J-A21020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.


SHAMUS ARMSTED

                            Appellant                       No. 643 EDA 2013


           Appeal from the Judgment of Sentence November 7, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006189-2011


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED DECEMBER 17, 2014

        Shamus Armsted1 brings this appeal from the judgment of sentence

imposed on November 7, 2012, in the Court of Common Pleas of

Philadelphia County. A jury found Armsted guilty as an accomplice of two

counts of aggravated assault by causing serious bodily injury, and two

counts of recklessly endangering another person (REAP), as to two victims,

Marcus Woods and Elisa Walker.2                The trial court sentenced Armsted to

seven to 20 years’ incarceration. However, the trial court granted Armsted’s
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The certified record also reflects the spelling of Appellant’s surname as
“Armstead”. For purposes of this appeal, we will refer to Appellant as
“Armsted”.
2
    18 Pa.C.S. §§ 2702(a)(1), and 2705, respectively.
J-A21020-14



post sentence motion to arrest judgment with respect to the one count of

aggravated assault relating to Elisa Walker, and reduced that count to

simple assault.      The trial court resentenced Armsted to a term of

incarceration of six to 14 years.      In this appeal, Armsted claims (1) the

evidence was insufficient to support the guilty verdicts for aggravated

assault and REAP “because the evidence failed to prove that [Armsted] aided

and abetted the commission of the offenses,” (2) the evidence was

insufficient to support the guilty verdict for aggravated assault “because the

evidence failed to prove that the victim, Marcus Woods, suffered ‘serious

bodily injury’ as defined by Pennsylvania law,” (3) “the cumulative effect of

numerous instances of prosecutorial misconduct” violated his right to a fair

trial, requiring the award of a new trial, and (4) the trial court erred in failing

to instruct the jury, as requested by Armsted, regarding “mere presence.”

Armsted’s Brief, at 4. Based upon the following, we affirm.

      The trial court has aptly summarized the facts of this case as follows:

            [Armsted] entered a plea of not guilty and asserted his
      right to a jury trial. The sum and substance of the evidence
      introduced at trial is as follows:

            Witness Testimony

            On March 18, 2011, a group of protesters gathered on the
      corner of Hawthorne and Margaret Streets in Philadelphia. The
      group, which had been staging daily protests for about a week
      prior, had been organized by JaVese Phelps-Washington. Ms.
      Washington’s 20 year-old son was shot and killed inside a bar
      located at the corner of Hawthorne and Margaret Streets on
      February 19, 2011. Following his death, the bar was closed for a



                                       -2-
J-A21020-14


     few weeks.   When it re-opened, Ms. Washington organized the
     protests.

          On March 18, 2011, one of the protesters was Marcus
     Woods, a young man known by the nickname “Cheese.” Woods
     was “acting out of order,” throwing rocks at the bar, opening the
     door and yelling at people inside, speaking over a bullhorn, and
     making gestures at surveillance cameras.

           At approximately 11:18 p.m., [Armsted] and two other
     men arrived at the protest in a dark SUV. All three men exited
     the vehicle and [Armsted] said “What’s up now, Cheese?” to
     Woods. Woods replied, “Go ahead with that.” The two men
     from [Armsted’s] SUV pulled out handguns and the protesters
     began to run away. One of the men then fired more than a
     dozen shots from two guns into the dispersing crowd.
     Immediately after the shooting, [Armsted] and one of the men
     that arrived with him got back into [Armsted’s] SUV and left the
     area.

           Woods and another protester, Elisa Walker, were both shot
     as they fled. Ms. Walker received a bullet graze wound to her
     leg for which she received treatment at an emergency room.
     Woods received treatment at Aria Hospital that night for a
     gunshot wound to his buttocks. At the hospital, police recovered
     the jeans and underwear that Woods was wearing that night.
     Each item of clothing had a bullet hole in the rear and massive
     blood stains.

            During the days preceding the shooting, [Armsted] and his
     employees had made a number of complaints to the police about
     the protesters but they were dissatisfied with the police
     response. Several video surveillance cameras had been recently
     installed both inside and outside of the bar by [Armsted].
     [Armsted] was able to access these cameras remotely.

          The Video

           Following the shooting on March 18, 2011, police
     recovered a video recording of the incident from the bar
     pursuant to a search warrant. The video shows [Armsted’s] SUV
     arrive at approximately 11:17 p.m. However, [Armsted] parked
     his SUV in such a way that only a very small portion of the rear
     of the SUV is visible in the video footage.

