J-S35011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANDREA G. PRINCE

                            Appellant                  No. 1142 EDA 2014


            Appeal from the Judgment of Sentence February 7, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001155-2012


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 28, 2015

        Appellant, Andrea G. Prince, appeals from the February 7, 2014

aggregate judgment of sentence of ten to twenty years’ imprisonment,

followed by ten years’ probation, imposed following her convictions for third-

degree murder, possession of an instrument of crime (PIC), and tampering

with evidence.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

                   On November 23, 2011, officers from the City
              of Chester Police Department responded to 1300
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), 907, and 4910, respectively.
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          Crosby Square, apartment 18A in the city of Chester
          following a call for a domestic [incident] with a
          weapon. Officers were advised that a female would
          meet them outside of the apartment. Following their
          arrival at the residence, the officers were unable to
          locate anyone outside. They entered the apartment.
          The front door of the apartment was open and the
          officers observed CDs scattered around the living
          room floor. As the officers proceeded through the
          apartment, they observed shell casings on the steps.
          The body of Justin Haywood was at the bottom of
          these steps. Justin Haywood was lying with his chest
          down and his head facing the wall.           He was
          pronounced dead on the scene at 8:12 P.M.

                Officer     Michael    Canfield     encountered
          [Appellant] on the street approximately “two
          clusters” down from Apartment 18A. She identified
          herself as the individual who made the 911 call. She
          told him that her children’s father, the victim, Justin
          Haywood, was in her apartment and that he was
          getting out of hand and had a firearm, so she had to
          take her children down the street to a neighbor’s
          house. Officer Canfield then handed [Appellant] off
          to Officer David DeFrank for further questioning.
          [Appellant] told Officer DeFrank that she had gotten
          into an argument with her boyfriend, and that she
          ran out of the apartment screaming for help and that
          two young black males ran into the apartment, that
          she heard gunshots, and that they ran away. She
          stated that she never saw these men before.

                [Appellant] agreed to go with the officers to
          the police station where she then spoke to
          Detectives [Todd] Nuttall and [David] Tyler. There,
          [Appellant] changed her story once more and told
          the detectives that she had been arguing with her
          boyfriend, the victim, Justin Haywood, and that it
          had become physical. She said that he had pinned
          her up against the wall and had a gun in his hand.
          She said that she was able to grab the gun and take
          it from him. She explained that she then shot him
          and he fell down the stairs.


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Trial Court Opinion, 10/15/14, at 1-2, (citations and footnotes omitted).

        Appellant was arrested on November 23, 2011, and charged by

criminal complaint with the aforementioned offenses, as well as first-degree

murder.2      Criminal Complaint, 11/24/11, at 1-4.                On April 30, 2013,

Appellant proceeded to a jury trial on said charges. On May 3, 2013, the

jury found Appellant guilty of tampering with evidence and not guilty of first-

degree murder.       The jury was unable to reach a unanimous verdict with

respect to third-degree murder and PIC . Therefore, the trial court ordered

a mistrial relative to those two counts.

        The   Commonwealth         sought      a   retrial   on   those   counts,   which

commenced on November 15, 2013.                    At the conclusion of the trial, on

November 22, 2013, the jury found Appellant guilty of third-degree murder

and PIC. The trial court imposed an aggregate judgment of sentence of ten

to twenty years’ imprisonment on February 7, 2014. On February 18, 2014,

Appellant filed a post-sentence motion. The trial court held a hearing, and

on March 6, 2014, the trial court denied said motion.                 On April 4, 2014,

Appellant filed her timely notice of appeal.3

        Appellant raises the following issues for this Court’s consideration.
____________________________________________


2
    18 Pa.C.S.A. § 2502(a).
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            I[.] Whether the [trial] court erred in denying the
            written request of [Appellant] to charge the jury
            regarding the flight and concealment of an individual
            named Robert Knight which tended to show his
            consciousness of guilt where the theory of the case
            put forth by [Appellant] was that the victim was shot
            and killed by Robert Knight[?]

            II[.] Whether the court erred in denying the written
            request of the defense to charge the jury on the
            manner in which they were to weigh the equal
            inferences that arose from the results of the gunshot
            residue testing admitted at trial[?]

Appellant’s Brief at 7.

