J-S70041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
PETER CRAWLEY,                            :
                                          :
                   Appellant              :           No. 2022 EDA 2015

            Appeal from the Judgment of Sentence August 22, 2014
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0007325-2013

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 19, 2016

        Peter Crawley (“Crawley”) appeals, nunc pro tunc, from the judgment

of sentence imposed following his convictions of first-degree murder,

conspiracy, firearms not to be carried without a license, and carrying

firearms on public streets in Philadelphia.1 We affirm.

        On November 4, 2012, Lance Wilson (“Wilson”) was shot and killed in

Philadelphia, as part of an ongoing dispute between the residents of 7th and

Jefferson Streets, and the residents of 8th and Diamond Streets. On the day

of the shooting, Crawley asked Laquil Coates (“Coates”) to pick him up,

along with Jamil Davis (“Davis”), because he heard that “them boys” from

7th and Jefferson Streets were outside. Coates then picked up a fourth man,

known only as “Jack” or “SP” (“Jack”), and parked the car at 9 th and

Jefferson Streets.    The four men smoked marijuana and talked about a



1
    18 Pa.C.S.A. § 2502(a), 903, 6106(a)(1), 6108.
J-S70041-16


friend, Peter Hopkins (“Manayunk”), who had been killed several months

earlier.   Crawley stated that he was going to “get” “whoever [they saw]”

from 7th and Jefferson Streets to retaliate for Manayunk’s death.

      The four men left the vehicle and walked toward a Chinese restaurant,

where Wilson and his girlfriend were waiting outside. Crawley, Davis, and

Jack were armed with handguns. Crawley and Davis fired their weapons in

the direction of Wilson. Crawley fired approximately 7 times, and Davis fired

approximately 4 or 5 times.2 Wilson died as a result of a gunshot wound in

his back.    As the four men fled the scene in Coates’s vehicle, Crawley

bragged to the others about shooting Wilson.

      Dr. Gary Collins (“Dr. Collins”), the Deputy Chief Medical Examiner for

the Philadelphia Medical Examiner’s Office, ruled Wilson’s death a homicide,

stating that he suffered a gunshot wound to his back, which pierced the

pulmonary artery and caused extensive internal bleeding.

      Following a jury trial, Crawley was convicted of the above-mentioned

crimes. The trial court sentenced Crawley to a term of life in prison without

the possibility of parole. Crawley filed a timely Notice of Appeal. Crawley’s

trial counsel failed to file a docketing statement pursuant to Pa.R.A.P. 3517,

and this Court dismissed the appeal.



2
  Eleven 9-millimeter cartridge casings, three projectiles, and one copper
fragment were recovered from the scene. Four of the casings were fired
from one gun, and seven were fired from a second gun. A bullet jacket from
a third weapon was also recovered.


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         The trial court subsequently appointed Crawley new appellate counsel,

who filed a second Notice of Appeal. The appeal was dismissed as untimely

filed.

         Crawley, unopposed by the Commonwealth, filed a PCRA Petition,

asking the PCRA court to reinstate his appellate rights.         The PCRA court

reinstated Crawley’s appellate rights, nunc pro tunc, on June 25, 2015.

Crawley filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of Matters Complained of on Appeal.

         On appeal, Crawley raises the following issues for our review:

         1. [Whether] the evidence was insufficient to support the verdict
         of first[-]degree murder for the following reasons:

              A. Voluntary intoxication sufficient to negate specific
              intent, where all the evidence supports the
              contention that the co-conspirators committed this
              crime after smoking three “dutches” containing
              marijuana.        The marijuana, combined with
              [Crawley’s] overwhelming grief at the death of
              [Manayunk] and state of fear caused by the ongoing
              tensions, overcame him to the point of causing him
              to lose control of his faculties and sensibilities[?]

              B. Lack of specific intent, where the evidence
              establishes conclusively that this shooting was an
              outburst of retaliative feeling, meant primarily to
              express anger and grief arising from a prior murder,
              and that the shooters did not intend to kill any
              particular person[?]

