Com. v. Sun, C.

J-S22009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHENGZAO SUN :

:

Appellant : No. 593 EDA 2022

Appeal from the PCRA Order Entered February 15, 2022

In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP-09-CR-0004005-2019

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 25, 2022

Chengzao Sun appeals from the dismissal of his Post Conviction Relief

Act (“PCRA”) petition. We affirm.

This Court offered the following summary of the facts in resolving

Appellant’s direct appeal:

On July 12, 2019, [Appellant] and his wife, Shu Yang, were

having dinner when they began to argue. Yang attempted to walk

into the dining room, carrying her bowl of food. [Appellant]

followed her and “tapped” her from behind, causing her to fall into

the dining room table, spilling her bowl of food. Yang then

attempted to flee back into the kitchen and [Appellant] followed,

holding an aluminum baseball bat. [Appellant] hit Yang with the

bat on her back and legs, resulting in painful bruises. Yang called

the police for help and “home violence.”

Police Officers Adrianne Rodriguez and Ryan Moore

responded to the scene, where Yang was visibly upset and had

fresh, swelling red injuries [from the assault]. [Appellant] had no

observable injuries. [Appellant] stated to Officer Moore that he

and his wife had a verbal argument that turned [into a] physical

[altercation]. He admitted he lost control, grabbed the baseball

bat, and hit his wife with it.

J-S22009-22

Yang gave a written statement to the police, in which she

stated that [Appellant] had pushed her into the dining room table,

causing their son to flee upstairs and Yang to run into the kitchen.

[Appellant] then followed Yang into the kitchen with a baseball

bat, and when she continued to argue with him, hit her with the

bat . . . while she attempted to defend herself with a plastic

spatula. During this time, [Appellant] and Yang’s children were

crying and attempting to defend their mother with a golf club.

Commonwealth v. Sun, 268 A.3d 401 (Pa.Super. 2021) (non-precedential

decision at *1) (record citations omitted).

Appellant was arrested and charged with aggravated assault, simple

assault, and harassment. At his jury trial, Yang testified that Appellant had

touched her “accidentally” and had not intended to injure her. N.T. Jury Trial,

1/29/20, at 28-29, 46. In response, the Commonwealth introduced Yang’s

written statement in which she stated that Appellant pushed her onto the

dining room table before beating her repeatedly with a metal bat in her back

and leg. Id. at 67-68. The Commonwealth also introduced photographs

depicting her injuries. On January 30, 2020, a jury convicted Appellant of all

charges. See N.T. Jury Trial, 1/30/20, at 102. The trial court found Appellant

guilty of summary harassment. Id. at 108-09. Prior to sentencing, Appellant

filed a motion for extraordinary relief, challenging the sufficiency of the

evidence and raising a claim of prosecutorial misconduct. The Commonwealth

filed an answer, and the court denied the motion without prejudice.

On July 9, 2020, the court sentenced Appellant to forty-eight hours to

twenty-three months of imprisonment and thirty-six months of concurrent

probation on the aggravated assault conviction. Appellant filed a post-

-2-

J-S22009-22

sentence motion, repeating the arguments from his pre-sentence motion.

After both sides submitted briefs and a hearing was held, the motion was

denied by operation of law. Appellant timely appealed, challenging the

sufficiency of the evidence to sustain his aggravated assault conviction and

the effectiveness of his trial counsel for not objecting to the trial court’s jury

instructions. We affirmed the judgment of sentence, deferring the

ineffectiveness issue to collateral review. See Sun, supra (non-precedential

decision at *3). Appellant did not seek allocatur review in our Supreme Court.

On December 17, 2021, Appellant filed the timely, counseled PCRA

petition that is the subject of this appeal. Therein, he asserted trial counsel

was ineffective for not objecting to the trial court’s failure to charge the jury

on the definition of “serious bodily injury.” See PCRA Petition, 12/17/21, at

8-17. Appellant also alleged that trial counsel was ineffective for not litigating

a motion to suppress his incriminating statements to police and for not

objecting to prosecutorial misconduct during the prosecutor’s closing

argument. Id. at 18-31. After the Commonwealth submitted its answer and

Appellant filed a reply brief, the court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant informed

the court that he would not file a response to the Rule 907 notice and the

court dismissed the petition. A timely notice of appeal followed. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

-3-

J-S22009-22

1. Did the PCRA court err in summarily denying the claim that

trial counsel was ineffective in failing to object to the trial

court’s failure to instruct the jury on the definition of the

term “serious bodily injury,” as this term is an essential

component of the element of the offense of aggravated

assault, 18 Pa.C.S. § 2702(a)(4), alleging that Appellant

employed a deadly weapon in committing his assault?

2. Did the PCRA court err in summarily denying the claim that

trial counsel was ineffective in failing to litigate a motion to

suppress Appellant’s incriminating statements given in

response to custodial interrogation but which were not

preceded by the issuance of Miranda [v. Arizona, 384 U.S.

436 (1966)] warnings?

3. Did the PCRA court err in summarily denying the claim that

trial counsel was ineffective in failing to object to repeated

instances of serious misconduct in the prosecutor’s closing

argument?

Appellant’s brief at 3.

