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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
WAYNE JEFFREY SNOWDEN,                  :          No. 706 EDA 2015
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence, January 22, 2015,
            in the Court of Common Pleas of Chester County
            Criminal Division at No. CP-15-CR-0001620-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 29, 2016

     Wayne Jeffrey Snowden appeals from the judgment of sentence

entered on January 22, 2015, after a jury convicted him of one count of

simple assault with a deadly weapon, one count of simple assault, and one

count of recklessly endangering another person. We affirm.

     The trial court set forth the following factual and procedural history:

           1.    At approximately 4:50 p.m. on May 9, 2014, in
                 Pottstown, North Coventry Township, Chester
                 County, an eight year old boy (“A.J.”), was
                 riding his bicycle near Defendant’s home.

           2.    At that same time, Defendant walked out onto
                 his porch and discharged his firearm in A.J.’s
                 direction. A loud bang was heard.

           3.    A.J. felt a pinch in his thigh as the bullet went
                 “through and through.” He began to run up
                 the street but was stopped by an adult who
                 was dropping off his daughter at a dance
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                 studio.   Someone in the dance studio called
                 911.

           4.    Paramedics and Detective Tim Prouty, along
                 with other Police Officers with the North
                 Coventry   Township     Police   Department,
                 responded to the 911 call. Upon arriving, the
                 paramedics began treating A.J. and the police
                 began an investigation into the suspected
                 shooting.

           5.    It was determined that A.J.’s injuries may be
                 life threatening and he was transported via
                 helicopter to the nearest trauma center at
                 Children’s Hospital of Philadelphia (“CHOP”).

           6.    A.J. was stabilized at the hospital, underwent
                 surgery, and has made a full recovery. After
                 the shooting, A.J. had nightmares and was
                 limited in his activities. At the time of trial,
                 A.J. was fully recovered.

           7.    Defendant was interviewed by police and
                 seemed cooperative with the investigation.
                 Initially, Defendant stated that he had not
                 discharged his firearm and that he had no idea
                 who had shot A.J.         He then voluntarily
                 surrendered his licensed firearm for testing.

           8.    The forensic testing of the firearm revealed
                 that it had been discharged recently. Upon
                 further questioning by the police, Defendant
                 admitted he had discharged his firearm though
                 he indicated it was an accident.

Rule 1925(a) opinion, 7/10/15 at 4-5.

                 On May 9, 2014, [appellant] was arrested and
           charged with two counts of Aggravated Assault
           (18 Pa.C.S.[A]. §2702(a)(1) and 18 Pa.C.S.[A.]
           §2702(a)(9)), one count of Simple Assault With a
           Deadly Weapon (18 Pa.C.S.[A.] §2701(a)(2)), one
           count    of   Simple   Assault   (18    Pa.C.S.[A.]
           §2701(a)(1)), and one count of Recklessly


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          Endangering         Another       Person      (“REAP”)
          (18 Pa.C.S.[A.] §2705). The Commonwealth alleged
          that, on May 9, 2014, [appellant] discharged a
          firearm while standing on the front porch of his home
          resulting in the bullet striking an eight year old boy
          (“A.J.”) in the thigh.

                A jury trial began on December 1, 2014 and
          continued until the return of the verdict on
          December 4, 2014. [Appellant] was found guilty of
          one count of Simple Assault With A Deadly Weapon
          (18 Pa.C.S.[A.] §2701(a)(2)), one count of Simple
          Assault (18 Pa.C.S.[A.] §2701(a)(1)), and one count
          of REAP (18 Pa.C.S.[A.] §2705).        A sentencing
          hearing was held on January 22, 2015. At that time,
          [appellant] was sentenced to 9-18 months of
          incarceration on the Simple Assault With A Deadly
          Weapon conviction, and a consecutive 9 to
          18 months     of    incarceration on    the   REAP
          conviction.[Footnote 2]     The aggregate sentence
          imposed was 18 to 36 months of state incarceration.

