J-A25026-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LASANA JAITEH : : Appellant : No. 2615 EDA 2023
Appeal from the Judgment of Sentence Entered September 21, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006128-2021
BEFORE: OLSON, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 6, 2025
Appellant, Lasana Jaiteh, appeals from the Judgment of Sentence
entered in the Philadelphia County Court of Common Pleas following his jury
conviction of First-Degree Murder, Recklessly Endangering a Person (“REAP”),
and Possession of an Instrument of Crime (“PIC”). 1 He challenges the
sufficiency and weight of the evidence and certain evidentiary rulings, and
raises a claim based on prosecutorial misconduct. After careful review, we
affirm.2
A.
____________________________________________
1 18 Pa.C.S. §§ 2502, 2705, 907(a).
2 On October 11, 2024, Appellant filed a “Second Motion for Extension to File
Reply Brief.” On October 14, 2024, he filed his Reply Brief. We accept his Reply Brief as timely filed and, thus, deny his October 11, 2024 motion as moot. J-A25026-24
The trial court accurately summarized the factual history of this case as
follows:
On June 22, 2019, at approximately 4:00 a.m., the decedent, Benjamin White, was walking down Market Street with a seventeen-year-old young woman, M.B. and another man, Christian Snowden. The decedent and Snowden were both intoxicated and Snowden was having difficulty walking straight. As they walked past a clothing store located at 5529 Market Street in Philadelphia known as New Grind Clothing, which was owned by [Appellant], Snowden lost his balance and fell into the store’s front window, which shattered upon impact. After he fell into the window and the lights of the store came on, Snowden began to run east down Market Street in the direction of 55 th Street. After Snowden began to run, the decedent ran in the same direction of Snowden while M.B. hid behind a pillar in the middle of the street about twenty feet from the store.[]
[Appellant] and his co-defendant Moffitt were inside of New Grind Clothing with a couple other men when Snowden fell into the window. After hearing the window break, several men, including [Mr. Moffitt and Appellant] armed with handguns, ran outside through the front door and chased the decedent outside of the store. At that time, M.B. repeatedly screamed that the window had been broken by accident. As the decedent ran away, [Appellant] aimed his gun at him and fired at least one shot. After [Appellant] began shooting, his co-defendant Moffitt aimed his gun in the direction of the decedent and began firing multiple shots. The decedent was struck once in the back and collapsed in the street about fifty feet from the store.
After the shooting, the co-defendants and the other men went back inside of New Grind Clothing and took the digital video recorder (“DVR”), which apparently had security footage from cameras located outside the front door and inside the store. After a few minutes, M.B., who remained on the scene to provide aid to the decedent, saw [Appellant], co-defendant Moffitt, and the other men leave the store carrying the DVR, get into a van parked out front, and drive away.
Calvin Houston, a neighbor who lived across the street from New Grind Clothing, was on his front porch at the time of the shooting.
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Houston later identified [Appellant] and his co-defendant Moffitt as the shooters in photo arrays shown to him by police and at [Appellant’s] preliminary hearing.
When police arrived at the scene, New Grind Clothing was unoccupied and had its front grate pulled down. Police noticed that there was a camera at the front door of the store and a second camera inside of the store. After searching the store, it appeared that a DVR from inside of the store that was connected to the cameras had been removed.
On the sidewalk in front of New Grind Clothing, police recovered two fired cartridge casings (“FAA’s”), a .380 caliber and a .40 caliber. Police also recovered a .40 caliber FCC, seven live .380 rounds, a Smith & Wesson 9mm gun box, live 9mm ammunition, and two 9mm handgun magazines from within the store.
On June 27, 2019, police showed M.B. a photo array that included a photo of [Appellant]. At that time, she indicated that [Appellant] looked familiar, like one of the guys that was shooting. . . .
The decedent died from a single indeterminate range gunshot wound to the left midback. A copper-colored jacketed metal projectile was recovered from the decedent’s body.
Tr. Ct. Op., 1/18/24, at 2-4.
