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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

MAX C. STINE

                        Appellant                   No. 2882 EDA 2014


       Appeal from the Judgment of Sentence September 18, 2014
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0005987-2013


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 21, 2016

     Max Stine appeals from the September 18, 2014 judgment of sentence

imposed following his conviction of first-degree murder, two counts of

aggravated assault, two counts of recklessly endangering another person,

and possessing an instrument of crime. We affirm.

     The present convictions arise from the shooting death of Jesus

Mendoza.      The Commonwealth established the        following facts.   At

approximately 3:15 a.m. on July 11, 2011, Corporal Michael Bishop of the

Norristown Borough Police Department, who had been responding to another

incident, heard automatic gunfire from a nearby alley. He proceeded to that

location and noticed Mr. Mendoza slumped against a building in Haws Alley.

The victim was unresponsive, bleeding, and clutching a knife in his hand.
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N.T., 6/9/14, at 52-58.     The coroner determined Mr. Mendoza died of

multiple gunshot wounds.      N.T., 6/10/14, at 26.     Twenty shell casings

recovered from the scene were determined to be an “AK type of

ammunition” fired from the same firearm. N.T., 6/12/14, at 109-113.

      Prior to the shooting, Appellant had been partying in Paul Hernandez’s

apartment, which was near Haws Alley.        N.T., 6/10/11, at 106, 112.   At

some point in the evening, Hernandez observed two males and a female

fighting on a nearby street. Id. at 113. Hernandez became involved in an

altercation with another group of men.      Hernandez and these men threw

rocks at each other.    Id. at 164.    Eventually, the female and one of the

males walked away together. Id. at 115. Hernandez told Appellant about

the incident, and Appellant went outside and retrieved an AK-47 weapon

from his vehicle.

      Later that evening, Hernandez again saw Mr. Mendoza, the victim, and

thought that Mr. Mendoza was one of the men who had been throwing rocks.

Id. at 169.   Hernandez went outside to confront him.        Id. at 118.   As

Hernandez approached, the victim produced a knife and Hernandez did the

same.   Id. at 119.     Hernandez heard a woman screaming not to fight.

Before the men could physically engage, Hernandez heard shots and saw Mr.

Mendoza fall to the ground.    Hernandez turned around and saw Appellant

holding the AK-47.     Id. at 120.    Appellant fired several more shots, and

Hernandez helped Appellant dispose of the gun’s case and some bullets.

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       The Commonwealth called as witnesses the three persons involved in

the fight observed by Hernandez. Jennifer Sheridan testified that she was

walking with a man named Danny. Id. at 69. She and Danny encountered

her ex-husband, Omar Trujillo. Id. at 64-65. Omar and Danny fought each

other. Id. at 72; N.T., 6/12/14, at 58. Mr. Mendoza, who was friends with

Ms. Sheridan and standing nearby, agreed to escort her home. The victim

stuck a knife in his sock and walked away with Ms. Sheridan. N.T., 6/10/11

at 75-76. After seeing Ms. Sheridan home, Mr. Mendoza walked back past

Hernandez’s apartment, whereupon Hernandez confronted him.                   Ms.

Sheridan did not witness the shooting.

       The Commonwealth additionally presented the testimony of Maria

Alvarez, the woman Hernandez heard screaming.          N.T., 6/12/14, at 11.

Alvarez was accompanied by Jose Ramirez. Id. at 5. Alvarez and Ramirez,

who fled as the fight started, suffered injuries from stray gunfire.1 H.R., a

juvenile who was present in Hernandez’s apartment, confirmed that

Appellant retrieved the AK-47, and he also heard Appellant say, “Let’s scare

them” when Appellant saw Ms. Sheridan, Omar, and Danny. N.T., 6/11/14,

at 24-25. Finally, H.R. testified that Appellant fired the gun at Mr. Mendoza.

Id. at 31.


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1
       These injuries formed the basis for the aggravated assault charges.



