J-S79005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISAIAH RANSOME,
Appellant No. 1920 EDA 2013
Appeal from the Judgment of Sentence entered June 21, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0005859-2007.
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 19, 2014
Isaiah Ransome (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of second-degree murder and related
offenses.1 We affirm.
The trial court summarized the pertinent facts as follows:
On October 3, 2006, at approximately 9:20 pm, Gary
Roemhild, Kevin Roemhild, Keith Pena, and the decedent
Michael Thierry, were standing on the front steps of 1500
Rosalie Street, where Gary rented an apartment. As
[they] were conversing with each other, [Appellant] and
his [three co-defendants] all of whom were armed,
approached them.
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1
18 Pa.C.S.A. § 2502(b).
*Retired Senior Judge assigned to the Superior Court.
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Sensing that a robbery was about to occur, Gary
attempted to run inside. He could not open the door
before [Appellant,] who was holding a handgun, grabbed
him and demanded that he empty his pockets. Keith Pena
was standing on the steps next to Gary. He was robbed by
[Appellant’s] brother, Jerry Ransome, who brandished a
.32 caliber revolver. Kevin Roemhild and Michael Thierry
were at the bottom of the steps, near the pavement. Eric
Gales pointed a .22 caliber rifle at Kevin Roemhild’s head
during the robbery. Sean Gordine confronted Michael
Thierry.
Gary, Keith and Kevin each gave up their money,
wallets and cell phones. Michael Theirry dropped his keys
and cell phone to the ground and ran. At that point, all
four defendants turned toward Thierry and started
shooting. Thierry was shot in the head and groin and
collapsed near the intersection of Rosalie and Horrocks
Streets. As they fled, the defendants turned their weapons
on the surviving victims and fired multiple gunshots at
them.
Police arrived on the scene within a few minutes. There
they found Thierry lying in the street. Thierry was taken
to the hospital, where he died three days later.
Over the next several months, homicide detectives
interviewed the victims and spoke with several witnesses.
One of those witnesses was [Appellant’s] brother, Jamil
Ransome. He told police that [Appellant] owned a .357
[M]agnum and that he kept the gun at his girlfriend’s
house. On February 5, 2007, police executed a search
warrant at the home of [Appellant’s] girlfriend and
recovered a .357 Magnum.
On February 7, 2007, [Appellant] was arrested. He did
not give a statement to police. However, in a separate
investigation that occurred four months before this
incident, [Appellant] told police that he owned a .357
Magnum and that he had gotten rid of it. Appellant also
acknowledged during the prior investigation that
ammunition discovered in his bedroom was his.
At trial, two surviving victims (Gary and Kevin
Roemhild) and multiple bystanders who observed the
robbery and the subsequent shooting positively identified
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[Appellant] as one of the shooters. The Commonwealth
also presented testimony from several police officers and
the medical examiner, ballistic evidence linking the
defendants to the crime, inculpatory statements
[Appellant] made to family (Jamil Ransome) and friends
(Deante Smith) after the shooting, and a cell phone video
depicting all four defendants playing Russian roulette with
a .32 caliber handgun. Appellant did not have a license to
carry a firearm.
Trial Court Opinion, 3/10/14, at 2-4 (citations omitted).
The trial court summarized the pertinent procedural history as follows:
The defendants were jointly tried by jury before the
Honorable Carolyn Temin. On June 13, 2008, the jury
returned a partial verdict finding all four defendants not
guilty of first degree murder, but deadlocking on the
remaining charges.
A second jury trial was set to commence in May of
2009. Prior to the start of trial, the Commonwealth asked
Judge Temin to reconsider several evidentiary rulings she
had made prior to [Appellant’s] first trial. Specifically, the
Commonwealth sought the introduction of cell phone
records and writings made by one or more of the
defendants that had been ruled inadmissible at the
previous trial. Judge Temin denied the Commonwealth’s
Motion to Reconsider. The Commonwealth appealed Judge
Temin’s ruling to the Pennsylvania Superior Court, which
vacated her Order. On March 3, 2011, defense counsel
field a Petition for Allowance of Appeal in the Pennsylvania
Supreme Court. This Petition was denied on June 2, 2011.
