J-A20020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

ANTONIO LEWIS,

                          Appellant                    No. 2758 EDA 2014


              Appeal from the Judgment of Sentence April 28, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001893-2012


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 14, 2015

        Appellant, Antonio Lewis, appeals from the judgment of sentence

entered April 28, 2014, following his conviction by a jury on November 1,

2013,    of   attempted   murder,     aggravated   assault,   robbery,   recklessly

endangering another person (“REAP”), and a firearms violation. We affirm.

        The trial court summarized the facts of the crime as follows:

               On the night of August 12 and into the early morning
        hours of August 13, 2011, Andy Love and his wife Danielle went
        with some friends to visit another friend, “Sonny.” They went to
        3149 Levick Street in Northeast Philadelphia. Andy had also
        brought along his friends Jovon (“Joon”) and Keenan Commarty,
        and some of his wife’s girlfriends.        They sat with Sonny
        reminiscing and drinking, when someone suggested smoking
        marijuana. Around this time, Mr. Love saw three men enter the
        house and begin speaking with Sonny; he believed they were
        supplying the marijuana. One of these men walked up to Mr.
        Love and said: “You look like somebody I know,” but Mr. Love
        insisted he did not know the man. He then pulled out a gun and
        told Mr. Love to hand over all of his money. Mr. Love did not
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     take this seriously at first and laughed. The man said: “It’s not
     a joke,” and shot Mr. Love in the leg. Mr. Love attempted to
     grab the gun from the man and punched him in the face. Then
     he turned to run from the house. While he was running away he
     was shot again. Mr. Love testified that his arms felt like they
     had been paralyzed following the shots from behind.

           At around 1:30 A.M., Officer Michael Smith responded to a
     report of a shooting in the area of 3149 Levick Street. Officer
     Smith was travelling southbound on Frankford Avenue when he
     observed the complainant, Mr. Love, laying in the middle of the
     road. Mr. Love was in and out of consciousness, moaning in
     pain, and bleeding heavily when Officer Smith approached.
     Officer Smith radioed for an ambulance and secured the scene.
     Two men approached the officer and said they were present at
     the time of the shooting. The first witness, who was visibly
     upset at the time, told the officer that the complainant had been
     robbed and shot. He also gave the officer a description of the
     man responsible for the shooting.

           Mr. Love’s wife, Danielle, was not present at the time of
     the shooting. She had left the house briefly with a friend, and,
     upon returning, found police blocking off the area.       Before
     leaving the party, Mrs. Love recalled seeing the Appellant in
     attendance.

           The complainant’s sister-in-law, Gina Fehr, visited him in
     the hospital, but was unable to speak to him when she first
     arrived. Her sister, the complainant’s wife, told her what had
     happened later. Ms. Fehr knew Sonny from the neighborhood
     and was Facebook friends with him, so she went to his Facebook
     page. She saw pictures of Sonny with some of his friends,
     including several of him with the Appellant. She brought her
     laptop to the hospital to show the pictures to Mr. Love and asked
     if he recognized anyone. Mr. Love became teary-eyed upon
     seeing the picture, and immediately identified the Appellant as
     the man who had shot him. Mrs. Love also recognized the
     Appellant as having been at the party before she left. Ms. Fehr
     and Mrs. Love then showed the pictures to the police, and Ms.
     Fehr gave a statement about her search.

           Detectives Andrew Danks and Christopher Casee were
     assigned to investigate the shooting. In the course of their
     investigation, the detectives wanted to speak to Sonny about the

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     incident, and had Mr. Love give Detective Casee’s phone number
     to Sonny through Facebook. Sonny called the number, believing
     he was speaking to Mr. Love. Sonny apologized for the incident
     and told Detective Casee: “It wasn’t supposed to go down like
     that.” Detective Casee, continuing to pose as Mr. Love, asked
     Sonny to speak with the police and to contact Detective Danks if
     he knew anything about the shooting. Within a half an hour,
     Sonny called back, and after apologizing again, put another man
     on the phone to speak to Detective Casee. The man identified
     himself as “Tone,” which is also the nickname associate[d] with
     Appellant on Facebook.      Tone insisted the incident “wasn’t
     supposed to go down like that” and said Sonny had nothing to
     do with the shooting. Detective Casee once again asked them to
     speak to Detective Danks, but Sonny never called the detectives.

            While Appellant was in prison awaiting trial, he made
     several phone calls to friends and family that were recorded.
     Within 48 hours of his arrest Appellant made calls repeatedly
     asking others: “You got to stay on him. Yo, stay on Andy. Stay
     on him, get him.” He also asked them to “get him to come off
     that.”

           In the weeks following the shooting, Mrs. Love was
     contacted by Appellant’s girlfriend, Michelle, about the incident
     and her husband’s statement. Although she had never met the
     woman before, Michelle came to the Love’s residence five or six
     times. Mrs. Love was also approached by Appellant’s mother,
     who wanted Mr. Love to speak to Appellant’s attorney. The
     Appellant’s girlfriend also picked up Mr. and Mrs. Love and drove
     them to the preliminary hearing.

