Com. v. Muhammad, M.

• Court: Superior Court of Pennsylvania
• Decided: April 20, 2015
• Docket: 1300 EDA 2014
• Status: Unpublished

Opinion

J-S19010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MUJAHID MUHAMMAD

Appellant No. 1300 EDA 2014

Appeal from the Judgments of Sentence entered July 19, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos: CP-51-CR-0006525-2010, CP-51-CR-0006526- 2010

BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 20, 2015

Appellant, Mujahid Muhammad,1 appeals nunc pro tunc from the

judgments of sentence entered for his convictions of two counts of

aggravated assault as an accomplice. Appellant challenges the sufficiency of

the evidence and the trial court’s denial of a mistrial based on statements

made by the prosecutor during closing arguments. Upon review, we affirm.

This case began over an argument about the rules of a pickup

basketball game.2 At around 6:30 p.m. on March 2, 2010, Anthony Ellerbee, ____________________________________________

1 In the record, Appellant’s surname is spelled “Muhammad” and “Muhammed.” At sentencing, Appellant spelled his own name “Muhammad.” See N.T. Preliminary Hearing [sic], 7/19/12, at 3. We direct correction of the caption accordingly. 2 The factual background is taken from the trial court’s Pa.R.A.P. 1925(a) opinion filed August 28, 2014, and the notes of testimony of trial. J-S19010-15

his cousins Keith and Zsaron Simpson, and a friend arrived at World’s Gym

on Roosevelt Boulevard in Northeast Philadelphia to play basketball. Under

the rules of the game, the teams counted all made field goals as one point.

During the first game, Appellant, who was waiting to play, began to yell from

the sideline that three-point field goals should count as two points, to speed

up the pace of play. After the first game was over, Appellant and Zsaron

Simpson got into a verbal altercation near center court. Ellerbee stepped in

between the two to diffuse the situation. Appellant eventually walked off the

court.

While playing the next game, Ellerbee noticed that Appellant was on a

cellphone. Play continued for about 20 minutes until a foul stopped the

action. During the break, Ellerbee and Keith Simpson noticed a man (the

shooter) wearing jeans, boots, and a dark jacket. Everyone else in the gym

was dressed to play basketball. The shooter and Appellant made eye

contact and exchanged head nods, and the shooter walked up to Zsaron

Simpson, passing by the other players and people waiting to play.

Appellant and Zsaron Simpson exchanged words, and the shooter

pulled a handgun and struck Zsaron Simpson in the mouth with it. He

pointed the gun at Keith Simpson, and then at Ellerbee, who raised his

hands. While the shooter pointed the gun at Ellerbee’s chest, Appellant ran

over and tackled Zsaron Simpson to the floor. The armed man ran over to

Appellant and Zsaron Simpson, and Ellerbee followed to assist Zsaron.

Ellerbee pulled the shooter off Zsaron and forced the shooter onto the floor.

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Once on the floor, Appellant punched Zsaron Simpson multiple times. The

shooter fired a shot into Ellerbee’s chest, and then a second that grazed

Ellerbee’s forehead and struck his ear. Zsaron Simpson moved away toward

a bench at center court. The shooter followed and shot him once in the

stomach. Then, the shooter and Appellant left the gym together. Ellerbee

and Zsaron Simpson also left. Both were hospitalized for their injuries.

Ellerbee spent two days in the hospital and needed two months of

rehabilitation. Zsaron Simpson was hospitalized for about one month and

required four surgeries.

Philadelphia Police officers on routine patrol apprehended Appellant

later that evening. Appellant had blood on his shirt and a graze gunshot

wound that required medical treatment.

Appellant was charged with two counts each of attempted murder,

aggravated assault, conspiracy to commit murder or aggravated assault,3

and other crimes not relevant here. Following trial, the jury convicted

Appellant of both counts of aggravated assault, acquitted him of both counts

of attempted murder, and deadlocked on both counts of criminal conspiracy.

The trial court later sentenced Appellant to two consecutive terms of 10 to

20 years in prison. Appellant appealed to this Court, but we dismissed the

appeal, No. 2292 EDA 2012, when Appellant’s counsel failed to file a brief.

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3 18 Pa.C.S.A. §§ 901(a), 2702(a), and 903(a)(1).

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Appellant filed a petition for post-conviction relief, and the Commonwealth

agreed to reinstatement of Appellant’s direct appeal rights. This appeal nunc

pro tunc followed.

