Com. v. Williams, J.

J. A20012/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES WILLIAMS, : No. 4 EDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, November 9, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0007513-2010,
MC-51-CR-0039412-2009

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2014

James Williams appeals from the judgment of sentence entered on

November 9, 2012, in the Court of Common Pleas of Philadelphia County

following his convictions of first degree murder and carrying a firearm in

public in Philadelphia. Following careful review, we affirm.

FACTUAL HISTORY

On August 4, 2009, the police received a radio call about a shooting

near 30th and Mifflin Streets in Philadelphia. Upon arrival, the police

observed the body of Nathanial Nazario (“the victim”) and his Cadillac, which

was parked near the body. The victim sustained eight gunshot wounds.

Expert testimony established that the wounds were inflicted from a distance

of more than three feet. No firearm was recovered but the police found four
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.9 millimeter cartridge casings that were ejected from the same firearm.

Investigators were unable to determine the caliber of the bullets recovered

from the decedent’s body.

On the evening of his death, the victim brought a friend of the family,

Jennifer Colon (“Colon”), to visit his sister, Lizette Nazario (“Lizette”), who

was pregnant; Lizette lived in the Tasker Homes located at 30 th and

Mifflin Streets. (Notes of testimony, 11/5/12 at 7.) The victim double

parked his car and went into the house. Lizette came out and talked with

Colon.1

Soon thereafter, Markeem Williams (“Mar-Mar”), who lived around the

corner, arrived and talked with Lizette’s neighbor, “Butter.” Exiting the

house and observing Mar-Mar, the victim asked his sister if “that [was]

Mar?” The victim then approached Mar-Mar and an argument began. (Id.

at 127.) By this point, Butter had joined the conversation with Colon and

Lizette. The victim directed Colon to get in the car and they left; the victim

was upset and said, “we gonna straighten this shit out once and for all . . .

the niggas down here are jealous and I’m tired of this shit. They calling my

boy a liar.” (Id .at 129.) Mar-Mar walked back to his porch where appellant

and a group of men were waiting.

1
At trial, Colon stated that she had been smoking PCP before they arrived
and taking Xanax; she testified that her memory was vague as she was
“drunk and high.” (Id. at 8-9.)

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Sometime thereafter, the victim and Colon drove to Kelcey Little’s

(“Little”) house on Corlies Street, which was about four blocks away and

asked Little to take a “drive.” They then proceeded to the 3000 block of

Mifflin Street where three men were on the porch. (Id. at 129.) The victim

and Little got out of the car, while Colon remained inside.

The victim and Little walked up to a fence where Mar-Mar and

appellant met them. (Id. at 15, 130.) An argument broke out, and Colon,

who was nervous, exited the car to ask the victim to take her home. (Id. at

15, 130-131.) The victim, Colon, and Little were returning to the car when

appellant walked behind them stating “come on back,” trying to talk to the

victim. Appellant then fired shots at the victim; Colon and Little ran. (Id. at

17, 131.) The victim sustained eight gunshot wounds to his back, chest,

and right arm, as well as a graze gunshot wound to the back of his right

shoulder. When officers arrived on the scene, in response to a radio call for

a shooting, the victim was unresponsive and was pronounced dead.

After the shooting, Mar-Mar’s mother called and told him and appellant

that the police were there and they should not return to the area; appellant,

who had been living with Mar-Mar’s mother, did not return. (Notes of

testimony, 11/1/12 at 194-198, 207-208.) Between 7:00 a.m. and

8:00 a.m., Detective William Holmes and other officers went to the area to

conduct a neighborhood survey and try to find witnesses. (Notes of

testimony, 11/2/12 at 7.) After speaking to Mar-Mar’s brother, Shakir,

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Detective Holmes spoke to Modesty Ligon, who lived at 3000 Mifflin Street.

(Id. at 12.) As they spoke, a man with shoulder-length dreadlocks ran from

the area behind Mar-Mar and Ligon’s house, jumped a fence, got in a car,

and sped away. Detective Holmes did not see his face. (Id. at 13-15.)

Lizette testified that she did not know of any other person in the area

besides appellant who wore dreadlocks down to their shoulders. (Id. at

124, 162.)

Colon was brought to the police station three and a half hours after the

shooting and gave a statement about six hours after the shooting. (Notes of

testimony, 11/5/12 at 26.) In her statement, Colon told the police that she

“seen the whole thing.” (Id. at 28.) She told the detectives that she did not

know the men who shot the victim but she “got a good look at them.” (Id.)

