J-A19017-17

                                  2017 PA Super 330



    COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
    STEVEN R. MILLER,            :
                                 :
                   Appellant     :             No. 3130 EDA 2015


             Appeal from the Judgment of Sentence June 25, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0011715-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

OPINION BY DUBOW, J.:                                 FILED OCTOBER 17, 2017

        Appellant, Steven R. Miller, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas following his

convictions after a jury trial of Aggravated Assault, Simple Assault, and

Possessing an Instrument of Crime (“PIC”).1 After careful review, we affirm

on all issues Appellant raised before the trial court, and remand for

consideration of Appellant’s after-discovered evidence claim.

        On October 6, 2013, Appellant, an inmate at Curran-Fromhold

Correctional Facility in Philadelphia, was using a phone in the prison’s

telephone bank. Khayree Murray, a fellow inmate, approached Appellant and

asked to use one of the phones. Correctional Officers Denise Irving and Eddie



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1   18 Pa.C.S. § 2702; 18 Pa.C.S. § 2701; and 18 Pa.C.S. § 907, respectively.
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Rosa and Correctional Sergeant Joyce Cooper observed Appellant attack

Murray.    Appellant stabbed Murray several times with “a sharp long screw

rigged with sharp ridges and a rubber band wrapped in a ripped T-shirt” in the

head, back, and ear. Officer Rosa immediately intervened, separated the two

men with the help of Officer Irving, and used pepper spray to subdue

Appellant. Officers recovered the makeshift weapon from the ground after

Appellant dropped it. Officer Rosa testified that Murray was in shock and that

he did not observe Murray strike Appellant.

       Murray attempted to downplay his injuries, and told officers that he fell

down some stairs. Murray sustained life-threatening injuries, which included

three stab wounds to the back, two puncture wounds to the base of his neck,

wounds to his back, back of the head, and left hand, and lacerations to his ear

and cheek. Murray’s injuries required eight sutures. Sergeant Cooper decided

to transport Murray to the hospital for treatment. Appellant had no injuries,

but he was treated for pepper spray in his eyes and placed in solitary

confinement.

       While walking with Officer Rosa through the prison shortly after the

stabbing, Appellant stated, “If you didn’t pepper spray, you would have been

the next victim.”2 Trial Court Opinion at 5. In recorded prison phone calls,

Appellant subsequently made several inculpatory statements, boasted of his


____________________________________________


2 Officer Rosa omitted this statement from his official written report of the
incident.

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violent reputation in the prison as a result of the attack, and repeated a rumor

that there was a bounty on Murray’s head because he was a snitch.

      Appellant proceeded to a jury trial. Murray refused to testify at trial and

the trial court held him in contempt. Appellant testified and claimed that he

acted in self-defense. Although Appellant claimed that Murray attacked him

first with the weapon, Appellant admitted that he never feared that Murray

would kill him.

      On June 25, 2015, the jury convicted Appellant of Aggravated Assault,

Simple Assault, and PIC.     On that same day, the trial court imposed an

aggregate term of 8 to 20 years’ incarceration.         Appellant filed a Post-

Sentence Motion, which the trial court denied on October 2, 2015.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents eight issues on appeal:

      1. Were the convictions for [Aggravated Assault, Simple Assault,
      and PIC] not supported by sufficient evidence? Was the evidence
      speculative, contradictory and inconsistent such that the verdicts
      were not supported by sufficient evidence?

      2. Were the convictions for [Aggravated Assault, Simple Assault,
      and PIC] against the weight of the evidence? Was the evidence
      speculative, contradictory and inconsistent?

      3. Did the Assistant District Attorney err in his opening statement
      by stating that [Appellant] for the same conduct was disciplined
      by the prison and given the punishment of sixty days in solitary
      confinement, thereby improperly tainting the jury by the prison
      disciplinary finding? Further, did the District Attorney err in
      questioning the correctional officer about [Appellant] being placed
      in the solitary cell as punishment for this matter? Did the District

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     Attorney err in his closing speech when he gave his personal
     opinion that the correctional officer was telling the truth and was
     completely candid and honest with the jury? Did these errors
     individually and cumulatively deny [Appellant] his right to due
     process and a fair trial? Did Judge Coyle err in not granting a
     mistrial?

     4. Did Judge Coyle err when instructing the jury by not giving an
     adverse inference charge because the alleged victim, [Murray],
     refused to testify and pled the Fifth Amendment? Did Judge Coyle
     err in refusing to give such an adverse inference charge to the
     jury about [Murray’s] lack of testifying?

     5. Did Judge Coyle err in allowing the correctional officer to testify
     that [Appellant] said to him at the time, "It's a good thing you
     broke it up because I would have assaulted you also" and "If you
     didn't pepper spray, you would have been the next victim." Did
     Judge Coyle err since this statement was not made and told to
     anyone until the third day of trial, the officer had never even made
     such a statement in any of the police reports or discovery or
     during his testimony at the preliminary hearing previously and the
     defense strategy had already been set? Did the Court err in
     allowing this testimony and should a new trial be granted as a
     result?

