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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KYLE AKEEM SANTIAGO, No. 3294 EDA 2017
Appellant
Appeal from the Judgment of Sentence, December 5, 2016,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0004283-2015
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019
Kyle Akeem Santiago appeals from the December 5, 2016 judgment of
sentence entered by the Court of Common Pleas of Lehigh County. After
careful review, we affirm.
On October 5, 2016, a jury convicted appellant of the following offenses:
possession of a firearm prohibited, firearms not to be carried without a license,
recklessly endangering another person, driving under the influence (general
impairment), and fleeing or attempting to elude a police officer.' The trial
court convicted appellant of the following summary offenses: driving without
' 18 Pa.C.S.A. 6105(a)(1), 6106(a)(1), 2705, and
§§ 75 Pa.C.S.A.
§§ 3802(a)(1) and 3733(a), respectively.
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a license and driving the wrong way.2 On December 5, 2016, the trial court
sentenced appellant to an aggregate term of 6-13 years' imprisonment.
Appellant did not file any post -sentence motions, nor did he file a notice
of appeal. On March 3, 2017, appellant filed a petition pursuant to the Post
Conviction Relief Act3 ("PCRA"), seeking to restore his rights to a direct appeal
nunc pro tunc. The PCRA court granted appellant's petition and restored his
direct appellate rights nunc pro tunc on September 28, 2017. Appellant filed
a notice of appeal from the December 5, 2016 judgment of sentence on
October 11, 2017.
The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 17, 2017.
In the meantime, appellant filed a motion requesting transcripts, which the
trial court granted on October 25, 2017. Appellant filed a motion seeking an
extension of time to file his Rule 1925(b) statement on November 6, 2017, as
his family needed more time to arrange for payment for the transcripts, which
the trial court granted. The trial court granted an additional extension which
was filed on November 28, 2017, ordering appellant to submit a Rule 1925(b)
statement by December 4, 2017. Appellant timely complied.
On December 6, 2017, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a). Therein, the court noted that while appellant paid the
2 75 Pa.C.S.A. §§ 1501(a) and 3308(b), respectively.
3 See 42 Pa.C.S.A. §§ 9541-9546.
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required deposit for the trial transcripts, the transcripts were not available to
the trial court. (Trial court opinion, 12/6/17 at 2-3.) The trial court noted
that this court could dismiss appellant's appeal for failure to secure a copy of
the transcripts pursuant to Pa.R.A.P. 1911(d). (Trial court opinion, 12/6/17
at 3.) In the alternative, the trial court requested that this court remand so
that transcripts could be obtained, appellant could file a supplemental
Rule 1925(b) statement, and that the trial court could file a supplemental
Rule 1925(a) opinion.
On January 30, 2018, appellant filed with this court a motion for
extension of time to file a brief and a request to remand to submit a
supplemental Rule 1925(b) statement. On February 20, 2018, this court
entered a per curiam order vacating the briefing schedule and remanding to
the trial court so that appellant could file a supplemental Rule 1925(b)
statement and so that the trial court could subsequently file a supplemental
Rule 1925(a) opinion. Appellant failed to file a supplemental Rule 1925(b)
statement. On April 16, 2018, the trial court filed a supplemental Rule
1925(a) opinion, in which it addressed the three issues raised by appellant in
his original Rule 1925(b) statement.
Appellant raises the following issues for our review:
A. Whether the verdict is against the weight of the
evidence and that [appellant] should be granted
a new trial[?]
B. [] Appellant alleges my [sic] instructions to the
jury were in error.
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C. [] Appellant alleges his motion for mistrial was
improperly denied. [] Appellant's basis for the
motion was based on a comment made by the
District Attorney during his closing argument
when he referred to a video and stated, "that is
the gun flying out of the window.["]
Appellant's brief at 5.
In his first issue on appeal, appellant "argues that the verdict was
against the weight of the evidence [] where there was a single eyewitness
who lacked credibility who claimed that [appellant] was seen handling a
firearm." (Appellant's brief at 9.)
[A] weight of the evidence claim must be preserved
either in a post -sentence motion, by a written motion
before sentencing, or orally prior to sentencing.
Pa.R.Crim.P. 607; Commonwealth v. Priest, 18
A.3d 1235, 1239 (Pa.Super. 2011). Failure to
properly preserve the claim will result in waiver, even
if the trial court addresses the issue in its opinion.
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013), quoting Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009), cert. denied sub nom. Sherwood v.
Pennsylvania, 559 U.S. 1111 (2010).
Based on our review of the record, appellant failed to preserve his
weight of the evidence claim before the trial court in a post -sentence motion,
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a written motion prior to sentencing, or in an oral motion prior to sentencing.