Appellant presents two issues for review:

1. Was insufficient evidence presented to sustain the verdicts because it did not provide the degree of certainty to support a beyond[-]a[-]reasonable[-]doubt finding as to Appellant’s complicity as either a co-conspirator or accomplice, nor did it prove his intent to inflict or attempt to inflict serious bodily injury, and also because it was so contradictory as to render it incapable of reasonable reconciliation?

2. Does prosecutor[ial] misconduct in summation compel reversal?

Appellant’s Brief at 7 (numbering altered and all-caps font removed).

Appellant first argues the evidence of aggravated assault is

insufficient, which is a question of law. Accordingly, “our standard of review

is de novo, however, our scope of review is limited to considering the

evidence of record . . . .” Commonwealth v. Rushing, 99 A.3d 416, 420-

21 (Pa. 2014); see also Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.

Super. 2011) (noting that, “in conducting our analysis, we consider all of the

evidence actually admitted at trial”), aff’d by an equally divided court, 106

A.3d 705 (Pa. 2014).

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.

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Koch, 39 A.3d at 1001 (internal citations omitted).4

Appellant was convicted of aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1), under which “[a] person is guilty of aggravated assault if he

. . . causes [serious bodily] injury intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to the value of human

life.” Serious bodily injury is “[b]odily injury which creates a substantial risk

of death or which causes serious, permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.” Id.

§ 2301. For a completed aggravated assault under § 2702(a)(1) where the

victim actually suffers serious bodily injury, the Commonwealth “need only

prove [the defendant] acted recklessly under circumstances manifesting an

extreme indifference to the value of human life.” Commonwealth v.

Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997)).

Additionally, because Appellant did not shoot Ellerbee or Zsaron

Simpson, the Commonwealth was required to prove that he was legally

responsible for the shooter’s conduct. Appellant contends the

4 We reject Appellant’s argument that In re Winship, 397 U.S. 358 (1970), established a constitutional “near certitude of guilt” standard for judging the sufficiency of the evidence. See Appellant’s Brief at 13-14. Appellant’s stitches together his contention from parts of two sentences from two separate paragraphs of Winship, and he provides no authority from the last 45 years supporting his argument.

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Commonwealth was required to prove that he intended to cause serious

bodily injury to the victims. We disagree for the following reasons.

“A person is legally accountable for the conduct of another person

when . . . he is an accomplice of such other person in the commission of the

offense.” 18 Pa.C.S.A. § 306(b)(3). Accomplice liability does not create a

separate crime, but rather seeks to hold an accomplice equally liable for the

conduct of the principal. Commonwealth v. Gross, 101 A.3d 28, 35 (Pa.

2014). Unlike conspiracy, accomplice liability does not require proof of an

agreement.5 Commonwealth v. Adams, 39 A.3d 310, 324 (Pa. Super.

2012), aff’d, 104 A.3d 511 (Pa. 2014). However, mere presence at the ____________________________________________

5 The Commonwealth argues we may find the Appellant liable for aggravated assault as a reasonably foreseeable crime committed by Appellant’s “co- conspirator.” Appellee’s Brief at 11. The Commonwealth, however, relies on authority that does not apply current Pennsylvania law, namely 18 Pa.C.S.A. § 306 (establishing liability for conduct of another), which is a nearly verbatim codification of Model Penal Code (MPC) § 2.06. Commonwealth v. Thomas, 189 A.2d 255 (Pa. 1963), predates the promulgation of the Crimes Code, and United States v. Lopez, 271 F.3d 472 (3d Cir. 2001) (citing Pinkerton v. United States, 328 U.S. 640 (1946)), applies federal common law, and not the MPC. Indeed, the MPC rejects Pinkerton conspiracy liability. See 1 Model Penal Code Commentaries Part I, § 2.06, at 307-08 (1985) (“The most important point at which the [MPC] formulation diverges from the language of many courts is that it does not make ‘conspiracy’ as such a basis of complicity in substantive offenses committed in furtherance of its aims.”); see also Commonwealth v. Knox, 105 A.3d 1194, 1198-99 (Pa. 2014) (Eakin, J., concurring) (“[C]onspiracy is a distinct crime—it is not a statutory theory of liability for criminal acts of other people. If one conspires to commit a crime, one is guilty of conspiracy, but not the crime conspired.”). Therefore, we will not consider whether the evidence of aggravated assault is sufficient under a “conspiracy liability” theory.