     6. Did Judge Coyle err in allowing the transcript of the prison
     telephone conversation of [Appellant] to be sent back to the jury
     during deliberations since it had already been played to the jury,
     allowing this testimony to remain with the jury during deliberation
     and unduly emphasizing this testimony, which was unfair to
     [Appellant]? Further, did Judge Coyle err in allowing the telephone
     conversations to be admitted at all since the conversations
     seemed to suggest [Appellant] was a bad person and people were
     after him, thereby tainting the jury?

     7. Did Judge Coyle err in precluding [Appellant] from introducing
     the fact that the alleged victim, [Murray] (an inmate) had attacked
     another inmate in a similar fashion at a prison phone bank and
     had pending charges on that assault? Did the Court err since this
     would show a common scheme, plan and design, and would show
     intentional assault by the alleged victim?

     8. Did the Superior Court err in not remanding the case to the trial
     judge and should a new trial be granted based on the after

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      discovered evidence of two witnesses who observed the events
      and would have confirmed [Appellant’s] version?

Appellant’s Brief at 7-11.

                         Sufficiency of the Evidence

      Appellant first challenges the sufficiency of the evidence supporting his

convictions for Aggravated Assault, Simple Assault, and PIC.          We review

claims regarding the sufficiency of the evidence by considering whether,

“viewing all the evidence admitted at trial in the light most favorable to the

verdict winner, there is sufficient evidence to enable the fact-finder to find

every element of the crime beyond a reasonable doubt.” Commonwealth v.

Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).         Further, a conviction may be

sustained wholly on circumstantial evidence, and the trier of fact—while

passing on the credibility of the witnesses and the weight of the evidence—is

free to believe all, part, or none of the evidence.      Id.   In conducting this

review, the appellate court may not weigh the evidence and substitute its

judgment for the fact-finder. Id. at 39-40.

      Self-Defense

      Appellant claims that the Commonwealth failed to disprove that

Appellant acted in self-defense, and argues that this negates Appellant’s

criminal liability on all charges. Appellant’s Brief at 39.

      When one employs deadly force, as Appellant did, the elements of a

claim of self-defense are that the individual (1) reasonably believed that force

was necessary to protect himself against death or serious bodily injury; (2)

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was free from fault in provoking the use of force against him; and (3) did not

violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740

(Pa. 2012); see also 18 Pa.C.S § 505(b)(2).

      A defendant does not have a burden to prove a claim of self-defense.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Once a defendant

introduces some evidence to justify a finding of self-defense, then the issue is

properly before the fact-finder and the Commonwealth bears the burden to

disprove the defense beyond a reasonable doubt. Id.

      In this case, we conclude that Appellant’s testimony—that Murray

attacked him first using the weapon—provided “some evidence” to support a

finding of self-defense. See id. If Murray provoked the fight, Appellant could

have reasonably believed that force was necessary to protect himself.

      Once the issue of self-defense was before the fact-finder, it was the

Commonwealth’s burden to disprove the defense beyond a reasonable doubt.

See id.   The Commonwealth presented sufficient evidence that Appellant

initiated the fight unprovoked after Murray asked to use the phone, that

Appellant unreasonably believed that force was necessary to protect himself

against death or serious bodily injury, that Appellant acted unreasonably in

stabbing Murray repeatedly, and that Appellant had a duty to retreat without

using the weapon.    The Commonwealth presented testimony from several

eyewitnesses, as well as Appellant’s own inculpatory statements about, inter

alia, his motive for stabbing Murray.


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      After a review of the evidence in the light most favorable to the

Commonwealth, we conclude that the Commonwealth disproved beyond a

reasonable doubt that Appellant acted in self-defense.

      Aggravated Assault and Simple Assault

      We next address Appellant’s challenges to the sufficiency of the

evidence supporting his convictions for Aggravated Assault and Simple

Assault. “A person is guilty of [A]ggravated [A]ssault if he . . . attempts to

cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference

to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1). The Crimes Code

defines “Serious bodily injury” as “[b]odily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.

§ 2301. See Commonwealth v. Walls, 950 A.2d 1028, 1032 (Pa. Super.

2008) (holding that evidence that the appellant repeatedly stabbed the victim

causing cuts, scratches, and lacerations to the upper torso sufficient to sustain

a conviction for aggravated assault).

      “A person acts intentionally with respect to a material element of an

offense when ... it is his conscious object to engage in conduct of that nature

or to cause such a result[.]”    18 Pa.C.S. § 302(b)(1)(i).      “As intent is a

subjective frame of mind, it is of necessity difficult of direct proof.”

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. 2005) (citations


                                      -7-
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omitted). “[I]ntent can be proven by direct or circumstantial evidence; it may

be inferred from acts or conduct or from the attendant circumstances.” Id.

