Commonwealth v. Rayner

J-A28038-16

2016 PA Super 310

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARQUIS LEE RAYNER,

Appellant No. 1263 EDA 2015

Appeal from the Judgment of Sentence April 17, 2015
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001737-2013

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED DECEMBER 29, 2016

Appellant, Marquis Lee Rayner, appeals from the judgment of sentence

imposed following his jury conviction of murder of the second degree,

robbery, burglary, and conspiracy to commit robbery.1 We affirm.

The trial court aptly set forth the facts and procedural history of this

case, as follows:

Shortly after midnight on June 29, 2012, three armed men
burst into the living room of the apartment shared by Dominick
Williams and Aaron Crawford. Mr. Crawford was asleep in his
bedroom. Mr. Williams was awake and playing video games in
the living room. All three intruders wore t-shirts wrapped
around their faces to disguise their identity. One of the intruders
immediately shot Mr. Williams in the groin. Another of the
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 3502(a), and 903, respectively.
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intruders went to Mr. Crawford’s bedroom and grabbed a clear,
plastic jar that contained marijuana, money and a pack of
cigarettes. All three intruders then ran from the apartment.
Dominick Williams remained on his living room floor bleeding to
death. Later, at the hospital, he died.

Shortly after the robbery[,] the police located the plastic
jar about two blocks away from the victim’s apartment. Located
nearby was a black t-shirt. Subsequent testing revealed the
presence of co-defendant Dominique Lee’s[2] thumbprint on the
jar, and [Appellant’s] DNA on the t-shirt. [Appellant] and
Dominique Lee, who are half-brothers, were subsequently
arrested for the murder of Dominick Williams.

On November 20, 2014, after a four-day trial, a jury found
Appellant guilty of second degree murder, robbery, burglary, and
criminal conspiracy. He was sentenced to life in prison on April
17, 2015. [The trial court] denied his optional post-sentence
motion by order dated April 23, 2015.

This [timely] appeal followed.[3]

(Trial Court Opinion, 5/03/16, at 1-2).

Appellant raises five issues for the Court’s review.

1. Were the convictions for murder of the second degree,
robbery, burglary and conspiracy to commit robbery and
burglary against the weight of the evidence? Were the verdicts
against the weight of the evidence when the only evidence was
[Appellant’s] DNA on a black tee shirt found [one and one-half]
blocks from the crime and [fifteen] feet from a jar taken from
the house, which jar had his half-brother’s fingerprints?

____________________________________________

2
Dominique Lee also has filed an appeal at docket number 1299 EDA 2015.
3
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on May 5, 2015. See Pa.R.A.P. 1925(b).
After receiving the court’s permission, Appellant also filed a supplemental
statement on September 29, 2015. The trial court filed an opinion on May 3,
2016. See Pa.R.A.P. 1925(a).

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2. Were the convictions for murder of the second degree,
robbery, burglary and conspiracy to commit robbery and
burglary not supported by sufficient evidence?

3. Did the Assistant District Attorney err in his opening
statement and err when presenting Detective Dutter by stating
his office received an anonymous tip linking Dominique Lee
(half-brother of [Appellant]) as a participant in the crime? Did
[the trial court] err in denying the defense request for a mistrial?
Did this intentional error violate [Appellant’s] right to confront a
critical witness in violation of the Sixth Amendment of the United
States Constitution and Article I, Section 9 of the Pennsylvania
Constitution and further, was this improper hearsay, particularly
since [Appellant] was charged with conspiracy?

4. Did [the Commonwealth] err in [its] closing speech by
incorrectly suggesting [Appellant] kept the alibi defense a secret
until the last day of trial when, in fact, the alibi notice had been
filed long before the trial, and did the [Commonwealth] err in
giving [a] personal opinion that [Appellant] was guilty? Did [the
trial court] err in not granting a timely mistrial?

5. Did [the trial court] err by interfering improperly with
[defense counsel’s] cross-examination of a key prosecution
witness on his critical testimony on the tee shirt, and did [the
trial court] err in criticizing [defense counsel] before the jury?
Did [the trial court] further err in repeatedly and incorrectly
criticizing [defense counsel] during his closing argument on the
issue of burden of proof? Did [the trial court] wrongly criticize
[defense counsel] in front of the jury? Did [the trial court] err in
not granting a mistrial? Did [the trial court’s] improper inference
and criticism of [defense counsel] prejudice [Appellant], deny
him a fair trial, and impact on [Appellant’s] [Sixth] Amendment
right to effective counsel?

