Com. v. Garland, R.

J-S13037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

RAYMOND GARLAND

Appellant No. 2153 EDA 2016

Appeal from the Judgment of Sentence June 16, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0000749-2015

BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 13, 2017

Appellant, Raymond Garland, appeals from an aggregate judgment of

sentence of twenty-one to forty-two years’ imprisonment for third degree

murder1 and carrying firearms without a license.2 Appellant was also

convicted of possession of an instrument of crime3 and persons not to

possess, use, manufacture, control, sell or transfer firearms,4 but the trial

court did not impose any penalty for these offenses. Appellant challenges

the sufficiency of the evidence and asserts multiple objections to the trial

proceedings. We affirm Appellant’s conviction for third degree murder,

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 6106(a)(1).
3
18 Pa.C.S. § 907(a).
4
18 Pa.C.S. § 6105.
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possession of an instrument of crime and carrying firearms without a license.

We reverse Appellant’s conviction under 18 Pa.C.S. § 6105, but because

reversal of this conviction will not upset the overall sentencing scheme, we

decline to remand for resentencing.

The trial court summarized the factual history of this case as follows:

On October 20, 2014, at around 1 a.m., Khary Ford
(known as “Deals”), Steven Robinson (“Shooter”), and
[Appellant] (“Ghost”) were selling drugs in the area of
Jasper and Thayer Streets in Philadelphia. . . . At around
this time, [Appellant] approached Ford and Robinson, who
were in the same drug organization, and claimed that “four
n*ggaz” just robbed him of his cell phone and $700.
[Appellant] told Ford to grab his pistol. Ford, Robinson,
and [Appellant] then searched the area for the alleged
robbers.

On the night of the shooting, [Appellant] was the drug
organization’s caseworker. The caseworker holds the
majority of the money and passes out the bulk of the
drugs to the distributors. After searching for a short time
with [Appellant], Ford suspected that [Appellant] had
faked the robbery and had stolen the drug money.

After they failed to locate anyone, Robinson and
[Appellant] left Ford and walked to a Chinese restaurant at
around 2:20 a.m. Around the same time, the decedent,
Kevin Parker[,] who was not involved in any drug
organization[,] left his home on the 1800 block of East
Ontario for a 7-Eleven located on the same block to buy
cigarettes. On the way to the Chinese restaurant,
[Appellant], walking on the same block, spotted Parker,
from around 130 feet away. After spotting Parker,
[Appellant] said to Robinson, “I think that’s the little
motherf**ker right there.” [Appellant] pulled out a black
semiautomatic firearm[5] and attempted to fire at Parker,

5
Robinson testified that he did not know that Appellant was carrying a
firearm until he “pulled it out.” N.T., 3/29/16, at 175.

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but the safety was on. After removing the safety, he fired,
killing Parker and hitting a windowsill of a house.

Dr. Bruce Wainer, an associate medical examiner and
neuropathologist with the Philadelphia Medical Examiner’s
Office, determined that Parker’s cause of death was a
penetrating gunshot wound to the back. The bullet
entered Parker’s right, upper back and into the right chest
cavity. The bullet passed through the lower left lobe of
Parker’s right lung and into the central portion of his chest
cavity, perforating the lower airway and aorta, and
stopping behind his left collarbone. The manner of death
was homicide.

The Crime Scene Unit recovered projectile fragments on
the ground in front of 1822 East Ontario Street. The
frames for the window and the front door at 1822 East had
bullet holes. There was also a bullet hole in the window
frame of 1818 East Ontario. The Crime Scene Unit
recovered five Remington 9mm Luger fired cartridge
casings (“FCCs”) within a few feet of each other, diagonally
across the street in front of 1839 East Ontario. All five
FCCs were fired from the same firearm. The distance from
the sidewalk in front of 1822 to the sidewalk in front of
1839 was roughly 130 feet.

After shooting Parker, [Appellant] and Robinson ran,
eventually finding Ford. [Appellant] told Ford that he had
“dropped him,” referring to the person he had just shot.
Moments later, [Appellant] handed Ford a Luger firearm
rolled inside a t-shirt and asked Ford to hide it inside his
house. Later, Nate, a member of the same drug
organization, retrieved the firearm from Ford’s house. On
November 20, 2014, Ford, in an interview with Philadelphia
Police detectives, identified [Appellant], who[m] he knew
as “Ghost,” as the person who gave him the firearm the
night of the shooting. Ford also selected [Appellant]’s
photograph from an eight-person photograph array[] and
identified himself in a still photograph taken from a 7-
Eleven surveillance camera from the night of the shooting.

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On November 19, 2014, Robinson, in an interview with
detectives,[6] identified [Appellant] as the shooter from a
photograph array. He also identified himself, Ford, and
[Appellant] in a still photograph taken from the 7-Eleven
footage the night of the shooting. On December 8, 2014,
Robinson told detectives that he saw [Appellant] while in
custody at Curran-Fromhold Correctional Facility (“CFCF”).
There, [Appellant] told Robinson that “they got [me] for
that shooting,” referring to the shooting on Ontario Street.

Trial Ct. Op., 9/8/16, at 2-4 (record citations omitted). The evidence further

established that Appellant did not have a license to carry firearms. N.T.,

3/30/16, at 91-92.