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J-A21020-14



            On the video, the shooter from [Armsted’s] SUV walks
     toward the crowd of protesters. As he does so, the protesters
     walk quickly away and some of them duck between parked cars.
     [Armsted] walks in the same direction as the shooter at this
     point.

           The shooter then walks to the southwest corner of
     Hawthorne and Margaret Streets where the protesters had been
     gathered, raises both hands to chest height and begins shooting
     in the direction of the fleeing protesters.    As he does so,
     [Armsted] continues to walk toward the shooter and stops when
     he gets to the southwest corner of Hawthorne and Margaret.

           The shooter then runs in the direction of the fleeing
     protesters. [Armsted] then begins to walk backwards from the
     corner of Hawthorne toward his SUV while continuing to look in
     the direction of the shooter. Moments later, the shooter can be
     seen running in the direction of the SUV.        The weight of
     [Armsted’s] SUV then shifts twice within seconds before it pulls
     away from its parking spot at 11:18 p.m.

          [Armsted’s] Testimony

           [Armsted] testified that he and his wife owned the bar in
     February and March of 2011. He had the video surveillance
     system installed and confirmed that he was able to view the
     surveillance cameras remotely so that he was always able to see
     what was happening there.         [Armsted] testified that the
     protesters had been causing problems for the bar on a daily
     basis, including staging protests, threatening employees,
     vandalizing employee vehicles and throwing rocks.

           [Armsted] claimed that he went to the bar at
     approximately 11:18 on March 11, 2011, to celebrate an
     employee’s birthday and serve a cease and desist letter on Ms.
     Washington. The letter stated that the protests were provoking
     violence and directed Ms. Washington to have no further contact
     with the bar either inside or outside the premises.

          [Armsted] further testified that he drove to the bar alone,
     but when he was about a block away he stopped because he saw
     some people standing around a van with broken windows.
     [Armsted] asked them if they worked at the bar and they replied

                                  -4-
J-A21020-14


     that they did not. One man was angry and stated Cheese was
     provoking the protesters to damage cars. [Armsted] asked the
     man to describe Cheese and the man said that he would show
     [Armsted] who Cheese was. [Armsted] then let that man and
     another stranger into his SUV and drove to the bar. [Armsted]
     parked the SUV in a “blind spot” of the video surveillance
     system.

            When [Armsted] arrived at the protest with the two men,
     [Armsted] approached the crowd and asked “What’s up, is this
     Cheese?” According to [Armsted], at this point the protesters
     started to run away and the men accompanying him began
     shooting at them. [Armsted] did not enter his bar, but instead
     got back in the SUV and drove away immediately. He did not
     call 911.

           Later that night, [Armsted] found out that people were
     injured in the shooting, but did not contact the police or review
     the video surveillance. However, he did speak with a defense
     attorney and the attorney’s investigator prior to his arrest.

           [Armsted] testified that he rented the SUV. [Armsted]
     returned the rental car without contacting the police or allowing
     them to attempt to obtain fingerprints or other evidence with
     regards to the armed men that rode with him. [Armsted] was
     arrested a week after the shooting.

Trial Court Opinion, 8/23/2013, at 1–4 (record citations omitted).

     As stated above, the jury found Armsted guilty as an accomplice of

two counts of aggravated assault by causing serious bodily injury, and two

counts of REAP, relating to the victims Woods and Walker.            The jury

acquitted Armsted of two counts of attempted murder, two counts of

aggravated assault by attempting to cause serious bodily injury, two counts

of aggravated assault by causing bodily injury with a deadly weapon, two

counts of conspiracy to commit murder, two counts of conspiracy to commit

aggravated assault, one count of carrying a firearm without a license, and

                                    -5-
J-A21020-14


one count of possession of an instrument of crime.3 As previously discussed,

the trial court ultimately imposed an aggregate sentence of six to 14 years’

incarceration. This appeal followed.4

     Armsted first contends the evidence was insufficient as a matter of law

to support the guilty verdicts for aggravated assault by causing serious

bodily injury and REAP because the evidence failed to prove that he aided

and abetted the commission of the offenses.

     Our standard of review is well settled:

           A claim challenging the sufficiency of the evidence is a
           question of law. Evidence will be deemed sufficient to
           support the verdict when it establishes each material
           element of the crime charged and the commission thereof
           by the accused, beyond a reasonable doubt. Where the
           evidence offered to support the verdict is in contradiction
           to the physical facts, in contravention to human
           experience and the laws of nature, then the evidence is
           insufficient as a matter of law. When reviewing a
           sufficiency claim the court is required to view the
           evidence in the light most favorable to the verdict winner
           giving the prosecution the benefit of all reasonable
           inferences to be drawn from the evidence.

