J-S27025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
HENRY ATTICA                                   :
                                               :
                  Appellant                    :   No. 3485 EDA 2015

               Appeal from the Judgment of Sentence October 30, 2015
                 In the Court of Common Pleas of Philadelphia County
                 Criminal Division at No(s): CP-51-CR-0009745-2012


BEFORE:         GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 13, 2017

        Henry Attica appeals from the judgment of sentence imposed on October

30, 2015, in the Court of Common Pleas of Philadelphia County. A jury found

him guilty of conspiracy-arson-danger of death or bodily injury, arson-danger

of death or bodily injury, and risking catastrophe. 1 The trial court sentenced

Attica to an aggregate term of 23½ to 47 years’ imprisonment. In this appeal,

Attica raises 10 issues, in which he challenges (1) the Commonwealth’s

amendment of the information, (2) the denial of the motion for mistrial made

during the prosecutor’s opening statement, (3) the admission of testimony

regarding of a voicemail message that had been deleted, (4) the denial of the

motion for mistrial during trial where trial counsel made a standing objection,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 903(c), 3301(a)(1)(i), and 3302(b).
J-S27025-17



(5) the trial court’s ruling that precluded cross-examination of the co-

defendant about his reduced sentence, (6) the denial of the motion for

acquittal, (7) the trial court’s jury charge, (8) the denial of the weight of the

evidence claim, (9) the prosecutor’s closing remarks, and (10) the

discretionary aspects of his sentence. Based upon the following, we affirm.

      The Honorable Timika Lane summarized the facts of this case, as

follows:

             On April 27, 2012, Walter West (herein “Complainant”) and
      his girlfriend, Lori Pugh, went to Old Philly Bar for a few drinks.
      After roughly fifteen minutes, Lori’s son, James Attica (herein
      “James”), came to the bar and got into an argument with her over
      marijuana.      James then got into an argument with the
      Complainant over money that the Complainant had owed him.
      The argument carried over to the street where James put his
      hands on Lori to push her and the Complainant later stepped
      between them. Lori testified that following the altercation, James
      walked the opposite way and that she and the Complainant went
      home.      After returning to his home, located at 137 West
      Susquehanna Avenue, the Complainant testified that Lori received
      a threatening voicemail from James who stated that he was going
      to burn and break the windows of the Complainant’s car. At
      approximately 10:00 p.m. that night, the Complainant stated that
      he saw [Attica] and James, [Attica’s] nephew, drive by his house
      two or three times in a red Ford F150. The Complainant stated
      that he went to the bathroom and upon returning saw a red truck
      pass his house and observed his car ablaze. Once the fire
      department came and put out the fire, the Complainant saw
      [Attica] and James pass by again, laughing as if it was a joke. The
      Complainant’s car was completely destroyed and subsequently
      towed away to AC Auto.

            James Attica next recounted his version of the incident
      during his in court testimony. He testified that following the
      argument, he went to another bar to borrow a pedal bike so he
      [could] break the Complainant’s car windows. When James
      arrived at the bar, he told [Attica] about the argument between


                                      -2-
J-S27025-17


     him and the Complainant. James testified that [Attica] told him
     “… [he] isn’t going to get away with this shit.” James and [Attica]
     then left in [Attica’s] red Ford F150 truck and went to the gas
     station to fill up a container with gasoline. James testified that
     [Attica] dropped him off at his house because he did not want to
     go to the Complainant’s house. Later that evening, [Attica] drove
     James by the Complainant’s home and James saw the
     Complainant’s burnt vehicle. He stated that he was not in the
     truck with [Attica] when the car was burned. James pleaded guilty
     to the crimes of conspiracy and criminal mischief on March 26,
     2015.

           The Commonwealth called Lieutenant Robert Crowe, an
     expert witness, to testify. Lieutenant Crowe is an assistant fire
     marshal with 20 years of experience as a firefighter and has
     conducted over thousands of investigations. He determined that
     something was poured on the windshield and came down onto the
     exterior panel of the Complainant’s vehicle and then onto the
     ground. He testified that thermal patterns on the vehicle were
     indicative of some sort of accelerant1 being applied to the front
     _____________________________________

         1Lieutenant explained that an accelerant is gasoline,
        kerosene, lighter fluid, or some other type of igniting liquid.
     ________________________________________

     of the vehicle and ignited, and that this was something that could
     not have happened accidently on a car by itself. Further, he
     expressed that such a fire can extend to nearby trees, vehicles,
     or buildings. Likewise, Lieutenant Andry Metallus testified that he
     was concerned that the fire could extend to nearby structures,
     trees and cars. He further testified that the burn marks reflect
     that the fire was incendiary in nature and not mechanical.

Trial Court Opinion, 5/20/2016, at 3–5 (record citations omitted). As stated

above, the jury found Attica guilty of conspiracy, arson-danger of death or

bodily injury, and risking catastrophe. Attica was sentenced to 23½ to 47




                                     -3-
J-S27025-17


years’ imprisonment and, following the denial of Attica’s post-sentence

motion, this appeal followed.2

        Attica first argues the trial court abused its discretion “where it

permitted the Commonwealth to amend the criminal complaint to include the

charge of risking a catastrophe, 18 Pa.C.S.A. Section 3302(b), immediately

prior to [Attica’s proceeding to trial] before the jury, which prejudiced

[Attica’s] right to a fair trial.”3 Attica’s Brief at 22.




