J. S17034/19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                      v.

KYLE AKEEM SANTIAGO,                                  No. 3294 EDA 2017

                           Appellant


           Appeal from the Judgment of Sentence, December 5, 2016,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0004283-2015


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JULY 15, 2019

         Kyle Akeem Santiago appeals from the December 5, 2016 judgment of

sentence entered by the Court of Common Pleas of Lehigh County. After

careful review, we affirm.

         On October 5, 2016, a jury convicted appellant of the following offenses:

possession of a firearm prohibited, firearms not to be carried without a license,

recklessly endangering another person, driving under the influence (general

impairment), and fleeing or attempting to elude a police officer.' The trial

court convicted appellant of the following summary offenses: driving without




'   18    Pa.C.S.A.  6105(a)(1), 6106(a)(1), 2705, and
                      §§                                            75   Pa.C.S.A.
§§ 3802(a)(1) and 3733(a), respectively.
J. S17034/19

a license and driving the wrong way.2 On December 5, 2016, the trial court

sentenced appellant to an aggregate term of 6-13 years' imprisonment.

      Appellant did not file any post -sentence motions, nor did he file a notice

of appeal. On March 3, 2017, appellant filed a petition pursuant to the Post

Conviction Relief Act3 ("PCRA"), seeking to restore his rights to a direct appeal

nunc pro tunc. The PCRA court granted appellant's petition and restored his

direct appellate rights nunc pro tunc on September 28, 2017. Appellant filed

a notice of appeal from the December 5, 2016 judgment of sentence on
October 11, 2017.

      The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 17, 2017.

In the meantime, appellant filed a motion requesting transcripts, which the

trial court granted on October 25, 2017. Appellant filed a motion seeking an

extension of time to file his Rule 1925(b) statement on November 6, 2017, as

his family needed more time to arrange for payment for the transcripts, which

the trial court granted. The trial court granted an additional extension which

was filed on November 28, 2017, ordering appellant to submit a Rule 1925(b)

statement by December 4, 2017. Appellant timely complied.

      On December 6, 2017, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).   Therein, the court noted that while appellant paid the


2 75 Pa.C.S.A. §§ 1501(a) and 3308(b), respectively.

3 See 42 Pa.C.S.A. §§ 9541-9546.

                                      -2
J. S17034/19

required deposit for the trial transcripts, the transcripts were not available to

the trial court.   (Trial court opinion, 12/6/17 at 2-3.) The trial court noted
that this court could dismiss appellant's appeal for failure to secure a copy of

the transcripts pursuant to Pa.R.A.P. 1911(d). (Trial court opinion, 12/6/17

at 3.) In the alternative, the trial court requested that this court remand so

that transcripts could be obtained, appellant could file a supplemental
Rule 1925(b) statement, and that the trial court could file a supplemental
Rule 1925(a) opinion.

      On January 30, 2018, appellant filed with this court a motion for
extension of time to file     a   brief and a request to remand to submit a
supplemental Rule 1925(b) statement.         On February 20, 2018, this court
entered a per curiam order vacating the briefing schedule and remanding to

the trial court so that appellant could file a supplemental Rule 1925(b)
statement and so that the trial court could subsequently file a supplemental

Rule 1925(a) opinion. Appellant failed to file a supplemental Rule 1925(b)

statement.     On April 16, 2018, the trial court filed a supplemental Rule
1925(a) opinion, in which it addressed the three issues raised by appellant in

his original Rule 1925(b) statement.

      Appellant raises the following issues for our review:

             A.     Whether the verdict is against the weight of the
                    evidence and that [appellant] should be granted
                    a new trial[?]

             B.     [] Appellant alleges my [sic] instructions to the
                    jury were in error.


                                       -3
J. S17034/19


             C.    [] Appellant alleges his motion for mistrial was
                   improperly denied. [] Appellant's basis for the
                   motion was based on a comment made by the
                   District Attorney during his closing argument
                   when he referred to a video and stated, "that is
                   the gun flying out of the window.["]

Appellant's brief at 5.

      In his first issue on appeal, appellant "argues that the verdict was
against the weight of the evidence [] where there was a single eyewitness

who lacked credibility who claimed that [appellant] was seen handling a
firearm." (Appellant's brief at 9.)

             [A] weight of the evidence claim must be preserved
             either in a post -sentence motion, by a written motion
             before sentencing, or orally prior to sentencing.
            Pa.R.Crim.P. 607; Commonwealth v. Priest, 18
            A.3d 1235, 1239 (Pa.Super. 2011). Failure to
             properly preserve the claim will result in waiver, even
             if the trial court addresses the issue in its opinion.

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013), quoting Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009), cert. denied sub nom. Sherwood v.
Pennsylvania, 559 U.S. 1111 (2010).

      Based on our review of the record, appellant failed to preserve his
weight of the evidence claim before the trial court in a post -sentence motion,




                                      -4
J. S17034/19

a written motion prior to sentencing, or in an oral motion prior to sentencing.

