Opposition Brief — Marquis Lee Rayner, Petitioner v. Pennsylvania

Supreme Court briefNov 14, 2017

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No. 17-6151

____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

____________________________________________________________

MARQUIS LEE RAYNER,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

____________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

____________________________________________________________

BRIEF FOR RESPONDENT IN OPPOSITION

____________________________________________________________

Nicholas J. Casenta, Jr., Esquire

Chief Deputy District Attorney

Counsel of Record

Thomas P. Hogan, Esquire

District Attorney

District Attorney’s Office

Chester County Justice Center

201 West Market Street, P.O. Box 2746

West Chester, PA 19380-0989

(610) 344-6801

Counsels for Respondent

QUESTIONS PRESENTED

WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE

JURY’S GUILTY VERDICTS AND WHETHER THE VERDICTS WERE

AGAINST THE WEIGHT OF THE EVIDENCE?

II.

WHETHER THE TRIAL COURT IMPROPERLY INTERFERE WITH

THE PETITIONER’S RIGHT TO A FAIR TRIAL?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF CITATIONS

iii

COUNTER-STATEMENT OF THE CASE

I. PROCEDURAL HISTORY.

II. FACTS OF THE CASE.

REASONS WHY THE WRIT SHOULD BE DENIED

I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S

GUILTY VERDICTS AND THE VERDICTS WERE NOT AGAINST

THE WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT DID NOT IMPROPERLY INTERFERE WITH

THE PETITIONER’S RIGHT TO A FAIR TRIAL.

CONCLUSION

TABLE OF CITATIONS

PAGE

UNITED STATES SUPREME COURT CASES:

Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011)

5, 6

Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012)

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

5, 6

Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)

Renico v. Lett, 559 U.S. ___, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 18

LOWER FEDERAL COURT CASES:

United States v. Caraballo–Rodriguez, 726 F.3d 418 (3d Cir. 2013)

United States v. Castner, 50 F.3d 1267 (4th Cir. 1995)

United States v. Corbin, 734 F.2d 643 (11th Cir. 1984)

United States v. Dent, 149 F.3d 180 (3d Cir. 1998)

United States v. Gastiaburo, 16 F.3d 582 (4th Cir. 1994)

United States v. Godwin, 272 F.3d 659 (4th Cir. 2001)

18, 19

United States v. Harvey, 532 F.3d 326 (4th Cir. 2008)

United States v. Indelicato, 611 F.2d 376 (1st Cir. 1979)

9, 10

United States v. Lincoln, 630 F.2d 1313 (8th Cir. 1980)

9, 10

United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985)

iii

United States v. McBane, 433 F.3d 344 (3d Cir. 2005)

United States v. Parodi, 703 F.2d 768 (4th Cir. 1983)

United States v. Promise, 255 F.3d 150 (4th Cir. 2001)

United States v. Quiles, 618 F.3d 383 (3d Cir. 2010)

United States v. Simms, 508 F.Supp. 1188 (W.D.La. 1980)

9, 10

United States v. Sinclair, 438 F.2d 50 (5th Cir. 1971)

10, 14, 15, 16

United States v. Thomas, 114 F.3d 403 (3d Cir. 1997)

United States v. Tyson, 653 F.3d 192 (3d Cir. 2011)

United States v. Villarini, 238 F.3d 530 (4th Cir. 2001)

United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996)

STATE CASES:

Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000)

20, 27

Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973)

Commonwealth v. Boettcher, 313 Pa. Super. 194, 459 A.2d 806 (1983)

Commonwealth v. Britton, 334 Pa. Super. 203, 482 A.2d 1294 (1984),

appeal denied, 509 Pa. 620, 506 A.2d 895 (1986)

30, 31

Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994)

11, 12

Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961 (2001)

Commonwealth v. Buford, 101 A.3d 1182 (Pa. Super. 2014),

appeal denied, 631 Pa. 741, 114 A.3d 415 (2015)

29, 30

Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002)

Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049 (2013)

Commonwealth v. Davidson, 860 A.2d 575 (Pa. Super. 2004)

Commonwealth v. Davis, 799 A.2d 860 (Pa. Super. 2002)

Commonwealth v. Doleno, 430 Pa. Super. 1, 633 A.2d 203 (1993)

Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977)

Commonwealth v. Goodwine, 692 A.2d 233 (Pa. Super. 1997)

Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986)

Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986)

7, 8

Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979)

Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014)

Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268 (2006)

Commonwealth v. Kearney, 92 A.3d 51 (Pa. Super. 2014),

appeal denied, 627 Pa. 763, 101 A.3d 102 (2014)

passim

Commonwealth v. Konias, 136 A.3d 1014 (Pa. Super. 2016),

appeal denied, 145 A.3d 724 (Pa. 2016)

16, 17

Commonwealth v. La, 433 Pa. Super. 432, 640 A.2d 1336 (1994),

appeal denied, 540 Pa. 597, 655 A.2d 986 (1994)

Commonwealth v. Lanager, 360 Pa. Super. 578, 521 A.2d 53 (1987)

Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95 (1943)

Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003)

Commonwealth v. Pitner, 928 A.2d 1104 (Pa. Super. 2007),

appeal denied, 596 Pa. 716, 944 A.2d 757 (2008)

Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982)

Commonwealth v. Rayner, 153 A.3d 1049 (Pa. Super. 2016)

1, 17, 31

Commonwealth v. Rayner, 24 MAL 2017, ___ Pa. ___, 169 A.3d 1046

(2017)

1, 17, 31

Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011)

Commonwealth v. Seibert, 424 Pa. Super. 242, 622 A.2d 361 (1993)

Commonwealth v. Stays, 70 A.3d 1256 (Pa. Super. 2013)

Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977)

29, 30

Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2003)

11, 12

Commonwealth v. Taylor, 137 A.3d 611 (Pa. Super. 2016)

13, 16

Commonwealth v. Washington, 549 Pa. 12, 700 A.2d 400 (1997),

cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998)

24, 26

Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456 (1998)

Commonwealth v. Weston, 561 Pa. 199, 749 A.2d 458 (2000)

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000)

10, 11, 13

Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999)

Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981)

Lupi v. Keenan, 396 Pa. 6, 151 A.2d 447 (1959)

Nudelman v. Gilbride, 436 Pa. Super. 44, 647 A.2d 233 (1994)

11, 15

RULES & STATUTES:

Fed.R.Crim.P. 33

18 Pa.C.S.A. § 903

18 Pa.C.S.A. § 2502

13, 14

18 Pa.C.S.A. § 3502

18 Pa.C.S.A. § 3701

Pa.R.A.P. 2101

Pa.R.A.P. 2119

Pa.R.E. 613

19, 20

Pa.R.E. 803.1

29, 30

vii

COUNTER-STATEMENT OF THE CASE

PROCEDURAL HISTORY.

