J-S56044-16


                                  2016 PA Super 182

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON DAVID SCOTT,

                            Appellant                  No. 1485 MDA 2015


             Appeal from the Judgment of Sentence August 4, 2015
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002370-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED AUGUST 19, 2016

        This is an appeal from the judgment of sentence entered by the

Honorable Edward E. Guido of the Court of Common Pleas of Cumberland

County after Appellant Jason David Scott was convicted of burglary, criminal

trespass, and criminal mischief.1 Appellant challenges the sufficiency of the

evidence supporting his convictions and claims he is entitled to a mistrial

based on comments made by the prosecutor in closing argument.              After

careful review, we affirm.

        On January 13, 2015, at approximately 5:00 a.m., South Middleton

School District officials were notified that the burglary alarm system at Rice

Elementary School in Mt. Holly Springs had been activated at a time when

____________________________________________


1
    18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(2), respectively.



*Former Justice specially assigned to the Superior Court.
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the school was not open to the public.          The school’s business manager

arrived on the scene and chased an intruder from the inside of the school.

State troopers investigated the incident and discovered the teachers’ lounge

and several offices had been ransacked.          The officers opined that the

intruder attempted to access the school through the back windows as they

noticed that numerous screens had been removed from exterior windows.

However, the officers inferred that the intruder gained entry by damaging a

locked door.

      Subsequently, the troopers were able to identify Appellant as a

suspect after viewing video surveillance footage that recorded images of the

intruder.    The images showed an intruder whose appearance resembled

Appellant.     After noting that one image depicted the intruder smoking a

cigarette, the officers discovered a cigarette butt underneath one of the back

exterior windows of the school.       Subsequent testing revealed that the

cigarette butt contained traces of Appellant’s DNA.

      Appellant    was   charged   with   the   aforementioned   offenses;   he

proceeded to a jury trial on the burglary and criminal trespass charges and a

bench trial on the criminal mischief charge. Appellant was convicted of all

three charges. On August 4, 2015, the trial court sentenced Appellant to an

aggregate term of 2½ to 10 years imprisonment and ordered him to pay

restitution and the costs of prosecution.         This timely appeal followed.

Appellant complied with the trial court’s direction to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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      Appellant raises the following issues for review on appeal:

      I.       Was the evidence sufficient to sustain a conviction beyond
               a reasonable doubt if one were to preclude the highly
               inflammatory and prejudicial evidence introduced by the
               Commonwealth?

      II.      Did the trial court err when it denied Appellant’s motion for
               a mistrial after the Commonwealth’s closing argument
               improperly stated that [] Appellant did not present alibi
               witnesses?

Appellant’s Brief, at 6.

      First, Appellant challenges the sufficiency of the evidence supporting

all of his convictions.    Our standard of review for sufficiency claims is as

follows:

            The standard we apply in reviewing the sufficiency of the
            evidence is whether viewing all the evidence admitted at trial
            in the light most favorable to the verdict winner, there is
            sufficient evidence to enable the fact-finder to find every
            element of the crime beyond a reasonable doubt. In applying
            the above test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we note that
            the     facts   and    circumstances    established    by    the
            Commonwealth need not preclude every possibility of
            innocence. Any doubts regarding a defendant's guilt may be
            resolved by the fact-finder unless the evidence is so weak and
            inconclusive that as a matter of law no probability of fact may
            be drawn from the combined circumstances.                   The
            Commonwealth may sustain its burden of proving every
            element of the crime beyond a reasonable doubt by means of
            wholly circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and all
            evidence actually received must be considered. Finally, the
            trier of fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to believe
            all, part or none of the evidence.

Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016).


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      The basis for Appellant’s sufficiency challenge to all three convictions is

his claim that the Commonwealth failed to prove that he was the intruder

that committed the acts in question.      Specifically, Appellant contends that

the school principal did not recognize Appellant from the video footage and

points out that the Commonwealth found no fingerprints connecting him to

the crimes.   Appellant dismisses the DNA evidence on the cigarette butt

found underneath a window, as his mother testified that Appellant had

brought her to the school on prior occasions as her granddaughter was

enrolled there. Contending the Commonwealth’s case is based on inferences

and   conjecture,   Appellant   denies   that   the   Commonwealth    presented

sufficient evidence to link him to the relevant crimes. We disagree.

      The police investigation revealed that the intruder had rummaged

through the contents of several offices and the teachers’ lounge, presumably

in an attempt to commit theft.           The Commonwealth presented video

surveillance footage which showed the school district business manager

chasing out an intruder that resembled Appellant.       The video also showed

the intruder smoking a cigarette.        After troopers investigated the back

windows of the school where the intruder had removed screens in an

attempt to access the building, the officers discovered a cigarette butt with

traces of Appellant’s DNA on it.

      We acknowledge that Appellant tried to explain the presence of the

cigarette by presenting the testimony of his mother who claimed that

Appellant had visited the school on other occasions.        However, as noted

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above, the factfinder was free to believe all, some, or none of the evidence.

Id.   We will not disturb the factfinders’ credibility findings, which are

supported by the evidence of record.       Accordingly, we conclude the trial

court did not err in denying Appellant’s sufficiency claim.

