Opinion
J-A20014-15 No. 1626 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEVEN R. MILLER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence January 16, 2014, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0011245-2012 BEFORE: DONOHUE, SHOGAN and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Steven R. Miller ("Miller") appeals from the January 16, 2014 judgment of sentence entered by the Philadelphia County Court of Common Pleas following his convictions of third-degree murder, possessing an instrument of crime, carrying a firearm without a license and carrying a firearm on the public streets in Philadelphia. We affirm.
18 Pa.C.S.A. §§ 2502(c), 907(b), 6106(a)(1), 6108. The jury found Miller not guilty of first-degree murder.
The trial court summarized the evidence adduced at trial as follows:
On the afternoon of June 10, 2013, [Miller] arrived at the home of Randy Coleman at roughly 1:30pm for a cookout. (N.T. 10/24/2013, pp. 65-67, 122-24). During the festivities, [Miller] saw Aleeya McFadden, a friend of roughly two years. ([Id. at] pp. 7-8, 125-27). Ms. McFadden arrived at the cookout with Shana Sherman. [Miller] and Ms. Sherman had not met each other prior to that night. ([Id. at] pp. 9-10, 125-27). Around 10:00pm, theTrial Court Opinion, 10/31/14, at 3-12.
three individuals left the cookout and agreed to meet at PYT, a restaurant and bar located in the Piazza in the Northern Liberties section of the city; [Miller] drove himself to the bar, and the two ladies drove to PYT in their own vehicle. ([Id. at] pp. 9-11,126-27). En route to PYT, [Miller] saw a friend from school, Twan (full name not given), walking; after [Miller] told Twan of his intent to go to PYT, Twan joined [Miller] and drove the vehicle because [Miller] was feeling the effects of the alcoholic beverages he had consumed at the Coleman residence. ([Id. at] pp. 127-28). At PYT, the four sat together at a table and ordered some food and a round of drinks. ([Id. at] pp. 9-14, 129-32).
PYT provides mostly outdoor seating, and [Miller]'s party was seated at one of these outdoor tables in close proximity to another party of four. ([Id. at] pp. 65-67). This other party included four individuals - Maurice Ronnie Kimble, Wiair Hand, Jamal Chapman and Davi Son, Mr. Chapman's girlfriend. (N.T. 10/23/2013, pp. 7-11). While seated at their table, Ms. Sherman and Ms. McFadden drew the attention of several people at PYT based on their attire and because they were dancing and taking photographs and posting the photos on Instagram, a social media site. (N.T. 10/22/2013, pp. 81-83; 94). One of the photos showed Ms. Sherman sitting on [Miller]'s lap.
Shortly after arriving, Ms. Sherman proceeded to use the bathroom. (N.T. 10/23/2013, pp. 62-66). The bathroom at PYT is unisex, accommodating both men and women in one bathroom but offering privacy through individual stalls. ([Id. at] p. 69). Mr. Kimble followed Ms. Sherman into the bathroom and waited until she exited her stall. ([Id.]). At this point, Mr. Kimble tried to talk to Ms. Sherman. ([Id. at] pp. 69-71). After she spurned his advances, Mr. Kimble tried to impress her with his two-thousand dollar shoes, his Gucci watch, and his wealth in general. Id. Ms. Sherman tried to walk away, and twice Mr.
Kimble grabbed Ms. Sherman's arm in an effort to get her phone number. Id.
When Ms. Sherman arrived back at the table, she was visibly upset. Id. When asked what happened in the bathroom, Ms. Sherman recounted the incident to the rest of her party. Id. Mr. Kimble was already seated at his table with the rest of his party. Id. The incident was followed by an exchange of words between Mr. Kimble and [Miller] while each was seated at a separate table. Id. Upon Mr. Kimble's arrival back at his table, Mr. Kimble's friends had already decided to pay their tab and leave for another establishment. (N.T. 10/22/2013, pp. 116-17). As Mr. Kimble's party began to leave PYT, Mr. Kimble kept directing comments to [Miller] and his table. (N.T. 10/23/2013, pp. 69-71). Mr. Kimble, behind the other three members of his party, eventually called [Miller] over to talk with him. Id. According to [Miller], Mr. Kimble wanted to fight [Miller] and [Miller] responded by lifting up his shirt and exposing a weapon and remarked to Mr. Kimble that he could not fight Mr. Kimble because he had a weapon on him; at this point, Mr. Hand began to run away from Mr. Kimble and [Miller]. (N.T. 10/24/2013, pp. 142-43). According to [Miller], he then turned and began to walk back to his table. Id. According to [Miller], Mr. Kimble asked [Miller] why he was leaving. Id. [Miller] testified that he heard Mr. Kimble say that he was not scared of guns;[FN]3 [Miller] turned and saw Mr. Kimble with his shirt raised, exposing a gun; he testified that he saw Mr. Kimble reaching for the gun. Id. In response, [Miller] pulled out his gun and fired four shots, two of which hit Mr. Kimble and eventually killed him. At that point, [Miller] fled the scene and discarded the gun in a sewer grate. Id. at 143. Several workers and patrons immediately grabbed towels and tried to tend to Mr. Kimble's wounds. (N.T. 10/22/2013, pp. 80-81). No gun was found on or within the immediate vicinity of the decedent. ([Id. at] pp. 79-80). One member of Mr. Kimble's party - Mr. Wiair Hand - did discard a firearm in a dog park some
distance away. (N.T. 10/23/2013, pp. 12-16). It was recovered by police.
[FN]3 None of the witnesses testified to having heard [Miller]'s version of events. Only Ms. Sherman stated that she heard Mr. Kimble say that he was not afraid, but [Miller] was the only one who testified that Mr. Kimble stated that he was not afraid of guns, because Mr. Kimble had guns too.