We begin with a discussion of the pertinent legal principles. Our “review

is limited to the findings of the PCRA court and the evidence of record,” and

we do not “disturb a PCRA court’s ruling if it is supported by evidence of record

and is free of legal error.” Commonwealth v. Diggs, 220 A.3d 1112, 1116

(Pa.Super. 2019). Similarly, “[w]e grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they have

no support in the record. However, we afford no such deference to its legal

conclusions.” Id. “[W]here the petitioner raises questions of law, our

standard of review is de novo and our scope of review is plenary.” Id. “It is

an appellant’s burden to persuade us that the PCRA court erred and that relief

-4-

J-S22009-22

is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)

(cleaned up).

Appellant’s arguments all raise allegations of trial counsel

ineffectiveness.1 Counsel is presumed to be effective, and a PCRA petitioner

bears the burden of proving otherwise. See Commonwealth v. Becker, 192

A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must plead and prove

that: (1) the legal claim underlying his ineffectiveness claim has arguable

merit; (2) counsel’s decision to act (or not) lacked a reasonable basis designed

to effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The

failure to establish any of the three prongs is fatal to the claim. Id. at 113.

I. Aggravated Assault Jury Instruction

In his first claim Appellant argues that trial counsel was ineffective when

he failed to object to the trial court’s jury instruction concerning aggravated

assault. See Appellant’s brief at 10-25. Appellant was charged with

aggravated assault under 18 Pa.C.S. § 2702(a)(4), which required the

Commonwealth to prove beyond a reasonable doubt that he “attempt[ed] to

cause or intentionally or knowing cause[d] bodily injury to another with a

____________________________________________

1 We note that Appellant’s PCRA counsel is the same attorney who

represented Appellant for his direct appeal. In the PCRA petition, however,

Appellant acknowledged that he “effectuated a valid formal waiver of any

conflict of interest posed by undersigned counsel’s prior representation of

[him] on direct appeal.” PCRA petition, 12/17/21, at 3 n.1. Since Appellant’s

claims of ineffective assistance all concern the performance of trial counsel,

we discern no impediment to the representation.

-5-

J-S22009-22

deadly weapon.” Appellant concedes that the trial court provided the standard

jury instruction for the crime charged but alleges that counsel should have

requested an additional instruction defining “serious bodily injury” since the

court mentioned the term while defining “deadly weapon” in its aggravated

assault instruction. Id. at 19.

To assess the merits of the underlying claim, we review the trial court’s

jury instruction pursuant to the following standard:

[T]he reviewing court must consider the charge as a whole to

determine if the charge was inadequate, erroneous, or prejudicial.

The trial court has broad discretion in phrasing its instructions,

and may choose its own wording so long as the law is clearly,

adequately, and accurately presented to the jury for its

consideration. A new trial is required on account of an erroneous

jury instruction only if the instruction under review contained

fundamental error, misled, or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 762 (Pa. 2009) (cleaned up).

At issue in the case sub judice is the following instruction given by the

trial court:

So to find the defendant guilty of aggravated assault, and

this is attempted bodily injury with a deadly weapon, you must

find that each of the following elements have [sic] been proven

beyond a reasonable doubt:

First, that the defendant attempted to cause bodily injury to

his wife, Shu Yang. Bodily injury means impairment of a physical

condition or substantial pain. In order to find that he attempted

to do this, you must find that he engaged in conduct that

constituted a substantial step toward causing bodily injury to her.

Secondly, that the defendant used a deadly weapon in the

attempt. A deadly weapon, in this case, is any device designed

as a weapon and capable of producing death or serious bodily

injury, or any other device or instrumentality that in the manner

-6-

J-S22009-22

in which it was used or intended to be used is calculated or likely

to produce death or serious bodily injury – we’re talking about a

baseball bat – and that the defendant’s conduct in this regard was

intentional; in other words, it was his conscious object or purpose

to cause such bodily injury.

It’s important to understand how these elements relate to

each other in order to assess whether they’ve been proven beyond

a reasonable doubt. In proving this count of aggravated assault,

the Commonwealth need not prove that bodily injury was actually

inflicted on the victim. The Commonwealth must prove, however,

that the defendant took an action as a substantial step of such a

nature that there’s no reasonable doubt that it was his conscious

object or purpose to cause such injury to the alleged victim.

To make this determination, you may find it useful to ask

why the victim did not actually suffer bodily injury as a result of

incident. If you find that such injury did not occur only because

of something outside the control of the defendant, then you may

consider that as evidence as to whether the defendant’s

substantial step was done with the intent necessary to support a

verdict of guilty on this count.

However, particular action by a defendant, although serious,

is not in and of itself sufficient evidence from which you may find

that he intended to cause bodily injury. This is so because any

such action may also be evidence of some less serious outcome

the defendant actually intended, such as simply to scare her or to

cause some less serious injury.

It is only when after consideration of all the evidence you

conclude beyond a reasonable doubt that the defendant’s action

was a substantial step in a chain of events he consciously set in

motion with his intended result being that the alleged victim would

actually suffer bodily injury because of his use of the deadly

weapon that you may find him guilty of this count. Otherwise,

you must find him not guilty. So that’s what we mean by

attempted bodily injury with a deadly weapon.

Now, also, the way the information reads is, attempts or

that he caused bodily injury with a deadly weapon. So either he

attempted or he caused bodily injury with the weapon, which in

this case I think we can all agree is a baseball bat.

