Com. v. Hernandez, M.

J-A21008-19

2020 PA Super 57

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARTIN HERNANDEZ :
:
Appellant : No. 225 EDA 2018

Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012606-2011

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.: FILED MARCH 10, 2020

Martin Hernandez appeals nunc pro tunc from the May 2, 2014 judgment

of sentence finding him guilty of third-degree murder, recklessly endangering

another person (“REAP”), possessing an instrument of crime, and two

violations of the Pennsylvania Uniform Firearms Act. We affirm.

The trial court summarized the factual background as follows:

A large group of friends went to Jalapeno Joe’s, a club on Castor
Avenue, Philadelphia, [on] the night of February 20, 2011. After
drinking heavily, some members of the group began to leave the
club, including Maria Guzman and her boyfriend Christian Aguilar.
Ms. Guzman got into a verbal confrontation with another female
patron, and Mr. Aguilar called out[,] “[C]ontrol your bitch.”

[Appellant], who was a distance away but within earshot, drew his
handgun and fired at Mr. Aguilar, striking him twice. One bullet
struck him in the [hip, and the other struck him in the shoulder].
Mr. Aguilar was pronounced dead at the hospital a few hours later,
at 5:34 a.m. [Appellant] admitted at trial that he was the
gunman, testifying that he “tagged him rapid fire, two times.”
[Appellant] claimed that [the] decedent had pointed a gun at him,
and further testified: “Like, I didn’t mean to kill him. I am telling
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you what’s going on. He fell, right, and I am like, damn, he was
just talking real crazy, and he was about to shoot me.” However,
[Appellant’s] brother saw the entire incident and testified that
decedent did not have a gun.

The people gathered outside the club immediately dispersed after
shots were fired. Some of the people who ran away got into a car
driven by [Appellant’s] brother. [Appellant] met up with them in
a parking lot a few blocks away, and after entering the car he told
the women in the back seat that he [shot the decedent] because
of them. The women eventually exited the car after being told not
to tell anyone what they had seen at the club. However, several
of the women reported what they had seen to homicide detectives.

Further, evidence at trial established that [Appellant’s] sister and
the mother of [Appellant’s] child attempted to intimidate
witnesses into not testifying. They went to the place of work of
the witnesses, and when one witness attempted to testify at an
earlier proceeding, she was threatened outside the courtroom and
fled fearing for her safety.

[Appellant] admitted that he was not licensed to carry a firearm.

Trial Court Opinion, 7/11/18, at 2-3 (internal citations omitted; cleaned up).

On March 14, 2013, a jury found Appellant guilty of the aforementioned

crimes and he was sentenced to an aggregate term of twenty-nine and one-

half to fifty nine years of incarceration. Appellant filed a notice of appeal, but

this Court ultimately dismissed the appeal for failure to comply with Pa.R.A.P.

3517. Thereafter, Appellant’s direct appellate rights were reinstated nunc pro

tunc by way of a Post-Conviction Relief Act petition. Appellant timely filed a

notice of appeal. The trial court ordered Appellant to file a concise statement

of errors pursuant to Pa.R.A.P. 1925(b), Appellant complied, and the trial court

filed a Rule 1925(a) opinion.

Appellant has raised the following issues for our consideration:

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1. Did the trial court err and abuse its discretion, violating
Appellant’s right to a fair trial, when it denied his request for a
continuance when his appointed counsel was unprepared for trial,
trial counsel was demonstrably hostile to Appellant, and retained
counsel was available to assume representation with a short
continuance?

2. Did the trial court err and abuse its discretion when it imposed
consecutive terms of imprisonment on Appellant’s charges for
third-degree murder and [REAP]?

3. Did the trial court err and abuse its discretion when it permitted
the admission of testimony that Appellant was arrested in close
proximity to a firearm unrelated to the underlying charges?

