J-A11019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES BROOKS,

                        Appellant                    No. 588 EDA 2014


      Appeal from the Judgment of Sentence of September 16, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0011224-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 05, 2015

     Appellant, James Brooks, appeals from the judgment of sentence

entered on September 16, 2013, as made final by the denial of Appellant’s

post-sentence motion on January 16, 2014. We affirm.

     The trial court has ably explained the underlying facts of this case:

       On the evening of January 25, 2012, [Appellant and
       Appellant’s co-defendant, Tyrone Jefferson (Jefferson)]
       walked together along Bridge Street in the direction of
       Torresdale Avenue[, in Philadelphia]. After the pair crossed
       Ditman Street, they passed a house [on] Bridge Street,
       where Quadir Bush (Bush) and [Bush’s] cousins were
       celebrating a family member’s birthday. Bush’s cousins,
       Mark Brown (Brown) and Darryl Wallace (Wallace), both
       described feeling uneasy as Jefferson and [Appellant]
       walked past.

       At the intersection of Bridge Street and Torresdale Avenue,
       four of [Appellant’s] friends – Ali Ellis (Ellis), Zakeem
       Singleton (Singleton), Dhubair Muhamad (Muhamad), and
       Mysheer Pryor (Pryor) – stood, smoking cigarettes together
J-A11019-15


          outside of a corner store. Jefferson and [Appellant] spoke
          to Ellis and Muhamad for two-and-a-half to five minutes.
          After that conversation, Jefferson and [Appellant] doubled-
          back [and walked] north on Bridge Street in the direction
          from which they had come.         Jefferson and [Appellant]
          walked directly to Bush and his cousins, where [Appellant]
          asked if anyone had marijuana. In response, Bush and his
          cousins laughed; they told [Appellant] that they did not
          have any marijuana. [Appellant] pressed [and asked] for
          drugs a second time. The cousins once again answered in
          the negative, angering [Appellant]. Wallace [testified] that
          [Appellant] “went from 0 to 100.” [Appellant] then said,
          “you all think I’m playing[?]” and told Jefferson to pass him
          a gun. Jefferson took a revolver from the waistband of his
          pants and handed it to [Appellant].

          [Appellant] [] pointed the gun at the cousins, prompting
          Wallace and Brown to run for cover. As they ran toward the
          house, [Appellant] aimed the gun at Bush’s head [and
          pulled] the trigger [from] less than two feet away. A single
          bullet penetrated Bush’s head, killing him. Immediately
          thereafter, Jefferson and [Appellant] ran away together
          “down Torresdale towards Pratt.”

                                           ...

          On September 16, 2013, following a jury trial[, Appellant]
          was found guilty of [first degree murder, criminal
          conspiracy, and possessing instruments of crime1]. That
          same day, [the trial court] sentenced [Appellant] to the
          mandatory term of life imprisonment for murder of the first
          degree. On September 20, 2013, [Appellant] filed [a] post-
          sentence motion[], which [the trial court] denied on January
          16, 2014.

Trial Court Opinion, 6/17/14, at 1-3 (internal footnotes and citations omitted

and some internal corrections omitted).


____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 903(a), and 907(a), respectively.



                                           -2-
J-A11019-15



      Appellant filed a timely notice of appeal; Appellant now raises one

claim to this Court:

        Did the trial court commit an abuse of discretion when it
        overruled objections to comments made by the prosecutor
        during his closing speech wherein he gave his personal
        opinion regarding testimony given by Ali Ellis, [a/k/a] Hawk
        and told the jury that the defense had a duty to interview
        and take statements from witnesses even though the police
        had not done so?

Appellant’s Brief at 3.

      We have reviewed the briefs of the parties, the relevant law, the

certified record, and the thorough and well-written opinion of the able trial

judge, the Honorable Teresa Sarmina. We conclude that the claim raised in

Appellant’s brief is meritless and that the trial court’s opinion, filed on June

17, 2014, meticulously and accurately explains why Appellant’s claim fails.

