J-S29038-18
2018 PA Super 173
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RHECHIID JONES, :
:
Appellant : No. 1830 EDA 2017
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007948-2015
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED JUNE 20, 2018
Appellant Rhechiid Jones appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on January 27,
2017, following his conviction by a jury on the charges of first-degree murder
and firearms not to be carried without a license.1 After a careful review, we
affirm.
Following the shooting death of Ricky Rodriguez, Appellant was
arrested, and represented by counsel, he proceeded to a jury trial. The trial
court has aptly summarized the testimony presented at trial as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Officers Paul Buzzone, Jason Seigafuse, Francis
Graf, Norman DeFields, Edward Slater, Thomas Morgan, and Brian
Stark; Philadelphia Detectives Joseph Bamberski, Frank Mullen,
Thorsten Lucke, John Keen, John Bartol, and Donald Marano;
Philadelphia Associate Medical Examiner Dr. Daniel Brown; and
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1 18 Pa.C.S.A. §§ 2502(a) and 6106(a)(1), respectively.
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* Former Justice specially assigned to the Superior Court.
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Samantha Schofield, Jared Craiter, Jill Davis, and Christopher
Lopez. [Appellant] presented no evidence. Viewed in the light
most favorable to the Commonwealth as the verdict winner, the
evidence established the following.
During the early morning hours of June 14, 2015,
[Appellant] and Ricky Rodriguez got into an argument over drug
territory near the 1800 block of Thayer Street in Philadelphia.
N.T., 1/25/17, at 86. Some hours after the initial argument,
[Appellant] returned to the scene and fired multiple shots at
Rodriguez. [Id.] at 85-86. Multiple witnesses were on the scene
at the time of the shooting: Samantha Schofield and Christopher
Lopez were within a few feet of Rodriguez, while Jared Craiter was
approximately a half-block away. N.T., 1/24/17, at 107, 144;
[N.T.,] 1/25/17, at 85.
Rodriguez was shot five times: once in the head, twice in
the back, and twice in the buttocks. N.T., 1/24/17, at 83-89.
Philadelphia Police Officers responded to the scene upon the
report of shots fired and found Rodriguez lying face down on the
ground and unresponsive. N.T., 1/24/17, at 57, 60. He was
pronounced dead on the scene by the Philadelphia Fire
Department Medic Unit. N.T., 1/24/17, at 94-95.
Philadelphia Police Detectives then conducted an
investigation of the shooting. N.T., 1/25/17, at 136-38. During
the course of the investigation, Samantha Schofield, Jared Craiter,
and Christopher Lopez positively identified [Appellant] as the
shooter. N.T., 1/24/17, at 126, 128-29, 179-80; [N.T.,] 1/25/17,
at 106. Additionally, detectives recovered a video recording of the
incident. N.T., 1/25/17, at 15-16.
Trial Court Opinion, filed 8/17/17, at 1-2.
At the conclusion of all testimony, the jury convicted Appellant of the
aforementioned offenses, and on January 27, 2017, the trial court sentenced
Appellant to an aggregate of life in prison.2 On February 3, 2017, Appellant
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2 At the conclusion of the sentencing hearing, the trial court specifically
informed Appellant of his post-sentence and appellate rights. N.T., 1/27/17,
at 9-10.
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filed a timely post-sentence motion in which he set forth the following issues
(verbatim):
1. The prosecutor engaged in prosecutorial misconduct in his
statements during closing argument that mentioned the impact
that the decedent’s death had on his family. These
inflammatory statements were designed to invoke the passions
of the jury.
2. The prosecutor engaged in prosecutorial misconduct in his
statements during closing argument that defense counsel
questioned his integrity because Defense Counsel knew that
the rules prohibited the witness Jill Davis from making a [sic]
in court identification.
3. The weight of the evidence was so lacking as to shock the
conscience in that the inconsistencies in the identification
testimony was vague and inconclusive.
Appellant’s Post-Sentence Motion, filed 2/3/17, at 1.