On March 31, 2016, at the conclusion of a four-day trial, the jury

found Appellant guilty of the aforementioned offenses. On June 16, 2016,

the court imposed sentence. On July 10, 2016, Appellant filed a timely

notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

Appellant raises the following issues in this appeal:

I. Is Appellant entitled to an arrest of judgment with
regard to his convictions for third degree murder, violation
of the Uniform Firearms Act (two counts) and possessing
instruments of crime[,] since the evidence is insufficient to
sustain the verdicts of guilt as the Commonwealth failed to
sustain its burden of proving Appellant’s guilt beyond a
reasonable doubt?

II. Is Appellant entitled to a new trial as a result of the
trial court’s failure to grant his challenge for cause to
prospective Juror No. seventeen?

6
During trial, Robinson recanted his statements to the detectives. N.T.,
3/29/16, at 160-61 (Robinson’s testimony that police officers bribed and
threatened him on three occasions when he gave statements).

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III. Is Appellant entitled to a new trial as a result of the
trial court’s ruling that denied his Batson[7] challenge?

IV. Is Appellant entitled to a new trial as a result of the
trial court’s ruling that denied his motion for a mistrial
made after the prosecutor made inflammatory remarks
during his opening statement to the jury?

V. Is Appellant entitled to a new trial as a result of the
trial court’s ruling that allowed the Commonwealth to
present the testimony of prosecutors Emily Rodriguez and
Edward Cameron with regard to any deals or agreements
with Commonwealth witnesses in exchange for their
testimony?

VI. Is Appellant entitled to a new trial as a result of the
trial court’s ruling that allowed the Commonwealth to read
the portion of Khary Ford’s statement to the jury with
regard to his position during the incident and his
identification of the individuals involved?

VII. Is Appellant entitled to a new trial as a result of the
trial court’s ruling that denied his request for a specific jury
instruction as to bias of Commonwealth witnesses?

Appellant’s Brief at 5-6.

Appellant first argues that the evidence was insufficient to sustain his

conviction for third degree murder due to the failure to prove that he

committed the shooting, the failure to prove the element of malice, the

absence of physical evidence and the alleged inconsistencies in the

Commonwealth’s evidence. We disagree.

The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
at trial the in the light most favorable to the verdict

7
Batson v. Kentucky, 476 U.S. 79 (1986).

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winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a
reasonable doubt. In applying the above test, we may not
weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn
from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the finder of
fact [,] while passing upon the credibility of witnesses and
the weight of the evidence produced is free to believe all,
part or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).

“Third degree murder occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.” Commonwealth v. Truong, 36 A.3d 592,

597 (Pa. Super. 2012) (en banc) (citation and quotation marks omitted).

“Malice is not merely ill-will but, rather, wickedness of disposition, hardness

of heart, recklessness of consequences, and a mind regardless of social

duty.” Id. at 597-98 (citation and quotation marks omitted). “Malice may

be inferred from the use of a deadly weapon on a vital part of the victim’s

body . . . [or] after considering the totality of the circumstances.” Id. at

598 (citation omitted).

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The evidence was sufficient to establish Appellant’s identity as the

killer. Appellant shot the victim to death on a public street, and Appellant’s

cohort, Robinson, gave statements in which he identified Appellant as the

shooter and pointed him out in a still photograph recovered from video

surveillance tapes. See Commonwealth v. Patterson, 940 A.2d 493, 502

(Pa. Super. 2007) ((“positive identification by one witness is sufficient for

conviction”) (citation omitted)). The fact that Robinson recanted these

statements during trial is of no moment. Prior inconsistent statements, such

as Robinson’s statements to police, are admissible as substantive evidence

when

the witness who gave the prior inconsistent statement
testif[ies] at trial and [is] subject to cross-examination
regarding the statement, and, also, [his] previous
inconsistent statement [is] “given under oath subject to
the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or (b) is a writing signed
and adopted by the declarant, or (c) is a verbatim
contemporaneous recording of an oral statement.”

Commonwealth v. Brown, 52 A.3d 1139, 1171 n. 52 (Pa. 2012) (citing

Pa.R.E. 803.1(1)). Prior inconsistent statements that satisfy these requisites

“must . . . be considered by a reviewing court in the same manner as any

other type of validly admitted evidence when determining if sufficient

evidence exists to sustain a criminal conviction.” Id. at 1171. Here,

Robinson testified at trial, was subject to cross-examination concerning his

statements to police, and his prior statements were writings that he signed

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and adopted. Accordingly, we must review them in the same manner as any

other valid evidence for sufficiency purposes.

In addition to Robinson’s statements, the Commonwealth furnished

other substantial evidence that Appellant committed the shooting. Minutes

after the shooting, Ford saw Appellant fleeing the scene. Appellant told Ford

that he had just “dropped” someone and asked Ford to a hide a nine-

millimeter firearm, the same caliber gun used to shoot the victim. Police

officers later recovered one nine-millimeter round from Appellant’s house. It

is reasonable to infer from all of this evidence that defendant was the

shooter. See Commonwealth v. Montalvo, 956 A.2d 926, 933 (Pa. 2008)

(defendant’s admission of murdering victim was substantive evidence of

guilt); Commonwealth v. Wallace, 561 A.2d 719, 722-23 (Pa. 1989)

(evidence that defendant was seen near scene of shooting, possessed gun

similar to one used to commit crime, and later admitted his involvement was

sufficient to convict him of murder); Truong, 36 A.3d at 600 (attempt to

dispose of murder weapon is evidence of consciousness of guilt).

