J-S19035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                v.                             :
                                               :
LAWRENCE CUSTIS,                               :
                                               :
                        Appellant              :            No. 3223 EDA 2014

           Appeal from the Judgment of Sentence November 7, 2014
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0008834-2013

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                  FILED MAY 04, 2016

        Lawrence Custis (“Custis”) appeals from the judgment of sentence

entered after a jury convicted him of murder of the first degree, possession

of an instrument of crime, and carrying a firearm in public in Philadelphia. 1

We affirm.

        The trial court set forth the relevant factual history in its Pa.R.A.P.

1925(a) Opinion, which we incorporate herein by reference. See Trial Court

Opinion, 5/14/15, at 2-6.

        The shooting of Will Street (“the victim”) occurred in the Kingsessing

section    of        southwestern   Philadelphia   (hereinafter   “the   Kingsessing

neighborhood”). During the subsequent police investigation, witnesses told

police that they had seen Custis walking away from the scene of the




1
    See 18 Pa.C.S.A. §§ 2502(a), 907, 6108.
J-S19035-16

shooting.2 Approximately five months after the shooting, the police obtained

a warrant to arrest Custis. The police then made two unsuccessful attempts

to arrest him at his last known residence, located in the Kingsessing

neighborhood. Their efforts to locate Custis elsewhere in the neighborhood

were likewise unsuccessful. The police later received a tip that Custis might

be found in an area of northern Philadelphia, which is several miles from the

Kingsessing neighborhood.        Approximately 15 months after the shooting,

acting on the tip, the police located and arrested Custis in a barber shop in

northern Philadelphia.

      The   Commonwealth         charged      Custis   with   the   above-mentioned

offenses, and a separate firearms offense, which was dismissed prior to trial.

In November 2014, the matter proceeded to a jury trial.

      Notably    to   this   appeal,   Commonwealth       witness    Kevin   Johnson

(“Johnson”),    the   victim’s   cousin,     who   had   responded    to   the   scene

immediately after the shooting, testified on direct examination as to an

incident he had witnessed in the Kingsessing neighborhood approximately

three weeks prior to the shooting. Specifically, Johnson remarked that he

had overheard Custis state to the victim during an argument, “I’m getting

tired of this, this and that.     I should have shot you last month.”            N.T.,




2
  While more than one of the witnesses initially told police that Custis was
the shooter, they later changed their testimony at trial.


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11/4/14, at 88.3 Custis’s defense counsel immediately moved for a mistrial,

objecting that the prosecution had improperly failed to disclose this

inculpatory statement in discovery, which prejudiced the defense.       After

conducting a sidebar and inquiring of the prosecutor whether she knew that

Johnson would offer this testimony, the trial court denied the mistrial

Motion, crediting the prosecutor’s assertion that she did not know about

Custis’s threat statement prior to trial, and therefore, could not have

disclosed it in discovery.4

      After the close of evidence, the trial court conducted a conference on

the proposed jury charges, wherein the Commonwealth requested, over the

defense’s objection, that the court give a flight/consciousness of guilt

instruction (hereinafter “flight instruction”), based upon Custis’s alleged

“flight and concealment” of his whereabouts following the shooting. The trial

court found that the circumstances warranted a flight instruction, and so




3
  For ease of reference, Johnson’s testimony in this regard is hereinafter
referred to as “Custis’s threat statement.”
4
  The trial court permitted both counsel to question Johnson, off the record
and outside of the presence of the jury, as to whether he intended to
introduce any other unexpected testimony. N.T., 11/4/14, at 96-99. On
defense counsel’s later cross-examination of Johnson, counsel asked
Johnson whether, prior to trial, he had informed the prosecutor about
Custis’s threat statement. Id. at 113-14. Johnson replied that he did
inform the prosecutor on the day before trial. Id. at 114-15.

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instructed the jury.5 At the close of trial, the jury found Custis guilty of all

counts.

        On November 7, 2014, the trial court sentenced Custis to life in prison

without the possibility of parole.       Custis timely filed a Notice of Appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal.        The trial court then issued a Pa.R.A.P. 1925(a)

Opinion.