Several witnesses testified regarding what they had seen. Ellen Clenney was the waitress attending to [Miller]'s party. (N.T. 10/22/2013, pp. 76-80). Ms. Clenney was serving [Miller]'s party for roughly a half hour before the shooting occurred. ([Id. at] pp. 78-79). Ms. Clenney stated that she saw the shooting and that the decedent did not have a gun. ([Id. at] p. 79). Ms. Clenney testified that she saw [Miller] follow Mr. Kimble, say something to Mr. Kimble, and, after words were passed between both men, shoot him. ([Id.]). Ms. Clenney testified that the shooting occurred within a breezeway and that she was roughly four (4) feet away at the time. ([Id. at] pp. 91-93). Prior to giving her statement to homicide detectives, detectives showed Ms. Cheney [sic] the photos which had been published on Instagram. They showed [Miller] and Ms. Sherman together. She recognized [Miller] as the shooter. ([Id. at] pp. 81-82).
Each member of the decedent's party testified. Davi Son stated that when one of the ladies, later identified as Ms. Sherman, left to go to the bathroom, Mr. Kimble followed her. ([Id. at] pp. 115-16). When Ms. Sherman returned to [Miller]'s table and Mr. Kimble returned to his, Ms. Son described the attitude of [Miller]'s table as agitated with gesturing toward Mr. Kimble's table. ([Id. at] pp. 116-17). Jamil Chapman, Ms. Son boyfriend at the time, asked Mr. Kimble what he had said to Ms. Sherman. ([Id. at] p. 116). Mr. Kimble chuckled, but did not describe what happened. ([Id. at] pp. 128-
29). Mr. Chapman and Wiair Hand also confirmed these events when they testified. ([Id. at] pp. 128-29). Ms. Son told Mr. Chapman to pay the bill, because she wanted to leave. ([Id. at] pp. 116-17). Ms. Son started to walk to her vehicle, but before she reached her car, she turned around to walk back to PYT to see why the rest of the party was delayed. ([Id. at] p. 117). As Ms. Son was walking back, she heard four or five gunshots and saw Mr. Kimble fall to the ground. ([Id.]). Prior to the gunshots, Ms. Son saw Mr. Kimble with his arms raised above his head in a Y-shape. ([Id.]).
Mr. Hand testified that prior to going to PYT, he, Ms. Son and Mr. Chapman were at Mr. Chapman's apartment located in an adjoining apartment complex to PYT. (N.T. 10/23/2013, pp. 7-8, 9-10). When these three knew that Mr. Kimble had arrived, they proceeded to meet him at PYT. As they were walking downstairs, Mr. Chapman gave Mr. Hand a gun to hold for "protection." ([Id. at] pp. 7-8).
After the party had ordered their food and drinks, Mr. Hand stated that Mr. Kimble followed Ms. Sherman to the bathroom. ([Id. at] p. 9). After Mr. Kimble returned, Mr. Hand estimated that the Kimble party remained at the table for roughly five or ten minutes before leaving PYT. ([Id.]). When Mr. Kimble returned from the bathroom, Mr. Hand stated that members of [Miller]'s party kept staring at them. ([Id.]). When the Kimble party left, Mr. Hand stated that Ms. Son left through the breezeway first, followed by Mr. Chapman, Mr. Hand and Mr. Kimble, who was walking slowly and arguing with [Miller]. ([Id. at] pp. 9-10). Mr. Hand stated that Mr. Kimble asked [Miller] to step outside. ([Id. at] p. 10). Mr. Hand saw [Miller] lift up his shirt and expose a weapon. Mr. Hand's visceral reaction was to run into the lobby of the apartment complex. ([Id. at] pp. 10-11). After Mr. Hand heard several shots, he came from the lobby and saw Mr. Kimble lying on the ground. ([Id. at] p. 11). Mr. Hand then realized that he was still in possession of the weapon that Mr.
Chapman had previously given him; he ran across the street to hide the gun under some weeds. ([Id.]). Mr. Hand disclosed that, prior to testifying, he had pled guilty to a violation of the Uniform Firearms Act and was expecting a sentence of two years of reporting probation. ([Id. at] pp. 5-7, 17-18).
During cross-examination, [Miller] questioned Mr. Hand's actions immediately prior to the fight. ([Id. at] pp. 22-25). Although Mr. Hand testified the he had been given the gun for protection, [Miller] questioned why the group needed protection. Id. Mr. Hand testified that the group was going out later, but denied that the future events had anything to do with potential drug deals. Id. at 23. [Miller] questioned why Mr. Hand, as the protector of the group, ran when he saw the gun exposed. ([Id. at] pp. 43-49). Mr. Hand denied being the "protector." Id. Mr. Hand, standing roughly ten yards away, stated unequivocally that Mr. Kimble did not have a gun and never lifted up his shirt. Id.
Ms. Sherman also testified and recounted the bathroom incident. ([Id. at] pp. 69-71). Ms. Sherman stated that after the bathroom incident but before the Kimble party left, words were being exchanged between Mr. Kimble and [Miller]. ([Id. at] p. 70). When the Kimble party left, Ms. Sherman saw [Miller] follow Mr. Kimble; the second round of arguments then began. ([Id. at] pp. 70-74). Ms. Sherman was standing near the table and looking directly at Mr. Kimble and could only see [Miller]'s back. ([Id. at] pp. 69-74). Ms. Sherman saw [Miller] lift his shirt and shoot Mr. Kimble twice while standing and twice more when Mr. Kimble had fallen to the ground. ([Id. at] pp. 76, 79). Ms. Sherman never saw Mr. Kimble lift his shirt or expose a weapon, either during the altercation or in the bathroom.
Mr. Chapman testified that once [Miller] raised his shirt to expose his weapon, Mr. Hand began to run.
(N.T. 10/22/2013, p. 163). Mr. Chapman stated that when [Miller] started withdrawing the weapon, [Mr. Chapman] also began to flee. ([Id.]). Mr. Chapman hid in the stairwell to an adjoining apartment complex. ([Id. at] p. 164). Mr. Chapman also testified that Mr. Kimble did not have a weapon.
