J-S75044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SEAN C. CRAWFORD,

                        Appellant                   No. 1776 EDA 2014


       Appeal from the Judgment of Sentence entered April 21, 2014,
             in the Court of Common Pleas of Chester County,
           Criminal Division, at No(s): CP-15-CR-0002624-2013


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED DECEMBER 08, 2014

      Sean Crawford (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of simple assault, 18 Pa.C.S.A. §

2701(a)(1).

      The trial court summarized the pertinent facts and procedural history

as follows:
            On July 21, 2013, Officer David Spigarelli of the West
      Goshen Police Department was dispatched to investigate a report
      of a female assault victim. Upon arriving at the scene, Ms.
      Hayman stated to Officer Spigarelli that she was struck in the
      face by her fiancé, [Appellant]. Upon instructions from Officer
      Spigarelli, another officer took [Appellant] into custody for the
      assault on Ms. Hayman. [Appellant had previously pled guilty
      and was convicted of assaulting Ms. Hayman at Docket No 3465-
      2011].

            On January 28, 2014, a jury trial in the above matter
      began. The Commonwealth presented four witnesses. First, lay
      witnesses, David Fuller and Denise Phipps, testified that they did
      not observe the altercation between [Appellant] and Ms.
      Hayman, but observed Ms. Hayman coming towards them. She
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     was upset and bleeding from the nose. Ms. Hayman related to
     Mr. Fuller and Ms. Phipps that [Appellant] had punched her in
     the face and had taken two of her four children.             The
     Commonwealth also presented expert medical testimony from
     Barry R. Smoger, M.D., who testified that he examined x-rays
     taken of Ms. Hayman’s face on July 21, 2013 after she was
     transported to the hospital. He diagnosed her with a facial bone
     fracture.   The last witness to testify on behalf of the
     Commonwealth was Ms. Hayman.

            Ms. Hayman testified that on July 21, 2013, she and her
     fiancé, [Appellant], were at West Goshen Park with her four
     children. Ms. Hayman testified [that Appellant] informed her
     that he was ending their relationship. When she questioned
     [Appellant] about how he planned to take care of his children’s
     needs, [Appellant] became “mad” that Ms. Hayman was thinking
     he was not going to be providing for his children and he pulled
     her hair. When she struggled to get free, [Appellant] punched
     her in the nose. It was Ms. Hayman’s testimony that she
     escaped from [Appellant] and ran across the street to where Mr.
     Fuller and Ms. Phipps were working in the yard.

           After the close of the Commonwealth’s case, [Appellant’s]
     attorney made a motion for judgment of acquittal. [The trial
     court] denied the motion. [Appellant] notified the [trial court]
     that he intended to forgo his right to testify or present any
     evidence. A brief colloquy took place between the [trial court]
     and Appellant about his decision.

          [The trial court] then went over the jury charge with both
     counsel in chambers. [Appellant’s counsel] placed an objection
     on the record to [the trial court’s] intention to instruct the jury
     on consciousness of guilt as requested by the Commonwealth.

           During closing statements, [Appellant] objected to a
     statement of the Commonwealth referring to the fact that the
     Commonwealth had not called the children to testify about the
     altercation. [The trial court] overruled both objections.

Trial Court Opinion, 8/7/14, at 2-4 (footnotes and citations to notes of

testimony omitted).




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      At the conclusion of trial, the jury found Appellant guilty of simple

assault. Appellant filed a post-sentence motion on April 30, 2014, which the

trial court denied without a hearing on May 9, 2014. Appellant filed a notice

of appeal on June 9, 2014. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

      Appellant presents two issues for our review:

      1. Did the trial court err in overruling [Appellant’s] objection to
         the prosecutor’s comments during her closing argument
         regarding her decision not to call certain eyewitnesses, when
         the facts underlying those comments were not in evidence?

      2. Did the [trial court] err in instructing the jury on
         “Consciousness of Guilt” where there was no evidence that
         [Appellant] left the scene in order to avoid apprehension by
         the police?

