J-S33009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    YALINA J. SANCHEZ                          :
                                               :
                       Appellant               :   No. 1117 EDA 2016

           Appeal from the Judgment of Sentence November 24, 2015
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011989-2014,
                            CP-51-CR-0011990-2014


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 31, 2018

        Yalina J. Sanchez appeals from the judgment of sentence at Docket

Number CP-51-CR-0011989-2014 of 50 to 100 years of confinement, imposed

after a jury convicted her of criminal attempt – murder; attempt, solicitation,

and conspiracy to commit murder; aggravated assault; and robbery – inflict

serious bodily injury.1 Sanchez also appeals from the judgment of sentence

of life without the possibility of parole at Docket Number CP-51-CR-0011990-

2014, imposed after a jury convicted her of one count each of burglary and

possessing instrument of crime with intent to employ it criminally and two

____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 901(a), 1102(c), 2702(a), and 3701(a)(1)(i), respectively.
J-S33009-18


counts each of murder; attempt, solicitation, and conspiracy to commit

murder; and robbery – inflict serious bodily injury.2 We affirm.

       The facts for both dockets are as follows:

       On December 22, 2012, Yalina Sanchez, acting with her cousin
       Marco Sanchez and a man, known as Damir, burglarized the
       apartment of Anthony Fletcher, Jr. and robbed the three
       occupants at gunpoint. [Yalina Sanchez] and Damir killed both
       Mr. Fletcher and Dwayne “Shawn” Page and also attempted to kill
       a third victim, Eddie Dordies, during the commission of the
       burglary and robberies. The victims all suffered multiple gunshot
       wounds.

       Marco Sanchez began having conversations with Dwayne Page
       around December 15, 2012 about purchasing marijuana. N.T.,
       11/18/2015, at 132. On the day of his initial conversation with
       Dwayne Page, [Yalina Sanchez] asked Marco Sanchez if he knew
       anyone from whom they could purchase marijuana. Id. at 133-
       34. On December 22, 2012, Marco Sanchez set up a purchase of
       two pounds of marijuana from Dwayne Page, to be effectuated
       that evening. Id. 135-36. Later that day, between the hours of
       two and five o’clock, [Yalina Sanchez] told Marco Sanchez that
       they would rob the victims of the marijuana and he agreed to the
       plan. Id. at 137.

       On the evening of December 22, 2012, Messrs. Fletcher, Page,
       and Dordies gathered at the Fletcher residence, 4618 Chester
       Avenue, Apartment 304, Philadelphia, to effectuate the sale of two
       pounds of marijuana to Marco Sanchez. Id. at 6-15, 131. The
       plan called for Marco Sanchez to take delivery of the marijuana at
       Mr. Fletcher’s apartment. Before his arrival, Marco Sanchez
       advised the sellers that he would be bringing an additional person
       with him. Id. at 14. Marco Sanchez, a Hispanic male, entered
       the apartment with Damir, an African-American male. Id. at 16.
       Shortly thereafter, [Yalina Sanchez] arrived. The victims did not
       know that [Yalina Sanchez] and Marco Sanchez were cousins, and
       she was introduced to them as his girlfriend. Id. at 17-18.


____________________________________________


2  18 Pa.C.S. §§ 3502(a)(1), 907(a), 2502, 1102(c), and 3701(a)(1)(i),
respectively.

                                           -2-
J-S33009-18


     Once [Yalina Sanchez] and her accomplices were inside
     Mr. Fletcher’s small apartment, the marijuana was displayed and
     the parties discussed the drug deal. Id. at 18-20, 24, 28-29, 149-
     50. Messrs. Dordies and Page were standing in the kitchen with
     Marco Sanchez      and    Damir,    while    Mr.    Fletcher   and
     [Yalina Sanchez] were in the living room. Id. [Yalina Sanchez]
     was unfamiliar to Mr. Dordies, and he became curious about her.
     In order to closely observe her, he walked from the kitchen to the
     bathroom and passed [Yalina Sanchez] along the way. Id. at 20-
     21. As he returned to the kitchen from the bathroom, Mr. Dordies
     was shot in his face by Damir. Id. at 19-20. [Yalina Sanchez]
     and Damir then shot Messrs. Fletcher and Page. Id. 21-22. Mr.
     Fletcher was shot multiple times in the living room as he
     attempted to escape. Id. at 21-22, 24-25, 154-55. Messrs. Page
     and Dordies were shot as they stood in the kitchen. Id. at 19,
     22-23, 25, 155-56.

