Com. v. Carroll, S. ( 2017 )

J-S56035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAHEED CARROLL,
Appellant No. 1930 EDA 2016
Appeal from the Judgment of Sentence January 5, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0013189-2014
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2017
Appellant, Shaheed Carroll, appeals from the judgment of sentence
imposed following his jury conviction of robbery and related crimes, notably,
intimidation of a witness. He challenges certain testimony as inadmissible
hearsay, and a comment of the prosecutor during final argument, which he
claims constituted impermissible vouching for the credibility of the
complaining witness. He also challenges the sufficiency of the evidence for
the conviction of intimidation of a witness, and the weight of the evidence in
general. We affirm.
We derive the facts of the case from the trial court’s opinion and our
independent review of the record. (See Trial Court Opinion, 1/23/17, at 2).
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* Retired Senior Judge assigned to the Superior Court.
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This case involves two successive robberies, about a month apart, of
the same victim.1 The victim, Tyreese Sheppard, initially claimed that he
was first assaulted by ten people. In the second attack he was assaulted by
three people, who had all been part of the original attack.
The Commonwealth’s theory of the case, reflecting Sheppard’s initial
accounts, was that the second robbery was in response to his report of the
first robbery to the police, as punishment for “snitching,” and as a warning
to stop further cooperation with the police.2 After his statement to the police
on the second robbery, Mr. Sheppard substantially changed his claims. In
essence, his revised explanation exonerated Appellant.
In the first robbery, shortly after midnight on August 10, 2014,
Sheppard initially reported that he was assaulted by a group of about ten
persons (nine males and one female, “Ebony”) while he was walking his
then-girlfriend home from the Frankford Transportation Center in the vicinity
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1 The two robbery/intimidation cases were tried together. Appellant, Darnell
Woodson, and Edward Martin, the alleged perpetrators of the second
robbery, were all tried together, after a motion for severance was denied.
All three were convicted. This Court has previously affirmed the judgments
of sentence for Martin and Woodson. See Commonwealth v. Martin, No.
243 EDA 2016, 2017 WL 3114935, at *1 (Pa. Super. filed April 12, 2017);
Commonwealth v. Woodson, No. 1576 EDA 2016, 2017 WL 3142527, at
*1 (Pa. Super. filed July 25, 2017).
2 It bears noting that Sheppard, then age 27, testified he was receiving
social security benefits for mental health issues, viz., “[m]ild MR and
bipolar.” (N.T. Trial, 10/26/15, at 87).
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of Bustleton and Cheltenham Avenues in Northeast Philadelphia. (See N.T.
Trial, 10/26/15, at 86-100, 118-19). Sheppard testified that the assailants
accused him of taking “something from someone.” (Id. at 89; see also id.
at 90). There was also a vague allusion to a “he said−she said”
disagreement, which appeared to involve Ebony, identified by Sheppard as
the sister of Shaheed (Appellant). (See id. at 103-04).3
In any event, they attacked him and took his cell phone, kufi,4 ID, and
two hundred dollars in cash. Sheppard and his girlfriend flagged down police
on neighborhood patrol and reported the robbery within a few minutes.
Sheppard could not identify all the attackers, but did name some of the
assailants. (See id. at 100) (“I know them from the neighborhood.”). In
particular, he identified Appellant, Shaheed Carroll. (See id. at 103). Later
that night Sheppard reviewed and signed a written statement to the police.
About a month later, on September 20, 2014, Sheppard was assaulted
again, under similar circumstances. One of the three attackers threatened
him with a knife. All beat him, kicked him, and robbed him. He called the
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3 We recognize that counsel for Appellant maintained that the reference was
actually to the sister of another assailant in the first attack, Shadee, not
Shaheed [i.e., not Appellant]. (See N.T. Trial, 10/28/15, at 111-12). The
trial court properly decided that the alleged discrepancy was for the jury as
factfinder to resolve. (See id.). The discrepancy is not material to our
resolution of the issues on appeal.
4 A kufi is a short, brimless, rounded hat, commonly worn in West Africa,
South Asia, and by others of West African heritage.
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police a second time. At first he identified three people from the earlier
attack (including Appellant) as the perpetrators of the second attack.
Sheppard again signed a written statement to the police.
