J-S75022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ANTHONY D. BAKER

                            Appellant                    No. 764 EDA 2015


              Appeal from the Judgment of Sentence March 6, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0003700-2013


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                            FILED OCTOBER 12, 2016

       Anthony Baker appeals from the March 6, 2014 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

jury trial convictions for first-degree murder, firearms not to be carried

without a license, and possession of an instrument of crime.1 We affirm.

       On February 9, 2012, Baker was involved in an altercation near the

intersection of Hansberry and Marion Streets in Philadelphia. N.T., 2/25/14,

at 60-62. The altercation began as an argument between the victim and a

group of other males, including Baker.         Id.   The argument quickly turned

physical, and a fistfight broke out between the victim and another male,



____________________________________________


       1
           18 Pa.C.S. § 2502(a)-(c), 6016(a)(1), and 907(a), respectively.
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Steve Dickey, in the middle of Marion Street.2 Id. at 64. Baker and other

males watched the fight and encouraged Dickey.          Id. 65-66. The fighters

then crashed through a side door into a residence where the victim’s

girlfriend lived. Id. at 64-65.

       After breaking the door, Dickey got up and left the residence, rejoining

the other males. Id. at 70. The victim got up from the floor and walked

back outside, following Dickey and the other males.           Id. at 71.   Once

outside, the victim took off his shirt and stood in the middle of Marion

Street, yelling for the men to come back and fight him individually. Id. at

71, 75.    Several of the men, including Baker, then surrounded the victim.

Id. at 170-71. Baker pulled out a firearm and began to shoot at the victim.

N.T., 2/26/14, at 89, 118-19.          The victim ran down Marion Street toward

Queens Lane while Baker continued to fire at him. N.T., 2/25/14, at 74-77.

When a police officer arrived at the scene, he found the victim lying

unresponsive in the street between two parked cars. N.T., 2/26/14, at 25-

26. Paramedics pronounced the victim dead at the scene of the shooting.

N.T., 2/25/14, at 150.

       On March 6, 2014, a jury found Baker guilty of first-degree murder,

firearms not to be carried without a license, and possession of an instrument

of crime. N.T., 3/6/14, at 11-12.

____________________________________________


       2
       An unidentified third person joined in the fight and assisted the other
male in assaulting the victim. N.T., 2/25/14, at 69-70.



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       On March 6, 2014, the trial court sentenced Baker to the following

concurrent terms of incarceration: Imprisonment without the possibility of

parole for the first-degree murder conviction; 3½ to 7 years’ incarceration

for the firearms not to be carried without a license conviction; and 2½ to 5

years’ incarceration for the possessing an instrument of crime conviction.

On May 30, 2014, Baker filed a petition pursuant to the Post Conviction

Relief Act.3      The trial court granted the petition on March 10, 2015,

reinstating Baker’s direct appeal rights nunc pro tunc. Baker filed a timely

notice of appeal on March 11, 2015. Both Baker and the trial court complied

with Pennsylvania Rule of Appellate Procedure 1925.

       Baker raises the following issues on appeal:

            (1)   Whether the [t]rial court abuse[d] its discretion and
                  unfairly prejudice[d] [Baker] when the [trial c]ourt
                  denied a [m]otion for [m]istrial after, on three (3)
                  separate occasions, the jury informed the [trial
                  c]ourt that the jurors were deadlocked and could not
                  arrive at a unanimous verdict.

            (2)   Whether the [t]rial court abuse[d] its discretion and
                  unfairly prejudice[d] [Baker] when the [trial c]ourt
                  denied a motion for a mistrial after, in front of the
                  jury, the prosecutor shouted and requested that the
                  [t]rial [c]ourt admonish a witness.

Appellant’s Br. at 4.

       The decision to grant a mistrial is a matter solely within the discretion

of the trial court and is reversible only where the trial court abused its
____________________________________________


       3
           42 Pa.C.S. §§ 9541-9546.



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discretion.   Commonwealth v. Savage, 602 A.2d 309, 312 (Pa. 1992).

This Court has articulated the standard of review when an appellant is

alleging that a mistrial was improperly denied:

         [T]he trial court is vested with discretion to grant a mistrial
         whenever the alleged prejudicial event may reasonably be
         said to deprive the defendant of a fair and impartial trial.
         In making its determination, the court must discern
         whether misconduct or prejudicial error actually occurred,
         and if so, . . . assess the degree of any resulting prejudice.
         Our review of the resulting order is constrained to
         determining whether the court abused its discretion.

Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa.Super. 2010) (quoting

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.Super. 2009)).

