Commonwealth v. Caldwell

J-E01003-15

2015 PA Super 128

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DOMINIC CALDWELL

Appellant No. 1191 EDA 2013

Appeal from the Judgment of Sentence November 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007114-2011

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY JENKINS, J.: FILED MAY 29, 2015

Dominic Caldwell (“Appellant”) appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

convictions for aggravated assault, robbery, theft by unlawful taking,

possession of an instrument of crime (“PIC”), recklessly endangering another

person (“REAP”), firearms not to be carried without a license, carrying

firearms on public streets, and persons not to possess firearms.1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

On July 16, 2010, at approximately 4:15 in the afternoon, Appellant and his

friend, Reese, came to Sean Williams’ apartment requesting a ride in his car.

____________________________________________

1
18 Pa.C.S. §§ 2702(a), 3701(a)(1), 3921(a), 907(a), 2705, 6106, 6108,
and 6105, respectively.
J-E01003-15

N.T., 8/28/12, at 16, 17. Appellant’s family lived across the street from

Williams, and Williams had previously given Appellant one or two rides in his

car. Id. at 20. Williams, who was home with his wife and three children at

the time, went into a different room of the apartment to speak to his wife

about whether he could give Appellant a ride. Id. at 19. When Williams

returned to the room, Appellant and Reese fled the apartment with

$2,000.00 from Williams’ wife’s purse.2 N.T., 8/27/12, at 70. Williams

chased Appellant and Reese onto the street that was full of adults and

children when Appellant fired two shots toward Williams. N.T., 8/27/12, at

70. Neighbor Gail Floyd, who was standing outside conversing with her

brother, heard the shots and felt debris hit her ear, neck, and arms. N.T.,

8/29/12, at 8. After she realized she was bleeding, Floyd called the police.

Id. at 8-9.

Police responded to the scene and obtained a statement from Williams

that prompted them to search for Appellant. N.T., 8/27/12, at 45, 52, 72.

On April 5, 2011, police apprehended Appellant when he was a passenger in

a vehicle that they stopped for unrelated reasons. N.T., 8/29/12, at 29-38.

____________________________________________

2
Williams had a large quantity of cash in his apartment from a personal
injury settlement. N.T., 8/28/12, at 14, 15. His wife kept some of the
money in her purse that was on the couch when Appellant and Reese came
to Williams’ apartment. Id. at 24. Detectives found Appellant’s fingerprints
on the money wrapper for the missing $2,000.00 in Williams’ apartment.
N.T., 8/30/12, at 31.

-2-
J-E01003-15

On September 4, 2012, a jury convicted Appellant of aggravated

assault, robbery, theft by unlawful taking, PIC, REAP, firearms not to be

carried without a license, and carrying firearms on a public street, and

acquitted Appellant of conspiracy and simple assault. That same day, the

court convicted Appellant of persons not to possess firearms. On November

14, 2012, after Appellant exercised his right to allocution, the court

sentenced Appellant to 9½-18 years’ incarceration for aggravated assault,

9½-18 years’ incarceration for robbery, 3½-7 years’ incarceration for

carrying a firearm without a license, 2½-5 years’ incarceration for PIC, 1-2

years’ incarceration for REAP, and 5-10 years’ incarceration for persons not

to possess firearms.3 The court imposed the sentences consecutively, which

resulted in an aggregate sentence of 31-62 years’ incarceration.

Appellant timely filed post-sentence motions and supplemental post-

sentence motions on November 20, and November 21, 2012, respectively.

On March 21, 2013, all of Appellant’s post-sentence motions were denied by

operation of law pursuant to Pa.R.C.P. 720(b)(3). On April 17, 2013,

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.4
____________________________________________

3
The theft charge merged for sentencing purposes, and the court imposed
no further penalty for carrying firearms on a public street.
4
On June 11, 2013, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
Appellant requested an extension of time, the court ordered Appellant to file
(Footnote Continued Next Page)

-3-
J-E01003-15

Appellant raises the following issues for our review:

DID THE COURT ERR IN SENTENCING APPELLANT TO AN
EXCESSIVE SENTENCE OF 31 TO 62 YEARS[’]
INCARCERATION WHERE THE COURT FAILED TO
CONSIDER [THE REHABILITATIVE] NEEDS OF APPELLANT?

DID THE TRIAL COURT ERR IN FAILING TO GRANT A
MISTRIAL WHERE THE PROSECUTOR USED [AN] ANALOGY
OF DEFENDANT [POINTING] A GUN AT THE JURORS?

