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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KAREEM HOGAN, :
:
Appellant : No. 2723 EDA 2013
Appeal from the Judgment of Sentence August 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0003016-2012
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 13, 2015
Appellant, Kareem Hogan, appeals from the judgment of sentence of
twenty-six to fifty-two years’ imprisonment imposed after a jury found him
guilty of murder of the third degree,1 conspiracy,2 and carrying firearms in
public in Philadelphia.3 Appellant claims the evidence was insufficient to
sustain the conspiracy conviction and the trial court erred in refusing to
instruct the jury on voluntary manslaughter—heat of passion. In nine
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 6108.
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additional arguments, Appellant asserts the Commonwealth committed
prosecutorial misconduct by suggesting he threatened witnesses, referring to
his pretrial incarceration, arguing inferences not supported by the trial
evidence, and mischaracterizing the issue of self-defense.4 We are
constrained to affirm.
On January 6, 2012, Appellant was arrested and charged with general
homicide, conspiracy, and related weapons violations for the October 27,
2011 shooting death of Joel Negron (“decedent”).5 Appellant proceeded to a
jury trial that commenced on June 25, 2013. The trial court summarized the
evidence presented at Appellant’s jury trial.6
On October 27, 2011, at approximately 6:30 p.m., in
response to a radio call, Police Officer Antonio Smith, upon
arrival at Waterloo and Westmoreland Streets in
Philadelphia, saw [the decedent] lying on the sidewalk of
Westmoreland Street. Police Officer Smith examined [the
decedent’s] injuries, noting multiple bullet wounds. The
officer did not observe a weapon on or about [the
decedent]’s body. Within minutes an ambulance arrived
and took [the decedent] to the hospital.
At 7:17 p.m., [the decedent] died at Temple University
Hospital. Dr. Edwin Lieberman, an Assistant Medical
Examiner and an expert in forensic pathology, concluded
that [the decedent] died of gunshot wounds to his back
and torso. [The decedent] had suffered three gunshot
wounds. One shot was to his upper back, which fractured
4
As noted below, we have reordered Appellant’s questions in this appeal.
5
Appellant was eighteen years old at the time of the incident. Appellant’s
codefendant Brandon Sanabria was seventeen years old.
6
Sanabria entered a negotiated plea on June 20, 2013.
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his sixth rib and hit his right lung. One shot was to his
upper left back, which fractured his sixth rib and hit his left
lung. One shot was to his front right side of the hip which
exited through the right buttock.
Police Officer Robert Flade of the Crime Scene Unit
arrived at the scene at 8:08 p.m. Officer Flade recovered
seven fired cartridge casings from the scene: five .25-
caliber fired cartridge casings and two .40-caliber fired
cartridge casings.
According to Police Officer Raymond Andrejczak, an
expert in firearms identification, the five .25-caliber fired
cartridge cases recovered from the scene were fired from
the same firearm. The two .40-caliber fired cartridge
casings were fired from a separate firearm. The two
projectiles recovered from [the decedent]’s body by the
medical examiner’s office were both .25-caliber and fired
from the same firearm.
At trial, many of the witnesses in this case gave
testimony that was inconsistent with the statements they
gave to police. On November 25, 2011, Johnny Walker
gave a statement to police. Walker explained that he was
walking in the area of Front and Westmoreland Streets
when he heard yelling and saw [Appellant] and Brandon
Sanabria. [The decedent] and a friend were walking from
Waterloo and Westmoreland Streets towards Hope Street.
[The decedent] said “there’s that bitch ass nigga right
there.” [Appellant] responded “[o]h, he [is] pulling.”
[Appellant] and Sanabria pulled out their guns and started
shooting at [the decedent. The decedent] said “[t]hat’s all
your bitch ass nigga got?” [The decedent] walked to
Waterloo and Westmoreland Street and then fell on the
sidewalk.
The day after the murder, Sanabria showed Walker a
silver gun and asked if he wanted to buy it. Walker
refused. Walker also told the police that he always saw
[Appellant] carrying a black .40-caliber firearm on his
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hip.[7] At trial, Walker recanted, denying that gave the
answers in his statement.
On November 26, 2011, Fredrick Miller, [Appellant’s]
[stepfather], gave a statement to police. In the
statement, Miller explained that on the night of the
murder, he was at home at 3335 Waterloo Street when he
heard about seven gunshots. [Appellant] and Sanabria ran
into the house and put guns on the floor. Miller told
[Appellant] and Sanabria to leave and they did. Monte
Hogan, Miller’s stepson, put the guns in a bag in the
corner. About two hours later, Sanabria called and
informed Monte Hogan that he was sending a woman to
retrieve the guns. A woman called Goida arrived and took
the guns to Sanabria’s house.
The next day, [Appellant] came to Miller’s house and
told him that he had been walking with Sanabria on
Westmoreland Street when he saw [the decedent] walking
with Edwin Laboy and Onehida Rodriguez. [The decedent]
told [Appellant], “there goes those bitch niggas from
Waterloo.” [The decedent] was trying to reach for a
weapon, so [Appellant] pulled out his .40-caliber and tried
to shoot, but it jammed. Sanabria then pulled out his .25-
caliber firearm and shot [the decedent]. [Appellant]
explained that the reason they were arguing with [the
decedent] was that Yaniz Estrada had a conflict with
people from Mascher Street about selling PCP on Waterloo
Street. [Appellant] and Sanabria didn’t want Estrada
selling PCP on the block because they sold PCP on Mascher
Street.
At trial, although Miller confirmed that himself, [the
decedent], and Estrada sold PCP in the area of Waterloo
and Westmoreland Streets, he denied that [Appellant] and
7
Walker previously gave a statement to police on November 15, 2011. A
detective read into the trial record his summary of the November 15th
statement, in which Walker described that the decedent’s friend was
reaching into his jacket. Based on that statement, Appellant suggested at
trial that either the decedent or Laboy was reaching for a weapon when
Appellant and Sanabria shot. We note, however, the November 15th
statement was not contemporaneously transcribed or signed by Walker.
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Sanabria ran into hi[s] home with guns after the murder.
Instead, he said that on the night of the murder after he
heard gunshots he saw a group of people from Mascher
and Mutter Streets yelling and running around.
On November 26, 2011, Rafael Torres-Burgos gave a
statement to police describing that on the night of the
murder he was walking down Westmoreland Street to pick
up his girlfriend when he heard arguing and yelling.
Torres-Burgos heard about three gunshots and saw
[Appellant] who was holding a gun and Sanabria running
from Waterloo Street towards Howard and Hope Street.
At trial, Torres-Burgos denied seeing [Appellant] and
Sanabria shoot [the decedent]. Torres-Burgos testified
that he was in his home when he heard two or three
gunshots. Torres-Burgos ran outside and saw [the
decedent] laying on the ground and two people he did not
recognize running away.
