[J-27-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, No. 700 CAP
Appellee Appeal from the Judgment of Sentence
entered on November 15, 2013 in the
Court of Common Pleas of Philadelphia
v. County, Criminal Division, at No. CP-51-
CR-0000573-2009
OMAR SHARIF CASH, ARGUED: September 9, 2015
RESUBMITTED: January 20, 2016
Appellant
OPINION
JUSTICE TODD DECIDED MAY 25, 2016
In this direct capital appeal, Appellant Omar Sharif Cash challenges the
November 15, 2013 judgment of sentence of death imposed by the Court of Common
Pleas of Philadelphia County after a jury convicted him of first-degree murder and
possession of an instrument of crime (“PIC”). For the reasons that follow, we affirm.
I. Factual and Procedural History
On April 21, 2008, at approximately 3:30 p.m., Appellant shot and killed Muliek
Brown at the Winning Edge Carwash, located on Frankford Avenue in Philadelphia.
The shooting was caught on the carwash’s surveillance video, which showed Brown
cleaning the tire rims of his car and Appellant approaching him from behind and
shooting him in the back of the head. Following the shooting, Appellant fled the scene,
and Robert Green, a carwash employee who watched the shooting take place on a
monitor inside the carwash’s office, called 911. Shortly thereafter, Philadelphia Police
Officer Richard Hayes arrived at the scene and observed Brown lying face down with
his knees on the ground, a bullet hole in his head, and two spent cartridge casings on
the ground next to his body, which ballistics evidence later confirmed were fired from
the same gun. Brown was transported to Temple University Hospital, where he was
pronounced dead the following day. An autopsy later confirmed that Brown died as a
result of a single gunshot wound to the head.
As Officer Hayes was securing the scene, his partner, Officer Pross, was
approached by Marcus Howard, who indicated that he saw a light-complexioned male
with a “Muslim beard” and wearing a black hoodie and Capri shorts — consistent with
Appellant’s appearance — flee the scene. N.T., 11/04/13, at 42. Officer Pross placed
the description over police radio, and Howard later provided a written statement
confirming the description. Green also provided a written statement to the officers, as
well as the carwash surveillance footage of the shooting.
Meanwhile, shortly after the shooting, off-duty Police Officer James Kuzowsky
was driving near the scene when he observed a woman crying in the carwash’s parking
lot. As Officer Kuzowsky approached the woman, he spotted Appellant running from
the carwash. Sensing that something was amiss, Officer Kuzowsky made a U-turn and
began following Appellant to the 2000 block of Buckius Street, where Appellant stopped
outside of a home to speak with two individuals. Officer Kuzowsky turned on his hazard
lights to make it appear as though he was waiting for someone, but Appellant noticed
him, made eye contact, and pulled a black gun out of his sleeve. At that point, Officer
Kuzowsky sped past Appellant, made a right onto Coral Street, and drove toward
Valetta Street, at which time he stopped and exited his vehicle. Continuing to monitor
Appellant’s movement, Officer Kuzowsky watched Appellant climb into a gray Nissan
[J-27-2016] - 2
pickup truck at the intersection of Coral and Buckius Streets, and proceed northbound
on Coral Street. Officer Kuzowsky then returned to his vehicle and began following the
truck at a high rate of speed for approximately two to three minutes until he decided to
end the pursuit for safety reasons.
Over the course of the next few days, Officers Kuzowsky, Green, and Howard
each identified Appellant from a photographic array, and, on April 24, 2008, the police
obtained a warrant for his arrest. Although the police initially were unable to locate
Appellant, they ultimately secured his arrest on May 13, 2008 in New York City.
Appellant was extradited to Philadelphia on August 4, 2008, where he was
subsequently charged with first-degree murder and PIC.
The case proceeded to a jury trial before the Honorable Sandy L. V. Byrd on
November 4, 2013, during which the Commonwealth presented, inter alia, the
surveillance video footage of the murder, which showed Appellant walking back and
forth next to the carwash, and, minutes later, entering the carwash and shooting Brown
from behind; eyewitness testimony from Officers Kuzowsky, Green, and Howard
identifying Appellant as the perpetrator; testimony from several of the investigating
police officers; and testimony from Assistant Medical Examiner Dr. Edwin Lieberman,1
who performed the autopsy on Brown and opined that gunpowder found on the wound
indicated the gun’s muzzle was fired within inches of Brown’s scalp and skull, and that
the bullet entered Brown’s skull and pierced his pituitary gland. N.T., 11/5/13, at 88.
Appellant testified in his own defense, claiming that he had been pursued by
Brown and his compatriots in the days leading up to the incident, and that, as a result,
1 The trial court’s Pa.R.A.P. 1925(a) opinion refers to Dr. Lieberman as “Dr. Edward
Lieberman.” Trial Court Opinion, 12/23/14, at 3. However, the transcript refers to Dr.
Lieberman as “Dr. Edwin Lieberman.” N.T., 11/5/13, at 81.
[J-27-2016] - 3
he shot Brown out of passion and fear for his life. Specifically, he described that, on the
night of Friday, April 18, 2008, he was conversing outside of a bar with the family of his
acquaintance “Weewee,” who indicated that a “guy with a beard” recently had stolen a
gun from one of them. N.T., 11/6/13, at 66-68. Appellant detailed that, the next day, he
was at the bar shooting pool with Brown, Weewee, Bobby Harris, and a man named TJ,
when the men began asking whether anyone had heard about someone taking the gun
or had seen anyone trying to sell a gun. Appellant testified that he informed the group
that he knew who had the gun, but that the man “wasn’t going to just give it back to
them.” Id. at 71. He then recounted that he told the group that the man wanted $400
for the gun, but emphasized that “[he] wasn’t just going to send them around there to
him because [he] would have to worry about it coming back here to [him] trying to do
something to me for doing something to him.” Id. at 72. Appellant explained that, at
that point, the men thought that he was trying to cover for the man who stole the gun,
which caused the conversation to escalate, and ultimately resulted in security asking the
men to leave. Appellant testified that, as they were leaving, the men told him “It’s cool.
We won’t holler at you,” which Appellant viewed as an indication that they were
“probably going to try to do something to me.” Id.
