Com. v. Jenkins, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WALEEM JENKINS, :
:
Appellant : No. 2586 EDA 2014
Appeal from the Judgment of Sentence November 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010227-2011
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2016
Appellant, Waleem Jenkins, appeals from the November 12, 2013
Judgment of Sentence entered in the Philadelphia Court of Common Pleas.
After careful review, we affirm on the basis of the trial court’s Opinion, which
found Appellant’s claims were either waived or without merit.
The trial court’s Rule 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case. See Trial
Court Opinion, filed 3/21/15, at 1-8. While we will not go into exhaustive
detail here, some of the relevant facts are as follows.
A jury convicted Appellant of Possession with Intent to Deliver a
Controlled Substance after officers of the Philadelphia Police Department’s
Narcotics Field Unit observed Appellant selling narcotics to a confidential
informant (“CI”) on two separate occasions, and found narcotics and other
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incriminating evidence on Appellant’s person while searching him incident to
arrest. Id. at 2-3.
At trial, the Commonwealth called three members of the Narcotics
Field Unit as witnesses. The first was Officer Carlos Buitrago, who observed
Appellant selling narcotics to the CI on both occasions. Id. at 2-4. Officer
Buitrago testified that after the second narcotics sale, Officers Linwood
Norman and Reginald Graham arrested Appellant, and Officer Graham
searched Appellant’s person. Id. at 4.
Officer Norman’s involvement in the case was limited to this minor role
assisting Officer Graham with Appellant’s arrest. Officer Norman did not
search Appellant, was not present for the first controlled buy, and did not
testify at Appellant’s trial.
The Commonwealth then called Officer Graham, who also personally
observed both narcotics sales and confirmed he was the officer who arrested
Appellant, searched Appellant, and recovered incriminating evidence
including narcotics from Appellant’s person. Id. at 4-5.
Finally, the Commonwealth called Sergeant Thomas Meehan, who
supervised the investigation of Appellant, and provided the prerecorded buy
money the CI used to purchase narcotics from Appellant. Id. at 5-6.
Appellant testified in his own defense at trial, denying his involvement
in the sale of narcotics. Appellant testified that he worked for a cousin’s
moving company and that, on the date he was arrested, he was in the area
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visiting friends. Id. at 6-7. He denied that any of the evidence recovered
from his person was his and suggested that it had been planted by one of
the officers arresting him. Id.
After the jury’s conviction, Judge Brinkley sentenced Appellant to three
and one-half to seven years of state incarceration, to be followed by three
years of probation.
At some point after Appellant’s conviction and sentencing, the federal
government indicted Officer Norman on corruption charges. Id. at 9. None
of the allegations in Officer Norman’s indictment, however, pertained to his
involvement in Appellant’s arrest. A federal jury later acquitted Officer
Norman of all charges.
Appellant filed a post-sentence motion. After its denial, Appellant
timely appealed.
On appeal, Appellant raises the following five issues:
a. Whether Appellant is entitled to a new trial based on after-
discovered evidence?
b. Whether the prosecutor committed misconduct in his closing
statement?
c. Whether the [trial court] erred in allowing the Commonwealth
to use a letter of employment during cross-examination and in
allowing the letter to be read to refresh the jury’s memory
during deliberations?
d. Whether the [trial court] erred in excluding evidence that
police officers in a separate case involving Appellant had been
indicted?
e. Whether the verdict was against the weight of the evidence?
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Appellant’s Brief at 5 (capitalization removed).
The Honorable Genece E. Brinkley has authored a comprehensive,
thorough, and well-reasoned Rule 1925(a) Opinion, citing to the record and
relevant case law in addressing Appellant’s claims on appeal. We affirm on
the basis of that Opinion.
In his first issue, Appellant raises an after-discovered evidence claim
based upon Officer Norman’s indictment on corruption charges. To prevail
on a motion for a new trial on the basis of after-discovered evidence,
Appellant was required to produce admissible evidence, discovered after
trial, that:
(1) could not have been obtained prior to the end of trial with
the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative evidence; (3) is not merely
impeachment evidence; and (4) is of such a nature that its use
will likely result in a different verdict on retrial.
Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (citation
omitted). As the reviewing court, “this Court affirms unless the
determination constitutes abuse of discretion.” Id.
Based on our review of the record, the arguments presented by
Appellant, and the relevant case law and statutes, we agree with the trial
court that Appellant’s after-discovered evidence claim warrants no relief
because of Officer Norman’s de minimis involvement in the case against
Appellant and because none of the other officers involved in the
investigation into Appellant have been accused of wrongdoing.
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Furthermore, as the trial court has thoroughly addressed the issue in
its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s
claim. See Trial Court Opinion at 8-9. Accordingly, we grant no relief on
this issue.
Appellant bases his second claim, one of prosecutorial misconduct, on
the Commonwealth attorney’s statements in closing arguments referring to
himself as “a gladiator” and to the courtroom as “the coliseum.” Appellant’s
Brief at 15-16.
