J-S56035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                        v.

SHAHEED CARROLL,

                             Appellant                           No. 1930 EDA 2016


            Appeal from the Judgment of Sentence January 5, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0013189-2014


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                  FILED NOVEMBER 14, 2017

        Appellant, Shaheed Carroll, appeals from the judgment of sentence

imposed following his jury conviction of robbery and related crimes, notably,

intimidation of a witness.       He challenges certain testimony as inadmissible

hearsay, and a comment of the prosecutor during final argument, which he

claims    constituted    impermissible         vouching    for   the   credibility   of   the

complaining witness. He also challenges the sufficiency of the evidence for

the conviction of intimidation of a witness, and the weight of the evidence in

general. We affirm.

        We derive the facts of the case from the trial court’s opinion and our

independent review of the record. (See Trial Court Opinion, 1/23/17, at 2).
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       This case involves two successive robberies, about a month apart, of

the same victim.1       The victim, Tyreese Sheppard, initially claimed that he

was first assaulted by ten people. In the second attack he was assaulted by

three people, who had all been part of the original attack.

       The Commonwealth’s theory of the case, reflecting Sheppard’s initial

accounts, was that the second robbery was in response to his report of the

first robbery to the police, as punishment for “snitching,” and as a warning

to stop further cooperation with the police.2 After his statement to the police

on the second robbery, Mr. Sheppard substantially changed his claims. In

essence, his revised explanation exonerated Appellant.

       In the first robbery, shortly after midnight on August 10, 2014,

Sheppard initially reported that he was assaulted by a group of about ten

persons (nine males and one female, “Ebony”) while he was walking his

then-girlfriend home from the Frankford Transportation Center in the vicinity

____________________________________________


1 The two robbery/intimidation cases were tried together. Appellant, Darnell
Woodson, and Edward Martin, the alleged perpetrators of the second
robbery, were all tried together, after a motion for severance was denied.
All three were convicted. This Court has previously affirmed the judgments
of sentence for Martin and Woodson. See Commonwealth v. Martin, No.
243 EDA 2016, 2017 WL 3114935, at *1 (Pa. Super. filed April 12, 2017);
Commonwealth v. Woodson, No. 1576 EDA 2016, 2017 WL 3142527, at
*1 (Pa. Super. filed July 25, 2017).

2 It bears noting that Sheppard, then age 27, testified he was receiving
social security benefits for mental health issues, viz., “[m]ild MR and
bipolar.” (N.T. Trial, 10/26/15, at 87).




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of Bustleton and Cheltenham Avenues in Northeast Philadelphia. (See N.T.

Trial, 10/26/15, at 86-100, 118-19). Sheppard testified that the assailants

accused him of taking “something from someone.” (Id. at 89; see also id.

at 90).      There was also a vague allusion to a “he said−she said”

disagreement, which appeared to involve Ebony, identified by Sheppard as

the sister of Shaheed (Appellant). (See id. at 103-04).3

       In any event, they attacked him and took his cell phone, kufi,4 ID, and

two hundred dollars in cash. Sheppard and his girlfriend flagged down police

on neighborhood patrol and reported the robbery within a few minutes.

Sheppard could not identify all the attackers, but did name some of the

assailants. (See id. at 100) (“I know them from the neighborhood.”). In

particular, he identified Appellant, Shaheed Carroll. (See id. at 103). Later

that night Sheppard reviewed and signed a written statement to the police.

       About a month later, on September 20, 2014, Sheppard was assaulted

again, under similar circumstances. One of the three attackers threatened

him with a knife. All beat him, kicked him, and robbed him. He called the
____________________________________________


3 We recognize that counsel for Appellant maintained that the reference was
actually to the sister of another assailant in the first attack, Shadee, not
Shaheed [i.e., not Appellant]. (See N.T. Trial, 10/28/15, at 111-12). The
trial court properly decided that the alleged discrepancy was for the jury as
factfinder to resolve. (See id.). The discrepancy is not material to our
resolution of the issues on appeal.

4 A kufi is a short, brimless, rounded hat, commonly worn in West Africa,
South Asia, and by others of West African heritage.




