Com. v. Lewis, A. ( 2015 )

J-A20020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTONIO LEWIS,
Appellant No. 2758 EDA 2014
Appeal from the Judgment of Sentence April 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001893-2012
BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015
Appellant, Antonio Lewis, appeals from the judgment of sentence
entered April 28, 2014, following his conviction by a jury on November 1,
2013, of attempted murder, aggravated assault, robbery, recklessly
endangering another person (“REAP”), and a firearms violation. We affirm.
The trial court summarized the facts of the crime as follows:
On the night of August 12 and into the early morning
hours of August 13, 2011, Andy Love and his wife Danielle went
with some friends to visit another friend, “Sonny.” They went to
3149 Levick Street in Northeast Philadelphia. Andy had also
brought along his friends Jovon (“Joon”) and Keenan Commarty,
and some of his wife’s girlfriends. They sat with Sonny
reminiscing and drinking, when someone suggested smoking
marijuana. Around this time, Mr. Love saw three men enter the
house and begin speaking with Sonny; he believed they were
supplying the marijuana. One of these men walked up to Mr.
Love and said: “You look like somebody I know,” but Mr. Love
insisted he did not know the man. He then pulled out a gun and
told Mr. Love to hand over all of his money. Mr. Love did not
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take this seriously at first and laughed. The man said: “It’s not
a joke,” and shot Mr. Love in the leg. Mr. Love attempted to
grab the gun from the man and punched him in the face. Then
he turned to run from the house. While he was running away he
was shot again. Mr. Love testified that his arms felt like they
had been paralyzed following the shots from behind.
At around 1:30 A.M., Officer Michael Smith responded to a
report of a shooting in the area of 3149 Levick Street. Officer
Smith was travelling southbound on Frankford Avenue when he
observed the complainant, Mr. Love, laying in the middle of the
road. Mr. Love was in and out of consciousness, moaning in
pain, and bleeding heavily when Officer Smith approached.
Officer Smith radioed for an ambulance and secured the scene.
Two men approached the officer and said they were present at
the time of the shooting. The first witness, who was visibly
upset at the time, told the officer that the complainant had been
robbed and shot. He also gave the officer a description of the
man responsible for the shooting.
Mr. Love’s wife, Danielle, was not present at the time of
the shooting. She had left the house briefly with a friend, and,
upon returning, found police blocking off the area. Before
leaving the party, Mrs. Love recalled seeing the Appellant in
attendance.
The complainant’s sister-in-law, Gina Fehr, visited him in
the hospital, but was unable to speak to him when she first
arrived. Her sister, the complainant’s wife, told her what had
happened later. Ms. Fehr knew Sonny from the neighborhood
and was Facebook friends with him, so she went to his Facebook
page. She saw pictures of Sonny with some of his friends,
including several of him with the Appellant. She brought her
laptop to the hospital to show the pictures to Mr. Love and asked
if he recognized anyone. Mr. Love became teary-eyed upon
seeing the picture, and immediately identified the Appellant as
the man who had shot him. Mrs. Love also recognized the
Appellant as having been at the party before she left. Ms. Fehr
and Mrs. Love then showed the pictures to the police, and Ms.
Fehr gave a statement about her search.
Detectives Andrew Danks and Christopher Casee were
assigned to investigate the shooting. In the course of their
investigation, the detectives wanted to speak to Sonny about the
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incident, and had Mr. Love give Detective Casee’s phone number
to Sonny through Facebook. Sonny called the number, believing
he was speaking to Mr. Love. Sonny apologized for the incident
and told Detective Casee: “It wasn’t supposed to go down like
that.” Detective Casee, continuing to pose as Mr. Love, asked
Sonny to speak with the police and to contact Detective Danks if
he knew anything about the shooting. Within a half an hour,
Sonny called back, and after apologizing again, put another man
on the phone to speak to Detective Casee. The man identified
himself as “Tone,” which is also the nickname associate[d] with
Appellant on Facebook. Tone insisted the incident “wasn’t
supposed to go down like that” and said Sonny had nothing to
do with the shooting. Detective Casee once again asked them to
speak to Detective Danks, but Sonny never called the detectives.
While Appellant was in prison awaiting trial, he made
several phone calls to friends and family that were recorded.
Within 48 hours of his arrest Appellant made calls repeatedly
asking others: “You got to stay on him. Yo, stay on Andy. Stay
on him, get him.” He also asked them to “get him to come off
that.”
In the weeks following the shooting, Mrs. Love was
contacted by Appellant’s girlfriend, Michelle, about the incident
and her husband’s statement. Although she had never met the
woman before, Michelle came to the Love’s residence five or six
times. Mrs. Love was also approached by Appellant’s mother,
who wanted Mr. Love to speak to Appellant’s attorney. The
Appellant’s girlfriend also picked up Mr. and Mrs. Love and drove
them to the preliminary hearing.