      Both of Appellant’s claims of error concern the trial court’s refusal to

instruct the jury as requested.   In evaluating such claims we note, “[o]ur

standard of review when considering the denial of jury instructions is one of

deference—an appellate court will reverse a [trial] court’s decision only when

it abused its discretion or committed an error of law.” Commonwealth v.

Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation omitted), affirmed,

78 A.3d 1044 (Pa. 2013).     We are required to “consider the charge as a

whole to determine if the charge was inadequate, erroneous, or prejudicial.

The trial court has broad discretion in phrasing its instructions, and may

choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.” Commonwealth v.

Estepp, 17 A.3d 939, 946 (Pa. Super. 2011) (citation omitted), appeal

dismissed, 54 A.3d 22 (Pa. 2012). Moreover, when a trial court refuses to

deliver a specific jury instruction, “it is the function of this Court to


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determine   whether    the   record   supports   the   trial   court’s   decision.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014).

      In Appellant’s first issue, she argues the trial court abused its

discretion when it declined to deliver an adapted version of Pennsylvania

Standard Criminal Jury Instruction 3.14, which concerns the correlation

between flight and consciousness of guilt. Appellant’s Brief at 14-16. The

standard instruction reads, in relevant part, as follows.

            1. There was evidence, including the testimony of
            [name of witness], that tended to show that the
            defendant [fled from the police] [hid from the police]
            [give specifics]. [The defendant maintains that [he]
            [she] did so because [reason].]        The credibility,
            weight, and effect of this evidence is for you to
            decide.

            Generally speaking, when a crime has been
            committed and a person thinks he or she may be
            accused of committing it and he or she flees or
            conceals himself or herself, such flight or
            concealment is a circumstance tending to prove the
            person is conscious of guilt.         Such flight or
            concealment      does     not     necessarily    show
            consciousness of guilt in every case. A person may
            flee or hide for some other motive and may do so
            even though innocent. Whether the evidence of
            flight or concealment in this case should be looked at
            as tending to prove guilt depends upon the facts and
            circumstances of this case and especially upon
            motives that may have prompted flight or
            concealment.

                                       …




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Pa.S.S.J.I (Crim.) 3.14. A flight instruction is properly given in the following

circumstance.

            [A] person has reason to know he is wanted in
            connection with a crime, and proceeds to flee or
            conceal    himself   from   the    law   enforcement
            authorities, such evasive conduct is evidence of guilt
            and may from a basis, in connection with other
            proof, from which guilt may be inferred.

Commonwealth v. Tha, 64 A.3d 704, 714 (Pa. Super. 2013) (citation

omitted).

      Prior to charging the jury, Appellant filed a written request to instruct

the jury in accordance with Pennsylvania Suggested Standard Criminal Jury

Instruction 3.14.    Appellant’s Brief at 14.     However, instead of using

Appellant’s name in the instruction, she requested the trial court instruct on

evidence of her boyfriend, Robert Knight’s flight from the crime scene that

evening. Id.

      At trial, there was no testimony in the Commonwealth’s case-in-chief

regarding Knight’s presence in or departure from Appellant’s home on

November 23, 2011.      See generally N.T., 11/19/13-11/21/13. After the

Commonwealth rested its case, Appellant testified in her own defense. N.T.,

11/21/13, at 71.    We summarize the testimony relevant to this claim of

error in the following manner. Appellant and Haywood were in a romantic

relationship that lasted for seven years, and the couple had two children




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together.4 Id. at 72-73. Between approximately 5:00 and 5:15 p.m. on the

day of the homicide, Appellant was at her home with her children, a friend of

her daughter’s, and her own friend, Marie Slaughter, when Haywood arrived.

Id. at 80. Haywood inquired about Thanksgiving plans and asked Appellant

if they could reconcile, which Appellant answered in the negative. Id. at 81.

Appellant then left to run errands, leaving Haywood in her home in charge of

their two young sons. Id. Appellant returned approximately one and one-

half hours later. Id. at 82.       Shortly thereafter, at approximately 7:00 p.m.,

Appellant’s boyfriend, Robert Knight, came over.         Id. at 84-86. Appellant

and Haywood began arguing because he did not want Knight around his

children. Id. at 87. The argument upset Appellant’s daughter’s friend, and

she ran from the house. Id. at 88-89. In response, Appellant walked her

daughter and said friend to the friend’s home.             Id. at 89-90.    When

Appellant returned, she observed, from outside the apartment, that

Haywood and Knight began fighting. Id. at 90. She remained outside and

lost sight of the fight before she heard gunshots. Id. at 90-91. She went

back into her residence to retrieve her two sons, and Knight came out and

ran.   Id. at 91-92.        She testified that she previously gave statements

implicating herself in the shooting to protect Knight. Id. at 97, 143.