____________________________________________


2 Attica filed a timely appeal on November 18, 2015. On December 23, 2015,
the trial court granted an extension of time for Attica to file a Pa.R.A.P.
1925(b) statement. Attica’s Rule 1925(b) statement was filed on February 4,
2016.

3   Section 3302 of the Crimes Code provides:

        (a) Causing catastrophe. — A person who causes a
        catastrophe by explosion, fire, flood, avalanche, collapse of
        building, release of poison gas, radioactive material or other
        harmful or destructive force or substance, or by any other means
        of causing potentially widespread injury or damage, including
        selling, dealing in or otherwise providing licenses or permits to
        transport hazardous materials in violation of 75 Pa.C.S. Ch. 83
        (relating to hazardous materials transportation), commits a felony
        of the first degree if he does so intentionally or knowingly, or a
        felony of the second degree if he does so recklessly.

        (b) Risking catastrophe. — A person is guilty of a felony of the
        third degree if he recklessly creates a risk of catastrophe in the
        employment of fire, explosives or other dangerous means listed
        in subsection (a) of this section.

18 Pa.C.S. § 3302.


                                           -4-
J-S27025-17


      “The decision of whether to allow the Commonwealth to amend the

Informations is a matter within the discretion of the trial court, and only an

abuse of discretion will constitute reversible error.” Commonwealth v.

Small, 741 A.2d 666, 681 (Pa. 1999), cert. denied, 531 U.S. 829 (2000).

      At the relevant time, Pennsylvania Rule of Criminal Procedure 564

provided:

      The court may allow an information to be amended when there is
      a defect in form, the description of the offense(s), the description
      of any person or any property, or the date charged, provided the
      information as amended does not charge an additional or different
      offense. Upon amendment, the court may grant such
      postponement of trial or other relief as is necessary in the
      interests of justice.

Pa.R.Crim.P. 564. This Court has explained:

      [T]he purpose of Rule 564 is to ensure that a defendant is fully
      apprised of the charges, and to avoid prejudice by prohibiting the
      last minute addition of alleged criminal acts of which the
      defendant is uninformed. The test to be applied is:

         Whether the crimes specified in the original indictment or
         information involve the same basic elements and evolved
         out of the same factual situation as the crimes specified in
         the amended indictment or information. If so, then the
         defendant is deemed to have been placed on notice
         regarding his alleged criminal conduct. If, however, the
         amended provision alleges a different set of events, or the
         elements or defenses to the amended crime are materially
         different from the elements or defenses to the crime
         originally charged, such that the defendant would be
         prejudiced by the change, then the amendment is not
         permitted.

                                     ****

      In reviewing a grant to amend an information, the Court will look
      to whether the appellant was fully apprised of the factual scenario

                                     -5-
J-S27025-17


      which supports the charges against him. Where the crimes
      specified in the original information involved the same basic
      elements and arose out of the same factual situation as the crime
      added by the amendment, the appellant is deemed to have been
      placed on notice regarding his alleged criminal conduct and no
      prejudice to defendant results.

Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)

(citations omitted). The factors which the trial court must consider in

determining whether an amendment is prejudicial are:

      (1) whether the amendment changes the factual scenario
      supporting the charges; (2) whether the amendment adds new
      facts previously unknown to the defendant; (3) whether the entire
      factual scenario was developed during a preliminary hearing; (4)
      whether the description of the charges changed with the
      amendment; (5) whether a change in defense strategy was
      necessitated by the amendment; and (6) whether the timing of
      the Commonwealth's request for amendment allowed for ample
      notice and preparation.

Id. at 1223 (citation omitted).

      Here, the Complaint, filed May 12, 2012, alleged that the crimes

occurred on April 29, 2012, and the acts “committed by [Attica]” were:

      AT 137 SUSQUEHANNA AVENUE, THE DEFENDANT, IN CONCERT
      WITH ANOTHER, INTENTIONALLY THREW A SUBSTANCE ONTO A
      CAR OWNED BY THE COMPLAINANT, WALTER WEST, THAT
      CAUSED THE CAR TO BECOME ENGULFED IN FLAMES.

Complaint, 5/12/2012.      The Complaint charged Attica with, inter alia,

“Causing/Risking Catastrophe,” in violation of 18 Pa.C.S. § 3302.     In the

Information, which was filed on September 6, 2012, Attica was charged with,

inter alia, Causing Catastrophe, 18 Pa.C.S. § 3302(a).




                                    -6-
J-S27025-17


        On the day of trial, immediately before the jury was brought into the

courtroom to begin hearing opening statements, the Commonwealth made its

oral request for amendment of the information to include the charge of Risking

Catastrophe.4 While Attica argues to this Court that the amendment of the

information to include the charge of Risking Catastrophe “necessitated a

change in defense strategy that did not allow the Defense ample notice and

preparation,”5 Attica did not request a continuance.

        Here, the amendment did not change the factual scenario or add new

facts that were previously unknown to Attica. We agree with Judge Lane that

“the amended charge, Risking a Catastrophe, clearly involved the same basic

elements and evolved from the same set of facts as the original charge [of

Causing Catastrophe].”        Trial Court Opinion, 5/20/2016, at 6.   See Small

supra, 741 A.2d at 681 (upholding amendment to criminal information to

include a charge of attempted rape after the rape charge was dismissed).

