. You can limit it to this case. You
can rephrase the question.
[Commonwealth]. Why in this particular case did you
place [Appellant] in the rear of your car for investigation
purposes?
A. To find out exactly what was going on.
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Q. Are you certain this person was a victim at that point?
A. No, I was not.
Q. And what happened once you placed [Appellant] in your
vehicle for investigation and then you start pursuing the
codefendant?
A. Once I knew that [Appellant] was secured and my
partner was safe watching him, that’s when Officer
Sommerville and I cut the other defendant off. Brought
him back to the vehicle so he could be checked and make
sure he didn’t have a weapon at that point. Until he was
safe and we could put him in the vehicle.
N.T., 7/3/13, at 43-48.
Appellant also cross-examined at least one police officer and one
detective about the extent of their investigation and asked, inter alia, why
the police did not lift fingerprints from the victim’s credit cards or investigate
Appellant’s cell phone. See id. at 75-76, 191-92, 198. For the defense,
Appellant’s sister, Dashawna Waters, was the sole witness. Id. at 204-11.
She testified she dropped Appellant off near Germantown and Seymour to
see his friend. Id. at 206.
During his closing argument, Appellant argued he was the victim of the
instant crimes and the perpetrator was his codefendant, Dominic Broadneck:
There’s more obvious problems with this case. This is
in fact a high crime area. I mean, it’s not pleasant to say
that this part of the city of Philadelphia is what we call a
high crime area. . . . And we need to put more police
officers in those areas because they have more burglaries;
they have more robberies; they have more drug sales;
they have more shootings.
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And guess what? The 39th District is one of those.
Officer Waltman’s told you and Officer Sommerville told
you. This has been identified by the police department
and they have tactical units there. They have burglary
units out there. They have five squad out there. And for
them to say that, well, there was nobody else out there
and nobody else could have been out there robbing
[Appellant], that’s impossible.
. . . So let’s just talk about what a robbery is. A
robbery is, you know, two or more people getting together
and saying, hey, let’s go steal some money. And if they
say, meet me at 1:00 out at the bank, that’s pretty
simple; right? I need some money. You do? All right.
1:00 at the bank at 15th and JFK. All right. Be there.
They meet there, Rob and they go away.
Ask yourself this: two people at different parts of the
city, because we know [Appellant] was by himself. How do
they decide we’re just going to meet at a moving target
that we don’t even know where it’s going to be or who’s
going to be there or if anyone is going to be there? How
does this happen? How does [Appellant] go from being
alone to getting so lucky as to find someone at Seymour
and Knox [i.e., the location of the robbery,] and being
there at the same time as [codefendant] Broadneck? This
is too much.
What evidence do they have to show that was such a
coordination that they were able to say, you know what? I
think there’s going to be a guy right at Knox and Seymour
at exactly 2:00. And if you meet here and I meet here
and we meet in the middle, there’s going to be someone
there to rob. It’s not that easy. In fact, it’s quite difficult.
It makes no sense. And they can’t prove how that could
have possibly happened.
Another thing that’s very clear. The gun and the
proceeds are all on [codefendant] Dominic Broadneck. If
someone is a victim of a robbery and they say, hey, that’s
the guy that did it and they got the gun and the proceeds,
well, it’s pretty clear to say that that’s the right person.
[Appellant] had none of that. He didn’t have the gun. He
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didn’t have the credit cards. He didn’t have the cell phone.
He didn’t have the wallet. He didn’t have the cash.
* * *
Now, there’s [Appellant’s] head gesture. This head
gesture, this could have been number one. This could
have been number one or number two. Moving your head
towards another guy who has a gun? Well, I guess that
now means when you go like this and you point to the
other person who has a gun, you’re saying to the police,
hey, I did it, too. I’m a robber, too; right? That’s what he
must have been saying. Or was he trying to tell the police
officer, hey, that guy just robbed me? That is reasonable
doubt in and of itself.
He didn’t run away. He didn’t hide. He didn’t start
throwing things out of his pockets. He stands there on the
corner. That guy has a gun. He’s not saying he’s got a
gun because we’re out robbing people together. This is
nonsense. This is absolute nonsense.
N.T., 7/5/13, at 30-33, 35-36.
In response to Appellant’s closing argument that he was not the
perpetrator, the prosecutor summarized video surveillance footage:
This video, ladies and gentlemen, is worth a 1,000 words.
What do you have on this video? Let’s talk about the
timeline. This video helps us figure out exactly what’s
going on. All right. He says he doesn’t know what time
the robbery happened. Well, I can do math and I know
you can do math. So I can tell you what time the robbery
happened? All right.
Here we are, 2:00 a.m. and one second. You have
[Appellant] walking towards Knox and Seymour in the
direction of the robbery. He’s headed right there. He’s
headed right towards Mr. Coleman. He’s walking there at
2:00.02. 2:00 a.m. He’s walking there at 2:00.04.
2:05.32 and somewhere between 2:06. That’s when Mr.
Coleman is being robbed. Does he have time to get there?
Yes. Detective O’Neill told you, I walked that and I just
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walked it at a normal pace and I got there at five minutes
and two seconds. But did he make it five blocks? Five
regular city blocks? Absolutely.
How did we know when the robbery happened?
2:08.31. That C.A.D.[8] report that counsel was talking
about, well, 2:08.31 is when you get the call, the 911
dispatch. Mr. Coleman sat there and said it took me two
to three minutes to get home tops. I called 911. My wife
called 911 immediately. That’s how we know when the
robbery is taking place.
When do we see [Appellant] again? 2:11.7. And where
do we see him? I’ll tell you. He’s walking back from the
direction of the robbery. He’s walking back from Knox on
Seymour. That’s where he’s coming from because he just
robbed Mr. Coleman. And remember the minute behind
him? His codefendant, Dominic Broadneck. That person
wearing all dark clothing, dark boots. The guy on that
video, you see him in the corner. He’s walking back from
Knox and Seymour, too, the same direction a minute
behind this defendant. Dark pants, dark boots. That’s
Dominic Broadneck. You heard the description. That’s
where he is.
The crime is solved on the street by officers within
minutes. Ladies and gentlemen, that video is something
he can’t explain away. Well, he wants to say there was a
cab somewhere in that video? Okay. Germantown Cab
Company. What, did he call a cab? Is someone picking
him up? Is that why he was there? He has five $1’s in his
pocket. How is he going to pay for that cab. Where was
he going? Is he going to get in the cab and go somewhere
with the money he didn’t have to pay for the cab or is he
going to Portico Street to take a cab a half a block. That
doesn’t make sense. Because what makes sense is that
timeline there.
Okay. So he’s stopped a couple minutes later and the
codefendant is tossing the gun; right? The gun is not in
8
Criminal Arrest and Disposition Report.
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his waistband. So what? We know where the gun was
when the robbery was happening. It was in his waistband.
He was using it to paralyze Mr. Coleman to have him give
up all his items. Okay. Crime for dummies 101. Read the
first couple chapters. I just committed an armed robbery.