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the trial court erred in

overruling his objection to improper comments by the prosecutor during

closing arguments. Appellant’s Brief at 13-15. Our standard of review for a

claim of prosecutorial misconduct is limited to whether the trial court abused

its discretion. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super.

2005) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007).          In

considering such a claim, our attention is focused on whether the defendant

was deprived of a fair trial, not a perfect one. Id.

            [I]n reviewing prosecutorial remarks to determine their
      prejudicial quality, comments cannot be viewed in isolation but,
      rather, must be considered in the context in which they were
      made. Our review of prosecutorial remarks and an allegation of


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      prosecutorial misconduct requires us to evaluate whether a
      defendant received a fair trial, not a perfect trial.

                                        ***

            It is well settled that a prosecutor has considerable latitude
      during closing arguments and his arguments are fair if they are
      supported by the evidence or use inferences that can reasonably
      be derived from the evidence. Further, 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. Prosecutorial misconduct is evaluated
      under a harmless error standard.

             In determining whether the prosecutor engaged in
      misconduct, we 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. 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. Judy, 978 A.2d 1015, 1019–1020 (Pa. Super. 2009)

(internal citations omitted).

      Appellant   objects   to   the   following   comments     made    by    the

Commonwealth during its closing argument, relative to the altercation

between Appellant and Ms. Hayman:


      Assistant District Attorney:           [Appellant] mentioned that
                                             there were no other eye
                                             witnesses aside from the
                                             children.   I think it is an
                                             undisputable fact the children
                                             were present in the park that
                                             day.     They probably saw


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                                            what happened. There was
                                            evidence,     there      was
                                            testimony that Sania and
                                            Jordan    were     extremely
                                            upset. Call them? I didn’t
                                            call them to the stand. In
                                            Chester County we are not
                                            in the business of calling
                                            an eight year old ... to
                                            testify against someone
                                            who is very involved in
                                            their lives.    That’s why
                                            they didn’t testify today.


N.T., 1/28/14, at 94-95 (emphasis added).

      Appellant argues that the prosecutor’s comment deprived him of a fair

trial. Appellant contends that there was no evidence presented at trial that

the Commonwealth opted not to call the children because of their age, and

that he was deprived of the opportunity to present his own evidence or

conduct any cross-examination with regard to why the children did not

testify. Appellant’s Brief at 14-15. The trial court, however, found no merit

to this claim, concluding that the comment was not prejudicial and that

Appellant was not entitled to relief on this basis.     We find no abuse of

discretion in the trial court’s determination.

      In Commonwealth v. Chmiel, 889 A.2d 501, 543–44 (Pa. 2005), our

Supreme Court explained:

      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

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       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.

Chmiel, 889 A.2d at 543–44 (emphasis added).

       Here, we conclude that the prosecutor’s comments as to why it

declined to call the children to testify, were in fair response to comments by

Appellant’s counsel who, during his preceding closing argument, “opened the

door” to the Commonwealth’s responsive remarks about the children’s

failure to testify. Specifically, during closing, Appellant’s counsel addressed

the jury:

              Today Miss Hayman testified her children were ten steps
              away or nearby. Yet she also testified early on in the
              proceedings they were a mile away. Wait a minute. You
              can ask yourself why she did not want her children
              called as witnesses, because maybe they would say
              a different story. That’s for you to wonder about. In
              fact, why is there even no corroborating evidence, why did
              the State put on no corroborating evidence [that
              Appellant] was in the park that day? ... They could have
              done that if they had chosen to do so.

N.T., 1/28/14, at 89-90 (emphasis added).