-7-

J-S22009-22

So to find him guilty of this section of aggravated assault,

you must find that the defendant caused bodily injury to another,

in this case, again, Shu Yang, his wife. Bodily injury, once again,

means impairment of physical condition or substantial pain, and

that the defendant acted intentionally or knowingly.

A person acts intentionally with respect to bodily injury

when it is his conscious object or purpose to cause such injury. A

person acts knowingly with respect to bodily injury when he is

aware that it is practically certain that his conduct will cause such

a result.

Third, that the defendant caused such injury with a deadly

weapon. A deadly weapon, again, is any device designed as a

weapon and capable of producing death or serious bodily injury or

any other device or instrumentality that in the manner in which it

was used or intended to be used was calculated or likely to

produce death or serious bodily injury.

N.T. Jury Trial, 1/30/20, at 80-85.

Appellant claims that trial counsel should have objected to the court’s

instruction because the jury was not informed of the definition for serious

bodily injury. See Appellant’s brief at 16. In his view, the jury should have

been “instructed on the specific type of injury needed to transform [the]

baseball bat into a deadly weapon.” Id. Since the offense required the use

of a “deadly weapon” and the definition of “deadly weapon” includes the use

of the phrase “serious bodily injury,” Appellant avers that the jury was

unequipped to pass judgment on him without being informed of the definition

for “serious bodily injury.” Id. at 17-19.

The PCRA court disagreed, concluding that it had provided the accurate

standard jury charge for the aggravated assault crime charged. See PCRA

Court Opinion, 4/28/22, at 7 (citing Pennsylvania Criminal Suggested

-8-

J-S22009-22

Standard Jury Instructions, Aggravated Assault -- Attempted Bodily Injury

with a Deadly Weapon, 15.2702E (Date of Last Revision, May 2016)). The

PCRA court further explained that, since the crime at issue did not include an

element demanding proof of “serious bodily injury,” the Commonwealth was

never required to prove that Appellant inflicted or attempted to inflict serious

bodily injury. Id. Thus, trial counsel was not ineffective for failing to request

an additional instruction defining “serious bodily injury.” Id. We agree.

Aggravated assault under 18 Pa.C.S. § 2702(a)(4), required the

Commonwealth to prove beyond a reasonable doubt only that he “attempt[ed]

to cause or intentionally or knowing cause[d] bodily injury to another with a

deadly weapon.” Thus, “serious bodily injury” was not an element of the sub-

section of aggravated assault that was charged. Id. Additionally, as Appellant

concedes, the court’s instructed tracked closely with Pennsylvania’s Suggested

Standard Criminal Jury Instruction and the crimes code definition for

§ 2702(a)(4).2 See Appellant’s brief at 19.

____________________________________________

2 1. The defendant has been charged in count [count] with

aggravated assault. To find the defendant guilty of this offense,

you must find that each of the following elements has been proven

beyond a reasonable doubt:

First, that the defendant attempted to cause bodily injury to

[name of victim]. Bodily injury means impairment of physical

condition or substantial pain.

(Footnote Continued Next Page)

-9-

J-S22009-22

____________________________________________

In order to find the defendant attempted to do this, you must find

that [he][she] engaged in conduct that constituted a substantial

step toward causing bodily injury to [name of victim];

Second, that the defendant used a deadly weapon in the attempt.

A deadly weapon is any firearm, whether loaded or unloaded, or

ay device designed as a weapon and capable of producing death

or serious bodily injury, or any other device or instrumentality

that, in the manner in which it is used or intended to be used, is

calculated or likely to produce death or serious bodily injury.

Third, that the defendant’s conduct in this regard was intentional;

in other words, that it was [his][her] conscious object or purpose

to cause such bodily injury.

2. It is important that you understand how these elements relate

to each other in order to assess whether they have each been

proven beyond a reasonable doubt. In proving this count of

aggravated assault, the Commonwealth need not prove that

bodily injury was actually inflicted on the alleged victim. The

Commonwealth must prove, however, that the defendant took an

action, that is, a substantial step, of such a nature that there is

no reasonable doubt that it was [his][her] conscious object or

purpose to cause such injury to the alleged victim.

3. To make this determination, you may find it useful to ask why

the alleged victim did not actually suffer bodily injury as a result

of this incident. If you find that such injury did not occur only

because of something outside the control of the defendant [such

as the intervention of a third party to stop the attack, the ability

of the alleged victim to avoid the full brunt of the attack, or the

prompt administration of medical attention that prevented the

injuries from developing into the kind that would meet the

definition of bodily injury], then you may consider that as evidence

as to whether the defendant’s substantial step was done with the

intent necessary to support a verdict of guilty on this count.

4. However, any particular action by a defendant, although serious

[such as pointing a loaded weapon at another], is not, in and of

itself, sufficient evidence from which you may find that he or she

intended to cause bodily injury. This is so because any such action

(Footnote Continued Next Page)

- 10 -

J-S22009-22

The standard jury instructions are “merely guides” to aid trial judges.

Commonwealth v. Simpson, 66 A.3d 253, 275 n.24 (Pa. 2013). However,

“[o]ur courts have approved a trial court’s reliance on standard instructions

when those instructions complied with precedent.” Commonwealth v.