Appellant’s Brief at 3.

In his first issue, Appellant challenges the discretionary aspects of his

sentence. Appellant argues the court failed to consider his rehabilitative

needs upon fashioning his sentence and only considered the safety of the

public. Further, Appellant contends that, although he did not kill anyone,

the court sentenced him as if he did kill someone. Appellant concludes that

the consecutive imposition of his sentences resulted in an excessive, unduly

harsh aggregate sentence that was not appropriate for the crimes he

committed. We disagree.

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

_______________________
(Footnote Continued)

a concise statement within 21 days of its July 15, 2013 order. Appellant
timely complied on August 3, 2013.

-4-
J-E01003-15

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.

Id.
Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post-sentence motion. Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 8. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).

“An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

-5-
J-E01003-15

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

“When imposing a sentence, the sentencing court must consider the

factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the

public, gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant. And, of course, the court must

consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d

843, 847-48 (Pa.Super.2006) (internal citations omitted).

A court’s exercise of discretion in imposing a sentence concurrently or

consecutively does not ordinarily raise a substantial question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),

appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of

consecutive rather than concurrent sentences will present a substantial

question in only “the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

To make it clear, a defendant may raise a substantial
question where he receives consecutive sentences within
the guideline ranges if the case involves circumstances
where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the

-6-
J-E01003-15

consecutive nature of a sentence will not raise a
substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to consider

or accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97

(Pa.Super. 2001) (internal citation omitted) (emphasis in original).

Specifically,

[t]here is ample precedent to support a determination that
[a claim that the trial court failed to consider an appellant’s
rehabilitative needs] fails to raise a substantial question….
See Commonwealth v. Cannon, 954 A.2d 1222, 1228–
29 (Pa.Super.2008), appeal denied, 964 A.2d 893
([Pa.]2009) (claim that the trial court failed to consider the
defendant’s rehabilitative needs, age, and educational
background did not present a substantial question);
Commonwealth v. Coolbaugh, 770 A.2d 788, 793
(Pa.Super.2001) (citing Commonwealth v. Mobley, 581
A.2d 949, 952 ([Pa.Super.]1990)) (claim that sentence
failed to take into consideration the defendant’s
rehabilitative needs and was manifestly excessive did not
raise a substantial question where sentence was within
statutory guidelines and within sentencing guidelines);
Commonwealth v. Coss, 695 A.2d 831, 833
(Pa.Super.1997) (when the sentence imposed falls within
the statutory limits, an appellant’s claim that a sentence is
manifestly excessive fails to raise a substantial question);
Commonwealth v. Bershad, 693 A.2d 1303, 1309
(Pa.Super.1997) (a claim that a trial court failed to
appropriately consider an appellant’s rehabilitative needs
does not present a substantial question); Commonwealth
v. Lawson, 650 A.2d 876, 881 ([Pa.Super.]1994) (claim

-7-
J-E01003-15

of error for failing to consider rehabilitative needs does not
present substantial question).

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013), appeal

denied, 76 A.3d 538 (Pa.2013). Similarly, “this Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.” Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (internal citation omitted).

However, “prior decisions from this Court involving whether a

substantial question has been raised by claims that the sentencing court

‘failed to consider’ or ‘failed to adequately consider’ sentencing factors has

been less than a model of clarity and consistency.” Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa.Super.2014) (citing Dodge, supra). In

Commonwealth v. Dodge, this Court determined an appellant’s claim that

the sentencing court “disregarded rehabilitation and the nature and

circumstances of the offense in handing down its sentence” presented a

substantial question. Dodge, supra at 1273.

This Court has also held that “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).

Additionally:

-8-
J-E01003-15

In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.

Dodge, supra at 1270 (internal citations omitted).

Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider his

rehabilitative needs upon fashioning its sentence, presents a substantial

question. Thus, we grant his petition for allowance of appeal and address

the merits of his claim.

When reviewing a challenge to the discretionary aspects of sentencing,

we determine whether the trial court has abused its discretion. Seagraves,

supra at 842. We observe:

Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.

Raven, supra. at 1253 (quoting Commonwealth v. Shugars, 895 A.2d

1270, 1275 (Pa.Super.2006)).