On November 27, 2011, Yaniz Estrada gave a statement
to police. In the statement, Estrada explained that about
two or three days before [the decedent]’s murder she was
on the 3300 block of Waterloo Street when she was
approached by [Appellant] and Sanabria. They asked
Estrada if she was selling drugs and told her that she
needed to stop selling. Estrada told them she was not
selling drugs and they walked away. On the day of the
murder, at about 5:00 p.m., Estrada arrived on the 3300
block of Waterloo Street. While she was in the area she
said hello to [the decedent] and then went home.
At trial, Estrada confirmed that she was on the block on
the day of the murder and had said hello to [the
decedent]. Estrada denied that two days before the
murder, [Appellant] and Sanabria had approached her.
She also denied selling drugs at the time of the murder.
On November 27, 2011, Edwin Laboy gave a statement
to police. Laboy stated that on the night of the murder
when it was just starting to get dark, Laboy ran into [the
decedent] near Westmoreland and Waterloo Streets. As
he was talking to [the decedent, Appellant] and Sanabria
approached them. Laboy started to walk away and heard
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four or five gunshots. Laboy saw [Appellant] and Sanabria
run away. Laboy explained that [Appellant] and his friends
had been selling PCP on the block and wanted rent money
from Estrada, who was working with Miller and [the
decedent].
At trial, Laboy confirmed that he had seen [the
decedent] near Westmoreland and Waterloo Streets
shortly before [the decedent] was murdered, but testified
that he was on a different street when he heard about four
or five gunshots. Laboy walked back to Westmoreland and
Waterloo Streets and went to [the decedent] who was shot
and dying on the street. Laboy explained that a few days
before [the decedent]’s murder, . . . there was an
argument because [the decedent], Miller, and Estrada
wanted to sell PCP on the block but [Appellant] did not
want them to sell PCP without paying rent for it.
Trial Ct. Op., 10/29/13, at 2-6 (record citations omitted). Appellant did not
testify at trial and presented no evidence on behalf of his defense.
We reproduce the following portions of the trial record relevant to
Appellant’s prosecutorial misconduct claims. The Commonwealth, in its
opening statements, argued:
To understand this case, you need to understand that this
area near Waterloo Street and Westmoreland is a very
high-crime, very high-drug area.
[Appellant’s counsel]: Objection. Objection.
THE COURT: That’s overruled.
[Commonwealth]: It’s the kind of area where people don’t
want to come forward and talk to police. People don’t
want to get involved.
[Appellant’s counsel]: Objection.
THE COURT: Overruled.
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[Commonwealth]: It’s the kind of area where, when the
police are on the scene, even though people saw what
happened, they’re not going to run up to the police and
say, hey, I got information, take my name, let me give a
statement. It’s actually quite the opposite. People don’t
want to get involved, and they certainly don’t want people
to see them interacting with the police. To understand this
case, you need to understand why that is, the fear that
comes along with being involved in cooperating with the
police and telling them the truth and coming to court and
testifying and pointing the finger, and it’s essential that
you understand that to understand this case.
* * *
. . . The witnesses are not paid actors that are going to get
up there and act the way you think they should. These are
people that live in our city, and they have the pressures
that come along with testifying, that fear that I talked
about, that code of the streets that say you don’t talk to
detectives, you don’t testify, and you certainly don’t point
the finger from that stand.
No one in this case is probably going to cooperate,
meaning no one is going to willingly get on this stand and
tell you what happened the way they told detectives what
happened and point the finger in court.
* * *
. . . So I’m giving you the heads-up that many of these
witnesses that get on the stand are going to be hostile.
They’re going to be hostile. They might be belligerent.
They won’t want to answer questions. They’re going to
deny that they saw anything. They may deny that they
gave a statement. They’re going to do everything they
can to distance themselves from that statement that they
gave to detectives where they identified the people who
committed this murder. If that happens, you may say,
well, What are we doing here? These witnesses take the
stand. They say they didn’t see anything. Well, it doesn’t
stop there because all of you took an oath that you would
listen to all the evidence and not make up your mind until
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you heard all of the evidence and Her Honor’s instructions
on the law.
And the law is smart, and the law has a way to get
justice. And the law says if someone gets on that stand
and they recant, that means they get on that stand and
they say I didn’t see nothing, I didn’t say nothing, I didn’t
say that, and you think that they’re not telling the truth on
that stand, that they’re just acting out of fear or the code
of the street, but you agree that what they said in their
signed statement to detectives was the truth, then you
may consider that signed statement as evidence,
substantive evidence as to whether or not this defendant
committed this crime. . . . You decide, Do I believe what’s
on that witness stand or do I believe what the detectives
wrote down that the witnesses told them in that
statement? I want to give you a heads-up to look out for
that, and that’s probably going to happen in this case.
N.T., 6/25/13, at 29-30, 35, 37-39.
During the Commonwealth’s direct examination of Walker, the
following exchange occurred:
[Commonwealth]: And, sir, when I did talk to you in the
room before you testified at the preliminary hearing [and
recanted a prior statement to police], didn’t I ask you to
make sure nothing happened to you in prison, meaning no
one had got to you in prison?
[Appellant’s counsel]: Judge, I object.
THE COURT: Let’s not do the leading questions. Rephrase
it. That’s sustained.
[Commonwealth]: The nature of my conversation with you
with respect to being in prison on open cases, wasn’t it in
the respect of [sic] if anyone had got to you in prison or
threatened you in prison?
[Appellant’s counsel]: Objection.
THE COURT: That’s overruled.
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[Commonwealth]: Do you remember, sir?
* * *
[Commonwealth]: When I came in there to speak with you
before the preliminary hearing, wasn’t it in the context of:
While you’re in prison, did anyone get to you or threaten
you in relation to this case?
[Walker]: No. You told me that when you found out that
me and [Appellant] were both in the same jail, you moved
me over to another cell.
[Commonwealth]: Right, because I found out that you and
[Appellant]—
[Appellant’s counsel]: Objection.
THE COURT: Hold on. [To the Commonwealth,] You can’t
testify, . . . but I want to make sure.
You were told that you were changed to a different jail
or [Appellant] was?
[Walker]: No. She moved me to E block.
THE COURT: You got moved to a different block?
[Walker]: Yeah.
THE COURT: All right.
[Appellant’s counsel]: My objection, meaning it’s
overruled?
THE COURT: It’s overruled. I asked the question. He was
transferred to a different block.
But, ladies and gentlemen, I am going to instruct you at
this point, we’re going into this testimony as to how it
affects the witness’s credibility, his believability, what he
said, whether he said different things.
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There’s absolutely no evidence at this point that there’s
any inappropriate behavior by [Appellant] in this case, and
that’s not why this testimony is being elicited.
All right. You may proceed.
[Commonwealth]: I’m sorry. You said that I moved you to
another block. Why was that?
THE COURT: What was his understanding?
[Commonwealth]: What was your understanding of why
that was?
