J-S80022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RADAMES SANABRIA                           :
                                               :
                      Appellant                :   No. 2631 EDA 2016

             Appeal from the Judgment of Sentence March 4, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001110-2011


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED MARCH 23, 2018

        Appellant, Radames Sanabria, appeals from the judgment of sentence

entered following his convictions of first degree murder, carrying a firearm

without a license (“VUFA”), and possession of an instrument of crime

(“PIC”).1 We affirm.

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

              On August 10, 2010, at approximately 10:00 p.m., Jerome
        Carlyle (“Carlyle”), age fourteen, was hanging out with friends
        near the intersection of Clearfield Street and Seventh Street in
        the City of Philadelphia.       [Appellant] and Rafael Roman
        (“Roman”) walked up Clearfield Street, passing the group, and
        continued to the other side of Seventh Street. Carlyle and
        [Appellant] exchanged some words and then Carlyle began to
        cross the street, following behind [Appellant] and Roman.
        Seemingly unprovoked, [Appellant] turned toward Carlyle, pulled

____________________________________________


1   18 Pa.C.S. §§ 2502, 6106, and 907.
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      a gun from his waistband, and began shooting at Carlyle, firing
      approximately four shots.    Carlyle ran a short distance up
      Seventh Street and then collapsed, while [Appellant] and Roman
      ran down Seventh Street toward Indiana Avenue. Medics arrived
      on [the] scene and transported Carlyle to Saint Christopher’s
      Hospital, where he was pronounced dead.

             The following day, detectives recovered a video recording
      from a surveillance camera at a business located at the corner of
      Seventh Street and Clearfield Street, which had captured the
      events from the prior evening including the shooting. Over the
      course of the investigation, Officer Seigafuse became aware that
      an arrest warrant had been issued for [Appellant] in connection
      with the August 10, 2010 shooting. On September 14, 2010,
      Officer Seigafuse was on routine patrol in a marked police
      vehicle with three other officers when he saw an individual, who
      he knew to be an acquaintance of [Appellant], exit a vehicle
      parked at the intersection of Mascher Street and Gurney Street.
      Officer Seigafuse noticed that there were three other people still
      inside the vehicle, so the officers made a u-turn on Gurney
      Street to head back toward the parked vehicle. As they were
      approaching the vehicle, the rear passenger, later determined to
      be [Appellant], exited the car and fled down Mascher Street.
      [Appellant] then doubled back, running several blocks up
      Mascher Street to Lippincott Street with the officers in pursuit.
      As Officer Seigafuse caught up to him, [Appellant] was climbing
      under a parked vehicle. Officer Seigafuse waited for his fellow
      officers to arrive at the vehicle and then placed [Appellant] into
      custody.

Trial Court Opinion, 6/27/17, at 3-4. The trial court set forth the subsequent

procedural history of this matter as follows:

             On October 17, 2012, [Appellant] elected to exercise his
      right to a jury trial and pleaded not guilty to the above listed
      charges. On October 23, 2012, the jury found [Appellant] guilty
      of Murder of the First Degree (H1), Carrying Firearms Without a
      License (F3), and PIC (M1). At the conclusion of the trial, [the
      trial c]ourt deferred sentencing to November 1, 2012[,] for the
      completion of a Pre-Sentence Investigation report, a mental
      health evaluation, and a drug/alcohol evaluation. On November
      1, 2012, sentencing was continued to December 17, 2012[,]
      because of the developing law with regard to the sentencing of

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     [a] juvenile and further continued to February 1, 2013[,] in
     order to review the findings of the Honorable Carolyn Temin on
     the constitutionality of 18 Pa.C.S. § 1102.1.1 On February 1,
     2013, [the trial c]ourt conducted a sentencing hearing and held
     the sentence under advisement in order to review all materials,
     with regard to the law regarding the sentencing of juveniles to
     life sentences.     On February 13, 2013, [the trial c]ourt
     sentenced [Appellant] to Life without parole on the charge of
     Murder in the First Degree and did not impose any additional
     sentence on the remaining charges.