Brody Smythe was the server who attended to Mr. Kimble's party. Prior to the shooting, Mr. Smythe dropped the bill on their table and waited until they paid. ([Id. at] pp. 224-29). When the Kimble party paid, they got up and walked out. ([Id. at] p. 227). Mr. Smythe then stated that [Miller] got up and ran after them to the breezeway. ([Id. at] pp. 227-28). Mr. Smythe saw Ms. McFadden screaming while chasing after [Miller]. ([Id. at] p. 228). Mr. Smythe was roughly ten (10) feet away from the location in the breezeway where the shooting occurred and was certain that he saw only one gun that night. ([Id. at] pp. 230-31).
Michael Lasday was a patron at PYT and was seated near the breezeway. When Mr. Lasday heard some shouting and two shots being fired, he turned and saw Mr. Kimble on the ground. Mr. Lasday stated that [Miller] then fired two more shots with his arm extended toward Mr. Kimble in a downward angle. ([Id. at] pp. 201-04). After the shooting, Ms. Clenney told Mr. Lasday about the two ladies at [Miller]'s table and that they had taken pictures before the shooting. ([Id. at] pp. 210-12). Mr. Lasday found the Instagram photos that were posted and informed the officers who responded to the scene. ([Id. at] pp. 205-09). Mr. Lasday did not see a gun on or near the decedent and did not see anyone run up to the decedent and remove a gun. ([Id. at] pp. 210-12).
Ms. McFadden testified for the defense. In almost all respects, Ms. McFadden testified in a fashion consistent with the other witnesses regarding the incidents leading up to the last altercation. Notably, Ms. McFadden testified that once the altercation
occurred in the breezeway, [Miller] lifted his shirt, Mr. Kimble lifted his shirt and exposed what she believed to be a gun, and that [Miller] shot Mr. Kimble. During cross-examination, Ms. McFadden was impeached with the fact that she had explicitly told detectives, during a formal interview, that Mr. Kimble never had a gun. (N.T. 10/24/2013, pp. 41-48).
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[Miller] also presented John Waters, who testified that he was in the living room of his apartment located on the sixth floor when he heard gunshots. ([Id. at] pp. 76-77). Thirty-five to forty seconds after hearing the shots, Mr. Waters went to the balcony of his apartment which looked over the street where the shooting occurred. Id. Mr. Waters could see a man wearing a pink shirt running away from PYT followed by another person running in a different direction toward a dog park located near Germantown Avenue and Hancock Street. Id. Mr. Waters testified that the second man ran to the dog park, bent over, and "did something in the woodchips and soil along the fence line." ([Id. at] pp. 77-78).
[Miller] also presented nine character witnesses. All of the witnesses testified that [Miller]'s character in the community for being a peaceful and law-abiding citizen is good. ([Id. at] pp. 103-16).
[Miller] also testified. [Miller] stated that, in May of 2009, he had just cashed a paycheck at a bank and was later standing in front of a sneaker store when a couple of individuals approached him and asked him a question. ([Id. at] p. 120). One of the individuals lifted up his shirt, pulled out a gun and shot [Miller] as he tried to run away. ([Id. at] pp. 120-21). After seven months of recuperating, [Miller] proceeded to [illegally] buy a .40 caliber Smith & Wesson to protect himself because the incident caused him to be "very paranoid." ([Id. at] pp. 121-22).
[Miller] also described the events that transpired after Ms. Sherman returned from the bathroom. ([Id. at] pp. 132-53). Once Ms. Sherman came back from the bathroom, [Miller] described Ms. Sherman as appearing frustrated. ([Id. at] pp. 133-34). [Miller] testified that his friend, Twan, asked Ms. Sherman if anything was wrong. ([Id.]). Ms. Sherman described the incident and pointed toward Mr. Kimble as the person who had confronted her in the bathroom. ([Id. at] pp. 133-34, 136). [Miller] testified that Mr. Kimble made a comment which precipitated an exchange of words. ([Id. at] pp. 136-39). As the Kimble party began to depart, Mr. Kimble twice called out to [Miller] to "come here." ([Id. at] pp. 139-43). After the second request by Mr. Kimble, [Miller] proceeded to leave his seat and approach Mr. Kimble. ([Id. at] pp. 141-43). When [Miller] reached Mr. Kimble, Mr. Kimble told [Miller] that he wanted to fight. ([Id. at] p. 142). [Miller] lifted up his shirt and told Mr. Kimble that he could not fight him because of the gun he had. ([Id.]). [Miller] heard Mr. Hand scream and run when he exposed the gun to Mr. Kimble. ([Id.]). [Miller] proceeded to turn around to go back to his table when he heard Mr. Kimble say, "Yo, where you going? I ain't running...[.] [W]e ain't worried about no guns. I'm not scared of no guns. We got guns too." ([Id. at] pp. 142-43). According to [Miller], he then turned, saw Mr. Kimble lift his shirt and reach for a gun. ([Id. at] p. 143). [Miller] stated that he reacted to the movements by Mr. Kimble by shooting him. ([Id.]). According to [Miller], the first two shots were fired while he was facing Mr. Kimble and the second set of shots were fired while [Miller] was running away. ([Id. at] p. 143). [Miller] stated that he then discarded the weapon in a sewer grate and made plans with Greyhound to flee the jurisdiction. ([Id. at] pp. 143-44). [Miller] took a bus to Log Angeles, California and, after a week and a half, left for Houston, Texas, where he was apprehended by police. ([Id. at] pp. 143-45).
During cross-examination, [Miller] was asked about his connection to Ms. McFadden. ([Id. at] pp. 154-56). [Miller] testified that the father of Ms. McFadden's child, Quan Harper, was a very good friend of his prior to Mr. Harper's murder in 2009. ([Id. at] pp. 154-57). [Miller] was asked if the 2009 shooting where he portrayed himself as a victim of a random crime was actually an act of retaliation on his part against the people who had killed his friend. ([Id. at] pp. 156-57). [Miller] denied that his 2009 shooting was a crime of retaliation. ([Id.]). [Miller] was asked if he knew anything about the Harper Family Gang. ([Id. at] pp. 157-58). [Miller] denied knowing anything about the Harper Family Gang. ([Id.]).
