J-A28039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DOMINIQUE MARSHON LEE,

                            Appellant                  No. 1299 EDA 2015


             Appeal from the Judgment of Sentence April 17, 2015
               in the Court of Common Pleas of Chester County
              Criminal Division at No.: CP-15-CR-0001738-2013


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 29, 2016

        Appellant, Dominique Marshon Lee, appeals from the judgment of

sentence imposed after his jury conviction of murder of the second degree,

robbery, burglary, and criminal conspiracy.1 We affirm.

        In its May 3, 2016 opinion, the trial court aptly set forth the relevant

facts, as follows:

              Shortly after midnight on June 29, 2012, three armed men
        burst into the living room of the apartment shared by Dominick
        Williams and Aaron Crawford. Mr. Crawford was asleep in his
        bedroom. Mr. Williams was awake and playing video games in
        the living room.     All three intruders wore t-shirts wrapped
        around their faces to disguise their identity. One of the intruders
        immediately shot Mr. Williams in the groin. Another of the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(b), 3701(a), 3502(a), 903, respectively.
J-A28039-16


        intruders went to Mr. Crawford’s bedroom and grabbed a clear,
        plastic jar that contained marijuana, money and a pack of
        cigarettes. All three intruders then ran from the apartment.
        Dominick Williams remained on his living room floor bleeding to
        death. Later, at the hospital, he died.

              Shortly after the robbery[,] the police located the plastic
        jar about two blocks away from the victim’s apartment. Located
        nearby was a black t-shirt. Subsequent testing revealed the
        presence of [Appellant’s] thumbprint on the jar, and co-
        defendant Marquis Rayner’s[2] DNA on the t-shirt. Marquis
        Rayner and [Appellant], who are half-brothers, were
        subsequently arrested for the murder of Dominick Williams.

              On November 20, 2014, after a four-day trial, a jury found
        Appellant guilty of second degree murder, robbery, burglary, and
        criminal conspiracy. He was sentenced to life in prison on April
        17, 2015. [The trial court] denied his optional post-sentence
        motion by order dated April 23, 2015. This appeal followed.

(Trial Court Opinion, 5/03/16, at 1-2).

        Appellant raises four questions for this Court’s review:

        1. Were the convictions for murder of the second degree,
        robbery, burglary and conspiracy to commit robbery and
        burglary against the weight of the evidence? Were the verdicts
        against the weight of the evidence when the only evidence was
        [Appellant’s] fingerprint on the glass jar with other persons’ DNA
        found [one and one-half] blocks from the crime and [fifteen] feet
        from another persons’ DNA on a black tee shirt?

        2. Were the convictions for murder of the second degree,
        robbery, burglary and conspiracy to commit robbery and
        burglary not supported by sufficient evidence?

        3. Did the Assistant District Attorney err in his opening
        statement and err again when presenting Detective Dutter by
        stating his office received an anonymous tip linking [Appellant]
        (half-brother of Mr. Rayner) as a participant in the crime? Did
____________________________________________


2
    Marquis Rayner filed an appeal at docket number 1263 EDA 2015.



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       [the trial court] err in denying the defense request for a mistrial?
       Did this intentional error violate [Appellant’s] right to confront a
       critical witness in violation of the Sixth Amendment of the United
       States Constitution and Article I, Section 9 of the Pennsylvania
       Constitution and further, was this improper hearsay, particularly
       since Mr. Rayner [sic] was charged with conspiracy?

       4. Did [the trial court] err by interfering improperly with Mr.
       Stretton’s[3] cross-examination of a key prosecution witness on
       his critical testimony on the tee shirt, and did [the trial court] err
       in criticizing Mr. Stretton before the jury? Did [the trial court]
       further err in repeatedly and incorrectly criticizing Mr. Stretton
       during his closing argument on the issue of burden of proof? Did
       [the trial court] wrongly criticize Mr. Stretton in front of the jury?
       Did [the trial court] err in not granting a mistrial? Did [the trial
       court’s] improper interference and criticism of Mr. Stretton
       prejudice [Appellant], deny him a fair trial, and impact on
       [Appellant’s] [Sixth] Amendment right to effective counsel?