The trial court made the following related findings of fact:
On September 19, 2014, the complainant, Tyreese
Sheppard, was leaving a friend’s house on the 6100 block of
Frontenac St. in Philadelphia. At that location he was
approached by the defendant [Appellant], along with co-
defendants, Darnell Woodson and Edward Martin. The co-
defendant, Darnell Woodson made a comment regarding Mr.
Sheppard “snitching” about a previous robbery [on August 10,
2014] where he was the victim. The co-defendant Woodson
then started to instigate a fight between the two. The other co-
defendant Martin joined in the fight and both started punching
and kicking Mr. Sheppard all over his body. Mr. Sheppard fell to
the ground and at that point the defendant [Appellant] began
kicking him. All three defendants then went through Mr.
Sheppard’s pockets and took from him his cell phone, charger,
SEPTA5 Transpass [weekly or monthly transportation ticket],
headphones, and $5 before running off. Mr. Sheppard called
911 and was able to provide the police information so that his
cell phone could be tracked.
Based on the information about Mr. Sheppard’s cell phone,
police officers were able to track the phone to the area of 5300
Darrah Street. At that location, officers stopped the three co-
defendants since they matched the description given by Mr.
Sheppard. Mr. Sheppard positively identified each co-defendant
as being a participant in the robbery. The items Mr. Sheppard
identified as being taken from him by the co-defendants were
recovered from their possession.
(Trial Ct. Op., at 2) (record citations omitted).
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5 SEPTA is an acronym for the Southeastern Pennsylvania Transportation
Authority.
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Additionally, with specific reference to Appellant, Shaheed Carroll, we
note that Sheppard told the police, “He was kicking me once I was on the
ground. He said he was beating me up for snitching on them the last time
they robbed me. He was the one that took the $5 from me. He went
through my pockets and took it off of me.” (N.T. Trial, 10/26/15, at 116).
Sometime after making the initial reports, Sheppard apparently
reconsidered, and at least by the time of the preliminary hearing he was an
unabashedly reluctant witness: (“First, do you want to be here today?”
“No.”). (N.T. Preliminary Hearing, 11/21/14, at 6).
At trial, Sheppard offered this rationale: “Me, I’m 27. So I’m from the
streets. So I always look at it like if you [sic] in [c]ourt and you [sic] sitting
here talking about someone, it’s snitching. I’ve never been a snitch a day in
my life, so − [.]” (N.T. Trial, 10/26/15, at 108).6
In his trial testimony, Sheppard recanted or radically revised much, if
not most, of his earlier statements. In particular, after previously identifying
Appellant as one of the assailants who kicked and beat him, (see id. at 115-
16), at trial Sheppard claimed that Appellant was not involved in the second
attack at all. He testified instead that Appellant was merely an onlooker.
(See id. at 97) (“I say [he] spectated. Just so, like, oh, like you know, just
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6 Mr. Sheppard also tried (unsuccessfully) to leave court early, claiming
vaguely that he had a prior appointment required by Social Security. (See
N.T. Trial, 10/26/15, at 159-60). The judge ordered him to stay.
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normal spectating.”). Sheppard added that “Shaheed [Appellant] was all the
way on the other side of the street.” (Id. at 109).
The Commonwealth read into the record the text of Sheppard’s earlier,
signed, incriminatory statements to the police, identifying Appellant as an
active assailant. Sheppard agreed that he had reviewed and signed the
statement of August 10, 2014, Commonwealth C-8. (See id. at 98).
Sheppard also agreed that he had reviewed and signed the statement of
September 20, 2014, Commonwealth C-9. (See id. at 110-11).
Pertinent to the first issue on appeal, over the objection of Appellant’s
defense counsel, the Commonwealth also read the following statement by
Sheppard to the police into the record:
“When they found out that I had filed a report against
them, I got word back that whenever they came across me, they
were going to beat me up and rob me again.”
(Id. at 113, lines 18-21).
On cross-examination, Sheppard admitted his prior incarceration,
having pleaded guilty to theft by unlawful taking by the use of another
person’s credit card information. (See id. at 143-45). The defense lawyers
for all three defendants also read selective portions of the prior statements,
highlighting, inter alia, inconsistencies with his trial testimony. They all
called Sheppard’s credibility into question.