       We must defer to the finder of fact at the time of trial:

           The evidence established at trial need not preclude every
           possibility of innocence and the fact-finder is free to
           believe all, part, or none of the evidence presented. It is
____________________________________________


3
  18 Pa.C.S. §§ 901, 2702(a)(1), 2702(a)(4), 903, 6106(a)(1), and 907(a),
respectively.
4
 Armsted timely complied with the court’s order to file a statement of errors
complained of on appel pursuant to Pa.R.A.P. 1925(b).




                                           -6-
J-A21020-14


           not within the province of this Court to re-weigh the
           evidence and substitute our judgment for that of the fact-
           finder. The Commonwealth’s burden may be met by
           wholly circumstantial evidence and any doubt about the
           defendant’s guilt is to be resolved by the fact finder
           unless the evidence is so weak and inconclusive that, as a
           matter of law, no probability of fact can be drawn from
           the combined circumstances.

       Furthermore, in applying the above test, the entire record must
       be evaluated and all evidence actually received must be
       considered.

Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (quotations

and citations omitted), appeal denied, 80 A.3d 777 (Pa. 2013).

     We begin by setting forth the definitions of the relevant crimes. A

person may be convicted of Aggravated Assault graded as a first degree

felony if he “attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life.” 18 Pa.C.S. §

2702(a)(1).5 “Serious bodily injury” is defined as “[b]odily injury which

____________________________________________


5
  As previously mentioned, the jury found Armsted guilty of two counts of
aggravated assault by causing serious bodily injury, and acquitted Armsted
of two counts of aggravated assault by attempting to cause serious bodily
injury.

     Also, as stated above, the trial court granted Armsted’s post-sentence
motion in part, and arrested judgment with respect to one count of
aggravated assault by causing serious bodily injury, as to Elisa Walker, and
reduced that count to simple assault.




                                           -7-
J-A21020-14


creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S. § 2301.

    Section 2705 of the Crimes Code, pertaining to REAP, provides that “[a]

person commits a misdemeanor of the second degree if he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. § 2705.

    An accomplice is legally accountable for the conduct of another person

involved in committing the crimes. 18 Pa.C.S. § 306(b)(3). The Crimes Code

defines an accomplice as follows:

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

         (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[.]

18 Pa.C.S. § 306(c). “All theories that are recognized under our law to hold

one responsible for the criminal acts of another require the existence of a

shared criminal intent.” Commonwealth v. Cox, 353 A.2d 844, 846 (Pa.

1976) (citations omitted).

      A defendant cannot be an accomplice simply based on evidence
      that he knew about the crime or was present at the scene.
      However, the circumstances change if there is additional
      evidence that the defendant intended to aid in the commission of
      the underlying crime, and then did or attempted to do so. The

                                    -8-
J-A21020-14


      amount of aid “need not be substantial so long as it was offered
      to the principal to assist him in committing or attempting to
      commit the crime.” Commonwealth v. Murphy, 577 Pa. 275,
      286, 844 A.2d 1228, 1234 (2004).

Toritto, supra, 67 A.3d at 35.

    Here, Armsted argues that the Commonwealth failed to proved that

there was a shared criminal intent between himself and the shooter.

Specifically, Armsted asserts:

      [T]he Commonwealth did not contend that [Armsted] was the
      actual shooter. There was also no suggestion at trial that
      [Armsted] even possessed a firearm, or acted as a lookout, or
      otherwise did anything to aid or encourage the gunman to fire
      shots at anyone. Indeed, there is no evidence that, prior to
      getting out of the SUV, he even knew that the other men were
      armed.

Armsted’s Brief at 18.    In support of this argument, Armsted points to

Commonwealth v. Menginie, 383 A.2d 870 (Pa. 1978), Commonwealth

v. Johnson, 513 A.2d 476 (Pa. Super. 1986), Commonwealth v.

Cunningham, 447 A.2d 615 (Pa. Super. 1981), and Commonwealth v.

Fields, 333 A.2d 745 (Pa. 1975). Based upon our review, we conclude the

cited cases are distinguishable, and Armsted’s argument is without merit.