        Custis now presents the following issues for our review:

         1. Did not the lower court err in denying defense counsel’s
            [M]otion for [a] mistrial where the Commonwealth

5
    The trial court gave the following flight instruction:

        There was evidence, including the testimony of Officer [Kaliv]
        Ivy and[] members of the homicide unit and intelligence unit of
        the Philadelphia Police Department[,] that tended to show that
        [Custis] left his neighborhood[, i.e., the Kingsessing
        neighborhood,] after the shooting in this case.             The
        Commonwealth contends that he fled or hid from police. The
        credibility, weight, and effect of this evidence is for you to
        decide. Generally speaking, when a crime has been committed
        and a person thinks he or she may be accused of committing it
        and he or she flees or conceals himself [], such flight or
        concealment is a circumstance tending to prove the person is
        conscious of guilt.      Such flight or concealment does not
        necessarily show consciousness of guilt in every case. A person
        may flee or hide for some other motive and may do so even
        though innocent. Whether the evidence of flight or concealment
        in this case should be looked at as tending to prove guilt
        depends upon the facts and circumstances of this case and
        especially upon motives that may have prompted flight or
        concealment. You may not find [Custis] guilty solely upon the
        basis of flight or concealment.

N.T., 11/6/14, at 147-48 (paragraph breaks omitted).            This instruction
mirrors the Pennsylvania Standard Criminal Jury                 Instruction on
flight/consciousness of guilt. See Pa.S.S.J.I (Crim.) 3.14.

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           committed a discovery violation by failing to provide
           [Custis] with the statement of [Johnson,] who testified at
           trial that he heard [Custis] say to the decedent, “I should
           have shot you last month,” and [Johnson] also testified that
           he had relayed this information to the [D]istrict [A]ttorney
           prior to trial?

       2. Did not the lower court err in instructing the jury that
          [Custis] fled from the police, and that such conduct tends
          to show that a person is conscious of guilt, where the
          instruction was improper because the police made only a
          minimal effort to find [Custis], and apprehended him,
          without incident, on their second attempt?

       3. Did not the lower court err in overruling defense counsel’s
          objection during the prosecutor’s closing argument[,] where
          the prosecutor used the phrase several times “this is our
          community,” while exhorting jurors to do the “right thing,”
          which constituted an improper request that the jurors exact
          revenge for the crime in general[,] instead of relying on the
          facts of the case?

Brief for Appellant at 5.

      Custis first argues that the trial court erred and deprived him of a fair

trial by denying his Motion for a mistrial concerning the prosecution’s alleged

discovery violation as to Custis’s threat statement. See id. at 26-27. Custis

points out that Johnson specifically testified, on cross-examination, that he

had informed the prosecutor, prior to trial, of Custis’s threat statement, and

argues that this directly rebuts the prosecutor’s statement to the contrary

during the sidebar conference. Id. at 27. According to Custis, he suffered

unfair prejudice from the prosecution’s improper introduction of Custis’s

threat statement, and he should be granted a new trial wherein the

prosecution shall be required to disclose all inculpatory evidence. Id. at 30,

32.

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      It is well settled that “[a] mistrial is an ‘extreme remedy’ that is only

required where the challenged event deprived the accused of a fair and

impartial trial. The denial of a mistrial motion is reviewed for an abuse of

discretion.”   Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010)

(citations omitted); see also Commonwealth v. Bozic, 997 A.2d 1211,

1226 (Pa. Super. 2010) (in the context of reviewing the denial of a mistrial

motion, stating that “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.” (citation omitted)). “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.” Bozic, 997 A.2d at 1225 (citation and ellipses omitted).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court addressed Custis’s

claim, set forth the applicable law and relevant portions of the transcript,

and determined that no discovery violation occurred, and a mistrial was thus

unwarranted, because the prosecutor was not aware of Custis’s threat

statement until Johnson testified at trial. See Trial Court Opinion, 5/14/15,

at 7-10.   In so ruling, the trial court relied upon this Court’s decision in

Commonwealth v. Sullivan, 820 A.2d 795, 804 (Pa. Super. 2003) (holding

that the Commonwealth does not commit a discovery violation when it fails

to disclose to the defense inculpatory evidence that it does not possess and

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of which it is unaware); see also Commonwealth v. Collins, 957 A.2d

237, 253 (Pa. 2008) (same). The trial court’s analysis is supported by the

law and the record, and we therefore affirm on this basis in concluding that

the court did not abuse its discretion by denying Custis the extreme remedy

of a mistrial. See Trial Court Opinion, 5/14/15, at 7-10.6

      Next, Custis contends that the trial court erred by giving the jury a

flight instruction, over defense counsel’s objection, based upon Custis’s

purported flight or concealment following the shooting.         See Brief for

Appellant at 33-36. Custis argues that there was no evidence that he had

fled or concealed his whereabouts, and that the police had made only a

“minimal effort” in attempting to locate him.    See id. at 33; see also id.

