J.S26045/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
KAREEM HOGAN,                               :
                                            :
                            Appellant       :     No. 2723 EDA 2013


            Appeal from the Judgment of Sentence August 27, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division No(s).: CP-51-CR-0003016-2012

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 13, 2015

        Appellant, Kareem Hogan, appeals from the judgment of sentence of

twenty-six to fifty-two years’ imprisonment imposed after a jury found him

guilty of murder of the third degree,1 conspiracy,2 and carrying firearms in

public in Philadelphia.3      Appellant claims the evidence was insufficient to

sustain the conspiracy conviction and the trial court erred in refusing to

instruct the jury on voluntary manslaughter—heat of passion.           In nine



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 6108.
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additional arguments, Appellant asserts the Commonwealth committed

prosecutorial misconduct by suggesting he threatened witnesses, referring to

his pretrial incarceration, arguing inferences not supported by the trial

evidence, and mischaracterizing the issue of self-defense.4               We are

constrained to affirm.

        On January 6, 2012, Appellant was arrested and charged with general

homicide, conspiracy, and related weapons violations for the October 27,

2011 shooting death of Joel Negron (“decedent”).5 Appellant proceeded to a

jury trial that commenced on June 25, 2013. The trial court summarized the

evidence presented at Appellant’s jury trial.6

               On October 27, 2011, at approximately 6:30 p.m., in
           response to a radio call, Police Officer Antonio Smith, upon
           arrival at Waterloo and Westmoreland Streets in
           Philadelphia, saw [the decedent] lying on the sidewalk of
           Westmoreland Street. Police Officer Smith examined [the
           decedent’s] injuries, noting multiple bullet wounds. The
           officer did not observe a weapon on or about [the
           decedent]’s body. Within minutes an ambulance arrived
           and took [the decedent] to the hospital.

              At 7:17 p.m., [the decedent] died at Temple University
           Hospital.  Dr. Edwin Lieberman, an Assistant Medical
           Examiner and an expert in forensic pathology, concluded
           that [the decedent] died of gunshot wounds to his back
           and torso. [The decedent] had suffered three gunshot
           wounds. One shot was to his upper back, which fractured

4
    As noted below, we have reordered Appellant’s questions in this appeal.
5
  Appellant was eighteen years old at the time of the incident. Appellant’s
codefendant Brandon Sanabria was seventeen years old.
6
    Sanabria entered a negotiated plea on June 20, 2013.



                                      -2-
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       his sixth rib and hit his right lung. One shot was to his
       upper left back, which fractured his sixth rib and hit his left
       lung. One shot was to his front right side of the hip which
       exited through the right buttock.

          Police Officer Robert Flade of the Crime Scene Unit
       arrived at the scene at 8:08 p.m. Officer Flade recovered
       seven fired cartridge casings from the scene: five .25-
       caliber fired cartridge casings and two .40-caliber fired
       cartridge casings.

          According to Police Officer Raymond Andrejczak, an
       expert in firearms identification, the five .25-caliber fired
       cartridge cases recovered from the scene were fired from
       the same firearm. The two .40-caliber fired cartridge
       casings were fired from a separate firearm. The two
       projectiles recovered from [the decedent]’s body by the
       medical examiner’s office were both .25-caliber and fired
       from the same firearm.

          At trial, many of the witnesses in this case gave
       testimony that was inconsistent with the statements they
       gave to police. On November 25, 2011, Johnny Walker
       gave a statement to police. Walker explained that he was
       walking in the area of Front and Westmoreland Streets
       when he heard yelling and saw [Appellant] and Brandon
       Sanabria. [The decedent] and a friend were walking from
       Waterloo and Westmoreland Streets towards Hope Street.
       [The decedent] said “there’s that bitch ass nigga right
       there.” [Appellant] responded “[o]h, he [is] pulling.”
       [Appellant] and Sanabria pulled out their guns and started
       shooting at [the decedent. The decedent] said “[t]hat’s all
       your bitch ass nigga got?” [The decedent] walked to
       Waterloo and Westmoreland Street and then fell on the
       sidewalk.

           The day after the murder, Sanabria showed Walker a
       silver gun and asked if he wanted to buy it. Walker
       refused. Walker also told the police that he always saw
       [Appellant] carrying a black .40-caliber firearm on his




                                    -3-
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        hip.[7] At trial, Walker recanted, denying that gave the
        answers in his statement.

           On November 26, 2011, Fredrick Miller, [Appellant’s]
        [stepfather], gave a statement to police.        In the
        statement, Miller explained that on the night of the
        murder, he was at home at 3335 Waterloo Street when he
        heard about seven gunshots. [Appellant] and Sanabria ran
        into the house and put guns on the floor. Miller told
        [Appellant] and Sanabria to leave and they did. Monte
        Hogan, Miller’s stepson, put the guns in a bag in the
        corner.    About two hours later, Sanabria called and
        informed Monte Hogan that he was sending a woman to
        retrieve the guns. A woman called Goida arrived and took
        the guns to Sanabria’s house.

           The next day, [Appellant] came to Miller’s house and
        told him that he had been walking with Sanabria on
        Westmoreland Street when he saw [the decedent] walking
        with Edwin Laboy and Onehida Rodriguez. [The decedent]
        told [Appellant], “there goes those bitch niggas from
        Waterloo.” [The decedent] was trying to reach for a
        weapon, so [Appellant] pulled out his .40-caliber and tried
        to shoot, but it jammed. Sanabria then pulled out his .25-
        caliber firearm and shot [the decedent].        [Appellant]
        explained that the reason they were arguing with [the
        decedent] was that Yaniz Estrada had a conflict with
        people from Mascher Street about selling PCP on Waterloo
        Street.    [Appellant] and Sanabria didn’t want Estrada
        selling PCP on the block because they sold PCP on Mascher
        Street.

           At trial, although Miller confirmed that himself, [the
        decedent], and Estrada sold PCP in the area of Waterloo
        and Westmoreland Streets, he denied that [Appellant] and

7
  Walker previously gave a statement to police on November 15, 2011. A
detective read into the trial record his summary of the November 15th
statement, in which Walker described that the decedent’s friend was
reaching into his jacket. Based on that statement, Appellant suggested at
trial that either the decedent or Laboy was reaching for a weapon when
Appellant and Sanabria shot.     We note, however, the November 15th
statement was not contemporaneously transcribed or signed by Walker.



                                   -4-
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       Sanabria ran into hi[s] home with guns after the murder.
       Instead, he said that on the night of the murder after he
       heard gunshots he saw a group of people from Mascher
       and Mutter Streets yelling and running around.

          On November 26, 2011, Rafael Torres-Burgos gave a
       statement to police describing that on the night of the
       murder he was walking down Westmoreland Street to pick
       up his girlfriend when he heard arguing and yelling.
       Torres-Burgos heard about three gunshots and saw
       [Appellant] who was holding a gun and Sanabria running
       from Waterloo Street towards Howard and Hope Street.

          At trial, Torres-Burgos denied seeing [Appellant] and
       Sanabria shoot [the decedent]. Torres-Burgos testified
       that he was in his home when he heard two or three
       gunshots.     Torres-Burgos ran outside and saw [the
       decedent] laying on the ground and two people he did not
       recognize running away.