At trial, Mr. Love testified that he has limited use of his
right arm and continues to feel pain; he has also lost feeling in
several fingers in his right hand. The injuries have also affected
his everyday activities, and his relationship with his children.
Trial Court Opinion, 12/11/14, at 3–5 (internal citations to notes of
testimony omitted).
Appellant was arrested in September of 2011. On November 1, 2013,
a jury convicted him of the above-described charges. The court sentenced
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Appellant on April 28, 2014, to consecutive terms of imprisonment of nine
and one-half to thirty years for attempted murder, nine to eighteen years for
robbery, and five to ten years for the firearm violation, for an aggregate
term of twenty-three and one-half to fifty-eight years of imprisonment. The
remaining charges merged for sentencing purposes. Appellant filed a post-
sentence motion on May 1, 2014, that was denied by operation of law on
September 3, 2014. Appellant filed this timely appeal on September 12,
2014. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the lower court abuse its discretion in allowing the
Commonwealth to present evidence of a post on [Appellant’s]
Facebook page made months before the crime, where the
evidence served only to infer to the jury that [Appellant] had
violent tendencies?
2. Did the lower court err in allowing a detective to testify to a
phone conversation he supposedly had with[Appellant], where
there was no authentication of the voice as [Appellant’s]?
3. Did the prosecutor commit misconduct in her closing
argument where she told the jury that the victim identified
someone else as his assailant at the preliminary hearing
because he was afraid that he and his family were going to be
killed if he identified [Appellant], where there was no
evidence of any such threats?
4. Did the prosecutor commit misconduct in her closing
argument where she asked the jury to infer [Appellant’s] guilt
based on his failure to assert his innocence after he was
arrested?
5. Was the verdict against the weight of the evidence?
6. Did the lower court abuse its discretion by considering the
actions of Appellant’s family in determining the sentence and
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by sentencing [Appellant] at the upper end of the aggravated
range of the guidelines without putting its reasons for doing
so on the record?
Appellant’s Brief at 4–6.
The first two issues involve the admission of evidence and are
governed by the following standards:
We review all matters touching upon the admission of evidence,
including the trial court’s gatekeeping function regarding what
evidence a jury gets to observe and handle during a trial, for an
abuse of discretion. See Commonwealth v. Brown, 617 Pa.
107, 52 A.3d 1139, 1197 (2012) (citation omitted);
Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa. Super.
2005). “An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable,
or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. Mendez, 74 A.3d
256, 260 (Pa. Super. 2013) (citation omitted), appeal denied,
___ Pa.___, 87 A.3d 319 (2014). “[I]f in reaching a conclusion
the trial court over-rides or misapplies the law, discretion is then
abused and it is the duty of the appellate court to correct the
error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188
(Pa. Super. 2009) (citation omitted).
Commonwealth v. Ali, 112 A.3d 1210, 1217–1218 (Pa. Super. 2015).
“[A]n erroneous ruling by a trial court on an evidentiary issue does not
necessitate relief where the error was harmless beyond a reasonable doubt.”
Commonwealth v. Travaglia, 28 A.3d 868, 874 (Pa. 2011).
Appellant first argues that the trial court abused its discretion in
allowing the Commonwealth to present evidence of a post on Appellant’s
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“Facebook” page.1 The victim’s sister-in-law, Gina Fehr, testified that her
sister, Danielle, the victim’s wife, told her that the person who shot the
victim was friends with a man named “Sonny.” N.T., 10/29/13, at 64. Ms.
Fehr stated that she was Facebook friends with Sonny, a man she knew
“from the neighborhood.” Id. Ms. Fehr took her laptop computer to the
hospital and showed the victim pictures posted on Sonny’s Facebook page.
Id. at 64–65. Upon seeing Appellant’s photograph,2 the victim “pointed out
the guy that did it, and . . . hysterically started crying. He was, like, ‘Yup.
That is him. That is him.’” Id. at 65, 70.3
Either later that day or the next day, Ms. Fehr told police about the
victim’s identification of the Facebook photographs. Id. at 72. Ms. Fehr
ultimately gave police a statement regarding the photographs. Id. at 73,
82.
____________________________________________
1
“Users of that Web site may post items on their Facebook page that are
accessible to other users, including Facebook ‘friends’ who are notified when
new content is posted.” Elonis v. United States, ___ U.S. ___, ___, 135
S. Ct. 2001, 2004 (2015).
2
Ms. Fehr testified that upon scrolling the computer mouse over Appellant’s
photograph, Sonny had “tagged” Appellant, and his name appeared as “Top
Dog.” N.T., 10/29/13, at 68, 78. See Elonis, 135 S. Ct. at 2005 (tagging is
a Facebook feature that alerts the person in the photograph to the posting).
