J. S63007/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
WILLIAM ORTIZ,                           :          No. 3301 EDA 2014
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, June 18, 2014,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0001116-2012,
            CP-51-CR-000-1119-2012, CP-51-CR-0001122-2012,
                          CP-51-CR-0001561-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 22, 2016

      William Ortiz appeals the judgment of sentence in which the Court of

Common Pleas of Philadelphia County, after a jury trial, sentenced him to

serve an aggregate of 36 to 72 years’ imprisonment for four counts of

aggravated assault, four counts of possession of an instrument of crime,

possession of a firearm prohibited, firearms not to be carried without a

license, and carrying firearms on public streets in Philadelphia.1

      The facts as recounted by the trial court are as follows:

                 On July 5, 2011, Sergeant Joseph McDonald
            responded to a call for multiple gunshots in the area

* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2702(a), 907(a), 6105(a)(1), 6106(a)(1), and 6108,
respectively.
J. S63007/16


          of Ann Street and Amber Street in Philadelphia,
          Pennsylvania.     Sergeant McDonald pulled onto
          Bellmore Avenue, saw people congregated, and
          began to clear the area and mark it off as a crime
          scene. Counsel stipulated to three people being
          wounded by gunshots:        Angel Rodriguez, Sianie
          Pena, and [appellant]. Sergeant McDonald testified
          the street was littered with numerous shell casings
          from a handguns [sic] and a shotgun. Sergeant
          McDonald further testified a blue van, pickup truck,
          and house near the scene were riddled with bullet
          holes. . . .

          . . . . Officer Ronald Weitman, stipulated as an
          expert in ballistics and firearms identification,
          testified that a total of nine fired cartridge casings
          from a .45 caliber gun, eight fired cartridge casings
          from a .40 caliber gun, and seven fired cartridge
          casings from a .380 caliber gun were all recovered
          near the intersection of Orleans and Amber
          Street’s [sic].

                 On July 5, 2011, at approximately 5:30 [p.m.],
          Angel Rodriguez, entered a grocery store at the
          corner of Bellmore Avenue and Amber Street, to buy
          a soda. Mr. Rodriguez left the store and crossed
          Amber Street, when he was shot in his right rib cage.
          . . . . Mr. Rodriguez did not sustain damage to any
          organs or vital areas. In his statement made to
          detective Ronald Aitken on July 12, 2011,
          Mr. Rodriguez stated that “This guy ([appellant]), he
          was in the same store I was in when the shooting
          [occurred].”     However, at trial, Mr. Rodriguez
          testified that he could not recall seeing [appellant] in
          the store with him, and stated he knew [appellant]
          from the neighborhood. Mr. Rodriguez testified he
          heard gunfire from both directions on Amber Street
          from Orleans Street to Stella Street.

                Sianie Pena, a two-year-old victim, was playing
          in the backyard of her godfather’s house when a
          stray bullet struck her. . . .     Sianie suffered a
          gunshot wound to her right shoulder. On July 18,
          2011, the bullet was removed surgically.


                                   -2-
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                [Appellant] suffered gunshot wounds to his
          lower left quadrant, right lower quadrant, and right
          back area.     [Appellant] was taken to Episcopal
          Hospital by his friends, Isaias Justiniano and Jose
          Melendez. [Appellant] underwent surgery and was
          released on July 16, 2011.

                 Detective Leahy testified that Mr. Justiniano’s
          statement from . . . July 6, 2011, indicated, “I
          noticed that Wreck[Footnote 1] [appellant] was
          trying to get into his car and as he tried to get up
          the first time, he fell to his knees. He got back up
          and then I noticed as he tried to get back up that he
          dropped a few things from his hands. I couldn’t tell
          what he was dropping[,] but I heard a loud clang
          when whatever it was hit the ground.” Detective
          Leahy further testified that he took Mr. Justiniano’s
          statement verbatim, and Mr. Justiniano was given an
          opportunity to make any changes to his statement
          after he reviewed it. Detective Leahy testified that
          two other individuals, Angel Castro and Julio Medina,
          were arrested with [appellant] and Mr. Justiniano, in
          relation to the shooting on July 5, 2011.