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      The jury convicted Appellant of the aforementioned crimes.             On

September 18, 2015, Appellant received the mandatory sentence of life

imprisonment. A timely notice of appeal followed.

      The trial court issued orders to file a Pa.R.A.P. 1925(a) statement of

matters complained of on appeal.           Thereafter, a series of attorney

withdrawals and appearances occurred, and the appointed attorneys ignored

the trial court’s orders to file a statement. The trial court experienced great

difficulty in attempting to satisfy its obligations to timely author an opinion

and transmit the record to this Court, while simultaneously respecting

Appellant’s appellate rights.   The trial court grappled with the competing

principles of deeming issues waived for failure to timely file a statement and

our precedents interpreting Rule 1925(c)(3), which permits us to remand for

filing of a Statement nunc pro tunc where counsel ineffectively failed to file a

statement.    See e.g. Commonwealth v. Thompson, 39 A.3d 335, 341,

n.11 (Pa.Super. 2012) (directing trial court to address an untimely

statement without direction for remand to avoid unnecessary delay). These

procedural complexities necessitated the filing of three Pa.R.A.P. 1925(b)

opinions.

      The trial court cited the concurring opinion in Commonwealth v.

Burton, 973 A.2d 428, 437 (Pa.Super. 2009) (en banc), wherein Judge

Stevens expressed concern that Rule 1925(c)(3) “gives defense criminal

attorneys the power to unilaterally extend time requirements in filing Rule

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1925(b) statements . . . there is now no consequence when a criminal

defense attorney files a late statement.” Trial Court Opinion, 2/13/15, at 12

(citing Burton, supra). The third opinion repeats this concern. Trial Court

Opinion, 11/24/15, at 3-4.2 The third opinion addressed the merits of the

issues and Appellant raises the same two issues for our review.

       I. Did the court abuse its discretion by charging the jury late on
          a Friday afternoon and advising the jury they would deliberate
          until 9:30 that night before adjourning until Monday morning,
          thereby improperly rushing the jury to judgment which, in
          fact, the jury brought back at 9:25 p.m.?

       II. Did the District Attorney improperly argue to the jury that the
           Defendant could not legally own an AK-47 rifle thus
           prejudicing the jury?

Appellant’s brief at 3.

       Appellant’s first issue avers that the trial court abused its discretion in

permitting the jury to deliberate until 9:30 p.m. The facts surrounding the

jury charge and deliberation are as follows.           The jury was brought in for

instructions at 12:55 p.m. on Friday.            However, the presiding judge, the

Honorable Joseph Smyth, felt ill and excused himself at 1:30 p.m.           Id. at

145.   One hour later, the Honorable Steven O’Neill appeared, stating that

Judge Smyth had been taken to the hospital.              Id. at 146.   The parties

discussed what action to take, including the possibility of discharging the
____________________________________________


2
    We appreciate the trial court’s cogent and thorough analysis, and
recognize the trial court’s frustration in the difficulties it encountered in
attempting to receive the counseled Rule 1925(a) statement.



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jury for the weekend. Id. at 147. Judge O’Neill brought the jury back in to

inform them what had happened to Judge Smyth, and explained that he

would recharge the jury instead of trying to simply fill in any gaps left by the

earlier instructions. He stated he needed to review the materials and discuss

them with the attorneys, which would cause further delay, and told the jury

the following:

      Now, one of the options that was discussed as to whether this
      jury would return Monday, simply return Monday and receive the
      Charge of the Court, hopefully Judge Smyth’s Charge of the
      Court or at least the Charge of the Court and commence their
      deliberations at an earlier hour. That is not what was planned
      by anybody today. We recognize that including Judge Smyth
      and the counsel in this case.

      However, we did discuss as counsel – with counsel as to whether
      that was an option. Now, I believe it was never discussed when
      the voir dire in this case was [sic] could the case go over until
      Monday, if it did go over into Monday. I generally throw a
      cautious request or a question when I do voir dire, but I don’t
      know whether it was done in this case. So I don’t know if people
      are available. . . .

