# Com. v. Waters, W. > Superior Court of Pennsylvania · July 21, 2015 URL: https://www.frixlaw.com/law-library/cases/2818978 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** July 21, 2015 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2818978 ## Opinion text J. A15033/15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WESLEY WATERS, : :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. 1 18 Pa.C.S. § 3701(a)(1)(ii). 2 18 Pa.C.S. § 903. 3 18 Pa.C.S. §§ 6105(a)(1), 6108. 4 18 Pa.C.S. § 907(a). J. A15033/15 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 5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). 6 “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. -2- J. A15033/15 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? 7 The record also indicates codefendant’s last name was Broadnax. -3- J. A15033/15 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. -4- J. A15033/15 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. -5- J. A15033/15 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 -6- J. A15033/15 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 -7- J. A15033/15 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 8 Criminal Arrest and Disposition Report. -8- J. A15033/15 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 -9- J. A15033/15 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 9 42 Pa.C.S. §§ 9541-9546. - 10 - J. A15033/15 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 10 As noted supra, she testified at Appellant’s trial. - 11 - J. A15033/15 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 11 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. 12 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. - 12 - J. A15033/15 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. 4 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. 13 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. - 13 - J. A15033/15 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. (c) Hearsay. “Hearsay” means a statement that (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. - 14 - J. A15033/15 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 - 15 - J. A15033/15 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 - 16 - J. A15033/15 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 - 17 - J. A15033/15 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. 14 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; 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 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 15 This was wholly unnecessary. 16 Appellant has not challenged the sufficiency of evidence for his convictions. - 21 - 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 - Circulated 06/30/2015 12:22 PM 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