Com. v. Waters, W.

J. A15033/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WESLEY WATERS, :
:
Appellant : No. 118 EDA 2014

Appeal from the Judgment of Sentence September 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0004959-2011

BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015

Appellant, Wesley Waters, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and convictions for robbery,1 conspiracy,2 violations of the uniform

firearms act,3 and possession of an instrument of crime.4 Appellant

contends that the court improperly limited his cross-examination by stating

that if he cross-examined the police on the extent of their investigation, then

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. §§ 6105(a)(1), 6108.
4
18 Pa.C.S. § 907(a).
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the testifying police officer could potentially disclose his prior robbery

conviction. He claims the court erred by allowing a police officer to opine on

whether Appellant acted like a robbery victim. Appellant challenges the

court’s refusal to issue a Kloiber5 instruction and the prosecutor’s comment

during her closing arguments. We affirm.

We adopt the facts set forth by the trial court’s decision. See Trial Ct.

Op., 8/25/14, at 1-3. Following a hung jury and mistrial, Appellant was

again tried by a jury. At the second trial, the following exchange transpired

during the direct examination of Officer Floyd Allen, the arresting officer who

was with her partner:

[Commonwealth]. You get a flash[6] for an armed robbery?

A. Yes.

Q. What do you guys do?

A. Proceed to the area. I happened to be around the
corner from there. Beings [sic] as though the flash said it
happened on Wayne and Seymour, I took Seymour Street
down. As I’m approaching Germantown Avenue, I see
[Appellant] to my left with the gray shirt on standing on
the corner with another male. They were at that point

5
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
6
“A flash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.
1986). Instantly, Officer Allen testified that Appellant and codefendant were
the only two in the area that matched the description in the flash
information, which was “two black males, one with a beard” and a blue,
green, or blue-green hoody. N.T., 7/3/13, at 49, 82-84.

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separating. The other male is starting to walk up Seymour
into the 14th. As I get closer, [Appellant] is making a
head and hand gesture, pointing like this like he has a
gun.

The court: I’m sorry. Repeat that, please.

[A.] Making a head and hand gesture, like the male going
to the left had a gun. So stopped [Appellant]. Put him in
my car for investigation. Went and stopped the other
male. Brought him back to the car. At that point [another
officer, Officer Sommerville, who had arrived at the scene
in response to the flash, see N.T. Trial, 7/3/13, at 91-92]
recovered a weapon which was a revolver [from a trash
can near codefendant Dominic Broadneck7].

* * *

Q. There’s a map behind you there. Can you show the
ladies and gentlemen of the jury the route that you took to
ultimately get to where [Appellant] and codefendant were?

A. This is Seymour here. Knox and Seymour. I basically
just came straight down from Wayne. Straight down
Seymour to Germantown Avenue. [Appellant] was
standing here on this corner. As I’m approaching this
corner, [Appellant] pointing to the other male who is
walking into the 14th District along alongside of I believe
it’s a church, if I’m not mistaken. There’s a trash can right
here which I see the other male stop at. As [Appellant’s]
pointing like this, I’m looking at the male. The male stops
at the trash can which is the side of the building and he
continues to walk. Again, I placed [Appellant] into my
vehicle for investigation purposes and stopped the other
male with the help of Officer Sommerville.

Q. Let me stop you for a second. Can you describe
[Appellant’s] demeanor as he’s standing on the corner kind
of like bobbing his head?

7
The record also indicates codefendant’s last name was Broadnax.

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A. He’s bobbing his head and pointing and making a
gesture that the other male had a gun, but he’s very cool
and very calm. And in my profession—

[Appellant’s counsel.] Objection. It’s not asking for
opinion evidence here.

The court: That’s fine. It’s denied.

[Commonwealth]. You can continue.

A. In my years of service normally when people were
getting robbed, they are excited when they see the police.
They are jumping up and down. They are flagging us
down: Officer, Officer, this man had a gun. He was not
exited [sic] or anything. So for investigation purposes, I
placed [Appellant] in my vehicle so I could stop the other
male and find out what’s going on.

