J-S14005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    LAMAR DOUGLAS CLARK                        :
                                               :
                      Appellant                :       No. 1289 MDA 2016

              Appeal from the Judgment of Sentence July 7, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005760-2014

BEFORE:      GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 25, 2017

        Appellant, Lamar Douglas Clark, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas, following

his jury trial convictions of one count each of third-degree murder and

firearms not to be carried without a license, two counts of aggravated

assault, and eleven counts of recklessly endangering another person.1 We

affirm.

        In its opinion, the trial court full and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 2702(a)(1), and 2705, respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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         DID THE TRIAL COURT ERR IN FINDING THAT THERE WAS
         SUFFICIENT EVIDENCE AT TRIAL TO SUPPORT THE JURY
         VERDICT OF GUILTY TO COUNT 5, AGGRAVATED
         ASSAULT, WHEN THE COMMONWEALTH DID NOT
         ESTABLISH THAT [APPELLANT] HAD THE SPECIFIC INTENT
         TO ATTEMPT TO CAUSE SERIOUS BODILY INJURY TO
         CYNTHIA BOOTS AND CYNTHIA BOOTS DID NOT SUFFER
         SERIOUS BODILY INJURY[?]

         DID THE TRIAL COURT COMMIT AN ABUSE OF
         DISCRETION IN OVERRULING [APPELLANT’S] REQUESTED
         PENNSYLVANIA     SUGGESTED      STANDARD     JURY
         INSTRUCTION 9.501 THAT INCLUDED THE LANGUAGE “OR
         SUBJECT TO THE FELONIOUS ACT OF ROBBERY” WHEN
         THIS WAS PART OF [APPELLANT’S] THEORY OF THE CASE
         AND WAS SUPPORTED BY EVIDENCE PRESENTED[?]

         DID THE TRIAL COURT COMMIT AN ABUSE OF
         DISCRETION IN REFUSING TO GRANT A MISTRIAL
         AND/OR     CURATIVE    INSTRUCTION    DUE    TO
         PROSECUTORIAL    MISCONDUCT    DURING   CLOSING
         ARGUMENT IN THE FORM OF PERSONAL OPINION,
         BOLSTERING THE CREDIBILITY OF COMMONWEALTH
         WITNESSES, MAKING ARGUMENT OF EVIDENCE NOT IN
         THE RECORD, AND SHIFTING THE BURDEN OF PROOF TO
         [APPELLANT?]

(Appellant’s Brief at 7).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless

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          the evidence is so weak and inconclusive that as a matter
          of law no probability of fact may be drawn from the
          combined circumstances. The Commonwealth may sustain
          its burden of proving every element of the crime beyond a
          reasonable doubt by means of wholly circumstantial
          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the [finder] 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.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011), aff’d,

621 Pa. 401, 78 A.3d 1044 (2013) (quoting Commonwealth v. Galvin, 603

Pa. 625, 651, 985 A.2d 783, 798-99 (2009), cert. denied, 559 U.S. 1051,

130 S.Ct. 2345, 176 L.Ed.2d 565 (2010)).           “The trial court has broad

discretion in formulating jury instructions, as long as the law is presented to

the jury in a clear, adequate, and accurate manner.”        Commonwealth v.

Lukowich, 875 A.2d 1169, 1174 (Pa.Super. 2005), appeal denied, 584 Pa.

706, 885 A.2d 41 (2005).

          [A] trial court is not obligated to instruct a jury upon legal
          principles which have no applicability to the presented
          facts. There must be some relationship between the law
          upon which an instruction is requested and the evidence

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         presented at trial. However, a defendant is entitled to an
         instruction on any recognized defense which has been
         requested, which has been made an issue in the case, and
         for which there exists evidence sufficient for a reasonable
         jury to find in his or her favor.

Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.Super. 2006), appeal

denied, 591 Pa. 679, 917 A.2d 312 (2007) (citation omitted)

      Similarly, “review of a trial court’s denial of a motion for mistrial is

limited to determining whether the trial court abused its discretion.”

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014), appeal

denied, 632 Pa. 679, 118 A.3d 1107 (2015). “An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the law is

overridden   or   misapplied,   or   the   judgment   exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will…discretion

is abused.” Id.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable James P.

Cullen, we conclude Appellant’s issues on appeal merit no relief. The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed October 3, 2016, at 4-

16) (finding: (1) both Commonwealth witness, Veldresha Lucas, and

defense witness, Joshua Welsh, testified that Appellant pointed gun at

Joshwin Gonzalez prior to firing several shots; this testimony was sufficient

to establish Appellant’s intent to cause serious bodily injury to Mr. Gonzalez,


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which transferred to Cynthia Boots when she was struck by bullet; even

without consideration of doctrine of transferred intent, Appellant acted

recklessly under circumstances manifesting extreme indifference to value of

human life when he fired gun into crowded barroom; additionally, Ms. Boots

suffered serious bodily injury because gunshot to her chest resulted in blood

loss, possibility of infection, scarring, and ongoing pain; under these

circumstances, jury properly convicted Appellant of aggravated assault of

Ms. Boots; (2) Appellant asked court to include, in jury instruction on

justification, reference to Appellant’s reasonable belief he was subject to

felonious act of robbery; nevertheless, defense reference to Dennis Ishman

and Mr. Gonzalez “setting up” Appellant was too vague and speculative to

warrant inclusion of requested robbery language; thus, court properly

declined to include reference to robbery in jury instruction on justification;

(3) with respect to prosecutor’s reference to Commonwealth’s duty to

provide all evidence to defense and statement that defense worked

backwards from Commonwealth’s evidence, these comments did not

constitute improper testimony by prosecutor or inappropriately shift burden

of proof to defense; prosecutor stated multiple times during closing

argument that Commonwealth had burden of proof at trial; additionally,

prosecutor’s remarks were responsive to comments made by defense

counsel about the omission of certain evidence at trial; statement in

question was merely part of longer argument on credibility of defense


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witnesses and did not constitute prosecutorial misconduct; with respect to

prosecutor’s comments on Commonwealth’s duty to disclose deals made

with   witnesses,   prosecutor’s    remarks    simply   demonstrated     that

Commonwealth would have disclosed any promise made to Ms. Lucas in

exchange for her testimony; comment was also directly responsive to

defense counsel’s comments about Ms. Lucas’ pending charges and possible

benefits she might gain as Commonwealth witness; further, aspects of

prosecutor’s statement were mere oratorical flourish and did not improperly

bolster Ms. Lucas’ credibility; under these circumstances, prosecutor’s

reference to lack of deal with Ms. Lucas’ did not constitute prosecutorial

misconduct; with respect to prosecutor’s comments about defense counsel’s

ability to call witnesses and present evidence, Appellant waived any

challenge to this statement for failure to raise issue in his objection to

closing arguments at trial; finally, with respect to prosecutor’s comments on

testimony of defense witness, Mr. Welsh, prosecutor’s statements were basic

oratorical flair used during closing arguments; further, prosecutor’s remarks

were similar in style to comments made by defense counsel about credibility

of Commonwealth witnesses; comments were within latitude given to

prosecutor in closing arguments and were manifestation of prosecutor’s right

to respond to points raised by defense counsel; moreover, court instructed

jury to disregard any opinions voiced on credibility of witnesses; under these

circumstances, prosecutor’s comments on testimony of Mr. Welsh did not


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constitute   prosecutorial   misconduct;   therefore,   court   properly   denied

Appellant’s request for mistrial). Accordingly, we affirm on the basis of the

trial court opinion.

      Judgment of sentence affirmed.

      Judge Shogan joins this memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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