See also Commonwealth v. Gray, 867 A.2d 560, 568 (Pa. Super. 2005)

(holding that infliction of multiple stab wounds with screwdriver demonstrated

intent to inflict serious bodily injury).

      In Pennsylvania, a person is guilty of Simple Assault if he “attempts to

cause or intentionally, knowingly or recklessly causes bodily injury to

another[.]” 18 Pa.C.S. § 2701(a)(1). The Crimes Code defines “Bodily injury”

as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

      The evidence is more than sufficient to sustain Appellant’s convictions

for Aggravated Assault and Simple Assault. It was well within the province of

the jury to conclude that Appellant intended to kill or seriously injure Murray

when Appellant repeatedly stabbed him with a deadly improvised weapon after

Murray asked to use the telephone.          Appellant continued his attack until

correctional officers intervened to separate Appellant from Murray. Appellant

finally stopped when a correctional officer used pepper spray to subdue him.

      In addition, Appellant repeatedly provided inculpatory statements to

corrections officers and to others while speaking on the prison phones,

including statements about why he attacked Murray.              The jury could also

reasonably    infer   Appellant’s    criminal   intent   from     the   surrounding

circumstances; namely, that Appellant, a prisoner, possessed an improvised

contraband weapon inside the prison.          The Commonwealth also submitted


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J-A19017-17


sufficient evidence of Murray’s serious injuries, his hospitalization, and his

medical treatment, to which Appellant stipulated at trial. In contrast, there

was ample testimony, documentary evidence, and photographs of Appellant’s

lack of injuries.

        Appellant focuses his argument on the contradictory testimony by

various corrections officers. This aspect of his argument challenges the weight

of the evidence, and ignores our standard of review applicable to sufficiency

challenges.3 We must view all of the evidence in the light most favorable to

the Commonwealth as verdict winner and we may not reweigh the evidence

and substitute our judgment for that of the fact-finder. See Melvin, supra

at 39-40.

        Viewing the totality of the evidence in the light most favorable to the

Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of Aggravated Assault and Simple Assault. See Walls,

supra at 1032; Gray, supra at 568.

        PIC

        We next analyze Appellant’s conviction for PIC. Appellant once again

avers that the Commonwealth failed to disprove that Appellant acted in self-

defense, and argues that this negates Appellant’s criminal liability for the PIC

charge. Appellant’s Brief at 8.



____________________________________________


3   We discuss Appellant’s challenge to the weight of the evidence infra.

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      To sustain a conviction for PIC, the Commonwealth had to prove that

Appellant (1) possessed an instrument of crime, (2) with intent to employ it

criminally. See 18 Pa.C.S. § 907(a). Under the statute, an “instrument of

crime” is defined, in pertinent part, as “[a]nything specially made or specially

adapted for criminal use.” 18 Pa.C.S. § 907(d). While a fact-finder can infer

intent from the surrounding circumstances, intent cannot be inferred from

“mere possession of the weapon.” In re A.C., 763 A.2d 889, 891 (Pa. Super.

2000).   Further, a fact-finder cannot reasonably infer criminal intent if a

defendant used a weapon solely for self-defense. Id.

      A review of the record in the light most favorable to the Commonwealth,

giving the Commonwealth all favorable inferences, supports the trial court’s

conclusion that there was sufficient evidence to convict Appellant of PIC.

While a fact-finder cannot infer criminal intent from mere possession of a

weapon, this is a unique set of circumstances where Appellant is incarcerated

and there is no legal purpose to possess a weapon in prison. Possession of a

weapon by a prisoner in prison is “inherently criminal” and the fact-finder

could infer Appellant’s criminal intent from the surrounding circumstances,

namely that Appellant was incarcerated and possessed a weapon. See id.

      Further, there was substantial evidence that Appellant actually

employed the weapon criminally when he stabbed Murray. We have already

addressed Appellant’s self-defense claim as unsupportable; accordingly, that




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theory of relief does not negate Appellant’s criminal liability for this charge.

Thus, we conclude that the Commonwealth proved each element of PIC.

      Viewing the totality of the evidence in the light most favorable to the

Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of Aggravated Assault, Simple Assault, and PIC.

Appellant’s sufficiency challenges, thus, fail.

                            Weight of the Evidence

      We next address Appellant’s assertion that the jury’s verdict was against

the weight of the evidence because Officer Rosa’s testimony “was absolutely

and totally inconsistent, contradictory, unreliable[,] and speculative.”        See

Appellant’s Brief at 46-47.

      When considering challenges to the weight of the evidence, we apply

the following precepts.    “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none or some of the evidence and to

determine the credibility of the witnesses.” Commonwealth v. Talbert, 129

A.3d 536, 545 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016)

(quotation marks and citation omitted).         Resolving contradictory testimony

and   questions    of   credibility   are   matters   for   the   finder   of   fact.

Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). It is

well-settled that we cannot substitute our judgment for that of the trier of

fact. Talbert, supra at 546.




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      Moreover, “Appellate review of a weight claim is a review of the exercise

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

weight of the evidence.” Id. at 545-46. “Because the trial judge has had the

opportunity to hear and see the evidence presented, an appellate court will

give the gravest consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court’s determination that the verdict is [or

is not] against the weight of the evidence.” Id. at 546. “One of the least

assailable reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of the evidence

and that a new trial should be granted in the interest of justice.” Id.

      Furthermore, “in order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (quotation marks

and citation omitted).

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner, and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).




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      Appellant essentially asks us to reassess the credibility of the

eyewitnesses and reweigh the testimony and evidence presented at trial. We

cannot and will not do so. Our review of the record shows that the evidence

is not tenuous, vague, or uncertain, and the verdict was not so contrary to the

evidence as to shock the court’s conscience.

      We conclude the trial court properly exercised its discretion in

concluding that the jury’s verdict was not against the weight of the evidence.

Accordingly, Appellant is not entitled to relief on his weight claim.

                         Prosecutorial Misconduct

      Appellant’s next issue involves allegations of prosecutorial misconduct

during opening statements and closing arguments. In his opening statement,

the prosecutor described the lack of physical injuries to Appellant and

commented, in passing, that the prison placed Appellant “in the hole for sixty

days.”   N.T. Trial, 6/23/15, at 19.     During closing arguments, Appellant

objected to the prosecutor’s statement that Officer Rosa “was completely

honest and candid with you.”      N.T. Trial, 6/25/15, at 36.    The trial court

sustained Appellant’s objections made after both comments, but denied his

requests for a mistrial. Id.

      We review a trial court’s denial of a mistrial motion for abuse of

discretion. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). When

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

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


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inappropriate   remark   by   a   prosecutor   constitutes   reversible    error.”

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

omitted). “It is also well established that a trial court may grant a mistrial

only where the incident upon which the motion is based is of such a nature

that its unavoidable effect is to deprive the defendant of a fair trial by

preventing the jury from weighing and rendering a true verdict.”          Bryant,

supra at 728 (quotation marks and citation omitted).

      “While it is improper for a prosecutor to offer any personal opinion as to

the guilt of the defendant or the credibility of the witnesses, it is entirely

proper for the prosecutor to summarize the evidence presented, to offer

reasonable deductions and inferences from the evidence, and to argue that

the evidence establishes the defendant’s guilt[.]” Commonwealth v. Burno,

94 A.3d 956, 974 (Pa. 2014).

      Moreover, “[i]n 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 conduct. It is well settled

that the prosecutor may fairly respond to points made in the defense closing.”

Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012); see

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

a prosecutor is entitled to fairly respond to arguments made by defense

counsel in closing argument).      In fact, “[e]ven an otherwise improper




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comment may be appropriate if it is in fair response to defense counsel’s

remarks.” Burno, supra at 974.

      Opening Statement

      In this appeal, Appellant claims the court should have declared a mistrial

because the opening statements unfairly “brought to the attention of the jury

that there had been a disciplinary determination that [Appellant] was at fault

and, therefore, he was placed in punitive solitary confinement as punishment.”

Appellant’s Brief at 51-52.

      We disagree that this statement represents actionable prosecutorial

misconduct. The context of the prosecutor’s entire statement shows that he

was explaining to the jury what he expected the evidence to show, namely,

that comparing the extent of the victim’s serious injuries and subsequent

hospitalization with Appellant’s minimal and temporary pepper spray

impairment would show that Appellant was the aggressor and disprove his

self-defense claim.     Appellant directs us to no authority prohibiting a

prosecutor from mentioning a defendant’s detention in solitary confinement.

Moreover, we note that the trial court sustained Appellant’s objection, and the

prosecutor moved on to address other subjects in his opening statement.

      Appellant’s remaining complaint is that the trial court erroneously

rejected his request for a mistrial at this early stage of the proceedings against

him. The trial court denied the mistrial after determining that the prosecutor

had not acted improperly because the statements highlighted the comparative


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injuries between Appellant and the victim. Further, the trial court concluded

that   its   preemptive   curative   instructions   before   opening   statements

appropriately cautioned the jury that the statements of counsel did not

constitute evidence. Trial Court Opinion at 15. We agree, and conclude that

the trial court did not abuse its discretion in denying Appellant’s request for a

mistrial during opening statements.

