J-S22002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ISAAC LAMONT JONES

                            Appellant                  No. 729 WDA 2013


            Appeal from the Judgment of Sentence January 25, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002958-2012


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                                  FILED June 1, 2015

        Appellant, Isaac Lamont Jones, appeals from the judgment of sentence

entered after he was convicted of robbery – serious bodily injury and

conspiracy to commit robbery. Jones argues that the verdicts were against

the weight of the evidence and that the trial court erred in failing to grant a

mistrial after the Commonwealth used leading questions during direct

examination of the victim. We affirm.

        At trial, the victim, Alvester Clay, testified that during the morning of

December 24, 2011, he was preparing to open the bar and restaurant he

owned. At around noon, the door buzzer rang, and he allowed a young, tall


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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man into the bar.   The man requested a drink, and as Clay turned to get

one, the man produced a gun.

      The young man pointed the gun at Clay and told him to get on the

floor. As Clay complied with the order, the young man opened the door and

allowed another man to enter. This man had his face partially covered, but

at some point the covering shifted, and Clay was able to recognize him as a

former employee and regular patron at the bar: Jones.

      Jones demanded that Clay give him the keys to Clay’s upstairs

apartment. When Clay refused, Jones retrieved a knife from the kitchen and

held it to Clay’s neck.   Clay relented and opened the door to the upstairs

apartment.

      The two assailants escorted Clay upstairs to his apartment, where they

bound Clay’s hands and feet with duct tape, before locking him in a closet.

Jones and his accomplice then proceeded to ransack Clay’s apartment. After

over an hour in the closet, Clay was able to free himself and contacted

police. He immediately identified Jones as one of his assailants.

      In contrast, two alibi witnesses testified that Jones was otherwise

occupied at the time of the robbery. Tracee Russell, Jones’s girlfriend and

mother of his child, testified that Jones was home all day playing a video

game.   Marcus Lewis, a friend of Jones, testified that he was playing a

videogame over the internet with Jones from approximately 8:30 that

morning until noon or 1:00 p.m.


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      The jury subsequently returned a guilty verdict on charges of robbery

– serious bodily injury and conspiracy to commit robbery.       The trial court

sentenced Jones to a term of imprisonment of five to ten years. Jones filed

post-sentence motions, which the trial court denied, and this timely appeal

followed.

      On appeal, Jones first argues that the verdict was against the weight

of the evidence.   Our standard of review applicable to a challenge to the

weight of the evidence, is as follows.

      [A] verdict is against the weight of the evidence only when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice. It is well established that a weight of the
      evidence claim is addressed to the discretion of the trial court. …
      The role of the trial court is to determine that notwithstanding all
      the evidence, certain facts are so clearly of greater weight that
      to ignore them, or to give them equal weight with all the facts, is
      to deny justice. A motion for a new trial on the grounds that the
      verdict is contrary to the weight of the evidence concedes that
      there is sufficient evidence to sustain the verdict; thus the trial
      court is under no obligation to view the evidence in the light
      most favorable to the verdict winner.

      Significantly, in a challenge to the weight of the evidence, the
      function of an appellate court … is to review the trial court's
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight
      of the evidence. In determining whether this standard has been
      met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion. It is for this reason that the trial court’s
      denial of a motion for a new trial based on a weight of the
      evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

citations and quotation marks omitted).


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     Jones argues that Clay’s testimony was contradictory, that Clay’s age

impacted his credibility, and that the testimony of his alibi witnesses was

contradicted. In response, the trial court observes:

     Here, the jury found the Defendant guilty of all charges after
     hearing strong direct evidence of the Defendant’s involvement in
     this armed robbery, namely, the testimony of the victim of the
     robbery. Although the Defendant attempts to argue that the
     direct evidence provided by Mr. Clay was weak or incredible, the
     jury clearly found the testimony of Mr. Alvester Clay to be
     compelling. He was the sole eyewitness to, and victim of, the
     events of December 24, 2011, and he was able to describe what
     he saw, heard and experienced to the jury in great detail. Even
     though defense counsel engaged in a lengthy cross-examination
     of Mr. Clay in an attempt to discredit him and sully his
     credibility, the jury chose to believe his version of what
     happened that day, which is well-within their province. As this
     court stated earlier, Mr. Clay was a compelling witness. It
     certainly does not shock this court’s conscience or sense of
     justice that the jurors found him to be credible. In fact, this
     court found him to be credible and truthful as well.