Appellant’s case was then scheduled for retrial.
On December 14, 2012, at the conclusion of a second
jury trial, the jury found [Appellant] guilty of second
degree murder, four counts of robbery (F-1), three counts
of aggravated assault (F-1), criminal conspiracy,
possession of an instrument of crime and violating §§ 6106
and 6108 of the Uniform Firearms Act.
Appellant subsequently filed a post-verdict motion to
have counsel removed from his case. [Judge Temin retired
prior to sentencing Appellant and the case was
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administratively reassigned to the Honorable Benjamin
Lerner, S.J.] On June 21, 2013, this court denied
[Appellant’s] motion and sentenced him to a mandatory
term of life imprisonment on the second degree murder
bill, and concurrent prison terms of ten (10) to twenty (20)
years on each of the robbery and aggravated assault bills
and two-and-one-half (2½) to five (5) years on the § 6106
bill. No further penalty was imposed on the remaining
bills.
Appellant did not file post-sentence motions. This
timely appeal followed.
Trial Court Opinion, 3/10/14, at 1-2 (footnote omitted). Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
I. Is [Appellant] entitled to an arrest of judgment with
respect to his convictions for murder of the second degree,
aggravated assault (three counts), robbery (four counts),
possessing an instrument of crime, carrying a firearm
without a license and carrying a firearm on a public street
since the evidence is insufficient to sustain the verdicts as
to guilt as the Commonwealth failed to sustain its burden
of proving [Appellant’s] guilt beyond a reasonable doubt?
II. Is [Appellant] entitled to a new trial as a result of the
trial court’s ruling that allowed the Commonwealth to play
a videotape [sic] during trial?
III. Is [Appellant] entitled to a new trial as a result of the
trial court’s ruling that allowed the Commonwealth to
present testimony identifying [Appellant] from a
videotape?
IV. Is [Appellant] entitled to a new trial as a result of the
trial court’s denial of his motion for a mistrial made during
the prosecutor’s improper summation to the jury?
Appellant’s Brief at 5.
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Appellant first challenges the sufficiency of the evidence supporting all
of his convictions. Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may
be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.
The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[finder] of fact, while passing upon the credibility of
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005).
In rejecting Appellant’s sufficiency challenges, the trial court properly
identified each element of the criminal offenses of which Appellant was
convicted, and explained why the evidence presented by the Commonwealth
proved Appellant’s guilt, as an accomplice and co-conspirator, beyond a
reasonable doubt. See Trial Court Opinion, 3/10/14, at 5-9. Our review of
the record supports the trial court’s conclusions.
Appellant’s argument in support of his sufficiency challenges consists
largely of citation to standards of review and conclusory statements based
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on these standards. See Appellant’s Brief at 13-18. Appellant does not
specify any particular element of any of the offenses and explain why,
based on the facts presented, the Commonwealth failed to meet its
evidentiary burden. Our review of the record refutes Appellant’s claim that
the Commonwealth’s evidence failed to establish his identity as a shooter,
as well as his claim that there was no physical evidence linking him to the
crimes. The facts, as cited by the trial court, overwhelmingly establish
Appellant’s culpability. To the extent Appellant challenges the credibility of
any of the testimony or other evidence presented against him, he
challenges the weight rather than the sufficiency of the evidence, and such
claim is readily refuted by the record. See Commonwealth v. Widmer,
744 A.2d 745, 751-52 (Pa. 2000) (delineating distinctions between
challenge to weight and sufficiency of the evidence).
Appellant’s next two issues involve the Commonwealth’s playing for a
jury a cell phone video depicting five individuals playing Russian roulette.
In his second issue, Appellant asserts that the trial court erred in allowing
the Commonwealth to play the video because it was irrelevant, improperly
constituted evidence of “prior bad acts,” and was otherwise unduly
prejudicial. See Appellant’s Brief at 24-29. In his third issue, Appellant
asserts that the trial court further erred in permitting a testifying police
detective to identify him as one of the participants in the video. See
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Appellant’s Brief at 30-33.2
Our Supreme Court has summarized:
Appellate courts typically examine a trial court’s decision
concerning the admissibility of evidence for abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
Typically, all relevant evidence, i.e., evidence which tends
to make the existence or non-existence of a material fact
more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all
decisions upon admissibility. See Pa.R.E. 401; Pa.R.E.