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crime scene or knowledge of the crime is insufficient to convict. Id. Finally,

accomplice liability is offense-specific, meaning that the Commonwealth

must prove accomplice liability for each criminal charge to which it applies.

Knox, 105 A.3d at 1196-97.

The Crimes Code delineates two ways in which a person is considered

an accomplice of the principal. First:

(c) Accomplice defined.--A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(2) his conduct is expressly declared by law to establish his complicity.

18 Pa.C.S.A. § 306(c). Section 306(c) requires proof that the person

intended to promote or facilitate the offense. Adams, 39 A.3d at 324. The

amount of aid required is minimal, and “even non-substantial assistance, if

rendered with the intent of promoting or facilitating the crime, is sufficient to

establish complicity.” Gross, 101 A.3d at 35.

Second, a person can also be an accomplice as follows:

When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

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18 Pa.C.S.A. § 306(d). In Commonwealth v. Roebuck, 32 A.3d 613, 621-

22 (Pa. 2011), our Supreme Court held that § 306(c) and (d) must be read

in pari materia. Section 306(c) focuses on conduct, and requires proof of

intent to trigger accomplice liability. Section 306(d) focuses on the results

of conduct, and requires proof only of the mens rea that applies to the

offense committed by the principal.

Roebuck explains the difference between accomplice liability for

intending that the principal commit a crime, and accomplice liability for the

results of the principal’s actions. Roebuck was convicted of third-degree

murder as an accomplice. Roebuck, 32 A.3d at 614. Roebuck contended it

was impossible to be an accomplice to third-degree murder, because:

accomplice liability attaches only where the defendant intends to facilitate or promote an underlying offense; third-degree murder is an unintentional killing committed with malice; therefore, to adjudge a criminal defendant guilty of third-degree murder as an accomplice would be to accept that the accused intended to aid an unintentional act, which is a logical impossibility.

Id. (emphases in original). After examining the MPC provision on which 18

Pa.C.S.A. § 306(c) and (d) is based, MPC § 2.06(3) and (4), the Supreme

Court rejected Roebuck’s impossibility argument.

[MPC §] 2.06(4) thus prescribes that an accomplice may be held legally accountable where he is an “accomplice in the conduct”— or, in other words, aids another in planning or committing the conduct with the purpose of promoting or facilitating it—and acts with recklessness (i.e., the “kind of culpability . . . sufficient for the commission of” a reckless-result offense).

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Id. at 619. The commentary to MPC § 2.06(3), i.e., the equivalent of

§ 306(c), makes clear that “commission of the offense” focuses on a

person’s conduct—not the result of that conduct. Roebuck, 32 A.3d at 619

(quoting MPC § 2.06 cmt. 6(b)). “This diffuses any impression that an

accomplice must always intend results essential to the completed crime.”

Id.

Section 306(d), however, focuses on the results of a person’s actions:

In terms identical to those of [MPC § 2.06(4)], Section 306(d) of the Crimes Code directs the focus, for result-based elements, to the level of culpability required of a principal. See 18 Pa.C.S. § 306(d). See generally [Riley v. State, 60 P.3d 204, 214 (Alaska 2002)] (explaining that a “great majority” of judicial decisions have followed the MPC in holding that an accomplice must not necessarily intend to cause the prohibited result (citations omitted)). In the present factual scenario, the purport is to avoid elevating a recklessness-oriented culpability requirement to a purposeful one relative to an accomplice. Accord [State v. Anthony, 861 A.2d 773, 775 (N.H. 2004)] (“[I]f the offense’s mental state with respect to the result is something less than purposeful, the State need only establish the lesser mens rea on the part of the accomplice to prove him or her guilty of the offense.”). The policy basis for such treatment is readily discernable, and a homicide committed with the degree of recklessness predicate to murder provides a paradigmatic example.

Id. at 621 (emphasis added) (footnote omitted).

