Opinion

Com. v. Waters, W.

Court: Superior Court of Pennsylvania
Filed: Jul 21, 2015
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.8%

Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to identify the defendant on a prior occasion, or where a witness is physically prevented or obstructed from making an identification

How later courts described this case

Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to identify the defendant on a prior occasion, or where a witness is physically prevented or obstructed from making an identification
"Hamiless error exists if the reviewing court is convinced from the record that (I) the error did not prejudice the defendant or the prejudice was de rninimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence, or (3
a Kloiber instruction is appropriate only where a witness might be physically incapable of making a reliable observation as opposed to the typical credibility determinations made by a fact-finder such as a witness who is intoxicated
reiterating that jurors are presumed to follow the trial court's instrnctions

Written by the judges who cited it.

The opinion

J. A15033/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

v. :

WESLEY WATERS, :

Appellant : No. 118 EDA 2014

Appeal from the Judgment of Sentence September 5, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0004959-2011

BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015

Appellant, Wesley Waters, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and convictions for robbery,1 conspiracy,2 violations of the uniform

firearms act,3 and possession of an instrument of crime.4 Appellant

contends that the court improperly limited his cross-examination by stating

that if he cross-examined the police on the extent of their investigation, then

Former Justice specially assigned to the Superior Court.

18 Pa.C.S. § 3701(a)(1)(ii).

18 Pa.C.S. § 903.

18 Pa.C.S. §§ 6105(a)(1), 6108.

18 Pa.C.S. § 907(a).

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the testifying police officer could potentially disclose his prior robbery

conviction. He claims the court erred by allowing a police officer to opine on

whether Appellant acted like a robbery victim. Appellant challenges the

court’s refusal to issue a Kloiber5 instruction and the prosecutor’s comment

during her closing arguments. We affirm.

We adopt the facts set forth by the trial court’s decision. See Trial Ct.

Op., 8/25/14, at 1-3. Following a hung jury and mistrial, Appellant was

again tried by a jury. At the second trial, the following exchange transpired

during the direct examination of Officer Floyd Allen, the arresting officer who

was with her partner:

[Commonwealth]. You get a flash[6] for an armed robbery?

A. Yes.

Q. What do you guys do?

A. Proceed to the area. I happened to be around the

corner from there. Beings [sic] as though the flash said it

happened on Wayne and Seymour, I took Seymour Street

down. As I’m approaching Germantown Avenue, I see

[Appellant] to my left with the gray shirt on standing on

the corner with another male. They were at that point

Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

“A flash information is based on a report from the initial officers to

investigate the scene of a crime and is broadcast to other police units in the

district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.

1986). Instantly, Officer Allen testified that Appellant and codefendant were

the only two in the area that matched the description in the flash

information, which was “two black males, one with a beard” and a blue,

green, or blue-green hoody. N.T., 7/3/13, at 49, 82-84.

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separating. The other male is starting to walk up Seymour

into the 14th. As I get closer, [Appellant] is making a

head and hand gesture, pointing like this like he has a

gun.

The court: I’m sorry. Repeat that, please.

[A.] Making a head and hand gesture, like the male going

to the left had a gun. So stopped [Appellant]. Put him in

my car for investigation. Went and stopped the other

male. Brought him back to the car. At that point [another

officer, Officer Sommerville, who had arrived at the scene

in response to the flash, see N.T. Trial, 7/3/13, at 91-92]

recovered a weapon which was a revolver [from a trash

can near codefendant Dominic Broadneck7].

* * *

Q. There’s a map behind you there. Can you show the

ladies and gentlemen of the jury the route that you took to

ultimately get to where [Appellant] and codefendant were?

A. This is Seymour here. Knox and Seymour. I basically

just came straight down from Wayne. Straight down

Seymour to Germantown Avenue. [Appellant] was

standing here on this corner. As I’m approaching this

corner, [Appellant] pointing to the other male who is

walking into the 14th District along alongside of I believe

it’s a church, if I’m not mistaken. There’s a trash can right

here which I see the other male stop at. As [Appellant’s]

pointing like this, I’m looking at the male. The male stops

at the trash can which is the side of the building and he

continues to walk. Again, I placed [Appellant] into my

vehicle for investigation purposes and stopped the other

male with the help of Officer Sommerville.

Q. Let me stop you for a second. Can you describe

[Appellant’s] demeanor as he’s standing on the corner kind

of like bobbing his head?

The record also indicates codefendant’s last name was Broadnax.

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A. He’s bobbing his head and pointing and making a

gesture that the other male had a gun, but he’s very cool

and very calm. And in my profession—

[Appellant’s counsel.] Objection. It’s not asking for

opinion evidence here.

The court: That’s fine. It’s denied.

[Commonwealth]. You can continue.

A. In my years of service normally when people were

getting robbed, they are excited when they see the police.

They are jumping up and down. They are flagging us

down: Officer, Officer, this man had a gun. He was not

exited [sic] or anything. So for investigation purposes, I

placed [Appellant] in my vehicle so I could stop the other

male and find out what’s going on.

Q. Why did you place [Appellant in your] vehicle [sic] if

he’s kind of acting like a victim?

[Appellant’s counsel.] Objection.

The court: Sustained.

[Commonwealth]. Why did you place [Appellant] in the

rear of your car?

A. A lot of times you get a robbery job. People say, oh,

this male—

[Appellant’s counsel.] Objection. A lot of times? Let’s

limit it to this case.

The court: That’s fine. You can limit it to this case. You

can rephrase the question.

[Commonwealth]. Why in this particular case did you

place [Appellant] in the rear of your car for investigation

purposes?

A. To find out exactly what was going on.

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Q. Are you certain this person was a victim at that point?

A. No, I was not.

Q. And what happened once you placed [Appellant] in your

vehicle for investigation and then you start pursuing the

codefendant?

A. Once I knew that [Appellant] was secured and my

partner was safe watching him, that’s when Officer

Sommerville and I cut the other defendant off. Brought

him back to the vehicle so he could be checked and make

sure he didn’t have a weapon at that point. Until he was

safe and we could put him in the vehicle.

N.T., 7/3/13, at 43-48.

Appellant also cross-examined at least one police officer and one

detective about the extent of their investigation and asked, inter alia, why

the police did not lift fingerprints from the victim’s credit cards or investigate

Appellant’s cell phone. See id. at 75-76, 191-92, 198. For the defense,

Appellant’s sister, Dashawna Waters, was the sole witness. Id. at 204-11.

She testified she dropped Appellant off near Germantown and Seymour to

see his friend. Id. at 206.

During his closing argument, Appellant argued he was the victim of the

instant crimes and the perpetrator was his codefendant, Dominic Broadneck:

There’s more obvious problems with this case. This is

in fact a high crime area. I mean, it’s not pleasant to say

that this part of the city of Philadelphia is what we call a

high crime area. . . . And we need to put more police

officers in those areas because they have more burglaries;

they have more robberies; they have more drug sales;

they have more shootings.

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And guess what? The 39th District is one of those.

Officer Waltman’s told you and Officer Sommerville told

you. This has been identified by the police department

and they have tactical units there. They have burglary

units out there. They have five squad out there. And for

them to say that, well, there was nobody else out there

and nobody else could have been out there robbing

[Appellant], that’s impossible.

. . . So let’s just talk about what a robbery is. A

robbery is, you know, two or more people getting together

and saying, hey, let’s go steal some money. And if they

say, meet me at 1:00 out at the bank, that’s pretty

simple; right? I need some money. You do? All right.

1:00 at the bank at 15th and JFK. All right. Be there.

They meet there, Rob and they go away.

Ask yourself this: two people at different parts of the

city, because we know [Appellant] was by himself. How do

they decide we’re just going to meet at a moving target

that we don’t even know where it’s going to be or who’s

going to be there or if anyone is going to be there? How

does this happen? How does [Appellant] go from being

alone to getting so lucky as to find someone at Seymour

and Knox [i.e., the location of the robbery,] and being

there at the same time as [codefendant] Broadneck? This

is too much.

What evidence do they have to show that was such a

coordination that they were able to say, you know what? I

think there’s going to be a guy right at Knox and Seymour

at exactly 2:00. And if you meet here and I meet here

and we meet in the middle, there’s going to be someone

there to rob. It’s not that easy. In fact, it’s quite difficult.

It makes no sense. And they can’t prove how that could

have possibly happened.