     Mr. Dordies, who was still standing after being shot in his face,
     was shot again by Damir. Id. at 22. This bullet struck him in his
     shoulder and he fell to the floor. Id. Damir then fired three more
     times, striking Mr. Dordies twice.         Id.     At this point,
     Marco Sanchez and [Yalina Sanchez] fled the scene with much of
     the marijuana. Id. at 25-26 [(Dordies’s testimony)]. Damir’s
     firearm locked and he moved to pistolwhip Mr. Dordies, who
     fought back. Id. at 23. Damir then fled. Id. Mr. Dordies found
     a phone and called 911 operators. Id. at 23, 27-28.

     Around 10:20 p.m. on December 22, 2012, police officers received
     a report of a person with a gun and two male victims shot inside
     Apartment 304 at 4618 Chester Avenue, Philadelphia. N.T.,
     11/17/2015, at 15-16. Upon arrival, officers were granted entry
     by a resident. Id. at 15-18. Once inside the building, the officers
     attempted to enter Apartment 304. They noticed a bullet hole and
     fresh blood on the door. As one officer kicked the door in, it
     pushed back because 33 year-old Anthony Fletcher’s dead body
     lay behind it. Id. at 18-20.

     Dr. Samuel Gulino, the Chief Medical Examiner of Philadelphia
     testified that Mr. Fletcher was shot three times on the night of
     December 22, 2012. Id. at 170. One bullet went through the
     back of his head and, into his brain. Id. A second bullet hit the
     right back section of his scalp. Id. at 172. A third bullet struck
     Mr. Fletcher in the central part of his back. Id. at 173. The two
     different caliber bullets recovered from Mr. Fletcher’s body
     showed he was shot by two different firearms. Id. at 175.

                                    -3-
J-S33009-18


     Dr. Gulino testified, to a reasonable degree of medical certainty,
     that Mr. Fletcher’s cause of death was multiple gunshot wounds
     and that the manner of his death was homicide. Id. at 170, 175-
     76, 183-84.

     Inside the apartment, officers found 29 year-old Dwayne Page
     “laying on his back . . . shot in his face area.” Although Mr. Page’s
     eyes were shut and he was unresponsive, “[h]e was actually
     breathing and . . . gargling.” Id. 20-21, 64. “Mr. Page . . .
     sounded like he was choking on his own blood.” Id. at 49.
     Officers took Mr. Page out of the apartment building on a stretcher
     and transported him to the Hospital of the University of
     Pennsylvania. Id. 64-65. Doctors pronounced Mr. Page brain-
     dead inside the operating room on the evening of December 23,
     2012. Id. at 67, 176-77.

     Dr. Gulino testified that Mr. Page was shot three or four times.
     Id. at 177. One bullet went through the right side of his neck and
     up into his brain. Id. at 178-79. Another bullet went through his
     face, into his upper jaw, and down and out the roof of his mouth,
     becoming lodged in right front side of his neck. Id. at 179-80. A
     third bullet went into his abdominal cavity and became lodged
     there. Id. at 180-81. A fourth bullet went through his right
     shoulder; this may have been a reentry wound from the bullet
     that went through the right side of his neck and up into his brain.
     Id. at 180. The fact that two different caliber bullets were
     recovered from Mr. Page’s body shows he was shot by two
     different firearms. Id. at 181-82. Dr. Gulino also testified, to a
     reasonable degree of scientific and medical certainty, that the
     cause of Mr. Page’s death was multiple gunshot wounds and that
     the manner of his death was homicide. Id. at 177, 183-84.

     The Police Department’s Firearms Identification Unit and Crime
     Scene Unit provided additional ballistics evidence, including the
     caliber of firearms used to kill Anthony Fletcher and Dwayne Page.
     Crime Scene Unit Officer Lamont Fox testified that recovered both
     .380 caliber and .25 caliber fired cartridge casings inside the
     apartment. Id. at 128-29. His unit recovered seven .380
     automatic fired cartridge casings and six .25 automatic fired
     cartridge casings. Id. at 129. Five .25 fired cartridge casings and
     two .380 fired cartridge casings were recovered from the living
     room. Id. at 131. One more .25 fired cartridge casing was
     recovered from the entry way between the kitchen and the living
     room. Four .380 fired cartridge casings were found in the kitchen
     and one was in vestibule and bathroom area. Id. Officer

                                     -4-
J-S33009-18


     Norman DeFields of the Firearms Identification Unit testified that
     all six .25 fired cartridge casings came from the same firearm. Id.
     at 199-200. He also testified that all seven .380 fired cartridge
     casings came from the same firearm. Id. at 201.

