J-S29038-18

                                   2018 PA Super 173


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RHECHIID JONES,                            :
                                               :
                       Appellant               :   No. 1830 EDA 2017

            Appeal from the Judgment of Sentence January 27, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007948-2015


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 20, 2018

        Appellant Rhechiid Jones appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on January 27,

2017, following his conviction by a jury on the charges of first-degree murder

and firearms not to be carried without a license.1 After a careful review, we

affirm.

        Following the shooting death of Ricky Rodriguez, Appellant was

arrested, and represented by counsel, he proceeded to a jury trial. The trial

court has aptly summarized the testimony presented at trial as follows:

              At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officers Paul Buzzone, Jason Seigafuse, Francis
        Graf, Norman DeFields, Edward Slater, Thomas Morgan, and Brian
        Stark; Philadelphia Detectives Joseph Bamberski, Frank Mullen,
        Thorsten Lucke, John Keen, John Bartol, and Donald Marano;
        Philadelphia Associate Medical Examiner Dr. Daniel Brown; and
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1   18 Pa.C.S.A. §§ 2502(a) and 6106(a)(1), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       Samantha Schofield, Jared Craiter, Jill Davis, and Christopher
       Lopez. [Appellant] presented no evidence. Viewed in the light
       most favorable to the Commonwealth as the verdict winner, the
       evidence established the following.
              During the early morning hours of June 14, 2015,
       [Appellant] and Ricky Rodriguez got into an argument over drug
       territory near the 1800 block of Thayer Street in Philadelphia.
       N.T., 1/25/17, at 86. Some hours after the initial argument,
       [Appellant] returned to the scene and fired multiple shots at
       Rodriguez. [Id.] at 85-86. Multiple witnesses were on the scene
       at the time of the shooting: Samantha Schofield and Christopher
       Lopez were within a few feet of Rodriguez, while Jared Craiter was
       approximately a half-block away. N.T., 1/24/17, at 107, 144;
       [N.T.,] 1/25/17, at 85.
             Rodriguez was shot five times: once in the head, twice in
       the back, and twice in the buttocks. N.T., 1/24/17, at 83-89.
       Philadelphia Police Officers responded to the scene upon the
       report of shots fired and found Rodriguez lying face down on the
       ground and unresponsive. N.T., 1/24/17, at 57, 60. He was
       pronounced dead on the scene by the Philadelphia Fire
       Department Medic Unit. N.T., 1/24/17, at 94-95.
             Philadelphia Police Detectives then conducted an
       investigation of the shooting. N.T., 1/25/17, at 136-38. During
       the course of the investigation, Samantha Schofield, Jared Craiter,
       and Christopher Lopez positively identified [Appellant] as the
       shooter. N.T., 1/24/17, at 126, 128-29, 179-80; [N.T.,] 1/25/17,
       at 106. Additionally, detectives recovered a video recording of the
       incident. N.T., 1/25/17, at 15-16.

Trial Court Opinion, filed 8/17/17, at 1-2.

       At the conclusion of all testimony, the jury convicted Appellant of the

aforementioned offenses, and on January 27, 2017, the trial court sentenced

Appellant to an aggregate of life in prison.2 On February 3, 2017, Appellant


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2 At the conclusion of the sentencing hearing, the trial court specifically
informed Appellant of his post-sentence and appellate rights. N.T., 1/27/17,
at 9-10.

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filed a timely post-sentence motion in which he set forth the following issues

(verbatim):

       1. The prosecutor engaged in prosecutorial misconduct in his
          statements during closing argument that mentioned the impact
          that the decedent’s death had on his family.           These
          inflammatory statements were designed to invoke the passions
          of the jury.
       2. The prosecutor engaged in prosecutorial misconduct in his
          statements during closing argument that defense counsel
          questioned his integrity because Defense Counsel knew that
          the rules prohibited the witness Jill Davis from making a [sic]
          in court identification.
       3. The weight of the evidence was so lacking as to shock the
          conscience in that the inconsistencies in the identification
          testimony was vague and inconclusive.

Appellant’s Post-Sentence Motion, filed 2/3/17, at 1.