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In her closing argument, the prosecutor stated, inter alia, that “[t]he
law foresees that there’s going to sometimes, maybe, be outside influences
that may cause you to backtrack . . . . The law understands that maybe Mr.
Tyreese Sheppard has to go back home.” (N.T. Trial, 10/28/15, at 101-
102). The trial court overruled the objection of Appellant’s counsel.
The jury was undecided on all charges arising out of the August
assault.7 (See Trial Ct. Op., at 1 n.1). It convicted Appellant of the
following charges arising out of the September assault: robbery,
(threatening bodily injury),8 conspiracy to commit robbery, (threatening
bodily injury),9 intimidation of a witness,10 and simple assault.11 The jury
was undecided on the remaining charges.12 The Commonwealth nolle
prossed the remaining charges, declining to re-prosecute them.
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7 Specifically, the jury could not reach a verdict on robbery, (threatening
serious bodily injury); robbery, (threatening bodily injury); conspiracy to
commit robbery, (threatening serious bodily injury); conspiracy,
(threatening bodily injury; theft by unlawful taking; receiving stolen
property; simple assault; and recklessly endangering another person. (See
N.T. Trial, 11/02/15, at 12-13).
8 18 Pa.C.S.A. § 3701(a)(1)(iv).
9 18 Pa.C.S.A. § 903.
10 18 Pa.C.S.A. § 4952.
11 18 Pa.C.S.A. § 2701.
12 Specifically, the jury could not reach a verdict on robbery, (threatening
serious bodily injury); conspiracy to commit robbery, (threatening serious
(Footnote Continued Next Page)
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On January 5, 2016, the court sentenced Appellant to a term of
incarceration of not less than six and one-half nor more than thirteen years
in a state correctional institution. Appellant’s post-sentence motion,
including a challenge to the weight of the evidence, was denied by operation
of law. This timely appeal followed.13
Appellant raises four questions for our review:
1. Did not the trial court err by allowing the introduction
of inadmissible hearsay evidence through testimony of the
complainant and a detective in the form of statements made by
unknown third parties, that were offered solely to prove the guilt
of [A]ppellant and his co-defendants?
2. Did not the trial court err by overruling [A]ppellant’s
objection to improper remarks made by the prosecutor during
her summation, inasmuch as the prosecutor’s statements
violated due process by improperly expressing a personal
opinion as to the credibility of the complainant’s statement to
detectives and misstating the law regarding prior inconsistent
statements, thereby depriving [A]ppellant of his federal and
state constitutional rights to due process, a fair and impartial
jury, and a fair trial?
3. Was not the evidence insufficient to support the verdict
of intimidation as a matter of law, where the complainant was
not a witness or a victim in any criminal matter at the time of
the September robbery and the only evidence as to [A]ppellant’s
conduct during the September robbery was that he said he was
(Footnote Continued) _______________________
bodily injury); theft by unlawful taking; receiving stolen property; and
recklessly endangering another person.
13Appellant filed a timely court-ordered statement of errors on July 15,
2016. The trial court filed an opinion on January 23, 2017. See Pa.R.A.P.
1925.
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beating up the complainant because the complainant snitched,
which was not conduct intended to thwart the administration of
justice?
4. Did not the trial court err by denying [A]ppellant’s post-
trial motion for a new trial, as the verdict was against the weight
of the evidence, where the Commonwealth’s complainant
admitted to lying at various times throughout the proceedings
and provided so many differing versions of events such that the
totality of the evidence was so tenuous, vague and uncertain,
that it did not support the verdict and a new trial was necessary
in the interests of justice?
(Appellant’s Brief, at 5-6).14
Appellant first argues that the trial court erroneously permitted the
admission of inadmissible hearsay evidence.15 (See Appellant’s Brief, at 20-
26). We disagree.
The standard of review employed when faced with a
challenge to the trial court’s decision as to whether or not to
admit evidence is well settled. Questions concerning the
admissibility of evidence lie within the sound discretion of the
trial court, and a reviewing court will not reverse the trial court’s
decision absent a clear abuse of discretion. Abuse of discretion
is not merely an error of judgment, but rather where the
judgment is manifestly unreasonable or where the law is not
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14 Appellant’s brief exceeds forty-one pages, substantially in excess of the
thirty-page “safe harbor” maximum. Counsel for Appellant has failed to
comply with the requirement to certify that the brief does not exceed the
rule-based word limit. See Pa.R.A.P. 2135. We could quash this appeal on
that basis alone. See Commonwealth v. Spuck, 86 A.3d 870, 871 (Pa.