       Closing Argument

       With respect to Appellant’s challenge to the prosecutor’s closing

argument regarding Officer Rosa’s testimony, we conclude it was a fair

response to Appellant’s counsel’s        repeatedly attacking Officer Rosa’s

credibility, both in his opening statement and closing argument. See, e.g.,

N.T. Trial, 6/23/15, at 28-29 (“The key officer is Officer [Rosa] . . . Officer

Rosa doesn’t really see what’s happening.”); id. at 30 (“Officer Rosa only

changed his testimony to say, [y]eah, my client was on the phone. And that’s

a big difference . . . Now, Mr. Rosa doesn’t really see it because he’s watching

the door. That’s why he’s confused.”); id. at 31 (“Because you’ll hear Officer

Rosa saying everything happened at 6:30, and then it changes to 5:30. It’s

really 5:23.”); N.T. Trial, 6/25/15, at 13 (“The critical thing of both Ms. Irving

and Ms. Cooper is they totally contradict Mr. Rosa.”); id. at 14 (“they totally

contradict Mr. Rosa.”); id. at 15 (“Now, what’s wrong with Mr. Rosa’s

testimony[?] The Problem is – besides totally contradicting his two colleagues

– there wasn’t a fight . . . he got the events totally backward. Absolutely


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backwards.”); id. at 16 (“If I didn’t subpoena those records in, who knows

where we would be because Rosa was wrong. Rosa got them confused. And

that’s critical in these matters.”); id. at 19 (“Now, we know that totally

contradicts the other two officers. In other words, he doesn’t know. He’s

either lying . . . or he’s mistaken.”); id. at 29 (“And that’s consistent with

what Rosa says. Not now, but it’s consistent with what Rosa said.”); id. at 31

(“and you go back to the confusion of Mr. Rosa, which you know we

straightened out with the phone records…”).

      Moreover, the trial court carefully instructed the jury on how to evaluate

the arguments of counsel, how to consider and weigh the testimony presented

at trial, and how to evaluate and weigh conflicting evidence. See N.T. Trial,

6/25/15, at 2-3, 56-63. We, therefore, conclude that the trial court did not

abuse its discretion in denying Appellant’s requests for a mistrial based on

Appellant’s claims of prosecutorial conduct.

         Refusal to Give “Adverse Inference” Jury Instruction

      In his next issue, Appellant avers that the trial court erred in failing to

instruct the jury that they could draw an adverse inference against the

Commonwealth based on the victim’s refusal to testify at trial. Appellant’s

Brief at 56.

      Our standard of review in assessing a trial court’s jury instruction is as

follows. “When evaluating the propriety of jury instructions, this Court will

look to the instructions as a whole, and not simply isolated portions, to


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determine   if   the   instructions   were   improper.”   Commonwealth        v.

Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations and quotation

omitted). A trial court has “broad discretion in phrasing its instructions, and

may choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.”     Id. (citations and

quotation omitted).      “Only where there is an abuse of discretion or an

inaccurate statement of the law is there reversible error.” Id. (citations and

quotation omitted).

      “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.

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

      A missing witness instruction may be given in limited circumstances.

“When a potential witness is available to only one of the parties to a trial, []

it appears this witness has special information material to the issue, and this

person’s testimony would not merely be cumulative, then if such party does

not produce the testimony of this witness, the jury may draw an inference

that it would have been unfavorable.” Commonwealth v. Boyle, 733 A.2d

633, 638 (Pa. Super. 1999) (citation and quotation omitted). However, this

Court has clarified at least six circumstances where a party is not entitled to

the missing witness adverse inference instruction:




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      1. The witness is so hostile or prejudiced against the party
      expected to call him that there is a small possibility of obtaining
      unbiased truth;

      2. The testimony of such a witness is comparatively unimportant,
      cumulative, or inferior to that already presented;

      3. The uncalled witness is equally available to both parties;

      4. There is a satisfactory explanation as to why the party failed to
      call such a witness;

      5. The witness is not available or not within the control of the party
      against whom the negative inference is desired; and

      6. The testimony of the uncalled witness is not within the scope of
      the natural interest of the party failing to produce him.

Boyle, supra at 638 (citation omitted).

      Here, the Commonwealth had the victim brought to the courthouse to

testify. According to the trial court, the victim, still an inmate, “repeatedly

refused to even leave the sheriff’s cell room located in the basement” of the

courthouse.   Trial Court Opinion at 19.      The trial court ordered the victim

physically removed from the cell room in shackles and put on the witness

stand to testify as a witness for the Commonwealth. Id. The victim refused

to state his name or otherwise cooperate, despite numerous warnings from

the trial court. Id. The trial court found the victim in direct criminal contempt

and removed him from the courtroom. Id.

      Appellant requested that the trial court provide a “missing witness”

instruction to the jury that, based on the victim’s refusal to testify, it could

draw an inference that the victim’s testimony would have been adverse to the


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Commonwealth. Id. The trial court denied Appellant’s request because the

Commonwealth did call the victim to the stand to testify and the victim was

equally available or unavailable to both parties.

       Our review of the record supports the trial court’s assessment.       The

victim was equally available to both the Commonwealth and Appellant at trial.