The trial court found that Appellant waived this issue, and we find this
position to be correct. See Commonwealth v. Cox, 983 A.2d 666, 685
(Pa. 2009). Appellant did not object to any of the allegedly improper
statements at trial. N.T., 6/6/13, at 26-28. Furthermore, as the trial court
has thoroughly addressed the issue in its opinion, we adopt the trial court’s
discussion as dispositive of Appellant’s claim. See Trial Court Opinion at 10-
12. Accordingly, we grant no relief on this issue.
Appellant’s third and fourth issues both challenge the trial court’s
rulings on the admissibility of certain evidence introduced or excluded at
trial. “Questions regarding the admission of evidence are left to the sound
discretion of the trial court, and we, as an appellate court, will not disturb
the trial court's rulings regarding the admissibility of evidence absent an
abuse of that discretion.” Commonwealth v. Russell, 938 A.2d 1082,
1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more
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than a mere error of judgment; rather, an abuse of discretion will be found
when “the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.” Commonwealth v. Busanet,
817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted).
Appellant first argues that the trial court erred in permitting the
Commonwealth to read a letter of employment to the jury during cross-
examination and again during deliberations. The trial court found that
Appellant waived his claim with respect to the use of the letter during cross
examination, and we find this position to be correct. “To preserve a claim
for review, the defendant must make a timely and specific objection to the
introduction of the challenged evidence at trial.” Commonwealth v. Gray,
867 A.2d 560, 574 (Pa. Super. 2005) (citation omitted). Appellant did not
object to the reading of the letter and, thus, waived the issue. N.T., 6/5/13,
at 175-79.
Likewise, we conclude Appellant’s claim regarding the reading of the
letter to the jury during deliberations has no merit, as reading the letter
assisted the jury in determining credibility. Furthermore, as the trial court
has thoroughly addressed both of Appellant’s claims regarding the letter in
its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s
claims regarding the letter. See Trial Court Opinion at 12-15.
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Appellant’s next evidentiary claim is that the trial court erred in
excluding evidence that two police officers who had no involvement in the
instant case, but who had previously arrested Appellant for a wholly
unrelated matter, were indicted on allegations of planting drugs and robbing
drug dealers. Once again, based on our review of the record, the arguments
presented by Appellant, and the relevant case law and statutes, we conclude
Appellant’s claim has no merit. Furthermore, as the trial court has
thoroughly addressed Appellant’s claims regarding the letter in its Opinion,
we adopt the trial court’s discussion, which found the evidence was
irrelevant, unfairly prejudicial, and likely to cause confusion. See id. at 15-
16.
Finally, Appellant claims that the jury’s guilty verdict in this case was
against the weight of the evidence presented at trial. “A weight of the
evidence claim concedes that the evidence is sufficient to sustain the verdict,
but seeks a new trial on the ground that the evidence was so one-sided or
so weighted in favor of acquittal that a guilty verdict shocks one's sense of
justice.” Lyons, supra at 1067 (citation omitted).
When this Court reviews a trial court’s ruling on a weight of the
evidence claim we do not “substitute [our] judgment for the finder of fact
and consider the underlying question of whether the verdict is against the
weight of the evidence, but, rather, [this Court] determines only whether the
trial court abused its discretion in making its determination.” Id.
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Based on our review of the record, the arguments presented by
Appellant, and the relevant case law and statutes, we conclude Appellant’s
weight of the evidence claim warrants no relief. Furthermore, as the trial
court has thoroughly addressed the issue in its Opinion, we adopt the trial
court’s discussion as dispositive of Appellant’s claim. See Trial Court
Opinion at 17-18. Accordingly, no relief is due.
Therefore, after a careful review of the parties’ arguments, and the
record, we affirm on the basis of the trial court Opinion.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2016
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Circulated 03/23/2016 04:50 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH CP-51-CR-0010227-2011
vs. IF. il fl IE'fD
MAR 31 2015
Criminai Appeal~ Unit
First Judicial District of PA SUPERIOR COURT
WALEEM JENKINS 2586 EDA 2014
BRINKLEY, J. MARCH 31, 2015
OPINION
Defendant Waleem Jenkins appeared before this Court for a jury trial and was convicted·
of Possession with Intent to Deliver a Controlled Substance (PWID). This Court sentenced
Defendant to 3 Yi to 7 years state incarceration, plus 3 years probation. Defendant appealed this
judgment of sentence to the Superior Court and raised the following issues on appeal: ( l)
whether Defendant is entitled to a new trial based on after-discovered evidence; (2) whether the
prosecutor committed misconduct in his closing statement; (3) whether this Court erred in
allowing the Commonwealth to use a Jetter of employment during cross-examination and in
allowing the letter to be read to refresh the jury's memory during deliberations; (4) whether this
Court erred in excluding evidence that police officers in a separate case involving Defendant had
been indicted; (5) whether the verdict was against the weight of the evidence.