          On November 27, 2011, Yaniz Estrada gave a statement
       to police. In the statement, Estrada explained that about
       two or three days before [the decedent]’s murder she was
       on the 3300 block of Waterloo Street when she was
       approached by [Appellant] and Sanabria.       They asked
       Estrada if she was selling drugs and told her that she
       needed to stop selling. Estrada told them she was not
       selling drugs and they walked away. On the day of the
       murder, at about 5:00 p.m., Estrada arrived on the 3300
       block of Waterloo Street. While she was in the area she
       said hello to [the decedent] and then went home.

          At trial, Estrada confirmed that she was on the block on
       the day of the murder and had said hello to [the
       decedent].     Estrada denied that two days before the
       murder, [Appellant] and Sanabria had approached her.
       She also denied selling drugs at the time of the murder.

          On November 27, 2011, Edwin Laboy gave a statement
       to police. Laboy stated that on the night of the murder
       when it was just starting to get dark, Laboy ran into [the
       decedent] near Westmoreland and Waterloo Streets. As
       he was talking to [the decedent, Appellant] and Sanabria
       approached them. Laboy started to walk away and heard


                                  -5-
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         four or five gunshots. Laboy saw [Appellant] and Sanabria
         run away. Laboy explained that [Appellant] and his friends
         had been selling PCP on the block and wanted rent money
         from Estrada, who was working with Miller and [the
         decedent].

            At trial, Laboy confirmed that he had seen [the
         decedent] near Westmoreland and Waterloo Streets
         shortly before [the decedent] was murdered, but testified
         that he was on a different street when he heard about four
         or five gunshots. Laboy walked back to Westmoreland and
         Waterloo Streets and went to [the decedent] who was shot
         and dying on the street. Laboy explained that a few days
         before [the decedent]’s murder, . . .       there was an
         argument because [the decedent], Miller, and Estrada
         wanted to sell PCP on the block but [Appellant] did not
         want them to sell PCP without paying rent for it.

Trial Ct. Op., 10/29/13, at 2-6 (record citations omitted). Appellant did not

testify at trial and presented no evidence on behalf of his defense.

      We reproduce the following portions of the trial record relevant to

Appellant’s prosecutorial misconduct claims.      The Commonwealth, in its

opening statements, argued:

         To understand this case, you need to understand that this
         area near Waterloo Street and Westmoreland is a very
         high-crime, very high-drug area.

         [Appellant’s counsel]: Objection. Objection.

         THE COURT: That’s overruled.

         [Commonwealth]: It’s the kind of area where people don’t
         want to come forward and talk to police. People don’t
         want to get involved.

         [Appellant’s counsel]: Objection.

         THE COURT: Overruled.



                                     -6-
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       [Commonwealth]: It’s the kind of area where, when the
       police are on the scene, even though people saw what
       happened, they’re not going to run up to the police and
       say, hey, I got information, take my name, let me give a
       statement. It’s actually quite the opposite. People don’t
       want to get involved, and they certainly don’t want people
       to see them interacting with the police. To understand this
       case, you need to understand why that is, the fear that
       comes along with being involved in cooperating with the
       police and telling them the truth and coming to court and
       testifying and pointing the finger, and it’s essential that
       you understand that to understand this case.

                                *    *    *

       . . . The witnesses are not paid actors that are going to get
       up there and act the way you think they should. These are
       people that live in our city, and they have the pressures
       that come along with testifying, that fear that I talked
       about, that code of the streets that say you don’t talk to
       detectives, you don’t testify, and you certainly don’t point
       the finger from that stand.

           No one in this case is probably going to cooperate,
       meaning no one is going to willingly get on this stand and
       tell you what happened the way they told detectives what
       happened and point the finger in court.

                                *    *    *

       . . . So I’m giving you the heads-up that many of these
       witnesses that get on the stand are going to be hostile.
       They’re going to be hostile. They might be belligerent.
       They won’t want to answer questions. They’re going to
       deny that they saw anything. They may deny that they
       gave a statement. They’re going to do everything they
       can to distance themselves from that statement that they
       gave to detectives where they identified the people who
       committed this murder. If that happens, you may say,
       well, What are we doing here? These witnesses take the
       stand. They say they didn’t see anything. Well, it doesn’t
       stop there because all of you took an oath that you would
       listen to all the evidence and not make up your mind until



                                    -7-
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        you heard all of the evidence and Her Honor’s instructions
        on the law.

           And the law is smart, and the law has a way to get
        justice. And the law says if someone gets on that stand
        and they recant, that means they get on that stand and
        they say I didn’t see nothing, I didn’t say nothing, I didn’t
        say that, and you think that they’re not telling the truth on
        that stand, that they’re just acting out of fear or the code
        of the street, but you agree that what they said in their
        signed statement to detectives was the truth, then you
        may consider that signed statement as evidence,
        substantive evidence as to whether or not this defendant
        committed this crime. . . . You decide, Do I believe what’s
        on that witness stand or do I believe what the detectives
        wrote down that the witnesses told them in that
        statement? I want to give you a heads-up to look out for
        that, and that’s probably going to happen in this case.

N.T., 6/25/13, at 29-30, 35, 37-39.

     During the    Commonwealth’s direct      examination of Walker, the

following exchange occurred:

        [Commonwealth]: And, sir, when I did talk to you in the
        room before you testified at the preliminary hearing [and
        recanted a prior statement to police], didn’t I ask you to
        make sure nothing happened to you in prison, meaning no
        one had got to you in prison?

        [Appellant’s counsel]: Judge, I object.

        THE COURT: Let’s not do the leading questions. Rephrase
        it. That’s sustained.

        [Commonwealth]: The nature of my conversation with you
        with respect to being in prison on open cases, wasn’t it in
        the respect of [sic] if anyone had got to you in prison or
        threatened you in prison?

        [Appellant’s counsel]: Objection.

        THE COURT: That’s overruled.


                                      -8-
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       [Commonwealth]: Do you remember, sir?


                                  *    *     *

       [Commonwealth]: When I came in there to speak with you
       before the preliminary hearing, wasn’t it in the context of:
       While you’re in prison, did anyone get to you or threaten
       you in relation to this case?

       [Walker]: No. You told me that when you found out that
       me and [Appellant] were both in the same jail, you moved
       me over to another cell.

       [Commonwealth]: Right, because I found out that you and
       [Appellant]—

       [Appellant’s counsel]: Objection.

       THE COURT: Hold on. [To the Commonwealth,] You can’t
       testify, . . . but I want to make sure.

          You were told that you were changed to a different jail
       or [Appellant] was?

       [Walker]: No. She moved me to E block.

       THE COURT: You got moved to a different block?

       [Walker]: Yeah.

       THE COURT: All right.

       [Appellant’s   counsel]:       My    objection,   meaning   it’s
       overruled?

       THE COURT: It’s overruled. I asked the question. He was
       transferred to a different block.

          But, ladies and gentlemen, I am going to instruct you at
       this point, we’re going into this testimony as to how it
       affects the witness’s credibility, his believability, what he
       said, whether he said different things.


                                      -9-
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          There’s absolutely no evidence at this point that there’s
       any inappropriate behavior by [Appellant] in this case, and
       that’s not why this testimony is being elicited.

          All right. You may proceed.

       [Commonwealth]: I’m sorry. You said that I moved you to
       another block. Why was that?