She explained that they left Lizette’s house and as they pulled away, the

victim stated: “We gonna straighten this shit out once and for all . . . the

niggas down here are jealous, I’m tired of this shit. They calling my boy a

liar.” (Id. at 33.)

They parked across the street from the house and three guys were

standing on the porch; Colon described appellant’s clothing and appearance,

and that of his cohort, in great detail. Colon stated the first man she

observed was heavyset, 20 to 30 years old. (Id. at 34.) She stated the

second man, appellant, was tall, 19 to 22 years old, approximately 6 feet

2 inches tall with brown skin. (Id. at 34-35.) Colon told the detectives that

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appellant did not have a defined beard but did have braided hair parted in

the middle and down to his shoulders. (Id. at 35.) Appellant was wearing a

white T-shirt and dark colored shorts, which were almost capri length.

(Id.)2 Colon described the third person, who she claimed was arguing with

the victim earlier on the side of his sister’s house, as approximately 6 foot

and was approximately 18 to 19 years old. This man had dark skin and a

short haircut; he was also wearing a white shirt and dark capris. (Id.)

In her statement, Colon claimed that the boy with the braids walked

behind them and kept saying “come on back” to the victim. (Id. at 36.)

“That’s when the boy with the braids came out with the gun. He fired like

two shots at [the victim] and then I took off.” (Id.) She claimed that the

man who initially argued with the victim was next to the shooter. (Id. at

40.) Colon identified the “guy who was with the guy with the braids” from a

photo array. (Id. at 41.)3 Four days later, the detectives showed Colon an

array of eight photographs. She told the detectives that “number 7

[appellant] looks like the guy who shot [the victim] but his braids were a

2
At trial, Colon stated these were not the exact answers she gave to the
police. (Id. at 37-39.) During her direct testimony, she stated that one
person had long hair and another had short hair: “I don’t know if it was
dreads, if it was braids. [The police] kept interrogating me if it was dreads,
if it was braids. I don’t know.” (Id. at 23.) Colon also denied seeing the
shooters’ faces. (Id.)
3
Appellant denied making this identification at trial. (Id. at 41.)

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little longer.” (Id. at 50.) She signed the photograph and wrote in it, “the

guy who did the shooting.” (Id. at 50-64, 137-142.)4

Little talked to the police he provided a statement wherein he

explained the following:

[The victim] drove off down Corlies Street to Mifflin
and pulled over by the stop sign on Mifflin. He got
out of the car and walked right over to the guy Mar’s
house who lives there. I was still in the back seat of
the car. I then saw [the victim], [Mar-]Mar’s friend
Man-Man walking toward the side of Mar’s house. I
didn’t know what was going on so I got out and
walked back there on the side with them. [The
victim] and Mar was standing there talking and
Man-Man was just standing there not saying
anything.

The next thing I remember was the girl coming out
of the car and coming over to tell [the victim] to
come on. [The victim] then started walking away
from where Mar and Man-Man were and that’s when
I heard a loud gunshot. I took off running.

Notes of testimony, 11/1/12 at 260.5 Little told the police he did not see

who fired the shots and did not see the gun, but averred that the shots

came from where appellant and Mar-Mar were standing. (Id. at 152, 267.)

When asked if he knew of any problems the victim was having with Mar-Mar

4
At trial, Colon denied that she signed the photograph. She testified that
when Detective Burns had her sign the page acknowledging that she had
seen the photo array, the page was blank. She also testified that she did
not write, “the guy who did the shooting” on the photograph. (Id. at 50-53,
84.)
5
Little denied that the victim parked at Mar-Mar’s house and that he ever
saw Mar-Mar or appellant. (Id. at 265-267.)

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or Man-Man, Little stated “they was jealous of him or something. [The

victim] had a nice car and always had pretty girls with him.” (Id. at 270.)6

In his statement, Little stated he had known Mar-Mar and appellant for

approximately 4 years. He did not remember what they were wearing the

night of the shooting. However, he said Mar’s hair was cut close and

appellant’s was in dreads. (Id. at 273.) Little was shown photographs and

identified Mar-Mar and appellant. (Id. at 274-276.)7

Mar-Mar’s mother testified that she knew appellant extremely well.

Upon seeing the photo of appellant, she told the police that it was an

accurate description of appellant but that “[appellant’s] hair is a little longer

now, same style, just longer.” (Notes of testimony, 11/1/12 at 213-220.)