Q. Why did you place [Appellant in your] vehicle [sic] if
he’s kind of acting like a victim?

[Appellant’s counsel.] Objection.

The court: Sustained.

[Commonwealth]. Why did you place [Appellant] in the
rear of your car?

A. A lot of times you get a robbery job. People say, oh,
this male—

[Appellant’s counsel.] Objection. A lot of times? Let’s
limit it to this case.

The court: That’s fine. You can limit it to this case. You
can rephrase the question.

[Commonwealth]. Why in this particular case did you
place [Appellant] in the rear of your car for investigation
purposes?

A. To find out exactly what was going on.

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Q. Are you certain this person was a victim at that point?

A. No, I was not.

Q. And what happened once you placed [Appellant] in your
vehicle for investigation and then you start pursuing the
codefendant?

A. Once I knew that [Appellant] was secured and my
partner was safe watching him, that’s when Officer
Sommerville and I cut the other defendant off. Brought
him back to the vehicle so he could be checked and make
sure he didn’t have a weapon at that point. Until he was
safe and we could put him in the vehicle.

N.T., 7/3/13, at 43-48.

Appellant also cross-examined at least one police officer and one

detective about the extent of their investigation and asked, inter alia, why

the police did not lift fingerprints from the victim’s credit cards or investigate

Appellant’s cell phone. See id. at 75-76, 191-92, 198. For the defense,

Appellant’s sister, Dashawna Waters, was the sole witness. Id. at 204-11.

She testified she dropped Appellant off near Germantown and Seymour to

see his friend. Id. at 206.

During his closing argument, Appellant argued he was the victim of the

instant crimes and the perpetrator was his codefendant, Dominic Broadneck:

There’s more obvious problems with this case. This is
in fact a high crime area. I mean, it’s not pleasant to say
that this part of the city of Philadelphia is what we call a
high crime area. . . . And we need to put more police
officers in those areas because they have more burglaries;
they have more robberies; they have more drug sales;
they have more shootings.

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And guess what? The 39th District is one of those.
Officer Waltman’s told you and Officer Sommerville told
you. This has been identified by the police department
and they have tactical units there. They have burglary
units out there. They have five squad out there. And for
them to say that, well, there was nobody else out there
and nobody else could have been out there robbing
[Appellant], that’s impossible.

. . . So let’s just talk about what a robbery is. A
robbery is, you know, two or more people getting together
and saying, hey, let’s go steal some money. And if they
say, meet me at 1:00 out at the bank, that’s pretty
simple; right? I need some money. You do? All right.
1:00 at the bank at 15th and JFK. All right. Be there.
They meet there, Rob and they go away.

Ask yourself this: two people at different parts of the
city, because we know [Appellant] was by himself. How do
they decide we’re just going to meet at a moving target
that we don’t even know where it’s going to be or who’s
going to be there or if anyone is going to be there? How
does this happen? How does [Appellant] go from being
alone to getting so lucky as to find someone at Seymour
and Knox [i.e., the location of the robbery,] and being
there at the same time as [codefendant] Broadneck? This
is too much.

What evidence do they have to show that was such a
coordination that they were able to say, you know what? I
think there’s going to be a guy right at Knox and Seymour
at exactly 2:00. And if you meet here and I meet here
and we meet in the middle, there’s going to be someone
there to rob. It’s not that easy. In fact, it’s quite difficult.
It makes no sense. And they can’t prove how that could
have possibly happened.

Another thing that’s very clear. The gun and the
proceeds are all on [codefendant] Dominic Broadneck. If
someone is a victim of a robbery and they say, hey, that’s
the guy that did it and they got the gun and the proceeds,
well, it’s pretty clear to say that that’s the right person.
[Appellant] had none of that. He didn’t have the gun. He

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didn’t have the credit cards. He didn’t have the cell phone.
He didn’t have the wallet. He didn’t have the cash.