      In Menginie, a verbal confrontation between the occupants of two

cars at a drive-in restaurant quickly escalated to a point where Menginie and

all but one of the other occupants of both cars alighted from their vehicles,

at which point the passenger who remained in Menginie’s vehicle exited,

drew a gun, and fatally shot the victim. Menginie and his passengers then

drove away. Menginie, 382 A.2d at 871–872. Menginie was convicted of,

                                    -9-
J-A21020-14


inter   alia,   voluntary   manslaughter   and   conspiracy.   On   appeal,   the

Pennsylvania Supreme Court reversed Menginie’s convictions and discharged

him, finding:

        There is no indication that appellant had ever met or known the
        victim prior to this encounter, thus no inference can be drawn
        that revenge or vindication was the basis for an agreement to
        ‘get’ the victim. More importantly, there is no evidence that
        appellant encouraged, acquiesced in, or even knew that the
        person in the rear seat had a gun, or that he intended to use it.

Id. at 872. The Menginie Court concluded: “We hold that on the present

record the prosecution has failed to establish an agreement or common

understanding, either explicit or implied, formed either before or during this

confrontation, to commit the act for which appellant was charged.” Id. at

873.

        In Johnson, three men, including Johnson, and a woman were exiting

a bar at the precise moment the victim rode past the bar on his bicycle. One

of the men with Johnson said, “Here comes a white boy. Let’s get him.”

Johnson, 513 A.2d at 477. Shortly after those words were spoken, another

man pulled out a gun and fatally shot the victim. Johnson fled with the other

men and woman. Id. Johnson was convicted of conspiracy to commit murder

and/or robbery. On appeal, this Court reversed the judgment of sentence,

finding “there was no overt evidence of an agreement that included Johnson

in which he assented to go along with the commission of the crime.” Id. at

478.




                                     - 10 -
J-A21020-14


      In Cunningham, a panel of this Court reversed a third degree-

murder conviction based upon accomplice liability where the evidence

showed that Cunningham beat the victim’s leg with a baseball bat, but the

fatal blow clearly came from Cunningham’s co-defendant, who struck the

victim with a piece of wood while Cunningham attempted to stop the co-

defendant. Cunningham was observed chasing the victim through a vacant

lot, detaining him by hitting him in the leg with a baseball bat, and

identifying him to the co-defendant as the person who had burglarized the

co-defendant’s apartment. Id. at 616–617. When the co-defendant caught

up, he beat the victim with an ax handle. Id. at 616. Other testimony

revealed that Cunningham did not see the co-defendant approaching with a

piece of wood and that he attempted to stop the co-defendant.       Id. This

Court found that Cunningham’s identification and detainment of the victim,

in light of the totality of the circumstances, were insufficient to prove

accomplice liability.

      In Fields, the defendant was charged and convicted of murder and

conspiracy. The evidence at trial established that Fields and his co-

conspirator approached the victim as he sat on a set of stairs and one of the

men asked if the victim was “from 29.” Id. at 746. Before the victim could

respond, the co-conspirator shot him five times. The men fled and a witness

saw the defendant “move his hands ‘down into his pants ... Like he had

something under his shirt.’” Id. The Pennsylvania Supreme Court reversed


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J-A21020-14


the judgment of sentence, reasoning: “There is nothing in the testimony to

indicate Fields had any prior knowledge of [his cohort’s] lethal intent or that

he in any way counseled or participated in the shooting.” Id. at 747.

       In all of these cases there was a lack of evidence of shared criminal

intent between the defendants and the actors who committed the crimes

because the situations developed in spontaneous and unanticipated ways.6

The present case contrasts with the cited cases.

       Here, there was evidence that Armsted was angry with the protestors,

that he was dissatisfied with the police response, that Woods was a

protestor who particularly misbehaved on the night of the shooting, that

Armsted had remote access to video surveillance of the inside and outside of

the bar, and that Armsted drove an SUV with two men, including the

shooter, to the location of the protestors. Armsted approached, asked which

protestor was Woods, and at that point gunfire erupted. The video shows

the shooter with both arms raised, chasing individuals who are running

away. The video also shows Armsted walking in the direction of the shooter,

then walking backward, and looking in the direction of the shooter. After the
____________________________________________


6
  Both conspiracy and accomplice liability require proof of shared intent, but
accomplice liability does not require proof of an agreement as conspiracy
does. See Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa. Super.
2002), affirmed, 844 A.2d 1228 (Pa. 2004). We note that Menginie,
Johnson and Fields were cases involving conspiracy convictions. We
further note that, in the present case, the jury acquitted Armsted of
conspiracy, specifically, two counts of conspiracy to commit murder, and two
counts of conspiracy to commit aggravated assault.



                                          - 12 -
J-A21020-14


shooting, the shooter is seen running in the direction of the SUV. Armsted

returns to the SUV.    The SUV then shifts slightly downward just before it

leaves the parking spot.   Armsted did not contact police.    Additionally, he

returned the rented SUV without making it available to police for possible

evidence relating to the men who rode with him.