Super. 2014), appeal denied, 109 A.3d 679 (Pa. 2015). Nevertheless, we
decline to do so for reasons of judicial economy.
15 Appellant implies multiple claims of hearsay, but in point of fact the only
claim specifically mentioned, let alone developed, is the (oft-repeated)
reference to the “I got word back” statement. (Appellant’s Brief, at 20, 21,
22, 23, 25).
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applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Hearsay is defined as “a statement other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Pa.R.E.
801(c).
Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007),
appeal denied, 951 A.2d 1159 (Pa. 2008) (case citation omitted).
“We have repeatedly declared, however, that an out-of-court
statement offered to explain the course of conduct of police is not hearsay.
Since the challenged statement was offered merely to establish the officer’s
course of conduct, appellant’s complaint is without merit.” Commonwealth
v. Hill, 549 A.2d 199, 203 (Pa. Super. 1988), appeal denied, 563 A.2d 887(Pa. 1989) (citations omitted); see also Commonwealth v. Carroll, 513
A.2d 1069, 1071 (Pa. Super. 1986) (course of conduct exclusion not limited
to conduct of police).
Here, the trial court expressly noted its conclusion that the statement
to the police officer formed the basis of the police investigation. (See N.T.
Trial, 10/26/15, at 113). On independent review, we agree. The statement
was not offered for the truth of the matter, but to show the basis of the
police linking investigation of the September attack to the August attack.
We would add that the statement also established the state of mind of
the victim (who testified that he tried, unsuccessfully, to take evasive action
to avoid his would-be assailants) providing an explanation for his later
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change of heart about testifying against Appellant, after he was robbed and
beaten a second time.
Furthermore, our Supreme Court has recently reaffirmed that evidence
of other crimes, while generally not admissible solely to show criminal
propensity, may be admissible in special circumstances where it is relevant
for some other legitimate purpose; such as the res gestae exception, where
the evidence became part of the history of the case and formed part of the
natural development of the facts. See Commonwealth v. Cousar, 154
A.3d 287, 303–04 (Pa. 2017) (citing Commonwealth v. Lark, 543 A.2d
491, 497 (Pa. 1988)). Thus, under the res gestae exception evidence can
also be admissible to show motive and complete the story of the case. See
Cousar, supra at 304 (citing Lark, supra at 497).
We conclude that in this case, as in Cousar and Lark, the threat of
retribution would be a part of the history of the case which completes the
story and forms part of the natural development of the facts, from robbery
to police report, to threat of retribution, to retribution, under the res gestae
exception.
The Commonwealth further notes that the prior statement of a
recanting witness challenged as hearsay is admissible both as a prior
inconsistent statement and as evidence of the declarant’s state of mind.
(See Commonwealth’s Brief, at 10) (citing Commonwealth v. Ragan, 645
A.2d 811, 818-19 (Pa. 1994) (holding signed statement of identifying
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witness who later recanted was admissible both as prior inconsistent
statement by recanting witness, and as evidence of witness’ state of mind)).
We agree. The anonymous threat of retribution was not presented for
the truth of the matter, but rather to show the witness’ state of mind and to
explain why the witness’ trial testimony conflicted with his prior statements.
Furthermore, even if the statement was hearsay, it was merely
cumulative of other admissible evidence. See Commonwealth v. Luster,
71 A.3d 1029, 1042 (Pa. Super. 2013), appeal denied, 83 A.3d 414 (Pa.
2013) (murder victim’s allegedly hearsay statement that appellant was going
to harm her was merely cumulative of other evidence, and harmless error).
Here, notably, Sheppard reported to the police that while he was being
assaulted (for the second time) Appellant told him directly that he was being
robbed and beaten for “snitching.” (N.T. Trial, 10/26/15, at 116).
Finally, on this claim, Appellant argues that the purportedly erroneous
admission of the rumor/report reference was the corroboration on which the
Commonwealth “hung their [sic] hat.” (Appellant’s Brief, at 26). Appellant
argues, in effect, that admitting the evidence “was not harmless error,”
because the reference was needed to obtain a guilty verdict. (Id.). In other
words, Appellant asserts that without the erroneously admitted evidence, he
would have been acquitted. He concludes “a new trial is warranted.” (Id.).