* * *

Now, there’s [Appellant’s] head gesture. This head
gesture, this could have been number one. This could
have been number one or number two. Moving your head
towards another guy who has a gun? Well, I guess that
now means when you go like this and you point to the
other person who has a gun, you’re saying to the police,
hey, I did it, too. I’m a robber, too; right? That’s what he
must have been saying. Or was he trying to tell the police
officer, hey, that guy just robbed me? That is reasonable
doubt in and of itself.

He didn’t run away. He didn’t hide. He didn’t start
throwing things out of his pockets. He stands there on the
corner. That guy has a gun. He’s not saying he’s got a
gun because we’re out robbing people together. This is
nonsense. This is absolute nonsense.

N.T., 7/5/13, at 30-33, 35-36.

In response to Appellant’s closing argument that he was not the

perpetrator, the prosecutor summarized video surveillance footage:

This video, ladies and gentlemen, is worth a 1,000 words.
What do you have on this video? Let’s talk about the
timeline. This video helps us figure out exactly what’s
going on. All right. He says he doesn’t know what time
the robbery happened. Well, I can do math and I know
you can do math. So I can tell you what time the robbery
happened? All right.

Here we are, 2:00 a.m. and one second. You have
[Appellant] walking towards Knox and Seymour in the
direction of the robbery. He’s headed right there. He’s
headed right towards Mr. Coleman. He’s walking there at
2:00.02. 2:00 a.m. He’s walking there at 2:00.04.
2:05.32 and somewhere between 2:06. That’s when Mr.
Coleman is being robbed. Does he have time to get there?
Yes. Detective O’Neill told you, I walked that and I just

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walked it at a normal pace and I got there at five minutes
and two seconds. But did he make it five blocks? Five
regular city blocks? Absolutely.

How did we know when the robbery happened?
2:08.31. That C.A.D.[8] report that counsel was talking
about, well, 2:08.31 is when you get the call, the 911
dispatch. Mr. Coleman sat there and said it took me two
to three minutes to get home tops. I called 911. My wife
called 911 immediately. That’s how we know when the
robbery is taking place.

When do we see [Appellant] again? 2:11.7. And where
do we see him? I’ll tell you. He’s walking back from the
direction of the robbery. He’s walking back from Knox on
Seymour. That’s where he’s coming from because he just
robbed Mr. Coleman. And remember the minute behind
him? His codefendant, Dominic Broadneck. That person
wearing all dark clothing, dark boots. The guy on that
video, you see him in the corner. He’s walking back from
Knox and Seymour, too, the same direction a minute
behind this defendant. Dark pants, dark boots. That’s
Dominic Broadneck. You heard the description. That’s
where he is.

The crime is solved on the street by officers within
minutes. Ladies and gentlemen, that video is something
he can’t explain away. Well, he wants to say there was a
cab somewhere in that video? Okay. Germantown Cab
Company. What, did he call a cab? Is someone picking
him up? Is that why he was there? He has five $1’s in his
pocket. How is he going to pay for that cab. Where was
he going? Is he going to get in the cab and go somewhere
with the money he didn’t have to pay for the cab or is he
going to Portico Street to take a cab a half a block. That
doesn’t make sense. Because what makes sense is that
timeline there.

Okay. So he’s stopped a couple minutes later and the
codefendant is tossing the gun; right? The gun is not in

8
Criminal Arrest and Disposition Report.

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his waistband. So what? We know where the gun was
when the robbery was happening. It was in his waistband.
He was using it to paralyze Mr. Coleman to have him give
up all his items. Okay. Crime for dummies 101. Read the
first couple chapters. I just committed an armed robbery.
I got the gun and I got the proceeds. I’m standing like a
sitting duck on the corner of Germantown and Seymour.
I’m sitting right here. I got Officer Sommerville coming
down this way. I got Officers Allen and Officer Lee Coming
up this way. I’m done. I’m toast.