(Appellant’s Brief, at 6-8).

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Appellant’s first two issues challenge the sufficiency and weight of the

evidence to support his convictions. (See id. at 41-55).4 For ease of

disposition, we will address Appellant’s sufficiency challenge first, and then

his weight of the evidence claim.

In his second issue, Appellant argues that the evidence was insufficient

to support the verdict because it required pure speculation. (See

Appellant’s Brief, at 49-55). Appellant’s issue lacks merit.

In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.

____________________________________________

4
Although Appellant recognizes that each of these issues has its own
standard of review, (see Appellant’s Brief, at 49), he appears to confuse the
legal concepts. (See id. at 41-55). For example, “[a] motion for new trial
on the grounds that the verdict is contrary to the weight of the evidence,
concedes that there is sufficient evidence to sustain the verdict.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation
omitted). However, in support of his weight of the evidence challenge,
Appellant repeatedly states that the Commonwealth failed to prove the
elements necessary to support his convictions. (See Appellant’s Brief, at
44-46). Also, in his sufficiency challenge, Appellant maintains that “[t]he
speculative and conflicting nature of the testimony would warrant a reversal
on the basis of sufficiency of evidence.” (Appellant’s Brief, at 52). However,
this allegation goes to the weight of the evidence. See Commonwealth v.
Doleno, 633 A.2d 203, 206 (Pa. Super. 1993) (“claim goes to the weight of
the evidence because it depends upon a resolution of the conflicting
testimony of competing witnesses.”).

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Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (citation

omitted). In this case, Appellant was convicted of murder of the second

degree, robbery, burglary, and conspiracy.

Pursuant to section 2502(b) of the Crimes Code, “[a] criminal homicide

constitutes murder of the second degree when it is committed while

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” 18 Pa.C.S.A. § 2502(b). The Crimes Code also provides, in

pertinent part, that “[a] person is guilty of robbery if, in the course of

committing a theft, he . . . inflicts serious bodily injury upon another [or]

threatens another with or intentionally puts him in fear of immediate serious

bodily injury[.]” 18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii). It further provides, “[a]

person commits the offense of burglary if, with the intent to commit a crime

therein, the person . . . enters a building or occupied structure, or separately

secured or occupied portion thereof that is adapted for overnight

accommodations in which at the time of the offense any person is

present[.]” 18 Pa.C.S.A. § 3502(a)(1). Finally:

A person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he . . . agrees with such other person or persons
that they or one or more of them will engage in conduct which
constitutes such crime . . . or . . . agrees to aid such other
person or persons in the planning or commission of such crime .
...

18 Pa.C.S.A. § 903(a).

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In this case, the evidence at trial established that three men broke into

Dominick Williams’ apartment with the intent of robbing him. (See N.T.

Trial, 11/17/14, at 67, 69, 150). The men were armed with guns and wore

t-shirts across their faces. (See id. at 66-68, 77, 118-119, 132). After

shooting Mr. Williams, and pistol whipping his roommate, Aaron Crawford,

one of the men stole a plastic-lidded jar that contained marijuana and other

items. (See id. 155-57). The individual was not wearing gloves. (See id.

at 150).

As further described by the trial court:

Approximately [ninety] minutes after Dominick Williams
had been shot, police officer Stephen Galletta of the Coatesville
City Police Department located the clear plastic jar tossed in a
hedge row approximately a block and a half from the crime
scene. (See id. at 244). The jar contained a pack of Newport
cigarettes. (See id. at 163). Located several feet away was a
black t-shirt. (See id. at 244, 248). Witness Aaron Crawford
was brought to the discovery scene and identified the jar as the
one taken from his bedroom earlier that morning, and the t-shirt
as the type of shirt that one of the robbers had been wearing
across his face. (See id. at 161-64).

