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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MUHAMMAD A. JOHNSON, :
:
Appellant. : No. 861 EDA 2018
Appeal from the Judgment of Sentence, November 17, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009984-2016.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 19, 2019
Muhammad Johnson appeals from the judgment of sentence imposed
after a jury convicted him of first-degree murder and related charges.1 We
affirm.
The trial court summarized the evidence presented at trial as follows:
On August 31, 2006, in the Mantua section of Philadelphia,
at approximately 8:00 P.M., a sleeping Jymir Burbage was
awoken by a shouting quarrel between his father, decedent
Pierre Russell Buddy Burbage, and [Johnson’s] girlfriend.
The two men, [Johnson and Burbage], were roommates.
Burbage accused [Johnson’s] girlfriend, Amira Harris, of
playing her music too loud and yelled at her to lower the
volume. Immediately following the argument, Harris
contacted Johnson, informed him of the confrontation and
told him to come home. Afterwords, Burbage entered the
room where his minor son, Jymir, was sleeping and told him
to “grab the keys and turn off the light,” and they proceeded
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1 18 Pa.C.S.A § 2502(a).
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to leave the apartment. As they exited the apartment, and
walked down the stairs, Harris trailed behind them.
Burbage and his son proceeded to the nearby Mantua
Recreation Center.
While Burbage and his son were standing on the porch of
the Mantua Recreation Center, Johnson arrived,
approximately thirty minutes later, walked up to [Burbage]
and said “[a]re we really going to do this P?” (referring to
[Burbage]). Burbage responded, “[y]ou already pulled out
the ratchet.” (referring to a gun). The two men started
arguing and Johnson shot [Burbage] three times from a
distance of approximately six feet, and then ran away from
the crime scene. Amira Harris, a witness to the shooting
who testified that Johnson was the shooter, also ran away.
At trial, after taking the oath, Jymir positively identified
Johnson, by point of finger, as the person who shot his
father.
Additionally, the Mantua Recreation Center had
surveillance cameras pointed in the direction of the crime
scene, so large portions of the incident were captured on
video. At trial, Detective Thorsten Lucke presented a
compilation video of various camera angles taken from
surveillance footage that depicted the homicide. The video
was also shown during the examination of Amira Harris who
identified [Johnson] on the surveillance footage.
Crime Scene Officer Gregory Yatcilla testified that three
fired cartridge casings and a copper fragment were
recovered from the scene. Dr. Lindsay Simon, the assistant
medical examiner who conducted the autopsy, testified that
the cause of death was multiple gunshot wounds. The first
bullet struck [Brubage’s] right chest, piercing his liver,
aorta, and lungs and would have independently been nearly
instantly fatal. In addition, Dr. Simon also testified that the
manner of death was homicide.
Trial Court Opinion, 7/12/18, at 2-3 (citations omitted).
After hearing the above evidence, the jury convicted Johnson of first-
degree murder and related charges. Thereafter, the trial court imposed an
aggregate sentence of life in prison without the possibility of parole. The trial
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court denied Johnson’s timely filed post-sentence motion. This appeal
followed. Both Johnson and the trial court have complied with Pa.R.A.P. 1925.
Johnson raises three issues on appeal:
I. Should [Johnson] be awarded an arrest of judgment
on murder in the first degree and all related charges
where, as here, the evidence is insufficient to sustain
the verdict?
II. Should [Johnson] be awarded a new trial on the
charge of murder in the first degree where, as here,
the greater weight of the evidence does not make out
the crimes charged?
III. Should [Johnson] be awarded a new trial where, as
here, the prosecutor engaged in gross misconduct
when vouching for the evidence.
Johnson’s Brief at 3 (excess capitalization omitted). We will address the issues
in the order presented.