Therefore, we adopt the trial court’s opinion as our own.        In any future

filings with this or any other court addressing this ruling, the filing party

shall attach a copy of the trial court’s opinion.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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                                PHILADELPHIA COURT OF COMMON PLEAS
                                       CRIMINAL TRIAL DIVISION

      COMMONW'EALTH
                                                                                    CP-51-CR-0011224-2012

                       v.                                                           Superior Court Docket No.
                                                                                    588 EDA2014

     JAMBS BROOKS


     Sarmina,J.
     June 17, 2014
                                                           OPINION
                                                                                             JUN 1 7 2014
                                                                                       Criminal Appeals Unit
    PROCEDURAL HISTORY                                                              First 1-I udicial District of P/.t
             On September 16, 2013, following a jury trial' before this Court,James Brooks (the

    defendant) was found guilty of murder of the first degree (H-1), criminal conspiracy (F-1), and

    possessing instruments of crime (PIC) (M-1).2 That same date, this Court sentenced the defendant
                  I         .                                                        I


    to the mandatory term'' of life imprisonment for murder of the first degree.4 On September 20,

    2013, the defendant filed post-sentence motions, which this Court denied on January 16, 2014. On

    February 12, 2014, the defendant filed this timely appeal.




 1 111e defendant was tried alongside Tyrone Jefferson O efferson), CP-51-CR-0008441-2012, Superior Court Docket No.

776 EDA 2014. Jefferson was convicted of murder of the third degree (F-1), criminal conspiracy (F-1), and possessing
instruments of crime (PIC) (M-1). Notes of Testimony (N.T.) 9/16/13 at 59.

218    Pa.C.S. §§ 2502(a), 903(a), and 907(a), respectively.

318 Pa.C.S. § 1102(a)(1).

4 As to the conviction for criminal conspiracy, this Court sentenced the defendant to a concurrent term of not less than
20 years nor more than 40 years confinement. N.T. 9/16/13 at 71. As to the conviction for PIC, this Court sentenced
the defendant to a concurrent term of not less than one year nor more than five }'Cars confinement. Id.




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     FACTS

             On the evening of January 25, 2012, Jefferson and the defendant walked together along

     Bridge Street in the direction of Torresdale Avenue.5 N.T. 9/10/13 at 83-84; N.T. 9/11/13 at 24.

     After the pair crossed Ditman Street, they passed a house at 2091 Bridge Street, where Quadit Bush

     (Bush) and his cousins were celebrating a family member's birthday. N.T. 9/10/13 at 84; N.T.

     9/11/13 at 24; N.T. 9/13/13 at 186. Bush's cousins, Mark Brown (Brown) and Darryl Wallace

     (\Vallace), both described feeling uneasy as Jefferson and the defendant walked past. N.T. 9/10/13

     at 103-04;N.T. 9/11/13 at 23.

            At the intersection of Btidge Street and Tonesdale Avenue, four of the defendant's friends -

    Ali Ellis (Ellis), Zakeem Singleton (Singleton), Dhubair Muharnad (Muhamad), and Mysheer Pryor

    (P1-yor)6- stood, smoking cigarettes together outside of a corner store.7 N.T. 9/12/13 at 161-2,

    244-45; N.T. 9/13/13 at 79-80, 88. Jefferson and the defendant spoke to Ellis and Muhamad for
                                                             \


    two-and-a-half to five minutes. N.T. 9/10/13 at 91; N.T. 9/12/13 at 166. After that conversation,

    Jefferson and the defendant doubled-back, walking north on Bridge Street in the direction from

    which they had come. Jefferson and the defendant walked directly to Bush and his cousins, where

    the defendant asked if anyone had marijuana. N.T. 9/11/13 at 24. In response, Bush and his

    cousins laughed; they told the defendant that they did not have any marijuana. The defendant

pressed, asking for drugs a second ti.me. The cousins once again answered in the negative, angeti.ng

the defendant. Wallace stated that the defendant "went from O to 100." Id. at 59. The defendant

5
  Roughly fourteen months earlier, on the evening of November 20, 2012, Philadelphia Police Officer John Descher had
encountered Jefferson and the defendant together, walking northbound on 5000 Ton:esdale Avenue, approximately two
to five blocks away from the intersection of Bridge Street and Torresdale Avenue. N.T. 9/11 /13 at 135-40, 142.

