J-S67010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LAZARUS MIAL                               :
                                               :   No. 2414 EDA 2016
                       Appellant

              Appeal from the Judgment of Sentence July 11, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002762-2014


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 27, 2017

        Appellant Lazarus Mial appeals from the Judgment of Sentence entered

in the Court of Common Pleas of Philadelphia County on July 11, 2016, at

which time he was sentenced to life in prison without parole along with a

concurrent term of five (5) years to ten (10) years in prison and two

concurrent terms of two and one-half (2 ½) to five (5) years in prison following

his convictions of First Degree Murder, violations of the Uniform Firearms Act,

and Possession of an Instrument of Crime.1 We affirm in part, vacate in part,

and remand for resentencing.

        The trial court briefly set forth the relevant facts herein as follows:


               [Appellant] and Latosha Porter had an ongoing relationship
        until June of 2009, when Ms. Porter evicted [Appellant] from her
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1   18 Pa.C.S.A. §§ 2502(a), 6105(a)(1), 6106(a)(1), 6108, 907(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      home. On July 27, 2009, Ms. Porter met John ‘Peanut’ Hairston
      and invited him back to her house at 2046 Margaret Street in
      Philadelphia. Somehow [Appellant] learned that Ms. Porter had a
      man over her house and he stormed over there, pounding on the
      front door and yelling to be let in for a considerable amount of
      time. [Appellant] finally got into the house and confronted
      ‘Peanut.’ [Appellant] chased ‘Peanut’ out of the house and down a
      dead-end alley, where [Appellant] shot Hairston five times,
      resulting in his untimely death.

Trial Court Opinion, filed 1/4/17, at 3.

      In her opening statement to the jury, defense counsel represented that

Appellant had no involvement in Mr. Hairston’s death. In fact, the first line of

the statement was as follows: “[Appellant] did not kill John Hairston.

[Appellant] is absolutely innocent of these charges.” N.T. Trial, 6/30/16, at

38. Shortly thereafter, counsel characterized this case as one where Appellant

was not just presumed innocent but was “in fact absolutely innocent” and

declared Mr. Hairston’s family deserved a “real investigation into who actually

killed him.”   N.T. Trial, 6/30/16, at 45-46. Counsel suggested the incident

was part of a robbery and that someone else had killed the victim. Id. at 40-

41.

      Prior to closing arguments, the trial court held a charging conference at

which time defense counsel requested a voluntary manslaughter jury charge:

            Defense Counsel: We would be asking for a charge of
      voluntary manslaughter. In this case, obviously, we presented a
      defense that [Appellant] is innocent. He did not do this. However,
      the jury doesn’t have to listen to me. My opening, her opening,
      my closing is not evidence.

N.T. Trial, 7/6/16, at 136.


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      Over the Commonwealth’s objection and following additional argument

and further research, the trial court ruled the next day that it would provide

the standard voluntary manslaughter charge unless Appellant chose to testify

and say “something different.” N.T. Trial, 7/7/16, at 4, 6. The Commonwealth

responded as follows:

      I don’t know if they’re going to argue it or not, but assuming that
      they’re asking for the charge and they do not argue anything
      about it in their closing, then I think the Commonwealth should
      be permitted to say in my closing, that the only reason that they’re
      getting that charge is because the defense asked for it because I
      think that’s only fair under the scenario.
            They don’t get to have their cake and eat it too. They don’t
      get to just say, the judge gives this instruction because you
      decided to give it because you thought it was appropriate. They
      asked for it and then they’re not going to argue alternative
      defenses because if they strategically decide not to do that, which
      is probably a good decision, because that’s not a good idea, but
      then they’re still going to get the charge.

Id. at 11. At that juncture, the trial court stated that it “will address that

when we get to the time that it’s appropriate after they’ve closed, if that’s

going to be part of the issue.” Id.

      Appellant ultimately did not testify in his own defense at his trial. In

asking for a ruling on the issue of whether the Commonwealth could comment

regarding which party had requested that the voluntary manslaughter

instruction be given, defense counsel stated “if [the prosecutor] is allowed to

comment, I’m just going to withdraw my request to give the charge at all

because it’s not for the jury to know who asked for what charge. . . if, for

some reason, she is allowed to comment on it and it leaves the impression


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that we think we need some kind of safety net, then I’d rather not have it.”