              C. Heat of passion, where the killing of a friend and
              ongoing tensions and violence, requiring him to be
              hyper-vigilant at all times for fear that his life might
              be taken, brought about a combination of rage,
              resentment, and terror such that any young man in
              his position would become impassioned to the extent


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           that his mind was rendered incapable of cool
           reflection[?]

           D. Lack of reliable evidence, where all of the
           evidence that [Crawley] fired a gun came from
           witnesses who were involved in the underlying event
           and had strong incentives to shift blame and to seek
           favorable treatment in this and other unrelated
           criminal matters, and where it is just as likely as not
           that [] Davis [] and [Jack], [] the brother of
           [Manayunk,] [] accomplished the shooting without
           [Crawley’s] involvement[?]

     Put simply, even when viewed in the light most favorable to the
     Commonwealth, was this not a case of, at worst, third[-]degree
     murder[,] and[,] thus[,] should not the jury verdict of
     first[-]degree murder, and the [O]rder of sentence imposed
     therefrom, be reversed?

     2. [Whether] the weight of the evidence is against the verdict,
     given the polluted and corrupt nature of the testimony that was
     the sole evidentiary link between [Crawley] and the shooting, as
     argued supra?

     3. [Whether] the trial court erred in denying [Crawley’s]
     [Motions] for a redaction and mistrial []?

Brief for Appellant at 4-5 (issues renumbered).

     In his first claim, Crawley argues that there was insufficient evidence

to support his first-degree murder conviction, and offers four separate sub-

issues for our consideration. See id. at 11, 15-16, 17-18.

            The standard we apply in reviewing the sufficiency of the
     evidence is 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. In applying
     the above test, we may not weigh the evidence and substitute
     our prior judgment for the fact-finder. In addition, we note that
     the facts and circumstances established by the Commonwealth
     need not preclude every possibility of innocence. Any doubts


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      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact, while passing upon the credibility of witnesses and
      the weight of the evidence produced[,] is free to believe all, part
      or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      We will address Crawley’s first and second sub-issues together, as

both challenge the element of specific intent required to establish first-

degree murder.     In his first sub-issue, Crawley argues that he lacked the

specific intent to commit first-degree murder because he was “thunderously

inebriated at the time of the shooting,” after smoking three “dutches” of

marijuana. Brief for Appellant at 11, 13. Crawley asserts that, despite the

trial court’s instruction on specific intent, the jury failed to take into account

all of the evidence regarding his state of mind.      Id. at 13. In his second

sub-issue, Crawley contends that there was insufficient evidence to prove

that he had formed the specific intent to commit first-degree murder

because the shooting was an “outburst of retaliative feeling,” and he “did not

intend to kill any particular person.”     Id. at 11, 15.    Crawley likens his

actions to the firing of a “warning shot” in a reckless or grossly negligent




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manner, and argues that, therefore, the shooting should be considered

involuntary manslaughter rather than first-degree murder. Id. at 14-15.

      In order for a jury to find a defendant guilty of first-degree murder,

“the Commonwealth must prove, beyond a reasonable doubt, that a human

being was unlawfully killed, that the accused was responsible for the killing,

and that the accused acted with a specific intent.”       Commonwealth v.

Pagan, 950 A.2d 270, 279 (Pa. 2008); see also 18 Pa.C.S.A. § 2502(a).3

“A specific intent to kill may be proved by wholly circumstantial evidence and

may be inferred by the defendant’s use of a weapon on a vital part of the

victim’s body.”   Commonwealth v. Miller, 897 A.2d 1281, 1285 (Pa.

Super. 2006).

      A deadly weapon is defined as “[a]ny firearm, whether loaded    or
      unloaded, or any device designed as a weapon and capable        of
      producing death or serious bodily injury, or any other devise   or
      instrumentality which, in the manner in which it is used or     is
      intended to be used, is calculated or likely to produce death   or
      serious bodily injury.”