The evidence also was sufficient to establish malice. To begin with,

Appellant shot the victim in the back. See Commonwealth v. Lohr, 468

A.2d 1375, 1377 (Pa. 1983) (back is vital part of body); Commonwealth v.

Martinez, 446 A.2d 899, 901 (Pa. 1982) (citation omitted) (use of deadly

weapon on vital part of victim’s body establishes malice). The callous

manner of the shooting demonstrates malice as well. Appellant claimed to

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be hunting down the man who robbed him, although it was possible that

that Appellant faked the robbery himself. Upon glimpsing the victim more

than 100 feet away, Appellant suddenly exclaimed “that’s the little

motherfucker right there,” pulled out a gun, and fired at least five shots.

N.T., 3/29/16, at 173. Afterward, he boasted that he “dropped” the victim.

Id. at 239. His lack of regard for human life and the flimsiness of his

pretext for shooting the victim evidences his “wickedness of disposition

[and] hardness of heart.” Truong, 36 A.3d at 597-98; see also

Commonwealth v. Marquez, 980 A.2d 145, 149 (Pa. Super. 2009) (en

banc) (fact that defendant sought out victim before murder supported

conclusion that he acted with malice).

Appellant further claims the evidence was insufficient because “the

Commonwealth did not present any physical or scientific evidence”

connecting him to the shooting. Appellant’s Brief at 21. We disagree. It is

the “totality of the circumstances [that is] determinative, not the presence

or absence of any particular piece of evidence[.]” Commonwealth v.

Harper, 611 A.2d 1211, 1217 (Pa. Super. 1992) (citation omitted). The

totality of evidence summarized above clearly supports the verdict of guilt.

Appellant also contends that the evidence was insufficient under

“incontrovertible physical facts rule,” which provides that a witness’s

testimony cannot be accepted, and a verdict based on this testimony cannot

stand, when the testimony “is contradicted by incontrovertible physical

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facts.” Commonwealth v. Newman, 470 A.2d 976, 979 (Pa. Super. 1984)

(citations omitted). This rule is inapplicable here, for as the Commonwealth

correctly observes, Appellant “does not point to any incontrovertible facts

that are in any way contrary to the Commonwealth’s evidence.”

Commonwealth’s Brief at 13.

Appellant asserts that the testimony was “inconsistent” and “biased,”

but he does not point out which testimony is inconsistent. Assuming

inconsistencies exist, “[this] is not, absent more, enough to destroy the

Commonwealth's case, as it is the fact finder’s function to resolve

inconsistencies by believing all, part or none of a particular witness’

testimony.” Commonwealth v. Mercado, 649 A.2d 946, 957 (Pa. Super.

1994) (citations omitted). The jury chose to resolve any inconsistencies

against Appellant, as it was entitled to do.

Appellant also contends that the evidence was insufficient to sustain

his conviction for possession of an instrument of crime. The Crimes Code

provides: “A person commits a misdemeanor of the first degree if he

possesses any instrument of crime with intent to employ it criminally.” 18

Pa.C.S. § 907(a). The same statute defines “instrument of crime” as, inter

alia, “[a]nything used for criminal purposes and possessed by the actor

under circumstances not manifestly appropriate for lawful uses it may have.”

18 Pa.C.S. § 907(d). The evidence summarized above demonstrates that

Appellant used a gun for criminal purposes and possessed it under

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circumstances not manifestly appropriate for lawful uses that it may have.

Accordingly, Appellant’s challenge to the sufficiency of the evidence for this

offense fails.

Further, Appellant argues that the evidence was insufficient to sustain

his conviction for carrying firearms without a license. We disagree. The

Crimes Code provides, with exceptions not relevant here, that “any person

who carries a firearm in any vehicle or any person who carries a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this chapter

commits a felony of the third degree.” 18 Pa.C.S. § 6106(a)(1). Viewed in

the light most favorable to the Commonwealth, the evidence demonstrates

that Appellant was carrying a firearm concealed on his person, because

Robinson did not know that Appellant was carrying a gun until he “pulled it

out” and began firing at the victim. N.T., 3/29/16, at 175. The evidence

also established that Appellant did not have a valid and lawfully issued

license to carry a firearm. Thus, Appellant’s challenge to the sufficiency of

the evidence for this offense fails.

Finally, Appellant contends that the evidence was insufficient to

sustain his conviction under 18 Pa.C.S. § 6105, entitled “Persons not to

possess, use, manufacture, control, sell or transfer firearms.” Section 6105

prohibits persons from possessing firearms if they have been “convicted” of

certain enumerated crimes, including robbery. 18 Pa.C.S. § 6105(a)(1), (b).

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Our Supreme Court recently held that juvenile adjudications of delinquency

do not qualify as “convictions” under section 6105. See Commonwealth v.

