J-S26006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYRRON E. BUFORD                           :
                                               :
                       Appellant               :   No. 3463 EDA 2017

          Appeal from the Judgment of Sentence September 21, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001512-2016


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 29, 2019

        Kyrron E. Buford appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas following his conviction of robbery

with threat of immediate serious injury, see 18 Pa.C.S.A. § 3701, robbery of

a motor vehicle, see 18 Pa.C.S.A. § 3702, conspiracy to commit robbery with

threat of immediate serious injury, see 18 Pa.C.S.A. § 903, receiving stolen

property, see 18 Pa.C.S.A. § 3925, and carrying a firearm without a license,

see 18 Pa.C.S.A. § 6106. The trial court sentenced Buford to not less than

26 months nor more than 52 months of incarceration followed by 48 months

of probation. After a thorough review of the record, we affirm.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      This case began on October 27, 2015, when the victim, a delivery driver,

reported to a Philadelphia police officer that he had been robbed and

carjacked. The victim was able to describe his assailants, but suspects were

not identified on that date. His stolen vehicle was not immediately located.

      The next day, the victim found his car being driven by Buford.           He

recognized it due to specific dents on its surface and sounds that it made. The

victim proceeded to flag down an Upper Darby police officer. Acting on this

information, several police officers attempted to stop the victim’s vehicle.

After a failed effort to mount a curb, Buford struck one of the officers’ vehicles

and came to a stop. Buford was then taken into custody. In the vehicle was

a black handgun and handgun holster.

      The victim testified at Buford’s preliminary hearing, but was unable to

testify at trial. As a result, the victim’s testimony from Buford’s preliminary

hearing was read to the jury. This testimony indicated that the victim tried to

make a food delivery to the ordering address, but two men, wearing hooded

sweatshirts and brandishing guns, ambushed him.

      The Commonwealth also presented evidence that the number used to

place the delivery order referenced West Philadelphia in its username.

Moreover, October 27, 2015 text messages sent from and received by Buford’s

phone established that he was not at his mother’s residence on that date and,

through cell tower data, placed his phone in the area of the robbery. See Trial

Court Opinion, 11/5/18, at 2-5.


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      In this appeal, Buford raises four questions for our review:

      1)   Did the trial court err in admitting text messages containing
      hearsay evidence?

      2)    Did the trial court err in denying Buford’s request for a
      missing evidence charge?

      3)    Did the trial court err in denying Buford’s proposed
      instruction informing the jury that the Commonwealth’s
      transcripts were only a listening tool and that if what the jury
      heard differed from the transcript, it should be guided by what it
      heard?

      4)     Did the trial court err in denying Buford’s request for a
      mistrial in response to improper comments by the Commonwealth
      in closing argument?

See Appellant’s Brief, at 12-17.

      First, Buford contends that it was erroneous for the trial court to permit

the admission of five incoming text messages “purportedly authored by

[Buford’s] mother and an unknown author that were found in a forensic

analysis of [Buford’s] flip phone.” Appellant’s Brief, at 12. Buford asserts that

the Commonwealth, in its closing argument, contended that these messages

were “proof that [Buford] was not home at the time of the crime, i.e. proof of

the matter asserted in [Buford’s] mother’s text.”     Id. Accordingly, Buford

believes he was deprived of his constitutional right to confront the text

declarants as to their states of mind and location at the time the texts were

sent and was instead found guilty, at least in part, due to hearsay evidence.

      As noted by the Commonwealth in its brief, Buford’s challenge is actually

not a challenge to the trial court’s admission of these texts. Rather, it is more


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properly classified as a claim of prosecutorial misconduct during closing

arguments.

     Initially, we note that Buford has not identified where he preserved this

issue at trial through a timely objection. Our review of the record does not

reveal any objection on this issue during the prosecutor’s closing argument.

Accordingly, this issue is waived. See Pa.R.A.P. 302(a).

     Even if we were to reach this issue, we conclude it would merit no relief.

     [A]ny challenged prosecutorial comment must not be viewed in
     isolation, but rather 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.

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

citations and quotation marks omitted).