Clark, 683 A.2d 901, 907 (Pa.Super. 1996). Appellant has provided no

authority, and we have uncovered none, indicating that this instruction was

insufficient. Thus, he has failed to persuade us that the standard jury

instruction issued in this matter was insufficient absent a supplemental

instruction defining “serious bodily injury.” Accordingly, we agree with the

PCRA court that Appellant’s first claim lacks arguable merit.

Furthermore, Appellant has failed to prove that he was prejudiced by

the absence of the “serious bodily injury” instruction. Our review of the record

confirms that Appellant’s defense centered on negating the intent element of

____________________________________________

may also be evidence of some less serious outcome the defendant

actually intended, such as simply to scare the alleged victim or to

cause only some less serious injury.

5. It is only when, after consideration of all the evidence, you

conclude beyond a reasonable doubt that the defendant’s action

was a substantial step in a chain of events [he][she] consciously

set in motion with [his][her] intended result being that the alleged

victim would actually suffer bodily injury because of the

defendant’s use of a deadly weapon, that you may find [him][her]

guilty of this count. Otherwise, you must find the defendant not

guilty of aggravated assault.

Pa.S.S.J.I. (Crim) § 15.2702E.

- 11 -

J-S22009-22

aggravated assault. Appellant claimed he did not have the mindset necessary

to commit aggravated assault in two ways: (1) by relying on Yang’s trial

testimony stating that she initiated the fight and Appellant acted in self-

defense, and (2) by emphasizing the importance of Appellant’s reputation in

the community as someone who was peaceful, law-abiding, and nonviolent.

See N.T. Jury Trial, 1/30/22, at 20-21 (“the concept of self[-]defense becomes

very, very important in this case when you look at the chronology of events.”);

id. at 12 (discussing the importance of character evidence); id. at 27-28

(concluding closing argument by stating that Appellant did not have the

mindset necessary to commit aggravated assault). Thus, it was undisputed

that Appellant used a deadly weapon.3 Since Appellant has failed to persuade

us that an instruction on the legal definition of “serious bodily injury” would

have changed the outcome, no relief is due.

____________________________________________

3 We note that a prior panel of this Court decided that the evidence was

sufficient to sustain Appellant’s aggravated assault conviction.

Commonwealth v. Sun, 268 A.3d 401 (Pa.Super. 2021) (non-precedential

decision at *4) (arguing that the Commonwealth did not prove that the bat

was a deadly weapon); id. at *6 (finding that “the evidence sufficed to prove

that the aluminum baseball bat was a ‘deadly weapon’”). Thus, it is the law

of the case that the Commonwealth advanced sufficient evidence to prove that

the bat qualified as a deadly weapon. See Zane v. Friends Hosp., 836 A.2d

25, 29 n.6 (Pa. 2003) (“upon a second appeal, an appellate court may not

alter the resolution of a legal question previously decided by the same

appellate court[.]”).

- 12 -

J-S22009-22

II. Motion to Suppress Custodial Statements

In his second claim, Appellant alleges that his statements to the police,

both pre- and post-arrest, were inadmissible because he was in police custody

and not provided with Miranda warnings. See Appellant’s brief at 25-26.

Accordingly, he asserts that trial counsel was ineffective for failing to seek

suppression of these statements. Id. We address each statement individually

below.

Appellant’s pre-arrest statement occurred when police responded to

Ms. Yang’s 911 call. Officer Moore entered the garage and asked Appellant to

speak with him. The two then spoke inside the garage for “maybe a minute

at best.”4 N.T. Jury Trial, 1/29/20, at 147. During that time, Appellant stated

that verbal sparring between him and his wife had escalated to a physical

attack when he “lost control of himself,” grabbed a baseball bat, and struck

her with it. Id. at 135.

The law is well-established that:

before law enforcement officers question an individual who has

been . . . taken into custody or has been deprived of his freedom

in any significant way, the officers must first warn the individual

that he has the right to remain silent, that anything he says can

be used against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an attorney

one will be appointed.

____________________________________________

4 Officer Moore captured this interaction on his body camera, which was

played for the jury. N.T. Jury Trial, 1/29/20, at 135.

- 13 -

J-S22009-22

Commonwealth v. Yandamuri, 159 A.3d 503, 519-20 (Pa. 2017) (citing

Miranda, supra at 478–79). However, the procedural safeguards of

Miranda do not apply to police interactions less intrusive than custodial

detentions, such as investigatory detentions and mere encounters. See

Commonwealth v. Smith, 172 A.3d 26, 31-32, 34 n.6 (Pa.Super. 2017).

Whether an encounter is deemed “custodial” must be determined by

examining the totality of the circumstances. Yandamuri, supra at 520.

When making this determination our Supreme Court instructs courts to

consider:

The existence and nature of any prior seizure; whether there was

a clear and expressed endpoint to any such prior detention; the

character of police presence and conduct in the encounter under

review (for example – the number of officers, whether they were

uniformed, whether police isolated the subjects, physically

touched them or directed their movement, the content or manner

of interrogatories or statements, and “excess” factors stressed by

the United States Supreme Court); geographic, temporal and

environmental elements associated with the encounter; and the

presence or absence of express advice that the citizen–subject

was free to decline the request.