(Appellant’s Brief, at 6-8).4

       Appellant’s first two issues challenge the sufficiency and weight of the

evidence to support his convictions.           (See id. at 40-52).5   For ease of

____________________________________________


3
 Attorney Samuel Stretton was trial counsel for Appellant’s co-defendant,
Marquis Rayner.
4
  In the argument section of his brief, Appellant includes a claim that the
prosecutor committed misconduct during his closing argument.             (See
Appellant’s Brief, at 58-65). However, pursuant to Pennsylvania Rule of
Appellate Procedure 2116(a), “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby.”
Pa.R.A.P. 2116(a).        Therefore, the allegation is waived. See
Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super. 2016)
(waiving claim raised in argument section of brief that was not raised in
statement of questions involved).
5
  Although Appellant recognizes that each of these issues has its own
standard, (see Appellant’s Brief, at 47), he appears to confuse the legal
concepts. (See id. at 40-52). For example, “[a] motion for new trial on the
(Footnote Continued Next Page)


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disposition, we will address Appellant’s sufficiency challenge first, and then

his weight of the evidence claim. Appellant’s challenge to the sufficiency of

the evidence lacks merit.

      Our standard of review of this matter is well-settled:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial [ ]
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note the facts
      and circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced is free to believe all,
      part or none of the evidence.
                       _______________________
(Footnote Continued)

grounds that the verdict is contrary to the weight of the evidence, concedes
that there is sufficient evidence to sustain the verdict.” Commonwealth v.
Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation omitted). However, in
support of his weight of the evidence challenge, Appellant repeatedly states
that the Commonwealth failed to prove the elements necessary to support
his convictions. (See Appellant’s Brief, at 43-45). Also, in his sufficiency
challenge, Appellant maintains that “[t]he speculative and conflicting nature
of the testimony would warrant a reversal on the basis of sufficiency of
evidence.” (Appellant’s Brief, at 50). However, this allegation goes to the
weight of the evidence. See Commonwealth v. Doleno, 633 A.2d 203,
206 (Pa. Super. 1993) (“claim goes to the weight of the evidence because it
depends upon a resolution of the conflicting testimony of competing
witnesses.”).



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Commonwealth v. Stiles, 143 A.3d 968, 981 (Pa. Super. 2016) (citation

omitted).        In other words, “[a] mere conflict in the testimony of the

witnesses does not render the evidence insufficient because it is within the

province of the factfinder to determine the weight to be given to the

testimony        and   to    believe    all,   part,    or    none    of     the    evidence.”

Commonwealth v. Rabold, 920 A.2d 857, 858 (Pa. Super. 2007),

affirmed, 951 A.2d 329 (Pa. 2008) (citation omitted).

      In this case, Appellant was convicted of murder of the second degree,

robbery, burglary, and conspiracy.

      Pursuant to section 2502 of the Crimes Code, “[a] criminal homicide

constitutes murder of the second degree when it is committed while

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.”       18 Pa.C.S.A. § 2502(b).         The Crimes Code also provides, in

pertinent part, that “[a] person is guilty of robbery if, in the course of

committing a theft, he . . . inflicts serious bodily injury upon another [or]

threatens another with or intentionally puts him in fear of immediate serious

bodily injury[.]” 18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii). It further provides, “[a]

person commits the offense of burglary if, with the intent to commit a crime

therein, the person . . . enters a building or occupied structure, or separately

secured     or    occupied    portion     thereof      that   is   adapted    for   overnight

accommodations in which at the time of the offense any person is

present[.]” 18 Pa.C.S.A. § 3502(a). Finally:

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      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he . . . agrees with such other person or persons
      that they or one or more of them will engage in conduct which
      constitutes such crime . . . or . . . agrees to aid such other
      person or persons in the planning or commission of such crime .
      ...

18 Pa.C.S.A. § 903(a).

      Here, the evidence at trial established that three men burst into

Dominick Williams’ apartment with the intent of robbing him.        (See N.T.