I got the gun and I got the proceeds. I’m standing like a
sitting duck on the corner of Germantown and Seymour.
I’m sitting right here. I got Officer Sommerville coming
down this way. I got Officers Allen and Officer Lee Coming
up this way. I’m done. I’m toast.
A crime for dummies 101. Get rid of the gun, get rid of
the proceeds and then stand there and go like this. It’s
that guy. It was him. Officer Allen didn’t buy it. No one
bought it. And I know you guy’s don’t buy it. That’s not
how someone acts when they were being robbed. If he
was a victim, he would have been up there telling
the story. He wasn’t the victim. He was one of the
robbers.
[Appellant’s counsel]: Objection.
The court: Noted.
Id. at 91-94 (emphasis added). The court did not caution the jury at that
point.
After the prosecutor completed her closing and the jury was excused,
Appellant’s counsel formally moved for mistrial:
[Appellant’s counsel]: Briefly, your Honor, I have a motion
for mistrial. During the prosecution’s closing, there was a
line of testimony in which the prosecutor actually with her
arms signaled towards the witness box and stated that he,
referring to [Appellant], never testified. And it was in the
context of claiming that he was a victim. He was the
person who was robbed that day and he never testified.
That’s clearly prohibited as to argument. It infringes on
my client’s Fifth Amendment right to remain silent and also
his Fifth Amendment right not to speak on his own half
[sic] at a trial. Such argument and such blatant gesturing,
emphasizing to the jury is clearly prosecutorial misconduct
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and inadmissible argument and those are grounds for a
mistrial.
The court: And [assistant district attorney?]
[Assistant district attorney]: Your Honor, counsel argued
during his closing arguments that he was a victim. And
my reference to the fact that he was a victim, they would
have known about it, your Honor. It’s not a violation of
the Fifth Amendment right. I don’t think, your Honor, it is
improper.
The court: I will deny the motion for mistrial. I think that
the instructions that I will give including as to whose
burden it is, the presumption of innocence and his failure
to testify, that there can be no inference of guilt or other
inference. An adverse inference is sufficient in my view to
guide the jury as to how they should decide this case.
Id. at 101-03.
The court, during its charge, instructed the jury as follows:
It is entirely up to the defendant in very criminal trial
whether or not to testify. He has an absolute right
founded under the Constitution to remain silent. You must
not draw any inference of guilt or any other inference
adverse to the defendant from the fact he did not testify.
Id. at 110-11.
The jury convicted Appellant, and the court sentenced Appellant to an
aggregate sentence of seven to twenty years’ incarceration. Appellant filed
a timely post-sentence motion, which the court denied that same day.
Appellant did not file a notice of appeal within thirty days, but later filed a
successful Post Conviction Relief Act9 petition to reinstate his direct appellate
9
42 Pa.C.S. §§ 9541-9546.
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rights nunc pro tunc. Appellant timely appealed and timely filed a court-
ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues on appeal:
Did trial court err in limiting Appellant’s cross examination
of the lead detective regarding the extent of the
investigation?
Did the trial court err in permitting a Philadelphia police
officer to testify as to his opinion that Appellant did not act
like the victim of a robbery?
Was Appellant denied a fair trial and due process of law by
the Court permitting the prosecutor in her closing remarks
to comment upon [A]ppellant’s silence?
Was Appellant entitled to a Kloiber jury charge?
Appellant’s Brief at 4.
In support of his first issue, Appellant claims that two detectives
interviewed him and prepared his five-page statement, although he
concedes he never introduced the statement into evidence. Id. at 10, 11
n.3. Appellant claims that his statement memorialized his allegations that
he was a victim of the robbery and identified four potential defense
witnesses, including his sister, Dashawna Waters,10 and a cab driver. Id.
He insists the police refused to interview any of his witnesses. Id. Although
he did not attempt to introduce the statement at trial, Appellant argues the
prosecutor “fought to keep out any mention of this statement or that the
10
As noted supra, she testified at Appellant’s trial.
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police refused to interview potentially exculpatory witnesses.” Id. at 10.
Appellant asserts the court ruled that if he questioned the police about the
“nature and extent” of the police investigation, then the Commonwealth
could introduce evidence of Appellant’s prior conviction for robbery.11 Id. at
11. Appellant contends the court’s conditional ruling was error as it
constituted a de facto prohibition of his right to confront and cross-examine
the witnesses against him. Id. at 13.
The Commonwealth counters that the two detectives who purportedly
recorded Appellant’s statement did not testify at trial.12 Commonwealth’s
Brief at 11. In conjunction with the fact that Appellant’s statement was
never mentioned or introduced into evidence, the Commonwealth contends
11
The trial court’s ruling follows:
The court: And the second would be as to investigating
any of the named witnesses that [Appellant] had provided
to the detectives and the extent of his investigation. At
least in my view, if you are to challenge the detective as to
why he did not interview them, in my view you’re opening
the door to whatever his truthful response would be. And
if that includes that he thought that that [sic] they were
the right person based in part on a prior conviction for
robbery in the same area, that comes through.
N.T., 7/2/14, at 248-49.
12
Both detectives were apparently on preplanned vacations scheduled that
week, each of which was requested in December of 2012. N.T., 7/3/14, at
183-84, 199-200.
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Appellant’s claim lacks merit. Alternatively, it claims the court’s ruling was
correct:
First, in the absence of any testimony from [Appellant],
it was entirely proper for the court to rule that he could not
use his cross-examination as a back door through which to
bring in his own hearsay statement to police, in
contravention of Pa.R.Evid. 802.4 Second, the trial court
was well within its discretion to rule that [Appellant] could
question the detectives about their failure to investigate
certain supposed witnesses, but that doing so might open
the door to their truthful responses that they believed they
had the right person based on the evidence and
[Appellant’s] prior conviction for a similar robbery in the
same neighborhood.
4
Even now on appeal, [Appellant] utilizes a similar back-
door approach by inappropriately attaching the statement
he gave to police to his brief. He does so despite explicitly
acknowledging that “the Statement was never introduced
into evidence in the trial” and, thus, it is not a part of the
certified record on appeal.
Commonwealth’s Brief at 12-13 & n.4 (citations omitted). The
Commonwealth also notes Appellant “repeatedly questioned the officers
through the trial regarding their failure to investigate certain aspects of the
case (See, e.g., N.T. 7/3/2013, 75-76) (asking Officer Allen on cross-
examination why he did not speak with the cab driver who was on the scene
or investigate [Appellant’s] cell phone to see if he had made any phone
calls).”13 Id. at 13. We agree that Appellant is not entitled to relief.
13
The officer responded that it was the detective’s job, and not her job, to
contact the cab driver or retrieve Appellant’s cell phone. N.T., 7/3/13, at 76.
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We initially note that cross-examination is the primary
method for testing the believability of a witness and the
truth of his testimony. Cross-examination may be
employed to test a witness’ story, to impeach credibility,
and to establish a witness’ motive for testifying. The scope
of cross-examination is a matter within the discretion of
the trial court and will not be reversed absent an abuse of
that discretion.
Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citations and
quotation marks omitted); see also Pa.R.E. 611(b) & cmt. Similarly, the
limits placed on cross-examination also lie within the discretion of the trial
court. Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super.
1995). Any error is subject to the harmless error standard. Id. at 1279.
With respect to a written statement by the defendant, Pa.R.E. 801 and
802 apply:
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made
the statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801. “Hearsay is not admissible except as provided by these rules,
by other rules prescribed by the Pennsylvania Supreme Court, or by
statute.” Pa.R.E. 802.
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Instantly, and regarding Appellant’s statement, we agree with the trial
court that Appellant could not elicit the contents of his written statement via
cross-examination of the two detectives—who did not even testify—without
sufficient evidentiary foundation for the statement. See id. Indeed,
Appellant conceded he did not introduce or attempt to introduce the
statement at trial, although he included it as an exhibit to his appellate brief.
See Appellant’s Brief at 11 n.3. Appellant cannot attempt to introduce the
contents of his statement for the truth of the matter asserted therein via
other means, i.e., cross-examination. Under these circumstances, the trial
court properly exercised its discretion to limit Appellant’s cross-examination.
See Chmiel, 889 A.2d at 527; Mullins, 665 A.2d at 1277.
As for Appellant’s claim that the court limited his cross-examination of
any police witness, we discern no basis for this contention. Rather, the court
cautioned Appellant that if he elected to question the police about why they
did not interview the witnesses he identified in his statement, then he must
accept the response of the police, including their belief that Appellant was
the perpetrator based on his prior conviction for robbery in the same area.
See N.T., 7/2/14, at 248-49. Indeed, Appellant asked the police about the
extent of their investigation, including whether they contacted the cab
driver, reviewed Appellant’s cell phone, or obtained fingerprints from the
victim’s credit cards. See N.T., 7/3/13, at 75-76, 191-92, 198. The police,
however, did not testify about their belief that Appellant was the perpetrator
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because of a prior, similar robbery conviction. Thus, we construe the court’s
instruction as more cautionary and observational and not an absolute
command. See N.T., 7/2/13, at 248-49 (stating, “if you are to challenge . .
. , in my view you’re opening the door . . . .”). And even if we construed
this conditional language as a limiting instruction, then we discern no error
from the court’s rulings regarding the scope of Appellant’s cross-examination
of the police about the nature and extent of their investigation. See, e.g.,
N.T. 7/3/13, at 198. Assuming error, however, after viewing the record in
the Commonwealth’s favor, we discern no “reasonable possibility that [it]
might have contributed to [Appellant’s] conviction.” See Mullins, 665 A.2d
at 1279. Accordingly, we discern no abuse of discretion. See Chmiel, 889
A.2d at 527; Mullins, 665 A.2d at 1277.
Appellant next argues that the court erred by permitting the
Commonwealth to permit Officer Allen to testify that he was not acting like a
victim. The standard of review of a “trial court’s decision to admit evidence
is subject to review for an abuse of discretion.” Commonwealth v.
Hairston, 84 A.3d 657, 664 (Pa. 2014) (citation omitted). After careful
consideration of the parties’ arguments, the certified record, and the
decision by the Honorable Daniel Anders, we affirm this issue on the basis of
the trial court’s decision as we discern no abuse of discretion. See Trial Ct.
Op. at 11-13 (holding it sustained counsel’s objection to whether Appellant
acted “like a victim” and it was permissible for police to testify about
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Appellant’s demeanor on the street corner and reason for placing Appellant
in back of vehicle); see also Hairston, 84 A.3d at 664.
We summarize Appellant’s argument in support of his third issue. He
contends the Commonwealth, in its closing statement, argued that if he was
the victim, then he would have testified. Id. at 21 (referencing, as set forth
above, N.T., 7/5/13, at 94). Appellant claims the prejudice was not cured
by the court’s “standard instruction that no inference should be drawn” by
his refusal to testify. Id. at 20. He asserts the Commonwealth’s statement
was doubly unfair because it possessed Appellant’s statement to the police
that alleged he was the victim and identified four corroborative witnesses
that the police did not interview. Appellant notes that in conjunction with
Officer Allen’s testimony regarding whether he was a victim, he concludes a
new trial is warranted. We hold Appellant has not established the error was
so prejudicial as to warrant a new trial.
In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our
Supreme Court stated:
The review of a trial court’s denial of a motion for a
mistrial is limited to determining whether the trial court
abused its discretion. . . . A trial court may grant a
mistrial only where the incident upon which the 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.
A comment is forbidden if the language used by the
prosecutor is intended to create for the jury an adverse
inference from the failure of the defendant to testify. It is
well settled that any comment by the prosecution or the
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court violates 42 Pa.C.S. § 5941[14] if it draws attention to
or focuses on the fact that no one except the defendant
can rebut the Commonwealth’s case.
Id. at 142 (citations and quotation marks omitted).
In Wright, the prosecutor sarcastically stated the following during his
closing arguments:
Tammy Mowery did it. That’s why [the defendant] has 60
rounds of ammunition on him, not counting what’s in the
gun, almost twice what a police officer would call—or
carry, I’m sorry, ‘cause Tammy Mowery did it. That’s why
[the defendant] has the shells, the bullets, the live rounds.
Tammy Mowery did it. That’s why [the defendant] had the
Taser and the Pepper Spray, ‘cause Tammy Mowery did it.
And then, of course, he didn’t say anything, but the police,
of course, lying indicated to you that he basically
confessed. I just toasted a guy and I know I’m going to
jail. Don’t try to tell me I’m not. I know what happened.
But that’s all made up. That’s all made up. Truth is, folks,
two best Commonwealth witnesses here are the two that
didn’t testify in person. Jim Mowery, who says [the
defendant] broke in my house shootin’, and [the
defendant] says, yeah, I killed him.
14
This statute states as follows:
(a) General rule.—Except defendants actually upon trial
in a criminal proceeding, any competent witness may be
compelled to testify in any matter, civil or criminal; but he
may not be compelled to answer any question which, in
the opinion of the trial judge, would tend to incriminate
him; nor may the neglect or refusal of any defendant,
actually upon trial in a criminal proceeding, to offer himself
as a witness, be treated as creating any presumption
against him, or be adversely referred to by court or
counsel during the trial.
42 Pa.C.S. § 5941.
- 18 -
J. A15033/15
Id. at 141. The prosecutor then concluded:
As I said before, I suggest two of the best witnesses that
were here are the ones that did not testify—[the
defendant], who admitted to doin’ it, and Jim Mowery, who
pointed out his killer, even though he’s not here to face ya
and tell you that in person.
Id. The defendant’s counsel then moved for a mistrial based on the
prosecutor’s references to the defendant’s failure to testify. Id.
The court denied the motion, but immediately gave a
cautionary instruction: “The defendant’s right to remain
silent . . . is absolutely in place. And you shouldn’t take
any of the Commonwealth’s argument that you heard as in
any way disturbing that right to remain silent or that
burden of proof. . . . I’ll talk with you in more detail about
all of those. . . .”