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police a second time.        At first he identified three people from the earlier

attack (including Appellant) as the perpetrators of the second attack.

Sheppard again signed a written statement to the police.

       The trial court made the following related findings of fact:

              On September 19, 2014, the complainant, Tyreese
       Sheppard, was leaving a friend’s house on the 6100 block of
       Frontenac St. in Philadelphia.        At that location he was
       approached by the defendant [Appellant], along with co-
       defendants, Darnell Woodson and Edward Martin.          The co-
       defendant, Darnell Woodson made a comment regarding Mr.
       Sheppard “snitching” about a previous robbery [on August 10,
       2014] where he was the victim. The co-defendant Woodson
       then started to instigate a fight between the two. The other co-
       defendant Martin joined in the fight and both started punching
       and kicking Mr. Sheppard all over his body. Mr. Sheppard fell to
       the ground and at that point the defendant [Appellant] began
       kicking him.     All three defendants then went through Mr.
       Sheppard’s pockets and took from him his cell phone, charger,
       SEPTA5 Transpass [weekly or monthly transportation ticket],
       headphones, and $5 before running off. Mr. Sheppard called
       911 and was able to provide the police information so that his
       cell phone could be tracked.

              Based on the information about Mr. Sheppard’s cell phone,
       police officers were able to track the phone to the area of 5300
       Darrah Street. At that location, officers stopped the three co-
       defendants since they matched the description given by Mr.
       Sheppard. Mr. Sheppard positively identified each co-defendant
       as being a participant in the robbery. The items Mr. Sheppard
       identified as being taken from him by the co-defendants were
       recovered from their possession.

(Trial Ct. Op., at 2) (record citations omitted).


____________________________________________


5 SEPTA is an acronym for the Southeastern Pennsylvania Transportation
Authority.



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       Additionally, with specific reference to Appellant, Shaheed Carroll, we

note that Sheppard told the police, “He was kicking me once I was on the

ground. He said he was beating me up for snitching on them the last time

they robbed me.        He was the one that took the $5 from me.         He went

through my pockets and took it off of me.” (N.T. Trial, 10/26/15, at 116).

       Sometime after making the initial reports, Sheppard apparently

reconsidered, and at least by the time of the preliminary hearing he was an

unabashedly reluctant witness: (“First, do you want to be here today?”

“No.”). (N.T. Preliminary Hearing, 11/21/14, at 6).

       At trial, Sheppard offered this rationale: “Me, I’m 27. So I’m from the

streets. So I always look at it like if you [sic] in [c]ourt and you [sic] sitting

here talking about someone, it’s snitching. I’ve never been a snitch a day in

my life, so − [.]” (N.T. Trial, 10/26/15, at 108).6

       In his trial testimony, Sheppard recanted or radically revised much, if

not most, of his earlier statements. In particular, after previously identifying

Appellant as one of the assailants who kicked and beat him, (see id. at 115-

16), at trial Sheppard claimed that Appellant was not involved in the second

attack at all.    He testified instead that Appellant was merely an onlooker.

(See id. at 97) (“I say [he] spectated. Just so, like, oh, like you know, just

____________________________________________


6 Mr. Sheppard also tried (unsuccessfully) to leave court early, claiming
vaguely that he had a prior appointment required by Social Security. (See
N.T. Trial, 10/26/15, at 159-60). The judge ordered him to stay.



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normal spectating.”). Sheppard added that “Shaheed [Appellant] was all the

way on the other side of the street.” (Id. at 109).

      The Commonwealth read into the record the text of Sheppard’s earlier,

signed, incriminatory statements to the police, identifying Appellant as an

active assailant.   Sheppard agreed that he had reviewed and signed the

statement of August 10, 2014, Commonwealth C-8.             (See id. at 98).

Sheppard also agreed that he had reviewed and signed the statement of

September 20, 2014, Commonwealth C-9. (See id. at 110-11).

      Pertinent to the first issue on appeal, over the objection of Appellant’s

defense counsel, the Commonwealth also read the following statement by

Sheppard to the police into the record:

            “When they found out that I had filed a report against

      them, I got word back that whenever they came across me, they

      were going to beat me up and rob me again.”