N.T. Trial, 7/8/16, at 7. A sidebar discussion was then held off the record,

after which the trial court ruled as follows:

            The Court: My ruling stays the same. If you wish to have
      voluntary manslaughter presented, the Commonwealth is going to
      be allowed, in this case, to tell the jury why that charge is being
      asked and that the defense asked for it.

Id. at 11. At that time, Appellant withdrew his request to have the trial court

instruct   the   jury   on    voluntary     manslaughter.   The    trial     court

contemporaneously noted the defense wished to object to the charge that it

was about to provide the jury because it would not include a charge on

voluntary manslaughter. Id. Appellant also placed an objection on the record

following the jury charge. Id. at 165.

      Appellant filed a timely appeal following the imposition of his sentence.

After seeking and receiving an extension of time in which to file a concise

statement of the matters complained of on appeal, Appellant filed the same

on November 30, 2016.         In his brief, Appellant presents the following

Statement of the Questions Presented:

      1.    Did not the trial court err in predicating a defense requested
      voluntary manslaughter charge to the jury, on the improper
      condition that the Commonwealth would then be allowed to tell
      the “jury why that charge is being asked and that the defense
      asked for it [?]”

      2.     Did not the trial court err by allowing the Commonwealth to
      instruct the jury that by seeking the manslaughter jury
      instruction, the defense was admitting the intentional act of
      killing, and that the reason for the requested instruction was an
      attempt by the defense to mislead the jury, and would not such

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      an instruction violate the defendant’s rights to due process and a
      fair trial under both the Federal and Pennsylvania constitutions?


      3.   Was not the five to ten year sentence of incarceration
      imposed on the offense of carrying a firearm on the public streets
      of Philadelphia illegal because the maximum sentence for a
      misdemeanor of the first degree is not more than five years?


Brief for Appellant at 4.   As Appellant’s first two issues challenge the trial

court’s instructions to the jury, we address them together and begin with our

standard of review:

      Our standard of review regarding jury instructions is limited to
      determining whether the trial court committed a clear abuse of
      discretion or error of law which controlled the outcome of the case.
      Error in a charge occurs when the charge as a whole is inadequate
      or not clear or has a tendency to mislead or confuse rather than
      clarify a material issue. Conversely, a jury instruction will be
      upheld if it accurately reflects the law and is sufficient to guide the
      jury in its deliberations.
            The proper test is not whether certain portions or
            isolated excerpts taken out of context appear erroneous.
            We look to the charge in its entirety, against the
            background of the evidence in the particular case, to
            determine whether or not error was committed and
            whether that error was prejudicial to the complaining
            party.
      In other words, there is no right to have any particular form of
      instruction given; it is enough that the charge clearly and
      accurately explains the relevant law.

James v. Albert Einstein Med. Ctr., 2017 WL 4001763, at * 5-6 (Pa.Super.

Sept. 12, 2017) (citation omitted).    This Court has stated that the trial court

is not mandated to charge the jury on voluntary manslaughter when such a

charge is requested, and it may not provide the charge absent evidence to




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support such a verdict. Commonwealth v. Browdie, 654 A.2d 1159, 1164

n. 3 (Pa.Super. 1995).

      Appellant maintains that in light of the evidence the Commonwealth

presented at trial, “voluntary manslaughter was an issue and the trial court

(not the Commonwealth’s attorney) was required to instruct the jury on the

crime of voluntary manslaughter and because it would not, a new trial is

warranted.” Appellant posits the trial court’s ruling was in error “as the giving

of instructions to the jury is a judicial function that cannot be delegated to the

prosecutor” and that this error was compounded by the court’s “allowing the

Commonwealth to instruct the jury that by seeking the manslaughter charge,

the defense was admitting the intentional act of killing (N.T. 7/6/16, 139) and

that the reason for the requested charge was an attempt by the defense to

mislead the jury (N.T. 7/8/16, at 8)” which statements were “improper and

prejudicial” and constituted “prosecutorial misconduct.” Brief for Appellant at

13, 26.

      Appellant further contends that “[a]s defense counsel did not put on a

defense, she was free to argue any defense reasonably suggested by the

evidence” and in doing so reasons a jury instruction “that [A]ppellant was

conceding that he killed intentionally invaded the province of the jury to

determine the facts and what, if any, crimes were committed. It took away

the jury’s option of finding the Commonwealth’s evidence lacking and that a

reasonable doubt existed as to [A]ppellant’s guilt on the murder charge, or,


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on the contrary, that [A]ppellant in their estimation was guilty but only of

voluntary manslaughter.” Brief for Appellant at 25. Appellant argues that the

prosecutor’s disparaging comments and its “proffered explanation to the jury

for why the defense counsel was requesting a manslaughter instruction

constitute[] prosecutorial misconduct.” Brief for Appellant at 26. Appellant

concludes that “[a]s the trial court in this case abdicated its duty to instruct

the jury by delegating its authority to the Commonwealth’s attorney,

[A]ppellant was denied due process and a fair trial. A new trial should be

granted.” Id. at 18.

