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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DARWIN HART-JONES

                            Appellant              No. 1291 EDA 2013


            Appeal from the Judgment of Sentence March 28, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013806-2011


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED FEBRUARY 20, 2015

Darwin Hart-Jones appeals from the judgment of sentence entered in the Court of Comm

(“VUFA”).4 Upon review, we affirm.

        On June 30, 2011, Khalif Gonzalez was walking westbound on

Horrocks Street with his friend Tyree Branch. Gonzalez testified that he saw

Hart-Jones standing at the corner of Horrocks and Unruh Streets, dressed in

black with a hoodie covering the top of his forehead and ears. As the pair

passed Hart-Jones, Branch said to Hart-Jones, “what are you looking at

____________________________________________


1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 901(a).
3
    18 Pa.C.S. § 2702(a).
4
    18 Pa.C.S. §§ 6106(a)(1), 6108.
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pussy?” A minute or two later, Gonzalez heard three gunshots and he and

Branch ran towards their respective homes.          Gonzalez, who received a

gunshot wound to his right arm, looked back at Hart-Jones and saw him tuck

a black gun with a clip into the front of his waistband. Branch, who was shot

in the back, ultimately died from his wounds.

      On March 28, 2013, following a jury trial, Hart-Jones was found guilty.

Immediately thereafter, the court sentenced Hart-Jones as follows:        life in

prison without the possibility for parole for the murder conviction; 10 to 20

years’   incarceration    for   the   attempted   murder   conviction,   to   run

consecutively; 3½ to 7 years’ incarceration for the VUFA 6106 (firearms not

to be carried without a license) conviction, to run concurrently; and 2½ to 5

years’ incarceration for the VUFA 6108 (carrying firearms on public streets or

public property in Philadelphia) conviction, to run concurrently.

      On April 9, 2013, Hart-Jones moved to file a post-sentence motion

nunc pro tunc, which the court granted on April 11, 2013.           On April 26,

2013, the court denied his post-sentence motion without a hearing.            This

timely appeal followed.

      On appeal, Hart-Jones presents the following issues for our review:

      1. Given the vagaries of eyewitness testimony; the fact that the
         lone eyewitness only saw the shooter for 2-3 seconds at night
         after being shot at and hit by gunfire and while running away
         from the perpetrator; and his clothing description conflicted
         with that of the defense’s witnesses, one of whom was also at
         the scene and stated that another person was the shooter,
         did the lower court abuse its discretion in not granting him a
         new trial based upon the weight of the evidence?


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      2. Where the Commonwealth asked a wholly impermissible
         question suggesting that the Hart-Jones had admitted to
         committing this crime to a third person, was the court’s
         instruction, which did not directly address this error, sufficient
         to cure the prejudice?

      3. Where the prosecutor blatantly appealed to the passions of
         the jury to convict Hart-Jones, at the very end of its closing
         argument, did this emotional appeal create a jury verdict on
         an improper basis?

Brief of Appellant, at 3.

      In his first issue, Hart-Jones contends that the verdict was against the

weight of the evidence.

      Our standard of review of a weight of the evidence claim is as follows:

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will
      reverse a jury’s verdict and grant a new trial only where the
      verdict is so contrary to the evidence as to shock one’s sense of
      justice. Our appellate courts have repeatedly emphasized that,
      “[o]ne of the least assailable reasons for granting or denying a
      new trial is the lower court’s conviction that the verdict was or
      was not against the weight of the evidence.” Furthermore,
      where the trial court has ruled on the weight claim below, an
      appellate court’s role is not to consider the underlying question
      of whether the verdict is against the weight of the evidence.
      Rather, appellate review is limited to whether the trial court
      palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations omitted).

      Hart-Jones concentrates his weight of the evidence argument on

challenging the jury’s credibility determinations.      Specifically, Hart-Jones

attempts to discredit Gonzalez’ testimony by questioning the reliability of


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eyewitness testimony generally. See e.g., Commonwealth v. Walker, 92

A.3d 766 (Pa. 2014) (permitting expert testimony regarding eyewitness

identification at discretion of court based on policy of preventing wrongful

conviction due to erroneous eyewitness identification).