A jury convicted Miller of the aforementioned crimes on October 28, 2013. On January 16, 2014, the trial court sentenced him to seventeen and a half to thirty-five years of imprisonment for third-degree murder; a consecutive sentence of three and a half to seven years of imprisonment for carrying a firearm without a license; a concurrent sentence of two and a half to five years of imprisonment for carrying a firearm in Philadelphia; and a consecutive term of two and a half to five years of imprisonment for possessing an instrument of crime. In total, the trial court sentenced Miller to twenty-three and a half to forty-seven years of incarceration.
Miller timely filed post-sentence motions on January 24, 2014, which were denied by operation of law on May 28, 2014. On June 2, 2014, Miller appealed his judgment of sentence and complied with the trial court's order for the filing of a concise statement of errors complained of on appeal. The trial court issued a responsive opinion on October 31, 2014.
On appeal, Miller raises the following issues for our review:
1. Were the verdicts for murder of the third degree and related offenses against the weight of the evidence? Was the evidence conflicting and contradictory?Miller's Brief at 5-6.
2. Were the verdicts for murder of the third degree and related offenses not supported by sufficient evidence? Was the evidence conflicting and contradictory?
3. Did the trial judge err in not allowing testimony that the decedent and/or his people were soliciting workers at the restaurant on the night in question to sell drugs for him that night? Did this prevent the jury from learning what the victim was doing that night? Did this deprive the jury of information to suggest the victim was the aggressor and may have been carrying a gun because of drug dealing?
4. Were the statements of the Assistant District Attorney so inflammatory, so filled with statements of personal opinion, so derogatory and falsely accusing [trial counsel] of misconduct that the jury was prejudiced against [] Miller and his counsel, Mr. Stretton, and [] Miller was denied his right to a fair trial?
We begin by addressing Miller's challenge to the weight of the evidence, which we review according to the following standard:
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; itCommonwealth v. Tejada , 107 A.3d 788, 795-96 (Pa. Super. 2015) (citation omitted).
does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the [jury] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the [jury's] verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.
Miller contends that his convictions of third-degree murder and possessing an instrument of crime are against the weight of the evidence presented at trial, as the Commonwealth's witnesses provided "contradictory" testimony and Miller presented evidence that he shot Mr. Kimble in self-defense. Miller's Brief at 50-52. The trial court found that the verdict was not against the weight of the evidence, concluding that the testimony of the Commonwealth's witnesses was consistent that Mr. Kimble was unarmed when Miller shot him. Trial Court Opinion, 10/31/14, at 16.
Miller concedes that his convictions of violations of the Uniform Firearms Act were proper. Miller's Brief at 45-46.
We find no abuse of discretion in the trial court's conclusion. The record reflects that Miller testified that Mr. Kimble was armed at the time Miller shot him and that he only shot Mr. Kimble based upon his belief that Mr. Kimble was reaching for his gun. N.T., 10/24/13, at 143. His witness and long-time friend, Aleeya McFadden likewise testified at trial that she observed Mr. Kimble pull up his shirt and saw what she "believe[d] to be ... a handgun," qualifying her observation by stating "it was dark [outside]." Id. at 20. Ms. McFadden, however, had given a statement to the police the day of the shooting and specifically stated that she did not see Mr. Kimble with a gun. Id. at 41-42; Miller's Exhibit D-11. Ms. McFadden testified that at the time she gave her statement to police she did not say that she saw Mr. Kimble with a gun because she had been at the police station for several hours by the time she gave her statement and "was ready to go." N.T., 10/24/13, at 47. She testified that the police were "aggressive," threatened her with arrest and the removal of her daughter and "treat[ed] [her] as if maybe [she] had something to do with [the shooting]," and she gave the statement she gave to "save [her] own ass." Id. at 25, 47.
In the same statement, Ms. McFadden told police that she ran towards Miller "to stop him from shooting the [victim]" prior to the shooting occurring. Id. at 44, 45, 46; Miller's Exhibit D-11. During cross-examination, Ms. McFadden clarified that she did not mean that she knew Miller was going to shoot Mr. Kimble, only that she wanted to stop whatever was going to happen from happening. N.T., 10/24/13, at 46.
Numerous witnesses presented by the Commonwealth who were present at the time of the shooting all testified that they did not see Mr. Kimble pull up his shirt or in possession of a gun on the night in question. N.T., 10/22/13, at 79, 119; N.T., 10/23/13, at 12, 45. None of the Commonwealth's witnesses who observed the shooting testified that they saw Mr. Kimble with a gun prior to the shooting.
Although Miller presented evidence that he shot Mr. Kimble in self-defense, believing that Mr. Kimble was going to shoot him first, the jury was free to disregard that evidence and accept as credible the testimony of the Commonwealth's witnesses that Mr. Kimble was unarmed at the time of the shooting. See Tejada , 107 A.3d at 795-96. As we find no abuse of discretion in the trial court's conclusion, no relief is due.
Miller next contends that there was insufficient evidence to support his convictions of third-degree murder and possessing an instrument of crime. Miller's Brief at 54-59. His sole argument in support of this claim, however, is that the testimony presented by the Commonwealth was "contradictory and conflicting." Id. at 57-58. Specifically, Miller points to his own testimony and that of Ms. McFadden that Mr. Kimble was armed at the time of the shooting; the testimony of Commonwealth witness, Shana Sherman, who testified at the preliminary hearing that she saw Mr. Kimble raise his shirt prior to the shooting but did not see a firearm; and Wiair Hand's action of hiding a gun after the shooting, which Miller believed Mr. Hand removed from Mr. Kimble after the shooting. Id. at 57.