(Id. at 113, lines 18-21).

      On cross-examination, Sheppard admitted his prior incarceration,

having pleaded guilty to theft by unlawful taking by the use of another

person’s credit card information. (See id. at 143-45). The defense lawyers

for all three defendants also read selective portions of the prior statements,

highlighting, inter alia, inconsistencies with his trial testimony.   They all

called Sheppard’s credibility into question.




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        In her closing argument, the prosecutor stated, inter alia, that “[t]he

law foresees that there’s going to sometimes, maybe, be outside influences

that may cause you to backtrack . . . . The law understands that maybe Mr.

Tyreese Sheppard has to go back home.”               (N.T. Trial, 10/28/15, at 101-

102). The trial court overruled the objection of Appellant’s counsel.

        The jury was undecided on all charges arising out of the August

assault.7    (See Trial Ct. Op., at 1 n.1).          It convicted Appellant of the

following    charges     arising   out    of   the   September   assault:   robbery,

(threatening bodily injury),8 conspiracy to commit robbery, (threatening

bodily injury),9 intimidation of a witness,10 and simple assault.11         The jury

was undecided on the remaining charges.12                The Commonwealth nolle

prossed the remaining charges, declining to re-prosecute them.


____________________________________________


7 Specifically, the jury could not reach a verdict on robbery, (threatening
serious bodily injury); robbery, (threatening bodily injury); conspiracy to
commit robbery, (threatening serious bodily injury); conspiracy,
(threatening bodily injury; theft by unlawful taking; receiving stolen
property; simple assault; and recklessly endangering another person. (See
N.T. Trial, 11/02/15, at 12-13).

8   18 Pa.C.S.A. § 3701(a)(1)(iv).
9   18 Pa.C.S.A. § 903.
10   18 Pa.C.S.A. § 4952.
11   18 Pa.C.S.A. § 2701.

12 Specifically, the jury could not reach a verdict on robbery, (threatening
serious bodily injury); conspiracy to commit robbery, (threatening serious
(Footnote Continued Next Page)


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      On January 5, 2016, the court sentenced Appellant to a term of

incarceration of not less than six and one-half nor more than thirteen years

in a state correctional institution.            Appellant’s post-sentence motion,

including a challenge to the weight of the evidence, was denied by operation

of law. This timely appeal followed.13

      Appellant raises four questions for our review:

            1. Did not the trial court err by allowing the introduction
      of inadmissible hearsay evidence through testimony of the
      complainant and a detective in the form of statements made by
      unknown third parties, that were offered solely to prove the guilt
      of [A]ppellant and his co-defendants?

            2. Did not the trial court err by overruling [A]ppellant’s
      objection to improper remarks made by the prosecutor during
      her summation, inasmuch as the prosecutor’s statements
      violated due process by improperly expressing a personal
      opinion as to the credibility of the complainant’s statement to
      detectives and misstating the law regarding prior inconsistent
      statements, thereby depriving [A]ppellant of his federal and
      state constitutional rights to due process, a fair and impartial
      jury, and a fair trial?

             3. Was not the evidence insufficient to support the verdict
      of intimidation as a matter of law, where the complainant was
      not a witness or a victim in any criminal matter at the time of
      the September robbery and the only evidence as to [A]ppellant’s
      conduct during the September robbery was that he said he was

(Footnote Continued) _______________________

bodily injury); theft by unlawful taking; receiving stolen property; and
recklessly endangering another person.

13Appellant filed a timely court-ordered statement of errors on July 15,
2016. The trial court filed an opinion on January 23, 2017. See Pa.R.A.P.
1925.




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       beating up the complainant because the complainant snitched,
       which was not conduct intended to thwart the administration of
       justice?

              4. Did not the trial court err by denying [A]ppellant’s post-
       trial motion for a new trial, as the verdict was against the weight
       of the evidence, where the Commonwealth’s complainant
       admitted to lying at various times throughout the proceedings
       and provided so many differing versions of events such that the
       totality of the evidence was so tenuous, vague and uncertain,
       that it did not support the verdict and a new trial was necessary
       in the interests of justice?