6
 Jefferson and the defendant had played basketball with these four individuals in the past at \\'lute Hall Park, five blocks
away from Bridge Street and Torresdale Avenue. N.T. 9/12/13 at 114; N.T. 9/13/13 at 176, 184-85, 191-92.

7
 The comer store is located at the intersection of Bridge Street and Torres<lale Avenue. Ellis, Singleton, Muharnad, and
Pryor had been on the comer smoking cigarettes for about ten minutes before the defendant and Jefferson approached.
N.T. 9/12/13 at 160-61. Ordinarily, these four friends did not spend an extended period of time in this area. Id. at 195;
N.T. 9/13/13 at 76, 192.



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     then said, "[Ylou all think I'm playing[?]" and told Jefferson to pass him a gun. Id. at 57. Jefferson

    took a revolver from the waistband of his pants and handed it to the defendant. Id.

            The defendant then pointed the gun at the cousins, prompting \Xlallace and Brown to tun

    for cover. N.T. 9/10/13 at 92; N.T. 9/11/13 at 24. As they ran toward the house, the defendant

    aimed the gun at Bush's head, pulling the trigger while less than two feet away. N.T. 9/10/13 at 68,

    70; N.T. 9/1.1/13 at 24. A single bullet penetrated Bush's head, killing him. Immediately thereafter,

    Jefferson and the defendant ran away together "down Torresdale towards Pratt].]" N.T. 9/13/13 at

    23.

    LEGAL DISCUSSION

    On appeal, the defendant raised a single issue with two components.

            The defendant claims that this Court committed an abuse of discretion when it overruled

    defense counsel's objections on the grounds that the prosecutor committed prosecutorial
                                   I                                                                       I



    misconduct, depriving the defendant of a fair and impartial trial. The defendant identifies two bases

    for his claim of prosecutorial misconduct: first, the prosecutor improperly shifted the burden to

produce evidence to the defendant; second, the prosecutor improperly proffered a personal opinion.

As the Due Process Clause was not violated by either of the prosecutor's purported errors, the

defendant's claim fails.

           Prosecutorial misconduct exists when there is a violation of a defendant's statutorily or

constitutionally protected rights." Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009);

Commonwealth v. Rhone, 619 A.2d 1080, 1084 (Pa.Super. 1993). The Fourteenth Amendment of

the United States Constitution establishes that no State shall "deprive any person of life, liberty, or

property, without due process of law." U.S. CONST. amend. XIV,§ 1. \Xlbile there is no "precise


8 As the defendant has not alleged that the prosecutor's conduct violated a statutorily protected right, this Court will only
address the defendant's claim of prosecutorial misconduct as being rooted in a violation of a constitutionally protected
right.


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definition" of due process, "the phrase expresses the requirement    of 'fundamental   fairness[.]"'

Commonwealth     v. Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied SHh uo/». Turner v. Pennsylvania,

134 S. Ct. 1771 (U.S. 2014), citil{g Lassiter v. Dep't of Soc. Serv. of Durham County, 452 U.S. 18

(1981). Procedural due process requires "the chance to defend oneself before a fair and impartial

tribunal." Id. at 764, citing Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008); Commonwealth

v. Thompson, 281 A.2d 856, 858 (Pa. 1971). When determining whether or not a defendant has

been deprived a fair and impartial trial, a trial court must (a) analyze whether misconduct actually

occurred, and (b) assess the degree of resulting prejudice. Commonwealth v. Judy, 978 A.2d 1015,

1019 (Pa.Super. 2009).

        a. The prosecutor did not shift the burden to produce evidence such that the
           defendant was deprived of a fair and impartial trial.