Hale, 128 A.3d 781, 785 (Pa. 2015). The evidence demonstrates that in

2013, Appellant was adjudicated delinquent for robbery. N.T., 3/31/16, at

13. Under Hale, this adjudication does not establish Appellant’s guilt under

section 6105. Accordingly, we reverse Appellant’s judgment of sentence for

this conviction.

In his second argument, Appellant contends that the trial court abused

its discretion in denying his challenge for cause to strike Juror No. 17, whose

son had been arrested two years prior for drug dealing and forgery, because

the juror “express[ed] doubts with regard to his ability to be fair.”

Appellant’s Brief at 29. We hold that the trial court should have stricken

Juror No. 17, but its failure to do so was harmless error.

During jury selection, Juror No. 17 stated that his son was addicted to

drugs and had been arrested for dealing drugs and forgery. When the trial

court informed the juror that this case involved evidence related to drug

trafficking, the following colloquy took place:

COURT: . . . [T]here may be evidence in this case that one
or more individuals were involved in the distribution of
narcotics. If you heard that evidence, given what has
been going on with your son, would that interfere with
your ability to be fair in this case?

[JUROR NO. 17]: I would try not to let it be, I guess.

COURT: It may be a hard situation. You tell me. Would
you prefer to go to another room and hear possibly

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another case, or do you think you can put [your son’s
history] aside and judge this case only on its merits?
Forget about going to the other room. The real question is
could you put aside what your personal experience—you
don’t put it aside. You have to be able to be fair and judge
this case on its merits.

[JUROR NO. 17]: Consciously I would imagine I could.

COURT: I’m asking because it sounds like this is a fairly
new situation with your son.

[JUROR NO. 17]: We are still struggling with it.

COURT: Is there anything else about you that—anything
else about your life we didn’t cover that would interfere
with your ability to be fair?

[JUROR NO. 17]: Not that I can think of.

COURT: Bottom line we are looking for jurors who could be
fair to both the defendant and Commonwealth. Are you
one of those people?

[JUROR NO. 17]: I think so.

N.T., 3/28/16, at 81-82. Appellant used a peremptory strike to dismiss

Juror No. 17. Id. at 83. By the conclusion of jury selection, Appellant used

only five of his seven peremptory challenges.

A challenge for cause for a prospective juror is sustained only where

that juror “demonstrates through his conduct and answers a likelihood of

prejudice.” Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016)

(citation omitted).

Where a prospective juror indicates that he or she
cannot be an impartial juror, much depends upon the
answers and demeanor of the potential juror as observed
by the trial judge.

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Individuals are not expected to be free from all
prejudices in order to sit on a jury and the burden here is
on appellant to establish that the challenged jurors
possessed a fixed, unalterable opinion that prevented
[them] from rendering a verdict based solely on the
evidence and the law.

Commonwealth v. Impellizzeri, 661 A.2d 422, 427 (Pa. Super. 1995),

(citations and quotation marks omitted). “[T]he test of disqualification is the

juror’s ability and willingness to eliminate the influence of his scruples and

render a verdict according to the evidence.” Penn, 132 A.3d at 502

(citation omitted). “The decision whether to disqualify a venireman is within

the discretion of the trial court and will not be disturbed on appeal absent a

palpable abuse of that discretion.” Id. (citation omitted).

The trial court abused its discretion in denying Appellant’s motion to

strike Juror No. 17 for cause. The record indicates that the juror was

uncertain whether he could put aside his son’s drug history and judge the

case fairly on its merits, because he “was still struggling with [his son’s drug

issues].” N.T., 3/28/16, at 82. The trial court should not have been

confident under these circumstances that this juror exhibited “[the] ability

and willingness to eliminate the influence of his scruples and render a verdict

according to the evidence.” Penn, 132 A.3d at 502.

Nevertheless, our review of the record reveals that the error was

harmless. Our Supreme Court has noted that

[t]he doctrine of harmless error is a technique of appellate
review designed to advance judicial economy by obviating

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the necessity for a retrial where the appellate court is
convinced that a trial error was harmless beyond a
reasonable doubt. Its purpose is premised on the well-
settled proposition that a defendant is entitled to a fair trial
but not a perfect one.

Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation

and citations omitted).

Harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de minimis;
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence
of guilt was so overwhelming and the prejudicial effect of
the error was so insignificant by comparison that the error
could not have contributed to the verdict.

Commonwealth v. Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (quotation

and citations omitted).

In this case, the trial court’s decision not to strike Juror No. 17 did not

prejudice Appellant, because Appellant peremptorily struck this individual

without exhausting his peremptory challenges. See Commonwealth v.

Kelly, 134 A.3d 59, 62 (Pa. Super. 2016), appeal denied, __ A.3d __, 2016

WL 5400621 (Pa. Sep. 27, 2016) (“[t]he improper refusal of a challenge for

cause is harmless error where the juror is excluded by a peremptory

challenge and the defendant does not exhaust his peremptory challenges”).

In his third argument, Appellant contends that the Commonwealth

violated Batson by using four peremptory challenges to strike four

prospective African-American or Hispanic jurors on the basis of race: Juror

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Nos. 9, 25, 28 and 30. The trial court held that Appellant provided prima

facie evidence that the Commonwealth struck jurors on the basis of race,8

but it determined that the Commonwealth submitted non-pretextual, race-

neutral reasons for each strike. Trial Ct. Op. at 6-7. We conclude that the

trial court acted within its discretion.