                [Footnote 2] The second count of Simple
                Assault, pursuant to 18 Pa.C.S.[A.]
                §2701(a)(1), merged with the Simple
                Assault   With    A   Deadly    Weapon
                (18 Pa.C.S.[A.] §2701(a)(2)) count.

                 [Appellant] filed a Post Sentence Motion on
          February 2, 2015 and a Motion to Modify Sentence
          Nunc Pro Tunc. We granted [appellant’s] request to
          file his Motion to Modify Nunc Pro Tunc.
          Subsequently, on February 12, 2015, [appellant]
          filed a Motion to Modify Sentence and a Motion for
          Bail Pending Appeal. [Appellant’s] Motion to Modify
          Sentence was denied without hearing. Pa.R.Crim.P.
          720(B)(2)(b). A hearing on [appellant’s] Motion for
          Bail Pending Appeal took place on March 3, 2015.
          On March 24, 2015, we denied [appellant’s] Motion
          for Bail Pending Appeal.

                On March 10, 2015, [appellant] appealed our
          judgment of sentence and our denials of all [of] his
          post sentence motions. Our Rule 1925(b) Order was


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            docketed on March 16, 2015 and we granted
            [appellant’s] request for an extension of time to file
            his Concise Statement.[Footnote 3] [Appellant] filed
            his Concise Statement on May 29, 2015.

                   [Footnote 3] The Commonwealth had no
                   objection to [appellant’s] request for an
                   extension of time to file the Concise
                   Statement.

Rule 1925(a) opinion, 7/10/15 at 1-5.

      Appellant raises the following issues for our review:

            I.     Did the trial court abuse its discretion imposing
                   an aggregate sentence of eighteen months to
                   thirty-six months for the two misdemeanors of
                   Simple Assault and Recklessly Endangering
                   Another Person?

            II.    Did the trial court err in not granting a mistrial
                   when [the] Commonwealth stated numerous
                   times during its opening statement that
                   Appellant was “drunk”?

            III.   Did the trial court err in not granting a mistrial
                   when [the] Commonwealth improperly shifted
                   the burden of proof to the defense?

Appellant’s brief at 5.

      Appellant first challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether     to     affirm   the   sentencing   court's
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised   was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have


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            reached a different conclusion, but requires a result
            of   manifest     unreasonableness,       or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court's jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (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.
                  [720]; (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).

Moury, 992 A.2d at 170 (citation omitted).

      Here, in his Pa.R.A.P. 2119(f) statement and also in the argument

section of his brief, appellant asserts that the trial court failed to articulate

sufficient reasons, on the record, for its upward departure from the


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guidelines. He, therefore, raises a substantial question for our review. See,

e.g., Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),

citing Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super. 2001) (“[T]he

sentencing judge must state of record the factual basis and specific reasons

which compelled him or her to deviate from the guideline ranges.            When

evaluating a claim of this type, it is necessary to remember that the

sentencing guidelines are advisory only.”); Commonwealth v. Rodda, 723

A.2d 212, 214 (Pa.Super. 1999) (en banc), quoting Commonwealth v.

Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (“Where the appellant

asserts that the trial court failed to state sufficiently its reasons for imposing

sentence outside the sentencing guidelines, we will conclude that the

appellant has stated a substantial question for our review.”).

            When the sentence imposed is outside the
            sentencing guidelines, moreover, the court must
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines. This requirement is satisfied when the
            judge states his reasons for the sentence on the
            record and in the defendant’s presence.

Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),

reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and

quotation marks omitted).

      Here, the record belies appellant’s claim that the trial court failed to

articulate sufficient reasons, on the record, for its upward departure from



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the guidelines.   During the sentencing hearing, the trial court stated the

following reasons for its upward departure:

           THE COURT: All right. I went back and reviewed my
           notes from the trial. There were two things that I
           looked at. I looked at, reviewed my notes from the
           character witnesses, four character witnesses who
           testified. I reviewed the testimony of Mr. Donte
           Singleton whose testimony I thought made the most
           sense as an explanation as to what happened.