Pagan, 950 A.2d at 279 (internal citations omitted); see also 18 Pa.C.S.A.

§ 2301.

      Crawley’s first argument raises a voluntary intoxication defense.4



3
  Conspicuously absent from the statutory definition of first-degree murder is
the requirement that a defendant intended to kill a particular person. See
18 Pa.C.S.A. § 2502.
4
  Although Crawley did not specifically raise an intoxication defense at trial,
there was evidence presented at trial that Crawley smoked marijuana on the
day of the shooting. See N.T., 8/19/14, at 110-11.


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     To establish a diminished capacity defense, a defendant must
     prove that his cognitive abilities of deliberation and
     premeditation were so compromised, by mental defect or
     voluntary intoxication, that he was unable to formulate the
     specific intent to kill. The mere fact of intoxication does not give
     rise to a diminished capacity defense. Rather, a defendant must
     show that he was overwhelmed to the point of losing his
     faculties and sensibilities to prove a voluntary intoxication
     defense. Evidence that the defendant lacked the ability to
     control his or her actions or acted impulsively is irrelevant to
     specific intent to kill….

Commonwealth v. Spotz, 47 A.3d 63, 90-91 (Pa. Super. 2012) (citation

omitted).   A voluntary intoxication defense may only be offered to reduce

murder from a higher degree to a lower degree. See 18 Pa.C.S.A. § 308.

     Crawley makes no attempt to show that he was so intoxicated that “he

was overwhelmed to the point of losing his faculties and sensibilities.”

Spotz, 47 A.3d at 91.    Additionally, there is no evidence in the record to

suggest that Crawley was intoxicated to such an extent. On the day of the

shooting, Crawley and the other men shared three “dutches” of marijuana.

See N.T., 8/19/14, at 110-11.     The trial court found that “there was no

evidence of the amount of marijuana contained in each of the [dutches], the

period of time over which the dutches were consumed by [Crawley,] or what

portion of the dutches [Crawley] smoked relative to the other males.” Trial

Court Opinion, 9/18/15, at 9. Crawley does nothing more than present the

fact of intoxication as evidence that he lacked the specific intent to commit

first-degree murder.    However, “the mere fact of intoxication” is not

sufficient to support a diminished capacity defense. See Spotz, 47 A.3d at



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91; see also Commonwealth v. Carpenter, 617 A.2d 1263, 1265 (Pa.

1992) (concluding that trial counsel was not ineffective for failing to raise a

voluntary intoxication defense where there was no evidence to show that the

appellant was so intoxicated that he was incapable of forming a specific

intent to kill). Accordingly, Crawley has not met his burden in proving that

he was so intoxicated at the time of the crime that he lost control of his

faculties and sensibilities.

      Here, the evidence presented at trial shows that on the day of the

shooting, Crawley called Coates and asked him to pick him up because

“them boys” from 7th and Jefferson Streets were outside.            See N.T.,

8/19/14, at 70-72. Coates testified that Crawley and Davis got into the car,

and drove toward City Hall to pick up Jack. See id. at 73-74. Both Coates

and Davis testified that the four men started smoking marijuana and talking

about Manayunk, who was allegedly killed by a resident of 7th and Jefferson

Streets. See id. at 74-75; see also N.T., 8/20/14, at 28. Coates testified

that Crawley told the others that he was “going to do what they did to

Manayunk” to “whoever [they saw] down on 7th Street.” N.T., 8/20/14, at

27-28.

      Coates testified that Crawley, Davis and Jack got out of the car and

began walking towards a Chinese restaurant, where Wilson and his girlfriend

were waiting outside. See N.T., 8/19/14, at 76-77. Coates also stated that

Crawley and Davis were the two shooters; he saw them fire toward Wilson;



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and he heard approximately nine to eleven shots. See id. at 77-78. Davis

testified that he and Crawley were shooting, and that he was unable to

discern whether Jack was shooting.      See N.T., 8/20/14, at 29-31.      Both

Coates and Davis testified that when they drove back to 8th and Diamond

Streets, Crawley was bragging about shooting Wilson.       See id. at 31-32;

see also N.T., 8/19/14, at 80.