       THE COURT: What was his understanding?

       [Commonwealth]: What was your understanding of why
       that was?

       [Walker]: Because you thought [Appellant] wanted to do
       something to me.

       [Appellant’s counsel]: Objection. May I see Your Honor at
       sidebar.

       THE COURT: That’s overruled and we’ll go to sidebar later.

          But I will once again instruct the members of the jury,
       again, the DA’s mental state and/or the detective’s is not
       relevant here. What’s relevant is what the witness, his
       mental state.

          Proceed.

       [Commonwealth]: Prior to me moving you to another
       block, were you and [Appellant] in the same block?

       [Appellant’s counsel]: Objection.

       THE COURT: That’s overruled.        Were you on the same
       block?

       [Walker]: Not on the same block. We were, like, maybe
       across. Like, maybe, like, there are four pods on the same
       unit.

       THE COURT: Okay.



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        [Commonwealth]: So you were across in the same unit?

        THE COURT: He just said he was not in the same pod, but
        it was in the same general area.

        [Walker]: Yes.

Id. at 195-96, 197-200.

     During the Commonwealth’s direct examination of Laboy, the following

exchanges occurred:

        [Commonwealth]: Now, did you stay and tell the police, I
        was just talking to him seconds before he got shot?

        [Laboy]: No, I never told them that. That was never my
        intention to talk to the cops.

        [Commonwealth]: You don’t like cops; right?

        [Laboy]: Nope.

        [Commonwealth]: Did you stay and tell the police about
        what was going on over drug territory on the block?

        [Laboy]: No.

        [Commonwealth]: Why not?

        [Laboy]: Because that’s not me.

        [Commonwealth]: Now—

        [Laboy]: It is now.

        [Commonwealth]: What do you mean it is now?

        [Laboy]: Never mind.

        [Commonwealth]: Go ahead. What do you mean it is now?




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       [Laboy]: What do I mean? It’s because when the word get
       out, I’m done in Philadelphia. In other words, I got to
       leave.

       [Commonwealth]: What do you mean by that?

       [Appellant’s counsel]: Judge, I object.

       THE COURT: That’s overruled.

       [Commonwealth]: What do you mean, sir?

       [Laboy]: My life will be in danger.

       [Appellant’s counsel]: Objection.

       [Laboy]: That’s what I mean.

       THE COURT: Overruled.

       [Commonwealth]: Your life will be in danger when it gets
       out, what, that you talked to the police?

       [Laboy]: That I’m sitting here and spoke to the police,
       period.

                                *     *      *

       [Commonwealth]: Do you remember identifying that
       picture of [Appellant from a photographic array on
       November 27, 2011]?

       [Laboy]: Yes.

       [Commonwealth]: Okay. Is that the person that was Fred
       [Miller]’s stepson[, i.e., Appellant] or stepson’s friend?

       [Laboy]: I don’t know if he was a friend or a stepson. Like
       I said, it was a bunch of them there. I don’t know which
       one was his stepson.

       [Commonwealth]: Okay.         Did you sign and circle that
       picture?



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        [Laboy]: Yes.

        [Commonwealth]: And is that the same person that’s in
        the courtroom?

        [Laboy]: I don’t know. It don’t look like him. Like I said,
        he been in jail a long time. He look different.

        [Appellant’s counsel]: Objection.

        THE COURT: Well, no. The statement stands. . . .

N.T., 6/26/13, at 65-67, 74-75.

     During closing statements, the Commonwealth argued:

        [Commonwealth]: Just because [the decedent] said, There
        goes those bitch ass niggas, doesn’t mean he’s the
        aggressor. I want to just comment on that because the
        word “nigga,” I don’t like it, but I think in this case it
        wasn’t meant to call anyone a racial slur.

        [Appellant’s counsel]: Objection.

        THE COURT: That’s overruled.

                                  *     *      *

        [Commonwealth]: And by the way, just because [the
        decedent] said words to somebody, words under the law
        does not mean that someone is justified to gun you down.
        Words never justify deadly force.

        [Appellant’s counsel]: Objection.

        [Commonwealth]: And her Honor will explain that.

        THE COURT: That’s an argument that the Commonwealth
        is making in this case. That objection is overruled, but I
        suggest that the DA confine her remarks to this case, not
        generally.

                                  *     *      *



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        [Commonwealth]: In this case I told you in the opening
        that the witnesses in this case are probably going to recant
        on that stand. They’re probably going to come in and say
        I didn’t say that or distance themselves from their
        statement, and we talked about why.

           Fear is a very powerful thing. No one wants to be a
        witness in a homicide case, and there’s no evidence in this
        case that [Appellant] or Brandon or anyone on their behalf
        directly threatened anyone. But it’s not that. It’s the
        general fear, and this is where your common sense and
        your collective street smarts come in. People do not want
        to be involved in a homicide.

           People do not want it to get out on the street that they
        are cooperating with the police and taking the stand and
        pointing the finger because, unfortunately, in our city,
        there is a culture of no snitching. There is a street code
        where it says if you go in there and you tell on somebody
        in court, you’re a snitch. And you don’t have to like it.
        You don’t have to agree with it. I want it to stop, but
        unfortunately it’s the reality.

           I can’t go home and I can’t provide body guards for
        every witness to protect them after they testify in this
        case. Any witness that gives a statement to detectives,
        even if they come on the stand and recant, has to always
        look over their shoulder wants [sic] it gets out that they
        told.

        [Appellant’s counsel]: Judge, I object to all of this.

        THE COURT: That’s sustained. Let’s move on. Let’s talk
        about this case.

        [Commonwealth8]: In this case, these witnesses were able
        to tell the truth to the detectives, but when they got on the
        stand, they would not admit that they said that in court.

8
  We have added this notation to the Commonwealth based on the tenor of
the closing statement. The original transcript did not contain a notation
delineating the trial court’s ruling from the Commonwealth’s resumption of
its argument.



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       And, again, it comes from that fear that they know what
       these young guys are capable of.

                                *     *      *

          The medical examiner, the autopsy. The [decedent]
       was shot a total of three times. Two of them are in the
       back which lodged into his body, and they were .25-
       caliber, which are small. It’s not a powerful gun, but if you
       get someone in the right spot, it’s obviously deadly.

          These are the two times in the victim’s back. One of
       them is in his torso in his pelvis area and out of his
       buttocks. This is likely the .40, the .40 is a very powerful
       gun, and that bullet from that .40 went right though his
       body as opposed to the smaller caliber .25s which lodged
       in his body.       Absolutely that shot came from his
       [Appellant’s] gun.

       [Appellant’s counsel]: Objection.

       THE COURT: Again, members of the jury, it’s going to be
       your recollection of the evidence that controls, and you will
       take whatever inference from the evidence that’s been
       presented.

                                *     *      *

       [Commonwealth]: This is not a self-defense case. Let’s
       get something straight. Self-defense means that he is
       completely justified. If you find that there’s self-defense in
       this case, you are saying you, [Appellant], when you’re
       trying to assert your drug turf, when you’re carrying that
       gun that you don’t have a license to carry and no business
       carrying, when you’re going around threatening people,
       and you go up to them and you pull out your gun and you
       blast, that you are completely justified. That’s what self-
       defense means.

       [Appellant’s counsel]: Objection.

       THE COURT: That’s overruled.