                 This is a difficult case. This is a difficult case
           because I truly believe, Mr. Snowden, that you had
           no intentions of hurting A.J. I do. I believe that. I
           think everybody does. Even his family has indicated
           that. However, I did not find you to be credible
           when you testified to the fact that you were fumbling
           with the gun in the pocket, keys got stuck.
           Mr. Singleton’s testimony made a lot more sense
           looking at all those circumstances.       And while I
           believe you’re remorseful that A.J. got hurt, I did not
           believe that it was an accident in that respect.

                 I think the Jury found properly when they
           found that you were reckless when you went out,
           pulled the trigger while the gun was pointed in a
           neighborhood full of children.

                 I was considering the fact that you don’t have
           a prior record score. You just have one DUI from so
           long ago. However that is taken into account in the
           guidelines, the ranges. Prior record score is taken
           into account when guidelines are set out.

           ....

                 All right. Mr. Snowden, I have given this a lot
           of thought. I’ve gone around and around about this,
           but I find that to give you a lesser sentence would
           diminish the seriousness of the crime and would not
           give due consideration to what A.J. and his family
           suffered because of your recklessness. So on count
           three, simple assault, you’re sentenced to nine to


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            eighteen months. You’ll have credit for time served
            from May 9th, 2014 until October 23, 2014.

            ....

                  On count five charging recklessly endangering
            another person you’re sentenced to nine to eighteen
            months, which will run consecutively to count
            three. . . .

Notes of testimony, 1/22/15 at 34-37.

      Contrary     to   appellant’s   assertion,   then,   the   record   clearly

demonstrates that the trial court did state its reasons, in open court and

with appellant present, justifying an upward deviation from the sentencing

guidelines. Therefore, this claim lacks merit.

      Appellant next complains that the trial court erred in not granting a

mistrial when the Commonwealth stated numerous times during its opening

statement that appellant was drunk at the time he fired the gun.

            With regard to the denial of mistrials, the following
            standards govern our review:

                   In criminal trials, the declaration of a
                   mistrial serves to eliminate the negative
                   effect wrought upon a defendant when
                   prejudicial elements are injected into the
                   case or otherwise discovered at trial. By
                   nullifying the tainted process of the
                   former trial and allowing a new trial to
                   convene, declaration of a mistrial serves
                   not only the defendant’s interests but,
                   equally important, the public’s interest in
                   fair trials designed to end in just
                   judgments. Accordingly, the trial court is
                   vested with discretion to grant a mistrial
                   whenever the alleged prejudicial event
                   may reasonably be said to deprive the


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                  defendant of a fair and impartial trial. In
                  making its determination, the court must
                  discern     whether      misconduct      or
                  prejudicial error actually occurred, and if
                  so, . . . assess the degree of any
                  resulting prejudice. Our review of the
                  resulting    order   is   constrained    to
                  determining whether the court abused its
                  discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’” Id. at 878 (citations omitted).

      “When an event prejudicial to the defendant occurs during trial only

the defendant may move for a mistrial; the motion shall be made when the

event is disclosed.”    Pa.R.Crim.P. 605(B); see also Commonwealth v.

McAndrews, 430 A.2d 1165, 1167 (Pa. 1981) (failure to make a timely

request for mistrial waives the issue) (citation omitted); Commonwealth v.

Stafford, 749 A.2d 489, 496 n.5 (Pa.Super. 2000) (holding that a claim of

prosecutorial misconduct in closing statement was waived for failure to

object at time the Commonwealth made the remark); Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).




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      Here, a review of the prosecution’s opening statement reveals that

appellant placed no objections on the record.1 Therefore, because appellant

failed to object to the Commonwealth’s remarks at the time the prosecutor

made them, appellant waives this claim.

      Appellant finally complains that the trial court erred in not granting a

mistrial when, as appellant claims, the Commonwealth improperly shifted

the burden of proof to the defense in its closing statement.

            It is well settled that a prosecutor has considerable
            latitude during closing arguments and his arguments
            are fair if they are supported by the evidence or use
            inferences that can reasonably be derived from the
            evidence. Further, 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. Prosecutorial misconduct is evaluated under
            a harmless error standard.