           At trial, Mr. Love testified that he has limited use of his
     right arm and continues to feel pain; he has also lost feeling in
     several fingers in his right hand. The injuries have also affected
     his everyday activities, and his relationship with his children.

Trial Court Opinion, 12/11/14, at 3–5 (internal citations to notes of

testimony omitted).

     Appellant was arrested in September of 2011. On November 1, 2013,

a jury convicted him of the above-described charges. The court sentenced


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Appellant on April 28, 2014, to consecutive terms of imprisonment of nine

and one-half to thirty years for attempted murder, nine to eighteen years for

robbery, and five to ten years for the firearm violation, for an aggregate

term of twenty-three and one-half to fifty-eight years of imprisonment. The

remaining charges merged for sentencing purposes. Appellant filed a post-

sentence motion on May 1, 2014, that was denied by operation of law on

September 3, 2014.    Appellant filed this timely appeal on September 12,

2014. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant raises the following issues for our review:

     1. Did the lower court abuse its discretion in allowing the
        Commonwealth to present evidence of a post on [Appellant’s]
        Facebook page made months before the crime, where the
        evidence served only to infer to the jury that [Appellant] had
        violent tendencies?

     2. Did the lower court err in allowing a detective to testify to a
        phone conversation he supposedly had with[Appellant], where
        there was no authentication of the voice as [Appellant’s]?

     3. Did the prosecutor commit misconduct in her closing
        argument where she told the jury that the victim identified
        someone else as his assailant at the preliminary hearing
        because he was afraid that he and his family were going to be
        killed if he identified [Appellant], where there was no
        evidence of any such threats?

     4. Did the prosecutor commit misconduct in her closing
        argument where she asked the jury to infer [Appellant’s] guilt
        based on his failure to assert his innocence after he was
        arrested?

     5. Was the verdict against the weight of the evidence?

     6. Did the lower court abuse its discretion by considering the
        actions of Appellant’s family in determining the sentence and

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         by sentencing [Appellant] at the upper end of the aggravated
         range of the guidelines without putting its reasons for doing
         so on the record?

Appellant’s Brief at 4–6.

      The first two issues involve the admission of evidence and are

governed by the following standards:

      We review all matters touching upon the admission of evidence,
      including the trial court’s gatekeeping function regarding what
      evidence a jury gets to observe and handle during a trial, for an
      abuse of discretion. See Commonwealth v. Brown, 617 Pa.
      107, 52 A.3d 1139, 1197 (2012) (citation omitted);
      Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa. Super.
      2005).     “An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the
      law, or the exercise of judgment that is manifestly unreasonable,
      or the result of bias, prejudice, ill-will or partiality, as shown by
      the evidence of record.” Commonwealth v. Mendez, 74 A.3d
      256, 260 (Pa. Super. 2013) (citation omitted), appeal denied,
      ___ Pa.___, 87 A.3d 319 (2014). “[I]f in reaching a conclusion
      the trial court over-rides or misapplies the law, discretion is then
      abused and it is the duty of the appellate court to correct the
      error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188
      (Pa. Super. 2009) (citation omitted).

Commonwealth v. Ali, 112 A.3d 1210, 1217–1218 (Pa. Super. 2015).

“[A]n erroneous ruling by a trial court on an evidentiary issue does not

necessitate relief where the error was harmless beyond a reasonable doubt.”

Commonwealth v. Travaglia, 28 A.3d 868, 874 (Pa. 2011).

      Appellant first argues that the trial court abused its discretion in

allowing the Commonwealth to present evidence of a post on Appellant’s




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“Facebook” page.1       The victim’s sister-in-law, Gina Fehr, testified that her

sister, Danielle, the victim’s wife, told her that the person who shot the

victim was friends with a man named “Sonny.” N.T., 10/29/13, at 64. Ms.

Fehr stated that she was Facebook friends with Sonny, a man she knew

“from the neighborhood.”         Id.   Ms. Fehr took her laptop computer to the

hospital and showed the victim pictures posted on Sonny’s Facebook page.

Id. at 64–65. Upon seeing Appellant’s photograph,2 the victim “pointed out

the guy that did it, and . . . hysterically started crying. He was, like, ‘Yup.

That is him. That is him.’” Id. at 65, 70.3

       Either later that day or the next day, Ms. Fehr told police about the

victim’s identification of the Facebook photographs.       Id. at 72.    Ms. Fehr

ultimately gave police a statement regarding the photographs.           Id. at 73,

82.

____________________________________________


1
  “Users of that Web site may post items on their Facebook page that are
accessible to other users, including Facebook ‘friends’ who are notified when
new content is posted.” Elonis v. United States, ___ U.S. ___, ___, 135
S.Ct. 2001, 2004 (2015).
2
  Ms. Fehr testified that upon scrolling the computer mouse over Appellant’s
photograph, Sonny had “tagged” Appellant, and his name appeared as “Top
Dog.” N.T., 10/29/13, at 68, 78. See Elonis, 135 S.Ct. at 2005 (tagging is
a Facebook feature that alerts the person in the photograph to the posting).
3
  Ms. Fehr testified that she did not suggest to    the victim that Appellant was
his shooter, did not imply to the victim that        other people advanced that
contention, nor did she, in any way, point out      Appellant’s photograph other
than to show the victim the posted pictures          on Sonny’s Facebook page.
N.T., 10/29/13, at 70–71.