Trial, 11/17/14, at 67, 69, 150). The men were armed with guns and wore

t-shirts across their faces.   (See id. at 66-68, 77, 118-19, 132).         After

shooting Mr. Williams, and pistol whipping his roommate, Aaron Crawford,

one of the men stole a plastic-lidded jar that contained marijuana and other

items. (See id. at 155-57). The individual was not wearing gloves. (See

id. at 150).

      As further described by the trial court:

            Approximately [ninety] minutes after Dominick Williams
      had been shot, police officer Stephen Galletta of the Coatesville
      City Police Department located the clear plastic jar tossed in a
      hedge row approximately a block and a half from the crime
      scene. (See id. at 244). The jar contained a pack of Newport
      cigarettes. (See id. at 163). Located several feet away was a
      black t-shirt. (See id. at 244, 248). Witness Aaron Crawford
      was brought to the discovery scene and identified the jar as the
      one taken from his bedroom earlier that morning, and the t-shirt
      as the type of shirt that one of the robbers had been wearing
      across his face. (See id. at 161-64).

            Chester County Detective Kenneth Beam testified as an
      expert in the field of fingerprint analysis.       Detective Beam
      received as evidence the plastic jar and t-shirt found close to the
      scene of the robbery.      (See N.T. Trial, 11/18/14, at 49).


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J-A28039-16


       Detective Bean testified that the print with the sharpest and
       clearest detail found on the plastic jar belonged to Appellant.
       (See id. at 65, 69, 73). . . .

(Trial Ct. Op., at 4-5) (some record citation formatting provided).

       Considering the foregoing evidence in the light most favorable to the

Commonwealth, we conclude that the trial court properly found that it was

sufficient to support each of Appellant’s convictions. See Stiles, supra at

981.    In fact, Appellant’s argument, that the testimony was insufficient

because it conflicted, fails where it was within the province of the jury, as

fact finder, “to determine the weight to be given to the testimony and to

believe all, part, or none of the evidence.”           Rabold, supra at 858.

Appellant’s challenge the sufficiency of the evidence does not merit relief.

       Next, Appellant challenges the weight of the evidence on the basis that

“[t]he only evidence placing [him] at the crime is particularly flimsy in that

[his] fingerprints were found on the jar that was taken and was sitting in a

bush [fifteen] feet [away].”     (Appellant’s Brief, at 43; see id. at 40-47).

Appellant’s claim does not merit relief.

       The Court’s standard of review of a weight of the evidence claim is a

stringent one:

             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

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J-A28039-16


      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(citation and quotation marks omitted).

      In this case, the trial court “presided over Appellant’s trial. . . .    [It

did] not find the jury’s verdict so contrary to the evidence as to shock the

[c]ourt’s sense of justice.   Thus, [it] specifically [found] that the verdict

entered in this matter was not against the weight of the evidence.” (Trial

Ct. Op., at 6). We decline Appellant’s invitation to re-weigh the evidence in

this matter, and conclude that the trial court did not abuse its discretion in

denying his weight of the evidence challenge. See Boyd, supra at 1274-

75. Appellant’s weight of the evidence claim does not merit relief.

      In Appellant’s third issue, he challenges the trial court’s denial of his

co-defendant’s motions for a mistrial after the Commonwealth’s attorney

referenced an anonymous tip during his opening statement and his

examination of Detective Dutter.     (See Appellant’s Brief, at 52-58).       This

issue is waived.

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J-A28039-16


       It is well settled that a claim of prosecutorial misconduct is waived on

appeal if the defendant did not lodge a contemporaneous objection to the

alleged impropriety at trial. See Commonwealth v. May, 887 A.2d 750,

758 (Pa. 2005); see also Pa.R.A.P. 302(a); Commonwealth v. Cannady,

590 A.2d 356, 362 (Pa. Super. 1991), appeal denied, 600 A.2d 950 (Pa.

1991) (concluding where defendant did not object or join in co-defendant’s

objection, issue was waived as to defendant for purposes of appeal);

Commonwealth v. Woods, 418 A.2d 1346, 1352 (Pa. Super. 1980) (issue

waived where appellant failed to join objection of co-defendant).