      So I am assuming, unless I hear from the jury’s consensus – and
      I will send you back as to whether that is what you would choose
      to come back Monday and have the charge start then. If not, we
      will do it today.

Id. at 154-56.    The jury was then dismissed, with the judge stating the

current plan was to reconvene and charge at 3:00 p.m. Id. at 158. At 3:10

p.m., the jury was brought back. Judge O’Neill noted that with the late hour

there was a concern about whether everyone could come back on Monday if

a verdict was not reached:



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     General practice, jurors deliberate until they reach a verdict,
     whatever that takes. There’s no hour set. There’s no time.
     Now, in this case, it becomes clear to me that with a late hour,
     that this jury unless there’s something and, again, I’m only
     going to ask you to raise a hand, if it is almost impossible for
     you to come back Monday, then I will have to individually
     discuss this with you to determine how we will handle it.

     But, again, if this jury went home tonight with a cautionary
     instruction which I am assuming Judge Smyth gave you because
     you don’t have this case yet, you don’t have the Charge of this
     Court. And then you would return Monday, that’s quite normal
     what we do, but the only thing I understand in the case it wasn’t
     part of the voir dire as to it going over into Monday, and I think
     we as judges sometimes assume that jurors just get that. They
     don’t often.

     Is there anybody on this jury and, again, I only seek a raise of
     hand that absolutely, positively cannot return Monday for the
     Charge of the Court the deliberation for a verdict[?]

Id. at 160-61. One juror raised his hand, and both attorneys consented to

excusing him for cause.    Upon the jury’s request, and with consent of

counsel, the judge spoke to the jury off the record.    Id. at 167.       Judge

O’Neill went back on the record to state what happened during that

conversation:

     This jury wants the charge tonight. That’s what we are going to
     do. They were not clear. They said they want you to know that
     we would take the charge.

     They wanted to know how long we deliberate. I said, generally,
     probably until maybe 9:30; and if not, we will bring you back.
     Let me just take that clear to them, if they did not have a
     verdict, I would bring them back. That’s it.

Id. Appellant objected, stating the judge was attempting to force a verdict

and asked to charge on Monday.        At 4:00 p.m., the jury entered the

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courtroom for instructions.   Judge O’Neill once again stated on the record

that he spoke to the jurors “at which time I was advised by that jury that it

is their preference to continue on with the Charge in this case.” Id. at 179.

       The charging concluded at 5:15 p.m. Id. at 248. At 9:00 p.m., the

court answered the jury’s request for a recharge on first and third-degree

murder. Id. at 255. Judge O’Neill stated, “I intend to abide by your request

that you want – the deliberations not to go past 9:30. So done. If you can

reach a verdict, you reach a verdict.” Id. at 256. At 9:10 p.m., the jury

was sent back for and returned a verdict at 9:25 p.m. Id. at 263.

       With the foregoing facts in mind, we now turn to the application of the

law.   The extent of time that a jury is kept for deliberation is a matter

entrusted to the trial judge, and we review challenges to those decisions

under an abuse of discretion standard.     Commonwealth v. Chester, 587

A.2d 1367, 1380 (Pa. 1991).

       Appellant argues this discretion was abused in that the verdict was a

product of coercion or an overworked or fatigued jury. Appellant’s brief at

10.    He asks us to consider 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. Id.

       While these factors play a role in the abuse of discretion analysis as

applied to jury deliberations, we note that the cases discussing these

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matters generally do so only where the jury is ordered to continue

deliberating after indicating an inability to reach a verdict.          See e.g.