After the incident, and significant to this appeal, Officer Martin Mitchell,
who drove Mr. Houston to the police station for further questioning, spoke
with his colleague Detective Bradley. Shortly thereafter, Officer Bradley
memorialized the interview he conducted with Officer Mitchell. The interview
report included Officer Mitchell telling Detective Bradley that in the police car,
Mr. Houston had told him that he was “just off work and was inside his house
when he heard the gunshots, then he ran out the house with no shirt or shoes
to help the victim.” Cmwlth. Exh. 25 (“Interview Report”). Notably, Officer
Mitchell did not sign or swear to the interview report.
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The Commonwealth arrested Appellant on June 26, 2020, and co-
defendant Moffitt on October 15, 2020, and charged them each with the above
crimes as well as Conspiracy and related offenses. At the preliminary hearing,
held on July 7, 2021, Calvin Houston testified that he was on his front porch
across the street from the clothing store, having returned home from working
a night shift. He was looking at his cell phone as he smoked a cigarette, heard
glass break and looked up. He saw the decedent running away from the store
and, shortly thereafter, saw Appellant run out of the store and fire a gun at
the decedent. He also testified that he heard M.B. yelling, among other things,
that it was an accident. Houston stated that in speaking to police officers
immediately following the incident and then to homicide detectives at the
police station, he identified Appellant as the shooter who killed the decedent.
He further testified that he later found on social media photos of Appellant
hosting community events at the clothing shop and showed them to
investigators. He testified that he had met Appellant previously while
Appellant was working behind the counter at the store.
Defense counsel each cross-examined Mr. Houston, with Appellant’s
counsel challenging Mr. Houston’s testimony about, inter alia, his location
when he saw the shooting.
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On July 31, 2023, prior to the start of trial, the Commonwealth filed a
motion to admit Mr. Houston’s preliminary hearing testimony because he had
died prior to trial and was, thus, unavailable to testify. Counsel for both
defendants opposed the motion, asserting, inter alia, that they did not have
full discovery prior to the preliminary hearing. See N.T., 7/31/2023, at 13.
Appellant’s counsel acknowledged that he had cross-examined Mr. Houston
about his testimony on direct examination, but asserted that he asked
questions about those topics only to memorialize them on the record for
preliminary hearing purposes and “if the Commonwealth thought that there
was any chance of this [testimony] needing preservation, they would have
given me the full discovery on the case at the preliminary hearing stage,
thereby allow[ing] me to ask all the questions that I wanted to ask of him.”
Id. at 13-14. The Commonwealth noted that it had provided all the required
discovery to counsel prior to the preliminary hearing. Additionally, Appellant’s
counsel did not identify the discovery that he did not have at the preliminary
hearing and how having that discovery would have changed his cross-
examination. The court, finding that Appellant had the opportunity for a fair
and full hearing at the preliminary hearing, granted the motion and permitted
the Commonwealth to present Mr. Houston’s preliminary hearing testimony to
the jury. Id. at 16.
On August 1, 2023, the trial began. M.B. testified and, for the first time,
identified co-defendant Moffit in court as a shooter, stating that he had looked
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directly at her during and after the shooting and she had recognized him in
the courthouse corridor prior to trial. M.B. also testified that she did not
recognize Appellant and had never seen him before. The court admitted into
evidence the statements that M.B. had given to police investigators shortly
after the shooting in which she stated, while looking at a photo array, that
Appellant looked familiar and like one of the men who was shooting but that
she didn’t want to “blame the wrong guy.” N.T., 8/1/23, at 205.
Mr. Houston’s preliminary hearing testimony was then read into the
record, including the portion that identified Appellant as the shooter. See N.T.,
8/2/23, at 12-51.
Police officers and investigating detectives also testified. As discussed
in more detail infra, Detective John Harkins explained how the police
investigation led to Appellant’s arrest. He also noted that the video recovered
from street cameras had not captured the shooting and although there was
evidence of a video security system inside and outside the clothing store, the
police recovered no video equipment or recording devices from inside the
store. Id. at 125.