-9-
J-E01003-15

Here, Appellant exercised his right to allocution at the sentencing

hearing, before the trial court sentenced him. He spoke about his childhood,

the difficult time he had growing up without a father, his poverty, his

neighborhood, his brothers’ illnesses, his previous adult and juvenile

convictions, and his willingness and ability to do better with himself and

improve his life. See N.T., 11/14/12, at 24-43. The court then sentenced

Appellant without exceeding the guidelines.5 Before imposing the sentences

consecutively, the trial court reasoned:

____________________________________________

5
The parties agreed that Appellant’s prior record score was a RFEL. N.T.,
11/14/12, at 3. The parties also agreed that the offense gravity scores for
aggravated assault, robbery and persons not to possess firearms were each
a ten, the offense gravity score for firearms not to be carried without a
license was a nine, the offense gravity score for PIC was a four, the offense
gravity score for REAP was a three, and the offense gravity score for
carrying firearms on public streets was a five. Id. at 3-4. Further, the
parties agreed that, using the Deadly Weapon Used Matrix, aggravated
assault and robbery each warranted 90 to 102 months’ incarceration, plus or
minus 12. Id. at 5. The parties additionally agreed, using the Basic
Sentencing Matrix, that persons not to possess firearms warranted 72 to 84
months’ incarceration, plus or minus 12, that carrying firearms without a
license warranted 60-72 months’ incarceration, plus or minus 12, that PIC
warranted 21-30 months’ incarceration, plus or minus three, that REAP
warranted 12-18 months’ incarceration, plus or minus three, and that
carrying firearms in public warranted 24-36 months’ incarceration, plus or
minus three. Id. at 6. Thus, Appellant’s sentences of 9½-18 years’
incarceration for aggravated assault and robbery were in the aggravated
range, his sentence of 5-10 years’ incarceration for persons not to possess
firearms was in the mitigated range, and his sentence of 3½-7 years’
incarceration for carrying a firearm without a license was below the
mitigated range. Appellant’s sentences for PIC and REAP were both within
the standard range, and the court imposed no further penalty for carrying
firearms on a public street.

- 10 -
J-E01003-15

I think you’re misguided. And it sounds like you did have
a difficult background and I understand that. But my
concern and I agree with almost everything the
Commonwealth said, almost all of her arguments.[6] My
concern is that you were basically completely unconcerned
about the safety of the people on the street, possible
children in the area at 4:30 in the afternoon on a summer
day, gun play, shooting a gun on the street. You could
have killed someone. But for the grace of God that no one
was killed. It’s amazing that this is not in the homicide
room. And what’s so compelling for me is that I don’t
think you really understand that. What’s shocking is that
you really are an intelligent young person. I believe that
and you’re so articulate and eloquent and compelling in so
many regards, but for you to do what you did is
unthinkable without any regard for who you could have
____________________________________________

6
The Commonwealth advised the trial court that Appellant had been
arrested nine times between the ages of 13 and 23 for crimes such as
burglary, criminal trespass, robbery, and selling drugs. N.T., 11/14/12, at
18-19. Further, the Commonwealth stated:

Judge, the third thing that Your Honor should consider in
sentencing is the rehabilitative needs of the defendant.
From his juvenile record counsel is correct a lot of his
cases did come to juvenile court. However, that also goes
to the fact that he has had multiple opportunities where he
has been taken into the juvenile justice system [the sole
purpose of which] is to rehabilitate people so that when
they become adults they don’t continue to commit crimes.
He’s been committed to…at least three different juvenile
institutions…. Instead of actually taking that help and
following the recommendations and the things that they
were trying to teach him to become a productive member
of society he decided that he was going to sell drugs and
he got arrested twice…. [C]learly he has had an
opportunity to be rehabilitated and it has not worked. He
has not chosen to take the help that this system has
offered him. Instead, he has chosen to continue a life of
crime.

Id. at 20-21.

- 11 -
J-E01003-15

injured. Look at Ms. Floyd, if she had moved her head, if
she had sneezed she could have been paralyzed, killed,
anything could have happened to her. But for the grace of
God that no one is dead and that we’re here in this
situation and I don’t think that you fully get that. I don’t
think that you take responsibility for that. These are your
actions despite your childhood and I understand what
you’re saying. Lots of people grow up in the neighborhood
that you grew up in and they don’t take the path that you
took. That’s my concern. You decided to go that way.
Most of the people in the neighborhood that you grew up
in do not commit crimes. That’s a fallacy. People think
that because you live in certain neighborhoods and that
you see certain things every day that you’re going to grow
up to be a criminal, they’re not going to have a job. That
is just not true. I know. I know that’s not true. The
average person in the neighborhood that you grew up in
[goes] to work every day, they pay their rent, they pay for
their groceries, they live right. The average person does
do that despite what you hear on the media, despite what
you think and you didn’t make the decision to live right
and that’s my concern. You continually don’t [make the
right decisions and] you haven’t for a long time and you
still don’t seem to get it and you put people at risk and I’m
really worried about public safety with you out on the
street and I don’t think you’re rehabilitative and you don’t
seem like you want to be rehabilitated.