        In a criminal trial, a suggestion that a defendant has a duty or obligation to produce evidence

may infringe upon the defendant's constitutionally-protected presumption of innocence in violation

of his right to a fair trial. Commomvealth v. :tvliller, 208 A.2d 867, 869-71 (Pa. 1965); see also

Commonwealth v. Wiggins, 328 A.2d 520, 521 (Pa.Super, 1974), citing Commonwealth v. Rose, 321

A.2d 880 (Pa. 1974) ("The Commonwealth bears a never shifting burden of proving each and every

essential element of the crime charged and the defendant need not offer any defense whatsoever.").

A defendant's constitutionally-protected right to be presumed innocent is violated by a statement

from which the jury may draw an adverse inference from the defendant's failure to produce

evidence. I:v1iller, 208 A.2d at 870. However, not eveq comment about a defendant's failure to

produce evidence infringes upon his presumption of innocence. A prosecutor's comment

concerning a defendant's failure to produce evidence does not violate a defendant's right to a fair

trial when the statements are in response to "defense counsel's argument" or a "theory espoused by

the defense[.]" Commonwealth v. S1ieed, 45 A.3d 1096, 1112 (Pa. 2012).




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         In Commonwealth v. Dejesus, our Supreme Court found that the prosecutor's comment

 about the defense's failure to produce evidence did not improperly shift the burden to produce

 evidence because the prosecutor's comment rebutted the theory offered during defense counsel's

 summation, 860 A.2d 102, 110-111 (Pa. 2004). During that summation, defense counsel questioned

 the truthfulness of Commonwealth witness Jennifer Zlatrick's trial testimony. Defense counsel

 argued that Ms. Zlatnik's testimony had been colored by information she received from Antonio

 Castillo during a visit in jail. Id. The prosecutor responded, "ask(i.ng] why the defense did not

 present the prison log as to who contacted Ms. Zlatnik at prison." Id. at 1 lO (internal citations

 omitted). The prosecutor then suggested that the defense had not prese~ted the prison log because

it would have demonstrated that Zlatnik: had not been visited by Castillo. The DeJesus Court held

 that commenting on the absence of evidence to demonstrate the weakness of the defense's theory

does not constitute burden-shifting. Id. at 110-11.
                                            (



        Similarly, our Supreme Court in Conunonwealth v. Thomas found that the prosecutor did

not improperly shift the burden to produce evidence by highlighting that the theory espoused by

defense counsel during summation lacked evidentiary support. 54 A.3d 332, 340 (Pa. 2012), cert.

deniedsub uom. Thomas v. Pennsvlvania J 34 S. Ct. 173, 187 (U.S. 2013). The defense called Tamika

Mclvlurren, who testified thatthe defendant could not have committed the crime as he was unable

to tun and could not use his right band. Id. In his closing argument, the prosecutor pointed out

that the defense had not produced evidence to corroborate Mclvlurren's claim. about the defendant's

disabilities. Our Supreme Court found that "suggesting possible weaknesses regarding the defense's

proffered evidencej]" did not amount to an improper shift of the burden to produce evidence. Id.

        In the case subjlldice, as the prosecutor's comments were made in response to the allegations

advanced in defense counsel's summation, the prosecutor did not improperly shift the burden of

production, and the defendant was not deprived of a fair and impartial trial. In defense counsel's



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  closing argument, he attacked the Commonwealth's       case, arguing that the prosecutor   changed the

  theory of the case mid-trial in order to distract the jury from underlying weaknesses in its evidence:

         And through this examination today of certain witnesses, seems like he's going to stand up
         here in a moment and argue that this was some grand setup, that there were people, in his
         words, positioned, a 17-year-old kid [Pryor] positioned on the bar over here. Other people
         over here in front of the corner store.