It is well settled that "[a]n argument regarding the credibility of a witness'[] testimony goes to the weight of the evidence, not the sufficiency of the evidence." Commonwealth v. Melvin , 103 A.3d 1, 43 (Pa. Super. 2014). Miller contends, however, that "inconsistencies and conflicts in testimony can defeat sufficiency [sic]." Miller's Brief at 56. In support of his argument he cites to our Supreme Court's decisions in Commonwealth v. Farquharson , 354 A.2d 545 (Pa. 1976), and Commonwealth v. Karkaria , 625 A.2d 1167 (Pa. 1993).
In Farquharson , our Supreme Court stated the following:
Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury's determination of credibility, there is surely no justification for an appellate court, relying solely upon a cold record, to exercise such a function.Farquharson , 354 A.2d at 550 (most internal citations omitted).
On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. To do so would require an assessment of the credibility of the testimony and that is clearly not our function.
This concept, however, must be distinguished from an equally fundamental principle that a verdict of guilt may not be based upon surmise or conjecture. Following this principle, courts of this jurisdiction have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding. Commonwealth
v. Bennett , [] 303 A.2d 220 ([Pa. Super.] 1973) (and cases cited therein). Appellant argues that the Bennett principle is applicable here. We do not agree.
The Bennett principle is applicable only where the party having the burden of proof presents testimony to support that burden which is either so unreliable or contradictory as to make any verdict based thereon obviously the result of conjecture and not reason. In the facts of the Bennett case, the Commonwealth had predicated its case upon the evidence of one individual. The record clearly established that the testimony of that witness was so contradictory as to render it incapable of reasonable reconciliation and therefore the court properly refused to allow a verdict of guilt to stand.
Our High Court applied the above holding of Farquharson in Karkaria to reverse the appellant's conviction of forcible rape. In Karkaria , the appellant was charged by private criminal complaint based upon his alleged rape of his younger stepsister. Karkaria , 625 A.2d at 1167. At trial, the Commonwealth's case rested entirely upon the testimony of the fourteen-year-old alleged victim, who testified that the rapes occurred on weekends when her mother and stepfather were out and the appellant was babysitting her. Id. at 1168. She denied that her other stepbrother, the appellant's biological brother, was in the house at the time. Id. It was uncontested, however, that pursuant to the custody arrangement between the appellant's parents, the appellant and his brother were always in the home on the same weekends. Id. It was likewise uncontested that the alleged victim's mother and stepfather only went out on the weekends. Id. at 1171. Moreover, although the alleged victim testified that the rapes occurred when the appellant babysat her, she also acknowledged that during the timeframe of the alleged rapes, she was old enough to watch herself and the appellant no longer acted as her babysitter. Id. at 1168. The Commonwealth presented no physical evidence or reports made regarding the alleged rapes. Id. at 1169, 1171.
The Karkaria Court concluded:
The total failure of the Commonwealth to present any evidence that a single act of intercourse occurred during the [timeframe alleged] casts serious doubt upon the jury's ability to reasonably conclude that any criminal activity occurred during the time period charged.Id. at 1171-72 (footnote omitted).
* * *
[Therefore,] we are compelled to conclude that the evidence presented at trial when carefully reviewed in its entirety, is so unreliable and contradictory that it is incapable of supporting a verdict of guilty, and thus, is insufficient as a matter of law. Having reached this conclusion after careful and meticulous review of the record presented to this Court, we find that the verdict of the jury was not based on anything more than speculation and conjecture.
Contrary to Miller's argument, this does not mean that any case involving allegedly contradictory or inconsistent testimony warrants consideration (let alone reversal) on sufficiency grounds. Rather, as our Supreme Court stated in Commonwealth v. Brown , 52 A.3d 1139 (Pa. 2012), "the critical inquiry" in resolving a sufficiency claim is
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.Id. at 1163-64 (quoting Jackson v. Virginia , 443 U.S. 307, 318-19, 326 (1979) (emphasis in the original)). The Brown Court clarified that despite its holding in Karkaria ,
[A] reviewing court "faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."
[The] Court considers questions regarding the reliability of the evidence received at trial to be within the province of the finder-of-fact to resolve,Id. at 1165.
and our Court will not, on sufficiency review, disturb the finder-of-fact's resolution except in those exceptional instances, as discussed previously, where the evidence is so patently unreliable that the jury was forced to engage in surmise and conjecture in arriving at a verdict based upon that evidence.
The case before us is not one that involves evidence that "is so patently unreliable that the jury was forced to engage in surmise and conjecture in arriving at a verdict based upon that evidence." Id. Rather, this case is like the vast majority of criminal cases heard in this Commonwealth in that the evidence presented by the Commonwealth was at odds with the evidence presented by the defense. It boils down to a question of which witnesses the jury found credible, and, as stated above, this is a question of the weight to be accorded to the evidence, not its sufficiency. Melvin , 103 A.3d at 43. As such, no relief is due.
As his third issue on appeal, Miller asserts that the trial court erred by not allowing him to present evidence that Mr. Kimble solicited a PYT employee on the night of the shooting to sell drugs. Miller's Brief at 59. Miller contends that this evidence was relevant and probative of his claim that Mr. Kimble had a gun on the night in question, which Mr. Hand took from him after the shooting and hid in the dog park. Id. at 60. According to Miller, evidence that Mr. Kimble and his friends attempted to recruit someone to sell drugs for him "strongly supports the aggressive nature of their activities and strongly supports the suggestion that [Mr. Kimble], himself, had a gun." Id. at 64-65.
We review challenges to the admissibility of evidence according to the following standard:
Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its discretion. Not merely an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record.Commonwealth v. Akbar , 91 A.3d 227, 235 (Pa. Super. 2014) (citation omitted).
The trial court excluded the evidence on relevance grounds. N.T., 10/21/13, at 5; N.T., 10/23/13, at 118. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Pa.R.E. 401. "Evidence that is not relevant is not admissible." Pa.R.E. 402.