       By asking the jury to speculate about why the Commonwealth did not

call   the   children    as   witnesses,   Appellant   opened   the   door   to   the

Commonwealth making responsive closing remarks about the children’s

absence at trial.       Given that the Commonwealth’s comments were in fair

response to Appellant’s closing argument, Appellant’s claim of prosecutorial

misconduct fails.       See Commonwealth v. Turner, 73 A.3d 1283, 1286,

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n.5. (Pa. Super. 2013) (“[T]his Court may affirm a trial court's decision if it

is correct on any basis.”) (citation omitted).

      In his second issue, Appellant argues that the trial court erred in

issuing a “consciousness of guilt” instruction to the jury. Appellant’s Brief at

15-18. “[W]hen evaluating the propriety of jury instructions, this Court will

look to the instructions as a whole, and not simply isolated portions, to

determine if the instructions were improper.     ...   [A] trial court has broad

discretion in phrasing its instructions, and may choose its own wording so

long as the law is clearly, adequately, and accurately presented to the jury

for its consideration.   Only where there is an abuse of discretion or an

inaccurate statement of the law is there reversible error.” Commonwealth

v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations omitted). “A

jury instruction is proper if supported by the evidence of record.         [Our

Supreme Court] has held that when a person commits a crime, knows that

he is wanted therefor, and flees or conceals himself, such conduct is

evidence of consciousness of guilt, and may form the basis [of a conviction]

in connection with other proof from which guilt may be inferred.”

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (citations and

internal quotations omitted).

      Here, the trial court determined that a “consciousness of guilt”

instruction was warranted, and instructed the jury:

      Now, you may have heard evidence that tended to show that
      [Appellant] left the scene. The credibility, weight, and effect of

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      this evidence is for you to decide. Generally speaking, when a
      crime has been committed and a person thinks he or she may be
      accused of committing it, [and] he or she leaves the scene, that
      is a circumstance that may prove a person’s consciousness of
      guilt. Such action does not necessarily show consciousness of
      guilt in every case. A person may leave the scene for some
      other motive, may do so even though innocent. Whether the
      evidence of [Appellant] leaving the scene in this case should be
      looked at as evidence of consciousness of guilt depends upon the
      facts and circumstances of this case and especially upon motives
      that may have prompted him to leave. You may not find
      [Appellant] guilty solely on the basis of evidence of him leaving
      the scene.

N.T., 1/28/14, at 105.

      Appellant argues that the instruction was improper because the

Commonwealth presented no evidence that he left the scene in order to

avoid detection by the police.        The trial court, however, disagreed,

explaining:

      Mr. Fuller and Ms. Phipps testified they observed Ms. Hayman
      come from the direction of the park and present herself with a
      bloody injury to her face.

      Mr. Fuller testified that upon hearing Ms. Hayman relate her
      children were in the park he immediately ran to the park to
      investigate and saw the individual Ms. Hayman identified as her
      fiancé, [Appellant], pulling out of the park’s parking lot in a car.

      Mr. Fuller also testified he observed two young children running
      toward [Appellant’s] car and screaming. Mr. Fuller went to the
      children when he saw they were following the car into the street
      and he was worried they would be injured.

Trial Court Opinion, 8/7/14, at 5 (citations to notes of testimony omitted).

      In light of this testimony, the trial court concluded that it was not error

to instruct the jury to decide whether Appellant’s actions in leaving the scene


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tended to show a guilty conscience. We conclude that the trial court did not

err in issuing a consciousness of guilt instruction to the jury. We agree with

the trial court that the Commonwealth presented testimony that Appellant

left the scene; Mr. Fuller, in particular, testified that when he ran toward

Appellant, he saw Appellant “pulling out in his car” while two children ran

toward Appellant “screaming, he’s got my brother.” N.T., 1/28/14, at 36-

37. When Mr. Fuller reached the parking lot area of the park, Appellant “had

taken off ... straight toward Westtown Road”. Id. at 38-39. Accordingly, we

find no abuse of discretion in the trial court’s determination that a

consciousness of guilt instruction was warranted. Appellant’s claim that the

trial court’s jury instruction was unsupported by the evidence and improper

is unavailing.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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