3
Ms. Fehr testified that she did not suggest to the victim that Appellant was
his shooter, did not imply to the victim that other people advanced that
contention, nor did she, in any way, point out Appellant’s photograph other
than to show the victim the posted pictures on Sonny’s Facebook page.
N.T., 10/29/13, at 70–71.
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Ms. Fehr further testified that when she “clicked” on Appellant’s name,
listed as “Tony Top Dog Lewis,” his entire Facebook profile was public,
lacking privacy settings that could have been designated. N.T., 10/29/13, at
66, 68–69, 78. Appellant’s Facebook page also included a post from May 20,
2013, nearly three months before the instant crime, that stated:
“If it ain’t a rumor it’s true, but I don’t like conversation. I don’t
involve nothing. I’d rather get it off my chest and revolve
something.”
Id. at 75. Defense counsel objected to admission of the post, stating, “[W]e
have no idea what this item that is posted on the Facebook page may have
anything to do with and it’s just speculation.” Id. at 74. Following a sidebar
that was not transcribed, the trial court overruled the objection. Id.
Appellant maintains there was no foundation for admitting the posted
quote and asserts that this cryptic statement “made months before the
crime . . . could [not] be interpreted as referring to a revolver as evidence
that Appellant had access to a gun that could have been used in the crime.”
Appellant’s Brief at 14. He avers that it did not establish that Appellant had
a revolver or any other weapon. Id.
The trial court concluded that the Facebook post “support[ed] the
reasonable inference that Appellant was in possession of a revolver. It also
support[ed] an inference that Appellant may be more likely to use a revolver
in a confrontation.” Trial Court Opinion, 12/11/14, at 7. We disagree.
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While we agree with the Commonwealth that because Appellant was
charged with attempted murder, his mental state was highly relevant, we
disagree that Appellant’s use of the phrase “‘revolve something’ has no
sensible purpose other than to suggest [Appellant’s intended] resort to a
revolver, the weapon he used to shoot the victim,” and that it is evidence of
his state of mind. Appellant’s Brief at 9. Appellant’s word choice could
equally be interpreted as a typographical error or misuse of the word
“revolve” and reflect, instead, an intended use of the word “resolve,” which
makes as much sense as the nonsensical use of “revolve” in the quote.
Nevertheless, Appellant is not entitled to relief on this claim because
admission of the post was harmless error. Our Supreme Court has described
that doctrine as follows:
[T]he doctrine of harmless error is a technique of
appellate review designed to advance judicial
economy by obviating the necessity for a retrial
where the appellate court is convinced that a trial
error was harmless beyond a reasonable doubt. Its
purpose is premised on the well-settled proposition
that “a defendant is entitled to a fair trial but not a
perfect one.”
[Commonwealth v. Thornton,] 494 Pa. 260, 266, 431 A.2d
248, 251 (1981). This Court may affirm a judgment based on
harmless error even if such an argument is not raised by the
parties.
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (footnote
omitted), cert. denied sub nom., Allshouse v. Pennsylvania, ___ U.S.
___, 133 S. Ct. 2336 (2013). Harmless error exists where:
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(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.
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (emphasis
added), appeal denied, 89 A.3d 661 (Pa. 2014).
Our conclusion of harmless error, as explained by the trial court, is as
follows:
[I]t seems likely that all three factors are present here.
Certainly, evidence of the shooting and robbery were introduced
through other witnesses. The evidence of the Facebook post
was merely bolstering other evidence, including eyewitness
testimony and Appellant’s own statements, and can be
considered cumulative. Because there was so much other
evidence implicating Appellant, any prejudice created in
admitting the contents of the Facebook post would have been de
minimis at most. Even still, the strongest factor here is the
third. Andy Love, the victim of the shooting, was able to identify
the Appellant as the individual who demanded money from him,
then shot him once in the leg. He also testified that he was shot
again by the Appellant as he tried to run away, and witness
testimony constitute[d] overwhelming and uncontradicted
evidence of guilt.
Trial Court Opinion, 12/11/14, at 8–9. We conclude Appellant is not entitled
to relief on this claim of error.
Appellant next asserts the trial court abused its discretion in admitting
testimony from Detective Christopher Casee concerning a statement from
Appellant made to the detective on the telephone. As background, when Ms.
Fehr showed the Facebook photographs to her sister Danielle, Danielle
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identified a photograph of Appellant by the name, “Tone.” N.T., 10/29/13,
at 87. Additionally, the victim identified Appellant as a man he had met
through Sonny and who he knew as “Tone” on the street. Id. at 109.
