Com. v. Ligon, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRECE LIGON
Appellant No. 3229 EDA 2014
Appeal from the Judgment of Sentence July 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001138-2012
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 12, 2016
Appellant, Tyrece Ligon, appeals from the July 18, 2014 aggregate
judgment of sentence of 15 to 30 years’ imprisonment, to be followed by 10
years’ probation, after his conviction by a jury of one count each of
aggravated assault, possession of an instrument of a crime, carrying a
firearm without a license, carrying a firearm in public in Philadelphia, and
criminal conspiracy, as well as his conviction following a bench trial for one
count of persons not to possess a firearm.1 After careful review, we affirm.
The trial court has fully and accurately recounted the facts of this case
in its opinion filed pursuant to Pennsylvania Rule of Appellate Procedure
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a), 907(a), 6106(a), 6108, 903(c), and 6105(a)(1).
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1925(a), and we need not repeat them here. See Trial Court Opinion,
7/16/15, at 2-9. Relevant to this appeal, Appellant was arrested for
shooting Howard Filmore twice in the back. Id. at 2. Filmore was involved
in a confrontation with Linda Burrell, Appellant’s girlfriend’s mother. Id.
Ms. Burrell sought the help of her two daughters, Latrice Burrell and
Shamira Stanfield in confronting Filmore. Id. Appellant drove the daughters
to the scene, and the altercation escalated to Appellant shooting Filmore as
he fled from Ms. Stanfield who had struck Filmore with an aluminum baseball
bat. Id. at 3. Appellant was arrested following the incident.
On April 8, 2014, a jury trial, followed by a bench trial, was held. At
the conclusion of said trials, Appellant was convicted of the aforementioned
crimes. On July 18, 2014, the trial court sentenced Appellant to 15 to 30
years’ imprisonment followed by 10 years’ probation. No post-sentence
motions were filed. On August 7, 2014, Appellant filed a timely notice of
appeal.2
On appeal, Appellant raises the following issues for our review.
1. Whether the [t]rial [c]ourt erred as a matter of
law by not declaring a mistrial following the assistant
district attorney’s inflammatory statements during
closing arguments to the jury regarding uncharged
misconduct and the conduct of others in the
courtroom who did not testify at trial[?]
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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2. Whether the trial court erred as a matter of law
by not giving a curative instruction to the jury
because the assistant district attorney argued facts
not in evidence with regards to witness intimidation,
alleged uncharged misconduct, and the conduct of
others in the courtroom who did not testify at trial[?]
3. Whether the trial court erred as a matter of law in
not granting a motion for judgment of acquittal
because there was insufficient evidence to find
[Appellant] guilty beyond a reasonable doubt due to
the alleged victim’s grossly inconsistent statements
and recollection of what actually occurred on the
date in question[?]
Appellant’s Brief at 7.
In his first two issues, Appellant asserts a mistrial should have been
declared following “improper and prejudicial remarks in [the
Commonwealth’s] closing argument to the jury.” Id. at 13. Alternatively,
Appellant asserts the trial court erred when it failed to give a curative
instruction to the jury regarding the prejudicial comments. Id. at 18.
However, both the Commonwealth and the trial court assert that Appellant
waived both of these issues by failing to object, failing to request a curative
instruction, and failing to request a mistrial below. Commonwealth’s Brief at
7-9; Trial Court Opinion, 7/16/15, at 11.
It is axiomatic that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our
Supreme Court has repeatedly emphasized the importance of issue
preservation.
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Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). By requiring that an
issue be considered waived if raised for the first time
on appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations
omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.
2013).
Instantly, a review of the trial transcript confirms the observations of
the trial court and the Commonwealth that Appellant failed to object to the
Commonwealth’s closing statement. Further, Appellant did not request a
curative instruction or make a motion for a mistrial on the record. In fact,
after the trial court finished charging the jury the following occurred.
The Court: We are in the anteroom outside the
hearing of the jury. I have [Defense Counsel] here.
I have [the Assistant District Attorney] here. And
my purpose is to ascertain if either of you have any
objections to or requests for additional instructions
or questions for clarification, anything at all that you
wish to bring to my attention before the jury goes
out to deliberate. [Defense Counsel]?
[Defense Counsel]: None, Your Honor.
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The Court: Ma’am?
[Assistant District Attorney]: None, Your Honor.
The Court: All right. So then we’ll send the jury out,
and we’ll await their verdict.
N.T., 4/10/14, at 147. Further, Appellant did not file a post-sentence
motion. Therefore, we deem Appellant’s first two issues waived on appeal
for want of preservation. See F.C., supra.
In his third issue, Appellant argues the trial court erred in denying his
motion for judgment of acquittal. Appellant’s Brief at 22. Specifically, in his
Rule 1925(b) statement, Appellant argued “there was insufficient evidence
to find [Appellant] guilty beyond a reasonable doubt given the victim’s
grossly inconsistent statements.” Appellant’s Rule 1925(b) Statement,
1/6/15, at 2. However, in his brief, Appellant does not develop a sufficiency
argument, rather, he again argues the Commonwealth’s closing statements
wrongly influenced the jury’s verdict. Specifically, Appellant argues “[w]hile
it is within the power of the jury to resolve conflicts within testimony, the
prosecutor’s closing arguments provided them with a prejudicial source to do
so.” Appellant’s Brief at 23. Arguing further that “[t]here was no other
evidence presented to resolve the conflicting testimony other than the
prosecutor’s closing argument. … The jury wasn’t even provided with a
curative instruction to sanitize the prosecution’s statements.” Id. As noted
above, Appellant has waived any argument challenging the Commonwealth’s
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closing statement by failing to object to the statement and failing to request
a curative instruction. Accordingly, Appellant’s third issue is also waived.
Based on the foregoing, we conclude all of Appellant’s issues are
waived. Accordingly, we affirm the trial court’s July 18, 2014 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2016
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