According to Appellant, early in the morning of April 21, he was walking to a
friend’s house when Weewee appeared across the street and fired shots at him, grazing
his neck. Appellant stated that TJ and Brown — whom he described as carrying an AR-
15 firearm — were also pursuing him, but he was able to run away. Appellant noted
that he had additional encounters with the men twice more that day, leaving him
“scared,” “upset,” and with “no regard for anything at that point.” Id. at 88-89. Appellant
then described that, approximately 15 to 30 minutes after his last encounter with Brown,
he was walking past the carwash when he noticed Brown’s car parked inside. Appellant
[J-27-2016] - 4
related that, at that point, he “was so enraged and scrambled that . . . [his] passions
[were] inflamed” and he believed that “either [he] was going to get killed or [he] would
have to kill one of them,” or “this ain’t going to stop,” ultimately causing him to “snap”
and shoot Brown inside the carwash. Id. at 92-93.
Appellant’s counsel sought a voluntary manslaughter charge, which the trial court
denied. The jury later convicted Appellant of both crimes, and the trial proceeded to the
penalty phase, during which the Commonwealth offered evidence regarding Appellant’s
prior murder, kidnapping, robbery, and rape convictions stemming from a 2008 incident,
and Appellant offered evidence that he suffered from anti-social personality disorder
and a troubled upbringing. At the conclusion of the penalty hearing, the jury found one
aggravating factor — that Appellant had a significant history of violent felony
convictions2 — as well as several circumstances satisfying the “catchall” mitigating
factor concerning Appellant’s character and record.3 Ultimately, the jury concluded the
aggravating factor outweighed the mitigating factor, and it returned a sentence of death,
which the trial court imposed on November 15, 2013. Thereafter, Appellant filed a post-
sentence motion challenging, inter alia, the weight of the evidence supporting the jury’s
verdict. The trial court denied the motion, and Appellant filed the instant direct appeal,
raising nine issues. We address them seriatim.
II. Analysis
A. Sufficiency of the Evidence
2 42 Pa.C.S. § 9711(d)(9).
3 42 Pa.C.S. § 9711(e)(8).
[J-27-2016] - 5
Appellant first argues the evidence was insufficient to sustain his first-degree
murder conviction because the Commonwealth failed to prove that he acted with malice
when he killed Brown.4 Specifically, Appellant contends that, rather than acting with
malice, he acted out of fear that he would be killed by Brown and his cohorts, claiming
that he had been shot at and “terrorized” by the men shortly before the incident, which
prompted him to take “preemptive action.” Appellant’s Brief at 16.
By contrast, the Commonwealth maintains that the evidence was indeed
sufficient to sustain Appellant’s first-degree murder conviction because Appellant snuck
up behind Brown and shot him in the back of the head, a shooting to a vital part of the
body from which malice may be inferred. The Commonwealth highlights that the
murder was captured on a surveillance video and showed Appellant’s face; that
Appellant was identified as the perpetrator by three different individuals; and that
Appellant fled the city and state after committing the crime, evidencing his
consciousness of guilt. Additionally, the Commonwealth asserts that the jury was
entitled to discredit Appellant’s account of the events leading to the murder and that,
even if the jury believed Appellant’s testimony, such testimony could not establish a lack
of malice because Appellant had sufficient time to cool off after the alleged provocation.
In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that the
Commonwealth’s evidence — which the court noted included video footage of Appellant
“stealthily” approaching Brown and shooting him the back of the head; testimony from
the medical examiner regarding the close proximity of the gun to Brown’s head;
4 Initially, Appellant baldly suggests that he “must be awarded an arrest of judgment on
all charges” based on the sufficiency of the evidence; however, he only discusses the
evidence regarding his first-degree murder conviction. Appellant’s Brief at 14. Thus,
we address Appellant’s sufficiency claim only with respect to his first-degree murder
conviction.
[J-27-2016] - 6
Appellant’s own admission to shooting Brown; and Appellant’s subsequent flight from
the scene — “clearly” was sufficient to prove beyond a reasonable doubt that Appellant
committed first-degree murder. Trial Court Opinion, 12/23/14, at 11, 12.
Although Appellant’s challenge to the sufficiency of the evidence focuses
exclusively on whether the evidence was sufficient to prove that he acted with malice, it
is this Court’s well established practice in direct appeals from the imposition of a
sentence of death to review the sufficiency of the evidence presented with respect to
each of the elements necessary to sustain a first-degree murder conviction. See
Commonwealth v. Parrish, 77 A.3d 557, 561 (Pa. 2013). In so doing, we determine
“whether the evidence admitted at trial, and all the reasonable inferences derived
therefrom viewed in favor of the Commonwealth as verdict winner, supports the jury’s
finding of all the elements of the offense beyond a reasonable doubt.” Commonwealth
v. Smith, 985 A.2d 886, 894-95 (Pa. 2009).
To sustain a conviction for first-degree murder, the Commonwealth must
establish beyond a reasonable doubt that: (1) a human being was unlawfully killed; (2)
the defendant was responsible for the killing; and (3) the defendant acted with malice
and the specific intent to kill. Commonwealth v. Laird, 988 A.2d 618, 624-25 (Pa. 2010).
The Crimes Code defines an intentional killing as a “willful, deliberate and premeditated
killing.” 18 Pa.C.S. § 2502(d). It is well settled that “[p]remeditation and deliberation
exist whenever the assailant possesses the conscious purpose to bring about death,”
and “can be formulated in a fraction of a second.” Commonwealth v. Jordan, 65 A.3d
318, 323 (Pa. 2013).
Based upon our thorough review of the record, we conclude the evidence viewed
in the light most favorable to the Commonwealth as verdict winner was sufficient to
prove beyond a reasonable doubt that Appellant committed first-degree murder. As
[J-27-2016] - 7
discussed above, the carwash surveillance video clearly showed Appellant approach
Brown from behind and shoot him in the back of the head, three witnesses identified
Appellant as the perpetrator, and Appellant confessed to killing Brown. The fact that
Appellant placed a gun to the back of Brown’s head and pulled the trigger is itself
sufficient to establish malice, see Commonwealth v. Mikell, 729 A.2d 566, 569 (Pa.
1999) (“act of placing a gun to the back of [the victim’s] head and pulling the trigger
evinced actual malice”), and, in any event, the specific intent to kill may be inferred
where, as here, the accused uses a deadly weapon on a vital part of the victim’s body.
Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011). Moreover, while Appellant
claims that he did not act with malice because he shot Brown out of passion and fear
resulting from Brown’s alleged pursuit of him earlier that day, even if it believed
Appellant’s account of the events leading up to the murder, the jury could have
reasonably concluded under the evidence presented — including video footage of
Appellant walking back and forth outside of the carwash several minutes prior to the
murder — that any provocation had dissipated by the time Appellant shot Brown.