     The first officers on the scene found the floor of the apartment
     littered with loose marijuana and observed a digital scale on the
     kitchen table. Id. at 24, 50. Meanwhile, as more officers
     gathered outside the building, Eddie Dordies exited the apartment
     by way of a fire escape so as not to reencounter [Yalina Sanchez]
     and her accomplices. Id. at 28-29, 76. Mr. Dordies emerged
     from a small alleyway next to the building and approached the
     group of officers, including Officer Daniel Mitchell. Id. at 77. He
     told Officer Mitchell that he and his friends had been shot inside
     one of the apartments. Officer Mitchell observed that Mr. Dordies
     had been shot in the face and chest. Id. at 78. However,
     Mr. Dordies was unarmed, and no firearm was found in the small
     alleyway he used to escape the perpetrators.           Id. at 103.
     Mr. Dordies stated that the perpetrators were an African-American
     male, a Hispanic male, and an African-American female with a
     “caramel complexion[,] [a]pproximately 23 to 27 years-old with a
     gray hoody and her hair pinned to her head.” Id. at 79, 81, 84-
     85.

                                    ....

     [During trial,] Marco Sanchez . . . testified that he and
     [Yalina Sanchez] planned the robbery.            Id. at 135-40.
     Additionally, Marco Sanchez testified that he and [Yalina Sanchez]
     escaped the apartment after the robbery and shooting and
     retreated to [Yalina Sanchez]’s residence with the stolen
     marijuana. Id. at 157-58. As they escaped, [Yalina Sanchez] told
     Marco Sanchez to “chill, chill.” Id. at 157. Once the two reached
     [Yalina Sanchez]’s residence, [she] retired to her living room . . .
     while Marco sat on her couch. Id. at 158.

Trial Court Opinion, 5/15/2017, at 2-7, 23.

     Prior to closing argument, the trial court instructed the jury:

     You must keep in mind . . . that you are not bound by the
     attorneys’ recollection of the evidence.      Indeed, it is your
     recollection of the evidence and yours alone which must guide you
     during your deliberations.


                                    -5-
J-S33009-18


       If there is a discrepancy between an attorney’s recollection and
       your own, you are bound by your recollection of the evidence, nor
       are you limited, ladies and gentlemen of the jury, in your
       consideration of the evidence to that which is mentioned by these
       attorneys.

N.T., 11/19/2015, at 78.

       During closing argument, the Commonwealth made the following

statement:

       I will sit down in two minutes, but as I thought of what I was going
       to say to you all, this sort of horrific and disgusting imagine [sic]
       was going through my head, and it’s not even that Anthony
       Fletcher lay dead in his living room floor while Shawn was carried
       to [the Hospital of the] U[niversity of] Penn[sylvania]. That’s not
       the image I’m talking about.

       It’s that after this happened, after these two young men lost their
       lives on the streets of Philadelphia, the defendant goes home and
       sat on the couch and smoked the weed like who cares while these
       families had to get that phone call.

Id. at 142-143. Yalina Sanchez objected to these comments and moved for

a mistrial, but the trial court denied the motion. Id. at 144, 148.

       A jury convicted Yalina Sanchez on November 24, 2015, and she was

sentenced that same day. Trial Court Opinion, 5/15/2017, at 1. This appeal

followed.3

       Yalina Sanchez now raises the following issue on appeal:

       Did the [trial] court abuse its discretion by denying
       [Yalina Sanchez]’s motion for a mistrial where the prosecutor
       made up evidence that [Yalina Sanchez] was smoking stolen
____________________________________________


3  On April 6, 2016, the trial court ordered Yalina Sanchez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the date of the order. On April 27, 2016, Yalina Sanchez
complied. On May 15, 2017, the trial court filed a responsive opinion pursuant
to Pa.R.A.P. 1925(a).

                                           -6-
J-S33009-18


       marijuana following the crimes while the victims’ families learned
       about the deaths of their loved ones?

Yalina Sanchez’s Brief at 5.

       Yalina Sanchez contends that “the prosecutor committed misconduct

during closing argument by referring [to] the existence of evidence without

any basis whatsoever in the record.” Id. at 10. Yalina Sanchez challenges

the Commonwealth’s statement about the image “going through” its “head”

that Yalina Sanchez was sitting on the couch smoking marijuana while the

victims’ families received telephone calls about their deaths. Id. (citing N.T.,

11/19/2015, at 142-143). Yalina Sanchez maintains that “[t]his argument

concerning [her] supposed post-incident conduct had no basis in the record.”

Id.

       “Our review of a trial court’s denial of a motion for a mistrial is limited

to    determining    whether     the   trial   court   abused    its   discretion.”

Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016) (citation and

internal quotation marks omitted), cert. denied, 137 S. Ct. 1202 (2017).