Moreover, the Commonwealth actually called the victim at trial and put him

on the witness stand. The Commonwealth had no control over the victim’s

refusal to cooperate and answer questions. Thus, Appellant was not entitled

to a missing witness adverse inference instruction and the trial court did not

err in refusing to provide such an instruction to the jury. We discern no abuse

of the trial court’s discretion.

                      Appellant’s Inculpatory Statements

       In his next issue, Appellant avers that the trial court erred in admitting

his own incriminating statement made to Officer Rosa—that Appellant would

have attacked Officer Rosa next if Officer Rosa had not pepper sprayed him—

because Officer Rosa had not disclosed the statement until the third day of

trial and the Commonwealth notified Appellant too late. Appellant’s Brief at

60-62.4


____________________________________________


4  Appellant does not allege in his Brief that the Commonwealth had
intentionally withheld the inculpatory statement in any way. Though Appellant
mentions the discovery rules in passing in his Brief, this aspect of his claim is
undeveloped and, thus, waived. Pa.R.A.P. 2119; see also Commonwealth
v. Perez, 93 A.3d 829, 838 (Pa. 2014) (undeveloped arguments without
supporting citations are waived).

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       The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted). “[A]n 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 or

the record.” Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super.

2001) (citation and quotation omitted).

       Pre-trial discovery in criminal cases is governed by Pennsylvania Rule of

Criminal Procedure 573. The rule lists certain items and information that are

subject to mandatory disclosure by the Commonwealth when they are: (1)

requested by the defendant, (2) material to the case, and (3) within the

possession or control of the prosecutor. These items include the substance of

any inculpatory statements and the identity of the person to whom it is made

when    in   the   possession   of   the   Commonwealth.      See   Pa.R.Crim.P.

573(B)(1)(b).

       Rule 573 also imposes a continuing duty to disclose: “If, prior to or

during trial, either party discovers additional evidence or material previously

requested or ordered to be disclosed by it, which is subject to discovery or

inspection under this rule, or the identity of an additional witness or witnesses,




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such party shall promptly notify the opposing party or the court of the

additional evidence, material, or witness.” Pa.R.Crim.P. 573(D).

      “[W]here the evidence is equally accessible or inaccessible to both the

Commonwealth and the defense, the defense cannot use the discovery rules

against the Commonwealth for its failure to produce the evidence.”

Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003) (citation

omitted).

      In the instant case, in reviewing his paperwork in preparation for his

trial testimony, Officer Rosa noticed his omission of the statement Appellant

had made to him, and immediately notified the prosecutor during trial, who

then immediately notified Appellant’s counsel. See Trial Court Opinion at 12.

      Upon learning of the statement during trial, Appellant immediately

requested that the trial court preclude this statement because the

Commonwealth disclosed it untimely, but the trial court refused to preclude

Officer Rosa’s testimony about Appellant’s inculpatory statement. Id. Even

though the trial court offered Appellant the opportunity to litigate a Motion to

Suppress given the untimely disclosure, Appellant “strategically declined” this

offer and instead chose to cross-examine Officer Rosa extensively about his




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untimely disclosure and omission within the report as part of his broader

attempt to undermine Officer Rosa’s credibility. Id.5

       We conclude the trial court properly admitted Officer Rosa’s testimony

regarding Appellant’s statement.           Because Officer Rosa had omitted the

statement from his official report of the assault, this evidence was equally

inaccessible to both the Commonwealth and the defense.6              As a result,

Appellant cannot use the discovery rules against the Commonwealth for its

failure to produce the evidence sooner. See Dent, supra at 585.

       Moreover, the Commonwealth complied with its continuing duty to

disclose by immediately notifying Appellant when Officer Rosa disclosed the

existence of Appellant’s inculpatory statement.        See Pa.R.Crim.P. 573(D).

Thus, the trial court properly rejected Appellant’s request to preclude his own

inculpatory statement to Officer Rosa.

       Because we discern no violation of Rule 573 by the Commonwealth, the

trial court did not err or abuse its discretion by refusing to preclude Appellant’s

inculpatory statement at trial.        Appellant’s arguments to the contrary are

unavailing and he is not entitled to relief.

____________________________________________


5 Officer Rosa testified that he did not believe the substance of Appellant’s
threat was important at the time detectives interviewed him because threats
by inmates were commonplace in prison. N.T., 6/24/15, at 62, 84-86.

6Arguably, the Commonwealth was at the bigger disadvantage since Appellant
made the statements and thus logically knew the statement existed, while the
prosecutor had no way of knowing about Officer Rosa’s omission prior to trial.



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                      Transcripts of Recorded Prison Calls

       In Appellant’s next issue, he avers that the trial court erred in permitting

the jury to take a transcript of his recorded prison telephone conversations to

the jury room during deliberations. Appellant’s Brief at 62-65.7 Appellant

conceded at trial that these recordings did not amount to his own confession,

which the jury would not be permitted to have during deliberations pursuant

to Pa.R.Crim.P. 646(C)(2). See N.T., 6/25/15, at 79. Here, he argues that

these “conversations were marginally relevant . . . [and the trial court] abused

her discretion in allowing these transcripts . . . to go back to the jury[.]”