[Walker]: Because you thought [Appellant] wanted to do
something to me.
[Appellant’s counsel]: Objection. May I see Your Honor at
sidebar.
THE COURT: That’s overruled and we’ll go to sidebar later.
But I will once again instruct the members of the jury,
again, the DA’s mental state and/or the detective’s is not
relevant here. What’s relevant is what the witness, his
mental state.
Proceed.
[Commonwealth]: Prior to me moving you to another
block, were you and [Appellant] in the same block?
[Appellant’s counsel]: Objection.
THE COURT: That’s overruled. Were you on the same
block?
[Walker]: Not on the same block. We were, like, maybe
across. Like, maybe, like, there are four pods on the same
unit.
THE COURT: Okay.
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[Commonwealth]: So you were across in the same unit?
THE COURT: He just said he was not in the same pod, but
it was in the same general area.
[Walker]: Yes.
Id. at 195-96, 197-200.
During the Commonwealth’s direct examination of Laboy, the following
exchanges occurred:
[Commonwealth]: Now, did you stay and tell the police, I
was just talking to him seconds before he got shot?
[Laboy]: No, I never told them that. That was never my
intention to talk to the cops.
[Commonwealth]: You don’t like cops; right?
[Laboy]: Nope.
[Commonwealth]: Did you stay and tell the police about
what was going on over drug territory on the block?
[Laboy]: No.
[Commonwealth]: Why not?
[Laboy]: Because that’s not me.
[Commonwealth]: Now—
[Laboy]: It is now.
[Commonwealth]: What do you mean it is now?
[Laboy]: Never mind.
[Commonwealth]: Go ahead. What do you mean it is now?
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[Laboy]: What do I mean? It’s because when the word get
out, I’m done in Philadelphia. In other words, I got to
leave.
[Commonwealth]: What do you mean by that?
[Appellant’s counsel]: Judge, I object.
THE COURT: That’s overruled.
[Commonwealth]: What do you mean, sir?
[Laboy]: My life will be in danger.
[Appellant’s counsel]: Objection.
[Laboy]: That’s what I mean.
THE COURT: Overruled.
[Commonwealth]: Your life will be in danger when it gets
out, what, that you talked to the police?
[Laboy]: That I’m sitting here and spoke to the police,
period.
* * *
[Commonwealth]: Do you remember identifying that
picture of [Appellant from a photographic array on
November 27, 2011]?
[Laboy]: Yes.
[Commonwealth]: Okay. Is that the person that was Fred
[Miller]’s stepson[, i.e., Appellant] or stepson’s friend?
[Laboy]: I don’t know if he was a friend or a stepson. Like
I said, it was a bunch of them there. I don’t know which
one was his stepson.
[Commonwealth]: Okay. Did you sign and circle that
picture?
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[Laboy]: Yes.
[Commonwealth]: And is that the same person that’s in
the courtroom?
[Laboy]: I don’t know. It don’t look like him. Like I said,
he been in jail a long time. He look different.
[Appellant’s counsel]: Objection.
THE COURT: Well, no. The statement stands. . . .
N.T., 6/26/13, at 65-67, 74-75.
During closing statements, the Commonwealth argued:
[Commonwealth]: Just because [the decedent] said, There
goes those bitch ass niggas, doesn’t mean he’s the
aggressor. I want to just comment on that because the
word “nigga,” I don’t like it, but I think in this case it
wasn’t meant to call anyone a racial slur.
[Appellant’s counsel]: Objection.
THE COURT: That’s overruled.
* * *
[Commonwealth]: And by the way, just because [the
decedent] said words to somebody, words under the law
does not mean that someone is justified to gun you down.
Words never justify deadly force.
[Appellant’s counsel]: Objection.
[Commonwealth]: And her Honor will explain that.
THE COURT: That’s an argument that the Commonwealth
is making in this case. That objection is overruled, but I
suggest that the DA confine her remarks to this case, not
generally.
* * *
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[Commonwealth]: In this case I told you in the opening
that the witnesses in this case are probably going to recant
on that stand. They’re probably going to come in and say
I didn’t say that or distance themselves from their
statement, and we talked about why.
Fear is a very powerful thing. No one wants to be a
witness in a homicide case, and there’s no evidence in this
case that [Appellant] or Brandon or anyone on their behalf
directly threatened anyone. But it’s not that. It’s the
general fear, and this is where your common sense and
your collective street smarts come in. People do not want
to be involved in a homicide.
People do not want it to get out on the street that they
are cooperating with the police and taking the stand and
pointing the finger because, unfortunately, in our city,
there is a culture of no snitching. There is a street code
where it says if you go in there and you tell on somebody
in court, you’re a snitch. And you don’t have to like it.
You don’t have to agree with it. I want it to stop, but
unfortunately it’s the reality.
I can’t go home and I can’t provide body guards for
every witness to protect them after they testify in this
case. Any witness that gives a statement to detectives,
even if they come on the stand and recant, has to always
look over their shoulder wants [sic] it gets out that they
told.
[Appellant’s counsel]: Judge, I object to all of this.
THE COURT: That’s sustained. Let’s move on. Let’s talk
about this case.
[Commonwealth8]: In this case, these witnesses were able
to tell the truth to the detectives, but when they got on the
stand, they would not admit that they said that in court.
8
We have added this notation to the Commonwealth based on the tenor of
the closing statement. The original transcript did not contain a notation
delineating the trial court’s ruling from the Commonwealth’s resumption of
its argument.
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And, again, it comes from that fear that they know what
these young guys are capable of.
* * *
The medical examiner, the autopsy. The [decedent]
was shot a total of three times. Two of them are in the
back which lodged into his body, and they were .25-
caliber, which are small. It’s not a powerful gun, but if you
get someone in the right spot, it’s obviously deadly.
These are the two times in the victim’s back. One of
them is in his torso in his pelvis area and out of his
buttocks. This is likely the .40, the .40 is a very powerful
gun, and that bullet from that .40 went right though his
body as opposed to the smaller caliber .25s which lodged
in his body. Absolutely that shot came from his
[Appellant’s] gun.
[Appellant’s counsel]: Objection.
THE COURT: Again, members of the jury, it’s going to be
your recollection of the evidence that controls, and you will
take whatever inference from the evidence that’s been
presented.
* * *
[Commonwealth]: This is not a self-defense case. Let’s
get something straight. Self-defense means that he is
completely justified. If you find that there’s self-defense in
this case, you are saying you, [Appellant], when you’re
trying to assert your drug turf, when you’re carrying that
gun that you don’t have a license to carry and no business
carrying, when you’re going around threatening people,
and you go up to them and you pull out your gun and you
blast, that you are completely justified. That’s what self-
defense means.
[Appellant’s counsel]: Objection.
THE COURT: That’s overruled.
* * *
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Using deadly force is an extreme that is only supposed
to be used if he has a sincere and reasonable belief that
he’s in a kill-or-be-killed situation.