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The jury found Appellant and Mr. Moffitt guilty of First-Degree Murder,
REAP and PIC.34 Appellant waived a presentence investigation and mental
health evaluation, and on September 21, 2023, the court sentenced him to
life imprisonment without the possibility of parole. It imposed no further
penalty for REAP and PIC. Following the denial of his post-sentence motion,
in which he challenged the weight of the evidence, Appellant appealed.
B.
Appellant presents the following issues for our review:
1. Where the Commonwealth presented evidence of both innocence and guilt as the testimony of one Commonwealth eyewitness reflected Appellant was innocent and one reflected he was guilty, was the evidence so inherently inconsistent and caused the jury to speculate and guess as to guilt as to be insufficient as a matter of law?
2. Where the person who testified that Appellant was not guilty was mere feet from the shooting, whereas, the person who testified that the defendant was guilty was approximately 200 feet away; it was dark out when the incident occurred; and he had a potential obstructed view, did the lower court abuse its discretion in not granting a new trial since the verdict shocks the conscience?
3. Where the only person who inculpated the Appellant was inside his [s]econd [f]loor [r]ear apartment when the shooting occurred, instead of being outside as he testified, did the Commonwealth violate Napue v. Illinois, [360 U.S. 264 (1959),] when it improperly proffered that Appellant had a full ____________________________________________
3 The jury found both men not guilty of Conspiracy, Obstructing Administration
of Law or Other Governmental Function, and Tampering with or Fabricating Physical evidence. Co-defendant Moffitt’s appeal is pending before this Court at 2860 EDA 2023.
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and fair opportunity to cross-examine this witness when this gross inconsistency was not provided at the time of Appellant’s preliminary hearing; and did the Commonwealth also violate Napue when it failed to correct this false testimony at trial?
4. Did the prosecutor commit reversible error in closing when it inferred [sic] the defendants had killed a critical witness in this case where there was no evidence of that having occurred and where it made an ad hominem attack by improperly denigrating defense counsel?
5. Did the lower [court] err in admitting the testimony of a homicide detective who improperly vouched for the eyewitness at trial?
Appellant’s Br. at 4-5.5
C.
In his first issue, Appellant purports to challenge the sufficiency of the
identification evidence supporting his convictions. 6 He contends that the
testimony of M.B. and Mr. Houston regarding the identification of Appellant as
a shooter was “inherently contradictory and in conflict,” and “[t]hus, . . . the
evidence was inherently unreliable and . . . the Commonwealth has proved
both innocence and guilt, making this evidence insufficient as a matter of law.”
Appellant’s Br., at 17, 18. Appellant asserts that “[g]iven the fact that the
5 Although Appellant provides a “Statement of the Facts” with citations to the
trial transcript, the citations correspond only to Appellant’s counsel’s closing statement and not to the actual evidence that would support the facts as he recites them.
6 Appellant challenges only the sufficiency of the identity evidence and not the
sufficiency of the evidence to establish the other elements of the crime. Accordingly, he has waived any challenge to the evidence supporting the other elements of each crime.
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Commonwealth has presented evidence that [Appellant] was not at the scene
of the crime, then any verdict had to rely solely on the Houston testimony.
This caused the jury to have to speculate and guess, between the two versions
and therefore, the evidence was insufficient as a matter of law to convict.”
Id. at 20.
Our standard of review of a challenge to the sufficiency of the evidence
is well-settled.
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 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.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
First-Degree Murder is any unlawful killing committed with malice and
the specific intent to kill. 18 Pa.C.S. § 2502(a). Accordingly, the
Commonwealth must present evidence to establish, beyond a reasonable
doubt, that (1) a person was unlawfully killed; (2) the defendant killed the
person; and (3) the defendant acted with a specific intent to kill.
Commonwealth v. Buford, 101 A.3d 1182, 1186 (Pa. Super. 2014). A
person will be found guilty of REAP where the evidence shows that he
“recklessly engage[d] in conduct which place[d] or may place another person
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in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. A person will
be found guilty of PIC where the evidence proves that “he possesse[d] any
instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).