Appellant’s Brief at 65.

       Ordinarily, “[w]hether an exhibit should be allowed to go out with the

jury during its deliberation is within the sound discretion of the trial judge.”

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012);

Pa.R.Crim.P. 646(A); see also Commonwealth v. Bango, 685 A.2d 564 (Pa.

Super. 1996).




____________________________________________


7 Appellant’s question presented also suggests that the trial court erred in
admitting this evidence at all, however, Appellant does not advance any
argument or cite relevant authority to support this claim. See Pa.R.A.P. 2119.
Appellant only argues that the trial court erred in allowing the jury to have
these transcripts during deliberations. Thus, Appellant has waived this aspect
of his claim. See Commonwealth v. McMullen, 745 A.2d 683 (Pa. Super.
2000) (finding issues waived where Appellant failed to develop any argument
for the claims and noting that meaningful appellate review is impossible in
such a situation).

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      This discretion, however, is not absolute. Pennsylvania Rule of Criminal

Procedure 646 expressly forbids juries from having certain enumerated

categories of exhibits during deliberations, including written defendant

confessions. See Pa.R.Crim.P. 646(C). “The underlying reason for excluding

certain items from the jury’s deliberations is to prevent placing undue

emphasis or credibility on the material, and de-emphasizing or discrediting

other items not in the room with the jury.” Commonwealth v. Strong, 836

A.2d 884, 888 (Pa. 2003). “If there is a likelihood [that] the importance of

the evidence will be skewed, prejudice may be found; if not, there is no

prejudice per se and the error is harmless.” Id.

      Where a recording has been admitted as evidence at trial, but the

transcripts of that recording have not, this Court has previously held that trial

courts may permit the jury to use the transcripts during deliberations “as an

aid in its assessment of the [recordings].”       Bango, supra at 566.        We

reasoned that “where materials inform a jury and aid it in the difficult task of

determining facts, the jury should be permitted to study those materials

during its deliberations.” Id.

      Appellant has failed to establish that the trial court abused its discretion

in permitting the jury to have these transcripts during deliberations.        The

transcripts were not forbidden under Pa.R.Crim.P. 646(C), so our Rules of

Evidence permitted the trial court to exercise its sound discretion in

determining whether to permit the jury to have these transcripts during


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deliberations. The trial court sent these transcripts to the jury in response to

their request during deliberations.    This occurred after the trial court had

admitted the recordings at trial, and after the jury had reviewed the

transcripts without objection while the Commonwealth played the recordings

for the jury.   Pursuant to Bango, supra, the trial court did not abuse its

discretion in allowing the jury to review the transcripts during deliberations.

Appellant is entitled to no relief.

                Victim’s Similar Attack Under Pa.R.E. 404(b)

      In his next issue, Appellant contends that the trial court improperly

precluded him from introducing hearsay evidence pursuant to Pa.R.E. 404(b)

that the victim “had attacked another inmate in a similar fashion at a prison

phone bank, and had pending criminal charges on that assault.” Appellant’s

Brief at 66. Appellant argues that this similar assault showed the victim’s

“propensity to violence” and a “common plan, scheme or design” pursuant to

only Pa.R.E. 404(b)(1). Id. at 66, 68-69.

      Pennsylvania Rule of Evidence 404 sets out the general rules and

exceptions pertaining to relevant evidence of crimes or other acts. Generally,

evidence of a victim’s violent propensities is inadmissible pursuant to Pa.R.E.

404(a)(1) and (b)(1).

      When considering the admissibility of evidence under the common plan

exception provided in Rule 404(b), “the trial court must first examine the

details and surrounding circumstances of each criminal incident to assure that


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the evidence reveals criminal conduct which is distinctive and so nearly

identical as to become the signature of the same perpetrator.” Tyson, supra

at 358-59 (citation omitted). Further, “the trial court must assure that the

probative value of the evidence is not outweighed by its potential prejudicial

impact upon the trier of fact.” Id. at 359. See generally Daniel J. Anders,

Ohlbaum on the Pennsylvania Rules of Evidence § 404.06 et seq. (2017 ed.

LexisNexis Matthew Bender).

       Given Appellant’s legal strategy, the only issue before this Court is

whether the trial court erred in refusing to admit this evidence of the victim’s

alleged prior attack of an inmate pursuant to Pa.R.E. 404(b).8        Appellant

emphasizes that the trial court should have admitted this evidence because it

demonstrated the victim’s “propensity toward violence, and . . . a common



____________________________________________


8  Where a criminal defendant faces charges of a violent crime he may offer
evidence of the victim’s violent propensities to prove his own innocence
pursuant to Pa.R.E. 404(a)(2).         If such evidence is admitted the
Commonwealth may offer evidence not only in rebuttal, but the
Commonwealth may “offer evidence of the defendant’s same trait[,]” i.e.,
evidence of the defendant’s own violent propensities. Pa.R.E. 404(a)(2)(B).
“Thus, the jury will receive a balanced picture of the two participants to help
it decide who was the first aggressor.” Pa.R.E. 404, Comment.