Another thing that’s very clear. The gun and the

proceeds are all on [codefendant] Dominic Broadneck. If

someone is a victim of a robbery and they say, hey, that’s

the guy that did it and they got the gun and the proceeds,

well, it’s pretty clear to say that that’s the right person.

[Appellant] had none of that. He didn’t have the gun. He

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didn’t have the credit cards. He didn’t have the cell phone.

He didn’t have the wallet. He didn’t have the cash.

* * *

Now, there’s [Appellant’s] head gesture. This head

gesture, this could have been number one. This could

have been number one or number two. Moving your head

towards another guy who has a gun? Well, I guess that

now means when you go like this and you point to the

other person who has a gun, you’re saying to the police,

hey, I did it, too. I’m a robber, too; right? That’s what he

must have been saying. Or was he trying to tell the police

officer, hey, that guy just robbed me? That is reasonable

doubt in and of itself.

He didn’t run away. He didn’t hide. He didn’t start

throwing things out of his pockets. He stands there on the

corner. That guy has a gun. He’s not saying he’s got a

gun because we’re out robbing people together. This is

nonsense. This is absolute nonsense.

N.T., 7/5/13, at 30-33, 35-36.

In response to Appellant’s closing argument that he was not the

perpetrator, the prosecutor summarized video surveillance footage:

This video, ladies and gentlemen, is worth a 1,000 words.

What do you have on this video? Let’s talk about the

timeline. This video helps us figure out exactly what’s

going on. All right. He says he doesn’t know what time

the robbery happened. Well, I can do math and I know

you can do math. So I can tell you what time the robbery

happened? All right.

Here we are, 2:00 a.m. and one second. You have

[Appellant] walking towards Knox and Seymour in the

direction of the robbery. He’s headed right there. He’s

headed right towards Mr. Coleman. He’s walking there at

2:00.02. 2:00 a.m. He’s walking there at 2:00.04.

2:05.32 and somewhere between 2:06. That’s when Mr.

Coleman is being robbed. Does he have time to get there?

Yes. Detective O’Neill told you, I walked that and I just

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walked it at a normal pace and I got there at five minutes

and two seconds. But did he make it five blocks? Five

regular city blocks? Absolutely.

How did we know when the robbery happened?

2:08.31. That C.A.D.[8] report that counsel was talking

about, well, 2:08.31 is when you get the call, the 911

dispatch. Mr. Coleman sat there and said it took me two

to three minutes to get home tops. I called 911. My wife

called 911 immediately. That’s how we know when the

robbery is taking place.

When do we see [Appellant] again? 2:11.7. And where

do we see him? I’ll tell you. He’s walking back from the

direction of the robbery. He’s walking back from Knox on

Seymour. That’s where he’s coming from because he just

robbed Mr. Coleman. And remember the minute behind

him? His codefendant, Dominic Broadneck. That person

wearing all dark clothing, dark boots. The guy on that

video, you see him in the corner. He’s walking back from

Knox and Seymour, too, the same direction a minute

behind this defendant. Dark pants, dark boots. That’s

Dominic Broadneck. You heard the description. That’s

where he is.

The crime is solved on the street by officers within

minutes. Ladies and gentlemen, that video is something

he can’t explain away. Well, he wants to say there was a

cab somewhere in that video? Okay. Germantown Cab

Company. What, did he call a cab? Is someone picking

him up? Is that why he was there? He has five $1’s in his

pocket. How is he going to pay for that cab. Where was

he going? Is he going to get in the cab and go somewhere

with the money he didn’t have to pay for the cab or is he

going to Portico Street to take a cab a half a block. That

doesn’t make sense. Because what makes sense is that

timeline there.

Okay. So he’s stopped a couple minutes later and the

codefendant is tossing the gun; right? The gun is not in

Criminal Arrest and Disposition Report.

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his waistband. So what? We know where the gun was

when the robbery was happening. It was in his waistband.

He was using it to paralyze Mr. Coleman to have him give

up all his items. Okay. Crime for dummies 101. Read the

first couple chapters. I just committed an armed robbery.

I got the gun and I got the proceeds. I’m standing like a

sitting duck on the corner of Germantown and Seymour.

I’m sitting right here. I got Officer Sommerville coming

down this way. I got Officers Allen and Officer Lee Coming

up this way. I’m done. I’m toast.

A crime for dummies 101. Get rid of the gun, get rid of

the proceeds and then stand there and go like this. It’s

that guy. It was him. Officer Allen didn’t buy it. No one

bought it. And I know you guy’s don’t buy it. That’s not

how someone acts when they were being robbed. If he

was a victim, he would have been up there telling

the story. He wasn’t the victim. He was one of the

robbers.

[Appellant’s counsel]: Objection.

The court: Noted.

Id. at 91-94 (emphasis added). The court did not caution the jury at that

point.

After the prosecutor completed her closing and the jury was excused,

Appellant’s counsel formally moved for mistrial:

[Appellant’s counsel]: Briefly, your Honor, I have a motion

for mistrial. During the prosecution’s closing, there was a

line of testimony in which the prosecutor actually with her

arms signaled towards the witness box and stated that he,

referring to [Appellant], never testified. And it was in the

context of claiming that he was a victim. He was the

person who was robbed that day and he never testified.

That’s clearly prohibited as to argument. It infringes on

my client’s Fifth Amendment right to remain silent and also

his Fifth Amendment right not to speak on his own half

[sic] at a trial. Such argument and such blatant gesturing,

emphasizing to the jury is clearly prosecutorial misconduct

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and inadmissible argument and those are grounds for a

mistrial.

The court: And [assistant district attorney?]

[Assistant district attorney]: Your Honor, counsel argued

during his closing arguments that he was a victim. And

my reference to the fact that he was a victim, they would

have known about it, your Honor. It’s not a violation of

the Fifth Amendment right. I don’t think, your Honor, it is

improper.

The court: I will deny the motion for mistrial. I think that

the instructions that I will give including as to whose

burden it is, the presumption of innocence and his failure

to testify, that there can be no inference of guilt or other

inference. An adverse inference is sufficient in my view to

guide the jury as to how they should decide this case.

Id. at 101-03.

The court, during its charge, instructed the jury as follows:

It is entirely up to the defendant in very criminal trial

whether or not to testify. He has an absolute right

founded under the Constitution to remain silent. You must

not draw any inference of guilt or any other inference

adverse to the defendant from the fact he did not testify.

Id. at 110-11.

The jury convicted Appellant, and the court sentenced Appellant to an

aggregate sentence of seven to twenty years’ incarceration. Appellant filed

a timely post-sentence motion, which the court denied that same day.

Appellant did not file a notice of appeal within thirty days, but later filed a

successful Post Conviction Relief Act9 petition to reinstate his direct appellate

42 Pa.C.S. §§ 9541-9546.

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rights nunc pro tunc. Appellant timely appealed and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issues on appeal:

Did trial court err in limiting Appellant’s cross examination

of the lead detective regarding the extent of the

investigation?

Did the trial court err in permitting a Philadelphia police

officer to testify as to his opinion that Appellant did not act

like the victim of a robbery?

Was Appellant denied a fair trial and due process of law by

the Court permitting the prosecutor in her closing remarks

to comment upon [A]ppellant’s silence?

Was Appellant entitled to a Kloiber jury charge?

Appellant’s Brief at 4.

In support of his first issue, Appellant claims that two detectives

interviewed him and prepared his five-page statement, although he

concedes he never introduced the statement into evidence. Id. at 10, 11

n.3. Appellant claims that his statement memorialized his allegations that

he was a victim of the robbery and identified four potential defense

witnesses, including his sister, Dashawna Waters,10 and a cab driver. Id.

He insists the police refused to interview any of his witnesses. Id. Although

he did not attempt to introduce the statement at trial, Appellant argues the

prosecutor “fought to keep out any mention of this statement or that the

As noted supra, she testified at Appellant’s trial.

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police refused to interview potentially exculpatory witnesses.” Id. at 10.

Appellant asserts the court ruled that if he questioned the police about the

“nature and extent” of the police investigation, then the Commonwealth

could introduce evidence of Appellant’s prior conviction for robbery.11 Id. at

11. Appellant contends the court’s conditional ruling was error as it

constituted a de facto prohibition of his right to confront and cross-examine

the witnesses against him. Id. at 13.