                                *     *      *


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           Using deadly force is an extreme that is only supposed
        to be used if he has a sincere and reasonable belief that
        he’s in a kill-or-be-killed situation.

                                 *     *      *

          First of all, nothing in the record shows that he sincerely
        and reasonably believed that he was going to be killed.
        Nothing on this record.

        [Appellant’s counsel]: Objection.

        [Commonwealth]: He doesn’t duck. He doesn’t hide.

        THE COURT: Again, that’s overruled.       The jury will make
        that decision.

                                 *     *      *

        [Commonwealth]: There’s no evidence that [Appellant] did
        not provoke the situation. Actually, he did provoke the
        situation. He provoked the situation when he made that
        threat to two days before to [Estrada]. He provoked the
        situation when him and his friend were carrying an
        unlicensed gun that they have no business carrying. He
        provoked the situation by trying to assert his authority
        over that block selling PCP. So he does not have clean
        hands.    You cannot in this scenario ever claim self-
        defense.

        [Appellant’s counsel]: Objection.

        THE COURT: That’s overruled.

N.T., 6/28/13, at 48-50, 52-53, 70-71, 76, 80.

     Following the arguments by counsel, the trial court instructed the jury

on first- and third-degree murder, and voluntary manslaughter based on an

unreasonable belief in the need to use deadly force, and self-defense. Id. at

119, 122, 124-25, 126-28.     The court also issued cautionary instructions


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regarding testimony of Appellant’s incarceration and the witnesses’ concerns

about testifying. Id. at 109-11. The court denied Appellant’s request for an

instruction on voluntary manslaughter—heat of passion.        N.T., 6/27/13 at

96.

      On July 1, 2013, the jury found Appellant guilty of third-degree

murder, conspiracy, and carrying firearms in public in Philadelphia.         On

August 27th, the trial court sentenced Appellant to twenty to forty years’

imprisonment for third-degree murder, a consecutive five to ten years’

imprisonment for    conspiracy, and    a consecutive    one    to   two   years’

imprisonment for carrying firearms in public in Philadelphia. On September

5th, Appellant filed timely post-sentence motions challenging the sufficiency

of the evidence regarding third-degree murder and the weight of the

evidence.9 The trial court denied those motions on September 9th.

      Appellant filed a timely notice of appeal on September 18, 2013, and,

after timely requesting an extension, complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement. This appeal followed.



9
  Appellant’s post-sentence motion did not include claims of inadmissible
evidence, improper arguments to the jury, and allegations of “prosecutorial
misconduct.” Nevertheless, Appellant objected contemporaneously at trial
and preserved all issues raised in this appeal.         See Pa.R.Crim.P.
720(B)(1)(c) (“Issues raised before or during trial shall be deemed
preserved for appeal whether or not the defendant elects to file a post-
sentence motion on those issues.”).     Moreover, Appellant’s sufficiency
challenge to his conspiracy conviction was preserved in his Pa.R.A.P.
1925(b) statement. See Pa.R.Crim.P. 606(A)(7).



                                    - 17 -
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      Appellant presents the following questions, which we reproduce, but

reorder as follows:

         [ ]WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         CHARGE OF CRIMINAL CONSPIRACY TO COMMIT MURDER?

         [ ]DID THE TRIAL COURT ERR BY REFUSING TO CHARGE
         THE   JURY   ON   HEAT   OF  PASSION   VOLUNTARY
         MANSLAUGHTER BECAUSE THE EVIDENCE SUPPORTED
         THE GIVING OF THAT INSTRUCTION?

         [ ]DID THE TRIAL COURT ERR IN OVERRULING AN
         OBJECTION TO TESTIMONY THAT APPELLANT HAD BEEN
         IN JAIL A LONG TIME?

         [ ]DID THE TRIAL COURT COMMIT AN ABUSE OF
         DISCRETION BY OVERRULING NUMEROUS OBJECTIONS
         AND A MOTION FOR A MISTRIAL MADE AFTER TESTIMONY
         THAT PERMITTED THE JURY TO INFER THAT APPELLANT
         THREATENED WITNESSES?

         [ ]DID THE TRIAL COURT COMMIT AN ABUSE OF
         DISCRETION IN OVERRULING A MOTION FOR A MISTRIAL
         MADE AFTER THE PROSECUTOR ARGUED DURING HER
         OPENING ARGUMENT THAT WITNESSES WERE RELUCTANT
         TO TESTIFY BECAUSE OF FEAR, WHICH PERMITTED THE
         JURY TO INFER THAT APPELLANT WAS THE SOURCE OF
         THE THREATS?

         [ ]DID THE TRIAL COURT COMMITTED AN ABUSE OF
         DISCRETION IN FAILING TO GRANT A MISTRIAL
         FOLLOWING SEVERAL OBJECTIONABLE COMMENTS THE
         PROSECUTOR MADE DURING HER CLOSING SPEECH?

Appellant’s Brief at 4.

      Preliminarily       we   summarize      Appellant’s   eleven   arguments

encompassed in his questions presented.            First, Appellant argues the

evidence was insufficient to convict him of conspiracy.      Id. at 18-28.   He

claims the evidence only established his presence at the scene and his


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spontaneous reaction to the decedent’s aggression. According to Appellant,

this evidence did not support the jury’s conclusion that he came to a criminal

agreement with Sanabria to shoot the decedent. In support, he refers this

Court to inter alia, Commonwealth v. Kennedy, 453 A.2d 927 (Pa. 1982),

Commonwealth v. Menginie, 383 A.2d 870 (Pa. 1978), Commonwealth

v. Fields, 333 A.2d 745 (Pa. 1975), Commonwealth v. Wilson, 296 A.2d

719 (Pa. 1972), and Commonwealth v. Johnson, 513 A.2d 476 (Pa.

Super. 1986).

      Second, Appellant argues the trial court erred in failing to instruct the

jury on voluntary manslaughter—heat of passion. Appellant’s Brief at 38-45.

He claims evidence that the decedent’s use of a slur constituted sufficient

provocation for the court to instruct the jury regarding a killing committed in

the heat of passion.

      Appellant’s remaining arguments allege prosecutorial misconduct

and/or error in the rulings of the trial court overruling his objections and

requests for mistrial.   Specifically, Appellant directs his third argument to

Walker’s testimony that the Commonwealth transferred him within a jail at

which Appellant was also housed.      Id. at 31.   Appellant’s fourth and fifth

arguments focus on Laboy’s testimony that he believed his life was in danger

and Laboy’s reference to Appellant’s incarceration.     Id. at 29-31, 36-38.

Sixth, Appellant argues the Commonwealth impermissibly argued to the jury

that he threatened the witnesses.        Id. at 32-36, 55-57.       Appellant’s



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underlying argument in these three claims is that the Commonwealth

burdened his presumption of innocence and suggested he was a person of

bad character and acted in conformity with that character.          See Pa.R.E.

404(b) (stating evidence of wrongs not generally admissible to prove

character and action in accordance character, but may be admissible for

another purpose such as motive).

      Seventh, Appellant asserts the trial evidence did not support the

Commonwealth’s argument that he caused the non-fatal wound to the

decedent’s hip.       Appellant’s Brief at 57-60.     Eighth, he challenges the

Commonwealth’s closing statement that the decedent’s slur, “bitch ass

nigga,” was not intended as a racial insult. Id. at 49-52.