         \X!ell, if this is what he thinks -- and we're almost two years post murder in this case -- then
         why weren't any one of these individuals that he thinks were accomplices and set up this hit
         or directed th.is hit, why weren't one of these persons arrested?

         \Xlhy aren't those people sitting at this table if that's what he really thinks? And if that's what
         he really thinks, he's changed his theory of the case from when he first argued the case.
         Because when he first presented this case to you on Tuesday, in his opening, Mr, Lim said it
         was these two guys, not these six guys or four guys or three guys.

        Ladies and gentlemen, one of the things that Mr, Lim made a big deal about today was he
        was attempting to argue with a witness about what the reaction -- he was comparing the
        reaction of the people outside the bar with the people on this corner here (indicating).
        We all know, when you see something startling, you look at it. You stop and take your eyes
        off it. That's what those people at the bar did.
                      (




        You don't see those people at the bar -- despite what he says, it's what the tape shows, not
        what we say. \Y/e don't get to tell you what the evidence is. The evidence is what it is.
        And the evidence in this case, if you watch the video, those people don't nm into that bar
        until right around the time two people run by them.

        That's when they run in the bar, and you also see that 17-year-old kid, Mr. Pryor, standing
        there on the corner watching everything,

        You have the awesome responsibility of not only sifting through this evidence, but making
        sense of it, which is absolutely impossible; and if it's impossible for you to sift through this
        evidence to the extent that you must in order to decide this case, the only appropriate verdict
        here is not guilty.

N.T. 9/13/13 at 237-40.

       The prosecutor responded to the accusation that his theory of the case changed mid-trial.

He admitted that new information was revealed during trial, but he disputed that the change was

indicative of weaknesses in the Commonwealth's case. The prosecutor agreed that the

Commonwealth's theory changed slightly during the course of trial because neither party had




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  obtained pre-trial statements" from certain witnesses, not because the Commonwealth's case was

  weak:

             When people don't give statements, they're not committed to anything. They can walk into
             this courtroom, take the seat and say whatever it is they want to say; and that's what
             happened and when I won't get statements -- see, by rules, I got to give all these documents
             in that box. I got to turn them all over to the attorneys before we start, so they can read,
             review and critically analyze my witnesses before we get started.

             But I didn't get to do that because I didn't have enough statements, I'm learning like you're
             learning, as these defense witnesses testified and as I'm learning like [sic] listening.

 N.T. 9/13/13 at 314.

             The prosecution then explained how his theory evolved as he heard the witnesses' testimony

 at trial:

             The motive, the reason, the why came together and was supported by their own witnesses.
             But now, you want me to believe that they were there, that in1ages ate burned and they want
             to clear their conscience and that's not them? So they know them and let them sit till trial
             without a statement, without anything? They ha? conversations with each other and they
             don't mention it to each other?

 N.T. 9 /13/13 at 320.

             The prosecutor's explanation that his case changed because of the absence of pre-trial

statements did not shift the burden to produce evidence to the defense, but instead rebutted the

defense's allegation that the prosecutor's theory of the case changed mid-trial because it was weak.

             Had the prosecutor, in fact, improperly suggested that the defense had the burden to

produce evidence, the trial court would then evaluate the prejudice exacted by the statement to

determine if it denied the defendant a fair and impartial trial. Conunonwealth v. Johnson, 719 A.2d

778, 787 (Pa.Super, 1998); see also Commonwealth v. Chmiel 889 A.2d 501, 542 (Pa. 2005)

("[P]rosecutorial misconduct does not occur unless the unavoidable effect of the comments at issue

was to prejudice the jurors        by forming in their minds a fixed bias and hostility toward the defendant,

thus impeding their ability to weigh the evidence objectively and render a true verdict.").

9 The   prosecutor did not place the onus for the absence of pre-trial statements on the defense.


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           In making this determination, the court's instructions may counterbalance the comments at

 issue. to As jurors are presumed to follow a trial court's instructions, an appropriate instruction will

 eradicate prejudice as long as it corrects the potentially improper statement. Commonwealth v.