Accordingly, we conclude the trial court did not err in granting the

Commonwealth’s motion to amend the information.

        Attica next argues that the trial court abused its discretion in denying

his motion for mistrial

        where during counsel’s opening statements to the jury the
        prosecutor opined that [Attica] is a white racist, who set the
        complainant’s car on fire because the complainant was an African-
____________________________________________


4   See N.T., 8/19/2015, at 4.

5   Attica’s Brief at 25.

                                           -7-
J-S27025-17


      American man that was romantically involved with [Attica’s]
      deceased brother’s widow, an unsubstantiated declaration which
      had a prejudicial effect that outweighed its probative value,
      thereby denying [Attica’s] right to a fair trial.

Attica’s Brief at 27.

      Here, Attica’s counsel made a motion for mistrial during the prosecutor’s

opening remarks, as follows:

      MR. GRENELL: It probably doesn’t matter to you that James Attica
      is white. And it probably doesn’t matter to you that Walter West
      is black.

      MR. BROWN: Objection. Move for a mistrial, Your Honor.

      THE COURT:        Your standing objection is noted.   Continue, Mr.
      Grenell.

      MR. GRENELL: But it does matter to one person in this room. It
      matters to Henry Attica. Quite frankly --

      MR. BROWN: Objection. No evidence to that, Your Honor.

      THE COURT: Again, your standing objection is noted.

      MR. GRENELL: Because quite frankly, Henry Attica burned down
      Walter West’s car because he didn’t like the fact that a black man
      was dating his sister-in-law. You don’t have to take that from me.
      That’s not supposition. It’s not a guess. You’ll hear it from Walter
      [West]. You’ll hear it from Lori [Pugh]. And you’ll hear it from
      James [Attica].

      It doesn’t matter who these people are. It doesn’t matter the
      color of their skin except to the one person in this room, and that’s
      Henry Attica.

N.T., 8/19/2015, at 20–21.

      Preliminarily, we state the legal principles that guide our review:

      It is within the discretion of the trial court to determine whether a
      defendant has been prejudiced by misconduct or impropriety to

                                      -8-
J-S27025-17


     the extent that a mistrial is warranted. Comments by a prosecutor
     do not constitute reversible error unless the unavoidable effect of
     such comments would be to prejudice the jury, forming in their
     minds a fixed bias and hostility toward the defendant such that
     they could not weigh the evidence objectively and render a true
     verdict.

Commonwealth v. Bronshtein, 691 A.2d 907, 917 (Pa. 1997) (citations

omitted), cert. denied, 522 U.S. 936 (1997).

     A prosecutor’s opening statements must be based on evidence
     that she plans to introduce at trial, and must not include mere
     assertions designed to inflame the jury’s emotions. However, a
     prosecutor’s opening statements may refer to facts that she
     reasonably believes will be established at trial. Additionally, the
     prosecution, as well as the defense, is afforded reasonable latitude
     in presenting opening arguments to the jury. Relief will be granted
     for prosecutorial misconduct only where the unavoidable effect of
     the prosecutor’s conduct was to prejudice the jury so as to form
     in their minds a fixed bias towards the accused and to impede
     their ability to objectively weigh the evidence and render a true
     verdict.

Commonwealth v. Begley, 780 A.2d 605, 626 (Pa. 2001) (citations

omitted).

     In rejecting Attica’s claim, the trial court set forth the relevant case law

and concluded:

     The prosecution provided the testimony of Walter West, James
     Attica, and Lori Pugh that would suggest racially-charged motives
     for [Attica’s] actions in burning the Complainant’s car. Based on
     the foregoing testimonies, the prosecutor made a reasonable
     inference that [Attica’s] conduct was racially motivated. The Court
     properly found that the prosecutor’s opening statements did not
     give rise to such prejudice as to prevent the finding of a true
     verdict. Therefore, the trial court did not abuse its discretion in
     denying [Attica’s] motion for mistrial due to prosecutor’s
     statements during opening argument.

Trial Court Opinion, 5/20/2016, at 8.

                                     -9-
J-S27025-17


       We agree with the trial court that the prosecutor’s opening statements

were based on inferences he believed from the testimony he intended to

present at trial. The prosecutor believed several Commonwealth witnesses

would testify that Attica did not like the fact that a black man, Walter West,

was dating his sister-in law. In fact, Walter West testified that Attica had

called him “the N-word,” and that Attica had stated, “that N-word is dating

my dead brother’s wife or ex-girlfriend.” N.T., 8/19/2015, at 62, 63.6 Lori

Pugh’s son, James Attica, also stated Attica had a problem with Lori Pugh

dating Walter West “[b]ecause he’s black.” Id. at 116. As such, we are not

persuaded the prosecutor’s remarks were mere assertions intended to inflame

the jury. The trial court determined the opening remarks of the prosecutor

did not prejudice the fact finders and, on this record, we find no abuse of

discretion. Accordingly, we reject Attica’s second claim. See Bronshtein,

Begley, supra.