Commonwealth v. Reid, 811 A.2d 530, 545 (Pa. 2002).

Appellant contends that since he was “commanded” to come into the

garage and asked, “what happened,” he had been taken into custody and

should have first been provided with Miranda warnings. See Appellant’s brief

at 25. The PCRA court disagreed, finding as follows:

Appellant was only subject to a mere encounter or, at most, an

investigative detention, when he made his pre-arrest statements.

Officers were simply trying to assess the situation after receiving

a 911 call reporting a violent incident. Appellant was not under

- 14 -

J-S22009-22

arrest nor was he being held at a police facility – he was speaking

to only one officer in his own garage with the garage door open.

The conversation was casual, and Appellant’s movements were

never guided nor restricted in any way. The characteristics of

Appellant’s interaction with police are quintessential of that of an

investigative detention. Therefore, Appellant was not entitled to

receive Miranda warnings.

PCRA Court Opinion, 4/28/22, at 11 (citations omitted). We agree with the

apt analysis of the PCRA court, which considered the factors mandated by

Reid. The officer directing questions at Appellant in response to a 911 call

concerning a domestic assault constituted an investigative detention.5

Accordingly, such an encounter did not require Miranda warnings. See

Smith, supra at 34 n.6. Thus, Appellant’s statement to Officer Moore was

not subject to suppression for lack of Miranda warnings and trial counsel was

not ineffective for failing to pursue a suppression motion on those grounds.

Second, Appellant challenges the post-arrest statement he made after

he had been handcuffed and placed in the back of the patrol vehicle. See

Appellant’s brief at 31. Officer Moore testified that the challenged interaction

went as follows:

At first he said he was in a defensive situation or condition. And

then after that I asked him, I said, could you have removed

yourself from the situation? He said yes and I said, you could

____________________________________________

5 An investigatory detention is more intrusive than a mere encounter and,

therefore, “carries an official compulsion to stop and respond. Since this

interaction has elements of official compulsion it must be supported by a

reasonable and articulable suspicion that the person seized is engaged in

criminal activity and may continue only so long as is necessary to confirm or

dispel such suspicion.” See Commonwealth v. Hampton, 204 A.3d 452,

457 (Pa.Super. 2019).

- 15 -

J-S22009-22

have called 911, you know, to let us know what was going on . . .

And he said he agreed. And then he . . . asked me the question,

what would you do if someone cursed your mother? And he said

that’s when he just became very angry and lost control, I guess,

of himself causing him to go into the room and grab the aluminum

baseball bat that his son uses for baseball . . . He said he told her

to shut up many times and she didn’t.

N.T. Jury Trial, 1/29/20, at 141-42. Appellant contends that since

Officer Moore asked Appellant whether he could have removed himself from

the situation, that statement constituted an interrogation and thus, Miranda

warnings were required. See Appellant’s brief at 27.

The PCRA court disagreed, finding the statement admissible since

Appellant began to speak unprompted before Officer Moore asked him whether

Appellant could have removed himself. See PCRA Court Opinion, 4/28/22, at

11.

Clearly, Appellant began making these statements spontaneously

and during “small talk” with Officer Moore. Appellant offered the

information voluntarily, Officer Moore only said that he could have

handled the situation differently. He did not ask Appellant for

details concerning how the situation evolved nor did he ask

Appellant why he resorted to using an aluminum bat. Despite

Appellant’s argument to the contrary, this cannot be considered

an interrogation simply because the conversation happened

between an officer and a person in custody – that is not the law

in Pennsylvania. As Officer Moore’s statements clearly do not

amount to an interrogation, Appellant was not entitled to receive

Miranda warnings.

Id. at 12 (citation omitted). Again, we agree with well-reasoned analysis of

the PCRA court.

It is well-established that “volunteered or spontaneous utterances by an

individual are admissible even without Miranda warnings.” See

- 16 -

J-S22009-22

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006). There is no

question that Appellant was in custody at the time that he made the

statements in the back of the patrol vehicle. However, the record reveals that

Officer Moore did not ask Appellant to tell him what happened. Instead,

Appellant initiated the conversation, volunteering that he was in a “defensive

situation.” See N.T. Jury Trial, 1/29/20, at 141-42. Accordingly, the initial

statement was admissible as a spontaneous utterance and the statements that

followed merely provided context. Even if Appellant was entitled to Miranda

warnings before answering Officer Moore’s question, no prejudice was suffered

since the answer provided was cumulative of the admissible statements

Appellant had already made. Therefore, trial counsel was not ineffective for

failing to seek to suppress the post-arrest statements and no relief is due on

Appellant’s second issue.

III. Prosecutorial Misconduct

In his final claim, Appellant asserts that trial counsel was ineffective in

failing to object to prosecutorial misconduct after the prosecutor made

multiple allegedly improper comments in her closing argument. See

Appellant’s brief at 22-23. Specifically, Appellant’s five allegations of

misconduct encompass the following statements: (1) advancing an allegation

that Ms. Yang’s written statement was “truthful;” (2) explaining contradictions

between Ms. Yang’s written statement and her trial testimony as due to

Appellant’s “control” and “abusive behavior;” (3) generalizing that “when laws

- 17 -

J-S22009-22

are not enforced, abusers are empowered, victims are weakened, and

mayhem ensues;” (4) arguing against the credibility of Appellant’s character

witnesses; and (5) misleading the jury by misstating an element of aggravated

assault. Id. at 31-40.