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      Ms. Fehr further testified that when she “clicked” on Appellant’s name,

listed as “Tony Top Dog Lewis,” his entire Facebook profile was public,

lacking privacy settings that could have been designated. N.T., 10/29/13, at

66, 68–69, 78. Appellant’s Facebook page also included a post from May 20,

2013, nearly three months before the instant crime, that stated:

      “If it ain’t a rumor it’s true, but I don’t like conversation. I don’t
      involve nothing. I’d rather get it off my chest and revolve
      something.”

Id. at 75. Defense counsel objected to admission of the post, stating, “[W]e

have no idea what this item that is posted on the Facebook page may have

anything to do with and it’s just speculation.” Id. at 74. Following a sidebar

that was not transcribed, the trial court overruled the objection. Id.

      Appellant maintains there was no foundation for admitting the posted

quote and asserts that this cryptic statement “made months before the

crime . . . could [not] be interpreted as referring to a revolver as evidence

that Appellant had access to a gun that could have been used in the crime.”

Appellant’s Brief at 14. He avers that it did not establish that Appellant had

a revolver or any other weapon. Id.

      The trial court concluded that the Facebook post “support[ed] the

reasonable inference that Appellant was in possession of a revolver. It also

support[ed] an inference that Appellant may be more likely to use a revolver

in a confrontation.” Trial Court Opinion, 12/11/14, at 7. We disagree.




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      While we agree with the Commonwealth that because Appellant was

charged with attempted murder, his mental state was highly relevant, we

disagree that Appellant’s use of the phrase “‘revolve something’ has no

sensible purpose other than to suggest [Appellant’s intended] resort to a

revolver, the weapon he used to shoot the victim,” and that it is evidence of

his state of mind.   Appellant’s Brief at 9.   Appellant’s word choice could

equally be interpreted as a typographical error or misuse of the word

“revolve” and reflect, instead, an intended use of the word “resolve,” which

makes as much sense as the nonsensical use of “revolve” in the quote.

      Nevertheless, Appellant is not entitled to relief on this claim because

admission of the post was harmless error. Our Supreme Court has described

that doctrine as follows:

            [T]he doctrine of harmless error is a technique of
            appellate review designed to advance judicial
            economy by obviating the necessity for a retrial
            where the appellate court is convinced that a trial
            error was harmless beyond a reasonable doubt. Its
            purpose is premised on the well-settled proposition
            that “a defendant is entitled to a fair trial but not a
            perfect one.”

      [Commonwealth v. Thornton,] 494 Pa. 260, 266, 431 A.2d
      248, 251 (1981). This Court may affirm a judgment based on
      harmless error even if such an argument is not raised by the
      parties.

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (footnote

omitted), cert. denied sub nom., Allshouse v. Pennsylvania, ___ U.S.

___, 133 S.Ct. 2336 (2013). Harmless error exists where:


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      (1) the error did not prejudice the defendant or the prejudice
      was de minimis; (2) the erroneously admitted evidence was
      merely cumulative of other untainted evidence which was
      substantially similar to the erroneously admitted evidence; or
      (3) the properly admitted and uncontradicted evidence of guilt
      was so overwhelming and the prejudicial effect of the error was
      so insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (emphasis

added), appeal denied, 89 A.3d 661 (Pa. 2014).

      Our conclusion of harmless error, as explained by the trial court, is as

follows:

      [I]t seems likely that all three factors are present here.
      Certainly, evidence of the shooting and robbery were introduced
      through other witnesses. The evidence of the Facebook post
      was merely bolstering other evidence, including eyewitness
      testimony and Appellant’s own statements, and can be
      considered cumulative.     Because there was so much other
      evidence implicating Appellant, any prejudice created in
      admitting the contents of the Facebook post would have been de
      minimis at most. Even still, the strongest factor here is the
      third. Andy Love, the victim of the shooting, was able to identify
      the Appellant as the individual who demanded money from him,
      then shot him once in the leg. He also testified that he was shot
      again by the Appellant as he tried to run away, and witness
      testimony constitute[d] overwhelming and uncontradicted
      evidence of guilt.

Trial Court Opinion, 12/11/14, at 8–9. We conclude Appellant is not entitled

to relief on this claim of error.

      Appellant next asserts the trial court abused its discretion in admitting

testimony from Detective Christopher Casee concerning a statement from

Appellant made to the detective on the telephone. As background, when Ms.

Fehr showed the Facebook photographs to her sister Danielle, Danielle

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identified a photograph of Appellant by the name, “Tone.” N.T., 10/29/13,

at 87.   Additionally, the victim identified Appellant as a man he had met

through Sonny and who he knew as “Tone” on the street.           Id. at 109.