       In his third issue, Attica contends the trial court abused its discretion in

admitting hearsay testimony when Walter West testified

       regarding [an] alleged voicemail message of co-defendant [James
       Attica, to his mother, Lori Pugh,] in which the co-defendant
       allegedly called [Walter West] an N-word, threatened to burn
       [Walter West’s] car and break out [his] car windows, where the
       voicemail message was the best evidence but was not available
       for trial, and this evidence would not be admissible under any
       hearsay exception, thereby denying [Attica’s] right to a fair trial.
____________________________________________


6 Lori Pugh was never married to Attica’s brother, James Attica, Sr. N.T.,
8/19/2015, at 136. She was with Attica’s brother for almost 28 years. Id. at
89.

                                          - 10 -
J-S27025-17



Attica’s Brief at 30. Attica argues:

      When the Complainant, Walter West and Lori Pugh returned home
      after arguing with James Attica at the Old Philly Bar, [James]
      Attica allegedly left a voice mail message on Lori Pugh’s cell
      phone, in which he described [Walter West] as a “nigger” and
      threatened to burn his car and break out its windows. The voice
      mail message was not introduced at trial, because prior to trial it
      was deleted by Ms. Pugh.

      The trial court permitted [Walter West] to describe the alleged
      contents of the voice mail message, over the objection of the
      defense, which argued that admission of the hearsay was
      inadmissible due to the best evidence rule. Clearly, the trial
      court’s admission of this hearsay testimony was error.

Attica’s Brief at 30–31.

      “At common law, the ‘best evidence’ rule limited proof of the terms of a

writing to production of the original document, if the terms of the instrument

were material to the issue under review, unless the original was shown to be

unavailable through no fault of the proponent.”    Commonwealth v. Dent,

837 A.2d 571, 588-89 (Pa. Super. 2003), citing Commonwealth v. Fisher,

764 A.2d 82, 87-88 (Pa. Super. 2000). The “best evidence” rule is codified in

the Pennsylvania Rules of Evidence Rule 1002, which provides that “[a]n

original writing, recording, or photograph is required in order to prove its

content unless these rules, other rules prescribed by the Supreme Court, or a

statute provides otherwise.” Pa.R.E. 1002.

      This Court has observed that “[i]f the Commonwealth does not need to

prove the contents of the writing or recording to prove the elements of the

offense charged, then the Commonwealth is not required to introduce the

                                       - 11 -
J-S27025-17


original writing or recording.” Dent, supra, 837 A.2d at 590. citing Fisher,

supra (holding Commonwealth was not required to introduce original

recordings from voice mail system where phone messages did not provide

proof of elements of offenses charged).

        Furthermore, “[w]hen an extrajudicial statement is offered for a purpose

other than proving the truth of its contents, it is not hearsay and is not

excludable under the hearsay rule.” Commonwealth v. Puksar, 740 A.2d

219, 225 (Pa. 1999), cert. denied, 531 U.S. 829 (2000). “[A]n out-of-court

statement offered to explain a course of conduct is not hearsay.”

Commonwealth v. DeHart, 516 A.2d 656, 666 (Pa. 1986).

        Here, the voicemail statement was offered to show its effect on the

listener, Walter West, who, as a result, began to stand watch over his car and,

subsequently, saw it being set on fire,7 and not to establish any elements of

the offenses charged. See also Commonwealth v. Antidormi, 84 A.3d 736,

752 (Pa. Super. 2014) (citation omitted) (“Pennsylvania courts are not

required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged.”).




____________________________________________


7   See N.T., 8/19/2015, at 48–50.

                                          - 12 -
J-S27025-17


      Accordingly, we reject Attica’s challenge to the court’s admission of the

testimony of Walter West concerning the voicemail of James Attica.

      Nor do we find merit in the fourth issue raised by Attica, in which he

claims:

      The trial court abused its discretion in denying [his] motion for
      mistrial, where [Attica’s counsel] made a standing objection to the
      admission of testimony that [Attica] allegedly called the
      complainant [Walter West] an N-word, as such evidence had a
      highly prejudicial impact which greatly outweighed its zero
      probative value, thereby prejudicing [Attica’s] right to a fair trial.

Attica’s Brief, at 33.

      As discussed above with regard to the second issue, concerning the

denial of the motion for mistrial made during the prosecutor’s opening, Walter

West and James Attica testified about Attica’s prior statements using an “N-

word” in discussing Walter West.      See N.T., 8/19/2016, at 61–63 (direct

examination of Walter West), 106, 109, 110 (direct examination of James

Attica).

      During the direct examination of Walter West, trial counsel objected and

a sidebar was held in the judge’s chamber. N.T. 8/19/2016, at 62.        Later, at

sidebar, trial counsel put his objection on the record:

            MR. BROWN: Your Honor, when we were at sidebar earlier,
      there was an objection.     I objected to the Commonwealth
      mentioning or getting into evidence of my client’s alleged
      statements on some earlier date. The testimony that eventually
      came in was that my client used the N-word to describe Walter
      West.

            I objected in the back that it was irrelevant to today’s
      allegation about the car. It was before April 27, 2012, and had

                                     - 13 -
J-S27025-17


       nothing to do with even setting the car on fire or agreeing to do
       so and that it was extremely prejudicial, injecting racial comments
       allegedly by my client into this case. It was unduly prejudicial. I
       believe that was [the] gist of our discussion in the back.

              THE COURT:        And then, Mr. Grenell, can you state your
       position as well?

