J-A03029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANSORD RASHIED
Appellant No. 2912 EDA 2014
Appeal from the Judgment of Sentence August 27, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000063-2013
CP-46-CR-0001096-2013
CP-46-CR-0001222-2013
CP-46-CR-0001379-2013
CP-46-CR-0004468-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 02, 2016
Appellant, Ansord Rashied, appeals from the August 27, 2014
aggregate judgment of sentence of five to ten years’ imprisonment, plus one
year of probation. After a bench trial, Appellant was found guilty of one
count of burglary, three counts of criminal attempt, two counts of fleeing
from a police officer, and one count each of criminal trespass, possession of
an instrument of a crime (PIC), loitering, criminal mischief, recklessly
endangering another person (REAP), resisting arrest, flight to avoid
apprehension, theft by unlawful taking, unauthorized use of a motor vehicle,
J-A03029-16
reckless driving, careless driving, driving at an unsafe speed, and failure to
stop at a red signal.1 After careful review, we affirm.
The trial court summarized the relevant factual history of this case as
follows.
On December 22, 2011, around midnight,
Robert Marchozzi was asleep on the couch in the
living room of his home located at 114 East
Germantown Pike, Whitemarsh Township,
Montgomery County, Pennsylvania, when he was
startled by a loud noise coming from his partially
renovated addition. Once awakened, Mr. Marchozzi
saw a bright light coming through a crack in the door
leading to the addition, which was approximately
four (4) feet away from where he slept.
Consequently, Mr. Marchozzi jumped up and quickly
turned on the light to illuminate the addition. He
then opened the door leading into the addition, and
saw a man wearing dark clothes and a dark hoody
run out the back door. The man was approximately
5’9”, maybe 190-200 lbs. As he called 911, Mr.
Marchozzi ran to the front of the house to keep eyes
on the intruder whom he observed running in the
direction of Germantown Pike. Mr. Marchozzi noted
that the intruder slowed his pace as he neared
Germantown Pike, and then ultimately started
walking. By the time that Mr. Marchozzi lost sight of
the intruder, police cars were responding to the
scene. Upon further investigation, Mr. Marchozzi
observed that the back door to his addition was
dented and broken in, and the door jamb was
completely ripped off on one side. There were also
some tools thrown on the ground.
____________________________________________
1
18 Pa.C.S.A. §§ 3502(a), 901(a), 75 Pa.C.S.A. § 3733(a), 18 Pa.C.S.A. §§
3503(a)(1)(ii), 907(a), 5506, 3304(a)(5), 2705, 5104, 5126(a), 3921(a),
3928(a), 75 Pa.C.S.A. §§ 3736(a), 3714(a), 3361, 3112(a)(3)(i),
respectively.
-2-
J-A03029-16
Within minutes of the incident, responding
Officer Hannon patrolled the nearby area. Officer
Hannon used his thermal imager in order to identify
any recently driven vehicles. Approximately fifteen
(15) minutes later, he observed a light Toyota
Tundra pick-up truck which was “very hot,” and
which likely had been used within the last half hour.
When the Officer ran the Pennsylvania plate on the
Toyota, it was identified as a temporary tag issued
from Norristown. Officer Hannon then drove by the
Toyota three (3) times, but did not observe anyone
inside. He next parked his car in a nearby obscure
location and watched the Toyota. It was raining
heavily at the time. After approximately fifteen (15)
more minutes, a light turned on in the Toyota, the
passenger door opened, the lights went dark, and
the vehicle drove off. Officer Hannon followed the
vehicle and effectuated a vehicle stop. When Officer
Hannon approached the vehicle, he got a clear look
at the driver and also observed only one person in
the Toyota. Officer Hannon also noticed that the
driver wore a black long[-]sleeved hoody [sic].
When Officer Hannon attempted to question the
driver, the driver abruptly sped off, leading the
officer on a chase. This chase terminated for safety
reasons when [Appellant]’s vehicle entered 76
eastbound toward Philadelphia.
The next day, Whitemarsh Detective Zadroga
used the Toyota license plate information and
eventually learned that the operator of the vehicle
was [Appellant]. Detective Zadroga and other
officers then proceeded to [Appellant]’s address as
indicated on his license, namely, 4716 Wallace Place,
Philadelphia. After some searching, the officer
located the vehicle in a nearby parking lot, with the
doors unlocked and the keys inside on the floor.