(Appellant’s Brief, at 5-6).14

       Appellant first argues that the trial court erroneously permitted the

admission of inadmissible hearsay evidence.15 (See Appellant’s Brief, at 20-

26). We disagree.

              The standard of review employed when faced with a
       challenge to the trial court’s decision as to whether or not to
       admit evidence is well settled.         Questions concerning the
       admissibility of evidence lie within the sound discretion of the
       trial court, and a reviewing court will not reverse the trial court’s
       decision absent a clear abuse of discretion. Abuse of discretion
       is not merely an error of judgment, but rather where the
       judgment is manifestly unreasonable or where the law is not
____________________________________________


14 Appellant’s brief exceeds forty-one pages, substantially in excess of the
thirty-page “safe harbor” maximum. Counsel for Appellant has failed to
comply with the requirement to certify that the brief does not exceed the
rule-based word limit. See Pa.R.A.P. 2135. We could quash this appeal on
that basis alone. See Commonwealth v. Spuck, 86 A.3d 870, 871 (Pa.
Super. 2014), appeal denied, 109 A.3d 679 (Pa. 2015). Nevertheless, we
decline to do so for reasons of judicial economy.
15 Appellant implies multiple claims of hearsay, but in point of fact the only
claim specifically mentioned, let alone developed, is the (oft-repeated)
reference to the “I got word back” statement. (Appellant’s Brief, at 20, 21,
22, 23, 25).



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      applied or where the record shows that the action is a result of
      partiality, prejudice, bias or ill will.

            Hearsay is defined as “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.” Pa.R.E.
      801(c).

Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007),

appeal denied, 951 A.2d 1159 (Pa. 2008) (case citation omitted).

      “We   have   repeatedly    declared,    however,   that   an   out-of-court

statement offered to explain the course of conduct of police is not hearsay.

Since the challenged statement was offered merely to establish the officer’s

course of conduct, appellant’s complaint is without merit.” Commonwealth

v. Hill, 549 A.2d 199, 203 (Pa. Super. 1988), appeal denied, 563 A.2d 887

(Pa. 1989) (citations omitted); see also Commonwealth v. Carroll, 513

A.2d 1069, 1071 (Pa. Super. 1986) (course of conduct exclusion not limited

to conduct of police).

      Here, the trial court expressly noted its conclusion that the statement

to the police officer formed the basis of the police investigation. (See N.T.

Trial, 10/26/15, at 113). On independent review, we agree. The statement

was not offered for the truth of the matter, but to show the basis of the

police linking investigation of the September attack to the August attack.

      We would add that the statement also established the state of mind of

the victim (who testified that he tried, unsuccessfully, to take evasive action

to avoid his would-be assailants) providing an explanation for his later


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change of heart about testifying against Appellant, after he was robbed and

beaten a second time.

      Furthermore, our Supreme Court has recently reaffirmed that evidence

of other crimes, while generally not admissible solely to show criminal

propensity, may be admissible in special circumstances where it is relevant

for some other legitimate purpose; such as the res gestae exception, where

the evidence became part of the history of the case and formed part of the

natural development of the facts.     See Commonwealth v. Cousar, 154

A.3d 287, 303–04 (Pa. 2017) (citing Commonwealth v. Lark, 543 A.2d

491, 497 (Pa. 1988)). Thus, under the res gestae exception evidence can

also be admissible to show motive and complete the story of the case. See

Cousar, supra at 304 (citing Lark, supra at 497).

      We conclude that in this case, as in Cousar and Lark, the threat of

retribution would be a part of the history of the case which completes the

story and forms part of the natural development of the facts, from robbery

to police report, to threat of retribution, to retribution, under the res gestae

exception.

      The Commonwealth further notes that the prior statement of a

recanting witness challenged as hearsay is admissible both as a prior

inconsistent statement and as evidence of the declarant’s state of mind.

(See Commonwealth’s Brief, at 10) (citing Commonwealth v. Ragan, 645

A.2d 811, 818-19 (Pa. 1994) (holding signed statement of identifying


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witness who later recanted was admissible both as prior inconsistent

statement by recanting witness, and as evidence of witness’ state of mind)).