Chester County Detective Kenneth Beam testified as an
expert in the field of fingerprint analysis. Detective Beam
received as evidence the plastic jar and t-shirt found close to the
scene of the robbery. (See N.T. Trial, 11/18/14, at 49).
Detective Bean testified that the print with the sharpest and
clearest detail found on the plastic jar belonged to co-defendant
Dominique Lee. (See id. at 65, 69, 73). Because Detective
Bean knew that the t-shirt had possibly been tied across the face
of one of the intruders as a disguise, he surmised that the
intruder might have left saliva on the shirt. Accordingly,
Detective Bean sent the t-shirt to the State Police Laboratory for
DNA analysis. (See id. at 55).

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Michael Gossard, a forensic scientist with the Pennsylvania
State Police, testified as a serology expert. Mr. Gossard tested
the t-shirt for evidence of saliva. (See id. at 117). His testing
indicated the presence of saliva on two different areas of the t-
shirt. (See id. at 121, 135).

Timothy Gavel, a forensic scientist with the Pennsylvania
State Police DNA lab, performed a DNA analysis on the evidence
left on the t-shirt. Mr. Gavel testified that DNA evidence left on
the t-shirt belonged to Appellant []. (See id. at 149, 153). He
also testified that the chance of a coincidental DNA match in the
African-American population was one in 7.9 quintillion. (See id.
at 154).

(Trial Ct. Op., at 4-6) (some record citation formatting provided).

Based on the above evidence, and our review of the record in the light

most favorable to the Commonwealth as verdict winner, we conclude that it

was sufficient to establish the elements of the crimes of which Appellant was

convicted. See Taylor, supra at 614. Appellant’s sufficiency challenge

does not merit relief.

Appellant also challenges the weight of the evidence to support his

convictions. (See Appellant’s Brief, at 41-49). Appellant’s issue lacks merit.

When we review a weight-of-the-evidence challenge, we
do not actually examine the underlying question; instead, we
examine the trial court’s exercise of discretion in resolving the
challenge. This type of review is necessitated by the fact that
the trial judge heard and saw the evidence presented. Simply
put, [o]ne of the least assailable reasons for granting or denying
a new trial is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a new trial
should be granted in the interest of justice. A new trial is
warranted in this context only when the verdict is so contrary to
the evidence that it shocks one’s sense of justice and the award
of a new trial is imperative so that right may be given another
opportunity to prevail.

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Of equal importance is the precept that, “The finder of fact
. . . exclusively weighs the evidence, assesses the credibility of
witnesses, and may choose to believe all, part, or none of the
evidence.” Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d
24, 39 (2011) (citation omitted).

Commonwealth v. Konias, 136 A.3d 1014, 1022-23 (Pa. Super. 2016),

appeal denied, 145 A.3d 724 (Pa. 2016) (most citations and quotation marks

omitted).

In this case, the trial court “presided over Appellant’s trial [and did]

not find the jury verdict so contrary to the evidence as to shock the [c]ourt’s

sense of justice. Thus, [the court] specifically [found] that the verdict in this

matter was not against the weight of the evidence.” (Trial Ct. Op., at 6).

We decline Appellant’s invitation to re-weigh the evidence in this matter, and

conclude that the trial court did not abuse its discretion in denying his

weight of the evidence challenge. See Konias, supra at 1022-23.

Appellant’s weight of the evidence claim does not merit relief.

In his third issue, Appellant challenges the trial court’s denial of his

motion for a mistrial after the Commonwealth’s attorney referenced an

anonymous tip during his opening statement and during his examination of

Detective Dutter. (See Appellant’s Brief, at 55-61). This issue lacks merit.

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 abused. A trial court may grant a
mistrial only where the incident upon which the motion is based

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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. Chamberlain, 30 A.3d 381, 422 (Pa. 2011), cert.

denied, 132 S. Ct. 2377 (2012) (citations and quotation marks omitted);

see also Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa. 2014)

(observing that “the jury is presumed to follow the court’s instructions.”)

(citation omitted).

Appellant first argues that the trial court erred in denying his motion

for a mistrial where Commonwealth’s counsel made a hearsay statement

during his opening statement, which prejudiced him. (See Appellant’s Brief,

at 55-56). We disagree.

It has long been the law of this Commonwealth that:

Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. [See]
Pa.R.E. 801(c). Thus, any out of court statement offered not for
its truth but to explain the witness’s course of conduct is not
hearsay.

