J-S23021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALIL SIMMS,                              :
                                               :
                       Appellant               :   No. 891 EDA 2017

             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-0003794-2014


BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 18, 2018

        Appellant Khalil Simms appeals nunc pro tunc from the judgment of

sentence following his conviction for third-degree murder, possession of an

instrument of crime (PIC), and violations of the Uniform Firearm Act (VUFA),

including VUFA 6105 (possession of a firearm prohibited), VUFA 6106

(firearms not to be carried without a license), and VUFA 6108 (carrying a

firearm in public in Philadelphia).1 Appellant asserts that the evidence was

insufficient to convict him of third-degree murder because the Commonwealth

failed to disprove that Appellant did not act in justified self-defense. Appellant

also asserts that he is entitled to a new trial based on several instances of

alleged prosecutorial misconduct during closing argument. We affirm.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(c), 907, 6105(a)(1), 6106(a)(1), and 6108, respectively.
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     The trial court summarized the relevant facts as follows:

     [Appellant] often sold marijuana out of Ananh (“Gak”) Ketphahn’s
     house at 44 South 44th Street, Philadelphia. On June 17, 2013,
     [Lajuan] Watkins [(Decedent)] and his cousin went to the 44th
     Street house to acquire marijuana from [Appellant]. The sale
     went sour and following a fistfight between [Decedent] and
     [Appellant], [Appellant] shot and killed [Decedent].

     As a result of an unrelated medical issue, Gak was not competent
     to testify at trial. However, because Gak had previously testified
     at a preliminary hearing at which [Appellant] was represented by
     counsel, his preliminary hearing testimony was admitted into the
     evidence at trial.

     Gak testified that he lived at 44 South 44th Street, and that
     [Appellant] was in his house selling marijuana to [Decedent] when
     those two men engaged in what Gak described as “wrestling” or a
     “fistfight” in the hallway of the house. The fight moved into a back
     room and Gak heard shots coming from the room and saw a
     muzzle flash. One of the bullets hit Gak. Gak testified that
     [Appellant] was carrying a “funny colored” gun, and after the
     gunfire he saw “Decedent” with a red spot on his chest. At some
     point not long after, [Appellant] fled, carrying a blue bag
     containing marijuana.

     After the shooting, Gak tried to flee[,] but [Decedent’s] cousin,
     Brahim Marshall, was standing in the doorway. Marshall had a
     black object in his hand, and Gak ran in the other direction, during
     which time he heard more shots. As he was running, Gak grabbed
     [Decedent], who had already been shot, in attempt to shield
     himself from the gunfire. Gak then disposed of his marijuana to
     avoid getting arrested. Another witness, Christopher Goodbread,
     testified that Marshall also fled the scene at that point, and that
     he saw [Appellant] wiping blood off himself in the sink. Goodbread
     further testified that Gak told him that “the stupid fools tried to
     rob him.” Gak also described the “wrestling match” to Goodbread,
     as well as the fact that either Marshall or [Decedent] was carrying
     a gun. Goodbread then called 911 and informed them there had
     been a shooting.

     Officer Marc Peterson was the first officer on the scene. He first
     spoke with Gak and Gak’s mother, and Gak presented a story of
     how he got shot. Gak’s initial story was that Marshall had shot


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       both [Decedent] and Gak himself.        After Officer Peterson
       discovered the body of the victim, Gak told Office Peterson that
       [Decedent] was not involved in the shooting but fled as it
       occurred. This account was inconsistent with his preliminary
       hearing testimony.

       Dr. Albert Chu, Chief Deputy Medical Examiner[,] was qualified as
       an expert witness in forensic pathology. Dr. Chu testified that
       [Decedent] suffered two gunshot wounds, one of which entered
       the right side of his chest and exited the left side of his neck, and
       the other[,] which entered the back of his right arm and exited on
       the inner right arm. Dr. Chu testified that there was no evidence
       of close range gunfire.[2] Dr. Chu concluded, to a reasonable
       degree of medical certainty, that the cause of death was gunshot
       wound to the chest, and the manner of death was homicide.

       Officer Robert Stott, of the Philadelphia Police Department[,] was
       qualified as an expert witness in the area of firearms identification.
       Officer Stott testified that the two recovered cartridge cases at the
       scene were from different caliber guns. Officer Stott further
       testified that the one bullet can strike two different people, and
       that gunpowder residue can be removed by handwashing.
       Further, he stated that his conclusions were to a reasonable
       degree of professional certainty.