____________________________________________


4
  Appellant has three children, a daughter and two sons. Haywood is the
father of Appellant’s two sons.



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       Appellant also presented the testimony of her oldest son, who was six-

years-old at the time of Appellant’s trial and four-years-old at the time of the

homicide.   See id. at 199.    He testified, “Robert shot my dad ….”     Id. at

201.   Slaughter also testified for the defense, relating that when she and

Appellant returned from running errands that evening, Knight and Haywood

began arguing. N.T., 11/22/13, at 8, 12. She further testified that she went

to leave the apartment and, upon exiting, heard gunshots, after which

Appellant came running up from the apartment.            Id. at 12.     Finally,

Appellant presented the testimony of William Finkel, Knight’s workplace

manager. Id. at 30. Finkel testified that Knight began working at his place

of employment in November of 2004. Id. at 36. He further testified that

Knight last worked on November 23, 2011 and that thereafter, Knight

“stopped showing.”      Id.    Finkel clarified that Knight had not been

terminated, that he had not given any notice of his intention to leave his job,

and that no other employees, with whom Finkel spoke concerning Knight’s

absence, had heard from Knight. Id. at 36-38.

       The trial court explained its decision to deny Appellant’s request as

follows.

                  In the case sub judice, defense counsel
            proposed that the aforementioned instruction should
            have been given to support [the] defense that
            Robert Knight shot and killed Justin Haywood. This
            court did not believe it was proper to modify the
            standard charge 3.14 to instruct the jury that they
            could draw an inference of the guilt of Robert Knight
            based upon the fact that Robert Knight was missing.

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             To have done so would not have been an accurate
             statement of the law.

                   The instruction given, as a whole, clearly,
             adequately, and accurately presented the law to the
             jury for its consideration. The court respectfully
             submits that no abuse of discretion or error of law
             occurred.

Trial   Court   Opinion,   10/22/14,   at   9   (footnote   omitted);   see   also

N.T.,11/22/13, at 59 (trial court ruling on Appellant’s jury request and

concluding “[the trial court doesn’t] think it’s appropriate to modify [the

charge]”). Appellant argues that the trial court’s rationale was based on a

“mistaken impression” that the above charge is only available to the

Commonwealth with respect to the flight of a defendant. Appellant’s Brief at

14-16. The Commonwealth counters that there was no evidence that Knight

was aware that he was being sought in the instant case; therefore, the trial

court did not abuse its discretion in denying Appellant’s request to instruct

the jury on flight.        Commonwealth Brief at 19.           Alternatively, the

Commonwealth argues that the trial court’s failure to deliver the instruction

amounted to harmless error. Id. at 22.

        For the following reasons, we disagree with the trial court’s rationale

underlying its decision to deny Appellant’s request. In Commonwealth v.

Milligan, 693 A.2d 1313 (Pa. Super. 1997) this Court opined on the

appropriateness of adapting the aforesaid charge to reflect a non-

defendant’s flight in order to infer the guilt of that person. Milligan, supra

at 1317-1318.      We concluded, in light of, inter alia, the relevancy and

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admissibility of evidence tending to show that the crime for which a

defendant stands accused was committed by another, “once a defendant

properly introduces evidence that someone else fled the crime scene, the

trial court is duty bound to instruct the jury concerning the significance of

this evidence.” Id. at 1317. We also noted that Pa.S.S.J.I. 3.14 is largely

“neutral in its application to a defendant or another party” and, for that

reason, a “trial court could easily tailor this instruction to apply where the

accused defends based on another party’s flight.” Id. at 1318.          Therefore,

we disagree with the trial court that it would be improper for a trial court to

instruct on the relevance of another’s flight.        See Trial Court Opinion,

10/22/14, at 9.

       In   the   instant   case,   Appellant   offered   testimony   that   Knight

immediately fled from her residence following the fight ending in gunshots

between himself and Haywood, her son testified that he witnessed Knight

shoot Haywood, and Knight’s manager testified that Knight was missing

from work and no one knew of his whereabouts following the date of the

incident.   Accordingly, we conclude Appellant presented sufficient evidence

that Knight was present at the crime scene and fled to warrant her

requested instruction. See Milligan, supra at 1317.