During Detective Casee’s visit to the victim in the hospital, the victim told
the detective that he was trying to get in touch with Sonny because the
victim was with Sonny on the night of the shooting. N.T., 10/30/13, at 137.
Detective Casee gave the victim his cellular telephone number and told him
to tell Sonny to contact the detective about the shooting. Id. at 138.
When Sonny called the detective’s number, Sonny spoke as if he were
speaking to the victim. Detective Casee testified that Sonny stated, “I am
sorry, you know, for what happened. I wasn’t involved. It wasn’t supposed
to do down like that.” N.T., 10/30/13, at 139. Detective Casee testified
that he played along as if he were the victim, telling Sonny, “he should
cooperate with the police, that I was his boy, that he did me wrong, and if
he knew any information on the shooting he should contact Detective
[Andrew] Danks.” Id. at 140. Eventually, a man Detective Casee believed
to be Appellant spoke on the telephone, likewise appearing to believe he was
talking to the victim and identifying himself as “Tone,” who stated “the
shooting wasn’t meant to be . . . and apologizing for what happened.” Id.
at 140–141. There were a number of other telephone conversations and one
voice mail message to which Detective Casee had the victim listen. The
victim identified the voice as Sonny. Id. at 147–148. Detective Casee
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ultimately gave a statement to Detective Danks concerning these
conversations. Id. at 141, 145.
Detective Casee’s testimony concerning the statement he gave to
Detective Danks is as follows:
[By Detective Casee]: At first when I received the phone call the
male on the other end said, “Yo, Bro. It’s me, Sonny.” I replied,
“What’s up, man?” And the male on the other side believing who
I was, I told him that he should contact the detectives and tell
them what had happened, and I stated, told him that—that I,
being [the victim], told the detectives that Sonny had nothing to
do with it and if he was truly on my side, my friend for him to
contact the detectives. At which time he told me he would think
about it and give me a call back. I told him to hurry up and give
the detectives a call ‘cause I needed him to cooperate. It says
this conversation lasted for four minutes and 23 seconds.
* * *
[By the Commonwealth]: Did you receive another phone call
within a half an hour?
* * *
A. Yes . . . .
Q. The person on that phone call, was it the same voice . . .?
A. Yes, it was.
* * *
Q. Okay. What did he say?
A. Um, when I answered the phone this time he said, Hey. He
said, Bro, and asked how I was feeling. I was still talking like I
was [the victim]. I told him that I wasn’t feeling too well and
that I was pissed off that he wouldn’t help the police find the
male that shot me. I told him that I was shot three times. . .
[H]e told me, hold on, hold on. Someone wants to holler at you.
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That is when another male voice got on the phone and started
talking to me.
Q. And did that male voice identify himself?
A. He said to me, “Yo, Man. This is Tone. Sonny’s man.” At
which time I replied back to him, “Which boy are you?” He again
said, “Sonny’s man.” I then asked, “What, the boy that shot
me?” And the same male said, “Look, Man. The shit wasn’t
supposed to go down like that. We was throwed that night and
on some real shit.” I said to him again like I was [the victim],
“You fucken shot me, Man, and you and Sonny are fucked up
and that’s some real shit.” And then he again told me that, “The
shit wasn’t supposed to do go down like that and Sonny was my
man and he didn’t have anything to do with it.” I said exactly to
him, “I have no more wrap for your ass and put Sonny back on
the phone.” At which time the other male voice who I believe to
be Sonny was saying Sonny had nothing to do with it. I again
told him . . . to make sure he calls Detective Danks.
* * *
Q. . . . [D]id Sonny call Detective Danks?
A. He never called Detective Danks, no.
N.T., 10/30/13, at 143–146.
Appellant asserts that the trial court admitted this evidence without
proper authentication. He maintains that Detective Casee did not know
Appellant’s voice to recognize it on the telephone, and the evidence was not
properly authenticated pursuant to Pa.R.E. 901.4
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4
Rule 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.
(Footnote Continued Next Page)
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The trial court stated the following, in pertinent part:
Circumstantial evidence allowed the detective to determine that
the individual he spoke to on the phone was the Appellant. This
is sufficient to authenticate the conversation . . . .
In the instant case . . . detectives had contextual clues and
testimony from one of the parties on the phone call. Appellant
identified himself at the start of the conversation as “Tone,”
which is also how he was identified in several Facebook photos.
N.T., 10/29/2013, at 156. Although the phone call was not
recorded, Detective Casee testified to the conversation he had
with Appellant, when he was pretending to be [the victim]. N.T.,
10/30/2013, at 145.
