J-S52032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHN BRAGG, JR.

                            Appellant                   No. 657 EDA 2014


          Appeal from the Judgment of Sentence November 7, 2013
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0003233-2012


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED SEPTEMBER 09, 2014

       Appellant, John Bragg, Jr., appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas, following his

jury trial convictions for criminal attempt (criminal homicide), aggravated

assault (serious bodily injury), aggravated assault (bodily injury with deadly
                                                          1
                                                              We affirm.

       The relevant facts and procedural history of this case are as follows.



administrator of their estate.          Appellant and his brother are the sole


____________________________________________


1
  18 Pa.C.S.A §§ 901(a) (2501 related); 2702(a)(1); 2702(a)(4); 907(a),
respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
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Appellant and Victim had multiple disagreements over matters relating to




residing.   Victim initially listed the house for sale for approximately

$100,000.00, but when Victim was unable to secure a buyer at that price or

lower listing prices, Victim ultimately agreed to sell the house for

$52,000.00. Appellant was unhappy with this sale price and tension ensued

between Appellant and Victim.

      On September 2,

house, Appellant asked Victim to come to the house to look at a leaking pipe

in the basement. Victim was unavailable that day but agreed to stop by the

next day. On September 3, 2012, Victim arrived at the house and both men

headed to the basement, with Victim walking in front of Appellant. Appellant

then pulled out a butcher knife and stabbed Victim in the back three times.

Victim was able to push past Appellant, get outside, and call the police.

Police arrested Appellant, and the Commonwealth subsequently charged him

with criminal attempt (criminal homicide), two counts of aggravated assault,



      On September 9, 2013, a jury trial commenced.

the case was that he stabbed Victim in self-defense. Specifically, Appellant

maintained that Victim sexually abused him as a child numerous times.

Appellant claimed that when Victim came to the house on September 3,


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2012, the men argued over the sale price of the house and Victim stated:



Appellant insisted Victim also threatened to retrieve his golf club from



sexual abuse and threats, Appellant contended he acted in self-defense

when he stabbed Victim.

      The Commonwealth rebutted the defense theory by presenting, inter

alia, the testimony of Victim and testimony from Devon Emory, Appe

cellmate in prison prior to trial. Mr. Emory testified that Appellant admitted

he tried to kill Victim and that Appellant described the attack in detail to Mr.

Emory, including how Appellant lured Victim to the house with a false story

about a lea



                   (meaning Appellant was going to say Victim sexually

assaulted Appellant, even though untrue) to justi                          . Mr.

Emory further indicated Appellant intended to kill Victim after Appellant was

released from prison.

      During   closing   arguments,   the   prosecutor   made    the    following

statement to the jury:

                                                         oing. He
         knows that [Victim] is an educator.     He knows what the

         a way to continue to victimize [Victim]. Instead of using a

         gentleman, are going to last longer?      The physical scars

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          caused when [Appellant] took the stand and spewed
          venomous lies about his own uncle? And what [Appellant]
          did on the stand belies victimization. It insults those who
          are actually victims of sexual assault because it causes us
          always to question the Sandusky defense.

(N.T. Trial, 9/11/13, at 19-

remarks as prejudicial and beyond the scope of the case.           The court

overruled the objection. (Id. at 20).

       On September 11, 2013, the jury convicted Appellant of criminal

attempt (criminal homicide), two counts of aggravated assault, and PIC. 2

The court sentenced Appellant on November 7, 2013, to a term of ten (10)



imposed no further penalty for the remaining convictions. Appellant timely

filed post-sentence motions on Monday, November 18, 2013, which the

court denied on January 27, 2014. Appellant timely filed a notice of appeal

on February 26, 2014. The next day, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), which Appellant timely filed on March 14, 2014.

       Appellant raises one issue for our review:


____________________________________________


2
  During trial, the Commonwealth withdrew the REAP charge, and the verdict
sheet confirms the jury did not convict Appellant of that crime. To the
extent the certified record indicates the jury convicted Appellant of REAP and
the conviction merged for sentencing purposes, that is error and must be
corrected.



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        PREJUDICE APPELLANT AND DEPRIVE HIM OF A FAIR
        TRIAL WHERE THE PROSECUTOR WARNED THE JURY THAT

        NEGATIVELY IMPACT TRUE VICTIMS OF SEXUAL ASSAULT?



     The relevant standard of review in this case is as follows:

        Our standard of review for a claim of prosecutorial
        misconduct is limited to whether the trial court abused its
        discretion.    In considering this claim, our attention is
        focused on whether the defendant was deprived of a fair
        trial, not a perfect one.


        basis for the granting of a new trial unless the unavoidable
        effect of such comments would be to prejudice the jury,
        forming in their minds fixed bias and hostility towards the
        accused which would prevent them from properly weighing
        the evidence and rendering a true verdict.

        A prosecutor must have reasonable latitude in fairly
        presenting a case to the jury and must be free to present
        [her] arguments with logical force and vigor.         The
        prosecutor is also permitted to respond to defense
        arguments.    Finally, in order to evaluate whether the
        comments were improper, we do not look at the comments
        in a vacuum; rather we must look at them in the context in
        which they were made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.Super. 2011), appeal

denied, 615 Pa. 766, 40 A.3d 1236 (2012) (internal citations and quotation

marks omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Paula A.




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opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed March 18, 2014, at 1-4) (finding:



abused him as child and brought up past sex abuse on date of incident to




Victim on September 3, 2012, and plan

(meaning Appellant was going to say Victim sexually assaulted Appellant,



were fair response to issue of sexual assault raised by Appellant at trial;

viewing   alleged   improper   remarks    in   context   of   whole   summation,




claim fails). Accordingly, we affirm on

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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