Batson provides a three-step process. First, to demonstrate a

Batson violation, the defendant must make a prima facie showing that the

Commonwealth has exercised peremptory challenges on the basis of race.

Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014) (citation omitted).

Second, if the defendant makes this showing, the burden shifts to the

prosecutor to articulate a race–neutral explanation for his peremptory

challenges. Id. This explanation need not be persuasive, or even plausible.

Commonwealth v. Towles, 106 A.3d 591, 601 (Pa. 2014). “Rather, the

issue at that stage is the facial validity of the prosecutor’s explanation.” Id.

(citation omitted). “Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.”

8
Arguably, this ruling was incorrect, because at the time of Appellant’s
Batson challenge, four of the eight impaneled jurors were African-American.
See Commonwealth v. Johnson, 139 A.3d 1257, 1283 (Pa. 2016)
(presence of seven African-Americans on jury supported finding of no prima
facie case of racial discrimination); Commonwealth v. Spotz, 896 A.2d
1191, 1212-13 (Pa. 2006) (prosecutor’s acceptance of eight women jurors,
four of whom were empaneled and four of whom were struck by defense,
supported finding of no gender discrimination).

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Commonwealth v. Williams, 980 A.2d 510, 530 (Pa. 2009) (citation

omitted).

Finally, the trial court must determine whether the defendant has

carried his burden of proving purposeful discrimination.9 Id. We accord

“great deference” to this determination and will not overturn it unless it is

“clearly erroneous.” Commonwealth v. Roney, 79 A.3d 595, 619 (Pa.

2013) (such deference is appropriate because trial court “viewed the

demeanor and heard the tone of voice of the attorney exercising the

challenge,” and is therefore “uniquely positioned to make credibility

determinations”).

Guided by these standards, we examine the peremptory strikes to

Juror Nos. 9, 25, 28 and 30. The prosecutor struck Juror No. 9 out of

concern she might be sympathetic towards Appellant. When the trial court

asked the juror whether she could be fair and impartial, she looked directly

at Appellant, smiled, and “gave a big nod.” N.T., 3/28/16, at 56-57, 116.

This was a legitimate, race-neutral reason for striking her. See Towles,

106 A.3d at 601 (prosecutor had non-discriminatory reason for dismissing

9
Appellant’s reliance on the more “flexible” approach proposed in Holloway
v. Horn, 355 F.3d 707 (3d Cir. 2004), is misplaced. Cases from the Third
Circuit are not binding on this Court. See Commonwealth v. Clark, 710
A.2d 31, 39 (Pa. 1998) (“[Pennsylvania Courts] are not bound by decisions
of federal courts inferior to the United States Supreme Court”), abrogated on
other grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).
Our Supreme Court has repeatedly declined to follow Holloway. See
Commonwealth v. Jones, 951 A.2d 294, 301 (Pa. 2008);
Commonwealth v. Fletcher, 861 A.2d 898, 910 n. 15 (Pa. 2004).

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juror who, inter alia, “expressed affinity toward defense counsel and smiled

at appellant”).

When Juror No. 25 was asked whether she knew anyone who had been

“a victim of crime,” she answered that her father had been “arrested for

selling narcotics.” N.T., 3/28/16, at 102. The prosecutor understandably

did not want jurors who considered defendants to be “victims,” because the

prosecutor intended to argue that drug dealing was the motive for this

murder. Id. at 73. Appellant argues that Juror No. 25’s reference to a drug

dealer as a “victim” was merely the “result of nervousness.” Appellant’s

Brief at 38. There is no evidence in the record that the juror was nervous.

In any event, Appellant’s beliefs about the juror do not demonstrate that the

prosecutor lacked a race-neutral reason for striking her. Commonwealth

v. Rico, 711 A.2d 990, 996 (Pa. 1998) (fact that prospective juror appeared

fearful was nondiscriminatory reason for striking him). The trial court

properly accepted the prosecutor’s race-neutral reason for striking Juror No.

25.

Juror No. 28 had previously been on a jury in a drug case. When

asked about that experience, the juror referred to that prior defendant as a

“gentleman.” N.T., 3/28/16, at 109. The prosecutor explained that he “d[id

not] want someone” on the jury “who thinks drug dealers are gentleman.”

Id. at 116. While there might be more persuasive rationales for striking a

juror, it was within the trial court’s discretion to find that this rationale was

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race-neutral. See Commonwealth v. Jones, 668 A.2d 491, 519 n. 31 (Pa.

1995) (potential juror’s relationship to persons arrested or convicted of

crimes is legitimate non-discriminatory reason for striking them) (citations

omitted); Commonwealth v. Thompson, 106 A.3d 742, 752 n. 10 (Pa.

Super. 2014) (prosecutor had race-neutral reason for striking prospective

juror who was drug and alcohol caseworker, because prosecutor believed

she “would sympathize with Appellant”) (citation omitted).

Finally, the prosecutor used a peremptory challenge to strike Juror No.

