J-S14028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CARL LEONARD VARNER
Appellant No. 208 MDA 2015
Appeal from the Judgment of Sentence January 7, 2015 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002100-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 26, 2016
Appellant, Carl Leonard Varner, appeals from the judgment of
sentence entered after a jury convicted him of first degree murder and 25
associated charges. Varner challenges the sufficiency of the evidence
supporting his murder conviction, the trial court’s refusal to appoint an
expert witness for him, and the trial court’s failure to issue a curative jury
instruction after the prosecutor accused him of implying that police had
planted evidence in his home. After careful review, we affirm.
We glean the following factual and procedural history of this case from
the certified record. During the evening of October 22, 2012, two men forced
their way into a residence in Chambersburg by brandishing firearms. This ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S14028-16
residence was home to at least eight men, six of whom were present at the
time. None of those present in the home at the time of the break-in spoke
English.
After breaking in, the two assailants demanded to see “El Gallo,”
meaning “the rooster.” Finding no satisfaction from the victims’ responses,
the two men separated the victims into different bedrooms in the home.
Both assailants proceeded to rob the victims. One assailant, later identified
as Jason Shauf, fired a shotgun into the ceiling when his demands to see “El
Gallo” were not met. The other assailant, after robbing Hugo Olguin and
Augustin Marquez, shot Olguin in the neck with .22 caliber revolver,
ultimately resulting in Olguin’s death.
After an investigation, police arrested Shauf and Varner. Pursuant to a
search warrant, police found a .22 revolver and a .410 shotgun in the
basement of Varner’s residence.
At trial, several of the victims identified Varner as the man who shot
Olguin, as did Shauf. After the jury convicted Varner on 26 charges, the trial
court sentenced him to a life sentence plus 44 to 88 years of incarceration.
This timely appeal followed.
Varner first argues that the evidence presented at trial was insufficient
to support his conviction for first-degree murder. However, a close review of
Varner’s argument indicates that he is challenging the sufficiency of the
evidence to establish his identity as the shooter, not the sufficiency to
-2- J-S14028-16
support any of the elements of the crime of homicide. We therefore will
focus our analysis on the overarching issue of identity.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. See id. Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See id. As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,
584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the
evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d
at 661 (citation omitted).
-3- J-S14028-16
Varner argues that the eyewitness identifications are insufficient to
establish that he was the shooter in the face of evidence that no gunshot
residue was found on him when he was arrested, while gunshot residue was
found on Shauf. However, this argument is properly classified as a weight of
the evidence claim, as it asks us to re-weigh the evidence presented to the
jury. Even assuming its validity under a sufficiency claim, we note that the
Commonwealth presented significant additional evidence to establish that
Varner was the shooter.
Shauf testified that Varner entered the Chambersburg residence with
him on the night of the crime. See N.T., Trial, 12/15/14, at 132. Varner was
armed when they entered the residence. See id., at 128. After they entered,
Varner brandished his firearm and went upstairs with two people. See id., at
134-136. Shauf then heard two gunshots from upstairs, and Varner
subsequently ran down the stairs. See id., at 136-139. In addition, the
Commonwealth presented evidence that a .22 pistol found wrapped in a
bandana in Varner’s residence was the murder weapon. See N.T., Trial,
12/12/14, at 21. This evidence, independent of the eyewitness
identifications, was sufficient to identify Varner as the assailant who shot
Olguin. Varner’s first issue on appeal thus merits no relief.
Next, Varner contends that the trial court erred in denying his pre-trial
motion to appoint an expert on eyewitness testimony to testify for him at
trial. The trial court states that it denied the motion on two grounds. First,
-4- J-S14028-16
that it was untimely, and second, that the Commonwealth’s case did not rely
primarily on eyewitness testimony. We agree with the trial court that the
motion was untimely, and furthermore, that Varner has not presented any
good cause for the late filing.
On October 22, 2014, the trial court held the final pre-trial conference.