“Discretion is abused when the course pursued represents not merely an

error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a

result of partiality, prejudice, bias or ill will.” Commonwealth v. Widmer,

744 A.2d 745, 753 (Pa. 2000) (citation omitted).

      Baker’s first claim challenges the trial court’s denial of two motions for

a mistrial, for which Baker moved when the jury indicated for the second

and third time that it had reached an impasse in deliberations.        Decisions

regarding the proper duration of jury deliberations rest “within the sound

discretion of the trial court, whose decision will not be disturbed unless there

is a showing that the court abused its discretion or that the jury’s verdict

was the product of coercion or fatigue.”      Commonwealth v. Greer, 951

A.2d 346, 354 (Pa. 2008) (citation and internal quotation marks omitted).

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“Relevant factors in this assessment include the charges at issue, the

complexity of the issues, the amount of testimony to consider, the length of

the trial, the solemnity of the proceedings, and indications from the jury on

the possibility of reaching a verdict.” Commonwealth v. Moore, 937 A.2d

1062, 1077 (Pa. 2007) (citation omitted).

       Baker’s trial lasted five days, during which the parties presented four

days of testimony from 16 witnesses.             Trial Court 1925(a) Opinion, filed

10/30/15, at 9 (“1925(a) Op.”).            On February 28, 2014, the trial court

charged the jury and allowed it to commence deliberations at approximately

4:30 p.m.      N.T., 2/28/14, at 140-43.         Shortly thereafter, the trial court

excused the jury for the weekend and instructed it to resume deliberations

on Monday, March 4, 2014.            Id. at 156-57.     On March 4, 2014, at 3:52

p.m., the jury sent a note to the trial court, stating that it was “at an

impasse” and “fel[t that] this matter will not be resolved.”                Jury Note,

3/4/14.       The    trial   court   allowed     both   defense   counsel    and   the

Commonwealth to review the note. N.T., 3/4/14, at 13-14. Upon Baker’s

request, the trial court dismissed the jury for the day and recommenced

deliberations on the following day.4 Id. at 15-16.


____________________________________________


       4
        The trial court made only a brief statement to the jury regarding the
length of deliberations: “Ladies and gentlemen, it’s coming up on 4:30 p.m.
You have now had this case in deliberation for less than eight hours.
Nevertheless, it’s been a long day.” N.T., 3/4/14, at 15.




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       On March 5, 2014, at 11:52 a.m., the jury sent a second note to the

trial court:    “[W]e the jury after further deliberation came to a hopeless

deadlock.” Jury Note, 3/5/14, at 11:52 a.m. Baker moved for a mistrial or,

alternatively, for the trial court to give a Spencer5 charge. N.T., 3/5/14, at

4-5, 8. The trial court denied Baker’s motion and did not give the Spencer

charge, finding the charge premature after approximately ten hours of

deliberation.    Id. at 5-6.      Instead, the trial court instructed the jury to

resume its deliberations after a lunch break.6 Id. at 7.

       Later that same afternoon, at 3:05 p.m., the jury sent a third note to

the trial court:    “[W]e the jury have readdressed the issues as instructed
____________________________________________


       5
        A Spencer charge, guided by our Supreme Court’s decision in
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971), instructs a
deadlocked jury “to continue to deliberate, with an open mind to
reconsideration of views, without giving up firmly held convictions.” Greer,
951 A.2d at 361.
       6
        The trial court briefly spoke to the jury regarding the length of
deliberations:

           You, ladies and gentlemen, are well aware that
           deliberations commenced yesterday. It’s now coming up
           on 12 noon. I’m counting the hours. In my view, you had
           this case now for some ten hours.

           Your lunch will be here in about one half hour.

           After due consideration, this Court has determined that it’s
           probably best for all if you, ladies and gentlemen, have
           your lunch, after which you will be sufficiently refreshed
           that you can resume your deliberations.

N.T., 3/5/14, at 7.



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and we still are at an impasse.” Jury Note, 3/5/14, 3:05 p.m. Baker once

again moved for a mistrial but did not request a Spencer charge, arguing

that such an instruction would be inadequate and that dismissal of the jury

was warranted.        N.T., 3/5/14, at 9.        The Commonwealth requested a

Spencer charge. Id.

       The trial court denied the motion for mistrial, at which time Baker

requested that the trial court “make inquiry as to no matter how many times

[the jury is] asked to deliberate will they come to the same conclusion?” Id.

at 10.     The Commonwealth objected to this request, arguing that such an

inquiry would inappropriately make counsel and the court parties to the

deliberation. Id. Upon reconvening, the trial court posed a question to the

foreperson of the jury: “In your judgment, is there a reasonable probability

of returning a unanimous verdict on any of the charges lodged against this

defendant?”7      Id. at 12. The foreperson answered “[n]o.”     Id. at 10, 12.