Accordingly, the evidence of record fully supports Appellant’s first-degree murder
conviction regardless of Appellant’s claimed version of events.
B. Weight of the Evidence
In a related argument, Appellant contends that he is entitled to a new trial
because the guilty verdict for first-degree murder was against the weight of the
evidence. Specifically, Appellant maintains that the “greater weight of the evidence”
introduced at trial — namely, his testimony — established that, based upon Brown’s
actions earlier that day and in days prior, he reasonably believed that Brown and his
cohorts were going to kill him. Appellant’s Brief at 17. Thus, according to Appellant, the
[J-27-2016] - 8
weight of the evidence proves that he killed Brown as a result of fear, passion, and
provocation, rather than malice.
The Commonwealth responds by emphasizing that Appellant’s claim is based
solely upon his own self-serving, unsupported testimony, which it suggests lacks
credibility, given that Appellant has prior crimen falsi convictions. The Commonwealth
further opines that it was within the jury’s province as the finder-of-fact to reject
Appellant’s version of the events leading to the murder, and argues that, in doing so, the
jury’s verdict was “soundly” based on the evidence of record, which overwhelmingly
established that Appellant killed Brown with malice and specific intent and, thus, did not
shock one’s sense of justice. Commonwealth’s Brief at 22.
Similarly, in addressing Appellant’s claim, the trial court noted that the record
indicated that the jury considered all of the evidence during its deliberations and that
Appellant failed to identify any particular fact which the jury should have given greater
weight. Thus, the court opined that the verdict “could in no way be said to shock one’s
sense of justice.” Trial Court Opinion, 12/23/14, at 13.
The decision to grant or deny a motion for a new trial based upon a claim that the
verdict is against the weight of the evidence is within the sound discretion of the trial
court. Commonwealth v. Cousar, 928 A.2d 1033, 1036 (Pa. 2007). Thus, “the function
of an appellate court on appeal is to review the trial court’s exercise of discretion based
upon a review of the record, rather than to consider de novo the underlying question of
the weight of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa.
2009). An appellate court may not overturn the trial court’s decision unless the trial
court “palpably abused its discretion in ruling on the weight claim.” Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003). Further, in reviewing a challenge to the
weight of the evidence, a verdict will be overturned only if it is “so contrary to the
[J-27-2016] - 9
evidence as to shock one’s sense of justice.” Commonwealth v. Diggs, 949 A.2d 873,
879 (Pa. 2008).
Here, Appellant’s claim is grounded entirely on his opinion that the jury should
have given more weight to his unsubstantiated testimony that he acted out of passion
and fear than to the overwhelming evidence of his guilt offered by the Commonwealth.
We may not find that the trial court abused its discretion in rejecting his weight of the
evidence claim under such circumstances. Moreover, it was entirely within the jury’s
province as the finder-of-fact to believe the evidence presented by the Commonwealth
— which fully supported the jury’s verdict — and to discredit Appellant’s testimony, as it
apparently did here. See Commonwealth v. Smith, 861 A.2d 892, 896 (Pa. 2004)
(finding that jury’s decision not to credit appellant’s statement does not indicate that
appellant’s guilty verdict was against the weight of the evidence). Accordingly, because
Appellant cannot demonstrate that his guilty verdict so shocked one’s sense of justice
as to lead to the conclusion that the trial court abused its discretion in declining to grant
relief, Appellant’s second claim fails.
C. Voluntary Manslaughter Charge
Appellant next asserts that the trial court erred in refusing to charge the jury on
voluntary manslaughter, again claiming that his testimony established that he killed
Brown out of fear, passion, and provocation resulting from Brown’s prior attempts to
shoot him. Appellant suggests that this testimony provided a sufficient basis to charge
the jury on voluntary manslaughter; that it was possible that the jury would have
returned a verdict of voluntary manslaughter if such a charge had been given; and, thus,
because of the absence of this charge, that he is entitled to a new trial.
[J-27-2016] - 10
Conversely, the Commonwealth responds that a voluntary manslaughter
instruction was not warranted because the evidence would not have reasonably
supported a verdict on that basis. The Commonwealth reasons that, rather than
showing that Appellant suddenly committed the murder out of passion or fear, the
surveillance video showed Appellant put on a hood, sneak up behind Brown without
being detected, put a gun to Brown’s head, and shoot him, thereby demonstrating that
Appellant’s actions were deliberate and methodical. Additionally, the Commonwealth
contends that, even accepting Appellant’s claims that Brown and his cohorts shot at him
earlier that morning, the alleged attack occurred hours before Appellant killed Brown,
providing Appellant with ample opportunity to cool off after the supposed provocation.
Consistent with the Commonwealth’s position, the trial court reasoned that it did
not abuse its discretion in denying Appellant’s request for a voluntary manslaughter
charge because such an instruction was not supported by the facts of this case.
Specifically, the trial court noted that Appellant’s claim that he acted under a sudden
and intense passion lacked evidentiary support, as Appellant failed to offer any
witnesses to support his version of events and never contacted law enforcement to
report the shooting which allegedly had occurred earlier that day. The court further
reasoned that, even assuming that the jury believed Appellant’s story, there was a
sufficient amount of time between the alleged provocation and the time in which
Appellant spotted Brown at the carwash for Appellant to “engage in cool reflection to
realize that killing another was not the best course of action.” Trial Court Opinion,
12/23/14, at 26.
It is well settled that a voluntary manslaughter instruction “is warranted only
where the offense is at issue and the evidence would support such a verdict.”
Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013) (quoting Commonwealth v.
[J-27-2016] - 11
Montalvo, 986 A.2d 84, 100 (Pa. 2009) (internal quotation marks omitted)). To support
a verdict for voluntary manslaughter, the evidence must show that, at the time the
appellant killed the victim, he “acted under a sudden and intense passion resulting from
serious provocation by the victim.” Montalvo, 986 A.2d at 100. The test for “adequate
provocation remains whether a reasonable man, confronted with this series of events,
became impassioned to the extent that his mind was incapable of cool reflection.”
Commonwealth v. McCusker, 292 A.2d 286, 290 (Pa. 1972).