       On May 24, 2017, the trial court summarily denied the post-sentence

motion, and this timely, counseled appeal followed. On June 12, 2017, the

trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement. 3 On June

30, 2017, counsel filed a timely Rule 1925(b) statement on behalf of Appellant

in which he presented the following issues (verbatim):

       1. The prosecutor engaged in prosecutorial misconduct in his
          statements during closing argument that mentioned the impact
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3 The trial court’s order complied fully with Pa.R.A.P. 1925. Specifically, the
order informed Appellant that he was required to file his concise statement
within twenty-one days and that he was required to file a copy and serve a
copy of the statement on the trial judge. Further, the order specifically
informed Appellant that any issues not contained in the Rule 1925(b)
statement would be deemed to have been waived. The concise statement
order was docketed, and a notation on the docket indicates that the order was
served on Appellant’s counsel via first class mail on June 9, 2017.


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           that the decedent’s death had on his family.          These
           inflammatory statements were designed to invoke the passions
           of the jury.
     2. The prosecutor engaged in prosecutorial misconduct in his
        statements during closing argument that defense counsel
        questioned his integrity because Defense Counsel knew that
        the rules prohibited the witness Jill David from making a [sic]
        in court identification of [Appellant]. This was an intentional
        misstatement of the law of in court identification.
     3. The weight of the evidence was so lacking as to shock the
        conscience in that the inconsistencies in the identification
        testimony was vague and inconclusive.

Appellant’s Pa.R.A.P. 1925(b) Statement, filed 6/30/17.

     On August 17, 2017, the trial court filed a responsive Pa.R.A.P. 1925(a)

opinion.

     On appeal, Appellant presents the following issues in his Statement of

Questions Involved (verbatim):

     I.      Is [Appellant] entitled to an Arrest of Judgment on the
             charge of Murder in the First Degree where the
             Commonwealth did not prove beyond a reasonable doubt
             that [Appellant] had a specific intent to kill nor acted with
             premeditation?
     II.     Is [Appellant] entitled to a new trial on the charge of Murder
             in the First Degree where the weight of the evidence does
             not support the verdict as the weight of the evidence does
             not support a finding of specific intent to kill or
             premeditation[?]
     III.    Did the prosecutor engage in prosecutorial misconduct in his
             statements during closing argument that mentioned and
             referenced the impact of the decedent’s death upon his
             family where said statements were inflammatory and
             designed to invoke the passions of the jury?
     IV.     Did the prosecutor engage in prosecutorial misconduct in his
             statements during closing argument when he said that
             defense counsel questioned his integrity because defense


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              counsel knew that the rules prohibited the witness, Jill
              David, from making an in-court identification of [Appellant]
              and all where same was an intentional misstatement of the
              law?

Appellant’s Brief at 3.

       In his first issue, Appellant contends the Commonwealth presented

insufficient evidence to prove first-degree murder, and therefore, he was

entitled to an arrest of judgment on the charge. In response, the

Commonwealth contends Appellant waived the claim by failing to include it in

his court-ordered Pa.R.A.P. 1925(b) statement.            We agree with the

Commonwealth and find Appellant’s first issue to be waived. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

       In his second issue, Appellant contends the jury’s verdict of guilt as to

first-degree murder was contrary to the weight of the evidence.4 Specifically,

in his appellate brief, he avers “[c]ertainly and without a doubt, any proper

review would have revealed that the elements of premeditation and specific

intent to kill were not made out[.]” Appellant’s Brief at 13. In response, the

Commonwealth contends Appellant waived his specific weight claim.            We

agree.



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4 Appellant has presented no weight of the evidence claim as to his conviction
for firearms not to be carried without a license.


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       In his post-sentence motion and court-ordered Rule 1925(b) statement,

Appellant challenged the weight of the evidence with regard to his first-degree

murder conviction. However, in both instances, he specifically averred “[t]he

weight of the evidence was so lacking as to shock the conscience in that the

inconsistencies in the identification testimony was vague and inconclusive.”

Appellant’s Post-Sentence Motion, filed 2/3/17; Appellant’s Pa.R.A.P. 1925(b)

Statement, filed 6/30/17. However, in his appellate brief, as indicated supra,

Appellant presents a new theory with regard to the weight of the evidence.

       As an initial matter, a challenge to the weight of the evidence must be

preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing.5 Pa.R.Crim.P. 607(A)(1)-(3). “The

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.” Comment

to Pa.R.Crim.P. 607. If an appellant never gives the trial court the opportunity

to provide relief, then there is no discretionary act that this Court can review.6

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5 Appellant presented no weight of the evidence claim in a written motion
before sentencing or orally prior to sentencing. However, as indicated, he
presented a specific weight of the evidence claim in a timely post-sentence
motion.