      Dr. Collins testified that Wilson’s death was a homicide, caused by a

gunshot wound to his back. See N.T., 8/19/14, at 120. Dr. Collins stated

that the bullet entered Wilson’s back just below the scapula and traveled

toward the front of the chest cavity.   See id. at 120-21.     Dr. Collins also

testified that the bullet pierced the pulmonary artery, which resulted in

extensive internal bleeding. See id. at 121.

      We conclude that the evidence of record, viewed in the light most

favorable to the Commonwealth as the verdict winner, was sufficient to

establish that Crawley was one of the shooters.      See Commonwealth v.

Ragan, 645 A.2d 811, 818 (Pa. 1994) (holding that there was sufficient

evidence to sustain a conviction for first-degree murder where the

Commonwealth presented eyewitness testimony identifying the killer).

Crawley’s comments to the others before and after the shooting evidenced

his intent to kill Wilson, or anyone else who might be on the street at 7th and

Jefferson.   See Commonwealth v. Cook, 676 A.2d 639, 644 (Pa. 1996)

(finding sufficient evidence to sustain a conviction of first-degree murder



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where   “inculpatory   statements   appellant   made   to     numerous   parties

demonstrated that appellant deliberately planned to murder the victim”).

Further, we conclude that the evidence, viewed in the light most favorable to

the Commonwealth, clearly supports a finding of specific intent, based upon

Crawley’s use of a deadly weapon to inflict injury on a vital part of Wilson’s

body. Thus, Crawley cannot succeed on his claim that there was insufficient

evidence to sustain his conviction for first-degree murder.

      In his third sub-issue, Crawley argues that his crime should be

characterized as voluntary manslaughter resulting from the heat of passion,

rather than as first-degree murder. Brief for Appellant at 17-18. Crawley

asserts that, due to the ongoing tensions between the residents of the two

neighborhoods, and the death of one of his friends, he was in a state of

rage, resentment, and terror that caused him to “snap.” Id. at 18-19.

      “‘Heat of passion’ includes emotions such as anger, rage, resentment

or terror, which renders the mind incapable of reason.” Commonwealth v.

Mason, 741 A.2d 708, 714 (Pa. 1999) (citation omitted).

      An objective standard is applied to determine whether the
      provocation was sufficient to support the defense of “heat of
      passion” voluntary manslaughter.         The ultimate test for
      adequate provocation remains whether a reasonable man,
      confronted with this series of events, became impassioned to the
      extent that his mind was incapable of cool reflection.

Commonwealth v. Miller, 987 A.2d 638, 650 (Pa. 2009) (internal citations

and quotation marks omitted). “Absent evidence of negligence or accident,

a ‘heat of passion’ voluntary manslaughter charge is improper where the


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victim is not the person who provoked the defendant.” Commonwealth v.

Ragan, 743 A.2d 390, 397 (Pa. 1999) (citations omitted).

      Crawley argues that he was “provoked” by the recent death of

Manayunk, and a fear that he might also be targeted.           Neither of these

“provocations” is sufficient to mitigate his conviction to “heat of passion”

voluntary manslaughter. Manayunk was killed about six months prior to the

murder of Wilson. See N.T., 8/20/14, at 24; see also N.T., 8/19/14, at 72.