On November 20, 2014, following a four-day jury trial, Petitioner was found

guilty of Murder of the Second Degree, two counts of Robbery, Burglary, and

Criminal Conspiracy. On April 17, 2015, Petitioner was sentenced to life in prison

for Murder of the Second Degree, 90 months to 20 years on each count of

Robbery, 54 months to 20 years for Burglary, and 90 to 20 years for Conspiracy.

All counts were imposed consecutively to each other.

On April 30, 2017, Petitioner appealed the judgment of sentence to the

Superior Court of Pennsylvania. On December 29, 2016, the Superior Court of

Pennsylvania, in a published opinion affirmed the judgment of sentence.

Commonwealth v. Rayner, 1263 EDA 2015, 153 A.3d 1049 (Pa. Super. 2016). On

January 11, 2017, Petitioner filed a Petition for Allowance of Appeal. On July 11,

2017, the Supreme Court of Pennsylvania denied the Petitioner filed a Petition for

Allowance of Appeal. Commonwealth v. Rayner, 24 MAL 2017, ___ Pa. ___, 169

A.3d 1046 (2017). On September 28, 2017, Petitioner filed a Petition for a Writ of

Certiorari with the United States Supreme Court.

II.

FACTS OF THE CASE.

The Commonwealth of Pennsylvania adopts the factual summary as set forth

by the trial court:

The evidence offered at trial established that in the early

morning hours of June 29, 2012, Dominick Williams was

sitting in the living room of his apartment when three black

men burst into the apartment. N.T. 11/17/14, pp. 67, 120. All

carried guns and were disguised by t-shirts worn across their

faces. N.T. 11/17/14, pp. 66-68, 77, 118-119, 132. Without

warning, one of the men shot Dominick Williams. N.T.

11/17/15, p. 68. One of the gunmen then yelled “where it’s at,”

signifying a robbery. N.T. 11/17/14, p. 69. Another pistolwhipped visitor Jalell Outz. N.T. 11/17/14, p. 72. One of the

intruders then went to Aaron Crawford’s bedroom and

demanded of him “where is it at, where is it at, give it up,” and

then pistol whipped Aaron Crawford as well. N.T. 11/17/14, p.

150. Mr. Crawford opened his top right dresser drawer and

showed the intruder a clear plastic lidded jar that contained

marijuana, money, and a pack of Newport cigarettes. The

intruder grabbed the jar and ran from the bedroom carrying the

jar. N.T. 11/17/14, pp. 155-157. The intruder who grabbed the

jar was not wearing gloves. N.T. 11/17/14, p. 150. All three of

the intruders ran out of the apartment.

Dominick Williams was transported to the hospital and rushed

to surgery in an attempt to save his life. He died on the

operating table. N.T. 11/18/14, p. 124. Dr. Ian Hood, a

forensic pathologist with thirty years of experience performed

the autopsy of Dominick Williams. N.T. 11/18/14, p. 212. At

trial, Dr. Hood testified that Mr. Williams’ cause of death was a

gunshot wound to the left groin. N.T. 11/18/14, p. 218.

Approximately 90 minutes after Dominick Williams had been

shot, police officer Stephen Galletta of the Coatesville City

Police Department located the clear plastic jar tossed in a hedge

row approximately a block and a half from the crime scene.

N.T. 11/17/14, p. 244. The jar contained a pack of Newport

cigarettes. N.T. 11/17/14, p. 163. Located several feet away

was a black t-shirt. N.T. 11/17/14, pp. 244, 248. Witness

Aaron Crawford was brought to the discovery scene and

identified the jar as the one taken from his bedroom earlier that

morning, and the t-shirt as the type of shirt that one of the

robbers had been wearing across his face. N.T. 11/17/14, pp.

161-164.

Chester County Detective Kenneth Beam testified as an expert

in the field of fingerprint analysis. Detective Beam received as

evidence the plastic jar and t-shirt found close to the scene of

the robbery. N.T. 11/18/14, p. 49. Detective [Beam] testified

that the print with the sharpest and clearest detail found on the

plastic jar belonged to co-defendant Dominique Lee. N.T.

11/18/14, pp. 65, 69, 73. Because Detective [Beam] knew that

the t-shirt had possibly been tied to across the face of one of the

intruders as a disguise, he surmised that the intruder might have

left saliva on the shirt. Accordingly, Detective [Beam] sent the

t-shirt to the State Police Laboratory for DNA analysis. N.T.

11/18/14, p. 55.

Michael Gossard, a forensic scientist with the Pennsylvania

State Police, testified as a serology expert. Mr. Gossard tested

the t-shirt for evidence of salvia. N.T. 11/18/14, p. 117. His

testing indicated the presence of saliva on two different areas of

the t-shirt. N.T. 11/18/14, pp.121, 135.

Timothy Gavel, a forensic scientist with the Pennsylvania State

Police DNA lab, performed a DNA analysis on the evidence

left on the t-shirt. Mr. Gavel testified that DNA evidence left on

the t-shirt belonged to Appellant Marquis Rayner. N.T.

11/18/14, pp. 149, 153. He also testified that the chance of a

coincidental DNA match in the African-American population

was one in 7.9 quintillion. N.T. 11/18/14, p. 154.

Viewing the above-listed evidence in the light most favorable to

the Commonwealth, and drawing all proper inferences

favorable to the Commonwealth, we find that the trier of fact

could reasonably have concluded that all of the elements of the

crimes of which Appellant was convicted were established

beyond a reasonable doubt. Thus, his sufficiency of the

evidence claim must fail.

May 2, 2016 Opinion of the Honorable James P. MacElree, II, at 4-6.

REASONS WHY THE PETITION FOR WRIT SHOULD BE DENIED

Petitioner has not presented any compelling reasons to grant the petition for

a writ of certiorari. The current petition does not present a conflict within the

United States Court of Appeals. The lower and intermediate state courts have not

decided an important federal question in a way that conflicts with the decisions of

another state or federal court. The lower and intermediate state courts have not

decided an important question of federal law that has not been, but should be,

settled by this Court, and has not decided an important federal question in a way

that conflicts with relevant decisions of this Court. At best the petition for a writ of

certiorari merely alleges errors consisting of alleged erroneous factual findings or

the alleged misapplication of a properly stated rule of law.

The writ of certiorari primarily relies upon Pennsylvania law and the

application thereof. Petitioner’s argument is essentially that Pennsylvania courts

misapplied Pennsylvania law. Petitioner attempts to make his state law claims

federal claims by mentioning the 6th and 14th Amendments and due process without

any meaningful analysis. Moreover, the writ of certiorari only briefly mentions

one federal case, that of the United States Court of Appeal for the Third Circuit

(approximately 50 words). See Writ of Certiorari at page 25.

THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S

GUILTY VERDICTS AND THE VERDICTS WERE NOT AGAINST THE

WEIGHT OF THE EVIDENCE.