The Commonwealth counters that the two detectives who purportedly

recorded Appellant’s statement did not testify at trial.12 Commonwealth’s

Brief at 11. In conjunction with the fact that Appellant’s statement was

never mentioned or introduced into evidence, the Commonwealth contends

The trial court’s ruling follows:

The court: And the second would be as to investigating

any of the named witnesses that [Appellant] had provided

to the detectives and the extent of his investigation. At

least in my view, if you are to challenge the detective as to

why he did not interview them, in my view you’re opening

the door to whatever his truthful response would be. And

if that includes that he thought that that [sic] they were

the right person based in part on a prior conviction for

robbery in the same area, that comes through.

N.T., 7/2/14, at 248-49.

Both detectives were apparently on preplanned vacations scheduled that

week, each of which was requested in December of 2012. N.T., 7/3/14, at

183-84, 199-200.

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Appellant’s claim lacks merit. Alternatively, it claims the court’s ruling was

correct:

First, in the absence of any testimony from [Appellant],

it was entirely proper for the court to rule that he could not

use his cross-examination as a back door through which to

bring in his own hearsay statement to police, in

contravention of Pa.R.Evid. 802.4 Second, the trial court

was well within its discretion to rule that [Appellant] could

question the detectives about their failure to investigate

certain supposed witnesses, but that doing so might open

the door to their truthful responses that they believed they

had the right person based on the evidence and

[Appellant’s] prior conviction for a similar robbery in the

same neighborhood.

Even now on appeal, [Appellant] utilizes a similar back-

door approach by inappropriately attaching the statement

he gave to police to his brief. He does so despite explicitly

acknowledging that “the Statement was never introduced

into evidence in the trial” and, thus, it is not a part of the

certified record on appeal.

Commonwealth’s Brief at 12-13 & n.4 (citations omitted). The

Commonwealth also notes Appellant “repeatedly questioned the officers

through the trial regarding their failure to investigate certain aspects of the

case (See, e.g., N.T. 7/3/2013, 75-76) (asking Officer Allen on cross-

examination why he did not speak with the cab driver who was on the scene

or investigate [Appellant’s] cell phone to see if he had made any phone

calls).”13 Id. at 13. We agree that Appellant is not entitled to relief.

The officer responded that it was the detective’s job, and not her job, to

contact the cab driver or retrieve Appellant’s cell phone. N.T., 7/3/13, at 76.

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We initially note that cross-examination is the primary

method for testing the believability of a witness and the

truth of his testimony. Cross-examination may be

employed to test a witness’ story, to impeach credibility,

and to establish a witness’ motive for testifying. The scope

of cross-examination is a matter within the discretion of

the trial court and will not be reversed absent an abuse of

that discretion.

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citations and

quotation marks omitted); see also Pa.R.E. 611(b) & cmt. Similarly, the

limits placed on cross-examination also lie within the discretion of the trial

court. Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super.

1995). Any error is subject to the harmless error standard. Id. at 1279.

With respect to a written statement by the defendant, Pa.R.E. 801 and

802 apply:

(a) Statement. “Statement” means a person’s oral

assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made

the statement.

(1) the declarant does not make while testifying at the

current trial or hearing; and

(2) a party offers in evidence to prove the truth of the

matter asserted in the statement.

Pa.R.E. 801. “Hearsay is not admissible except as provided by these rules,

by other rules prescribed by the Pennsylvania Supreme Court, or by

statute.” Pa.R.E. 802.

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Instantly, and regarding Appellant’s statement, we agree with the trial

court that Appellant could not elicit the contents of his written statement via

cross-examination of the two detectives—who did not even testify—without

sufficient evidentiary foundation for the statement. See id. Indeed,

Appellant conceded he did not introduce or attempt to introduce the

statement at trial, although he included it as an exhibit to his appellate brief.

See Appellant’s Brief at 11 n.3. Appellant cannot attempt to introduce the

contents of his statement for the truth of the matter asserted therein via

other means, i.e., cross-examination. Under these circumstances, the trial

court properly exercised its discretion to limit Appellant’s cross-examination.

See Chmiel, 889 A.2d at 527; Mullins, 665 A.2d at 1277.

As for Appellant’s claim that the court limited his cross-examination of

any police witness, we discern no basis for this contention. Rather, the court

cautioned Appellant that if he elected to question the police about why they

did not interview the witnesses he identified in his statement, then he must

accept the response of the police, including their belief that Appellant was

the perpetrator based on his prior conviction for robbery in the same area.

See N.T., 7/2/14, at 248-49. Indeed, Appellant asked the police about the

extent of their investigation, including whether they contacted the cab

driver, reviewed Appellant’s cell phone, or obtained fingerprints from the

victim’s credit cards. See N.T., 7/3/13, at 75-76, 191-92, 198. The police,

however, did not testify about their belief that Appellant was the perpetrator

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because of a prior, similar robbery conviction. Thus, we construe the court’s

instruction as more cautionary and observational and not an absolute

command. See N.T., 7/2/13, at 248-49 (stating, “if you are to challenge . .

. , in my view you’re opening the door . . . .”). And even if we construed

this conditional language as a limiting instruction, then we discern no error

from the court’s rulings regarding the scope of Appellant’s cross-examination

of the police about the nature and extent of their investigation. See, e.g.,

N.T. 7/3/13, at 198. Assuming error, however, after viewing the record in

the Commonwealth’s favor, we discern no “reasonable possibility that [it]

might have contributed to [Appellant’s] conviction.” See Mullins, 665 A.2d

at 1279. Accordingly, we discern no abuse of discretion. See Chmiel, 889

A.2d at 527; Mullins, 665 A.2d at 1277.

Appellant next argues that the court erred by permitting the

Commonwealth to permit Officer Allen to testify that he was not acting like a

victim. The standard of review of a “trial court’s decision to admit evidence

is subject to review for an abuse of discretion.” Commonwealth v.

Hairston, 84 A.3d 657, 664 (Pa. 2014) (citation omitted). After careful

consideration of the parties’ arguments, the certified record, and the

decision by the Honorable Daniel Anders, we affirm this issue on the basis of

the trial court’s decision as we discern no abuse of discretion. See Trial Ct.

Op. at 11-13 (holding it sustained counsel’s objection to whether Appellant

acted “like a victim” and it was permissible for police to testify about

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Appellant’s demeanor on the street corner and reason for placing Appellant

in back of vehicle); see also Hairston, 84 A.3d at 664.

We summarize Appellant’s argument in support of his third issue. He

contends the Commonwealth, in its closing statement, argued that if he was

the victim, then he would have testified. Id. at 21 (referencing, as set forth

above, N.T., 7/5/13, at 94). Appellant claims the prejudice was not cured

by the court’s “standard instruction that no inference should be drawn” by

his refusal to testify. Id. at 20. He asserts the Commonwealth’s statement

was doubly unfair because it possessed Appellant’s statement to the police

that alleged he was the victim and identified four corroborative witnesses

that the police did not interview. Appellant notes that in conjunction with

Officer Allen’s testimony regarding whether he was a victim, he concludes a

new trial is warranted. We hold Appellant has not established the error was

so prejudicial as to warrant a new trial.

In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our

Supreme Court stated:

The review of a trial court’s denial of a motion for a

mistrial is limited to determining whether the trial court

abused its discretion. . . . A trial court may grant a

mistrial only where the incident upon which the motion is

based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury

from weighing and rendering a true verdict.

A comment is forbidden if the language used by the

prosecutor is intended to create for the jury an adverse

inference from the failure of the defendant to testify. It is

well settled that any comment by the prosecution or the

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court violates 42 Pa.C.S. § 5941[14] if it draws attention to

or focuses on the fact that no one except the defendant

can rebut the Commonwealth’s case.

Id. at 142 (citations and quotation marks omitted).

In Wright, the prosecutor sarcastically stated the following during his

closing arguments:

Tammy Mowery did it. That’s why [the defendant] has 60

rounds of ammunition on him, not counting what’s in the

gun, almost twice what a police officer would call—or

carry, I’m sorry, ‘cause Tammy Mowery did it. That’s why

[the defendant] has the shells, the bullets, the live rounds.

Tammy Mowery did it. That’s why [the defendant] had the

Taser and the Pepper Spray, ‘cause Tammy Mowery did it.

And then, of course, he didn’t say anything, but the police,

of course, lying indicated to you that he basically

confessed. I just toasted a guy and I know I’m going to

jail. Don’t try to tell me I’m not. I know what happened.

But that’s all made up. That’s all made up. Truth is, folks,

two best Commonwealth witnesses here are the two that

didn’t testify in person. Jim Mowery, who says [the

defendant] broke in my house shootin’, and [the

defendant] says, yeah, I killed him.