N.T., 11/14/12, at 43-45.

The trial court specifically considered the fact that Appellant continued

to make poor decisions after he spent short periods of time in correctional

facilities for previous crimes. Based on this, and the fact that Appellant was

still not willing to take responsibility for his actions, the trial court

determined Appellant did not want to rehabilitate himself, and that he would

not likely do so during a short period of incarceration. Further, the court

ordered Appellant to complete his GED program and said, “I would like you

- 12 -
J-E01003-15

to enter job training. If you can take all of that energy that you gave today

in court in speaking and use that when you apply for a job when you do get

out and you will get out one day, you apply that energy into persuading a

[prospective] employer I think you’ll be fine with obtaining employment.”

Id. at 47. Thus, the trial court considered Appellant’s rehabilitative needs

before sentencing him.

Further, the trial court acted within its discretion in imposing

consecutive sentences. Appellant’s contention that the trial court sentenced

him as if he had killed someone when he had not killed anyone indicates that

Appellant does not appreciate the seriousness of his convictions. Appellant

committed numerous serious crimes, and as the trial court aptly observed,

the only reason he did not kill someone was for “the grace of God.”

Appellant stole $2,000 from his neighbor’s apartment, then fired shots at his

neighbor with an illegal gun on a crowded street at 4:30 in the afternoon.

Appellant was not entitled to a volume discount for these numerous and

serious crimes. See Mastromarino, supra at 587.

Because the trial court did not ignore or misapply the law, exercise its

judgment for reasons of partiality, prejudice, bias or ill will, and did not

arrive at a manifestly unreasonable decision, we hold that the court did not

abuse its discretion in imposing Appellant’s aggregate sentence.

In his next issue, Appellant argues the court erred in failing to grant a

mistrial because the prosecutor used an improper analogy in her closing

- 13 -
J-E01003-15

argument. Appellant claims the prosecutor inflamed the jurors by depicting

them as the victims of Appellant’s crimes. Further, Appellant contends the

court’s curative instruction was inadequate and concludes that, because he

was deprived of a fair trial, he is now entitled to a new one. Again, we

disagree.

Initially, we note that Appellant has waived this issue for failure to

properly object during trial. See Commonwealth v. Bauhammers, 960

A.2d 59, 84 (Pa.2008), cert. denied, 558, U.S. 821, 130 S.Ct. 104, 175

L.Ed.2d 31 (2009) (“the absence of a specific contemporaneous objection

renders the appellant’s claim waived.”).

In his brief, Appellant objects to the prosecutor’s following closing

remarks:

A defendant comes into a bank, he comes up to juror
number three, points a gun at the juror, says open the
vault, juror number three opens the vault, now the
defendant goes into the vault by himself and takes all the
money. Meanwhile, he puts the gun away as he’s stealing
the money, the gun is no longer being displayed and juror
number three is now in a different location. …[7]

Defendant comes into the bank, goes up to juror number
five, points a gun at him says open the vault holds the gun
on juror number five, walks with him together into the
vault, juror number five is now in the vault with the

____________________________________________

7
Appellant omits the Commonwealth’s next sentence from his brief: “That’s
a threat of serious bodily injury before or in an attempt to commit a theft,
during. Bank robbery.” N.T., 8/30/12, at 147.