* * *
First of all, nothing in the record shows that he sincerely
and reasonably believed that he was going to be killed.
Nothing on this record.
[Appellant’s counsel]: Objection.
[Commonwealth]: He doesn’t duck. He doesn’t hide.
THE COURT: Again, that’s overruled. The jury will make
that decision.
* * *
[Commonwealth]: There’s no evidence that [Appellant] did
not provoke the situation. Actually, he did provoke the
situation. He provoked the situation when he made that
threat to two days before to [Estrada]. He provoked the
situation when him and his friend were carrying an
unlicensed gun that they have no business carrying. He
provoked the situation by trying to assert his authority
over that block selling PCP. So he does not have clean
hands. You cannot in this scenario ever claim self-
defense.
[Appellant’s counsel]: Objection.
THE COURT: That’s overruled.
N.T., 6/28/13, at 48-50, 52-53, 70-71, 76, 80.
Following the arguments by counsel, the trial court instructed the jury
on first- and third-degree murder, and voluntary manslaughter based on an
unreasonable belief in the need to use deadly force, and self-defense. Id. at
119, 122, 124-25, 126-28. The court also issued cautionary instructions
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regarding testimony of Appellant’s incarceration and the witnesses’ concerns
about testifying. Id. at 109-11. The court denied Appellant’s request for an
instruction on voluntary manslaughter—heat of passion. N.T., 6/27/13 at
96.
On July 1, 2013, the jury found Appellant guilty of third-degree
murder, conspiracy, and carrying firearms in public in Philadelphia. On
August 27th, the trial court sentenced Appellant to twenty to forty years’
imprisonment for third-degree murder, a consecutive five to ten years’
imprisonment for conspiracy, and a consecutive one to two years’
imprisonment for carrying firearms in public in Philadelphia. On September
5th, Appellant filed timely post-sentence motions challenging the sufficiency
of the evidence regarding third-degree murder and the weight of the
evidence.9 The trial court denied those motions on September 9th.
Appellant filed a timely notice of appeal on September 18, 2013, and,
after timely requesting an extension, complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement. This appeal followed.
9
Appellant’s post-sentence motion did not include claims of inadmissible
evidence, improper arguments to the jury, and allegations of “prosecutorial
misconduct.” Nevertheless, Appellant objected contemporaneously at trial
and preserved all issues raised in this appeal. See Pa.R.Crim.P.
720(B)(1)(c) (“Issues raised before or during trial shall be deemed
preserved for appeal whether or not the defendant elects to file a post-
sentence motion on those issues.”). Moreover, Appellant’s sufficiency
challenge to his conspiracy conviction was preserved in his Pa.R.A.P.
1925(b) statement. See Pa.R.Crim.P. 606(A)(7).
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Appellant presents the following questions, which we reproduce, but
reorder as follows:
[ ]WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
CHARGE OF CRIMINAL CONSPIRACY TO COMMIT MURDER?
[ ]DID THE TRIAL COURT ERR BY REFUSING TO CHARGE
THE JURY ON HEAT OF PASSION VOLUNTARY
MANSLAUGHTER BECAUSE THE EVIDENCE SUPPORTED
THE GIVING OF THAT INSTRUCTION?
[ ]DID THE TRIAL COURT ERR IN OVERRULING AN
OBJECTION TO TESTIMONY THAT APPELLANT HAD BEEN
IN JAIL A LONG TIME?
[ ]DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION BY OVERRULING NUMEROUS OBJECTIONS
AND A MOTION FOR A MISTRIAL MADE AFTER TESTIMONY
THAT PERMITTED THE JURY TO INFER THAT APPELLANT
THREATENED WITNESSES?
[ ]DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION IN OVERRULING A MOTION FOR A MISTRIAL
MADE AFTER THE PROSECUTOR ARGUED DURING HER
OPENING ARGUMENT THAT WITNESSES WERE RELUCTANT
TO TESTIFY BECAUSE OF FEAR, WHICH PERMITTED THE
JURY TO INFER THAT APPELLANT WAS THE SOURCE OF
THE THREATS?
[ ]DID THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION IN FAILING TO GRANT A MISTRIAL
FOLLOWING SEVERAL OBJECTIONABLE COMMENTS THE
PROSECUTOR MADE DURING HER CLOSING SPEECH?
Appellant’s Brief at 4.
Preliminarily we summarize Appellant’s eleven arguments
encompassed in his questions presented. First, Appellant argues the
evidence was insufficient to convict him of conspiracy. Id. at 18-28. He
claims the evidence only established his presence at the scene and his
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spontaneous reaction to the decedent’s aggression. According to Appellant,
this evidence did not support the jury’s conclusion that he came to a criminal
agreement with Sanabria to shoot the decedent. In support, he refers this
Court to inter alia, Commonwealth v. Kennedy, 453 A.2d 927 (Pa. 1982),
Commonwealth v. Menginie, 383 A.2d 870 (Pa. 1978), Commonwealth
v. Fields, 333 A.2d 745 (Pa. 1975), Commonwealth v. Wilson, 296 A.2d
719 (Pa. 1972), and Commonwealth v. Johnson, 513 A.2d 476 (Pa.
Super. 1986).
Second, Appellant argues the trial court erred in failing to instruct the
jury on voluntary manslaughter—heat of passion. Appellant’s Brief at 38-45.
He claims evidence that the decedent’s use of a slur constituted sufficient
provocation for the court to instruct the jury regarding a killing committed in
the heat of passion.
Appellant’s remaining arguments allege prosecutorial misconduct
and/or error in the rulings of the trial court overruling his objections and
requests for mistrial. Specifically, Appellant directs his third argument to
Walker’s testimony that the Commonwealth transferred him within a jail at
which Appellant was also housed. Id. at 31. Appellant’s fourth and fifth
arguments focus on Laboy’s testimony that he believed his life was in danger
and Laboy’s reference to Appellant’s incarceration. Id. at 29-31, 36-38.
Sixth, Appellant argues the Commonwealth impermissibly argued to the jury
that he threatened the witnesses. Id. at 32-36, 55-57. Appellant’s
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underlying argument in these three claims is that the Commonwealth
burdened his presumption of innocence and suggested he was a person of
bad character and acted in conformity with that character. See Pa.R.E.
404(b) (stating evidence of wrongs not generally admissible to prove
character and action in accordance character, but may be admissible for
another purpose such as motive).
Seventh, Appellant asserts the trial evidence did not support the
Commonwealth’s argument that he caused the non-fatal wound to the
decedent’s hip. Appellant’s Brief at 57-60. Eighth, he challenges the
Commonwealth’s closing statement that the decedent’s slur, “bitch ass
nigga,” was not intended as a racial insult. Id. at 49-52.
Appellant, in his ninth argument, claims the Commonwealth’s assertion
that “[w]ords never justify deadly force” misstated the law of self-defense.