Accordingly, appellant's weight of the evidence claim is waived on appeal.4
In his second issue, appellant raises a challenge to the propriety of the
trial court's jury instructions. Specifically, appellant avers that the trial court
erred when it instructed the jury on constructive possession and by so doing,
"improperly introduced facts that were not introduced at trial." (Appellant's
brief at 14.) The Commonwealth contends that appellant failed to object to
the trial court's instruction at trial, thereby waiving the issue on appeal.
(Commonwealth's brief at 11.)
It is well settled in this Commonwealth that a party must object to the
trial court's jury instruction at trial in order to preserve the issue for appellate
review. Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014),
appeal denied, 117 A.3d 296 (Pa. 2015), citing Commonwealth v. Spotz,
84 A.3d 294, 318 n.18 (Pa. 2014); Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B).
4 We note that in appellant's brief, despite identifying and framing his first
issue as a weight of the evidence claim, appellant sets forth the rules of law
for the sufficiency of the evidence, while arguing that the Commonwealth
failed to present credible evidence, which attacks the weight of the evidence.
(See appellant's brief at 9-12.) In appeals attacking the sufficiency of the
evidence, an appellant's Rule 1925(b) statement must "state with specificity
the element or elements upon which the appellant alleges that the evidence
was insufficient." Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.
2013), appeal denied, 169 A.3d 565 (Pa. 2017), quoting Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670
(Pa. 2010). Here, appellant did not specify any elements, or even any
charges, upon which he alleges that the evidence was insufficient in his Rule
1925(b) statement. Accordingly, any sufficiency of the evidence claim is
waived on appeal.
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Our supreme court has further explained that a party must raise a "specific
objection to the charge or an exception to the trial court's ruling on a proposed
point to preserve an issue involving a jury instruction." Id., quoting
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (citations
omitted).
The record reflects that appellant did not raise any objection to the trial
court's supplemental instruction to the jury. (See notes of testimony, 10/5/16
at 98-104.) Accordingly, appellant's second issue is waived on appeal.
In his third and final issue on appeal, appellant argues that the trial
court erred when it denied his motion for a mistrial following comments made
by the Commonwealth during its closing argument. Specifically, appellant
avers that the Commonwealth argued issues of fact that should have been left
to the jury to decide. (Appellant's brief at 15.)
When reviewing a trial court's denial of a motion for a mistrial,
particularly in the context of a prosecutor's comments during closing
argument, we are held to the following standard of review:
Our standard of review for the denial of a motion for
a mistrial is limited to assessing whether the trial court
abused its discretion. Commonwealth v. Cash, H
137 A.3d 1262, [1273] (Pa. [] 2016). More
specifically, this Court has provided the following
standards for reviewing 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 must be
considered in the context in which it was
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offered. Commonwealth v. Correa, []
664 A.2d 607 ([Pa.Super.] 1995). 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. Commonwealth v. Rios, []
721 A.2d 1049 ([Pa.] 1998). 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." Commonwealth v. Fletcher,
[] 861 A.2d 898, 916 ([Pa.] 2004)
(quotation and quotation marks omitted).
The appellate courts have recognized that
not every unwise remark by an attorney
amounts to misconduct or warrants the
grant of a new trial. Commonwealth v.
Faulkner, [] 595 A.2d 28 ([Pa.] 1991).
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.
Commonwealth v. Carson, [] 913 A.2d
220 ([Pa.] 2006); Commonwealth v.
Holley, 945 A.2d 241 (Pa.Super. 2008).
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. Chmiel,
[] 889 A.2d 501 ([Pa.] 2005).
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Commonwealth v. Jaynes, 135 A.3d 606, 615
(Pa.Super. 2016).
Commonwealth v. Scott, 146 A.3d 775, 778-779 (Pa.Super. 2016), appeal
denied, 166 A.3d 1232 (Pa. 2017).
Here,
[appellant] alleges his motion for [a] mistrial was
improperly denied. [Appellant's] basis for the motion
was based on a comment made by [the
Commonwealth] during [its] closing argument when
[it] referred to a video and stated, "that is the gun
flying out of the window."
A review ofthe record shows that [the
Commonwealth's] remark was a legitimate inference
from the evidence presented. Commonwealth v.
Hamilton, 546 A.2d 90, 94 (Pa.Super. 1988). It was
clear from the trial as a whole that the
Commonwealth's theory was that the gun was thrown
from [appellant's] vehicle. Moreover, while at times
the defense stated the item was unknown, at other
times they appeared to concede it was a gun.
Trial court opinion, 4/16/18 at 2-3 (footnotes and citations to the record
omitted).
Accordingly, appellant's third issue is without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 7/15/19
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