The record reveals that Mr. Chapman, not Mr. Kimble, allegedly spoke with one of PYT's employees about selling drugs on the night of the shooting. See N.T., 10/21/13, at 5; N.T., 10/23/13, at 116-17. Thus, assuming only for the sake of this argument that Miller is correct that evidence that an individual sells drugs suggests that the individual carries a gun, the requested testimony would not have been probative of Miller's claim that Mr. Kimble was in possession of a gun on the night in question. Furthermore, as stated by the trial court, the jury was already aware that one of Mr. Kimble's friends, Mr. Hand, had a gun that night. Id. at 17.
As the proffered evidence did not in any way indicate that Mr. Kimble was in possession of a firearm as the defense suggested, we agree with the trial court's conclusion that the proffered evidence "was neither relevant nor probative of anything at issue in this trial[.]" Trial Court Opinion, 10/31/14, at 18. Therefore, this argument is meritless.
Miller's final issue on appeal pertains to the prosecution's closing argument, arguing therein that several instances of prosecutorial misconduct denied him his right to a fair trial. Miller's Brief at 66-80. The record reflects that Miller preserved these claims by objecting during the prosecutor's closing argument and requesting a mistrial in each instance, which the trial court denied. We review his arguments seriatim, but begin first by stating our standard of review:
A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.Commonwealth v. Caldwell , ___ A.3d ___, 2015 WL 3444594, **7-8 (Pa. Super. May 29, 2015) (en banc) (quoting Commonwealth v. Judy , 978 A.2d 1015, 1020 (Pa. Super. 2009)) (internal citations omitted). "We Got Guns Too"
It is well settled that a prosecutor has considerable latitude during closing arguments and
his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.
Miller's first claim of prosecutorial misconduct relates to statements made by the prosecutor in his closing argument regarding defense counsel's cross-examination of Ms. Sherman. The record reflects that when questioning Ms. Sherman, counsel for Miller utilized her preliminary hearing testimony. The relevant portion of the questioning proceeded as follows:
Q My client lifts up his shirt; right?N.T., 10/23/13, at 102-03 (emphasis added).
A Yes.
Q There's a gun there; right?
A Steven lifted up his shirt. I didn't see the gun.
Q You didn't see a gun, but you saw my client lift up his shirt?
A Yeah.
Q And Mr. Kimble said something right back to my clients about that; am I right?
A Yeah.
Q What did he say?
A Where are we at because I don't remember exactly? I didn't read this.
Q Turn to page 46 [of the preliminary hearing notes of testimony].
A Okay.
Q I want you to read lines 10 through 21.
A (Complying).
Okay.
Q Do you see Mr. Kimble says, I'm not afraid of a gun; right?
A Yeah.
Q We got guns too; right?
[PROSECUTOR]: Is that what's in there?
[DEFENSE COUNSEL]: I'm asking her what he said.
[PROSECUTOR]: Objection.
THE COURT: Excuse me. Excuse me. Is that your question?
[DEFENSE COUNSEL]: Yes.
[PROSECUTOR]: Very confusing.
THE COURT: You're not suggesting that it's in --
[DEFENSE COUNSEL]: No.
THE COURT: I thought that's what you were doing.
In response to this line of cross-examination, the prosecutor in his closing argument stated:
[Defense counsel] cross-examining [Ms. Sherman], "Then you said that the [p]reliminary [h]earing" [sic]. She was cross-examined on her [p]reliminary [h]earing [sic], the only one that testified. "Then you testified," and he's reading it from the [p]reliminary [h]earing notes ... that [Mr. Kimble] said this and [Mr. Kimble] said that. And then looking down at those same [p]reliminary [h]earing notes as if the next thing that was [sic] in there too, "And then [Mr. Kimble] said we got guns too."N.T., 10/25/13, at 56, 57, 58, 61; see Miller's Brief at 68-69.
Now, [defense counsel] knows that nonsense is only from what his client would spew at the end of this case. I won't call looking at the notes of testimony and then picking your head up saying, "and then [Mr. Kimble] said we got guns too," as if it was in there [sic]. Do you remember that moment? I won't call it misleading and I won't call that intentionally deceptive or underhanded.
* * *
But what's that designed to do? What's it designed to do? It's designed to divert your attention from the answers that even [Miller's] love interest, his table gave. ... It's to divert your attention when he's looking down at a piece of paper saying, "And then you said that he said we got guns too," which wasn't in there.
* * *
There's only one truth and it's thunderously clear there for anyone and all who won't be swayed and confused by silver tongues and Clarence Darrows and quick talking slickness of, "We got guns too."
The trial court overruled defense counsel's objections to each of these comments and denied his requests for a mistrial, concluding that they constituted fair comment. See id. In its written opinion, the trial court states that "the impetus of all three comments was not to disparage counsel or [Miller]. The need for the comment was to clear up in the minds of the jury the same confusion which affected the [prosecutor] and [the trial] court." Trial Court Opinion, 10/31/14, at 23. The trial court goes on to say that it understood defense counsel's questioning to imply that Ms. Sherman previously testified at the preliminary hearing that she heard Mr. Kimble say, "We got guns too," which did not occur. Id. at 23. "Because the confusing set of questions seemed to impute onto Ms. Sherman comments that she heard the decedent say that he had 'guns too,' the closing argument by the Commonwealth was meant to clear up the fact that those statements should not be attributed to her since they were not hers." Id. at 23-24. Miller asserts that these statements by the prosecutor were not fair comment, as counsel had no intention of misleading the jury or the court by questioning Ms. Sherman in the manner he did. Miller's Brief at 71.