(pointing out that the police found Custis in Philadelphia, his “city of

residence[,]” and “he was apprehended at [a] barber shop, an indication

that he was merely following a normal routine.”).

      We review a challenge to a jury charge for an abuse of discretion.

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

6
   To the extent that Custis argues that the trial court’s reliance upon
Sullivan is misplaced, see Brief for Appellant at 29-30, we are unpersuaded
by this claim. Sullivan is closely analogous to the instant case, and even if
it was not, there is ample authority for the well-settled proposition stated in
Sullivan that the prosecution does not violate the discovery rules in
instances where it fails to provide the defense with inculpatory evidence that
it does not possess or of which it is unaware. See Commonwealth v.
Burke, 781 A.2d 1136, 1142 (Pa. 2001) (collecting the “unbroken line of
decisions”); see also Collins, supra. Moreover, to the extent that Custis
challenges the trial court’s crediting the prosecutor’s assertion at trial that
she was not previously made aware of Custis’s threat statement, we decline
Custis’s invitation to improperly substitute our determination for that of the
trial court on the matter of the prosecutor’s veracity.

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Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (stating

that “[i]n examining the propriety of the instructions a trial court presents to

a jury, our scope of review is to determine whether the trial court committed

a clear abuse of discretion or an error of law which controlled the outcome of

the case.”).    “A jury instruction is proper if supported by the evidence of

record.” Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008).

      A flight instruction is properly given where “a person commits a crime,

knows that he is wanted therefor, and flees or conceals himself[.         S]uch

conduct is evidence of consciousness of guilt, and may form the basis [of a

conviction,] in connection with other proof from which guilt may be

inferred.” Id. (citation and brackets omitted); see also Commonwealth v.

Tha, 64 A.3d 704, 714 (Pa. Super. 2013).

      Here, the record reflects that the victim was shot and killed in the

Kingsessing neighborhood.      See N.T., 11/4/14, at 121-22, 130, 161-62.

The shooting occurred in broad daylight, and several witnesses saw Custis

walking away from the scene.         See id. at 81-83, 121-25, 145, 156.

Additionally,   Gerald   Harvey   (“Harvey”),   who   knew   Custis   from   the

Kingsessing neighborhood, testified that on the day of the shooting, he

encountered Custis on the street, and Custis confessed to Harvey that he

had shot the victim because the victim’s brother previously gave Custis

some bad pills. See id. at 161-62.

      When the warrant was issued for Custis’s arrest, his last known place

of residence was in the Kingsessing neighborhood.       See N.T., 11/6/14, at

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62, 62, 141-43; see also N.T., 11/4/14, at 119-20, 161 (wherein two

acquaintances of Custis stated that he lived on Woodland Avenue, located in

the Kingsessing neighborhood, for at least several years).     Custis was not

apprehended until over a year after the shooting, despite the police having

initially acted on the arrest warrant five months after the shooting, and the

several attempts police made to find Custis in the Kingsessing neighborhood.

N.T., 11/6/14, at 6-8, 141-43; see also Trial Court Opinion, 5/14/15, at 12

(stating that “[t]he Commonwealth presented compelling evidence that after

the shooting took place, despite several attempts, various officers and

detectives were unable to locate [Custis] anywhere in the vicinity of the

scene of the crime.”). The police finally located and apprehended Custis in

northern Philadelphia, the opposite side of the City from the Kingsessing

neighborhood.7 See 11/6/14, at 6-8, 11-12; see also Trial Court Opinion,

5/14/15, at 12.