 Szakal, 50 A.3d 210, 222 (Pa.Super. 2012).

          In the case ssb Judice, defense counsel objected to the aforementioned statements of the

 prosecutor and moved for a mistrial on the ground that the prosecutor improperly shifted the

 burden of production to the defense. Th.is Court overruled the objection and denied the motion for

 a mistrial. N.T. 9/13/13 at 320, 324. In its final charge, this Court provided the following

 instruction to the jury:

          A fundamental principle of our system of criminal law is that a defendant is presumed
          innocent. The mere fact that someone is arrested and is charged with crimes is not evidence
          of guilt. Furthermore, the presumption of innocence that I was just telling you about stays
          with a defendant throughout the entire trial and unless and until you, the jury, conclude
          based upon a careful and impartial consideration of the evidence that the Commonwealth
                                                                                                  1
          has proven each guilty beydnd reasonable doubt of the charges made against him.

          It is not a defendant's burden to prove anything in his own defense. Instead, it is the
          Commonwealth that always has the burden of proving each and every element of the crimes
          charged and that each defendant is guilty of those crimes beyond a reasonable doubt. And I
          will give you those elements toward the end of this charge.

          If the evidence presented fails to meet the Commonwealth's burden, then your verdict must
          be not guilty. On the other hand, if the evidence does prove beyond reasonable doubt that
          the defendants are guilty of the crimes charged, then your verdict should be guilty.

N.T. 9/16/13 at 11-12. (emphasis added).

         This Court then summarized:

         So to summarize, you may not find the defendants guilty based upon a mere suspicion of
         guilt. The Commonwealth has the burden of provio.g each defendant guilty beyond
         reasonable doubt. If the Commonwealth has met that burden, .then the defendants are 110
         longer presumed innocent and you should find them guilty.




10 Although an immediate instruction is preferable, a trial court may wait to address an issue until its charge at the
conclusion of a case. Commonwealth v. Rough, 418 A.2d 605, 611 (Pa.Super. 1980) (noting that a curative instruction
"need not be given immediately following the erroneous admission, but may occur later in the charge.").


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           On the other hand, if the Commonwealth          has not met its burden, then you must find them
           not guilty.

 Id. at 13.

           This Court's instructions made it clear that the burden to produce evidence-and          to prove

 guilt beyond a reasonable doubt-rested with the Conunonwealth,            not the defendant.   It is

 presumed that the jury followed this Court's instruction to analyze whether the Commonwealth

 proved each and every element of the crimes charged beyond a reasonable doubt. Thus, th.is Court's

 instruction properly addressed any possible prejudice flowing from the prosecutor's statement.

     b. The defendant was not deprived of a fair and impartial trial when the prosecutor
        offered his personal opinion, as this Court provided a limiting instruction which
        cured any prejudice.

          The defendant claims that the prosecutor offered an improper personal opinion during

closing arguments which violated his due process right to a fair trial. The defendant specifically

points to the portion of the prosecutor's closing where he stated, "[M)y1God" and "I can't believe"

when recounting how the evidence elicited at trial impacted his understanding of the events on

January 25, 2012. As this Court sustained counsel's objection and provided the jury with an

instruction to base its determination on the evidence presented at trial-not on the prosecutor's

impressions-the defendant was not deprived of a fair and impartial trial.

          As discussed supra, when a prosecutor makes an improper statement, the Due Process

Clause is not automatically violated. A defendant is deprived of a fair trial only where that statement

creates   a fixed bias in the minds of the jury.   Johnson, 719 A.2d at 787; Chmiel, 889 A.2d at 542.

          In Commonwealth v. Jones, our Supreme Court held that an improper statement proffered

by a prosecutor during closing arguments did not violate the defendant's due process rights because

the trial court's instruction thereafter cured the prejudice at issue. The prosecutor had made an

improper statement, asking the jury to sentence the defendant to death based on how society would

perceive their decision, not on the evidence presented at trial and/ or the penalty phase hearing.


