J-A28012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

LAMAR OGELSBY

                           Appellant                        No. 3048 EDA 2013


             Appeal from the Judgment of Sentence of June 18, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0005339-2012


BEFORE: GANTMAN, J., WECHT, J., and JENKINS, J.

CONCURRING MEMORANDUM BY WECHT, J.:                  FILED NOVEMBER 25, 2014

      Although the prosecutor in this case engaged in questionable behavior

at times, I agree with the learned Majority that Appellant is not entitled to

relief. I write separately because I respectfully disagree with the Majority’s

analysis concerning Appellant’s claim that            the    prosecutor   committed

misconduct by referring to him as a “megalomaniac” and a “sheep in wolf’s

clothing.”

      When      the   prosecutor      made   these   statements     during   closing

arguments, Appellant’s counsel immediately objected.               The trial court

sustained the objection, and rightfully so. Appellant does not challenge the

trial court’s ruling, obviously.      Rather, Appellant contends that, even with

the trial court’s favorable ruling, the prosecutor’s remarks, when considered
J-A28012-14



in conjunction with the prosecutor’s other alleged acts of misconduct,

impeded the jury’s ability to render a fair and impartial verdict.

       Nonetheless, the Majority exceeds the scope of Appellant’s limited

argument, and evaluates the merits of the trial court’s ruling on the

statements made by the prosecutor during closing arguments. The Majority

concludes that “the prosecutor’s comments were a fair response to

Appellant’s testimony,” and that they amounted to nothing more than

“oratorical flair.” See Maj. Mem. at 21. In essence, the Majority answers a

question that was not presented by Appellant’s argument. I think it unwise

in these circumstances to extend our analysis beyond that which is

necessary to resolve the argument presented by Appellant.

       In my view, the      trial court properly sustained the          objection.

Regardless, that is not the question posed to this Court.        On this issue, I

would emphasize that the trial properly sustained the objection and hold, as

the    Majority   wisely   did   throughout    its   otherwise       well-reasoned

memorandum, that Appellant ultimately cannot demonstrate that the

prosecutor’s actions had the unavoidable effect of depriving Appellant of a

fair trial.

       I join the Majority’s memorandum in all other respects.




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