      Armsted’s position on appeal asks us to draw inferences from the

evidence that are favorable to him rather than the Commonwealth, which is

contrary to our standard of review.      Moreover, the jury was entitled to

disregard Armsted’s account of the incident.       See Commonwealth v.

Rosario-Hernandez, 666 A.2d 292, 296 (Pa. Super. 1995) (“It is the

function of the jury to pass upon the credibility of the witnesses and to

determine the weight to be accorded the evidence produced. The jury is free

to believe all, part or none of the evidence introduced at trial.” (citation

omitted)).    Finally, the jury’s verdict is fully supported by the reasonable

inferences from the Commonwealth’s evidence that Armsted either solicited

the shooter or aided him by driving him in the SUV to and from the scene,

and by returning the rented SUV without contacting police and giving them

access to the vehicle for possible evidence. Therefore, we agree with the

conclusion of the trial court that based upon the evidence,

      the jury could have found that [Armsted] had the intent of
      promoting or facilitating the shooting and that he solicited the
      shooter to fire or aided the shooter in planning or perpetrating
      the shooting. Under Pennsylvania law, this makes [Armsted]
      criminally responsible for each of the crimes as an accomplice.
      See 18 Pa.C.S.A. § 306.

                                    - 13 -
J-A21020-14



Trial Court Opinion, 8/23/2012, at 8. Accordingly, we reject Armsted’s first

sufficiency challenge.

       Armsted also claims the evidence was insufficient to sustain the guilty

verdict for aggravated assault by causing serious bodily injury to Marcus

Woods.      Armsted argues that because the jury acquitted him of the

aggravated assault by attempting to cause serious bodily injury to Woods,

“the issue now before this Court is whether the evidence established that

Marcus Woods actually suffered ‘serious bodily injury’ as defined by the

Crimes Code.” Armsted’s Brief, at 28.7             See 18 Pa.C.S. § 2702(a)(1) (“A

person is guilty of aggravated assault if he … attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the

value of human life[.]” (emphasis added)).

       As stated above, “serious bodily injury” is defined in the Crimes Code

as “[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S. § 2301.               Armsted

maintains the gunshot wound in Woods’s right buttocks did not qualify as

____________________________________________


7
  Armsted asserts, “The lower court properly arrested judgment on the count
relating to Elisa Walker, finding that the evidence failed to show that Elisa
Walker suffered ‘serious bodily injury’ as defined by Pennsylvania law.”
Armsted’s Brief, at 27.



                                          - 14 -
J-A21020-14


“serious bodily injury.” Armsted relies on the evidence showing that Woods

was completely ambulatory when he walked into the hospital emergency

room and upon discharge, that he was released after four hours of

outpatient treatment, and that he did not require sutures or antibiotics. We

are not persuaded by this argument.

      Here, Woods suffered a penetrating entry wound to his right buttocks,

with the bullet able to be felt in the right hip region.     See Trial Court

Opinion, 8/23/2013, at 9; Exhibit B.         His pants and underwear were

“saturated” with blood. Id.; Exhibit A. Given this evidence, we agree with

the trial court that the penetrating gunshot wound suffered by Woods

qualifies as a “serious bodily injury.”      See e.g., Commonwealth v.

Daniels, 354 A.2d 538, 539 (finding defendant caused serious bodily injury

for purposes of aggravated assault where victim was struck by bullet which

remained in his body because doctor recommended against removal).

Moreover, as the trial court pointed out, “[t]he massive blood loss suffered

by Woods was sufficient for the jury to find there was a substantial risk that

he could have bled to death if not for the emergency medical treatment he

received.”   Id. at 10.   See Commonwealth v. Kramer, 371 A.2d 1008,

1013 (Pa. Super. 1977) (evidence sufficient to establish aggravated assault

where doctor’s testimony that defendant beat children on buttocks, causing

bruising and ruptured blood vessel;     defendant “did not only attempt to

cause serious bodily injury, but actually did cause such injuries”); see also


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Commonwealth v. Payne, 868 A.2d 1257, 1262 (Pa. Super. 2005),

(upholding aggravated assault—serious bodily injury conviction where victim

was shot in back; “fact that [victim] did not die was just blind luck”), appeal

denied, 877 A.2d 461 (Pa. 2005). Accordingly, we find no error in the trial

court’s determination that the Commonwealth established the gunshot

wound suffered by Woods was a “serious bodily injury” within the definition

of 18 Pa.C.S. § 2301.