This statute states as follows:

(a) General rule.—Except defendants actually upon trial

in a criminal proceeding, any competent witness may be

compelled to testify in any matter, civil or criminal; but he

may not be compelled to answer any question which, in

the opinion of the trial judge, would tend to incriminate

him; nor may the neglect or refusal of any defendant,

actually upon trial in a criminal proceeding, to offer himself

as a witness, be treated as creating any presumption

against him, or be adversely referred to by court or

counsel during the trial.

42 Pa.C.S. § 5941.

- 18 -

J. A15033/15

Id. at 141. The prosecutor then concluded:

As I said before, I suggest two of the best witnesses that

were here are the ones that did not testify—[the

defendant], who admitted to doin’ it, and Jim Mowery, who

pointed out his killer, even though he’s not here to face ya

and tell you that in person.

Id. The defendant’s counsel then moved for a mistrial based on the

prosecutor’s references to the defendant’s failure to testify. Id.

The court denied the motion, but immediately gave a

cautionary instruction: “The defendant’s right to remain

silent . . . is absolutely in place. And you shouldn’t take

any of the Commonwealth’s argument that you heard as in

any way disturbing that right to remain silent or that

burden of proof. . . . I’ll talk with you in more detail about

all of those. . . .”

Id.

Our Supreme Court held that the prosecutor’s comments were

inappropriate but nonetheless held the error was harmless given the

overwhelming evidence of the defendant’s guilt:

There is a fine line between vigorously arguing the

evidence and drawing attention to appellant’s decision not

to testify. As stated above, this Court vigilantly protects

the right to remain silent and recognizes references to an

accused’s exercise of this right may jeopardize the

presumption of innocence in the jury’s mind. For this

reason, though we believe no impropriety was intended,

we cannot find the prosecutor’s comments were not

inappropriate; the spirit of “oratorical flare,” as

characterized by the Commonwealth, must bend to the

accused’s fundamental right to remain silent.

However, not every reference to a defendant’s failure to

testify automatically requires a new trial; the verdict can

still be sustained if the error was harmless. An error is

harmless if it could not have contributed to the verdict. In

- 19 -

J. A15033/15

other words, an error cannot be harmless if there is a

reasonable possibility the error might have contributed to

the conviction. We have found harmless error where:

(1) the error did not prejudice the defendant or the

prejudice was de minimis;

(2) the erroneously admitted evidence was merely

cumulative of other untainted evidence which was

substantially similar to the erroneously admitted evidence;

(3) the properly admitted and uncontradicted evidence of

guilt was so overwhelming and the prejudicial effect of the

error was so insignificant by comparison that the error

could not have contributed to the verdict.

The Commonwealth has the burden of proving harmless

error beyond a reasonable doubt.

Id. at 143 (some punctuation and citations omitted). The Wright Court

held the Commonwealth met its burden as “[t]his was not a close case,

where a remark such as the one the prosecutor made can change the flow of

a trial—this trial was a river of evidence, and its flow was unaffected by this

reference.” Id. at 144.

The Wright Court additionally held that “the trial court’s curative

instructions curtailed any damage the prosecutor’s reference could have

caused.” Id.

The court issued an immediate cautionary instruction

regarding [the defendant’s] right to remain silent and the

Commonwealth's burden of proof. During jury

instructions, the court charged the jury at length regarding

appellant’s right to remain silent and specifically warned

the jury against drawing any adverse inferences from the

prosecutor’s comments.

- 20 -

J. A15033/15

Id. “Further, appellant has offered nothing to rebut the presumption the

jury followed the trial court’s instructions.” Id. Accordingly, our Supreme

Court, although holding the prosecutor erred by commenting that the

defendant did not testify, concluded the error was harmless given, inter alia,

the overwhelming evidence of guilt, the court’s jury charge regarding the

defendant’s right to not testify, and the absence of any evidence the jury

disobeyed the trial court’s charge. Id.

Instantly, assuming without deciding that the prosecutor erred by

gesturing to the empty witness box and opining that Appellant could have

testified,15 see Wright, 961 A.2d at 141, we ascertain whether the error

was harmless. With respect to evidence of guilt, 16 the victim identified

Appellant and Broadneck as the people that robbed him on the night of the

robbery, at the preliminary hearing, and at trial. See Trial Ct. Op. at 3-4,

19. Video surveillance placed them both near the scene at the time of the

robbery. See N.T., 7/3/13, at 43-48. Similar to the trial court in Wright,

the instant trial court charged the jury regarding Appellant’s right to remain

silent, cautioned the jury about drawing any adverse inferences because

Appellant did not testify, and Appellant has not rebutted the presumption the

jury followed the trial court’s instructions. See id. Although the court did

This was wholly unnecessary.

Appellant has not challenged the sufficiency of evidence for his

convictions.

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J. A15033/15

not issue an immediate cautionary instruction, cf. Wright, 961 A.2d at 141,

we cannot conclude the prosecutor’s error was prejudicial given the

evidence, the jury charge regarding Appellant’s right to remain silent, and

the lack of evidence the jury disobeyed the trial court’s instructions. Cf.

Wright, 961 A.2d at 141-44.

Appellant lastly argues the court erred by not instructing the jury

pursuant to Kloiber. He contends the circumstances under which the victim

allegedly observed him and the victim’s inconsistent testimony regarding

aspects of the encounter warranted a Kloiber charge. We hold Appellant is

due no relief.

“We evaluate whether a Kloiber instruction is necessary under an

abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,

332-33 (Pa. Super. 2012). “Pursuant to Kloiber, where a witness was not

in a position to observe the assailant clearly, or had previously failed to

identify the defendant, the court must instruct the jury to receive the

witness’ identification testimony with caution.” Chmiel, 889 A.2d at 541

(citations omitted); Commonwealth v. Rollins, 738 A.2d 435, 448 n.14

(Pa. 1999) (“A Kloiber charge instructs the jury that a eyewitness’

identification should be viewed with caution where the eyewitness: (1) did

not have an opportunity to clearly view the defendant; (2) equivocated on

the identification of the defendant; or (3) had a problem making an

identification in the past.”). After careful review of the certified record—

- 22 -

J. A15033/15

including the victim’s testimony identifying Appellant—the parties’ briefs,

and the well-reasoned decision of the trial court, we affirm on the basis of

the trial court’s decision. See Trial Ct. Op. at 17-21 (holding record

establishes victim unequivocally and without hesitation identified Appellant

on the night of the robbery, at the preliminary hearing, and at trial). For

these reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015

- 23 -

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RECEIVED

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST nJDICIAL DISTRICT OF PENNSYLVANIA AUG 2 5 2014

TRIAL DIVISION - CRJ1v[INAL APPE

ALS/POSTTRIAL

COMMONWEALTH OF PRNNSYLV ANIA CP-51-CR-0004959-2011

CP-51-CR-0004959-2011 Comm. v. Waters. Wesley

Opinion

vs. 118 EDA 201J<l Lf

WESLEY WATERS I

II I II llll111111111111111

7190385271

OPINION

Following a jury trial, Defendant Wesley Waters was convicted of robbery, conspiracy,

two violations of the uniform firearms act, and possession of an instrument of crime. The trial

court sentenced Defendant to a total of 7 to 20 years of incarceration. Defendant filed a timely

appeal ( after his rights were reinstated 111mc pro tune by way of a PCRA petition) in which he

argues that: (1) the verdict was against the weight of the evidence, (2) the preliminary hearing

judge erred in denying his motion for a lineup, (3) the trial court erred in limiting his cross-

examination of a police detective, ( 4) the trial court erred in permitting a Philadelphia police

officer to testify as a fact witness and state his opinion that Defendant acted like a co-defendant

and not like a victim, (5) the prosecutor's improper comments upon Defendant's silence in her

closing argument denied Defendant a fair trial and due process of law and was a sufficient basis

for a mistrial, which was denied in error, and (6) the trial court erred in denying Defendant's

request for a Kloiber instruction regarding the victim's identification testimony. For the reasons

stated below, the Superior Court should affirm the judgment of sentence.