4. Did the trial court err and abuse its discretion, violating
Appellant’s state and federal rights to a fair trial and due process,
when it permitted the prosecutor to improperly comment on the
credibility of law enforcement witnesses and characterize which
lay witnesses testified truthfully?

5. Did the trial court abuse its discretion and was it prosecutorial
misconduct to admit pervasive evidence that Commonwealth
witnesses were threatened?

Appellant’s brief at 1-2.

In Appellant’s first issue, he asserts that the trial court erred by refusing

to grant a continuance so that Appellant could obtain alternative

representation. See Appellant’s brief at 12-24.

Our standard of review in this context is as follows:

It is well-settled that the decision to grant or deny a request for a
continuance is within the sound discretion of the trial court.
Further, a trial court’s decision to deny a request for a continuance
will be reversed only upon a showing of an abuse of discretion. As
we have consistently stated, an abuse of discretion is not merely
an error of judgment. Rather, discretion is abused when the law
is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record . . . .

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Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa.Super. 2009) (internal

citations omitted). Moreover, this claim implicates Appellant’s right to counsel

pursuant to the Sixth Amendment to the U.S. Constitution and by Article I,

§ 9 of the Pennsylvania Constitution. Although criminal defendants enjoy the

right to choose counsel at their own expense, our Supreme Court has stated

that this right is not absolute:

Rather, the right of the accused to choose his own counsel, as well
as the lawyer’s right to choose his clients, must be weighed
against and may be reasonably restricted by the state’s interest
in the swift and efficient administration of criminal justice. Thus,
this Court has explained that while defendants are entitled to
choose their own counsel, they should not be permitted to
unreasonably clog the machinery of justice or hamper and delay
the state’s efforts to effectively administer justice. At the same
time, however, we have explained that a myopic insistence upon
expeditiousness in the face of a justifiable request for delay can
render the right to defend with counsel an empty formality.

Commonwealth v. McAleer, 748 A.2d 670, 673-74 (Pa. 2000) (internal

citations omitted).

As detailed above, on the first day of trial Appellant expressed his belief

that defense counsel was not properly prepared and requested a continuance

so that he could obtain alternative counsel. See N.T. Trial, 5/6/13, at 8-79.

The trial court denied Appellant’s request due to its conclusion that a last-

minute delay of proceedings would prejudice the Commonwealth due to its

findings that: (1) Appellant’s alternative counsel had not yet been retained

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and was therefore not prepared to proceed to trial that day, id. at 74;1 (2)

delaying the trial to permit alternative counsel to properly familiarize himself

with the case would effectively delay the case by at least seven months,2 id.;

(3) a continuance would prejudice the Commonwealth due to the extreme

reluctance of its witnesses, who had been threatened by Appellant’s family

and had only appeared via material witness petitions and bench warrants, id.

at 71-73, 75; and (4) Appellant’s defense counsel was sufficiently competent.

Id. at 75-76. Overall, the trial court found that Appellant’s request to replace

his attorney was a “delaying tactic” that it could not countenance due to the

potential for prejudice to the Commonwealth. Id. at 76.

This Court has set forth the following factors to consider on appeal from

a trial court’s ruling on a continuance motion to obtain private representation:

(1) whether the court conducted an extensive inquiry into the underlying

causes of defendant’s dissatisfaction with current counsel; (2) whether the

defendant’s dissatisfaction with current counsel constituted irreconcilable

____________________________________________

1 In relevant part, alternative counsel testified that he was approached with
a “firm” offer of retainer by Appellant’s family one week prior to trial, and was
offered a check. See N.T. Trial, 5/6/13, at 27-30. Alternative counsel refused
to accept the retainer unless a continuance was entered, and apparently
attempted to contact the trial court, ex parte, to see if this would be possible.
Id. at 27. Based on our review of the certified record, Appellant’s oral request
for a continuation on the initial day of trial was the first time that an issue of
representation was formally raised with the trial court.

2 The trial court’s delay determination was based upon scheduling. See N.T.
Trial, 5/6/13, at 74 (“[I]t would be at least until 2014 that I would have an
opening in my calendar to hear this matter.”).