Id.
Our Supreme Court held that the prosecutor’s comments were
inappropriate but nonetheless held the error was harmless given the
overwhelming evidence of the defendant’s guilt:
There is a fine line between vigorously arguing the
evidence and drawing attention to appellant’s decision not
to testify. As stated above, this Court vigilantly protects
the right to remain silent and recognizes references to an
accused’s exercise of this right may jeopardize the
presumption of innocence in the jury’s mind. For this
reason, though we believe no impropriety was intended,
we cannot find the prosecutor’s comments were not
inappropriate; the spirit of “oratorical flare,” as
characterized by the Commonwealth, must bend to the
accused’s fundamental right to remain silent.
However, not every reference to a defendant’s failure to
testify automatically requires a new trial; the verdict can
still be sustained if the error was harmless. An error is
harmless if it could not have contributed to the verdict. In
- 19 -
J. A15033/15
other words, an error cannot be harmless if there is a
reasonable possibility the error might have contributed to
the conviction. We have found harmless error where:
(1) the error did not prejudice the defendant or the
prejudice was de minimis;
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or
(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error
could not have contributed to the verdict.
The Commonwealth has the burden of proving harmless
error beyond a reasonable doubt.
Id. at 143 (some punctuation and citations omitted). The Wright Court
held the Commonwealth met its burden as “[t]his was not a close case,
where a remark such as the one the prosecutor made can change the flow of
a trial—this trial was a river of evidence, and its flow was unaffected by this
reference.” Id. at 144.
The Wright Court additionally held that “the trial court’s curative
instructions curtailed any damage the prosecutor’s reference could have
caused.” Id.
The court issued an immediate cautionary instruction
regarding [the defendant’s] right to remain silent and the
Commonwealth's burden of proof. During jury
instructions, the court charged the jury at length regarding
appellant’s right to remain silent and specifically warned
the jury against drawing any adverse inferences from the
prosecutor’s comments.
- 20 -
J. A15033/15
Id. “Further, appellant has offered nothing to rebut the presumption the
jury followed the trial court’s instructions.” Id. Accordingly, our Supreme
Court, although holding the prosecutor erred by commenting that the
defendant did not testify, concluded the error was harmless given, inter alia,
the overwhelming evidence of guilt, the court’s jury charge regarding the
defendant’s right to not testify, and the absence of any evidence the jury
disobeyed the trial court’s charge. Id.
Instantly, assuming without deciding that the prosecutor erred by
gesturing to the empty witness box and opining that Appellant could have
testified,15 see Wright, 961 A.2d at 141, we ascertain whether the error
was harmless. With respect to evidence of guilt, 16 the victim identified
Appellant and Broadneck as the people that robbed him on the night of the
robbery, at the preliminary hearing, and at trial. See Trial Ct. Op. at 3-4,
19. Video surveillance placed them both near the scene at the time of the
robbery. See N.T., 7/3/13, at 43-48. Similar to the trial court in Wright,
the instant trial court charged the jury regarding Appellant’s right to remain
silent, cautioned the jury about drawing any adverse inferences because
Appellant did not testify, and Appellant has not rebutted the presumption the
jury followed the trial court’s instructions. See id. Although the court did
15
This was wholly unnecessary.
16
Appellant has not challenged the sufficiency of evidence for his
convictions.
- 21 -
J. A15033/15
not issue an immediate cautionary instruction, cf. Wright, 961 A.2d at 141,
we cannot conclude the prosecutor’s error was prejudicial given the
evidence, the jury charge regarding Appellant’s right to remain silent, and
the lack of evidence the jury disobeyed the trial court’s instructions. Cf.
Wright, 961 A.2d at 141-44.
Appellant lastly argues the court erred by not instructing the jury
pursuant to Kloiber. He contends the circumstances under which the victim
allegedly observed him and the victim’s inconsistent testimony regarding
aspects of the encounter warranted a Kloiber charge. We hold Appellant is
due no relief.
“We evaluate whether a Kloiber instruction is necessary under an
abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,
332-33 (Pa. Super. 2012). “Pursuant to Kloiber, where a witness was not
in a position to observe the assailant clearly, or had previously failed to
identify the defendant, the court must instruct the jury to receive the
witness’ identification testimony with caution.” Chmiel, 889 A.2d at 541
(citations omitted); Commonwealth v. Rollins, 738 A.2d 435, 448 n.14
(Pa. 1999) (“A Kloiber charge instructs the jury that a eyewitness’
identification should be viewed with caution where the eyewitness: (1) did
not have an opportunity to clearly view the defendant; (2) equivocated on
the identification of the defendant; or (3) had a problem making an
identification in the past.”). After careful review of the certified record—
- 22 -
J. A15033/15
including the victim’s testimony identifying Appellant—the parties’ briefs,
and the well-reasoned decision of the trial court, we affirm on the basis of
the trial court’s decision. See Trial Ct. Op. at 17-21 (holding record
establishes victim unequivocally and without hesitation identified Appellant
on the night of the robbery, at the preliminary hearing, and at trial). For
these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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RECEIVED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST nJDICIAL DISTRICT OF PENNSYLVANIA AUG 2 5 2014
TRIAL DIVISION - CRJ1v[INAL APPE
ALS/POSTTRIAL
COMMONWEALTH OF PRNNSYLV ANIA CP-51-CR-0004959-2011
CP-51-CR-0004959-2011 Comm. v. Waters. Wesley
Opinion
vs. 118 EDA 201J832 A.2d 403, 408 (Pa. Super. Ct. 2003).
At trial, the evidence of record included the following testimony. Defendant and
Broadnax approached Coleman together late at night while he was alone. Defendant showed to
Coleman a gun tucked into his pants and then said to him, "Old head, you know what it is." In
response, Coleman surrendered his wallet and cell phone to Defendant. Coleman immediately
left the scene, and Defendant and Broadnax took the frnits of their robbery.
Coleman's wife alerted the authorities, and Coleman provided descriptions of Defendant
and Broadnax to police. Defendant and Broadnax were stopped within minutes of and only a few
blocks from the robbery. Defendant and Broadnax matched Coleman's descriptions including the
clothing that he was wearing. The officers observed Broadnax discarding what they later learned
were Coleman's credit cards. On the night of the robbery, Coleman immediately identified
without hesitation both Defendant and Broadnax. Coleman also identified Defendant at the
preliminary hearing and at trial. Coleman stated he was "100% sure" that Defendant was the
person who robbed him with a gun that night. N.T. 07/02/2013 at 147, 156. Coleman identified
the recovered weapon as the same revolver that Defendant had showed to him while it was
tucked into his pants during the robbery. In addition to this evidence, there is no basis to disturb
the jury's credibility determination, i.e., to have credited Coleman's testimony.
In light of the overwhelming evidence discussed above, the verdict is not contrary to the
evidence and does not shock one's sense of justice.