Trial Ct. Op., 7/17/17, at 2-4 (citations omitted).

       This matter proceeded to a jury trial in which the jury was selected on

November 9, 2015, and the trial took place from November 10 through

November 12, 2015. Appellant did not claim that he acted in self-defense at

trial,3 a jury charge was not requested regarding self-defense, and the jury

was not charged regarding this justification.


____________________________________________


2Close-range gunfire is that which is within two feet. See N.T., 11/10/15, at
153.

3 At trial, Appellant’s defense was that he was not the shooter.                N.T.,
11/12/15, at 16.


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      During closing argument, Appellant’s counsel commented that Marshall

had not testified during the trial. N.T., 11/12/15, at 9-10. The trial court

overruled the Commonwealth’s objection.        Id. at 10.    In response, the

Commonwealth indicated during its closing argument that Marshall was also a

defendant regarding the incident and could invoke his Fifth Amendment right

to remain silent. Id. at 24. The trial court overruled Appellant’s counsel’s

objection to this portion of the Commonwealth’s closing argument. Id.

      Also during closing argument, the Commonwealth             implied that

Goodbread had been intimidated and stated that Appellant had bullied Gak

into allowing him to sell drugs from Gak’s home. Id. at 19-20. Appellant’s

counsel did not object to the implication that Goodbread was intimidated, but

he objected regarding the statement that Gak had been bullied, and the trial

court sustained that objection.    Id. at 20-21.    The court gave the jury

instructions regarding the intimidation and bullying arguments, informing

them that they must disregard those portions of the Commonwealth’s

argument. Id. at 71.

      At the conclusion of the trial, the jury convicted Appellant of the

aforementioned offenses.    On March 4, 2016, Appellant was sentenced to

twenty to forty years’ incarceration for third-degree murder, two-and-a-half

to five years’ incarceration for PIC, five to ten years’ incarceration for VUFA

6105, three-and-a-half to seven years’ incarceration for VUFA 6106, and two-

and-a-half to five years’ incarceration for VUFA 6108.   All sentences were to




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run concurrently, for an aggregate sentence of twenty to forty years’

incarceration.

      Post-sentence motions were filed and denied; however, no direct appeal

was filed on behalf of Appellant. Appellate counsel filed a PCRA petition on

November 23, 2016, seeking to have Appellant’s direct appeal rights

reinstated. Appellant’s appellate rights were reinstated, nunc pro tunc, on

February 27, 2017.

      Appellant filed a notice of appeal on March 11, 2017, and a timely

statement of errors complained of on appeal on April 3, 2017. The trial court

complied with Pa.R.A.P. 1925(a).

      Appellant raises the following questions for our review:

      1. Was there insufficient evidence as a matter of law to sustain
         Appellant’s conviction for [m]urder in the [t]hird [d]egree
         because the Commonwealth failed to disprove beyond a
         reasonable doubt that Appellant did not act in justified self-
         defense when Decedent and his accomplice/coconspirator
         came into the home wherein Appellant was an invitee and
         Decedent and/or his accomplice/coconspirator were armed and
         intended to rob the individuals in the home wherein Appellant
         was an invitee?

      2. Did the trial court err and cause irreparable harm to Appellant
         by overruling an objection during closing argument when the
         prosecutor engaged in prosecutorial misconduct by vouching
         that the accomplice and coconspirator of Decedent by the name
         of [Brahim] Marshall would invoke his Fifth Amendment
         privilege if called as a witness and by stating that Mr. Marshall
         is a defendant in this case when Mr. Marshall did not invoke
         Fifth Amendment privilege, was not called as a witness in the
         case, and there was no evidence that Mr. Marshall was a
         defendant in this case?

      3. Did the trial court err and cause irreparable harm to Appellant
         by denying Appellant’s request for a mistrial because the

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         prosecutor engaged in prosecutorial misconduct when the
         prosecutor repeatedly mentioned witness intimidation during
         closing argument when there was no evidence of any
         intimidation and intimidation could only be inferred to
         Appellant?

      4. Did the trial court err and cause irreparable harm to Appellant
         by denying Appellant’s request for a mistrial because the
         prosecutor engaged in prosecutorial misconduct when the
         prosecutor stated during closing argument that Appellant
         bullied Ananh Ketphahn (“Gak”) to allow Appellant to sell drugs
         in Gak’s home?

Appellant’s Brief at 4-5.