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PROCEDURAL HISTORY
On August 18, 2011, Defendant was arrested and charged with PWID and Criminal Use
of a Communication Facility. From June 5 to June 6, 2013, a trial was held in the presence of a
jury. On June 10, 2013, Defendant was found guilty of PWID. On November 12, 2013, this
I Court sentenced him to 3Yi to 7 years state incarceration, plus 3 years probation. At his
sentencing hearing, Defendant stated that he wished to appeal his sentence to the Superior Court
and asked this Court to appoint appellate counsel for him. Trial counsel subsequently failed to
file a notice of appeal and Defendant was not appointed appellate counsel. On July 31, 2014,
this Court reinstated Defendant's appellate rights nunc pro tune and appointed new counsel for
Defendant. On August 29, 2014, Defendant filed a Notice of Appeal to the Superior Court. On
December I, 20 I 4, this Court ordered defense counsel to file a Concise Statement of Errors
pursuant to Pa.R.A.P. I 925(b). On December 2 I, 2014, defense counsel filed a motion for a new
trial based upon after-discovered evidence and requested an extension of time to file the Concise
Statement of Errors so that additional notes of testimony may be transcribed. On March 12,
2015, after receiving the additional notes of testimony, this Court granted Defendant's request
for an extension of time to file the Concise Statement of Errors, and defense counsel filed the
Statement on March I 7, 2015.
FACTS
Trial began in this matter on June 5, 2013. Defendant was represented at trial by Tobi
Russeck, Esquire, while the Commonwealth attorney was Kevin Harden, Jr., Esquire. The
Commonwealth called Officer Carlos Buitrago ("Buitrago") as its first witness. Buitrago
testified that he had been assigned to the Narcotics Field Unit of the Philadelphia Police
Department since 2008. Buitrago testified that, on August 16, 2011, he and his partner, Officer
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Reginald Graham ("Graham"), met with a confidential informant ("CI") and gave the CI $40 in
prerecorded buy money after searching him to make sure that he was not carrying any
contraband or currency. (N.T. 6/5/2013 p. 50-60).
Buitrago testified that CI told him there was a black male selling narcotics in the vicinity
of the 2400 block of Carpenter Street and that this person would deliver drugs if contacted by
telephone at (267)230-1174. Buitrago testified that he told CI to place a call to that number,
which CI did in his presence. Buitrago further testified that CI asked for two packets and then
walked to the southeast comer of 241h and Carpenter, while he remained behind and observed.
Buitrago stated that he remained approximately 25-30 feet away from CI and that nothing
impeded his view of CI. Buitrago testified that he saw Defendant walk westbound on Carpenter
towards 241h Street and approach CI. Buitrago further testified that Defendant and CI had a brief
conversation, following which CI handed Defendant the prerecorded buy money and Defendant
handed CI small objects in return. Buitrago testified that CI returned to his location as
Defendant walked out of view and, upon returning, CI handed him two brown Ziploc packets
containing a white chunky substance. Buitrago testified that he field-tested the substance he
received from CI and it tested positive for cocaine. Buitrago stated that he attempted to locate
Defendant, but was unable to find him. Id. at 62-66.
Buitrago testified that he decided to arrange a "buy bust" on August 18, 2011, in which
CI would purchase narcotics from Defendant and Defendant would be arrested immediately.
Buitrago testified that, at approximately 3 :00 p.m. on the 1 gth, he met with CI and gave him $40
in prerecorded buy money after he searched CI for currency and contraband. Buitrago testified
that he instructed CI to place a call to the same number that he phoned on the l 61h and CI placed
the call in his presence. Buitrago testified that CI was released on the 1900 block of Carpenter
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Street while he remained approximately 25-30 feet away and Graham was across the street from
CI. Buitrago testified that he observed Defendant, wearing a black shirt and tan shorts, walk
westbound on Carpenter Street towards 19th Street and approach CI. Buitrago further testified
that the two had a brief conversation, after which CI handed Defendant the prerecorded buy
money and received small objects from Defendant in return. Buitrago stated that er returned to
his location, at which time CI handed him two clear Ziploc packets containing a white chunky
substance. Id. at 70- 73.
Buitrago testified that he signaled to other members of the Narcotics Field Unit to arrest
Defendant, at which point Graham and Officer Linwood Norman ("Norman") stopped and
arrested Defendant. Buitrago stated that Graham searched Defendant and recovered one clear
sandwich bag that contained seventeen clear Ziploc packets, each of which contained the same
white chunky substance as the packets he received earlier from CI, from the front right pocket of
Defendant's shorts. Buitrago further testified that Graham recovered a separate clear sandwich
bag that contained a ball of the white chunky substance, unused packets, and a razor blade with
white powder residue on it from the same pocket. Buitrago testified that Graham additionally
recovered the prerecorded buy money, $57 in United States currency, and a cell phone bearing
the same number that er had called. Buitrago stated that he confirmed the cell phone's number
by dialing it with his own phone, at which point the cell phone rang and showed Buitrago's
number on the caller identification. Id. at 73-77.