In his first issue, Johnson challenges the sufficiency of the evidence
supporting his convictions. Our standard of review is well settled:
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 a 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
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above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of the
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted). “Because evidentiary sufficiency is a question of law, our standard
or review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
Although Johnson challenges the sufficiency of the evidence supporting
all of his convictions, his supporting argument is limited to the first-degree
murder conviction. Thus, we will limit our consideration of this issue
accordingly.
“A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a). An “intentional
killing” is defined as a “[k]illing by means of poison, or by lying in wait, or by
any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S.A. §
2502(d). Our case law has held in order for an individual to be convicted of
first-degree murder, “the Commonwealth must prove: 1) that a human being
was unlawfully killed; 2) that the defendant perpetrated the killing; and 3)
that the defendant acted with malice and a specific intent to kill.”
Commonweath v. Stiles, 143 A.3d 968, 982 n.7 (Pa. Super. 2016) (citation
omitted). This Court has also stated the third element to include proof that
“the killing was willful, deliberate, and premeditated.” Commonwealth v.
Dowling, 883 A.2d 570, 573 (Pa. Super. 2005).
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The trial court found no merit to Johnson’s sufficiency challenge:
Here, the evidence shows that [Johnson] committed
first-degree murder. Certainly, [his] conduct was the
product of premeditation and deliberation. See
[Commonwealth v. Fisher, 769 A.2d 1116, 1124 (Pa.
2001). (holding that “[t]he period of reflection necessary to
constitute premeditation may be very brief; in fact, the
design to kill can be formulated in a fraction of a second”).
[Johnson’s] conduct alone, shooting the unarmed victim in
a vital part of his body from six feet away, is sufficient
evidence of malice and intent to kill to sustain a verdict of
murder in the first degree. See Commonwealth v.
Holley, 945 A.2d 241 (Pa. Super. 2008) (holding that a
defendant’s intent can be proven by direct or circumstantial
evidence). Indeed, “[s]pecific intent to kill as well as malice
can be inferred from the use of a deadly weapon upon a vital
part of the victim’s body.” Commonwealth v. Padilla, 80
A.3d 1238, 1244 (Pa. 2013), cert. denied, 134 S.Ct. 2725
(2014). See Commonwealth v. Bond, 652 A.2d 308, 311
(Pa. 1995) (noting that a gun is “clearly a deadly weapon”);
Commonwealth v. Solano, 906 A.2d 1180, 1192 (Pa.
2006), cert. denied, 550 U.S. 938 (2007) (noting that one
of the factors that “weighs in on the element of intent” is
“the precise distance from which the bullets were fired”);
Commonwealth v. Rodgers, 456 A.2d 1352, 1354 ([Pa.]
1983) (ruling that a shotgun fired within a short range of
the victim “establishes specific intent to take life”);
Commonwealth v. Davis, 421 A.2d 179 (Pa. 1980)
(holding the Commonwealth established specific intent to
kill through the evidence that the defendant shot unarmed
victim); Commonwealth v. Chine, 40 A.3d 1239, 1242
(Pa. Super. 2012) (holding that evidence of a defendant
shooting an “unsuspecting, unarmed” victim clearly
indicated specific intent to kill and malice).
Trial Court Opinion, 7/12/18, at 6-7. Our review of the record amply supports
the trial court’s conclusions.
Johnson’s claims to the contrary are unavailing. As noted above, he
claims that the evidence failed to identify him as the perpetrator and failed to
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establish the specific intent to kill. In his brief, Johnson provides no supporting
argument regarding his identity as the perpetrator.2 Thus, he abandoned this
argument. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super
2007) (stating “[t]his court will not act as counsel and will not develop
arguments on behalf of an appellant”).
With regard to the Commonwealth’s alleged failure to establish
premeditation or a specific intent to kill, Johnson argues:
In simple terms, the evidence does not establish Murder
in the First Degree. The facts are straight-forward. Miss
Amira Harris said that she called her boyfriend, [Johnson]
and explained to him how the victim had made a fuss over
some loud noise. However, what she was really saying was
that she agitated [Johnson] and his testosterone and
maleness and implored him to come over to the house to
adjust the wrong that was so unrighteously [sic] foisted
upon her. [Johnson] shows up and perhaps not to the
surprise of any reading the transcript, shoots and kills the
victim. The undersigned is not claiming that the shooter
was justified nor should have been undertaken [sic].