            MR. GRENELL: Your Honor, I think this, obviously, is very
       probative. While not necessary as an element of the crime,
       motive, of course, is important in every single trial.

             And it is my contention, my theory of the case, that the
       motive in this case is the racial animosity between the defendant
       and the victim in this case is what drove the defendant to do a
       crime as heinous, quite frankly, as arson.

              There’s testimony to that not only by Mr. West, but there
       will be testimony to that by other witnesses, which is why I think
       its probative value is going to outweigh the prejudicial effect in
       this case.

              THE COURT: Okay. Thank you.

N.T., 8/19/2016, at 96–97.

       Case law supports the Commonwealth’s position that evidence of motive

is relevant.8 See Commonwealth v. Bryant, 574 A.2d 590, 595 (Pa. 1990)

(“Evidence to prove motive, intent, plan, design, ill will or malice is relevant

in a criminal case.”) (citing Commonwealth v. Gwaltney, 442 A.2d 236 (Pa.

1982)).


____________________________________________


8 We acknowledge that Attica was not charged with a hate crime, see 18
Pa.C.S. § 2710, but that fact does not preclude the Commonwealth from
presenting evidence of motive for Attica’s crimes against Walter West.




                                          - 14 -
J-S27025-17


        Additionally, although Attica contends in his brief that the trial court “did

not endeavor to ameliorate the prejudicial effect with a cautionary

instruction,”9 Attica did not request such an instruction. Consequently, he has

waived his argument that the court erred by not issuing one. See

Commonwealth v. Wholaver, 989 A.2d 883, 892 (Pa. 2010) (“[A]lthough

trial counsel objected to the admission of this evidence, he did not request a

limiting instruction; therefore, the issue of trial court error for not giving such

instruction is waived.”), cert. denied, 562 U.S. 933 (2010).

        In sum, we discern no basis upon which to disturb the decision of the

trial court.    Accordingly, we reject Attica’s contention that the trial court

abused its discretion in denying his motion for mistrial and admitting

testimony regarding Attica’s use of a racial slur.

        In his fifth issue, Attica contends the trial court abused its discretion in

limiting cross-examination of the co-defendant, James Attica,

        regarding his reduced exposure as the result of the
        Commonwealth’s decision to nolle prosequi multiple felony
        charges against [James Attica], including arson and risking a
        criminal catastrophe, in exchange for a negotiated guilty plea to
        criminal mischief and criminal conspiracy, second degree
        misdemeanors, which prejudiced [Attica’s] right to establish
        [James Attica’s] bias in testifying against [Attica], thereby
        denying [Attica’s] right to a fair trial.

Attica’s Brief at 39.




____________________________________________


9   Attica’s Brief at 38.

                                          - 15 -
J-S27025-17


     During cross-examination of James Attica, the following exchange

occurred:

     BY MR. BROWN:

     …

         Q. And moments ago, the attorney for the Commonwealth
         went over with you the agreement for 11½ to 23 months of
         incarceration followed by 2 years of probation that you’re
         going to receive on next Tuesday, right?

         A. Yes.

         Q. And do you have – can you look at Page 3 of that exhibit.
         Do you see Paragraph 6 and 7?

         A. Yes.

         Q. And that recites, once again, the crimes in your agreement
         are criminal mischief M2 and conspiracy M2. Do you see that
         on Paragraph 6?

         A. Yes, I do.

         Q. And Paragraph 7, the maximum statutory sentence that you
         could receive on those two would be a total of 4 years
         incarceration?

         A. Yes.

         Q. And even within that maximum -- and referring back to
         Paragraph 11 on Page 4 -- is the agreed upon sentence that
         you’re going to get?

         A. Yes

         Q. All right. But that is a significant discount –

            MR. GRENELL: Objection. Sidebar, please.

            THE COURT: Yes. Excuse us.


                                    - 16 -
J-S27025-17


     (A brief sidebar was held in the judge’s chambers.)

N.T., 8/19/2016, at 118–119.

     Thereafter, trial counsel resumed cross-examination, as follows:

           THE COURT: You may proceed, Mr. Brown.

           MR. BROWN: Thank you, Your Honor.

     BY MR. BROWN:

        Q. Mr. Attica, if you would look at page – the first page of C-
        16.
               Do you have that in front of you?

        A. Yes.

        Q. Do you see again, it’s on the numbered paragraphs? See
        the – starting with your name. See on the third line there,
        your name is there, James Attica?

        A. No, I do not.

                                    ****

        Q. Let me try this: If I read some language, you tell me if
        you see it right there in the agreement.

        A. Okay.

        Q. “James Attica hereby enters into the following agreement
        for the purpose of resolving the crimes of arson, risking
        catastrophe, conspiracy, and criminal mischief committed by
        James Attica and others,” and so forth.

           Do you see that language?

        A. Yes.

        Q. And you agree that is part of the C-16 memorandum that
        you signed, right?




                                  - 17 -
J-S27025-17


         Q. And that was not reached until you were facing the music.
         You were seated with my client with a different jury already
         selected on March – whatever – 24th, right?

         A. Yes.

         Q. And those were, in fact, the charges that you started out
         facing and were facing until March of this year, right?

         A. Yes.

         Q. And you didn’t reach this agreement – what’s the date?
         March 26th? Page 5 – number Page 5 of that agreement? See
         with all the signatures?