A crime for dummies 101. Get rid of the gun, get rid of
the proceeds and then stand there and go like this. It’s
that guy. It was him. Officer Allen didn’t buy it. No one
bought it. And I know you guy’s don’t buy it. That’s not
how someone acts when they were being robbed. If he
was a victim, he would have been up there telling
the story. He wasn’t the victim. He was one of the
robbers.

[Appellant’s counsel]: Objection.

The court: Noted.

Id. at 91-94 (emphasis added). The court did not caution the jury at that

point.

After the prosecutor completed her closing and the jury was excused,

Appellant’s counsel formally moved for mistrial:

[Appellant’s counsel]: Briefly, your Honor, I have a motion
for mistrial. During the prosecution’s closing, there was a
line of testimony in which the prosecutor actually with her
arms signaled towards the witness box and stated that he,
referring to [Appellant], never testified. And it was in the
context of claiming that he was a victim. He was the
person who was robbed that day and he never testified.
That’s clearly prohibited as to argument. It infringes on
my client’s Fifth Amendment right to remain silent and also
his Fifth Amendment right not to speak on his own half
[sic] at a trial. Such argument and such blatant gesturing,
emphasizing to the jury is clearly prosecutorial misconduct

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and inadmissible argument and those are grounds for a
mistrial.

The court: And [assistant district attorney?]

[Assistant district attorney]: Your Honor, counsel argued
during his closing arguments that he was a victim. And
my reference to the fact that he was a victim, they would
have known about it, your Honor. It’s not a violation of
the Fifth Amendment right. I don’t think, your Honor, it is
improper.

The court: I will deny the motion for mistrial. I think that
the instructions that I will give including as to whose
burden it is, the presumption of innocence and his failure
to testify, that there can be no inference of guilt or other
inference. An adverse inference is sufficient in my view to
guide the jury as to how they should decide this case.

Id. at 101-03.

The court, during its charge, instructed the jury as follows:

It is entirely up to the defendant in very criminal trial
whether or not to testify. He has an absolute right
founded under the Constitution to remain silent. You must
not draw any inference of guilt or any other inference
adverse to the defendant from the fact he did not testify.

Id. at 110-11.

The jury convicted Appellant, and the court sentenced Appellant to an

aggregate sentence of seven to twenty years’ incarceration. Appellant filed

a timely post-sentence motion, which the court denied that same day.

Appellant did not file a notice of appeal within thirty days, but later filed a

successful Post Conviction Relief Act9 petition to reinstate his direct appellate

9
42 Pa.C.S. §§ 9541-9546.

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rights nunc pro tunc. Appellant timely appealed and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issues on appeal:

Did trial court err in limiting Appellant’s cross examination
of the lead detective regarding the extent of the
investigation?

Did the trial court err in permitting a Philadelphia police
officer to testify as to his opinion that Appellant did not act
like the victim of a robbery?

Was Appellant denied a fair trial and due process of law by
the Court permitting the prosecutor in her closing remarks
to comment upon [A]ppellant’s silence?

Was Appellant entitled to a Kloiber jury charge?

Appellant’s Brief at 4.

In support of his first issue, Appellant claims that two detectives

interviewed him and prepared his five-page statement, although he

concedes he never introduced the statement into evidence. Id. at 10, 11

n.3. Appellant claims that his statement memorialized his allegations that

he was a victim of the robbery and identified four potential defense

witnesses, including his sister, Dashawna Waters,10 and a cab driver. Id.

He insists the police refused to interview any of his witnesses. Id. Although

he did not attempt to introduce the statement at trial, Appellant argues the

prosecutor “fought to keep out any mention of this statement or that the

10
As noted supra, she testified at Appellant’s trial.

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police refused to interview potentially exculpatory witnesses.” Id. at 10.

Appellant asserts the court ruled that if he questioned the police about the

“nature and extent” of the police investigation, then the Commonwealth

could introduce evidence of Appellant’s prior conviction for robbery.11 Id. at

11. Appellant contends the court’s conditional ruling was error as it

constituted a de facto prohibition of his right to confront and cross-examine

the witnesses against him. Id. at 13.