During Detective Casee’s visit to the victim in the hospital, the victim told

the detective that he was trying to get in touch with Sonny because the

victim was with Sonny on the night of the shooting. N.T., 10/30/13, at 137.

Detective Casee gave the victim his cellular telephone number and told him

to tell Sonny to contact the detective about the shooting. Id. at 138.

     When Sonny called the detective’s number, Sonny spoke as if he were

speaking to the victim. Detective Casee testified that Sonny stated, “I am

sorry, you know, for what happened. I wasn’t involved. It wasn’t supposed

to do down like that.”   N.T., 10/30/13, at 139.    Detective Casee testified

that he played along as if he were the victim, telling Sonny, “he should

cooperate with the police, that I was his boy, that he did me wrong, and if

he knew any information on the shooting he should contact Detective

[Andrew] Danks.” Id. at 140. Eventually, a man Detective Casee believed

to be Appellant spoke on the telephone, likewise appearing to believe he was

talking to the victim and identifying himself as “Tone,” who stated “the

shooting wasn’t meant to be . . . and apologizing for what happened.” Id.

at 140–141. There were a number of other telephone conversations and one

voice mail message to which Detective Casee had the victim listen.       The

victim identified the voice as Sonny.    Id. at 147–148.     Detective Casee


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ultimately   gave      a   statement   to   Detective   Danks   concerning   these

conversations. Id. at 141, 145.

      Detective Casee’s testimony concerning the statement he gave to

Detective Danks is as follows:

      [By Detective Casee]: At first when I received the phone call the
      male on the other end said, “Yo, Bro. It’s me, Sonny.” I replied,
      “What’s up, man?” And the male on the other side believing who
      I was, I told him that he should contact the detectives and tell
      them what had happened, and I stated, told him that—that I,
      being [the victim], told the detectives that Sonny had nothing to
      do with it and if he was truly on my side, my friend for him to
      contact the detectives. At which time he told me he would think
      about it and give me a call back. I told him to hurry up and give
      the detectives a call ‘cause I needed him to cooperate. It says
      this conversation lasted for four minutes and 23 seconds.

                                       * * *

      [By the Commonwealth]:           Did you receive another phone call
      within a half an hour?

                                       * * *

      A. Yes . . . .

      Q. The person on that phone call, was it the same voice . . .?

      A. Yes, it was.

                                       * * *

      Q. Okay. What did he say?

      A. Um, when I answered the phone this time he said, Hey. He
      said, Bro, and asked how I was feeling. I was still talking like I
      was [the victim]. I told him that I wasn’t feeling too well and
      that I was pissed off that he wouldn’t help the police find the
      male that shot me. I told him that I was shot three times. . .
      [H]e told me, hold on, hold on. Someone wants to holler at you.


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       That is when another male voice got on the phone and started
       talking to me.

       Q. And did that male voice identify himself?

       A. He said to me, “Yo, Man. This is Tone. Sonny’s man.” At
       which time I replied back to him, “Which boy are you?” He again
       said, “Sonny’s man.” I then asked, “What, the boy that shot
       me?” And the same male said, “Look, Man. The shit wasn’t
       supposed to go down like that. We was throwed that night and
       on some real shit.” I said to him again like I was [the victim],
       “You fucken shot me, Man, and you and Sonny are fucked up
       and that’s some real shit.” And then he again told me that, “The
       shit wasn’t supposed to do go down like that and Sonny was my
       man and he didn’t have anything to do with it.” I said exactly to
       him, “I have no more wrap for your ass and put Sonny back on
       the phone.” At which time the other male voice who I believe to
       be Sonny was saying Sonny had nothing to do with it. I again
       told him . . . to make sure he calls Detective Danks.

                                           * * *

       Q.   . . . [D]id Sonny call Detective Danks?

       A. He never called Detective Danks, no.

N.T., 10/30/13, at 143–146.

       Appellant asserts that the trial court admitted this evidence without

proper authentication.        He maintains that Detective Casee did not know

Appellant’s voice to recognize it on the telephone, and the evidence was not

properly authenticated pursuant to Pa.R.E. 901.4

____________________________________________


4
    Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.
(Footnote Continued Next Page)


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      The trial court stated the following, in pertinent part:

      Circumstantial evidence allowed the detective to determine that
      the individual he spoke to on the phone was the Appellant. This
      is sufficient to authenticate the conversation . . . .

             In the instant case . . . detectives had contextual clues and
      testimony from one of the parties on the phone call. Appellant
      identified himself at the start of the conversation as “Tone,”
      which is also how he was identified in several Facebook photos.
      N.T., 10/29/2013, at 156. Although the phone call was not
      recorded, Detective Casee testified to the conversation he had
      with Appellant, when he was pretending to be [the victim]. N.T.,
      10/30/2013, at 145.

