J-S15011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANTHONY MINNICK,

                            Appellant               No. 905 EDA 2014


             Appeal from the Judgment of Sentence March 7, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013411-2012


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED APRIL 08, 2016

       Anthony Minnick appeals from the judgment of sentence of 40 to 80

years’ incarceration imposed March 7, 2014, following his conviction by a

jury for two counts of attempted murder, four counts of aggravated assault,

two counts of possessing a firearm as a convicted felon, two counts of

possessing an instrument of crime, and criminal conspiracy.1 We affirm in

part, vacate in part, and impose an amended sentence for the reasons set

forth below.

       The underlying facts of this case involve two related shootings.   In

August 2009, Appellant and Mr. Demetrius Pittard were involved in the
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*
 Retired Senior Judge assigned to the Superior Court.
1
  Respectively, 18 Pa.C.S. §§ 901(a), 2702(a), 6105(a)(1), 6106(a)(1),
907(a), and 903.
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packaging of narcotics. Following the disappearance of Appellant’s stash of

narcotics, Appellant shot Mr. Pittard thirteen times at close range, seriously

injuring him. Though Mr. Pittard initially identified Appellant as the shooter,

referring to him by his street name, “Ant Man,” Mr. Pittard thereafter refused

to cooperate with the police investigation. No charges were brought against

Appellant at that time.

       Three years later, in August 2012, Mr. Pittard was sitting in a car,

stopped at a gas station, along with a friend, Mr. John Cox, and a young,

three-year-old relative. Appellant, a passenger in a red Cadillac, drove up

next to Mr. Pittard and fired several shots at him.      No one was injured.

Initially, Mr. Pittard declined to identify Appellant as the shooter. However,

on the day following the 2012 shooting, Mr. Pittard positively identified

Appellant.    Mr. Pittard also renewed his identification of Appellant as the

shooter in the 2009 incident.2

       A jury trial commenced in December 2013. Following trial, Appellant

was found guilty of the charges set forth above.     In March 2014, the trial

court sentenced Appellant to an aggregate sentence of 40 to 80 years’

incarceration. Of relevance to this appeal, regarding Appellant’s conviction

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2
  Appellant does not challenge the sufficiency or weight of the evidence
against him, which was considerable, including eyewitness testimony as well
as documentary and videotape evidence. Thus, we need not elaborate
beyond this brief factual background. For a thorough exposition, see Trial
Court Opinion, 11/04/2014, at 2-11.



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for attempted murder for the 2012 incident, the court sentenced Appellant

to 20 to 40 years’ incarceration, to be served consecutive to those sentences

imposed for the 2009 incident.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.3 The trial court issued a responsive opinion.

       Appellant raises the following issues on appeal:

       1.    [Whether] the trial court err[ed] in overruling [A]ppellant’s
       objection to testimony from the victim that his family told him
       they had been threatened by [A]ppellant’s family, where that
       testimony was hearsay and there was no evidence that
       [A]ppellant had encouraged or even been aware of his family’s
       actions[;]

       2.    [Whether] the prosecutor improperly vouch[ed] for the
       credibility of a witness in her opening statement when she told
       the jury they should believe the victim because he thought he
       was dying[;]

       3.     [Whether] the prosecutor improperly ask[ed] the jury in
       her closing argument to infer that [A]ppellant was intimidating a
       witness, and thus inferentially also argue[d] his consciousness of
       guilt, based on the presence and behavior of spectators in the
       courtroom during that witness’s testimony[;]

       4.   [Whether] the trial court err[ed] in denying [Appellant’s]
       request for a Kloiber charge[; and]

       5.    [Whether] [A]ppellant’s sentence of 20 to 40 years’
       imprisonment for attempted murder in 2012 [was] illegal where
       the victim did not suffer any bodily injury in that crime[.]

Appellant’s Brief at 4.

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3
  Appellant also filed a supplemental statement of errors complained of on
appeal.



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      In his first issue, Appellant contends that the trial court abused its

discretion when it permitted Mr. Pittard to explain his reticence to identify

Appellant as the shooter, testifying in part that Appellant’s father had

threatened Mr. Pittard’s family. We review evidentiary decisions of the trial

court for an abuse of discretion. Commonwealth v. Jones, 912 A.2d 268,

281 (Pa. 2006). Here, we discern no abuse of the court’s discretion.