We find Roebuck highly instructive here, if not dispositive. “For

offenses where a principal actor need not intend the result, it is also not

necessary for the accomplice to do so.” Id. at 624. For aggravated assault,

the principal need not intend to cause aggravated assault where the victim

actually suffers serious bodily injury. Patrick, 933 A.2d at 1046 (“Where

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the victim suffers serious bodily injury, the Commonwealth is not required to

prove specific intent.”). Rather, the Commonwealth needs to prove only

that the defendant acted recklessly under circumstances manifesting an

extreme indifference to the value of human life. Id. (quoting Nichols, 692

A.2d at 185). As the Roebuck court stated, it would be illogical to find the

principal criminally liable for malice, i.e., recklessness, while requiring the

Commonwealth to prove that his accomplice intended to produce the result

of the crime, the result being death in Roebuck and serious bodily injury

here. Because the principal to a completed aggravated assault may be liable

for recklessly causing serious bodily injury, an accomplice is also liable if he

has the mens rea of recklessness.

With these standards in mind, we turn to the evidence in this case,

construing it, and all inferences derivable therefrom, in a light most

favorable to the Commonwealth. Appellant argued with Zsaron Simpson

over the rules of the basketball game. Ellerbee attempted to break up the

argument. Afterward, witnesses saw Appellant talking on his cellphone.

During a break in the basketball game, the shooter entered the gym,

exchanged a head nod with Appellant, walked past several other people,

pulled a gun, and struck Zsaron Simpson in the face with it. Appellant

tackled Zsaron Simpson and punched him. The shooter fired three shots.

One struck Ellerbee in the stomach, a second grazed Ellerbee’s ear and then

Appellant (causing the graze wound), and the third struck Zsaron Simpson in

the abdomen. After the shooter fired the shot that struck each victim, he

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and Appellant left together. These facts show, at minimum, that Appellant

acted recklessly under circumstances manifesting an extreme indifference to

the value of human life. The facts support an inference that after the verbal

altercation with Zsaron Simpson, Appellant called the shooter to the gym to

participate in a fight with the victims. Because of the fight, each victim

suffered serious bodily injury. Appellant, therefore, is liable for the

aggravated assault of Zsaron Simpson and Ellerbee.

Under 18 Pa.C.S.A. § 306(d), Appellant is liable for all results of the

principal’s conduct even if unintended. It does not matter that Appellant

may have lacked the specific intent to inflict serious bodily injury, as

opposed to mere bodily injury (by tackling Zsaron Simpson and punching

him). Interpreting § 306(d), the Supreme Court in Roebuck held that

accomplice liability under the MPC can be extended to unintended

consequences of reckless conduct. Roebuck, 32 A.3d at 620-21. In

Roebuck, the Commonwealth did not prove that the defendant intended to

kill the victim, but he was nevertheless liable for third-degree murder, i.e., a

murder for which the defendant does not intend to kill. Id. In this case, the

Commonwealth similarly did not need to prove that Appellant intended cause

serious bodily injury. Rather, it needed to show merely that Appellant acted

recklessly under circumstances manifesting an extreme indifference to

human life in bringing about the victims’ injuries. The evidence was

sufficient for the Commonwealth to meet its burden.

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Appellant argues his tackling of Zsaron Simpson may have been an

attempt to prevent him from being shot. The legal standard that applies to

a sufficiency challenge forecloses Appellant’s arguments concerning the

facts. The jury, however, was free to reject this inference. In addition,

Appellant mentions inconsistencies in Ellerbee’s account of the head nod

between Appellant and the shooter. The jury, however, was the proper

arbiter of Ellerbee’s credibility. On appeal, we must view the evidence in the

light most favorable to the Commonwealth.

Appellant’s cited cases regarding the drawing of inferences are

distinguishable. Commonwealth v. Menginie, 383 A.2d 870, 872-73 (Pa.

1978), concerned guilt as a co-conspirator—not as an accomplice. The

issue was whether the Commonwealth proved an agreement, see id., which

is not required for accomplice liability, see Adams, 39 A.3d at 324. Thus,

Menginie is irrelevant to addressing accomplice liability, which is a distinct

concept. Knox, 105 A.3d at 1198 n. 5. Likewise, State v. Madden, 294

A.2d 609, 615 (N.J. 1972), concerned jury instructions—not the sufficiency

of the evidence—and we find that case wholly unpersuasive.