                                            * * *

            The fact that Appellant identified himself in the
      conversation, and the fact that he vaguely attempts to apologize
      to the complainant for shooting him, are strong pieces of
      circumstantial evidence that allowed the detectives to
      authenticate the phone call as having come from the Appellant.
      Unlike [Commonwealth v.] Koch, [39 A.3d 1005 (Pa. Super.
      2011),] which lacked any such corroborative evidence, here the
      detectives had Appellant’s own admissions and direct testimony
                       _______________________
(Footnote Continued)


(b) Examples. The following are examples only--not a complete list--of
evidence that satisfies the requirement:

                                                 * * *

      (5) Opinion About a Voice. An opinion identifying a person’s
      voice--whether heard firsthand or through mechanical or
      electronic transmission or recording--based on hearing the voice
      at any time under circumstances that connect it with the alleged
      speaker.

(emphasis added). The comment to Rule 901 provides that “Pennsylvania
law has permitted the identification of a voice to be made by a person
familiar with the alleged speaker’s voice.      See Commonwealth v.
Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).” Pa.R.E. 901, cmt.



                                           - 13 -
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      from Detective Casee to aid them in authenticating the phone
      call. Therefore, this claim must also fail.

Trial Court Opinion, 12/11/14, at 11–12.

      Initially, we note that Pa.R.E. 901(b) makes it clear that the examples

provided in the rule for authentication are not exhaustive.      Moreover, the

victim was familiar with Sonny’s voice. Through a voice message left at the

telephone number the victim had given Sonny, the victim was able to

identify Sonny’s voice, and testimony established that the voice identified by

the victim as Sonny was the same voice on subsequent telephone calls with

Detective Casee. N.T., 10/30/13, at 148. When the second male came on

the telephone, he identified himself as “Tone,” which is the name Danielle

identified as describing Appellant in Facebook photographs and the street

name the victim used to describe Appellant. N.T., 10/29/13, at 87,109.

      We conclude the evidence was properly authenticated and consistent

with Pennsylvania law. See Commonwealth v. Carpenter, 372 A.2d 806

(Pa. 1977) (accused’s identity as telephone caller was sufficiently established

to permit detective to testify regarding such telephone conversation where,

although detective was not familiar with caller’s voice, witness who

answered telephone and handed receiver to detective, was familiar with

accused’s voice and positively identified caller’s voice as that of accused).

“It is clear . . . that when seeking to introduce testimony as to the content of

a telephone conversation, the identity of the caller may be established by

circumstantial evidence.” Commonwealth v. Stewart, 450 A.2d 732, 733

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(Pa. Super. 1982). Furthermore, in Carpenter, the defendant’s attacks on

the credibility of the identification testimony “did not bear on the question of

admissibility, but rather were properly a matter for the jury to consider in

determining the weight [of the evidence].” Carpenter, 372 A.2d at 809.

      The trial court did not abuse its discretion in admitting this evidence.

The victim was familiar with Sonny’s voice and recognized it. In addition,

the second voice identified himself by his street name, Tone, and the context

of the conversation provided details indicating that he was familiar with the

circumstances of the crime. He offered an explanation for the shooting as a

plan that went awry. Therefore, Appellant’s challenge to the admissibility of

testimonial evidence of the telephone call lacks merit.

      Appellant’s next two     issues involve    allegations of prosecutorial

misconduct during closing arguments.       “Prosecutorial misconduct does not

take place unless the ‘unavoidable effect of the comments at issue was to

prejudice the jurors by forming in their minds a fixed bias and hostility

toward the defendant, thus impeding their ability to weigh the evidence

objectively and render a true verdict.’”      Commonwealth v. Holley, 945

A.2d 241, 250 (Pa. Super. 2008) (quoting Commonwealth v. Paddy, 800

A.2d 294, 316 (Pa. 2002)). “In reviewing a claim of improper prosecutorial

comment, our standard of review is whether the trial court abused its

discretion.” Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012).

When considering such a contention, “our attention is focused on whether


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the defendant was deprived of a fair trial, not a perfect one, because not

every inappropriate remark by a prosecutor constitutes reversible error.”

Id. at 858 (citing Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super.

2012)). “A prosecutor’s statements to a jury do not occur in a vacuum, and

we must view them in context.” Noel, 53 A.3d at 858.

      Appellant’s first claim of prosecutorial misconduct concerns the

prosecutor’s reference to the threat Appellant and his associates posed to

the victim and his family. In particular, Appellant objected to the following

statement in the prosecutor’s closing: “The truth is going to get him [the

victim] killed. It’s going to get his family killed. . . . His wife, his children.”

N.T., 10/31/13, at 37; Appellant’s Brief at 18.

      Appellant’s argument, in total, asserts as follows:

            While there was evidence in this case that Appellant’s
      family tried to get the victim to retract his identification and
      repeatedly asserted to him that Appellant was innocent, there
      was no evidence that anybody ever threatened to physically
      harm or kill the victim, his wife or his children. To the contrary,
      his wife testified that Appellant’s girlfriend was not at all
      aggressive when she came to their house. N.T. 10/30/13 at 69;
      RR 245a.