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differences; (3) the number of prior continuances; (4) the timing of the motion

for continuance; (5) whether private counsel had actually been retained; and

(6) the readiness of private counsel to proceed in a reasonable amount of

time. See Commonwealth v. Broitman, 217 A.3d 297, 300 (Pa.Super.

2019) (citing Prysock, supra at 543).

At bedrock, Appellant’s request for a continuance was grounded in his

averments that his counsel was not adequately prepared for trial. The only

concrete complaints levied by Appellant were that defense counsel: (1) had

never visited him during his incarceration to prepare for trial; and (2) failed

to respond to two letters Appellant sent him. Id. at 17-18. Appellant also

made reference—for the first time—to several witnesses that he claimed had

knowledge regarding the incident and who would testify beneficially.3

Defense counsel testified that he had: (1) never received the letters

cited by Appellant, id. at 41; (2) reviewed the discovery materials in the case

“on no less than half a dozen occasions,” id. at 32; (3) conferred with

Appellant multiple times during the course of his representation, id. at 64;

and (4) made use of an investigator to interview witnesses and investigate

____________________________________________

3 In pertinent part, Appellant identified two “new” individuals whom he knew
only as “Joshua Alvarado” and “Q.” See N.T. Trial, 5/6/13, at 35. The
remainder of the individuals identified by Appellant were already well-known
to the parties and attorneys, and had previously been interviewed. Id. at 35-
37. Appellant also alluded to “three other people” whom he would like to have
interviewed as potential witnesses, but could not provide names or contact
information for them when asked three separate times. Id. at 68-70.

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potential defenses, who also met with Appellant to obtain information

regarding the case. Id. at 33, 65-66. Defense counsel averred that Appellant

had never provided any information regarding these “new” witnesses during

the course of his representation. Id. at 32.

We are particularly mindful that “[w]here, as here, the defendant and

his counsel offer competing contentions as to the readiness of defense counsel

for trial, it is for the trial court to decide whose portrayal of defense

counsel’s degree of preparedness is more accurate.” Commonwealth

v. Cook, 952 A.2d 594, 618 (Pa. 2008) (emphasis added). Instantly, the trial

court conducted a thorough investigation of defense counsel’s preparedness

and determined that Appellant’s stated concerns were unjustified and did not

rise to the level of “irreconcilable differences.” N.T. Trial, 5/6/13, at 76.

Although no other continuances had been granted to Appellant in this

case, he waited until one week before trial to attempt to retain alternative

counsel via a “firm” offer, and did not request a continuance for this purpose

until the day trial was to commence. See N.T. Trial, 5/6/13, at 27-30.

Furthermore, Appellant never actually retained alternative counsel, and the

substitute counsel chosen by Appellant testified that he could not be

immediately ready for trial without a continuance. Due both to the

Commonwealth’s concerns regarding its reluctant witnesses and the trial

court’s own docket, the trial court found that the factors set forth in Prysock

weighed in favor of denying Appellant’s request. Id. at 73-76. Based on the

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foregoing discussion and our review of the certified record, we discern no

abuse of discretion in the trial court’s denial. Accord Broitman, supra at

300 (holding that a motion for continuance made on the first day of trial was

properly denied where it would have caused “too great of an imposition on

both the Commonwealth and the trial court’s already crowded schedule”).

In his second issue, Appellant asserts that the trial court erred in

imposing consecutive sentences as to his convictions for third-degree murder

and REAP because those offenses should have merged for sentencing

purposes. See Appellant’s brief at 24-27 (citing Commonwealth v.

Musselman, 396 A.2d 625, 625-26 n.1 (Pa. 1979) (plurality) (stating that

REAP is a lesser included offense of third-degree murder)). This issue

implicates the legality of Appellant’s sentence.4 As such, our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

Under Pennsylvania law, “[m]erger of offenses is appropriate where: (1)

the crimes arise from a single criminal act; and (2) all of the statutory

elements of one of the offenses are included in the statutory elements of the

other offense.” Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa.Super.