On May 24, 2017, the trial court summarily denied the post-sentence
motion, and this timely, counseled appeal followed. On June 12, 2017, the
trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement. 3 On June
30, 2017, counsel filed a timely Rule 1925(b) statement on behalf of Appellant
in which he presented the following issues (verbatim):
1. The prosecutor engaged in prosecutorial misconduct in his
statements during closing argument that mentioned the impact
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3 The trial court’s order complied fully with Pa.R.A.P. 1925. Specifically, the
order informed Appellant that he was required to file his concise statement
within twenty-one days and that he was required to file a copy and serve a
copy of the statement on the trial judge. Further, the order specifically
informed Appellant that any issues not contained in the Rule 1925(b)
statement would be deemed to have been waived. The concise statement
order was docketed, and a notation on the docket indicates that the order was
served on Appellant’s counsel via first class mail on June 9, 2017.
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that the decedent’s death had on his family. These
inflammatory statements were designed to invoke the passions
of the jury.
2. The prosecutor engaged in prosecutorial misconduct in his
statements during closing argument that defense counsel
questioned his integrity because Defense Counsel knew that
the rules prohibited the witness Jill David from making a [sic]
in court identification of [Appellant]. This was an intentional
misstatement of the law of in court identification.
3. The weight of the evidence was so lacking as to shock the
conscience in that the inconsistencies in the identification
testimony was vague and inconclusive.
Appellant’s Pa.R.A.P. 1925(b) Statement, filed 6/30/17.
On August 17, 2017, the trial court filed a responsive Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant presents the following issues in his Statement of
Questions Involved (verbatim):
I. Is [Appellant] entitled to an Arrest of Judgment on the
charge of Murder in the First Degree where the
Commonwealth did not prove beyond a reasonable doubt
that [Appellant] had a specific intent to kill nor acted with
premeditation?
II. Is [Appellant] entitled to a new trial on the charge of Murder
in the First Degree where the weight of the evidence does
not support the verdict as the weight of the evidence does
not support a finding of specific intent to kill or
premeditation[?]
III. Did the prosecutor engage in prosecutorial misconduct in his
statements during closing argument that mentioned and
referenced the impact of the decedent’s death upon his
family where said statements were inflammatory and
designed to invoke the passions of the jury?
IV. Did the prosecutor engage in prosecutorial misconduct in his
statements during closing argument when he said that
defense counsel questioned his integrity because defense
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counsel knew that the rules prohibited the witness, Jill
David, from making an in-court identification of [Appellant]
and all where same was an intentional misstatement of the
law?
Appellant’s Brief at 3.
In his first issue, Appellant contends the Commonwealth presented
insufficient evidence to prove first-degree murder, and therefore, he was
entitled to an arrest of judgment on the charge. In response, the
Commonwealth contends Appellant waived the claim by failing to include it in
his court-ordered Pa.R.A.P. 1925(b) statement. We agree with the
Commonwealth and find Appellant’s first issue to be waived. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
In his second issue, Appellant contends the jury’s verdict of guilt as to
first-degree murder was contrary to the weight of the evidence.4 Specifically,
in his appellate brief, he avers “[c]ertainly and without a doubt, any proper
review would have revealed that the elements of premeditation and specific
intent to kill were not made out[.]” Appellant’s Brief at 13. In response, the
Commonwealth contends Appellant waived his specific weight claim. We
agree.
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4 Appellant has presented no weight of the evidence claim as to his conviction
for firearms not to be carried without a license.
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In his post-sentence motion and court-ordered Rule 1925(b) statement,
Appellant challenged the weight of the evidence with regard to his first-degree
murder conviction. However, in both instances, he specifically averred “[t]he
weight of the evidence was so lacking as to shock the conscience in that the
inconsistencies in the identification testimony was vague and inconclusive.”
Appellant’s Post-Sentence Motion, filed 2/3/17; Appellant’s Pa.R.A.P. 1925(b)
Statement, filed 6/30/17. However, in his appellate brief, as indicated supra,
Appellant presents a new theory with regard to the weight of the evidence.
As an initial matter, a challenge to the weight of the evidence must be
preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing.5 Pa.R.Crim.P. 607(A)(1)-(3). “The
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.” Comment
to Pa.R.Crim.P. 607. If an appellant never gives the trial court the opportunity
to provide relief, then there is no discretionary act that this Court can review.6
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5 Appellant presented no weight of the evidence claim in a written motion
before sentencing or orally prior to sentencing. However, as indicated, he
presented a specific weight of the evidence claim in a timely post-sentence
motion.
6 In his brief, Appellant requests that, in reviewing his weight of the evidence
claim, this Court “look at the evidence anew.” Appellant’s Brief at 13.
