J-S14005-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
     v.                                   :
                                          :
LAMAR DOUGLAS CLARK,                      :
                                          :
              Appellant                   :       No. 1289 MDA 2016

            Appeal from the Judgment of Sentence July 7, 2016
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005760-2014

BEFORE:    GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 25, 2017

     I join the portions of the Majority Memorandum regarding sufficiency

of the evidence and jury instructions.   I part company with the Majority’s

holding that the closing argument of the prosecutor did not cross the line

and constitute improper bolstering.

     During his closing argument, the prosecutor stated:

     Veldresha Lucas, defense counsel referenced the deals,
     promises. If you have heard about any promises – if there were
     any promises that have been made to any of these witnesses,
     you would have heard about them, because of this process,
     discovery, because of disclosure, because I am an officer of the
     [c]ourt, first and foremost. I have an obligation to disclose
     everything. Any [sic] there were no promises made. Any
     insinuation that there are promises made that you haven’t heard
     about is basically an insinuation that I am corrupt. And I assure
     you, after 21 years of practicing law, I am not corrupt. No
     promises have been made to anybody in any way, shape or
     form.

N.T., 5/2/2016, at 70-71.



*Retired Senior Judge assigned to the Superior Court.
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        The   Majority   holds   that    the   “prosecutor’s   remarks   simply

demonstrated that Commonwealth would have disclosed any promise made

to Ms. Lucas in exchange for her testimony.” Majority Memorandum at 6. It

further holds that the comments were “directly responsive to defense

counsel’s comments about Ms. Lucas’ pending charges and possible benefits

she might gain as Commonwealth witness”1,2 and aspects of the statement



1
    Defense counsel argued as follows:

        Ms. Lucas has a false identification to law enforcement
        authorities conviction from on July 28th of 2008. Perhaps more
        important is what is pending. What does she have pending as of
        the time of her testimony last week? Case number one, which is
        continued on three separate occasions in … June and October of
        last year [and] January of this year, is the aggravated assault,
        graded as a felony of the second and a criminal mischief case.
        Do you believe she has been promised anything? Do you believe
        that she was being evaluated? Do you believe that there are
        certain stressors associated with having a pending case and then
        being asked by the same organization, the District Attorney’s
        Office to testify in a case?

        You, only you, can decide whether there is any bias or prejudice
        in favor of the Commonwealth and against her brother.… You
        have to decide whether because of this pending case, whether or
        not the case was continued, whether she is or one day will get
        consideration if that case is resolved. It is only allegations at
        this point, if that case is resolved in the form of a negotiated
        plea agreement versus a trial.

        Her second case is known as access device fraud.… That case is
        also pending. Once again, it is also pending with the District
        Attorney’s Office, they are the prosecution arm in this County.
        They are the prosecutors. So, do you believe there is an
        incentive? Is there any bias? Is there any prejudice with
        respect to [Ms. Lucas], when she has these two open cases and
        she changes her statement from the beginning of April of 2016
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“were mere oratorical flourish and did not improperly bolster Ms. Lucas’

credibility.” Id. The Majority concludes that under these circumstances, the

prosecutor’s reference to lack of a deal with Ms. Lucas did not constitute

prosecutorial misconduct. Id.

       “It is well settled that ‘the district attorney must limit [his] remarks

to facts in evidence and legitimate inferences therefrom.’” Commonwealth

v. Jubilee, 589 A.2d 1112, 1115 (Pa. Super. 1991) (citations omitted).

“Prosecutorial conduct in argument is a matter of special concern because of

the possibility that the jury will give special weight to the prosecutor's

arguments, not only because of the prestige associated with his office, but

also because of the fact-finding facilities presumably available to him.”

Commonwealth v. Cherry, 378 A.2d 800, 804 (Pa. 1977). “[A] prosecutor


     to the day before the testimony[?] Why? Is it because she has
     pending cases and the District Attorney’s Office is in charge of
     the prosecution?

     Cases get continued for a lot of reasons. The access device
     fraud case was continued once. The aggravated assault case
     was continued three or four times. But I will tell you that when
     a defendant is a witness for the Commonwealth in a case, that
     also is a reason that a case can be continued.

N.T., 5/2/2016, at 37-39.

2
  I would also note that although defense counsel stressed the inconsistency
between a statement Ms. Lucas gave to the defense investigator prior to trial
and Ms. Lucas’ trial testimony, see N.T., 5/2/2016, at 35, the jury also had
before it her original statement that she gave police in November 2014,
which was consistent with her trial testimony, and her testimony that she
lied to the defense investigator to help her brother. See N.T., 5/2/2106, at
84.
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commits improper bolstering when it places the government's prestige

behind    a    witness    through   personal    assurances    as    to    the   witness's

truthfulness, and when it suggests that information not before the jury

supports the witness's testimony.” Commonwealth v. Reid, 99 A.3d 427,

447 (Pa. 2014). I do not dispute that a prosecutor may fairly respond to a

defense       counsel’s   insinuation   that   there    was   a    deal   between    the

Commonwealth and the Commonwealth’s witness not disclosed by the

Commonwealth.         See Commonwealth v. Strong, 563 A.2d 479, 483-84

(Pa. 1989) (holding that the prosecutor’s statement “I tell you ladies and

gentlemen, there were absolutely no promises made to him” was a proper

and necessary retort to defense counsel’s attack on the credibility of the

prosecution’s witness). Here, however, the prosecutor’s comments “went far

beyond fair commentary on the defense argument” and “were rife with

excessive hyperbole that went far beyond permissible oratorical flair.”

Commonwealth v. Culver, 51 A.3d 866, 877 (Pa. Super. 2012).                          The

prosecutor      did not just     deny that      there   was a deal between the

Commonwealth and Ms. Lucas or point to Ms. Lucas’ testimony denying she

made a deal.          Here, the prosecutor attempted to bolster Ms. Lucas’

credibility by vouching for his own credibility, stressing his role as a

prosecutor and essentially testifying to the jury that they should believe him

(and therefore Ms. Lucas) because he is an officer of the court, not corrupt,

and therefore honest.

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      Nevertheless, at the conclusion of the trial, the trial court instructed

the jury that they may not consider “the opinions of the attorneys with

respect to any of the witness [sic] or testimony” and informed the jury that

they are “the sole and exclusive judges of the facts and how you weigh all of

the evidence and the testimony is up to you.” N.T., 5/2/2016, at 99. The

trial court further instructed the jury that

      there was testimony presented about people with pending
      criminal charges and also, that a witness came forward with
      information at the time that the witness had pending criminal
      charges. It is entirely up to you what weight you give this
      testimony. You may consider that, along with all of the other
      factors in weighing the credibility and reliability of the testimony
      of those witnesses.

N.T., 5/2/2016, at 105-06.3

      We      presume    the    jury   follows   the   trial   court's    instructions.

Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. 2012). I would hold

that “the trial court's cautionary instruction was sufficient to overcome any

potential   prejudice    the   prosecutor's    statement   may     have    had   upon

Appellant.”     Id.     Any error in not granting a mistrial regarding the

prosecutor’s remarks was thus harmless.            Therefore, I would affirm the

judgment of sentence.




3
  This instruction also included reference to a defense witness who had
pending charges and came forward after he was incarcerated. See Trial
Court Opinion, 10/3/2016, at 13.


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