2019). In relevant part, these factors are drawn directly from the statutory

____________________________________________

4 The Commonwealth has argued that Appellant has waived this claim under
a variety of different theories. We disagree. See Commonwealth v.
Robinson, 931 A.2d 15, 24 (Pa.Super. 2007) (“[W]e note that merger is a
nonwaivable challenge to the legality of the sentence.”).

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framework established at 42 Pa.C.S. § 9765. We are also mindful of the

following guidance from our Supreme Court:

[E]xamination of the elements of the crimes as charged is
sometimes necessary, especially when dealing with an offense
that can be proven in alternate ways.

Therefore, while Section 9765 indeed focuses on an examination
of “statutory elements,” we cannot ignore the simple legislative
reality that individual criminal statutes often overlap, and
proscribe in the alternative several different categories of conduct
under a single banner.

Commonwealth v. Baldwin, 985 A.2d 830, 837 n.6 (Pa. 2009) (emphasis

in original).

At the outset, we note that Appellant’s brief is conspicuously devoid of

any discussion of § 9765, which statutorily governs merger. This oversight is

significant as it undercuts Appellant’s reliance upon Musselman, which

predates the effective date of § 9765 by over twenty years.5 In the absence

of the application of the modern test for sentencing merger, it is unclear how

Musselman continues to constitute good law given the gulf of precedent and

legislative enactments that have followed in the intervening decades. See

Commonwealth v. Coppedge, 984 A.2d 562, 564 (Pa.Super. 2009) (“The

analyses by cases arising before the effective date of 42 Pa.C.S. § 9765 are

therefore not instructive here.”). We also note that Musselman was a

____________________________________________

5 The effective date of § 9765 is February 7, 2003. See 2002 Pa. Legis. Serv.
Act 2002-215 (S.B. 1452).

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plurality opinion, and as such has no binding effect as precedent in this case.

See Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009).

Third-degree murder is defined as a criminal homicide6 committed with

malice “that [is] not intentional (first-degree) or committed during the

perpetration of a felony (second-degree).” Commonwealth v. Packer, 168

A.3d 161, 168 (Pa. 2017) (citing 18 Pa.C.S. § 2502(c)). A person is guilty of

REAP if he “recklessly engages in conduct which places or may place another

person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

There is similarity in the definitions of these offenses, as one who

commits homicide can reasonably be said to have placed another in danger of

death (and, indeed, consummated that apprehension). This Court has noted

this statutory overlap before. See Commonwealth v. Sobrado-Rivera,

2019 WL 2881486, at *8 (Pa.Super. July 3, 2019) (non-precedential decision)

(“The argument could be made that when a defendant commits [a killing], he

‘recklessly engages in conduct which places the victim in danger of death.’”

(quoting 18 Pa.C.S. § 2705)). However, that is not the end of our analysis.

The trial court concluded that Appellant’s respective convictions for

third-degree murder and REAP do not merge because the convictions involved

different victims. Specifically, the trial court explained that “the charges relate

____________________________________________

6 See 18 Pa.C.S. § 2501(a) (“A person is guilty of criminal homicide if he
intentionally, knowingly, recklessly, or negligently causes the death of another
human being.”).

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to two separate victims. Christian Aguilar was the victim of the murder, and

his girlfriend Maria Guzman was the victim of the [REAP] charge.” Trial Court

Opinion, 7/11/18, at 6. Although not cited by the trial court in support of its

holding, this Court recently addressed a very similar issue in Sobrado-

Rivera, supra at *8, wherein we held that convictions for first-degree murder

and REAP did not merge where “the victims of the crime are not the same.”

In Sobrado-Rivera, the defendant was convicted of first-degree

murder and REAP with respect to a shooting he committed in a neighborhood.

Id. at 1. This Court held that these convictions did not merge because the

crimes were charged and pursued with respect to different victims.