      In summary, neither of Armsted’s challenges to the sufficiency of the

evidence presents a basis upon which to disturb the judgment of sentence.

      Next, Armsted contends “the cumulative effect of numerous instances

of prosecutorial misconduct that permeated the trial up to and including the

prosecutor’s closing argument violated the defendant’s right to a fair trial

and requires the award of a new trial.” Armsted’s Brief, at 4, 32. In support

of his position, Armsted argues the prosecutor (1) repeatedly referenced

pre-arrest photographic identifications of Armsted, (2) made numerous

unfounded suggestions that other criminal activity was associated with the

bar that by implication was attributable to Armsted as its owner, (3) argued

facts not in evidence by suggesting that Armsted said he was going to fix the

problems himself with the protestors, and that Armsted and his supporters

had threatened witnesses. See Armsted’s Brief, at 32.

      “Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v.


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Helsel, 53 A.3d 906, 920 (Pa. Super. 2012) (citation omitted), appeal

denied, 63 A.3d 1244 (Pa. 2013).

      With regard to Armsted’s first claim, regarding the prosecutor’s

references to pre-arrest photographic identifications of Armsted, the record

reflects that the counsel objected and moved for a mistrial.        See N.T.,

6/6/2012, at 197, 202.

      The Pennsylvania Supreme Court has rejected the suggestion that any

trial reference to a defendant’s photograph in police possession is prejudicial

per se. Commonwealth v. Washington, 927 A.2d 586, 605 (Pa. 2007).

Instead,

      after the reference to a photograph the controlling question is
      whether or not a juror could reasonably infer from the facts
      presented that the accused had engaged in prior criminal
      activity. A mere passing reference to photographs from which a
      reasonable inference of prior criminal activity cannot properly be
      drawn does not invalidate the proceedings since there has been
      no prejudice as a result of the reference; so too, where it
      appears on the face of the record that there is an explanation of
      the police possession of the photograph unrelated to any
      inference of prior criminal activity.

Id. at 605 (citations omitted).

      Here, the trial court reasoned that the reference was “fleeting and

solitary,” and that, since there was evidence that Armsted had cooperative

dealings with police in the month before the shooting, it was “unlikely that

the jury would have inferred that the photo in question was an arrest photo

and that [Armsted] had a prior criminal record.”         Trial Court Opinion,




                                    - 17 -
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8/23/2013, at 11.        Our review reveals no abuse of discretion in the trial

court’s determination.

        With regard to Armsted’s complaint that the prosecutor suggested that

Armsted was involved with other criminal activity was associated with

operating a nuisance bar, the record reflects the offending comment was

made by the Commonwealth’s witness, Ms. Washington, who stated that the

bar “had a long history of shootings,”8 and that trial counsel interposed an

objection and requested a curative instruction. See N.T., 6/1/2012, at 126–

127; 6/4/2012, at 4, 38–39.          The trial court sustained counsel’s objection

and gave a curative instruction as requested. See N.T., 6/4/2012, at 38–

39. The jury is presumed to have followed the instructions of the Court. See

Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006).                 Therefore,

Armsted’s complaint is without merit.

        Finally, Armsted contends that the prosecutor mischaracterized the

evidence by suggesting in her closing that Armsted admitted to wanting to

“fix the problem” himself with the protestors and that Armsted and/or his

supporters had threatened witnesses.

        [T]he prosecutor is allowed to vigorously argue his case so long
        as his comments are supported by the evidence or constitute
        legitimate inferences arising from that evidence. In considering a
        claim of prosecutorial misconduct, our inquiry is centered on
        whether the defendant was deprived of a fair trial, not deprived
        of a perfect one. Thus, a prosecutor’s remarks do not constitute
____________________________________________


8
    N.T., 6/1/2012, at 127.



                                          - 18 -
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     reversible error unless their unavoidable effect . . . [was] to
     prejudice the jury, 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.

Commonwealth v. Bozic, 997 A.2d 1211, 1229 (Pa. Super. 2010) (citation

and internal citations omitted), appeal denied, 13 A.3d 474 (Pa. 2010), cert.

denied, 131 S. Ct. 2939 (2011).

     Here, with regard to the comments in the closing argument of the

prosecutor cited by Armsted, the trial court sustained trial counsel’s

objections, and gave curative instructions. See N.T., 6/12/2012, at 5, 6–7.