PROCEDURAL HISTORY

On August 12, 2009, the police obtained an arrest warrant for

appellant; and on August 26, 2009, appellant turned himself in to the police.

Consistent with his arrest photograph, Detective Burns stated that in August

of 2009, appellant was wearing his hair in a “dreadlocked” style. No arrest

warrant was issued for Mar-Mar. Appellant was charged with first degree

murder, conspiracy to commit murder, several violations of the uniform

firearms act, and possessing an instrument of crime.

6
At trial, Little denied making this statement to detectives. (Id. at 270.)
7
At trial, Little did not recall making these identifications and denied
knowing Mar-Mar or appellant. (Id. at 275-277.)

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A March 2, 2012 jury trial resulted in a hung jury. Thereafter, a jury

trial commenced on November 1, 2012. The parties stipulated that

appellant was not licensed to carry a firearm. On November 9, 2012,

appellant was found guilty of first degree murder and carrying a firearm in

public in Philadelphia; the remaining charges were nolle prossed.

Appellant was sentenced to a mandatory term of life imprisonment without

parole on the homicide charge and did not receive any additional sentence

on the remaining charge. On November 15, 2012, appellant filed a

post-sentence motion, which was denied on December 12, 2012. Appellant

filed a timely notice of appeal on December 21, 2012, and raises the

following issues on appeal:

I. Under the Fifth and Fourteenth Amendments of
the U.S. Constitution as well as Article I, § 9 of
the Pennsylvania Constitution, did the Trial
Court erroneously deny Appellant’s mistrial
motion where the prosecutor’s opening
statement improperly alleged that Appellant
did not speak to the police because he knew he
was “guilty” of the murder?

II. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, were
Appellant’s convictions supported by
insufficient evidence where the prosecution
failed to establish beyond a reasonable doubt
that Appellant was responsible for the fatal
shooting?

III. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously conclude that Appellant’s

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convictions were not against the weight of the
evidence?

IV. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously deny Appellant’s mistrial
motion where the prosecution summation
improperly (1) argued that there were “implied
threats” against witnesses without any
“supporting” evidence in the record; and
(2) referred to defense counsel’s arguments as
“tactics and trickery?”

V. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court erroneously permit the prosecution to
bolster the testimony of a prosecution witness?

VI. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, did the Trial
Court err where it provided an incomplete
“circumstantial evidence” charge?

Appellant’s brief at 4-5.

The first issue presented is whether the trial court erred in denying his

motion for a mistrial; appellant claims the prosecution made a reference to

appellant’s “pre-arrest silence” in the opening statement. (Appellant’s brief

at 24.) After a review of the record, we agree with the Commonwealth that

appellant’s constitutional pre-arrest right to silence was not violated.

We review the trial court’s decision to deny a mistrial for an abuse of

discretion. Commonwealth v. Boone, 862 A.2d 639, 646 (Pa.Super.

2004). A mistrial is necessary only when “the incident upon which the

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motion is based is of such a nature that its unavoidable effect is to deprive

the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict.” Commonwealth v. Parker, 957 A.2d 311, 319

(Pa.Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009).

Appellant argues that in her opening statement, the prosecutor stated

that Mar-Mar’s mother told appellant and Mar-Mar that the police wanted to

talk to appellant and directs our attention to the following:

And [Mar-Mar’s mother] gets messages to [Mar-Mar
and appellant], the cops are looking for you, and she
tells them don’t come around here. And guess
what? They don’t because they know that they’re
guilty and they know that they were just involved in
this murder.

Notes of testimony, 11/1/12 at 48. Appellant avers “the prosecutor’s

commentary referred to Appellant’s failure to ‘talk’ to homicide detectives.

The prosecutor’s commentary was impermissible.” (Appellant’s brief at 25.)

Appellant relies on Commonwealth v. Molina, 33 A.3d 51 (Pa.Super.

2011) (en banc), appeal granted in part, 51 A.3d 181 (Pa. 2012), in

which this court held that the defendant’s pre-arrest, pre-Miranda8 silence

could not be used as substantive evidence of guilt at trial. In Molina, the

defendant refused to go to police headquarters to be interviewed by the

police. Id. at 54. At closing argument, the Commonwealth argued that the

defendant’s refusal to cooperate with detectives should factor into the jury’s

8
Miranda v. Arizona, 384 U.S. 436 (1966).

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decision. Id. The Molina court held that the Commonwealth cannot use a

non-testifying defendant’s pre-arrest silence to support its contention that

the defendant is guilty of the crime charged as such is an impermissible

burden on the exercise of the Fifth Amendment privilege. Id. at 62.