      Though no direct evidence was presented to establish Custis’s actual

knowledge that he was being sought by the police for this crime, we

conclude that the above-mentioned circumstantial evidence permits a

reasonable inference that Custis was aware that the police were or would be

looking for him in connection with the shooting, and therefore, the trial court

was within its discretion in giving the jury a flight instruction.        See


7
  According to the Commonwealth, the area in which Custis was
apprehended was eight miles, and a “45-minute car ride[, away,] from
[Custis’s] home” in the Kingsessing neighborhood.      Brief for the
Commonwealth at 14.

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Commonwealth v. Whack, 393 A.2d 417, 420 (Pa. 1978) (where the

defendant was seen running from the scene of a stabbing, and was not seen

again at his home or the places he usually frequented for approximately two

months, holding that this was sufficient to establish a reasonable inference

that the defendant had deliberately attempted to conceal his whereabouts to

avoid prosecution); Commonwealth v. Tinsley, 350 A.2d 791, 793 (Pa.

1976) (stating that where “immediately after [the homicide,] and for a

period of five days thereafter[, the defendant] abandoned his pattern of

living and could not be located at those places where his regular pursuits

would place him[,]” and “contacts at his residence … were to no avail … and

no explanation [] [was offered] for this absence,” holding that “these

circumstances raise a permissible inference that [the defendant] was aware

that he was being sought by police and attempted to conceal his

whereabouts to avoid apprehension for this crime.”); see also Trial Court

Opinion, 5/14/15, at 12 (stating that “[t]he circumstances surrounding

[Custis’s] evasion from law enforcement authorities is sufficient to infer [his]

knowledge that he was wanted in connection with the crime and warranted

[an] instruction to the jury that such conduct “may form a basis, in

connection with other proof, from which guilt may be inferred.” (emphasis in

original, quotation marks omitted)).

      Finally, Custis asserts that he is entitled to a new trial because the trial

court erred by overruling the objection of his counsel to portions of the




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prosecutor’s closing argument, wherein she referred to “our community.”

See Brief for Appellant at 37-41. Custis contends that the prosecutor’s

      attacks were of a sort specifically condemned by Pennsylvania’s
      [appellate] courts, that is, by urging the jury to “do the right
      thing” by “our community,” she invited them to see themselves
      as victims and exact revenge. This appeal to the emotions
      encouraged the jurors to shift their inquiry away from the case
      before them, and thus prejudiced [Custis].

Id. at 40; see also id. at 39 (citing, inter alia, Commonwealth v. Revty,

295 A.2d 300, 302 (Pa. 1972) (stating that “the prosecutor’s unique position

as both an administrator of justice and an advocate gives [her] a

responsibility not to be vindictive or attempt in any manner to influence the

jury by arousing their prejudices.”)).

            With regard to a claim of prosecutorial misconduct in a
      closing statement, it is well settled that [t]he prosecutor is
      allowed to vigorously argue h[er] case so long as h[er]
      comments are supported by the evidence or constitute legitimate
      inferences arising from that evidence. In considering a claim of
      prosecutorial misconduct, our inquiry is centered on whether the
      defendant was deprived of a fair trial, not deprived of a perfect
      one. Thus, a prosecutor’s remarks do not constitute reversible
      error unless their unavoidable effect … was to prejudice the jury,
      forming in their minds fixed bias and hostility toward the
      defendant so that they could not weigh the evidence objectively
      and render a true verdict.

                                     ***

             In determining whether the prosecutor engaged in
      misconduct, we must keep in mind that comments made by a
      prosecutor must be examined within the context of defense
      counsel’s conduct. It is well settled that the prosecutor may
      fairly respond to points made in the defense closing. Moreover,
      prosecutorial misconduct will not be found where comments
      were based on the evidence or proper inferences therefrom or
      were only oratorical flair.



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Commonwealth v. Ragland, 991 A.2d 336, 340-41 (Pa. Super. 2010)

(citations and brackets omitted); see also Commonwealth v. Judy, 978

A.2d 1015, 1019-20 (Pa. Super. 2009).

     In its Opinion, the trial court addressed Custis’s claim, set forth the

relevant excerpts of the prosecutor’s closing argument, and determined that

none of the prosecutor’s remarks during closing were inappropriate, nor did

they prejudice the jury to develop a fixed bias and hostility toward Custis.

See Trial Court Opinion, 5/14/15, at 14-16. We agree with the trial court’s

determination, and affirm on this basis in rejecting Custis’s claim of

prosecutorial misconduct. See id.; see also Ragland, supra.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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