With respect to the sufficiency of the evidence presented to support the
identification of the perpetrator of a crime, such evidence “needn’t be positive
and certain in order to convict, although any indefiniteness and uncertainty in
the identification testimony goes to its weight. Direct evidence of identity is,
of course, not necessary and a defendant may be convicted solely on
circumstantial evidence.” Commonwealth v. Hickman, 309 A.2d 564, 566
(Pa. 1973) (internal citations omitted). “Variances in testimony . . . go to the
credibility of the witnesses and not the sufficiency of the evidence.”
Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981). “A
sufficiency of the evidence review does not include an assessment of the
credibility of the testimony[.]” Commonwealth v. Wilson, 825 A.2d 710,
713 (Pa. Super. 2003). “Such a claim is more properly characterized as a
weight of the evidence challenge.” Id. at 714.
We start by rejecting Appellant’s characterization of the evidence.
Appellant asserts that the “Commonwealth has presented evidence that
[Appellant] was not even at the scene of the crime.” Appellant’s Br. at 23. The
record does not support this statement.7
7 At best, the record only supports the fact that police officers took no fingerprint or DNA evidence from the shop and, thus, no evidence placed him (Footnote Continued Next Page)
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Additionally, from our review of the record, viewing the evidence in the
light most favorable to the Commonwealth, we conclude that the
Commonwealth presented sufficient evidence to support the jury’s
determination that it was Appellant who shot the decedent. Mr. Houston
identified Appellant as the first man to run out of the store with a firearm after
the glass broke. N.T., 8/2/23, at 18-19, 38, 44. He also testified that
Appellant shot the decedent and that co-defendant Moffitt also fired some
shots at the decedent. Id. at 18-20. Additionally, both Mr. Houston and M.B.
testified that when the shooting stopped, the men—including Appellant—ran
back into the store before leaving shortly thereafter with at least two other
men, holding a DVR or VCR device or computer, and getting into a van that
was parked in front of the store before driving away. N.T., 8/1/23, at 211-
214 (Testimony of M.B.), N.T., 8/2/23, at 19-21 (Testimony of Houston).
Thus, viewing the evidence and all reasonable inferences in the light
most favorable to the Commonwealth as verdict-winner, we conclude that
sufficient evidence supports the jury’s verdict that Appellant committed the
crimes of first-degree Murder, REAP, and PIC. Moreover, in light of the
evidence presented at trial, we reject Appellant’s conclusion that the verdict
was the result of jury speculation.
at the shop. See N.T., 8/2/23, at 125. This fact does not support Appellant’s assertion that the Commonwealth presented evidence that Appellant was not at the scene. We remind counsel of its professional responsibility of candor to the court.
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Finally, Appellant’s argument that the testimony of Houston and M.B.
are “inherently contradictory and in conflict” challenges the weight, not the
sufficiency, of the evidence, which we address below. Appellant’s sufficiency
claim, thus, warrants no relief.
D.
Appellant next challenges the jury’s weight determination that it was
Appellant who shot the decedent and concludes that “the verdict shocks one’s
sense of justice.” Appellant’s Br. at 22. In support, he argues, without citation
to the notes of testimony, that “[s]ince M.B.’s vantage was so much closer
than Houston’s, and she locked eyes with the shooter who[m] she thought
was going to kill her, and it was dark outside, her testimony that [Appellant]
was not even at the scene was far more compelling than that of Houston’s.”
Id. at 23.
An argument that the verdict is “contrary to the weight of the evidence
concedes that there is sufficient evidence to sustain the verdict but contends,
nevertheless, that the verdict is against the weight of the evidence.”
Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002) (citation
omitted). This Court does not consider de novo whether the verdict is against
the evidence. Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016)
(citation omitted). Rather, “[a]ppellate review of a weight claim is a review of
the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Widmer, 744 A.2d at 753.