Specifically, the defendant’s first-degree murder conviction related to the

death of the shooting victim, while the REAP conviction was separately tied to

the people in the neighborhood whom defendant had subjected to danger in

opening fire. See Sobrado-Rivera, supra at *8. Based upon these facts,

this Court concluded that the defendant “was not charged with recklessly

endangering the victim, but rather, with recklessly endangering other

residents in the area at the time of the shooting.” Id.

The rationale behind Sobrado-Rivera was our Supreme Court’s holding

in Commonwealth v. Frisbie, 485 A.2d 1098, 1101 (Pa. 1984) (“[T]he

imposition of multiple sentences upon a defendant whose single unlawful act

injures multiple victims is legislatively authorized and, consequently, does not

violate the double jeopardy clause of the Fifth Amendment.”). Thus, the

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holding is not predicated upon a rote application of the relevant statutory

framework, but is grounded in the double-jeopardy jurisprudence that

continues to animate our sentencing merger law even after the adoption of

§ 9765. See Commonwealth v. Davidson, 938 A.2d 198, 217 (Pa. 2007)

(“[T]he purpose of the merger doctrine is double jeopardy-based, i.e., to

safeguard against multiple punishments for the same act.”).

Although Sobrado-Rivera constitutes persuasive and not binding

precedent, we adopt its rationale and apply it to the instant matter. As in

Sobrado-Rivera, Appellant opened fire on Mr. Aguilar in an area that was

populated with individuals other than the victim, e.g., the parking lot outside

of a crowded Philadelphia club. In particular, Ms. Guzman was standing next

to the victim before and during the shooting. Indeed, Ms. Guzman’s testimony

confirms that she was holding the victim’s arm when he was shot, and that

other individuals were also close at hand. See N.T. Trial, 5/8/13, at 173-75.

The Commonwealth’s claim at trial was not that Appellant had committed

REAP against Mr. Aguilar, but that Appellant’s actions subjected other

individuals in close proximity to Mr. Aguilar to grave danger. See N.T. Trial,

5/8/13, at 199 (Ms. Guzman testifying that she and three other individuals

were in “close proximity” to the victim). In particular, the Commonwealth

emphasized the risk to Ms. Guzman. See N.T. Trial, 5/13/13, at 150 (“When

the shots are being fired, there is Maria Guzman. She is standing next to her

boyfriend. She is placed in danger.”). The trial court’s jury instructions also

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made it clear that the Commonwealth’s charge of REAP was not directed at

Mr. Aguilar. See N.T. Trial, 5/13/13, at 212-13.

Appellant was not charged with and convicted of REAP with respect to

any danger in which he may have placed his murder victim. Rather,

Appellant’s charge and conviction was a result of the danger in which he placed

other individuals near the scene of the shooting. Because these crimes

implicated different victims as charged and convicted, no merger results.

Accord Sobrado-Rivera, supra at *8; see also Frisbie, supra at 1101. As

such, no relief is due on this claim.

Appellant’s third claim implicates the admissibility of evidence.

Specifically, Appellant asserts that the trial court “improperly permitted

testimony that when Appellant was arrested, he was found in close proximity

to a firearm that unquestionably was not used in the shooting.” Appellant’s

brief at 27. He asserts the evidence was both irrelevant and prejudicial.7 Id.

“Our standard of review for a trial court’s evidentiary rulings is narrow,

as the admissibility of evidence is within the discretion of the trial court and

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7 To the extent that Appellant asserts that this evidence should have been
excluded as irrelevant, that claim is waived for failure to raise it in a
contemporaneous objection before the trial court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Appellant’s only objection to the introduction of this
evidence was limited to an assertion that its prejudicial effect outweighed its
probative value. See N.T. Trial, 5/10/13, at 89-92. Thus, this claim is waived.
See Commonwealth v. Bedford, 50 A.3d 707, 713-14 (Pa.Super. 2012) (“If
counsel states the grounds for an objection, then all other unspecified grounds
are waived and cannot be raised for the first time on appeal.”).