FACTUAL BACKGROUND

1. The Robbery At l 00 West Seymour Street

In the early hours of February 24, 2011, Lorenzo Coleman went for a walk around his

neighborhood to "cool off' after an argument with his wife. Defendant and co-defendant

Dominic Broadnax approached Coleman near i 00 West Seymour Street at approximately

. .. -·, ,'

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2: 18am. Defendant lifted up his blue hoodie (which had writing on it) to show a gun with a black

handle tucked into his pants. Defendant stopped about five feet away from Coleman and said,

"Old head, you know what it is." Coleman removed his wallet and cell phone, placed them on

the ground, and walked away from the two men. As Coleman was walking away, Defendant

looked through the wallet and said, "Old head, there better be something in there." Coleman

immediately returned to his home and informed his wife of the incident. Coleman's wife called

911. Shortly thereafter a dispatcher sent out a radio call to officers in the area informing them

that two black males, one wearing a blue hoodie with writing on it and the other in dark clothing,

just committed a gunpoint robbery. N.T. 07/02/2013 at 43-54, 176.

15 minutes after the radio call, Officer Erika Lee and her partner Officer Floyd Allen

were driving eastbound on Seymour Street approaching Germantown Avenue when they

observed Defendant and Broadnax walking along Seymour Street. They were wearing clothing

that matched the descriptions from the radio call. Defendant and Broadnax were only five blocks

from the location where Coleman was robbed. Upon observing the officers, Defendant stopped at

the intersection of Germantown A venue and Seymour Street, and Broadnax proceeded eastbound

on Seymour. Officer Lee pulled over and stopped Defendant; Officer Allen stopped Broadnax.

Prior to stopping Broadnax, Officer Allen witnessed him discard small items later identified as

Coleman's credit cards to the ground and stop briefly at a recycling bin. Officer Allen heard

Broadnax wrestling around in the bin, and heard a distinct noise come from the recycling bin.

From the recycling bin, Officer Allen recovered a silver Smith and Wesson .347 magnum

revolver with a black handle, which Coleman identified at trial as the gun used in the robbery.

N.T. 07/02/2013 at 54-68, 224-30; N.T. 07/03/2013 at 41-59.

As Officers Lee and Allen held Defendant and Broadnax at the scene, Officers Ryan

Waltman and David Palmer went to Coleman's ";•

house. The officers drove Coleman. to where

.'·:·

•}

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Officers Lee and Allen were holding Defendant and Broadnax. Coleman identified without

hesitation Defendant and Broadnax as the men who robbed him. N.T. 07/02/2013 at 56-58.

2. Testimony Of Lorenzo Coleman

At trial, Coleman testified that, while he was going for a walk around his neighborhood

on the night of February 24, 2011, two men approached him at 100 West Seymour Street. One of

the men was wearing a blue hoodie with writing on it and lifted up his shirt to reveal a gun.

Coleman handed over his wallet and cell phone and then he returned home, where his wife called

911. Two officers quickly arrived at Coleman's house and drove him to the intersection of

Seymour Street and Germantown A venue. Coleman remained in the car while Defendant and

Broadnax were brought within his view so he could identify them. Coleman testified that the area

was well-lit and he could clearly see Defendant from five feet away. Coleman described

Defendant as lighter skinned, about five feet six inches tall, weighing about 150 pounds, and

having sideburns. Coleman identified Defendant as the person who robbed him with a gun on the

night of the robbery as well as at the preliminary hearing and at trial. Coleman stated he was

"100% sure" that Defendant was the person who robbed him with a gun that night. N.T.

07/02/2013 at 147, 156.,, Coleman also verified photographs the police had taken of the firearm

Defendant used and his own cell phone and credit cards that Defendant had stolen. N.T

07/02/2013 at 44-58, 176.

DISCUSSION

l. The Verdict Was Not Against The Weight Of The Evidence

Defendant asserts that the verdict was against the weight of the evidence. When

evaluating the weight of the evidence, the standard ofreview is as follows:

The weight of the evidence is exclusively for the finder of fact who

is free to believe all, part, or none of the evidence and to determine

the credibility of the witnesses. An appellate court cannot

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substitute its judgment for that of the finder of fact. Thus, [the

Superior Court] may only reverse the lower court's verdict if it is

so contrary to the evidence as to shock one's sense of justice.

Moreover, where the trial court has ruled on the weight claim

below, an appellate court's role is not to consider the underlying

question of whether the verdict is against the weight of the

evidence. Rather, appellate review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. Super. Ct. 2003).

At trial, the evidence of record included the following testimony. Defendant and

Broadnax approached Coleman together late at night while he was alone. Defendant showed to

Coleman a gun tucked into his pants and then said to him, "Old head, you know what it is." In

response, Coleman surrendered his wallet and cell phone to Defendant. Coleman immediately

left the scene, and Defendant and Broadnax took the frnits of their robbery.

Coleman's wife alerted the authorities, and Coleman provided descriptions of Defendant

and Broadnax to police. Defendant and Broadnax were stopped within minutes of and only a few

blocks from the robbery. Defendant and Broadnax matched Coleman's descriptions including the

clothing that he was wearing. The officers observed Broadnax discarding what they later learned

were Coleman's credit cards. On the night of the robbery, Coleman immediately identified

without hesitation both Defendant and Broadnax. Coleman also identified Defendant at the

preliminary hearing and at trial. Coleman stated he was "100% sure" that Defendant was the

person who robbed him with a gun that night. N.T. 07/02/2013 at 147, 156. Coleman identified

the recovered weapon as the same revolver that Defendant had showed to him while it was

tucked into his pants during the robbery. In addition to this evidence, there is no basis to disturb

the jury's credibility determination, i.e., to have credited Coleman's testimony.

In light of the overwhelming evidence discussed above, the verdict is not contrary to the

evidence and does not shock one's sense of justice.

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2. The Court Properly Denied Defendant's Motion For A Lineup

Defendant argues that the preliminary hearing court improperly denied his oral motion

requesting a lineup identification procedure prior to his preliminary hearing. The grant or denial

of a request for a lineup is within the sound discretion of the court, and such a decision will not

be disturbed on review absent an abuse of discretion. Commonwealth v. Carter, 643 A.2d 61 (Pa.

Super. Ct. 1994). "An abuse of discretion is more than just an error in judgment and, on appeal,

the trial court will not be found to have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

will." Commonwealth v. Edwards, 762 A.2d 382, 386 (Pa. Super. Ct. 2000). Defendant's

argument fails on two grounds: his request was never submitted in writing and in advance of the

preliminary hearing, and the preliminary hearing court's decision was an appropriate exercise of

discretion.

a. Defendant Failed To Properly Request A Lineup

In Writing And Prior To The Preliminary Hearing

A defendant has a duty to seek a lineup in writing and prior to a preliminary hearing.

Commonwealth v. Robinson, 5 A.3d 339 (Pa. Super. Ct. 2010). Although a court retains

discretion to overlook the failure to make a request until the day of the scheduled preliminary

hearing, there is no requirement to do so. Id. If a defendant fails to submit a written request for a

lineup in advance of the preliminary hearing, then he has waived any objection and may not

complain about the court's decision to deny the request on appeal. Id.

Here, Defendant failed to submit a written request for a lineup. Defendant also failed to

request the lineup in advance of the scheduled preliminary hearing. Instead, defense counsel

made on oral motion for a lineup on the day of his preliminary hearing. Based on his failure to

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seek a lineup in writing and prior to the preliminary hearing, Defendant waived any error

regarding the denial of his lineup request. Robinson, 5 A.3d at 342.

b. The Court Did Not Abuse Its Discretion In Denying The Lineup Request

Even assuming Defendant has not waived this alleged error, the preliminary hearing

court's decision was not an abuse of discretion. A defendant has no constitutional right to a line-

up, and the court must examine the reliability of an identification using a totality of the

circumstances test. Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super. Ct. 2000). To

determine whether to grant a lineup request, the court must examine the following factors: (1) the

opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree

of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty

demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Id.

The preliminary hearing court received the following representations from counsel during

the brief exchange regarding the lineup motion:

MR. JARRETT: Your Honor, we still have a lineup motion. We

are unable to agree.

THE COURT: Tell me the facts of the identification.

MR. JARRETT: It is a gunpoint robbery, Your Honor. No one

apprehended at the scene. My client is some five or six blocks

away. Some 15 minutes later, the police approach him. He is

cooperative, shows him a license, ask him to get in the car and they

put another person in the car. Another car stops, gets a third

person. They evidently pull up to a location. There are three police

cars, cherry tops going. They pull one, two, three out of the car.

The gentleman says one, two, three. It is an unduly suggestive on

the street lineup, Your Honor.