“Because the trial judge [ ] had the opportunity to hear and see the evidence
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presented, an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing a trial court’s
determination that the verdict is [or is not] against the weight of the
evidence.” Id. A weight of the evidence claim is one of the least assailable
reasons for granting a new trial. Commonwealth v. Brown, 648 A.2d 1177,
1189–90 (Pa. 1994). Thus, if the jury’s findings are supported by the record,
the trial court’s denial of a motion for a new trial will not be disturbed.
Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). Our review is
highly deferential: “we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.” Commonwealth
v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).
We start again by highlighting that Appellant, without citation to the
record, asserts that M.B. testified that Appellant “was not even at the scene.”
Appellant’s Br. at 23. Our review of the record reveals that M.B. did not testify
to this. Thus, we reject this portion of Appellant’s argument.
Additionally, we find that the trial court did not abuse its discretion in
denying Appellant a new trial based on his challenge to the weight of the
evidence. See Tr. Ct. Op., 1/18/24, at 17 (concluding that the verdict did not
“shock one’s sense of justice.”). Mr. Houston identified Appellant as the first
man who came out of the shop shooting. N.T., 8/2/23, at 18-19.. M.B. also
made a statement to the police officers within a week of the shooting where
she identified Appellant as looking “familiar, like one of the guys who was
shooting” at the decedent. Id. at 205.
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Since it was within the province of the jury as factfinder to weigh the
evidence and determine the credibility of the witnesses, we conclude that the
court did not abuse its discretion in denying Appellant’s weight claim.
E.
Appellant next argues that the Commonwealth violated his right to due
process as provided in Napue v. Illinois, 360 U.S. 264 (1959), when the
Commonwealth argued at the hearing on its motion in limine that Appellant
had a full and fair opportunity to cross-examine Mr. Houston at the preliminary
hearing. Appellant’s Br. at 25. He argues that the Commonwealth “failed to
correct the false testimony of Houston” when arguing for its admission at trial.
Id. at 26. Appellant concludes that since he did not have the police interview
report containing Officer Mitchell’s responses to Detective Bradley’s questions
before the preliminary hearing, the Commonwealth violated Appellant’s due
process rights by “den[ying] the use of vital impeachment evidence at the
preliminary hearing,” and the Commonwealth, thus, made a
misrepresentation to the court in arguing at the hearing on the motion in
limine that Appellant had a full and fair opportunity to cross-examine Mr.
Houston. Id. at 29-30.
In Napue, the U.S. Supreme Court reiterated that “a conviction
obtained through use of false evidence, known to be such by representatives
of the State, must fall under the Fourteenth Amendment[.] The same result
obtains when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears.” 360 U.S. at 269 (internal citations omitted).
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In order to find a Napue violation, a court must conclude (1) the witness
committed perjury; (2) the prosecution knew or should have known of their
perjury; (3) the false testimony went uncorrected; and (4) there is a
reasonable likelihood that the false testimony affected the verdict. See id., at
269-271.
In this case, Appellant focuses first on the legal argument that the
Commonwealth made to the trial court that Appellant had a fair and full
opportunity to cross-examine Mr. Houston at the preliminary hearing.
Appellant characterizes the Commonwealth’s argument as false. Appellant’s
Br. at 24. Appellant also contends, with reference to Officer Mitchell’s
interview report, that “[t]he failure to disclose this enormous discrepancy in
the Houston testimony on two occasions, constituted misrepresentations both
to the lower court and to the jury, which was significant because only Houston
implicated [Appellant] in the shooting.” Id. at 25.
The trial court addressed Appellant’s claim raised on appeal and
concluded that the “Commonwealth did not commit any Napue violation by
presenting argument that Houston’s preliminary hearing testimony was
admissible.” Tr. Ct. Op. at 8.
We conclude that the trial court properly rejected Appellant’s claim.
Since Appellant is challenging the Commonwealth’s presentation of a legal
argument presented at the hearing, Appellant has failed to establish the
foundational requirement to establish a Napue violation. See
Commonwealth v. Puksar, 951 A.2d 267, 280 (Pa. 2008) (reiterating that
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Counsel’s arguments presented in support of a motion are not evidence).