                [Footnote 1] The written statement
                indicates “Rec” as the alias for
                [appellant] but the Notes of Testimony
                indicate “Wreck.”

          . . . . At trial, Mr. Justiniano testified that he did not
          recall that part of his statement, and claimed that
          the word “clang” was not a part of his vocabulary.
          Mr. Justiniano further testified he had seen
          [appellant] drop his phone and keys, and it must
          have been the phone that made the “clang” noise.
          Mr. Justiniano testified that the reason he failed to
          tell the detectives that [he] saw [appellant] drop
          anything was that he was trying to make his
          statement as short as possible, and wanted to leave.

               At trial, Mr. Melendez testified he did not know
          [appellant] by any name other than William Ortiz.
          Mr. Melendez testified he did not see [appellant]
          drop a gun at the scene of the crime, or mention a


                                    -3-
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              gun at all to Detective Ronald Aitken, who took
              Mr. Melendez[’s]      statement.           However,
              Mr. Melendez’s testimony was contradictory to his
              statement made to Detective Aitken on July 6, 2011
              and July 12, 2011. In his statement made on July 6,
              2011, Mr. Melendez referred to [appellant] as
              “Wreck” multiple times, and acknowledged the name
              “Wreck” in response to questions made by Detective
              Aitken. In the same statement, Mr. Melendez stated
              he saw [appellant] drop a “dark-colored gun.” In his
              statement made to Detective Aitken on July 12,
              2011, Mr. Melendez stated the reason [appellant]
              was out on the block that particular day was because
              he “hustles around the area.” Mr. Melendez testified
              that the statement he gave on July 12, 2011, was
              just a regurgitation of the statement he made on
              July 6, 2011. Mr. Melendez testified that he did not
              ID [appellant] with a gun on the night of the
              shooting.    However, in his statement made on
              July 12, 2011, Mr. Melendez confirmed for the
              detective that he had identified [appellant] with a
              gun on the night of the shooting. Mr. Melendez
              further testified that the statements he made to
              Detective Aitken on July 6, 2011, and July 12, 2011
              were both dated, signed, and reviewed by
              Mr. Melendez.

Trial court opinion, 1/30/16 at 2-6 (citations omitted).

        Following appellant’s convictions and sentencing, appellant filed a

post-sentence motion which was denied by operation of law on October 27,

2014.

        Appellant raises the following issues before this court:

              I.    Whether [appellant] is entitled to an arrest of
                    judgment     and/or    new     trial  in    the
                    above-captioned matter on the ground that the
                    verdict is against the weight of the evidence
                    since the Commonwealth’s own witnesses
                    placed [appellant] inside the corner store at
                    Amber and Bellmore Streets at the time of the


                                       -4-
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                 shooting and the wounds on [appellant’s] body
                 were inconsistent with him being one of the
                 shooters involved in the incident in question?

          II.    Whether [appellant] is entitled to an arrest of
                 judgment in the above-captioned matter on
                 the ground that the evidence was insufficient
                 to sustain [appellant’s] conviction at CP-51-
                 CR-0001119-2012 (complt. Julio Medina) and
                 CP-51-CR-0001122-2012         (complt.    Angel
                 Castro) since the Commonwealth’s evidence
                 failed to establish that [appellant] was one of
                 the shooters in the incident in question and
                 also failed to establish that complainants
                 Julio Medina and Angel Castro were even
                 present at the scene at the time of the
                 incident?

          III.   Whether [appellant] is entitled to an arrest of
                 judgment in the above-captioned matter on
                 the ground that the evidence was insufficient
                 to sustain [appellant’s] convictions at CP-51-
                 CR-0001116-2012 (complt. Angel Rodriguez)
                 and CP-51-CR-0001561-2012 (complt. Siani[e]
                 Pena) since [appellant] was acquitted of
                 Conspiracy (F1) and the Commonwealth’s
                 evidence failed to establish that [appellant]
                 fired the shots which struck either Angel
                 Rodriguez or Siani[e] Pena and in fact, failed
                 to even establish that [appellant] was a
                 shooter in the alleged incident giving rise to
                 the charges?