Id. at 52-55. Tenth, he asserts the Commonwealth mischaracterized the
law of self-defense by arguing that he did not sincerely believe in the need
for self-defense. Appellant’s eleventh argument focuses on the
Commonwealth’s argument that self-defense was not available based on his
criminal behavior. Id. at 60-64.
For the reasons that follow, we conclude no relief is due in light of
Appellant’s first, second, and fourth through tenth argument. Although
Appellant’s third and eleventh arguments implicate prosecutorial misconduct
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and/or trial error, we conclude he has not demonstrated sufficient prejudice
to establish his entitlement to a new trial.
Appellant first argues the evidence was insufficient to sustain the
jury’s finding that there was a criminal agreement between him and
Sanabria to shoot the decedent. Our review of the sufficiency of the
evidence is governed by the following principles.
[W]e view the evidence, and all reasonable inferences to
be drawn therefrom, in the light most favorable to the
Commonwealth in deciding whether the evidence was
sufficient to establish each element of the crimes beyond a
reasonable doubt.
Moreover, when conflicts and discrepancies arise, it is
within the province of the jury to determine the weight to
be given to each witness’s testimony and to believe all,
part, or none of the evidence as it deems appropriate.
* * *
To convict of criminal conspiracy, the evidence must
establish that the defendant entered an agreement with
another person to commit or aid in the commission of an
unlawful act, that the conspirators acted with a shared
criminal intent, and that an overt act was done in
furtherance of the conspiracy. An explicit or formal
agreement to commit crimes can seldom, if ever, be
proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. An agreement
sufficient to establish a conspiracy can be inferred from a
variety of circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal episode.
Commonwealth v. Geiger, 944 A.2d 85, 90-91 (Pa. Super. 2008)
(citations and punctuation omitted); see also 18 Pa.C.S. § 903 (a)(1).
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As the Pennsylvania Supreme Court observed in Kennedy, “more than
mere association of participants in crime must be shown. Thus, persons
do not commit the offense of conspiracy when they join into an affray
spontaneously, rather than pursuant [to] a common plan, agreement, or
understanding.” Kennedy, 453 A.2d at 930 (citations omitted) (emphasis in
original) (holding evidence that brawl in which codefendants participated
occurred was alone insufficient to demonstrate existence of conspiracy);
accord Menginie, 383 A.2d at 872-73 (noting evidence “might warrant the
inference that [the defendant] and his companions expressly or tacitly
agreed to taunt or ‘bully’ the victim and his family,” but holding such
evidence was insufficient to support inference of unlawful agreement to kill
or inflict serious bodily injury); Fields, 333 A.2d at 745 (holding evidence
insufficient to establish accomplice liability where there was “nothing in the
testimony to indicate [defendant] had any prior knowledge of
[codefendant’s] lethal intent or that [defendant] in anyway counseled or
participated in the shooting”); Wilson, 296 A.2d at 721 (holding evidence of
defendant’s participation in bar fight with victim was insufficient to prove his
shared intent to commit homicide “where a third party decide[d] on his own
initiative to become a participant in an affray between two others and
without any request or encouragement . . . alter[ed] radically the nature and
course of the encounter” by stabbing victim); Johnson, 513 A.2d at 477-78
(holding evidence—that defendant and two codefendants exited bar, one
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codefendant stated, “Here comes a white boy. Let’s get him,” and second
codefendant shot decedent—only proved defendant’s mere presence and
thus was insufficient to sustain convictions for, inter alia, murder and
conspiracy).
Instantly, when viewed in a light most favorable to the
Commonwealth, the record established the following. Appellant lived at his
stepfather’s residence. Days before the shooting, Appellant and Sanabria
demanded payments from Estrada to sell drugs in the neighborhood.
Appellant and Sanabria’s encounter with Estrada led to their argument with
the decedent. Thus, the Commonwealth presented background evidence of
an association between Appellant and Sanabria, as well as an existing
dispute with the decedent.
With respect to the shooting, the undisputed evidence established that
Appellant and Sanabria encountered the decedent on the street and began
shooting shortly thereafter. Although there was conflicting testimony
regarding the events precipitating the shooting, the evidence established his
active participation in an agreed upon course of action with Sanabria.
Specifically, Appellant warned the decedent “was trying to reach,” and drew
his .40 caliber pistol. The presence of the two .40 caliber shell casings at
the scene suggested he fired at least two shots, despite his assertion that
his pistol jammed. Sanabria drew his .25 caliber pistol and fired five shots,
two of which struck the decedent in the back and mortally wounded him.
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In light of this evidence, we conclude the cases cited by Appellant are
inapposite. The instant record shows that Appellant was an active
participant in the shooting, encouraged the actions taken by Sanabria by
issuing the warning and drawing his own pistol, and that Sanabria’s actions
did not radically alter the nature of the confrontation set in motion by
Appellant. Cf. Kennedy, 453 A.2d at 930; Menginie, 383 A.2d at 872-73;
Fields, 333 A.2d at 745; Wilson, 296 A.2d at 721; Johnson, 513 A.2d at
477-78. Furthermore, if the jury elected to credit Laboy’s testimony that
Appellant and Sanabria approached the decedent and began firing without
provocation, such evidence would also establish the existence of a
conspiracy to commit homicide. Accordingly, we discern no merit to
Appellant’s sufficiency challenge to his conspiracy conviction.
Second, Appellant argues the trial court erred in denying his request
for an instruction on voluntary manslaughter—heat of passion. It is well
settled that:
[a] voluntary manslaughter instruction is warranted only
where the offense is at issue and the evidence would
support such a verdict. Third degree murder is a killing
done with legal malice, but without the specific intent to
kill; voluntary manslaughter is a form of homicide that
involves the specific intent to kill, but contains no legal
malice as a result of passion and provocation.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1260-61 (Pa. Super. 2014)
(en banc) (citations and punctuation omitted). When considering the
adequacy of an alleged provocation for voluntary manslaughter, we apply an
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objective standard and ask “whether a reasonable man, confronted with this
series of events, became impassioned to the extent that his mind was
incapable of cool reflection.” Commonwealth v. Berry, 336 A.2d 262, 264
(Pa. 1975) (citation and punctuation omitted). The Pennsylvania Supreme
Court has long observed, “[I]nsulting or scandalous words are not sufficient
cause of provocation.” Commonwealth v. Drum, 58 Pa. 9, 17 (1868);
accord Commonwealth v. Mouzon, 53 A.3d 738, 751 (Pa. 2012); Berry,
336 A.2d at 264 (distinguishing Drum and holding that words conveying
facts could constituted adequate provocation).
