J-A11017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYRECE LIGON

                            Appellant                  No. 3229 EDA 2014


              Appeal from the Judgment of Sentence July 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001138-2012


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED JULY 12, 2016

        Appellant, Tyrece Ligon, appeals from the July 18, 2014 aggregate

judgment of sentence of 15 to 30 years’ imprisonment, to be followed by 10

years’ probation, after his conviction by a jury of one count each of

aggravated assault, possession of an instrument of a crime, carrying a

firearm without a license, carrying a firearm in public in Philadelphia, and

criminal conspiracy, as well as his conviction following a bench trial for one

count of persons not to possess a firearm.1 After careful review, we affirm.

        The trial court has fully and accurately recounted the facts of this case

in its opinion filed pursuant to Pennsylvania Rule of Appellate Procedure
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a), 907(a), 6106(a), 6108, 903(c), and 6105(a)(1).
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1925(a), and we need not repeat them here.            See Trial Court Opinion,

7/16/15, at 2-9.        Relevant to this appeal, Appellant was arrested for

shooting Howard Filmore twice in the back. Id. at 2. Filmore was involved

in a confrontation with Linda Burrell, Appellant’s girlfriend’s mother.    Id.

Ms. Burrell sought the help of her two daughters, Latrice Burrell and

Shamira Stanfield in confronting Filmore. Id. Appellant drove the daughters

to the scene, and the altercation escalated to Appellant shooting Filmore as

he fled from Ms. Stanfield who had struck Filmore with an aluminum baseball

bat. Id. at 3. Appellant was arrested following the incident.

       On April 8, 2014, a jury trial, followed by a bench trial, was held. At

the conclusion of said trials, Appellant was convicted of the aforementioned

crimes. On July 18, 2014, the trial court sentenced Appellant to 15 to 30

years’ imprisonment followed by 10 years’ probation.          No post-sentence

motions were filed.      On August 7, 2014, Appellant filed a timely notice of

appeal.2

       On appeal, Appellant raises the following issues for our review.

              1. Whether the [t]rial [c]ourt erred as a matter of
              law by not declaring a mistrial following the assistant
              district attorney’s inflammatory statements during
              closing arguments to the jury regarding uncharged
              misconduct and the conduct of others in the
              courtroom who did not testify at trial[?]

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            2. Whether the trial court erred as a matter of law
            by not giving a curative instruction to the jury
            because the assistant district attorney argued facts
            not in evidence with regards to witness intimidation,
            alleged uncharged misconduct, and the conduct of
            others in the courtroom who did not testify at trial[?]

            3. Whether the trial court erred as a matter of law in
            not granting a motion for judgment of acquittal
            because there was insufficient evidence to find
            [Appellant] guilty beyond a reasonable doubt due to
            the alleged victim’s grossly inconsistent statements
            and recollection of what actually occurred on the
            date in question[?]

Appellant’s Brief at 7.

      In his first two issues, Appellant asserts a mistrial should have been

declared    following     “improper   and   prejudicial   remarks      in   [the

Commonwealth’s] closing argument to the jury.” Id. at 13. Alternatively,

Appellant asserts the trial court erred when it failed to give a curative

instruction to the jury regarding the prejudicial comments.           Id. at 18.

However, both the Commonwealth and the trial court assert that Appellant

waived both of these issues by failing to object, failing to request a curative

instruction, and failing to request a mistrial below. Commonwealth’s Brief at

7-9; Trial Court Opinion, 7/16/15, at 11.

      It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our

Supreme Court has repeatedly emphasized the importance of issue

preservation.




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                    Issue preservation is foundational to proper
            appellate review. Our rules of appellate procedure
            mandate that “[i]ssues not raised in the lower court
            are waived and cannot be raised for the first time on
            appeal.” Pa.R.A.P. 302(a). By requiring that an
            issue be considered waived if raised for the first time
            on appeal, our courts ensure that the trial court that
            initially hears a dispute has had an opportunity to
            consider the issue. This jurisprudential mandate is
            also grounded upon the principle that a trial court,
            like an administrative agency, must be given the
            opportunity to correct its errors as early as possible.
            Related thereto, we have explained in detail the
            importance of this preservation requirement as it
            advances the orderly and efficient use of our judicial
            resources. Finally, concepts of fairness and expense
            to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.

2013).

      Instantly, a review of the trial transcript confirms the observations of

the trial court and the Commonwealth that Appellant failed to object to the

Commonwealth’s closing statement.        Further, Appellant did not request a

curative instruction or make a motion for a mistrial on the record. In fact,

after the trial court finished charging the jury the following occurred.

            The Court: We are in the anteroom outside the
            hearing of the jury. I have [Defense Counsel] here.
            I have [the Assistant District Attorney] here. And
            my purpose is to ascertain if either of you have any
            objections to or requests for additional instructions
            or questions for clarification, anything at all that you
            wish to bring to my attention before the jury goes
            out to deliberate. [Defense Counsel]?

            [Defense Counsel]: None, Your Honor.

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             The Court: Ma’am?

             [Assistant District Attorney]: None, Your Honor.

             The Court: All right. So then we’ll send the jury out,
             and we’ll await their verdict.

N.T., 4/10/14, at 147.      Further, Appellant did not file a post-sentence

motion. Therefore, we deem Appellant’s first two issues waived on appeal

for want of preservation. See F.C., supra.

       In his third issue, Appellant argues the trial court erred in denying his

motion for judgment of acquittal. Appellant’s Brief at 22. Specifically, in his

Rule 1925(b) statement, Appellant argued “there was insufficient evidence

to find [Appellant] guilty beyond a reasonable doubt given the victim’s

grossly inconsistent statements.”      Appellant’s Rule 1925(b) Statement,

1/6/15, at 2. However, in his brief, Appellant does not develop a sufficiency

argument, rather, he again argues the Commonwealth’s closing statements

wrongly influenced the jury’s verdict. Specifically, Appellant argues “[w]hile

it is within the power of the jury to resolve conflicts within testimony, the

prosecutor’s closing arguments provided them with a prejudicial source to do

so.”   Appellant’s Brief at 23.   Arguing further that “[t]here was no other

evidence presented to resolve the conflicting testimony other than the

prosecutor’s closing argument.      … The jury wasn’t even provided with a

curative instruction to sanitize the prosecution’s statements.” Id. As noted

above, Appellant has waived any argument challenging the Commonwealth’s


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closing statement by failing to object to the statement and failing to request

a curative instruction. Accordingly, Appellant’s third issue is also waived.

      Based on the foregoing, we conclude all of Appellant’s issues are

waived. Accordingly, we affirm the trial court’s July 18, 2014 judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




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