We disagree.
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This claim is unsupported and speculative. Sheppard’s report of a
rumor did not identify Appellant or any other potential perpetrators. The
single, brief reference to a rumor or report that unnamed parties intended to
beat and rob Sheppard is merely cumulative of Sheppard’s direct statement
(albeit later recanted) that Appellant (and the other co-defendants) did beat
him, kick him and rob him for snitching. (See N.T. Trial, 10/26/15, at 116).
Even if improperly admitted−a conclusion we emphatically reject for the
reasons already noted−it would have been at most harmless error.
Here, the trial court committed no error. The statement was not
hearsay. It was properly admitted as a prior statement inconsistent with
Sheppard’s subsequent recantation, indicating his state of mind, to complete
the story of the case and explain both the police course of conduct and his
own. Moreover, Sheppard, the declarant, testified and was subject to cross-
examination, excluding his statement from the hearsay rule. See Pa.R.E.
803.1(1). We discern no basis on which to disturb the discretion of the trial
court. Appellant’s first claim does not merit relief.
In his second claim, Appellant argues that the prosecutor improperly
vouched for the credibility of Sheppard. (See Appellant’s Brief, at 27-30).
Appellant references that in closing argument the prosecutor stated that
“outside influences . . . may cause [you] to backtrack[,]” i.e., cause
Sheppard to recant his incriminating testimony. (Id. at 27) (citing N.T.
Trial, 10/28/15, 101-103) (internal quotation marks omitted). In an
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apparent reference to Sheppard’s testimony that he knew his assailants from
the neighborhood, the prosecutor added, “The law understands that maybe
Mr. Tyreese Sheppard has to go back home.” (N.T. Trial, 10/28/15, at 102).
Appellant maintains that the prosecutor’s statements improperly
vouched for Sheppard by expressing a personal opinion as to the credibility
of his statements to the police, entitling him to a new trial. We disagree.
It is well-settled that vouching is a form of prosecutorial misconduct,
occurring when a prosecutor “places the government’s prestige behind a
witness through personal assurances as to the witness’s truthfulness, and
when it suggests that information not before the jury supports the witness’s
testimony.” Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014) (citing
Commonwealth v. Williams, 896 A.2d 523, 541 (Pa. 2006)).
Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion:
In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a perfect
one.
Generally, a prosecutor’s arguments to the jury are
not a basis for the granting of a new trial unless the
unavoidable effect of such comments would be to prejudice
the jury, forming in their minds fixed bias and hostility
towards the accused which would prevent them from
properly weighing the evidence and rendering a true
verdict.
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to present
his or her arguments with logical force and vigor. The
prosecutor is also permitted to respond to defense
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arguments. Finally, in order to evaluate whether the
comments were improper, we do not look at the comments
in a vacuum; rather we must look at them in the context in
which they were made.
Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008) (citations
omitted).
A prosecutor may make fair comment on the admitted
evidence and may provide fair rebuttal to defense arguments.
Even an otherwise improper comment may be appropriate
if it is in fair response to defense counsel’s remarks. Any
challenge to a prosecutor’s comment must be evaluated in the
context in which the comment was made.
Not every unwise, intemperate, or improper remark
made by a prosecutor mandates the grant of a new trial[.]
Reversible error occurs only when the unavoidable effect of
the challenged comments would prejudice the jurors and
form in their minds a fixed bias and hostility toward the
defendant such that the jurors could not weigh the
evidence and render a true verdict.
While it is improper for a prosecutor to offer any
personal opinion as to the guilt of the defendant or the
credibility of the witnesses, it is entirely proper for the
prosecutor to summarize the evidence presented, to
offer reasonable deductions and inferences from the
evidence, and to argue that the evidence establishes
the defendant’s guilt . . . . [The] prosecutor must be
free to present his or her arguments with logical force and
vigor, and comments representing mere oratorical flair are
not objectionable.
Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014), cert. denied, 135
S. Ct. 1493, 1494 (2015) (citations and internal quotation marks omitted)
(emphases added).
Here, furthermore, our independent review of the record reveals that
Appellant’s defense counsel did not object to “vouching” at trial. (See N.T.