There was no license plate affixed to the Toyota. A
later vehicle search uncovered, inter alia, wet, black
high-top sneakers, wet socks stuck in the sneakers;
and, a wet black hoody. The temporary tag
previously noted on the Toyota was also found
underneath the vehicle’s seat.
-3-
J-A03029-16
Thereafter, Detective Zadroga contacted
[Appellant] and arranged a meeting; however,
[Appellant] failed to show up for the appointment.
Consequently, an arrest warrant was issued for
[Appellant]. Almost one year later, [Appellant] was
apprehended and taken into custody. [Appellant]
subsequently provided a statement to police. In this
statement, [Appellant] admitted that he was in
Whitemarsh Township on Germantown Pike on the
night of the burglary in issue; [Appellant] admitted
that his vehicle was parked on Germantown Pike on
the night of the burglary at issue; [Appellant]
admitted that he drove away from his parking spot
on Germantown Pike and was stopped shortly
thereafter; and, [Appellant] admitted that when the
officer approached his Toyota during the vehicle
stop, he abruptly drove off. However, [Appellant]
did not admit that he was the perpetrator of the
burglary. Instead, [Appellant] denied wearing a
black hoody [sic] on the night in question. He also
claimed that he had a passenger in his vehicle at the
time of the vehicle stop who was the perpetrator of
the burglary. [Appellant] claimed that his
passenger’s name was Boogie/James Johnson.
Trial Court Opinion, 4/29/15, 1-5 (internal citations omitted).
On February 11, 2013, the Commonwealth filed an information at
docket number CP-46-CR-63-2013, charging Appellant with one count of
burglary, three counts of criminal attempt, and one count each of criminal
trespass, PIC, loitering, criminal mischief, REAP, resisting arrest, fleeing
from a police officer, reckless driving, careless driving, driving at an unsafe
speed, and failure to stop at a red signal. At some point, the
Commonwealth also charged Appellant at docket number CP-46-CR-1096-
2013 with one count of unauthorized use of a motor vehicle. On March 26,
2013, the Commonwealth filed an information at docket number CP-46-CR-
-4-
J-A03029-16
1222-2013, charging Appellant with one count of fleeing from a police
officer, and another information at docket number CP-46-CR-1379-2013,
charging Appellant with another count of fleeing from a police officer, as well
as one count each of driving with a suspended license,2 flight to avoid
apprehension, and resisting arrest. On August 27, 2013, the Commonwealth
filed another information at docket number CP-46-CR-4468-2013, charging
Appellant with one count each of receiving stolen property,3 and theft by
unlawful taking.
Appellant proceeded to a two-day bench trial on all charges at docket
number CP-46-CR-63-2013 on April 7, 2014. At the conclusion of which, the
trial court found Appellant guilty on all charges at docket number CP-46-CR-
63-2013. On August 27, 2014, Appellant pled guilty to unauthorized use of
a motor vehicle at docket number CP-46-CR-1096-2013, fleeing from a
police officer at docket number CP-46-CR-1222-2013, flight to avoid
apprehension at docket number CP-46-CR-1379-2013, and theft by unlawful
taking at docket number CP-46-CR-4468-2013. That same day, the trial
court imposed an aggregate sentence of five to ten years’ imprisonment, to
____________________________________________
2
75 Pa.C.S.A. § 1543(a).
3
18 Pa.C.S.A. § 3925(a).
-5-
J-A03029-16
be followed by one year of probation.4 All other charges were nolle prossed.
Appellant filed a timely post-sentence motion on September 5, 2014, which
was denied after a hearing on September 18, 2014. On October 15, 2014,
Appellant filed a timely notice of appeal.5
On appeal, Appellant raises the following eight issues for our review.