Instantly, viewing the record in a light most favorable to Appellant, the
decedent’s slur “bitch ass nigga” occurred in the context of his ongoing
dispute with Appellant and Sanabria. However, we discern no evidence that
Appellant spontaneously reacted to the slur. Rather, as discussed above,
Appellant exclaimed that the decedent or the decedent’s friend was
“reaching” for a weapon before Appellant drew his own weapon. Given this
evidence, we discern no basis to disturb the trial court’s conclusion that a
voluntary manslaughter—heat of passion instruction was not warranted, see
Buterbaugh, 91 A.3d at 1260-61, but that voluntary manslaughter—
unreasonable belief in the need for self-defense was available. See Trial Ct.
Op. at 18. Thus, no relief is due.
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As noted above, Appellant’s next nine arguments allege prosecutorial
misconduct and/or the improper admission of evidence. The following
principles govern our consideration of these claims.
[The] declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene,
declaration of a mistrial serves not only the defendant’s
interest but, equally important, the public’s interest in fair
trials designed to end in just judgments. Accordingly, the
trial court is vested with discretion to grant a mistrial
whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial.
In making its determination, the court must discern
whether misconduct or prejudicial error actually occurred,
and if so, . . . assess the degree of any resulting prejudice.
Our review of the resulting order is constrained to
determining whether the court abused its discretion.
Judicial discretion requires action in conformity with the
law on facts and circumstances before the trial court after
hearing and consideration. Consequently, the court
abuses its discretion if, in resolving the issue for decision,
it misapplies the law or exercises its discretion in a manner
lacking reason.
Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation
and punctuation omitted).
When assessing whether misconduct or error occurred during the
Commonwealth’s arguments to the jury,
[i]t is well-established that comments by a prosecutor
constitute reversible error only where their unavoidable
effect is to prejudice the jury, forming in the jurors’ minds
a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a
fair verdict. A prosecutor’s remarks in opening statements
must be fair deductions from the evidence the
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Commonwealth intends to offer, which the prosecutor
believes, in good faith, will be available and admissible at
trial. In closing arguments, a prosecutor may comment on
the evidence and any reasonable inferences arising from
the evidence.
Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citations and
punctuation omitted).
As to the trial court’s evidentiary rulings, “the admissibility of evidence
is a matter addressed to the sound discretion of the trial court and that an
appellate court may only reverse upon a showing that the trial court abused
its discretion.” Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994)
(citation omitted). The court may exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence. Pa.R.E.
611(a). The court may also “question witnesses to clarify existing facts and
to elicit new information.” Commonwealth v. Hogentogler, 53 A.3d 866,
880 (Pa. Super. 2012) (citation omitted).
If misconduct or error occurred at trial, a defendant must show
prejudice resulted. See Culver, 51 A.3d at 871. In reviewing the trial
court’s determination regarding prejudice, we are mindful that prompt and
adequate cautionary instructions can cure the harmful effects of the
impropriety or error. Commonwealth v. Moury, 992 A.2d 162, 176 (Pa.
Super. 2010); see also Commonwealth v. O’Hannon, 732 A.2d 1193,
1196 (Pa. 1999) (reiterating that “[a]bsent evidence to the contrary, the
jury is presumed to have followed the trial court’s instructions.”).
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Appellant’s third argument focuses on the Commonwealth’s
examination of Walker, during which it was revealed (1) Appellant was
incarcerated before trial; (2) Appellant was in the same jail as Walker; and
(3) the Commonwealth moved Walker to a different cell because the
prosecutor was concerned that Appellant “wanted to do something” to
Walker. N.T., 6/25/13, at 197-200. Appellant asserts that this exchange
was prejudicial because it “blemish[ed him] with unsupported allegations of
witness intimidation.” Appellant’s Brief at 31.
With respect to evidence of threats, this Court has noted,
In general, threats by third persons against witnesses are
not relevant and thus not admissible into evidence unless
the defendant is linked in some way to the making of the
threats. Nevertheless, an exception to the rule exists
where the evidence in question was not offered to prove
the accused’s guilt but to explain a witness’s prior
inconsistent statement.
Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (citations
and punctuation omitted); accord Commonwealth v. Brewington, 740
A.2d 247, 256 (Pa. Super. 1999).
The Pennsylvania Supreme Court has observed “there is no rule in
Pennsylvania which prohibits reference to a defendant’s incarceration
awaiting trial or arrest for the crimes charged.” Commonwealth v.
Johnson, 838 A.2d 663, 680 (Pa. 2003). Nevertheless, our courts
recognize that “constant reminders” of a defendant’s incarceration may
affect the jury’s judgment and burden the defendant’s right to the
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presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 503-
504 (1976); Johnson, 838 A.2d at 681.
In Brewington, this Court concluded that evidence that the defendant
was in the same jail as a witness was not objectionable. Brewington, 740
A.2d at 256. The Court noted the witness recanted a prior statement
implicating the defendant and determined that evidence the defendant had
access to the witness in jail could “show the possibility of [the witness] being
threatened or coerced by [the defendant] to change his testimony.” Id.
Thus, the Brewington Court concluded that the defendant’s counsel was
not ineffective for failing to object to the evidence of the defendant’s
incarceration. Id.
Although evidence that Appellant had access to Walker in jail could be
relevant to explain Walker’s recantation at trial, see id., the
Commonwealth’s questioning is problematic. The Commonwealth’s
exchange with Walker required the trial court to sustain Appellant’s
objection, instruct the Commonwealth not to testify, issue two cautionary
instructions, and question the witness from the bench. 10 N.T., 6/25/13, at
10
By contrast, in Brewington, the testimony of the defendant’s
incarceration was elicited as follows:
[By the prosecution]. How long were you at Delaware
County?
[The Witness]. I believe about three weeks, maybe.
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197-200. Moreover, having elicited testimony that Walker and Appellant
were housed in the same jail, id. at 197, the Commonwealth, over
Appellant’s objections, persisted in questioning Walker on why he thought
the prosecutor moved him to a different jail. Id. at 198 (asking Walker,
“You said that I moved you to another block. Why was that?” which trial
court rephrased as “What was his understanding?”). Walker responded he
believed the prosecutor thought Appellant “wanted to do something” to
Walker while they were in the same jail. Id. at 199. Such testimony was
improper and resulted from an objectionable line of questioning calling for
Walker’s understanding of the prosecutor’s decision to move him.
Thus, we consider whether the trial court erred in concluding that the
prejudice resulting from the exchange was cured by the court’s cautionary
Q. How long?
A. Three or four weeks.
* * *
Q. And you were there. Tell the ladies and gentlemen of
the jury who else was there, at the time you were there,
who is here on trial today?
[Counsel for co-defendant]. Objection.
A. [The Witness] Which jail?
Q. [By the prosecution] Delaware County?
A. [Appellant.]
Brewington, 740 A.2d at 256 (record citation omitted).
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instructions. See Culver, 51 A.3d at 871; Trial Ct. Op. at 10. During the
Commonwealth’s exchange with Walker, the court issued cautionary
instructions directing the jury to consider the “testimony as to how it affects
the witness’s credibility, his believability, what he said, whether he said
different things.” Id. at 198. The court also observed, “There’s absolutely
no evidence at this point that there’s any inappropriate behavior by the
defendant in this case, and that’s not why this testimony is being elicited.”