The appropriate standard of review concerning a claim of insufficient

evidence to support a state criminal conviction is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011), the

United States Supreme Court stated in part:

The opinion of the Court in Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979), makes clear that it is the

responsibility of the jury - not the court - to decide what

conclusions should be drawn from evidence admitted at trial. A

reviewing court may set aside the jury’s verdict on the ground

of insufficient evidence only if no rational trier of fact could

have agreed with the jury. What is more, a federal court may

not overturn a state court decision rejecting a sufficiency of the

evidence challenge simply because the federal court disagrees

with the state court. The federal court instead may do so only if

the state court decision was “objectively unreasonable.” Renico

v. Lett, 559 U.S. ___, ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d

678 (2010) (internal quotation marks omitted).

Because rational people can sometimes disagree, the inevitable

consequence of this settled law is that judges will sometimes

encounter convictions that they believe to be mistaken, but that

they must nonetheless uphold. The Court of Appeals in this

case substituted its judgment for that of a California jury on the

question whether the prosecution’s or the defense’s expert

witnesses more persuasively explained the cause of a death.

For this reason, certiorari is granted and the judgment of the

Court of Appeals is reversed.

Cavazos v. Smith, 565 U.S. at 2, 132 S.Ct. at 3-4.

In United States v. Quiles, 618 F.3d 383 (3d Cir. 2010), the United States

Court of Appeals for the Third Circuit stated in part:

When evaluating a challenge to a jury’s verdict, we apply a

particularly deferential standard of review. United States v.

Dent, 149 F.3d 180, 187 (3d Cir. 1998). We do not re-weigh

the evidence or assess the credibility of witnesses. Id. (citing

United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)).

Instead, we view the evidence in the light most favorable to the

government before deciding whether any rational trier of fact

could have found the presence of the essential elements of the

crime beyond a reasonable doubt. Id. (citing United States v.

Thomas, 114 F.3d 403, 405 (3d Cir. 1997)).

Quiles at 395. See also United States v. Tyson, 653 F.3d 192, 202 (3d Cir. 2011);

United States v. McBane, 433 F.3d 344, 348 (3d Cir. 2005) (courts do not weigh

evidence or determine the credibility of witnesses on sufficiency of the evidence

review). The United States Court of Appeals for the Third Circuit stated in part:

[T]he verdict must be upheld as long as it does not “fall below

the threshold of bare rationality.” Coleman v. Johnson, ___

U.S. ___, 132 S.Ct. 2060, 2065, 182 L.Ed.2d 978 (2012) (“The

jury in this case was convinced, and the only question under

Jackson v. Virginia is whether that finding was so insupportable

as to fall below the threshold of bare rationality.”).

United States v. Caraballo–Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (en banc).

The Pennsylvania standard is the same as the federal standard. Evidence

will be deemed sufficient to support a guilty verdict when it establishes each

material element of the crime charged and the commission thereof by the accused,

beyond a reasonable doubt. Commonwealth v. Weston, 561 Pa. 199, 749 A.2d 458

(2000). In deciding the sufficiency of the evidence, the reviewing court must

accept as true all the evidence, and the reasonable inferences therefrom, upon

which the factfinder could have based its verdict and then ask whether that

evidence, viewed in the light most favorable to the Commonwealth as verdict

winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth

v. Young, 494 Pa. 224, 431 A.2d 230 (1981); Commonwealth v. Boettcher, 313 Pa.

Super. 194, 459 A.2d 806 (1983).

In applying this test, the entire trial record must be evaluated and all the

evidence received must be considered. A reviewing court must not give weight to

or speculate upon matters not in evidence. A reviewing court must recognize and

honor the right and obligation of the trier of fact, while passing upon the credibility

of witnesses and the weight to be afforded the evidence produced, to believe all,

part or none of the evidence. Commonwealth v. Griscavage, 512 Pa. 540, 517

A.2d 1256 (1986); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

The facts and circumstances established by the Commonwealth need not be

absolutely incompatible with the defendant’s innocence, but the question of any

doubt is for the trier of fact, unless the evidence is so weak and inconclusive that,

as a matter of law, no probability of fact can be drawn from the combined

circumstances. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977);

Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95 (1943); Commonwealth v.

Davis, 799 A.2d 860 (Pa. Super. 2002); Commonwealth v. Seibert, 424 Pa. Super.

242, 622 A.2d 361 (1993). In other words, before granting a motion in arrest of

judgment, the court must make a finding that the evidence supporting the verdict of

guilt is so weak and inconclusive that a reasonable fact finder of fact could not be

satisfied as to the guilt of the defendant beyond a reasonable doubt.

Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v.

Lanager, 360 Pa. Super. 578, 521 A.2d 53 (1987).

The Supreme Court of Pennsylvania has articulated the reasons why the trier

of fact has the right and obligation to believe all, part or none of the evidence:

The trier of fact has the unique opportunity to see and hear

subtleties of answers and movements of witnesses and parties

not viewable from the cold record. Words are delivered in a

wider context than appear on a printed page. What they mean

is often determined from how they are said, by whom and for

what reason, for which reason a trier of fact is not required to

accept all he hears.

Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986).

The distinction between a claim challenging the sufficiency of the evidence

and a claim challenging the weight of the evidence is critical. Some federal courts

have interpreted Fed.R.Crim.P. 33 to permit the trial court to set aside a conviction

that is against the weight of the evidence. In exceptional cases, a motion for new

trial may be granted where the guilty verdict is contrary to the weight of the

evidence in the case. A motion for new trial based on the weight of the evidence

should be rarely, such that it would be a miscarriage of justice to let the verdict

stand.

The United States Court of Appeals for the Eleventh Circuit has

summarized these principles as follows:

Initially, we note that a motion for new trial made on the

ground that the verdict is contrary to the weight of the evidence

raises issues very different from a motion for judgment of

acquittal notwithstanding the verdict, which is based on the

sufficiency of the evidence. On a motion for judgment of

acquittal, the court must view the evidence in the light most

favorable to the verdict, and, under that light, determine

whether the evidence is sufficient to support the verdict.

Corbin, 734 F.2d at 650. Thus, on this motion, the court

assumes the truth of the evidence offered by the prosecution.

On a motion for a new trial based on the weight of the evidence,

the court need not view the evidence in the light most favorable

to the verdict. It may weigh the evidence and consider the

credibility of the witnesses. United States v. Lincoln, 630 F.2d

1313, 1319 (8th Cir. 1980); United States v. Simms, 508

F.Supp. 1188, 1202 (W.D.La. 1980). If the court concludes

that, “despite the abstract sufficiency of the evidence to sustain

the verdict, the evidence preponderates sufficiently heavily

against the verdict that a serious miscarriage of justice may

have occurred, it may set aside the verdict, grant a new trial,

and submit the issues for determination by another jury.”

Lincoln, 630 F.2d at 1319.