       In this case, although Rayner’s counsel objected to the prosecutor’s

remarks and moved for mistrials, Appellant neither lodged his own objection

nor joined in his co-defendant’s objections and motions.      (See N.T. Trial,

11/17/14, at 18; N.T. Trial, 11/18/14, at 183-84). Therefore, because the

objection by co-defendant did not preserve the issue for Appellant’s appeal,

this issue is waived.6       See Cannady, supra at 362; Woods, supra at

1352; see also Pa.R.A.P. 302(a); May, supra at 758. Moreover, it would

not merit relief.
____________________________________________


6
   Appellant’s issue also is waived for his failure to identify where he
preserved this issue, in contravention of the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2117(c) (appellant’s statement of the case must
state where in record issue raised and preserved for appeal); Pa.R.A.P.
2119(e) (argument section of brief must state where issue raised and
preserved for appeal); Commonwealth v. Kane, 10 A.3d 327, 333 (Pa.
Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011) (finding claim waived
for appellant’s failure to identify where issue preserved).



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             It is well-settled that the review of a trial court’s denial of
      a motion for a mistrial is limited to determining whether the trial
      court abused its discretion. An abuse of discretion is not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will . . . discretion is abused. A trial court may grant a
      mistrial only where the incident upon which the motion is based
      is of such a nature that its unavoidable effect is to deprive the
      defendant of a fair trial by preventing the jury from weighing
      and rendering a true verdict. A mistrial is not necessary where
      cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011), cert.

denied, 132 S. Ct. 2377 (2012) (citations and quotation marks omitted);

see also Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa. 2014)

(observing that “the jury is presumed to follow the court’s instructions.”)

(citation omitted).

      In the case sub judice, Appellant first argues that the trial court erred

in denying the motion for a mistrial where the Commonwealth’s counsel

referred to prejudicial hearsay during his opening statement.                  (See

Appellant’s Brief, at 53). This argument lacks merit.

      It has long been the law of this Commonwealth that:

             Hearsay is a statement, other than one made by the
      declarant while testifying at the trial or hearing, offered in
      evidence to prove the truth of the matter asserted. [See]
      Pa.R.E. 801(c). Thus, any out of court statement offered not for
      its truth but to explain the witness’s course of conduct is not
      hearsay.

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012), cert. denied,

133 S. Ct. 1795 (2013) (case citation and internal quotation marks omitted).


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        Here, during the Commonwealth’s opening statement, the prosecutor

explained the process by which the fingerprint on the jar was identified.

Specifically, after stating that investigators had been unable to identify the

fingerprints for approximately six months, the prosecutor stated:

              Now it’s time for me to talk about that second lucky break
        that happened in January of 2013 when Detective Harold Dutter
        received an anonymous tip from someone who identified
        [Appellant] as one of the men who [was] involved in the home
        invasion robbery.

(N.T. Trial, 11/17/14, at 18). This statement about the tipster was made to

explain the course of conduct pursued by the police, not for the truth of the

matter asserted. Therefore, it was not hearsay.          See Johnson, supra at

1035.       Additionally,   even   if   the   remark   were   hearsay,   after   the

Commonwealth’s counsel completed his opening statement, the court

instructed the jury:

              Ladies and gentlemen, before we get to the defense
        opening, I need to give you an instruction. You recall that
        during the course of [the prosecutor’s] opening[,] he made
        mention of what a tipster said and certain tipster information
        was provided to the police and there was an objection by
        defense. I need to give you an instruction with respect to that.

               When an anonymous tip comes to the police[,] the police
        are allowed to act on an anonymous tip. In other words, they
        are allowed to check fingerprints and identities and these types
        of things. But what the tipster said, his actual words[,] is not
        evidence of [Appellant’s] guilt and you may not consider what
        the tipster said as being evidence of any defendant’s guilt.