Id. Although the trial court overruled Appellant’s objection to Walker’s
testimony that the prosecutor thought Appellant “wanted to do something”
to him, it again instructed the jury, “[T]he DA’s mental state . . . is not
relevant. What’s relevant is what the witness, his mental state.” Id. at 199.
Moreover, in its final charge to the jury, the court again cautioned the jury
that there was no evidence that Appellant threatened a witness and
emphasized that the evidence of the witnesses’ concerns about testifying
were admitted for “one purpose only, and that is to use it to assess their
credibility as a witness.” N.T., 6/28/13, at 111.
Following our review, we conclude Appellant has not demonstrated the
improper questioning of Walker resulted in undue prejudice. Appellant
focuses on the Commonwealth’s suggestion, without an adequate
evidentiary basis, that he threatened witnesses. Appellant’s Brief at 36. He
submits that the jury was susceptible to accept the Commonwealth’s
suggestion and use it as evidence of his bad character. Id. The trial court,
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however, promptly cautioned the jury that there was no evidence Appellant
threatened Walker and informed the jury of the proper purposes of the
evidence the Commonwealth was intending to elicit. Moreover, Appellant
does not argue that the cautionary instructions were inadequate. Thus,
given the arguments presented, we decline to disturb the trial court’s
opinion that a new trial was not necessary.
Appellant’s fourth and fifth arguments focus on the trial court’s
decision to overrule his objections to Laboy’s testimony that (1) he was
afraid of testifying and (2) Appellant was “in jail a long time.” As recited
more fully above, the Commonwealth questioned Laboy regarding his failure
to stay at the scene of shooting to report the incident to police. Laboy
responded he did not immediately cooperate with police, “[b]ecause that’s
not me.” N.T., 6/26/13, at 66. Laboy then interrupted the Commonwealth’s
next question stating, “It is now.” Id. The Commonwealth then elicited
Laboy’s explanation that he was “done in Philadelphia” and had to leave
because his life “will be in danger” for speaking to police and being in court.
Subsequently, the Commonwealth questioned Laboy regarding his
identification of Appellant from a photographic array during a police
interview on November 27, 2011. N.T., 6/26/13, at 74-75. The
Commonwealth showed Laboy the array presented to him by police on
November 27, 2011, and confirmed he selected Appellant’s picture. Id. at
75. After the Commonwealth asked, “And is that the same person that’s in
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the courtroom,” Laboy responded that Appellant had been “in jail for a long
time” and looked different. Id.
We conclude the evidence that Laboy believed he was “done” in
Philadelphia and believed his life was in danger was related to an
explanation of the variations between his trial testimony and prior
statements to police. Consequently, we discern no abuse of discretion in
overruling Appellant’s objection admitting this testimony. See Bryant, 462
A.2d at 788. Furthermore, we reiterate that the trial court, in its final
charge, emphasized there was no evidence Appellant threatened the
witnesses and properly instructed the jury that the testimony was admitted
to evaluate the credibility of the given witness. N.T., 6/28/13, at 110-11.
Accordingly, we decline to disturb the trial court’s determination that a
mistrial was not required based on Laboy’s testimony that his life was in
danger for giving a statement to police and testifying at trial.
As to Laboy’s reference to Appellant’s pretrial incarceration, the record
supports the trial court’s determination that although the testimony was
improper, the Commonwealth did not intentionally elicit Laboy’s testimony.
Although the trial court overruled Appellant’s objection, the court expressly
addressed Laboy’s testimony in its final charge to the jury. Moreover, as
discussed above, the Commonwealth’s examination of Walker earlier at trial
previously disclosed Appellant’s pretrial incarceration. Accordingly, we
conclude Laboy’s passing reference to Appellant’s incarceration alone, or in
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conjunction with Walker’s testimony, did not cause undue prejudice requiring
a new trial.
In his sixth claim, Appellant asserts the Commonwealth impermissibly
suggested he threated witnesses in its opening and closing statements.
However, we discern no merit to Appellant’s contention that the
Commonwealth’s references to the witnesses’ fears in its opening statement
were improper. The Commonwealth’s warning to the jury that its witnesses
would likely recant was a fair deduction from the evidence it intended to
offer, namely, the witnesses’ prior inconsistent statements to police. See
Arrington, 86 A.3d 831, 853; see also Commonwealth v. Brown, 52
A.3d 1139, 1171 (Pa. 2012) (holding conviction based on prior inconsistent
statement did not violate due process). Further, we discern no basis to
conclude the Commonwealth did not have a good-faith belief that at least
some evidence regarding its witnesses’ fears would be admissible. See
Arrington, 86 A.3d at 853; Bryant, 462 A.2d at 788; Brewington, 740
A.2d at 256. Similarly, the Commonwealth’s comments upon the witnesses’
reluctance to testify or cooperate with police was properly based on the
evidence, see Arrington, 86 A.3d at 853, and did not unduly suggest
Appellant had threatened the witnesses.
Although the Commonwealth’s statements that the prosecutor could
not provide bodyguards and that witnesses have “to always look over their
shoulder” were intemperate, the trial court sustained Appellant’s objection to
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that argument and issued a cautionary instruction regarding the absence of
evidence that Appellant threatened the witnesses. Consequently, we decline
to disturb the trial court’s determination that a mistrial was not warranted
based on the Commonwealth’s opening and closing statements.
Appellant’s seventh and eighth arguments challenge the
Commonwealth closing statements suggesting that he shot the decedent
with the .40 caliber pistol and opining the decedent’s slur was not intended
as a racial insult.
Following our review, we conclude that the Commonwealth’s argument
that the wound to the decedent’s hip was caused by the .40 caliber firearm
was proper. The medical evidence at trial established two .25 caliber bullets
were recovered from the decedent’s chest, but the bullet causing the wound
to the decedent’s hip was not recovered. N.T., 6/25/13, at 64. The
Commonwealth presented expert evidence that a .40 caliber bullet is larger
and more powerful than a .25 caliber bullet. N.T., 6/26/13, at 218.
Accordingly, the Commonwealth’s suggestion that a larger, more powerful
bullet may have travelled through the decedent was not an unreasonable
inference based on the evidence.
As to Appellant’s contention that the Commonwealth improperly
suggested the slur “nigga” did not have a racial component, we agree with
the trial court this comment fell within the bounds of permissible argument.
Moreover, the Commonwealth’s comment constituted a fair response to
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Appellant’s suggestion that the slur evinced the decedent’s initial aggression
and precipitated Appellant’s belief in the need for self-defense. See N.T.,
6/28/13, at 18-19. Thus, the trial court properly denied relief.
