J-S31017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EARL P. MITCHELL,                          :
                                               :
                             Appellant         :   No. 1058 WDA 2016

           Appeal from the Judgment of Sentence February 18, 2016
              In the Court of Common Pleas of Cambria County
              Criminal Division at No.: CP-11-CR-0000826-2014

BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED JULY 11, 2017

        Appellant, Earl P. Mitchell, appeals from the Judgment of Sentence 1

entered by the Cambria County Court of Common Pleas following his

conviction by a jury of Third-Degree Murder and related offenses.        After

careful review, we affirm.

        The relevant facts, as gleaned from the certified record and the trial

court’s July 13, 2014 Opinion, are as follows. On January 24, 2014, three

men—Jareek Adams (“Adams”), Jonathan Moore (“Moore”), and Nysir Allen

“Allen”)—approached Appellant, Linda Coleman (“Coleman”), and Coleman’s

brother Hector (“Hector”) as they were entering Appellant’s vehicle.      They
____________________________________________


1
  We note that Appellant purports to appeal from the trial court’s July 13,
2016 Order denying his Post-Sentence Motions. In a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions. Commonwealth v. Shamberger, 788 A.2d 408, 410
n.2 (Pa. Super. 2001). We have corrected the caption accordingly.
J-S31017-17


exchanged words and Appellant shot Moore in his neck and leg after Moore

approached Coleman in the backseat. Appellant also shot and killed Adams.

      Appellant claimed that Moore had physically assaulted Coleman in the

backseat after displaying a firearm concealed in his belt, but Coleman

testified that Moore only opened the door and did not touch her. Coleman

acknowledged that she had argued with Moore about money one week

before the shooting. After pointing the gun at Moore, who was now on the

ground on top of Adams, and telling Moore not to move, Appellant entered

his vehicle and drove away.

      On February 6, 2014, Manassas Police Officer Casey Smith (“Officer

Smith”) pulled Appellant over for traffic violations in Virginia. After running

the license plate and discovering that Appellant, the registered owner of the

vehicle, was wanted for murder in Pennsylvania, Officer Smith exited his

vehicle to approach Appellant.    Appellant then sped away in his vehicle.

After a four-mile pursuit, spike strips flattened one of Appellant’s tires and

the vehicle stopped shortly thereafter.    Appellant and another person fled

the vehicle.

      Appellant fled to a stranger’s home and hid for several hours. Armed

with the murder weapon, Appellant held two men hostage and did not permit

them to leave or call the police.     While hiding in the house, Appellant

admitted to the hostages that he was the man police were searching for and




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that he had killed someone.          The two men eventually escaped and police

arrested Appellant, who still possessed the murder weapon.

       The   Commonwealth         charged      Appellant   with   Criminal   Homicide,

Criminal Attempt (Homicide), four counts of Aggravated Assault, and

Carrying a Firearm Without a License.2             Despite having received several

continuances, on January 19, 2016, Appellant sought a last-minute

continuance moments before jury selection was to begin in order to locate

and subpoena two additional witnesses: Jessica Santore and Nysir Allen. 3

The trial court denied this belated request after hearing argument and

testimony from Appellant’s private investigator regarding his efforts to locate

the witnesses.

       Appellant also sought the judge’s recusal before trial after learning

about the judge’s involvement as a potential witness in an unrelated ongoing

investigation by the Attorney General’s Office in a two-page report disclosed

prior to trial. N.T., 1/19/16, at 2. Appellant’s counsel did request recusal,

but Appellant persisted in his belief that a conflict existed because judge and

____________________________________________


2
 18 Pa.C.S. § 2501; 18 Pa.C.S. § 901; 18 Pa.C.S. § 2702; and 18 Pa.C.S. §
6106, respectively.
3
  Appellant claims he presented his continuance request two weeks before
trial during a status conference on January 11, 2016. Appellant’s Brief at
15. Our review of the transcript from that status conference reveals no
continuance request on the record on that date.          Rather, Appellant
presented his continuance request regarding these witnesses on January 19,
2016, moments before jury selection. See N.T., 1/19/16, at 16, 21-39.



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Attorney General’s Office were friendly and “working together.”           Id. at 6.

When asked about his concerns on the record, Appellant struggled to explain

the basis for his objection and recusal request.         The trial court denied

Appellant’s request.