Thus, the Commonwealth did not present “false evidence” during the hearing
on the motion.
Appellant also argues that because Officer Mitchell told Detective
Bradley that Mr. Houston told him that Mr. Houston was inside the apartment
when Mr. Houston heard the gunshots, Mr. Houston committed perjury when
he testified at the preliminary hearing. Mr. Houston’s testimony about his
location when he heard gunshots, however, was consistent with Mr. Houston’s
formal statement to the police. Officer Mitchell’s hearsay statement to
Detective Bradley does not establish that Mr. Houston committed perjury. The
hearsay statement about Mr. Houston’s location and Mr. Houston’s other
statements under oath present, at best, a discrepancy and not perjury. See,
e.g., Lambert v. Blackwell, 387 F.3d 210, 249 (3rd Cir. 2004) (testimony
elicited by prosecutor presented a “discrepancy,” not perjury). 8 ____________________________________________
8 We also note, as the trial court aptly observed, that “statements made by a
witness prior to trial are subject to disclosure only when they are signed, adopted or otherwise shown to be substantially verbatim statements of that witness.” See Tr. Ct. Op., at 7 (quoting Commonwealth v. Cruz-Centano, 668 A.2d 536, 543 (Pa. Super. 1995) (holding that where a police officer summarizes a witness statement in an interview report, the Commonwealth is not obligated to disclose the report prior to the preliminary hearing)); see also Commonwealth v. Brinkley, 480 A.2d 980, 984 (Pa. 1984) (reiterating that “statements made by a witness prior to trial are subject to disclosure only when they are signed, adopted or otherwise shown to be substantially verbatim statements of that witness.”). Since Officer Mitchell’s statement regarding his conversation with Mr. Houston in the police car was neither signed nor adopted by Officer Mitchell, “it cannot be said that the withholding thereof deprived [A]ppellant of the opportunity for a full and fair cross- (Footnote Continued Next Page)
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Further, because Mr. Houston’s testimony was not perjury, we disagree
with Appellant’s contention that the Commonwealth presented “false
evidence” at trial. See Appellant’s Br. at 29-30 (asserting that Houston’s
testimony was false and the Commonwealth nonetheless “presented this
testimony as truthful and consistent, in many ways, with that of M.B.”).
Finally, we note that Appellant failed to challenge on appeal the trial
court’s determination that Appellant had a fair and full opportunity to cross-
examine Mr. Houston at the preliminary hearing without Officer Mitchell’s
statement. Thus, we lack jurisdiction to review the trial court’s conclusion that
even without Officer Mitchell’s statement, Appellant had a fair and full
opportunity to cross-examine Mr. Houston.
F.
In his fourth issue, Appellant contends that “multiple instances of
improper argument” during the Commonwealth’s closing argument “compel
the grant of a new trial.” Appellant’s Br. at 30. Specifically, Appellant focuses
on two comments. He first contends that the prosecutor’s comment—that
“snitches get stitches” and “they also can get bullets”—“stripped [Appellant]
of the presumption of innocence and was incredibly prejudicial” because “[i]n
essence, the prosecutor impermissibly implied that the defendants had caused
Houston’s death when there was no evidence that either defendant was
examination of [Houston] at the preliminary hearing as contemplated in Commonwealth v. Bazemore, [614 A.2d 684 (Pa. 1992)].” Cruz- Centano, 668 A.2d at 543.
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involved.” Id. at 31. He also asserts that the prosecutor made an “ad
hominem attack on defense counsel,” by “stating that it was the defense
counsel’s job to gain an acquittal, which by implication shifted the
Commonwealth’s unwavering burden to Appellant while at the same time,
denigrating defense counsel.” Id., at 33.
We review a claim of prosecutorial misconduct under the following legal
precepts:
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 unless the comments unavoidably prejudiced the jury and prevented a true verdict.
Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013) (citation
omitted). See also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa.