30 out of concern he would not be a competent juror. On his questionnaire,

the juror indicated that he was both more and less likely to believe a police

officer, and he failed to offer an explanation for this discrepancy. N.T.,

3/28/16, at 112. The prosecutor reasoned that if the juror could not

understand his responses were “mutually exclusive,” he would not be able to

handle the issues that were going to arise during trial. Id. at 115. This was

a legitimate, race-neutral reason for striking him. See Rico, 711 A.2d at

996 (prosecutor’s concern that prospective juror would not be able to

“comprehend the facts of the case” was legitimate, ethnically neutral reason

for striking her); see also Towles, 106 A.3d at 600-01 (prosecutor had

non-discriminatory reason for dismissing jurors who, inter alia, “indicated

[they] would be less likely to believe testimony from a police officer”).

Appellant claims the prosecutor’s reasons offered are “pretextual” by

speculating about other possible explanations for Juror No. 30’s answers,

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e.g., that the jury questionnaire was supposedly “very confusing.”

Appellant’s Brief at 37-38. The fact that Appellant disagrees with the

prosecutor’s reasons for striking this juror does not mean the prosecutor

engaged in racial discrimination. The trial court acted within its discretion by

permitting the prosecutor to strike a juror whom he thought appeared

confused.

For these reasons, Appellant’s Batson arguments fail.

In his fourth argument, Appellant contends that the trial court erred in

denying his motion for a mistrial after the Commonwealth stated in its

openings remarks that Appellant sold “poison on the streets,” referring to

drug trafficking. N.T., 3/29/16, at 19. The trial court denied Appellant’s

request and offered a curative jury instruction, but defense counsel declined.

Id. at 88-92. Appellant argues that the remark was irrelevant, because

drug trafficking was not a relevant factor in the case.

The court may grant a mistrial “[w]hen an event prejudicial to the

defendant occurs during trial[.]” Pa.R.Crim.P. 605(B). A mistrial is a

remedy of last resort; “[a] trial court is required to grant a mistrial only

where the alleged prejudicial event may reasonably be said to have deprived

the defendant of a fair and impartial trial.” Commonwealth v.

Fortenbaugh, 63 A.3d 191, 193 (Pa. 2013) (citation omitted). The decision

to deny a mistrial is subject to review for abuse of discretion. Id.

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Here, Appellant waived his motion for mistrial by failing to make this

motion at the time of the prosecutor’s remark. Instead, he waited until after

the prosecutor finished, thirteen transcript pages later, before attempting to

bring the remark to the court’s attention. N.T., 3/29/16, at 32; see

Commonwealth v. Smith, 410 A.2d 787, 790 (Pa. 1980) (mistrial claim

waived where request not made until two or three minutes after alleged

prejudicial remark); Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa.

Super. 2007) (mistrial claim waived where appellant did not challenge

prosecutor’s statement until after closing argument); Commonwealth v.

Jones, 543 A.2d 548, 550 (Pa. Super. 1988) (appellant’s objection to

prosecutor’s improper remark must be contemporaneous with remark).

Even if Appellant preserved this issue for appeal, it is devoid of merit.

A prosecutor’s remarks do not warrant relief unless their unavoidable effect

was “to prejudice the jurors by forming in their minds a fixed bias and

hostility toward the defendant.” Commonwealth v. Paddy, 800 A.2d 294,

316 (Pa. 2002) (citation omitted). The challenged remarks should not be

viewed in isolation but in context. Commonwealth v. Smith, 985 A.2d

886, 907 (Pa. 2009).

Appellant claims it was improper for the prosecutor to reference his

drug trade because it supposedly was “only tangentially involved” in the

case. Appellant’s Brief at 42. We disagree. Appellant’s drug trade was

relevant because it established his motive for the murder and explained his

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relationship with the Commonwealth’s key witnesses. See Commonwealth

v. Stern, 573 A.2d 1132, 1137 (Pa. Super. 1990) (prosecutor’s references

to defendant’s involvement in drugs and gang violence were permissible in

murder trial where drug dealing provided motive for murder);

Commonwealth v. Barnhart, 434 A.2d 191, 193 (Pa. Super. 1981)

(evidence of other crimes defendant committed with co-conspirator

admissible to explain their relationship). Appellant shot the victim in

supposed retaliation for allegedly stealing money that belonged to

Appellant’s drug organization that Appellant was supposed to pay back to his

employers at the end of the night. N.T., 3/29/16, at 231. Ford explained at

trial that it was common for “caseworkers” in their organization, like

Appellant, to claim falsely they had been robbed so they could keep the

money for themselves. Id. at 236. Based on this evidence, the

Commonwealth argued that Appellant murdered a random victim to cover up

his own theft and prove to his manager that he had been robbed. Moreover,

even if Appellant’s version was true and the decedent robbed him, this did

not entitle Appellant to shoot him dead. As the trial court reasoned, “either

way,” Appellant’s drug trade was “the impetus behind the shooting.” Trial

Ct. Op. at 9. Therefore, it was proper for the prosecutor to reference drug

trafficking in his opening argument. See Commonwealth v. Collins, 70

A.3d 1245, 1254 (Pa. Super. 2013) (prosecutor did not commit misconduct

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by arguing to jury that the killing was the result of an ongoing gang war;

argument was permissible inference from evidence submitted during trial).10

In his fifth argument, Appellant contends that the trial court abused its

discretion by permitting the Commonwealth to present prosecutors Emily

Rodriguez and Edward Cameron to testify about cooperation agreements

with Robinson.