1. [Whether t]he trial court erred in finding
[A]ppellant guilty of the burglary and related
charges in that the verdict was against the
weight of the evidence when the trial court
failed to properly consider key factors,
including, but not limited to: that the burglar
was running, [A]ppellant was not out of
breath; the officer’s testimony that it was the
passenger’s side door that opened; the
discrepancy in the description of the burglar
versus [A]ppellant; the fact that [A]ppellant
was not wearing wet clothing; the length of
time between the burglary and the officer’s
supervision of the truck; the discrepancy
____________________________________________
4
Specifically, at docket number CP-46-CR-63-2013, the trial court sentenced
Appellant to four to eight years for burglary, and a concurrent one to two
year sentence of imprisonment for fleeing from a police officer. At docket
number CP-46-CR-1096-2013, the trial court sentenced Appellant to a
consecutive one year term of probation. At docket number CP-46-CR-1222-
2013, the trial court sentenced Appellant to a consecutive one to two year
term of imprisonment for fleeing from a police officer. At docket number CP-
46-CR-1379-2013, the trial court sentenced Appellant to a concurrent term
of one to two years’ imprisonment for flight to avoid apprehension. Finally,
at docket number CP-46-CR-4468-2013, the trial court sentenced Appellant
to a concurrent one and one-half to seven year term of imprisonment for
theft by unlawful taking. Therefore, the aggregate sentence is five to ten
years’ imprisonment, plus one year of probation.
5
Appellant and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925.
-6-
J-A03029-16
between what an expert found about the shoes
and the detective’s assertions[?]
2. [Whether t]he trial court erred in finding
[A]ppellant guilty of the burglary and related
charges in that the verdict was against the
weight of the evidence when the trial court
failed to properly consider the equally plausible
theory that the same key factors led to
innocence[?]
3. [Whether t]he trial court erred in finding
[A]ppellant guilty of the burglary and related
charges in that the verdict was not supported
by sufficient evidence to show that [A]ppellant
was the burglar[?]
4. [Whether t]he trial court erred in allowing the
Commonwealth to engage in burden shifting
when arguing that [A]ppellant failed to give
information to the detective, when at all times
the Commonwealth must show guilt beyond a
reasonable doubt[?]
5. [Whether t]he trial court erred in allowing the
Commonwealth, during closing, to engage in
burden shifting when arguing that [A]ppellant
failed to give a reason for being in
Whitemarsh, when at all times the
Commonwealth must show guilt beyond a
reasonable doubt[?]
6. [Whether t]he trial court erred in not engaging
[A]ppellant in a colloquy about his decision to
waive his right to testify[?]
7. [Whether t]he trial court erred when there was
no on the record colloquy as to the rejection of
the plea offer, and the potential exposure if the
plea was not accepted, therefore, [A]ppellant’s
decision to pursue a trial was not voluntary,
knowing and intelligent[?]
-7-
J-A03029-16
8. [Whether t]he trial court erred in denying the
motion for [a] mistrial requested by the
defense, after Detective Zadroga testified that
[A]ppellant was arrested by another county[?]
Appellant’s Brief at 4-6.
We elect to address Appellant’s third issue first, as the remedy for lack
of sufficient evidence is a discharge order, rather than a new trial.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011). We begin
by noting our well-settled standard of review. “In reviewing the sufficiency
of the evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the [finder of fact’s]
verdict beyond a reasonable doubt.” Commonwealth v. Patterson, 91
A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.
Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its
burden by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Watley, 81
A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and
citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate
court, we must review “the entire record … and all evidence actually
received[.]” Id. (internal quotation marks and citation omitted). “[T]he
trier of fact while passing upon the credibility of witnesses and the weight of
-8-
J-A03029-16
the evidence produced is free to believe all, part or none of the evidence.”
Id. (citation omitted). “Because evidentiary sufficiency is a question of law,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation
omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
Instantly, Appellant avers that the evidence was insufficient on all
charges regarding the element of identity.6 Appellant’s Brief at 26-29. It is
axiomatic that identity is an element of all criminal offenses in Pennsylvania.
Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010), appeal
denied, 21 A.3d 1189 (Pa. 2011). Furthermore, “[e]vidence of identification
need not be positive and certain to sustain a conviction.” Commonwealth
v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc), appeal denied, 54
A.3d 348 (Pa. 2012). “Although common items of clothing and general
physical characteristics are usually insufficient to support a conviction, such
evidence can be used as other circumstances to establish the identity of a
____________________________________________
6
We note that Appellant’s Rule 1925(b) statement did not specify on which
charges other than burglary the Commonwealth failed to present sufficient
evidence of identity. However, we reject the Commonwealth’s assertion that
Appellant has waived this issue under Commonwealth v. Garland, 63 A.3d
339 (Pa. Super. 2013), which requires the Rule 1925(b) statement to specify
which elements of which offenses contained insufficient evidence. As noted
above, identity is an element of every offense in Pennsylvania; therefore, if
the Commonwealth presented sufficient evidence of identity on one offense,
the same evidence would be sufficient for identity on all offenses in this
case. We further reject the Commonwealth’s assertion that Appellant has
waived this issue for lack of development in his brief. See generally
Commonwealth’s Brief at 14-21.