402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007). “Evidence is
admissible if it is relevant—that is, if it makes a fact at issue more or less
probable, or supports a reasonable inference supporting a material fact.”
Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super. 2004) (citations
omitted).
In rejecting Appellant’s argument regarding the admission of the cell
phone video, the trial court explained:
Whether relevant evidence is unduly prejudicial is, in
part, a function of the degree to which it is necessary to
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2
We reject the Commonwealth’s claim of waiver. Even though the defense
lodged no objection when the Commonwealth played the video for the jury,
the defense raised their objections during the trial court’s hearing regarding
the Commonwealth’s motion to reconsider its prior ruling on a motion in
limine filed by the defense prior to Appellant’s first trial. See
Commonwealth v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013).
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prove the case of the opposing party. Here, the
Commonwealth was required to prove that a criminal
conspiracy existed, and that the defendants either had
access to or used weapons as part of that conspiracy. The
cell phone video was relevant because it demonstrated
[Appellant’s] familiarity with and prior usage of guns. It
also supported the Commonwealth’s contention that
[Appellant] knew the co-defendants, and that their
association as a group involved in the possession of guns—
factors that were relevant to the existence of a criminal
conspiracy.
There is no doubt that the cell phone video was
prejudicial to the defense. Nevertheless, it was not unduly
prejudicial to the defense. The trial court did not err in
allowing the admission of this evidence. Appellant’s claim
has no merit.
Trial Court Opinion, 3/10/14, at 10-11.
Our review of the record supports the trial court’s conclusions. See,
e.g., Commonwealth v. Antidormi, 84 A.3d 736, 752 (Pa. Super. 2014)
(reiterating that courts are not required to sanitize a trial to eliminate all
unpleasant facts from the jury’s consideration where those facts are
relevant).
Regarding Appellant’s third issue, the trial court concluded that the
detective’s identification testimony “indeed infringed upon the jury’s function
as fact finder and should not have been permitted.” Trial Court Opinion,
3/10/14, at 11. Nevertheless, given the overwhelming evidence of guilt, the
trial court concluded that any such error was harmless. See id., at 11-12.
We note that this Court may affirm the trial court’s determination on
any grounds. Commonwealth v. Gatios, 76 A.3d 44, 62 n.14 (Pa. Super.
2013). Here, we conclude that Judge Temin properly permitted the
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detective to testify to the identification of the individuals depicted in the cell
phone video under Rule 701 of the Pennsylvania Rules of Evidence. In
accordance with this rule, the detective’s testimony was 1) “rationally based
on [his] perception”; 2) “helpful to clearly understand” the detective’s
testimony and “in determining a fact in issue”; and 3) “not based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.” Pa.R.E. 701. See generally, Commonwealth v. Blessitt, 825 A.2d
1215 (Pa. Super. 2004) (en banc).
Appellant’s argument within his brief that the detective’s identification
testimony constitutes “expert opinion” under Pa.R.E. 702 is inapt. Our
review of the record supports the trial court’s conclusions that “the properly
admitted evidence and testimony against [Appellant] and his co-defendants
overwhelmingly demonstrated their guilt.” Trial Court Opinion, 3/10/14, at
12. Thus, the trial court also correctly concluded that “the use of the cell
phone video and the [detective’s] testimony was indeed cumulative of other
evidence presented by the Commonwealth[,]” and that “any potential
prejudice caused by the usage of the cell phone video was insignificant in
comparison to the evidence of [Appellant’s] guilt.” Trial Court Opinion,
3/10/14, at 12. Appellant’s third issue entitles him to no relief.
In his fourth and final issue, Appellant argues that he is entitled to a
new trial because the trial court erred in denying his motion for mistrial after
comments made by the prosecutor during the Commonwealth’s closing
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argument improperly shifted the burden of proof to the defense. See
Appellant’s Brief at 34-42. We disagree.
“The decision to declare a mistrial is within the sound discretion of the
court and will not be reversed absent a flagrant abuse of discretion.”
Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003) (citation
omitted). “A mistrial is an ‘extreme remedy . . . [that] must be granted only
when an incident is of such a nature that its unavoidable effect is to deprive
defendant of a fair trial.’” Id.
Our standard of review for a claim of prosecutorial misconduct is
limited to “whether the trial court abused its discretion.” Commonwealth
v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted), appeal
denied, 928 A.2d 1289 (Pa. 2007). In considering such a claim, our
attention is focused on whether the defendant was deprived of a fair trial,
not a perfect one. Id. This Court has observed:
Not every unwise remark on a prosecutor’s part constitutes
reversible error. Indeed, the test is a relatively stringent
one. Generally speaking, a prosecutor’s comments do not
constitute reversible error unless the unavoidable effect of
such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility toward Appellant so
that they could not [weigh] the evidence objectively and
render a true verdict. Prosecutorial misconduct, however,
will not be found where the comments were based on
evidence or proper inferences therefrom or were only
oratorical flair. In order to evaluate whether comments
were improper, we must look to the context in which they
were made.
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Id. Moreover, “the prosecutor is permitted to respond to defense arguments
and is free to present his or her case with logical force and vigor.”
Commonwealth v. Koehler, 737 A.2d 225, 240 (Pa. 1999) (citation
omitted).
As noted by the trial court, “[d]uring closing arguments . . . counsel
for co-defendant Sean Gordine[] suggested that the police somehow
improperly influenced the witnesses to identify the defendants.” Trial Court
Opinion, 3/10/14, at 13 (citing N.T., 12/13/12, at 58-89). The prosecutor
responded to this argument during closing:
[THE PROSECUTOR:]
Consider the identification procedure. Consider how
[the police] went about doing it. They put eight faces of
similarly looking individuals on a piece of paper. They
didn’t collectively huddle with all the witnesses. They were
separate. They showed it to [the witnesses]. And said if
anyone could recognize any of the assailants. Anyone
involved. There was no rush to judgment. Jamil
[Ransome] was in those photo spreads. [The police]
showed [the photo spreads] to the victims.
And is it any coincidence that out of 40 faces, five sets
of eight, five times eight, 40 faces, only these four
defendants were identified. Only these four. The other 36
faces were never selected by any of the victims or any of
the eyewitnesses. What does that tell you? What are the
chances? You do the math. One in eight. One in eight.
An identification gets made. One in eight. There was
no guessing. There was no pointing the finger. If [the
police] wanted to put a case on someone, they would have
said, Hey, you know, what about that guy? Hey, you
know, what about that guy? No. There are blanks here
for people that didn’t have that vantage point. There is no
putting a case on anyone.
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I asked every single detective, you know, you saw the
whole squad, when the detectives got up there, I
presented them with the witness statements. Remember
the first thing I asked the detective, I said [d]id you take
the statement from Gary Roemhild? Did you show the
photo spreads to this witness, to that witness, to this
witness, to that witness?
And [Sean Gordine’s counsel] wants to make a big stink
about how the detectives manipulated witnesses and
coerced the witnesses and cannot trust the investigation.
But did he ask any single one of those detectives anything
about when they showed photo spreads to the witnesses?
Did he ask anybody anything about whether someone was
manipulated? Did you hear any of these witnesses -- I will
get to Deshawn [Williams] because he was friends with
[the defendants]; he’d got reason [sic] -- any of these
people say that they were manipulated and they were told
who to point the finger to? That would have come out;
you would have heard it.
Sometimes it’s the questions that are asked and
sometimes it’s the lack of questions because it’s really
easy for a defense attorney to just gloss over something
and get up in closing argument and throw out a bunch of
theories that have not been substantiated and they didn’t
try to substantiate that - -
[GORDINE’S COUNSEL]: Objection.
THE COURT: The jury will disregard everything that
[the prosecutor] said about what the defense lawyers did
or didn’t do. You have been told a number of times that
the burden is on the Commonwealth to prove its case
beyond a reasonable doubt. The defense lawyers have no
duty to ask any special questions or any specific questions.