Based on that response, the trial court issued a Spencer charge.8        Id. at
____________________________________________


       7
        The trial court also asked the jury whether they required any
additional or clarifying instructions on the law. N.T., 3/5/14, at 11.
       8
           The trial court charged the jury as follows:

            You, ladies and gentlemen, must well appreciate the time,
            anxiety and expense involved in a re-trial of this matter.
            There are no other 12 people any more able to resolve the
            issues than you are, ladies and gentlemen.

            Please keep the following in mind: You realize, of course,
            that any verdict you return must [be] a unanimous verdict.
(Footnote Continued Next Page)


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12-13.    The trial court then dismissed the jury early, instructing them to

resume deliberations the next morning. Id. at 14. On March 6, 2014, the

jury resumed its deliberations.9          1925(a) Op. at 11.   The jury reached its

unanimous verdict the same day. N.T., 3/6/14, at 10-11.

                       _______________________
(Footnote Continued)

          That you have a duty, ladies and gentlemen, to consult
          with one another and to deliberate with a view to reaching
          a unanimous agreement if it can be done without violence
          to individual judgment.

          That each juror must decide the case for himself or herself
          but only after an impartial consideration of the evidence
          with his and her fellow jurors.

          That a juror should not hesitate to reexamine his or her
          own views and to change his or her opinion if convinced
          that it is erroneous, but no juror should surrender his or
          her honest convictions as to the weight or [e]ffect of the
          evidence simply because of the opinion o[f] his fellow
          jurors or for the mere purpose of returning a unanimous
          verdict.

          I am mindful that you, ladies and gentlemen, have been at
          this, excluding breaks and lunch, for two working days
          now. However, I want you, members of the jury, to keep
          the foregoing in mind because this Court must send you
          back to the jury deliberation room to give further
          consideration to both the evidence and the law to see if
          you can arrive at a unanimous verdict.

          Bear in mind that if the Court can be of any assistance to
          you in any way in this effort, I will be happy to oblige.

N.T., 3/5/14, at 13.
      9
        On March 6, 2014, the jury asked the trial court to read the
testimony of the victim’s girlfriend. Jury Note, 3/6/14, 2:11 P.M. The
parties agreed to allow the reading and the trial court read back the
testimony. N.T., 3/6/14, at 4-8.



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      Baker argues that the trial court abused its discretion and coerced the

jury into reaching a unanimous verdict. Appellant’s Br. at 12. Baker focuses

on the communications between the trial court and the jury, arguing that the

jury’s use of the term “hopeless deadlock” in the second note, along with the

jury foreperson’s indication to the trial court of no reasonable probability of

returning a unanimous verdict in a colloquy after the third note, clearly

expressed the jury’s settled inability to reach a unanimous verdict.           Id.

Based on these communications, Baker argues that the jury’s verdict was

the product of coercion. Id. With due deference to the trial’s court sound

discretion in determining the appropriate length of jury deliberations in a

particular case, Commonwealth v. Johnson, 668 A.2d 97, 108 (Pa. 1995),

we disagree.

      In Commonwealth v. Cook, this Court found that the trial court did

not abuse its discretion by directing the jury to continue deliberating after it

had twice indicated a deadlock. 557 A.2d 421, 425 (Pa.Super. 1989). This

Court agreed with the trial court that the jury was not overworked, fatigued,

or coerced where the jury deliberated on a robbery case involving 130 pages

of testimony for 11 hours over two days, the jury was not sequestered, and

the trial court granted breaks for meals and comfort.           Id.   In those

circumstances, this Court found the trial court acted within its discretion

when it issued two supplemental charges contemplated by Spencer and

returned the    jury   to   deliberations.   Id. at 424-25.       Similarly,    in

Commonwealth v. Jorden, this Court found that the trial court did not

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abuse its discretion by twice delivering Spencer charges when the jury

indicated it was deadlocked after approximately five and eight hours of

deliberation, following a four-day trial involving charges of rape, criminal

conspiracy, and possessing instruments of crime.         482 A.2d 573, 576-78

(Pa.Super. 1984).10

       Baker’s trial lasted five days and the jury heard four days of testimony

from 16 witnesses. At the time of the jury’s second note, which described a

“hopeless deadlock,” the jury had deliberated for only ten hours.               In

response, the trial court instructed the jury to resume deliberations after a

lunch break. When the jury, later that same afternoon, stated that it was

“still . . . at an impasse,” the trial court assessed the jury’s ability to reach a

decision and, based upon that assessment, issued a Spencer charge and

returned the jury to its deliberations.