The “admissibility of evidence is a matter directed to the sound

discretion of the trial court, and an appellate court may reverse only upon a

showing that the trial court abused its discretion.” Commonwealth v.

McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003) (citation omitted). The

Commonwealth properly presented Rodriguez and Cameron, Assistant Chief

of the Homicide Unit, in response to defense counsel’s question to Robinson

about whether he may have received deals in exchange for his testimony.

N.T., 3/29/16, at 200-02. Rodriguez testified that in February or March of

2015, she conveyed an offer to Robinson for possession with the intent to

deliver, but that at the time of the offer, she had no knowledge of the case

at bar. N.T., 3/30/16, at 8-13. Cameron testified that he reviewed the file

for the present case to see whether he, Cameron, or any other chief in the

10
It also deserves mention that Appellant declined a curative instruction,
N.T. 3/29/16, at 89, which could have cured any imagined prejudice. This
further supports the trial court’s conclusion that a mistrial was unnecessary.
See Commonwealth v. Johnson, 668 A.2d 97, 105 (Pa. 1996) (“Appellant
cannot now claim the trial court erred in refusing to take an action when the
basis for the court’s inaction was counsel’s failure to pursue the offer of the
curative instruction”).

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District Attorney’s Office approved a cooperation agreement for Robinson.

Id. at 19-21. He found no agreement. Id.

Appellant claims this testimony was unfairly prejudicial because it

supposedly had the “impermissible tendency to vouch for Robinson’s

credibility.” Appellant’s Brief at 45. Rodriguez and Cameron, however, did

not offer any opinion on Robinson’s truthfulness; they merely denied

Appellant’s claim that they had struck a “deal” with Robinson. See

Commonwealth v. Reid, 99 A.3d 427, 447-48 (Pa. 2014) (rejecting claim

that prosecutor improperly vouched for witness’s credibility by referencing

terms of witness’s plea agreement; prosecutor made no “personal

assurances” as to the “veracity of [the witness]’s testimony”). Since

Appellant had opened the door to this issue, the Commonwealth had the

right to respond. See Commonwealth v. Williams, 896 A.2d 523, 541-42

(Pa. 2006) (where defense used terms of witness’s plea agreement to call

into question the witness’s “motivations for testifying,” he cannot complain

that “the Commonwealth impermissibly bolstered [the witness]’s credibility

by rebutting his line of questioning”).

In his sixth issue, Appellant argues that the trial court abused its

discretion by permitting Detective Frank Mullen to read a portion of Ford’s

statement into the record in which Ford identified Appellant in a photo array

and identified himself in a photograph recovered from video surveillance

footage recorded near the time of the murder. Appellant argues that this

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testimony was inadmissible hearsay. We conclude that this testimony was

admissible to show the detective’s course of conduct in investigating the

case. Therefore, no relief is due.

Hearsay is defined as “an out-of-court statement offered to prove the

truth of the matter asserted in the statement.” Commonwealth v. Kuder,

62 A.3d 1038, 1055 (Pa. Super. 2013) (citation omitted). Hearsay is

generally deemed unreliable because “the declarant is not before the trier of

fact and cannot be challenged as to the accuracy of the statement.”

Commonwealth v. Rush, 605 A.2d 792, 795 (Pa. 1992) (citation omitted).

Evidence is not hearsay, however, when the proponent introduces it to

explain a course of conduct. See Commonwealth v. Trinidad, 96 A.3d

1031, 1037 (Pa. Super. 2014) (trial court properly permitted detective to

testify to witness’s identification of Appellant as the perpetrator, where

testimony was offered only “to explain the detective’s course of conduct in

questioning Appellant”); Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa.

Super. 2007) (out-of-court statements offered “to explain the course of

conduct undertaken by an investigating police officer” are not hearsay).

Detective Mullen testified that he applied for the arrest warrant for

Appellant, and the prosecutor asked him to describe “the evidence . . . that

led [him] to apply” for that warrant. N.T., 3/30/16, at 31. He explained

that he had first recovered video surveillance footage from neighboring

businesses, Id. at 33-45, and then interviewed Robinson, who identified

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Appellant as the shooter. Id. at 46-54. Based on the information Robinson

provided, Detective Mullen interviewed Ford. Id. at 54. He testified that

Ford had identified himself in a photograph recovered from the video

surveillance footage and picked out Appellant from a photo array. Id. at 55-

57. Only after speaking with Ford did he obtain an arrest warrant for

Appellant and search warrants that led to the discovery of ammunition in

Appellant’s house. Id. at 58-59, 66.

The Commonwealth did not offer Ford’s out-of-court statement to

prove that Ford in fact identified Appellant. Ford’s own testimony had

already established his identification of Appellant. N.T., 3/29/16, at 244-47.

Instead, the purpose for offering Ford’s statement was to demonstrate

Detective Mullen’s course of conduct in investigating the case. Therefore, it

was admissible.

Citing Commonwealth v. Tann, 459 A.2d 322 (Pa. 1983), Appellant

also argues that Detective Mullen’s testimony was improper because it had

“the tendency to bolster” Ford’s credibility. Appellant’s Brief at 49. The

Supreme Court held in Tann that trial counsel was ineffective for failing to

object to the testimony of two Commonwealth witnesses on the ground of

relevance. Id. at 328. Here, Appellant does not dispute that Detective

Mullen’s testimony was relevant, so his reliance on Tann is misplaced.