We disagree with appellant’s argument that the prosecutor’s comment

implicated his pre-arrest right to silence due to the prosecutor’s use of the

word “talk” and find no basis for a mistrial. Rather, we agree with the trial

court that the prosecutor’s remarks were concerning appellant’s

concealment, which is proper evidence of consciousness of guilt.

Commonwealth v. Coyle, 203 A.2d 782, 289 (Pa. 1964). Conduct of an

individual indicating consciousness of guilt is not a testimonial statement of

guilt protected by the privilege against compulsory self-incrimination. See

Commonwealth v. Robinson, 324 A.2d 441, 450 (Pa.Super. 1974)

(admission into evidence of defendant’s refusal to submit to breathalyzer

test under implied consent law does not violate defendant’s Fifth

Amendment privilege against self-incrimination). For example, our courts

have explained that flight, escape from custody, and the suppression of

evidence are non-communicative acts unprotected by the privilege against

compulsory self-incrimination. Id; Commonwealth v. Collins, 269 A.2d

882 (Pa. 1970). Thus, unlike the defendant in Molina who refused to be

interviewed by detectives, appellant concealed his whereabouts. There is no

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evidence that appellant was confronted by the police and refused to answer

questions. Cf. Molina, supra.

Where evidence exists that a defendant committed a crime, knew he

was wanted, and fled or concealed himself, such evidence is admissible to

establish consciousness of guilt. See Commonwealth v. Tinsley, 350 A.2d

791, 792-793 (Pa. 1976). A defendant’s knowledge may be inferred from

the circumstances attendant to his flight. See Commonwealth v. Rios,

684 A.2d 1025, 1035 (Pa. 1996); see also Tinsley, 350 A.2d at 793

(concluding that such an inference was justified where the evidence revealed

that the defendant abandoned his normal pattern of living without

explanation and could not be located at his residence or place of

employment or through contacts to his relatives). Here, there was evidence

that appellant disrupted his normal pattern of living following the murder

and his knowledge that he was a person of interest could be inferred from

the testimony that the police informed Mar-Mar’s mother that they wanted

to talk to him.

Next, appellant claims that the evidence was insufficient to sustain his

convictions. (Appellant’s brief at 29-38.) Appellant avers that none of the

Commonwealth’s witnesses positively identified appellant as the shooter nor

did any forensic evidence link him to the crime.

“A claim challenging the sufficiency of the evidence is
a question of law.” Commonwealth v. Weston,
561 Pa. 199, 749 A.2d 458 (2000). “For questions
of law, our scope of review is plenary.”

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Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d
618 (2007). “In reviewing a sufficiency challenge, a
court determines whether the evidence, viewed in
the light most favorable to the verdict winner, is
sufficient to enable the fact-finder to find every
element of the crime beyond a reasonable doubt.”
Id.

Commonwealth v. Robinson, 936 A.2d 107, 108 (Pa.Super. 2007),

appeal denied, 948 A.2d 804 (Pa. 2008).

The Commonwealth presented statements from eyewitnesses to the

police that appellant had been the shooter. Testimony was presented that

appellant and his cohort argued with the victim. When the victim began to

walk away, appellant followed him and repeatedly urged him to come back.

When the victim declined to do so, appellant repeatedly shot him in the

back. The jury was free to discount appellant’s theory and to credit the

testimony of the witnesses who positively identified appellant as the

gunman. Accordingly, we hold that sufficient evidence was presented to

permit the jury to properly conclude that appellant was guilty of the first

degree murder beyond a reasonable doubt.

Appellant also argues that he did not match the description of the

shooter. (Appellant’s brief at 32.) Appellant points to Colon’s testimony

that she told the police the shooter had “braided hair parted in the middle

and down to his shoulders.” Appellant’s claim is reliant upon his assertion

that there is a difference between “braided hair” and “dreadlocks.” (Id. at

32-33.) Appellant, however, ignores that Colon saw appellant’s photograph

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and identified him as the shooter. Additionally, Little testified that the shots

came from where appellant and his cohort were standing. Such testimony is

sufficient to establish appellant’s identity.