The Commonwealth called Graham as its next witness. Graham testi tied that he had
been assigned to the Narcotics Field Unit for approximately thirteen years, and had been a
Philadelphia Police Officer for approximately eighteen years. Graham testified that, on August
16, 2011, he participated in a narcotics investigation in the area of2400 Carpenter Street with his
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partner, Buitrago. Graham testified that he observed Defendant and CI have a brief
conversation, after which CI handed Defendant the prerecorded buy money in exchange for
small objects. Graham testified that, on August 18, 2011, he and Buitrago again met with CI, at
which time CI made a phone call and asked for two packets. Graham stated CI went to the 1900
block of Carpenter Street and Defendant approached CI on foot. Graham testified that he
observed CI and Defendant have a conversation and then exchange the prerecorded buy money
for small objects. Graham further testified that he was approximately 20 to 25 feet away from CI
while he spoke with Defendant. Graham testified that CI returned to Buitrago's vehicle and
Buitrago flicked the car's headlights, at which point he arrested Defendant. Graham further
testified that he recovered one clear baggy containing 17 packets of aJleged crack cocaine,
I another clear baggy containing numerous chunks of alleged crack cocaine, a razor blade with
white residue on it, $57 in United States currency, the prerecorded buy money, and a cell phone
from Defendant's person. Id. at 112-16.
The Commonwealth called Thomas Meehan ("Meehan") as its next witness. Meehan
testified that he was a sergeant in the Narcotics Field Unit, that he participated in the
investigation of Defendant in a supervisory role, and that he was present for Defendant's arrest.
Meehan stated his role was to ensure that his officers followed the policies and protocols set
forth by the Philadelphia Police Department. Meehan testified that he provided Buitrago and
Graham with the prerecorded buy money they used in their investigation of Defendant. Meehan
testified that, when an officer under his supervision used prerecorded buy money, he would have
I to authorize their use of the money and then, once provided with the money, the officer would
make a photocopy of the money and mark the money they were given. Meehan stated that, when
narcotics evidence is recovered, he would review and approve the paperwork the officers
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submitted to him and he would ensure that all evidence was accounted for. Meehan testified that
he reviewed the property receipts of the evidence recovered from Defendant on August l 6, 20 l l
and August l 8, 2011 and that he signed the receipts the same day they were submitted. Id. at
134-40.
There was a stipulation, by and between counsel, that if police chemist Phillip Sajju
("Sajju") v.:'as called to testify he would testify that he analyzed the two clear Ziploc packets that
were purchased by CI on August 18, 2011. The packets had off-white chunks inside of them,
and the chunks tested positive for Schedule II cocaine base. Sajju would further testify that he
received an additional clear plastic bag containing 17 clear Ziploc packets with off-white chunks
in them, that those chunks were analyzed and that they tested positive for Schedule II cocaine
base. Sajju would further testify that he analyzed another clear plastic bag containing a chunk of
an off-white substance, which tested positive for cocaine base. Sajju would testify that the razor
was not analyzed for any narcotics. Id. at 148-49.
There was a further stipulation, by and between counsel, that, if police chemist Timothy
Pelletier ("Pelletier") was called to testify, he would testify that he tested the two Ziploc packets
containing off-white chunks that were purchased by CI on August 16, 2011 and that those two
packets tested positive for cocaine base. Furthermore, both Sajju and Pelletier would testify that
they were trained as police chemists, that they were certified by the Philadelphia Police
Department, and that their conclusions were to a reasonable degree of scientific certainty. Id. at
150. After the stipulations, the Commonwealth rested. Id. at 152.
Defendant testified on his own behalf. Defendant stated that he did not remember what
he did on August 16, 2011 but he believed he was at work at some point during that day.
Defendant stated that he worked for Thomas Family Moving, a moving company owned by one
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of his cousins. Defendant testified that, on August I 8, 20 I I , he was at 1621 Christian Street
I with his cousin and that sometime between I :30 p.m. to 2:00 p.m. on that day he called a female
friend who lived nearby and walked to her house near the corner of 19th and Christian.
I Defendant testified that he stayed at his friend's house for approximately 45 minutes and the two
of them watched television. Defendant testified that, after he left his friend's house, he decided
to walk to his aunt's house at 23rd and Tasker Street. Defendant stated that he walked down 19th
I until he got to Carpenter Street, at which time he turned right towards 23rd_ Defendant testified
I that he was· on Carpenter Street when someone came up to him from behind and pushed him
against a wall. Id. at 152-58.
I Defendant testified that, once he was pushed against the wall, he saw that it was two
black males who were holding him, although he could not identify either of them. Defendant
stated that the two men repeatedly asked him, "Where the guns at?" and that, as the two men
held him against the wall, three vehicles pulled up to the scene and more men approached him.
I Defendant testified that he recognized one of the men who approached him as Buitrago.