      Appellant proceeded to a jury trial.        At trial, the Commonwealth

presented the testimony of numerous witnesses, including Moore, Officer

Smith, police detectives and other police officers, as well as several

eyewitnesses, including Coleman.

      Appellant testified in his own defense at trial and claimed he shot

Adams and Moore to defend himself, Coleman, and Hector. Appellant also

testified that he did not turn himself in to police, and instead fled to Virginia,

because he was afraid the police would not believe him.

      The court permitted additional testimony about Appellant’s flight,

Appellant’s additional crimes, and his arrest in Virginia.          At the close of

testimony, the trial court provided a jury instruction regarding flight or

concealment as evidence of Appellant’s consciousness of guilt.

      On January 28, 2016, the jury asked three questions in a handwritten

note, and the trial court provided the following answers:

      [Q:] On page 18, Section C . . Does this mean, with an illegal
      firearm[?]

      [A:] Yes, if the jury decides it is an illegal firearm. PTK

      [Q:] Self[-]defense is not valid. Due to Duty to retreat?

      [A:] That is the jury’s decision.

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       [Q:] *Also does the reducing circumstances on 5A apply due to
       illegal firearm[?]

       [A:] I (we) do not understand your question as worded. PTK.
       Please reword. PTK

Court Exhibit 2, dated 1/28/16. The jury clarified its third question with the

following question: “Can you utilize an unregistered firearm without a

concealed weapons permit and claim self[-]defense                 if you had the

opportunity to flee the situation[?]”          Court Exhibit 3, dated 1/28/16.   The

trial court instructed the jury to “Reread the written charge I gave you and

apply the facts, as you find them, to the law.” Id.

       Shortly thereafter, the jury convicted Appellant of Third-Degree

Murder, four counts of Aggravated Assault, and Carrying a Firearm Without a

License.4

       On February 2, 2016, Appellant filed a “Post-Trial/Pre-Sentence

Motion” averring that counsel “received information” 5 that the trial court’s

response to one of the jury’s questions misled the jury. Appellant averred

that the jury “thought it was manslaughter but because of an instruction

with the gun they thought they had to do third degree.” Trial Court Opinion,

2/4/16, at 1. The trial court denied Appellant’s Motion on February 4, 2016.
____________________________________________


4
 The jury found Appellant not guilty of First-Degree Murder of Adams and
not guilty of Attempted Murder of Moore.
5
 A juror purportedly conveyed this information to an attorney they knew,
who in turn purportedly informed Appellant’s trial counsel.



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       On February 18, 2016, the trial court sentenced Appellant to an

aggregate term of 25 to 50 years’ incarceration.6        Appellant filed a timely

Post-Sentence Motion, which the trial court denied on July 13, 2016.

       Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.7

       Appellant presents seven issues for our review:

       I. Whether the trial court erred in failing to grant [Appellant’s]
       numerous requests for a continuance when trial counsel averred
       that they were not prepared prior to the commencement of
       trial[?]

       II. Whether the trial court committed a reversible error in
       allowing the jury to hear about [Appellant’s] post[-]incident
       conduct which resulted in additional charges being filed against
       him in the Commonwealth of Virginia where said testimony was
       so unfairly prejudic[i]al to [Appellant] that it denied him of his
       right to a fair and impartial trial based on the relevant facts of
       this case[?]

       III. Whether the trial court committed a reversible error in
       providing answers to the jurors[’] questions they presented
       during deliberations as opposed to instructing the jury to review
       the jury instructions[?]

       IV. Whether the trial court committed a reversible error in not
       granting [Appellant’s] request for an arrest in judgment and
____________________________________________


6
  The trial court sentenced Appellant to 15 to 30 years’ incarceration for
Third-Degree Murder, a consecutive term of 7 to 14 years’ incarceration for
Aggravated Assault of Moore, and a consecutive term of 3 to 6 years’
incarceration for Carrying a Firearm Without a License. The trial court
imposed no further penalty on the remaining offenses.
7
   The trial court filed a brief Order to comply with Pa.R.A.P. 1925(a)
directing this court to its Opinions dated July 13, 2016 and February 4,
2016.



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      motion to reconvene jurors as a result of post[-]trial information
      from at least one juror indicating that the panel believed that
      they could not find [Appellant] guilty of the lesser charge of
      voluntary manslaughter based on the judge’s response to their
      questions[?]