      In response to questioning from the Commonwealth soliciting an

explanation why he had failed initially to identify Appellant after the August

2012 shooting, Mr. Pittard testified as follows:

      [Mr. Pittard:]    When you tell on someone, I was going right
      back to the same neighborhood. As I was saying, my family is
      involved. His father came to my house, when I told him this
      time and he is threatening my brother and he thought …

      [Counsel for Appellant]:       Objection to all of that.   Move to
      strike. …

      The Court: The objection is noted.

      …

      [Commonwealth]:        Mr. Pittard, you were explaining why it
      was that you gave a false statement; is that correct?

      [Mr. Pittard:]     Yes, ma’am. His father at the last court date is
      threatening to kill my mother, my grandmother, the baby. He’s
      going to pay to get us killed. His son is not going to sit in jail,
      that is what he said.

      [Counsel for Appellant]: I move for a mistrial.

Notes of Testimony (N.T.), 12/10/2013, at 151-52.




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      During a brief recess following this exchange, Appellant argued a

mistrial was necessary because the “self-serving declaration” was “highly

prejudicial.” Id. at 154. The Commonwealth countered as follows:

      [Mr. Pittard’s] state of mind and attitude as to why he was afraid
      of the circumstances surrounding, [sic] that are absolutely
      relevant and it is a fair line of questioning by the Commonwealth
      to go into exactly why he didn’t want to report, [and] why he
      was scared[.]

Id. at 154-55.

      The trial court denied the motion for a mistrial and permitted this

testimony for the limited purpose of explaining why Mr. Pittard gave a false

statement to the police in August 2012. See N.T. at 155-56; see also Trial

Court Opinion at 15. Following closing arguments, the trial court addressed

this limited purpose implicitly, instructing the jury as follows:

      You also heard evidence tending to show that the [Appellant’s]
      father spoke with Mr. Pittard on a prior occasion. I’m instructing
      you, you must use this evidence … for one purpose only and that
      is to help you judge the credibility and weight of the testimony
      and statements of the complainant. This evidence must not be
      consider[ed] by you in any other way other than for the purpose
      I just stated.

N.T., 12/13/2013, at 75-76.

      Before this Court, Appellant renews his prior arguments. According to

Appellant, Mr. Pittard’s testimony was inadmissible hearsay and unduly

prejudicial because it suggested to the jury that Appellant had encouraged

the threats. See Appellant’s Brief at 11 (citing in support Commonwealth

v. Collins, 702 A.2d 540, 544 (Pa. 1997) (noting that “threats against a


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witness are not admissible as an admission of guilt against the accused

unless the accused is linked in some way to the making of the threat”)).

The record simply does not support this argument.           Thus, we reject it

summarily.

      Appellant also suggests that the timing of the alleged third-party

threats render them inadmissible.     Appellant acknowledges that testimony

regarding third-party threats against a witness may be admissible on other

grounds. Id. (again citing in support Collins, 702 A.2d at 544 (recognizing

well-established precedent in Pennsylvania that third-party threats are

admissible to explain a witness’s prior inconsistent statement)). However,

according to Appellant, because the threats alleged by Mr. Pittard occurred

after his identification of Appellant in August 2012, his trial testimony does

not properly address his prior reticence to identify Appellant.

      In contrast, the Commonwealth maintains that Mr. Pittard’s testimony

regarding threats against his family was relevant to his credibility,

particularly in how it related to his identification of Appellant.        See

Commonwealth’s Brief at 14. As noted by the Commonwealth, evidence of

threats to a witness may be admissible “for purposes other than to explain a

prior inconsistent statement.”   Commonwealth’s Brief at 13 (citing several

cases in support). For example, though not directly on point, this Court has

previously held admissible evidence of third-party threats where such

evidence explained why a witness later accepted a plea deal and agreed to


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testify. See Commonwealth v. Buchanan, 689 A.2d 930, 934 (Pa. Super.

1997). Moreover, the Commonwealth relies upon a case from California, in

which that state’s Supreme Court held as follows:

      Evidence that a witness is afraid to testify or fears retaliation for
      testifying is relevant to the credibility of that witness and is
      therefore admissible.      An explanation of the basis for the
      witness’s fear is likewise relevant to her credibility and is well
      within the discretion of the trial court.