At the end of the conference, the court entered a scheduling order. In this
order, the trial court set trial to begin on December 8, 2014. Furthermore,
the trial court ordered that all remaining motions were to be filed before
November 3, 2014. Varner filed his motion to appoint an expert on
eyewitness testimony on November 24, 2014. This was patently untimely,
and a mere two weeks before the scheduled start of trial. Varner makes no
attempt to justify this late filing. We therefore agree with the trial court that
the motion was properly denied as untimely.
In his final issue on appeal, Varner argues that the trial court erred in
refusing to give a curative instruction regarding the prosecutor’s closing
argument. During trial, the prosecutor questioned Varner about his assertion
that he did not know who had placed the firearms that were found in his
basement. When the prosecutor explicitly asked Varner whether he believed
Free access — add to your briefcase to read the full text and ask questions with AI
J-S14028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CARL LEONARD VARNER
Appellant No. 208 MDA 2015
Appeal from the Judgment of Sentence January 7, 2015 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002100-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 26, 2016
Appellant, Carl Leonard Varner, appeals from the judgment of
sentence entered after a jury convicted him of first degree murder and 25
associated charges. Varner challenges the sufficiency of the evidence
supporting his murder conviction, the trial court’s refusal to appoint an
expert witness for him, and the trial court’s failure to issue a curative jury
instruction after the prosecutor accused him of implying that police had
planted evidence in his home. After careful review, we affirm.
We glean the following factual and procedural history of this case from
the certified record. During the evening of October 22, 2012, two men forced
their way into a residence in Chambersburg by brandishing firearms. This ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S14028-16
residence was home to at least eight men, six of whom were present at the
time. None of those present in the home at the time of the break-in spoke
English.
After breaking in, the two assailants demanded to see “El Gallo,”
meaning “the rooster.” Finding no satisfaction from the victims’ responses,
the two men separated the victims into different bedrooms in the home.
Both assailants proceeded to rob the victims. One assailant, later identified
as Jason Shauf, fired a shotgun into the ceiling when his demands to see “El
Gallo” were not met. The other assailant, after robbing Hugo Olguin and
Augustin Marquez, shot Olguin in the neck with .22 caliber revolver,
ultimately resulting in Olguin’s death.
After an investigation, police arrested Shauf and Varner. Pursuant to a
search warrant, police found a .22 revolver and a .410 shotgun in the
basement of Varner’s residence.
At trial, several of the victims identified Varner as the man who shot
Olguin, as did Shauf. After the jury convicted Varner on 26 charges, the trial
court sentenced him to a life sentence plus 44 to 88 years of incarceration.
This timely appeal followed.
Varner first argues that the evidence presented at trial was insufficient
to support his conviction for first-degree murder. However, a close review of
Varner’s argument indicates that he is challenging the sufficiency of the
evidence to establish his identity as the shooter, not the sufficiency to
-2- J-S14028-16
support any of the elements of the crime of homicide. We therefore will
focus our analysis on the overarching issue of identity.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. See id. Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See id. As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,
584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the
evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d
at 661 (citation omitted).
-3- J-S14028-16
Varner argues that the eyewitness identifications are insufficient to
establish that he was the shooter in the face of evidence that no gunshot
residue was found on him when he was arrested, while gunshot residue was
found on Shauf. However, this argument is properly classified as a weight of
the evidence claim, as it asks us to re-weigh the evidence presented to the
jury. Even assuming its validity under a sufficiency claim, we note that the
Commonwealth presented significant additional evidence to establish that
Varner was the shooter.
