Commonwealth v. Caldwell

J-E01003-15

2015 PA Super 128

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DOMINIC CALDWELL

Appellant No. 1191 EDA 2013

Appeal from the Judgment of Sentence November 14, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007114-2011

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,

OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY JENKINS, J.: FILED MAY 29, 2015

Dominic Caldwell (“Appellant”) appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

convictions for aggravated assault, robbery, theft by unlawful taking,

possession of an instrument of crime (“PIC”), recklessly endangering another

person (“REAP”), firearms not to be carried without a license, carrying

firearms on public streets, and persons not to possess firearms.1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

On July 16, 2010, at approximately 4:15 in the afternoon, Appellant and his

friend, Reese, came to Sean Williams’ apartment requesting a ride in his car.

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1

18 Pa.C.S. §§ 2702(a), 3701(a)(1), 3921(a), 907(a), 2705, 6106, 6108,

and 6105, respectively.

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N.T., 8/28/12, at 16, 17. Appellant’s family lived across the street from

Williams, and Williams had previously given Appellant one or two rides in his

car. Id. at 20. Williams, who was home with his wife and three children at

the time, went into a different room of the apartment to speak to his wife

about whether he could give Appellant a ride. Id. at 19. When Williams

returned to the room, Appellant and Reese fled the apartment with

$2,000.00 from Williams’ wife’s purse.2 N.T., 8/27/12, at 70. Williams

chased Appellant and Reese onto the street that was full of adults and

children when Appellant fired two shots toward Williams. N.T., 8/27/12, at

70. Neighbor Gail Floyd, who was standing outside conversing with her

brother, heard the shots and felt debris hit her ear, neck, and arms. N.T.,

8/29/12, at 8. After she realized she was bleeding, Floyd called the police.

Id. at 8-9.

Police responded to the scene and obtained a statement from Williams

that prompted them to search for Appellant. N.T., 8/27/12, at 45, 52, 72.

On April 5, 2011, police apprehended Appellant when he was a passenger in

a vehicle that they stopped for unrelated reasons. N.T., 8/29/12, at 29-38.

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2

Williams had a large quantity of cash in his apartment from a personal

injury settlement. N.T., 8/28/12, at 14, 15. His wife kept some of the

money in her purse that was on the couch when Appellant and Reese came

to Williams’ apartment. Id. at 24. Detectives found Appellant’s fingerprints

on the money wrapper for the missing $2,000.00 in Williams’ apartment.

N.T., 8/30/12, at 31.

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On September 4, 2012, a jury convicted Appellant of aggravated

assault, robbery, theft by unlawful taking, PIC, REAP, firearms not to be

carried without a license, and carrying firearms on a public street, and

acquitted Appellant of conspiracy and simple assault. That same day, the

court convicted Appellant of persons not to possess firearms. On November

14, 2012, after Appellant exercised his right to allocution, the court

sentenced Appellant to 9½-18 years’ incarceration for aggravated assault,

9½-18 years’ incarceration for robbery, 3½-7 years’ incarceration for

carrying a firearm without a license, 2½-5 years’ incarceration for PIC, 1-2

years’ incarceration for REAP, and 5-10 years’ incarceration for persons not

to possess firearms.3 The court imposed the sentences consecutively, which

resulted in an aggregate sentence of 31-62 years’ incarceration.

Appellant timely filed post-sentence motions and supplemental post-

sentence motions on November 20, and November 21, 2012, respectively.

On March 21, 2013, all of Appellant’s post-sentence motions were denied by

operation of law pursuant to Pa.R.C.P. 720(b)(3). On April 17, 2013,

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.4

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3

The theft charge merged for sentencing purposes, and the court imposed

no further penalty for carrying firearms on a public street.

4

On June 11, 2013, the court ordered Appellant to file a concise statement

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

Appellant requested an extension of time, the court ordered Appellant to file

(Footnote Continued Next Page)

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Appellant raises the following issues for our review:

DID THE COURT ERR IN SENTENCING APPELLANT TO AN

EXCESSIVE SENTENCE OF 31 TO 62 YEARS[’]

INCARCERATION WHERE THE COURT FAILED TO

CONSIDER [THE REHABILITATIVE] NEEDS OF APPELLANT?

DID THE TRIAL COURT ERR IN FAILING TO GRANT A

MISTRIAL WHERE THE PROSECUTOR USED [AN] ANALOGY

OF DEFENDANT [POINTING] A GUN AT THE JURORS?

Appellant’s Brief at 3.