      V. Whether the trial court committed a reversible error in failing
      to give the jurors an involuntary manslaughter instruction as
      requested by trial counsel[?]

      VI. Whether the trial judge should have recused himself from the
      instant case when it was discovered that he was a party to an
      ongoing investigation being conducted by the Office of the
      Attorney General of Pennsylvania when said office was
      prosecuting the case at bar[?]

      VII. Whether the consecutive sentences imposed by the trial
      court were excessive and unwarranted[?]

Appellant’s Brief at 4.

      Denial of Appellant’s Pre-Trial Motion for Continuance

      Appellant first challenges the trial court’s denial of his pre-trial request

for a continuance to locate and subpoena two witnesses.

      We review a trial court’s decision to deny a continuance mindful of the

following precepts:

      Appellate review of a trial court’s continuance decision is
      deferential. The grant or denial of a motion for a continuance is
      within the sound discretion of the trial court and will be reversed
      only upon a showing of an abuse of discretion. As we have
      consistently stated, an abuse of discretion is not merely an error
      of judgment. Rather, discretion is abused when the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016). We will

reverse a trial court’s denial of a continuance only when it is based on “an

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unreasonable and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay.” Id.

        Pennsylvania Rule of Criminal Procedure 106 provides, in pertinent

part:

        (A) The court or issuing authority may, in the interests of justice,
        grant a continuance, on its own motion, or on the motion of
        either party.

        (B) When the matter is before an issuing authority, the issuing
        authority shall record on the transcript the identity of the moving
        party and the reasons for granting or denying the continuance.

        (C) When the matter is in the court of common pleas, the judge
        shall on the record identify the moving party and state of record
        the reasons for granting or denying the continuance. . . .

Pa.R.Crim.P. 106.

        When deciding a continuance motion to secure a material witness, the

trial court must examine several factors:

        (1) the necessity of the witness to strengthen the party’s case;
        (2) the essentiality of the witness to the party’s case; (3) the
        diligence exercised to procure the witness’ presence at trial; (4)
        the facts to which the witness could testify; and (5) the
        likelihood that the witness could be produced at the next term of
        court.

Norton, supra at 143-44.

        In its Opinion denying Appellant’s Post-Sentence Motion, the trial court

addressed Appellant’s challenge to the denial of his continuance request as

follows:




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     a. Nysir Allen

     The evidence of record indicates that Mr. Allen was with
     Jonathan Moore and the late Jareek Adams on January 25, 2014.
     [Appellant] fails to persuasively argue that Allen’s testimony was
     a necessity to strengthen his case. First, there is [a] bald
     assertion by [Appellant] in his brief that Allen was an
     “exculpatory, eye witness.” However, there is no indication how
     or why Allen’s testimony could have relieved him from criminal
     liability, especially given the fact that [Appellant] took the stand
     and admitted to firing his gun at Moore and Adams. The theory
     of the defense’s presentation to the jury was that [Appellant]
     fired in self-defense and he fails to explain how that theory
     would have been bolstered or supported by the testimony of
     Allen.

     For similar reasons we find that [Appellant] has not established
     that Allen’s testimony was “essential” to his justification defense.
     While we assume that counsel was diligent in his attempts to
     procure the testimony of Allen[,] we have not been presented
     with any indication as to the facts that Allen could have
     established. There is no allegation that he could provide an alibi
     or similar exculpatory testimony[.]

                                *     *     *

     Most importantly, [Appellant] could not at the time of the
     continuance[,] nor can he now[,] establish that a continuance
     would have borne any fruit in the person of Allen. It is possible
     for people who do not wish to be located to evade even the most
     diligent and skillful investigator in perpetuity. For these reasons,
     we decline[d] to grant [Appellant’s] motion in regard to Allen.

     b. Jessica Santore

     There is far less indication that Santore could have added
     anything to [Appellant’s] defense. Counsel tried unsuccessfully
     to link a gun that was found weeks after the shooting in the area
     of the crime scene with the shooting itself. This gun reportedly
     was registered to Santore. Counsel makes a claim that Santore
     “would establish a relationship between the victim and a gun
     found at the crime scene a few weeks following the incident.”
     He does not specify which victim nor does he specify how her
     testimony would have been a necessity to [Appellant’s] defense

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     or how it was essential to his defense. Again, we have no
     reason to doubt the diligence that was used in pursuing this
     witness[,] but we are again left with no indication as to what
     facts she could provide or how they could have strengthened
     [Appellant’s] justification defense. Finally, we are not convinced
     that Santore could have been procured even if a continuance
     had been granted.