-9-
J-A03029-16
perpetrator.” Id. This Court has previously held that a positive
identification of one eyewitness is satisfactory to overcome a challenge to
the sufficiency of the Commonwealth’s proof of identity. See
Commonwealth v. Patterson, 940 A.2d 493, 502 (Pa. Super. 2007)
(concluding the evidence was sufficient where “the complainant testified
positively and without qualification that [the defendant] perpetrated the
offenses[]”), appeal denied, 960 A.2d 838 (Pa. 2008), citing
Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978).
In this case, the Commonwealth presented the testimony of Robert
Marchozzi, the victim in this case. Marchozzi testified that he fell asleep
around 10:00 p.m. on the night in question when he was woken up by a
loud noise. N.T., 4/7/14, at 15. Marchozzi testified that he discovered a
man who was approximately five feet, nine inches tall, weighing between
190-200 pounds inside his home and running out the front door. Id. at 16-
17. Marchozzi testified that the intruder was wearing a black hooded
sweatshirt. Id. at 17.
The Commonwealth also presented Officer Hannon, who testified that
within minutes of this incident, he patrolled the area with a thermal imaging
device to see which parked vehicles nearby were giving off heat, indicating
they had been used recently. Id. at 38-39. Officer Hannon discovered only
one vehicle, a Toyota Tundra, with a temporary license plate. Id. Officer
Hannon drove by the vehicle three times, trying to peer inside each time.
- 10 -
J-A03029-16
Id. at 39-40. Officer Hannon parked his vehicle about 75 yards from the
Tundra to observe it. Id. at 41. After approximately 15 minutes, Officer
Hannon noticed the interior light of the vehicle illuminate, even though he
had not observed anyone enter the vehicle through the driver’s side door.
Id. at 41-42. The Tundra’s engine started, then the vehicle “immediately
took off[.]” Id. at 42. Officer Hannon activated his emergency lights and
pulled the vehicle over. Id. at 43. Officer Hannon approached the driver
and saw him face-to-face from approximately eight to ten feet away. Id.
Officer Hannon identified the driver as Appellant and testified that he saw no
one else in the vehicle. Id. at 44. Officer Hannon observed Appellant
wearing a black, long-sleeved hooded sweatshirt. Id. at 45. Appellant took
off in the Tundra and led police on a chase, which ended when Appellant got
on eastbound Interstate 76 towards Philadelphia. Id. at 46-47.
The next day, the police, using the license plate and the information
from Appellant’s driver’s license, discovered a Tundra in a parking lot near
Appellant’s residence with no license plate. Id. at 72-73. After obtaining a
search warrant, the police found a black hooded sweatshirt, two pairs of
socks, and a pair of black high-top sneakers, all of which were wet.7 A DNA
sample from one of the wet socks gave a high probable match to Appellant.
Id. at 97.
____________________________________________
7
Officer Hannon testified that when he stopped Appellant in the Tundra on
the night of the burglary, it was raining heavily. Id. at 46.
- 11 -
J-A03029-16
After careful review of the certified record, we conclude Appellant is
not entitled to relief. As noted above, the intruder was identified as wearing
a black hooded sweatshirt inside Marchozzi’s home. Appellant was found
shortly thereafter by Officer Hannon wearing a black hooded sweatshirt near
the scene of burglary, inside the only vehicle police could identify has having
been used recently based on thermal imaging. Based on these
considerations, we conclude the Commonwealth provided sufficient evidence
to establish Appellant’s identity. As a result, Appellant is not entitled to
relief on this issue.
We next address Appellant’s first two issues, which pertain to the
weight of the evidence. See generally Appellant’s Brief at 21-25.
However, before we may address these claims, we must consider whether
Appellant has waived these issues for lack of preservation in the trial court.
Pennsylvania Rule of Criminal Procedure 607 discusses claims pertaining to
the weight of the evidence and provides, in relevant part, as follows.
Rule 607. Challenges to the Weight of the
Evidence
(A) A claim that the verdict was against the weight
of the evidence shall be raised with the trial judge in
a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before
sentencing; or
(3) in a post-sentence motion.