      It is not within the province of this court to reweigh the court’s

credibility determinations.   See Commonwealth v. DeJesus, 860 A.2d

102, 107 (Pa. 2004) (“The weight of the evidence is exclusively for the

finder of fact, which is free to believe all, part, or none of the evidence, and

to assess the credibility of the witnesses.”).    Because Hart-Jones fails to

address the standard by which this Court reviews a weight of the evidence

claim and does not demonstrate an abuse of discretion by the trial court, he

is not entitled to any relief on his weight of the evidence claim.

Commonwealth v. Johnson, 985 A.2d 915, 926 (Pa. 2009).

      In his second issue, Hart-Jones claims that the prosecutor committed

misconduct when she asked, “So did you hear that Fonz told detectives that

the defendant admitted to doing it?” N.T Trial, 3/27/13, at 112. This claim

is waived because Hart-Jones did not immediately request a mistrial.

      A claim of prosecutorial misconduct is waived when a defendant

objects and his objection is sustained, but he does not request any

additional relief.   Commonwealth v. Boring, 684 A.2d 561, 568 (Pa.

Super. 1996). See also Pa.R.Crim.P. 605(b) (“When an event prejudicial to

the defendant occurs during trial only the defendant may move for a

mistrial; the motion shall be made when the event is disclosed.”)

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      Here, the trial court sustained defense counsel’s hearsay objection and

struck the question from the record.          Defense counsel did not request a

mistrial.   The court also sua sponte gave a curative instruction to which

defense counsel did not object.     Accordingly, Hart-Jones cannot now claim

on appeal that the trial court abused its discretion for denying relief that

counsel did not request. See Commonwealth v. Jones, 668 A.2d 491 (Pa.

1995) (failure to request mistrial waives later claim that mistrial was

warranted).

      Even if Hart-Jones had requested a mistrial, the trial court would have

been within its discretion to deny it. Whether to grant the extreme remedy

of a mistrial is a matter within the discretion of the trial court. “A trial court

need only grant a mistrial where the alleged prejudicial event may

reasonably be said to deprive the defendant of a fair and impartial trial.” Id.

at 503.     Here, the court’s response, striking the question from the record

and giving a curative instruction, was sufficient to remove any prejudice

Hart-Jones may have suffered.      See Commowealth v. Bedford, 50 A.3d

707, 713 (Pa. Super. 2012) (no error in denying mistrial where defendant

successfully objected to hearsay testimony and judge instructed jury to

disregard it; noting, “[w]e can presume the jury followed the court’s

instructions.”) Accordingly, we deny relief on this claim.

      In his third issue, Hart-Jones alleges a second instance of prosecutorial

misconduct.       Hart-Jones   claims   that    the   Commonwealth    committed




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misconduct when it made the following “emotional appeal” at the end of its

closing:

      When you put all of that evidence together, it all points at this
      defendant. The only question is what are you going to do about
      it? Don’t make me have to call [Gonzalez] and tell him I’m
      sorry. You did the right thing [. . .] but it is not enough.

N.T. Trial, 3/27/13, at 224-25. Hart-Jones believes he is entitled to a new

trial based on this emotional appeal to the jury.

      As we previously stated, a claim of prosecutorial misconduct is waived

when a defendant objects and his objection is sustained but he does not

request additional relief such as a curative instruction or a mistrial. Jones,

supra.     Here, defense counsel objected to the prosecutor’s comment and

the trial court sustained his objection.   Defense counsel did not seek any

further remedy.

      Even if counsel had requested further relief, Hart-Jones would not be

entitled to a new a trial.    Prosecutorial misconduct will be found if the

argument results in prejudice to the defendant. It does so when:

      [T]he 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. Due to
      the nature of a criminal trial, both sides must be allowed
      reasonable latitude in presenting their cases to the jury.
      Prosecutorial misconduct will not be found where comments
      made were done for oratorical flair.

Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super. 2006).

      Here, the trial court sustained defense counsel’s objection and

reminded the jury that the prosecutor’s closing argument is not evidence.

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N.T. Trial, 3/27/13, at 166. The court also gave an instruction that the jury

could not consider empathy or sympathy when reaching a verdict.         N.T.

Trial, 3/28/13, at 6. Based on the foregoing, we agree with the trial court’s

conclusion that the comment at issue did not prejudice Hart-Jones so as to

warrant a new trial. Accordingly, we discern no abuse of discretion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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