      Following a review of the record, we agree with the trial court’s

determination that Appellant’s claims lack merit. In its Opinion filed pursuant

to Pa.R.A.P. 1925(a), the trial court cited to caselaw for the proposition that

there is no prohibition against the Commonwealth being permitted to discuss

applicable principles of law to the jury in its closing argument, so long as it

does so clearly and accurately. Trial Court Opinion, filed 1/4/17, at 4 (citations

omitted).   The trial court also relied upon long-standing precedent holding

that while prosecutors may not express their personal opinions concerning a

defendant’s guilt, they have considerable latitude during closing argument to

comment upon the evidence presented at trial and appropriate inferences that

may be drawn therefrom as well as to present their arguments with “oratorical




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flair.” Id. at 5.2 The trial court stressed that the standard jury instruction for

voluntary manslaughter concedes that a defendant killed another but

maintains that the extenuating circumstances surrounding the crime reduce

its severity; therefore, the Commonwealth rightfully could have argued to the

jury during closing arguments that it was not interested in a voluntary




____________________________________________


2   In this regard, our Supreme Court has held:

        [a] prosecutor “has great discretion during closing argument” and
        is “free [to present] his [or her closing] arguments with logical
        force and vigor.” Commonwealth v. Eichinger, –––Pa. ––––,
        108 A.3d 821, 836 (2014) (citation omitted). Thus, we will allow
        “vigorous prosecutorial advocacy” if “there is a reasonable basis
        in the record for the [prosecutor's] comments.” Commonwealth
        v. Robinson, 581 Pa. 154, 864 A.2d 460, 516 (2004) (internal
        quotation marks omitted). Stated differently, “[p]rosecutorial
        comments based on the evidence or reasonable inferences
        therefrom are not objectionable, nor are comments that merely
        constitute oratorical flair.” Commonwealth v. Chmiel, 612 Pa.
        333, 30 A.3d 1111, 1146 (2011). In reviewing an allegation of
        prosecutorial misconduct, we will find that “[c]omments by a
        prosecutor constitute reversible error only where their
        unavoidable effect is to prejudice the jury, forming in their minds
        a fixed bias and hostility toward the defendant such that they
        could not weigh the evidence objectively and reach a fair verdict.”
        Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 33
        (2008).

Commonwealth v. Cash, 635 Pa. 451, 471, 137 A.3d 1262, 1273 (2016),
cert. denied, Cash v. Pennsylvania, 137 S. Ct. 1202, 197 L. Ed. 2d 249
(2017).




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manslaughter finding and, instead, believed a first degree murder conviction

was appropriate. Id. at 5-6.3

       Appellant characterizes the hypothetical statements the prosecutor may

have made during closing argument as usurping the exclusive responsibility

of the trial court to charge the jury as to the applicable law. However,

Appellant's arguments pertain only to what prejudice he surmises he would

have suffered if defense counsel did not mention voluntary manslaughter in

her closing and if the prosecutor commented regarding the source and

applicability of a voluntary manslaughter charge which ultimately was never

even given.       In fact, the prejudicial effect of the prosecutor’s alleged

“disparaging” remarks is non-existent, for the trial court did not provide a




____________________________________________


3 In fact, our Supreme Court has held that following its charge on voluntary
manslaughter, a trial court did not err in telling the jury that in its opinion
under the facts and circumstances of the case, voluntary manslaughter would
not be an appropriate verdict where the court also clearly had instructed the
jury that it was not bound by the court’s opinion as to the lack of evidence to
support such a verdict. Commonwealth v. Cook, 597 Pa. 572, 636–37, 952
A.2d 594, 633 (2008). The Court stressed the defendant had failed to present
any evidence to support a voluntary manslaughter conviction and that in his
closing argument defense counsel repeatedly asserted that the
Commonwealth had not presented any credible evidence defendant had been
involved in the killing. The Court concluded the trial court's “charge left it
open for the jury to return an unsupported verdict of voluntary manslaughter,
which would have been an unwarranted windfall for appellant.” Id. at 638–
39, 952 A.2d at 633–34.




