Com. v. Hart-Jones, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARWIN HART-JONES
Appellant No. 1291 EDA 2013
Appeal from the Judgment of Sentence March 28, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013806-2011
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 20, 2015
Darwin Hart-Jones appeals from the judgment of sentence entered in the Court of Comm
(“VUFA”).4 Upon review, we affirm.
On June 30, 2011, Khalif Gonzalez was walking westbound on
Horrocks Street with his friend Tyree Branch. Gonzalez testified that he saw
Hart-Jones standing at the corner of Horrocks and Unruh Streets, dressed in
black with a hoodie covering the top of his forehead and ears. As the pair
passed Hart-Jones, Branch said to Hart-Jones, “what are you looking at
____________________________________________
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 901(a).
3
18 Pa.C.S. § 2702(a).
4
18 Pa.C.S. §§ 6106(a)(1), 6108.
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pussy?” A minute or two later, Gonzalez heard three gunshots and he and
Branch ran towards their respective homes. Gonzalez, who received a
gunshot wound to his right arm, looked back at Hart-Jones and saw him tuck
a black gun with a clip into the front of his waistband. Branch, who was shot
in the back, ultimately died from his wounds.
On March 28, 2013, following a jury trial, Hart-Jones was found guilty.
Immediately thereafter, the court sentenced Hart-Jones as follows: life in
prison without the possibility for parole for the murder conviction; 10 to 20
years’ incarceration for the attempted murder conviction, to run
consecutively; 3½ to 7 years’ incarceration for the VUFA 6106 (firearms not
to be carried without a license) conviction, to run concurrently; and 2½ to 5
years’ incarceration for the VUFA 6108 (carrying firearms on public streets or
public property in Philadelphia) conviction, to run concurrently.
On April 9, 2013, Hart-Jones moved to file a post-sentence motion
nunc pro tunc, which the court granted on April 11, 2013. On April 26,
2013, the court denied his post-sentence motion without a hearing. This
timely appeal followed.
On appeal, Hart-Jones presents the following issues for our review:
1. Given the vagaries of eyewitness testimony; the fact that the
lone eyewitness only saw the shooter for 2-3 seconds at night
after being shot at and hit by gunfire and while running away
from the perpetrator; and his clothing description conflicted
with that of the defense’s witnesses, one of whom was also at
the scene and stated that another person was the shooter,
did the lower court abuse its discretion in not granting him a
new trial based upon the weight of the evidence?
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2. Where the Commonwealth asked a wholly impermissible
question suggesting that the Hart-Jones had admitted to
committing this crime to a third person, was the court’s
instruction, which did not directly address this error, sufficient
to cure the prejudice?
3. Where the prosecutor blatantly appealed to the passions of
the jury to convict Hart-Jones, at the very end of its closing
argument, did this emotional appeal create a jury verdict on
an improper basis?
Brief of Appellant, at 3.
In his first issue, Hart-Jones contends that the verdict was against the
weight of the evidence.
Our standard of review of a weight of the evidence claim is as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses. As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore, we will
reverse a jury’s verdict and grant a new trial only where the
verdict is so contrary to the evidence as to shock one’s sense of
justice. Our appellate courts have repeatedly emphasized that,
“[o]ne 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.” Furthermore,
where the trial court has ruled on the weight claim below, an
appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations omitted).
Hart-Jones concentrates his weight of the evidence argument on
challenging the jury’s credibility determinations. Specifically, Hart-Jones
attempts to discredit Gonzalez’ testimony by questioning the reliability of
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eyewitness testimony generally. See e.g., Commonwealth v. Walker, 92
A.3d 766 (Pa. 2014) (permitting expert testimony regarding eyewitness
identification at discretion of court based on policy of preventing wrongful
conviction due to erroneous eyewitness identification).
It is not within the province of this court to reweigh the court’s
credibility determinations. See Commonwealth v. DeJesus, 860 A.2d
102, 107 (Pa. 2004) (“The weight of the evidence is exclusively for the
finder of fact, which is free to believe all, part, or none of the evidence, and
to assess the credibility of the witnesses.”). Because Hart-Jones fails to
address the standard by which this Court reviews a weight of the evidence
claim and does not demonstrate an abuse of discretion by the trial court, he
is not entitled to any relief on his weight of the evidence claim.