      Second, Appellant claims he is entitled to a mistrial based on

comments made by the prosecutor in closing argument.          Our standard of

review for the denial of a motion for a mistrial is limited to assessing

whether the trial court abused its discretion.     Commonwealth v. Cash,

___Pa.___, 700 CAP, 2016 WL 3002910, at *8 (Pa. filed May 25, 2016).

More specifically, this Court has provided the following standards for

reviewing a claim of prosecutorial misconduct in a closing statement:

      it is well settled that any challenged prosecutorial comment must
      not be viewed in isolation, but rather must be considered in the
      context in which it was offered. Commonwealth v. Correa,
      444 Pa.Super. 621, 664 A.2d 607 (1995). Our review of a
      prosecutor's comment and an allegation of prosecutorial
      misconduct requires us to evaluate whether a defendant
      received a fair trial, not a perfect trial. Commonwealth v.
      Rios, 554 Pa. 419, 721 A.2d 1049 (1998). Thus, it is well
      settled that statements made by the prosecutor to the jury
      during closing argument will not form the basis for granting a
      new trial “unless the unavoidable effect of such comments would
      be to prejudice the jury, forming in their minds fixed bias and
      hostility toward the defendant so they could not weigh the
      evidence       objectively   and    render    a    true  verdict.”
      Commonwealth v. Fletcher, 580 Pa. 403, 434–35, 861 A.2d
      898, 916 (2004) (quotation and quotation marks omitted). The
      appellate courts have recognized that not every unwise remark
      by an attorney amounts to misconduct or warrants the grant of a
      new trial. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d
      28 (1991). Additionally, like the defense, the prosecution is
      accorded reasonable latitude, may employ oratorical flair in
      arguing its version of the case to the jury, and may advance

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     arguments supported by the evidence or use inferences that can
     reasonably be derived therefrom. Commonwealth v. Carson,
     590 Pa. 501, 913 A.2d 220 (2006); Commonwealth v. Holley,
     945 A.2d 241 (Pa.Super. 2008). Moreover, the prosecutor is
     permitted to fairly respond to points made in the defense's
     closing, and therefore, a proper examination of a prosecutor's
     comments in closing requires review of the arguments advanced
     by the defense in summation. Commonwealth v. Chmiel, 585
     Pa. 547, 889 A.2d 501 (2005).

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016).

     Appellant points to the following statement in contending that the

prosecutor improperly implied that it was Appellant’s duty to provide alibi

witnesses other than his mother:

           Today we’re at the end of the trial, and [Appellant] has
     presented a case, has presented evidence. You are allowed to
     consider what mom said. You are allowed to consider what mom
     didn’t say. You’re allowed to consider all of that to decide
     whether the Commonwealth has proved the case or not. Mom
     didn’t say, oh, I remember the 13th, I remember the middle of
     January well, and he was with me every night all night. Other
     witnesses didn’t come in to present alibis. The only thing he
     could tell you about January of 2013 is that mom needed a ride
     sometimes because she had a hip replacement.

           In January she needed one ride in the middle of the day to
     the front entrance of the building, the same front entrance that
     you see [Appellant] fleeing from in the video, from the office.
     Mr. Boley told you that that door where you see him coming out
     and then fleeing, that’s the office door. That’s the office door
     that mom is talking about, okay, in the door and out the door.
     She delivered the book and back out to the car [sic]. That’s no
     excuse for the cigarette being in the back of the building.

Notes of Testimony (N.T.), 3/18/15, at 129-130.

     Our   review   of   the   aforementioned   comment   reveals   that   the

prosecutor did not shift the burden of proof for Appellant to prove his

innocence, but rather highlighted the weaknesses in Appellant’s alibi

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defense.   The prosecutor’s statement was a fair response to defense

counsel’s closing, in which he repeatedly referred to testimony of Appellant’s

mother, who attempted to explain the presence of Appellant’s cigarette on

school premises in claiming that Appellant had brought her to the front door

of the building to return her granddaughter’s library book on one unknown

occasion in January 2013. Thus, it was proper for the trial court to give the

prosecutor latitude in advancing an argument which was supported by the

evidence at trial.   We find the prosecutor’s comment did not amount to

misconduct.

      Moreover, the trial court subsequently gave the jury a thorough

instruction, emphasizing that the Commonwealth had the burden to prove

Appellant’s guilt beyond a reasonable doubt and that Appellant was not

required to produce any evidence:

            [T]he defendant is presumed to be innocent. The mere
      fact that he was arrested and is accused of a crime is not
      evidence against him. The Defendant is presumed innocent
      throughout the trial and at all times unless and until you
      conclude, based upon a careful and impartial consideration of the
      evidence, that the Commonwealth has proven his guilt beyond a
      reasonable doubt.

             It is not the Defendant’s burden to prove that he is not
      guilty. Instead, it is the Commonwealth that always has the
      burden of proving each and every element of the crime charged
      and that the Defendant is guilty of that crime beyond a
      reasonable doubt. A person accused of a crime is not required
      to present evidence or prove anything in his own defense. If the
      Commonwealth’s evidence fails to meet its burden, then your
      verdict must be not guilty.       On the other hand, if the
      Commonwealth’s evidence does prove beyond a reasonable


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      doubt that the defendant is guilty, then your verdict should be
      guilty.

N.T., 3/18/15, at 132-33.   Juries are presumed to follow the trial court’s

instructions. Commonwealth v. Burno, 626 Pa. 30, 65, 94 A.3d 956, 977

(2014), cert. denied sub nom. Burno v. Pennsylvania, 135 S. Ct. 1493,

191 L. Ed. 2d 435 (2015).     As a result, we agree with the trial court’s

assessment that the prosecutor’s comment did not warrant the grant of a

new trial.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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