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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                  v.                    :
                                        :
                                        :
KEITH KINARD,                           :
                                        :
                  Appellant             :     No. 3019 EDA 2015

         Appeal from the Judgment of Sentence September 3, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013967-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                          FILED MARCH 28, 2017

      Appellant, Keith Kinard, appeals from the September 3, 2015

Judgment of Sentence entered by the Philadelphia Court of Common Pleas.

After careful review, we affirm.

      We summarize the relevant factual and procedural history as follows.

On November 11, 2014, Philadelphia Police received information that

Appellant, who had an outstanding arrest warrant, was located at 1700

North Hollywood Street, Philadelphia, PA. Multiple officers responded to the

call, located Appellant, and placed him under arrest.      During a search

incident to that arrest, officers recovered a .32 caliber revolver from

Appellant’s fanny pack. Appellant was charged with Possession of a Firearm

by a Person Prohibited, Possession of a Firearm with Manufacturer Number
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Altered, Firearms not to be Carried Without a License, and Carrying Firearms

on Public Streets or Public Property in Philadelphia.1

        Appellant elected to proceed by way of a jury trial, which the trial

court bifurcated.    On June 26, 2015, the jury found Appellant guilty of

Firearms not to be Carried Without a License, and Carrying Firearms on

Public Streets or Public Property in Philadelphia. The parties stipulated that

Appellant had a prior predicate conviction and, after due deliberations, the

jury found Appellant guilty of Possession of a Firearm by a Person Prohibited.

The Commonwealth nolle prossed the charge of Possession of a Firearm with

Manufacturer Number Altered.

        On September 3, 2015, the trial court sentenced Appellant to an

aggregate term of 9 to 19 years of imprisonment. At the close of Appellant’s

sentencing     hearing,   Appellant   made   three   separate   profanity   laced

statements in which he insulted the trial court. After each statement, the

trial court found Appellant guilty of Criminal Contempt, and sentenced

Appellant to a term of 60 to 120 days for each outburst, each consecutive to

all other sentences.2 Thus, the trial court imposed an aggregate sentence

on all charges of 9½ to 20 years of imprisonment.


1
    18 Pa.S.C. §§ 6105(a)(1), 6110.2(a), 6106(a)(1), and 6108, respectively.
2
  In its 1925(a) Opinion, the trial court raised, sua sponte, concerns that it
had imposed illegal sentences on the Criminal Contempt charges. The trial
court erroneously states that a sentence for criminal contempt cannot
exceed 90 days of imprisonment, and that, therefore, Appellant’s sentences



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          Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

          On appeal, Appellant raises a single issue for our review.

          Did not the trial court err by overruling defense counsel’s
          objection, as well as counsel’s request for a curative instruction,
          to improper and prejudicial remarks made by the prosecutor
          during the Commonwealth’s closing argument in so much as the
          prosecutor’s statements violated due process by improperly
          impugning the trial strategy of the defense and the character of
          defense counsel, all of which went beyond the bounds of fair
          advocacy and deprived [A]ppellant of his federal and state
          constitutional rights to due process, a fair and impartial jury, and
          a fair trial?

Appellant’s Brief at 3.

          Appellant’s issue involves allegations of prosecutorial misconduct

during closing arguments, resulting in a due process violation.                  “To

constitute a due process violation, the prosecutorial misconduct must be of

sufficient significance to result in the denial of the defendant’s right to a fair

trial.”    Greer v. Miller, 483 U.S. 756, 765 (1987) (citation and quotation

marks omitted).        As our Supreme Court has explained, “the Due Process

Clause is not a code of ethics for prosecutors; its concern is with the manner

in which persons are deprived of their liberty. The touchstone is the fairness




of 60 to 120 days of imprisonment are illegal. Trial Court Opinion, filed
3/21/16, at 9-11. There is no statutory maximum sentence for direct
criminal contempt in Pennsylvania. Commonwealth v. Snyder, 275 A.2d
312, 317 (Pa. 1971).      We, therefore, leave Appellant’s Judgment of
Sentence undisturbed.