- 12 -
J-A03029-16
Pa.R.Crim.P. 607(A); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time
on appeal[]”). Our Supreme Court has explained that preserving a weight of
the evidence claim in the trial court is important because the failure to do so
“deprive[s the trial] court of an opportunity to exercise discretion on the
question of whether to grant a new trial.” Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood
v. Pennsylvania, 559 U.S. 1111 (2010).
As noted above, Appellant filed a timely post-sentence motion, but he
did not raise any issue pertaining to the weight of the evidence. In addition,
we have reviewed the record and Appellant did not raise this issue at any
time during sentencing or through any other filing preceding sentencing.
Instead, Appellant raised this issue for the first time in his Rule 1925(b)
statement. This was not sufficient to preserve this claim for our review.
See Commonwealth v. Thompson, 93 A.3d 478, 490-491 (Pa. Super.
2014) (concluding weight claim was waived when raised for the first time in
Rule 1925(b) statement even though “the trial court reviewed the substance
of his weight of the evidence claim in its Rule 1925(a) opinion[]”). As a
result, we conclude Appellant’s weight of the evidence claims are waived for
want of preservation.
We elect to next address Appellant’s fourth, fifth, and eighth issues
together for ease of disposition and analysis. In his combined fourth and
- 13 -
J-A03029-16
fifth issues, Appellant avers the Commonwealth engaged in burden shifting
when it argued that he failed to give information to the police and failed to
give police a reason for him being in Whitemarsh Township on the night in
question. Appellant’s Brief at 35-36. Further, in his eighth issue, Appellant
avers that the trial court erred in denying his motion for a mistrial when the
Commonwealth elicited testimony that Appellant was arrested in another
county. Id. at 43.
Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
prosecutor constitutes reversible error. A
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa. Super. 2012) (en
banc) (internal quotation marks and citations omitted), appeal denied, 57
A.3d 65 (Pa. 2012). Likewise, we note the following standard of review for
claims regarding motions for a mistrial.
It is well-settled that 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. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will … discretion is
- 14 -
J-A03029-16
abused. 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
mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation
omitted).
In this case, during its summation, the Commonwealth gave the
following statement.
Finally, [Appellant] goes on to tell you that he
was in the area to meet up with a female from 59th
and Redfield. That’s what he says in his statement.
Clearly, that’s nowhere near Whitemarsh. But
[Appellant] never told Detective Zadroga any reason
why he was in Whitemarsh. He just said he was
meeting up with a female from 59th and Redfield.
N.T., 4/8/14, at 26. Appellant objected on the basis that it violated
Appellant’s right not to testify in his own defense. Id. at 35. The trial court
sustained the objection. Id. Additionally, Appellant moved for a mistrial
during the Commonwealth’s questioning of Detective Zadroga, when the
detective testified that Appellant was arrested by the Philadelphia Police
Department in 2012 on separate charges. N.T., 4/7/14, at 103. Appellant
immediately objected and made a motion to strike, which the trial court
granted. Id. Appellant then moved for a mistrial, which the trial court
denied. Id. at 104-105. On appeal, Appellant argues that he was entitled
- 15 -
J-A03029-16
to a new trial on the basis of the Commonwealth’s and Detective Zadroga’s
improper remarks.
Assuming arguendo that the Commonwealth’s and Detective Zadroga’s
remarks were improper, it does not follow that a new trial is warranted if the
error is harmless. “[A]n error may be considered harmless only when the
Commonwealth proves beyond a reasonable doubt that the error could not
have contributed to the verdict.” Commonwealth v. Luster, 71 A.3d
1029, 1046 (Pa. Super. 2013) (en banc) (citation omitted), appeal denied,
83 A.3d 414 (Pa. 2013).
The Commonwealth bears the burden of establishing
the harmlessness of the error. This burden is
satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or
the prejudice was de minimis; or (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
[e]ffect of the error so insignificant by comparison
that the error could not have contributed to the
verdict.
Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation
omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014).
Furthermore, we note that this was a bench trial. It is axiomatic that
“a trial court, acting as the finder of fact, is presumed to know the law,
ignore prejudicial statements, and disregard inadmissible evidence.”
Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014); see also
- 16 -
J-A03029-16
Commonwealth v. Flynn, 460 A.2d 816, 823 n.13 (Pa. Super. 1983)
(stating that this Court “presume[s] that the [trial] court, which sat as
factfinder in this case, followed its own instructions[]”).