         A. Yes.

         Q.   March 26th of this year, right?

         A. Yes.

         Q. And then facing those charges that are listed in the
         beginning of the memorandum, you reached an agreement
         with the Commonwealth that reduced your exposure to what’s
         in Paragraphs 6, 7, and 11, right?

         A. Yes.

         …

Id. at 119–121.

     After James Attica was excused, the following on-the-record discussion

took place:

           MR BROWN: I think there were two sidebars. In one of
     them I was attempting – I had just attempted to cross-examine
     James Attica about the beginning of his plea agreement. And
     although the Commonwealth got into the years of the sentence
     and I repeated that, I was not permitted by the Court to get into
     the number of years that James Attica had previously been facing
     to compare it to the significantly reduced – something around the
     order of one-tenth or less of his original sentence. So I wasn’t

                                    - 18 -
J-S27025-17


     permitted – we went in the back and I think Your Honor’s ruling
     was I could name the offenses, which I did, but I could not directly
     examine James Attica about the years he had been facing in
     comparison to the years he was going to get.

            MR. GRENELL: And, Your Honor, I made the objection
     because I stated the sentence that he was going to get, not
     actually this exposure. And as Your Honor reminds every jury and
     tells every jury in the beginning that they are not to consider the
     penalties that a potential defendant is facing in a case, which if
     we had gone into the actual exposure of what this codefendant
     was facing, it would be exactly the kind of information that they
     are prohibited from hearing, and that was the basis for my
     objection, which you sustained.

           THE COURT. Okay. …

Id. at 132–133.

     It is well settled “‘that a witness may be cross-examined as to any

matter tending to show the interest or bias of that witness.’” Commonwealth

v. Davis, 652 A.2d 885, 887 (Pa. Super. 1995) (citation omitted). “Where the

determination of a defendant’s guilt or innocence is dependent upon the

credibility of a prosecution witness, it is particularly important that the

defendant be accorded an adequate opportunity to demonstrate through

cross-examination that the witness is biased.” Id. at 888.

     Based on our review, we find the trial court erred in limiting cross

examination testimony concerning James Attica’s potential exposure on the

basis of the reasons offered by the prosecutor at sidebar. Nevertheless, we

conclude the error was “harmless error.” “When the record reveals that an

error did not prejudice the defendant, or that the prejudice was so minimal

that, beyond a reasonable doubt, it did not influence the jury, we have held

                                    - 19 -
J-S27025-17


the error harmless.” Commonwealth v. Story, 383 A.2d 155, 164–65 (Pa.

1978). Here, notwithstanding the trial court’s ruling, the jury was able to

analyze the testimony of James Attica in light of the “significant discount” he

received by virtue of his plea agreement. N.T., 8/19/2016, at 119.

        It is important to note that the trial court did not strike the question

posed to James Attica that the agreed upon sentence was a “significant

discount.” Id. Furthermore, the jury heard that the charges James Attica had

faced were “arson, risking catastrophe, conspiracy and criminal mischief,”10

and that he would receive an 11½–23 month sentence and 2 years’ probation

based upon his guilty plea to “criminal mischief M2 and conspiracy M2.”

Attica’s attorney elicited James Attica’s admission that the agreement

“reduced [his] exposure ….”11 As a result of this testimony, Attica’s counsel

argued to the jury that James Attica entered into an agreement “for the

purpose of resolving the crimes of arson, risking a catastrophe, conspiracy,

and criminal mischief committed by James Attica,” and “strikes a deal that

brings him down to two misdemeanors of criminal mischief -- … and a

conspiracy.”       N.T., 8/20/2016, at 68–69.      Attica’s attorney further argued

“That man, James Attica, has an incentive to save his own skin and pin the

blame falsely on Henry Attica to get James Attica a better deal.” Id. at 70.


____________________________________________


10   N.T., 8/19/2016, at 119.

11   Id. at 121.


                                          - 20 -
J-S27025-17


Accordingly, on this record, we conclude the trial court’s error was harmless

error because the cross examination that occurred after the objection

sufficiently informed the jury of James Attica’s potential bias in light of the

benefit he received under the plea agreement. Therefore, Attica’s fifth claim

fails.

         The sixth issue challenges the denial of Attica’s motion for judgment of

acquittal with respect to the charges of arson-danger of death or bodily

injury12 and risking a catastrophe13 “because there was insufficient evidence

to sustain the charges where there was no evidence presented of bodily injury,

damage to an occupied structure, no evidence of putting a firefighter’s life in


____________________________________________



12   Section 3301 of the Crimes Code provides, in relevant part:

         (a) Arson endangering persons.

         (1) A person commits a felony of the first degree if he intentionally
         starts a fire or causes an explosion, or if he aids, counsels, pays
         or agrees to pay another to cause a fire or explosion, whether on
         his own property or on that of another, and if:

         (i) he thereby recklessly places another person in danger of death
         or bodily injury, including but not limited to a firefighter, police
         officer or other person actively engaged in fighting the fire; ….

18 Pa.C.S. § 3301(a)(1)(i).

13 “A person is guilty of a felony of the third degree if he recklessly creates a
risk of catastrophe in the employment of fire, explosives or other dangerous
means ….” 18 Pa.C.S. § 3302.