The third issue presented is whether the trial court abused its

discretion in denying appellant’s weight of the evidence claim. Appellant

challenges the weakness of the identifications made by Lizette, Colon, Little,

and Detective Holmes. We find appellant’s claims concerning Lizette and the

detective to be waived as appellant failed to raise these contentions at the

conclusion of trial or in his post-sentence motion. Rather, in his

post-sentence motion, appellant presents the following argument:

Here, the Commonwealth relied upon the testimony
of two witnesses: Jennifer Colon and Kelcey Little.
The testimony of these witnesses were [sic] against
the weight of the evidence. To illustrate, Ms. Colon
provided contradictory statements to the police.
Furthermore, Mr. Little stated to the police in his
August 6, 2009 statement to the police that he had
heard shots but did not see anyone shooting. He
added that he had not seen [appellant] with a gun
that night. Mr. Little’s testimony did not contradict
Mr. Little’s assertion that he had not seen [appellant]
shoot the decedent.

Docket #11. Thus, we limit our review to appellant’s claims concerning

Colon and Little and the remaining arguments included in his brief are

waived. Pa.R.A.P. 302(a); Commonwealth v. Kane, 10 A.3d 327, 333

(Pa.Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011) (no review of

theory of relief distinct from one raised at trial).

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Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.

This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

Appellant argues that Colon’s testimony was unreliable and she

provided contradictory statements to the police. As stated previously, Colon

gave a detailed description of appellant to the police and also admitted that

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she was intoxicated. Likewise, appellant takes issue with Little’s testimony

and claims that Little lied.

The jury, as fact-finder, was in the best position to evaluate the

credibility and veracity of the witnesses. Appellant’s defense at trial was

misidentification. Testimony was presented that witnesses identified

appellant from a photographic array. The trial court found that when

viewing the testimony of the witnesses and all of the evidence presented in

conjunction with one another, the court could not find that the verdict was

against the weight of the evidence. (Trial court opinion, 6/18/13 at 13.) In

sum, the jury’s verdict did not shock the trial court’s sense of justice and

was amply supported by credible evidence. No relief is due.

The fourth issue before this court is whether the trial court erroneously

denied appellant’s motion for a mistrial in response to the prosecutor’s

summation. Appellant alleges that the prosecutor improperly argued that

“implied threats” existed without evidence to support such a statement and

improperly referred to the arguments of defense counsel as “tactics and

trickery.” After a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to this issue. The trial court’s opinion

comprehensively discussed and properly disposes of this matter and,

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accordingly, we adopt that opinion as our own and affirm on that basis. 9

(Id. at 6-8.)

In the fifth issue presented, appellant argues Lizette’s testimony that

she was telling the truth was improper bolstering by the prosecutor.

(Appellant’s brief at 49-54.) We agree with the Commonwealth that

appellant’s claim is waived and, even if preserved, meritless.

Appellant’s argument centers on the prosecutor’s question to Lizette,

“are you telling the truth?” to which she answered “Yes, I am.” (Notes of

testimony, 11/2/12 at 160.) Our review of the notes of testimony indicates

that appellant did not object when the prosecutor asked this question to

Lizette. (Id.) While the defense did object to two other questions that

pertained to the cross-examination of this witness, the witness did not

answer either question as the first objection was sustained and a side-bar

was held following the second objection. Appellant did not pose an objection

during the prosecutor’s questioning of Lizette on the basis of improper

bolstering. Therefore, this issue has been waived. See Pa.R.A.P. 302(a);

Commonwealth v. Rivera, 983 A.2d 1211, 1229 (Pa. 2009) (“This Court

has held that the lack of a contemporaneous objection constitutes a waiver

of any challenge to the prosecutor’s closing remarks.”).

9
Additionally, we note the trial court’s cautionary instruction was sufficient
to overcome any potential prejudice that may have resulted. It is well
settled that a jury is presumed to follow the instructions of the court.
Commonwealth v. Natividad, 938 A.2d 310, 326 n.9 (Pa. 2007).

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Moreover, had appellant preserved his claim, no relief would be due.

The Pennsylvania Supreme Court has stated that “[i]mproper bolstering or

vouching for a government witness occurs where the prosecutor assures the

jury that the witness is credible, and such assurance is based on either the

prosecutor’s personal knowledge or other information not contained in the

record.” Commonwealth v. Smith, 995 A.2d 1143, 1157 (Pa. 2010).

Here, the prosecutor elicited the basis for the witness’ frustrated demeanor

on cross-examination, and the witness asserted she was not lying. The

prosecutor did not offer her personal opinion about Lizette’s veracity, nor did

the Commonwealth indicate that evidence not before the jury supported the

testimony. As the court stated in Commonwealth v. Stokes, 38 A.3d 846,

867 (Pa.Super. 2011), “A witness’s own personal assurance that he would

not lie. . . . is not impermissible bolstering, as the jury must nevertheless

decide if the witness himself is being truthful.”