     …

     In terms of the allegations that Mr. Clay’s testimony was
     confusing and contradictory, that certainly was not the case. Mr.
     Clay was clear and consistent on all of the main facts in this
     case, including the identity of the Defendant as the perpetrator,
     the description of the co-Defendant, the manner and order in
     which the Defendants entered the bar, the fact that the
     Defendants were armed, the use of the knife by the Defendant,
     the fact the the Defendant was in charge of the robbery, and the
     fact that a large sum of money was taken from him. His trial
     testimony was consistent even during aggressive cross-
     examination. If there was a discrepancy between trial testimony
     and facts related in police reports, the jury was certainly aware
     that Mr. Clay did not write the police reports, could only provide
     answers to questions asked of him and was in an agitated,
     excited state when questioned by officers.




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Trial Court Opinion, at 5-6; 8-9. We can discern no abuse of discretion in

this reasoning, and therefore conclude that Jones’s first issue on appeal

merits no relief.

      In his final issue on appeal, Jones contends that the trial court erred in

allowing the Commonwealth to use leading questions during the direct

examination of Clay. Our standard when reviewing a trial court’s evidentiary

rulings is well-settled: we will not disturb the lower court’s rulings absent an

abuse of discretion. See Commonwealth v. Einhorn, 911 A.2d 960, 967

(Pa. Super. 2002). “The trial court abuses its discretion if ‘it misapplies the

law or [rules] in a manner lacking reason.’” Id. (citation omitted).

      Ordinarily, the use of leading questions during direct examination is

prohibited. See Pa.R.E. 611(c). Jones objected to the leading nature of the

Commonwealth’s questioning five times during the direct examination of

Clay; the trial court sustained four of those objections. In response to the

fifth objection, the trial court determined that the question was not leading

in nature and overruled it.

      Jones provides no argument that the trial court erred in overruling his

fifth objection. Rather,

      Jones merely asks this Court to review the testimony of Mr. Clay,
      the main prosecution witness. The conviction of Mr. Jones can
      only stand if Mr. Clay was able to provide competent testimony
      of Mr. Jones’s involvement in the robbery without the use of
      leading questions. The leading questions in this case were too
      extensive to permit such a finding. At several points, Mr. Clay
      wasn’t testifying, the Assistant District Attorney was.


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          Accordingly, it was error to permit such prejudicial testimony to
          stand at trial.

Appellant’s Brief, at 32.

          To the extent that Jones is arguing that the trial court erred in not

sustaining objections that were never made, we note that such an argument

is waived. See Pa.R.A.P. 302. Furthermore, our review of the record can

locate no instance where Jones requested a mistrial due to the leading

nature of the Commonwealth’s questions. Jones’s appellate brief does not

explicitly identify any, either.    “Even where a defendant objects to specific

conduct, the failure to request a remedy such as a mistrial or curative

instruction is sufficient to constitute waiver.” Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008).

          In any event, we cannot conclude that the trial court’s sole decision to

overrule Jones’s objections to the leading nature of the Commonwealth’s

questioning of Clay constituted an abuse of discretion. Nor do we agree with

Jones’s characterization of Clay’s testimony.       For the vast majority of the

relevant testimony, Clay was responding to open-ended questioning, and

was not led in a manner indicating improper influence by the prosecuting

attorney. We therefore conclude that Jones’s final issue on appeal merits no

relief.

          Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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