                                          - 21 -
J-S27025-17


danger, and no evidence that the fire would spread to an occupied structure.”

Attica’s Brief at 45.14

       The seventh issue challenges the trial court’s jury charge on arson-

danger of death or bodily injury and risking a catastrophe. In this regard,

Attica argues that there was insufficient evidence to support either charge.

See Attica’s Brief at 48.

       Judge Lane has fully addressed and properly rejected these issues in her

Rule 1925(a) opinion, and further elaboration by this Court is unwarranted.

See Trial Court Opinion, 5/20/2016, at 14–23. Therefore, we reject Attica’s

sixth and seventh issues on the basis of the trial court’s discussion.

       The eighth issue is a challenge to the weight of the evidence. Attica

contends that “the jury’s verdict … was so contrary to the evidence as [to]

shock one’s sense of justice, where the evidence was overwhelming that the

lone arsonist in the case sub judice was the Co-defendant, James Attica, not

the Appellant.” Attica’s Brief at 49. Attica argues (1) prior to the incident,

James Attica got into an argument with Walter West, after which he

threatened to burn Walter West’s car and break out the car windows, (2) Attica

was not present at the argument between James Attica and Walter West, (3)

in the aftermath of the incident, Walter West reported to investigating



____________________________________________


14Attica did not challenge the sufficiency of the evidence of his conspiracy
conviction.


                                          - 22 -
J-S27025-17


firefighters that he did not see the firebombing but suspected James Attica

was the person responsible, without mentioning Attica, (4) Walter West

subsequently reported to police and testified at the preliminary hearing that

he actually observed James Attica pour gasoline onto the vehicle then set fire

to it, while being driven by Attica, (5) Walter West recanted his preliminary

hearing testimony at trial and testified he could not see who was inside the

vehicle from which the accelerant was poured onto his vehicle, and (6) the

Commonwealth’s case-in-chief consisted primarily of the testimony of James

Attica, who “had everything to gain by lying about [Attica] and everything to

lose if he didn’t,” and agreed to testify against Attica more than three years

after the incident. Attica’s Brief at 50–51.

      Our standard of review is well settled:

      The Supreme Court has set forth the following standard of
      review for weight of the evidence claims:

         The essence of appellate review for a weight claim appears
         to lie in ensuring that the trial court's decision has record
         support. Where the record adequately supports the trial
         court, the trial court has acted within the limits of its
         discretion.

                                     ***

         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. 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. 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



                                     - 23 -
J-S27025-17


         or to give them equal weight with all the facts is to deny
         justice.

                                     ***

         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.

     Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-55
     (2013) (quotation marks, quotations, and citations omitted). In
     order for an appellant to prevail on a challenge to the weight of
     the evidence, “the evidence must be so tenuous, vague and
     uncertain that the verdict shocks the conscience of the court.”
     Commonwealth v. Sullivan, 2003 PA Super 123, 820 A.2d 795,
     806 (Pa.Super. 2003) (quotation marks and quotations omitted).

Commonwealth v. Mucci, 143 A.3d 399, 410-11 (Pa. Super. 2016).

     Here, the trial court opined:

     While there may be conflicting testimonies, it would only be proper
     to present the evidentiary record to the jury and let them
     determine the extent to which each is credible. Here, the jury
     believes the credible testimony of all of the Commonwealth’s
     witnesses, including [Walter West], Lieutenant Crowe, Officer
     Marion Cienkowski, James Attica, and Lori Pugh. The guilty verdict
     in this case aligned with the evidence presented to the jury.

Trial Court Opinion, 5/20/2016, at 23.

     At trial, Walter West testified that he saw Attica drive a red Ford F150

truck by his house with James Attica two or three times before the fire, and

saw them drive by again after the fire was out. See N.T., 8/19/2015, at 48–

51. He saw the truck drive by immediately prior to the car being ignited, but

could not see into the truck from his vantage point. See id. at 88. Officer



                                     - 24 -
J-S27025-17


Marion Cienkowski testified that on May 5, 2012, Walter West “came into the

25th District window and he stated that two males, whom he only knew by the

names of Jimmy and Nicky [referring to Attica, see N.T., 8/19/2015, at 71]

threw some sort of liquid on his vehicle and set the vehicle on fire.” N.T.,

8/20/2015, at 43. Lori Pugh testified that she was at her house with Walter

West when she saw a red Ford 150 truck that she knew was Attica’s drive by,

see id. at 140, and that “when we looked back out the door, the car was on

fire.” N.T., 8/19/2015, at 140. Lieutenant Robert Crowe testified that “some

type of accelerant” was applied to cause the care fire.        Id. at 169.    The

testimony of Walter West, Officer Cienkowski, Lori Pugh, and Lieutenant

Crowe corroborate the testimony of James Attica, that Attica intentionally set

fire to Walter West’s car. Therefore, we discern no abuse of discretion by the

trial court in rejecting Attica’s weight claim.

      In the ninth issue raised in this appeal, Attica argues the trial court

abused its discretion in denying his objection to the prosecutor’s closing

remarks “in stating his opinion that [Attica] was guilty … and failing to give a

curative instruction, which prejudiced [Attica’s] right to a fair trial.” Attica’s

Brief at 52. Specifically, Attica’s counsel objected to the following statement

of the prosecutor:

      What’s the common sense version of this story? That no matter
      which way you slice it, no matter which way you come down, no
      matter how you think that this actually happened, Henry Attica
      was at the heart of it all.