In its Rule 1925(a) opinion, the trial court opined that the prosecutors’

remarks do not require reversal. The trial court reasoned:

         [Armsted] next argues that the Assistant District Attorney
     implied that witnesses had been threatened by [Armsted] and/or
     his supporters.     During closing argument, the prosecutor
     suggested that several witnesses were afraid to testify. N.T.,
     Trial Volume I, 6/11/2012, at 184–191, 213–214. A natural
     inference from her suggestion was that the witnesses were afraid
     of [Armsted]. The Court sustained [Armsted’s] objection and
     gave the following curative instruction:

         And the final objection had to do with sentiment that [the
         prosecutor] conveyed to you towards the end of her
         closing, where she asked you to use courage in rendering
         your verdict. I’m asking you to disregard that comment.

     N.T., Trial Volume I, 6/12/2012, at 7.

            While the prosecutor’s implications were certainly
     unjustified, this Court cannot conclude that the unavoidable
     effect of the comments was to compromise the ability of the jury
     to render a true verdict. Given the curative instruction and the
     jury’s split decision, the Court concludes that the verdict was
     based upon an objective and careful weighing of the evidence.


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            Finally, [Armsted] claims that during closing argument, the
     Assistant District Attorney attributed statements to the police
     officers and to [Armsted] which those witnesses did not make.
     The prosecutor told the jury that during the meeting between
     [Armsted] and police that occurred on the day of the shooting,
     the police “basically told him, ‘This is your business, this is your
     problem, you fix it … We helped you as much as we can. This is
     your problem.’” N.T., Trial Volume I, 6/11/2012, at 195-196.
     (emphasis supplied) [sic]. She went on to argue that, as a
     result of his admitted dissatisfaction with the police response to
     the protestors and the behavior of Woods and other protestors,
     [Armsted] decided to fix the problem himself:

        And do you know what the defendant said to himself? He
        said, If you’re going to do something right, you’ve got to
        do it yourself. That’s what he said.

     N.T., Trial Volume I, 6/11/2012, at 196.

         The transcript reflects that the prosecutor qualified the
     purported statements of police with the word “basically.” With
     respect to the supposed soliloquy by [Armsted] [deciding to fix
     the problem himself], it is clear from the context of the entire
     argument and the trial record that the prosecutor fairly argued
     to the jury that they should infer that [Armsted] determined that
     he would take matters into his own hands. However, in an effort
     to purge any improper considerations from the jurors’ minds
     during deliberations, this Court gave the following curative
     instruction regarding the prosecutor’s comments about the
     meeting:

        [The prosecutor] referenced that at that meeting
        [Armsted] was told that his bar, to paraphrase, was a
        problem and [defense counsel] objected. I’m going to
        sustain that objection. Obviously, it is your recollection
        that controls. There was, we believe, testimony that …
        the protests were part of the meeting and perhaps the
        homicide that had been committed the week or weeks
        before; there wasn’t any direct evidence stating that he
        was told that his bar was a “problem,” quote unquote. So
        that objection is sustained.

     N.T., Trial Volume I, 6/12/2012, at 5–6.


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J-A21020-14


            Viewing the prosecutor’s closing argument, which
      encompassed more than 30 pages of the trial transcript, as a
      whole, as well as the Court’s instructions, this Court cannot
      conclude that these comments caused the jurors to form a fixed
      bias and hostility toward [Armsted] in their minds or prevented
      them from weighing the evidence objectively and rendering a
      true verdict. Thus, any misconduct by the prosecutor does not
      warrant a new trial.

Trial Court Opinion, 8/23/2013, at 17–19.

      The trial court has fully addressed Armsted’s arguments, the relevant

portions of the record, its curative instructions, and justified its conclusion

that Armsted was not prejudiced by the prosecutor’s comments during

closing argument. We discern no abuse of discretion in the trial court’s

analysis.

      In sum, based on our review of Armsted’s contention that he is

entitled to a new trial based upon the “cumulative effect of numerous

instances of prosecutorial misconduct,” we conclude no relief is due.       It is

well settled that “no number of failed claims may collectively attain merit if

they could not do so individually.” Commonwealth v. Williams, 615 A.2d

716, 722 (Pa. 1992).     Armsted has failed to demonstrate that any of his

claims of prosecutorial misconduct warrant relief individually, and they do

not do so when considered collectively.

      Finally, Armsted contends that the trial court committed reversible

error in failing to give the jury a set of specific instructions, as requested by

Armsted.




                                     - 21 -
J-A21020-14


      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

      Here, Armsted contends that the trial court committed reversible error

in failing to instruct the jury “that his mere presence at the scene of the

crime, knowledge of [a crime’s] commission, and flight from the scene, even

with the shooter if they so found, was insufficient to convict him.” Armsted’s

Brief, at 36. In support of his argument, Armsted cites Commonwealth v.