      Nevertheless, we agree with the Commonwealth that the trial court’s

error was harmless. “[U]nder the harmless error doctrine, the judgment of

sentence will be affirmed in spite of the error only where the reviewing court


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concludes beyond a reasonable doubt that the error did not contribute to the

verdict.”    Commonwealth v. Moran, 104 A.3d 1136, 1150 (Pa. 2014)

(citation omitted).

      Instantly, we observe that included in the trial court’s instructions to

the jury was the charge that the Commonwealth bore the burden of proof on

each and every element of the offenses charged. N.T., 11/22/13, at 115-

117. The trial court also instructed the jury on each element of each offense

and what it must find in order to convict Appellant. Id. at 140-142, 145-

150. “The omitted charge did not involve a fundamental matter such as the

burden of proof.”      Milligan, supra at 1318. Rather, it “merely would have

suggested to the jury a manner in which to examine certain pieces of

evidence.” Id.         Moreover, the crux of Appellant’s defense was indeed that

Knight was the person who committed the homicide.                   In Milligan, we

observed that “the failure to instruct on flight may result in the jury …

treat[ing]   the   …    flight   as   ironclad    circumstances   tending    to   prove

consciousness of guilt.”          Id. (citation and quotation marks omitted,

emphasis     added).       Therefore,    rather    than   the   omission    prejudicing

Appellant, it “may have worked to [her] advantage[,]” as the jury was free

to infer Knight’s supposed flight was “ironclad” circumstantial evidence of his




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consciousness of guilt. See id.          Accordingly, we conclude Appellant is not

entitled to relief on this claim.5

       Next, Appellant argues the trial court erred when it refused to instruct

the jury that there were two equal inferences to be drawn from the evidence

admitted at trial of gunshot residue on Appellant’s hands. Appellant’s Brief

at 20. The Commonwealth responds that Appellant did not present evidence

that would explain the existence of the residue; therefore, the trial court

properly denied Appellant’s request to instruct the jury on the equal

inferences deriving from the evidence. Commonwealth Brief at 29.

       Our Supreme Court has explained the appropriateness of such an

instruction as follows.         “When two equally reasonable and mutually

inconsistent inferences can be drawn from the same set of circumstances, a

jury must not be permitted to guess which inference it will adopt, especially

when one of the two guesses may result in depriving a defendant of his life

or liberty.”    Commonwealth v. Montalvo, 986 A.2d 84, 99 (Pa. 2009)

(citation omitted), cert. denied, Montalvo v. Pennsylvania, 562 U.S. 857

(2010).



____________________________________________


5
  While we disagree with the rationale provided by the trial court, we
observe, “[t]his [C]ourt may affirm [the lower court] for any reason,
including such reasons not considered by the lower court.” Commonwealth
v. Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013) (citation omitted).




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      At trial, the Commonwealth offered the expert testimony of Susan

Atwood of the Pennsylvania State Police Crime Laboratory in Harrisburg,

Pennsylvania. N.T., 11/20/13, at 27.          Atwood performed an analysis on

samples that were taken from Appellant’s hands on November 23, 2011.

Id. at 33. She explained that samples were taken from Appellant’s right and

left palms and the back of Appellant’s right and left hands.         Id. at 38.

Atwood concluded that there were particles “characteristic” of gunshot

residue on Appellant’s left palm but no particles “characteristic” of gunshot

residue on Appellant’s right palm or on the backs of either of Appellant’s

hands.   Id. at 39.     Atwood explained that in order for particles to be

“characteristic” of gunshot residue, three elements must be present in the

subject particle: lead, barium, and antimony.         Id. at 40.    She further

testified that on each sample taken from each part of Appellant’s hands,

particles “indicative” of gunshot residue were present.            Id.   Atwood

explained the difference in the findings and their significance as follows.

            [The Commonwealth]:

                 Q.     Can you explain the difference between a
            characteristic particle and an indicative particle?

            [Atwood]:

                  A.     The characteristic particle is a particle
            with lead, barium, and antimony all together in a
            single particle. Indicative particles are composed of
            maybe two of those three or one of those three
            items, and those kind of particles could actually
            come from environmental sources other than from a
            weapon, firing a weapon.