Here, rather than establishing that Appellant acted under a sudden and intense
passion at the time he killed Brown, the evidence of record — including, most notably,
the carwash surveillance video showing Appellant deliberately approach Brown from
behind and shoot him in the back of the head — evinced that Appellant acted with
malice and the specific intent to kill. While Appellant testified that he killed Brown out of
passion and fear resulting from allegedly having been provoked earlier that day by
Brown and his cohorts, and while he suggests that such testimony was sufficient to
support a verdict for voluntary manslaughter, critically, Appellant’s testimony did not
establish that he was acting under a sudden and intense passion at the time he killed
Brown. Rather, as the Commonwealth has noted, Appellant’s testimony, even if
believed, indicates that Appellant had last been pursued by Brown at least 15 to 30
minutes prior to the incident, rendering Appellant more than capable of cool reflection by
the time he approached Brown from behind at the carwash and shot him in the back of
the head. Moreover, the surveillance footage showing Appellant walking back and forth
outside the carwash minutes before the murder further supports such a conclusion, as it
shows that Appellant was not acting in a fit of passion, but, rather, was carefully
deliberating about whether to enter the carwash. Accordingly, the record did not
[J-27-2016] - 12
warrant a voluntary manslaughter charge, and, thus, the trial court did not abuse its
discretion in refusing to provide the jury with such an instruction.
D. Prosecutorial Misconduct
In his next claim, Appellant posits that the trial court erred in failing to grant a
mistrial as a result of prosecutorial misconduct. Specifically, during his closing
argument, the prosecutor made several comments describing that Appellant “executed”
Brown and referring to the murder as an “execution.” N.T., 11/7/13, at 20, 24, 25, 35.
The prosecutor also twice described the alleged pursuit of Brown and his cohorts on
Appellant as “g[ue]rilla warfare.” Id. at 20, 21. Appellant’s counsel objected to these
comments, and, while the trial court overruled the objection pertaining to the guerilla
warfare comment, it ultimately sustained the objection to the prosecutor’s use of the
word “execution” and instructed the jury to “[d]isregard the word ‘execution.’” Id. at 35.
Later, before the trial court began charging the jury, Appellant’s counsel moved for a
mistrial based upon the prosecutor’s comments. The trial court offered to give the jury
an additional curative instruction, which Appellant’s counsel declined, and, thereafter,
the court denied the motion. Appellant claims the prosecutor’s comments were an
improper expression of his personal opinion, unfairly prejudiced the jury, and deprived
him of a fair trial, and he asserts that the trial court’s failure to grant a mistrial under
these circumstances was manifestly unreasonable.
The Commonwealth, conversely, argues that the trial court properly declined to
award a mistrial, explaining that the prosecutor’s reference to the murder as an
“execution” did not prejudice Appellant because it was an accurate way to describe the
murder, and that the prosecutor’s reference to “guerilla warfare” was not prejudicial
[J-27-2016] - 13
because it merely described the attacks that Appellant had claimed other individuals
directed against him.
In reviewing this claim, the trial court concluded that it did not err in refusing to
grant a mistrial because the prosecutor’s comments merely supported his argument that
Appellant’s killing was intentional, and were a permissible response to Appellant’s
characterization of the killing. The court further explained that, even if the prosecutor’s
comments were inappropriate, the court issued curative instructions to diminish any
potential prejudice, and it later offered to issue an additional curative instruction, which
counsel declined.
A prosecutor “has great discretion during closing argument” and is “free [to
present] his [or her closing] arguments with logical force and vigor.” Commonwealth v.
Eichenger, 108 A.3d 821, 836 (Pa. 2014) (citation omitted). Thus, we will allow
“vigorous prosecutorial advocacy” if “there is a reasonable basis in the record for the
[prosecutor’s] comments.” Commonwealth v. Robinson, 864 A.2d 460, 516 (Pa. 2004)
(internal quotation marks omitted). Stated differently, “[p]rosecutorial comments based
on the evidence or reasonable inferences therefrom are not objectionable, nor are
comments that merely constitute oratorical flair.” Commonwealth v. Chmiel, 30 A.3d
1111, 1146 (Pa. 2011). In reviewing an allegation of prosecutorial misconduct, we will
find that “[c]omments by a prosecutor constitute reversible error only where their
unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and
hostility toward the defendant such that they could not weigh the evidence objectively
and reach a fair verdict.” Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008).
Our review of a trial court’s denial of a motion for a mistrial “is limited to
determining whether the trial court abused its discretion.” Commonwealth v.
Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (internal quotation marks omitted). A trial
[J-27-2016] - 14
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.” Commonwealth v.
Simpson, 754 A.2d 1264, 1272 (Pa. 2000). A mistrial “is not necessary where
cautionary instructions are adequate to overcome prejudice.” Commonwealth v.
Chamberlain, 30 A.3d 381, 422 (Pa. 2011).
Turning to the prosecutor’s statements at issue in the instant case, we find that
Appellant is not entitled to relief. First, with respect to the prosecutor’s use of the word
“execution,” the trial court sustained counsel’s objection and instructed the jury to
disregard the term. As the jury is presumed to follow the court’s instructions, Appellant
cannot demonstrate that he was prejudiced by the prosecutor’s comments in this
regard. See Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003). In any event, we
have consistently found that a prosecutor’s use of the word “execution” is not prejudicial
where, as here, it accurately describes the manner in which the murder was committed.
See, e.g., Commonwealth v. Freeman, 827 A.2d 385, 409 (Pa. 2003) (holding that
prosecutor’s characterization of murders as “executions” was “neither inaccurate nor
particularly prejudicial” where the appellant, unprovoked, shot his victims in the head
and face). Second, as to the prosecutor’s use of the phrase “guerilla warfare,” we note
that the reference described Brown’s actions, rather than Appellant’s, and we agree with
the Commonwealth that it was a fair description of Appellant’s testimony about the
alleged violent hunt for him prior to the murder. Accordingly, we find the prosecutor’s
comments were reasonably based on the evidence of record, did not prejudice
Appellant, and, thus, the trial court did not abuse its discretion in refusing to grant a
mistrial.
E. Improper Cross-Examination
[J-27-2016] - 15
Appellant next argues that the trial court erred in refusing to grant a mistrial after
the prosecutor improperly cross-examined him. Specifically, during the guilt phase of
Appellant’s trial, the prosecutor cross-examined Appellant regarding Bobby Harris, one
of the men whom Appellant testified was present at the bar when Appellant told the
group at the bar that he knew who had stolen the gun. Notably, although Appellant did
not call Harris as a witness, he apparently had previously indicated that he desired to
call him as a witness, and the prosecutor questioned Appellant regarding that fact as
follows:
Q: You are reading every piece of paper that the police got,
correct?