2005) (holding that prosecutorial misconduct does not occur unless the jurors
form a fixed bias and hostility toward the defendant based on the prosecutor’s
comments).
Our Supreme Court has “recognized that not every unwise remark by
an attorney amounts to misconduct or warrants the grant of a new trial.”
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016). Further,
an immediate correction by the trial court following a ruling sustaining an
objection to a statement made during closing argument may “neutralize[ ]”
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any possible prejudicial effect of the challenged comment. Commonwealth
v. Martinolich, 318 A.2d 680, 687-88 (Pa. 1974).
Finally, “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 offered.” Jaynes, 135 A.3d at 615.
The following excerpt from the notes of testimony provides the
necessary context for our consideration of this issue.
Prosecutor: . . . It gets a little heavier when you have to deal with the witnesses who, as you might imagine, are not anxious and banging down the door to come into court and to testify in a criminal case, in general, and, certainly, not a homicide because the stakes are high in a homicide. And when you come into a court of law and point fingers at people, well, what is the expression? Snitches can get stitches.
Appellant’s Counsel: Objection.
Prosecutor: And they can also get bullets.
Court: Did I hear an objection?
Appellant’s Counsel: You did.
Court: Okay. That’s sustained. There’s no evidence of anything like that in this case.
Prosecutor: And so you overcome the hesitancy of witnesses to come forward. And then, they get called into court, and they get stripped of their humanity; just like I promised you.
-- and by the way, he said I was going to take a run at him. I’m not going to take a run at him. I’m not. It’s not personal. It’s not. I will take issue with what he said. I will even take issue with some of the things; how he said it. But he’s got a job to do. His job is to get his client off. That’s his job.
Court: Sustained.
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****
N.T., 8/2/23, at 249-51.
In addressing the claim Appellant raised in this appeal, the trial court
found that its instruction to the jury, provided immediately after it sustained
Appellant’s objection, adequately informed the jury that this case did not
involve any evidence of witness retaliation. After reciting relevant law, the
trial court concluded:
The prosecutor’s statement regarding witnesses’ reluctance to come forward and testify for fear of retaliation did not amount to reversible error. These comments did not allege or imply that the Defendants were in anyway involved in or responsible for Calvin Houston’s death and subsequent availability as a witness. The prosecutor’s statement was simply a general statement about witnesses who do testify and an attempt to bolster the credibility of the civilian witnesses who testified at the Defendants’ trial. The prosecutor’s comments did not form in the jurors’ minds a fixed bias and hostility toward the Defendants that would cause them not to weigh the evidence objectively and render a fair verdict. Regardless, after the prosecutor’s comment, this [c]ourt immediately sustained defense counsel’s objection and provided the jury with an instruction making it clear that there wasn’t anything like that in this case.
Tr. Ct. Op., at 13, citing N.T., 8/2/23, at 249-50.
We agree with the trial court. When read in the context of the
prosecutor’s closing argument, and considered in light of the court’s
immediate instruction, we conclude the comment did not “unavoidably
prejudice[] the jury and prevent [] a true verdict.” Toritto, 67 A.3d at 37.
The trial court also found meritless Appellant’s contention that the
prosecutor’s second challenged comment shifted the Commonwealth’s
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“unwavering burden to Appellant at the same time denigrating defense
counsel.” Appellant’s Br. at 33. The court concluded it properly informed the
jury that a defendant is not required to prove his own innocence, stating:
After the prosecutor stated that it is defense counsel’s job to get his client off, this [c]ourt sustained defense counsel’s objection and granted his request for a curative instruction. This [c]ourt informed the jury, in no uncertain terms, that the prosecutor’s statement was stricken from the record, the jury was to disregard any comment about defense counsel’s job, and clarified that a defense attorney has an ethical duty to zealously represent their client. This [c]ourt made clear to the jury that a defendant is innocent until proven guilty, a defendant is not required to prove his own innocence, and that the burden is on the Commonwealth to prove that a defendant is guilty of each of the crimes charged beyond a reasonable doubt. See N.T., 8/2/23, at 282; 8/3/23 at 3-5, 11-14.