       In reviewing an assertion of prosecutorial misconduct, our inquiry
       centers on whether the defendant was deprived of a fair trial, not
       deprived of a perfect trial. It is well-settled that a prosecutor must
       be free to present his or her arguments with logical force and
       vigor. Comments grounded upon the evidence or reasonable
       inferences therefrom are not objectionable, nor are comments
       that constitute oratorical flair. Furthermore, the prosecution must
       be permitted to respond to defense counsel’s arguments.
       Consequently, this Court has permitted vigorous prosecutorial
       advocacy provided that there is a reasonable basis in the record
       for the prosecutor’s comments. A prosecutor’s remarks do not
       constitute reversible error unless their unavoidable effect would
       prejudice the jurors, forming in their minds fixed bias and hostility
       toward the defendant so that they could not weigh the evidence


                                       -7-
J-S33009-18


      objectively and render a true verdict. Finally, we review the
      allegedly improper remarks in the context of the closing argument
      as a whole.

Commonwealth v. Sneed, 45 A.3d 1096, 1109–1110 (Pa. 2012) (quotation

marks, brackets, and citations omitted).

      “A mistrial is not necessary where cautionary instructions are adequate

to overcome prejudice.”    Commonwealth v. Chamberlain, 30 A.3d 381,

422 (Pa. 2011). “[T]he jury is presumed to follow the court’s instructions.”

Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa. 2014).

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

applicable   law,   and   the   well-reasoned   opinion   of   the   Honorable

Sandy L.V. Byrd, we conclude that Yalina Sanchez’s challenge merits no relief.

We agree with the trial court that the Commonwealth’s “reference to the

victims’ families was not impermissible and was exceedingly brief[.]” Trial

Court Opinion, 5/15/2017, at 22.      “[R]eview[ing] the allegedly improper

remarks in the context of the closing argument as a whole[,]” we are also

unconvinced that three sentences during the Commonwealth’s lengthy closing

argument could have “prejudice[d] the jurors” to such an extent that they

“form[ed] in their minds fixed bias and hostility toward [Yalina Sanchez] so

that they could not weigh the evidence objectively and render a true verdict.”

Sneed, 45 A.3d at 1110; see also Trial Court Opinion, 5/15/2017, at 23.

      Additionally, the Commonwealth’s comment had a “reasonable basis in

the record[.]” Sneed, 45 A.3d at 1110. Dordies testified that Marco and

Yalina Sanchez fled from Fletcher’s residence with marijuana.        Trial Court

                                     -8-
J-S33009-18


Opinion, 5/15/2017, at 3, citing N.T., 11/18/2015, at 25-26. Marco Sanchez

testified he and Yalina Sanchez planned the robbery with the aim of stealing

marijuana from the victims, and that, immediately after committing the

crimes, he and Yalina Sanchez went to her living room with the marijuana,

where she told him to “chill,” before entering her living room, while he sat on

her couch. Id. at 2, 6-7, 23 citing N.T., 11/18/2015, at 135-140, 157-158.

Accordingly, the Commonwealth’s comments about Yalina Sanchez going

directly home with the marijuana stolen from the victims after shooting them

were “grounded upon the evidence,” and, although Marco Sanchez did not

explicitly testify that Yalina Sanchez smoked the marijuana in her living room,

we concur with the trial court that this addition “constitute[d]” permissible

“oratorical flair,” Sneed, 45 A.3d at 1110, in order to convey Yalina Sanchez’s

“relaxed attitude about the incident.” Trial Court Opinion, 5/15/2017, at 23.4

       Furthermore, the trial court instructed the jury that statements by

attorneys do not constitute evidence.          N.T., 11/19/2015, at 78.   As noted

above, a “jury is presumed to follow the court’s instructions.” See Jemison,

98 A.3d at 1263. The mistrial requested by Yalina Sanchez was not necessary,

because this cautionary instruction was given, thereby adequately overcoming


____________________________________________


4   Also, as the trial court notes, the Commonwealth “did not state that
[Yalina Sanchez] said ‘who cares.’ The prosecutor [merely] said he had an
image in his head[.]”       Trial Court Opinion, 5/15/2017, at 23.    The
Commonwealth’s rhetoric was therefore again intended to convey
Yalina Sanchez’s apathy and composure after the murders and not meant to
be accepted as a direct quotation.

                                           -9-
J-S33009-18


any potential prejudice.     See Chamberlain, 30 A.3d at 422; N.T.,

11/19/2015, at 144.

     For these reasons, the trial court did not abuse its discretion by denying

Yalina Sanchez’s motion for a mistrial based upon prosecutorial misconduct.

See Cash, 137 A.3d at 1273. We therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/18




                                   - 10 -