Rather, this counsel is merely saying that the facts do not
make out malice nor premeditation.
***
The defense here, takes the position that [Johnson] acted
without malice because of the passion and provocation
generated not only by [Burbage] who made a big deal over
some loud noise but also by Miss Harris who injected her
femininity into the ongoing matter and in essence,
challenged her boyfriend to “do something about it.”
***
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2 This is understandable, since two eyewitnesses identified him as the
perpetrator, and he could also be seen on surveillance video of the incident.
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The record does not establish that [Johnson] and
[Burbage] were “beefing” on the day in question or any
other day and the record really does establish that
[Johnson] came over to the girlfriend’s house in an excited
state and reacted to external stimuli which caused him to
lose his temper and act. [Johnson], while acting most
inappropriately did not lay in wait or hunt [Burbage] down.
It was an explosion on the street. It was a tragic ending.
But, it was not Murder in the First Degree. [Johnson] should
be awarded an Arrest of Judgment.
Johnson’s Brief at 7-8.
We disagree. Although Johnson’s counsel provides his interpretation of
the “facts” presented, he does not develop the claim by citing or discussing
any of Miss Harris’ actual testimony, or the testimony from any other
Commonwealth witness.3 See Commonwealth v. Tielsch, 934 A.2d 81, 93
(Pa. Super. 2007) (holding that undeveloped claims will not be considered on
appeal).
Moreover, as noted by the trial court premeditation and/or a specific
intent to kill can be in an instant. See Commonwealth v. Clemons, 2019
WL 286565 (Pa. 2019) (explaining that the “law does not require a lengthy
period of premeditation to support a first-degree murder conviction; indeed,
the design to kill can be formulated in a fraction of a second”).
Finally, it is well settled that a “[s]pecific intent to kill as well as malice
can be inferred in a trial for first-degree murder from the use of a deadly
weapon upon a vital part of the victim’s body.” Commonwealth v. Thomas,
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3 Johnson did not testify and provide no other witnesses in his defense.
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54 A.3d 332, 335-36 (Pa. 2012). As noted by the trial court, supra, the
record establishes that the shots fired by Johnson struck vital organs within
Burbage’s body and that death was almost instantaneous. Thus, for all these
reasons, Johnson’s first issue on appeal fails.
In his second issue, Johnson contends, “the greater weight of the
evidence only established that [he] was riled up by his girlfriend and the
mouth of the victim. . . . [Johnson] lost his cool and opened fire. . . . From
the record, one can only engage in speculation, conjecture and surmise as to
whether [Johnson] had specific intent to kill or engaged in premeditation.”
Johnson’s Brief at 9-11.
In making his argument, Johnson conflates a challenge to the sufficiency
of the evidence with a claim challenging the weight of the evidence. As our
Supreme Court has explained:
[I]t is necessary to delineate the distinctions between a
claim challenging the sufficiency of the evidence and a claim
that challenges the weight of the evidence. The distinction
between these two challenges is critical. A claim challenging
the sufficiency of the evidence, if granted, would preclude
retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would
permit a second trial.
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material element
of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. Where the evidence
offered to support the verdict is in contradiction to the
physical facts, in contravention to human experience and the
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laws of nature, then the evidence is insufficient as a matter
of law. When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
Nevertheless, we note that Johnson preserved a weight claim in his
post-sentence motion, see Pa.R.Crim.P. 607, and the trial court addressed it
as such in its Rule 1925(a) opinion. Thus, despite Johnson’s phrasing of his
second issue, we will address it as a challenge to the weight of the evidence.