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2. The Court Properly Denied Defendant's Motion For A Lineup
Defendant argues that the preliminary hearing court improperly denied his oral motion
requesting a lineup identification procedure prior to his preliminary hearing. The grant or denial
of a request for a lineup is within the sound discretion of the court, and such a decision will not
be disturbed on review absent an abuse of discretion. Commonwealth v. Carter, 643 A.2d 61 (Pa.
Super. Ct. 1994). "An abuse of discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
will." Commonwealth v. Edwards, 762 A.2d 382, 386 (Pa. Super. Ct. 2000). Defendant's
argument fails on two grounds: his request was never submitted in writing and in advance of the
preliminary hearing, and the preliminary hearing court's decision was an appropriate exercise of
discretion.
a. Defendant Failed To Properly Request A Lineup
In Writing And Prior To The Preliminary Hearing
A defendant has a duty to seek a lineup in writing and prior to a preliminary hearing.
Commonwealth v. Robinson, 5 A.3d 339 (Pa. Super. Ct. 2010). Although a court retains
discretion to overlook the failure to make a request until the day of the scheduled preliminary
hearing, there is no requirement to do so. Id. If a defendant fails to submit a written request for a
lineup in advance of the preliminary hearing, then he has waived any objection and may not
complain about the court's decision to deny the request on appeal. Id.
Here, Defendant failed to submit a written request for a lineup. Defendant also failed to
request the lineup in advance of the scheduled preliminary hearing. Instead, defense counsel
made on oral motion for a lineup on the day of his preliminary hearing. Based on his failure to
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seek a lineup in writing and prior to the preliminary hearing, Defendant waived any error
regarding the denial of his lineup request. Robinson, 5 A.3d at 342.
b. The Court Did Not Abuse Its Discretion In Denying The Lineup Request
Even assuming Defendant has not waived this alleged error, the preliminary hearing
court's decision was not an abuse of discretion. A defendant has no constitutional right to a line-
up, and the court must examine the reliability of an identification using a totality of the
circumstances test. Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super. Ct. 2000). To
determine whether to grant a lineup request, the court must examine the following factors: (1) the
opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree
of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty
demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Id.
The preliminary hearing court received the following representations from counsel during
the brief exchange regarding the lineup motion:
MR. JARRETT: Your Honor, we still have a lineup motion. We
are unable to agree.
THE COURT: Tell me the facts of the identification.
MR. JARRETT: It is a gunpoint robbery, Your Honor. No one
apprehended at the scene. My client is some five or six blocks
away. Some 15 minutes later, the police approach him. He is
cooperative, shows him a license, ask him to get in the car and they
put another person in the car. Another car stops, gets a third
person. They evidently pull up to a location. There are three police
cars, cherry tops going. They pull one, two, three out of the car.
The gentleman says one, two, three. It is an unduly suggestive on
the street lineup, Your Honor.
MS. PO\VERS: Your Honor, the information I have from the
complainant and from the officer differs from what Counsel just
said with respect to the number of people involved. They were on
foot. It was two people. So there was no car and there wasn't a
third person.
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MR. JARRETT: No. I am saying police car. They were pulled out
of a police car.
MS. POWERS: They were stopped on foot.
THE COURT: So it is a stand-up and it was two individuals?
MS. POWERS: Two individuals.
THE COURT: On the street?
MS. POWERS: Yes.
THE COURT: Within 15 minutes?
MS. POWERS: Yes.
THE COURT: How dark was it?
MS. POWERS: It was in the morning, 2:00 a.m. It was dark.
However, the Defendants were side-by-side. They were flanking
the complainant; one was on the left, one was on the right. I am
just going for his opportunity to actually have a conversation with
the Defendant. The Defendant said give it up. He looked at him.
He has the gun. They are face-to-face. The complainant can tell
you he was the same height as him approximately. His complexion
was a little lighter than him. He had about the same build as the
complaining witness.
THE COURT: Is this cross-racial?
MS. POWERS: No. African-American,
MR. JARRETT: It is not cross-racial.
MS. POWERS: The complainant then gave up his items, literally
left them on the step, turned around and the Defendant said there
better be something in there, old head. They are having a
conversation while the Defendant has the gun pointed at him.
THE COURT: This goes on for how long?
MS. PO\VERS: Probably a minute, Your Honor. The police come.
Within 15 minutes, as Counsel said, the officers come, stop the
Defendant who is wearing the same exact thing.
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MR. JARRETT: There is nothing seized from my client
whatsoever.
MS. POWERS: Because the codefendant is chucking items to the
side as the police come.
THE COURT: Based on what I heard from both Counsel, I will
deny your lineup.
N.T. 04/28/2011 at 2-5.
The preliminary hearing court carefully considered the relevant factors and made
appropriate inquiries during the hearing on the motion for a lineup. In rejecting the lineup
request, the court considered the following: (1) Coleman identified Defendant after a good
opportunity to view Defendant face-to-face at close range during the robbery; (2) Coleman
focused his attention on Defendant for approximately one minute during the robbery; (3)
Coleman provided an accurate description of Defendant and his clothing prior to any
identification; and ( 4) the short time span of fifteen minutes that elapsed between the robbery
and Coleman's on-scene identification of Defendant. Under the totality of these circumstances,
the court determined that the identification was reliable and a lineup was not necessary. The
court did not abuse its discretion because its judgment was not manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will. Therefore, the court properly denied Defendant's
oral motion for a lineup. See Edwards, 762 A.2d at 386.
3. The Trial Court's Evidentiary Rulings During
Cross-Examination Of The Police Detective Were Proper
Defendant argues that the trial court erred by prohibiting certain cross-examination of the
detective regarding Defendant's statement, specifically (1) the existence of Defendant's
statement as evidence of his cooperation with police during the investigation, and (2) the names
of witnesses that Defendant told the detective, which would undermine the thoroughness of the
investigation. A trial court has broad discretion to determine whether evidence is admissible, and
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a trial court's ruling on an evidentiary issue will be reversed only if the court abused its
discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. Ct. 2010). An abuse of
discretion is not simply an error of judgment but an overriding or misapplication of the law. Id.
Accordingly, a ruling of evidence "will not be disturbed on appeal unless that ruling reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous." Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. Ct. 2013).
Defendant intended to use the existence of Defendant's statement and its contents to
demonstrate his cooperation with police. Additionally, Defendant sought to impeach a police
detective by using Defendant's statement to undermine the extent of the police investigation. In
his statement to detectives, Defendant provided the names of potential defense witnesses, who
were never investigated by the detective. The trial court placed the following ruling on the record
regarding the cross-examination of the detective with Defendant's statement:
The Court: As to the Defendant's statement, if you wish to make
some reference to the Defendant's extended cooperation with the
officers or detectives or anyone else. In my view the fact that he
gave a statement would be evidence of cooperation. But the
statement, itself, and what may be contained in there obviously
would not come in.
And I do think an appropriate limitation would be based upon the
fact that there could be some backdoor inference that there's
exculpatory information in there which would be bypassing around
at least getting that in without having the Defendant take the stand.
I would limit you to simply asking the detective was he
cooperative and his response would be not in reference to giving
any statement. And your objection, I'm not sure if you're objecting
to that.