Commonwealth         v.   Smith,     131    A.3d   467,    475   (Pa.     2015);

Commonwealth v. Marion, 981 A.2d 230, 235 (Pa.Super. 2009);

Commonwealth         v.   Greer,    951     A.2d   346,    354   (Pa.     2008);

Commonwealth v. Moore, 937 A.2d 1062, 1077 (Pa. 2007).                Thus, the

cited factors are viewed with an eye towards determining whether or not the

court erred in forcing further deliberations.       “Each case differs in the

complexity of the issues presented, the seriousness of the charges, the

number of charges to be considered, the amount of testimony to be digested

and reviewed . . . [to determine whether to] accept the jury's conclusion

that   they   were   hopelessly    deadlocked.”     Chester,     supra    (citing

Commonwealth v. Monte, 329 A.2d 836, 841 (Pa. 1974)).

       That the harm to be guarded against is forcing a jury to reach a

verdict after deadlock is apparent when considering that Chester cited

Commonwealth v. Moore, 157 A.2d 65 (Pa. 1959) for the proposition that

a verdict brought about by judicial coercion is a legal nullity. Moore stated:

       The doctrine of compelling a jury to unanimity by the pains of
       hunger and fatigue, so that the verdict in fact be founded not on
       temperate discussion and clear conviction, but on strength of
       body, is a monstrous doctrine that does not stand with
       conscience, but is altogether repugnant to a sense of humanity
       and justice. A verdict brought about by judicial coercion is a
       nullity in the eyes of the law. If the instant verdict were brought
       about by any compulsion or if there was anything of record to
       indicate that the instant verdict was reached because of the

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      jurors' desire for rest and sleep or fatigue, we would have no
      hesitancy in setting such verdict aside. However the instant
      record does not disclose such motivation for this verdict.

Id. at 70 (citation and quotation marks omitted).

      Herein, there is no concern of judicial coercion since the jury was not

impelled to keep deliberating after becoming deadlocked. The members did

not indicate any inability to reach a verdict and the jury was not ordered to

do anything beyond carrying out the duty to carefully deliberate. In fact, the

record indicates the jury wished to receive the case on Friday and stay

through the evening. The trial court obviously considered the jury’s ability

to cogently decide the matter when it observed that “all jurors are hale and

hearty and prepared to deliberate.” N.T., 6/13/14, at 157. Only one juror

indicated he was unavailable for deliberation on Monday, and he was

excused.   Thus, it is clear the jurors were willing and ready to return on

Monday if needed.     We find no abuse of discretion in accommodating the

jury’s request to decide the case late on a Friday.

      In this regard, we note that in Commonwealth v. Hetzel, 822 A.2d

747, 767 (Pa.Super. 2003), the appellant claimed she was denied a fair trial

because the jury was permitted to deliberate past midnight.           We attached

significance to the jury’s role in requesting to keep deliberating:

      Hetzel next claims that she was denied a fair trial when the trial
      court permitted jury deliberations to extend until just past
      midnight. She concedes that the court gave the jury the choice
      of continuing deliberations or going home. . . .



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       In reviewing this claim we apply an abuse of discretion standard
       to determine whether the verdict was the product of coercion of
       an overworked or fatigued jury. . .we find no abuse of discretion.
       The jurors were given the opportunity to depart for the evening
       and chose not to do so. The court acted properly.

Id. at 767 (footnotes and citations omitted). The jury herein had the similar

option of ceasing deliberations by simply going home for the weekend and

resuming on Monday.3

       We therefore discern Appellant’s argument to be nothing more than an

attack on the fact the jury reached a verdict in four hours. Appellant does

not cite any case for this argument, and we recently rejected a similar

argument.     Commonwealth v. Ferguson, 107 A.3d 206, 212 (Pa.Super.

2015) (rejecting claim that Appellant was denied a fair trial due to jury

reaching a verdict in one hour and six minutes).        There is no basis to

conclude the jury rushed to a verdict.



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3
   Appellant’s argument to the contrary is based on sheer speculation. “It
appears abundantly clear that . . . at least one (1) or more members of the
jury compromised their opinion so that the jury would not have to return
Monday morning.” Appellant’s brief at 11-12. This argument additionally
ignores the fact the sole juror who indicated an inability to return Monday
was excused.