      Appellant, in his ninth argument, claims the Commonwealth’s assertion

that “[w]ords never justify deadly force” misstated the law of self-defense.

Id. at 52-55.     Tenth, he asserts the Commonwealth mischaracterized the

law of self-defense by arguing that he did not sincerely believe in the need

for   self-defense.       Appellant’s   eleventh    argument   focuses   on   the

Commonwealth’s argument that self-defense was not available based on his

criminal behavior. Id. at 60-64.

      For the reasons that follow, we conclude no relief is due in light of

Appellant’s first, second, and fourth through tenth argument.            Although

Appellant’s third and eleventh arguments implicate prosecutorial misconduct




                                        - 20 -
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and/or trial error, we conclude he has not demonstrated sufficient prejudice

to establish his entitlement to a new trial.

      Appellant first argues the evidence was insufficient to sustain the

jury’s finding that there was a criminal agreement between him and

Sanabria to shoot the decedent.          Our review of the sufficiency of the

evidence is governed by the following principles.

         [W]e view the evidence, and all reasonable inferences to
         be drawn therefrom, in the light most favorable to the
         Commonwealth in deciding whether the evidence was
         sufficient to establish each element of the crimes beyond a
         reasonable doubt.

            Moreover, when conflicts and discrepancies arise, it is
         within the province of the jury to determine the weight to
         be given to each witness’s testimony and to believe all,
         part, or none of the evidence as it deems appropriate.

                                   *     *      *

             To convict of criminal conspiracy, the evidence must
         establish that the defendant entered an agreement with
         another person to commit or aid in the commission of an
         unlawful act, that the conspirators acted with a shared
         criminal intent, and that an overt act was done in
         furtherance of the conspiracy.       An explicit or formal
         agreement to commit crimes can seldom, if ever, be
         proved and it need not be, for proof of a criminal
         partnership is almost invariably extracted from the
         circumstances that attend its activities. An agreement
         sufficient to establish a conspiracy can be inferred from a
         variety of circumstances including, but not limited to, the
         relation between the parties, knowledge of and
         participation in the crime, and the circumstances and
         conduct of the parties surrounding the criminal episode.

Commonwealth v. Geiger, 944 A.2d 85, 90-91 (Pa. Super. 2008)

(citations and punctuation omitted); see also 18 Pa.C.S. § 903 (a)(1).


                                       - 21 -
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      As the Pennsylvania Supreme Court observed in Kennedy, “more than

mere association of participants in crime must be shown. Thus, persons

do not commit the offense of conspiracy when they join into an affray

spontaneously, rather than pursuant [to] a common plan, agreement, or

understanding.” Kennedy, 453 A.2d at 930 (citations omitted) (emphasis in

original) (holding evidence that brawl in which codefendants participated

occurred was alone insufficient to demonstrate existence of conspiracy);

accord Menginie, 383 A.2d at 872-73 (noting evidence “might warrant the

inference that [the defendant] and his companions expressly or tacitly

agreed to taunt or ‘bully’ the victim and his family,” but holding such

evidence was insufficient to support inference of unlawful agreement to kill

or inflict serious bodily injury); Fields, 333 A.2d at 745 (holding evidence

insufficient to establish accomplice liability where there was “nothing in the

testimony   to   indicate   [defendant]       had   any   prior   knowledge   of

[codefendant’s] lethal intent or that [defendant] in anyway counseled or

participated in the shooting”); Wilson, 296 A.2d at 721 (holding evidence of

defendant’s participation in bar fight with victim was insufficient to prove his

shared intent to commit homicide “where a third party decide[d] on his own

initiative to become a participant in an affray between two others and

without any request or encouragement . . . alter[ed] radically the nature and

course of the encounter” by stabbing victim); Johnson, 513 A.2d at 477-78

(holding evidence—that defendant and two codefendants exited bar, one



                                     - 22 -
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codefendant stated, “Here comes a white boy. Let’s get him,” and second

codefendant shot decedent—only proved defendant’s mere presence and

thus was insufficient to sustain convictions for, inter alia, murder and

conspiracy).

     Instantly,   when    viewed   in   a   light   most   favorable   to   the

Commonwealth, the record established the following. Appellant lived at his

stepfather’s residence.   Days before the shooting, Appellant and Sanabria

demanded payments from Estrada to sell drugs in the neighborhood.

Appellant and Sanabria’s encounter with Estrada led to their argument with

the decedent. Thus, the Commonwealth presented background evidence of

an association between Appellant and Sanabria, as well as an existing

dispute with the decedent.

     With respect to the shooting, the undisputed evidence established that

Appellant and Sanabria encountered the decedent on the street and began

shooting shortly thereafter.    Although there was conflicting testimony

regarding the events precipitating the shooting, the evidence established his

active participation in an agreed upon course of action with Sanabria.

Specifically, Appellant warned the decedent “was trying to reach,” and drew

his .40 caliber pistol. The presence of the two .40 caliber shell casings at

the scene suggested he fired at least two shots, despite his assertion that

his pistol jammed. Sanabria drew his .25 caliber pistol and fired five shots,

two of which struck the decedent in the back and mortally wounded him.



                                   - 23 -
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      In light of this evidence, we conclude the cases cited by Appellant are

inapposite.     The instant record shows that Appellant was an active

participant in the shooting, encouraged the actions taken by Sanabria by

issuing the warning and drawing his own pistol, and that Sanabria’s actions

did not radically alter the nature of the confrontation set in motion by

Appellant. Cf. Kennedy, 453 A.2d at 930; Menginie, 383 A.2d at 872-73;

Fields, 333 A.2d at 745; Wilson, 296 A.2d at 721; Johnson, 513 A.2d at

477-78.    Furthermore, if the jury elected to credit Laboy’s testimony that

Appellant and Sanabria approached the decedent and began firing without

provocation, such evidence would also establish the existence of a

conspiracy to commit homicide.        Accordingly, we discern no merit to

Appellant’s sufficiency challenge to his conspiracy conviction.

      Second, Appellant argues the trial court erred in denying his request

for an instruction on voluntary manslaughter—heat of passion. It is well

settled that:

          [a] voluntary manslaughter instruction is warranted only
          where the offense is at issue and the evidence would
          support such a verdict. Third degree murder is a killing
          done with legal malice, but without the specific intent to
          kill; voluntary manslaughter is a form of homicide that
          involves the specific intent to kill, but contains no legal
          malice as a result of passion and provocation.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1260-61 (Pa. Super. 2014)

(en banc) (citations and punctuation omitted).         When considering the

adequacy of an alleged provocation for voluntary manslaughter, we apply an



                                    - 24 -
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objective standard and ask “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. Berry, 336 A.2d 262, 264

(Pa. 1975) (citation and punctuation omitted). The Pennsylvania Supreme

Court has long observed, “[I]nsulting or scandalous words are not sufficient

cause of provocation.” Commonwealth v. Drum, 58 Pa. 9, 17 (1868);

accord Commonwealth v. Mouzon, 53 A.3d 738, 751 (Pa. 2012); Berry,

336 A.2d at 264 (distinguishing Drum and holding that words conveying

facts could constituted adequate provocation).