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Trial, 10/28/15, at 101-02, 112-13, 115). Rather, counsel objected that the
prosecutor’s closing statement erroneously invoked a purported presumption
of law to the effect that victims of crime want to tell the truth about the
crime committed against them. (See, e.g., id. at 113) (defense counsel did
not object to vouching; instead, he asked, “What law presumes that?”).
Accordingly, Appellant’s claim of vouching is waived. See Pa.R.A.P.
302(a). (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). Moreover, it would not merit relief.
Preliminarily, we note that the challenged statement by the prosecutor
does not in fact constitute vouching as defined by our controlling authority.
See Reid, supra at 447; Williams, supra at 541. The prosecutor did not
offer her personal opinion on the credibility of the witness. She did not refer
to information outside the record. She referred to an alternate statement
already on the record as the testimony more worthy of belief. “A prosecutor
may make fair comment on the admitted evidence and may provide fair
rebuttal to defense arguments.” Burno, supra at 974 (citation omitted).
“[I]t is entirely proper for the prosecutor to summarize the evidence
presented, to offer reasonable deductions and inferences from the evidence,
and to argue that the evidence establishes the defendant’s guilt[.]” Id.
(citation omitted).
Additionally, Appellant’s intertwined companion argument, that the
prosecutor misstated a supposed presumption of law, does not merit relief
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either. On independent review, we conclude that the prosecutor’s comments
were made in fair response to repeated challenges by all three defense
counsel to Sheppard’s credibility based on his inconsistent statements.
“Even an otherwise improper comment may be appropriate if it is in fair
response to defense counsel’s remarks.” Id. at 974 (citation omitted); see
also Pa.R.E. 803.1(1); Commonwealth v. Brady, 507 A.2d 66, 69 (Pa.
1986); Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992).
We find here that the prosecutor’s statements were an attempt, in fair
response even if arguably inartful, to invoke the undisputed principle that
the Commonwealth was entitled to introduce the prior inconsistent signed
statements of a recanting witness, known as the Brady/Lively rule.16 (See
N.T. Trial, 10/28/15, at 115) (prosecutor citing Brady/Lively rule).
Additionally, the trial court properly instructed the jury that it was to
apply only the law on which the court instructed it, and that the arguments
of counsel were not to be considered as part of the evidence. (See N.T.
Trial, 10/28/15, at 120, 126). “It is settled law that, absent evidence to the
contrary, the jury is presumed to have followed the trial court’s instructions .
. . , and Appellant does not point to any evidence to the contrary.”
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16 See Commonwealth v. Chmiel, 738 A.2d 406, 419 (Pa. 1999), cert.
denied, 528 U.S. 1131 (2000) (noting that under Brady/Lively, prior
inconsistent statements of non-party witness may be used as substantive
evidence where declarant is witness at trial and available for cross-
examination).
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Commonwealth v. Laird, 988 A.2d 618, 629 (Pa. 2010), cert. denied, 562
U.S. 1069 (2010) (citation omitted). Appellant’s claim that the jury was
misled and confused on the controlling law by the prosecutor’s remarks
ignores well-settled presumptions, and lacks independent foundation in
either law or the facts.
Finally, it is obvious that the prosecutor’s comments did not prejudice
the jury against Appellant, forming in their minds fixed bias and hostility
which would require a new trial. To the contrary, the jury acquitted
Appellant of all charges relating to the first robbery and numerous remaining
charges associated with the second robbery. (See N.T. Trial, 11/02/15, 12-
18). Appellant’s second claim does not merit relief.
In his third claim, Appellant asserts that the evidence was insufficient
to convict him of intimidation of a witness. (See Appellant’s Brief, at 31-
36). We disagree.
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record “in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.”
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
(2000). “Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt.” Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005). Nevertheless, “the
Commonwealth need not establish guilt to a mathematical
certainty.” Id.; see also Commonwealth v. Aguado, 760
A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts and
circumstances established by the Commonwealth need not be
absolutely incompatible with the defendant’s innocence”). Any
doubt about the defendant’s guilt is to be resolved by the fact
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finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances. See Commonwealth v. DiStefano,
782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “[t]he fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be upheld.
See Brewer, 876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013) (one
citation omitted).
