J-S19003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WILLIAM ROGERS

                            Appellant               No. 3605 EDA 2013


     Appeal from the Judgment of Sentence entered September 27, 2013
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0007426-2012


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 23, 2015

       Appellant, William Rogers, appeals from the September 27, 2013

judgment of sentence imposing life in prison without parole for first-degree

murder, a concurrent three to six year sentence for unlawful possession of a

firearm, and a concurrent two to five year sentence for possession of an

instrument of crime.1 We affirm.

       The testimony of multiple eyewitnesses established that Appellant shot

the victim after an altercation that occurred on the 2200 block of West

Edgeley Street in North Philadelphia on March 14, 2012.       The trial court

summarized the pertinent facts:


____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 6106, and 907, respectively.
J-S19003-15


           Zahir Wiggins testified that on 3/14/12, he was walking on
     the 2200 block of West Edgeley Street between 5:00 P.M. and
     5:30 P.M. when he heard shots and saw a group of people
     running from the area where a male, later identified as the
     decedent, was lying in the middle of the sidewalk.
     Approximately 45 seconds after hearing the shots, he saw
     [Appellant], aka ‘Slug’, who[m] he knows from the Raymond
     Rosen projects, running down 23rd Street with something in his
     hand. He did not know what [Appellant] was holding.

           Mr. Wiggins testified that five minutes prior to hearing the
     gunshots and seeing the decedent lying on the sidewalk, he saw
     ‘Diddy’, ‘Ab’ and [Appellant] engaged in a fistfight with the
     decedent.

           Mr. Wiggins provided a signed statement to homicide
     detectives on 3/29/12 at 2:50 P.M. In that statement, he
     indicated that he saw [Appellant] running down Edgeley Street
     toward 24th Street holding a gun down by his leg.

           At trial, Mr. Wiggins testified that he did not want to testify
     because his family still lives in the area where the incident
     occurred and he felt threatened for them.

           Nyteisha Sanders testified that on 3/14/12 between 5:15
     and 5:30 P.M., she was at a store at 23rd and Diamond Streets,
     when she heard gunshots and saw a group of people standing
     over a male lying on the ground, bleeding. She testified that she
     did not see the shooting or who did the shooting. And, that she
     did not see [Appellant] running away from the area.

            In a signed statement given by Ms. Sanders to homicide
     detectives on 5/14/12, she indicated that as she was walking
     back from the store she saw [Appellant] standing on the corner
     at 23rd and Edgeley Streets pointing a gun at a male, later
     identified as the decedent, and saying to the decedent “I told
     you not to come back.’ [Appellant] then started shooting at the
     decedent.     [Appellant] was wearing a gray hoodie.         After
     shooting at the decedent, [Appellant] ran with two (2) other
     males across Edgeley Street and up Judson Street. She had
     seen [Appellant] before in the neighborhood for approximately a
     year. [Appellant] has a tattoo on his neck that reads ‘Slug.’ She
     identified and signed a photograph of [Appellant].



                                     -2-
J-S19003-15


            Shanae Talley, Zahir Wiggins’ sister, testified that at
      approximately 5:15 P.M. on March 14, 2012, she was standing
      at 23rd and Edgeley Streets talking to a friend when she heard
      gunshots. She turned around to see Appellant, who[m] she
      knows from the neighborhood as ‘Slug,’ running down Edgeley
      Street.

            In her signed statement of 3/19/12, Ms. Talley indicated
      that she saw a tall, light-skinned male she knows as ‘Slug’
      standing on the corner. She did not see a gun but saw ‘fire’
      coming from an item he was pointing.         Immediately after
      hearing the gunshots, she saw ‘Slug’ run down Edgeley Street to
      Judson Street. She could only see the side of his face but knew
      it was Slug because he was wearing a gray hoodie that she had
      seen him wearing before and she knows him from the
      neighborhood.

            In her April 17, 2012 statement, Ms. Talley identified and
      signed a photo of [Appellant].

             Enrico Crispo testified that he was at a community meeting
      at the recreation center located at 23rd and Edgeley Streets on
      3/14/12. After the meeting as he was walking to his car, a black
      male, 5’8” tall, weighing 140-150 pounds, wearing jeans and a
      dark sweatshirt walked by him at a fast pace. Mr. Crispo looked
      back at the male and saw him reach into the back of his pants
      and pull out a modern-looking black gun that was ‘not a revolver
      type.’ The male proceeded north to the southwest corner of 23 rd
      and Edgeley Streets. As the male approached the corner, he
      nodded at two (2) younger black males who were sitting on
      bikes at the corner. The males on the bikes separated allowing a
      clear path between the male with the gun and another male,
      later identified as the decedent. The male with the gun shot the
      decedent from approximately twenty-five feet away.           The
      decedent collapsed on the corner. The shooter walked away
      quickly, travelling west on Edgeley Street. Mr. Crispo could not
      identify the shooter.

Trial Court Opinion, 8/7/14, at 2-4 (record citations omitted).