- 14 -
J-E01003-15

defendant, the gun is still pointed at juror number five the
defendant grabs the money with the other hand. …[8]

Example number three defendant comes into the bank only
juror number ten is present inside the bank, somehow the
defendant gets into the vault walks out with his bag and as
he’s walking out of the bank juror number ten realizes that
the defendant just stole the money out of the vault, goes
after the defendant and says yo, stop give me the money
back and the defendant pulls out the gun points to juror
number ten, and if we’re talking about this case would
actually shoot at him.[9]

Appellant’s Brief at 14 (quoting N.T., 8/30/12, at 147-48). During trial,

Appellant objected at this point in the closing argument, without any

explanation. After the Commonwealth completed its closing argument,

Appellant clarified his objection: “Your Honor, the last objection I made, the

objection was to the following language, and I don’t have the exact, but in

effect, what counsel, what the Commonwealth did was suggest an example

that my client shot juror number ten or shot at juror number ten. That’s

completely impermissible, my motion is for a mistrial.” N.T., 8/30/12, at

153. Although Appellant objected to the prosecutor’s analogy involving juror

number ten, he did not object to the prosecutor’s analogies involving juror

number three or juror number five. Thus, Appellant has waived his issue as

____________________________________________

8
The Commonwealth next stated: “Robbery, threats during the theft.”
N.T., 8/30/12, at 148.
9
After Appellant’s objection is overruled, the Commonwealth explains:
“That is a threat of serious bodily injury while the person is fleeing after the
theft has been committed.” N.T., 8/30/12, at 148.

- 15 -
J-E01003-15

it pertains to those jurors on appeal. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”)

Further, the court offered a curative instruction that Appellant

accepted and that applied to all portions of the prosecutor’s argument. The

court explained to Appellant’s counsel: “I basically just want to call attention

to the fact that there was an objection made during the Commonwealth’s

closing argument and that they are instructed that they’re not allowed to

picture themselves as the victim in the case because it may interfere with

their ability to be fair and impartial.” N.T., 8/30/12, at 156. Appellant’s

counsel responded: “I’m okay with that language.” Id. Appellant may not

now challenge this instruction. See Pa.R.Crim.P. 647(B) (“No portions of the

charge nor omissions from the charge may be assigned as error, unless

specific objections are made thereto before the jury retires to

deliberate”);see also Pa.R.A.P. 302(a), supra.

Moreover, even if Appellant had properly preserved his issue, it merits

no relief.

Our standard of review of a court’s denial of a motion for mistrial is as

follows:

A motion for a mistrial is within the discretion of the trial
court. A mistrial upon motion of one of the parties is
required only when an incident is of such a nature that its
unavoidable effect is to deprive the appellant of a fair and
impartial trial. It is within the trial court’s discretion to
determine whether a defendant was prejudiced by the

- 16 -
J-E01003-15

incident that is the basis of a motion for a mistrial. On
appeal, our standard of review is whether the trial court
abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super.2014) (quoting

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.2003)).

It is well settled that a prosecutor has considerable latitude
during closing arguments and his arguments are fair if
they are supported by the evidence or use inferences that
can reasonably be derived from the evidence. Further,
prosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict. Prosecutorial misconduct is evaluated under a
harmless error standard.

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa.Super.2009) (quoting

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super.2008)).

A trial court may remove taint through curative instructions.

Commonwealth v. Manley, 985 A.2d 256, 266-67 (Pa.Super.2009).

“Courts must consider all surrounding circumstances before finding that

curative instructions were insufficient and the extreme remedy of a mistrial

is required.” Id. at 267.

Here, the prosecutor used the analogy of a generic “defendant”

robbing a bank to explain to the jury the elements of robbery. The

prosecutor did not suggest that Appellant, himself, was the bank robber, a

suggestion that might have impeded the jury’s ability to weigh the evidence

objectively and render a true verdict. See Judy, supra. Further, the court

- 17 -
J-E01003-15

gave the jury a curative instruction to ensure that the jury did not picture

themselves as victims.

Appellant further contends that, although he agreed to the court’s

curative instruction, the court failed to actually reference the prosecutor’s

improper remarks to put into proper context why the jurors may have felt

like victims. When addressing the jury, the court stated:

There was an objection made during closing argument by
the defense and I just wanted to clarify to you the
objection was grounded in an analogy that the prosecution
made. I just wanted to tell you that you are not allowed to
picture yourselves as a victim because if you do that, it
may tend to interfere with your ability to be fair and
impartial.

N.T., 8/30/12, at 160. Although the court does not specifically state the

prosecutor’s actual words, it referenced the analogy and placed it in

sufficient context. Thus, Appellant’s issues merit no relief.

Judgment of sentence affirmed.

Judge Bowes, Judge Donohue, Judge Shogan, Judge Lazarus, Judge

Olson and Judge Stabile join in the Opinion.

Judge Wecht files a Concurring Opinion.

Judge Mundy concurs in the result.

- 18 -
J-E01003-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/2015

- 19 -