               However, the prints that were checked as a result of the
        tip is evidence that you may consider in this particular case. . . .

(N.T. Trial, 11/17/14, at 30-31).


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      Therefore, based on the foregoing, any prejudice allegedly suffered by

Appellant was cured by the court’s cautionary instruction, which the jury is

presumed to have followed. See Jemison, supra at 1263; Chamberlain,

supra at 422. Hence, Appellant’s argument would lack merit.

      Similarly, Appellant argues that the trial court abused its discretion

when it denied co-defendant’s motion for a mistrial on the basis of the

prosecutor’s questioning of Detective Dutter about the anonymous tip. (See

Appellant’s Brief, at 54-56).      Appellant maintains that, because the

anonymous tip led to the identification of his fingerprint, the tip was “very

damning evidence” that denied him the right of confrontation. (Id. at 55).

However, this argument also would fail.

      A review of the testimony reveals that the Commonwealth’s attorney

asked Detective Dutter at what point during the investigation Appellant’s

name came up, to which the detective responded that it was through an

anonymous tip. (N.T. Trial, 11/18/14, at 183). Co-defendant objected and

moved for a mistrial, which the trial court denied after cautioning the jury

that: “[J]ust because somebody’s name comes up in an anonymous tip, it is

not to be construed in any way by you as evidence against that individual.

It[ is] simply being used in this context to show that the police took [a] step

and went forward. . . .” (Id. at 183-84).

      As previously observed, the statement by the anonymous tipster was

not hearsay because it was offered to show why the police took the


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investigation in the direction that they did, not for the truth of the matter

asserted; and, in any event, the cautionary instruction provided by the trial

court was sufficient to overcome any potential prejudice.       See Johnson,

supra at 1035; Chamberlain, supra at 422; see also Jemison, supra at

1263. Therefore, this argument would fail, and Appellant’s third issue would

lack merit.

        In his fourth issue, Appellant argues that the trial court improperly

interfered with trial.   (See Appellant’s Brief, at 65-79).     Specifically, he

maintains:

        [The trial court] improperly interfered with Mr. Stretton’s cross-
        examination of a key prosecution witness and commented on the
        evidence.      Further, [the trial court] criticized Mr. Stretton
        repeatedly in front of the jury and incorrectly and repeatedly
        interrupted his closing speech and criticized Mr. Stretton for the
        closing speech in front of the jury, even though Mr. Stretton
        gave an appropriate closing speech. [The trial court] refused a
        mistrial request. [The trial court’s] interference, commenting on
        evidence, improper criticism and interruption of Mr. Stretton’s
        closing speeches denied Mr. Rayner, his right to due process and
        a fair trial and impacted on Mr. Rayner’s Sixth Amendment right
        to effective counsel.

(Id. at 65) (underlining omitted). Appellant’s issue is waived, and would not

merit relief.

        Mr. Stretton was Mr. Rayner’s trial counsel.    (See, e.g., N.T. Trial,

11/17/14, at 1). Appellant had his own legal representation at trial. (See

id.).    Appellant’s counsel failed to object to any of the trial court’s

interactions with co-defendant’s counsel.       (See N.T. Trial, 11/17/14, at

186-87, 190-91, 198-99; N.T. Trial, 11/19/14, at 160-61).            Therefore,

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Appellant’s claim is waived. See Cannady, supra at 362; Woods, supra

at 1352; see also Pa.R.A.P. 302(a); May, supra at 758.

      Moreover, not only does Appellant fail to provide any argument about

how the court’s interactions with Mr. Stretton prejudiced him, (see

Appellant’s Brief, at 65-79), after our independent, exhaustive review of the

entire record in this matter, we are unable to discern how any of the trial

court’s exchanges with Mr. Stretton “so prejudice[d] the jurors against

[Appellant] that it may reasonably be said [that the remarks] deprived [him]

of a fair and impartial trial.”   Commonwealth v. Melvin, 103 A.3d 1, 39

(Pa. Super. 2014) (citation, footnote, and quotation marks omitted).

Appellant’s fourth issue would not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016




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