            We are further mindful of the following:

                  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 conduct. It
                  is well settled that the prosecutor may
                  fairly respond to points made in the
                  defense closing. Moreover, prosecutorial
                  misconduct will not be found where
                  comments were based on the evidence

1
  We note that defense counsel commented on his own failure to object to
the Commonwealth’s references that appellant was drunk at the time of the
shooting when he stated, “I didn’t object when [the Commonwealth] ten
times called my client drunk . . . .” (Notes of testimony, 12/4/14 at 19.)


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                  or proper inferences therefrom or were
                  only oratorical flair.

Hogentogler, 53 A.2d at 878 (quotations, quotation marks, and citations

omitted).

     Appellant contends that the prosecution improperly placed the burden

of proof on appellant when it made the following statements in its closing

argument:

            [THE COMMONWEALTH]: As you start to examine
            defense’s argument it can be summarized by, well,
            this could have happened, maybe this happened.
            Folks, maybe aliens came down, pulled the trigger
            for the defendant. I don’t know. I wasn’t there. Is
            it technically possible? Yeah, I guess. But just
            because something in some bazaar [sic] universe
            could have happen[ed] or something could have
            possibly happened, that’s not reasonable doubt.
            Reasonable doubt is something that’s real. It’s not
            something imagined.         Entire time in defense’s
            argument and on cross-examination, we heard [a]
            lot of questions well, isn’t this possible, couldn’t this
            have happened.        Sure.     We never heard any
            evidence that these wild other theories actually did
            happen.

Notes of testimony, 12/4/14 at 48-49. The colloquy continued as follows:

            [DEFENSE COUNSEL]:      Objection, Your Honor.
            Defense has no burden to present evidence in this
            case.

            THE COURT: Sustained.

            [THE COMMONWEALTH]: I will make it very clear,
            folks, defense has no burden at all. Defendant did
            not have to testify. Defendant does not have to
            speak to the police at any time during an
            investigation. I want to be very clear.



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Id. at 49.

      Appellant focuses on that portion of the prosecutor’s closing argument

in the first excerpt quoted above and contends that the prosecutor

attempted to shift the burden of proof to the defense by suggesting that the

defense was required to produce evidence and that it failed to do so.

(Appellant’s brief at 37-39.) In response, the Commonwealth argues that it

was entitled to respond to the defense’s closing argument concerning

appellant’s various defense theories advanced at trial and summarized in its

closing.   (Commonwealth’s brief at 27-28.)    In denying appellant’s motion

for mistrial at sidebar, the trial court stated that it sustained defense

counsel’s objection to the prosecutor’s statement to the extent that the

Commonwealth said that the defense had any burden of proof.        (Notes of

testimony, 12/4/14 at 58.) The court further stated that it wanted the jury

to be clear that defendant had no burden of proof and that it concluded that

the prosecutor cured that when he immediately stated, among other things,

that the “defense has no burden at all.” (Id.; see also trial court opinion,

7/9/15 at 7-8.) The trial court also concluded that the prosecutor’s remarks

had not prejudiced the jury. (Trial court opinion, 7/9/15 at 7.)

      Our review of the record, particularly the context of the challenged

remark, demonstrates that the trial court did not abuse its discretion. It is

well established that the prosecution is permitted to respond to arguments

made by the defense.     See, e.g., Commonwealth v. Thomas, 54 A.3d



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332, 340 (Pa. 2012); Commonwealth v. Hutchinson, 25 A.3d 277, 307

(Pa. 2011); Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008);

Commonwealth v. Carson, 913 A.2d 220, 237, 239-240 (Pa. 2006);

Commonwealth v. Brown, 414 A.2d 70, 78 n.6 (Pa. 1980) (“It is clear

that the prosecution may, in its closing address, attempt to meet the pleas

and arguments made by defense counsel in his summation.”).         Here, the

prosecutor properly responded to the defense’s various theories as to why

appellant did not act recklessly when he shot the victim, and, as such, the

prosecutor’s conduct fell well within the bounds of proper advocacy.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016




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