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of the trial, not the culpability of the prosecutor.” Commonwealth v. Cox,

983 A.2d 666, 685 (Pa. 2009) (citations and quotation omitted).

      “[P]rosecutorial   misconduct   does     not     take   place   unless   the

‘unavoidable effect of the comments at issue was to prejudice the jurors by

forming in their minds a fixed bias and hostility towards the defendant, thus

impeding their ability to weigh the evidence objectively and render a true

verdict.’” Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008)

(quoting Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)). “In

reviewing a claim of improper prosecutorial comment, our standard of

review is whether the trial court abused its discretion.” Commonwealth v.

Noel, 53 A.3d 848, 858 (Pa. Super. 2012).              When considering such a

contention, “our attention is focused on whether the defendant was deprived

of a fair trial, not a perfect one, because not every inappropriate remark by

a   prosecutor   constitutes   reversible    error.”      Id.   at    858   (citing

Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012)).

      Moreover, “[i]n 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.” Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super.

2012); see also Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006)

(stating that a prosecutor is entitled to fairly respond to arguments made by



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defense counsel in closing argument). In fact, “comments by a prosecutor,

which would otherwise be in error, have been held not to be erroneous if

made in response to a defense argument.” Commonwealth v. Brown, 673

A.2d 975, 981 (Pa. Super. 1996) (collecting cases).

      Finally, it is the defendant himself who is entitled to a fair trial; our

courts are reluctant to find prosecutorial misconduct that rises to the level of

a due process violation where the prosecutor’s comments are directed at

defense counsel and not the defendant. See Commonwealth v. LaCava,

666 A.2d 221, 233 (Pa. 1995) (finding no prosecutorial misconduct where

prosecutor’s comments suggested that defense counsel improperly coached

a witness because “defense counsel was not on trial, appellant was.”); see

also Commonwealth v. Faulkner, 595 A.2d 28, 39 (Pa. 1991) (finding

that the trial court did not err in finding no prejudice to the defendant based

on   prosecutor’s   comments       that   defense       counsel    was   “stupid”    and

“outrageous”). But see Commonwealth v. Culver, 51 A.3d 866, 875-76

(Pa. Super. 2012) (finding that the trial court did not abuse its discretion in

granting a new trial based on prosecutor’s behavior including, inter alia,

repeatedly yelling, gesturing menacingly, and putting his finger in the face of

the defendant and defense counsel during opening and closing arguments).

      In   the   instant   case,   Samuel       Haaz,   Esquire,    attorney   for   the

Commonwealth, made the following remarks during his closing argument.

      MR. HAAZ: In this case, a gun was recovered in front of eight
      police officers and a sergeant in broad daylight from the


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      defendant’s fanny pack.        I mean, how much is DNA or
      fingerprints really going to help that, if you believe the police
      officers or you think they’re completely making it up?

      [Defense counsel,] Ms. McKenna, you know -- Ms. McKenna is an
      excellent attorney, and she did a great job on this case. She has
      a job to do --

      MS. MCKENNA: Objection.

      MR. HAAZ: -- and her job is not the same –

      THE COURT: Excuse me one second. What’s the basis for the
      objection?

      MS. MCKENNA: Can we see Your Honor at sidebar?

      THE COURT: Do you want me to instruct the jury you did not do
      a great job on your case?

      MS. MCKENNA: No, Your Honor.

      THE COURT: All right. We’ll go to sidebar for a moment. Just
      one second. We’ll be right back.

      ---

      (Whereupon a discussion was held at sidebar.)[3]

      ---

      THE COURT: All right. So, Mr. Haaz, it’s still your turn.

      MR. HAAZ: Thank you, Your Honor.