A: Yes.
Q. One of the witnesses you want was a guy named Bobby
Harris.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
BY [ASSISTANT DISTRICT ATTORNEY]:
Q. You read his statement, right?
A. Yes, I read it.
Q. You had the Court bring him to this building.
[DEFENSE COUNSEL]: Objection. Can I see
you at sidebar?
THE COURT: No.
THE WITNESS: Yes.
BY [ASSISTANT DISTRICT ATTORNEY]:
[J-27-2016] - 16
Q. He said that little boy said you robbed him, you took the
gun. He told everybody you did it, not some guy with a
beard, but you, because he knew you. Do you agree?
[DEFENSE COUNSEL]: Objection. Move for a
mistrial.
THE COURT: Motion denied. Sustained.
Q. Did anybody accuse you, not a guy with a beard, but you
[of] robbing a little boy?
A. Nobody never told me that, no.
N.T., 11/6/13, at 109-10.
At the close of examination, Appellant’s counsel renewed the motion for a
mistrial:
DEFENSE COUNSEL: Respectfully, at this point, I renew
my motion for mistrial based on several grounds. . . . [A]ll the
questions that were posed about these various individuals
that the defendant wanted to testify, he has no obligation to
present a defense, and any references to wanting to call
people or things of that sort I think is extremely prejudicial. I
submit that it’s inappropriate. Therefore, I renew my motion
for mistrial.
Id. at 137. The trial court denied the motion, but it offered to issue a curative instruction
directing the jury that a defendant is under no obligation to call witnesses and that it
should disregard any questioning regarding potential witnesses. Appellant declined the
trial court’s offer to issue such an instruction. Id. at 137-38.
Presently, Appellant contends that the trial court should have granted a mistrial in
response to the prosecutor’s improper cross-examination because the questioning was
irrelevant, “infest[ed] the case with blatant hearsay,” and violated his right to
confrontation as guaranteed by Crawford v. Washington, 541 U.S. 36, 68 (2004).
Appellant’s Brief at 25. While Appellant concedes that he declined the trial court’s offer
to issue a curative instruction, he maintains that he did so because “no instruction could
[J-27-2016] - 17
possibly cure the gross misconduct engaged in by the prosecution,” and he argues that
he is entitled to a new trial. Appellant’s Brief at 26.
In response, the Commonwealth maintains that Appellant waived his hearsay
and confrontation claims because he failed to raise them below, instead requesting a
mistrial based upon his theory that the testimony implied that he had the obligation to
present a defense. As to the merits of Appellant’s claim, the Commonwealth argues
that the first two questions to which Appellant objected — whether Harris was one of the
witnesses Appellant “wanted” and whether he had the court bring him to the building —
were “merely prefatory” and not prejudicial, and it points out that Appellant’s remaining
objection regarding Harris’s statement was sustained by the trial court, thereby resulting
in no prejudice. Commonwealth’s Brief at 39. The Commonwealth further suggests
that, because Appellant declined the trial court’s offer to issue a curative instruction
which would have cured any possible prejudice resulting from the prosecutor’s question
concerning Harris’s statement, he may not now claim the trial court erred in denying his
request for a mistrial.
The trial court addressed Appellant’s claims on the merits. The court explained
that it did not err in overruling Appellant’s objection to the prosecutor’s question
regarding whether Appellant had wanted to call Harris as a witness because the
question would have aided in rebutting Appellant’s version of how the events occurred
leading up to the incident. As to the prosecutor’s question concerning the content of
Harris’s statement, the court noted that it sustained Appellant’s objection and that the
Commonwealth properly rephrased the question to avoid hearsay concerns. The court
further opined that any possible prejudice that Appellant might have suffered as a result
of the improper cross-examination could have been cured by the issuance of a
cautionary instruction, which Appellant refused, but that, in any event, the jury was
[J-27-2016] - 18
previously instructed on how to treat sustained objections and any answers obtained
therefrom, which the court found was “more than sufficient to guide the jury” under
these circumstances. Trial Court Opinion, 12/23/14, at 22.
Despite the trial court’s thoughtful analysis below, we need not reach the merits
of Appellant’s claims. As illustrated above, Appellant objected to the prosecutor’s line of
questioning on the grounds that it implied that he had an obligation to present a
defense, rather than, as he now asserts, because the questioning was irrelevant,
constituted hearsay, or violated his right to confront witnesses. Accordingly, Appellant’s
present claims are waived. See Commonwealth v. Walter, 119 A.3d 255, 264 (Pa.
2015) (finding that appellant waived her claim that the Commonwealth’s cross-
examination violated her right against self-incrimination because she objected to the
questioning on a different basis at trial); 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.”).
F. Slow Motion Surveillance Video Footage
Next, in a one-paragraph argument, Appellant contends that the trial court
abused its discretion in allowing the prosecutor to play surveillance video footage of the
murder in slow motion. As discussed in detail above, during the guilt phase of
Appellant’s trial, the prosecutor played the jury the carwash surveillance video, which
showed the events leading up to the shooting, as well as the shooting itself. The video
depicted the events in real-time, but certain portions of the footage, which were clearly
marked “SLOW MOTION,” were repeated in slow motion at one-tenth of the video’s
original speed in order to allow the jury to have a better view of Appellant’s face and to
draw the jury’s attention to a flash coming from the gun indicating that a second gunshot
had been fired. Before the prosecutor played the video, Appellant’s counsel objected,
[J-27-2016] - 19
arguing that the jury should be permitted to view the video only once at its actual speed.
The trial court overruled the objection, concluding that it would be a “travesty” if the
prosecutor were not permitted to slow the video down to allow the jury to see what was
depicted therein. N.T., 11/5/13, at 108.
Thereafter, the Commonwealth played the video one time in its entirety, and then
played it a second time to allow Detective Thorsten Lucke, a Philadelphia Police Officer
and expert in forensic video recovery analysis, to narrate and explain to the jury any
alterations he made to the speed of the footage or the camera angles that were shown.5
The trial court later instructed the jurors that the video was admitted into evidence “for
the purpose of showing the nature of the wound received by the decedent, showing the
conditions at the scene of the crime and helping [them] understand the testimony of
witnesses who referred to it,” and it cautioned that they “should not let [the video] stir up
[their] emotions to the prejudice of the defendant.” N.T., 11/7/13, at 38.