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012), cert. denied,

133 S. Ct. 1795 (2013) (case citation and internal quotation marks omitted).

In this case, during the Commonwealth’s opening statement, the

prosecutor explained the process by which the fingerprints on the jar were

identified. Specifically, after stating that investigators had been unable to

identify the fingerprints for approximately six months, the prosecutor stated:

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Now it’s time for me to talk about that second lucky break that
happened in January of 2013 when Detective Harold Dutter
received an anonymous tip from someone who identified
Dominque Lee, this [co-]defendant, as one of the men who
[was] involved in the home invasion robbery.

(N.T. Trial, 11/17/14, at 18). Immediately thereafter, Appellant’s counsel

objected and moved for a mistrial, which the trial court denied. (See id.).

When counsel completed his opening statement, the court instructed the

jury:

Ladies and gentlemen, before we get to the defense
opening, I need to give you an instruction. You will recall that
during the course of [the prosecutor’s] opening[,] he made
mention of what a tipster said and certain tipster information
was provided to the police and there was an objection by
defense. I need to give you an instruction with respect to that.

When an anonymous tip comes to the police[,] the police
are allowed to act on an anonymous tip. In other words, they
are allowed to check fingerprints and identities and these types
of things. But what the tipster said, his actual words, is not
evidence of [Appellant’s] guilt and you may not consider what
the tipster said as being evidence of any defendant’s guilt.

However, the prints that were checked as a result of the tip is
evidence that you may consider in this particular case. . . .

(Id. at 30-31).

Here, because the statement about the tipster was made to explain

the course of conduct pursued by the police, not for the truth of the matter

asserted, it was not hearsay. See Johnson, supra at 1035. Moreover, any

prejudice allegedly suffered by Appellant was cured by the court’s cautionary

instruction, which the jury is presumed to have followed. See Jemison,

supra at 1263; Chamberlain, supra at 422. This argument lacks merit.

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Appellant also argues that the trial court abused its discretion when it

denied counsel’s motion for a mistrial on the basis of the prosecutor’s

questioning of Detective Dutter about the anonymous tip. (See Appellant’s

Brief, at 57-58). Appellant maintains that, because the anonymous tip led

to a fingerprint identification that allowed Detective Dutter to determine that

he and Dominque Lee were half-brothers, the tip was “very damning

evidence” that denied Appellant the right to confrontation. (Appellant’s

Brief, at 58). However, this argument also fails.

A review of the testimony reveals that the Commonwealth’s attorney

asked Detective Dutter, “[w]hen [] Dominique’s Lee’s name first c[a]me up

in the context of this investigation[,]” to which the detective responded, “I

received an anonymous tip.” (N.T. Trial, 11/18/14, at 183). Appellant’s

counsel objected and moved for a mistrial, which the trial court denied after

cautioning the jury: “[J]ust because somebody’s name comes up in an

anonymous tip, it is not to be construed in any way by you as evidence

against that individual. It[ is] simply being used in this context to show that

the police took [a] step and went forward.” (Id. at 183-84).

Again, we conclude that the cautionary instruction provided by the trial

court was sufficient to overcome any potential prejudice. See

Chamberlain, supra at 422; see also Jemison, supra at 1263.

Moreover, as observed previously, the statement by the anonymous tipster

was not hearsay because it was offered to show why the police took the

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investigation in the direction that they did, not for the truth of the matter

asserted. See Johnson, supra at 1035. Therefore, this argument fails and

the trial court did not abuse its discretion when it denied Appellant’s motions

for a mistrial on the basis of the anonymous tip. See Chamberlain, supra

at 422. Appellant’s third issue lacks merit.

In his fourth issue, Appellant argues that the trial court erred in

denying his motion for a mistrial where the prosecutor committed

prosecutorial misconduct during his closing argument. (See Appellant’s

Brief, at 61-68). Specifically he maintains that the Commonwealth’s counsel

incorrectly suggested that Appellant kept the alibi defense a secret until the

last day of trial and gave his opinion that Appellant was guilty. (See id.).

Appellant’s issue does not merit relief.

With specific reference to a claim of prosecutorial
misconduct in a closing statement, it is well settled that [i]n
reviewing prosecutorial remarks to determine their prejudicial
quality, comments cannot be viewed in isolation but, rather,
must be considered in the context in which they were made.
Our review of prosecutorial remarks and an allegation of
prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citations

and quotation marks omitted). Here, when viewing the prosecutor’s

comments about the alibi witnesses in context, it is clear that Appellant’s

argument in this regard lacks merit.

