J-S14005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAMAR DOUGLAS CLARK :
:
Appellant : No. 1289 MDA 2016
Appeal from the Judgment of Sentence July 7, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005760-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 25, 2017
Appellant, Lamar Douglas Clark, appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas, following
his jury trial convictions of one count each of third-degree murder and
firearms not to be carried without a license, two counts of aggravated
assault, and eleven counts of recklessly endangering another person.1 We
affirm.
In its opinion, the trial court full and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
____________________________________________
1
18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 2702(a)(1), and 2705, respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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DID THE TRIAL COURT ERR IN FINDING THAT THERE WAS
SUFFICIENT EVIDENCE AT TRIAL TO SUPPORT THE JURY
VERDICT OF GUILTY TO COUNT 5, AGGRAVATED
ASSAULT, WHEN THE COMMONWEALTH DID NOT
ESTABLISH THAT [APPELLANT] HAD THE SPECIFIC INTENT
TO ATTEMPT TO CAUSE SERIOUS BODILY INJURY TO
CYNTHIA BOOTS AND CYNTHIA BOOTS DID NOT SUFFER
SERIOUS BODILY INJURY[?]
DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION IN OVERRULING [APPELLANT’S] REQUESTED
PENNSYLVANIA SUGGESTED STANDARD JURY
INSTRUCTION 9.501 THAT INCLUDED THE LANGUAGE “OR
SUBJECT TO THE FELONIOUS ACT OF ROBBERY” WHEN
THIS WAS PART OF [APPELLANT’S] THEORY OF THE CASE
AND WAS SUPPORTED BY EVIDENCE PRESENTED[?]
DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION IN REFUSING TO GRANT A MISTRIAL
AND/OR CURATIVE INSTRUCTION DUE TO
PROSECUTORIAL MISCONDUCT DURING CLOSING
ARGUMENT IN THE FORM OF PERSONAL OPINION,
BOLSTERING THE CREDIBILITY OF COMMONWEALTH
WITNESSES, MAKING ARGUMENT OF EVIDENCE NOT IN
THE RECORD, AND SHIFTING THE BURDEN OF PROOF TO
[APPELLANT?]
(Appellant’s Brief at 7).
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict 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
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011), aff’d,
621 Pa. 401, 78 A.3d 1044 (2013) (quoting Commonwealth v. Galvin, 603
Pa. 625, 651, 985 A.2d 783, 798-99 (2009), cert. denied, 559 U.S. 1051,
130 S.Ct. 2345, 176 L.Ed.2d 565 (2010)). “The trial court has broad
discretion in formulating jury instructions, as long as the law is presented to
the jury in a clear, adequate, and accurate manner.” Commonwealth v.
Lukowich, 875 A.2d 1169, 1174 (Pa.Super. 2005), appeal denied, 584 Pa.
706, 885 A.2d 41 (2005).
[A] trial court is not obligated to instruct a jury upon legal
principles which have no applicability to the presented
facts. There must be some relationship between the law
upon which an instruction is requested and the evidence
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presented at trial. However, a defendant is entitled to an
instruction on any recognized defense which has been
requested, which has been made an issue in the case, and
for which there exists evidence sufficient for a reasonable
jury to find in his or her favor.
Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.Super. 2006), appeal
denied, 591 Pa. 679, 917 A.2d 312 (2007) (citation omitted)
Similarly, “review of a trial court’s denial of a motion for mistrial is
limited to determining whether the trial court abused its discretion.”
Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014), appeal
denied, 632 Pa. 679, 118 A.3d 1107 (2015). “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.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable James P.
Cullen, we conclude Appellant’s issues on appeal merit no relief. The trial
court opinion comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed October 3, 2016, at 4-
16) (finding: (1) both Commonwealth witness, Veldresha Lucas, and
defense witness, Joshua Welsh, testified that Appellant pointed gun at
Joshwin Gonzalez prior to firing several shots; this testimony was sufficient
to establish Appellant’s intent to cause serious bodily injury to Mr. Gonzalez,
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which transferred to Cynthia Boots when she was struck by bullet; even
without consideration of doctrine of transferred intent, Appellant acted
recklessly under circumstances manifesting extreme indifference to value of
human life when he fired gun into crowded barroom; additionally, Ms. Boots
suffered serious bodily injury because gunshot to her chest resulted in blood
loss, possibility of infection, scarring, and ongoing pain; under these
circumstances, jury properly convicted Appellant of aggravated assault of
Ms. Boots; (2) Appellant asked court to include, in jury instruction on
justification, reference to Appellant’s reasonable belief he was subject to
felonious act of robbery; nevertheless, defense reference to Dennis Ishman
and Mr. Gonzalez “setting up” Appellant was too vague and speculative to
warrant inclusion of requested robbery language; thus, court properly
declined to include reference to robbery in jury instruction on justification;
(3) with respect to prosecutor’s reference to Commonwealth’s duty to
provide all evidence to defense and statement that defense worked
backwards from Commonwealth’s evidence, these comments did not
constitute improper testimony by prosecutor or inappropriately shift burden
of proof to defense; prosecutor stated multiple times during closing
argument that Commonwealth had burden of proof at trial; additionally,
prosecutor’s remarks were responsive to comments made by defense
counsel about the omission of certain evidence at trial; statement in
question was merely part of longer argument on credibility of defense
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witnesses and did not constitute prosecutorial misconduct; with respect to
prosecutor’s comments on Commonwealth’s duty to disclose deals made
with witnesses, prosecutor’s remarks simply demonstrated that
Commonwealth would have disclosed any promise made to Ms. Lucas in
exchange for her testimony; comment was also directly responsive to
defense counsel’s comments about Ms. Lucas’ pending charges and possible
benefits she might gain as Commonwealth witness; further, aspects of
prosecutor’s statement were mere oratorical flourish and did not improperly
bolster Ms. Lucas’ credibility; under these circumstances, prosecutor’s
reference to lack of deal with Ms. Lucas’ did not constitute prosecutorial
misconduct; with respect to prosecutor’s comments about defense counsel’s
ability to call witnesses and present evidence, Appellant waived any
challenge to this statement for failure to raise issue in his objection to
closing arguments at trial; finally, with respect to prosecutor’s comments on
testimony of defense witness, Mr. Welsh, prosecutor’s statements were basic
oratorical flair used during closing arguments; further, prosecutor’s remarks
were similar in style to comments made by defense counsel about credibility
of Commonwealth witnesses; comments were within latitude given to
prosecutor in closing arguments and were manifestation of prosecutor’s right
to respond to points raised by defense counsel; moreover, court instructed
jury to disregard any opinions voiced on credibility of witnesses; under these
circumstances, prosecutor’s comments on testimony of Mr. Welsh did not
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constitute prosecutorial misconduct; therefore, court properly denied
Appellant’s request for mistrial). Accordingly, we affirm on the basis of the
trial court opinion.
Judgment of sentence affirmed.
Judge Shogan joins this memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
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Circulated 03/07/2017 01:50 PM
Com. v. Clark, L.
Combined Opinion