6 In his brief, Appellant requests that, in reviewing his weight of the evidence
claim, this Court “look at the evidence anew.” Appellant’s Brief at 13.
However, Appellant’s request is contrary to our well-established standard of
review in weight claims. Commonwealth v. Konias, 136 A.3d 1014, 1022
(Pa.Super. 2016) (“When we review a weight-of-the-evidence challenge, we
do not actually examine the underlying question; instead, we examine the



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Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa.Super. 2014).

Further, as indicated supra, issues not presented in a court-ordered Pa.R.A.P.

1925(b) statement are deemed waived on appeal.7 Pa.R.A.P. 1925(b)(4)(vii).

       Here, Appellant has improperly raised new theories of relief for the first

time on appeal, and thus, Appellant’s weight of the evidence claim based upon

these theories is waived.         Simply put, since Appellant failed to raise his

particular new weight theories before the trial court and the trial court did not,

therefore, review the new theories and weigh the evidence according to it,

there is no discretion for this Court to review. See Konias, supra.

       In his third and fourth issues, Appellant contends the prosecutor

committed prosecutorial misconduct during closing arguments to the jury.

       Initially, we note that in reviewing a claim of improper prosecutorial

comments, our standard of review “is whether the trial court abused its

discretion.”    Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 198

(1997). Additionally,

       [W]ith specific reference to a claim of prosecutorial misconduct in
       a closing statement, it is well settled that any challenged
       prosecutorial comment must not be viewed in isolation, but rather
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trial court’s exercise of discretion in resolving the challenge. This type of
review is necessitated by the fact that the trial judge heard and saw the
evidence presented.”) (citations, quotation marks, and quotations omitted)).

7 We note that, even if Appellant had raised the specific weight claim for the
first time in his Rule 1925(b) statement, it would not have “undone” the waiver
resulting from Appellant’s failure to raise the specific weight claim in
accordance with Pa.R.Crim.P. 607. Commonwealth v. Ali, 608 Pa. 71, 10
A.3d 282 (2010).

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      must be considered in the context in which it was offered. Our
      review of a prosecutor’s comment and an allegation of
      prosecutorial misconduct requires us to evaluate whether a
      defendant received a fair trial, not a perfect trial. Thus, it is well
      settled that statements made by the prosecutor to the jury during
      closing argument will not form the basis for granting a new trial
      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 they could not weigh the evidence
      objectively and render a true verdict. The appellate courts have
      recognized that not every unwise remark by an attorney amounts
      to misconduct or warrants the grant of a new trial. Additionally,
      like the defense, the prosecution is accorded reasonable latitude,
      may employ oratorical flair in arguing its version of the case to
      the jury, and may advance arguments supported by the evidence
      or use inferences that can reasonably be derived therefrom.
      Moreover, the prosecutor is permitted to fairly respond to points
      made in the defense’s closing, and therefore, a proper
      examination of a prosecutor’s comments in closing requires review
      of the arguments advanced by the defense in summation.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016) (quotation

marks, quotation, and citations omitted).

      With regard to his prosecutorial misconduct claims, Appellant first

alleges “[t]he prosecutor, showing no shame, went right for the sympathy

card.” Appellant’s Brief at 13. In this vein, Appellant points to the following

relevant excerpt from the prosecutor’s closing argument:

      [PROSECUTOR]: Every one of us, every one of us, [Appellant],
      [defense counsel], all of us have the right to tomorrow, the chance
      to better ourselves. He stole those days from Ricky Rodriguez.
      All of them. But there is a flip side to that coin. Because tomorrow
      will go on, and tomorrow, Jose Alvarado, Ricky Rodriguez’s friends
      and family, they will wake up, but they will never be right.
            Ladies and gentlemen, losing someone that you love cuts a
      hole in you that will never be filled.
            [DEFENSE COUNSEL]: Objection, Your Honor.



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                THE COURT: Sustained. The jury needs to focus on the
          evidence and not sympathy.
          [PROSECUTOR]: He stole all of those days.
               [DEFENSE COUNSEL]: Again, I would object, Your Honor.
               THE COURT: Sustained.

N.T., 1/26/17, at 54.

          Appellant   contends     the   prosecutor’s   statements   were   highly

inflammatory such that a new trial is warranted. We conclude Appellant is not

entitled to relief.

          As the aforementioned reveals, Appellant lodged two objections to the

prosecutor’s statements relating to sympathy for the decedent and his family.

The trial court sustained both objections.        Appellant requested no further

relief.    Specifically he did not request a mistrial or a curative instruction.

