J-A02035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    TARIQ MAHMUD                          :
                                          :
                     Appellant            :    No. 1589 EDA 2015

              Appeal from the Judgment of Sentence May 1, 2015
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0007123-2013


BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 08, 2017

        Appellant, Tariq Mahmud, appeals1 from the judgment of sentence

entered in the Delaware County Court of Common Pleas after a jury found

him guilty of murder of the second degree,2 robbery,3 and conspiracy.4

Appellant claims, inter alia, that the evidence was insufficient to sustain the

second-degree murder conviction and that the Commonwealth’s closing

argument was improper. We affirm.

*   Former Justice specially assigned to the Superior Court.
1The appeals of Appellant’s codefendants, Rita Elizabeth Pultro and David
Wiggins, are listed at J-A02036-17 and J-A02037-17, respectively.

2   18 Pa.C.S. § 2502(b).

3   18 Pa.C.S. § 903.

4   18 Pa.C.S. § 903.
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     Appellant’s conviction arises from the killing of Jason McClay at a Rite

Aid store in the City of Chester, where McClay was a manager.            The

Commonwealth alleged the following.       In August and September 2013,

Appellant was employed as loss prevention agent at the Rite Aid store.

Appellant, Ashaniere White, and Christopher Parks planned to rob the Rite

Aid store. Appellant told White and Parks about how much money was kept

in the store’s safe, who was working, and about blind spots in the store’s

video surveillance system.    Appellant warned them not to try to rob the

store when McClay was working, because he was a former marine who

would fight back.

     On August 19, 2013, White and Parks robbed the Rite Aid store when

McClay was not on duty. On August 26 and September 4, 2013, White and

Parks again attempted to rob the store, but abandoned those plans when

employees recognized White.

     Appellant, White, and Parks thereafter sought the assistance of new

people to rob the store, and they brought David Wiggins into their planning.

Wiggins wanted another individual, Rita Pultro, to participate as well. The

group planned a robbery for September 18, 2013, but postponed it until

September 19, 2013.

     On September 19, 2013, McClay worked the day shift at the Rite Aid

store and stayed for the evening shift due to the unavailability of another

manager, Serita Cottman.      Appellant called out from work that day.    At



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approximately 9:45 p.m., an employee saw a white female, later identified

as Pultro, and a black male, later identified as Wiggins, enter the store.

Pultro retrieved a light bulb and took it to the counter. When the employee

told her the amount due, Pultro complained that it was too expensive, placed

the item back on the shelf, and asked to see the manager.       McClay went

back to the aisle, and he and Pultro began discussing lightbulbs.    Wiggins

then grabbed McClay and told him to take him to the safe.       Wiggins and

McClay began wrestling. Pultro shot McClay at close range at the base of his

neck and killed him.    Wiggins and Pultro fled from the store and left the

scene in a vehicle driven by Parks.

        The investigation into the shooting revealed that Wiggins left a palm

print in the Rite Aid store. Investigators obtained a photograph of Wiggins

and showed it to two employees, and they both identified Wiggins as one of

the robbers. Wiggins was arrested on September 21, 2013, and admitted

his role in the robbery.     Pultro was arrested on September 22, 2013.

Appellant was interviewed by police on September 22, 2013, and turned

over his cell phone that day. Appellant was arrested on October 2, 2013.

Parks and White were also arrested. Parks and White subsequently entered

guilty pleas to third-degree murder in exchange for their cooperation, and

the Commonwealth dropped the charges of second-degree murder against

them.




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      Appellant, Pultro, and Wiggins proceeded to a joint jury trial for the

September 19, 2013 robbery and killing of McClay. Parks and White testified

against them. The Commonwealth also introduced numerous text messages

between the parties.      The jury found Appellant guilty of second-degree

murder, robbery, and conspiracy. The trial court sentenced Appellant to life

imprisonment on May 1, 2015.

      Appellant timely appealed and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement. This appeal followed.

      Appellant sets forth the following issues for review:

         Appellant’s conviction for Murder of the 2nd degree should
         not stand where the evidence was he was neither
         “engaged as the principal or an accomplice in the
         perpetration of a felony” as required by the Felony Murder
         statute, especially since pursuant to long standing
         Pennsylvania case law, accomplice liability and conspiracy
         are not one and the same.

         Improper prosecutorial closing remarks prejudiced
         [Appellant] by expressing a personal opinion as to guilt
         and the testimony of Commonwealth witness Detective
         Tyler was improper when he was permitted to state in
         front of the jury that he was trying to get the truth and he
         related off-audio events in regards to his taped interview
         of [Appellant].

Appellant’s Brief at 6.