3
  It its 1925(a) Opinion, the trial court avers that Appellant waived his claim
because “there is no evidence that [Appellant] made an objection or asked
for a curative instruction to that portion of the closing argument[.]” Trial
Court Opinion at 4. However, our review of the record shows that defense
counsel objected to the prosecutor’s comments during arguments, and then
renewed the objection at the close of argument and requested a curative
instruction. See N.T., Closing Arguments, 6/25/15, at 17; N.T., 6/25/15, at
37-39.



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      My point was that Ms. McKenna’s job is different than your job.
      Ms. McKenna’s job is to zealously represent her client and she’s
      done that. Her job is to look at all of the evidence and try to
      look at it in a way that helps the person she’s working for, which
      is her client, but your job is to look at the evidence and seek the
      truth, to listen to all of the testimony that you heard, look at the
      firearm, consider the prison tape [of Appellant’s phone call to an
      aunt]. Look at everything that came out of the jury box and
      really think about what really happened that day. Did the
      defendant really possess a gun that day? And I submit that
      when you do that, you’ll reach a verdict of guilty.

N.T., Closing Arguments, 6/25/15, at 17-18.

      Appellant argues that these comments “maligned the defense strategy

and in particular defense counsel’s veracity” and, therefore, prejudiced

Appellant   because    “[i]f   the   jury   accepted    the      Commonwealth’s

representation, that defense counsel was hiding the truth, [A]ppellant was

denied his right to a fair trial.” Appellant’s Brief at 11-12. For the following

reasons, we conclude that Appellant is not entitled to relief.

      Initially we note that, other than the most cursory averment, Appellant

does not develop any argument that the prosecutor’s comments prejudiced

him personally. Like the defendant in LaCava, the substance of Appellant’s

claim is his averment that the prosecutor’s statements maligned defense

counsel, not the defendant.    LaCava, supra at 233. As “defense counsel




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was not on trial,” we might conclude that Appellant is not entitled to relief on

this basis alone.4 Id.

      More importantly, it is clear from the record of closing arguments as a

whole that Mr. Haaz’s comments were a fair response to defense counsel’s

own arguments. Trial Court Opinion at 6 (Mr. Haaz’s remarks were “not that

removed from defense counsel’s comment during her closing[.]”).              In

defense counsel’s closing, Ms. McKenna argued:

      [The police] think they can come in here and take that stand and
      tell you any story that they want and you will just believe them.
      But that’s not what you’re here to do. You’re not here to take
      their testimony at face value and simply believe it. You’re here
      to use a critical eye and evaluate what they’re saying. And
      that’s what I’m asking you to do, look for corroboration. They
      didn’t take any pictures of this. They didn’t take any videos.
      Everyone has a camera on their phone. They didn’t use it. They
      didn’t talk to any other witnesses. They didn’t even fingerprint
      the gun. Well, that would clear things up; wouldn’t it? And they
      didn’t do it.

      Mr. Haaz is going to sit here and tell you, well, they didn’t have
      to, they didn’t have to.       They recovered [the gun] from
      [Appellant’s] person so it’s not a question. They didn’t have to
      do it; but that’s not [Mr. Haaz’s] determination to make, it’s
      yours. It’s up to you whether that’s good enough. It’s up to you
      whether you require more to get beyond a reasonable doubt.

N.T., Closing Arguments, 6/25/15, at 6-7.

      Defense counsel’s own comments urged the jury to independently and

critically evaluate the evidence presented, suggesting that the police officers



4
  In addition we note that, as the trial court reasoned, “[the prosecutor’s]
remark was simply a fair comment on the responsibilities of counsel and the
jury during a trial.” Trial Court Opinion at 6.



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who testified were just telling stories and that Mr. Haaz would soon urge

them to convict based on faulty evidence. Id. Mr. Haaz’s statements were

a proper response in which he agreed with defense counsel that the jury

should consider the evidence presented rather than the arguments of

counsel.   We, therefore, conclude that the trial court did not abuse its

discretion in finding that Appellant’s claim of prosecutorial conduct is without

merit.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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