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will be reversed only if the trial court has abused its discretion.”

Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa.Super. 2014). The

Pennsylvania Rules of Evidence define “relevant evidence” as evidence that

“has any tendency to make a fact more or less probable than it would be

without the evidence” as long as “the fact is a consequence in determining the

action.” Pa.R.E. 401(a)-(b). Relevant evidence is admissible, and irrelevant

evidence is inadmissible. See Pa.R.E. 402. Even relevant evidence may be

excluded if its probative value is outweighed by prejudice. See Pa.R.E. 403.

When Appellant was arrested at a motel in Trevose, Pennsylvania in

connection with this case, he was found in possession of a handgun that was

not the murder weapon. See N.T. Trial, 5/10/13, at 89-92. When the

Commonwealth expressed its intent to elicit testimony that Appellant was

arrested while in possession of this weapon, defense counsel requested that

the evidence be excluded as unfairly prejudicial. Id. at 89-90. Ultimately,

the trial court concluded that “the Commonwealth is permitted to introduce

evidence of [Appellant’s] knowledge of or access to weapons, whether or not

it was the actual weapon used in the killing.” 8 Id. at 92-93 (citing

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8 See Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998)
(“[W]here a weapon can not be specifically linked to a crime, such weapon is
not admissible as evidence. However, there is an exception . . . where the
accused had a weapon . . . suitable to the commission of the crime charged.
This weapon is always a proper ingredient of the case for the prosecution.”);
but cf. Commonwealth v. Christine, 125 A.3d 394, 401 (Pa. 2015) (“The
theory of the exception is that the weapon possessed could have been the
weapon used—that simply is not the case here . . . .”).

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Commonwealth v. Broaster, 863 A.2d 588, 591-92 (Pa.Super. 2004)

(holding that admission of evidence that defendant discarded a handgun not

connected to the murder was properly admitted where it was relevant and

limiting instructions were issued by both the prosecutor and trial court).

In Broaster, this Court specifically concluded that “the discarded gun

was relevant to identify the [defendant] and connect him with the crime at

issue.” Id. at 592. Appellant has attempted to distinguish this holding in the

present circumstances by arguing that “neither Appellant’s identity or

connection to the crime was at issue.” Appellant’s brief at 30. The facts of

Broaster are not a perfect parallel to the present circumstances. However,

we ultimately conclude that Appellant is not entitled to relief. Even assuming,

arguendo, that this complained-of testimony should have been excluded as

unfairly prejudicial, any such error was harmless.

This Court has previously held that testimony adduced by the

Commonwealth which establishes a defendant’s possession of a weapon not

directly connected to the at-issue crimes constitutes harmless error where

there is an “overwhelming body of evidence” that speaks to the defendant’s

guilt. See Commonwealth v. DeJesus, 880 A.2d 608, 615-16 (Pa. 2005);

see also Commonwealth v. Williams, 640 A.2d 1251, 1261 (Pa. 1994)

(“Even assuming it was error to have admitted these guns, in light of the

overwhelming evidence of [defendant’s] guilt, such error is harmless.”),

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overruled on other grounds, Commonwealth v. Christine, 125 A.3d 394,

401 (Pa. 2015).

Instantly, Appellant confessed to the shooting at trial and also freely

admitted that, since 2007, he “always” carried a gun on his person. See N.T.

Trial, 5/13/13, at 24-25, 34, 45. In fact, Appellant also explicitly revisited and

confirmed that he possessed a handgun at the time of his arrest. Id. at 37.

Earlier in the trial, Appellant had also urged his brother in open court to testify

that Appellant confessed to the killing. See N.T. Trial, 5/9/13, at 48-49. The

only true disputed issue at trial was Appellant’s claim of self-defense.

Appellant’s perpetration of the shooting and his ready familiarity with and

access to firearms was overwhelmingly established via other evidence. As

such, any error concerning the admission of this evidence was harmless.