Appellant’s ninth and tenth arguments focus on the Commonwealth
assertion that “[w]ords never justify deadly force” and Appellant did not
sincerely believe he was going to be killed. According to Appellant, these
comments misstated the law of self-defense.
We are mindful that “[t]here is no prohibition against a prosecutor
discussing applicable law in his closing argument, as long as he states the
law clearly and accurately.” Commonwealth v. Rios, 684 A.2d 1025, 1034
(Pa. 1996) (citation omitted). However, “[i]t is obviously improper for
counsel to misstate the law or to state it in a manner calculated to confuse
the jury[.]” Commonwealth v. Hardcastle, 546 A.2d 1101, 1110 (Pa.
1988) (citation omitted).
Section 505 of the Crimes Code defines self-defense as follows:
(a) Use of force justifiable for protection of the
person.—The use of force upon or toward another person
is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
(b) Limitations on justifying necessity for use of
force.—
* * *
(2) The use of deadly force is not justifiable under
this section unless the actor believes that such force is
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necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with complete safety by
retreating . . . .
18 Pa.C.S. § 505(a), (b)(2)(i)-(ii). The reasonableness of a defendant’s
belief in the need to use deadly force “encompasses two aspects, one
subjective and one objective.” Mouzon, 53 A.3d at 751. The subjective
aspect requires the defendant act “out of an honest and bona fide belief that
he was in imminent danger.” Id. at 752 (citation omitted).
Appellant’s assertion that the prosecutor impermissibly argued that
words alone are insufficient aggression to sustain a claim of self-defense is
unsupported and misplaced. Our review reveals no case in which the mere
utterance of a slur constituted sufficient evidence to warrant self-defense.
Furthermore, Mouzon, which Appellant relies upon, does not stand for the
proposition that words may constitute the basis for self-defense. The
Mouzon Court referenced the traditional rule that words alone generally are
not provocation, but rejected the defendant’s claim that his conduct did not
provoke an encounter with the victims and negate his clam self-defense.
Id. at 751. In any event, as discussed above, the evidence established that
Appellant did not react to the insult, but to the alleged threat posed by the
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decedent when the decedent or the decedent’s friend reached for a gun.
Accordingly, Appellant has not demonstrated that the Commonwealth
misstated the law of self-defense as it applied in this case.
We similarly discern no merit to Appellant’s claim that the
Commonwealth’s use of the term “sincerely” misstated the law of self-
defense. As noted above, a claim of self-defense requires consideration that
the defendant subjectively acted “out of an honest and bona fide belief was
in imminent danger.” Id. at 752. Therefore, the Commonwealth’s
argument that “nothing in the record shows [Appellant] sincerely and
reasonably belief he was going to be killed” did not mischaracterize the law
of self-defense. See id.
Appellant’s eleventh claim is the Commonwealth improperly argued he
provoked the situation by threatening Estrada two days before, carrying an
unlicensed gun, and trying to assert authority over PCP sales in the
neighborhood. See N.T., 6/28/13, at 80 (indicating Commonwealth argued
Appellant “provoked the situation when he made that threat to two days
before to [Estrada]. He provoked the situation when him and his friend were
carrying an unlicensed gun that they have no business carrying. He
provoked the situation by trying to assert his authority over that block
selling PCP. So he does not have clean hands. You cannot in this scenario
ever claim self-defense.”).
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As noted above, the concept of “provocation,” which negates a self-
defense claim, is defined as follows: “[t]he use of deadly force is not
justifiable . . . if: . . . the actor, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in the same
encounter.” 18 Pa.C.S. § 505(b)(2)(i). Thus, “to establish that an actor was
the aggressor or provoker and, hence, was not entitled to claim a defense of
self-defense or defense of others, there must be some evidence to support
the inference that the defendant’s acts constituted an intent to cause death
or serious bodily injury.” Commonwealth v. Samuel, 590 A.2d 1245,
1248 (Pa. 1991) (punctuation omitted). Moreover, Section 505(b)(2)(i)
requires that the defendant’s aggression or provocation occur “in the same
encounter.”
At the outset, we agree with the Commonwealth that it was entitled to
argue that Appellant instigated the event by approaching the decedent and
shooting and suggest that such acts were motivated by Appellant’s attempt
to “assert his authority” over the sale of PCP. See Pa.R.E. 404(b) (stating
evidence of wrongs not generally admissible to prove character and action in
accordance with character, but may be admissible for another purpose such
as motive). Indeed, the Commonwealth did so in other areas of its closing
argument without objection. See N.T., 6/28/13, at 81 (arguing, Appellant
“knew what he was doing. He knew he was armed, and he knew what he
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wanted to do. Him and [Sanabria] wanted to kill [the decedent] and show
how tough they were.”).
However, the Commonwealth’s argument suggesting Appellant
provoked the situation by engaging in several bad acts before the shooting
was misplaced. Rather than arguing motive, the Commonwealth suggested
that the jury reject his claim of self-defense because Appellant committed
several wrongs before the encounter and “did not have clean hands.”
Accordingly, the argument exceeded the proper bounds of closing
statements. See Pa.R.E. 404(b).
Thus, we consider whether Appellant established sufficient prejudice as
to warrant the declaration of mistrial. Initially, we note that the trial court’s
final charge contained the general instruction that the jury apply only the
law given to it by the court. N.T., 6/28/13, at 96. The trial court also gave
an extensive instruction on the law regarding self-defense. Id. at 127-34.
The court’s instruction properly explained that provocation, for the purposes
of rebutting a claim of self-defense required the jury to find “that in the
same encounter with the victim, [Appellant] engaged in conduct that
demonstrated his intent to cause death or serious bodily injury.” Id. at 131.
The trial court repeated its complete instructions on third-degree murder
and voluntary manslaughter-unreasonable belief when asked to do so by the
jury. Id. at 155-161.
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Our further review compels the conclusion that Appellant did not suffer
undue prejudice. Instantly, the Commonwealth proceeded on a theory of
general homicide and argued in support of a first-degree murder conviction.
See id. at 73-75 (arguing first-degree murder because Appellant and
Sanabria were carrying illegal firearms to “assert their dominance on the
street,” stated their intention to Estrada, and “took their guns out” and shot
their “intended target”). However, the jury rejected that argument and
returned a verdict of third-degree murder.
We acknowledge the possibility the Commonwealth prejudiced the
jury’s consideration of third-degree murder, voluntary manslaughter, and
justification. However, no admissible evidence demonstrated that the
decedent or his friend were armed at the time or reached for a weapon.
Rather than retreating, Appellant and Sanabria fired seven rounds. Although
one bullet struck the decedent’s front hip, the two shots, those fired by
Sanabria, struck the decedent in the back. Thus, we discern no record
evidence rebutting the presumption that the trial court’s instructions
dissipated the taint of the Commonwealth’s improper closing statement.
Accordingly, we discern no basis upon which to disturb the trial court’s
conclusion that a new trial was not required.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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Com. v. Hogan, K.
Combined Opinion