Defense Counsel: No. I understand what you 're saying.
The Court: And second would be as to investigating any of the
named witnesses that the Defendant had provided to the detectives
and the extent of his investigation. At least in my view, if you are
to challenge the detective as to why he did not interview them, in
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my view you're opening the door to whatever his truthful response
would be. And if that includes that he thought that that [sic] they
were the right person based in part on a prior conviction for
robbery in the same area, that comes through.
N.T. 07/02/2013 at 247-50. Defense counsel timely objected to both of these rulings.
As an initial matter, the trial court did not entirely preclude Defendant from cross-
examining the detectives regarding these lines of questioning. Indeed, the trial court permitted
defense counsel to question the detective regarding Defendant's cooperation with the police
investigation. Id. at 247. The trial court clearly ruled, however, that the two lines of questions
would either (l) be improper without competent testimony from Defendant, or (2) open the door
to other evidence (which, in fact, the trial court precluded based upon Defendant's pre-trial
objection to the Commonwealth's 404(b) motion)'. As to the first line of question regarding
Defendant's statement as evidence of his cooperation, the trial court made its ruling because
under Pennsylvania Rule of Evidence 801, the contents of a defendant's statement are
inadmissible as hearsay when offered by the defense unless the defendant testifies. Defendant
never testified at trial, so his statement (or even the fact that he gave a statement) could not
otherwise come in under Rule 801.
As to the second line of inquiry, i.e., investigation of the names of witnesses provided by
Defendant, the trial court did not prohibit defense counsel from asking these questions of the
detective because those questions would have been relevant to the thoroughness of his
investigation. The trial court did, however, decide that-if defense counsel did ask those
questions-it would open the door to the detective's answer as to why he did not investigate
those witnesses. In a discussion side-bar with counsel, the Commonwealth represented that the
I
On September l S, 20 I I, the Commonwealth filed a motion to introduce other acts evidence. In particular, the
Commonwealth sought permission to introduce under Rule of Evidence 404(b) that Defendant was convicted of a
gun-point robbery a few years earlier in the same neighborhood and in circumstances similar to those of the robbery
of Coleman. After oral argument, the trial court denied the Commonwealth's motion.
10
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detective did not investigate the defense witnesses because he knew Defendant had a prior
gunpoint robbery conviction in the same neighborhood and believed he had already found the
right person. The trial court believed that allowing the detective to testify to the prior gunpoint
robbery conviction-assuming that was his answer-would be a fair response and also relevant
to explaining why the detective did not investigate the defense witnesses. This is particularly true
if defense counsel opened the door to that line of inquiry. Of course, the trial court would have
provided an appropriate limiting instruction on how to use the testimony to avoid any unfair
prejudice to Defendant. Ultimately, defense counsel decided against pursuing this line of
questions after considering the trial court's ruling in advance of the detective's testimony.
As discussed above, the trial court's evidentiary rulings do not reflect manifest
unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly
erroneous. Therefore, the trial court did not abuse its discretion, and the evidentiary rnlings were
proper.2
4. The Police Officer's Testimony Was Proper
Defendant argues that the trial court erred by allowing Police Officer Allen to state his
opinion that Defendant acted like a co-defendant and not like a victim. At trial, Officer Floyd
Allen's testimony elicited the following exchange:
Q. Can you describe this Defendant's demeanor as he's standing
on the comer kind of like bobbing his head?
A. He's bobbing his head and pointing and making a gesture that
the other male had a gun, but he's very cool and very calm. And in
my profession--
2
Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the
overwhelming and uncontradicted evidence of Defendant's guilt. See generally Co111111011wealtlt v. Petroll, 738 A.2d
993, I 005 (Pa. 1999) ("Hamiless error exists if the reviewing court is convinced from the record that (I) the error
did not prejudice the defendant or the prejudice was de rninimis, (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have
contributed to the guilty verdict."). 1 .,.,~ •• · ·
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MR. SCHULTZ: Objection. It's not asking for opinion evidence
here.
THE COURT: That's fine. It's denied.
MS. GALIETT A: You can continue.
A. In my years of service normally when people were getting
robbed, they are excited when they see the police. They are
jumping up and down. They are flagging us down: officer, officer,
this man had a gun. He was not ex[ c ]ited or anything. So for
investigation purposes, I placed him in my vehicle so I could stop
the other male and find out what's going on.
N.T. 07/03/2013 at 45-46. Officer Allen also testified that Defendant was "very cool and very
calm" so he placed him in his patrol vehicle. Although the Conunonwealth asked Officer Allen
why he had placed Defendant in his vehicle if Defendant was "acting like a victim," the trial
court sustained Defendant's objection to the question. The trial court instructed the
Commonwealth to rephrase the question. The Commonwealth then asked Officer Allen, "Why in
this particular case did you place Defendant in the rear of your car for investigation purposes?"
Defense counsel did not object to that question, and Officer Allen responded that he placed
Defendant in the rear to "find out exactly what was going on." N.T. 07/03/2013 at 46-47.
Here, Officer Allen's testimony was offered to explain his state of mind as to why he
placed Defendant in his vehicle for investigation purposes. Although Officer Allen testified as a
lay witness, his testimony did not contravene the limits on opinion testimony under Pennsylvania
Rule of Evidence 701. First, Officer Allen's opinion was rationally based on his perception
because he personally observed Defendant's behaviors that night. Second, Officer Allen's
statement was helpful to clearly understanding his testimony and Iris state of mind that night, i.e.,
why he placed Defendant in his vehicle. Third, Officer Allen's statements and opinion were not
based on any scientific, technical, or other specialized knowledge .
..;:...:,-, . _. -:~,...~;::- .
12
. 1 •• ~ • • ...... '· '. ,·:·
· . , .,,,/4;/l' .?}#~,,,,~/~,c 'O:iijip,-; '2-1.t!'•:,
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As an initial matter, Officer Allen never specifically testified that Defendant was "acting
like a co-defendant" rather than a "victim;" indeed, the trial com1 sustained counsel's objection
to that question. So, the specific claim of error regarding the detective's testimony is without
merit. To the extent the trial court admitted evidence that may have allowed the Commonwealth
to argue to the jury that Defendant acted like a co-defendant rather than a victim, that is a claim
of error with the Commonwealth's statements during closing argument, not an evidentiary error.
Last, the trial court's evidentiary ruling does not reflect manifest unreasonableness, partiality,
prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Therefore, Officer
Allen's testimony was admissible as relevant and permissible lay opinion.3
5. The Trial Court Properly Denied Defendant's Motions
Based Upon The Prosecutor's Conunents During Closing Argument
Defendant asserts three claims of error based upon comments made by the prosecutor
during closing argument that allegedly commented on Defendant's failure to testify: (1) he was
denied a fair trial and due process of law; (2) the trial court improperly denied his motion for a
mistrial; and (3) the trial court improperly denied his motion for extraordinary relief.