The Commonwealth counters that the two detectives who purportedly

recorded Appellant’s statement did not testify at trial.12 Commonwealth’s

Brief at 11. In conjunction with the fact that Appellant’s statement was

never mentioned or introduced into evidence, the Commonwealth contends

11
The trial court’s ruling follows:

The court: And the second would be as to investigating
any of the named witnesses that [Appellant] had provided
to the detectives and the extent of his investigation. At
least in my view, if you are to challenge the detective as to
why he did not interview them, in my view you’re opening
the door to whatever his truthful response would be. And
if that includes that he thought that that [sic] they were
the right person based in part on a prior conviction for
robbery in the same area, that comes through.

N.T., 7/2/14, at 248-49.
12
Both detectives were apparently on preplanned vacations scheduled that
week, each of which was requested in December of 2012. N.T., 7/3/14, at
183-84, 199-200.

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Appellant’s claim lacks merit. Alternatively, it claims the court’s ruling was

correct:

First, in the absence of any testimony from [Appellant],
it was entirely proper for the court to rule that he could not
use his cross-examination as a back door through which to
bring in his own hearsay statement to police, in
contravention of Pa.R.Evid. 802.4 Second, the trial court
was well within its discretion to rule that [Appellant] could
question the detectives about their failure to investigate
certain supposed witnesses, but that doing so might open
the door to their truthful responses that they believed they
had the right person based on the evidence and
[Appellant’s] prior conviction for a similar robbery in the
same neighborhood.

4
Even now on appeal, [Appellant] utilizes a similar back-
door approach by inappropriately attaching the statement
he gave to police to his brief. He does so despite explicitly
acknowledging that “the Statement was never introduced
into evidence in the trial” and, thus, it is not a part of the
certified record on appeal.

Commonwealth’s Brief at 12-13 & n.4 (citations omitted). The

Commonwealth also notes Appellant “repeatedly questioned the officers

through the trial regarding their failure to investigate certain aspects of the

case (See, e.g., N.T. 7/3/2013, 75-76) (asking Officer Allen on cross-

examination why he did not speak with the cab driver who was on the scene

or investigate [Appellant’s] cell phone to see if he had made any phone

calls).”13 Id. at 13. We agree that Appellant is not entitled to relief.

13
The officer responded that it was the detective’s job, and not her job, to
contact the cab driver or retrieve Appellant’s cell phone. N.T., 7/3/13, at 76.

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We initially note that cross-examination is the primary
method for testing the believability of a witness and the
truth of his testimony. Cross-examination may be
employed to test a witness’ story, to impeach credibility,
and to establish a witness’ motive for testifying. The scope
of cross-examination is a matter within the discretion of
the trial court and will not be reversed absent an abuse of
that discretion.

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citations and

quotation marks omitted); see also Pa.R.E. 611(b) & cmt. Similarly, the

limits placed on cross-examination also lie within the discretion of the trial

court. Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super.

1995). Any error is subject to the harmless error standard. Id. at 1279.

With respect to a written statement by the defendant, Pa.R.E. 801 and

802 apply:

(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made
the statement.

(c) Hearsay. “Hearsay” means a statement that

(1) the declarant does not make while testifying at the
current trial or hearing; and

(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.

Pa.R.E. 801. “Hearsay is not admissible except as provided by these rules,

by other rules prescribed by the Pennsylvania Supreme Court, or by

statute.” Pa.R.E. 802.

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Instantly, and regarding Appellant’s statement, we agree with the trial

court that Appellant could not elicit the contents of his written statement via

cross-examination of the two detectives—who did not even testify—without

sufficient evidentiary foundation for the statement. See id. Indeed,

Appellant conceded he did not introduce or attempt to introduce the

statement at trial, although he included it as an exhibit to his appellate brief.