           1 On December 17, 2012, Judge Temin ruled that the
           statute was constitutional. See Commonwealth v.
           Brooker (CP-51-CR-0006874-2009), Commonwealth
           v.    Smith   (CP-51-CR-0006875[-2009]),      and
           Commonwealth v. Ellison (CP-51-CR-0006872-
           2009).

            On February 19, 2013, [Appellant] filed a Post-Sentence
     Motion.2 On March 6, 2013, [the trial c]ourt granted a hearing
     for the motion and vacated the sentence pending the outcome of
     the hearing. The hearing was further continued to May 17,
     2013. On May 17, 2013, [the trial c]ourt issued an Opinion
     finding that 18 Pa.C.S. § 1102.1 was constitutional and that [the
     trial c]ourt did not err in applying it. The post-sentence motion
     was further continued numerous times to allow the parties to
     present additional evidence for [the trial c]ourt’s consideration in
     imposing a sentence.

           2  On February 25, 2013,           the motion was
           supplemented via the filing        of a Motion for
           Modification of Sentence.

           On August 3, 2015, [Appellant] filed a Motion for [the trial
     c]ourt’s recusal, which [the trial c]ourt denied on October 5,
     2015. On March 4, 2016, [the trial c]ourt sentenced [Appellant]
     to a term [of] 39 years to Life on the charge of Murder in the
     First Degree and did not impose any additional sentence on the
     remaining charges.      Following the imposition of sentence,
     [Appellant] filed a post-sentence motion, which was denied by
     operation of law on August 15, 2016.




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Trial Court Opinion, 6/27/17, at 1-3.      This timely appeal followed.     Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Is the evidence insufficient to sustain the convictions and
      should judgment of sentence be vacated because identity was
      not proven and Appellant was, at most, merely present when the
      murder occurred because Rafael Roman was the shooter?

      2. Was the Verdict against the weight of the evidence and should
      a new trial be ordered because Rafael Roman was identified as
      the shooter of Decedent and Appellant was at most merely
      present?

      3. Did the prosecutor engage in prosecutorial misconduct and
      cause irreparable harm to Appellant by ignoring the trial court’s
      Order by implying that Appellant had been involved in
      discouraging Eliezer Hernandez from testifying truthfully at trial?

Appellant’s Brief at 4 (renumbered for ease of disposition).

      Appellant first purports to argue that there was insufficient evidence to

support the verdicts in this case.    Appellant’s Brief at 11-14.    However,

Appellant alleges that the evidence as to his identity as the person who

brandished the firearm and committed the murder was not sufficient.

Specifically, Appellant contends that the testimony provided by eyewitnesses

Cory Jones and Danny Rivera identified Rafael Roman as the person who

perpetrated the shooting and failed to prove that Appellant was the

perpetrator of the murder. Id. at 13. Appellant further alleges that, at trial,

Eliezer Hernandez and Luis Ortiz recanted their identifications of Appellant.

Id. In addition, Appellant states the following:




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            There is insufficient evidence to sustain the first-degree
      Murder, VUFA, and [PIC] convictions. The real shooter was
      Rafael Roman and all identifications of Appellant were recanted
      or contrary to other identifications of Roman as the shooter of
      Decedent. Therefore, Appellant prays that his convictions be
      vacated because there is insufficient evidence to sustain those
      convictions.

Appellant’s Brief at 13-14.      Thus, Appellant challenges whether the

Commonwealth established that Appellant was the person who shot the

victim in this matter.   Again, Appellant contends that the evidence was

indefinite as to the identity of Appellant being the perpetrator.   Basically,

Appellant asks us to reassess the credibility of the Commonwealth’s

witnesses.

      A sufficiency of the evidence review, however, does not include an

assessment of the credibility of the testimony. Commonwealth v. Wilson,

825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly

characterized as a weight of the evidence challenge. Id. A challenge to the

weight of the evidence questions which evidence is to be believed.

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

Indeed, claims challenging the weight of the evidence and sufficiency of the

evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d

745 (Pa. 2000) (discussing the distinctions between a claim challenging the

sufficiency of the evidence and a claim that the verdict is against the weight

of the evidence).   “A true weight of the evidence challenge concedes that

sufficient evidence exists to sustain the verdict but questions which evidence


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is to be believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.