Accord DeJesus, supra at 615-16; see also, e.g., Williams, supra at

1261.

In Appellant’s fourth issue, he asserts that the prosecutor committed

misconduct by expressing his personal opinions regarding the credibility of law

enforcement and lay witnesses in his closing remarks to the jury. See

Appellant’s brief at 33. The following legal principles will guide our review:

Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion. In
considering this claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect one. Not every
inappropriate remark by a prosecutor constitutes reversible error.
A prosecutor’s statements to a jury do not occur in a vacuum, and
we must view them in context. Even if the prosecutor’s arguments
are improper, they generally will not form the basis for a new trial

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unless the comments unavoidably prejudiced the jury and
prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-16 (Pa.Super. 2012).

Appellant’s allegation of misconduct encompasses two statements made

by the prosecutor during his closing argument to the jury. By way of

establishing the relevant factual background, Appellant’s principal argument

at trial was that he had acted in justifiable self-defense by shooting Mr.

Aguilar. In support of this claim, Appellant testified that Mr. Aguilar had pulled

a gun out and menaced Appellant and his brother outside of the club

immediately before the shooting. See N.T. Trial, 5/13/13, at 34. However,

several eyewitnesses testified that Mr. Aguilar did not engage in threatening

behavior prior to the shooting. See N.T. Trial, 5/8/13, at 134-35, 171-76,

202; see also, e.g., N.T. Trial, 5/9/13, at 156-59.

The prosecutor’s comments related to the testimony of Solangela

Correa, whose initial statements to police and court officials differed

significantly from the narrative she ultimately presented at trial.9 Specifically,

Ms. Correa indicated to homicide detectives that she had seen Appellant shoot

Mr. Aguilar without any prior menacing behavior by the decedent. See N.T.

Trial, 5/9/13, at 247-48. Additionally, Ms. Correa had previously averred that

____________________________________________

9 Ms. Correa’s statement was taken by Detective Nathan Williams, who also
testified at trial. In relevant part, he recited portions of Ms. Correa’s original
statement to police, which positively identified Appellant as the shooter and
contained no averments indicating that Mr. Aguilar reached for, or otherwise
possessed, a gun on that evening. See N.T. Trial, 5/10/13, at 175-86.

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she failed to appear at the preliminary hearing because she had been

threatened by Appellant’s mother. Id. at 256-57. However, at trial, Ms.

Correa’s story suddenly and inexplicably corroborated Appellant’s version of

events that Mr. Aguilar had “reached” for a gun prior to Appellant shooting

him. Id. at 237-39. Moreover, Ms. Correa also claimed at trial that homicide

detectives refused to record her version of events, threatened her with

imprisonment, and thereby forced her to present allegedly false testimony

that inculpated Appellant in the shooting and omitted any mention of Mr.

Aguilar having a gun. Id. at 241, 257-59.

With this context in mind, the prosecutor made the following observation

during his closing arguments referencing the tension between Ms. Correa’s

pre-trial statements and her trial testimony: “But remember what she said.

Oh, I told the detective [Mr. Aguilar] had a gun. That Detective is not going

to lie. He is going to take down the statement because that’s not his family.”

N.T. Trial, 5/13/13, at 169-70. Appellant lodged an objection, which was

overruled. Id. Appellant’s claim also references other statements regarding

Ms. Correa’s at-trial testimony: “[Ms. Correa], give her credit. At least she

told the police the truth, but I can’t blame her. She’s got to live there. Those

are her people. Got up here and lied and tried to help [Appellant].” Id. at

174-75.

These remarks were made near the end of the prosecutor’s summation,

after which the trial court, sua sponte, gave the following curative instruction:

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“Ladies and gentlemen, whether or not a witness, any witness is telling the

truth is a matter for you to decide. So you may not accept an attorney’s

account of whether a witness told the truth or not. You heard the evidence.