During the prosecutor’s closing argument, the following exchange

occurred:

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[Commonwealth:] Let’s talk about some other obvious issues
with the alibi witnesses. None of these people who had this
valuable information ever brought it to the attention of anyone
except the defense lawyers. Think about this. Your loved one
gets arrested on a crime such as this. And you know
unequivocally, without a doubt this person could not have
committed the crime. Why? Because they were with [you] at
that precise moment in time.

Are you going to just sit on that information for two years,
not pick up the phone, call the police [and] the County
Detectives and just sit on it and let it sit there and sit there until
when? The last day of trial it comes out. Does that make any
sense at all?

[Additionally,] [t]wo of the four witnesses, when the police
did find out they that they were alleged alibi witnesses couldn’t,
wouldn’t talk to police. Who does that? . . .

They refused to talk to the police. Why do you think that
is? Why do you think they didn’t want to talk to them? You
know. Because if they told the detectives what their account
was and the detectives could follow-up on it, see if it holds
water, attempt to corroborate. But if they don’t talk to the
detective and the detectives [don’t] have a chance to do any of
that. That is why they kept it a secret until the last day of the
trial.

[Appellant’s Counsel]: Objection, move for mistrial. Alibi
notices were filed.

THE COURT: Objection overruled. Motion denied.

(N.T. Trial, 11/19/14, at 219-20).

Reading the prosecutor’s comments in context, we conclude that he

did not commit prosecutorial misconduct. See Judy, supra at 1019. He

properly questioned the reliability of alibi witnesses who chose not speak to

police on behalf of their loved one prior to trial, when they allegedly could

have given him an alibi. (See N.T. Trial, 11/19/14, at 219-20). Therefore,

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the trial court did not abuse its discretion when it denied Appellant’s motion

for a mistrial on this basis. See Chamberlain, supra at 422.

Additionally, Appellant’s argument that the Assistant District Attorney

committed prosecutorial misconduct because he gave his personal opinion

about Appellant’s guilt also lacks merit. (See Appellant’s Brief, at 64-66).

It is well established that a prosecutor must have
reasonable latitude in presenting a case to the jury, and must be
free to present arguments with logical force and vigor. Counsel
may comment upon fair deductions and legitimate inferences
from the evidence presented during the testimony. Although a
prosecutor may argue to the jury that the evidence establishes
the defendant’s guilt, arguments from personal opinion as to the
guilt of the accused are not proper.

Chamberlain, supra at 407-08 (citations and quotation marks omitted).

Here, Appellant’s counsel objected to the following language by the

prosecutor:

The word verdict is from the Latin word verdictum. It
means to speak the truth. That is what I am asking you to do.
I’m asking you to go back to the jury room, deliberate and speak
the truth.

And there is only one truth in this case and it is a very
simple truth. And that is that these two men, these half-
brothers, these two co-conspirators, went into the house at 744
Merchant Street and committed a home invasion robbery. In the
course of committing that, Dominick Williams was shot and
killed.

(N.T. Trial, 11/19/14, at 212).

Reading the prosecutor’s statement in light of his closing argument as

a whole, it appears that he merely was commenting on “fair deductions and

legitimate inferences from the evidence[.]” Chamberlain, supra at 408

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(citation omitted). Moreover, even if the prosecutor’s comments were

considered prejudicial, we observe that:

[N]ot every remark by the prosecutor, even assuming it is
intemperate or uncalled for, requires a new trial. A prosecutor’s
comments do not amount to reversible error unless the
unavoidable effect of such comments would be to prejudice the
jury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively
and render a true verdict. Moreover, the prejudicial effect of the
prosecutor’s remarks must be evaluated in the context in which
they occurred. In applying these standards on appellate review,
we have explained that whether this standard has been violated
by the language of the prosecutor is not in the first instance an
appellate court’s decision to make; rather, it is the duty of the
trial judge to rule upon the comments and we are limited to
reviewing whether the trial court abused its discretion.

Chamberlain, supra at 408 (citations and quotation marks omitted).

In this case, it was for the trial court to weigh whether the

prosecutor’s remarks constituted reversible error. See id. The court found

that they did not, but that, instead, the “prosecutor was not offering his

personal opinion[, but rather] was arguing to the jury that the evidence

presented established [A]ppellant’s guilt.” (Trial Ct. Op., at 12). We discern

no abuse of discretion. See Chamberlain, supra at 408.