Super. 2006) (quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013

(Pa. Super. 2001)).

       In Commonwealth v. Grahame, 482 A.2d 255 (Pa. Super. 1984), we

made the following observation regarding challenges to the identity of the

perpetrator of a crime being an attack on the weight of the evidence:

              Proof beyond a reasonable doubt of the identity of
              the accused as the person who committed the crime
              is essential to a conviction. Commonwealth v.
              Reid, 123 Pa. Super. 459, 187 A 263 (1936). The
              evidence of identification, however, needn’t be
              positive and certain in order to convict, although any
              indefiniteness and uncertainty in the identification
              testimony goes to its weight. Commonwealth v.
              Mason, 211 Pa. Super. 328, 236 A.2d 548 (1967).

       Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564,
       566 (1973). (Emphasis in original).

Grahame, 482 A.2d at 259. Accordingly, we view this issue, as presented,

to   be   a   challenge    to   the   weight   of the   evidence   offered by   the

Commonwealth, and we will address it as such and assess the merits of the

claim in reviewing Appellant’s second issue.2

____________________________________________


2 To the extent Appellant attempts to present a typical challenge to the
sufficiency of the evidence, we note that the trial court addressed Appellant’s
challenge to the sufficiency of the evidence by offering a thorough review of
the evidence presented at trial reflecting that Appellant was the perpetrator
of the shooting, and we conclude that such a sufficiency claim lacks merit on
the basis of the trial court’s discussion. Trial Court Opinion, 6/27/17, at 5-
10.




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     Appellant next argues that the verdict was against the weight of the

evidence because he was merely present at the scene of the crime.

Appellant’s Brief at 8-11.    Specifically, Appellant contends that “[t]he

evidence [presented at trial] points to Rafael Roman only as the killer of

Decedent.” Id. at 11.

     In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa.    308,    319,    744    A.2d    745,   751-[7]52     (2000);
     Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
     1189 (1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer, 560
     A.2d at 319-[3]20, 744 A.2d at 752. Rather, “the role of the
     trial judge is to determine that ‘notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny
     justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
     often been stated that “a new trial should be awarded when the
     jury’s verdict is so contrary to the evidence as to shock one’s
     sense of justice and the award of a new trial is imperative so
     that right may be given another opportunity to prevail.” Brown,
     538 Pa. at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see

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            the evidence presented, an appellate court will give
            the gravest consideration to the findings and reasons
            advanced by the trial judge when reviewing a trial
            court’s determination that the verdict is against the
            weight of the evidence.         Commonwealth v.
            Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
            One of the least assailable reasons for granting or
            denying a new trial is the lower court’s conviction
            that the verdict was or was not against the weight of
            the evidence and that a new trial should be granted
            in the interest of justice.

      Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
      added).

             This does not mean that the exercise of discretion by the
      trial court in granting or denying a motion for a new trial based
      on a challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable
            or where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

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       The trial court addressed this issue as follows:

              On appeal, [Appellant] claims that the verdict was against
       the weight of the evidence, averring that Rafael Roman was
       identified as the shooter and that [Appellant was] merely
       present. This [c]ourt disagrees. As discussed at length above,[3]
       the jury heard testimony from numerous witnesses and was able
       to assess each of their credibility as a witness. In assessing the
       eye-witness’ testimony and identifications of the shooter, the
       jury had the full opportunity to evaluate each witness at trial in
       making the relevant factual determinations. Similarly, the jury
       heard testimony regarding the ballistics evidence - four fired
       cartridge casings all from the same firearm recovered in close
       proximity - and was able to evaluate the consistencies between
       such evidence and the witness testimony regarding the location
       of the shooter. Moreover, the jury was able to assess the
       implications of the officer testimony regarding [Appellant] fleeing
       from police approximately one month after the shooting. The
       jury verdict, reflecting the assessment of all of the evidence
       presented at trial, was not so contrary to the evidence presented
       at trial as to “shock one’s sense of justice.” Therefore, this
       [c]ourt finds no merit in [Appellant’s] challenge to the weight of
       the evidence presented at trial.