Defendant further testified that Buitrago put his hands in Defendant's pockets and began to
search him while asking him where the guns were. Defendant testified Buitrago then said "Oh,
you got something," and pulled his hands away from Defendant in a cupping motion. Defendant
testified that Buitrago had a Ziploc bag and some money in his hand. Defendant further testified
he said to Buitrago, "Hold. That's not mine. I'm not going for that. You not going to do that to
me," to which Buitrago replied, "We got you now." Defendant stated that he was not carrying
any narcotics or a razor blade on him. Defendant testified that he did not interact with anyone
else from the time he left his friend's house to when he was arrested. Defendant further testified
that his phone number had a 570 area code, and he did not recognize the 267 number that CI
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called. Defendant stated that it was possible he was in the area of Carpenter Street on August 16,
2011, because he lived in that neighborhood. Id. at 158-67. The defense rested after
Defendant's testimony. Id. at 184.
ISSUES
I. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BASED
UPON AFTER-DISCOVERED EVIDENCE.
II. WHETHER THE PROSECUTOR COMMITTED MISCONDUCT IN HIS
CLOSING STATEMENT.
III. WHETHER THE COURT ERRED IN ALLOWING THE
COMMONWEALTH TO USE A LETTER OF EMPLOYMENT DURJNG
CROSS-EXAMINATION AND IN ALLOWING THE LETTER TO BE
READ TO REFRESH THE JURY'S MEMORY DURING
DELIBERATIONS.
IV. WHETHER THE COURT ERRED IN EXCLUDING EVIDENCE THAT
POLICE OFFICERS ~NA SEPARATE CASE INVOLVING DEFENDANT
HAD BEEN INDICTED.
V. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
DISCUSSION
I. DEFENDANT IS NOT ENTITLED TO A NEW TRIAL BASED UPON
AFTER-DISCOVERED EVIDENCE.
Defendant is not entitled to a new trial based upon after-discovered evidence. A trial
court should grant a motion for new trial on the ground of after-discovered evidence where
producible and admissible evidence discovered after trial (1) could not have been obtained prior
to the end of trial with the exercise ofreasonable diligence; (2) is not merely corroborative or
cumulative evidence; (3) is not merely impeachment evidence; and (4) is of such a nature that its
use will likely result in a different verdict on retrial. Commonwealth v. Trinidad, 2014 Pa. Super.
78, 96 A.3d 1031, 1037 (quoting Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1058
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(2013)). Before granting a new trial, a court must assess whether the alleged after-discovered
evidence is of such nature and character that it would likely compel a different verdict if a new
trial is granted. Commonwealth v. Padillas, 2010 Pa. Super. 108, 997 A.2d 356, 365 (2010)
(citing Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008)). In making that
determination, a court should consider the integrity of the alleged after-discovered evidence, the
motive of those offering the evidence, and the overall strength of the evidence supporting the
conviction. Id. ( citing Commonwealth v. Parker, 494 Pa. 196, 200, 431 A.2d 216, 218 (1981 )).
In the case at bar, Defendant filed a post-sentence motion for a new trial based upon
after-discovered evidence as a result of Norman's subsequent federal indictment on corruption-
related charges. However, Defendant is not entitled to a new trial based upon Norman's
indictment as the nature and character of the evidence would not compel a different verdict if a
new trial were granted. Contrary to Defendant's assertions, Norman's role in his arrest was de
minimis. According to the testimony presented at trial, Norman was only one of multiple officers
who were present at the scene when Defendant was arrested on August 18, 2011. He was not
present on August 16, 2011 during the first purchase by the CI nor did he handle the CI on
August 18, 2011. Moreover, Norman did not search Defendant or interact with him other than
when he and Buitrago stopped Defendant, and he did not testify at Defendant's trial.
Furthermore, there is no allegation that Buitrago or Graham were in any way involved with
Norman's alleged activities or that they otherwise engaged in corruption. As the evidence of
Defendant's guilt presented at trial was wholly derived from the investigation and testimony of
Buitrago and Graham, and in no part derived any evidence provided by Norman, there is no
indication that evidence of Norman's subsequent indictment would likely compel a different
verdict. Therefore, Defendant is not entitled to a new trial based upon after-discovered evidence.
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II. THE PROSECUTOR DID NOT COMMIT MISCONDUCT IN HIS
CLOSING ARGUMENT.
The Commonwealth attorney did not commit prosecutorial misconduct during his closing
statement when he repeatedly referred to himself as "a gladiator". In order to raise a claim of
alleged prosecutorial misconduct, Defendant must object to the misconduct in a timely manner;
otherwise such a claim will not be available on appellate review. Commonwealth v. Cox, 603
Pa. 223, 983 A.2d 666, 685 (2009). While a closing argument must be based upon evidence in
the record or reasonable inferences therefrom, a prosecutor is permitted to respond to defense
evidence and engage in oratorical flair. Commonwealth v. Culver, 2012 Pa. Super. 172, 51 A.3d
886, 878 (2012) (citing Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861, 869 (1990)).