      On September 27, 2013, a jury found Appellant guilty of the

aforementioned offenses. The trial court imposed sentence the same day.

Appellant filed a timely post-sentence motion for a new trial on October 2,

                                     -3-
J-S19003-15


2013.     The trial court denied that motion on December 9, 2013 and

Appellant filed this timely appeal on December 17, 2013.

        Appellant raises two issues for our review:

              I.    Did the prosecutor commit misconduct in summation
                    when she told the jury she had personal knowledge
                    that ‘the defendant does not tell the truth,’ which
                    because of its impact on the verdict requires
                    reversal?

              II.   Did the prosecutor commit misconduct when she
                    condemned an entire section of the city as having a
                    lawless culture where law enforcement is a base
                    value and assisting criminals is a positive value such
                    as to require reversal?

Appellant’s Brief at 6. Appellant unsuccessfully sought a mistrial after the

prosecutor’s alleged misconduct during closing argument.        We review the

order denying a mistrial as follows:

              In criminal trials, declaration of a mistrial serves to
        eliminate the negative effect wrought upon a defendant when
        prejudicial elements are injected into the case or otherwise
        discovered at trial. By nullifying the tainted process of the
        former trial and allowing a new trial to convene, declaration of a
        mistrial serves not only the defendant’s interest but, equally
        important, the public’s interest in fair trials designed to end in
        just judgments.      Accordingly, the 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. Judicial
        discretion requires action in conformity with [the] law on facts
        and circumstances before the trial court after hearing and
        consideration. Consequently, the court abuses its discretion if,
        in resolving the issue for decision, it misapplies the law or
        exercises its discretion in a manner lacking reason.


                                       -4-
J-S19003-15


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

is an “extreme remedy” necessary “only when an incident is of such a nature

that its unavoidable effect is to deprive the appellant of a fair and impartial

tribunal.” Id.

      The Judy Court analyzed prosecutorial misconduct in the context of a

closing argument. The prosecutor’s remarks “cannot be viewed in isolation

but, rather, must be considered in the context in which they were made.”

Id. (quoting Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super.

2006), appeal denied, 907 A.2d 1102 (Pa. 2006)). “It is well settled that a

prosecutor has considerable latitude during closing arguments and his

arguments are fair if they are supported by the evidence or use inferences

that can reasonably be derived from the evidence.”      Id. at 1020 (quoting

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008), appeal

denied, 959 A.2d 928 (Pa. 2008)). “Further, prosecutorial misconduct does

not take place unless the unavoidable effect of the comments at issue was to

prejudice the jurors by forming in their minds a fixed bias and hostility

toward the defendant, thus impeding their ability to weigh the evidence

objectively and render a true verdict.”    Id.   “Prosecutorial misconduct is

evaluated under a harmless error standard.” Id.

      Pennsylvania courts hold prosecutors to the standards set forth in the

American Bar Association Standards:

            Argument to the jury.


                                     -5-
J-S19003-15


           (a) The prosecutor may argue all reasonable inferences
     from evidence in the record. It is unprofessional conduct for the
     prosecutor intentionally to misstate the evidence or mislead the
     jury as to the inferences it may draw.

           (b) It is unprofessional conduct for the prosecutor to
     express his personal belief or opinion as to the truth or
     falsity of any testimony or evidence or the guilt of the
     defendant.

           (c) The prosecutor should not use arguments calculated to
     inflame the passions or prejudices of the jury.

           (d) The prosecutor should refrain from argument which
     would divert the jury from its duty to decide the case on the
     evidence, by injecting issues broader than the guilt or innocence
     of the accused under the controlling law, or by making
     predictions of the consequences of the jury's verdict.

Id. at 1020 (emphasis added) (quoting American Bar Association Standards,

§ 3-5.8).

     “[T]he prosecutor may fairly respond to points made in the defense

closing.” Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005), cert.

denied, 549 U.S. 848 (2006).       “A remark by a prosecutor, otherwise

improper, may be appropriate if it is in fair response to the argument and

comment of defense counsel.” Id. (quoting Commonwealth v. Trivigno,

750 A.2d 243, 249 (Pa. 2000) (plurality)).

     Appellant first challenges the prosecutor’s statement that she knew

the defendant did not tell the truth.   For context, the record reflects that

defense counsel, during his closing, argued that Appellant’s statement,

assuming its correctness, “totally refutes the facts of the other witnesses,

the eyewitnesses.” N.T. Trial, 9/27/13, at 45.


                                    -6-
J-S19003-15


     The prosecutor assessed Appellant’s statement in her closing:

           Here is his statement. What did he say? Painfully, and
     you know what, I know [Appellant] does not tell the truth.
     He did not tell the truth – (Indicating).

            [Appellant’s Counsel]: Objection, move for a mistrial.

            [Prosecutor]: He is a fibber.

            [Appellant’s Counsel]: Personal opinion.

            The Court: Overruled. It is argument.

N.T. Trial, 9/27/13, at 80 (emphasis added).     The prosecutor went on to

explain, in light of the evidence, why Appellant’s statement was not

believable. Id. at 80-90.