     Buford highlights the prosecutor’s remark that the texts from Buford’s

mother indicate he was not home at the time they were sent. Even if we were

to assume that Buford correctly characterizes the legal effect of these

remarks, an issue which we explicitly do not reach, he cannot establish that

the remarks had the unavoidable effect of improperly biasing the jury such




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that they could not possibly have weighed the evidence objectively. Buford’s

first issue on appeal merits no relief.

      In his next argument, Buford avers that the trial court should have

provided   the   jury   with   a   “missing   evidence    charge”    because    the

Commonwealth failed to introduce photographs that demonstrated where the

bag containing the gun was located inside the vehicle. According to Buford,

the Commonwealth had a natural interest to produce the photographs if they

were favorable to their position that Buford constructively possessed the gun.

Buford contends that because the Commonwealth did not produce such

photographs, he was entitled to adverse inference instruction.

      “The trial court has wide discretion in fashioning jury instructions.”

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). “The

trial court is not required to give every charge that is requested by the parties

and its refusal to give a requested charge does not require reversal unless the

Appellant was prejudiced by that refusal.” Commonwealth v. Miller, 172

A.3d 632, 645 (Pa. Super. 2017) (citation omitted). “In reviewing a challenge

to the trial court's refusal to give a specific jury instruction, it is the function

of this Court to determine whether the record supports the trial court's

decision.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super.

2014) (citation omitted).




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       Buford requested a charge titled “Failure to Produce Document or Other

Tangible Evidence at Trial.” See Pa. SSJI 3.21B (Crim).1 In order to justify

giving this instruction to the jury: 1) the item must be available to one party

and not the other; 2) the item must contain or show special information

material to the issue; and 3) the item must not be merely cumulative

evidence. See id.

       The trial court found that the Commonwealth did not receive the at-

issue photographs until the night before trial, where they were then

immediately provided to Buford.            In addition, the trial court asserts the

photographs contained evidence that was already admitted or otherwise

available.

       We find that the record supports the trial court’s decision not to provide

the jury with a missing evidence charge. Buford has failed to demonstrate

that the Commonwealth had in its unilateral possession the photographic

evidence for an inordinate amount of time and then failed to disclose the same

to Buford. Obviously, the Commonwealth cannot provide to Buford discovery

that it does not have, and it is uncontroverted that the relevant police

authority did not disclose the photographs to the Commonwealth until the eve

of trial.

____________________________________________


1 We note that “[t]he Suggested Standard Jury Instructions themselves are
not binding and do not alter the discretion afforded trial judges in crafting jury
instructions; rather, as their title suggests, the instructions are guides only.”
Commonwealth v. Simpson, 66 A.3d 254, 274 n. 24 (Pa. 2013) (citation
and quotation marks omitted).

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      Moreover, even after the Commonwealth’s disclosure, Buford did not

seek to admit that evidence. Under these circumstances, we conclude Buford

has failed to establish that the trial court abused its discretion.   Buford’s

second issue on appeal merits no relief.

      Third, Buford proclaims that the court erred when it rejected his

proposed jury instruction on the issue of transcripts of recorded prison phone

calls. During trial, the Commonwealth played the recordings for the jury and

provided written transcripts. Buford proposed that the court instruct the jury

that the transcripts were merely a “listening tool.”    The court refused to

provide Buford’s proposed instruction.

      Our review of this claim must be based on a review of the court’s charge

to the jury as a whole. See Commonwealth v. Montalvo, 986 A.2d 84, 99

(2009). Our task is to determine whether the charge was fair and complete,

not whether any specific “magic words” were included. Id. The trial court is

granted broad discretion in phrasing its instructions. See Commonwealth

v. Gibson, 951 A.2d 1110, 1142 (Pa. 2008). We will reverse only upon a

finding that the court abused its discretion or committed an error of law. See

Commonwealth v. Galvin, 985 A.2d 783, 799 (Pa. 2009).

      Our Supreme Court has concluded that “it is permissible for jurors to

review transcripts of tapes so long as a limiting instruction is issued and the

person responsible for the transcription can be cross-examined with the

opportunity for an alternative transcription to be presented by the defendant.”

Commonwealth v. Bango, 742 A.2d 1070, 1073 (Pa. 1999). While review

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of transcripts are permissible, the jury must understand “that the transcripts

[are] to be used only a guideposts and not as verbatim translations.” Id.