Allegedly improper remarks of a prosecutor during closing arguments must be viewed in the
context of the closing argument as a whole. Commonwealth v. Smith, 604 Pa. 126, 985 A.2d
886, 907 (2009) (quoting Commonwealth v. Washington, 549 Pa. 12, 700 A.2d 400, 407-08
(1997)).
In defining what constitutes impermissible conduct during closing argument,
Pennsylvania follows Section 5.8 of the American Bar Association (ABA) Standards. Section 5.8
provides: (a) the prosecutor may argue all reasonable inferences from evidence in the record. It is
I unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the
jury as to the inferences it may draw; (b) It is unprofessional conduct for the prosecutor to
express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the
guilt of the defendant; ( c) The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury; (d) The prosecutor should refrain from argument which would
divert the jury from its duty to decide the case on the evidence, by injecting issues broader than
the guilt or innocence of the accused under the controlling law, or by making predictions of the
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I consequences of the jury's verdict. Commonwealth v. Judy, 2009 Pa. Super. 148, 978 A.2d 1015,
11019-20 (2009) ( citing Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006)).
I Even an otherwise improper comment may be appropriate if it is in fair response to
defense counsel's remarks. Commonwealth v. Burno, 96 A.3d 956, 974 (Pa. Super. 2014)
( quoting Commonwealth v. Elliott, 80 .2d 415, 443 (Pa. 2013 ). If a challenged remark is made
in response to the defense's closing argument, it will generally be deemed fair response and
hence permissible comment. Commonwealth v. Keaton, 615 Pa. 675, 45 A.3d 1050, 1074-75
(2012) (citing Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 110 (1998)).
Furthermore, a prosecutor's comments do not constitute reversible error unless their unavoidable
effect was to prejudice the jury, forming in their minds fixed bias and hostility towards the
defendant so that they could not weigh the evidence objectively and render a true verdict. Id.
In the case at bar, the Commonwealth attorney made three references to himself as "a
gladiator'' and to the courtroom as "the coliseum" during his closing statement. Specifically, Mr.
Harden stated,
"Once you get in the coliseum with the Commonwealth, you have
to bring it. If this is ancient Rome and we're in the coliseum, if you
stay outside the coliseum, no judgment. But once you decide to step
into this coliseum with a gladiator, I'm going to pick your story apart,
my brother."
(N.T. 6/26/2013 p. 26). Shortly thereafter, Mr. Harden stated, "you went to the coliseum with a
gladiator, my brother," and "you're in the coliseum with a gladiator, my brother." Id. at 27-28.
However, defense counsel failed to object after any of these statements and therefore the claim
that the Commonwealth attorney committed misconduct in his closing statement by repeatedly
referring to himself as a gladiator was not properly preserved for appellate review.
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Even if the claim was properly preserved for appellate review, the Commonwealth
attorney did not engage in misconduct by referring to himself as a gladiator but was merely
engaging in oratorical flair to respond to arguments made by the defense. In referring to himself
as a gladiator and the courtroom as a coliseum, Mr. Harden was offering a metaphor for the
adversarial process of a trial and his duty to respond accordingly to inconsistencies in the
defense's arguments. Notably, Mr. Harden referred to himself as a gladiator after highlighting
Defendant's inconsistent testimony regarding his employment status and his argument that
Buitrago and Graham framed him. Furthermore, there is no indication that Mr. Harden's
referrals to himself as a gladiator had the unavoidable effect of prejudicing the jury and forming
in their minds a fixed bias and hostility towards Defendant so that they could not weigh the
evidence objectively and render a true verdict. Thus, the Commonwealth attorney did not
commit prosecutorial misconduct in his closing argument.
III. THE COURT DID NOT ERR WHEN IT ALLOWED THE
COMMONWEALTH TO USE A LETTER OF EMPLOYMENT DURING
CROSS-EXAMINATION AND THEN ALLOWED THE LETTER TO BE
READ TO REFRESH THE JURY'S MEMORY DURING
DELIBERATIONS.
This Court did not err when it allowed a letter of employment from Old Country Buffet to
be introduced during Defendant's cross-examination. Furthermore, this Court did not err when it
allowed the Jetter to be read to the jury during deliberations. To preserve a claim for review, the
defendant must make a timely and specific objection to the introduction of the challenged
evidence at trial. Commonwealth v. Gray, 2005 Pa. Super. 22, 867 A.2d 560, 574 (2005) ( citing
Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 395 (2003)). A party may not remain
silent and afterwards complain of matters which, if erroneous, the court would have corrected.
Commonwealth v. Strunk, 2008 Pa. Super. 149, 953 A.2d 577, 579 (2008) (quoting
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Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274 (1974)). A Rule 1925(b) statement is
not a substitute for the contemporaneous objection required at trial. Commonwealth v. Ali, 608
Pa. 71, 10 AJd 282, 293 (2010).
Cross-examination may be employed to test a witness' story, to impeach credibility, and
to establish a witness's motive for testifying. The scope of cross-examination is a matter within
the discretion of the trial court and will not be reversed absent an abuse of that discretion.