Trial Court Opinion, 6/27/17, at 11-12.

       Based upon our complete review of the record, we are compelled to

agree with the trial court. Here, the jury, sitting as the finder of fact, was

free to believe all, part, or none of the evidence against Appellant. The jury

weighed the evidence and concluded Appellant perpetrated the crimes in

question.     We agree that this determination is not so contrary to the

evidence as to shock one’s sense of justice.              We decline Appellant’s
____________________________________________


3 Again, we observe that the trial court addressed Appellant’s challenge to
the sufficiency of the evidence by presenting a thorough review of the
evidence set forth at trial, which reflected that Appellant was the perpetrator
of the shooting. Trial Court Opinion, 6/27/17, at 5-10.



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invitation to assume the role of fact-finder and to reweigh the evidence.

Accordingly, we conclude that the trial court did not abuse its discretion in

refusing to grant relief on Appellant’s challenge to the weight of the

evidence.

      Appellant last argues that the Commonwealth engaged in prosecutorial

misconduct at the time of closing arguments.       Appellant’s Brief at 14-16.

Specifically, Appellant claims that the prosecutor, in violation of the trial

court’s order, made improper and prejudicial statements during closing

arguments implying that Appellant was somehow involved in discouraging

Eliezer Hernandez from testifying at trial. Id. at 15.

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

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

Harris, 884 A.2d 920, 927 (Pa. Super. 2005). “It is within the discretion of

the trial court to determine whether a defendant has been prejudiced by

misconduct or impropriety to the extent that a mistrial is warranted.”

Commonwealth v. Baez, 720 A.2d 711, 729 (PA. 1998).

             It is well established that trial judges must be given an
      opportunity to correct errors at the time they are made. “[A]
      party may not remain silent and afterwards complain of matters
      which, if erroneous, the court would have corrected.” Even
      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. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (citations

omitted).   See Commonwealth v. Jones, 460 A.2d 739 (Pa. 1983)


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(holding that issue of prosecutorial misconduct was waived on appeal where

defense counsel immediately objected to prosecutor’s conduct, but made no

request for mistrial or curative instructions); Commonwealth v. Chimenti,

524 A.2d 913 (Pa. Super. 1987) (ruling that, although defense counsel did

object, he failed to request a mistrial or curative instruction, and,

consequently, the issue was not preserved for review).

     Moreover, when a party moves for a mistrial, such relief is required

only when an incident is of such a nature that its unavoidable effect is to

deprive the appellant of a fair and impartial trial.     Commonwealth v.

Feliciano, 884 A.2d 901, 903 (Pa. Super. 2005). The decision whether to

grant a new trial due to alleged prosecutorial misconduct rests within the

discretion of the trial court and will not be disturbed on appeal absent an

abuse of discretion.   Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa.

1998). Comments by a prosecutor do not constitute reversible error unless

the language was such that its unavoidable effect was to prejudice the jury,

forming in their minds fixed bias or hostility towards the defendant, so that

they could not weigh the evidence objectively and render a true verdict. Id.

In addition, during closing arguments, prosecutors are permitted to

comment in fair response to references made by defense counsel in their

closing statements. See Commonwealth v. Williams, 650 A.2d 420, 428

n.13 (Pa. 1994) (stating that prosecutor’s reference during closing argument




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to absence of witnesses was permissible as proper response to defense

counsel’s remarks pertaining to the absence of the witnesses).

     Our review of the record reflects the prosecutor made the following

comments during closing argument regarding the testimony offered by Luis

Ortiz, which was interrupted by an objection from defense counsel:

     [ASSISTANT DISTRICT ATTORNEY]: Counsel was talking about
     inconsistencies and I haven’t heard any in his testimony, but
     when it comes to any differences in testimony or pointing the
     finger at someone, there is no argument. There were no issues,
     no, no fighting between Luis Ortiz and [Appellant], this
     defendant [Appellant]. No fighting, no issues. What motive
     would he have to point the finger at this gentleman who he
     barely knows, he’s never had a conversation with, as the shooter
     except for the fact that he saw it with his own eyes? There’s no
     motive to do it except for that’s the truth and he was providing
     that observation and wanted to assist the police. Counsel wants
     you to believe that he pointed the finger at [Appellant] because
     he was threatened and he knew somebody else got beaten up.
     Well, the result of somebody else getting beaten up was Eli
     Hernandez coming in here and saying or coming into the
     detectives and in here and saying I never saw anything. He had
     a fear about getting involved as a reaction, even though he did
     admit, I told people in the neighborhood that it was [Appellant].