The following principles guide our review:

[A] claim of ineffective assistance grounded in trial counsel’s

failure to object to a prosecutor’s conduct may succeed when the

petitioner demonstrates that the prosecutor’s actions violated a

constitutionally or statutorily protected right, such as the Fifth

Amendment privilege against compulsory self-incrimination or the

Sixth Amendment right to a fair trial, or a constitutional interest

such as due process. To constitute a due process violation, the

prosecutorial misconduct must be of sufficient significance to

result in the denial of the defendant’s right to a fair trial. The

touchstone is fairness of the trial, not the culpability of the

prosecutor. Finally, not every intemperate or improper remark

mandates the granting of a new trial; reversible error occurs only

when the unavoidable effect of the challenged comments would

prejudice the jurors and form in their minds a fixed bias and

hostility toward the defendant such that the jurors could not weigh

the evidence and render a true verdict.

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012). With respect to

the range of permissible comments in closing arguments, this Court has

stated:

It is axiomatic that during closing arguments the

prosecution is limited to making comments based upon the

evidence and fair deductions and inferences therefrom. Indeed,

given the critical role that the Commonwealth plays in the

administration of justice, a prosecutor has been historically

prohibited from expressing a personal belief regarding a

defendant’s guilt or innocence or the veracity of the defendant or

the credibility of his witnesses.

However, because trials are necessarily adversarial

proceedings, prosecutors are entitled to present their arguments

- 18 -

J-S22009-22

with reasonable latitude. Moreover, it is well settled that

defendants are entitled to a fair trial, not a perfect one. Thus, a

prosecutor’s remarks do not constitute reversible error unless

their unavoidable effect [was] to prejudice the jury, forming in

their minds fixed bias and hostility toward the defendant so that

they could not weigh the evidence objectively and render a true

verdict.

Commonwealth v. Ligon, 206 A.3d 515, 519-20 (Pa.Super. 2019) (citations

and internal quotation marks omitted). As discussed infra, none of the

prosecutor’s statements precluded the jury from weighing the evidence

objectively.

Appellant contests the following highlighted statements by the

prosecutor, which we reproduce in their proper context:

Now, Ms. Yang came in here yesterday and told you a slightly

different version of events of what occurred on July 12,

2019, and I can’t tell you why. I can’t tell you if she is motivated

to protect her husband out of love. We don’t know why she’s

minimizing and changing her story. We don’t know if he

apologized to her and promised that this was never going to

happen again. We don’t know if she’s worried about getting him

in trouble or if she felt pressure from her family or from his,

or from him, quite [frankly]. We don’t know if she’s worried

about losing the dual income, losing a partner who helps her raise

these children. We don’t know if it was love, embarrassment, or

shame.

We don’t know, but maybe she didn’t want to come in here

and tell the truth again because she didn’t want to make

him mad. We do know what happened the last time she

made him mad, but we just don’t know.

What we do know is that what she told you yesterday and what

she told police on July 12th, 2019, were two different versions.

What she told police on July 12th as she waited on her driveway

outside of her home, injured, waiting for them to arrive for help

was not what she told you yesterday.

- 19 -

J-S22009-22

....

And she claimed yesterday that after that tap that everything

ended. She went upstairs, she comes back down, and all of a

sudden, conveniently, the defendant has a bat in his hands, not

for a criminal purpose, of course, but to teach his [nine]-year-old

baseball-playing son the difference between a baseball bat and a

golf club.

Does that really make sense? It’s a convenient story, and it’s one

that she has to say because she’s trying to fit what she wants you

to believe into what actually occurred and what the evidence is.

It’s convenient. But it doesn’t make sense, and it does not even

match up with what he said that night.

He tells police after being asked how she got that big bruise on

her leg, that it was from a fight. It got physical. He grabbed his

son’s baseball bat. That was the truth.

What she said happened, he grabbed the bat. What he said

happened, he grabbed the bat. That’s what happened on July

12th.

....

But anyway, going back to the story that she now wants you to

believe, and, again, I don’t fault her for whatever influence is over

her. This is – well, again, we don’t know what it is. We don’t

know what kind of control he has over her.

....

Now, if she was going to make up some story and lie to the police,

do you think she would say, I said that I want my mother-in-law

to die as early as possible? That’s not something you make up.

That’s not something you want to tell someone else that you said.

She told police the truth - - the good, the bad and the ugly and

the embarrassing – and took ownership for what she did that

night.

....

And although Ms. Yang is minimizing and doing everything

she can to help her abuser, she did, again, tell you that what

- 20 -

J-S22009-22

she told police that night was the truth. And she wrote in her

statement detailing everything that happened.

It’s consistent with the evidence, consistent with her injuries, and

consistent with his statement. And you are allowed to use this as

proof as what happened that night.

....

[Trial counsel] called a number of individuals who came into this

courtroom and testified to the defendant’s character. And I wasn’t

surprised at their testimony given that they’re neighbors and

friends of the defendant and co-workers. Almost any one of us

could find a couple people to come into court and talk about how

great we are, how good you are at work and how good you are in

the neighborhood. I highly doubt that the defendant is wielding a

bat and running around the neighborhood with it. And I highly

doubt he’s bringing the bat to work.