None of the prosecutor’s comments during closing argument were so prejudicial that they caused the jury to form a bias or hostility.
Tr. Ct. Op. at 14.
Based on our review of the record, we conclude that the prosecutor’s
comment regarding defense counsel’s job did not cause the jury to form a
fixed bias and hostility toward Appellant. Moreover, the court gave a proper
curative instruction while charging the jury, an instruction to which counsel
did not object. Accordingly, we conclude Appellant’s request for a new trial
based on the prosecutor’s two challenged comments is meritless.
G.
In his final issue, Appellant contends that the court erred in allowing
Detective Harkins to “vouch” for M.B. when he testified that a mark under a
photograph of Appellant “looks like M.B.” Appellant’s Br. at 35. He also
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contends that Detective Harkins “vouched” for Houston’s credibility when he
testified that “Calvin Houston identified [Appellant.]” Id. Appellant asserts
this testimony “vouch[ed] for the credibility of these witnesses when the
credibility of Houston was not seriously attacked in front of the jury, and M.B.
clearly stated that [Appellant] was not even present at the scene.” Id. at 37.
This issue is waived.
It is well settled in Pennsylvania that a party must make a timely and
specific objection at trial in order to preserve an issue for appellate review.
Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176,
1185 (Pa. Super. 1994) (“In order to preserve an issue for review, a party
must make a timely and specific objection at trial”). Failure to do so results
in waiver of that issue on appeal. See Pa.R.A.P. 302(a) Note.
With respect to preserving challenges to the admission or exclusion of
evidence, Pa.R.E. 103 addresses rulings on evidence and requires a
contemporaneous objection to preserve a claim of error in the admission of
evidence which raises the specific ground on which the objection is based.
Pa.R.E. 103(a).
Our review of the record reflects that M.B. testified regarding her initials
written under Appellant’s picture in a photo array that she was shown on June
27, 2023. N.T., 8/1/23, at 203-205. The next day, Detective Harkins testified
about the investigation and, generally, about procedures followed by police
investigators where there are eyewitnesses. After Detective Harkins noted
that Detective George Fetters had shown the photographic array to M.B.,
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Appellant’s counsel raised a general objection and requested a sidebar. N.T.,
8/3/23, at 74. The sidebar occurred off the record. Following the sidebar, the
Commonwealth continued to ask Detective Harkins questions about the photo
array shown to M.B. Id. Counsel did not object after this testimony. Id. at
76. Because Appellant did not make a timely, on-the-record objection to
Detective Harkins’ testimony specifically challenging it as “vouching,”
Appellant failed to preserve this issue for our review.
With respect to Detective Harkins’ testimony that Mr. Houston was
shown a different photo array from that shown to M.B., Appellant’s counsel
raised the “same objection,” without specifying the objection on the record.
Id. After the court overruled the objection, the trial court interrupted the
Commonwealth’s direct examination of Detective Harkins to provide a
cautionary instruction to the jury. Id. at 77. The court informed the jury that
because Mr. Houston is dead and the photographs weren’t shown at the
preliminary hearing,
these [photos] are not offered for the truth of the matter because the witness can’t be cross-examined about the specific photograph. But it’s being offered because this is one of the assigned detectives that was responsible.
So in the course of conduct, you are entitled to hear how the investigation progressed, and why arrest warrants were prepared. So you can’t use – you use this evidence differently. And this is only as it pertains to [Appellant]. But you use it differently than what you receive [sic] the evidence yesterday from, and part of it, again, today about [M.B.] because she was here and she had – there was cross-examination.
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N.T., 8/2/23, at 77. The record reflects that counsel did not object to this
cautionary instruction or otherwise raise an objection that Detective Harkins
was vouching for Mr. Houston. Because Appellant failed to preserve his claim
of error alleging vouching, it is waived.
H.
Having found each of Appellant’s issues meritless or waived, we affirm
the judgment of sentence.
Judgment affirmed.
Date: 5/6/2025
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