     Last, we wish to address the argument advanced by [Appellant]
     that this case is “factually identical” to Commonwealth v.
     Ross, [57 A.3d 85 (Pa. Super. 2012) (en banc)]. Even a cursory
     review of the two cases belies this contention. The facts in Ross
     centered on a homicide of a young woman to which there were
     no [eyewitnesses], a body found many hours after the murder[,]
     and a case built almost exclusively on circumstantial forensic
     evidence. For these reasons, expert testimony to establish the
     cause, manner[,] and time of death was the axis on which the
     entire case turned.       In the Ross case, defense counsel
     successfully argued [] that his lack of time to review expert
     testimony and consult with his own experts prior to trial
     hampered his defense.        Moreover, a review of Ross also
     indicates that the denial of a continuance was not the sole
     finding of error by the Superior Court.

     Conversely, this case involves a shooting with several
     corroborative [eyewitnesses], ballistics evidence linking a gun
     found to be in [Appellant’s] possession with the shooting,
     evidence of flight[,] and a justification defense in which
     [Appellant] conceded he did in fact shoot the victims, albeit in
     self-defense. The two cases could not be more different from a
     factual perspective and they are easily distinguishable when
     closely scrutinized.

Trial Court Opinion, dated 7/13/16, at 5-7 (emphasis in original

omitted; some paragraph breaks inserted).

     We agree with the trial court’s assessment.    The trial court properly

weighed the relevant factors set forth in Norton, supra, to support its

conclusion that Appellant failed to show that the witnesses were material,

that he could likely find them, or that he could procure their presence and

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testimony at trial so as to show that the trial court improperly denied the

last-minute request for a continuance.         We, thus, conclude that the trial

court properly exercised its discretion in denying Appellant’s motion for a

continuance.

      Evidence of Flight to Virginia, Other Acts, and Concealment

      In his second issue on appeal, Appellant challenges the admission of

evidence related to Appellant’s flight and other acts in Virginia following the

shooting. Our standard of review concerning a challenge to the admissibility

of evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      Pennsylvania Rule      of Evidence       404(b) prohibits evidence        of a

defendant’s prior bad acts “to prove a person’s character” or demonstrate

“that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that

prior bad acts evidence “may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2).


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      Commonly referred to as the res gestae exception or the complete

story rationale, Rule 404(b)(2) also “permits the admission of evidence

where it became part of the history of the case and formed part of the

natural development of facts.” Commonwealth v. Ivy, 146 A.3d 241, 251

(Pa. Super. 2016).

      Our    Supreme    Court   has   permitted   res   gestae   evidence   of   a

defendant/murder suspect taking hostages while eluding or fleeing police

after a vehicle pursuit nearly one year after the murder for which he is on

trial, including the defendant’s statements made during the hostage

situation.   See, e.g., Commonwealth v. Lark, 543 A.2d 491, 497-99

(holding that trial court could allow evidence of “a tangled web of threats,

intimidation and criminal activity” to complete the story of the crime where

defendant robbed victim, later murdered the victim, and threatened to kill

the prosecutor).     “Evidence of prior bad acts may also be introduced to

prove consciousness of guilt, i.e., that the defendant was aware of his

wrongdoing.” Ivy, supra at 251.

      “In a criminal case, this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2). See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules

of Evidence § 404.11 et. seq. (2017 ed. LexisNexis Matthew Bender).

“Where evidence of prior bad acts is admitted, the defendant is entitled to a




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jury instruction that the evidence is admissible only for a limited purpose.”

Ivy, supra at 251.

     The trial court addressed Appellant’s evidentiary challenge as follows:

     As noted in the Court’s Order of January 22, 2016, we permitted
     the admission of evidence of [Appellant’s] unprovoked flight
     from authorities, his concealing himself within a private
     residence, holding people against their will therein, and being
     apprehended in possession of the firearm that ultimately was
     matched to the murder by ballistics testing. We found that this
     was probative for showing knowledge, consciousness of guilt[,]
     and because it went to the “res gestae” of the Commonwealth’s
     case. We relied on two Pennsylvania Superior Court cases,
     Commonwealth v. Gooding, 649 A.2d 722 (Pa. Super. 1994)
     and Commonwealth v. Hudson, 955 A.2d 1031 (Pa. Super.
     2008)[].