Intended or not, our review of the record comports with the trial court's determination that the series of questions posed by defense counsel created confusion as to whether Ms. Sherman testified at the preliminary hearing that she heard Mr. Kimble say that he had a gun in his possession on the night of the shooting. It is well settled that the question of whether a prosecutor engaged in misconduct must be assessed in the context of defense counsel's conduct. Judy , 978 A.2d at 1020. "[P]rosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair." Id. (quoting Commonwealth v. Chmiel , 889 A.2d 501, 544 (Pa. 2005)). As the prosecutor's comments were based upon defense counsel's conduct at trial and the evidence presented, we find no abuse of discretion in the trial court's denial of Miller's requests for mistrials on this basis. "Wouldn't Do To A Dog"
We further note that the prosecutor's comparison of defense counsel to Clarence Darrow was taken directly from defense counsel's summation. See N.T., 10/25/13, at 6.
Miller's next claim of prosecutorial misconduct is based upon the following portion of the prosecutor's closing argument:
No one is shooting on [sic] him. No gun on [Mr. Kimble], no gun seen on [Mr. Kimble]. It wasn't a fair one. [Defense counsel] talks about a fair this and a fair that. There was nothing fair about this. His arm came down, [Mr. Kimble] was going down. His arm was angled down. Two more shots. Like you wouldn't do to a dog, he did to a human being.N.T., 10/25/13, at 65-66. Without citation to authority, Miller contends that this was "not a proper argument," and was not supported by the evidence of record. The trial court found that this was permissible and fairly based on the evidence of record. Trial Court Opinion, 10/31/14, at 24-25. We agree.
The record reflects that one of the Commonwealth's witnesses, Michael Lasday, testified that he was present at the time of the shooting and after hearing the first two shots fired, observed the shooter with his "arm pointing down at somebody on the ground," holding a gun, and then "fire twice in ... a downward angle." N.T., 10/22/13, at 200-01. Thus, the evidence presented at trial supported the statement by the prosecutor. See Judy , 978 A.2d at 1020. Moreover, our Supreme Court previously found no misconduct in a prosecutor stating that "the victim had been 'shot like a dog.'" Commonwealth v. Ragan , 645 A.2d 811, 828 (Pa. 1994). The Ragan Court found this to be permissible "oratorical flair." Id. As such, this argument does not entitle Miller to relief. Voluntary Manslaughter/Self-Defense
Miller further contends that the prosecutor engaged in misconduct by making the following statements in his summation:
Well, [defense counsel] in his opening [sic], it's not a whodunit, so you can't plead not guilty and say, yeah, I shot him and killed a man because he pissed me off. You can't say that because that's first-degree murder. That's what happened here, so you have to - the same thing with voluntaryN.T., 10/25/13, at 72-73. Miller asserts that this suggested that he "was making up a defense," and that "[t]here was absolutely no reason to be so insulting." Miller's Brief at 73. He further states that the prosecutor "was suggesting and giving his personal opinion that there was no manslaughter or self-defense and that the charge only had to be given because that's what [] Miller testified." Id. at 74. The trial court found that the prosecutor's argument was permissible as he was trying to impart upon the jury that the evidence presented did not permit a finding of self-defense or voluntary manslaughter in response to defense counsel's suggestion that words alone could constitute sufficient provocation. Trial Court Opinion, 10/31/14, at 25-26.
manslaughter. I'm not even going to honor that and spend or waste any more of your time on what is an insult to the intelligence that [defense counsel] patronizingly said he picked you for.
* * *
The judge must instruct you on both self-defense and voluntary manslaughter, but do you know why, because of [Miller's] testimony, not because it applies in this case. That's the reason.
Although it is certainly improper for a prosecutor to offer his personal opinion as to the defendant's guilt, see Commonwealth v. Bryant , 67 A.3d 716, 727 (Pa. 2013), we disagree with Miller's contention that the prosecutor did so here. It is worth noting that in his summation, defense counsel likewise informed the jury that Miller's testimony was the basis for the trial court charging the jury on self-defense and that he would not otherwise be entitled to it. See N.T., 10/25/13, at 18 (indicating that he put self-defense "on the table ... through [] Miller's testimony"). While not artful, in making the above statement, the prosecutor likewise informed the jury of the basis for providing a self-defense and voluntary manslaughter instruction in this case, phrasing it from the Commonwealth's viewpoint.
"The prosecutor must be free to present his or her arguments with logical force and vigor." Bryant , 67 A.3d at 727. As stated above, a prosecutor's statements only constitute reversible error if "the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict." Caldwell , 2015 WL 3444594, at **7-8. Simply being "insulting" does not meet this threshold if the statement finds support in the record. See , e.g., Commonwealth v. Guilford , 861 A.2d 365, 371 (Pa. Super. 2004) (finding that the prosecutor's statement in summation that defense counsel "tried to pull the wool over your eyes," and stating "that he was tempted to say that '[e]verything [that defense counsel] just said is total BS,'" was not prosecutorial misconduct, as it was based upon defense counsel's failure to put forth evidence promised in the opening statement).
Here, the only unimpeached testimony supporting a finding that Miller killed Mr. Kimble in self-defense or to find him guilty of voluntary manslaughter (instead of murder) was Miller's own testimony. As the prosecutor's statements are supported by the record, we find no abuse of discretion in the trial court's denial of Miller's requests for mistrials. Detective Morton
The next request for a mistrial came after the following portion of the prosecutor's closing argument:
And then attack Levi Morton, how dare he inconvenience [Ms. McFadden]. We're worried about inconveniencing this woman here who met him there, who everyone knows is a material eyewitness to this killing because she got there at 11:35 and she wasn't interviewed until 4:00 in the afternoon. Four and a half hours later we inconvenienced her? Yeah. That's the least. What right did he have to keep her for four hours? What right did he have if he's a good and fair, a decent homicide detective to let her go?N.T., 10/25/13, at 81. Miller argues that the prosecutor improperly gave his personal opinion that Detective Morton "was a decent homicide detective." Miller's Brief at 75-76. The trial court found, viewing the prosecutor's statement in light of defense counsel's summation, that the prosecutor was intending "to refocus priorities in the eyes and minds of the jury," weighing the inconvenience to Ms. McFadden against the need to ascertain information related to Mr. Kimble's murder. Trial Court Opinion, 10/31/14, at 26-27.