Finally, we disagree with Appellant that the inferences drawn from the

evidence are “unconstitutional.” Appellant cites several federal cases,

arguing that the Due Process Clause circumscribes the drawing of

inferences. None of those cases, however, concerns the drawing of

inferences from the facts and evidence presented at trial. Rather, all

concern the use of statutory inferences and instructions thereon. See

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Francis v. Franklin, 471 U.S. 307, 309, 314-15 (1985) (addressing the

mandatory rebuttable presumption that a person of sound mind is presumed

to intend the natural and probable consequences of his acts); County Court

of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157-63 (1979) (rejecting a

statutory presumption that presence of a firearm in automobile was evidence

of illegal possession by all occupants); Barnes v. United States, 412 U.S.

837, 842-43 (1973) (addressing the common-law presumption that an

“inference of guilty knowledge may be drawn from the fact of unexplained

possession of stolen goods”); Tot v. United States, 319 U.S. 463, 466, 468

(1943) (addressing presumptions that a person who could not possess

firearms under the Federal Firearm Act (1) received the firearm in interstate

commerce and (2) subsequent to the Act’s effective date).

In sum, we hold the evidence is sufficient to support a finding of guilt

for each of Appellant’s convictions of aggravated assault as an accomplice.

We now address Appellant’s second issue, in which he argues the trial

court erred in refusing to grant a mistrial that he requested during the

Commonwealth’s closing argument. Appellant alleges the Commonwealth

personally vouched for the evidence several times. Appellant contends the

prosecutor’s use of “we know” was an impermissible use of her opinion as to

the evidence, constituting improper bolstering. Appellant’s Brief at 24-25.

Appellant also contends the prosecutor referenced matters “far outside of

the record.” Id. Appellant argues the error was not harmless.

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We review a trial court’s denial of a mistrial in response to purported

prosecutorial misconduct for an abuse of discretion. Commonwealth v.

Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012). A mistrial “is an

extreme remedy required only when an incident is of such a nature that its

unavoidable effect is to deprive the appellant of a fair and impartial

tribunal.” Id. (quotation and internal quotation marks omitted). A lesser

remedy, such as a cautionary instruction may cure prejudice caused by

prosecutorial misconduct. See Commonwealth v. Rivera, 939 A.2d 355,

358 (Pa. Super. 2007).

Even if prosecutorial misconduct occurred, and the trial court erred in

attempting to remedy it, we must determine whether the error was

harmless. Hogentogler, 53 A.3d at 878. Harmless error is a doctrine of

appellate review designed to advance judicial economy. Commonwealth v.

Allshouse, 36 A.3d 163, 182 (Pa. 2012) (quoting Commonwealth v.

Thornton, 431 A.2d 248, 251 (Pa. 1981)). If an appellate court is

convinced beyond a reasonable doubt that trial court error is harmless, the

appellate court may affirm instead of remanding for retrial. Id.

In defining prosecutorial misconduct vis-à-vis statements in closing

argument, Pennsylvania courts look to American Bar Association (ABA)

Criminal Justice Standard § 5.8. Commonwealth v. Judy, 978 A.2d 1015,

1019-20 (Pa. Super. 2009); see also Commonwealth v. Joyner, 365 A.2d

1233 (Pa. 1976).

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(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.

(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

(c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.

ABA Crim. Justice Stand. § 5.8 (3d ed. 1993).6

We have said, however, that a prosecutor must have “reasonable” or

actually has “considerable” latitude during closing arguments to make

arguments supported by the evidence and its reasonably derivative

inferences. Hogentogler, 53 A.3d at 878 (noting “a prosecutor has

considerable latitude during closing arguments”) (quoting Judy, 978 A.2d at

1020); Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011)

(noting “[a] prosecutor must have reasonable latitude in fairly presenting a

case to the jury”) (quoting Commonwealth v. Rolan, 964 A.2d 398, 410

n.10 (Pa. Super. 2008)). As such, a prosecutor may engage in “oratorical

flair” and fairly respond to arguments made by defense counsel without

committing misconduct. Hogentogler, 53 A.3d at 878. “Even an otherwise ____________________________________________

6 Prior cases have quoted earlier editions. See, e.g., Judy, 978 A.2d at 1020 (quoting the 1980 second edition); Joyner, 365 A.2d 1233 (quoting the 1971 approved draft). The Third Edition is substantively identical to prior versions.

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improper comment may be appropriate if it is in fair response to defense

counsel’s remarks.” Commonwealth v. Burno, 94 A.3d 956, 974 (Pa.