Shauf testified that Varner entered the Chambersburg residence with
him on the night of the crime. See N.T., Trial, 12/15/14, at 132. Varner was
armed when they entered the residence. See id., at 128. After they entered,
Varner brandished his firearm and went upstairs with two people. See id., at
134-136. Shauf then heard two gunshots from upstairs, and Varner
subsequently ran down the stairs. See id., at 136-139. In addition, the
Commonwealth presented evidence that a .22 pistol found wrapped in a
bandana in Varner’s residence was the murder weapon. See N.T., Trial,
12/12/14, at 21. This evidence, independent of the eyewitness
identifications, was sufficient to identify Varner as the assailant who shot
Olguin. Varner’s first issue on appeal thus merits no relief.
Next, Varner contends that the trial court erred in denying his pre-trial
motion to appoint an expert on eyewitness testimony to testify for him at
trial. The trial court states that it denied the motion on two grounds. First,
-4- J-S14028-16
that it was untimely, and second, that the Commonwealth’s case did not rely
primarily on eyewitness testimony. We agree with the trial court that the
motion was untimely, and furthermore, that Varner has not presented any
good cause for the late filing.
On October 22, 2014, the trial court held the final pre-trial conference.
At the end of the conference, the court entered a scheduling order. In this
order, the trial court set trial to begin on December 8, 2014. Furthermore,
the trial court ordered that all remaining motions were to be filed before
November 3, 2014. Varner filed his motion to appoint an expert on
eyewitness testimony on November 24, 2014. This was patently untimely,
and a mere two weeks before the scheduled start of trial. Varner makes no
attempt to justify this late filing. We therefore agree with the trial court that
the motion was properly denied as untimely.
In his final issue on appeal, Varner argues that the trial court erred in
refusing to give a curative instruction regarding the prosecutor’s closing
argument. During trial, the prosecutor questioned Varner about his assertion
that he did not know who had placed the firearms that were found in his
basement. When the prosecutor explicitly asked Varner whether he believed
that the police had placed the firearms, he responded, “[n]ot to be
disrespectful, I have no idea who planted them there. To say the police, why
would I say that?” N.T., Trial, 12/15/14, at 83.
-5- J-S14028-16
During his closing argument, the prosecutor provided the following
description of Varner’s testimony:
He also said the evidence was planted, he’s been set up. Why is he set up? Who planted the evidence? The suggestion by his attorney moments ago was that … Shauf set him up, planted the evidence there. This criminal mastermind did that.
I asked him if he’s trying to say police did that. He smiled. I hope you remember his look when I said that. He gave a little smile and said he’s not dumb enough to say that. He’s dumb enough to imply it. That’s what he’s trying to imply. He wouldn’t say it because he knew that would look bad. That’s the implication.
N.T., Trial, 12/17/14, at 11. And later:
Worked up about this. Cops planted evidence. I don’t like that. I don’t like that suggestion. And I hope you don’t either. I hope it doesn’t play. I don’t think it will. That’s desperate. That’s not happening here.
Id., at 118.
Varner subsequently1 requested a curative instruction, asserting that
the prosecutor had argued facts not in evidence when he contended that
Varner had implied that the police had planted evidence. See N.T., Trial,
12/17/14, at 166. We have previously recognized that
“[n]ot every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial.” Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006). ____________________________________________
1 Varner objected before the trial court gave the jury its final instructions. The trial court denied the request for a curative instruction. All parties agree that this is an accurate statement of the timeline, even though Varner’s request does not appear in the transcript until after the final instruction was given to the jury. See N.T., 12/17/14, at 166-167.
-6- J-S14028-16
“Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003), quoting Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).
Furthermore, according to the Pennsylvania Supreme Court in Commonwealth v. Chmiel[, 889 A.2d 501, 543-44 (Pa. 2005)]:
In determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in [fair] response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
Commonwealth v. Collins, 70 A.3d 1245, 1252-53, appeal denied, 80
A.3d 774 (Pa. 2013). We agree with the Commonwealth and the trial court
that the prosecutor’s argument in this respect, even if assumed to be
inappropriate, did not so prejudice the jury as to prevent it from rendering a
true and fair verdict. Varner’s final issue on appeal therefore merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/26/2016
-7-