      Instantly, viewing the record in a light most favorable to Appellant, the

decedent’s slur “bitch ass nigga” occurred in the context of his ongoing

dispute with Appellant and Sanabria. However, we discern no evidence that

Appellant spontaneously reacted to the slur.     Rather, as discussed above,

Appellant exclaimed that the decedent or the decedent’s friend was

“reaching” for a weapon before Appellant drew his own weapon. Given this

evidence, we discern no basis to disturb the trial court’s conclusion that a

voluntary manslaughter—heat of passion instruction was not warranted, see

Buterbaugh, 91 A.3d at 1260-61, but that voluntary manslaughter—

unreasonable belief in the need for self-defense was available. See Trial Ct.

Op. at 18. Thus, no relief is due.




                                     - 25 -
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      As noted above, Appellant’s next nine arguments allege prosecutorial

misconduct and/or the improper admission of evidence.            The following

principles govern our consideration of these claims.

         [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
         interest 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 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.
         Judicial discretion requires action in conformity with the
         law on facts and circumstances before the trial court after
         hearing and consideration.         Consequently, the court
         abuses its discretion if, in resolving the issue for decision,
         it misapplies the law or exercises its discretion in a manner
         lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation

and punctuation omitted).

      When assessing whether misconduct or error occurred during the

Commonwealth’s arguments to the jury,

         [i]t is well-established that comments by a prosecutor
         constitute reversible error only where their unavoidable
         effect is to prejudice the jury, forming in the jurors’ minds
         a fixed bias and hostility toward the defendant such that
         they could not weigh the evidence objectively and render a
         fair verdict. A prosecutor’s remarks in opening statements
         must be fair deductions from the evidence the


                                     - 26 -
J. S26045/14


         Commonwealth intends to offer, which the prosecutor
         believes, in good faith, will be available and admissible at
         trial. In closing arguments, a prosecutor may comment on
         the evidence and any reasonable inferences arising from
         the evidence.

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citations and

punctuation omitted).

      As to the trial court’s evidentiary rulings, “the admissibility of evidence

is a matter addressed to the sound discretion of the trial court and that an

appellate court may only reverse upon a showing that the trial court abused

its discretion.” Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994)

(citation omitted). The court may exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence. Pa.R.E.

611(a). The court may also “question witnesses to clarify existing facts and

to elicit new information.” Commonwealth v. Hogentogler, 53 A.3d 866,

880 (Pa. Super. 2012) (citation omitted).

      If misconduct or error occurred at trial, a defendant must show

prejudice resulted.   See Culver, 51 A.3d at 871.        In reviewing the trial

court’s determination regarding prejudice, we are mindful that prompt and

adequate cautionary instructions can cure the harmful effects of the

impropriety or error. Commonwealth v. Moury, 992 A.2d 162, 176 (Pa.

Super. 2010); see also Commonwealth v. O’Hannon, 732 A.2d 1193,

1196 (Pa. 1999) (reiterating that “[a]bsent evidence to the contrary, the

jury is presumed to have followed the trial court’s instructions.”).



                                     - 27 -
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      Appellant’s   third   argument    focuses   on   the   Commonwealth’s

examination of Walker, during which it was revealed (1) Appellant was

incarcerated before trial; (2) Appellant was in the same jail as Walker; and

(3) the Commonwealth moved Walker to a different cell because the

prosecutor was concerned that Appellant “wanted to do something” to

Walker.   N.T., 6/25/13, at 197-200.    Appellant asserts that this exchange

was prejudicial because it “blemish[ed him] with unsupported allegations of

witness intimidation.” Appellant’s Brief at 31.

      With respect to evidence of threats, this Court has noted,

          In general, threats by third persons against witnesses are
          not relevant and thus not admissible into evidence unless
          the defendant is linked in some way to the making of the
          threats. Nevertheless, an exception to the rule exists
          where the evidence in question was not offered to prove
          the accused’s guilt but to explain a witness’s prior
          inconsistent statement.

Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (citations

and punctuation omitted); accord Commonwealth v. Brewington, 740

A.2d 247, 256 (Pa. Super. 1999).

      The Pennsylvania Supreme Court has observed “there is no rule in

Pennsylvania which prohibits reference to a defendant’s incarceration

awaiting trial or arrest for the crimes charged.”       Commonwealth v.

Johnson, 838 A.2d 663, 680 (Pa. 2003).             Nevertheless, our courts

recognize that “constant reminders” of a defendant’s incarceration may

affect the jury’s judgment and burden the defendant’s right to the



                                    - 28 -
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presumption of innocence.     See Estelle v. Williams, 425 U.S. 501, 503-

504 (1976); Johnson, 838 A.2d at 681.

      In Brewington, this Court concluded that evidence that the defendant

was in the same jail as a witness was not objectionable. Brewington, 740

A.2d at 256.      The Court noted the witness recanted a prior statement

implicating the defendant and determined that evidence the defendant had

access to the witness in jail could “show the possibility of [the witness] being

threatened or coerced by [the defendant] to change his testimony.”                    Id.

Thus, the Brewington Court concluded that the defendant’s counsel was

not ineffective for failing to object to the evidence of the defendant’s

incarceration. Id.

      Although evidence that Appellant had access to Walker in jail could be

relevant    to   explain   Walker’s     recantation     at   trial,    see     id.,   the

Commonwealth’s       questioning   is    problematic.        The      Commonwealth’s

exchange with Walker required the trial court to sustain Appellant’s

objection, instruct the Commonwealth not to testify, issue two cautionary

instructions, and question the witness from the bench. 10 N.T., 6/25/13, at


10
    By contrast, in Brewington,            the   testimony     of     the    defendant’s
incarceration was elicited as follows:

           [By the prosecution]. How long were you at Delaware
           County?

           [The Witness]. I believe about three weeks, maybe.




                                        - 29 -
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197-200.   Moreover, having elicited     testimony that Walker and Appellant

were housed in the same jail, id. at 197, the Commonwealth, over

Appellant’s objections, persisted in questioning Walker on why he thought

the prosecutor moved him to a different jail.      Id. at 198 (asking Walker,

“You said that I moved you to another block.       Why was that?” which trial

court rephrased as “What was his understanding?”). Walker responded he

believed the prosecutor thought Appellant “wanted to do something” to

Walker while they were in the same jail. Id. at 199. Such testimony was

improper and resulted from an objectionable line of questioning calling for

Walker’s understanding of the prosecutor’s decision to move him.

     Thus, we consider whether the trial court erred in concluding that the

prejudice resulting from the exchange was cured by the court’s cautionary

        Q. How long?

        A. Three or four weeks.

                                  *     *      *

        Q. And you were there. Tell the ladies and gentlemen of
        the jury who else was there, at the time you were there,
        who is here on trial today?

        [Counsel for co-defendant]. Objection.

        A. [The Witness] Which jail?

        Q. [By the prosecution] Delaware County?

        A. [Appellant.]

Brewington, 740 A.2d at 256 (record citation omitted).



                                      - 30 -
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instructions. See Culver, 51 A.3d at 871; Trial Ct. Op. at 10. During the

Commonwealth’s exchange        with Walker, the       court issued cautionary

instructions directing the jury to consider the “testimony as to how it affects

the witness’s credibility, his believability, what he said, whether he said

different things.” Id. at 198. The court also observed, “There’s absolutely

no evidence at this point that there’s any inappropriate behavior by the

defendant in this case, and that’s not why this testimony is being elicited.”