          IV.    Whether [appellant’s] sentence of 15-30 years
                 for Aggravated Assault (F1) at CP-51-CR-
                 0001561-2012 should be vacated on the
                 ground that the sentence is illegal in that it
                 exceeds the statutory maximum established by
                 18 Pa.C.S.[A.] § 1103?

          V.     Did the lower court err in denying [appellant’s]
                 request for a mistrial after the prosecutor
                 committed     prosecutorial   misconduct     by
                 improperly stated [sic] in closing argument,


                                   -5-
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                  “tell [appellant] it’s not okay to turn your
                  neighborhoods into a shooting gallery.”?

Appellant’s brief at 3-4.

      Initially, appellant contends that he is entitled to an arrest of judgment

and/or a new trial because the verdict was against the weight of the

evidence in that the Commonwealth’s own witnesses placed appellant inside

a corner store at the time of the shooting and appellant’s wounds were

inconsistent with him acting as one of the shooters. Specifically, appellant

argues that because Angel Rodriguez testified that appellant was in the store

at the corner of Bellmore and Amber Streets, that meant he could not be at

the corners where the shooting took place. Similarly, appellant argues that

the fact that he sustained gunshot wounds to both sides of his body

indicated that he was caught in a crossfire of two groups of shooters as

opposed to him acting as a shooter.

                  [T]he weight of the evidence is
                  exclusively for the finder of fact who is
                  free to believe all, part, or none of the
                  evidence and to determine the credibility
                  of the witnesses.       An appellate court
                  cannot substitute its judgment for that of
                  the finder of fact . . . thus, 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. Moreover, where
                  the trial court has ruled on the weight
                  claim below, an appellate court’s role is
                  not to consider the underlying question
                  of whether the verdict is against the
                  weight of the evidence, . . . rather,
                  appellate review is limited to whether the



                                      -6-
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                  trial court palpably abused its discretion
                  in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      With respect to this issue of whether the verdict was against the

weight of the evidence, the trial court reasoned:

            Although in his statement to Detective Aitken,
            Mr. Rodriguez stated [appellant] was with him in the
            store right before the shooting, at trial he testified
            that he could not recall [appellant] being in that
            store. As Mr. Rodriguez indicated different facts at
            different times, it is well within the discretion of the
            jury to determine which facts are true. The jury
            heard the mere inconsistency in Mr. Rodriguez’s
            testimony but was still able to determine the facts of
            the case.

                  [Appellant] contends that his wounds were
            inconsistent with him being one of the shooters
            involved in the incident. There was no evidence
            presented to infer the injuries sustained by
            [appellant] were inconsistent with him being one of
            the shooters in the incident. The injuries [appellant]
            sustained to his lower left quadrant, lower right
            quadrant, and right back area, could have all been
            sustained during, or after, his direct involvement in
            the shooting.     There is circumstantial evidence
            demonstrating [appellant] was in a shootout, and he
            could have been wounded at any point.

Trial court opinion, 1/30/16 at 9.




                                     -7-
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      This court determines that the trial court did not abuse its discretion.

Rodriguez presented conflicting evidence. The jury, as the fact-finder, had

the authority to believe all, part, or none of Rodriguez’s testimony.       See

Commonwealth v. Keaton, 729 A.2d 529, 540 (Pa. 1999).                In addition,

the trial court correctly stated that there is nothing in the record to support

appellant’s contention that the location of his wounds proves that he was not

one of the shooters.    The evidence appellant cites does not lead to the

conclusion that the jury’s verdict shocked one’s sense of justice.

      Appellant next contends that he is entitled to an arrest of judgment on

the basis that the evidence was insufficient to sustain his convictions at

CP-51-CR-0001119-20112       and    CP-51-CR-0001122-2012         because    the

Commonwealth’s evidence failed to establish that he was one of the shooters

at the incident and failed to establish that the complainants Julio Medina

(“Medina”) and Angel Castro (“Castro”) were present at the scene at the

time of the incident.2 Appellant asserts that the record does not contain any

evidence that either Medina or Castro were present at the time of the

shooting, were intended targets, or were harmed in any way.             Further,

appellant asserts that the Commonwealth failed to produce any eyewitness

testimony that identified him as a participant in the shooting.

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751

2
   Appellant was charged under four different docket numbers. Two of them
listed the complainants as Julio Medina and Angel Castro, respectively.