      We agree. The anonymous threat of retribution was not presented for

the truth of the matter, but rather to show the witness’ state of mind and to

explain why the witness’ trial testimony conflicted with his prior statements.

      Furthermore, even if the statement was hearsay, it was merely

cumulative of other admissible evidence. See Commonwealth v. Luster,

71 A.3d 1029, 1042 (Pa. Super. 2013), appeal denied, 83 A.3d 414 (Pa.

2013) (murder victim’s allegedly hearsay statement that appellant was going

to harm her was merely cumulative of other evidence, and harmless error).

Here, notably, Sheppard reported to the police that while he was being

assaulted (for the second time) Appellant told him directly that he was being

robbed and beaten for “snitching.” (N.T. Trial, 10/26/15, at 116).

      Finally, on this claim, Appellant argues that the purportedly erroneous

admission of the rumor/report reference was the corroboration on which the

Commonwealth “hung their [sic] hat.” (Appellant’s Brief, at 26). Appellant

argues, in effect, that admitting the evidence “was not harmless error,”

because the reference was needed to obtain a guilty verdict. (Id.). In other

words, Appellant asserts that without the erroneously admitted evidence, he

would have been acquitted. He concludes “a new trial is warranted.” (Id.).

We disagree.




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      This claim is unsupported and speculative.        Sheppard’s report of a

rumor did not identify Appellant or any other potential perpetrators.       The

single, brief reference to a rumor or report that unnamed parties intended to

beat and rob Sheppard is merely cumulative of Sheppard’s direct statement

(albeit later recanted) that Appellant (and the other co-defendants) did beat

him, kick him and rob him for snitching. (See N.T. Trial, 10/26/15, at 116).

Even if improperly admitted−a conclusion we emphatically reject for the

reasons already noted−it would have been at most harmless error.

      Here, the trial court committed no error.         The statement was not

hearsay.   It was properly admitted as a prior statement inconsistent with

Sheppard’s subsequent recantation, indicating his state of mind, to complete

the story of the case and explain both the police course of conduct and his

own. Moreover, Sheppard, the declarant, testified and was subject to cross-

examination, excluding his statement from the hearsay rule.         See Pa.R.E.

803.1(1). We discern no basis on which to disturb the discretion of the trial

court. Appellant’s first claim does not merit relief.

      In his second claim, Appellant argues that the prosecutor improperly

vouched for the credibility of Sheppard. (See Appellant’s Brief, at 27-30).

Appellant references that in closing argument the prosecutor stated that

“outside influences . . . may cause [you] to backtrack[,]” i.e., cause

Sheppard to recant his incriminating testimony.         (Id. at 27) (citing N.T.

Trial, 10/28/15, 101-103) (internal quotation marks omitted).             In an


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apparent reference to Sheppard’s testimony that he knew his assailants from

the neighborhood, the prosecutor added, “The law understands that maybe

Mr. Tyreese Sheppard has to go back home.” (N.T. Trial, 10/28/15, at 102).

      Appellant maintains that the prosecutor’s statements improperly

vouched for Sheppard by expressing a personal opinion as to the credibility

of his statements to the police, entitling him to a new trial. We disagree.

      It is well-settled that vouching is a form of prosecutorial misconduct,

occurring when a prosecutor “places the government’s prestige behind a

witness through personal assurances as to the witness’s truthfulness, and

when it suggests that information not before the jury supports the witness’s

testimony.” Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014) (citing

Commonwealth v. Williams, 896 A.2d 523, 541 (Pa. 2006)).

      Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion:

           In considering this claim, our attention is focused on
      whether the defendant was deprived of a fair trial, not a perfect
      one.

               Generally, a prosecutor’s arguments to the jury are
         not a basis for the granting of a new trial unless the
         unavoidable effect of such comments would be to prejudice
         the jury, forming in their minds fixed bias and hostility
         towards the accused which would prevent them from
         properly weighing the evidence and rendering a true
         verdict.

              A prosecutor must have reasonable latitude in fairly
        presenting a case to the jury and must be free to present
        his or her arguments with logical force and vigor. The
        prosecutor is also permitted to respond to defense

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        arguments.    Finally, in order to evaluate whether the
        comments were improper, we do not look at the comments
        in a vacuum; rather we must look at them in the context in
        which they were made.