However, Appellant’s request is contrary to our well-established standard of
review in weight claims. Commonwealth v. Konias, 136 A.3d 1014, 1022
(Pa.Super. 2016) (“When we review a weight-of-the-evidence challenge, we
do not actually examine the underlying question; instead, we examine the
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Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa.Super. 2014).
Further, as indicated supra, issues not presented in a court-ordered Pa.R.A.P.
1925(b) statement are deemed waived on appeal.7 Pa.R.A.P. 1925(b)(4)(vii).
Here, Appellant has improperly raised new theories of relief for the first
time on appeal, and thus, Appellant’s weight of the evidence claim based upon
these theories is waived. Simply put, since Appellant failed to raise his
particular new weight theories before the trial court and the trial court did not,
therefore, review the new theories and weigh the evidence according to it,
there is no discretion for this Court to review. See Konias, supra.
In his third and fourth issues, Appellant contends the prosecutor
committed prosecutorial misconduct during closing arguments to the jury.
Initially, we note that in reviewing a claim of improper prosecutorial
comments, our standard of review “is whether the trial court abused its
discretion.” Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 198
(1997). Additionally,
[W]ith specific reference to a claim of prosecutorial misconduct in
a closing statement, it is well settled that any challenged
prosecutorial comment must not be viewed in isolation, but rather
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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.”) (citations, quotation marks, and quotations omitted)).
7 We note that, even if Appellant had raised the specific weight claim for the
first time in his Rule 1925(b) statement, it would not have “undone” the waiver
resulting from Appellant’s failure to raise the specific weight claim in
accordance with Pa.R.Crim.P. 607. Commonwealth v. Ali, 608 Pa. 71, 10
A.3d 282 (2010).
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must be considered in the context in which it was offered. Our
review of a prosecutor’s comment and an allegation of
prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial. Thus, it is well
settled that statements made by the prosecutor to the jury during
closing argument will not form the basis for granting a new trial
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 they could not weigh the evidence
objectively and render a true verdict. The appellate courts have
recognized that not every unwise remark by an attorney amounts
to misconduct or warrants the grant of a new trial. Additionally,
like the defense, the prosecution is accorded reasonable latitude,
may employ oratorical flair in arguing its version of the case to
the jury, and may advance arguments supported by the evidence
or use inferences that can reasonably be derived therefrom.
Moreover, the prosecutor is permitted to fairly respond to points
made in the defense’s closing, and therefore, a proper
examination of a prosecutor’s comments in closing requires review
of the arguments advanced by the defense in summation.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016) (quotation
marks, quotation, and citations omitted).
With regard to his prosecutorial misconduct claims, Appellant first
alleges “[t]he prosecutor, showing no shame, went right for the sympathy
card.” Appellant’s Brief at 13. In this vein, Appellant points to the following
relevant excerpt from the prosecutor’s closing argument:
[PROSECUTOR]: Every one of us, every one of us, [Appellant],
[defense counsel], all of us have the right to tomorrow, the chance
to better ourselves. He stole those days from Ricky Rodriguez.
All of them. But there is a flip side to that coin. Because tomorrow
will go on, and tomorrow, Jose Alvarado, Ricky Rodriguez’s friends
and family, they will wake up, but they will never be right.
Ladies and gentlemen, losing someone that you love cuts a
hole in you that will never be filled.
[DEFENSE COUNSEL]: Objection, Your Honor.
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THE COURT: Sustained. The jury needs to focus on the
evidence and not sympathy.
[PROSECUTOR]: He stole all of those days.
[DEFENSE COUNSEL]: Again, I would object, Your Honor.
THE COURT: Sustained.
N.T., 1/26/17, at 54.
Appellant contends the prosecutor’s statements were highly
inflammatory such that a new trial is warranted. We conclude Appellant is not
entitled to relief.
As the aforementioned reveals, Appellant lodged two objections to the
prosecutor’s statements relating to sympathy for the decedent and his family.
The trial court sustained both objections. Appellant requested no further
relief. Specifically he did not request a mistrial or a curative instruction.
