J-S14028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARL LEONARD VARNER

                            Appellant                  No. 208 MDA 2015


            Appeal from the Judgment of Sentence January 7, 2015
               In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0002100-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 26, 2016

        Appellant, Carl Leonard Varner, appeals from the judgment of

sentence entered after a jury convicted him of first degree murder and 25

associated charges. Varner challenges the sufficiency of the evidence

supporting his murder conviction, the trial court’s refusal to appoint an

expert witness for him, and the trial court’s failure to issue a curative jury

instruction after the prosecutor accused him of implying that police had

planted evidence in his home. After careful review, we affirm.

        We glean the following factual and procedural history of this case from

the certified record. During the evening of October 22, 2012, two men forced

their way into a residence in Chambersburg by brandishing firearms. This
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*
    Former Justice specially assigned to the Superior Court.
J-S14028-16


residence was home to at least eight men, six of whom were present at the

time. None of those present in the home at the time of the break-in spoke

English.

      After breaking in, the two assailants demanded to see “El Gallo,”

meaning “the rooster.” Finding no satisfaction from the victims’ responses,

the two men separated the victims into different bedrooms in the home.

Both assailants proceeded to rob the victims. One assailant, later identified

as Jason Shauf, fired a shotgun into the ceiling when his demands to see “El

Gallo” were not met. The other assailant, after robbing Hugo Olguin and

Augustin Marquez, shot Olguin in the neck with .22 caliber revolver,

ultimately resulting in Olguin’s death.

      After an investigation, police arrested Shauf and Varner. Pursuant to a

search warrant, police found a .22 revolver and a .410 shotgun in the

basement of Varner’s residence.

      At trial, several of the victims identified Varner as the man who shot

Olguin, as did Shauf. After the jury convicted Varner on 26 charges, the trial

court sentenced him to a life sentence plus 44 to 88 years of incarceration.

This timely appeal followed.

      Varner first argues that the evidence presented at trial was insufficient

to support his conviction for first-degree murder. However, a close review of

Varner’s argument indicates that he is challenging the sufficiency of the

evidence to establish his identity as the shooter, not the sufficiency to


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support any of the elements of the crime of homicide. We therefore will

focus our analysis on the overarching issue of identity.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes   charged      is   established   beyond   a   reasonable   doubt.    See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).

      The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence. See id. Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See id.           As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,

584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the

evidence is so weak and inconclusive that as a matter of law no probability

of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d

at 661 (citation omitted).




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      Varner argues that the eyewitness identifications are insufficient to

establish that he was the shooter in the face of evidence that no gunshot

residue was found on him when he was arrested, while gunshot residue was

found on Shauf. However, this argument is properly classified as a weight of

the evidence claim, as it asks us to re-weigh the evidence presented to the

jury. Even assuming its validity under a sufficiency claim, we note that the

Commonwealth presented significant additional evidence to establish that

Varner was the shooter.

      Shauf testified that Varner entered the Chambersburg residence with

him on the night of the crime. See N.T., Trial, 12/15/14, at 132. Varner was

armed when they entered the residence. See id., at 128. After they entered,

Varner brandished his firearm and went upstairs with two people. See id., at

134-136. Shauf then heard two gunshots from upstairs, and Varner

subsequently ran down the stairs. See id., at 136-139. In addition, the

Commonwealth presented evidence that a .22 pistol found wrapped in a

bandana in Varner’s residence was the murder weapon. See N.T., Trial,

12/12/14,    at   21.   This   evidence,    independent   of    the   eyewitness

identifications, was sufficient to identify Varner as the assailant who shot

Olguin. Varner’s first issue on appeal thus merits no relief.

      Next, Varner contends that the trial court erred in denying his pre-trial

motion to appoint an expert on eyewitness testimony to testify for him at

trial. The trial court states that it denied the motion on two grounds. First,


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that it was untimely, and second, that the Commonwealth’s case did not rely

primarily on eyewitness testimony. We agree with the trial court that the

motion was untimely, and furthermore, that Varner has not presented any

good cause for the late filing.