“[A]ppellate review of a weight of the evidence claim normally involves
examining the trial court’s exercise of discretion in its review of the fact-
finder’s determinations[.]” Commonwealth v. Ross, 856 A.2d 93, 99 (Pa.
Super. 2004) (citing Widmer, supra). In Widmer, our Supreme Court
further explained:
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would
have arrived at a different conclusion. A trial judge must do
more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he [or she]
were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as the
thirteenth juror. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are
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so clearly of greater weight that to ignore them or to give
them equal weight with all the facts is to deny justice.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations omitted). Stated
differently, a court may award a new trial because the verdict is against the
weight of the evidence only when the verdict rendered is so contrary to the
evidence received as to shock one’s sense of justice such that right must be
given another opportunity to prevail. Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa. Super. 1997).
In this case, the trial court concluded that Johnson failed to specify how
his guilty verdicts were against the weight of the evidence. The court
explained:
[Johnson] claims that the verdict was against the weight of
the evidence as it was based on suspicion, conjecture and
surmise. [He] does not make any specific allegations about
what causes the verdict to be against the weight of the
evidence. Indeed, despite his contentions, there were two
eyewitnesses and video evidence, evidence that goes far
beyond suspicion, conjecture and surmise. Thus, it cannot
be said that the verdict herein was so contrary to the
evidence as to shock one’s sense of justice.
Trial Court Opinion, 7/2/18, at 10.
Upon review, we conclude that the trial court did not abuse its discretion
when it denied Johnson’s weight claim. Ross, supra. As he did below,
Johnson makes no specific weight claims in his brief. Indeed, in making his
argument, he relies on a case involving a challenge to the sufficiency of the
evidence. See Johnson’s Brief at 10 (quoting Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993)). Thus, because we discern no abuse of discretion
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in the trial court’s rejection of his weight claim, we dismiss as meritless
Johnson’s second issue on appeal.
Johnson’s third issue involves a claim of prosecutorial misconduct. Our
standard of review is well settled:
[P]rosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict. . . . In reviewing a claim of improper prosecutorial
comments, our standard of review is whether the trial court
abused its discretion. When considering such a claim, our
attention is focused on whether the defendant was deprived
of a fair trial, not a perfect one, because not every
inappropriate remark . . . constitutes reversible error.
Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations
omitted). “Prosecutorial misconduct, however, will not be found where the
comments were based on evidence or proper inferences therefrom or were
only oratorical flair.” Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.
Super. 2005) (citation omitted). In order to evaluate whether comments were
improper, we must look to the context in which they were made. Id. Finally,
the prosecutor’s comments may be reviewed as a fair response to defense
counsel’s closing remarks. Commonwealth v. Johnson, 179 A.3d 110, 1122
(Pa. Super. 2018).
In his closing, defense counsel discussed the various items of evidence
introduced by the Commonwealth, including the testimony of Burbage’s young
son and Ms. Harris. Counsel stressed to the jury that “the most important
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thing you’re going to have to decide is what we call credibility or believability.”
N.T., Trial (Jury), 11/17/17, at 62. Pertinent to Johnson’s third issue, defense
counsel argued:
Let’s take a look at Amira Harris, if we may.
17 years-old at the time. Although, if you recall when I
asked her [a] question about her age, she had difficulty
remembering, “Was I 17 or 18?” She wasn’t even sure.
Do you remember how I told you to watch in addition to
listening? She was a perfect example of what I was
referring to.
You will recall the way she was combative, antagonistic,
confrontational. It seemed like almost every question that
I asked she displayed one or more of these characteristics.
Why? Ask yourselves why. Did I ask her questions any
differently that the [prosecutor] asked her? What was she
trying to accomplish by this display of attitude and
behavior?
***
You saw her body movements. She would stay back in
the chair, look around, look down. All of these things, I
submit, ladies and gentlemen, are telltale factors that can
lead you to believe that this is a person who’s not being
truthful.
What you have to decide is whether or not to believe
what she had to say as well as the way she said them, the
way she handled herself on the stand.