      Appellant first claims that the evidence was insufficient to find him

guilty of second-degree murder. He presents a purely legal argument based

on the distinction between accomplice and conspiratorial liability regarding

second-degree murder.        Additionally, Appellant asserts that the jury



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instruction on second-degree murder and accomplice and conspiratorial

liability were confusing.   He concludes that “[t]he evidence in this case

reveals that [his] conviction for 2nd degree murder should not stand since

he was not at the Rite Aid at the time of the robbery and the unexpected

homicide, he was not engaged in the facilitation of the murder, and

accomplice liability and conspiracy are not one and the same.” Appellant’s

Brief at 11. No relief is due.

       Our review is governed by the following principles:

         We consider that evidence in a light most favorable to the
         Commonwealth, drawing all reasonable inferences in favor
         of the Commonwealth. The evidence “need not preclude
         every possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented.” Only
         where “the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances[,]” is a defendant entitled to
         relief. We do not “re-weigh the evidence and substitute
         our judgment for that of the fact-finder.” As the question
         of the sufficiency of the evidence is one of law, we consider
         the evidence de novo.

         Second-degree murder, commonly known as felony
         murder in Pennsylvania, requires a homicide committed
         while the “defendant was engaged as a principal or an
         accomplice in the perpetration of a felony.” 18 Pa.C.S. §
         2502(b). The Crimes Code further defines the perpetration
         of a felony, relevant herein, as, “[t]he act of the defendant
         in engaging in or being an accomplice in the commission
         of, or an attempt to commit, or flight after committing, or
         attempting to commit robbery[.]” 18 Pa.C.S. § 2502(d).
         The General Assembly has further provided that,

            A person is an accomplice of another person in the
            commission of an offense if:




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                 (1) with the intent of promoting or facilitating
                 the commission of the offense, he:

                    (i) solicits such other person to commit it;
                    or

                    (ii) aids or agrees or attempts to aid such
                    other person in planning or committing it;
                    or

                    (2) his conduct is expressly declared by law
                    to establish his complicity.

Commonwealth v. Mitchell, 135 A.3d 1097, 1101-02 (Pa. Super. 2016)

(some citations and footnote omitted). “The malice or intent to commit the

underlying crime is imputed to the killing to make it second-degree murder,

regardless of whether the defendant actually intended to physically harm the

victim.”   Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa. Super.

2002) (en banc) (citations omitted).

      In Lambert, this Court discussed culpability for second-degree murder

as follows:

                 [t]he responsibility of persons, other than the
                 slayer, for a homicide committed in the
                 perpetration of a felony require[s] proof of a
                 conspiratorial design by the slayer and the
                 others to commit the underlying felony and of
                 an act by the slayer causing death which was
                 in furtherance of the felony.

              Moreover, . . . :

                 When an actor engages in one of the
                 statutorily enumerated felonies and a killing
                 occurs, the law, via the felony-murder rule,
                 allows the finder of fact to infer the killing was
                 malicious from the fact the actor was engaged


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              in a felony of such a dangerous nature to
              human life because the actor, as held to the
              standard of a reasonable man, knew or should
              have known that death might result from the
              felony. (footnote omitted)

        [O]ur Supreme Court explained that not only the killer, but
        all participants in a felony, including the getaway driver,
        are equally guilty of felony murder when a killing by a
        felon occurs.

           The statute defining second degree murder does not
        require that a homicide be foreseeable; rather, it is only
        necessary that the accused engaged in conduct as a
        principal or an accomplice in the perpetration of a felony.
        Whether evidence sufficiently indicates that a killing was in
        furtherance of a predicate felony can be a difficult
        question.     The question of whether the killing was in
        furtherance of the conspiracy is a question of proof for the
        jury to resolve. It does not matter whether [a defendant]
        anticipated that the victim would be killed in furtherance of
        the conspiracy. Rather, the fact finder determines whether
        [a defendant] knew or should have known that the
        possibility of death accompanied a dangerous undertaking.

Id. 1023 (citations omitted)

     Instantly, our review of the record reveals that Appellant exchanged

text messages with White regarding the previous robbery that occurred on

August 19, 2013, including messages telling her which exit to take when

driving to the store, the time when the money was dropped into the safe,

the amount taken in that robbery, as well as Appellant’s suggestion that

next time they go to the safe. N.T., 2/4/15, at 232-35. Appellant also told

Parks about the video surveillance in the store and to avoid the “white guy”

who “was in the Marines.” N.T. 2/5/15, at 289.




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      With respect to the September 19, 2013 robbery at issue in this case,

White texted Appellant on September 18, 2013, asking “We still hitting your

job?” N.T., 2/4/15, at 280. Appellant responded “today or tomorrow” and

later indicated “whenever we get a ride.” Id. at 280. When White asked,

“How much we looking at,” Appellant noted, “If we went tonight [September

18, 2013], like 3 or 4.     Tomorrow like 4, maybe 5, if you all get the

registers.” Id. at 284. Additionally, Parks, who drove Wiggins and Pultro to

the Rite Aid on September 19, 2013, texted Appellant asking him how much

money was in the store. N.T., 2/5/15, at 333, 359. Appellant replied, “four

maybe five.”5 Id. at 333, 359.