See Appellant’s Brief at 11 n.3. Appellant cannot attempt to introduce the

contents of his statement for the truth of the matter asserted therein via

other means, i.e., cross-examination. Under these circumstances, the trial

court properly exercised its discretion to limit Appellant’s cross-examination.

See Chmiel, 889 A.2d at 527; Mullins, 665 A.2d at 1277.

As for Appellant’s claim that the court limited his cross-examination of

any police witness, we discern no basis for this contention. Rather, the court

cautioned Appellant that if he elected to question the police about why they

did not interview the witnesses he identified in his statement, then he must

accept the response of the police, including their belief that Appellant was

the perpetrator based on his prior conviction for robbery in the same area.

See N.T., 7/2/14, at 248-49. Indeed, Appellant asked the police about the

extent of their investigation, including whether they contacted the cab

driver, reviewed Appellant’s cell phone, or obtained fingerprints from the

victim’s credit cards. See N.T., 7/3/13, at 75-76, 191-92, 198. The police,

however, did not testify about their belief that Appellant was the perpetrator

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because of a prior, similar robbery conviction. Thus, we construe the court’s

instruction as more cautionary and observational and not an absolute

command. See N.T., 7/2/13, at 248-49 (stating, “if you are to challenge . .

. , in my view you’re opening the door . . . .”). And even if we construed

this conditional language as a limiting instruction, then we discern no error

from the court’s rulings regarding the scope of Appellant’s cross-examination

of the police about the nature and extent of their investigation. See, e.g.,

N.T. 7/3/13, at 198. Assuming error, however, after viewing the record in

the Commonwealth’s favor, we discern no “reasonable possibility that [it]

might have contributed to [Appellant’s] conviction.” See Mullins, 665 A.2d

at 1279. Accordingly, we discern no abuse of discretion. See Chmiel, 889

A.2d at 527; Mullins, 665 A.2d at 1277.

Appellant next argues that the court erred by permitting the

Commonwealth to permit Officer Allen to testify that he was not acting like a

victim. The standard of review of a “trial court’s decision to admit evidence

is subject to review for an abuse of discretion.” Commonwealth v.

Hairston, 84 A.3d 657, 664 (Pa. 2014) (citation omitted). After careful

consideration of the parties’ arguments, the certified record, and the

decision by the Honorable Daniel Anders, we affirm this issue on the basis of

the trial court’s decision as we discern no abuse of discretion. See Trial Ct.

Op. at 11-13 (holding it sustained counsel’s objection to whether Appellant

acted “like a victim” and it was permissible for police to testify about

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Appellant’s demeanor on the street corner and reason for placing Appellant

in back of vehicle); see also Hairston, 84 A.3d at 664.

We summarize Appellant’s argument in support of his third issue. He

contends the Commonwealth, in its closing statement, argued that if he was

the victim, then he would have testified. Id. at 21 (referencing, as set forth

above, N.T., 7/5/13, at 94). Appellant claims the prejudice was not cured

by the court’s “standard instruction that no inference should be drawn” by

his refusal to testify. Id. at 20. He asserts the Commonwealth’s statement

was doubly unfair because it possessed Appellant’s statement to the police

that alleged he was the victim and identified four corroborative witnesses

that the police did not interview. Appellant notes that in conjunction with

Officer Allen’s testimony regarding whether he was a victim, he concludes a

new trial is warranted. We hold Appellant has not established the error was

so prejudicial as to warrant a new trial.

In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our

Supreme Court stated:

The review of a trial court’s denial of a motion for a
mistrial is limited to determining whether the trial court
abused its discretion. . . . A trial court may grant a
mistrial only where the incident upon which the motion is
based is of such a nature that its unavoidable effect is to
deprive the defendant of a fair trial by preventing the jury
from weighing and rendering a true verdict.

A comment is forbidden if the language used by the
prosecutor is intended to create for the jury an adverse
inference from the failure of the defendant to testify. It is
well settled that any comment by the prosecution or the

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court violates 42 Pa.C.S. § 5941[14] if it draws attention to
or focuses on the fact that no one except the defendant
can rebut the Commonwealth’s case.