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                   Q.     Does the fact that there were indicative
            particles found in conjunction with characteristic
            particles is that significant in any way?

                  A.     Yes. It’s been shown that there are
            possibly some commercial fireworks or maybe some
            old brake linings in older cars that may have
            compositions like a characteristic particle, but when
            you find those, if you find those, they’re usually not
            the indicative particle along with it that indicate that
            they came from a weapon.

                  Q.    So, in other words if you only found
            indicative particles, it could have been -- it could
            have come from another source?

                  A.    That’s correct.

                 Q.     But when you find indicative particles in
            conjunction with characteristic particles, it makes it
            more likely that it comes from a firearm?

                  A.    Yes.

                  Q.    Could you read for us Conclusion #5?

                  A.    The above results indicate the accused,
            [Appellant], may have recently handled or
            discharged a firearm. They may also indicate the
            accused was in very close proximity to a firearm
            when it was discharged.

Id. at 41-42.     On cross-examination, Atwood agreed with Appellant’s

counsel that “it’s possible” a person who walked into a room after gunshot

residue was “created and deposited on the surface” could pick up the residue

from something on the surface the individual picked up. Id. at 58.

      The trial court explained its decision to deny Appellant’s request for an

equal inference instruction, as follows.

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                 In the case sub judice, there was not an equal
          inference regarding the gunshot residue findings to
          warrant such an instruction. While, at trial Susan
          Atwood, the Commonwealth’s expert, testified that
          positive gunshot residue does not mean that a
          person fired a gun, and defense counsel argued this
          point in his closing to the jury, there was also
          evidence presented at trial that showed [Appellant]
          gave several conflicting stories to the police following
          the death of Justin Haywood, one of which she
          implicated herself in the crime.            [Appellant],
          however, in her testimony at trial said that she was
          not inside the apartment at the time of the shooting.
          As such [per her own testimony], she was not “in
          very close proximity” to the gun when it was
          discharged.

                 [T]he evidence did not result in two equally
          reasonable and mutually inconsistent theories that
          would warrant the requested charge. The defense
          argued that [Appellant] picked up the “characteristic”
          and “indicative” particles on her hands when she
          went into the apartment after the shooting. The
          Commonwealth’s expert testified that although
          “indicative” gunshot particles can sometimes come
          from “environmental sources” other than from the
          firing of a weapon, but when found in along with
          “characteristic” gunshot particles, as it was in the
          instant case, it is more likely derived from a firearm.
          Specifically,   at   trial,  when     asked   by    the
          Commonwealth if it was more likely that the particles
          recovered from [Appellant’s] hands had come from a
          firearm, Dr. Atwood testified yes. As such, there
          were not “two equally reasonable and mutually
          inconsistent inferences” and the jury was not left to
          guess which inference to adopt. The presence of
          both “characteristic” and “indicative” particles on
          [Appellant’s] hands made it more likely that they got
          there because of the discharge of a firearm and not
          by accident.

               Accordingly, the requested charge was not
          appropriate under the circumstances of this case.


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Trial Court Opinion, 10/22/14, at 11-12. (citations omitted, italics in

original).

      Instantly, we conclude the record supports the trial court’s decision.

See Buterbaugh, supra. While the expert opined there was a possibility

that the residue could have been present because of Appellant touching

something after the shots were fired, her expert conclusion indicated that

[Appellant] “recently handled or discharged a firearm” or “was in very close

proximity to a firearm when it was discharged.” N.T., 11/20/13, at 42, 58.

Appellant’s own testimony at trial was that she remained outside of her

apartment while Knight and Haywood were fighting and only entered after

she heard gunshots to retrieve her two sons. N.T., 11/21/13, at 90-92. She

further could not recall touching anything in the apartment and testified, “I

grabbed the kids and I ran out [of] the house.” Id. at 126. As such, we

agree, under the circumstances of this case that there were not “two

equally reasonable and mutually inconsistent inferences” that could         be

drawn from the evidence at trial.       See Montalvo, supra.         Thus, we

conclude the trial court did not abuse its discretion or commit an error of law

in denying Appellant’s request. See Baker, supra.




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     Based on the foregoing discussion, we conclude Appellant is not

entitled to relief on her claims. Accordingly, we affirm the February 7, 2014

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015




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