Id. at 72-73. Defense counsel then highlighted what he perceived to be
inconsistencies in her testimony and later stated, “I submit [Ms. Harris] is
about as worthy of belief as elephants flying.” Id. at 80.
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In her closing, the prosecutor addressed defense counsel’s above
discussion about Ms. Harris’ testimony and her demeanor on the witness
stand. She stated:
You also have Ms. Amira Harris, where defense wants you
to focus on her attitude during cross-examination instead of
the substance of what she said what happened, but, yet, if
you paid close attention to his summation, the defense
concedes that she was in the apartment that night, she got
in an argument with [Burbage] and that she called
Muhammad to come home. Muhammad is established to be
[Johnson,] her boyfriend.
Everything she told us is the truth, but don’t believe her
because she has an attitude with [defense] counsel.
N.T., Trial (Jury), 11/17/17, at 98. At this point, defense counsel objected,
and the trial court overruled the objection.
The prosecutor then focused on Ms. Harris’ demeanor on the stand and
offered reasons for her body movements, then continued:
Members of the jury, I ask you to look at [Ms. Harris] as
the real person she is and look at what she has gone through
and had to experience in order to get to this point and yet
when she gave her statement at the preliminary hearing and
today, time and time again she has told what she saw
happen that night.
Counsel calls her a liar. What could possibly be this girl’s
motive? Common sense tells us we only lie when we have
something to gain from it usually. What did she gain? The
person she loved, the person she lived with it taken away
from her, the person who was supposed to take care of her,
gone.
***
Yet, despite that she came out strong.
She told the truth about what happened - -
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N.T., Trial (Jury), 11/17/17, at 100-01. Defense counsel again objected, and
this time the trial court sustained the objection.
The prosecutor then went on to explain to the jury how other evidence
presented by the Commonwealth corroborated Ms. Harris’ testimony. In her
concluding remarks, the prosecutor stated:
As I stated and as I believe has been presented to you
through witness after witness, after witness, after witness,
the evidence in this case is overwhelming. We just don’t
have two individuals with no motive to put [Johnson] in this
situation other than the fact that it’s the truth - -
Id. at 106. At this point, defense counsel objected, and the trial court
sustained the objection.
Following the prosecutor’s closing, and after the jury had left the
courtroom, defense counsel moved for a mistrial “based upon each of the
objections that [he] interposed to the commentary made by the
Commonwealth during the course of the closing argument.” Id. at 109. When
asked to be more specific, defense counsel referred to the prosecutor’s
statements regarding the truth of Ms. Harris’ testimony, and stated that the
“inappropriate commentary” was intended to “arouse or inflame the passions
of the jury.” Id. at 110. The prosecutor informed the trial court that her
argument regarding Ms. Harris’ truthfulness was said in the context that: 1)
various aspects of her testimony were not challenged by the defense; and 2)
her claim regarding no motive to fabricate was a fair response to defense
counsel’s closing. Id. at 111.
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After hearing their positions, the trial court informed defense counsel
that it would instruct the jury to disregard the prosecutor’s “contention that
the witnesses were truthful. That’s their decision.” N.T., Trial (Jury),
11/17/17, at 112. The court further stated, “With regards to your objection
to [the prosecutor’s] argument regarding motive to fabricate and twisting your
words, I think that’s fair response.” Id. The trial court then denied Johnson’s
motion for mistrial and recessed for lunch.
Once trial resumed, the trial court gave its charge to the jury. As part
of its opening remarks the trial court addressed the basis for which Johnson
had moved for a mistrial:
It is your responsibility as fact-finders to consider all the
evidence that you believe material in deliberating upon your
verdict.
To that end, you must disregard references to [Johnson]
staring, at the witness, Amira Harris, as she testified.
Further, whether or not a witness is truthful is for you to
decide.
Id. at 117.