The record reflects that during his closing argument, defense counsel attempted to explain Ms. McFadden's failure to tell the police that she saw Mr. Kimble with a gun based upon the failure by police to interview her promptly. N.T., 10/25/13, at 36-37. Defense counsel stated, "What reasonable basis do you have to take someone as a witness and not let them go if they don't want to talk? Okay. What kind of conduct is that? Certainly not conduct to get to the truth of the matter. It's the kind of conduct that intimidates." Id. Viewing the prosecutor's remarks in the context of defense counsel's closing, we agree with the trial court this did not constitute misconduct. See Judy , 978 A.2d at 1020. Character Witnesses
Lastly, Miller objected and requested a mistrial following this portion of the prosecutor's summation relating to Miller's character witnesses:
You know, I didn't get to ask the question, I understand I'm not taking issue with it, I didn't get to ask the question, well, would your opinion be any different if these people in the community upon which you base our opinion about his reputation, if they knew he was just carrying around a fully loaded .40 caliber, would his reputation in the community among those people be the same for being law-abiding? They would probably say yes, which would tell you that maybe it's -N.T., 10/25/13, at 82-83. Miller asserts that the prosecutor improperly commented on his character witnesses' credibility and "raised something he could not raise." Miller's Brief at 76.
The trial court agreed with Miller that the prosecutor's statements were improper:
The comments made by the Commonwealth interjected evidence which was never contained within the four corners of the record and then concluded by telling the jury what those witnesses would probably say. Commonwealth v. Lipscomb, 317 A.2d 205, 208 (Pa. 1974) (holding that the Commonwealth's statement of how a witness would have testified, if he testified, was improper); Commonwealth v. Jubilee, 589 A.2d 1112, 1115 (Pa. Super. Ct. 1991) (holding it was improper to argue facts not in evidence). After the Commonwealth went this far, the obvious hanging inference was to characterize the testimony of those witnesses as false, thereby proffering an opinion regarding the veracity of [Miller]'s character witnesses. Commonwealth v. Lipscomb, 317 A.2d 205, 208 (Pa. 1974).Trial Court Opinion, 10/31/14, at 29. Nonetheless, the trial court found that this did not warrant the grant of a new trial. Id. at 30-31. Although the trial court recognized that "character witnesses composed the majority of [Miller]'s witnesses," it found that Miller's testimony and that of Ms. McFadden "were the most integral to reaching and supporting the justification of self-defense." Id. at 30. Furthermore, the trial court took into account the fact that Miller himself informed the jury that he had been carrying an unlicensed gun for several years prior to killing Mr. Kimble, and concluded that Miller was not prejudiced by the prosecutor's improper statements. Id.
* * *
The Commonwealth engaged in questions that could not be asked during the trial, then postulated an answer based solely on personal belief and then implicitly characterized the character witnesses as untruthful. Commonwealth v. Bolden, 323 A.2d 797, 799 (Pa. Super. Ct. 1974) (error to state that the Commonwealth had certain evidence that they wish they could tell the jury); Commonwealth v. Lipscomb, 317 A.2d 205, 208 (Pa. 1974) (holding that the Commonwealth's statement of how a witness would have testified, if he testified, was improper); Commonwealth v. Grant, 387 A.2d 841, 844 (Pa. 1978) (improper to argue that a witness lied).
There is no question that the prosecutor's remarks were improper. See Commonwealth v. Thompson , 660 A.2d 68, 74 (Pa. Super. 1995) ("Supplying answers to unasked questions is not a proper method of challenging a character witness'[] knowledge of the defendant."). While we do not condone the prosecutor's inclusion of these comments in his summation, we are constrained to agree with the trial court that the prosecutor's statement regarding Miller's character witnesses did not entitle him to a mistrial. As the trial court noted, the jury was already aware, through Miller's testimony, that in or around 2010, Miller purchased on the street an unlicensed .40 caliber gun and that he had been carrying the gun since that time up to and including on the night of the shooting. N.T., 10/24/13, at 121-22. The jury also heard the testimony that he had a good reputation in the community for being law-abiding and peaceful, which was provided by his grandmother, mother, father, aunt, two cousins, girlfriend, father's girlfriend, and friend. See id. at 103-16. Thus, regardless of whether the prosecutor included the offending remarks in his summation, the jury had to weigh that testimony with Miller's admission that he illegally possessed a gun for several years.
The blatant impropriety of the experienced prosecutor's ploy of providing a hypothetical answer to a question that could never be asked of the character witnesses poses a strong case for the declaration of a mistrial. If, however, we were to conclude that it was error for the trial court not to declare a mistrial, we would conclude it was harmless based upon the rationale provided by the trial court to support the decision to deny the request for a mistrial. See infra at 32-33; Trial Court Opinion, 10/31/14, at 30-31. We note that this was not oratorical flair or zealous advocacy - it was a distortion of the evidence peppered with personal opinion. While the trial court did not admonish counsel for this behavior, we do so here.
Furthermore, the trial court instructed the jury several times that the arguments given by the attorneys are not evidence. See N.T., 10/22/13, at 20; N.T., 10/25/13, at 4. "The law presumes the jury will follow the instructions of the court." Commonwealth v. Eichinger , 108 A.3d 821, 846 (Pa. 2014) (citation omitted).
Indeed, the prosecutor also so informed the jury at the beginning of his summation. N.T., 10/25/13, at 115.
We therefore agree with the trial court that the prosecutor's statements did not "prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict." Caldwell , 2015 WL 3444594, at **7-8.
Miller also generally raises the trial court's failure to give a curative instruction to the jury regarding any of the objected-to statements made by the prosecutor in closing. Miller's Brief at 80. The record reflects, however, that Miller never requested that a curative instruction be given, resulting in waiver of that claim. See Commonwealth v. Sandusky , 77 A.3d 663, 670 (Pa. Super. 2013).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015