In his first issue, Appellant challenges the discretionary aspects of his

sentence. Appellant argues the court failed to consider his rehabilitative

needs upon fashioning his sentence and only considered the safety of the

public. Further, Appellant contends that, although he did not kill anyone,

the court sentenced him as if he did kill someone. Appellant concludes that

the consecutive imposition of his sentences resulted in an excessive, unduly

harsh aggregate sentence that was not appropriate for the crimes he

committed. We disagree.

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

_______________________

(Footnote Continued)

a concise statement within 21 days of its July 15, 2013 order. Appellant

timely complied on August 3, 2013.

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An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a

four-part test: (1) whether appellant has filed a timely notice of

appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider

and modify sentence, see Pa.R.Crim.P. [720]; (3) whether

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)

whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.

Id.

Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post-sentence motion. Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 8. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).

“An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

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Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

“When imposing a sentence, the sentencing court must consider the

factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the

public, gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant. And, of course, the court must

consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d

843, 847-48 (Pa.Super.2006) (internal citations omitted).

A court’s exercise of discretion in imposing a sentence concurrently or

consecutively does not ordinarily raise a substantial question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),

appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of

consecutive rather than concurrent sentences will present a substantial

question in only “the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

To make it clear, a defendant may raise a substantial

question where he receives consecutive sentences within

the guideline ranges if the case involves circumstances

where the application of the guidelines would be clearly

unreasonable, resulting in an excessive sentence;

however, a bald claim of excessiveness due to the

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consecutive nature of a sentence will not raise a

substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to consider

or accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97

(Pa.Super. 2001) (internal citation omitted) (emphasis in original).

Specifically,

[t]here is ample precedent to support a determination that

[a claim that the trial court failed to consider an appellant’s

rehabilitative needs] fails to raise a substantial question….

See Commonwealth v. Cannon, 954 A.2d 1222, 1228–

29 (Pa.Super.2008), appeal denied, 964 A.2d 893

([Pa.]2009) (claim that the trial court failed to consider the

defendant’s rehabilitative needs, age, and educational

background did not present a substantial question);

Commonwealth v. Coolbaugh, 770 A.2d 788, 793

(Pa.Super.2001) (citing Commonwealth v. Mobley, 581

A.2d 949, 952 ([Pa.Super.]1990)) (claim that sentence

failed to take into consideration the defendant’s

rehabilitative needs and was manifestly excessive did not

raise a substantial question where sentence was within

statutory guidelines and within sentencing guidelines);

Commonwealth v. Coss, 695 A.2d 831, 833

(Pa.Super.1997) (when the sentence imposed falls within

the statutory limits, an appellant’s claim that a sentence is

manifestly excessive fails to raise a substantial question);

Commonwealth v. Bershad, 693 A.2d 1303, 1309

(Pa.Super.1997) (a claim that a trial court failed to

appropriately consider an appellant’s rehabilitative needs

does not present a substantial question); Commonwealth

v. Lawson, 650 A.2d 876, 881 ([Pa.Super.]1994) (claim

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of error for failing to consider rehabilitative needs does not

present substantial question).

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013), appeal

denied, 76 A.3d 538 (Pa.2013). Similarly, “this Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.” Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (internal citation omitted).

However, “prior decisions from this Court involving whether a

substantial question has been raised by claims that the sentencing court

‘failed to consider’ or ‘failed to adequately consider’ sentencing factors has

been less than a model of clarity and consistency.” Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa.Super.2014) (citing Dodge, supra). In

Commonwealth v. Dodge, this Court determined an appellant’s claim that

the sentencing court “disregarded rehabilitation and the nature and

circumstances of the offense in handing down its sentence” presented a

substantial question. Dodge, supra at 1273.

This Court has also held that “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).

Additionally:

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In determining whether a substantial question exists, this

Court does not examine the merits of whether the

sentence is actually excessive. Rather, we look to whether

the appellant has forwarded a plausible argument that the

sentence, when it is within the guideline ranges, is clearly

unreasonable. Concomitantly, the substantial question

determination does not require the court to decide the

merits of whether the sentence is clearly unreasonable.

Dodge, supra at 1270 (internal citations omitted).

Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider his

rehabilitative needs upon fashioning its sentence, presents a substantial

question. Thus, we grant his petition for allowance of appeal and address

the merits of his claim.

When reviewing a challenge to the discretionary aspects of sentencing,

we determine whether the trial court has abused its discretion. Seagraves,

supra at 842. We observe:

Sentencing is a matter vested in the sound discretion of

the sentencing judge, and a sentence will not be disturbed

on appeal absent a manifest abuse of discretion. In this

context, an abuse of discretion is not shown merely by an

error in judgment. Rather, the appellant must establish, by

reference to the record, that the sentencing court ignored

or misapplied the law, exercised its judgment for reasons

of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.