      In his first issue, Appellant asserts that the evidence adduced at trial

was insufficient to convict him of third-degree murder because “[j]ustified

self-defense was not disproven.” Id. at 10. Appellant argues that

      Appellant was an invitee in Gak’s house. Given objective analysis,
      Appellant and anyone would fear for their lives when confronted
      with two individuals, [Decedent and Marshall,] intent on
      committing armed robbery. Appellant’s actions were justified
      given the threat posed. At most, Appellant was guilty of voluntary
      manslaughter.

      Given the prior and escalating fighting, it is unreasonable to
      attribute malice aforethought to Appellant.

Id. at 12.

      In its Rule 1925(a) opinion, the trial court found that “[Appellant’s]

assertion that the Commonwealth failed to disprove self-defense beyond a

reasonable doubt is completely without foundation. There was no claim of

self-defense raised at trial nor was a charge thereon requested or given by

the court.” Trial Ct. Op., 7/17/17, at 8.

      Our standard of review for sufficiency claims is as follows:



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      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 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 trier 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. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (brackets

and citation omitted), appeal denied, 165 A.3d 895 (Pa. 2017).

      To sustain a conviction for third-degree murder, “the Commonwealth

need only prove that the defendant killed another person with malice

aforethought.” Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013)

(citation omitted). “[M]alice comprehends not only a particular ill-will, but

also a wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.”        Id. (ellipses, brackets, and

citation omitted).

      As to self-defense,

      [t]he use of force against a person is justified when the actor
      believes that such force is immediately necessary for the purpose
      of protecting himself against the use of unlawful force by the other


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      person. See 18 Pa.C.S. § 505(a). When a defendant raises the
      issue of self-defense, the Commonwealth bears the burden to
      disprove such a defense beyond a reasonable doubt. While there
      is no burden on a defendant to prove the claim, before the defense
      is properly at issue at trial, there must be some evidence, from
      whatever source, to justify a finding of self-defense.

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (citation

omitted). To satisfy its burden to disprove self-defense,

      the Commonwealth must prove beyond a reasonable doubt one of
      the following elements: (1) that the defendant did not reasonably
      believe it was necessary to kill in order to protect himself against
      death or serious bodily harm, or that the defendant used more
      force than was necessary to save himself from death, great bodily
      harm, or the commission of a felony; (2) that the defendant
      provoked the use of force; or (3) that the defendant had a duty
      to retreat and that retreat was possible with complete safety.

Commonwealth v. Burns, 765 A.2d 1144, 1148-49 (Pa. Super. 2000). If

self-defense has not been raised at trial, however, “the Commonwealth has

no burden to disprove it.” Commonwealth v. Butler, 647 A.2d 928, 931

(Pa. Super. 1994).

      Instantly, as the trial court noted, Appellant failed to raise the

justification of self-defense at trial. Thus, because Appellant raised the issue

for the first time on appeal, he has waived review of his contention that the

Commonwealth failed to disprove his theory of self-defense. See id.; see

also Pa.R.A.P. 302 (indicating that an appellant may not raise a claim for the

first time on appeal).

      Moreover, Appellant did not take responsibility for the shooting at trial.

Instead, defense counsel argued that the evidence “show[ed] that there [was]

reasonable doubt that [Appellant] was the shooter.” N.T., 11/12/15, at 16.


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Thus, Appellant did not admit that he shot Decedent, and his claim of self-

defense at this juncture is meritless. See Butler, 647 A.2d at 931 (noting

that the defendant offered an alibi defense at trial rather than claiming self-

defense).

      In his next three issues, Appellant asserts that prosecutorial misconduct

occurred during closing argument that entitles him to a new trial.

      By way of background to Appellant’s first claim of prosecutorial

misconduct, during Appellant’s counsel’s closing argument, the following

exchange occurred:

      [Appellant’s Counsel]: Where is Mr. Marshall? How come he is
      not here? How come he didn’t come in and testify?

      [Commonwealth]: Objection, your Honor.

      The Court: Overruled.

      [Appellant’s Counsel]: That’s [the Commonwealth’s] burden.
      They decide who to bring. . . . It’s their responsibility to bring the
      people to make out the charges.

N.T., 11/12/15, at 9-10.     Thereafter, during the Commonwealth’s closing

argument, the Commonwealth addressed the issue:

      [Commonwealth]: Mr. Marshall is a defendant in this case.

      [Appellant’s Counsel]: Objection.

      [Commonwealth]: He was a defendant in this case, he was
      charged. Guess what right he has? The same right as [Appellant].

      [Appellant’s Counsel]: Objection, judge.

