J-S54007-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JAMIL BANKS,

                          Appellant                    No. 2262 EDA 2014


             Appeal from the Judgment of Sentence July 28, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009614-2012


BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED NOVEMBER 16, 2015

       Jamil Banks appeals from the aggregate judgment of sentence of thirty

to sixty years incarceration imposed by the trial court after a jury found him

guilty of third-degree murder, conspiracy to commit murder, possession of

an instrument of crime (“PIC”), and carrying an unlicensed firearm, and the

court found him guilty of persons not to possess a firearm. We affirm.

       The trial court delineated the salient facts as follows.

             On April 12, 2008, at about 12:30 p.m., Joan Hill was
       working at an insurance office located at 5637 Chew Avenue
       when she saw a blue Lincoln town car park with the engine
       running on Woodlawn Avenue. A man, later identified as
       defendant Salmond, dressed in women’s Muslim clothing exited
       the vehicle. Hill believed the man was going to rob Skyline
       Restaurant, located around the corner, so she called 9-1-1 and
       gave the license plate number of the vehicle.



*
    Former Justice specially assigned to the Superior Court.
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           At around noon that day, Kerron Denmark and Kenneth
     Wiggins went to Skyline Restaurant and Wiggins ordered food.
     Immediately after they left the restaurant with Wiggins carrying
     his food, a man approached them asking for marijuana. As
     Denmark and Wiggins were walking down the street someone
     yelled “don’t f’ing move.” Denmark heard gunshots and ran
     away.

           On April 12, 2008, at 12:44 p.m., while on routine patrol,
     Police Officer Christopher Mulderrig was flagged down by a man
     on the street and told there had been a shooting about two
     blocks away. When Officer Mulderrig arrived at 5643 Chew
     Avenue, he observed a male, later identified as Wiggins, lying in
     the street with a gunshot wound to the chest. Wiggins
     subsequently died from this gunshot to his chest.

           After the murder, Detective Thorsten Lucke recovered
     surveillance video from Skyline Restaurant. The surveillance
     video showed Wiggins and Kerron Denmark enter Skyline
     Restaurant. While the men are inside the restaurant, a vehicle
     drives by on Chew Avenue and turns left at the corner.
     Defendant Banks and defendant [Quentin] Salmond, wearing
     women’s Muslim clothing, emerge from the area where the car
     had turned from Chew Avenue. The defendants walk towards
     Skyline Restaurant. Defendant Salmond stops in an alley while
     defendant Banks enters the restaurant. Defendant Banks buys a
     bottle of soda, leaves the restaurant, and stands with defendant
     Salmond in the alley, out of sight of the camera. After Wiggins
     gets his food, he and Denmark leave the restaurant and walk
     down the street. Defendant Banks follows closely behind Wiggins
     and Denmark while defendant Salmond follows farther back. The
     defendants confront Wiggins and Denmark and Wiggins falls to
     the ground. Quickly thereafter everyone runs away.

            Police Officer Joanne Gain of the Crime Scene Unit
     recovered two .22 caliber fired cartridge casings, a Nike Air
     Jordan sneaker, and a Mountain Dew bottle from the murder
     scene. Officer Gain tested the Mountain Dew bottle for finger
     prints and DNA. According to Police Officer John Cannon, an
     expert in firearms identification, these two .22 caliber fired
     cartridge casings were fired from the same unrecovered firearm.
     The bullet recovered from the decedents body and the fired
     cartridge casings were not fired from the same firearm.

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            On April 14, 2008, at about 9:00 p.m., an unlicensed blue
      Lincoln town car was found on fire in the area of Tenth Street
      and Chew Avenue. Lieutenant Rodney Wright of the Philadelphia
      Fire Department determined that the vehicle was burned
      intentionally.

            On April 15, 2008, Charles Hayward gave a statement to
      police. Hayward explained that in February he had sold the blue
      Lincoln town car that Hill had called in to 9-1-1 to Bernard
      Salmond, defendant Salmond’s brother. According to Hayward,
      about a week previously, Wiggins had robbed defendant
      Salmond after they had been gambling.

            On April 17, 2008, Richard Hack, a friend of Wiggins, gave
      a statement to police. Hack explained that two days before the
      murder, defendant Salmond, Wiggins, and himself were
      gambling. Defendant Salmond and Wiggins argued about a
      gambling debt and then Wiggins choked defendant Salmond and
      took $1000 from him. For the next couple of nights, defendant
      Salmond and his friends were in the area looking for Wiggins.

            On January 13, 2010, Robert Bluefort told police that
      about three weeks after the murder, defendant Salmond
      confessed to him that he shot Wiggins. According to defendant
      Salmond he had to shoot or be shot. Bernard Salmond told
      Bluefort that the police had questioned Hayward because the car
      that was used in the murder was in his name. Bluefort and
      Bernard Salmond then discussed burning the vehicle. Bernard
      Salmond stayed with Bluefort for about a month after the
      murder.

Trial Court Opinion, 10/3/14, at 2-4.