Accordingly, appellant's weight of the evidence claim is waived on appeal.4

      In his second issue, appellant raises a challenge to the propriety of the

trial court's jury instructions. Specifically, appellant avers that the trial court

erred when it instructed the jury on constructive possession and by so doing,

"improperly introduced facts that were not introduced at trial." (Appellant's

brief at 14.) The Commonwealth contends that appellant failed to object to

the trial court's instruction at trial, thereby waiving the issue on appeal.
(Commonwealth's brief at 11.)

      It is well settled in this Commonwealth that a party must object to the

trial court's jury instruction at trial in order to preserve the issue for appellate

review.   Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014),
appeal denied, 117 A.3d 296 (Pa. 2015), citing Commonwealth v. Spotz,
84 A.3d 294, 318 n.18 (Pa. 2014); Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B).



4 We note that in appellant's brief, despite identifying and framing his first
issue as a weight of the evidence claim, appellant sets forth the rules of law
for the sufficiency of the evidence, while arguing that the Commonwealth
failed to present credible evidence, which attacks the weight of the evidence.
(See appellant's brief at 9-12.) In appeals attacking the sufficiency of the
evidence, an appellant's Rule 1925(b) statement must "state with specificity
the element or elements upon which the appellant alleges that the evidence
was insufficient." Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.
2013), appeal denied, 169 A.3d 565 (Pa. 2017), quoting Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670
(Pa. 2010). Here, appellant did not specify any elements, or even any
charges, upon which he alleges that the evidence was insufficient in his Rule
1925(b) statement. Accordingly, any sufficiency of the evidence claim is
waived on appeal.

                                       -5
J. S17034/19

Our supreme court has further explained that a party must raise a "specific

objection to the charge or an exception to the trial court's ruling on a proposed

point to preserve an issue involving a jury instruction."           Id., quoting
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (citations
omitted).

      The record reflects that appellant did not raise any objection to the trial

court's supplemental instruction to the jury. (See notes of testimony, 10/5/16

at 98-104.) Accordingly, appellant's second issue is waived on appeal.

      In his third and final issue on appeal, appellant argues that the trial
court erred when it denied his motion for a mistrial following comments made

by the Commonwealth during its closing argument.           Specifically, appellant

avers that the Commonwealth argued issues of fact that should have been left

to the jury to decide. (Appellant's brief at 15.)

      When reviewing a trial court's denial of a motion for a mistrial,

particularly in the context of a prosecutor's comments during closing

argument, we are held to the following standard of review:

            Our standard of review for the denial of a motion for
            a mistrial is limited to assessing whether the trial court
            abused its discretion. Commonwealth v. Cash, H
            137 A.3d 1262, [1273] (Pa. [] 2016).            More
            specifically, this Court has provided the following
            standards for reviewing 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 must be
                  considered in the context in which it was


                                      -6
J. S17034/19

               offered. Commonwealth v. Correa, []
               664 A.2d 607 ([Pa.Super.] 1995).           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. Commonwealth v. Rios, []
               721 A.2d 1049 ([Pa.] 1998). 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." Commonwealth v. Fletcher,
               [] 861 A.2d 898, 916 ([Pa.] 2004)
               (quotation and quotation marks omitted).
               The appellate courts have recognized that
               not every unwise remark by an attorney
               amounts to misconduct or warrants the
               grant of a new trial. Commonwealth v.
               Faulkner, [] 595 A.2d 28 ([Pa.] 1991).
               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.
               Commonwealth v. Carson, [] 913 A.2d
               220 ([Pa.] 2006); Commonwealth v.
               Holley, 945 A.2d 241 (Pa.Super. 2008).
               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. Chmiel,
               [] 889 A.2d 501 ([Pa.] 2005).
J. S17034/19

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

Commonwealth v. Scott, 146 A.3d 775, 778-779 (Pa.Super. 2016), appeal

denied, 166 A.3d 1232 (Pa. 2017).

      Here,

              [appellant] alleges his motion for [a] mistrial was
              improperly denied. [Appellant's] basis for the motion
              was   based on a comment made by [the
              Commonwealth] during [its] closing argument when
              [it] referred to a video and stated, "that is the gun
              flying out of the window."



              A   review   ofthe record shows that [the
              Commonwealth's] remark was a legitimate inference
              from the evidence presented. Commonwealth v.
              Hamilton, 546 A.2d 90, 94 (Pa.Super. 1988). It was
              clear from the trial as a whole that the
              Commonwealth's theory was that the gun was thrown
              from [appellant's] vehicle. Moreover, while at times
              the defense stated the item was unknown, at other
              times they appeared to concede it was a gun.

Trial court opinion, 4/16/18 at 2-3 (footnotes and citations to the record
omitted).

     Accordingly, appellant's third issue is without merit.

     Judgment of sentence affirmed.




                                      -8
J. S17034/19



Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 7/15/19




                     _9