The decision to grant or deny a new trial motion based on the

weight of the evidence is within the sound discretion of the trial

court. An appellate court may reverse only if it finds the

decision to be a clear abuse of that discretion. Id.; United

States v. Indelicato, 611 F.2d 376, 387 (1st Cir. 1979). While

the district court’s discretion is quite broad, there are limits to

it. The court may not reweigh the evidence and set aside the

verdict simply because it feels some other result would be more

reasonable. Simms, 508 F.Supp. at 1202. The evidence must

preponderate heavily against the verdict, such that it would be a

miscarriage of justice to let the verdict stand. Indelicato, 611

F.2d at 387; United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th

Cir. 1971) (quoting Wright, Miller & Cooper, Federal Practice

and Procedure: Criminal § 553, at 487). Motions for new trials

based on weight of the evidence are not favored. Courts are to

grant them sparingly and with caution, doing so only in those

really “exceptional cases.” Lincoln, 630 F.2d at 1319;

Indelicato, 611 F.2d at 387; Simms, 508 F.Supp. at 1202.

United States v. Martinez, 763 F.2d 1297, 1312–1313 (11th Cir. 1985).

Although there in nothing requiring state courts to consider a motion for a

new trial alleging that the verdict is contrary to the weight of the evidence,

Pennsylvania permits such challenges. The Pennsylvania standard is the same as

the federal standard. A claim challenging the sufficiency of the evidence asserts

that there is insufficient evidence to support at least one material element of the

crime for which the defendant has been convicted. However, a motion for a new

trial alleging that the verdict is contrary to the weight of the evidence concedes that

there is sufficient evidence to sustain the verdict, but alleges that “notwithstanding

all the facts, certain facts are so clearly of greater weight that to ignore them or to

give them equal weight with all the facts is to deny justice.” Commonwealth v.

Widmer, 560 Pa. 308, 318-319, 744 A.2d 745, 751-752 (2000); Commonwealth v.

Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).

The decision to grant or deny a motion for a new trial on the ground that the

verdict is against the weight of the evidence is committed to the sound discretion

of the trial court. Absent an abuse of discretion its denial of such a motion will not

be disturbed. Appellate review of a weight of the evidence claim is a review of the

exercise of discretion, not of the underlying question of whether the verdict is

against the weight of the evidence. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d

1049 (2013); Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000);

Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1191 (1994);

Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986); Commonwealth v.

Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Sullivan, 820

A.2d 795 (Pa. Super. 2003).

A new trial should only be awarded when the jury’s verdict is so contrary to

the evidence as to shock one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to prevail.

Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa. Super. 1997). The evidence

must be so tenuous, vague and uncertain that the verdict shocks the conscience of

the court. Commonwealth v. La, 433 Pa. Super. 432, 640 A.2d 1336, 1351 (1994),

appeal denied, 540 Pa. 597, 655 A.2d 986 (1994). “When ‘the figure of Justice

totters on her pedestal,’ or when ‘the jury’s verdict, at the time of its rendition,

causes the trial judge to lose his breath, temporarily, and causes him to almost fall

from the bench, then it is truly shocking to the judicial conscience.’ Nudelman v.

Gilbride, 436 Pa. Super. 44, 647 A.2d 233, 237 (1994) (quoting, Lupi v. Keenan,

396 Pa. 6, 151 A.2d 447, 452, 453 (1959) (Musmanno, J., dissenting)).”

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 2004). However, it is

the trial court’s sense of justice that must be shocked before a new trial may be

granted on a claim that the verdict is against the weight of the evidence. It is

irrelevant that the appellate court’s sense of justice may be shocked.

Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994); Commonwealth v.

Sullivan, 820 A.2d 795, 807 n.11 (2003). One of the least assailable reasons for

granting or denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of the evidence and that new process was or was not

dictated by the interests of justice. Commonwealth v. Brown, 538 Pa. 410, 436, 648

A.2d 1177, 1189-1190 (1994).

In the case at bar, the Superior Court of Pennsylvania correctly addressed

these claims stating in part:

Appellant’s first two issues challenge the sufficiency and

weight of the evidence to support his convictions. (See id. at

41–55).FN#4

For ease of disposition, we will address

Appellant’s sufficiency challenge first, and then his weight of

the evidence claim.

FN#4.

Although Appellant recognizes that each of

these issues has its own standard of review, (see

Appellant’s Brief, at 49), he appears to confuse the

legal concepts. (See id. at 41–55). For example,

“[a] motion for new trial on the grounds that the

verdict is contrary to the weight of the evidence,

concedes that there is sufficient evidence to sustain

the verdict.” Commonwealth v. Widmer, 560 Pa.

308, 744 A.2d 745, 751 (2000) (citation omitted).

However, in support of his weight of the evidence

challenge, Appellant repeatedly states that the

Commonwealth failed to prove the elements

necessary to support his convictions. (See

Appellant’s Brief, at 44–46).

Also, in his

sufficiency challenge, Appellant maintains that

“[t]he speculative and conflicting nature of the

testimony would warrant a reversal on the basis of

sufficiency of evidence.” (Appellant’s Brief, at

52). However, this allegation goes to the weight of

the evidence. See Commonwealth v. Doleno, 430

Pa. Super. 1, 633 A.2d 203, 206 (1993) (“claim

goes to the weight of the evidence because it

depends upon a resolution of the conflicting

testimony of competing witnesses.”).

In his second issue, Appellant argues that the evidence was

insufficient to support the verdict because it required pure

speculation. (See Appellant’s Brief, at 49–55). Appellant’s

issue lacks merit.

In reviewing the sufficiency of the evidence, we must

determine whether the evidence admitted at trial, and all

reasonable inferences drawn from that evidence, when

viewed in the light most favorable to the Commonwealth

as verdict winner, was sufficient to enable the fact finder

to conclude that the Commonwealth established all of the

elements of the offense beyond a reasonable doubt. The

Commonwealth may sustain its burden by means of

wholly circumstantial evidence. Further, the trier of fact is

free to believe all, part, or none of the evidence.

Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016)

(citation omitted). In this case, Appellant was convicted of

murder of the second degree, robbery, burglary, and conspiracy.

Pursuant to section 2502(b) of the Crimes Code, “[a] criminal

homicide constitutes murder of the second degree when it is

committed while defendant was engaged as a principal or an

accomplice in the perpetration of a felony.” 18 Pa.C.S.A. §

2502(b). The Crimes Code also provides, in pertinent part, that

“[a] person is guilty of robbery if, in the course of committing a

theft, he ... inflicts serious bodily injury upon another [or]

threatens another with or intentionally puts him in fear of

immediate serious bodily injury[.]”

18 Pa.C.S.A. §§

3701(a)(1)(i), (ii). It further provides, “[a] person commits the

offense of burglary if, with the intent to commit a crime therein,

the person ... enters a building or occupied structure, or

separately secured or occupied portion thereof that is adapted

for overnight accommodations in which at the time of the

offense any person is present[.]” 18 Pa.C.S.A. § 3502(a)(1).

Finally:

A person is guilty of conspiracy with another person or

persons to commit a crime if with the intent of promoting

or facilitating its commission he ... agrees with such other

person or persons that they or one or more of them will

engage in conduct which constitutes such crime ... or ...

agrees to aid such other person or persons in the planning

or commission of such crime

....