These crimes occur in secret behind closed doors when nobody is

watching. And true character is what happens when no one

is watching.

And as you saw I didn’t even ask them any questions, because

their testimony, it means nothing. Okay, he has a good

[reputation] in his workplace and his neighborhood for being

nonviolent.

What about in his house? His true character is using a bat

to shut his wife up. His true character is ending arguments

with injuries despite the fact that his two children are home

watching, despite the fact that the person he’s using the

bat on is his wife, the love of his life, the mother of his

children. That’s what his character is.

And I submit to you, you can disregard what you heard in

this courtroom about his character.

....

He may have control over his wife, but he does not control

you. It’s your turn to enforce the laws of this country,

because when laws are not enforced, abusers are

empowered, victims are weakened, and mayhem ensues.

- 21 -

J-S22009-22

The defendant is charged with aggravated assault with a deadly

weapon. And this metal bat, which is capable of deadly force,

qualifies as a deadly weapon. It may not have been invented for

that [purpose]. It may not have been purchased by them for that

purpose. It may not be in their home at that time for that

purpose. But it was used by the defendant for a criminal

purpose to cause bodily injury to his wife. And, therefore,

it qualifies as a deadly weapon.

....

Now, in a few moments you’re going to be going back to

deliberate, and you’ll get a verdict slip, and it lists the charges,

aggravated assault. The defendant is guilty of that because

he attempted and intentionally caused bodily injury to his

wife with a bat.

....

As I said before, domestic violence occurs in all kinds of

neighborhoods amongst all walks of life in all kinds of families.

And just because you’re rich or successful or have control over

your wife doesn’t give you a pass to commit domestic violence.

It doesn’t mean it doesn’t occur.

Do right by the evidence. Do right by your oath and find the

defendant guilty.

N.T. Jury Trial, 1/30/20, at 32-55 (emphases added).

First, Appellant asserts that the prosecutor improperly vouched for

Ms. Yang’s written statement as “fact,” expressing her personal belief in the

guilt of Appellant and the credibility of the evidence. See Appellant’s brief at

34. The PCRA court found no merit to this allegation. See PCRA Court

Opinion, 4/28/22, at 15. Instead, the PCRA court found that the

Commonwealth’s remarks were based on the evidence of record and in

response to Appellant’s own defense. Id. We agree.

- 22 -

J-S22009-22

It is well-settled that “[a] prosecutor may make fair comment on the

admitted evidence and may provide fair rebuttal to defense arguments. Even

an otherwise improper comment may be appropriate if it is in fair response to

defense counsel’s remarks.” Commonwealth v. Elliot, 80 A.3d 415, 443

(Pa. 2013). Accordingly, it was proper for the prosecutor to respond

vigorously to trial counsel’s closing argument in which counsel repeatedly cast

doubt on the credibility of Ms. Yang’s written statement, before repeatedly

stating that her trial testimony was truthful and “need[ed] to be listened to.”

See N.T. Jury Trial, 1/30/20, at 16-17, 23-24, 26-27; 29.

Furthermore, the prosecutor merely highlighted what the jury knew

already, namely, that Ms. Yang either misstated events when she wrote her

statement that Appellant pushed her and struck her repeatedly with a metal

bat or when she testified that Appellant lightly tapped her by accident with

the bat after she threatened him with a spatula. Trial counsel and the

prosecutor chose to focus their arguments on attempting to discredit the

version of events that did not support their respective theories of the case.

Accordingly, the prosecutor’s comments were neither unfair nor unduly

prejudicial. See Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa.Super.

2009) (“[T]he prosecutor may comment on the credibility of witnesses.”).

Therefore, trial counsel was not ineffective for failing to raise a meritless

objection. See Commonwealth v. Eichinger, 108 A.3d 821, 839 (Pa. 2014)

- 23 -

J-S22009-22

(reiterating that trial counsel cannot be held ineffective for failing to pursue a

meritless objection).

Second, Appellant attacks the prosecutor’s comments attempting to

explain why Ms. Yang gave inconsistent statements. See Appellant’s brief at

36-37. The PCRA court aptly summarized why this claim lacked arguable

merit as follows:

The Commonwealth surmised that Ms. Yang may have been

fearful to testify in open court due to Appellant’s abusive behavior.

Again, the Commonwealth was responding to closing arguments

made by [t]rial [c]ounsel and only relied on the facts on record to

make such statements. In [t]rial [c]ounsel’s closing, he devoted

a lot of time to highlighting the inconsistencies between Ms. Yang’s

written statement at the time of the assault and the testimony

during the trial. In response, the Commonwealth merely

suggested reasonable inferences that could be made from the

evidence of record as to why Ms. Yang’s statements had been

inconsistent. Therefore, the Commonwealth’s statements were

proper.

PCRA Court Opinion, 4/28/22, at 16.

The PCRA court’s conclusions display sound reasoning that is supported

by the record. During closing argument, trial counsel attempted to discredit

the written statement by contrasting the “stressful” conditions in which the

statement was created with her allegedly more credible trial testimony. See

N.T. Jury Trial, 1/30/20, at 23-25. Additionally, Ms. Yang testified that she

had traveled to court that day with Appellant and that the two still lived

together. See N.T. Jury Trial, 1/29/20, at 27-28. Accordingly, the

prosecutor’s comments were a combination of a fair inference from the

evidence adduced at trial and a rebuttal to trial counsel’s closing argument.