Raven, supra. at 1253 (quoting Commonwealth v. Shugars, 895 A.2d

1270, 1275 (Pa.Super.2006)).

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Here, Appellant exercised his right to allocution at the sentencing

hearing, before the trial court sentenced him. He spoke about his childhood,

the difficult time he had growing up without a father, his poverty, his

neighborhood, his brothers’ illnesses, his previous adult and juvenile

convictions, and his willingness and ability to do better with himself and

improve his life. See N.T., 11/14/12, at 24-43. The court then sentenced

Appellant without exceeding the guidelines.5 Before imposing the sentences

consecutively, the trial court reasoned:

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5

The parties agreed that Appellant’s prior record score was a RFEL. N.T.,

11/14/12, at 3. The parties also agreed that the offense gravity scores for

aggravated assault, robbery and persons not to possess firearms were each

a ten, the offense gravity score for firearms not to be carried without a

license was a nine, the offense gravity score for PIC was a four, the offense

gravity score for REAP was a three, and the offense gravity score for

carrying firearms on public streets was a five. Id. at 3-4. Further, the

parties agreed that, using the Deadly Weapon Used Matrix, aggravated

assault and robbery each warranted 90 to 102 months’ incarceration, plus or

minus 12. Id. at 5. The parties additionally agreed, using the Basic

Sentencing Matrix, that persons not to possess firearms warranted 72 to 84

months’ incarceration, plus or minus 12, that carrying firearms without a

license warranted 60-72 months’ incarceration, plus or minus 12, that PIC

warranted 21-30 months’ incarceration, plus or minus three, that REAP

warranted 12-18 months’ incarceration, plus or minus three, and that

carrying firearms in public warranted 24-36 months’ incarceration, plus or

minus three. Id. at 6. Thus, Appellant’s sentences of 9½-18 years’

incarceration for aggravated assault and robbery were in the aggravated

range, his sentence of 5-10 years’ incarceration for persons not to possess

firearms was in the mitigated range, and his sentence of 3½-7 years’

incarceration for carrying a firearm without a license was below the

mitigated range. Appellant’s sentences for PIC and REAP were both within

the standard range, and the court imposed no further penalty for carrying

firearms on a public street.

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I think you’re misguided. And it sounds like you did have

a difficult background and I understand that. But my

concern and I agree with almost everything the

Commonwealth said, almost all of her arguments.[6] My

concern is that you were basically completely unconcerned

about the safety of the people on the street, possible

children in the area at 4:30 in the afternoon on a summer

day, gun play, shooting a gun on the street. You could

have killed someone. But for the grace of God that no one

was killed. It’s amazing that this is not in the homicide

room. And what’s so compelling for me is that I don’t

think you really understand that. What’s shocking is that

you really are an intelligent young person. I believe that

and you’re so articulate and eloquent and compelling in so

many regards, but for you to do what you did is

unthinkable without any regard for who you could have

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6

The Commonwealth advised the trial court that Appellant had been

arrested nine times between the ages of 13 and 23 for crimes such as

burglary, criminal trespass, robbery, and selling drugs. N.T., 11/14/12, at

18-19. Further, the Commonwealth stated:

Judge, the third thing that Your Honor should consider in

sentencing is the rehabilitative needs of the defendant.

From his juvenile record counsel is correct a lot of his

cases did come to juvenile court. However, that also goes

to the fact that he has had multiple opportunities where he

has been taken into the juvenile justice system [the sole

purpose of which] is to rehabilitate people so that when

they become adults they don’t continue to commit crimes.

He’s been committed to…at least three different juvenile

institutions…. Instead of actually taking that help and

following the recommendations and the things that they

were trying to teach him to become a productive member

of society he decided that he was going to sell drugs and

he got arrested twice…. [C]learly he has had an

opportunity to be rehabilitated and it has not worked. He

has not chosen to take the help that this system has

offered him. Instead, he has chosen to continue a life of

crime.

Id. at 20-21.

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injured. Look at Ms. Floyd, if she had moved her head, if

she had sneezed she could have been paralyzed, killed,

anything could have happened to her. But for the grace of

God that no one is dead and that we’re here in this

situation and I don’t think that you fully get that. I don’t

think that you take responsibility for that. These are your

actions despite your childhood and I understand what

you’re saying. Lots of people grow up in the neighborhood

that you grew up in and they don’t take the path that you

took. That’s my concern. You decided to go that way.