* * *
The fact that Appellant identified himself in the
conversation, and the fact that he vaguely attempts to apologize
to the complainant for shooting him, are strong pieces of
circumstantial evidence that allowed the detectives to
authenticate the phone call as having come from the Appellant.
Unlike [Commonwealth v.] Koch, [39 A.3d 1005 (Pa. Super.
2011),] which lacked any such corroborative evidence, here the
detectives had Appellant’s own admissions and direct testimony
_______________________
(Footnote Continued)
(b) Examples. The following are examples only--not a complete list--of
evidence that satisfies the requirement:
* * *
(5) Opinion About a Voice. An opinion identifying a person’s
voice--whether heard firsthand or through mechanical or
electronic transmission or recording--based on hearing the voice
at any time under circumstances that connect it with the alleged
speaker.
(emphasis added). The comment to Rule 901 provides that “Pennsylvania
law has permitted the identification of a voice to be made by a person
familiar with the alleged speaker’s voice. See Commonwealth v.
Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).” Pa.R.E. 901, cmt.
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from Detective Casee to aid them in authenticating the phone
call. Therefore, this claim must also fail.
Trial Court Opinion, 12/11/14, at 11–12.
Initially, we note that Pa.R.E. 901(b) makes it clear that the examples
provided in the rule for authentication are not exhaustive. Moreover, the
victim was familiar with Sonny’s voice. Through a voice message left at the
telephone number the victim had given Sonny, the victim was able to
identify Sonny’s voice, and testimony established that the voice identified by
the victim as Sonny was the same voice on subsequent telephone calls with
Detective Casee. N.T., 10/30/13, at 148. When the second male came on
the telephone, he identified himself as “Tone,” which is the name Danielle
identified as describing Appellant in Facebook photographs and the street
name the victim used to describe Appellant. N.T., 10/29/13, at 87,109.
We conclude the evidence was properly authenticated and consistent
with Pennsylvania law. See Commonwealth v. Carpenter, 372 A.2d 806
(Pa. 1977) (accused’s identity as telephone caller was sufficiently established
to permit detective to testify regarding such telephone conversation where,
although detective was not familiar with caller’s voice, witness who
answered telephone and handed receiver to detective, was familiar with
accused’s voice and positively identified caller’s voice as that of accused).
“It is clear . . . that when seeking to introduce testimony as to the content of
a telephone conversation, the identity of the caller may be established by
circumstantial evidence.” Commonwealth v. Stewart, 450 A.2d 732, 733
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(Pa. Super. 1982). Furthermore, in Carpenter, the defendant’s attacks on
the credibility of the identification testimony “did not bear on the question of
admissibility, but rather were properly a matter for the jury to consider in
determining the weight [of the evidence].” Carpenter, 372 A.2d at 809.
The trial court did not abuse its discretion in admitting this evidence.
The victim was familiar with Sonny’s voice and recognized it. In addition,
the second voice identified himself by his street name, Tone, and the context
of the conversation provided details indicating that he was familiar with the
circumstances of the crime. He offered an explanation for the shooting as a
plan that went awry. Therefore, Appellant’s challenge to the admissibility of
testimonial evidence of the telephone call lacks merit.
Appellant’s next two issues involve allegations of prosecutorial
misconduct during closing arguments. “Prosecutorial misconduct does not
take place unless the ‘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.’” Commonwealth v. Holley, 945
A.2d 241, 250 (Pa. Super. 2008) (quoting Commonwealth v. Paddy, 800
A.2d 294, 316 (Pa. 2002)). “In reviewing a claim of improper prosecutorial
comment, our standard of review is whether the trial court abused its
discretion.” Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012).
When considering such a contention, “our attention is focused on whether
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the defendant was deprived of a fair trial, not a perfect one, because not
every inappropriate remark by a prosecutor constitutes reversible error.”
Id. at 858 (citing Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super.
2012)). “A prosecutor’s statements to a jury do not occur in a vacuum, and
we must view them in context.” Noel, 53 A.3d at 858.
Appellant’s first claim of prosecutorial misconduct concerns the
prosecutor’s reference to the threat Appellant and his associates posed to
the victim and his family. In particular, Appellant objected to the following
statement in the prosecutor’s closing: “The truth is going to get him [the
victim] killed. It’s going to get his family killed. . . . His wife, his children.”
N.T., 10/31/13, at 37; Appellant’s Brief at 18.
Appellant’s argument, in total, asserts as follows:
While there was evidence in this case that Appellant’s
family tried to get the victim to retract his identification and
repeatedly asserted to him that Appellant was innocent, there
was no evidence that anybody ever threatened to physically
harm or kill the victim, his wife or his children. To the contrary,
his wife testified that Appellant’s girlfriend was not at all
aggressive when she came to their house. N.T. 10/30/13 at 69;
RR 245a.