Id.   Although the trial court overruled Appellant’s objection to Walker’s

testimony that the prosecutor thought Appellant “wanted to do something”

to him, it again instructed the jury, “[T]he DA’s mental state . . . is not

relevant. What’s relevant is what the witness, his mental state.” Id. at 199.

Moreover, in its final charge to the jury, the court again cautioned the jury

that there was no evidence that Appellant threatened a witness and

emphasized that the evidence of the witnesses’ concerns about testifying

were admitted for “one purpose only, and that is to use it to assess their

credibility as a witness.” N.T., 6/28/13, at 111.

      Following our review, we conclude Appellant has not demonstrated the

improper questioning of Walker resulted in undue prejudice.           Appellant

focuses   on   the   Commonwealth’s     suggestion,    without   an   adequate

evidentiary basis, that he threatened witnesses. Appellant’s Brief at 36. He

submits that the jury was susceptible to accept the Commonwealth’s

suggestion and use it as evidence of his bad character. Id.      The trial court,



                                    - 31 -
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however, promptly cautioned the jury that there was no evidence Appellant

threatened Walker and informed the jury of the proper purposes of the

evidence the Commonwealth was intending to elicit.        Moreover, Appellant

does not argue that the cautionary instructions were inadequate.         Thus,

given the arguments presented, we decline to disturb the trial court’s

opinion that a new trial was not necessary.

      Appellant’s fourth and fifth arguments focus on the trial court’s

decision to overrule his objections to Laboy’s testimony that (1) he was

afraid of testifying and (2) Appellant was “in jail a long time.”   As recited

more fully above, the Commonwealth questioned Laboy regarding his failure

to stay at the scene of shooting to report the incident to police.      Laboy

responded he did not immediately cooperate with police, “[b]ecause that’s

not me.” N.T., 6/26/13, at 66. Laboy then interrupted the Commonwealth’s

next question stating, “It is now.” Id.       The Commonwealth then elicited

Laboy’s explanation that he was “done in Philadelphia” and had to leave

because his life “will be in danger” for speaking to police and being in court.

Subsequently,    the   Commonwealth      questioned    Laboy   regarding    his

identification of Appellant from a photographic array during a police

interview on November 27, 2011.              N.T., 6/26/13, at 74-75.      The

Commonwealth showed Laboy the array presented to him by police on

November 27, 2011, and confirmed he selected Appellant’s picture. Id. at

75. After the Commonwealth asked, “And is that the same person that’s in



                                    - 32 -
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the courtroom,” Laboy responded that Appellant had been “in jail for a long

time” and looked different. Id.

      We conclude the evidence that Laboy believed he was “done” in

Philadelphia and believed his life was in danger was related to an

explanation of the variations between his trial testimony and prior

statements to police.    Consequently, we discern no abuse of discretion in

overruling Appellant’s objection admitting this testimony. See Bryant, 462

A.2d at 788.    Furthermore, we reiterate that the trial court, in its final

charge, emphasized there was no evidence Appellant threatened the

witnesses and properly instructed the jury that the testimony was admitted

to evaluate the credibility of the given witness. N.T., 6/28/13, at 110-11.

Accordingly, we decline to disturb the trial court’s determination that a

mistrial was not required based on Laboy’s testimony that his life was in

danger for giving a statement to police and testifying at trial.

      As to Laboy’s reference to Appellant’s pretrial incarceration, the record

supports the trial court’s determination that although the testimony was

improper, the Commonwealth did not intentionally elicit Laboy’s testimony.

Although the trial court overruled Appellant’s objection, the court expressly

addressed Laboy’s testimony in its final charge to the jury.       Moreover, as

discussed above, the Commonwealth’s examination of Walker earlier at trial

previously disclosed Appellant’s pretrial incarceration.       Accordingly, we

conclude Laboy’s passing reference to Appellant’s incarceration alone, or in



                                     - 33 -
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conjunction with Walker’s testimony, did not cause undue prejudice requiring

a new trial.

      In his sixth claim, Appellant asserts the Commonwealth impermissibly

suggested he threated witnesses in its opening and closing statements.

However,       we   discern   no   merit   to   Appellant’s   contention   that   the

Commonwealth’s references to the witnesses’ fears in its opening statement

were improper. The Commonwealth’s warning to the jury that its witnesses

would likely recant was a fair deduction from the evidence it intended to

offer, namely, the witnesses’ prior inconsistent statements to police.            See

Arrington, 86 A.3d 831, 853; see also Commonwealth v. Brown, 52

A.3d 1139, 1171 (Pa. 2012) (holding conviction based on prior inconsistent

statement did not violate due process).          Further, we discern no basis to

conclude the Commonwealth did not have a good-faith belief that at least

some evidence regarding its witnesses’ fears would be admissible.                 See

Arrington, 86 A.3d at 853; Bryant, 462 A.2d at 788; Brewington, 740

A.2d at 256. Similarly, the Commonwealth’s comments upon the witnesses’

reluctance to testify or cooperate with police was properly based on the

evidence, see Arrington, 86 A.3d at 853, and did not unduly suggest

Appellant had threatened the witnesses.

      Although the Commonwealth’s statements that the prosecutor could

not provide bodyguards and that witnesses have “to always look over their

shoulder” were intemperate, the trial court sustained Appellant’s objection to



                                       - 34 -
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that argument and issued a cautionary instruction regarding the absence of

evidence that Appellant threatened the witnesses. Consequently, we decline

to disturb the trial court’s determination that a mistrial was not warranted

based on the Commonwealth’s opening and closing statements.

      Appellant’s     seventh   and     eighth   arguments   challenge   the

Commonwealth closing statements suggesting that he shot the decedent

with the .40 caliber pistol and opining the decedent’s slur was not intended

as a racial insult.

      Following our review, we conclude that the Commonwealth’s argument

that the wound to the decedent’s hip was caused by the .40 caliber firearm

was proper. The medical evidence at trial established two .25 caliber bullets

were recovered from the decedent’s chest, but the bullet causing the wound

to the decedent’s hip was not recovered.         N.T., 6/25/13, at 64.   The

Commonwealth presented expert evidence that a .40 caliber bullet is larger

and more powerful than a .25 caliber bullet.         N.T., 6/26/13, at 218.

Accordingly, the Commonwealth’s suggestion that a larger, more powerful

bullet may have travelled through the decedent was not an unreasonable

inference based on the evidence.

      As to Appellant’s contention that the Commonwealth improperly

suggested the slur “nigga” did not have a racial component, we agree with

the trial court this comment fell within the bounds of permissible argument.

Moreover, the Commonwealth’s comment constituted a fair response to



                                      - 35 -
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Appellant’s suggestion that the slur evinced the decedent’s initial aggression

and precipitated Appellant’s belief in the need for self-defense.       See N.T.,

6/28/13, at 18-19. Thus, the trial court properly denied relief.

      Appellant’s ninth and tenth arguments focus on the Commonwealth

assertion that “[w]ords never justify deadly force” and Appellant did not

sincerely believe he was going to be killed.         According to Appellant, these

comments misstated the law of self-defense.