      Following our review, we find overwhelming evidence supporting the

jury’s conclusion that Appellant acted with the intent to facilitate the

September 19, 2013 robbery and aided Parks, Wiggins, and Pultro in

planning and committing it.      Appellant’s further arguments based on the

distinctions between conspiratorial and accomplice liability warrants no

relief, as it misconstrues the basis for culpability for second-degree murder

based on his participation in the robbery versus the killing. See Lambert,

795 A.2d at 1022-23.      Therefore, Appellant’s sufficiency of the evidence

claim fails.




5 The time stamp for this text was 9/20/2013, 12:30:19 hours a.m. UTC
time.




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J-A02035-17

      As noted above, Appellant also claims that the trial court’s charge

regarding second-degree murder, accomplice liability, and conspiratorial

liability was confusing. We are constrained to find this claim waived because

Appellant did not challenge the propriety of the jury instruction in his Rule

1925(b) statement.6 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

      Appellant next claims that the prosecutor improperly expressed

personal opinions during closing arguments.      Appellant also claims that a

Commonwealth witness, a police detective, improperly testified that he was

“trying to get to the truth.” Appellant’s Brief at 18 (quoting N.T., 2/9/15, at

174). We find these issues waived and, in any event, meritless.

      Pennsylvania Rule of Criminal Procedure 605 states: “When an event

prejudicial to the defendant occurs during trial only the defendant may move

for a mistrial; the motion shall be made when the event is disclosed.

6 Appellant’s attempt to nest a challenge to the jury instructions within his
argument regarding the sufficiency of the evidence also violates several
rules of appellate procedure regarding the contents of a brief. See Pa.R.A.P.
2116(a) (regarding the statement of questions involved), 2117(c) (regarding
a statement of place of raising or preserving issues for review), 2119(a)
(requiring the argument “be divided into as many parts as there are
questions to be argued”).

We note, however, that the trial court’s use of the term “partners” and
references to accomplice and conspiracy liability are consistent with
Lambert, and the overall instruction was similar to those in the standard
suggested jury instruction for second-degree murder.           See Pa.SSJI
(Criminal) § 15.2502B, Second Alternative, ¶¶ (2), (4) (2016).



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Otherwise, the trial judge may declare a mistrial only for reasons of manifest

necessity.”   Pa.R.Crim.P. 605(b).    “[E]ven where a defendant objects to

specific conduct, the failure to request a remedy such as a mistrial or

curative instruction is sufficient to constitute waiver.”   Commonwealth v.

Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013) (citation and quotation

marks omitted).

      We review the trial court’s denial of a motion for mistrial for an abuse

of discretion.    Commonwealth v. Brown, 134 A.3d 1097, 1106 (Pa.

Super.) (citation omitted), appeal denied, 145 A.3d 161 (Pa. 2016). As to a

prosecutor’s improper remark during closing arguments, the Pennsylvania

Supreme Court has stated:

         In reviewing an assertion of prosecutorial misconduct, our
         inquiry “center[s] on whether the defendant was deprived
         of a fair trial, not deprived of a perfect trial.” . . . [T]his
         Court has permitted vigorous prosecutorial advocacy
         provided that “there is a reasonable basis in the record for
         the [prosecutor’s] comments.” A prosecutor’s remarks do
         not constitute reversible error unless their unavoidable
         effect would prejudice the jurors, forming in their minds
         fixed bias and hostility toward the defendant so that they
         could not weigh the evidence objectively and render a true
         verdict. Finally, we review the allegedly improper remarks
         in the context of the closing argument as a whole.

Commonwealth v. Sneed, 45 A.3d 1096, 1109-10 (Pa. 2012) (citations

omitted).

      Appellant’s challenges to the Commonwealth’s closing arguments

arose in the following context:




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       [Commonwealth:] Just because he [Appellant] wasn’t
       there doesn’t mean he wasn’t a part of this Conspiracy and
       just because he didn’t intend for his co-worker to die
       doesn’t mean he’s not guilty of Felony Murder. Felony
       Murder, when two people are partners in an unsuccessful
       Robbery, two or more people are partners in an
       unsuccessful Robbery and someone is killed it doesn’t
       matter a lick. And I mean that not in a Robbery sense,
       whether he intended, she intended, anything. So go back.
       Here’s the plan, ladies and gentlemen, here’s my plan.
       Take seven days of evidence, 105 exhibits and the
       overwhelming evidence of their scheme to steal from the
       Rite Aid that cost a man his life and go back and find them
       guilty. And I’ll be honest with you ladies and gentlemen, I
       don’t know if I’m going to get reprimanded for this or not.
       You go back and you struggle as to whether she [Pultro]
       was the trigger person, the Judge will instruct you, it
       matters not. Think about it, she shot him. She did it with
       specific intent. There’s premeditation. But in reality this is
       Felony Murder and if you go below that then I failed to
       do my job.