The efforts by Appellant and his family to influence the
victim’s testimony was unquestionably wrong. It is a far cry,
however, from trying to get the victim to retract his identification
by telling him that Appellant was innocent and threatening to kill
his wife and children. The prosecutor’s statement was not a
reasonable inference from the evidence at trial. Moreover, the
implication that Appellant or his family had threatened to kill the
victim, his wife and his children was highly prejudicial and could
not have but made the jury hostile toward Appellant to the
extent that they could not be fair.
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Appellant’s Brief at 19 (footnote omitted). Other than citing to our standard
of review, Appellant fails to cite a single case in support of his claim of error.
At trial, the victim described the lengthy pressure, manipulation, and
coercion he endured from Appellant’s family. The victim described
Appellant’s relatives’ appeals to his wife on Facebook that escalated to
“popping up” at the victim’s home. N.T., 10/29/13, at 114. Appellant’s
girlfriend and mother attempted to persuade the victim that Appellant had
not been the shooter, by pressuring the victim and going to the victim’s
home. Id. at 122. The victim testified about his fear, stating:
[W]hen [Appellant’s family] left, I sure did always look out of my
window. I sure did keep my door locked, to this day, and I
haven’t seen them in months, but to this day me and my wife
still talk about it, still make sure our door is locked. . . . We still
live with paranoia. . . . I know I was in danger.
Id. at 123–124). This menacing and continuing presence also was proven
by evidence of prison telephone calls between Appellant and his family
members. The fourth telephone call on September 13, 2011, referenced an
earlier call that Sonny was “lookin for Andy,” and included Appellant’s
entreaty to “stay on” the victim and his family. Prison Call Transcript,
9/13/11, at 1.5 Appellant stated that he knew the victim identified Appellant
as the man who shot him and instructed, “Get [the victim] to “clarify that
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5
The transcripts of the prison telephone calls were played at trial for the
jury and were submitted to this Court as a supplement to the certified record
on February 27, 2015. N.T., 10/30/13, at 155–157.
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shit.” Id. at 2. The prison telephone calls revealed that the victim’s house
was being watched “to see like if the cops come in,” by people who assured
Appellant “it’s gonna be handled.” Id. at 4. As the trial court stated:
Testimony at trial showed the Appellant’s mother and girlfriend
visited the [victim’s] home multiple times prior to trial. N.T.,
10/30/2013, at 68–71. This behavior was prompted by
Appellant, who was heard on recorded phone calls from prison
telling people to “stay on him.” N.T., 10/31/2013, at 44. This
evidence clearly established the Appellant’s involvement in
attempting to make the [victim] and others change their
testimony. It is therefore reasonable to infer that [the victim
and his wife] were fearful, since those close to the Appellant
knew where they lived and had attempted to pressure them in
the past. Under these circumstances, it is not prosecutorial
misconduct for the prosecutor to cite to facts in evidence, and
this claim should also fail.
Trial Court Opinion, 12/11/14, at 12–13.
The defense closing argument asserted that the Commonwealth
witnesses, including the victim, presented “several days of lies.” N.T.,
10/31/13, at 25 30. The prosecutor’s remark that the victim feared for his
life and that of his family was proper rhetoric supported by the evidence and
fairly responded to the defense assertion that the victim was a liar. See
Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006) (stating a
prosecutor is entitled to fairly respond to arguments made by defense
counsel in closing argument); Commonwealth v. Hogentogler, 53 A.3d
866, 878 (Pa. Super. 2012) (stating, “In determining whether the prosecutor
engaged in misconduct, we must keep in mind that comments made by a
prosecutor must be examined within the context of defense counsel’s
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conduct. It is well settled that the prosecutor may fairly respond to points
made in the defense closing.”). We conclude that the prosecutor’s
comments were fair responses to defense allegations that the victim and
other Commonwealth witnesses were liars, and they did not prejudice the
jurors by forming a fixed bias and hostility toward Appellant. Thus, we
reject this claim of error.
Appellant next alleges that the prosecutor erroneously asked the jurors
to infer guilt based on the fact that Appellant did not “assert his innocence
after he was arrested.” Appellant’s Brief at 20. Appellant objects to the
following comment during closing argument:
You know, I try to think about what I would do if I was
accused of a crime I didn’t commit. . . . My first phone call is
going to be to my husband, and I am going to cry like a baby. I
am going to tell him, “Baby, you’re not going to believe this. I
got arrested. Someone said I shot them. I can’t believe this. I
would never do something like that. I don't even have a gun. I
don’t know why they would say something like that.”
* * *
That would be my first phone call. You know, I bet you
something along those lines would be your first phone call, too,
because that is what an innocent person says.
N.T., 10/31/13 at 45–46.