                                      - 25 -
J-S27025-17


       He was the one who committed these crimes. Henry Attica, you’ve
       been charged with arson, risking catastrophe, and conspiracy
       because you burned down Walter’s car --

              MR. BROWN: Objection, Your Honor.

              THE COURT: Objection noted. Continue.

             MR. GRENELL: -- you burned down Walter’s car in front of
       his own home and you set everybody in danger, everybody on
       that block, every firefighter that responded, everybody that was
       out there that day.

N.T., 8/20/2015, at 98–99.15

       This Court has stated:

       It is well established that a prosecutor must have reasonable
       latitude in presenting a case to the jury, and must be free to
       present arguments with logical force and vigor. Counsel may
       comment upon fair deductions and legitimate inferences from the
       evidence presented during the testimony. Although a prosecutor
       may argue to the jury that the evidence establishes the
       defendant’s guilt, arguments from personal opinion as to the guilt
       of the accused are not proper.

                                           ****

       [N]ot every remark by the prosecutor, even assuming it is
       intemperate or uncalled for, requires a new trial. A prosecutor’s
       comments do not amount to reversible error unless the
       unavoidable effect of such comments would be 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. Moreover, the prejudicial effect of the
       prosecutor’s remarks must be evaluated in the context in which
       they occurred. In applying these standards on appellate review,
       we have explained that whether this standard has been violated
       by the language of the prosecutor is not in the first instance an
____________________________________________


15Because trial counsel did not request a cautionary instruction, the claim that
the trial court erred in failing to give a cautionary instruction is waived. See
Commonwealth v. Wholaver, supra, 989 A.2d at 892.

                                          - 26 -
J-S27025-17


      appellate court’s decision to make; rather, it is the duty of the trial
      judge to rule upon the comments and we are limited to reviewing
      whether the trial court abused its discretion.

Commonwealth v. Raynor, 153 A.3d 1049, 1059-60 (Pa. Super. 2016)

(citation omitted).

      Here, the trial court reasoned:

      When the comment is simply a natural development of inferences
      made as a result of the evidence against the defendant, it would
      simply be effective oral advocacy to suggest the defendant’s guilt.
      In this case, the prosecutor’s statements were not so egregious
      as to impair the jury’s ability to grant a true verdict and as such
      did not prejudice [Attica’s] right to a fair trial.

Trial Court Opinion, 5/20/2016, at 25. On this record, we find no basis upon

which to disturb the trial court’s determination. “The prosecutor is free to

argue that the evidence leads to the conclusion of guilt, and is permitted to

suggest all favorable and reasonable inferences that arise from the evidence.”

Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011) (rejecting

defendant’s assertions of prejudice, premised on the prosecutor’s closing

argument stating, “You’re guilty of murder.        You are a murderer.”), cert.

denied, 132 S. Ct. 2377 (2012). Accordingly, we reject Attica’s ninth claim.

      In the final issue, Attica challenges the discretionary aspects of his 23½-

to-47 year sentence. Attica contends “the trial court abused its discretion in

imposing a manifestly excessive and unreasonable consecutive aggregate

maximum sentence, where the sentence was substantially above the

aggravated guideline range and did not reflect [Attica’s] rehabilitative needs.”

Attica’s Brief at 55 (Pa.R.A.P. 2119(f) statement).

                                      - 27 -
J-S27025-17


      It is well-established that "[a] challenge to the discretionary aspects of

a sentence must be considered a petition for permission to appeal, as the right

to pursue such a claim is not absolute." Commonwealth v. Hoch, 936 A.2d

515, 518 (Pa. Super. 2007) (citation omitted). Here, Attica has complied with

the procedural requirements for this appeal by filing a timely post-sentence

motion for modification of sentence and subsequent notice of appeal, and by

including in his appellate brief a statement of reasons relied upon for appeal

pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and

Pa.R.A.P. 2119(f). See Commonwealth v. Edwards, 71 A.3d 323, 329-330

(Pa. Super. 2013). Furthermore, we find Attica’s claim presents a substantial

question. See Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa. Super.

2014) (appellant raised substantial question when he alleged sentence was

excessive and court failed to consider mitigating circumstances). Therefore,

we turn to examine the merits of Attica’s discretionary sentencing claim.

      In its opinion, the trial court thoroughly addressed the merits of Attica’s

challenge to the discretionary aspects of his sentence.         See Trial Court

Opinion, 5/20/2016, at 25–28. See also N.T., 10/30/2015, at 22-23. Based

on our examination of the record, and applying our deferential standard of

review, we find no abuse of discretion in this sentencing decision.         See

Commonwealth v. Walls, 926 A.2d 957, 961 (2007) (“proper standard of

review   when   considering   whether    to   affirm   the   sentencing   court’s

determination is an abuse of discretion”).


                                     - 28 -
J-S27025-17


       In conclusion, having examined the arguments of Attica and finding

them to be meritless, we affirm.

       Judgment of sentence affirmed.16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




____________________________________________


16In the event of further proceedings, the parties are directed to attach a copy
of the Honorable Timika Lane’s May 20, 2016 Pa.R.A.P. 1925(a) Opinion to
this Memorandum.

                                          - 29 -