                                     -8-
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            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                 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.
                 Commonwealth v. Karkaria, 533 Pa.
                 412, 625 A.2d 1167 (1993). 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.
                 Commonwealth v. Santana, 460 Pa.
                 482, 333 A.2d 876 (1975).           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.
                 Chambers, 528 Pa. 558, 599 A.2d 630
                 (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     A person will be found guilty of aggravated assault if he “attempts to

cause serious bodily injury to another, or causes such injury intentionally,

knowingly   or   recklessly   under    circumstances   manifesting   extreme

indifference to the value of human life.”   18 Pa.C.S.A. § 2702(a)(1).   The

term “serious bodily injury” is defined by statute as “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent




                                      -9-
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disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301.

           [T]he charge of aggravated assault can be supported
           . . . if the evidence supports a finding of an attempt
           to cause such injury. A person commits an attempt
           when, with intent to commit a specific crime, he
           does any act which constitutes a substantial step
           toward the commission of that crime. An attempt
           under Subsection 2702(a)(1) requires some act,
           albeit not one causing serious bodily injury,
           accompanied by an intent to inflict serious bodily
           injury.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012)

(quotations and quotation marks omitted).

     Where the victim suffers serious bodily injury, the Commonwealth is

not required to prove specific intent. Commonwealth v. Nichols, 692 A.2d

181, 185 (Pa.Super. 1997). Instead, the Commonwealth must establish that

the defendant acted recklessly under circumstances that manifested an

extreme indifference to the value of human life. Id. In order to prevail on a

theory of recklessness, the Commonwealth must prove that the defendant

acted with malice.   Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super.

2007).

                 Malice   exists     where   there   is  a
                 “wickedness of disposition, hardness of
                 heart,     cruelty,    recklessness    of
                 consequences, and a mind regardless of
                 social duty, although a particular person
                 may not be intended to be injured.”
                 Commonwealth v. Pigg, 391 Pa.Super.
                 418, 571 A.2d 438, 441 (1990), appeal
                 denied, 525 Pa. 406, 581 A.2d 565


                                   - 10 -
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                 (1990) (quoting Commonwealth v.
                 Drum, 58 Pa. 9, 15 (1868).         Where
                 malice is based on a reckless disregard
                 of consequences, it is not sufficient to
                 show mere recklessness; rather, it must
                 be shown the defendant consciously
                 disregarded an unjustified and extremely
                 high risk that his actions might cause
                 death or serious bodily injury.      See
                 Commonwealth        v.    Scales,    437
                 Pa.Super. 14, 648 A.2d 1205, 1207
                 (1994), appeal denied, 540 Pa. 640,
                 659 A.2d 559 (1995) (regarding third
                 degree murder).      A defendant must
                 display a conscious disregard for almost
                 certain death or injury such that it is
                 tantamount to an actual desire to injure
                 or kill; at the very least, the conduct
                 must be such that one could reasonably
                 anticipate death or serious bodily injury
                 would likely and logically result. See
                 [Commonwealth v.] O’Hanlon, . . .
                 [539 Pa. 478,] 653 A.2d [616] at 618
                 [(1995)] (regarding aggravated assault).

           [Commonwealth v.] King, 731 A.2d [145] at 147-
           148 [(Pa.Super. 1999)].

Bruce, 916 A.2d at 664.

     With respect to this sufficiency issue, the trial court determined:

                 There is sufficient circumstantial evidence to
           prove [appellant] possessed the intent to shoot and
           thus cause serious bodily injury to Julio Medina and
           Angel Rodriguez.       Based on Mr. Justiniano’s
           testimony, a reasonable jury could conclude that the
           “clang” noise he heard when he observed [appellant]
           drop a few things from his hands, was in fact a gun.
           A reasonable jury could also conclude that
           [appellant] possessed a gun based on Mr. Melendez’s
           testimony that he saw [appellant] drop a
           “dark-colored gun.”     Mr. Melendez testified that
           [appellant] was out on the block that particular day


                                    - 11 -
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            . . . because he “hustles around the area.” The
            circumstantial evidence indicates that the shooting
            occurred due to a dispute concerning the area in
            which [appellant] “hustled.”       While there was
            inconsistent testimony as to Julio Medina and Angel
            Castro’s involvement in the shooting, they were both
            arrested on the same day of the shooting. The
            totality of circumstantial evidence is adequate to
            enable a reasonable jury to conclude that [appellant]
            intended to shoot Julio Medina and Angel Castro, but
            instead struck Angel Rodriguez and Sianie Pena.