Appellant characterizes the above comment as a failure to deny guilt
after arrest, and citing Commonwealth v. Mitchell, 839 A.2d 202, 212–
214 (Pa. 2003), he asserts it was patently improper. Appellant maintains
that a prompt cautionary instruction may have remedied the “innate
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prejudice in such a comment,” but no such instruction was given.
Appellant’s Brief at 20.
First, Appellant did not object to the above remark. N.T., 10/31/13, at
45, 46. Second, when he objected to a subsequent portion of the
summation, he did not assert that remark or any other implicated an alleged
failure to declare his innocence, nor did he request a cautionary instruction.
Id. at 46. As no objection was posed, this issue was not preserved. See
Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be
raised for first time on appeal). Moreover, the failure to request a
cautionary instruction constitutes a waiver of a claim of trial court error in
failing to issue a cautionary instruction. Commonwealth v. Wholaver,
989 A.2d 883, 892 (Pa. 2010) (citing Commonwealth v. Bryant, 855 A.2d
726, 739 (Pa. 2004)). Thus, we conclude this claim is waived.
Appellant’s fifth claim of error assails the weight of the evidence, an
issue he preserved in his post-sentence motion. Appellant asserts that “this
is the rare case where the verdict shocks the conscience.” Appellant’s Brief
at 21. He maintains that the only evidence that Appellant was the assailant
was the victim’s testimony, which he characterizes as “highly unreliable.”
Id. The Commonwealth avers that this issue attacks the victim’s credibility,
and Appellant cannot meet the level that the verdict was “pure conjecture.”
Commonwealth Brief at 21 (citing Commonwealth v. Gibbs, 981 A.2d 274
(Pa. Super. 2007).
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An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v.
Ramtahal, 33 A.3d 602 (Pa. 2011). “An appellate court, therefore, reviews
the exercise of discretion, not the underlying question whether the verdict is
against the weight of the evidence.” Id. at 609. “The trial court’s denial of
a motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Rivera, 983 A.2d 1211, 1225
(Pa. 2009). “When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s decision is
extremely limited. Generally, unless the evidence is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, these
types of claims are not cognizable on appellate review.” Commonwealth v.
Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004) (quoting
Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989)).
The trial court, in rejecting this claim, stated:
In the instant case, there was eyewitness testimony from
the [victim], identifying the Appellant as the individual who shot
him. There was also testimony that other witnesses put
Appellant at the scene on the night of the shooting, and
testimony from Detective Casee in which Appellant identified
himself on the phone and insisted the shooting “wasn’t supposed
to go down like that.” N.T., 10/30/2013, at 145.
* * *
Here, the jury chose to credit the testimony of the complainant,
his family members, and the detectives investigating the case.
The fact that the jury believed the testimony of [the victim] and
Detective Casee does not shock one’s sense of justice.
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Trial Court Opinion, 12/11/14, at 15.
Appellant essentially asks this Court to reassess the credibility of the
witnesses. It is well settled that we cannot substitute our judgment for that
of the trier of fact. Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.
Super. 2009); Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super.
2008). The fact-finder was free to believe the testimony of any, all, or none
of the witnesses. See Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.
Super. 2008) (“[I]t is for the fact-finder to make credibility determinations,
and the finder of fact may believe all, part, or none of a witness’s
testimony.”). Here, the trial court considered Appellant’s claims and
determined that they did not compel the conclusion that the verdicts were so
contrary to the evidence as to shock one’s sense of justice. Trial Court
Opinion, 12/11/14, at 15. Upon review, we discern no abuse of discretion in
the trial court's determination. Commonwealth v. Ferguson, 107 A.3d
206, 213 (Pa. Super. 2015).
Appellant’s final issue relates to the discretionary aspects of his
sentence. An appellant seeking discretionary review of his sentence has no
absolute right to do so but rather, must petition this Court for permission.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014); 42 Pa.C.S. § 9781(b). Before we
may review the merits of a challenge to the discretionary aspects of a
sentence, we must engage in a four-pronged analysis to determine:
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(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [708]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Herein, because Appellant has filed a timely appeal, preserved the
issue in a post-sentence motion, and included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief, he has complied with the first three
requirements of the four-prong test. Therefore, we next determine whether
Appellant raises a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
In his Pa.R.A.P. 2119(f) statement, Appellant contends his sentences
for robbery and the firearms violation were at the upper end of the
aggravated range of the Sentencing Guidelines and were an abuse of
discretion because 1) the trial court failed to put its reasons on the record
for sentencing in the aggravated range, and 2) the trial court relied on an
improper sentencing factor. These claims present substantial questions.