Henderson, 378 A.2d 393 (Pa. Super. 1977).              Armsted’s reliance on

Henderson is misplaced.

      In Henderson, the instruction at issue recited in general terms the

applicable law on the subjects of accomplice liability and conspiracy. See id.

at 400. This Court reversed and remanded for a new trial because the jury

instruction was lacking and prejudicial for not setting forth the significance

or insignificance of mere presence without any other evidence. See id. at

400. Henderson is distinguishable from the present case.

      Here, the trial judge instructed the jury on accomplice liability, stating:

      There was an objection about accomplice liability and I’m
      sustaining that objection as I’ll also mention later, if someone
      helps someone escape after a crime is committed, that in and of


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J-A21020-14


     itself would not make them culpable as an accomplice for the
     crime that was committed. Just helping someone escape, if
     that’s all there was, would not be enough to make you an
     accomplice for purposes of the law. So I wanted to clarify that
     and also give you a much fuller instruction on accomplice liability
     later.
                                   ****

           There are [two] basic ways that one defendant may be
     criminally responsible for conduct committed by another person
     or persons. These two ways may apply, even if the defendant in
     question was not present at the time and place when a particular
     act occurred. And here I’m talking about conspiratorial liability
     and accomplice liability. And just to make this clear for you,
     there is an agreement among everyone here that the defendant
     did not shoot at anyone that evening. However, if you find that
     he meets the requirement beyond a reasonable doubt for being
     an accomplice, a conspirator or both in this case, then you can
     find him guilty of the underlying charges, even though he didn’t
     actually shoot at anyone.

                                   ****

            There is a second and separate way one defendant can be
     liable for the conduct of another person or persons; that is, when
     the defendant is an accomplice of the person who actually
     commits the crimes at issue. There is a basic difference between
     being an accomplice and being a conspirator. In a conspiracy,
     people agree to act jointly. To be an accomplice, a person does
     [not] have to agree to help someone else. The person is an
     accomplice if he or she on his or her own act helps the other
     person commit another crime. More specifically, the defendant
     is an accomplice of another for a particular crime if the following
     two elements are proven beyond a reasonable doubt:


             A, that the defendant had the intent of promoting or
     facilitating the commission of that crime and; B, the defendant
     solicits, commands, encourages or requests the other person to
     commit it or aids, agrees to aid or attempts to aid the other
     person in planning or committing the crime.




                                   - 23 -
J-A21020-14


             It is important to understand that a person is not an
       accomplice merely because he or she was present when a
       crime was committed or knows that a crime is being
       committed.      And again, it is not enough for the
       Commonwealth to show that a person helped someone
       flee after a crime was committed in and of itself to make
       someone an accomplice. …

N.T., 6/12/2012, at 6–7, 16–19 (emphasis added).        See also Trial Court

Opinion, 8/23/2013, at 14–15.

       As is evident from the above excerpt, the trial judge’s instruction

specifically conveyed to the jury that Armsted’s “mere presence” and

knowledge of the crime alone would not be sufficient to make him an

accomplice. The trial court’s instruction tracks the language of Pennsylvania

Suggested Standard Jury Instruction (Crim) 8.306(a). As such, we discern

no abuse of discretion. See Commonwealth v. Harris, 979 A.2d 387, 395

(Pa. Super. 2009) (finding no abuse of discretion in trial court’s failure to

give defendant’s requested “mere presence” instruction where the substance

of the proposed charge was included the Standard Jury Instructions, and

thus was covered by the conspiracy charge).9 See also Commonwealth v.

Reid, 99 A.3d 427, 455 (Pa. 2014) (rejecting ineffectiveness claim for failing

to raise on direct appeal trial court’s refusal to give requested mere presence

____________________________________________


9
   In Harris, the trial judge had rejected Harris’s proposed “mere presence”
instruction, finding that the concept was covered in the conspiracy charge
and was therefore not necessary. The trial judge explained that since the
filing of Henderson, the decision on which Harris based his proposed
instruction, the Standard Jury Instructions had been revised to incorporate
the findings of that case. See Harris, 979 A.2d at 395 n.9.



                                          - 24 -
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instruction; jury was instructed as to the elements of the crimes charged

and, with respect to the accomplice charge, that “[a] defendant does not

become an accomplice merely by being present at the scene or knowing

about a crime”).    Accordingly, we reject Armsted’s challenge to the jury

charge as meritless.

     Having reviewed the contentions of Armsted, and finding no basis

upon which to disturb the judgment of sentence, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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