Appellant also asserts that a detective does not “[o]rdinarily . . . read

another Commonwealth’s witness[’s] statement to show the course of

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conduct.” Appellant’s Brief at 48. We do not find this persuasive.

Regardless of whether the evidence is not what Appellant believes the

Commonwealth “ordinarily” presents, it is still admissible.

In his seventh and final argument, Appellant claims that the trial erred

by denying his request for a jury instruction concerning bias of

Commonwealth witnesses. More specifically, he requested the trial court to

instruct the jury that “you should accept this witness’s testimony with

caution if you determine that they are testifying in the hope of [favorable

treatment from the Commonwealth].” N.T., 3/30/16, at 4-5. Appellant

argues that the instruction that the trial court gave did not cover witness

bias issues. We disagree.

The trial court chose to give the jury the following instructions:

You [the jury] must consider and weigh the testimony
of each witness and give it such weight as in your
judgment it’s fairly entitled to receive. The matter of the
credibility of a witness, that is, whether the witness’
testimony is believable and accurate in whole or in part, is
solely for your determination. I’m now going to mention
some of the factors which might bear on that
determination.

Whether the witness has any interest in the outcome of
the case or has a friendship or animosity toward other
persons concerned in the case. The behavior of the
witness on the witness stand. The witness’[s] demeanor,
the witness’[s] manner of testifying and whether the
witness shows any bias or prejudice[,] which might color
that testimony. The accuracy of the witness’[s] memory
and recollection. The witness’[s] ability and opportunity to
acquire knowledge of or to observe the matters concerning
which he or she testifies. The consistency or inconsistency
of the testimony, as well as its reasonableness or

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unreasonableness in light of all of the evidence in this
case.

In deciding which of [the] conflicting testimony to
believe, you should not necessarily be swayed by the
number of witnesses. You should consider whether
the witnesses appear to be biased or unbiased
whether they are interested or disinterested
persons, and all other factors which go to the
reliability of their testimony. The important thing is the
quality of the testimony of each witness. You should also
consider the extent to which conflicting testimony is
supported by other evidence. Now, you heard evidence
in this case that I believe both of the witnesses who
testified, the civilian witnesses, had open criminal
matters. And there was also some testimony that
they were at various points either on probation or
parole. The purpose for which you can consider an
open case and the fact that they’re on probation or
parole is in determining the witness’[s] credibility.
Remember, I touched upon this before. So when
you consider this information for credibility, you may
consider whether the witness had any potential bias
or interest or whether he testified for the
prosecution to gain favorable treatment in his own
case.

N.T., 3/30/16, at 146-47 (emphases added).

When reviewing a challenge to a trial court’s refusal to give a jury

instruction, an appellate court’s task is to determine whether the trial court

“abused its discretion or committed an error of law.” Commonwealth v.

Clouser, 998 A.2d 656, 658 (Pa. Super. 2010) (citation omitted). A trial

court has broad discretion in fashioning its jury instructions so long as the

law is clearly and accurately set forth. Commonwealth v. Scott, 73 A.3d

599, 602 (Pa. Super. 2013) (trial court is “not required to give every charge

that is requested by the parties”). It should not confuse the jury by

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instructing them on “legal principles which have no application to the facts

presented at trial.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257

(Pa. Super. 2014) (en banc) (citation omitted).

The trial court’s instruction was satisfactory. The court listed several

factors the jury should consider in weighing the testimony of each witness,

including “[w]hether the witness has any interest in the outcome of the

case” or “shows any bias . . . which might color” their testimony. N.T.

3/30/16, at 146; see Commonwealth v. Slyman, 483 A.2d 519, 529 (Pa.

Super. 1984) (jury instruction was “adequate[]” where it advised the jurors

to consider “any interest that the witnesses may have in the outcome of the

case”). The trial court also reminded the jury that they had heard testimony

that both civilian witnesses had “open criminal matters,” and advised them

to consider those open cases in determining the witnesses’ credibility. N.T.,

3/30/16, at 149. It specified that the open cases could go to “whether the

witness had any potential bias or interest,” or “whether he testified for the

prosecution to gain favorable treatment in his own case.” Id. This language

captured the essence of the instruction requested by Appellant. The mere

fact that the trial court did not use the precise words Appellant preferred is

not a basis for relief. See Scott, 73 A.3d at 602 (“[court’s] refusal to give a

requested charge does not require reversal unless the appellant was

prejudiced by that refusal”).

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Accordingly, we affirm Appellant’s convictions for third degree murder,

possession of an instrument of crime and carrying firearms without a license.

We reverse Appellant’s conviction under 18 Pa.C.S. § 6105. Reversal of this

conviction, however, does not upset Appellant’s sentencing scheme, because

the trial court did not impose any penalty for this offense. Accordingly, it is

not necessary to remand this case for resentencing.

Judgment of sentence affirmed in part and reversed in part. The

convictions for third degree murder, possession of an instrument of crime

and carrying firearms without a license are affirmed. The conviction under

18 Pa.C.S. § 6105 is reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2017

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