Here, during closing arguments, defense counsel argued that Defendant was actually
robbed by the co-defendant Broadnax. N.T. 07/05/2013 at 31, 36. The Commonwealth attempted
to refute this argument by claiming that "if [Defendant] was a victim, he would have been up
there telling the story." Defense counsel objected to this comment, and following closing
arguments, he moved for a mistrial on the grounds that the Commonwealth's comments
infringed on Defendant's Fifth Amendment right to remain silent. The trial court denied the
motion, stating that instructions regarding burden of proof and presumption of innocence would
be sufficient to guide the jury. N.T. 07/05/2013 at 93, 101-02.
3
Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the
overwhelming and uncontradicted evidence of Defendant's guilt. See Petroll, 738 A.2d at 1005.
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For the reasons stated below, each of these claims of error must fail.
a. Defendant Was Not Denied A Fair Trial Or Due Process Of Law
Resulting From The Prosecutor's Comments During Closing Argument
To constitute a Fourteenth Amendment due process violation, prosecutorial misconduct
must be of sufficient significance to result in the denial of the defendant's right to a fair trial.
Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009). Prosecutorial misconduct does not occur
unless the prosecutor's challenged comments had the unavoidable effect of prejudicing the jury
with such animus toward the defendant as to render it incapable of fairly weighing the evidence
and arriving at a just verdict. See Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006).
Especially relevant here, our Supreme Court has held that it is not prosecutorial misconduct
when a prosecutor responds to arguments made by the defense during closing argument. Id.
Here, the Commonwealth fairly responded to defense counsel's argument that
Defendant's head gesture to police signaled that he was "trying to tell the police officer, hey, that
guy just robbed me[.]"N.T. 07/05/2013 at 36. Defense counsel also argued: "And for them to say
that, well, there was nobody else out there and nobody else could have been out there robbing
Wesley, that's impossible." N.T. 07/05/2013 at 31. The Commonwealth responded to this
argument by stating that if Defendant "was a victim, he would have been up there telling the
story." N.T. 07/05/2013 at 94. The prosecutor's comments do not reasonably lead to an inference
that Defendant would have taken the stand if not guilty; rather they dispute whether he was a
victim of a crime. See Commonwealth v. Randall, 758 A.2d 669, 681-682 (Pa. Super. Ct. 2000).
Her comments were a fair response to Defendant's argument that he was allegedly the victim of
a separate crime for which he was not on trial. N.T. 07/05/2013 at 31, 36. As such, there was no
prosecutorial misconduct.
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Additionally, the trial court gave the jury appropriate instructions regarding: ( 1) the
constitutional protection that they can make no adverse inference based upon Defendant's failure
to testify; and (2) it is the Commonwealth's burden to prove Defendant guilty. See discussion
infra at section 5(b).These instructions cured any improper argument by the prosecutor. Infra at
16; see Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (reiterating that jurors are
presumed to follow the trial court's instrnctions). Thus, Defendant was not denied due process of
law, and the trial court properly denied Defendant's motion for a mistrial.
b. The Trial Court Properly Denied Defendant's Motion
For A Mistrial Due To The Prosecutor's Closing Argument
Defendant argues that the trial court improperly denied his motion for a mistrial based on
the prosecutor's comments during closing argument. The decision to grant a mistrial is necessary
only when "the incident upon which the 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. Ct. 2008).
Granting a mistrial is inappropriate where cautionary instructions are sufficient to overcome any
potential prejudice. Id. Courts review claims of prosecutorial misconduct under an abuse of
discretion standard. Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. Ct. 2012).
Consideration of claims regarding remarks by prosecutors focuses on whether the
defendant was deprived of a fair trial, not a perfect trial. Commonwealth v. So/0111011, 25 A.3d
380, 383 (Pa. Super. Ct. 2011). A prosecutor's statements to the jury do not occur in a vacuum
and must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes
reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). While it is
"axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with
respect to the charges against him," to constitute reversible error, any such comments "must call
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the jury's attention to the fact that the defendant has not testified and must reasonably lead to an
inference that he would have taken the stand if not guilty." Randall, 758 A.2d at 681-682 (citing
Commonwealth v. Sattazahn, 631 A.2d 597, 611 (Pa. Super. Ct. 1993)).
Assuming arguendo the Commonwealth's comments were improper, they would only
require the grant of a mistrial if they unavoidably prejudiced the jury and cautionary instructions
were insufficient to overcome such prejudice. Here, the trial court instructed the jury that "it is
entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute
right founded under the constitution to remain silent. You must not draw any inference of guilt or
any other inference adverse to the defendant from the fact that he did not testify." N.T.
07/05/2013 at 110-111.
Further, the trial court comprehensively instructed the jury about the Commonwealth's
burdens:
It is not the defendant's burden to prove that he is not guilty.
Instead, it is the Commonwealth that always has the burden of
proving each and every element of the crimes charges and that the
defendant is guilty of those crimes beyond a reasonable doubt. A
person accused of a crime is not required to present evidence or to
prove anything in his own defense. If the evidence fails to meet the
Commonwealth's burden, then your verdict must be not guilty. On
the other hand, if the evidence does prove beyond a reasonable
doubt that the defendant is guilty of the crimes charged, then your
verdict should be guilty.
[ ... )
The Commonwealth has the burden of proving the defendant guilty
beyond a reasonable doubt. If the Commonwealth has met that
burden, then the defendant is no longer presumed to be innocent
and you should find him guilty. On the other hand if the
Commonwealth has not met its burden, then you must find him not
guilty. You must consider and weigh the testimony of each witness
and give it such weight as in your judgment it is fairly entitled to
receive.
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N.T. 07/05/2013 at 107-109. Thus trial court's instructions were sufficient to cure alleged burden
shifting by the Commonwealth. See Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013)
(reiterating that jurors are presumed to follow the trial court's instructions). Therefore, the trial
court properly denied Defendant's motion for a mistrial.
c. The Trial Court Properly Denied Defendant's Motion For
Extraordinary Relief Based Upon The Prosecutor's Closing Argument
Defendant argues that the trial court improperly denied his motion for extraordinary relief
based on the prosecutor's comments during closing argument. Pennsylvania Rule of Criminal
Procedure 704(B) provides that, "[u]nder extraordinary circumstances, when the interests of
justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment,
for a judgment of acquittal, or for a new trial." Pa.R.Crim.P. 704(8). Rule 704(B) is intended to
allow the trial judge the opportunity to address only those errors so manifest that immediate
relief is essential. Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. Ct. 2009).
Appellate courts have repeatedly held that "we will not allow such motions as a 'substitute
vehicle' for raising a matter that should be raised in a post-sentence motion." Id.
Here, the prosecutor did not commit such a manifest error that would justify granting
Defendant's motion for extraordinary relief As described above, the prosecutor's comments did
not lead any jurors to draw any inferences adverse to Defendant, and the jury properly followed
the trial court's instructions as to the Commonwealth's burden and Defendant's right to remain
silent. Therefore, the trial court properly denied Defendant's motion for extraordinary relief.