In rejecting Johnson’s claim that the prosecutor committed misconduct
when she vouched for Ms. Harris’ testimony, the trial court stated:
Here, the prosecutor simply argued that defense counsel did
not challenge [Ms. Harris’] statements during her testimony,
but rather [defense counsel] challenged her attitude on
cross-examination. This does not constitute vouching for
the witness’s credibility. Nevertheless, two of defense
counsel’s objections were sustained. Indeed, this court
gave a limiting instruction on this issue, stating “Further,
whether or not a witness is truthful is for you to decide. In
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light of these instructions, [Johnson] is unable to prove
prejudice. This claim is meritless.
Trial Court Opinion, 11/17/17, at 12 (citations omitted).
Our review supports the trial court’s conclusions. In his brief, Johnson,
without citation, maintains, “It is Horn Book law that a prosecutor may not
vouch for the alleged truth telling of his witness. Yet, the prosecutor in this
case violated that holding.” Johnson’s Brief at 11. After discussing the
prosecutor’s discussion of the truthfulness of Ms. Harris’ testimony despite his
repeated objections, Johnson asserts:
In short, the prosecutor took a relatively weak case of
Murder in the First Degree and attempted to make it much
stronger by interjecting [her] personal opinion and beliefs
for the jury’s consideration. That was grossly improper.
There was prejudice as the jury now had to consider not
only the evidence but the prosecutor’s person view of the
evidence. For all those reasons, a new trial is required.
Id. at 13. We disagree.
In making the above argument, Johnson does not acknowledge the trial
court’s limiting instruction. It is well settled, that juries are presumed to follow
the instructions of the trial court. See Commonwealth v. Faurelus, 147
A.3d 905, 915 (Pa. Super. 2016).
Moreover, we agree with the trial court that, in making the challenged
comments, the prosecutor did not vouch for Ms. Harris’ credibility. As this
Court has recently summarized:
It is axiomatic that vouching is a form of prosecutorial
misconduct, occurring when a prosecutor places the
government’s prestige behind a witness through personal
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assurances as to the witness’s truthfulness, and when it
suggests that information not before the jury supports the
wtiness’s testimony. Improper bolstering or vouching for a
government witness occurs where the prosecutor assures
the jury that the witness is credible, and such assurance is
based on either the prosecutor’s personal knowledge or
other information not contained in the record.
Commonwealth v. Johnson, 179 A.3d 1105, 1121 (Pa. Super. 2018)
(citations omitted). In Commonwealth v. Judy, this Court further stressed:
It is well settled that it is improper for a prosecutor to
express a personal belief as to the credibility of the defendant or
other witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor. If
defense counsel has attacked the credibility of witnesses in
closing, the prosecutor may present argument addressing the
witnesses’ credibility. Thus, proper examination by the
[prosecutor] in closing requires review of the arguments advanced
by the defense in the defense summation.
Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citation omitted).
Here, the prosecutor’s comments about the “truthfulness” of Ms. Harris’
testimony, did not amount to the Commonwealth vouching for her credibility.
In making these comments, “the prosecutor did not interject her personal
belief” as to Ms. Harris’ veracity, but “simply commented thereon, as she was
permitted to do.” Johnson, 179 A.3d at 1121. Moreover, the challenged
comments were not based upon evidence dehors the record; the prosecutor
repeatedly explained why Ms. Harris’ testimony was corroborated by other
evidence presented by the Commonwealth. See Commonwealth v. Burno,
94 A.3d 956, 974 (Pa. 2014) (explaining while it is improper for prosecutor to
offer a personal opinion as to the defendant’s guilt or credibility of a witness,
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it is entirely proper for her to summarize the evidence presented, to offer
reasonable deductions and inferences therefrom, and to argue that the
evidence establishes the defendant’s guilt). Finally, like the trial court, we
view the prosecutor’s challenged comments as a proper response to defense
counsel challenging Ms. Harris’ credibility. Since we discern no abuse of
discretion by the trial court, Johnson’s third issue fails.
In sum, because all three issues raised by Johnson are meritless, we
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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