2014). Furthermore, a prosecutor cannot express a personal belief as to the

defendant’s or other witnesses’ credibility, but the prosecutor can comment

on credibility. Judy, 978 A.2d at 1020. Finally, “prosecutorial 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.” Id.

We turn to the prosecutorial conduct alleged in this case. Appellant

references several remarks he argues constitute misconduct. We have

provided a fuller quotation of the relevant parts of closing argument, to

evaluate in context the allegedly improper remarks:

[THE PROSECUTOR]: So we have this nod. But even if we don’t have this nod, we know that two of them are working together or that the shooter knows what’s going on, because he goes right to Zsaron.

Ladies and Gentlemen, we know that there was contact made [between Appellant and the shooter]. Whether it was a phone call, whether it was the defendant telling somebody else to call the shooter, whether it was him walking out of the gym when nobody said it and telling the person to come in and shoot, we know that there was contact, we know that there was an agreement. We know that there was some way in which this defendant communicated to that person, you’re going after Zsaron.

Because he comes up to him, and without any sort of argument with the shooter, without any words spoken between Zsaron and the shooter, this person smacks him in the face with the butt of the gun.

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***

And it’s at this point in time we have further evidence that this defendant is participating and involved in the assault. Because when Anthony [Ellerbee] pulls the shooter off of him, off of his cousin Zsaron, and the shooter puts the gun to Anthony’s chest, pulls the trigger, and at that point Anthony doesn’t even know that the gun has gone off, but he sees the smoke. The defendant comes to the shooter’s aid. And we know this.

You don’t have to just believe Anthony. You don’t have to just believe Zsaron. You don’t have to just believe Keith. Because there is physical evidence that this defendant, at that point in time, involved himself in the shooting.

As Anthony described it, and defense counsel tried hard, “Now, what was he doing? What was he doing while you pulled the shooter off?” And Anthony said, “I don’t know. I don’t know. I don’t know.”

But what we do know—and Anthony got up and showed it to you, Ladies and Gentlemen—is that when he is bent over and the shooter is beneath him, the defendant is to his right-hand side.

He can’t see what he’s doing but he knows he’s there, because he turns around afterwards and sees him.

But not only do we have Anthony’s testimony that he was right there, but we have the defendant’s own injury. We have the graze wound to the left arm.

And Anthony said to you, it was that shot, the one that burned past my eyebrow and took the top part of my ear off that hit that defendant. And that is completely consistent with the physical evidence.

Number one, the injury to the defendant, the graze wound that Detective Kilman said he knew, just by looking at it, that it was a graze wound, based upon how long he’s been on the force and how many gunshot wounds he’s seen.

And we also have the projectile. There are three shots that everyone is clear were fired that night. There is the shot that ricocheted off his head and hit his ear, and there is the third shot which hit Zsaron in the stomach.

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The projectile is recovered right here (indicating), right at this end of the court where that shooting took place, the shooting— that projectile which hit off of Anthony’s head, hit his ear and then grazed the defendant.

We now have the physical evidence to corroborate Anthony’s version of what happened that night.

These three men, Anthony, Zsaron[,] and Keith, they had different vantage points that night.

Zsaron was here at center court (indicating). And whenever that second argument unfolds, his attention is focused only on the defendant, who gets in his face at that point.

Anthony has the best vantage point, because he’s over here closer to the center court with his back facing the benches (indicating). And he is facing and now has a full view of that entire court.

Keith has a somewhat better view than Zsaron, because he, again, is engaged in this argument. But at the same time, where is Keith standing? And then where were they standing was something that was relatively consistent with each one.

Again, there are going to be minor variations, but each one had Keith in and around this area, Anthony in and around this area[,] and Zsaron right there at center court (indicating).

So it makes sense that Keith isn’t going to see any sort of recognition, any sort of head nod between the shooter and the defendant.

It makes sense that Keith isn’t going to even see that shooter up until he gets around him and he hits his brother in the face with the gun.

It makes sense that Anthony is able to see all of that. It makes sense when Zsaron tells you what happened that night, all he can tell you is that there are two guys that get on top of him and that jump him, are the words that he used.

It makes sense that whenever he is fighting for his life, after being hit in the face with the butt of the gun, that he can’t tell you exactly who’s doing what or who’s doing it where.

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I even believe his recollection of where Anthony got shot was on this end of the court (indicating). But again, we know that Anthony’s version is correct, because we have the projectile down here. We have Keith’s account that Anthony got shot down here (indicating).