Appellant presently challenges the trial court’s decision to allow the prosecutor to
play the surveillance video in slow motion. Specifically, Appellant contends that,
because his actions depicted in the video were not performed in slow motion, the slow
motion video distorted the actual events to promote a finding of malice and
premeditation, rendering the video irrelevant under Pa.R.E. 401 and unduly prejudicial
under Pa.R.E. 403. As a result, Appellant maintains that he is entitled to a new trial.
By contrast, the Commonwealth maintains that the video was properly admitted.
The Commonwealth emphasizes that, although slow motion video footage distorts
5 The carwash surveillance system used two cameras. Detective Lucke took certain
excerpts of footage from each camera and spliced them together to create the video
which was shown to the jury. N.T., 11/5/13, at 104. Additionally, Detective Lucke
edited part of the slow motion portion of the video to zoom in on Appellant’s face.
Appellant does not challenge the use of multiple camera angles in the video or the use
of zooming.
[J-27-2016] - 20
reality in a sense, such video nevertheless is admissible if it will aid the jury’s
understanding and if it is more probative than prejudicial. Turning to the instant case,
the Commonwealth explains that the slow motion video footage enhanced the jury’s
understanding of the events surrounding the shooting because it showed the nature of
Brown’s wounds and the conditions at the crime scene, and it gave the jurors a better
opportunity to see Appellant’s face and that he had fired two shots at Brown. The
Commonwealth further asserts that the video was not prejudicial because the
prosecutor initially showed the video at full speed, allowing the jury to observe the
actual speed at which the crime occurred; the portions of the video shown in slow
motion were clearly marked as such; and the trial court instructed the jury regarding the
purposes for which the video was admitted.
Consistent with the Commonwealth’s position, the trial court found that it did not
err in admitting the slow motion video footage, as the video was relevant to show the
nature of Brown’s wound and the conditions of the crime scene; enhanced the jury’s
understanding of the witness’ testimony regarding the shooting; and its content was not
altered or distorted. Additionally, the court highlighted that it issued a cautionary
instruction with regard to the video, thus alleviating any possible prejudice.
With respect to the admissibility of slow motion video into evidence, this Court
has held that such representations are not prohibited, and that “the standard to be
applied by the trial court is the same as it is for the admission of other evidence. It must
be relevant and material and its probative value must outweigh its prejudicial impact.”
Commonwealth v. Jordan, 65 A.3d 318, 329 (Pa. 2013) (quoting Commonwealth v.
Hindi, 631 A.2d 1341, 1345 (Pa. Super. 1993) (internal quotation marks omitted)).
Thus, as with the admissibility of other types of evidence, “the admissibility of a slow-
[J-27-2016] - 21
motion videotape rests within the sound discretion of the trial court, and we will not
reverse absent an abuse of discretion.” Jordan, 65 A.3d at 329.
We cannot conclude that the trial court abused its discretion by admitting the
slow motion surveillance video footage in the instant case. While Appellant is correct
that playing portions of the video in slow motion distorted the events shown therein, we
have nevertheless permitted such manipulation where it “enhance[d] the jury’s
understanding” and where the use of “slow motion . . . is more probative than
prejudicial.” Id. As the Commonwealth has highlighted herein, playing portions of the
video in slow motion enhanced the jury’s understanding of the events surrounding the
murder by allowing it to have a better view of Appellant’s face, thereby establishing
Appellant’s identity as the perpetrator, and by giving it the opportunity to observe that
two shots had been fired from Appellant’s gun, a detail which was not readily
ascertainable when the video was played at normal speed. Moreover, we find that the
probative value of the slow motion footage outweighed any potential for prejudice,
particularly given that: the jury was first shown the scenes at normal speed, which
allowed it to see the true timing of the events as they transpired; the slow motion
footage was clearly marked as such; and the trial court specifically instructed the jury
regarding both the purposes for which it was to consider the video footage and the fact
that it should not allow the video to inflame their passions against Appellant.
Accordingly, the trial court properly exercised its discretion in allowing portions of the
surveillance video to be played in slow motion, and Appellant is not entitled to a new
trial on this basis.
G. Request to Individually Colloquy Jurors
[J-27-2016] - 22
In his next claim, Appellant asserts that the trial court abused its discretion in
denying trial counsel’s request to individually colloquy each juror regarding a newspaper
article,6 published by the Philadelphia Inquirer immediately before the penalty phase of
his trial, which discussed the upcoming penalty phase and his criminal history.
Significantly, the article referenced, inter alia, prior unrelated charges against Appellant
for rape, robbery, and attempted murder, which were later dismissed, as well as the fact
that Appellant was serving a sentence of life imprisonment in another case in which he
was convicted of kidnapping, murder, and rape. On November 12, 2013, immediately
before the penalty hearing commenced, Appellant’s counsel brought the article to the
trial court’s attention during a sidebar conference and requested that the court interview
the jurors individually to ensure that none of them had been influenced by the article.
The trial court declined to individually colloquy the jurors, noting that it had instructed
the jury on multiple occasions throughout the trial to avoid media coverage of the case
and that it had no reason to believe that the jury did not follow its instructions. However,
the trial court later elected to address the full jury as follows:
THE COURT: Ladies and gentlemen of the jury, that will
conclude the evidence for today.
There is another subject I must address with the 12 of
you.
As you know, I have instructed you, ladies and
gentlemen, on a daily basis from the start of this case that
you are to avoid any outside influence. Indeed, I instructed
you that the only information you may have relevant to this
case is that which is offered in this courtroom in the course
of the trial.
6 In his brief, Appellant references multiple “articles”; however, the notes of testimony
indicate that Appellant’s counsel complained of only one article. See N.T., 11/12/13, at
12.
[J-27-2016] - 23
To that end, specifically I instructed you to avoid
watching or listening to or reading anything that might be in
the media about this case.
We are now at the point where I must ask all of you
directly whether or not you have followed that instruction.
If any of you have not followed my instruction to avoid
media coverage of this case, please raise your hand.
N.T., 11/13/13, at 156-57. No juror indicated that it had failed to follow the trial court’s
instruction.
Appellant contends that the trial court abused its discretion in refusing to colloquy
the jurors individually regarding whether the jurors had seen the newspaper article and
that, as a result, he is entitled to a new trial. While Appellant notes that he does not
know whether the jury was influenced by the article, he suggests that “the chances of
one or more jurors having been improperly influenced are reasonable,” and that such
influence would have had a “catastrophic” impact on the outcome of his penalty hearing
because it could have “tipped one or more jurors into voting for death.” Appellant’s Brief
at 28.