MS. PO\VERS: Your Honor, the information I have from the

complainant and from the officer differs from what Counsel just

said with respect to the number of people involved. They were on

foot. It was two people. So there was no car and there wasn't a

third person.

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MR. JARRETT: No. I am saying police car. They were pulled out

of a police car.

MS. POWERS: They were stopped on foot.

THE COURT: So it is a stand-up and it was two individuals?

MS. POWERS: Two individuals.

THE COURT: On the street?

MS. POWERS: Yes.

THE COURT: Within 15 minutes?

MS. POWERS: Yes.

THE COURT: How dark was it?

MS. POWERS: It was in the morning, 2:00 a.m. It was dark.

However, the Defendants were side-by-side. They were flanking

the complainant; one was on the left, one was on the right. I am

just going for his opportunity to actually have a conversation with

the Defendant. The Defendant said give it up. He looked at him.

He has the gun. They are face-to-face. The complainant can tell

you he was the same height as him approximately. His complexion

was a little lighter than him. He had about the same build as the

complaining witness.

THE COURT: Is this cross-racial?

MS. POWERS: No. African-American,

MR. JARRETT: It is not cross-racial.

MS. POWERS: The complainant then gave up his items, literally

left them on the step, turned around and the Defendant said there

better be something in there, old head. They are having a

conversation while the Defendant has the gun pointed at him.

THE COURT: This goes on for how long?

MS. PO\VERS: Probably a minute, Your Honor. The police come.

Within 15 minutes, as Counsel said, the officers come, stop the

Defendant who is wearing the same exact thing.

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MR. JARRETT: There is nothing seized from my client

whatsoever.

MS. POWERS: Because the codefendant is chucking items to the

side as the police come.

THE COURT: Based on what I heard from both Counsel, I will

deny your lineup.

N.T. 04/28/2011 at 2-5.

The preliminary hearing court carefully considered the relevant factors and made

appropriate inquiries during the hearing on the motion for a lineup. In rejecting the lineup

request, the court considered the following: (1) Coleman identified Defendant after a good

opportunity to view Defendant face-to-face at close range during the robbery; (2) Coleman

focused his attention on Defendant for approximately one minute during the robbery; (3)

Coleman provided an accurate description of Defendant and his clothing prior to any

identification; and ( 4) the short time span of fifteen minutes that elapsed between the robbery

and Coleman's on-scene identification of Defendant. Under the totality of these circumstances,

the court determined that the identification was reliable and a lineup was not necessary. The

court did not abuse its discretion because its judgment was not manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill-will. Therefore, the court properly denied Defendant's

oral motion for a lineup. See Edwards, 762 A.2d at 386.

3. The Trial Court's Evidentiary Rulings During

Cross-Examination Of The Police Detective Were Proper

Defendant argues that the trial court erred by prohibiting certain cross-examination of the

detective regarding Defendant's statement, specifically (1) the existence of Defendant's

statement as evidence of his cooperation with police during the investigation, and (2) the names

of witnesses that Defendant told the detective, which would undermine the thoroughness of the

investigation. A trial court has broad discretion to determine whether evidence is admissible, and

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a trial court's ruling on an evidentiary issue will be reversed only if the court abused its

discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. Ct. 2010). An abuse of

discretion is not simply an error of judgment but an overriding or misapplication of the law. Id.

Accordingly, a ruling of evidence "will not be disturbed on appeal unless that ruling reflects

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be

clearly erroneous." Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. Ct. 2013).

Defendant intended to use the existence of Defendant's statement and its contents to

demonstrate his cooperation with police. Additionally, Defendant sought to impeach a police

detective by using Defendant's statement to undermine the extent of the police investigation. In

his statement to detectives, Defendant provided the names of potential defense witnesses, who

were never investigated by the detective. The trial court placed the following ruling on the record

regarding the cross-examination of the detective with Defendant's statement:

The Court: As to the Defendant's statement, if you wish to make

some reference to the Defendant's extended cooperation with the

officers or detectives or anyone else. In my view the fact that he

gave a statement would be evidence of cooperation. But the

statement, itself, and what may be contained in there obviously

would not come in.

And I do think an appropriate limitation would be based upon the

fact that there could be some backdoor inference that there's

exculpatory information in there which would be bypassing around

at least getting that in without having the Defendant take the stand.

I would limit you to simply asking the detective was he

cooperative and his response would be not in reference to giving

any statement. And your objection, I'm not sure if you're objecting

to that.

Defense Counsel: No. I understand what you 're saying.

The Court: And second would be as to investigating any of the

named witnesses that the Defendant had provided to the detectives

and the extent of his investigation. At least in my view, if you are

to challenge the detective as to why he did not interview them, in

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my view you're opening the door to whatever his truthful response

would be. And if that includes that he thought that that [sic] they

were the right person based in part on a prior conviction for

robbery in the same area, that comes through.

N.T. 07/02/2013 at 247-50. Defense counsel timely objected to both of these rulings.

As an initial matter, the trial court did not entirely preclude Defendant from cross-

examining the detectives regarding these lines of questioning. Indeed, the trial court permitted

defense counsel to question the detective regarding Defendant's cooperation with the police

investigation. Id. at 247. The trial court clearly ruled, however, that the two lines of questions

would either (l) be improper without competent testimony from Defendant, or (2) open the door

to other evidence (which, in fact, the trial court precluded based upon Defendant's pre-trial

objection to the Commonwealth's 404(b) motion)'. As to the first line of question regarding

Defendant's statement as evidence of his cooperation, the trial court made its ruling because

under Pennsylvania Rule of Evidence 801, the contents of a defendant's statement are

inadmissible as hearsay when offered by the defense unless the defendant testifies. Defendant

never testified at trial, so his statement (or even the fact that he gave a statement) could not

otherwise come in under Rule 801.

As to the second line of inquiry, i.e., investigation of the names of witnesses provided by

Defendant, the trial court did not prohibit defense counsel from asking these questions of the

detective because those questions would have been relevant to the thoroughness of his

investigation. The trial court did, however, decide that-if defense counsel did ask those

questions-it would open the door to the detective's answer as to why he did not investigate

those witnesses. In a discussion side-bar with counsel, the Commonwealth represented that the

On September l S, 20 I I, the Commonwealth filed a motion to introduce other acts evidence. In particular, the

Commonwealth sought permission to introduce under Rule of Evidence 404(b) that Defendant was convicted of a

gun-point robbery a few years earlier in the same neighborhood and in circumstances similar to those of the robbery

of Coleman. After oral argument, the trial court denied the Commonwealth's motion.

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detective did not investigate the defense witnesses because he knew Defendant had a prior

gunpoint robbery conviction in the same neighborhood and believed he had already found the

right person. The trial court believed that allowing the detective to testify to the prior gunpoint

robbery conviction-assuming that was his answer-would be a fair response and also relevant

to explaining why the detective did not investigate the defense witnesses. This is particularly true

if defense counsel opened the door to that line of inquiry. Of course, the trial court would have

provided an appropriate limiting instruction on how to use the testimony to avoid any unfair

prejudice to Defendant. Ultimately, defense counsel decided against pursuing this line of

questions after considering the trial court's ruling in advance of the detective's testimony.

As discussed above, the trial court's evidentiary rulings do not reflect manifest

unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly

erroneous. Therefore, the trial court did not abuse its discretion, and the evidentiary rnlings were

proper.2

4. The Police Officer's Testimony Was Proper

Defendant argues that the trial court erred by allowing Police Officer Allen to state his

opinion that Defendant acted like a co-defendant and not like a victim. At trial, Officer Floyd

Allen's testimony elicited the following exchange:

Q. Can you describe this Defendant's demeanor as he's standing

on the comer kind of like bobbing his head?

A. He's bobbing his head and pointing and making a gesture that

the other male had a gun, but he's very cool and very calm. And in

my profession--

Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the

overwhelming and uncontradicted evidence of Defendant's guilt. See generally Co111111011wealtlt v. Petroll, 738 A.2d

993, I 005 (Pa. 1999) ("Hamiless error exists if the reviewing court is convinced from the record that (I) the error

did not prejudice the defendant or the prejudice was de rninimis, (2) the erroneously admitted evidence was merely

cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have

contributed to the guilty verdict."). 1 .,.,~ •• · ·

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MR. SCHULTZ: Objection. It's not asking for opinion evidence

here.

THE COURT: That's fine. It's denied.

MS. GALIETT A: You can continue.