      The Court: Overruled.

      [Commonwealth]: He doesn’t have to say a word. He was charged
      and arrested. I can’t make him say anything. That’s why Mr.
      Marshall is not here. I can’t make him talk.

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Id. at 24.

      Appellant asserts that the Commonwealth improperly “vouch[ed] as to

the potential testimony of the [r]obbery coconspirator, Mr. Marshall” by

arguing he would have invoked his Fifth Amendment privilege against self-

incrimination. Appellant’s Brief at 13. Appellant alleges that “[t]his harmed

Appellant in that the prosecutor improperly vouched for a witness[’] potential

testimony or lack thereof when, without such vouching, the jury could have

believed that the potential testimony would be exculpatory.” Id. at 14.

      When considering claims that a prosecutor has committed misconduct

in his or her comments to the jury, we note that “[w]here the prosecutor’s

arguments are supported by the evidence and contain inferences which are

reasonably derived therefrom, no new trial is warranted.” Commonwealth

v. Bronshtein, 691 A.2d 907, 919 (Pa. 1997).

      A claim of prosecutorial misconduct is evaluated based upon

      whether the defendant was deprived of a fair trial, not deprived of
      a perfect one. Thus, a prosecutor’s remarks do not constitute
      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. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation

omitted).    “Although two wrongs do not make a right, otherwise improper

comments of the prosecutor are permissible when they merely counter the

arguments made by defense counsel, in that such commentary would not have

the unavoidable effect of prejudicing the jury.” Commonwealth v. Graham,


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560 A.2d 129, 133 n.6 (Pa. 1989). Additionally, “when a trial court finds that

a prosecutor’s comments were inappropriate, they may be appropriately cured

by a cautionary instruction to the jury.” Commonwealth v. Harris, 884 A.2d

920, 927 (Pa. Super. 2005).

      In its Rule 1925(a) opinion, the trial court concluded that Appellant’s

argument regarding vouching “is factually inaccurate and completely

misstates the evidence,” since Marshall was not called by either side and was

not a “witness,” and Appellant’s counsel was the first to mention Marshall

during closing arguments. Trial Ct. Op., 7/17/17, at 9. The trial court opined

that the Commonwealth merely engaged in “fair response” to Appellant’s

counsel’s statements about Marshall. Id.

      We agree with the trial court that the Commonwealth’s explanation of

Marshall’s failure to appear and testify at the trial was directly in response to

a portion of Appellant’s counsel’s closing argument. See Graham, 560 A.2d

at 133. Moreover, Marshall was not actually a witness at trial in the instant

matter, and therefore the Commonwealth did not vouch for a witness’

testimony. Thus, Appellant has not established he was deprived of a fair trial

based on the Commonwealth’s comments. See Ragland, 991 A.2d at 340.

      As background for Appellant’s next prosecutorial misconduct issue, we

note that the Commonwealth did not explicitly say “intimidation,” but implied

that intimidation had occurred in this case. The Commonwealth stated that

“[w]itnesses do not want to come forward and tell the truth about what

happened. We have a term for it. It’s called going south.” N.T., 11/12/15,

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at 19. In reference to Commonwealth witness Goodbread in particular, the

Commonwealth asked rhetorical questions: “Do you think he wanted to come

in here and say: ‘Hey, this guy I knew did X, Y, Z,’ going back to the

neighborhood? Do you think he was interested in that?” Id.

      Appellant’s counsel did not object at the time the Commonwealth made

the foregoing statements. However, at the conclusion of closing arguments,

Appellant’s counsel argued that the implication that a Commonwealth witness

was intimidated was a basis to declare a mistrial. Id. at 37. The trial court

instructed counsel to draft a proposed instruction regarding intimidation. Id.

at 50. Counsel for Appellant, the Commonwealth, and the trial court agreed

that a cautionary instruction would be given informing the jury that no

evidence existed that Goodbread had been intimidated by any party in the

case. Id. at 53-54. The trial court gave the following instruction to the jury:

      The Court: I must caution you as follows regarding those
      arguments. First, with respect to Mr. Goodbread, you may
      obviously consider his demeanor in deciding what weight to give
      his testimony. However, this Court is not aware of any evidence
      that he was intimidated by the defendant, so you must disregard
      that portion of the assistant district attorney’s argument.

Id. at 71.

      Appellant argues that the Commonwealth committed prosecutorial

misconduct requiring a new trial because the Commonwealth “referred to

witness intimidation[, and t]here was no evidence to support this claim. . . .