     In Gooding, immediately after committing a homicide in
     Philadelphia, the [d]efendant and an accomplice fled to New
     Jersey where he eventually got engaged in a standoff with police
     whereby a hostage was taken and shots were fired. [Gooding,
     supra at 726]. The Superior Court upheld the trial court’s ruling
     that evidence of these crimes was admissible at the underlying
     homicide trial both to show consciousness of guilt and to help
     develop the “res gestae” of the Commonwealth’s case. Id.

     Likewise, in Hudson the Superior Court upheld the lower court’s
     ruling that evidence of the accused’s flight was admissible to
     show consciousness of guilt. [Hudson, supra at 1036].

                               *     *      *

     In Hudson, the defendant immediately fled after the crime and
     when approached by police once again attempted to escape.
     [Id. at 1036-37].

     In the instant matter, we permitted the admission of evidence
     that [Appellant] fled to Virginia immediately after the shooting.
     The evidence showed that when confronted by authorities in
     Virginia, [Appellant] fled in his vehicle before crashing it. He
     then fled on foot before entering a private residence and holding
     two men hostage until they were able to escape. The purpose of

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     this testimony was to show consciousness of guilt and to develop
     the story of the case for the jury. The jury was instructed as to
     the purpose of this testimony.2 As the Commonwealth points
     out in its brief, all evidence that is prejudicial to the [Appellant]
     is not necessarily [unfairly prejudicial].        The comment to
     Pennsylvania Rule of Evidence 403 instructs that unfair prejudice
     “means a tendency to suggest decision on an improper basis or
     to divert the jury's attention away from its duty of weighing the
     evidence impartially.” Comment to Pa.R.E. 403. We have
     indicated why we ruled that the evidence was relevant and agree
     that it was prejudicial to the [Appellant], however, based on our
     analysis do not find it to be unfairly prejudicial. We find our
     instruction to the jury quoted in [foot]note 2[] further
     ameliorated against any unfair prejudice. Based on our review
     of precedent, we do not believe this evidence was admitted in
     error and therefore decline to afford [Appellant] relief on this
     issue.
        2
           The instruction was as follows: “There was evidence,
        including the testimony of police officers and others, that
        showed that the defendant fled from the police and hid
        from the police by going to the State of Virginia and hiding
        in a house. The defendant maintains he did so because he
        was scared and his distrust of police. The credibility,
        weight, and effect of this evidence is for you to decide.
        Generally speaking, when a crime has been committed,
        and a person thinks he is or may be accused of committing
        it and he flees or conceals himself, such flight or
        concealment is a circumstance tending to prove a person is
        conscious of guilt. Such flight or concealment does not
        necessarily show consciousness of [guilt] in every case. A
        person may flee or hide for some other motive, and he
        may do so even though innocent. Whether the evidence of
        flight or concealment in this case should be looked at as
        tending to prove guilt depends upon the facts and
        circumstances of this case, and especially upon motive
        that may have prompted the flight or concealment. You
        may not find the defendant guilty solely on the basis of
        evidence of flight or concealment.”        Trial Transcript,
        1/28/16, pp. 69-70.

Trial Court Opinion, 7/13/16, at 9-11.       We agree with the trial court’s

assessment.

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      Appellant’s flight to, presence in, and concealment in Virginia, as well

as his additional crimes and statements there, were admissible under

Pa.R.E. 404(b)(2) as both res gestae evidence and to prove Appellant’s

consciousness of guilt. The trial court properly weighed the probative value

of the evidence in the light of the potential for unfair prejudice in accordance

with Pa.R.E. 404(b)(2). Moreover, the trial court provided a cautionary jury

instruction explaining the limited purpose of this evidence.         We, thus,

discern no abuse of the trial court’s discretion in admitting this evidence.

Appellant is not entitled to relief.

      Trial Court’s Responses to Jury’s Questions

      In his third issue on appeal, Appellant challenges the trial court’s

supplemental instructions to the jury. As noted above, the jury sent notes

from the jury room with 3 questions, one of which the trial court asked them

to clarify.   After clarification, the trial court responded by referencing its

prior instructions.