A person commits an offense if, with the intent to or with
the knowledge that his conduct will obstruct, impede, impair,
prevent or interfere with the administration of criminal justice,
he intimidates or attempts to intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning any
information, document or thing relating to the commission of a
crime.
(2) Give any false or misleading information or testimony
relating to the commission of any crime to any law enforcement
officer, prosecuting official or judge.
(3) Withhold any testimony, information, document or
thing relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or testimony
or refrain from giving any testimony, information, document or
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thing, relating to the commission of a crime, to an attorney
representing a criminal defendant.
(5) Elude, evade or ignore any request to appear or legal
process summoning him to appear to testify or supply evidence.
(6) Absent himself from any proceeding or investigation to
which he has been legally summoned.
18 Pa.C.S.A. § 4952(a).
Here, under our standard of review, viewing the evidence and all
reasonable inferences in the light most favorable to the Commonwealth as
verdict winner, we have no hesitation in concluding that there was more
than ample evidence to support Appellant’s conviction of intimidation of a
witness.
Preliminarily, we agree with the trial court that Appellant’s generic
assertion of insufficiency in his Rule 1925(b) statement of errors “as a
matter of law” is too vague to enable meaningful review. (See Trial Ct. Op.,
at 8; see also Statement of Errors Complained of on Appeal, 7/15/16, at
unnumbered page 2) (“[T]he evidence was insufficient as a matter of law to
convict on the charge of Intimidation of Witnesses or Victims, 18 Pa.C.S.A.
§ 4952, as a felony of the first degree.”).
When the trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues. In other words, a Concise Statement which is too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all.
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Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002) (citations
and internal quotation marks omitted). Accordingly, Appellant’s third claim
is waived.
Moreover, his argument on appeal would not merit relief. Appellant
argues chiefly that at the time of the September robbery Sheppard “was not
a victim or a witness in any criminal matter[.]” (Appellant’s Brief, at 31).
Appellant also argues that even though the evidence presented against him
might prove retaliation, it does not prove intimidation. (See id. at 33). We
disagree.
Appellant’s gratuitous assumption that Sheppard was neither a victim
nor a witness is unsupported, and in fact, belied by the record.
Furthermore, Appellant’s somewhat paradoxical claim that because he
concedes he could be guilty of retaliation, he is not guilty of intimidation, is
without foundation in either controlling authority or the facts. It overlooks
the reality that Appellant could be (and actually was) materially guilty of
both crimes, even if the Commonwealth did not choose to charge that way.
Overarching all of these considerations, Appellant disregards our
standard of review, which views the evidence, together with all reasonable
inferences, in the light most favorable to the Commonwealth as verdict
winner. The jury as factfinder was free to accept evidence that Appellant
and his cohorts robbed Sheppard a second time both in retaliation for his
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report to the police of the first robbery, and to discourage him from further
cooperation. Appellant waived his third claim. It would not merit relief.
In Appellant’s fourth and final claim, he challenges the weight of the
evidence. (See id. at 36-42). Appellant asserts that the verdict was
“against the interests of justice.” (Id. at 19). He posits that the
inconsistencies in Sheppard’s testimony were “glaring and significant.” (Id.
at 41). He postulates that the evidence was “tenuous, vague and
uncertain.” (Id. at 42). He maintains this Court should remand for a new
trial. (See id.). We disagree.
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice. It has often been stated that
a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court.
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the weight
of the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
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against the weight of the evidence. One of the least
assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and
quotation marks omitted) (first emphasis added in original) (second
emphasis added here). “In order for an appellant to prevail on a challenge
to the weight of the evidence, ‘the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.’”
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003), appeal
denied, 833 A.2d 143 (Pa. 2003).
Conflicts in the evidence and contradictions in the testimony of any
witnesses are for the fact finder to resolve. See Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal denied, 32 A.3d 1275(Pa. 2011) (citations omitted) (“[T]he [trier] of fact while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part, or none of the evidence.”). “Moreover, in applying the
above test, the entire record must be evaluated and all evidence actually
received must be considered.” Id.Applying this standard of review, we discern no basis on which to
disturb the decision of the trial court. The trial court did not palpably abuse
its discretion. Weighing the evidence was the province of the jury sitting as
fact finder. The jury was free to believe all, part, or note of the evidence.
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Its verdict does not shock one’s conscience or sense of justice. Appellant’s
weight claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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