       Baker’s focus on the jury’s use of the term “hopeless” to describe its

deadlock, and on the jury foreperson’s one-word answer to the trial court’s

inquiry, is unduly narrow. Considering the severity of the charges against

Baker and the volume of testimony presented, the trial court appropriately

returned the jury to its deliberations despite multiple indications of


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       10
        Like the appellant in Jorden, Baker “does not contest the content of
the charges given by the trial court. Indeed, such a contention would be
meritless because examination of both charges demonstrates that they
compare favorabl[y] with the standards recommended by the supreme court
in Spencer.” Jorden, 482 A.2d at 578.



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deadlock.11 As in Cook and Jorden, the trial court provided a non-coercive

environment, here allowing the jury to take multiple breaks and twice

sending it home early, the latter time so it could “start fresh” the next day.

The trial court did not abuse its discretion.

       Baker’s other issue challenges the denial of a mistrial based on

prosecutorial misconduct. We apply the following standard when reviewing

claims of prosecutorial misconduct:

            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 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.
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       11
       At the conclusion of its analysis of this issue, the trial court
summarized its reasoning as follows:

            After a careful examination of the relevant factors, it is
            clear that this court properly denied [Baker]’s requests for
            a mistrial. Moreover, given the complexity of the issues
            involved, the conflicting evidence presented, the nature of
            the crimes charged, the demeanor of the witnesses[,] and
            the attentiveness of the jury during trial, this court
            concluded that the length of time the jury deliberated did
            not coerce the jury verdict.      Thus, the jury properly
            weighed the evidence and rendered a verdict in accordance
            therewith.

1925(a) Op. at 17.




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Commonwealth v. Bedford, 50 A.3d 707, 715-16 (Pa.Super. 2012)

(internal citations and quotations omitted).

      Baker’s claim involves an exchange among a character witness, the

prosecutor, and the trial court. Baker called a character witness to testify as

to Baker’s character for non-violence.         N.T., 2/28/14, at 45-46.   After

testifying and then being dismissed by the trial court, the witness made an

inappropriate comment to the jury and then confronted the prosecutor:

         After the prosecutor completed cross examination and
         [Baker’s] character witness was dismissed by [the trial]
         court, the witness improperly addressed the jury and
         stated “He’s a good kid.” N.T. 2/28/2014 at 48. The
         witness then approached the prosecutor and confronted
         her as he walked off the witness stand. Id. In response to
         the witness’s statement and conduct, the prosecutor
         addressing this court stated “I ask that that be stricken
         and the witness be admonished.” Id. at 48. [The trial]
         court, having witnessed the inappropriate behavior of
         [Baker’s] witness instructed the jury to disregard the
         remark before admonishing the witness outside of the
         jury’s presence. Id. at 48-53.

1925(a) Op. at 13-15. After the admonishment, Baker moved for a mistrial

based on the prosecutor’s conduct, arguing that the prosecutor “yelled” the

request at the trial court. N.T., 2/28/14, at 52. The trial court denied the

motion, noting that “the only party that has been injured by [the witness’s]

conduct is the Commonwealth.” Id.

      Baker argues that the prosecutor’s conduct in asking for the jury

instruction and admonishment constituted prosecutorial misconduct, as

“[t]he purpose of the prosecutor’s comments in front of the jury was to


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tarnish the credibility and potential impact of the character witness’s

testimony . . . because the cross-examination of the witness was not

effective.” Appellant’s Br. at 15. Thus, according to Baker, the prosecutor’s

conduct “precluded the jury from returning a true verdict.”         Id.   We

disagree.

      In response to allegedly prejudicial conduct by spectators, “[t]he trial

court may implement any appropriate remedy requested, including offering a

remedial instruction, removing the responsible spectator, or declaring a

mistrial.”   Commonwealth v. Sanchez, 36 A.3d 24, 47 (Pa. 2011). The

prosecutor requested a curative instruction and admonishment in response

to the witness’s inappropriate comment, and such a request for a curative

instruction was appropriate.     The trial court, based on its first-hand

observation of the witness’s conduct and the prosecutor’s response,

concluded that “[t]he prosecutor’s comment was a reasonable and probable

response to unwarranted hostile conduct.” 1925(a) Op. at 15. Moreover,

there is no support for Baker’s claim that the prosecutor either created jury

bias or prevented the jury from rendering a true verdict. See Bedford, 50

A.3d at 716 (“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.”); cf.

Commonwealth v. Culver, 51 A.3d 866 (Pa.Super. 2012) (finding

prejudice where prosecutor waived his finger in appellant’s face during




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opening and closing statements, mischaracterized testimony during closing

arguments, and misrepresented evidence before jury).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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