Finally, in his fifth issue, Appellant argues that the trial court

improperly interfered with trial. (See Appellant’s Brief, at 68-82).

Specifically, he claims that “[the trial court’s] interference, commenting on

evidence, improper criticism and interruption of [defense counsel’s] closing

speeches[,] denied [Appellant] his right to due process and a fair trial and

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impacted [his] Sixth Amendment right to effective counsel.” (Id. at 68)

(underlining omitted). After exhaustively reviewing the record, we disagree.

[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible. . . . Not establishing bias or
partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after having
been confirmed as [] judges, sometimes display. A judge’s
ordinary efforts at courtroom administration—even a stern and
short-tempered judge’s ordinary efforts at courtroom
administration—remain immune. However, [a] judge’s remarks
to counsel during trial do not warrant reversal unless the
remarks so prejudice the jurors against the defendant that it
may reasonably be said [that the remarks] deprived the
defendant of a fair and impartial trial.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2014) (citation and emphases omitted).

In this case, Appellant first maintains that the trial court improperly

interrupted his cross-examination of Aaron Crawford, who was in the subject

house during the robbery. (See Appellant’s Brief, at 72-76). On direct

examination, Crawford testified that the intruders who entered the home

were African American individuals, and that they wore t-shirts on their heads

as disguises, with one of the two individuals entering his bedroom wearing a

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white t-shirt on his head, and the other wearing a black one. A third person,

who did not enter the bedroom wore a white t-shirt on his head. (See N.T.

Trial, 11/17/14, at 149, 151, 169). In response to the prosecutor’s

questions about what color shirts the men were wearing on their bodies,

Crawford testified that the two men wearing white t-shirts on their heads

were also wearing white t-shirts on their torsos, and the individual wearing a

black t-shirt on his head was wearing a black t-shirt on his body. (See id.

at 169-70). One of the individuals disguised by a white t-shirt struck

Crawford in the head and stole a jar from his bedroom that contained

marijuana, money, and a pack of Newport cigarettes. (See id. at 152, 155).

Minutes later, police took Crawford to a location approximately one-and-a-

half blocks from his home where he identified a jar containing a pack of

Newport cigarettes as the one taken from his home. (See id. at 161-63).

He also identified a black t-shirt located “a couple feet away” from the jar as

being the one worn on the head of one of the intruders. (Id. at 164).

On cross-examination, the following relevant exchange occurred:

[Defense Counsel]: Now two guys come in [the bedroom], you
said . . . both of them had white t-shirts on. . . .

[Crawford]: I don’t know.

[Defense Counsel]: White t-shirts on their head[s] today earlier
in front of the jury[?]

[Commonwealth]: Objection.

THE COURT: Sustained.

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* * *

THE COURT: [Defense counsel], the testimony was that one had
a white t-shirt on. He testified that the other had a black t-shirt.
There was another man outside that had a white t-shirt.

(Id. at 186).

After our independent review, we conclude that the trial court was

responding to an objection raised by the Commonwealth, not condemning

defense counsel. The court merely was correcting the mistake in counsel’s

recitation of Crawford’s testimony. This does not evidence any of the

partiality or bias necessary to find that the trial court acted improperly. See

Kearney, supra at 61.

Next, Appellant complains that the trial court’s attempt to clarify

whether defense counsel was asking about the shirts worn on the assailants’

faces or on their bodies, (see N.T. Trial, 11/17/14, at 190-91), evidenced

partiality necessitating a new trial. This issue is waived because Appellant

provides only one incoherent sentence in support of it. (See Appellant’s

Brief, at 74); see also Pa.R.A.P. 2101, 2119(a)-(b). Moreover, after

reviewing the entire record in this matter, we conclude that the trial court

was clarifying counsel’s question in an attempt to maintain the orderly

presentation of this case. See Kearney, supra at 61. This claim would

lack merit, even if not waived.

Appellant additionally maintains that the trial court improperly

interfered when defense counsel was impeaching Crawford about an

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allegedly inconsistent statement about a Polo insignia on the black t-shirt.