      Appellant avers that the trial court provided misleading, incomplete,

erroneous, and “conclusory” answers to the jury’s questions.        Appellant’s

Brief at 22-23. Appellant argues that the trial court should have repeated

the charges “in their entirety” in order to provide “the most straightforward,

appropriate, and direct answer” to the jury’s questions. Id. at 22. Appellant

argues that the trial court’s instructions unfairly prejudiced him since “it was




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clear that the jury was struggling with whether to find him guilty of Murder

in the 3rd degree or Voluntary [M]anslaughter[.]” Id.

      “Where a jury submits on its own motion a question to the court

indicating confusion or a request for clarification, the court may properly

clarify the jury’s doubt or confusion.” Commonwealth v. Kidd, 380 A.2d

416, 419 (Pa. Super. 1977) (citation omitted). “The feasibility and scope of

any supplemental instructions to the jury is a matter within the discretion of

the trial court.” Id. (citation omitted). The trial court may also “go beyond

the jury’s question in its response to the question.” Id. (citation omitted).

      The trial court addressed Appellant’s issue as follows:

      A review of the written jury instructions indicates that [the jury’s
      clarifying fourth question was] very likely[] the jury’s attempt to
      reword the prior question [that] deal[t] with the duty to retreat
      and the illegal possession of a firearm. While we cannot be
      certain that this is an attempt by the jury to reword the
      question[,] we can be certain that the jury did have the
      opportunity to submit another question, therefore, the
      [Appellant’s] claim that somehow there was a lost opportunity to
      clarify issues of law for the jury is not in accord with the facts.

      When answering questions from the jury during deliberations[,]
      the [c]ourt is mindful of further confusing issues, drawing
      improper attention to facts not at issue[,] and/or usurping the
      role of the jury as factfinder. We attempted to tailor our
      answers in this regard because we were also mindful that the
      jury had, in its possession, the instructions we had previously
      read to them detailing the elements of the crimes charged and
      the defenses raised. Because the [c]ourt did not understand the
      first question, we made the decision that it was better to err on
      the side of having the jury rephrase it, rather than answer the
      wrong question or give an answer that further confused them.
      Ultimately, the belief that the jury was confused is belied by
      their returning a verdict shortly after our final instruction [to]


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      them.    For these reasons[,] we decline to afford relief to
      [Appellant] on this issue.

Trial Court Opinion, 7/13/16, at 13-14.          We agree with the trial court’s

assessment. We discern no abuse of the trial court’s discretion and affirm

on the basis of the trial court’s Opinion. Id.

      Appellant’s Attempt to Impeach the Jury’s Verdict

      In his fourth issue on appeal, Appellant challenges the trial court’s

denial of his “Post-Trial/Pre-Sentence Motion” in which he sought to arrest

the judgment and reconvene the jury in order to impeach the verdict based

on   the   purported   juror   confusion    regarding   the   supplemental   jury

instruction. No relief is warranted.

      “The refusal of a new trial on the basis of alleged juror misconduct is

within the sound discretion of the trial judge.” Commonwealth v. Trudell,

538 A.2d 53, 59 (Pa. Super. 1988). When ruling on a Motion in Arrest of

Judgment, “the trial court is limited to rectifying trial errors, and cannot

make a redetermination of credibility and weight of the evidence[.]”

Commonwealth v. Marquez, 980 A.2d 145, 147–48 (Pa. Super. 2009) (en

banc ) (citation omitted).

      It is well established that “a juror may not impeach [his] own verdict

after the jury has been discharged, and [that] a juror is not competent to

testify as to what transpired in the jury room.       Commonwealth v. Sero,

387 A.2d 63, 67 (Pa. 1978). This principle, known as the “no-impeachment”




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rule in common law, is embodied in Pennsylvania Rule of Evidence 606,

which provides in relevant part:

      (b) During an Inquiry into the Validity of a Verdict

      (1) Prohibited Testimony or Other Evidence. During an inquiry
      into the validity of a verdict, a juror may not testify about any
      statement made or incident that occurred during the jury's
      deliberations; the effect of anything on that juror's or another
      juror's vote; or any juror's mental processes concerning the
      verdict. The court may not receive a juror’s affidavit or evidence
      of a juror’s statement on these matters.