Commonwealth v. Ballard, 622 Pa. 177, 80 A.3d 380, 394 (2013) (citing Commonwealth v.
Chmiel, 585 Pa. 54 7, 889 A.2d 501, 527 (2005)). An attorney is entitled to question the witness
about subjects raised during direct examination as well as any facts tending to refute inferences
arising from matters raised during direct testimony. Commonwealth v. Bricker, 2005 Pa. Super.
307, 882 A.2d 1008, 1018-19 (2005) (citing Commonwealth v. Begley, 566 Pa. 239, 276-77,
780 A.2d 605, 627 (200 I)). Similarly, an attorney may discredit a witness by cross-examining
the witness about omissions or acts that are inconsistent with his testimony. Id.
When a jury requests that a portion of recorded testimony be read aloud to refresh its
memory, the matter is within the trial court's discretion. Commonwealth v. Arrington, 86 A.3d
831, 848 (Pa.2014) (citing Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968)). As
long as there is not a flagrant abuse of discretion, this decision should not be overturned on
appeal. Commonwealth v. Manley, 2009 Pa. Super. 227, 985 A.2d 256, 173 (citing
Commonwealth v. Gladden, 445 Pa.Super. 434, 665 A.2d 1201, 1205 (1995)). If the court grants
the request and the review does not place undue emphasis on the witness's testimony, no
reversible error is committed. Arrington, 86 A.3d at 848. In Manley, the Superior Court held that
the trial court did not abuse its discretion when it allowed the contents of an exhibit to be read to
the jury after the jury had requested that they be provided a physical copy of the exhibit. See
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Manley, 985 A.2d at 272- 73. In arriving at the conclusion, the Superior Court noted that the trial
court had the discretion to both allow the jury to have an exhibit during deliberation and to have
testimony read back to them during deliberations. Id.
In the case at bar, the Commonwealth cross-examined Defendant regarding a Jetter
written by James Hargrove, manager at Old Country Buffet. The Jetter, which was dated
September 2, 2011, stated that Defendant was presently employed at Old Country Buffet and had
been employed there since July 2010. Defense counsel did not object to the Commonwealth
reading the Jetter at the time. On June 10, 2013, the jury requested to see the letter. Defense
counsel objected to the Jetter being read to the jury because it had not been moved into evidence
or authenticated. The Commonwealth argued that reading the Jetter to the jury would not place
improper weight on it, as the jury had determined it was important to assess Defendant's
credibility. The Commonwealth further argued that reading the Jetter would aid the jury in
making that determination. This Court allowed the letter to be read to the jury because it had
been read to the jury during trial and it would assist the jury in reaching a verdict. (N.T.
6/10/2013 p. 4-11).
As defense counsel failed to object to the Jetter during cross-examination, the claim that
the letter was improperly read during cross-examination was not properly preserved for appellate
review. Even if the claim was preserved for appellate review, there was no error in allowing the
letter to be read during cross-examination. Defendant testified that he was at work for Thomas
Family Moving on August 16, 2011 and therefore could not have been on Carpenter Street
selling drugs at that time. The Jetter, along with the biographical information Defendant gave to
police at the Homicide Unit in which he stated he was unemployed, was therefore properly used
by the Commonwealth to test Defendant's story and impeach his credibility. Moreover, this
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Court did not abuse its discretion when it allowed the Jetter to be read to the jury during
deliberations. The Jetter had been read previously in its entirety, was being used to refresh the
jury's memory, and reading it once more did not place undue weight upon it, as the jury wanted
assistance in their determination of Defendant's credibility. Therefore, this Court properly
allowed the Jetter to be read to the jury during deliberations.
IV. THE COURT DID NOT ERR WHEN IT EXCLUDED EVIDENCE THAT
POLICEOFFICERS IN A SEPARATE CASE INVOLVING DEFENDANT
HAD BEEN INDICTED.
This Court did not err when it excluded evidence that police officers in a separate case
involving Defendant had been indicted. Generally, evidence is admissible if it is relevant, that is,
"if it logically tends to establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a material fact."
Commonwealth v. Kinard, 2014 Pa. Super. 41, 95 A.3d 279, 284 (2014) (quoting Commonwealth
v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (2006)). A trial court may exclude evidence that is
irrelevant to the issues presented. Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 446
(2013). The court may exclude relevant evidence if its probative value is outweighed by a danger
of unfair prejudice. Pa.R.E. 403. Unfair prejudice supporting exclusion of relevant evidence
means a tendency to suggest decision on an improper basis or divert the jury's attention away
from its duty of weighing the evidence impartially. Commonwealth v. Wright, 599 Pa. 270, 961
A.2d 119, 151 (2008). Furthermore, evidence, although logically relevant on the ultimate issue,
may nevertheless be excluded because its general effect on the trial will be to confuse the jury by
distracting its attention away from the jury's primary concern to collateral issues. Commonwealth
v. Jones, 2003 Pa. Super. 220, 826 A.2d 900, 908 (2003) (citing Commonwealth v. Baez, 554 Pa.