Here, Appellant did not attempt to comply with Pa.R.E. 404(a)(2), the specific
and applicable evidentiary rule regarding evidence of a victim’s pertinent
character trait as a violent person. The Commonwealth avers this was a
transparent legal strategy: had Appellant followed the appropriate rules to
admit the victim’s violent attack in order to prove the victim’s violent
propensities and Appellant’s own innocence, the Commonwealth would have
likely sought to admit Appellant’s own violent prior Third-Degree Murder
conviction as rebuttal evidence.

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plan, scheme[,] and design type of effect showing that [the victim] was an

aggressor in these types of situations.” Appellant’s Brief at 66.

       Appellant failed to meet the common plan, scheme, or design exception

because the instant crime and the victim’s other assault in prison near the

phone bank are not so “distinctive and so nearly identical as to become the

signature of the same perpetrator.” Tyson, supra at 359. While they were

both purportedly assaults in prison near the phone bank, the factual overlap

between the two incidents does not go beyond the commission of crimes or

conduct of the same general class.

       Moreover, the trial court did not abuse its discretion in precluding this

“unfairly prejudicial and potentially misleading hearsay evidence that clearly

outweighed the probative value in violation of the rules of evidence.” Trial

Court Opinion, 6/10/16, at 12. Given the legal maneuvering by Appellant to

admit this evidence while precluding the evidence of his own violent Murder

conviction, the trial court acted properly in refusing to mislead the jury and in

determining that the probative value of the victim’s purported prior attack did

not outweigh its potential for unfair prejudice.9




____________________________________________


9 Essentially, Appellant attempted to rely on a more general evidentiary rule
when a very specific evidentiary rule controlled. Insofar as Appellant sought
to avoid the application of Rule 404(a), the trial court properly rejected
Appellant’s attempt to circumvent the proper application of the Pennsylvania
Rules of Evidence.


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                         After-Discovered Evidence

      In his final claim, Appellant argues that he is entitled to a remand to the

trial court for consideration of an after-discovered evidence claim regarding

two new alleged eyewitnesses to the instant assault case, who wrote letters

to Appellant’s attorney after the trial detailing their proffered observations and

testimony.

      “A post-sentence motion for a new trial on the ground of after-

discovered evidence must be filed in writing promptly after such discovery.”

Pa.R.Crim.P. 720(C).      The Comment to Rule 720 explains that “after-

discovered evidence discovered during the direct appeal process must be

raised promptly during the direct appeal process, and should include a request

for a remand to the trial judge[.]” Pa.R.Crim.P. 720, Comment.

      “To warrant relief, after-discovered evidence must meet a four-prong

test: (1) the evidence could not have been obtained before the conclusion of

the trial by reasonable diligence; (2) the evidence is not merely corroborative

or cumulative; (3) the evidence will not be used solely for purposes of

impeachment; and (4) the evidence is of such a nature and character that a

different outcome is likely.” Commonwealth v. Rivera, 939 A.2d 355, 359

(Pa. Super. 2007) (citation omitted).

      Appellant avers that while his claim was pending on appeal in this Court,

Larry Williams sent Appellant’s attorney a letter on August 12, 2016, over a

year after Appellant was sentenced, claiming that the victim “told him a few


                                     - 29 -
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hours before the incident that he was going to stab [Appellant] because he

didn’t like what he did at the phones. [Williams] then observed the incident

and saw [the victim] was the aggressor and [Appellant] was defending

himself.” Appellant’s Brief at 70.

      Appellant also avers that Tony Mason also sent Appellant’s attorney a

letter on August 20, 2016, indicating that he observed the assault, saw the

victim attack Appellant, and would have provided favorable testimony to

Appellant at trial. Id. Appellant filed an Application for Remand on September

13, 2016, which this Court denied without prejudice to Appellant’s raising the

issue in his brief to this Court on appeal. Appellant has now done so and has

reiterated his request for an evidentiary hearing.          In its Brief, the

Commonwealth does not oppose remand “for the sole and limited purpose of

affording defendant the opportunity” to present his after-discovered evidence

claim to the trial court. Commonwealth’s Brief at 42. We agree.

      Based upon the information in the briefs and the certified record, we are

constrained to remand to provide the trial court the opportunity to develop

the record and to rule upon Appellant’s after-discovered evidence claim in the

first instance. See Rivera, supra at 358-59.

      Judgment of Sentence affirmed. Application for Remand granted. Case

remanded for further proceedings consistent with this Opinion. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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