It’s fair for the [prosecutor] to criticize an argument. He
can’t do it in a way to suggest that the defense lawyers
had some duty to ask certain questions about things.
You are the jury. You will judge whether you agree
with the arguments of the defense or the Commonwealth
or not. Based upon your assessment of the evidence and
your decision about its truth and accuracy.
Please continue.
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[THE PROSECUTOR]: I wasn’t trying to burden shift.
They have no burden of proof. The burden is always with
me. It’s my responsibility to prove the defendants guilty.
Please do not misinterpret what I’m saying. What I am
saying is [Gordine’s counsel] presents to you an argument
that he has not substantiated, some speculation, some
theory - -
[GORDINE’S COUNSEL]: Objection.
[THE PROSECUTOR]: - - that is trying to fly this in
front of you - -
[JERRY RANSOME’S COUNSEL]: I join in the
objection.
[GORDINE’S COUNSEL]: Objection.
THE COURT: Can I see counsel at sidebar, please?
(Whereupon, the following took place at sidebar in the
jury’s presence)
[CORDINE’S COUNSEL]: I have a motion for mistrial
with prejudice.
[JERRY RANSOME’S COUNSEL]: I join.
[GALES’S COUNSEL]: I join, as well.
[THE PROSECUTOR]: The jury is right there.
THE COURT: The motion for a mistrial is denied.
[Prosecutor], please, you may comment on the
evidence. You can say that the arguments that have been
put forth by defense counsel are not supported by the
evidence. You can’t intimate that they have any duty to
make any kind of argument or ask any kind of question or
anything like that. That’s totally, totally improper.
I think that I told the jury that very strongly, but then
you did go back and start to do it again. Stay away from
the arguments of defense counsel. Argue your case.
[APPELLANT’S COUNSEL]: I join in the motion,
Judge.
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THE COURT: I’m assuming that all defense counsel
does.
[GORDINE’S COUNSEL]: Yes. I ask you to give
another instruction.
(End of sidebar discussion)
THE COURT: Just in case if anybody didn’t understand
my first instruction, I want to make this very clear to you
that one, the defense has absolutely no burden to do
anything. That the [prosecutor] should confine his
comments to the evidence and not to criticizing the
arguments of defense counsel. It’s up to you to evaluate,
you, the jury, to evaluate the arguments of counsel and
decide which arguments appeal to your reason and your
judgment and which don’t.
But I remind you again that nothing said by any of the
lawyers is evidence. Nothing said by the lawyers is
evidence.
You may continue in accordance with my instructions.
N.T., 12/13/12, at 146-152.
In rejecting Appellant’s claim, the trial court explained:
It is clear that the prosecutor’s remarks, while not wise,
were made solely for the purpose of addressing the
assertion – made by Sean Gordine’s counsel – that [the]
identification process was improperly influenced by the
police. In this context, the remarks were not made for the
purpose of shifting the burden of proof to the defendants.
Nor were they made with the intent to prejudice the jury
or engender hostility or bias towards the defendants.
Furthermore, in light of the court’s timely instructions to
the jury, [Appellant] cannot claim that he was prejudiced
by the [prosecutor’s] remarks.
Trial Court’s Opinion, 3/10/14, at 14.
Our review of the record and pertinent case law supports the trial
court’s conclusion that the objectionable statements made by the prosecutor
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were not intentional, and that the trial court’s clear instructions to the jury
cured any prejudice and ensured Appellant a fair trial. See, e.g., Koehler,
737 A.2d at 241 (explaining that a prosecutor’s remark that he did not
believe the defendant and calling him a liar was proper when comments
were made in response to defense counsel’s closing regarding the credibility
of witnesses and was supported by the evidence); see also
Commonwealth v. O’Hannon, 732 A.2d 1193, 1196 (Pa. 1999) (citation
omitted) (explaining, “[a]bsent evidence to the contrary, the jury is
presumed to have followed the trial court’s instructions”).
In sum, the Commonwealth presented sufficient evidence to support
Appellant’s convictions, the trial court did not erroneously permit the
admission of video and testamentary evidence during trial, and the trial
court correctly denied Appellant’s motion for mistrial during the
Commonwealth’s closing argument. We therefore affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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