      (2) Exceptions. A juror may testify about whether:

      (A) prejudicial information not of record and beyond common
      knowledge and experience was improperly brought to the jury’s
      attention; or

      (B) an outside influence was improperly brought to bear on any
      juror.

Pa.R.E. 606(b).

      The no-impeachment rule reflects a policy of “balancing the aim to

ensure fair and impartial decision-making with the interests in confidentiality

of jury deliberations and finality of duly rendered verdicts.”   Pratt v. St.

Christopher’s Hosp., 866 A.2d 313, 320 (Pa. 2005) (footnotes omitted).

Courts recognize that jury “deliberations are secret and their inviolability

must be closely guarded.”    Friedman v. Ralph Bros., Inc., 171 A. 900,

901 (Pa. 1934).     See also Pratt, supra at 325 (noting that the clear

purposes of the no-impeachment rule are “to discourage harassment of

jurors by losing parties, encourage free and open discussion among jurors,




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reduce incentives for jury tampering, promote verdict finality, and maintain

the viability of the jury as a judicial decision-making body.”).

      Both the common law and Pa.R.E. 606(b) acknowledge two narrow

exceptions to the no-impeachment rule. First, a court may admit testimony

concerning whether “prejudicial information not of record and beyond

common knowledge and experience was improperly brought to the jury’s

attention[.]” Pa.R.E. 606(b)(2)(A); Pratt, supra at 319. Second, a court

may allow post-trial testimony regarding extraneous influences that might

have affected the jury during its deliberation. Pa.R.E. 606(b)(2)(B); Pratt,

supra at 319.

      Here, Appellant does not argue that prejudicial information not of the

record and beyond common knowledge was improperly brought to the jury’s

attention. Nor does he suggest that an outside influence affected the jury

during its deliberation.     Appellant’s assertions do not fall under any

exception to the no-impeachment rule.          Thus, the trial court properly

exercised its discretion in denying Appellant’s Motion.

      Involuntary Manslaughter Instruction

      In his fifth issue on appeal, Appellant avers that the trial court erred in

failing to instruct the jury regarding Involuntary Manslaughter.

      Our standard of review in assessing a trial court’s jury instruction is as

follows:

      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated

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      portions, to determine if the instructions were improper. We
      further note that[] it is an unquestionable maxim of law in this
      Commonwealth that 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). “The

trial court is not required to give every charge that is requested by the

parties and its refusal to give a requested charge does not require reversal

unless the Appellant was prejudiced by that refusal.”     Commonwealth v.

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

      “A person is guilty of involuntary manslaughter when as a direct result

of the doing of an unlawful act in a reckless or grossly negligent manner, or

the doing of a lawful act in a reckless or grossly negligent manner, he causes

the death of another person.” 18 Pa.C.S. § 2504.

      The trial court addressed Appellant’s challenge to the jury instructions

as follows:

      The defense mounted in this case, including the testimony from
      [Appellant] himself, was that [Appellant] did in fact discharge his
      weapon purposefully at the two victims based on his belief that
      he was defending both himself and the other two individuals in
      the car from an attack by Moore and Adams. There are no facts
      of record to suggest that [Appellant] discharged his firearm in a
      grossly negligent or reckless ma[nn]er but rather that the act of
      firing [the] gun was intentional. Under questioning from his
      attorney, David Beyer, [Appellant] testified as follows:

         Q: Okay. What happened next?




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J-S31017-17


         A: He pulled him down. Hector is coming around. And I
         thought I had to do what I had to do to protect my life, to
         protect Janay’s life, to protect Hector’s life.

         Q: What was going on in your mind at that time?

         A: Shoot and run. Protect. I don’t know, protect myself.

      This is only one portion of the record wherein [Appellant]
      acknowledges that his action in firing his gun was an intentional
      act, however, there are numerous portions of his testimony that
      demonstrate this. [Appellant] can point to no evidence of record
      that would establish that his action in firing the gun amounted to
      recklessness or gross negligence and therefore it was not
      improper to refuse the charge of involuntary manslaughter. The
      facts of record simply did not support such an instruction.

Trial Court Opinion, 7/13/16, at 15-16 (citation omitted).

      Our review of the record supports the trial court’s assessment.

Appellant was not entitled to an instruction on involuntary manslaughter and

the trial court did not err in refusing to provide such instructions to the jury.

We discern no abuse of the trial court’s discretion.