A. In my years of service normally when people were getting

robbed, they are excited when they see the police. They are

jumping up and down. They are flagging us down: officer, officer,

this man had a gun. He was not ex[ c ]ited or anything. So for

investigation purposes, I placed him in my vehicle so I could stop

the other male and find out what's going on.

N.T. 07/03/2013 at 45-46. Officer Allen also testified that Defendant was "very cool and very

calm" so he placed him in his patrol vehicle. Although the Conunonwealth asked Officer Allen

why he had placed Defendant in his vehicle if Defendant was "acting like a victim," the trial

court sustained Defendant's objection to the question. The trial court instructed the

Commonwealth to rephrase the question. The Commonwealth then asked Officer Allen, "Why in

this particular case did you place Defendant in the rear of your car for investigation purposes?"

Defense counsel did not object to that question, and Officer Allen responded that he placed

Defendant in the rear to "find out exactly what was going on." N.T. 07/03/2013 at 46-47.

Here, Officer Allen's testimony was offered to explain his state of mind as to why he

placed Defendant in his vehicle for investigation purposes. Although Officer Allen testified as a

lay witness, his testimony did not contravene the limits on opinion testimony under Pennsylvania

Rule of Evidence 701. First, Officer Allen's opinion was rationally based on his perception

because he personally observed Defendant's behaviors that night. Second, Officer Allen's

statement was helpful to clearly understanding his testimony and Iris state of mind that night, i.e.,

why he placed Defendant in his vehicle. Third, Officer Allen's statements and opinion were not

based on any scientific, technical, or other specialized knowledge .

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As an initial matter, Officer Allen never specifically testified that Defendant was "acting

like a co-defendant" rather than a "victim;" indeed, the trial com1 sustained counsel's objection

to that question. So, the specific claim of error regarding the detective's testimony is without

merit. To the extent the trial court admitted evidence that may have allowed the Commonwealth

to argue to the jury that Defendant acted like a co-defendant rather than a victim, that is a claim

of error with the Commonwealth's statements during closing argument, not an evidentiary error.

Last, the trial court's evidentiary ruling does not reflect manifest unreasonableness, partiality,

prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Therefore, Officer

Allen's testimony was admissible as relevant and permissible lay opinion.3

5. The Trial Court Properly Denied Defendant's Motions

Based Upon The Prosecutor's Conunents During Closing Argument

Defendant asserts three claims of error based upon comments made by the prosecutor

during closing argument that allegedly commented on Defendant's failure to testify: (1) he was

denied a fair trial and due process of law; (2) the trial court improperly denied his motion for a

mistrial; and (3) the trial court improperly denied his motion for extraordinary relief.

Here, during closing arguments, defense counsel argued that Defendant was actually

robbed by the co-defendant Broadnax. N.T. 07/05/2013 at 31, 36. The Commonwealth attempted

to refute this argument by claiming that "if [Defendant] was a victim, he would have been up

there telling the story." Defense counsel objected to this comment, and following closing

arguments, he moved for a mistrial on the grounds that the Commonwealth's comments

infringed on Defendant's Fifth Amendment right to remain silent. The trial court denied the

motion, stating that instructions regarding burden of proof and presumption of innocence would

be sufficient to guide the jury. N.T. 07/05/2013 at 93, 101-02.

Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the

overwhelming and uncontradicted evidence of Defendant's guilt. See Petroll, 738 A.2d at 1005.

.:_+;

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For the reasons stated below, each of these claims of error must fail.

a. Defendant Was Not Denied A Fair Trial Or Due Process Of Law

Resulting From The Prosecutor's Comments During Closing Argument

To constitute a Fourteenth Amendment due process violation, prosecutorial misconduct

must be of sufficient significance to result in the denial of the defendant's right to a fair trial.

Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009). Prosecutorial misconduct does not occur

unless the prosecutor's challenged comments had the unavoidable effect of prejudicing the jury

with such animus toward the defendant as to render it incapable of fairly weighing the evidence

and arriving at a just verdict. See Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006).

Especially relevant here, our Supreme Court has held that it is not prosecutorial misconduct

when a prosecutor responds to arguments made by the defense during closing argument. Id.

Here, the Commonwealth fairly responded to defense counsel's argument that

Defendant's head gesture to police signaled that he was "trying to tell the police officer, hey, that

guy just robbed me[.]"N.T. 07/05/2013 at 36. Defense counsel also argued: "And for them to say

that, well, there was nobody else out there and nobody else could have been out there robbing

Wesley, that's impossible." N.T. 07/05/2013 at 31. The Commonwealth responded to this

argument by stating that if Defendant "was a victim, he would have been up there telling the

story." N.T. 07/05/2013 at 94. The prosecutor's comments do not reasonably lead to an inference

that Defendant would have taken the stand if not guilty; rather they dispute whether he was a

victim of a crime. See Commonwealth v. Randall, 758 A.2d 669, 681-682 (Pa. Super. Ct. 2000).

Her comments were a fair response to Defendant's argument that he was allegedly the victim of

a separate crime for which he was not on trial. N.T. 07/05/2013 at 31, 36. As such, there was no

prosecutorial misconduct.

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Additionally, the trial court gave the jury appropriate instructions regarding: ( 1) the

constitutional protection that they can make no adverse inference based upon Defendant's failure

to testify; and (2) it is the Commonwealth's burden to prove Defendant guilty. See discussion

infra at section 5(b).These instructions cured any improper argument by the prosecutor. Infra at

16; see Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (reiterating that jurors are

presumed to follow the trial court's instrnctions). Thus, Defendant was not denied due process of

law, and the trial court properly denied Defendant's motion for a mistrial.

b. The Trial Court Properly Denied Defendant's Motion

For A Mistrial Due To The Prosecutor's Closing Argument

Defendant argues that the trial court improperly denied his motion for a mistrial based on

the prosecutor's comments during closing argument. The decision to grant a mistrial is necessary

only when "the incident upon which the motion is based is of such a nature that its unavoidable

effect is to deprive the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict." Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. Ct. 2008).

Granting a mistrial is inappropriate where cautionary instructions are sufficient to overcome any

potential prejudice. Id. Courts review claims of prosecutorial misconduct under an abuse of

discretion standard. Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. Ct. 2012).

Consideration of claims regarding remarks by prosecutors focuses on whether the

defendant was deprived of a fair trial, not a perfect trial. Commonwealth v. So/0111011, 25 A.3d

380, 383 (Pa. Super. Ct. 2011). A prosecutor's statements to the jury do not occur in a vacuum

and must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes

reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). While it is

"axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with

respect to the charges against him," to constitute reversible error, any such comments "must call

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the jury's attention to the fact that the defendant has not testified and must reasonably lead to an

inference that he would have taken the stand if not guilty." Randall, 758 A.2d at 681-682 (citing

Commonwealth v. Sattazahn, 631 A.2d 597, 611 (Pa. Super. Ct. 1993)).

Assuming arguendo the Commonwealth's comments were improper, they would only

require the grant of a mistrial if they unavoidably prejudiced the jury and cautionary instructions

were insufficient to overcome such prejudice. Here, the trial court instructed the jury that "it is

entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute

right founded under the constitution to remain silent. You must not draw any inference of guilt or

any other inference adverse to the defendant from the fact that he did not testify." N.T.

07/05/2013 at 110-111.

Further, the trial court comprehensively instructed the jury about the Commonwealth's

burdens:

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 crimes charges and that the

defendant is guilty of those crimes beyond a reasonable doubt. A

person accused of a crime is not required to present evidence or to

prove anything in his own defense. If the evidence fails to meet the

Commonwealth's burden, then your verdict must be not guilty. On

the other hand, if the evidence does prove beyond a reasonable

doubt that the defendant is guilty of the crimes charged, then your

verdict should be guilty.

[ ... )

The Commonwealth has the burden of proving the defendant guilty

beyond a reasonable doubt. If the Commonwealth has met that

burden, then the defendant is no longer presumed to be innocent

and you should find him guilty. On the other hand if the

Commonwealth has not met its burden, then you must find him not

guilty. You must consider and weigh the testimony of each witness

and give it such weight as in your judgment it is fairly entitled to

receive.