Id. at 142 (citations and quotation marks omitted).

In Wright, the prosecutor sarcastically stated the following during his

closing arguments:

Tammy Mowery did it. That’s why [the defendant] has 60
rounds of ammunition on him, not counting what’s in the
gun, almost twice what a police officer would call—or
carry, I’m sorry, ‘cause Tammy Mowery did it. That’s why
[the defendant] has the shells, the bullets, the live rounds.
Tammy Mowery did it. That’s why [the defendant] had the
Taser and the Pepper Spray, ‘cause Tammy Mowery did it.
And then, of course, he didn’t say anything, but the police,
of course, lying indicated to you that he basically
confessed. I just toasted a guy and I know I’m going to
jail. Don’t try to tell me I’m not. I know what happened.
But that’s all made up. That’s all made up. Truth is, folks,
two best Commonwealth witnesses here are the two that
didn’t testify in person. Jim Mowery, who says [the
defendant] broke in my house shootin’, and [the
defendant] says, yeah, I killed him.

14
This statute states as follows:

(a) General rule.—Except defendants actually upon trial
in a criminal proceeding, any competent witness may be
compelled to testify in any matter, civil or criminal; but he
may not be compelled to answer any question which, in
the opinion of the trial judge, would tend to incriminate
him; nor may the neglect or refusal of any defendant,
actually upon trial in a criminal proceeding, to offer himself
as a witness, be treated as creating any presumption
against him, or be adversely referred to by court or
counsel during the trial.

42 Pa.C.S. § 5941.

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Id. at 141. The prosecutor then concluded:

As I said before, I suggest two of the best witnesses that
were here are the ones that did not testify—[the
defendant], who admitted to doin’ it, and Jim Mowery, who
pointed out his killer, even though he’s not here to face ya
and tell you that in person.

Id. The defendant’s counsel then moved for a mistrial based on the

prosecutor’s references to the defendant’s failure to testify. Id.

The court denied the motion, but immediately gave a
cautionary instruction: “The defendant’s right to remain
silent . . . is absolutely in place. And you shouldn’t take
any of the Commonwealth’s argument that you heard as in
any way disturbing that right to remain silent or that
burden of proof. . . . I’ll talk with you in more detail about
all of those. . . .”

Id.

Our Supreme Court held that the prosecutor’s comments were

inappropriate but nonetheless held the error was harmless given the

overwhelming evidence of the defendant’s guilt:

There is a fine line between vigorously arguing the
evidence and drawing attention to appellant’s decision not
to testify. As stated above, this Court vigilantly protects
the right to remain silent and recognizes references to an
accused’s exercise of this right may jeopardize the
presumption of innocence in the jury’s mind. For this
reason, though we believe no impropriety was intended,
we cannot find the prosecutor’s comments were not
inappropriate; the spirit of “oratorical flare,” as
characterized by the Commonwealth, must bend to the
accused’s fundamental right to remain silent.

However, not every reference to a defendant’s failure to
testify automatically requires a new trial; the verdict can
still be sustained if the error was harmless. An error is
harmless if it could not have contributed to the verdict. In

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J. A15033/15

other words, an error cannot be harmless if there is a
reasonable possibility the error might have contributed to
the conviction. We have found harmless error where:

(1) the error did not prejudice the defendant or the
prejudice was de minimis;

(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or

(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error
could not have contributed to the verdict.

The Commonwealth has the burden of proving harmless
error beyond a reasonable doubt.

Id. at 143 (some punctuation and citations omitted). The Wright Court

held the Commonwealth met its burden as “[t]his was not a close case,

where a remark such as the one the prosecutor made can change the flow of

a trial—this trial was a river of evidence, and its flow was unaffected by this

reference.” Id. at 144.

The Wright Court additionally held that “the trial court’s curative

instructions curtailed any damage the prosecutor’s reference could have

caused.” Id.