Moreover, if the jury were truly concerned with ignoring instructions and
simply going home, as Appellant suggests, it could have returned a verdict
earlier in the evening. That the jury had a question about the degrees of
homicide, and came to a verdict shortly thereafter, demonstrates the jurors
faithfully executed their duties.



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      Appellant’s second claim concerns comments made by the prosecutor

regarding the legality of a fully automatic AK-47 assault rifle. Specifically,

he complains about the assistant district attorney’s references during closing

argument that ownership of an AK-47 was illegal and asks for a new trial.

The prosecutor stated that the AK-47 in this case was “in all likelihood, fully

automatic and highly illegal.”    N.T., 6/12/14, at 62.      Appellant objected,

stating that a fully automatic AK-47 can be purchased at Wal-Mart. Id. The

prosecutor disagreed, responding “I invite you to go to a Wal-Mart and ask

the clerk behind the counter if you could buy a fully automatic AK-47, and

see what he says[.]”     Id.   Counsel did not respond, nor did he request a

cautionary instruction or a mistrial. Judge O’Neill did not take any action.

The summation continued.         Later, the prosecutor again referenced the

legality of an AK-47. “If it is fully automatic, it is illegal. But if it is semi-

automatic, you can buy a semi-automatic AK-47 in a store.”           Id. at 103.

Appellant did not object to this statement.

      Appellant argues that the ADA introduced facts not in evidence, and

highlights that some fully automatic AK-47s remain legal under federal law.

Appellant’s brief at 13 (citing the National Firearms Act). Thus, according to

Appellant, a fully automatic firearm in question is theoretically legal.       He

requests a new trial “because the court did not overrule the prosecutor’s

statement that an AK-47 is per se illegal.” Appellant’s brief at 15.




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      We find this claim waived. Appellant did not request a mistrial when

objecting to these remarks, nor did he request a cautionary instruction from

the judge in response to the prosecutor’s comments. “In order to preserve a

claim of prosecutorial misconduct for appeal, a defendant must make an

objection and move for a mistrial.”      Commonwealth v. Sasse, 921 A.2d

1229, 1238 (Pa.Super. 2007). Since Appellant failed to do so, the claim is

waived.

      Even if not waived, we would not find the comments prejudiced the

jury’s deliberations.   “Generally, a prosecutor's arguments to the jury are

not a basis for the granting of a new trial unless the unavoidable effect of

such comments would be to prejudice the jury, forming in their minds fixed

bias and hostility towards the accused which would prevent them from

properly   weighing     the   evidence    and   rendering   a   true   verdict.”

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa.Super. 2008). We note

that the prosecutor delineated that a fully automatic AK-47 is illegal while a

semi-automatic one is not. The jury was aware that the firearm in question

was never recovered, a fact the prosecutor acknowledged during his

summation. N.T., 6/12/14, at 103. In this regard, we note that the legal

status of the firearm was of little import. Defense counsel did not dispute

that an AK-47 was the murder weapon. The critical question the jury had to




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decide was who fired the AK-47. Counsel argued that Appellant, who owned

several legal firearms, did not own the AK-47.4 “[T]he evidence says that

this man never, ever bought an AK-47 which is the murder weapon in this

case.” N.T., 6/13/14, at 24. He suggested Hernandez was the killer. “Paul

Hernandez who had the gun in his house wasn’t going to transport an AK-47

all around town.       Every time it was ever seen by anybody was at Paul

Hernandez’ house. Paul Hernandez is guilty of this crime.” Id. at 28. We

would not find the distinction between an illegal versus legal firearm played

any role in the jury’s verdict.         This case rested on the credibility of the

eyewitnesses to the murder.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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4
  The parties stipulated that Appellant lawfully purchased several firearms.
N.T., 6/11/14, at 107-08.



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