18 Pa.C.S.A. § 903(a).

In this case, the evidence at trial established that three men

broke into Dominick Williams’ apartment with the intent of

robbing him. (See N.T. Trial, 11/17/14, at 67, 69, 150). The

men were armed with guns and wore t-shirts across their faces.

(See id. at 66–68, 77, 118–119, 132). After shooting Mr.

Williams, and pistol whipping his roommate, Aaron Crawford,

one of the men stole a plastic-lidded jar that contained

marijuana and other items. (See id. 155–57). The individual

was not wearing gloves. (See id. at 150).

As further described by the trial court:

Approximately [ninety] minutes after Dominick Williams

had been shot, police officer Stephen Galletta of the

Coatesville City Police Department located the clear

plastic jar tossed in a hedge row approximately a block

and a half from the crime scene. (See id. at 244). The jar

contained a pack of Newport cigarettes. (See id. at 163).

Located several feet away was a black t-shirt. (See id. at

244, 248). Witness Aaron Crawford was brought to the

discovery scene and identified the jar as the one taken

from his bedroom earlier that morning, and the t-shirt as

the type of shirt that one of the robbers had been wearing

across his face. (See id. at 161–64).

Chester County Detective Kenneth Beam testified as an

expert in the field of fingerprint analysis. Detective Beam

received as evidence the plastic jar and t-shirt found close

to the scene of the robbery. (See N.T. Trial, 11/18/14, at

49).

Detective Bean testified that the print with the sharpest

and clearest detail found on the plastic jar belonged to codefendant Dominique Lee. (See id. at 65, 69, 73).

Because Detective Bean knew that the t-shirt had possibly

been tied across the face of one of the intruders as a

disguise, he surmised that the intruder might have left

saliva on the shirt. Accordingly, Detective Bean sent the

t-shirt to the State Police Laboratory for DNA analysis.

(See id. at 55).

Michael Gossard, a forensic scientist with the

Pennsylvania State Police, testified as a serology expert.

Mr. Gossard tested the t-shirt for evidence of saliva. (See

id. at 117). His testing indicated the presence of saliva on

two different areas of the t-shirt. (See id. at 121, 135).

Timothy Gavel, a forensic scientist with the Pennsylvania

State Police DNA lab, performed a DNA analysis on the

evidence left on the t-shirt. Mr. Gavel testified that DNA

evidence left on the t-shirt belonged to Appellant [ ]. (See

id. at 149, 153). He also testified that the chance of a

coincidental DNA match in the African–American

population was one in 7.9 quintillion. (See id. at 154).

(Trial Ct. Op., at 4–6) (some record citation formatting

provided).

Based on the above evidence, and our review of the record in

the light most favorable to the Commonwealth as verdict

winner, we conclude that it was sufficient to establish the

elements of the crimes of which Appellant was convicted. See

Taylor, supra at 614. Appellant’s sufficiency challenge does

not merit relief.

Appellant also challenges the weight of the evidence to support

his convictions. (See Appellant’s Brief, at 41–49). Appellant’s

issue lacks merit.

When we review a weight-of-the-evidence challenge, we

do not actually examine the underlying question; instead,

we examine the trial court’s exercise of discretion in

resolving the challenge.

This type of review is

necessitated by the fact that the trial judge heard and saw

the evidence presented. Simply put, [o]ne of the least

assailable reasons for granting or denying a new trial is the

lower court’s conviction that the verdict was or was not

against the weight of the evidence and that a new trial

should be granted in the interest of justice. A new trial is

warranted in this context only when the verdict is so

contrary to the evidence that it shocks one’s sense of

justice and the award of a new trial is imperative so that

right may be given another opportunity to prevail.

Of equal importance is the precept that, “The finder of fact

... exclusively weighs the evidence, assesses the credibility

of witnesses, and may choose to believe all, part, or none

of the evidence.” Commonwealth v. Sanchez, 614 Pa. 1,

36 A.3d 24, 39 (2011) (citation omitted).

Commonwealth v. Konias, 136 A.3d 1014, 1022–23 (Pa. Super.

2016), appeal denied, 145 A.3d 724 (Pa. 2016) (most citations

and quotation marks omitted).

In this case, the trial court “presided over Appellant’s trial [and

did] not find the jury verdict so contrary to the evidence as to

shock the [c]ourt’s sense of justice. Thus, [the court]

specifically [found] that the verdict in this matter was not

against the weight of the evidence.” (Trial Ct. Op., at 6). We

decline Appellant’s invitation to re-weigh the evidence in this

matter, and conclude that the trial court did not abuse its

discretion in denying his weight of the evidence challenge. See

Konias, supra at 1022–23. Appellant’s weight of the evidence

claim does not merit relief.

Commonwealth v. Rayner, 153 A.3d 1049, 1054-1056 (Pa. Super. 2016), appeal

denied, ___ Pa. ___, 169 A.3d 1046 (2017) (footnote in original).

For the foregoing reasons, the Respondent, the Commonwealth of

Pennsylvania, contends that the evidence was sufficient to support the jury’s guilty

verdicts and the verdicts were not against the weight of the evidence. Petitioner has

not asserted any grounds for granting the Writ of Certiorari.

II.

THE TRIAL COURT DID NOT IMPROPERLY INTERFERE WITH

THE PETITIONER’S RIGHT TO A FAIR TRIAL.

Petitioner alleges that the trial court interfered during his cross examination

of a prosecution witness concerning an alleged inconsistent statement. Petitioner

also alleges that trial court improperly interfered twice during defense counsel’s

closing argument to the jury. The trial court’s interruptions were appropriate in all

of these instances. Each of time the trial court interrupted defense counsel, it was

because defense counsel was not following the law or was inaccurately stating the

law to the jury. Defense counsel was misleading the jury, whether intentionally or

unintentionally, and the trial court acted appropriately in correctly the situation.

Moreover, any alleged error would be harmless beyond a reasonable doubt.

The United States Court of Appeals for the Fourth Circuit has stated in part:

Although they failed to object at trial, Appellants now assert

that the district court made several antagonistic comments in

the presence of the jury that prejudiced them and the outcome

of their cases. In circumstances of alleged judicial interference,

“we may not intervene unless the ‘judge’s comments were so

prejudicial as to deny [the defendants] an opportunity for a fair

and impartial trial.’” Godwin, 272 F.3d at 673 (alteration in

original) (quoting U.S. v. Gastiaburo, 16 F.3d 582, 589–90 (4th

Cir. 1994)). Moreover, where, as here, a defendant fails to

timely object to the alleged interference, we only review such

claims for plain error. Id. (citing U.S. v. Castner, 50 F.3d

1267, 1272 (4th Cir. 1995)). After a thorough review of the

transcript, we cannot conclude that any of the district court’s

comments rise to such a level.

United States v. Harvey, 532 F.3d 326, 335–336 (4th Cir. 2008).