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008) (citations

omitted).

            A prosecutor may make fair comment on the admitted
     evidence and may provide fair rebuttal to defense arguments.
     Even an otherwise improper comment may be appropriate
     if it is in fair response to defense counsel’s remarks. Any
     challenge to a prosecutor’s comment must be evaluated in the
     context in which the comment was made.

              Not every unwise, intemperate, or improper remark
        made by a prosecutor mandates the grant of a new trial[.]
        Reversible error occurs only when the unavoidable effect of
        the challenged comments would prejudice the jurors and
        form in their minds a fixed bias and hostility toward the
        defendant such that the jurors could not weigh the
        evidence and render a true verdict.

              While it is improper for a prosecutor to offer any
        personal opinion as to the guilt of the defendant or the
        credibility of the witnesses, it is entirely proper for the
        prosecutor to summarize the evidence presented, to
        offer reasonable deductions and inferences from the
        evidence, and to argue that the evidence establishes
        the defendant’s guilt . . . . [The] prosecutor must be
        free to present his or her arguments with logical force and
        vigor, and comments representing mere oratorical flair are
        not objectionable.

Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014), cert. denied, 135

S. Ct. 1493, 1494 (2015) (citations and internal quotation marks omitted)

(emphases added).

     Here, furthermore, our independent review of the record reveals that

Appellant’s defense counsel did not object to “vouching” at trial. (See N.T.

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Trial, 10/28/15, at 101-02, 112-13, 115). Rather, counsel objected that the

prosecutor’s closing statement erroneously invoked a purported presumption

of law to the effect that victims of crime want to tell the truth about the

crime committed against them. (See, e.g., id. at 113) (defense counsel did

not object to vouching; instead, he asked, “What law presumes that?”).

      Accordingly, Appellant’s claim of vouching is waived.      See Pa.R.A.P.

302(a).   (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”). Moreover, it would not merit relief.

      Preliminarily, we note that the challenged statement by the prosecutor

does not in fact constitute vouching as defined by our controlling authority.

See Reid, supra at 447; Williams, supra at 541. The prosecutor did not

offer her personal opinion on the credibility of the witness. She did not refer

to information outside the record.    She referred to an alternate statement

already on the record as the testimony more worthy of belief. “A prosecutor

may make fair comment on the admitted evidence and may provide fair

rebuttal to defense arguments.”      Burno, supra at 974 (citation omitted).

“[I]t is entirely proper for the prosecutor to summarize the evidence

presented, to offer reasonable deductions and inferences from the evidence,

and to argue that the evidence establishes the defendant’s guilt[.]”           Id.

(citation omitted).

      Additionally, Appellant’s intertwined companion argument, that the

prosecutor misstated a supposed presumption of law, does not merit relief


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either. On independent review, we conclude that the prosecutor’s comments

were made in fair response to repeated challenges by all three defense

counsel to Sheppard’s credibility based on his inconsistent statements.

“Even an otherwise improper comment may be appropriate if it is in fair

response to defense counsel’s remarks.” Id. at 974 (citation omitted); see

also Pa.R.E. 803.1(1); Commonwealth v. Brady, 507 A.2d 66, 69 (Pa.

1986); Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992).

       We find here that the prosecutor’s statements were an attempt, in fair

response even if arguably inartful, to invoke the undisputed principle that

the Commonwealth was entitled to introduce the prior inconsistent signed

statements of a recanting witness, known as the Brady/Lively rule.16 (See

N.T. Trial, 10/28/15, at 115) (prosecutor citing Brady/Lively rule).

       Additionally, the trial court properly instructed the jury that it was to

apply only the law on which the court instructed it, and that the arguments

of counsel were not to be considered as part of the evidence.        (See N.T.

Trial, 10/28/15, at 120, 126). “It is settled law that, absent evidence to the

contrary, the jury is presumed to have followed the trial court’s instructions .