6. The Trial Court Properly Denied Defendant's Request For A
Kloiber Jury Instrnction Regarding Identification Testimony
Defendant argues that the trial court erred by refusing to give the jury a specific
instrnction related to the accuracy of identification testimony based upon Pennsylvania
Suggested Standard Criminal Jury Instruction 4.07B, "Identification Testimony-Accuracy In
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Doubt." Defendant claimed several factors supported giving the Kloiber instruction, including:
(1) Coleman's lack of sleep and statement to detectives that he was not sure ifhe was "mentally
awake or alert," (2) the robbery occurred late at night, it was dark outside at the time of the
robbery, and there were no street lights in the area of the robbery, (3) Coleman's opportunities to
observe the person who robbed him occurred with his back to the person, looking over his
shoulder for a few seconds, and with only a quarter-face view of the person, (4) Coleman was
unable to give a clothing description of the person who robbed him, (5) Coleman could not
accurately provide a description of the weapon, and (6) the robbery was surprising and an
"exciting thing" that impaired his ability to observe. N.T. 07/05/2013 at 2-13. For the reasons
stated below, Defendant's claim fails.
When reviewing a challenge to a jury instruction, the charge as a whole must be
considered. There is no error in failing to give a specific charge when the trial court provides a
full and complete charge. Commonwealth v. Vincens-Rodriguez, 911 A.2d 116, 120 (Pa. Super.
Ct. 2006). An appellate court will reverse a trial court's instruction only when it abuses its
discretion or commits an error of law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa.
2009). When giving jury instrnctions, the trial court has broad discretion in phrasing the
instructions so long as the instrnctions given "clearly, adequately, and accurately" reflect the
law. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011).
Appellate courts examine the charge in its entirety to determine if it accurately and fairly
sets forth the law to the jury. Commonwealth v. Ogrod, 839 A.2d 294, 331-32 (Pa. 2003). A trial
court is not required to instruct the jury, verbatim, with all requested instructions, even if the
substantive law within the proposed charge is without error. Id. The trial court is merely required
to explain clearly and accurately the law to the jury; the trial court is not required to use the form
requested by a party. Id. ( citing Co111111011wea/1h v. Jones, 683 A.2d 1181, 1196 (Pa. 1996)).
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Defendant's claim of error fails for several reasons. First, as discussed above, Coleman
consistently identified Defendant without hesitation on the night of the robbery, at the
preliminary hearing and at trial. Second, he never hedged on his identification, failed to identify
Defendant, or made an incorrect identification prior to trial. Thus, Defendant's arguments relate
only to the credibility and reliability of Coleman's testimony at trial, not that he was physically
precluded from observing Defendant or made a prior misidentification. Compare Commonwealth
v. Collins, 70 A.3d 1245, 1255 (Pa. Super. Ct. 2013) (a Kloiber instruction is appropriate only
where a witness might be physically incapable of making a reliable observation as opposed to the
typical credibility determinations made by a fact-finder such as a witness who is intoxicated);
Commonwealth v. Paolello, 665 A.2d 439 (Pa. Super. Ct. 1995) (Kloiber instruction not required
where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room,
awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super.
Ct. 2003) (Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to
identify the defendant on a prior occasion, or where a witness is physically prevented or
obstructed from making an identification).
Moreover, the trial court comprehensively instructed the jury on how to determine the
credibility and reliability of testimony of a witness, which included instructions on conflicts in
testimony, reliability of witness testimony, and mistaken recollections:
You must consider and weigh the testimony of each witness and
give it such weight as, in your judgment, it is fairly entitled to
receive. The matter of the credibility of a witness, that is, whether
their testimony is believable and accurate, in whole or in part, is
solely for your determination. I will mention some of the factors
which might bear on that determination. Whether the witness has
any interest in the outcome of the case, or has friendship or
animosity towards other persons concerned in the case; the
behavior of the witness on the witness stand, and his or her
demeanor manner of testifying. And whether they show any bias or
prejudice that might color their testimony. The accuracy of his or
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her memory and recollection and his or her ability and opportunity
to acquire knowledge of or to observe the matters concerning that
which they testified. The consistency or inconsistency of their
testimony, as well as its reasonableness or unreasonableness in
light of all of the evidence in the case.
[ ... )
If you find there are conflicts in the testimony, you, the jury, have
the duty to decide which testimony to believe. But you should first
try to reconcile, that is, fit together any conflicts in the testimony if
you can fairly do so. Discrepancies in and conflicts between the
testimony of different witnesses may or may not cause you to
disbelieve some or all of their testimony. Remember that two or
more persons witnessing an incident may see or hear it happen
differently.
Also, it is not uncommon for a witness to be innocently mistaken
in his or her recollection of how something happened. If you
cannot reconcile a conflict in the testimony, it is up to you to
decide which testimony, if any, to believe, and which to reject as
not true or inaccurate. In making this decision, consider whether
the conflict involves a matter of importance to your decision, or
merely some unimportant detail. And you should consider whether
the conflict is brought about by an innocent mistake or by an
intentional falsehood. You should also keep in mind the other
factors already discussed which go into deciding whether or not to
believe a particular witness.
In deciding which of conflicting testimony to believe, you should
not necessarily be swayed by the number of witnesses on either
side. You should consider whether the witnesses appear to be
biased or unbiased, whether they are interested or disinterested,
and you should consider all other factors which go to the reliability
of their testimony. The important thing is the quality of the
testimony of each witness. You should also consider the extent to
which conflicting testimony is supported by other evidence.
N.T. 07/05/2013 at 109-13.
The charge as a whole advised the jury that any testimony by a witness-including
statements of identification-are not sacrosanct and that testimony should be given such weight
as the jury believes is appropriate given the witness's "ability and opportunity to acquire
knowledge of or to observe the matters concerning that which they testified," whether it is
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qualified or weakened through cross-examination, and whether it was "corroborated or
contradicted by any other evidence."
Thus, the failure to give the specific charge on identification testimony is without merit
because Defendant was not entitled to a Kloiber charge based solely upon issues of credibility
and the trial court properly instructed the jury on how to consider and weigh testimony from a
witness.
CONCLUSION
Based on the for goin , the judgment of sentence should be affirmed.
B~URT:
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Commonwealth v. Wesley Waters
CP-51-CR-0004959-2011
118 EDA 2013
PROOF OF SERVICE
I hereby certify that I am this day caused to be served the foregoing this person(s), and in the
manner indicated below:
Attorney for the Commonwealth:
Hugh Bums, Esquire
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal O Regular mail (X) CJC mailbox (X) Email
Attorney for Defendant:
Joseph T. Schultz, Esq.
Two Penn Center, Suite 200
Philadelphia, PA 19102
Type of Service: ( ) Personal (X) Regular mail () CJC mailbox (X) Email
Defendant:
Wesley Waters
DOB: 05/30/1988; Inmate#: HN3818,
PID/PP#:0938798,SID:26118913
SCI Smithfield
1120 Pike Street, P.O. Box 999
Huntingdon, PA 16652
Type of Service: ) Personal (X) Regular mail () CJC mailbox
Bobby 96hoa, Esquire
Law Clerk to Hon. Daniel J. Anders