In response, the Commonwealth maintains that Appellant waived this claim
because, although Appellant’s counsel initially requested that the court question each of
the jurors individually about the article, he did not object when the trial court later
addressed the jury as a group. In any event, the Commonwealth emphasizes that the
trial court repeatedly instructed the jury to avoid media reports about the case, and that
it later reminded the jury of its prior instruction and asked the jurors whether any of them
failed to follow that instruction. The Commonwealth asserts that the court’s decision to
address the jurors collectively was consistent with this Court’s precedent, and that the
jury is presumed to have followed the trial court’s instruction.
[J-27-2016] - 24
In its opinion below, the trial court opined that it did not err in denying Appellant’s
request in light of the fact that it had given the jury multiple instructions throughout the
trial to avoid media accounts of this case, including daily instructions before the court
recessed for lunch and before it adjourned for the evening, another instruction
immediately after the jury returned its verdict, and additional instructions throughout the
penalty phase. Thus, given the “repetitive and consistent nature” of its instructions, as
well as the fact that the jury indicated that it had followed the instructions and was not
exposed to any outside media influences, the court concluded that Appellant was not
unfairly prejudiced by its decision to deny his request and, thus, is not entitled to a new
trial. Trial Court Opinion, 12/23/14, at 39.
Where, as here, the potential exists for prejudicial materials to reach the jury, the
trial court “must take appropriate protective action” based upon the circumstances of the
case to “reasonably ensure that no prejudice will occur.” Commonwealth v. Bruno, 352
A.2d 40, 51 (Pa. 1976). We review the measures that a trial court takes to guarantee
that a defendant receives a fair trial “in the face of prejudicial publicity” for an abuse of
discretion. Id. at 48.
In light of the fundamental rights at stake when prejudicial material is publicized
during trial, we have explained that the preferred procedure under such circumstances
is “to question the jurors individually, out of the presence of other jurors.” Id. at 52. We
recognize, however, that “questioning jurors as a group or giving special precautionary
instructions may be a sufficient precaution depending on the facts of the case.” Id. This
Court found such efforts to be more than sufficient in Commonwealth v. DeJesus, 880
A.2d 608 (Pa. 2005), wherein the publicity at issue consisted of only one newspaper
article, and where the trial court had “affirmatively directed the jury not to read or watch
[J-27-2016] - 25
the news accounts of [the] trial” and questioned the jury as a group regarding its
adherence to the instructions. Id. at 618 (internal quotation marks omitted).
Turning to the instant case, Appellant fails to demonstrate that the trial court
abused its discretion in refusing to individually colloquy the jurors given its multiple
instructions to the jury to avoid media coverage of the trial and its subsequent group
questioning of the jurors regarding their adherence to those instructions. Indeed, as the
trial court highlighted in its Rule 1925(a) opinion, the court instructed the jury to avoid
media accounts of the case during its preliminary instructions; before lunch recess and
evening adjournment each day; at the conclusion of the guilt phase of trial; and
throughout the penalty phase of the trial. Appellant does not explain why the trial
court’s efforts in this regard were insufficient to avoid any prejudice from the newspaper
article, particularly in light of the fact that the jury indicated that it had followed the
court’s instructions, albeit as a group. Moreover, Appellant overlooks that we found
similar efforts by a trial court to be sufficient in DeJesus, where the trial court issued
only one instruction to the jury to avoid media coverage of the case and where, as in
this case, it questioned the jury as a group. Arguably, the trial court’s efforts in the
instant case — which included multiple instructions to the jury throughout trial to avoid
media coverage of the case — afforded Appellant greater protection than the measures
taken by the trial court in DeJesus, which we endorsed. Accordingly, we conclude the
court did not abuse its discretion in refusing to colloquy the individual jurors.
H. Improper Testimony During Penalty Hearing
Appellant next asserts that he is entitled to a new penalty hearing as a result of
the improper admission of testimony from Sam Ford, who stated that he was “robbed”
by Appellant and claimed that Appellant had taken $96 from him while the two were in
[J-27-2016] - 26
prison together. N.T., 11/12/13, at 75. Although Appellant was never convicted of this
offense, Appellant’s counsel did not initially object to the testimony. However, during a
sidebar conference the next day, Appellant’s counsel indicated that Appellant had later
informed him that he was never convicted of robbing Ford. In order to alleviate any
possible prejudice resulting from the improperly admitted testimony, the trial court
issued the following instruction:
THE COURT: Good morning, ladies and gentlemen of the
jury.
Thank you for your patience.
As you are well aware, we commenced the penalty
phase of this trial yesterday and the Commonwealth
presented evidence.
During the presentation of the Commonwealth’s case
you heard evidence on the one aggravating circumstance
which is relevant to this case; that is, the Commonwealth’s
contention that the defendant has a significant history of
felony convictions involving the use or threat of violence to
the person.
During the course of the Commonwealth’s
presentation, you heard from one Samuel Ford, who told you
about a strong-armed robbery allegedly committed inside the
24th police district here in Philadelphia on January the 10th,
2004.
I now instruct you to completely and utterly disregard
that testimony as it was not properly evidenced in support of
the aggravating circumstance, a significant history of felony
convictions involving the use or threat of violence to the
person.
N.T., 11/13/13, at 11-12.
As a result of the improper admission of Ford’s testimony, Appellant submits that
he should receive a new penalty hearing. While the trial court instructed the jury to
[J-27-2016] - 27
disregard the testimony, Appellant suggests that the instruction could not “sanitize” the
effect of the word “robbery” on the jury, particularly given the fact that the jury was
charged on the significant history of violent felonies aggravator, and robbery is widely
known to be a violent felony. Appellant’s Brief at 30.
The Commonwealth responds that Appellant waived this claim because his
counsel waited until the next day to challenge the testimony, rather than objecting to the
testimony at the time it was offered, and it asserts that the claim lacks merit in any event
because the trial court instructed the jury to disregard Ford’s testimony, and the jury is
presumed to follow the trial court’s instructions. Lastly, the Commonwealth contends
that any purported error was harmless because the prosecutor presented overwhelming
evidence establishing the significant history of violent felonies aggravator, including
evidence of a prior murder conviction, as well as a conviction for multiple rapes and
robberies. Thus, the Commonwealth offers that, even if the jury considered the
improper testimony regarding the robbery, it is unlikely that the testimony would have
had any impact on the jury’s decision to return a death sentence.