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Defense counsel immediately objected. 683 A.2d 1181, 1201 (Pa. 1996). The trial court sustained

the objection and instructed the jury "not to be concerned by how other people would react(,]" and

instead to base its decision on the facts presented. Id. at 1201 n.11.

        Our Supreme Court determined that the prosecutor's comments were improper, but the

defendant's right to a fair trial was not violated because "the cautionary instructions given by the

court adequately cured any possible prejudice." Id. at 1201.

        Here, defense counsel timely objected when the prosecutor stated, "[1vI]y God" and "I can't

believe" during his summation, and moved for a mistrial on the ground that the prosecutor

improperly asserted his personal opinion in his closing argument. This Court sustained counsel's

objection but denied the motion for a mistrial:

       And I'm challenging you, see me getting mad at him. I'm like, you ain't there, stop it, tell me
       this, tell me that. He's kind of, in all honesty, beating me up.

       He's like, no, I was there, this is what I saw and I was there, my God, I set them up, I'm like
       sweating, what's going on here? Until Mysheer Pryor came out of the wall and sat in the
       same chair; and again I'm fighting him, you're not there, you're not there, you're not there,
       because I kept thinking he was pointing up here (indicating) like, he was up here, Mysheer
       Pryor being the second guy and I'm like, why? Why is this guy not budging?

       I'm about to cry inside and sit down and then Mr. Pagano asks a question: \Xlhere are you?
       And Mysheer Pryor says: I'm standing right in front of this bar smoking a cigarette.
       And I'm like, my God, you're kidding me. And like a bell goes off. You can ask my
       detectives, I went outside yesterday -

       MR. STRETION: Objection.

       :tvIR. PAGANO: Objection.

       THE COURT: Stop with the conversation, Mr. Lim.

       :MR. LHvf: I'm like I can't believe day four and I realize this conspiracy is so much larger than
       the two people sitting at this table.                                        .

       I'vfR. STRETTON: Objection.

       MR. PAGANO: Objection.

      MR. STRETTON: Move for mistrial.


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        THE COURT: Sustained.        Denied.

 N.T. 9/13/13 at 315-17.

        During its final charge, this Court instructed the jury:

        The speeches of counsel are not part of the evidence, and you should not consider them as
        such. In deciding the case, you should carefully consider the evidence in light of the various
        reasons and arguments which each lawyer presented to you. It is the right and duty of each
        lawyer to discuss the evidence in a manner which is most favorable to the side which he
        presents. You should be guided.by each lawyers' arguments to the extent that they are
        supported by the evidence, and insofar as they aid you in applying your own reason and
        common sense.

        Now, Mr. Lim shared with you his thought processes to some extent and to some
        extent his personal opinions. You are to disregard those. Do not think that because
        he is the prosecutor he has some special knowledge or insight that was not presented
        to you through evidence. That is not the case. And to the extent that anybody,
        including myself, stated any facts which differ from your recollection of the facts,
        then you are to go with your recollection and to disregard all of ours, including mine.

        And as I have told you many times, you are the sole and only judges of the credibility and
        weight of all of the testimony in this case. And so you are not required to accept the
        arguments of any of the lawyers. It is for you and you alone to decide the case based on the
        evidence as it was presented to you from the witness stand and in accordance with the -- and
        that includes the stipulations that were entered into by and between counsel, and in
        accordance with the instructions which I have just been giving you.

N.T. 9/16/13 at 39-40. (emphasis added).

        This Court's instruction eliminated any prejudice that would have denied the defendant a fair

and impartial trial, As in Jones, this Court instructed the jury not to be influenced by the

prosecutor's statements, thus mitigating any possible prejudice.

        Accordingly, for all of the foregoing reasons, the judgments of sentence should be affirmed.

                                                        BY THE COURT:


                                                        11t.ck~~~-
                                                        lVL ,TERESA SARI\rIINA                      J.




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