             The efforts by Appellant and his family to influence the
      victim’s testimony was unquestionably wrong. It is a far cry,
      however, from trying to get the victim to retract his identification
      by telling him that Appellant was innocent and threatening to kill
      his wife and children. The prosecutor’s statement was not a
      reasonable inference from the evidence at trial. Moreover, the
      implication that Appellant or his family had threatened to kill the
      victim, his wife and his children was highly prejudicial and could
      not have but made the jury hostile toward Appellant to the
      extent that they could not be fair.


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Appellant’s Brief at 19 (footnote omitted). Other than citing to our standard

of review, Appellant fails to cite a single case in support of his claim of error.

       At trial, the victim described the lengthy pressure, manipulation, and

coercion he endured from Appellant’s family.                The victim described

Appellant’s relatives’ appeals to his wife on Facebook that escalated to

“popping up” at the victim’s home.             N.T., 10/29/13, at 114.   Appellant’s

girlfriend and mother attempted to persuade the victim that Appellant had

not been the shooter, by pressuring the victim and going to the victim’s

home. Id. at 122. The victim testified about his fear, stating:

       [W]hen [Appellant’s family] left, I sure did always look out of my
       window. I sure did keep my door locked, to this day, and I
       haven’t seen them in months, but to this day me and my wife
       still talk about it, still make sure our door is locked. . . . We still
       live with paranoia. . . . I know I was in danger.

Id. at 123–124). This menacing and continuing presence also was proven

by evidence of prison telephone calls between Appellant and his family

members. The fourth telephone call on September 13, 2011, referenced an

earlier call that Sonny was “lookin for Andy,” and included Appellant’s

entreaty to “stay on” the victim and his family.            Prison Call Transcript,

9/13/11, at 1.5 Appellant stated that he knew the victim identified Appellant

as the man who shot him and instructed, “Get [the victim] to “clarify that

____________________________________________


5
   The transcripts of the prison telephone calls were played at trial for the
jury and were submitted to this Court as a supplement to the certified record
on February 27, 2015. N.T., 10/30/13, at 155–157.



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shit.” Id. at 2. The prison telephone calls revealed that the victim’s house

was being watched “to see like if the cops come in,” by people who assured

Appellant “it’s gonna be handled.” Id. at 4. As the trial court stated:

      Testimony at trial showed the Appellant’s mother and girlfriend
      visited the [victim’s] home multiple times prior to trial. N.T.,
      10/30/2013, at 68–71.        This behavior was prompted by
      Appellant, who was heard on recorded phone calls from prison
      telling people to “stay on him.” N.T., 10/31/2013, at 44. This
      evidence clearly established the Appellant’s involvement in
      attempting to make the [victim] and others change their
      testimony. It is therefore reasonable to infer that [the victim
      and his wife] were fearful, since those close to the Appellant
      knew where they lived and had attempted to pressure them in
      the past. Under these circumstances, it is not prosecutorial
      misconduct for the prosecutor to cite to facts in evidence, and
      this claim should also fail.

Trial Court Opinion, 12/11/14, at 12–13.

      The defense closing argument asserted that the Commonwealth

witnesses, including the victim, presented “several days of lies.”        N.T.,

10/31/13, at 25 30. The prosecutor’s remark that the victim feared for his

life and that of his family was proper rhetoric supported by the evidence and

fairly responded to the defense assertion that the victim was a liar.     See

Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006) (stating a

prosecutor is entitled to fairly respond to arguments made by defense

counsel in closing argument); Commonwealth v. Hogentogler, 53 A.3d

866, 878 (Pa. Super. 2012) (stating, “In determining whether the prosecutor

engaged in misconduct, we must keep in mind that comments made by a

prosecutor must be examined within the context of defense counsel’s


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conduct. It is well settled that the prosecutor may fairly respond to points

made in the defense closing.”).           We conclude that the prosecutor’s

comments were fair responses to defense allegations that the victim and

other Commonwealth witnesses were liars, and they did not prejudice the

jurors by forming a fixed bias and hostility toward Appellant.         Thus, we

reject this claim of error.

      Appellant next alleges that the prosecutor erroneously asked the jurors

to infer guilt based on the fact that Appellant did not “assert his innocence

after he was arrested.”       Appellant’s Brief at 20.   Appellant objects to the

following comment during closing argument:

            You know, I try to think about what I would do if I was
      accused of a crime I didn’t commit. . . . My first phone call is
      going to be to my husband, and I am going to cry like a baby. I
      am going to tell him, “Baby, you’re not going to believe this. I
      got arrested. Someone said I shot them. I can’t believe this. I
      would never do something like that. I don't even have a gun. I
      don’t know why they would say something like that.”

                                        * * *

           That would be my first phone call. You know, I bet you
      something along those lines would be your first phone call, too,
      because that is what an innocent person says.

N.T., 10/31/13 at 45–46.