As noted above, the trial court sustained all of Appellant’s objections to
the offending statements. N.T., 4/7/14, at 103; N.T., 4/8/14, at 35. The
trial court specifically noted on the record during the Commonwealth’s
summation that it would “disregard [the] statement” regarding Appellant not
explaining his presence in Whitemarsh Township. N.T., 4/8/14, at 35.
Furthermore, the trial court, in announcing its verdict, specifically noted that
it had not considered Detective Zadroga’s mentioning Appellant’s other
arrest. Id. at 38. Appellant acknowledges that we presume the trial court
followed its own rulings and instructions but argues “[i]t is unknown what
affect [sic] the Commonwealth’s violations … had upon the trial court.”
Appellant’s Brief at 36; see also id. at 44 (same). However, beyond this
bald allegation, Appellant has not pointed to any evidence from the record to
overcome the presumption that the trial court followed the law. In the
absence of any argument in this regard, we agree with the Commonwealth
that any potential error was harmless beyond a reasonable doubt, as
Appellant did not suffer any prejudice. See Luster, supra; Green, supra.
In Appellant’s sixth issue, Appellant argues that the trial court erred in
not conducting a colloquy concerning his waiver of his right to testify in his
own defense. Appellant’s Brief at 37. Confusingly, despite framing the issue
- 17 -
J-A03029-16
in his brief in this manner, Appellant immediately concedes “there is no
requirement to conduct a colloquy, before the decision to waive one’s right
to testify is made.” Id. This is consistent with our cases. See
Commonwealth v. Duffy, 832 A.2d 1132, 1137 n.3 (Pa. Super. 2003),
appeal denied, 845 A.2d 816 (Pa. 2004); accord Commonwealth v. Todd,
820 A.2d 707, 712 (Pa. Super. 2003), appeal denied, 833 A.2d 143 (Pa.
2003). As Appellant concedes that no colloquy is required as a matter of
law, he is not entitled to relief on this issue.
Lastly, we address Appellant’s seventh issue. Therein, Appellant
argues that the trial court erred in not conducting an on-the-record colloquy
as to Appellant’s rejection of a plea offer from the Commonwealth.
Appellant’s Brief at 39-42. Appellant relies exclusively on the United States
Supreme Court’s decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012),
which pertains to claims of ineffective assistance of counsel. This Court has
explained the import of Lafler on Pennsylvania law in the following terms.
Lafler involved a criminal defendant who elected to
proceed to trial rather than plead guilty based upon
counsel’s advice that the [state] would be unable to
prove intent to kill because the defendant shot the
victim below the waist. Lafler, 132 S.Ct. at 1383.
The defendant received a mandatory sentence of
incarceration more than three times longer than had
been offered by the Commonwealth in the initial plea
agreement. Id. It was uncontested that counsel’s
advice “fell below the standard of adequate
assistance of counsel guaranteed by the Sixth
Amendment, applicable to the States through the
Fourteenth Amendment.” Id.
- 18 -
J-A03029-16
Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013). The
Court concluded that Lafler had suffered prejudice and the correct remedy in
such a circumstance was for the state to reoffer the plea agreement.
Lafler, supra at 1391.
As this Court has explained, Lafler pertains to claims involving
ineffective assistance of counsel when trial counsel gives allegedly deficient
advice surrounding a guilty plea offer. However, Lafler does not stand for
the proposition suggested by Appellant, that the trial court is legally required
to perform an on-the-record colloquy regarding every plea offer made by the
Commonwealth and rejected by a defendant. Appellant’s Brief at 40. As
noted above, Appellant relies exclusively on Lafler, and he has cited no
other authority for this proposition. Based on these considerations, we
reject Appellant’s reliance on Lafler, and deem this claim to be without
merit.8
____________________________________________
8
To the extent Appellant’s brief can be read to allege ineffective assistance
of trial counsel, we do not entertain such claims on direct appeal. See
generally Appellant’s Brief at 38. We note that our judgment in this case
does not foreclose Appellant from bringing a claim of ineffective assistance
of counsel pursuant to the Post Conviction Relief Act (PCRA) in the future.
See generally Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013)
(stating that in general, “claims of ineffective assistance of counsel are to be
deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal[]”).
- 19 -
J-A03029-16
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are either waived or devoid of merit. Accordingly, the trial court’s August
27, 2014 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
- 20 -
Com. v. Rashied, A.
Combined Opinion