      On October 22, 2014, the trial court held the final pre-trial conference.

At the end of the conference, the court entered a scheduling order. In this

order, the trial court set trial to begin on December 8, 2014. Furthermore,

the trial court ordered that all remaining motions were to be filed before

November 3, 2014. Varner filed his motion to appoint an expert on

eyewitness testimony on November 24, 2014. This was patently untimely,

and a mere two weeks before the scheduled start of trial. Varner makes no

attempt to justify this late filing. We therefore agree with the trial court that

the motion was properly denied as untimely.

      In his final issue on appeal, Varner argues that the trial court erred in

refusing to give a curative instruction regarding the prosecutor’s closing

argument. During trial, the prosecutor questioned Varner about his assertion

that he did not know who had placed the firearms that were found in his

basement. When the prosecutor explicitly asked Varner whether he believed

that the police had placed the firearms, he responded, “[n]ot to be

disrespectful, I have no idea who planted them there. To say the police, why

would I say that?” N.T., Trial, 12/15/14, at 83.




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       During his closing argument, the prosecutor provided the following

description of Varner’s testimony:

       He also said the evidence was planted, he’s been set up. Why is
       he set up? Who planted the evidence? The suggestion by his
       attorney moments ago was that … Shauf set him up, planted the
       evidence there. This criminal mastermind did that.

       I asked him if he’s trying to say police did that. He smiled. I
       hope you remember his look when I said that. He gave a little
       smile and said he’s not dumb enough to say that. He’s dumb
       enough to imply it. That’s what he’s trying to imply. He wouldn’t
       say it because he knew that would look bad. That’s the
       implication.

N.T., Trial, 12/17/14, at 11. And later:

       Worked up about this. Cops planted evidence. I don’t like that. I
       don’t like that suggestion. And I hope you don’t either. I hope it
       doesn’t play. I don’t think it will. That’s desperate. That’s not
       happening here.

Id., at 118.

       Varner subsequently1 requested a curative instruction, asserting that

the prosecutor had argued facts not in evidence when he contended that

Varner had implied that the police had planted evidence. See N.T., Trial,

12/17/14, at 166. We have previously recognized that

       “[n]ot every unwise remark made by an attorney amounts to
       misconduct or warrants the grant of a new trial.”
       Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006).
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1
  Varner objected before the trial court gave the jury its final instructions.
The trial court denied the request for a curative instruction. All parties agree
that this is an accurate statement of the timeline, even though Varner’s
request does not appear in the transcript until after the final instruction was
given to the jury. See N.T., 12/17/14, at 166-167.



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      “Comments by a prosecutor do not constitute reversible error
      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.
      Stokes,     839    A.2d   226,    230    (Pa.    2003),   quoting
      Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).

      Furthermore, according to the Pennsylvania Supreme Court in
      Commonwealth v. Chmiel[, 889 A.2d 501, 543-44 (Pa.
      2005)]:

         In determining whether the prosecutor engaged in
         misconduct, courts must keep in mind that comments
         made by a prosecutor must be examined within the
         context of defense counsel's conduct. It is well settled that
         the prosecutor may fairly respond to points made in the
         defense closing. A remark by a prosecutor, otherwise
         improper, may be appropriate if it is in [fair] response to
         the argument and comment of defense counsel. Moreover,
         prosecutorial misconduct will not be found where
         comments were based on the evidence or proper
         inferences therefrom or were only oratorical flair.

Commonwealth v. Collins, 70 A.3d 1245, 1252-53, appeal denied, 80

A.3d 774 (Pa. 2013). We agree with the Commonwealth and the trial court

that the prosecutor’s argument in this respect, even if assumed to be

inappropriate, did not so prejudice the jury as to prevent it from rendering a

true and fair verdict. Varner’s final issue on appeal therefore merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2016


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