J-A02029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL GREER                               :
                                               :
                       Appellant               :   No. 1195 WDA 2018

          Appeal from the Judgment of Sentence Entered May 14, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0007945-2017


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 14, 2020

       Appellant, Daniel Greer, appeals from the judgment of sentence entered

on May 14, 2018, as made final by the denial of post-sentence motions on

July 30, 2018, following his jury trial convictions for three counts of criminal

mischief, two counts of criminal attempt (homicide), two counts of aggravated

assault, two counts of recklessly endangering another person, and firearms

not to be carried without a license.1 We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On Easter Sunday in 2013, there was a daytime drive-by shooting

with an automatic firearm in a residential area of West Mifflin, Pennsylvania.

While slowly driving down a neighborhood street, the shooter fired

approximately 20 times at a male and female who were standing side-by-side

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1   18 Pa.C.S.A. §§ 3304, 901/2501, 2702, 2705, and 6106, respectively.
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on the sidewalk.      The female was injured and the male fled the scene. When

police arrived on the scene, the female victim and her mother immediately

identified Appellant, who went to high school with the victim, as the shooter.

The victim claimed that she was six feet away from Appellant at the time of

the shooting. The victim’s mother, who ran outside to aid her daughter when

she heard gunshots, saw Appellant from a similar vantage point.2 Additionally,

during the incident, Appellant sideswiped parked vehicles and damaged the

vehicle he was driving, but he managed to escape. Several days later, police

found an abandoned, damaged car matching the description given by

eyewitnesses about five miles from the scene of the crime. Police arrested

Appellant over three years later in Myrtle Beach, South Carolina, living and

working under an alias. Appellant did not have a license to carry a firearm.

In February 2018, a jury found Appellant guilty of the aforementioned

charges.     On May 11, 2018, the trial court sentenced Appellant to an




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2 Both women also identified Appellant as the perpetrator at trial. The victim’s
cousin, who was also at the scene but did not know Appellant previously,
identified Appellant as the shooter at trial.



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aggregate term of six to 12 years of imprisonment.3           This timely appeal

resulted.4

       On appeal, Appellant presents the following issue for our review:

       I.     Did the [trial] court err in overruling defense counsel’s
              objection and request for a limiting instruction regarding the
              prosecutor’s inflammatory and prejudicial reference to
              “gangs” and his opinion that “40 ounces” meant “a gun,”
              where no evidence was presented that [Appellant] was a
              member of a gang, no evidence was presented as to the
              meaning of “40 ounces,” nor was any testimony presented
              indicating that the shooting was gang-related?

Appellant’s Brief at 4.

       Appellant specifically challenges the following closing remarks by the

prosecutor:

       […] We know from [the victim’s mother] that [Appellant] was part
       of some group called the 40 ounces [(]which meant a can of beer
       in my day but today means a gun[)] with Linc Ensley, Dan Greer
       and three others. And I don’t mean to make light of the problems
       of [the] subculture of violent young men in depressed


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3  The trial court sentenced Appellant to concurrent terms of five to 10 years
of incarceration for the two counts of criminal attempt (homicide). The trial
court further imposed a consecutive term of one to two years of imprisonment
for firearms not to be carried without a license. The remaining convictions
merged for sentencing purposes.

4   Appellant filed a post-sentence motion on May 21, 2018. The trial court
filed an order denying relief on July 30, 2018. On August 15, 2018, Appellant
filed a notice of appeal. On December 4, 2018, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant filed a Rule 1925(b) statement on
January 2, 2019, which the trial court accepted as timely. The trial court
subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 27,
2019.

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      communities, but there are also good people living in fear in those
      communities and they really do.

      Fifteen years ago when I came back to do violent crimes and
      firearms which includes homicides, attempted homicides,
      robberies, I had back in the early ‘90s done some investigation
      with gangs at the time. When I came back, I was the head of the
      Auto Theft Division. I was asked to come back and try these cases
      and one of the amazing facts was standing in a courtroom
      watching a mother who said she has to let her two kids go through
      the metal detector because she was afraid of bullets coming
      through – wow. This is serious stuff.