N.T. Trial, 1/9/12, at 54-55, 58-60, 67-69.

Following the conclusion of the Commonwealth’s closing argument and

outside of the jury’s presence, Appellant objected and requested a mistrial,

stating that the prosecutor had “inserted herself into the jury’s realm” by

using the words “we know.” Id. at 87-88. In response, the trial court

stated it would give a cautionary instruction to the jury, which it did during

the general charge:

THE COURT: In addition, actions or conduct by counsel for either side should not be considered in your verdict.

What counsel think must not be considered by you. Argument is not evidence and may be considered by you only if it is supported by the evidence and appeals to your reasoning and logic.

Id. at 106.

In its Rule 1925(a) opinion, the trial court stated that the prosecutor

used the phrase “we know” as a shorter way of saying “this has been shown

by the evidence in this case.” Trial Court Rule 1925(a) Opinion, 9/27/13, at

8 (quoting N.T. Trial 1/19/12, at 74). We agree.

When her remarks are viewed in context, the prosecutor was

commenting on the evidence produced at trial in an attempt to persuade the

jury to convict—the very purpose of closing argument. The term “we

know”—in context—means “the evidence shows,” as opposed to “we, the

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Commonwealth, know facts that you, the jury, do not,” as Appellant

contends. For example, the prosecutor’s statement that “[w]e now have the

physical evidence to corroborate Anthony [Ellerbee’s] version of what

happened that night,” N.T. Trial, 1/9/12, at 60, is a reference to her

summary of that physical evidence that immediately preceded this remark:

the gunshot wounds to Ellerbee and Appellant, id. And her comment that

Ellerbee’s version was the correct one, id. at 69, was an attempt to argue

that his version of events was more accurate than the Simpson brothers’

versions. In other words, the prosecutor’s comments on the evidence were

proper.

Moreover, the prosecutor did not tell the jury to “credit evidence that it

did not hear, which ‘nobody saw,’” Appellant’s Brief at 25. Rather, she was

telling the jury to draw reasonable inferences from the evidence. For

example, the prosecutor suggested the jury infer that Appellant called the

shooter to assault Zsaron Simpson. See N.T. Trial, 1/9/12, at 54-56. She

asked the jury to base this suggested inference on the following facts: (1)

Appellant and Zsaron Simpson had a verbal altercation; (2) afterward,

Appellant was seen talking on a cell phone; (3) the shooter, not dressed to

play basketball then arrived at the gym; (4) and the shooter walked past a

crowd of players and attacked Zsaron Simpson without provocation. See id.

The prosecutor did not give her personal opinion on the evidence, nor did

she tell the jury to find Appellant guilty based on evidence not of record.

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Appellant’s cited cases are again distinguishable. In Commonwealth

v. Pfaff, 384 A.2d 1179, 1182-83 (Pa. 1978), the prosecutor accused the

defendant, on trial for rape and statutory rape, and his brother of

assassinating the character of the victim—a 13-year-old girl—and repeatedly

stated that the defendant and his brother were liars. In United States v.

DiLoreto, 888 F.2d 996, 999 (3d Cir. 1988), overruled in part by, United

States v. Zeherbach, 47 F.3d 1252 (3d Cir. 1995) (en banc), the

prosecutor personally vouched for the government’s witnesses, telling the

jury, “We don’t take liars. We don’t put liars on the stand. We don’t do that.”

In contrast, the prosecutor here did not vouch for the truthfulness of the

Commonwealth’s witnesses. Rather, she merely claimed that the physical

evidence corroborated their testimony—an entirely proper argument.7

In sum, we do not find that the prosecutor made impermissible

comments during her closing argument. The prosecutor’s comments were

proper, and Appellant’s argument is without merit. Because no prosecutorial

misconduct occurred, the trial court did not abuse its discretion in denying a

mistrial. For this reason, we need not engage in a harmless error analysis.

7 United States v. Young, 470 U.S. 1, 5-11, 20 (1985), concerned the fair response doctrine, and whether the prosecutorial misconduct in that case was plain error under Fed.R.Crim.P. 52(b), i.e., error not requiring an objection to be preserved for appeal. Appellant’s other cases, cited at page 25 of his brief, do not concern prosecutorial misconduct.

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Having found that neither of Appellant’s claims of error entitles him to

relief, we affirm the judgments of sentence.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/2015

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