. . , and Appellant does not point to any evidence to the contrary.”
____________________________________________


16 See Commonwealth v. Chmiel, 738 A.2d 406, 419 (Pa. 1999), cert.
denied, 528 U.S. 1131 (2000) (noting that under Brady/Lively, prior
inconsistent statements of non-party witness may be used as substantive
evidence where declarant is witness at trial and available for cross-
examination).




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Commonwealth v. Laird, 988 A.2d 618, 629 (Pa. 2010), cert. denied, 562

U.S. 1069 (2010) (citation omitted).     Appellant’s claim that the jury was

misled and confused on the controlling law by the prosecutor’s remarks

ignores well-settled presumptions, and lacks independent foundation in

either law or the facts.

      Finally, it is obvious that the prosecutor’s comments did not prejudice

the jury against Appellant, forming in their minds fixed bias and hostility

which would require a new trial.       To the contrary, the jury acquitted

Appellant of all charges relating to the first robbery and numerous remaining

charges associated with the second robbery. (See N.T. Trial, 11/02/15, 12-

18). Appellant’s second claim does not merit relief.

      In his third claim, Appellant asserts that the evidence was insufficient

to convict him of intimidation of a witness.   (See Appellant’s Brief, at 31-

36). We disagree.

            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record “in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.”
      Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
      (2000). “Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt.”     Commonwealth v. Brewer, 876 A.2d
      1029, 1032 (Pa. Super. 2005).                Nevertheless, “the
      Commonwealth need not establish guilt to a mathematical
      certainty.” Id.; see also Commonwealth v. Aguado, 760
      A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts and
      circumstances established by the Commonwealth need not be
      absolutely incompatible with the defendant’s innocence”). Any
      doubt about the defendant’s guilt is to be resolved by the fact

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      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances. See Commonwealth v. DiStefano,
      782 A.2d 574, 582 (Pa. Super. 2001).

             The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. See Brewer, 876 A.2d at 1032.
      Accordingly, “[t]he fact that the evidence establishing a
      defendant's participation in a crime is circumstantial does not
      preclude a conviction where the evidence coupled with the
      reasonable inferences drawn therefrom overcomes the
      presumption of innocence.” Id. (quoting Commonwealth v.
      Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)).
      Significantly, we may not substitute our judgment for that of the
      fact finder; thus, so long as the evidence adduced, accepted in
      the light most favorable to the Commonwealth, demonstrates
      the respective elements of a defendant’s crimes beyond a
      reasonable doubt, the appellant’s convictions will be upheld.
      See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013) (one

citation omitted).

            A person commits an offense if, with the intent to or with
      the knowledge that his conduct will obstruct, impede, impair,
      prevent or interfere with the administration of criminal justice,
      he intimidates or attempts to intimidate any witness or victim to:

            (1) Refrain from informing or reporting to any law
      enforcement officer, prosecuting official or judge concerning any
      information, document or thing relating to the commission of a
      crime.

             (2) Give any false or misleading information or testimony
      relating to the commission of any crime to any law enforcement
      officer, prosecuting official or judge.

            (3) Withhold any testimony, information, document or
      thing relating to the commission of a crime from any law
      enforcement officer, prosecuting official or judge.

            (4) Give any false or misleading information or testimony
      or refrain from giving any testimony, information, document or

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      thing, relating to the commission of a crime, to an attorney
      representing a criminal defendant.

           (5) Elude, evade or ignore any request to appear or legal
      process summoning him to appear to testify or supply evidence.

           (6) Absent himself from any proceeding or investigation to
      which he has been legally summoned.

18 Pa.C.S.A. § 4952(a).

      Here, under our standard of review, viewing the evidence and all

reasonable inferences in the light most favorable to the Commonwealth as

verdict winner, we have no hesitation in concluding that there was more

than ample evidence to support Appellant’s conviction of intimidation of a

witness.

      Preliminarily, we agree with the trial court that Appellant’s generic

assertion of insufficiency in his Rule 1925(b) statement of errors “as a

matter of law” is too vague to enable meaningful review. (See Trial Ct. Op.,

at 8; see also Statement of Errors Complained of on Appeal, 7/15/16, at

unnumbered page 2) (“[T]he evidence was insufficient as a matter of law to

convict on the charge of Intimidation of Witnesses or Victims, 18 Pa.C.S.A.