          [Appellant’s counsel]: Objection to that last comment.

          THE COURT: Sustained.

          [Appellant’s counsel]: Move to strike it.

          THE COURT: We’ll strike that moot.

       [Commonwealth]: There’s one more thing and then I’m
       done. [Wiggins’ counsel] brought it out. She says the
       Commonwealth really doesn’t know what it’s going to hear
       because now it’s throwing in Third Degree Murder and
       Robbery and Conspiracy. It can’t decide what it wants to
       do. And again, whether it’s intentional or not, this is
       [Wiggins’ counsel] ignoring the law. For whatever reason I
       have failed to convince you of Felony Murder the Judge will
       instruct you you go down to the next level of Murder. If
       during the course of this trial I had not charged and sent
       out Third Degree Murder, Robbery and Conspiracy there’s
       a principle of law in Pennsylvania called All Three Joinder.
       I’m merely telling you this so you don’t think I’m stupid
       and why I’m sending all this out. There’s a thing called


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          Compulsory Joinder. So for whatever reason you conclude
          I haven’t proven Felony Murder and I submit to you I
          have, I look forward to one day leaving this job and if
          I ever teach I’m going to use this case as an
          example of Felony Murder.

               [Appellant’s counsel]: Objection.

               THE COURT: Overruled.         Go ahead.     Let’s get to the
               point.

N.T., 2/10/15, at 123-125 (emphases added). Although Appellant’s counsel

objected, he did not request a mistrial after closing arguments concluded, in

a post-sentence motion, or at any time in between. Therefore, Appellant’s

challenge to the prosecutor’s reference to failing his job or teaching the case

as an example of second-degree murder may be deemed waived.                       See

Sandusky, 77 A.3d at 670.

      In any event, the trial court found that it properly sustained

Appellant’s objection to the prosecutor’s reference to failing his job and

granted his request to strike the comment. Trial Ct. Op., 5/18/16, at 14.

The trial court further concluded that the second comment regarding

teaching the case as an example of second-degree murder was permissible

oratorical flair and did not have the unavoidable effect of prejudicing the

jurors.   Id.    In light of the overwhelming evidence supporting Appellant’s

convictions,     we   discern   no   basis    on   which   to   conclude   that   the

Commonwealth’s arguments prejudiced the ability of the jury to weigh the

evidence objectively and render a fair verdict. See Sneed, 45 A.3d at 1110.

Thus, Appellant’s claim of prosecutorial misconduct warrants no relief.


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       Lastly, Appellant includes a claim that he was entitled to a mistrial

based on a detective’s testimony he was trying to get to the truth of the

matter when interviewing Appellant.    The statement arose in the following

excerpt of the Commonwealth’s direct examination of Detective David Tyler:

         [Commonwealth:] And how long do you think you talked
         to [Appellant] off tape prior to going on tape?

         A Hour and a half, maybe more.

                                     ***

         Q When you were talking to [Appellant], why the hour and
         a half off tape? What were you trying to ask him about?

         A We were trying to get to the truth.

                                     ***

            [Appellant’s counsel]: Objection.

            THE COURT: Sustained.

            [Appellant’s counsel]: Move to strike.

            THE COURT: We’ll strike the answer.

N.T., 2/9/15, at 174. At the opening of trial, the trial court gave the jury a

general instruction of its duty not to consider as evidence questions or

answers to which the court sustained objections. N.T., 1/30/15, at 61.

       Again, the record does not show that Appellant requested a mistrial

based on this testimony, and Appellant’s present claim may be deemed

waived. See Sandusky, 77 A.3d at 670. Nevertheless, we find no relief is

due.



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         When reviewing whether an improper remark by a witness warrants a

mistrial, this Court considers the prejudicial nature of the remark, whether

the Commonwealth intentionally elicited the remark, and whether the trial

court issued a curative instruction. See Commonwealth v. Ford, 607 A.2d

764, 766 (Pa. Super. 1992) (discussing references to a defendant’s prior

criminal record).

         Instantly, it is apparent the Commonwealth did not intentionally elicit

the detective’s remark. Moreover, the nature of the witness’ remark was not

so prejudicial as to undermine the objectivity of the jurors or the fairness of

trial.    Similarly, having reviewed Appellant’s arguments and the record,

there is no basis to conclude that the combination of these alleged acts of

misconduct     would   entitle   Appellant   to   a   new   trial   in   light   of   the

overwhelming evidence against him.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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