People v. Burgener, 62 P.3d 1, 28 (Cal. 2003), cert. denied, 540 U.S. 855

(2003) (citations omitted).

      The Commonwealth’s argument is persuasive. Mr. Pittard attempted

to explain his reticence to identify Appellant. He testified that being labeled

a “snitch” in his neighborhood was dangerous:

      If you tell on somebody, you can’t stay in that neighborhood or
      somebody might harm you and your family. If you’re still in the
      same neighborhood, it is not good for you and your family.

N.T., 12/10/2013, at 158. It is also noteworthy that Mr. Pittard’s reticence

persisted until he and his family received assistance relocating to another

neighborhood:

      A.    Like I was trying to explain to them the first time, get us
      out of that neighborhood, that was after.

      Q.    And the detectives were able to do that for you?

      A.    Yes, ma’am.

      Q.    And for your family?

      A.    Yes, ma’am, some of them.




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      Q.   And once they did that, that is when you decided you
      wanted to talk; is that right?

      A. Yes, ma’am.

Id. at 167.

      In our view, considered in this context, Mr. Pittard’s reference to

third-party threats merely illustrated the potential danger he faced when he

agreed to identify Appellant.     Such testimony was relevant to the jury’s

determination of Mr. Pittard’s credibility.    Buchanan; Burgener.         The

court’s instruction provided a proper, limited context for the jury’s

deliberations. Thus, we agree that it was admissible, and Appellant’s claim

is without merit. Jones.

      In his second issue, Appellant contends that the Commonwealth

improperly vouched for the credibility of Mr. Pittard, and thus committed

prosecutorial misconduct, when it suggested during opening remarks that a

“dying man’s last words” were inherently reliable.      See Commonwealth’s

Brief at 13 (quoting N.T., 12/10/2013, at 43).        According to Appellant,

“evaluating the credibility of witnesses is the sole province of the jury,” and

“it is well established that a prosecutor may not express a personal opinion

about a witness’s credibility.”   Id. (citing in support Commonwealth v.

Tedford, 960 A.2d 1, 31 (Pa. 2008)).

      Initially, we note that although Appellant timely objected to the

Commonwealth’s opening statement, he requested neither a mistrial nor a

curative instructive.   See N.T., 12/10/2013, at 43. Accordingly, Appellant

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has not properly preserved this issue, and we deem it waived.                           See

Commonwealth v. Jones, 460 A.2d 739, 741 (Pa. 1983); Pa.R.Crim.P

605(b).

       Absent waiver, Appellant’s claim is devoid of merit. We review a claim

of prosecutorial misconduct for an abuse of discretion, focusing on “whether

the   defendant     was     deprived    of     a   fair   trial,   not   a   perfect   one.”

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (quoting

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008)). No such

deprivation occurred here.            The record does not support Appellant’s

assertion that the prosecutor personally vouched for Mr. Pittard’s credibility.

Rather, the prosecutor merely commented on the admissibility of certain

evidence proffered by the Commonwealth. See N.T., 12/10/2013, at 43-44

(asserting that the common law has long recognized the admissibility of

dying declarations).4        Nevertheless, a prosecutor may comment on a

witness’s credibility in anticipation of an attack on it.                      See, e.g.,
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4
  Notwithstanding the Commonwealth’s arguments to the contrary, it is
unlikely that Officer Holmes’ testimony regarding Mr. Pittard’s initial
identification of Appellant in 2009 was admissible as a dying declaration
exception to the rule against hearsay. Commonwealth v. Griffin, 684 a2d
589, 592 (Pa. Super. 1996) (“A statement may be considered a dying
declaration, and hence admissible notwithstanding its hearsay attributes, if
the declarant identifies his attacker, the declarant believes he is going to die,
that death is imminent, and death actually results.”) (emphasis added); see
also Pa.R.E. 804(b)(2) (providing that a statement made under belief of
imminent death is admissible when the declarant is unavailable as a
witness). Nevertheless, the testimony was likely admissible as an excited
utterance. See Pa.R.E. 803(2).



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Commonwealth v. Keaton, 45 A.3d 1050, 1075-76 (Pa. 2012). Thus, on

the merits, Appellant would be entitled to no relief.