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N.T. 07/05/2013 at 107-109. Thus trial court's instructions were sufficient to cure alleged burden

shifting by the Commonwealth. See Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013)

(reiterating that jurors are presumed to follow the trial court's instructions). Therefore, the trial

court properly denied Defendant's motion for a mistrial.

c. The Trial Court Properly Denied Defendant's Motion For

Extraordinary Relief Based Upon The Prosecutor's Closing Argument

Defendant argues that the trial court improperly denied his motion for extraordinary relief

based on the prosecutor's comments during closing argument. Pennsylvania Rule of Criminal

Procedure 704(B) provides that, "[u]nder extraordinary circumstances, when the interests of

justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment,

for a judgment of acquittal, or for a new trial." Pa.R.Crim.P. 704(8). Rule 704(B) is intended to

allow the trial judge the opportunity to address only those errors so manifest that immediate

relief is essential. Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. Ct. 2009).

Appellate courts have repeatedly held that "we will not allow such motions as a 'substitute

vehicle' for raising a matter that should be raised in a post-sentence motion." Id.

Here, the prosecutor did not commit such a manifest error that would justify granting

Defendant's motion for extraordinary relief As described above, the prosecutor's comments did

not lead any jurors to draw any inferences adverse to Defendant, and the jury properly followed

the trial court's instructions as to the Commonwealth's burden and Defendant's right to remain

silent. Therefore, the trial court properly denied Defendant's motion for extraordinary relief.

6. The Trial Court Properly Denied Defendant's Request For A

Kloiber Jury Instrnction Regarding Identification Testimony

Defendant argues that the trial court erred by refusing to give the jury a specific

instrnction related to the accuracy of identification testimony based upon Pennsylvania

Suggested Standard Criminal Jury Instruction 4.07B, "Identification Testimony-Accuracy In

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Doubt." Defendant claimed several factors supported giving the Kloiber instruction, including:

(1) Coleman's lack of sleep and statement to detectives that he was not sure ifhe was "mentally

awake or alert," (2) the robbery occurred late at night, it was dark outside at the time of the

robbery, and there were no street lights in the area of the robbery, (3) Coleman's opportunities to

observe the person who robbed him occurred with his back to the person, looking over his

shoulder for a few seconds, and with only a quarter-face view of the person, (4) Coleman was

unable to give a clothing description of the person who robbed him, (5) Coleman could not

accurately provide a description of the weapon, and (6) the robbery was surprising and an

"exciting thing" that impaired his ability to observe. N.T. 07/05/2013 at 2-13. For the reasons

stated below, Defendant's claim fails.

When reviewing a challenge to a jury instruction, the charge as a whole must be

considered. There is no error in failing to give a specific charge when the trial court provides a

full and complete charge. Commonwealth v. Vincens-Rodriguez, 911 A.2d 116, 120 (Pa. Super.

Ct. 2006). An appellate court will reverse a trial court's instruction only when it abuses its

discretion or commits an error of law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa.

2009). When giving jury instrnctions, the trial court has broad discretion in phrasing the

instructions so long as the instrnctions given "clearly, adequately, and accurately" reflect the

law. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011).

Appellate courts examine the charge in its entirety to determine if it accurately and fairly

sets forth the law to the jury. Commonwealth v. Ogrod, 839 A.2d 294, 331-32 (Pa. 2003). A trial

court is not required to instruct the jury, verbatim, with all requested instructions, even if the

substantive law within the proposed charge is without error. Id. The trial court is merely required

to explain clearly and accurately the law to the jury; the trial court is not required to use the form

requested by a party. Id. ( citing Co111111011wea/1h v. Jones, 683 A.2d 1181, 1196 (Pa. 1996)).

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Defendant's claim of error fails for several reasons. First, as discussed above, Coleman

consistently identified Defendant without hesitation on the night of the robbery, at the

preliminary hearing and at trial. Second, he never hedged on his identification, failed to identify

Defendant, or made an incorrect identification prior to trial. Thus, Defendant's arguments relate

only to the credibility and reliability of Coleman's testimony at trial, not that he was physically

precluded from observing Defendant or made a prior misidentification. Compare Commonwealth

v. Collins, 70 A.3d 1245, 1255 (Pa. Super. Ct. 2013) (a Kloiber instruction is appropriate only

where a witness might be physically incapable of making a reliable observation as opposed to the

typical credibility determinations made by a fact-finder such as a witness who is intoxicated);

Commonwealth v. Paolello, 665 A.2d 439 (Pa. Super. Ct. 1995) (Kloiber instruction not required

where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room,

awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super.

Ct. 2003) (Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to

identify the defendant on a prior occasion, or where a witness is physically prevented or

obstructed from making an identification).

Moreover, the trial court comprehensively instructed the jury on how to determine the

credibility and reliability of testimony of a witness, which included instructions on conflicts in

testimony, reliability of witness testimony, and mistaken recollections:

You must consider and weigh the testimony of each witness and

give it such weight as, in your judgment, it is fairly entitled to

receive. The matter of the credibility of a witness, that is, whether

their testimony is believable and accurate, in whole or in part, is

solely for your determination. I will mention some of the factors

which might bear on that determination. Whether the witness has

any interest in the outcome of the case, or has friendship or

animosity towards other persons concerned in the case; the

behavior of the witness on the witness stand, and his or her

demeanor manner of testifying. And whether they show any bias or

prejudice that might color their testimony. The accuracy of his or

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her memory and recollection and his or her ability and opportunity

to acquire knowledge of or to observe the matters concerning that

which they testified. The consistency or inconsistency of their

testimony, as well as its reasonableness or unreasonableness in

light of all of the evidence in the case.

[ ... )

If you find there are conflicts in the testimony, you, the jury, have

the duty to decide which testimony to believe. But you should first

try to reconcile, that is, fit together any conflicts in the testimony if

you can fairly do so. Discrepancies in and conflicts between the

testimony of different witnesses may or may not cause you to

disbelieve some or all of their testimony. Remember that two or

more persons witnessing an incident may see or hear it happen

differently.

Also, it is not uncommon for a witness to be innocently mistaken

in his or her recollection of how something happened. If you

cannot reconcile a conflict in the testimony, it is up to you to

decide which testimony, if any, to believe, and which to reject as

not true or inaccurate. In making this decision, consider whether

the conflict involves a matter of importance to your decision, or

merely some unimportant detail. And you should consider whether

the conflict is brought about by an innocent mistake or by an

intentional falsehood. You should also keep in mind the other

factors already discussed which go into deciding whether or not to

believe a particular witness.

In deciding which of conflicting testimony to believe, you should

not necessarily be swayed by the number of witnesses on either

side. You should consider whether the witnesses appear to be

biased or unbiased, whether they are interested or disinterested,

and you should consider all other factors which go to the reliability

of their testimony. The important thing is the quality of the

testimony of each witness. You should also consider the extent to

which conflicting testimony is supported by other evidence.

N.T. 07/05/2013 at 109-13.

The charge as a whole advised the jury that any testimony by a witness-including

statements of identification-are not sacrosanct and that testimony should be given such weight

as the jury believes is appropriate given the witness's "ability and opportunity to acquire

knowledge of or to observe the matters concerning that which they testified," whether it is

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qualified or weakened through cross-examination, and whether it was "corroborated or

contradicted by any other evidence."

Thus, the failure to give the specific charge on identification testimony is without merit

because Defendant was not entitled to a Kloiber charge based solely upon issues of credibility

and the trial court properly instructed the jury on how to consider and weigh testimony from a

witness.

CONCLUSION

Based on the for goin , the judgment of sentence should be affirmed.

B~URT:

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Commonwealth v. Wesley Waters

CP-51-CR-0004959-2011

118 EDA 2013

PROOF OF SERVICE

I hereby certify that I am this day caused to be served the foregoing this person(s), and in the

manner indicated below:

Attorney for the Commonwealth:

Hugh Bums, Esquire

District Attorney's Office

Three South Penn Square

Philadelphia, PA 19107

Type of Service: ( ) Personal O Regular mail (X) CJC mailbox (X) Email

Attorney for Defendant:

Joseph T. Schultz, Esq.

Two Penn Center, Suite 200

Philadelphia, PA 19102

Type of Service: ( ) Personal (X) Regular mail () CJC mailbox (X) Email

Defendant:

Wesley Waters

DOB: 05/30/1988; Inmate#: HN3818,

PID/PP#:0938798,SID:26118913

SCI Smithfield

1120 Pike Street, P.O. Box 999

Huntingdon, PA 16652

Type of Service: ) Personal (X) Regular mail () CJC mailbox

Bobby 96hoa, Esquire

Law Clerk to Hon. Daniel J. Anders

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.