     The statements bolded above, in our view, plainly violate the ABA

standards as set forth in Judy. Judy, 978 A.2d at 1020. The prosecutor

unambiguously expressed her personal opinion of Appellant’s veracity.

Nonetheless, the law requires us to consider those statements in context

rather than isolation. Id. After the objectionable statement, the prosecutor

explained in detail – based on the evidence of record and not based on her

opinion – why Appellant’s statement was not believable.      Considering the

prosecutor’s statement in context, we believe it was a fair response to

Appellant’s counsel’s assertion that Appellant’s statement completely refutes

all of the testimony evincing his guilt. Per Chmiel, a prosecutor is permitted

to make a fair response to defense counsel’s argument. Chmiel, 889 A.2d

at 543. Id. Furthermore, we must analyze a prosecutor’s conduct under a

harmless error standard. Judy, 978 A.2d at 1020. As set forth above, the

                                    -7-
J-S19003-15


record contains substantial direct evidence – in the form of eyewitness

testimony – confirming Appellant’s guilt. Given the overwhelming evidence

of Appellant’s guilt and the comparative insignificance of the prosecutor’s

remarks during closing, we cannot conclude the isolated objectionable

remarks warrant a new trial.

     Next, Appellant agues the prosecutor committed misconduct when she

“condemned an entire section” of the city of Philadelphia, specifically the

North Philadelphia projects. Appellant’s Brief at 23. Once again, we begin

with a review of the competing arguments of Appellant’s counsel and the

prosecutor.      Appellant’s counsel challenged the credibility of several

Commonwealth witnesses because of their delay in coming forward with

statements. N.T. Trial, 9/27/13, at 18-23. Likewise, some of the witnesses’

in-court testimony differed from their statements.

     In her closing, the prosecutor offered the following:

            The witnesses are scared. This is Philadelphia but more
     than Philadelphia, this is the projects in North Philly. These
     people, they got to live there. They told you their reasons.
     They said [. . . ] my momma lives in those projects. My family
     lives in those projects. They live there now. The other young
     lady [. . .] does your mother live in those projects? Yes, my 8-
     year-old brother lives there. Miss [. . . ], where do you live? I
     live in the projects too with my mother.          So, ladies and
     gentleman of the jury, they know what they saw but the reality
     of this case is no matter what you all decide, they are going to
     have to go back home and the whole world, everybody in the
     projects is going to know that they are tattletales. They are
     snitches and that they told.

              [Appellant’s counsel]: Objection.



                                      -8-
J-S19003-15


            The Court: Overruled.

Id. at 55-56.

      Appellant   asserts    the   prosecutor’s   closing   argument   improperly

bolstered her witnesses’ credibility, and that “she had no right to apologize

for what she viewed as the deficiencies of her witnesses–their in court

testimony–on a cultural basis–arguing that because of their culture or

environment their in court testimony was not to be believed.”          Appellant’s

Brief at 23-24.

      We discern no misconduct in this portion of the prosecutor’s closing.

The defense challenged the credibility of various Commonwealth witnesses

because they came forward late and/or gave testimony that differed from

their pre-trial statements to police.      The prosecutor responded that the

witnesses feared their cooperation with law enforcement could endanger

them in the neighborhoods where they lived, a seemingly fair response to

Appellant’s counsel’s argument.      As the trial court explained, one witness,

Zahir Wiggins, stated he did not wish to testify because he had family living

in the vicinity of the murder scene. N.T Trial, 9/24/13, at 225-26. Nyteisha

Sanders testified that her mother and 9-year-old brother live there.         N.T.

Trial, 9/25/13, at 49.      Shanae Talley lives in the neighborhood with her

mother and children. Id. at 114.

      In support of his argument, Appellant cites Commonwealth v.

LaCava, 666 A.2d 221, 236 (Pa. 1995), in which our Supreme Court



                                       -9-
J-S19003-15


remanded for a new sentencing hearing where the prosecutor committed

misconduct during the summation in the penalty phase of a capital trial. The

prosecutor invited the jury to consider the devastating impact drug dealers

have on their communities, rather than the specific facts of the homicide at

issue. Id. LaCava has no application here. The prosecutor did not attempt

to transform the trial into a referendum on an issue of public importance.

She argued, based on specific evidence, that reluctant witnesses and

witnesses whose testimony differed from their police statements had reason

to fear for their safety and that of their families.   We do not believe the

prosecutor engaged in misconduct, much less misconduct “of such a nature

that its unavoidable effect [was] to deprive [Appellant] of a fair and impartial

trial.” Judy, 978 A.2d at 1019. Even if we were to conclude the trial court

erred in overruling Appellant’s objection to this line of argument, such error

is harmless in light of the overwhelming direct evidence of Appellant’s guilt.

      In summary, we have concluded Appellant’s assertions of prosecutorial

misconduct do not merit relief.       We therefore affirm the judgment of

sentence.

      Judgment of sentence affirmed.




                                     - 10 -
J-S19003-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




                          - 11 -