The United States Court of Appeals for the Fourth Circuit has stated in part:

The Supreme Court has observed that a fair trial, in the

constitutional context, is one “whose result is reliable.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). In a similar vein, our good Chief Judge

recently observed that “substantial rights are not affected when

a picture-perfect proceeding would yield exactly the same result

as that which actually transpired.” United States v. Promise,

255 F.3d 150, 166 (4th Cir. 2001) (Wilkinson, C.J., concurring

in part and concurring in the judgment); see also Neder v.

United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35

(1999) (noting that constitutional error is harmless if “it appears

beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained”); United States v. Villarini,

238 F.3d 530, 536 (4th Cir. 2001) (“A new trial is required only

if the resulting prejudice was so great ‘that it denied any or all

the appellants a fair, as distinguished from a perfect, trial.’”)

(quoting United States v. Parodi, 703 F.2d 768, 776 (4th Cir.

1983)).

United States v. Godwin, 272 F.3d 659, 673 (4th Cir. 2001).

With respect to judicial remarks during a trial, the Supreme Court of

Pennsylvania has held:

A judge’s remarks to counsel do not warrant reversal unless the

remarks so prejudice the jurors against the defendant that “it

may reasonably be said [that the remarks] deprived the

defendant of a fair and impartial trial.” Commonwealth v.

England, 474 Pa. 1, 375 A.2d 1292, 1300 (1977) (stating that a

judge’s critical remarks to defense counsel did not deprive

appellant of a fair and impartial trial because the remarks were

directed to counsel, not appellant).

Commonwealth v. Jones, 590 Pa. 202, 233, 912 A.2d 268, 287 (2006).

Petitioner’s contends that the trial court improperly interrupted the crossexamination of Mr. Stretton of Aaron Crawford. Specifically, Petitioner argues it

was an error for the trial court, during defense counsel’s attempt to impeach the

witness with an alleged prior inconsistent statement, to state that there was not an

inconsistency.

However, the trial court was correct to interrupt the cross-

examination. The alleged prior “inconsistent” statement was not inconsistent.

Pennsylvania Rule of Evidence 613 governs the use of a prior inconsistent

statement for impeachment purposes, and provides in part as follows:

(a) Witness’s Prior Inconsistent Statement to Impeach. A

witness may be examined concerning a prior inconsistent

statement made by the witness to impeach the witness’s

credibility. The statement need not be shown or its contents

disclosed to the witness at that time, but on request the

statement or contents must be shown or disclosed to an adverse

party’s attorney.

Pa.R.E. 613.

“Our courts long have permitted non-party witnesses to be cross-examined

on prior statements they have made when those statements contradict their in-court

testimony. Such statements, known as prior inconsistent statements, are admissible

for impeachment purposes.” Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa.

Super. 2002). However, the prior statement must be inconsistent:

It is well-established that for a statement to be used for

impeachment, a statement actually must be inconsistent with,

and not just different from, trial testimony. Mere omissions

from prior statements do not render prior statements

inconsistent for impeachment purposes. ... “[M]ere

dissimilarities or omissions in prior statements do not suffice as

impeachable evidence; the dissimilarities or omissions must be

substantial enough to cast doubt on a witnesss’ testimony to be

admissible as prior inconsistent statements.”

Commonwealth

v. Johnson, 758 A.2d 166, 170 (Pa. Super. 2000) (internal

citations omitted).

In the case at bar, defense counsel attempted to impeach a prosecution

witness with a statement that was not inconsistent by using a prior statement that

dealt with a different topic other than the physical description of the t-shirt:

Now there was nothing that struck out about that shirt,

was it?

It had a Polo sign on it.

You couldn’t -- nothing that you could see other than this

looked like a shirt that might have been used by the individual

or individuals that were in there, am I correct?

It looked like it is.

It look like it?

Yes.

You can’t say it was? You can’t say it was a black shirt,

correct?

With a Polo sign on it.

Well, I mean you were shown -- you testified before

about the shirt, am I correct?

I did.

Did you go back to -- let’s see what exhibit it was, D4,

the last exhibit put on your witness box. Look at page 84 of

that particular document. That is the May 9th grand jury

testimony. Now again, do you remember testifying on that

date? We already went through that, am I correct?

Yes.

And you say you were shown the same shirt that Mr.

Conte showed you today. Do you remember that?

Correct.

And you were asked the following questions, Mr. Conte

asked you or at the time before the grand jury I’m going to

show you what I marked as Exhibit 1123C-2. Do you

recognize what it is in that photograph? You said yes.

Question, what does it look like to you. Answer, it looks like

one of the shirts they had on their head. Question, it looks

like one of the shirts they had over their head? Answer, yes.

Did I read that accurately?

You did.

Do you dispute what you said before?

I don’t.

And there is nothing about seeing a Polo mark or

anything like that, is there?

No.

Now --

THE COURT:

Mr. Stretton, are you offering that as an

inconsistent statement to his testimony here at trial?

MR. STRETTON: I’m offering it as an inconsistent statement.

THE COURT:

What is inconsistent about that compared to

what he just testified to?

MR. STRETTON: Well, I can tell you he said before on direct

that it is the shirt. He said when I questioned him he said that it

looks like the shirt because it has a Polo or whatever symbol

was on there. And then I read the statement to him where it

says it looks like it.

THE COURT:

It’s not inconsistent, sir. Don’t argue with

me. That is not inconsistent. Have a seat.

(N.T., 11/17/14, 196-198) (emphasis added).

There is nothing inconsistent about the two statements as the trial court

correctly noted. The prior statement does not provide a description of the t-shirt in

question. The grand jury testimony simply consists of the witness being shown a

shirt and stating that it looked like the shirts the intruders wore during the night in

question. At no time was the shirt actually described by the witness during the

grand jury transcript used by defense counsel.

Defense counsel’s questions to the witness and argument to the trial court, as

detailed above, centered on the fact that there was no mention of the “Polo Logo”

in the grand jury transcript. The issue of the “Polo Logo” was never addressed in

that grand jury transcript. Thus this was an improper attempt by defense counsel to

impeach with an omission. Mere omissions from prior statements do not render

prior statements inconsistent for impeachment purposes.

Finally, the two statements are entirely compatible with one another as the

statements do not conflict. “It looks like one of the shirts they had on their head”

is not inconsistent with “It had a Polo sign on it.” Each of these statements can

logically be true without invalidating the other statement. The statements deal with

two different topics: whether the shirt was one worn by the assailants and the

actual description of the shirt.

Petitioner next alleges that the trial court improperly interrupted his closing

argument. Initially, this issue is waived. Petitioner failed to timely object and thus

the issue has not been preserved for appellate review. Alternatively, the issue is

meritless as the trial court needed to interject to properly inform the jury that he

would provide them with the applicable law and that they needed to abide by what

he told them, not the misinformation stated by defense counsel.

During closing argument, defense counsel stated the following:

[MR. STRETTON:] Legal commentators have called

reasonable doubt as the kind of doubt that makes a reasonable

person. Hopefully, you guys are all reasonable. People hesitate

or refrain in a matter of importance.