Witness intimidation creates an implicit sense of prejudice because it shows

motive for covering up crimes.”         Appellant’s Brief at 14-15 (citing


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Commonwealth v. Schaeffer, 236 A.2d 530, 531-32 (Pa. Super. 1968)

(Hoffman, J., op. in support of reversal)).4

       In its Rule 1925(a) opinion, the trial court indicated that “[i]n light of

the[ cautionary] instructions, [Appellant] is unable to prove prejudice. While

the prosecutor’s statements may have been unwise, they do not rise to the

extremely high level required for a new trial.” Trial Ct. Op., 7/17/17, at 10.

       Instantly, with input from Appellant’s counsel, the court provided a

specific cautionary instruction to the jury. Accordingly, we agree with the trial

court that any prejudice from the implication that Goodbread was intimidated

was cured by the cautionary instruction.           See Harris, 884 A.2d at 927.

Therefore, Appellant is due no relief based on the Commonwealth’s comments.

See Ragland, 991 A.2d at 340.5

____________________________________________


4 Because the Schaeffer Court was evenly split, the Court affirmed the
judgment below in a per curiam order and Judge Hoffman authored the
opinion in support of reversal. We note that as an opinion in support of
reversal filed in conjunction with a per curiam affirmance, the Schaeffer
opinion is not binding. See Commonwealth v. Mosley, 114 A.3d 1072,
1082 n.11 (Pa. 2015) (citation omitted).

5 In Schaeffer, threatening notes were written to a Commonwealth witness,
although the author of the notes was unknown. Schaffer, 236 A.2d at 531.
The defendant argued that the notes were inadmissible because they were not
linked to the defendant making the threats. Id. However, the notes were
admitted into evidence because they were not used to establish guilt, but to
explain a prior inconsistent statement. Id. The opinion urged that a new trial
was required because no cautionary instruction was provided to differentiate
between using the notes for their possible impact on credibility instead of in
determining guilt or innocence. Id. at 531-32. The point made in Schaeffer
is inapposite to the issue in the instant matter since in Schaeffer no
cautionary instruction was provided.


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      As background to Appellant’s last prosecutorial misconduct issue, the

following transpired during the Commonwealth’s closing argument:

      [Commonwealth]: Does he know the defendant? Yes. Does the
      defendant know where he lives? Yes. Does the defendant
      basically bully this guy into selling drugs at his house? Yes. Why
      doesn’t the defendant sell drugs out of his own house? What are
      you bullying this guy for?

      [Appellant’s Counsel]: Objection. No evidence of the bullying.

      The Court: Sustained.

N.T., 11/12/15, at 20-21.

      Appellant’s counsel argued that the statement that Gak was bullied was

one of the grounds to declare a mistrial. Id. at 40. The trial court instructed

counsel to draft a proposed instruction regarding bullying. Id. at 44. Counsel

for Appellant, the Commonwealth, and the trial court agreed that a cautionary

instruction would be given which indicated that no evidence indicated that

Appellant bullied Gak regarding selling marijuana. Id. at 55. The trial court

gave the following instruction to the jury:

      The Court: [T]his [c]ourt is not aware of any evidence that [Gak]
      was bullied into allowing [Appellant] to sell marijuana from his
      home. Therefore, you must disregard that portion of the assistant
      district attorney’s argument.

Id. at 71.

      Appellant asserts that the Commonwealth engaged in prosecutorial

misconduct by indicating that Appellant bullied Gak, and “[t]here was no

evidence that Appellant bullied Gak. This statement was misconduct in that

it led to the undermining of Appellant’s character and his status as an invitee



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in Gak’s home. This caused irreparable harm to Appellant’s character and

legal standing crucial to Appellant’s self-defense theory of the case.”

Appellant’s Brief at 16.

      In its Rule 1925(a) opinion, the trial court indicated that “the

prosecutor’s statements may have been unwise, but the cautionary instruction

prevents them from rising to the level required for a new trial. This claim is

[] meritless.” Trial Ct. Op., 7/17/17, at 10.

      We agree with the trial court that Appellant is not entitled to a new trial.

With input from Appellant’s counsel, the court provided a specific cautionary

instruction to the jury. Accordingly, any prejudice from the statement that

Appellant bullied Gak was cured by the cautionary instruction. See Harris,

884 A.2d at 927. Therefore, Appellant has not demonstrated entitlement to

a new trial based on the Commonwealth’s comments.            See Ragland, 991

A.2d at 340.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/18




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