§ 4952, as a felony of the first degree.”).

      When the trial court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review. When an
      appellant fails adequately to identify in a concise manner the
      issues sought to be pursued on appeal, the trial court is impeded
      in its preparation of a legal analysis which is pertinent to those
      issues. In other words, a Concise Statement which is too vague
      to allow the court to identify the issues raised on appeal is the
      functional equivalent of no Concise Statement at all.


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Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002) (citations

and internal quotation marks omitted). Accordingly, Appellant’s third claim

is waived.

      Moreover, his argument on appeal would not merit relief.                Appellant

argues chiefly that at the time of the September robbery Sheppard “was not

a victim or a witness in any criminal matter[.]” (Appellant’s Brief, at 31).

Appellant also argues that even though the evidence presented against him

might prove retaliation, it does not prove intimidation. (See id. at 33). We

disagree.

      Appellant’s gratuitous assumption that Sheppard was neither a victim

nor   a   witness   is   unsupported,   and      in   fact,   belied   by   the   record.

Furthermore, Appellant’s somewhat paradoxical claim that because he

concedes he could be guilty of retaliation, he is not guilty of intimidation, is

without foundation in either controlling authority or the facts. It overlooks

the reality that Appellant could be (and actually was) materially guilty of

both crimes, even if the Commonwealth did not choose to charge that way.

      Overarching all of these considerations, Appellant disregards our

standard of review, which views the evidence, together with all reasonable

inferences, in the light most favorable to the Commonwealth as verdict

winner.     The jury as factfinder was free to accept evidence that Appellant

and his cohorts robbed Sheppard a second time both in retaliation for his




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report to the police of the first robbery, and to discourage him from further

cooperation. Appellant waived his third claim. It would not merit relief.

      In Appellant’s fourth and final claim, he challenges the weight of the

evidence.    (See id. at 36-42).     Appellant asserts that the verdict was

“against the interests of justice.”      (Id. at 19).     He posits that the

inconsistencies in Sheppard’s testimony were “glaring and significant.” (Id.

at 41).     He postulates that the evidence was “tenuous, vague and

uncertain.” (Id. at 42). He maintains this Court should remand for a new

trial. (See id.). We disagree.

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. A new trial should not be granted
      because of a mere conflict in the testimony or because the judge
      on the same facts would have arrived at a different conclusion.
      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice. It has often been stated that
      a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.

            An appellate court’s standard of review when presented
      with a weight of the evidence claim is distinct from the standard
      of review applied by the trial court.

                Appellate review of a weight claim is a review of
          the exercise of discretion, not of the underlying
          question of whether the verdict is against the weight
          of the evidence. Because the trial judge has had the
          opportunity to hear and see the evidence presented, an
          appellate court will give the gravest consideration to the
          findings and reasons advanced by the trial judge when
          reviewing a trial court’s determination that the verdict is

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         against the weight of the evidence. One of the least
         assailable reasons for granting or denying a new
         trial is the lower court’s conviction that the verdict was or
         was not against the weight of the evidence and that a new
         trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and

quotation marks omitted) (first emphasis added in original) (second

emphasis added here). “In order for an appellant to prevail on a challenge

to the weight of the evidence, ‘the evidence must be so tenuous, vague and

uncertain   that   the   verdict   shocks     the   conscience   of   the   court.’”

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003), appeal

denied, 833 A.2d 143 (Pa. 2003).

      Conflicts in the evidence and contradictions in the testimony of any

witnesses are for the fact finder to resolve.          See Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal denied, 32 A.3d 1275

(Pa. 2011) (citations omitted) (“[T]he [trier] 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.”).        “Moreover, in applying the

above test, the entire record must be evaluated and all evidence actually

received must be considered.” Id.

      Applying this standard of review, we discern no basis on which to

disturb the decision of the trial court. The trial court did not palpably abuse

its discretion. Weighing the evidence was the province of the jury sitting as

fact finder. The jury was free to believe all, part, or note of the evidence.


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Its verdict does not shock one’s conscience or sense of justice. Appellant’s

weight claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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