      As noted, the jury found Appellant guilty of the aforementioned

offenses arising from the shooting death of Mr. Wiggins. On July 28, 2014,

the court imposed sentence. Specifically, it sentenced Appellant to twenty

to forty years imprisonment for third-degree murder, followed by two

consecutive terms of incarceration of five to ten years for conspiracy and

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persons not to possess a firearm. In addition, the court imposed concurrent

sentences of three and one-half to seven years imprisonment for carrying an

unlicensed firearm, and one to two years for PIC. Appellant timely filed a

post-sentence motion on July 30, 2014. The court denied that motion and

this timely appeal ensued.

      The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.      Appellant complied,

and the trial court penned its Rule 1925(a) decision.      The matter is now

ready for this Court’s review.       Appellant presents one issue for our

consideration.

      I.    Did the Lower Court err in denying defendant’s request for
            a mistrial when the prosecutor committed prosecutorial
            misconduct during closing arguments by improperly
            shifting the burden of proof by suggesting that if the
            defendant wanted DNA evidence he could have provided it
            himself?

Appellant’s brief at 3.

      We consider whether a new trial is mandated due to prosecutorial

misconduct based on an abuse of discretion standard. Commonwealth v.

Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will

not be reversible error “unless the unavoidable effect of such comments

would be 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.”   Commonwealth v. Hawkins, 701 A.2d 492,



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503 (Pa. 1997).   Further, “comments by a prosecutor must be examined

within the context of defense counsel's conduct.” Id. It is axiomatic that

the Commonwealth bears the burden of proof in a criminal matter and that

the defendant is not required to present any evidence. Commonwealth v.

Wiggins, 328 A.2d 520 (Pa.Super. 1974).

     Here, defense counsel argued during his closing,

            Not one detective, not Detective Williams, not Detective
     Kelhower, not anybody bothers to get a [DNA] sample from my
     client to see if it’s him. Why? Because it might . . . . show it’s
     not him
            ....

           But all you had to do was get a DNA profile from my client
     and you could have been able to tell if that region excluded him.
     You could have been able to tell if you had the right guy and
     they didn’t even look.

N.T., 3/11/14, 135-136.

     The prosecutor responded with the argument objected to by Appellant

below and on appeal. The prosecution maintained,

           But now we have a fingerprint. What are we arguing
     about now? We are talking about DNA. DNA on a profile that is
     so weak nobody can match to it, but it can exclude somebody
     and [defense counsel] has equal access to the person. If he is
     so confident his client will be excluded, submit your client for
     review. He didn’t do it[.]

Id. at 171.

     Appellant argues that the prosecutor’s argument improperly shifted

the burden of proof to him and erroneously suggested that he was required

to present evidence to demonstrate his innocence.         In his view, the

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prosecutor’s closing statement infringed on his Fifth Amendment rights.

Appellant continues that the trial court’s general instruction to the jury that

the defendant bore no burden of proving his innocence or presenting

evidence was insufficient because it did not specifically address the

prosecutor’s remark.

      The Commonwealth responds that the prosecutor’s closing argument

did not shift the burden of proof and was a fair response to Appellant’s own

summation.    It contends that once Appellant argued that the absence of

DNA evidence was a result of a poor police investigation and that police did

not collect DNA because it might show that Appellant was not the culprit, the

prosecutor   was   allowed   to   respond.     In   this   respect   it   relies   on

Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002).                      Therein, the

defendant claimed that the prosecutor improperly shifted the burden of proof

during his closing argument by asking why the defendant had not presented

three witnesses that defense counsel had suggested she would call during

defense counsel’s opening statement.         The Paddy Court found that the

prosecutor’s remarks were fair response.

      Further, the Commonwealth notes that the trial court’s instructions

that the Commonwealth had the burden of proof and that the defendant was

not required to present any evidence or prove anything in his own defense

removed any potential prejudice.      The Commonwealth also submits that

Appellant’s position that the trial court’s instructions were insufficient

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because it did not explicitly address the prosecutor’s DNA statement is

waived because he did not object to the adequacy of the instruction.

      We find that Appellant is entitled to no relief. A jury is presumed to

follow the court’s instructions.   Commonwealth v. Mollett, 5 A.3d 291

(Pa.Super. 2010). The court appropriately instructed the jury regarding the

Commonwealth’s burden of proof and that Appellant was not required to

present any evidence.    See Commonwealth v. Johnson, 838 A.2d 663,

679 (Pa. 2003).      The prosecutor’s passing reference to the fact that

Appellant could have submitted his DNA to his own expert was not so

egregious as to form in the minds of the jurors a fixed bias that they could

not weigh the evidence fairly. Moreover, the prosecutor did not in any way

suggest that Appellant was required to testify, infringing on his right against

compelled testimony. While a prosecutor cannot comment on a defendant’s

failure to testify, it may respond to “questions logically raised by the

evidence or lack thereof, or fair responses to the assertions of defense

counsel[.]” Paddy, supra at 317 (internal citations omitted).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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