      Recusal

      In his sixth issue on appeal, Appellant challenges the trial court’s

denial of his Motion to Recuse.

      Appellate courts presume judges are fair and competent.             In re

Lokuta, 11 A.3d 427, 435 (Pa. 2011). We review the denial of a motion to

recuse for an abuse of discretion, while “recognizing that the judge himself is

best qualified to gauge his ability to preside impartially.” Commonwealth

v. Harris, 979 A.2d 387, 392 (Pa. Super. 2009) (citations omitted).




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      A jurist’s impartiality is called into question whenever there are
      factors or circumstances that may reasonably question the
      jurist’s impartiality in the matter. There is no need to find actual
      prejudice, but rather, the appearance of prejudice is sufficient to
      warrant the grant of new proceedings.

Lokuta, supra at 435-36 (internal quotation marks and citations omitted).

      The party requesting recusal has the burden “to produce evidence

establishing bias, prejudice[,] or unfairness[,] which raises a substantial

doubt as to the jurist’s ability to preside impartially.”   Arnold v. Arnold,

847 A.2d 674, 680 (Pa. Super. 2004). If the judge determines he or she can

be impartial, the judge must then decide “whether his or her continued

involvement in the case creates an appearance of impropriety and/or would

tend to undermine public confidence in the judiciary.”           Chadwick v.

Caulfield, 834 A.2d 562, 571 (Pa. Super. 2003) (citations omitted).

      The trial court addressed Appellant’s issue as follows:

      Simply put, the investigation pursued by the Office of Attorney
      General that was ongoing at the time of the trial in this case has
      nothing whatsoever to do with this case.            The Court was
      questioned in regards to a matter that occurred prior to
      [Appellant’s] birth.    Moreover, when asked what conflict of
      interest [Appellant] thought existed his reply was, “it isn’t really
      —has no relation.” This [c]ourt did reflect at the time of the
      initial objection by [Appellant] on his ability to proceed in a fair
      and impartial manner and is satisfied now, as then, that no
      actual or potential conflict of interest existed. [Appellant] has
      produced absolutely no evidence of “bias, prejudice, or
      unfairness necessitating recusal.”

Trial Court Opinion, 7/13/16, at 8 (citation omitted). We agree with the trial

court’s assessment and conclude that Appellant failed to produce or point to

any evidence to overcome the presumption that the trial court is fair and

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J-S31017-17


competent.      Accordingly, the trial court properly exercised its discretion in

denying Appellant’s recusal motion.

      Discretionary Aspects of Sentence

      Appellant next challenges the imposition of consecutive rather than

concurrent sentences.         This implicates the discretionary aspects of his

sentence.    Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super.

2010).

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary    sentencing    issue,   we   conduct   a   four-part   analysis   to

determine:

         (1) whether appellant has filed a timely notice of appeal,
         see Pa.R.A.P. 902 and 903; (2) whether the issue was
         properly preserved at sentencing or in a motion to
         reconsider and modify sentence, see [Pa.R.Crim.P. 720];
         (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
         2119(f); and (4) whether there is a substantial question
         that the sentence appealed from is not appropriate under
         the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

      In the instant case, our careful review of the record reveals that

Appellant did not include in his Brief a separate Rule 2119(f) Statement, and




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the Commonwealth has objected to this defect.8       Thus, we find that the

defect is fatal.9

       Because we conclude that Appellant failed to preserve his challenge to

the discretionary aspects of his sentence, we will not address the merits of

this claim.

       Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




____________________________________________


8
 This Court may overlook an appellant’s failure to comply with Rule 2119(f)
where the Commonwealth fails to object to the omission and a substantial
question is obvious from the appellant’s brief. Commonwealth v. Kneller,
999 A.2d 608, 614 (Pa. Super. 2010).
9
   Moreover, Appellant’s challenge to his consecutive sentences fails to
present a substantial question. Commonwealth v. Gonzalez-Dejusus,
994 A.2d 595, 598 (Pa. Super. 2010) (“Generally speaking, the court’s
exercise of discretion in imposing consecutive as opposed to concurrent
sentences is not viewed as raising a substantial question that would allow
the granting of allowance of appeal.”). Appellant’s actual argument section
also fails to make this particular argument, and Appellant instead argues
that the trial court “failed to consider” and weigh various mitigating
sentencing factors. See Appellant’s Brief at 36-39.



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