Accordingly, as the trial court suggests in its Rule 1925(a) opinion, Appellant
waived his claim that he is entitled to a new trial with regard to the excerpt
from the prosecutor’s closing argument set forth supra. See Trial Court
Opinion, filed 8/17/17, at 4;8 Commonwealth v. Manley, 985 A.2d 256
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8 In any event, even if not waived, we conclude Appellant is not entitled to a
new trial on this basis. During its charge to the jury, the trial court gave the
following relevant instruction:
As you go along, you should use the law that I give you and reach
your decision as to whether the defendant is guilty or not guilty of
each of the charges brought against him. Do not, of course, base
your decision on sympathy for or prejudice against the defendant
or the crimes that have been charged here or the witnesses.
N.T., 1/26/17, at 58. Accordingly, the trial court cured any possible prejudice
resulting from the prosecutor’s remarks so as not to require a new trial. See
Commonwealth v. Moretti, 516 A.2d 1222 (Pa.Super. 1986).
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(Pa.Super. 2009) (holding that where the trial court has sustained the
objection, even where a defendant objects to specific conduct, the failure to
request a remedy such as a mistrial or curative instruction is sufficient to
constitute waiver).
Appellant next alleges the prosecutor improperly indicated defense
counsel impugned the prosecutor’s integrity and, then, the prosecutor
improperly impugned defense counsel’s integrity. Appellant contends the
prosecutor’s statements took the jury’s focus away from the evidence. In
support of his argument, Appellant points to the following relevant excerpt
from the prosecutor’s closing argument:
[PROSECUTOR]: And I want to talk a little bit because [defense
counsel] brought this up, and it actually makes me angry, because
he’s impugning my integrity as well as the detectives. Ms. Davis,
when we spoke to her and you heard Detective Bartol say, we
looked for her, we tried to show her a photo array to see if she
could make an identification, and we could never find her.
Remember, at that point she told you she was willing to do
anything to find heroin. She was taking trains all over town, she
was in a bad place. The detectives tried to find her and show her
an array, and they couldn’t. She came down last week, and
Detective Marano told you that she said, because of the time
lapse, since then, I really couldn’t say that I could identify him. I
couldn’t. And that was the end of it. Ladies and gentlemen, I
didn’t ask her if she could identify him because that’s against the
rules, and [defense counsel] knows it.
[DEFENSE COUNSEL]: Objection, Your Honor. I would
object to that.
THE COURT: I’m going to sustain the objection to that.
[PROSECUTOR]: May I say it’s against the rules?
[DEFENSE COUNSEL]: No, Judge.
[PROSECUTOR]: Then how is he allowed--
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THE COURT: Hold on. Hold on. Don’t argue in front of the
jury. Let me see you at sidebar.
Just bear with us a moment.
---
(Whereupon a discussion was held at sidebar.)
N.T., 1/26/17, at 44-45. Thereafter, the prosecutor did not argue to the jury
that asking the witness to make an identification was “against the rules” and
instead explained that the witness did not make the identification due to the
passage of time. N.T., 1/26/17, at 46.
Appellant contends a new trial is warranted due to the prosecutor’s
statements in which he indicated defense counsel impugned the prosecutor’s
character and, then, the prosecutor improperly impugned defense counsel’s
character. As the trial court aptly stated, “At no time did defense counsel
request a curative instruction or move for a mistrial as a result of the
prosecutor’s statements.” Trial Court Opinion, filed 8/17/17, at 6.
Accordingly, as the trial court suggests in its Rule 1925(a) opinion, Appellant
waived his claim that he is entitled to a new trial with regard to the excerpt
from the prosecutor’s closing argument set forth supra.9 See id.; Manley,
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9 In any event, even if not waived, we conclude Appellant is not entitled to a
new trial on this basis. The trial court gave the following relevant instructions
to the jury:
The first and most important is that you are not bound by
counsel’s recollection of the evidence. . . .You’re [] not bound by
counsel’s perspective of what the evidence in the case establishes.
And you’re not limited in your consideration of the evidence to the
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supra (holding that where the trial court has sustained the objection, even
where a defendant objects to specific conduct, the failure to request a remedy
such as a mistrial or curative instruction is sufficient to constitute waiver).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/18
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particular evidence the lawyers decide to review with you in their
closings.
***
Certainly, don’t base your decision on which attorney you
think made the better speech or on which attorney you happen
to like better.
N.T., 1/26/17, at 7, 58. Accordingly, the trial court cured any possible
prejudice resulting from the prosecutor’s remarks so as not to require a new
trial. See Moretti, supra.
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