Six months is more than a sufficient amount of time to engage in cool

reflection.   See Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012)

(stating that the appellant had sufficient time to engage in cool reflection

where the victim’s threats toward the appellant were made weeks prior to

the shooting).    Additionally, there was no evidence presented at trial to

suggest that Crawley was in fear of his life. In fact, his stated purpose was

to kill anyone he might happen to see on 7th Street, in retaliation for

Manayunk’s death.     See N.T., 8/20/14, at 27-28; see also Trial Court

Opinion, 9/18/15, at 12 (wherein the trial court noted that “[Crawley] was

the aggressor who set [out] on a mission to indiscriminately kill anyone who

happened to be on the street at 7th and Jefferson when he and others,

armed with handguns, arrived at that location and opened fire, effectively

ambushing [Wilson] and taking his life.”).     Finally, as noted above, we

conclude that there is sufficient evidence to sustain Crawley’s first-degree

murder conviction. Accordingly, this claim is without merit.



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      In his fourth sub-issue, Crawley claims that there was insufficient

evidence to prove that he was the shooter because the evidence presented

at trial was unreliable. Brief for Appellant at 15. Crawley argues that the

evidence is from “corrupt and polluted sources,” because the witnesses were

all involved in the underlying event, and, therefore, had a motive to blame

Crawley. Id. at 15-16. Additionally, Crawley claims that Davis and Coates

had a motive to testify for the Commonwealth at trial in order to advance

their interests in their own open cases, and, therefore, their testimony is

unreliable. Id. at 16-17. Crawley argues that, “[w]ithout the testimony of

Coates and Davis, there is no tie between [Crawley] and this shooting.” Id.

at 17. Crawley also asserts that, based on the evidence presented at trial, it

is just as likely that Davis fired the fatal shot. Id. at 16-17.

      Crawley’s claims challenge the weight, rather than the sufficiency, of

the evidence.5 See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014) (stating that “[a]n argument regarding the credibility of a witness’s

testimony goes to the weight of the evidence, not the sufficiency of the

evidence.”)    (citation   and    quotation    marks    omitted);   see   also

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (stating that

“[q]uestions concerning … improper motive go to the credibility of the

5
  In his second claim, Crawley asserts that the verdict is against the weight
of the evidence, due to the “corrupt and polluted nature of the testimony.”
Brief for Appellant at 24-25. Crawley claims that the witnesses testified
against him at trial to further their own interests, and therefore, their
testimony is unreliable. Id. at 26. Because these claims are similar, we will
address them together.


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witnesses.”). A challenge to the weight of the evidence must be raised with

the trial judge before sentencing, or in a post-sentence motion.            See

Pa.R.Crim.P. 607.

      Here, Crawley did not raise a challenge to the weight of the evidence

with the trial court before sentencing, and he did not file a post-sentence

motion.    Therefore, his weight of the evidence claim is waived. 6         See

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009) (holding that

the appellant waived his weight of the evidence claim by not raising it before

the trial court).

      Further, to the extent that Crawley argues that there was insufficient

evidence to prove that he was one of the shooters, his claim is without

merit. As noted above, there was sufficient evidence to prove that Crawley

was one of the shooters. Moreover, because the jury convicted Crawley of

both first-degree murder and conspiracy, the jury was not specifically

required to find that Crawley fired the fatal shot; in fact, the jury was not

required   to   find   that   Crawley   was   one   of   the   shooters.    See

6
  “The jury, as the finder of fact, had the duty to determine the credibility of
the testimony and evidence presented at trial.” Talbert, 129 A.2d at 546;
see also DeJesus, 860 A.2d at 107 (stating that “[t]his Court cannot
substitute its judgment for that of the jury on issues of credibility.”).
Further, during its general instructions, the trial court told the jury that they
could consider a witness’s potential bias or personal interests in making a
credibility determination. See N.T., 8/20/14, at 147-48. Additionally,
during trial, the jury was made aware that Davis had entered into a
Memorandum of Agreement for his participation in the crime, and the
contents of the Agreement were fully explained to the jury. See id. at 37-
41. The trial court also instructed the jury that they were free to believe all,
some or none of the testimony of any witness. See id. at 147.


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Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008) (stating that

“each member of a conspiracy to commit homicide can be convicted of first-

degree murder regardless of who inflicted the fatal wound.”).