Accordingly, as the trial court suggests in its Rule 1925(a) opinion, Appellant

waived his claim that he is entitled to a new trial with regard to the excerpt

from the prosecutor’s closing argument set forth supra.          See Trial Court

Opinion, filed 8/17/17, at 4;8 Commonwealth v. Manley, 985 A.2d 256

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8 In any event, even if not waived, we conclude Appellant is not entitled to a
new trial on this basis. During its charge to the jury, the trial court gave the
following relevant instruction:
       As you go along, you should use the law that I give you and reach
       your decision as to whether the defendant is guilty or not guilty of
       each of the charges brought against him. Do not, of course, base
       your decision on sympathy for or prejudice against the defendant
       or the crimes that have been charged here or the witnesses.
N.T., 1/26/17, at 58. Accordingly, the trial court cured any possible prejudice
resulting from the prosecutor’s remarks so as not to require a new trial. See
Commonwealth v. Moretti, 516 A.2d 1222 (Pa.Super. 1986).

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(Pa.Super. 2009) (holding that where the trial court has sustained the

objection, even where a defendant objects to specific conduct, the failure to

request a remedy such as a mistrial or curative instruction is sufficient to

constitute waiver).

      Appellant next alleges the prosecutor improperly indicated defense

counsel impugned the prosecutor’s integrity and, then, the prosecutor

improperly impugned defense counsel’s integrity.        Appellant contends the

prosecutor’s statements took the jury’s focus away from the evidence.         In

support of his argument, Appellant points to the following relevant excerpt

from the prosecutor’s closing argument:

      [PROSECUTOR]: And I want to talk a little bit because [defense
      counsel] brought this up, and it actually makes me angry, because
      he’s impugning my integrity as well as the detectives. Ms. Davis,
      when we spoke to her and you heard Detective Bartol say, we
      looked for her, we tried to show her a photo array to see if she
      could make an identification, and we could never find her.
      Remember, at that point she told you she was willing to do
      anything to find heroin. She was taking trains all over town, she
      was in a bad place. The detectives tried to find her and show her
      an array, and they couldn’t. She came down last week, and
      Detective Marano told you that she said, because of the time
      lapse, since then, I really couldn’t say that I could identify him. I
      couldn’t. And that was the end of it. Ladies and gentlemen, I
      didn’t ask her if she could identify him because that’s against the
      rules, and [defense counsel] knows it.
            [DEFENSE COUNSEL]: Objection, Your Honor.             I would
      object to that.
            THE COURT: I’m going to sustain the objection to that.
            [PROSECUTOR]: May I say it’s against the rules?
            [DEFENSE COUNSEL]: No, Judge.
            [PROSECUTOR]: Then how is he allowed--


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             THE COURT: Hold on. Hold on. Don’t argue in front of the
       jury. Let me see you at sidebar.
              Just bear with us a moment.
                                               ---
       (Whereupon a discussion was held at sidebar.)

N.T., 1/26/17, at 44-45. Thereafter, the prosecutor did not argue to the jury

that asking the witness to make an identification was “against the rules” and

instead explained that the witness did not make the identification due to the

passage of time. N.T., 1/26/17, at 46.

       Appellant contends a new trial is warranted due to the prosecutor’s

statements in which he indicated defense counsel impugned the prosecutor’s

character and, then, the prosecutor improperly impugned defense counsel’s

character. As the trial court aptly stated, “At no time did defense counsel

request a curative instruction or move for a mistrial as a result of the

prosecutor’s     statements.”     Trial   Court      Opinion,   filed   8/17/17,   at   6.

Accordingly, as the trial court suggests in its Rule 1925(a) opinion, Appellant

waived his claim that he is entitled to a new trial with regard to the excerpt

from the prosecutor’s closing argument set forth supra.9 See id.; Manley,

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9 In any event, even if not waived, we conclude Appellant is not entitled to a
new trial on this basis. The trial court gave the following relevant instructions
to the jury:
             The first and most important is that you are not bound by
      counsel’s recollection of the evidence. . . .You’re [] not bound by
      counsel’s perspective of what the evidence in the case establishes.
      And you’re not limited in your consideration of the evidence to the



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supra (holding that where the trial court has sustained the objection, even

where a defendant objects to specific conduct, the failure to request a remedy

such as a mistrial or curative instruction is sufficient to constitute waiver).

       For all of the foregoing reasons, we affirm.

       Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/18




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       particular evidence the lawyers decide to review with you in their
       closings.
                                       ***
              Certainly, don’t base your decision on which attorney you
       think made the better speech or on which attorney you happen
       to like better.
N.T., 1/26/17, at 7, 58. Accordingly, the trial court cured any possible
prejudice resulting from the prosecutor’s remarks so as not to require a new
trial. See Moretti, supra.

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