Commonwealth v. Johnson, 985 A.2d 915, 926 (Pa. 2009).
In his second issue, Hart-Jones claims that the prosecutor committed
misconduct when she asked, “So did you hear that Fonz told detectives that
the defendant admitted to doing it?” N.T Trial, 3/27/13, at 112. This claim
is waived because Hart-Jones did not immediately request a mistrial.
A claim of prosecutorial misconduct is waived when a defendant
objects and his objection is sustained, but he does not request any
additional relief. Commonwealth v. Boring, 684 A.2d 561, 568 (Pa.
Super. 1996). See also Pa.R.Crim.P. 605(b) (“When an event prejudicial to
the defendant occurs during trial only the defendant may move for a
mistrial; the motion shall be made when the event is disclosed.”)
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Here, the trial court sustained defense counsel’s hearsay objection and
struck the question from the record. Defense counsel did not request a
mistrial. The court also sua sponte gave a curative instruction to which
defense counsel did not object. Accordingly, Hart-Jones cannot now claim
on appeal that the trial court abused its discretion for denying relief that
counsel did not request. See Commonwealth v. Jones, 668 A.2d 491 (Pa.
1995) (failure to request mistrial waives later claim that mistrial was
warranted).
Even if Hart-Jones had requested a mistrial, the trial court would have
been within its discretion to deny it. Whether to grant the extreme remedy
of a mistrial is a matter within the discretion of the trial court. “A trial court
need only grant a mistrial where the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and impartial trial.” Id.
at 503. Here, the court’s response, striking the question from the record
and giving a curative instruction, was sufficient to remove any prejudice
Hart-Jones may have suffered. See Commowealth v. Bedford, 50 A.3d
707, 713 (Pa. Super. 2012) (no error in denying mistrial where defendant
successfully objected to hearsay testimony and judge instructed jury to
disregard it; noting, “[w]e can presume the jury followed the court’s
instructions.”) Accordingly, we deny relief on this claim.
In his third issue, Hart-Jones alleges a second instance of prosecutorial
misconduct. Hart-Jones claims that the Commonwealth committed
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misconduct when it made the following “emotional appeal” at the end of its
closing:
When you put all of that evidence together, it all points at this
defendant. The only question is what are you going to do about
it? Don’t make me have to call [Gonzalez] and tell him I’m
sorry. You did the right thing [. . .] but it is not enough.
N.T. Trial, 3/27/13, at 224-25. Hart-Jones believes he is entitled to a new
trial based on this emotional appeal to the jury.
As we previously stated, a claim of prosecutorial misconduct is waived
when a defendant objects and his objection is sustained but he does not
request additional relief such as a curative instruction or a mistrial. Jones,
supra. Here, defense counsel objected to the prosecutor’s comment and
the trial court sustained his objection. Defense counsel did not seek any
further remedy.
Even if counsel had requested further relief, Hart-Jones would not be
entitled to a new a trial. Prosecutorial misconduct will be found if the
argument results in prejudice to the defendant. It does so when:
[T]he unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias and
hostility toward the defendant, thus impeding their ability to
weigh the evidence objectively and render a true verdict. Due to
the nature of a criminal trial, both sides must be allowed
reasonable latitude in presenting their cases to the jury.
Prosecutorial misconduct will not be found where comments
made were done for oratorical flair.
Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super. 2006).
Here, the trial court sustained defense counsel’s objection and
reminded the jury that the prosecutor’s closing argument is not evidence.
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N.T. Trial, 3/27/13, at 166. The court also gave an instruction that the jury
could not consider empathy or sympathy when reaching a verdict. N.T.
Trial, 3/28/13, at 6. Based on the foregoing, we agree with the trial court’s
conclusion that the comment at issue did not prejudice Hart-Jones so as to
warrant a new trial. Accordingly, we discern no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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