N.T., 2/20-22/2018, at 235.

      Appellant argues that these comments “[led] the jury to infer that

because [Appellant] was a member of a gang he[:] 1) was a violent person,

2) was closely connected to the other individuals observed at the time, and 3)

had a motive to shoot the victim.”      Appellant’s Brief at 11-12.   As such,

Appellant contends that the remarks effectively stripped him of the

presumption of innocence. Id. at 12. Appellant further challenges the trial

court’s determination that a limiting instruction would have placed undue

emphasis on the remarks. Id. at 14. More specifically, he claims, “the closing

argument here not only emphasized a motive which had no factual basis in

the record, but the nature of the alleged motive also indicated [Appellant] was

involved in other criminal activity.”   Id. at 15.   Appellant concludes that

“[u]nder such circumstances, an instruction to the jury that no evidence was

presented that [Appellant] was a gang member, was crucial and would not

have been more harmful than the jury believing [Appellant] was a member of

a violent gang and that was the motive for the shooting.” Id.



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       Initially, we note that the trial court found this issue waived because

Appellant did not contemporaneously object and, instead, waited until the

Commonwealth finished its closing argument to raise an objection. Trial Court

Opinion, 8/27/2019, at 3-4. “Our Supreme Court has held that such a delay

does not result in waiver so long as: (1) there is no factual dispute over the

content of the prosecutor's argument (e.g., the argument was recorded and

available for review at trial); and (2) counsel objects immediately after closing

argument with sufficient specificity to give the court the opportunity to correct

the prejudicial effect of the improper argument.” Commonwealth v. Rose,

960 A.2d 149, 154 (Pa. Super. 2008), citing Commonwealth v. Adkins, 364

A.2d 287, 291 (Pa. 1976).          Here, closing arguments were transcribed and

available for review and, although defense counsel waited until the

Commonwealth finished its closing arguments, he immediately asked for an

instruction because “there [was] no evidence of any gang activity in this

case[.]” N.T., 2/20-22/2018, at 239. Based on the foregoing, we believe that

Appellant    properly    raised    a   timely    objection   immediately   after   the

Commonwealth’s closing argument, requested a specific jury instruction, and

gave the trial court the opportunity to correct the alleged comments. 5            As
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5  We note that once a specific objection to prosecutorial misconduct during
closing arguments is made, either a request for a curative instruction or
request for a mistrial properly preserves the issue for appellate review. See
Commonwealth v Roberts, 2019 WL 7372754 (Pa. 2019) (unpublished
memorandum) at *2 (“While the Commonwealth is correct that Roberts’
counsel did not request a mistrial, he did … request a curative instruction on
the first three claims. Therefore, we decline to find waiver on Roberts’ first
three claims of prosecutorial misconduct.”).

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such, we conclude that the trial court erred by finding waiver. Accordingly,

we proceed to the merits of Appellant’s claim.

     “It is well settled that a prosecutor has considerable latitude during

closing arguments and his arguments are fair if they are supported by the

evidence or use inferences that can reasonably be derived from the evidence.”

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citation

omitted). This Court has held

     prosecutorial 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.... In reviewing a claim of
     improper prosecutorial comments, our standard of review is
     whether the trial court abused its discretion. When considering
     such a claim, our attention is focused on whether the defendant
     was deprived of a fair trial, not a perfect one, because not every
     inappropriate remark ... constitutes reversible error.

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations

omitted); see also Commonwealth v. Spotz, 47 A.3d 63, 98 (Pa. 2012)

(citation omitted) (“Not every unwise, intemperate, or improper remark made

by a prosecutor mandates the grant of a new trial.”).          “Prosecutorial

misconduct is evaluated under a harmless error standard.” Judy, 978 A.2d at

1020 (citation omitted).

     Our Supreme Court held:

     Harmless error exists where: (1) the error did not prejudice the
     defendant or the prejudice was de minimis; (2) the erroneously
     admitted evidence was merely cumulative of other untainted
     evidence which was substantially similar to the erroneously
     admitted evidence; or (3) the properly admitted and

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       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict.