      Appellant characterizes the above comment as a failure to deny guilt

after arrest, and citing Commonwealth v. Mitchell, 839 A.2d 202, 212–

214 (Pa. 2003), he asserts it was patently improper.         Appellant maintains

that a prompt cautionary instruction may have remedied the “innate


                                       - 19 -
J-A20020-15


prejudice in such a comment,” but no such instruction was given.

Appellant’s Brief at 20.

      First, Appellant did not object to the above remark. N.T., 10/31/13, at

45, 46.     Second, when he objected to a subsequent portion of the

summation, he did not assert that remark or any other implicated an alleged

failure to declare his innocence, nor did he request a cautionary instruction.

Id. at 46. As no objection was posed, this issue was not preserved. See

Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be

raised for first time on appeal).      Moreover, the failure to request a

cautionary instruction constitutes a waiver of a claim of trial court error in

failing to issue a cautionary instruction.   Commonwealth v. Wholaver,

989 A.2d 883, 892 (Pa. 2010) (citing Commonwealth v. Bryant, 855 A.2d

726, 739 (Pa. 2004)). Thus, we conclude this claim is waived.

      Appellant’s fifth claim of error assails the weight of the evidence, an

issue he preserved in his post-sentence motion. Appellant asserts that “this

is the rare case where the verdict shocks the conscience.” Appellant’s Brief

at 21. He maintains that the only evidence that Appellant was the assailant

was the victim’s testimony, which he characterizes as “highly unreliable.”

Id. The Commonwealth avers that this issue attacks the victim’s credibility,

and Appellant cannot meet the level that the verdict was “pure conjecture.”

Commonwealth Brief at 21 (citing Commonwealth v. Gibbs, 981 A.2d 274

(Pa. Super. 2007).


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      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.            Commonwealth v.

Ramtahal, 33 A.3d 602 (Pa. 2011). “An appellate court, therefore, reviews

the exercise of discretion, not the underlying question whether the verdict is

against the weight of the evidence.” Id. at 609. “The trial court’s denial of

a motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Rivera, 983 A.2d 1211, 1225

(Pa. 2009). “When the challenge to the weight of the evidence is predicated

on the credibility of trial testimony, our review of the trial court’s decision is

extremely limited.    Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review.” Commonwealth v.

Rossetti,    863     A.2d   1185,    1191      (Pa.   Super.   2004)     (quoting

Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989)).

      The trial court, in rejecting this claim, stated:

            In the instant case, there was eyewitness testimony from
      the [victim], identifying the Appellant as the individual who shot
      him.    There was also testimony that other witnesses put
      Appellant at the scene on the night of the shooting, and
      testimony from Detective Casee in which Appellant identified
      himself on the phone and insisted the shooting “wasn’t supposed
      to go down like that.” N.T., 10/30/2013, at 145.

                                     * * *
      Here, the jury chose to credit the testimony of the complainant,
      his family members, and the detectives investigating the case.
      The fact that the jury believed the testimony of [the victim] and
      Detective Casee does not shock one’s sense of justice.


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Trial Court Opinion, 12/11/14, at 15.

      Appellant essentially asks this Court to reassess the credibility of the

witnesses. It is well settled that we cannot substitute our judgment for that

of the trier of fact.   Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

Super. 2009); Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super.

2008). The fact-finder was free to believe the testimony of any, all, or none

of the witnesses. See Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.

Super. 2008) (“[I]t is for the fact-finder to make credibility determinations,

and the finder of fact may believe all, part, or none of a witness’s

testimony.”).    Here, the trial court considered Appellant’s claims and

determined that they did not compel the conclusion that the verdicts were so

contrary to the evidence as to shock one’s sense of justice.      Trial Court

Opinion, 12/11/14, at 15. Upon review, we discern no abuse of discretion in

the trial court's determination.   Commonwealth v. Ferguson, 107 A.3d

206, 213 (Pa. Super. 2015).

      Appellant’s final issue relates to the discretionary aspects of his

sentence. An appellant seeking discretionary review of his sentence has no

absolute right to do so but rather, must petition this Court for permission.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014); 42 Pa.C.S. § 9781(b).        Before we

may review the merits of a challenge to the discretionary aspects of a

sentence, we must engage in a four-pronged analysis to determine:


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J-A20020-15


      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [708]; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Herein, because Appellant has filed a timely appeal, preserved the

issue in a post-sentence motion, and included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief, he has complied with the first three

requirements of the four-prong test. Therefore, we next determine whether

Appellant   raises   a   substantial   question   requiring   us   to   review   the

discretionary aspects of the sentence imposed by the trial court.

      In his Pa.R.A.P. 2119(f) statement, Appellant contends his sentences

for robbery and the firearms violation were at the upper end of the

aggravated range of the Sentencing Guidelines and were an abuse of

discretion because 1) the trial court failed to put its reasons on the record

for sentencing in the aggravated range, and 2) the trial court relied on an

improper sentencing factor.      These claims present substantial questions.

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)

(allegation that the sentencing court imposed a sentence outside the

standard guidelines without providing adequate reasons on the record

presents a substantial question); Commonwealth v. Booze, 953 A.2d



                                       - 23 -
J-A20020-15


1263, 1278 (Pa. Super. 2008) (allegation that trial court failed to state

adequate reasons on the record for imposing an aggravated-range sentence

raises a substantial question).