The court issued an immediate cautionary instruction
regarding [the defendant’s] right to remain silent and the
Commonwealth's burden of proof. During jury
instructions, the court charged the jury at length regarding
appellant’s right to remain silent and specifically warned
the jury against drawing any adverse inferences from the
prosecutor’s comments.

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J. A15033/15

Id. “Further, appellant has offered nothing to rebut the presumption the

jury followed the trial court’s instructions.” Id. Accordingly, our Supreme

Court, although holding the prosecutor erred by commenting that the

defendant did not testify, concluded the error was harmless given, inter alia,

the overwhelming evidence of guilt, the court’s jury charge regarding the

defendant’s right to not testify, and the absence of any evidence the jury

disobeyed the trial court’s charge. Id.

Instantly, assuming without deciding that the prosecutor erred by

gesturing to the empty witness box and opining that Appellant could have

testified,15 see Wright, 961 A.2d at 141, we ascertain whether the error

was harmless. With respect to evidence of guilt, 16 the victim identified

Appellant and Broadneck as the people that robbed him on the night of the

robbery, at the preliminary hearing, and at trial. See Trial Ct. Op. at 3-4,

19. Video surveillance placed them both near the scene at the time of the

robbery. See N.T., 7/3/13, at 43-48. Similar to the trial court in Wright,

the instant trial court charged the jury regarding Appellant’s right to remain

silent, cautioned the jury about drawing any adverse inferences because

Appellant did not testify, and Appellant has not rebutted the presumption the

jury followed the trial court’s instructions. See id. Although the court did

15
This was wholly unnecessary.
16
Appellant has not challenged the sufficiency of evidence for his
convictions.

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J. A15033/15

not issue an immediate cautionary instruction, cf. Wright, 961 A.2d at 141,

we cannot conclude the prosecutor’s error was prejudicial given the

evidence, the jury charge regarding Appellant’s right to remain silent, and

the lack of evidence the jury disobeyed the trial court’s instructions. Cf.

Wright, 961 A.2d at 141-44.

Appellant lastly argues the court erred by not instructing the jury

pursuant to Kloiber. He contends the circumstances under which the victim

allegedly observed him and the victim’s inconsistent testimony regarding

aspects of the encounter warranted a Kloiber charge. We hold Appellant is

due no relief.

“We evaluate whether a Kloiber instruction is necessary under an

abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,

332-33 (Pa. Super. 2012). “Pursuant to Kloiber, where a witness was not

in a position to observe the assailant clearly, or had previously failed to

identify the defendant, the court must instruct the jury to receive the

witness’ identification testimony with caution.” Chmiel, 889 A.2d at 541

(citations omitted); Commonwealth v. Rollins, 738 A.2d 435, 448 n.14

(Pa. 1999) (“A Kloiber charge instructs the jury that a eyewitness’

identification should be viewed with caution where the eyewitness: (1) did

not have an opportunity to clearly view the defendant; (2) equivocated on

the identification of the defendant; or (3) had a problem making an

identification in the past.”). After careful review of the certified record—

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J. A15033/15

including the victim’s testimony identifying Appellant—the parties’ briefs,

and the well-reasoned decision of the trial court, we affirm on the basis of

the trial court’s decision. See Trial Ct. Op. at 17-21 (holding record

establishes victim unequivocally and without hesitation identified Appellant

on the night of the robbery, at the preliminary hearing, and at trial). For

these reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015

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 Circulated 06/30/2015 12:22 PM

RECEIVED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST nJDICIAL DISTRICT OF PENNSYLVANIA AUG 2 5 2014
TRIAL DIVISION - CRJ1v[INAL APPE
ALS/POSTTRIAL
COMMONWEALTH OF PRNNSYLV ANIA CP-51-CR-0004959-2011
CP-51-CR-0004959-2011 Comm. v. Waters. Wesley
Opinion
vs. 118 EDA 201J