Most of the people in the neighborhood that you grew up

in do not commit crimes. That’s a fallacy. People think

that because you live in certain neighborhoods and that

you see certain things every day that you’re going to grow

up to be a criminal, they’re not going to have a job. That

is just not true. I know. I know that’s not true. The

average person in the neighborhood that you grew up in

[goes] to work every day, they pay their rent, they pay for

their groceries, they live right. The average person does

do that despite what you hear on the media, despite what

you think and you didn’t make the decision to live right

and that’s my concern. You continually don’t [make the

right decisions and] you haven’t for a long time and you

still don’t seem to get it and you put people at risk and I’m

really worried about public safety with you out on the

street and I don’t think you’re rehabilitative and you don’t

seem like you want to be rehabilitated.

N.T., 11/14/12, at 43-45.

The trial court specifically considered the fact that Appellant continued

to make poor decisions after he spent short periods of time in correctional

facilities for previous crimes. Based on this, and the fact that Appellant was

still not willing to take responsibility for his actions, the trial court

determined Appellant did not want to rehabilitate himself, and that he would

not likely do so during a short period of incarceration. Further, the court

ordered Appellant to complete his GED program and said, “I would like you

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to enter job training. If you can take all of that energy that you gave today

in court in speaking and use that when you apply for a job when you do get

out and you will get out one day, you apply that energy into persuading a

[prospective] employer I think you’ll be fine with obtaining employment.”

Id. at 47. Thus, the trial court considered Appellant’s rehabilitative needs

before sentencing him.

Further, the trial court acted within its discretion in imposing

consecutive sentences. Appellant’s contention that the trial court sentenced

him as if he had killed someone when he had not killed anyone indicates that

Appellant does not appreciate the seriousness of his convictions. Appellant

committed numerous serious crimes, and as the trial court aptly observed,

the only reason he did not kill someone was for “the grace of God.”

Appellant stole $2,000 from his neighbor’s apartment, then fired shots at his

neighbor with an illegal gun on a crowded street at 4:30 in the afternoon.

Appellant was not entitled to a volume discount for these numerous and

serious crimes. See Mastromarino, supra at 587.

Because the trial court did not ignore or misapply the law, exercise its

judgment for reasons of partiality, prejudice, bias or ill will, and did not

arrive at a manifestly unreasonable decision, we hold that the court did not

abuse its discretion in imposing Appellant’s aggregate sentence.

In his next issue, Appellant argues the court erred in failing to grant a

mistrial because the prosecutor used an improper analogy in her closing

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argument. Appellant claims the prosecutor inflamed the jurors by depicting

them as the victims of Appellant’s crimes. Further, Appellant contends the

court’s curative instruction was inadequate and concludes that, because he

was deprived of a fair trial, he is now entitled to a new one. Again, we

disagree.

Initially, we note that Appellant has waived this issue for failure to

properly object during trial. See Commonwealth v. Bauhammers, 960

A.2d 59, 84 (Pa.2008), cert. denied, 558, U.S. 821, 130 S.Ct. 104, 175

L.Ed.2d 31 (2009) (“the absence of a specific contemporaneous objection

renders the appellant’s claim waived.”).

In his brief, Appellant objects to the prosecutor’s following closing

remarks:

A defendant comes into a bank, he comes up to juror

number three, points a gun at the juror, says open the

vault, juror number three opens the vault, now the

defendant goes into the vault by himself and takes all the

money. Meanwhile, he puts the gun away as he’s stealing

the money, the gun is no longer being displayed and juror

number three is now in a different location. …[7]

Defendant comes into the bank, goes up to juror number

five, points a gun at him says open the vault holds the gun

on juror number five, walks with him together into the

vault, juror number five is now in the vault with the

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7

Appellant omits the Commonwealth’s next sentence from his brief: “That’s

a threat of serious bodily injury before or in an attempt to commit a theft,

during. Bank robbery.” N.T., 8/30/12, at 147.