In addressing this claim, the trial court explained that, once it was informed of the
fact that Appellant had not been convicted of the robbery, it cured any possible
prejudice caused by Ford’s testimony by instructing the jury to disregard the testimony
and any other references to it. Additionally, the court reasoned that introduction of the
evidence was harmless in light of Appellant’s myriad other violent felonies introduced as
evidence by the Commonwealth, and, thus, it concluded that a new penalty hearing was
not warranted.
We agree. As the trial court noted, upon learning that Appellant had not been
convicted of robbing Ford, the court promptly and emphatically directed the jury to
disregard Ford’s testimony. It is well settled that the jury is presumed to follow the trial
[J-27-2016] - 28
court’s instructions, Commonwealth v. Travaglia, 28 A.3d 868, 882 (Pa. 2011), and
Appellant does not otherwise attempt to offer any evidence establishing that the jury
failed to do so in the instant case. As a result, we need not consider, as the
Commonwealth also argues, whether Ford’s testimony was harmless in light of the
substantial evidence regarding Appellant’s prior murder conviction and multiple rape
and robbery convictions also offered in support of the significant history of violent felony
aggravator found by the jury.
I. Shackling During Penalty Hearing
In his final claim, Appellant challenges the trial court’s decision to shackle him
during the penalty hearing. Specifically, while the jury was deliberating, Sergeant
Michael Bestone of the Philadelphia Sheriff’s Office advised the trial court that Appellant
had been known to be aggressive towards prison officers and that the prison
transportation team had observed Appellant being aggressive on the bus to the
courthouse throughout the duration of his trial. Consequently, Sergeant Bestone
warned that Appellant might become violent during the hearing, and he recommended
that Appellant be shackled with leg irons worn underneath his clothing. N.T., 11/7/13, at
70. Appellant’s counsel initially objected to the shackling, and, in response to the trial
court’s probing regarding the basis for his objection, asserted that he “fe[lt] [he had] to
respect [Appellant’s] right to be free from being shackled . . . for no reason whatsoever.”
Id. at 67-68. After a period of disagreement between the parties, however, Appellant’s
counsel abandoned his position, stating that “[i]f the sheriff’s office feels [the shackling]
has to be done, I don’t feel I have a position one way or the other.” Id. at 68. Thus,
noting that “[t]here is no basis for [the] objection,” the trial court overruled it. Id. at 71.
[J-27-2016] - 29
Thereafter, during a conference with the parties immediately prior to the
commencement of the penalty hearing, the trial court indicated that, “for purposes of
safety,” and because Appellant “for reasons of his own, has decided that he wishes to
be in shackles,” Appellant would be placed in a one-piece leg iron worn underneath his
clothing during the hearing “unless one of [the] attorneys [felt] otherwise.” Id. at 73-74.
Both of Appellant’s counsel stated that they had “no objection.” Id. at 74. The trial court
then explained that it placed obstructions in front of both counsels’ tables which looked
like exhibits and would ensure that the jury would not see the shackles, and it asked
both parties whether they had a problem with the arrangement, to which Appellant’s
counsel responded that they did not. Id. Appellant was then shackled and brought into
the courtroom for the jury to read its verdict.
Appellant now challenges his shackling, claiming that there was “simply no good
reason” for placing him in shackles in light of the fact that he sat through the guilt phase
of his trial without causing any problems. Appellant’s Brief at 31. Appellant further
notes that the trial court ordered him to be shackled without first conducting a colloquy
to determine whether he was willing to abide by courtroom rules, and that the court
failed to take reasonable steps to ensure that the jury could not see the shackling.
Accordingly, Appellant argues that he should receive a new penalty phase hearing.
By contrast, the Commonwealth maintains that Appellant waived this claim
because, although his counsel initially objected to the shackling, he later agreed to it. In
any event, the Commonwealth asserts that Appellant’s claim lacks merit because
Appellant had a history of violence during his incarceration, was acting aggressively
while being transported to the courthouse on the day of the hearing, and the shackles
were worn underneath his clothing and, thus, were not visible to the jury.
[J-27-2016] - 30
The trial court explained that it did not abuse its discretion in restraining Appellant
because Appellant posed a “real and significant risk” to the “orderly administration of the
remainder of his trial,” and, in its view, shackling Appellant was necessary to maintain
order in the courtroom. Trial Court Opinion, 12/23/13, at 56. Additionally, the court
opined that Appellant was not prejudiced by its decision to restrain him because the
restraint was worn underneath Appellant’s clothing, permitted Appellant to sit and stand
without difficulty, and was further masked by the obstructions placed in front of the
counsel tables, thus rendering the restraint undetectable by the jury.
Appellant is not entitled to relief on this claim. Although Appellant’s counsel
initially objected to the shackling, both of Appellant’s counsel later stated that they had
“[n]o objection” to the shackling, and indicated that they had no problem with the court
placing obstructions in front of counsel tables. N.T., 11/7/13, at 74. Thus, because
Appellant’s counsel ultimately acceded to the trial court’s decision to shackle Appellant,
we conclude that Appellant’s claim is waived. Pa.R.A.P. 302(a).
J. Statutory Review of Death Penalty Verdict
Lastly, having determined that Appellant is not entitled to relief on his claims, this
Court is required pursuant to the Sentencing Code to conduct a statutory review of
Appellant’s death sentence. Accordingly, we must affirm Appellant’s sentence unless
we determine that:
(i) the sentence of death was the product of passion, prejudice, or any
other arbitrary factor; or
(ii) the evidence fails to support the findings of at least one aggravating
circumstance specified in subsection (d).
42 Pa.C.S. § 9711(h)(3).
[J-27-2016] - 31
After a careful and thorough review of the record, we conclude that the sentence
of death imposed by the jury was not the product of passion, prejudice, or any arbitrary
factor, but, rather, was fully supported by the evidence of record. We also find that the
evidence was sufficient to enable the jury to find beyond a reasonable doubt the
aggravating circumstance of a significant history of violent felony convictions. 42
Pa.C.S. § 9711(d)(9). Thus, we affirm the verdict and the sentence of death imposed
upon Appellant.
Judgment of sentence affirmed. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Donohue and Dougherty join the opinion.
Justice Wecht files a concurring opinion.
[J-27-2016] - 32
Commonwealth v. Cash, O., Aplt.
Court: Supreme Court of Pennsylvania
Date filed: 2016-05-25
Citations: 137 A.3d 1262, 635 Pa. 451
Copy CitationsCombined Opinion