The last issue before this court is whether the trial court erred in

instructing the jury on circumstantial evidence. Appellant argues the court

did not state that before the jury could draw inferences from facts, they

must first conclude those facts are true. (Appellant’s brief at 54-55.)

We begin by noting that counsel is not entitled to the jury instruction

of his choice. Commonwealth v. Ohle, 470 A.2d 61 (Pa. 1983). The

wording of an instruction is vested in the broad discretion of the trial judge

and is proper as long as it is adequate, accurate, and clear. Id. at 70.

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Upon examination of the charge as a whole, we find it was fair and

proper. The trial court’s opinion comprehensively discussed and properly

disposes of this matter and, accordingly, we adopt that portion of its opinion

as our own and affirm on that basis.10 (Trial court opinion, 7/18/13 at 16.)

We deny the Commonwealth’s petition for permission to file a

response to appellant’s reply brief as it is unnecessary. Judgment of

sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2014

10
Again, it is well settled that a jury is presumed to follow the instructions of
the court. Natividad, supra.

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 Circulated 11/24/2014 12:27 PM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
TRIAL DIVISION - CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA

v. CP-51-CR-0007513-2010

JAMES WILLIAMS
FILED
JUN 18 lOl3
CrIminal Appeals Unit
OPINION First Judicial Oistrict of ?A
CARPENTER, J. June 18, 2013

Defendant James Williams ("Williams") was charged with and found guilty of

Murder of the First Degree (H1) and Carrying Firearms in Public in Philadelphia (M1) on

bill of information CP-51-CR-0007513-2010. These charges arose from the shooting

death of Nathaniel Nazario on August 4, 2009 near the intersection of New Hope Street

and Mifflin Street in the City and County of Philadelphia. This court requests that the

Superior Court uphold the convictions and affirm the sentence imposed in this matter.

PROCEDURAL HISTORY

On November 1, 2012, Williams elected to exercise his right to a jury trial and

pled not guilty to the above listed charges. On November 5, 2012, this court denied

Williams' Motion for Judgment of Acquittal at the close of the Commonwealth's case.

On November 9, 2012, the jury found Williams guilty of First Degree Murder (H1) and

Carrying Firearms in Public in Philadelphia (M1). At the conclusion of the trial, this court
 Circulated 11/24/2014 12:27 PM

sentenced Williams to the mandatory term of Life imprisonment without parole on the

homicide charge and did not impose any additional sentence on the remaining charge.

On November 15, 2012, Williams filed a Post-Sentence Motion, which this court denied

on December 12, 2012.

On December 21, 2012, this court received a Notice of Appeal and on February

7, 2013, upon completion of the notes of testimony, Williams was served an Order

directing him to file a concise statement of the matters complained on appeal pursuant

to Pa.RAP.1925(b). On February 14, 2013, this granted Williams' Motion for Extension

of Time to File a 1925(b) Statement. On March 1,2013, this court received Williams'

1925(b) response which raised the following issues on appeal:

- --l1,-ln-violati()n of. Appellanfs-r;ght.against.selfoincriminatiolUJndeLlbaBfth'--______
and Fourteenth Amendments of the U.S. Constitution as well as Article
I, § 9 of the Pennsylvania Constitution, [this] court denied Appellant's
timely motion for a mistrial where the prosecutor's opening statement
remarked that Appellant and his alleged co-conspirator did not speak
to the police because "they know that they're guilty and they know that
they were just involved in this murder." (N.T. 11/1/12 at 48-49,54-68).

2. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, [this] court denied Appellant's
timely requests for a mistrial where the prosecution summation
improperly (1) argued that there were "implied threats" against
witnesses where there was no evidence in the record concerning
'implied threats"; (2) referred to Appellant's arguments as "tactics and
trickery"; and (3) used Powerpoint to visually reinforce every point in
the prosecution summation. (NT 1117/12 at 81-82, 121-22). The
cautionary instructions that [this] court provided concerning the
"implied threats" did not sufficiently cure the unfair prejudice resulting
from the prosecution's comments. (NT 1117112 at 151-52).

3. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, Appellant's convictions were
supported by insufficient evidence where (1) no Commonwealth
witness made a positive identification of Appellant as the shooter; and

2
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(2) no forensic evidence (e.g. ballistics) linked Appellant to the fatal
shooting.

4. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Conslitution as well as Article I, §
9 of the Pennsylvania Constitution, Appellant's convictions were
against the weight of the evidence where all of the Commonwealth
witnesses (1) were not present at the homicide; (2) at the lime of the
homicide were under the influence of controlled sUbstances which
impaired their ability to accurately observe and recall events; andlor (3)
gave mulliple inconsistent statements.

5. In violation of Appellant's due process rights under the Sixth and
Fourteenth Amendments of the U.S. Constrtution as well as Article I, §
9 of the Pennsylvania Conslitulion, [this] court overruled Appellant's
timely objection to the Commonwealth's bolstering where the
Commonwealth asked its witness. "Can you explain what it is about the
way [Appellant's counsel] asks you questions that is so frustrating."
(N.T. 11/2112 at 159-60).

- - - - - - -60-1 n- violation .-of-Appellant~ue -p rocess --+ights-unde L1b!LSixtlLanud__
Fourteenth Amendments of the U.S. Constitution as well as Article I, §
9 of the Pennsylvania Constitution, [this] court overruled Appellant's
timely objection to [this] court's jury instructions that failed to make it
sufficiently clear that (1) the Commonwealth must prove all of the
elements of the charged offense; and (2) before the jurors may draw
inferences from facts (e.g. circumstantial evidence), the jurors must
first conclude that these facts are true. (N.T. 111711 2 at 139-143. 180).

FACTS

Late In the evening on August 4,2009, the viclim, Nathaniel Nazario ("Nazario")

brought a friend of the family, Jennifer Colon ("Colon"), to visit Nazario's sister, lizzette,

at their mother's house on New Hope Street, which Is "catty corner" from Mifflin Street.

Soon thereafter, Markeem Williams ("Mar" or "Markeem") walked from his house on

Mifflin Street toward New Hope Street and started having a conversation with the

Nazarios's next door neighbor. While talking with the neighbor, Markeem was on his

cell phone with defendant James Williams (' Man-Man"), who was on the porch of

3
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Markeem's house on Mifflin Street. During the time that Markeem was talking with the

neighbor on New Hope Street, Nazario joined the conversation. For a few moments,

the neighbor, Markeem and Nazario were conversing and then the neighbor walked

away. Things between Nazario and Markeem became heated. Throughout the

conversation, Markeem remained on his cell phone with defendant Man-Man, who

continued to stand on Markeem's porch On Mifflin Street. Eventually, Markeem and

Nazario ended their conversation. Markeem walked back toward his house and Nazario

and Colon drove away.

Sometime thereafter, Nazario and Colon drove to Kelcey Little's ("little") house

on Corlies Street, which was about four blocks from the intersection of New Hope and

_ _ Mifflin-Street..and _asked..litt l ejo..takea:dtive ~~Tbejbree..then pm.cee.dedjo the 3000

block of Mifflin Street. Nazario and Little got out of the car, while Colon remained

inside. Nazario and Little walked up to a fence where Markeem and Man-Man met

them. An argument broke out, and Colon exited the car to ask Nazario for a Cigarette

and to take her home. Nazario, Colon, and Little were returning to the car when Man-

Man shot Nazario. Nazario sustained eight gunshot wounds to his back, chest, and

right arm, as well as a graze gunshot wound to the back of his right shoulder. When

officers arrived on scene, in response to a radio call for a shooting, Nazario was

unresponsive and he was pronounced dead.

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DISCUSSION

Denial of Motion for a Mistrial

Generally, comments by a prosecutor 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 the defendant so that they could not weigh the

evidence objectively and render a true verdict' The decision to grant a mistrial is within

the discretion of the trial judge, who is in the best position to determine the effect of the

prosecuto(s remark on the jury: In evaluating whether such remark constituted

prosecutorial misconduct, thus warranting the grant of a mistrial , the trial court shall

employ a harmless error standard.' The trial court's decision to deny a request for a

- ----mistrial.will not-be-r,,"versed-6xcepUor an-abuse..oldiscretion_4 _ __ -------

A. Prosecutor's Opening Statement

On appeal, Williams claims that this court erred in denying his motion for a

mistrial when the prosecutor remarked in her opening statement that he and his alleged

co-conspirator did not speak to the police because "they know that they're guilty and

\heyknow that they were just involved in this murder: ' This court disagrees. The

courts of this Commonwealth have long held that when a person commits a crime,

knows that he is wanted, and subsequently conceals himself, such conduct is proper

evidence of consciousness of guilt" The prosecutor's sta tement at issue in the instant

1 Com. v. Simmons. 662 A2d 621 , 639 (Pa . 1995).
2 Com. v. Brown, 711 A.2d 444,454-55 (Pa. 1998).
3 Com. v. Judy, 978 A.2d 1015. 1020 (Pa. Super. CI. 2009).
4 rd.