Trial court opinion, 1/30/16 at 10-11 (citations omitted).

      The record reflects that Angel Rodriguez testified that he observed

gunshots coming from two directions with a group of five to ten teenagers

on Stella Street and a similar sized group on Orleans Street.       (Notes of

testimony, 4/1/14 at 101-102.)     Appellant was shot multiple times in this

incident. Jose Melendez testified when reading from his statement that he

saw appellant drop a gun.       (Notes of testimony, 4/3/14 at 125-126.)

Further, Isaias Justiniano (“Justiniano”), who pled guilty to aggravated

assault in the same incident, stated to the police that he heard a loud

“clang” when appellant fell to the ground after he was shot, though

Justiniano did not recall making that statement when he testified. (Notes of

testimony, 4/2/14 at 80-81.)    Police recovered approximately 25 cartridge

casings from the corner where appellant had been seen.              (Notes of

testimony, 4/3/14 at 74-82.)     Justiniano testified that Medina and Castro

were arrested in the shooting incident as well. (Notes of testimony, 4/2/14

at 102.) A jury could reach the conclusion that appellant intended to shoot



                                    - 12 -
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Medina and Castro by firing into the group of people which included them

but instead struck Angel Rodriguez and Sianie Pena. There is circumstantial

evidence which is sufficient to prove the elements of the offense.          See

Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013). The evidence

was sufficient to warrant a conviction for aggravated assault with respect to

appellant’s intent to inflict serious bodily injury on Medina and Castro.

      Appellant next contends that he is entitled to an arrest of judgment on

the basis that the evidence is insufficient to sustain his convictions at CP-51-

CR-0001116-2012 and CP-51-CR-0001561-2012 for aggravated assault

because he was not convicted of conspiracy and the Commonwealth’s

evidence failed to establish that appellant fired the shots that struck either

Angel Rodriguez or Sianie Pena and failed to establish that appellant was a

shooter in the alleged incident that gave rise to these charges.      Appellant

argues that no legal theory exists under which he could be held criminally

liable for the injuries to Rodriguez and Pena other than if the Commonwealth

had established that he actually fired the shots which struck these victims.

      With respect to this issue, the trial court opined:

                   [Appellant]   clearly  acted    with   extreme
            indifference to human life. All evidence presented
            indicates [appellant] fired a gun on a public,
            residential street with multiple people around,
            ultimately ending with both Angel Rodriguez and two
            year old Sianie Pena sustaining injuries. Shooting
            multiple rounds, to the extent of leaving vehicles and
            homes riddled with bullet holes, clearly constitutes
            an offensive act, that under the circumstances, could
            almost assure that injury or death will occur. In


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            Commonwealth v. Daniels, [354 A.2d 538, 539
            (Pa. 1976)], [t]he Supreme Court of Pennsylvania
            held there was sufficient evidence of aggravated
            assault where the defendant fired a number of shots
            in a barroom full of people, striking one bystander.
            [Id.] The court held this action constituted reckless
            conduct which manifested extreme indifference to
            the value of human life, and that the appellant’s
            actions caused serious bodily injury to another. Id.
            In the instant case, Mr. Rodriguez sustained a
            gunshot wound to his right rib cage and two year old
            Sianie Pena also sustained a gunshot wound to her
            right shoulder, which required surgery to remove the
            bullet, when [appellant] fired multiple gunshots on a
            crowded street. Mr. Rodriguez’s and Sianie Pena’s
            injuries both rise to serious bodily injury as
            [appellant] demonstrated an extreme indifference to
            human life by firing multiple gunshots into a crowded
            street.

Trial court opinion, 1/30/16 at 11-12.

      This court essentially agrees with the trial court.     Evidence was

produced that indicated that appellant was on the corner where the shooting

took place, that he was seen with a gun, shots were fired from the two

groups, and that Angel Rodriguez and Sianie Pena were struck by gunfire in

the area.   Although there is no direct evidence to establish that appellant

shot Rodriguez and Pena, there is circumstantial evidence which is sufficient

to prove the elements of the offense. See Sanchez.