     [DEFENSE COUNSEL]: Objection.

     THE COURT: You may continue.

     [ASSISTANT DISTRICT ATTORNEY]: He stated, did you tell
     people it was [Appellant]? It was read into the record. But he
     backtracked from the very beginning. That was based on his
     personal experience or his fear of getting beaten up or his, but it
     did not affect Luis Ortiz and there’s not enough time for that
     knowledge to have any effect on his statement when we know
     that he was already brought to the detective division, sat down
     and started giving a statement an hour and a half after this,
     after this incident occurred. There’s no connection. There’s no
     [sic] even knowledge that Luis Ortiz knew what happened or the
     extent of what happened to Eli or his brother to affect his, his

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      statement, his identification, and it clearly did not affect his
      testimony from what you observed, his demeanor, his ability to
      respond to the questions when he testified as part of this trial.

N.T., 10/22/12, at 80-82.

      Thus, the record indicates that, although Appellant objected to the

comment in a timely manner, Appellant did not request a mistrial or curative

instructions    from   the   trial   court.   Accordingly,   Appellant’s   issue   of

prosecutorial misconduct is waived on appeal. Strunk, 953 A.2d at 579

      Moreover, even if not waived, we would adopt the following discussion

of the trial court and conclude that Appellant’s claim lacks merit:

            Upon review of the evidence presented at trial, [the trial
      c]ourt has determined that the prosecutor’s remarks did not
      constitute misconduct. The remarks were made in fair response
      to the defense’s closing argument as to how the beating suffered
      by Eliezer Hernandez influenced the statement of Luis Ortiz and
      the testimony presented at trial. Specifically, the defense’s
      argument to the jury was as follows:

                      But probably most telling about Luis Ortiz was
               Eliezer Hernandez. You remember the young man
               who came in here and he told you, he said in his
               statement the police asked him, they said did you
               see who did this? No. Did you tell people you saw
               who did this? Yeah, I told a couple people I saw who
               did this but I really didn’t. And then he tells you that
               they were arguing with Luis Ortiz, they being the
               relatives of Jerome Carlyle, and I went over there to
               tell them that Luis Ortiz was not involved and he got
               beaten, stomped, he and his brother put in the
               hospital. You remember what he told you. I thought
               I was going to die.

                     Now, is that the motivation for Luis Ortiz going
               down to the police station and saying, oh, yeah,
               yeah, I saw this, I’m not going back there and have
               those people exact their revenge on me? I am not

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           criticizing what happened. I can imagine the rage
           that those family members must have felt. It’s not
           justifiable but it is explainable. But what they did,
           they manipulated the evidence.        It took Eliezer
           Hernandez to come in here and say, yeah, they beat
           me up but I didn’t see anything and so I couldn’t
           help them. For Luis Ortiz, I’m not going to be on the
           receiving end of whatever is out there.28

           28   N.T. 10/22/2012 at 60-61.

     The prosecutor’s closing remarks were properly made to rebut
     the defense’s assertion that Hernandez’s beating was what
     prompted Ortiz to provide his statement and his testimony. The
     prosecutor presented the jury with the Commonwealth’s
     alternate assessment that Hernandez’s beating only explained
     his own demeanor in testifying and that the beating could not
     have influenced Ortiz’s statement or his testimony at trial. As
     such, [the trial c]ourt found that the prosecutor’s remarks were
     not a deliberate attempt to destroy the jury’s objectivity, but
     rather a proper, alternate assessment of what the evidence
     demonstrated at trial. Accordingly, the prosecutor committed no
     reversible error and [Appellant’s] claim must fail.

Trial Court Opinion, 6/27/17, at 14-15.

     In conclusion, Appellant has presented no issues warranting relief.

Therefore, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18



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