      In his third issue, Appellant contends that the trial court erred when it

overruled his objection to the Commonwealth’s closing argument. According

to Appellant, the Commonwealth implicitly suggested to the jury that

Appellant sought to intimidate witnesses, when it highlighted the presence

and behavior of spectators in the courtroom. See Appellant’s Brief at 14-16.

This claim, too, is without merit. First, Appellant misstates the record: the

trial court did not overrule      Appellant’s objection   but rather    denied

Appellant’s motion for a mistrial. N.T., 12/13/2013, at 63. Moreover, the

court recognized that a cautionary instruction was appropriate.            Id.

Thereafter, the trial court instructed the jury expressly to “disregard the

opinion of the prosecutor as to guests who were inside the courtroom, which

is a public gallery.” Id. at 67. The jury is presumed to follow such curative

instructions. See Commonwealth v. Jones, 683 A.2d 1181, 1201-02 (Pa.

1996), cert. denied, 519 U.S. 826 (1996).        Thus, Appellant suffered no

prejudice, and we discern no abuse of the court’s discretion.     Jones, 683

A.2d at 1201-02; Solomon, 25 A.3d at 383.

      In his fourth issue, Appellant contends the trial court abused its

discretion when it denied his request for a Kloiber charge.               See

Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348

U.S. 875 (1954). According to Appellant, Mr. Pittard and Mr. Cox failed to


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identify Appellant from a photographic array on multiple occasions, following

the 2009 and 2012 incidents. Thus, according to Appellant, the trial court

should have instructed the jury to view their subsequent identifications with

caution. See Appellant’s Brief at 16-17.

      We review the trial court’s jury instructions for an abuse of discretion.

See Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002).

Where a witness has failed to identify a defendant on one or more prior

occasions, it may be appropriate for the trial court to warn the jury that

identification testimony “must be received with caution.” Kloiber, 106 A.2d

at 827. However, no cautionary instruction is required where the issue of

identification   relates   to   the   credibility   of   a   witness.   See,   e.g.,

Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995) (distinguishing

between circumstances that relate to the physical ability of a witness to

identify a defendant and those that relate to the credibility of a witness).

Here, Appellant does not challenge the ability of Mr. Pittard or Mr. Cox to

identify Appellant.    Accordingly, no Kloiber charge was required, and we

discern no abuse of the court’s discretion.

      Finally, Appellant contends the trial court imposed an illegal sentence

when it sentenced him to 20 to 40 years’ incarceration for attempted murder

arising from the 2012 incident. According to Appellant, because none of the

victims in the 2012 incident sustained any injuries, the maximum sentence




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allowed was 20 years.        See Appellant’s Brief at 17 (citing in support 18

Pa.C.S. § 1102(c)).

      Our   standard    of    review    in   this   regard   is    de    novo.      See

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013). Here,

the trial court concedes its error.     See Trial Court Opinion at 26-27.           The

court notes further that we may amend Appellant’s sentence rather than

remanding     this   case    for   a   new   sentencing.          Id.   at   27   (citing

Commonwealth v. Klein, 795 A.2d 424, 430 (Pa. Super. 2002)). The trial

court requests that we do so, and the Commonwealth agrees. Id.; see also

Commonwealth’s Brief at 31.

      According to the trial court,

      [h]ad [Appellant] filed a motion to reconsider [his] sentence as
      to the attempted murder conviction, the trial court would have
      amended the sentence to 10 to 20 years of incarceration for the
      attempted murder conviction docketed to CP-51-CR-0013417-
      2012. Such a sentence would have run concurrent with the
      other convictions on the same docket number, but consecutive
      to the other case docketed to CP-51-CR-0013411-2012.

Trial Court Opinion at 27. Thus, we vacate Appellant’s judgment of sentence

in part, solely as it relates to the length of sentence imposed for his

conviction for the 2012 attempted murder, and impose an amended

sentence of 10 to 20 years’ incarceration as set forth above in the trial

court’s opinion. Appellant’s amended, aggregate sentence shall be 30 to 60

years’ incarceration. See Klein, 795 A.2d at 430.




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     Judgment of sentence affirmed in part and vacated in part; amended

sentence imposed.

     Judge Platt joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




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