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defendant, the gun is still pointed at juror number five the

defendant grabs the money with the other hand. …[8]

Example number three defendant comes into the bank only

juror number ten is present inside the bank, somehow the

defendant gets into the vault walks out with his bag and as

he’s walking out of the bank juror number ten realizes that

the defendant just stole the money out of the vault, goes

after the defendant and says yo, stop give me the money

back and the defendant pulls out the gun points to juror

number ten, and if we’re talking about this case would

actually shoot at him.[9]

Appellant’s Brief at 14 (quoting N.T., 8/30/12, at 147-48). During trial,

Appellant objected at this point in the closing argument, without any

explanation. After the Commonwealth completed its closing argument,

Appellant clarified his objection: “Your Honor, the last objection I made, the

objection was to the following language, and I don’t have the exact, but in

effect, what counsel, what the Commonwealth did was suggest an example

that my client shot juror number ten or shot at juror number ten. That’s

completely impermissible, my motion is for a mistrial.” N.T., 8/30/12, at

153. Although Appellant objected to the prosecutor’s analogy involving juror

number ten, he did not object to the prosecutor’s analogies involving juror

number three or juror number five. Thus, Appellant has waived his issue as

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8

The Commonwealth next stated: “Robbery, threats during the theft.”

N.T., 8/30/12, at 148.

9

After Appellant’s objection is overruled, the Commonwealth explains:

“That is a threat of serious bodily injury while the person is fleeing after the

theft has been committed.” N.T., 8/30/12, at 148.

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it pertains to those jurors on appeal. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”)

Further, the court offered a curative instruction that Appellant

accepted and that applied to all portions of the prosecutor’s argument. The

court explained to Appellant’s counsel: “I basically just want to call attention

to the fact that there was an objection made during the Commonwealth’s

closing argument and that they are instructed that they’re not allowed to

picture themselves as the victim in the case because it may interfere with

their ability to be fair and impartial.” N.T., 8/30/12, at 156. Appellant’s

counsel responded: “I’m okay with that language.” Id. Appellant may not

now challenge this instruction. See Pa.R.Crim.P. 647(B) (“No portions of the

charge nor omissions from the charge may be assigned as error, unless

specific objections are made thereto before the jury retires to

deliberate”);see also Pa.R.A.P. 302(a), supra.

Moreover, even if Appellant had properly preserved his issue, it merits

no relief.

Our standard of review of a court’s denial of a motion for mistrial is as

follows:

A motion for a mistrial is within the discretion of the trial

court. A mistrial upon motion of one of the parties is

required only when an incident is of such a nature that its

unavoidable effect is to deprive the appellant of a fair and

impartial trial. It is within the trial court’s discretion to

determine whether a defendant was prejudiced by the

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incident that is the basis of a motion for a mistrial. On

appeal, our standard of review is whether the trial court

abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super.2014) (quoting

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.2003)).

It is well settled that a prosecutor has considerable latitude

during closing arguments and his arguments are fair if

they are supported by the evidence or use inferences that

can reasonably be derived from the evidence. Further,

prosecutorial misconduct does not take place unless the

unavoidable effect of the comments at issue was to

prejudice the jurors by forming in their minds a fixed bias

and hostility toward the defendant, thus impeding their

ability to weigh the evidence objectively and render a true

verdict. Prosecutorial misconduct is evaluated under a

harmless error standard.

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa.Super.2009) (quoting

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super.2008)).

A trial court may remove taint through curative instructions.

Commonwealth v. Manley, 985 A.2d 256, 266-67 (Pa.Super.2009).

“Courts must consider all surrounding circumstances before finding that

curative instructions were insufficient and the extreme remedy of a mistrial

is required.” Id. at 267.

Here, the prosecutor used the analogy of a generic “defendant”

robbing a bank to explain to the jury the elements of robbery. The

prosecutor did not suggest that Appellant, himself, was the bank robber, a

suggestion that might have impeded the jury’s ability to weigh the evidence

objectively and render a true verdict. See Judy, supra. Further, the court

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gave the jury a curative instruction to ensure that the jury did not picture

themselves as victims.

Appellant further contends that, although he agreed to the court’s

curative instruction, the court failed to actually reference the prosecutor’s

improper remarks to put into proper context why the jurors may have felt

like victims. When addressing the jury, the court stated:

There was an objection made during closing argument by

the defense and I just wanted to clarify to you the

objection was grounded in an analogy that the prosecution

made. I just wanted to tell you that you are not allowed to

picture yourselves as a victim because if you do that, it

may tend to interfere with your ability to be fair and

impartial.

N.T., 8/30/12, at 160. Although the court does not specifically state the

prosecutor’s actual words, it referenced the analogy and placed it in

sufficient context. Thus, Appellant’s issues merit no relief.

Judgment of sentence affirmed.

Judge Bowes, Judge Donohue, Judge Shogan, Judge Lazarus, Judge

Olson and Judge Stabile join in the Opinion.

Judge Wecht files a Concurring Opinion.

Judge Mundy concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/2015

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