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voluntary manslaughter instruction due to Appellant’s own request that it not

be given.

       Appellant’s objection to what the jury charge lacked, i.e. a voluntary

manslaughter charge, was the result of defense counsel’s tactical decision not

to request that charge, not the trial court’s alleged abdicating of its duty to

charge the jury in favor of the Commonwealth who made no comments in its

closing argument concerning voluntary manslaughter. If the instruction had

been given, if the prosecutor discussed it during closing arguments, and if

Appellant believed the prosecutor’s comments were improper, he could have

objected at the appropriate juncture during trial or asked for a mistrial. As

such, Appellant has failed to show, in fact, that his constitutional rights were

violated or that he was prejudiced, as the voluntary manslaughter instruction

was not given due to a strategic decision defense counsel made not to seek

it. See e.g. Commonwealth v. Norman, 549 A.2d 981, 986 (Pa.Super.

1988) (en banc) (“[w]hen counsel chooses to refuse appropriate curative

instructions for legitimate tactical reason, the defense may not plead prejudice

on appeal”).4

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4 Indeed, even if the Commonwealth had mentioned an anticipated voluntary
manslaughter instruction in its closing argument, as it states in its appellate
brief, the purpose of the discussion would have been to dispel any resultant
confusion to the jury due to the Commonwealth’s failure to charge Appellant
with voluntary manslaughter at the outset of the case. The Commonwealth
reasons, “[h]ad the trial court insisted on that uncharged offense without
argument or comment from the parties, it would have given the appearance



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       In fact, Appellant's brief contains no challenge to or claims of inadequacy

regarding the actual jury charge which included the lesser alternative of third-

degree murder and a clear directive that “[y]ou have the right to bring in a

verdict finding [Appellant] not guilty or finding him guilty of one of these types

of criminal homicide.”       The trial court provided the jury with an opportunity

to exercise its mercy-dispensing power in defining the elements of two types

of criminal homicide. The jury chose to find Appellant guilty of first-degree

murder. N.T. Trial, 7/8/16, at 152, 155-56. Thus, Appellant’s first two claims

lack merit.

       The final issue Appellant presents herein challenges the legality of his

sentence for violating 18 Pa.C.S.A. § 6108, Carrying firearms on public streets

or public property in Philadelphia. Appellant did not raise this claim in his

Statement of Errors Complained of on Appeal and, instead, raised it for the

first time in his appellate brief.5        Brief for Appellant at 14.   However, a

challenge to the legality of one’s sentence cannot be waived. See

Commonwealth v. Barnes, ___ Pa. ____, ___151 A.3d 121, 124 (2016)

(citation omitted) (“[A]n exception to the issue-preservation requirement



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that the court was proposing the verdict.” Commonwealth’s Brief at 6.
Regardless, as defense counsel admitted during trial and as the trial court
informed the jury, opening and closing statements of counsel do not constitute
evidence. N.T. Trial, 7/6/16, at 136; N.T. Trial 7/8/16, at 161-62. Thus,
Appellant mischaracterizes any such potential statements as the
Commonwealth’s act of instructing the jury in lieu of the trial court.
5 The trial court did not consider this issue in its Rule 1925(a) Opinion.


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exists where the challenge is one implicating the legality of the appellant's

sentence.”).

      The Commonwealth concedes the sentence on this conviction, a

misdemeanor of the first degree under 18 Pa.C.S.A. § 6119, is illegal because

the five (5) year to ten (10) year sentence exceeds the statutory maximum.

See Commonwealth’s Brief at 10; 18 Pa.C.S.A. § 106(b)(6) “[a] crime is a

misdemeanor of the first degree if it is so designated in this title or if a person

convicted thereof may be sentenced to a term of imprisonment, the maximum

of which is not more than five years.” Because the trial court erroneously

sentenced Appellant regarding this charge, we remand so that the trial court

can resentence Appellant thereon. See Commonwealth v. Wilson, 594 Pa.

106, 934 A.2d 1191 (2007) (where appellate court's disposition upsets trial

court's original sentencing scheme, remanding for resentencing is appropriate

disposition).

      Judgment of sentence vacated in part. Case remanded for resentencing

on the 18 Pa.C.S.A. § 6108 conviction only. Judgment of sentence affirmed in

all other respects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017

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