      Here, although the court initially refused Buford’s proposed instruction,

it gave a substantially similar instruction when the jury requested the

opportunity to review the transcripts during deliberations. When the jury was

brought back into the courtroom to listen to the recordings, the court stated:

      We are playing the tape because the tape itself is the most
      important piece of evidence when you are comparing the
      transcript versus what you hear. What you hear on the tape rules
      over what you are reading on the transcript.

N.T., Jury Trial, 5/5/17, at 11-12.

      Buford concedes that the trial court subsequently instructed the jury

that what it heard on the corresponding tape took precedence over what it

was reading on the transcript. See Appellant’s Brief, at 15. However, Buford

claims the subsequent instruction could not cure the alleged error of not

instructing the jury before deliberations began. See id. We disagree.

      As noted previously, we do not require the court to utter magic words.

The charge as a whole, including the instruction before the tapes were played

during jury deliberations, were fair and complete. Importantly, Buford has

not explicitly identified any issue with the transcripts.        Under these

circumstances, we conclude Buford is due no relief on this claim.




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     Fourth, Buford contends that the trial court erred in not declaring a

mistrial when the Commonwealth made improper comments in its closing

argument.

     We have repeatedly endorsed the principle that a defendant is

guaranteed the right to a fair trial, but not a perfect one.      See, e.g.,

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008) (citation

omitted). “Thus, a prosecutor’s remarks do not constitute reversible error

unless their unavoidable effect was to prejudice the jury, forming in their

minds fixed bias and hostility toward the defendant so that they could not

weigh the evidence objectively and render a true verdict.”      Id. (citation

omitted and formatting altered).

     Buford takes issue with two of the Commonwealth’s statements, with

one suggesting that Buford is counting on the jury not to do its job and the

other proclaiming that the jury members have the right to walk down streets

without the fear of being robbed.     See Appellant’s Brief, at 16.    Under

Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009), the Supreme Court

expressed disfavor with encouraging a jury to “send a message” to the

community or criminal justice system, as comments to that effect invite

consideration of extraneous matters. 985 A.2d at 1288 (indicating that simply

uttering anything analogous to imploring a jury to “send a message,” no

matter who is the subject of that phrase, should be put “on the taboo list”).




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Accordingly, given the purported target of the Commonwealth’s statements,

Buford asserts that the trial court violated the fundamental holding of Patton.

      The Commonwealth is allowed to vigorously argue its case as long as its

comments are supported by the evidence or constitute legitimate inferences

arising from the evidence. See Commonwealth v. Smith, 985 A.2d 886,

907 (Pa. 2009). Rhetorical flair is permitted where it accurately reflects the

evidence. See Commonwealth v. Robinson, 877 A.2d 433, 442 (Pa. 2005).

As we have stated, “[a] prosecutor has great discretion during closing

argument.”    Commonwealth v. Brown, 911 A.2d 576, 580 (Pa. Super.

2006).

      The relevant portions of the closing argument are as follows:

      Buford is counting on you to not do your job.

      I represent the Commonwealth, these are our streets. And just
      as I and just as [the victim] and just as you, have the right to
      walk down these streets without the fear of being robbed.

N.T., 5/4/17, at 27-28. Buford insists that the Commonwealth’s statements

suggest to the jury that “society is under attack,” which is improper. However,

the Commonwealth did not use the phrase “send a message,” the operative

words considered in the Patton case.

      Instead, the Commonwealth implicitly referenced evidence that had

been presented throughout the course of the trial.           Specifically, the

Commonwealth invoked audio recordings of Buford wherein he indicated that

he did not believe the victim would testify, that his charges would get thrown


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out, and Buford would “have a laugh” as a result. While the Commonwealth

should refrain from making references to the community through its

invocation of society’s collective right to walk down streets without being

robbed, we also conclude that the Commonwealth’s phrasing in this particular

instance neither rose to the level of a “send a message” decree nor painted

the picture that, in effect, “society is under attack” and that a guilty verdict

would ameliorate that condition.

      As such, we do not find that the Commonwealth’s closing argument

exceeded what could be considered permissible oratorical flair, and Buford has

not established his right to relief on this issue.

      In finding that none of Buford’s issues raised in this appeal warrant any

relief, we affirm his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/19




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