THE COURT:

I’m going to interrupt you for a moment.

Ladies and gentlemen, that is not the exact definition I would

give you. That is not the exact legal definition of reasonable

doubt for the Commonwealth of Pennsylvania. Go ahead, Mr.

Stretton.

(N.T. 11/19/14, 160). Defense counsel then proceeded to continue his closing

argument without making a timely objection; thereby waiving the claim.

Alternatively, the issue is meritless. While defense counsel’s definition of

reasonable doubt was similar to the actual definition, it wasn’t the definition that

the trial court would provide and that the jury needed to follow. It is well settled

that “the trial court is required to instruct the jury as to the applicable law of the

case.” Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014) (citing

Commonwealth v. Washington, 549 Pa. 12, 700 A.2d 400 (1997), cert. denied, 524

U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998)). During jury instructions, the

trial court provided the following standard jury instruction:

A reasonable doubt is a doubt that would cause a reasonably

careful and sensible person to hesitate before acting upon a

matter of importance in his or her own affairs.

(N.T. 11/19/14, 247). Defense counsel’s definition was not accurate in several

respects. First, defense counsel’s definition used a “reasonable person” when the

actual definition mentions a “reasonably careful and sensible person.”

Next,

defense counsel changed it from “hesitate” to “hesitate or refrain.”

Finally,

defense counsel ignored the last part of the statement when he indicated the person

would hesitate / refrain “in a matter of importance” when the actual standard is that

it would cause the person to hesitate “before acting upon a matter of importance in

his or her own affairs.” While similar, the definition defense counsel of was not

accurate. The trial court properly interjected to prevent such confusion.

Petitioner’s also argues that the trial court erred by interrupting him when he

was discussing the burden of proof in a civil case. During his closing argument,

the following occurred:

[MR. STRETTON:] . . . If you visualize lady justice

blindfolded and if can imagine a scale as evidence, weight one

way or the other. For if it was a civil case and we were fighting

over damages, a car accident, breach of contract, the burden is

preponderance of the evidence, fifty-one percent. Some civil

cases it’s higher.

THE COURT:

Mr. Stretton it’s not fifty-one percent either.

I’ll explain to the jury as well. You may proceed.

MR. STRETTON: With all due respect.

THE COURT:

Mr. Stretton, you’re wrong in the law. It’s

my job to give this jury the law. Proceed. It’s not fifty-one

percent. It is the scales dip ever so slightly in one direction or

the other.

(N.T. 11/19/14, 160-161). Defense counsel clearly misstated the law concerning

the civil burden of proof. The Supreme Court of Pennsylvania has stated:

In Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456

(1998), this Court approved the “greater weight of the

evidence” definition of preponderance of the evidence and a

“tips the scales” instruction without “more probable than not”

language. See also Commonwealth v. Williams, 557 Pa. 207,

732 A.2d 1167 (1999) (approving “greater weight of the

evidence” as the sole definition of preponderance).

Commonwealth v. Brown, 567 Pa. 272, 284, 786 A.2d 961, 968 (2001). The trial

court properly instructed the jury concerning the burden of proof to correct defense

counsel’s misstatement of the law.

In the case at bar, the Superior Court of Pennsylvania in addressing this

claim stated in part:

Finally, in his fifth issue, Appellant argues that the trial court

improperly interfered with trial. (See Appellant’s Brief, at 68–

82). Specifically, he claims that “[the trial court’s] interference,

commenting on evidence, improper criticism and interruption

of [defense counsel’s] closing speeches[,] denied [Appellant]

his right to due process and a fair trial and impacted [his] Sixth

Amendment right to effective counsel.” (Id. at 68) (underlining

omitted). After exhaustively reviewing the record, we disagree.

[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a

basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair

judgment impossible. Thus, judicial remarks during the

course of a trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge. They may do so

if they reveal an opinion that derives from an extrajudicial

source; and they will do so if they reveal such a high

degree of favoritism or antagonism as to make fair

judgment impossible.... Not establishing bias or partiality,

however, are expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the bounds of

what imperfect men and women, even after having been

confirmed as [ ] judges, sometimes display. A judge’s

ordinary efforts at courtroom administration—even a stern

and short-tempered judge’s ordinary efforts at courtroom

administration—remain immune. However, [a] judge’s

remarks to counsel during trial do not warrant reversal

unless the remarks so prejudice the jurors against the

defendant that it may reasonably be said [that the remarks]

deprived the defendant of a fair and impartial trial.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014),

appeal denied, 627 Pa. 763, 101 A.3d 102 (2014) (citation and

emphases omitted).

In this case, Appellant first maintains that the trial court

improperly interrupted his cross-examination of Aaron

Crawford, who was in the subject house during the robbery.

(See Appellant’s Brief, at 72–76). On direct examination,

Crawford testified that the intruders who entered the home were

African American individuals, and that they wore t-shirts on

their heads as disguises, with one of the two individuals

entering his bedroom wearing a white t-shirt on his head, and

the other wearing a black one. A third person, who did not

enter the bedroom wore a white t-shirt on his head. (See N.T.

Trial, 11/17/14, at 149, 151, 169). In response to the

prosecutor’s questions about what color shirts the men were

wearing on their bodies, Crawford testified that the two men

wearing white t-shirts on their heads were also wearing white tshirts on their torsos, and the individual wearing a black t-shirt

on his head was wearing a black t-shirt on his body. (See id. at

169–70). One of the individuals disguised by a white t-shirt

struck Crawford in the head and stole a jar from his bedroom

that contained marijuana, money, and a pack of Newport

cigarettes. (See id. at 152, 155). Minutes later, police took

Crawford to a location approximately one-and-a-half blocks

from his home where he identified a jar containing a pack of

Newport cigarettes as the one taken from his home. (See id. at

161–63). He also identified a black t-shirt located “a couple

feet away” from the jar as being the one worn on the head of

one of the intruders. (Id. at 164).

On cross-examination, the following relevant exchange

occurred:

[Defense Counsel]:

Now two guys come in [the

bedroom], you said ... both of them had white t-shirts on.

...

[Crawford]: I don’t know.

[Defense Counsel]: White t-shirts on their head[s] today

earlier in front of the jury[?]

[Commonwealth]: Objection.

THE COURT: Sustained.

***

THE COURT: [Defense counsel], the testimony was that

one had a white t-shirt on. He testified that the other had a

black t-shirt. There was another man outside that had a

white t-shirt.

(Id. at 186).

After our independent review, we conclude that the trial court

was responding to an objection raised by the Commonwealth,

not condemning defense counsel. The court merely was

correcting the mistake in counsel’s recitation of Crawford’s

testimony. This does not evidence any of the partiality or bias

necessary to find that the trial court acted improperly. See

Kearney, supra at 61.