      Appellant next contends that his sentence of 15 to 30 years for

aggravated assault at CP-51-CR-0001561-2012 should be vacated on the

ground that the sentence is illegal in that it exceeds the statutory maximum

set forth in 18 Pa.C.S.A. § 1103.        Appellant argues that the maximum



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sentence   for   this   crime   was   20   years.   The   trial   court   and   the

Commonwealth agree with appellant.          A review of Section 1103 confirms

appellant’s contention.     The Commonwealth asks that this court should

remand to the trial court for resentencing on all offenses.

      In Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986),

cert. denied, 480 U.S. 950 (1987), our supreme court held that

proscriptions against double jeopardy do not prevent an appellate court from

remanding for sentencing on all bills of information when the vacation of

various portions of the sentence could undermine the trial court’s sentencing

scheme.

      Where, as here, appellant was sentenced on multiple charges

stemming from the same incident, it is possible that the vacation of the

aggravated assault conviction and remand for resentencing could alter the

sentencing scheme of the trial court.      Here, the trial court with respect to

the Angel Rodriguez complaint sentenced appellant to a term of 9 to

18 years’ imprisonment for aggravated assault, to a consecutive term of 5 to

10 years’ imprisonment for possession of a firearm prohibited, to a

consecutive term of 3 to 6 years’ imprisonment for carrying a firearm in

public in Philadelphia, and to a consecutive term of 2 to 4 years’

imprisonment for possession of an instrument of crime. With respect to the

Julio Medina complaint, the trial court sentenced appellant to a term of 7½

to 15 years’ imprisonment for aggravated assault and to a term of 2 to



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4 years’ imprisonment for possession of an instrument of crime.              These

sentences were concurrent to the “Rodriguez complaint” sentence.              With

respect to the Angel Castro complaint, the trial court sentenced appellant to

a term of 7½ to 15 years’ imprisonment for aggravated assault and to a

term of 2 to 4 years’ imprisonment for possession of an instrument of crime.

These sentences were concurrent to the “Rodriguez complaint” sentence.

With respect to the sentence that we have determined was illegal, the trial

court sentenced appellant to a consecutive term of 15 to 30 years’

imprisonment for aggravated assault.              He was also sentenced to a

concurrent term of 2 to 4 years’ imprisonment for possession of an

instrument of crime.     Because the vacated 15 to 30-year sentence affects

the trial court’s overall sentencing scheme, we will agree to the request of

the Commonwealth and vacate this sentence and remand to the trial court

to resentence appellant.

     Finally, appellant contends that the trial court erred when it denied his

request   for   a   mistrial   after   the   prosecutor   committed   prosecutorial

misconduct when he stated in his closing argument, “And I’m asking you

now to tell [appellant] it’s not okay to turn your neighborhoods into a

shooting gallery.” (Notes of testimony, 4/4/14 at 61.)

                   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


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              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. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)

(internal citations and quotations omitted).

         In Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009), in a

murder trial, the prosecutor in her closing argument, stated, “[A]nd the

second message I want to send to [Neal Lamont Patton (“Patton”), the

defendant] is to tell him he can’t get away with murder.” Patton, 985 A.2d

at 1285.      Patton objected.      The trial court agreed to give a curative

instruction and failed to do so.      The jury convicted Patton of first degree

murder.      This court affirmed.    On appeal to the Pennsylvania Supreme

Court, Patton argued that the prosecutor’s statement was per se prejudicial.

The Pennsylvania Supreme Court affirmed on the basis that while the

comment was inappropriate, it was not so much so as to deny Patton a fair

trial.   Id. at 1285-1286.    Our supreme court also held that “Prosecutorial

remarks encouraging a jury to ‘send a message’ to the defendant, rather

than the community or criminal justice system, do not invite consideration of

extraneous matters and are not misconduct.” Id. at 1288.

         Similarly, here the prosecutor did not ask the jury to send a message

to the community but to appellant as in Patton. This issue has no merit.



                                       - 17 -
J. S63007/16


      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2016




                                    - 18 -