- 24 -

J-S22009-22

See Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (“[A] prosecutor

is free to present his argument with logical force and vigor so long as there is

a reasonable basis in the record for the prosecutor’s remarks.”). Therefore,

we discern no abuse of discretion in the PCRA court’s resolution of Appellant’s

second sub-claim as lacking arguable merit. Since the argument was proper,

trial counsel was not ineffective for failing to object.

In his third allegation of prosecutorial misconduct, Appellant asserts that

the prosecutor erroneously instructed the jury to convict Appellant so that

would-be abusers at large were dissuaded from committing acts of “mayhem.”

See Appellant’s brief at 38. After close examination, the PCRA court

disagreed, concluding that the prosecutor’s statements “simply commented

upon the very real dangers inflicted upon the community by domestic abusers,

as she was permitted to do. She in no way asked the jurors to imagine

themselves as the victims of the domestic abuse.” See PCRA Court Opinion,

4/28/22, at 17. Again, we discern no abuse of discretion.

The PCRA court’s conclusions are supported by legal precedent. In

closing argument, prosecutors are generally allowed to remind the jury of its

duties and obligations as citizens. See Eichinger, supra at 837; see also

Commonwealth v. Boone, 429 A.2d 689, 692 (Pa.Super. 1981) (“[A] district

attorney in [her] arguments, within proper limits, may argue for law and order

and remind the jury of the danger to the community posed by persons prone

to resort to violence.”). It is only when comments encourage jurors to imagine

- 25 -

J-S22009-22

themselves as victims or otherwise attempt to garner the sympathy of the

jurors, diverting their attention from the evidence, that the argument exceeds

the bounds of propriety. See Commonwealth v. Youngkin, 427 A.2d 1356,

1365 (Pa.Super. 1981). Herein, the prosecutor’s comments amount to an

argument for law and order to be upheld by punishing domestic abusers, which

is permissible. See Boone, supra at 692. Accordingly, trial counsel was not

ineffective for failing to object to it.

Fourth, Appellant argues that the prosecutor erroneously provided the

jury with a “sharp denunciation of Appellant’s character” when she argued

against the importance of Appellant’s character witnesses. See Appellant’s

brief at 38. The PCRA court disagreed, explaining that the prosecutor’s

comments were made in fair response to trial counsel’s closing argument. See

PCRA Court Opinion, 4/28/22, at 17.

We find record support for the PCRA court’s conclusion. During closing

argument, trial counsel emphasized the importance of Appellant’s positive

character witnesses and the Commonwealth’s inability to produce “one person

in this community, in this county, in this Commonwealth” who could rebut

these witnesses. N.T. Jury Trial, 1/30/20, at 13; see id. (describing the

character witnesses as people “who put their lives on hold because they

wanted [the jury] to know that [Appellant] is law abiding . . . [,] peaceful[,]

and nonviolent”). Accordingly, trial counsel was not ineffective for failing to

- 26 -

J-S22009-22

object, and we have no cause to disturb the PCRA court’s resolution of

Appellant’s fourth sub-issue.

Finally, Appellant argues that the prosecutor misled the jury by

improperly informing them that the baseball bat assumed the status of a

deadly weapon if they found that Appellant intended to cause “bodily injury,”

rather than “serious bodily injury.” See Appellant’s brief at 39. The PCRA

court found that to the extent the Commonwealth mischaracterized the law,

Appellant was not prejudiced by the mistake since the Court properly

instructed the jury “that you’re not bound by any principles of law mentioned

by the lawyers. You must apply the law in which you are instructed by me

and only that law to the facts as you find them.” See PCRA Court Opinion,

4/28/22, at 18 (citing N.T. Jury Trial, 1/30/20, at 9). We discern no abuse of

discretion.

In addition to the instruction provided before closing arguments,

afterwards the court reiterated that the jury should “apply the law in which I

instruct you and only that law” and expressly cautioned them that they were

not bound by the arguments of the attorneys. See N.T. Jury Trial, 1/30/20,

at 60, 63. “The law presumes that the jury will follow the instructions of the

court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). There

is no evidence proffered by Appellant, and none apparent in the record, to

- 27 -

J-S22009-22

suggest that the jury did not follow the trial court’s instructions. Accordingly,

Appellant’s final allegation of prosecutorial misconduct fails.6

Having reviewed all of Appellant’s issues and concluded that none

warrants relief, we affirm the order of the PCRA court denying Appellant’s

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2022

____________________________________________

6 Appellant mentions a cumulative prejudice argument, contending that all

the alleged instances of prosecutorial misconduct, when viewed together,

render an even stronger case that he should be granted a new trial. See

Appellant’s brief at 40. Our Supreme Court has held that, “where a claimant

has failed to prove prejudice as the result of any individual errors, he cannot

prevail on a cumulative effect claim unless he demonstrates how the particular

cumulation requires a different analysis.” Commonwealth v. Wright, 961

A.2d 119, 158 (Pa. 2008). Since Appellant’s one-sentence claim of cumulative

error does not provide us with the required explanation, it merits no relief.

- 28 -