66, 93, 720 A.2d 711, 724 (1998)).
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In the case at bar, the Commonwealth made a motion in limine prior to the start of trial to
preclude any mention by the defense that police officers Sydemy Joanis ("Joanis") and Jonathan
Garcia ("Garcia") had been federally indicted. Joanis and Garcia previously had arrested
Defendant a few months prior to his arrest in the instant case and were afterwards indicted for
planting drugs and robbing drug dealers. The Commonwealth argued that this evidence was
irrelevant because Joanis and Garcia had not been involved in any way in the instant matter and
there were no allegations of corruption regarding Buitrago and Graham. The Commonwealth
further argued that any relevance the evidence might have was outweighed by its prejudicial
effect and the evidence would cause undue confusion, as the allegations did not involve the
instant case. Defendant argued that the evidence should be allowed to support an inference that
the entire Narcotics Field Unit in South Philadelphia was corrupt and could be used to impeach
the credibility of the testifying officers from that unit. This Court granted the motion to preclude
any mention of Joanis and Garcia. (N.T. 6/5/2013 p. 5-12).
This Court properly precluded any mention of Joanis and Garcia's indictments as the
evidence was irrelevant to the case at bar. As Joanis and Garcia had no involvement whatsoever
in the instant case, the evidence of their indictment therefore did not tend to establish a material
fact in the case, to make a fact at issue more or less probable or support a reasonable inference or
presumption regarding a material fact. Even if the evidence was relevant to the instant case, any
relevance it may have had was greatly outweighed by the dangers of undue prejudice and
confusion. As there was no allegations that Buitrago or Graham were involved in any corruption,
the evidence would divert the jury's attention away from its duty of weighing the evidence
impartially by distracting its attention from the jury's primary concern to collateral issues.
Therefore, this Court properly excluded any evidence that Joanis and Garcia had been indicted.
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V. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE
EVIDENCE.
The verdict in this case was not against the weight of the evidence presented at trial.
Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was
sufficient to sustain the verdict. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067
(2013) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52 (2000)). The
weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or
none of the evidence and to determine the credibility of the witnesses." Commonwealth v.
Luster, 2013 Pa. Super. 204, 71 A.3d 1029, 1049 (2013) (quoting Commonwealth v. Champney,
574 Pa. 435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the
weight claim below, an appellate court's role is not to consider the underlying question of
whether the verdict is against the weight of the evidence ... rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling on the weight claim."
Commonwealth v. Collins, 2013 Pa. Super. 158, 70 A.3d 1245, 1251 (2013) (quoting Champney,
832 A.2d at 408). A verdict is not contrary to the weight of the evidence because of a conflict in
testimony or because the reviewing court on the same facts might have arrived at a different
conclusion than the fact-finder. Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (quoting
Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 (2003)). Rather, a new trial is
warranted only when the jury's verdict is so contrary to the evidence that it shocks one's sense of
justice and the award of a new trial is imperative so that right may be given another opportunity
to prevail. Id. ·
In the case at bar, the jury heard testimony from Buitrago and Graham that they
personally observed Defendant sell drugs to CI on two separate occasions. Buitrago testified that
CI told the officers that there was a black male selling narcotics in the vicinity of the 2400 block
17
of Carpenter Street and provided them with a specific phone number that could be called to
arrange a sale. Buitrago testified that CI called the phone number and a short time later
Defendant appeared on the scene and exchanged packets containing a chunky, off-white
substance for money with CI. Buitrago and Graham testified Defendant was arrested
immediately after the second occasion, at which time he was searched and the police found
cocaine and the prerecorded buy money that CI used to purchase the drugs on his person.
Buitrago further testified that they found a phone on Defendant's person which matched the
number dialed by CI to arrange the buy. The parties stipulated that chemists Sajju and Pelletier
would testify that the substances purchased by CI from Defendant tested positive for cocaine and
that the substance recovered from Defendant likewise testified positive for cocaine. Meehan
testified that he supervised the investigation and that Buitrago and Graham had followed proper
protocol during their investigation. The jury also heard testimony from Defendant that he was at
work for Thomas Family Moving on August 16. However, the Commonwealth presented
evidence that Defendant previously had told police that he was unemployed at the time and
further claimed that he was employed at OldCountry Buffet. Thus, the jury's verdict was not so
contrary to the evidence that it shocked one's sense of justice. Therefore, the verdict was not
against the weight of the evidence.
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CONCLUSION
After a review of the applicable rules of evidence, statutes, case law and testimony, this
Court committed no error. Defendant is not entitled to a new trial based upon after-discovered
evidence. The prosecutor did not commit misconduct in his closing statement. The Court did not
err in allowing the Commonwealth to use a letter of employment during cross-examination of
Defendant and in allowing the letter to be read to refresh the jury's memory during deliberations.
The Court did not err when it excluded evidence that officers in a separate case involving
Defendant had been indicted. The verdict was not against the weight of the evidence. Therefore,
this Court's judgment of sentence should be upheld on appeal.
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