      In his third claim, Crawley avers that the trial court erred in denying

his Motion for redaction regarding a portion of a statement he made to

police, which included a reference to his pretrial incarceration. 7   Brief for

Appellant at 19-20. Crawley also asserts that the trial court erred in denying

his subsequent Motion for mistrial.   Id. at 19-20.   Crawley challenges the

following portion of his statement:

      [Police Officer]: When was the last time you saw or talked to
      [Coates]?

      [Crawley]: When we was locked up together at CFCF.

      [Police Officer]: When were you locked up?

      [Crawley]: I got locked up on January 17, 2013, from the PO
      office.[8]

N.T., 8/20/14, at 20 (footnote added); see also id. at 97. Crawley claims

that this portion of his statement has no probative value, and had a


7
 Crawley made the statement to police after he received Miranda warnings.
See Miranda v. Arizona, 384 U.S. 436 (1966); see also Trial Court
Opinion, 9/18/15, at 6, 12-13; N.T., 8/20/14, at 89.
8
  “CFCF” refers to the Curran-Fromhold Correctional Facility. “PO” is a
reference to a parole officer. Before the Commonwealth introduced the
statement at trial, Crawley’s trial counsel asked the trial court to redact the
references to his prior bad acts. See N.T., 8/20/14, at 14-18. The trial
court denied Crawley’s Motion to redact. See id. at 20. Crawley’s trial
counsel then moved for mistrial, and the trial court denied the Motion. See
id. at 21.


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prejudicial effect because it referred to prior bad acts and his pretrial

incarceration. Brief for Appellant at 20, 22. Further, Crawley argues that

the statement should have been redacted to exclude references to pretrial

incarceration, and that the trial court failed to engage in proper balancing

under Pa.R.E. 404(b)(2). Id. at 21-22.

             [T]he decision of whether to grant a mistrial is within the
      sound discretion of the trial court, and will not be reversed on
      appeal absent an abuse of that discretion. The remedy of a
      mistrial is an extreme one that is required only when an incident
      is of such a nature that its unavoidable effect is to deprive the
      defendant of a fair and impartial trial by preventing the jury from
      weighing and rendering a true verdict.

Commonwealth v. Begley, 780 A.2d 605, 624 (Pa. 2001) (citations

omitted).     Further, “[m]ere passing references to criminal activity will not

require reversal unless the record indicates that prejudice resulted from the

reference.”    Commonwealth v. Stafford, 749 A.2d 489, 496 (Pa. Super.

2000) (citation omitted).

      Here, the challenged portion of Crawley’s statement includes a brief

reference to being “locked up,” and a brief reference to being in contact with

a parole officer.    See N.T., 8/20/14, at 20, 97.      There was no further

explanation about CFCF, or any specific crimes committed by Crawley. It is

not clear that the statement refers to incarceration for a prior crime rather

than Crawley’s pretrial incarceration for the shooting at issue.            See

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003) (stating that

“there is no rule in Pennsylvania which prohibits reference to a defendant’s



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incarceration awaiting trial or arrest for the crimes charged.”). Even if the

references were made in regard to incarceration for a prior crime, there is

nothing in the record to suggest that such fleeting statements prejudiced

Crawley. See Commonwealth v. Johnson, 666 A.2d 690, 695 (Pa. Super.

1995) (concluding that a witness’s statement that he knew the defendant

“just got out of jail” was not so prejudicial as to require a mistrial, because it

was a passing remark, and it was not intentionally elicited by the

Commonwealth). Moreover, given the overwhelming evidence of Crawley’s

guilt presented at trial, any potential prejudice the references may have

caused was harmless.       See Stafford, 749 A.2d at 496-97 (stating that

“[h]armless error is present when the properly admitted evidence of guilt is

so overwhelming and the prejudicial effect of the error is so insignificant by

comparison that it is clear beyond a reasonable doubt that the error could

not have contributed to the verdict.”) (citation and quotation marks

omitted). Thus, Crawley’s final claim is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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