       An error will be deemed harmless where the appellate court
       concludes beyond a reasonable doubt that the error could not
       have contributed to the verdict. If there is a reasonable possibility
       that the error may have contributed to the verdict, it is not
       harmless. The burden of establishing that the error was harmless
       rests upon the Commonwealth.

Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017), citing

Commonwealth v. Chmiel, 889 A.2d 501, 528 (Pa. 2005).

       Here, upon review, the references to “40 ounces” and gang related

activity were fleeting and insignificant in light of the properly admitted and

overwhelming evidence at trial.           Three eyewitnesses positively identified

Appellant as the perpetrator of the charged crimes. Two of those witnesses

knew Appellant before the shooting because he attended high school with the

victim. The testimony of all three witnesses was unwavering and unequivocal.

While the defense suggested that another person, Linc Ensely, was the culprit,

the three eyewitnesses also knew Ensely and testified emphatically that it was

not him.6 Moreover, the jury heard evidence that after the shooting Appellant

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6   For example, the victim’s mother testified as follows:

       […] I just knew somebody was out there and shooting. I came
       out the door and ran up the steps. [Appellant] was there. I saw
       him. He saw me see him. He saw me there. You should ask him
       if he can identify me.

       I have known Linc [Ensely] his entire life. If Linc was out there
       shooting, trust me, I would have come here and tell you it was



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fled the jurisdiction and was living under an alias in South Carolina. Based

upon the overwhelming evidence of record before us, we conclude that the

error complained of was harmless as it could not have contributed to the

verdict.

       Finally, we acknowledge that prior to trial, the trial court instructed the

jury that it was the jurors’ recollection of evidence that controlled deliberations

and they were not bound by any opinion of the court or the attorneys on either

side. N.T., 2/20-22/2018, at 16-17. Moreover, the trial court explained to

the jurors that “[t]he arguments of the lawyers are not binding on you. If

considered carefully, it is proper for you to be guided by them if the arguments

are supported by the facts and if they appeal to your reason and judgment.”

Id. at 17.

       Furthermore, prior to deliberations, the trial court stated:

       The law requires that I repeat [] that the arguments of lawyers
       are not evidence and are not to be considered as such. However,
       in deciding this case, you should carefully consider the evidence
____________________________________________


       him. Whoever had anything to do with my daughter being shot, I
       want them to go to jail.

                               *               *     *

       I saw [Appellant], he knows I saw him. He knows that my
       daughter saw him because when she’s laying on the ground, I said
       “who shot you” and she said “Daniel Greer.”

                               *               *     *

       So why would I say it may be Linc or someone else? Why would
       I say that?

N.T., 2/20-22/2018, at 157-158.

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      in light of the various reasons and arguments which each lawyer
      presented for your consideration. It is the right and duty and
      responsibility of each lawyer to discuss the evidence in a manner
      which is most favorable to the side which he represents. You
      might be guided by the lawyers[’] arguments but only to the extent
      that [they] may be supported by the evidence and insofar as they
      may aid you in applying your own reason and common sense.
      However, you are not required to accept the arguments of either
      lawyer. It is for you and you alone to decide the case based on
      the evidence as it was presented, and in accordance with these
      instructions.

Id. at 246.   The trial court also told the jury that whether “there’s enough

evidence, direct or circumstantial, that’s for you and you alone to make the

determination on.” Id. at 250. Finally, it also reiterated to the jury: “You

are the sole judges of the facts.      It’s your responsibility to consider the

evidence, to find the facts and apply the law to the facts as you find them and

thereby decide whether or not the Commonwealth has met its burden of

proving the defendant guilty beyond a reasonable doubt.” Id. at 268.

      Based upon our review of the foregoing jury instructions, we conclude

that although the trial court did not grant Appellant’s request for a specific

jury instruction, the trial court specifically instructed the jury that arguments

of counsel were not evidence and that the jurors’ recollection of the facts

controlled their deliberations. The jury is presumed to have followed such

instructions. Judy, 978 A.2d at 1028 (citation omitted). Accordingly, for all

of the foregoing reasons, Appellant is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




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