'N.T. 11/1/12 at 46:20·22 ..
• Com. v. Coyle, 203 A.2d 782, 789 (1964).

5
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appeal was made in the context of her argument that the evidence to be presented at

trial would demonstrate the defendants consciousness of guilt. Such argument was

properly made and did not prejudice the jury such that the jury was precluded from

weighing the evidence objectively and rendering a true verdict; therefore, Williams'

assertion that this court erred in denying his motion for a mistrial must fail.

B. Prosecutor'·s Summation

Similarly, Williams claims that this court erred in denying his motion for a mistrial

during closing arguments when the prosecutor argued that there were "implied threats"

against witnesses, referred to Williams' arguments as "tactics and trickery", and used

- - --4Powerfloint- slides to--Visually-reinforce-el/el¥~oinLjn-heLsummalian..-.JbilLc.aur1_ __

disagrees. A prosecutor has reasonable latitude during closing argument to advocate

the Commonwealth's case, respond to arguments of opposing counsel, and fairly

present the Commonwealth's version of the evidence to the jury.7 A prosecuto~s

arguments are fair if they are supported by the evidence or use inferences that can

reasonably be derived from the evidence'

With regard to the "implied threats" at issue in the instant matter, the prosecuto~s

statements about the culture of the city and the difficult situation faced by witnesses in

criminal cases were made in an effort to explain the concept of witnesses "going south".

These statements offered a fair explanation of the testimony presented to the jury and

were a fair response to the defense's clOSing remarks that made alternative implications

of the witnesses' testimony. Defense counsel stated ''You've heard a lot of testimony,

7 Com. v. Cooper, 941 A.2d 655, 668 (Pa. 2007).
• COm. v. Judy, 978 A.2d 1015, 1020 (Pa. Super. Ct. 2009).

6
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people getting on the stand under oath, sworn to tell the truth, calling on a higher

authority than what's in this courtroom to help them be straight up and honest. Have

you heard that from the so called eyewitnesses in this case?'" These remarks implored

the jury to view the evidence in one manner, while the prosecutor's arguments offered a

different perspective. Most importantly, however, the prosecutor explicitly told the jury

that "there's no evidence in this case that the defendant or anyone on behalf of the

defendant specifically threatened any of these witnesses[.]"'o Moreover, this court

provided the jury with the following cautionary instruction:

And I think that in the course of arguments there may have been mention
to you about whether, you know, the culture on the street, about why
people do or don't come to court. Remember, ... it's your common sense
and human experience that evaluates why someone came to court and
-- ~- ---whaI-tAeir-iestimoRy..was an(j-fwhat she-had-obsB"'edand_whalshe.llad, ____

reported, seeking "yes" or "no" responses, thereby highlighting inconsistencies andlor

omissions in an effort to attack her overall credibility as a witness. As a result, the

witness became frustrated in her responses. Thus, on redirect examination, the

prosecutor was free to respond to the attack on the witness' credibility by questioning

the witness as to why she had become frustrated in her responses and giving the

witness the opportunity to clarify any testimony that may have appeared confusing on

cross-examination .

Ove"uling of Objection to Jury Instructions

A trial court has broad discretion in phrasing its instructions to the jury and may

choose its own wording, provided that the law is clearly, adequately, and accurately

.. Com. v. Tedford, 691, 960 A.2d 1, 31-32 (Pa. 2008) (citing Com. v. Koehler, 737 A.2d 225. 240 (Pa.
1999) .
~1'd.

14
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presented to the jury." A trial court's instructions will constitute reversible error only

where there is an abuse of discretion or an inaccurate statement of the law'3 When

assessing a challenge to the trial court's instructions , a reviewing court must review the

charge as whole, not merely isolated fragments, to determine if it is fair and complete."

A. Commonwealth's Burden of Proof Beyond a Reasonable Doubt

On appeal , Williams asserts that this court erroneously overruled his objections

to this court's instructions to the jury. Williams claims that the instructions failed to

make it sufficiently clear that the Commonwealth must prove all of the elements of the

charged offense. This claim is without mer~ and is unsupported by the record. With

- - - -regard-to the-Gommonwealth's-burdeA-of-proof, this~urt-el(plained-numer