Next, Appellant complains that the trial court’s attempt to

clarify whether defense counsel was asking about the shirts

worn on the assailants’ faces or on their bodies, (see N.T. Trial,

11/17/14, at 190–91), evidenced partiality necessitating a new

trial. This issue is waived because Appellant provides only one

incoherent sentence in support of it. (See Appellant’s Brief, at

74); see also Pa.R.A.P. 2101, 2119(a)–(b). Moreover, after

reviewing the entire record in this matter, we conclude that the

trial court was clarifying counsel’s question in an attempt to

maintain the orderly presentation of this case. See Kearney,

supra at 61. This claim would lack merit, even if not waived.

Appellant additionally maintains that the trial court improperly

interfered when defense counsel was impeaching Crawford

about an allegedly inconsistent statement about a Polo insignia

on the black t-shirt. (See Appellant’s Brief, at 74–76).

Specifically, Appellant attempted to bring in Crawford’s grand

jury testimony as an inconsistent statement where, in that

statement, he had said that one of the assailant’s t-shirts was

black and, at trial, he testified that the shirt was black with a

Polo insignia on it. (See N.T. Trial, 11/17/14, at 197–99). The

trial court advised defense counsel that this was not a prior

inconsistent statement, and suggested that he read the rules

about what such a statement is. (See id. at 199). We find no

error.

A prior inconsistent statement, in relevant part, is “[a] prior

statement by a declarant-witness that is inconsistent with the

declarant-witness’s testimony and ... was given under oath

subject to the penalty of perjury[.]” Pa.R.E. 803.1(1)(A). In

other words, prior inconsistent statements are those earlier

statements, taken under oath, that are incompatible with the

witness’s trial testimony.

For example, in Commonwealth v. Buford, 101 A.3d 1182 (Pa.

Super. 2014), appeal denied, 631 Pa. 741, 114 A.3d 415 (2015),

this Court concluded that a trial court properly admitted a tape

recorded statement in which the witness identified the

defendant as the perpetrator of the subject crime as a prior

inconsistent statement, where the witness recanted her prior

identification, and the defendant’s culpability, at trial. See

Buford, supra at 1200. Similarly, in Commonwealth v. Stays,

70 A.3d 1256 (Pa. Super. 2013), a trial court properly admitted

a prior inconsistent statement identifying the defendant and the

signed photo array, where witness recanted the identification at

trial. See Stays, supra at 1262. Finally, in Commonwealth v.

Pitner, 928 A.2d 1104 (Pa. Super. 2007), appeal denied, 596

Pa. 716, 944 A.2d 757 (2008), this Court affirmed a trial court’s

admission of the witness’s guilty plea colloquy, which

identified defendant as participating in the crime with him, as a

prior inconsistent statement, where he denied defendant’s

involvement at trial. See Pitner, supra at 1108–09.

However, here, the prior statement merely lacked a detail that

was included in Crawford’s trial testimony. Therefore, the trial

court properly advised Appellant that these statements were not

incompatible and inconsistent in the sense required for

admission as a prior inconsistent statement. See Pa.R.E.

803.1(1)(A); Buford, supra at 1200; Stays, supra at 1262;

Pitner, supra at 1108–09. Hence, for all of these reasons,

Appellant’s claim that the trial court improperly interfered with

his cross-examination of Crawford, lacks merit. See Kearney,

supra at 61.

Finally, Appellant contends that the trial court “improperly

criticized and objected to [defense counsel’s] closing and

misled the jury concerning [his] discussion of the burden of

proof.” (Appellant’s Brief, at 78). This issue is waived for

Appellant’s failure to provide any pertinent authority in support

of his argument that the trial court’s interruption during his

closing argument supports a finding that it acted improperly.

(See id. at 78–81); see also Kearney, supra at 66–67 (finding

claim waived for failure to cite pertinent authority and

discussion thereof). Moreover, it would not merit relief.

In Commonwealth v. Britton, 334 Pa. Super. 203, 482 A.2d

1294 (1984), appeal denied, 509 Pa. 620, 506 A.2d 895 (1986),

similar to this case, the appellant argued that the trial court

acted improperly when it interrupted him during closing

argument as defense counsel was explaining the meaning of

reasonable doubt. See Britton, supra at 1301. In concluding

the issue had no merit, this Court observed:

The court correctly curtailed the attorney’s remarks

explaining to the jury that it was his role to instruct as to

the law. It is the duty of the trial judge to instruct the jury

as to the applicable law, and it is not error for the judge to

interrupt counsel and correct a possibly misleading

statement of the law.

Id. (citations omitted)

Likewise, here, we conclude that the trial court was acting

within its purview when it interrupted defense counsel to

correct what it perceived as a misstatement of the law. See id.

Further, the complained-of exchange, (see N.T. Trial, 11/19/14,

at 159–61), even were we to view it as “critical or disapproving

of, or even hostile to, counsel[,]” does not “reveal such a high

degree of favoritism or antagonism as to make fair judgment

impossible.” Kearney, supra at 61 (citations omitted). Hence,

Appellant’s argument in this regard lacks merit. Therefore,

after our review of the entire record, we conclude that there is

nothing in any of the trial court’s remarks to Appellant’s

counsel that rises to the level of requiring a new trial. See id.

Appellant’s fifth issue lacks merit.

Commonwealth v. Rayner, 153 A.3d 1049, 1060-1063 (Pa. Super. 2016), appeal

denied, ___ Pa. ___, 169 A.3d 1046 (2017).

For the foregoing reasons, the Respondent, the Commonwealth of

Pennsylvania, contends that the trial court did not improperly interfere with the

petitioner’s right to a fair trial.

CONCLUSION

WHEREFORE, Respondent respectfully requests this Honorable Court to

deny the Petition for a Writ of Certiorari.

Respectfully submitted,

November 14, 2017

/s/ Nicholas J. Casenta, Jr.

__________________________

DATE

________________________________

Nicholas J. Casenta, Jr., Esquire

Chief Deputy District Attorney

Counsel of Record

Thomas P. Hogan, Esquire

District Attorney

District Attorney’s Office

Chester County Justice Center

201 West Market Street, P.O. Box 2746

West Chester, PA 19380-0989

(610) 344-6801

Counsels for Respondent

No. 17-6151

____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

____________________________________________________________

MARQUIS LEE RAYNER,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

____________________________________________________________

CERTIFICATE OF SERVICE

____________________________________________________________

I hereby certify that a true and correct copy of the foregoing Brief for Respondent in

Opposition to Writ of Certiorari was served, in compliance with Rule 29, upon all parties required

to be served, by depositing the document in the United States Mail, with first-class postage prepaid,

and addressed to Counsel of Record for Petitioner at:

Samuel C. Stretton, Esquire

103 South High Street

P.O. Box 3231

West Chester, PA 19381-3231

(610) 696-4243

____________________________________________________________

November 14, 2017

/s/ Nicholas J. Casenta, Jr.

__________________________

DATE

________________________________

Nicholas J. Casenta, Jr., Esquire

Chief Deputy District Attorney

District Attorney’s Office

Chester County Justice Center

201 West Market Street, P.O. Box 2746

West Chester, PA 19380-0989

(610) 344-6801

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.