(See Appellant’s Brief, at 74-76). Specifically, Appellant attempted to bring

in Crawford’s grand jury testimony as an inconsistent statement where, in

that statement, he had said that one of the assailant’s t-shirts was black

and, at trial, he testified that the shirt was black with a Polo insignia on it.

(See N.T. Trial, 11/17/14, at 197-99). The trial court advised defense

counsel that this was not a prior inconsistent statement, and suggested that

he read the rules about what such a statement is. (See id. at 199). We

find no error.

A prior inconsistent statement, in relevant part, is “[a] prior statement

by a declarant-witness that is inconsistent with the declarant-witness’s

testimony and . . . was given under oath subject to the penalty of perjury[.]”

Pa.R.E. 803.1(1)(A). In other words, prior inconsistent statements are those

earlier statements, taken under oath, that are incompatible with the

witness’s trial testimony.

For example, in Commonwealth v. Buford, 101 A.3d 1182 (Pa.

Super. 2014), appeal denied, 114 A.3d 415 (Pa. 2015), this Court concluded

that a trial court properly admitted a tape recorded statement in which the

witness identified the defendant as the perpetrator of the subject crime as a

prior inconsistent statement, where the witness recanted her prior

identification, and the defendant’s culpability, at trial. See Buford, supra

at 1200. Similarly, in Commonwealth v. Stays, 70 A.3d 1256 (Pa. Super.

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2013), a trial court properly admitted a prior inconsistent statement

identifying the defendant and the signed photo array, where witness

recanted the identification at trial. See Stays, supra at 1262. Finally, in

Commonwealth v. Pitner, 928 A.2d 1104 (Pa. Super. 2007), appeal

denied, 944 A.2d 757 (Pa. 2008), this Court affirmed a trial court’s

admission of the witness’s guilty plea colloquy, which identified defendant as

participating in the crime with him, as a prior inconsistent statement, where

he denied defendant’s involvement at trial. See Pitner, supra at 1108-09.

However, here, the prior statement merely lacked a detail that was

included in Crawford’s trial testimony. Therefore, the trial court properly

advised Appellant that these statements were not incompatible and

inconsistent in the sense required for admission as a prior inconsistent

statement. See Pa.R.E. 803.1(1)(A); Buford, supra at 1200; Stays,

supra at 1262; Pitner, supra at 1108-09. Hence, for all of these reasons,

Appellant’s claim that the trial court improperly interfered with his cross-

examination of Crawford, lacks merit. See Kearney, supra at 61.

Finally, Appellant contends that the trial court “improperly criticized

and objected to [defense counsel’s] closing and misled the jury concerning

[his] discussion of the burden of proof.” (Appellant’s Brief, at 78). This

issue is waived for Appellant’s failure to provide any pertinent authority in

support of his argument that the trial court’s interruption during his closing

argument supports a finding that it acted improperly. (See id. at 78-81);

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see also Kearney, supra at 66-67 (finding claim waived for failure to cite

pertinent authority and discussion thereof). Moreover, it would not merit

relief.

In Commonwealth v. Britton, 482 A.2d 1294 (Pa. Super. 1984),

appeal denied, 506 A.2d 895 (Pa. 1986), similar to this case, the appellant

argued that the trial court acted improperly when it interrupted him during

closing argument as defense counsel was explaining the meaning of

reasonable doubt. See Britton, supra at 1301. In concluding the issue

had no merit, this Court observed:

The court correctly curtailed the attorney’s remarks
explaining to the jury that it was his role to instruct as to the
law. It is the duty of the trial judge to instruct the jury as to the
applicable law, and it is not error for the judge to interrupt
counsel and correct a possibly misleading statement of the law.

Id. (citations omitted)

Likewise, here, we conclude that the trial court was acting within its

purview when it interrupted defense counsel to correct what it perceived as

a misstatement of the law. See id. Further, the complained-of exchange,

(see N.T. Trial, 11/19/14, at 159-61), even were we to view it as “critical or

disapproving of, or even hostile to, counsel[,]” does not “reveal such a high

degree of favoritism or antagonism as to make fair judgment impossible.”

Kearney, supra at 61 (citations omitted). Hence, Appellant’s argument in

this regard lacks merit. Therefore, after our review of the entire record, we

conclude that there is nothing in any of the trial court’s remarks to

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Appellant’s counsel that rises to the level of requiring a new trial. See id.

Appellant’s fifth issue lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2016

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