You make the decision.” Id. at 176. At the conclusion of the prosecution’s

summation, defense counsel made a timely10 motion for a mistrial based on

these statements, which was denied. Id. at 177-79.

In relevant part, Appellant’s argument is that the prosecution engaged

in improper “vouching” through the comments detailed above. See

Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005) (“It is 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.”).

This Court has held that where a prosecutor expresses personal beliefs

regarding the credibility of witnesses, an appropriate curative instruction from

the trial court will remove the danger of prejudice. See Commonwealth v.

Collins, 70 A.3d 1245, 1253-54 (Pa.Super. 2013) (holding a “curative

instruction” given at the close of summation and after multiple objections

____________________________________________

10 See, e.g., Commonwealth v. Judy, 978 A.2d 1015, 1018 (Pa.Super.
2009) (“[O]bjection and request for mistrial on the ground prosecutorial
misconduct are properly preserved notwithstanding the fact that counsel
waited until the end of the assistant district attorney’s closing to lodge the
objection and move for a mistrial.”).

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during the Commonwealth’s closing was sufficient such that there “was no

danger of any prejudice”). Instantly, the trial court gave a curative instruction

at the end of the Commonwealth’s closing arguments addressing the

objections raised by defense counsel. As such, this allegation of misconduct

is devoid of merit. Id. at 1254.

With respect to Appellant’s final claim, he argues the trial court erred by

refusing to declare a mistrial over the prosecutor’s introduction of evidence

that several of the Commonwealth’s witnesses were threatened by members

of Appellant’s family. See Appellant’s brief at 39-55 (arguing that the trial

court erred when it “permitted . . . the admission of pervasive evidence that

the three main Commonwealth witnesses had been threatened”).

Appellant’s argument on this issue centers on testimony from Ms.

Correa, Staceyann Santiago, and Grace Serrano, all of whom were present in

the parking lot on the night of the shooting. Initially, we note that Appellant

is correct in noting that the Commonwealth adduced testimony regarding

threats made against the witnesses by Appellant’s family members at trial.

There was also an incident in the courtroom involving members of Appellant’s

family being on their phones, and potentially attempting to threaten Ms.

Serrano during and after her testimony. See N.T. Trial, 5/9/13, at 204-22.

However, no testimony or commentary concerning these alleged threats were

presented to the jury who were quickly taken out of the room. Id. at 206.

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Appellant has waived these claims by failing to raise them with the trial

court in the first instance. Our review of the certified record indicates that

Appellant did not make a timely request for a mistrial on this specific basis.

See Pa.R.Crim.P. 605(B) (“When an event prejudicial to the defendant occurs

during trial only the defendant may move for a mistrial; the motion shall be

made when the event is disclosed.” (emphasis added)); see also, e.g.,

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”)

The only motions for mistrial made by defense counsel during trial

related to: (1) a witness commenting that a spectator was using a cell phone

in the courtroom, see N.T. Trial, 5/9/13, at 212; (2) the prosecutor’s comment

that Mr. Aguilar could not speak for himself because he was deceased, see

N.T. Trial, 5/10/13, at 61; (3) an outburst in the courtroom concerning

Appellant’s innocence made by a spectator, see N.T. Trial, 5/13/13, at 5; (4)

the prosecutor’s questioning whether Appellant wanted to prove his

innocence, id. at 72, 108-09; and (5) the prosecutor’s comments during his

closing arguments concerning witness credibility, id. at 177-78.

Appellant failed to make a timely motion for a mistrial during or

immediately after the many instances of testimony concerning alleged threats

made against the Commonwealth’s witnesses. As such, this claim has been

waived. See Commonwealth v. Cornelius, 180 A.3d 1256, 1262 (Pa.Super.

2018) (“Appellant failed to make a timely request for a mistrial, and this claim,

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accordingly, has been waived.”) (quoting Commonwealth v. McAndrews,

430 A.2d 1165, 1167 (Pa. 1981)).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/20

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