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)
(allegation that the sentencing court imposed a sentence outside the
standard guidelines without providing adequate reasons on the record
presents a substantial question); Commonwealth v. Booze, 953 A.2d
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1263, 1278 (Pa. Super. 2008) (allegation that trial court failed to state
adequate reasons on the record for imposing an aggravated-range sentence
raises a substantial question).
The trial court stated that there is nothing in the record to support the
conclusion that it based the sentence on Appellant’s family members in the
courtroom. Rather, the trial court noted that it considered the family
members’ behavior before sentencing. The court also stated the sentencing
transcript “reveals an in-depth discussion of the factors weighed by this
court at sentencing.” Trial Court Opinion, 12/11/14, at 18.
It is well settled that
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Caldwell, ___ A.3d ___, ___, 2015 Pa. Super. 128, *4
(Pa. Super., filed May 29, 2015).
The trial court indicated that it was aware of the guideline ranges for
Appellant’s convicted offenses. N.T., 4/28/14, at 4–6. In addition, the trial
court stated that it read and considered the presentence report. Id. at 3.
Regarding the guideline ranges, our Supreme Court reiterated that “the
guidelines have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors—they are advisory
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guideposts that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend, however, rather
than require a particular sentence.” Commonwealth v. Perry, 32 A.3d
232, 240 (Pa. 2011) (emphasis added) (citing Commonwealth v. Walls,
926 A.2d 957, 964–965 (Pa. 2007). Moreover, when the record
demonstrates that the sentencing court was aware of the guideline ranges,
as here, see N.T., 4/28/14, at 5, we will not reverse merely because the
specific ranges were not recited at the sentencing hearing.
Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 2002). Our review
of the record compels the conclusion that the court stated adequate reasons
for imposing an aggravated-range sentence. Booze, 953 A.2d at 1280.
Regarding his claim related to his family members, Appellant
underscores the following comments by the trial court at sentencing:
You chose, and this is really what bothers me about this case
and what really goes on too often in this city, is that instead of
these cases being decided in the courtroom and you yourself,
Mr. Lewis, said this and thanked me for being fair. I just
followed the rules and allowed witnesses to testify and
appropriate evidence to come in and your attorney could fully
represent you. But you didn’t want that. Your family didn’t
want that. They didn’t want the twelve to decide. They wanted
it decided on the street so the case would go away and
[Appellant] couldn’t be found and we would never have a
trial . . . .
* * *
I see your family leaving because they don’t want to listen to
this part for whatever reason.
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N.T., 4/28/14, at 35–36.6 Appellant’s entire argument relating to the above
comments are that they are indicative that the court “consider[ed] the
motivations or independent actions” of persons other than Appellant in
imposing Appellant’s sentence. Appellant’s Brief at 25. This claim is
specious.
We find nothing improper regarding the trial court’s comments made
as Appellant’s family members filed out of the courtroom when the trial court
explained its sentence. Rather than an indication that it relied upon an
impermissible factor, the comments were merely observations of conduct
occurring in the courtroom. Further, as noted by the Commonwealth,
Appellant’s family had displayed intimidating, aggressive tactics in its
endeavor to persuade the victim to retract his identification of Appellant as
his shooter. Appellant goes to great lengths to dissuade us that he is not
challenging consideration of that behavior. See Appellant’s Brief at 24. In
light of that egregious behavior, we do not find the trial court’s observation
of Appellant’s family members’ flight from the courtroom at the moment the
trial court commented on that behavior to be equated with reliance on an
impermissible sentencing factor.
____________________________________________
6
The trial court did not respond to this particular quotation because
Appellant’s statement of the claim in both his post-sentence motion and
Pa.R.A.P. 1925(b) statement was vaguely worded and failed to underscore
these comments. Post-Sentence Motion, 5/1/14, at unnumbered 2–3;
Pa.R.A.P. 1925 (b) Statement, 10/1/14, at ¶ 7.
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Moreover, defense counsel had purposely pointed out the great
number of Appellant’s family members present in the courtroom by asking
them to stand up. N.T., 4/28/14, at 9. Both of Appellant’s grandmother’s
spoke on Appellant’s behalf. Id. at 11–16. The trial court did not limit
Appellant’s presentation of witnesses, and in handing down its sentence, the
trial court specifically acknowledged that it considered the comments of
Appellant’s family, noting, “I’ve considered the presentence, the mental
health, the memorandum submitted by the Commonwealth, the testimony
at today’s hearing from [Appellant’s] family, of course the trial
testimony and what [Appellant] had to say. . . .” Id. at 31 (emphasis
added). In addition, the trial court considered the nature and circumstances
of the offense, including the gravity of the offense and the impact on the life
of the victim. Id. at 34. We conclude that the record does not support the
trial court’s consideration of an improper factor at sentencing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2015
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