      The trial court stated that there is nothing in the record to support the

conclusion that it based the sentence on Appellant’s family members in the

courtroom.      Rather, the trial court noted that it considered the family

members’ behavior before sentencing. The court also stated the sentencing

transcript “reveals an in-depth discussion of the factors weighed by this

court at sentencing.” Trial Court Opinion, 12/11/14, at 18.

      It is well settled that

      [s]entencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Caldwell, ___ A.3d ___, ___, 2015 PA Super 128, *4

(Pa. Super., filed May 29, 2015).

      The trial court indicated that it was aware of the guideline ranges for

Appellant’s convicted offenses. N.T., 4/28/14, at 4–6. In addition, the trial

court stated that it read and considered the presentence report. Id. at 3.

Regarding the guideline ranges, our Supreme Court reiterated that “the

guidelines have no binding effect, create no presumption in sentencing, and

do not predominate over other sentencing factors—they are advisory

                                    - 24 -
J-A20020-15


guideposts that are valuable, may provide an essential starting point, and

that must be respected and considered; they recommend, however, rather

than require a particular sentence.”          Commonwealth v. Perry, 32 A.3d

232, 240 (Pa. 2011) (emphasis added) (citing Commonwealth v. Walls,

926   A.2d   957,   964–965       (Pa.    2007).         Moreover,   when   the    record

demonstrates that the sentencing court was aware of the guideline ranges,

as here, see N.T., 4/28/14, at 5, we will not reverse merely because the

specific   ranges     were    not        recited    at     the     sentencing     hearing.

Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 2002). Our review

of the record compels the conclusion that the court stated adequate reasons

for imposing an aggravated-range sentence. Booze, 953 A.2d at 1280.

      Regarding     his   claim   related    to    his    family   members,     Appellant

underscores the following comments by the trial court at sentencing:

      You chose, and this is really what bothers me about this case
      and what really goes on too often in this city, is that instead of
      these cases being decided in the courtroom and you yourself,
      Mr. Lewis, said this and thanked me for being fair. I just
      followed the rules and allowed witnesses to testify and
      appropriate evidence to come in and your attorney could fully
      represent you. But you didn’t want that. Your family didn’t
      want that. They didn’t want the twelve to decide. They wanted
      it decided on the street so the case would go away and
      [Appellant] couldn’t be found and we would never have a
      trial . . . .

                                           * * *

      I see your family leaving because they don’t want to listen to
      this part for whatever reason.




                                          - 25 -
J-A20020-15


N.T., 4/28/14, at 35–36.6 Appellant’s entire argument relating to the above

comments are that they are indicative that the court “consider[ed] the

motivations or independent actions” of persons other than Appellant in

imposing Appellant’s sentence.            Appellant’s Brief at 25.   This claim is

specious.

       We find nothing improper regarding the trial court’s comments made

as Appellant’s family members filed out of the courtroom when the trial court

explained its sentence.        Rather than an indication that it relied upon an

impermissible factor, the comments were merely observations of conduct

occurring in the courtroom.           Further, as noted by the Commonwealth,

Appellant’s family had displayed intimidating, aggressive tactics in its

endeavor to persuade the victim to retract his identification of Appellant as

his shooter. Appellant goes to great lengths to dissuade us that he is not

challenging consideration of that behavior. See Appellant’s Brief at 24. In

light of that egregious behavior, we do not find the trial court’s observation

of Appellant’s family members’ flight from the courtroom at the moment the

trial court commented on that behavior to be equated with reliance on an

impermissible sentencing factor.

____________________________________________


6
   The trial court did not respond to this particular quotation because
Appellant’s statement of the claim in both his post-sentence motion and
Pa.R.A.P. 1925(b) statement was vaguely worded and failed to underscore
these comments.     Post-Sentence Motion, 5/1/14, at unnumbered 2–3;
Pa.R.A.P. 1925 (b) Statement, 10/1/14, at ¶ 7.



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      Moreover, defense counsel had purposely pointed out the great

number of Appellant’s family members present in the courtroom by asking

them to stand up. N.T., 4/28/14, at 9. Both of Appellant’s grandmother’s

spoke on Appellant’s behalf.    Id. at 11–16.    The trial court did not limit

Appellant’s presentation of witnesses, and in handing down its sentence, the

trial court specifically acknowledged that it considered the comments of

Appellant’s family, noting, “I’ve considered the presentence, the mental

health, the memorandum submitted by the Commonwealth, the testimony

at today’s hearing from [Appellant’s] family, of course the trial

testimony and what [Appellant] had to say. . . .”        Id. at 31 (emphasis

added). In addition, the trial court considered the nature and circumstances

of the offense, including the gravity of the offense and the impact on the life

of the victim. Id. at 34. We conclude that the record does not support the

trial court’s consideration of an improper factor at sentencing.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




                                    - 27 -