      We are mindful that “[t]here is no prohibition against a prosecutor

discussing applicable law in his closing argument, as long as he states the

law clearly and accurately.” Commonwealth v. Rios, 684 A.2d 1025, 1034

(Pa. 1996) (citation omitted).       However, “[i]t is obviously improper for

counsel to misstate the law or to state it in a manner calculated to confuse

the jury[.]”     Commonwealth v. Hardcastle, 546 A.2d 1101, 1110 (Pa.

1988) (citation omitted).

      Section 505 of the Crimes Code defines self-defense as follows:

            (a) Use of force justifiable for protection of the
         person.—The use of force upon or toward another person
         is justifiable when the actor believes that such force is
         immediately necessary for the purpose of protecting
         himself against the use of unlawful force by such other
         person on the present occasion.

            (b) Limitations on justifying necessity for use of
         force.—

                                    *     *      *

                  (2) The use of deadly force is not justifiable under
               this section unless the actor believes that such force is


                                        - 36 -
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           necessary to protect himself against death, serious
           bodily injury, kidnapping or sexual intercourse
           compelled by force or threat; nor is it justifiable if:

                  (i) the actor, with the intent of causing death or
               serious bodily injury, provoked the use of force
               against himself in the same encounter; or

                  (ii) the actor knows that he can avoid the
               necessity of using such force with complete safety by
               retreating . . . .

18 Pa.C.S. § 505(a), (b)(2)(i)-(ii).   The reasonableness of a defendant’s

belief in the need to use deadly force “encompasses two aspects, one

subjective and one objective.”   Mouzon, 53 A.3d at 751.      The subjective

aspect requires the defendant act “out of an honest and bona fide belief that

he was in imminent danger.” Id. at 752 (citation omitted).

     Appellant’s assertion that the prosecutor impermissibly argued that

words alone are insufficient aggression to sustain a claim of self-defense is

unsupported and misplaced. Our review reveals no case in which the mere

utterance of a slur constituted sufficient evidence to warrant self-defense.

Furthermore, Mouzon, which Appellant relies upon, does not stand for the

proposition that words may constitute the basis for self-defense.        The

Mouzon Court referenced the traditional rule that words alone generally are

not provocation, but rejected the defendant’s claim that his conduct did not

provoke an encounter with the victims and negate his clam self-defense.

Id. at 751. In any event, as discussed above, the evidence established that

Appellant did not react to the insult, but to the alleged threat posed by the



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decedent when the decedent or the decedent’s friend reached for a gun.

Accordingly, Appellant has not demonstrated that the Commonwealth

misstated the law of self-defense as it applied in this case.

      We   similarly   discern   no   merit    to   Appellant’s   claim   that   the

Commonwealth’s use of the term “sincerely” misstated the law of self-

defense. As noted above, a claim of self-defense requires consideration that

the defendant subjectively acted “out of an honest and bona fide belief was

in imminent danger.”          Id. at 752.      Therefore, the Commonwealth’s

argument that “nothing in the record shows [Appellant] sincerely and

reasonably belief he was going to be killed” did not mischaracterize the law

of self-defense. See id.

      Appellant’s eleventh claim is the Commonwealth improperly argued he

provoked the situation by threatening Estrada two days before, carrying an

unlicensed gun, and trying to assert authority over PCP sales in the

neighborhood. See N.T., 6/28/13, at 80 (indicating Commonwealth argued

Appellant “provoked the situation when he made that threat to two days

before to [Estrada]. He provoked the situation when him and his friend were

carrying an unlicensed gun that they have no business carrying.                  He

provoked the situation by trying to assert his authority over that block

selling PCP. So he does not have clean hands. You cannot in this scenario

ever claim self-defense.”).




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      As noted above, the concept of “provocation,” which negates a self-

defense claim, is defined as follows: “[t]he use of deadly force is not

justifiable . . . if: . . . the actor, with the intent of causing death or serious

bodily injury, provoked the use of force against himself in the same

encounter.” 18 Pa.C.S. § 505(b)(2)(i). Thus, “to establish that an actor was

the aggressor or provoker and, hence, was not entitled to claim a defense of

self-defense or defense of others, there must be some evidence to support

the inference that the defendant’s acts constituted an intent to cause death

or serious bodily injury.”    Commonwealth v. Samuel, 590 A.2d 1245,

1248 (Pa. 1991) (punctuation omitted).         Moreover, Section 505(b)(2)(i)

requires that the defendant’s aggression or provocation occur “in the same

encounter.”

      At the outset, we agree with the Commonwealth that it was entitled to

argue that Appellant instigated the event by approaching the decedent and

shooting and suggest that such acts were motivated by Appellant’s attempt

to “assert his authority” over the sale of PCP. See Pa.R.E. 404(b) (stating

evidence of wrongs not generally admissible to prove character and action in

accordance with character, but may be admissible for another purpose such

as motive). Indeed, the Commonwealth did so in other areas of its closing

argument without objection. See N.T., 6/28/13, at 81 (arguing, Appellant

“knew what he was doing. He knew he was armed, and he knew what he




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wanted to do. Him and [Sanabria] wanted to kill [the decedent] and show

how tough they were.”).

      However,       the   Commonwealth’s     argument   suggesting    Appellant

provoked the situation by engaging in several bad acts before the shooting

was misplaced. Rather than arguing motive, the Commonwealth suggested

that the jury reject his claim of self-defense because Appellant committed

several wrongs before the encounter and “did not have clean hands.”

Accordingly,   the    argument   exceeded     the   proper   bounds   of   closing

statements. See Pa.R.E. 404(b).

      Thus, we consider whether Appellant established sufficient prejudice as

to warrant the declaration of mistrial. Initially, we note that the trial court’s

final charge contained the general instruction that the jury apply only the

law given to it by the court. N.T., 6/28/13, at 96. The trial court also gave

an extensive instruction on the law regarding self-defense. Id. at 127-34.

The court’s instruction properly explained that provocation, for the purposes

of rebutting a claim of self-defense required the jury to find “that in the

same encounter with the victim, [Appellant] engaged in conduct that

demonstrated his intent to cause death or serious bodily injury.” Id. at 131.

The trial court repeated its complete instructions on third-degree murder

and voluntary manslaughter-unreasonable belief when asked to do so by the

jury. Id. at 155-161.




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      Our further review compels the conclusion that Appellant did not suffer

undue prejudice.    Instantly, the Commonwealth proceeded on a theory of

general homicide and argued in support of a first-degree murder conviction.

See id. at 73-75 (arguing first-degree murder because Appellant and

Sanabria were carrying illegal firearms to “assert their dominance on the

street,” stated their intention to Estrada, and “took their guns out” and shot

their “intended target”).   However, the jury rejected that argument and

returned a verdict of third-degree murder.

      We acknowledge the possibility the Commonwealth prejudiced the

jury’s consideration of third-degree murder, voluntary manslaughter, and

justification.   However, no admissible evidence demonstrated that the

decedent or his friend were armed at the time or reached for a weapon.

Rather than retreating, Appellant and Sanabria fired seven rounds. Although

one bullet struck the decedent’s front hip, the two shots, those fired by

Sanabria, struck the decedent in the back.      Thus, we discern no record

evidence rebutting the presumption that the trial court’s instructions

dissipated the taint of the Commonwealth’s improper closing statement.

Accordingly, we discern no basis upon which to disturb the trial court’s

conclusion that a new trial was not required.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015




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