Opinion
J-A13021-13 No. 2452 EDA 2011
07-22-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. MALIK D. COLLINS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 30, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004480-2010,
CP-51-CR-0004481-2010
BEFORE: STEVENS, P.J., LAZARUS, J., and COLVILLE, J. MEMORANDUM BY LAZARUS, J.
Retired Senior Judge assigned to the Superior Court.
Malik Collins appeals from his judgment of sentence imposed in the Court of Common Pleas of Philadelphia County after he was found guilty of two counts of first-degree murder, criminal conspiracy, and possessing an instrument of crime ("PIC"). Upon review, we affirm.
The Honorable M. Teresa Sarmina set out the facts in her opinion:
On May 18, 2006, just before 11 p.m., Johnny Harmon . . . and Latoya Bostic . . . were shot multiple times while sitting inside . . . Harmon's truck on the 1200 block of Dover Street inTrial Court Opinion, 4/24/2012, at 2-4 (citations and footnotes omitted).
Philadelphia. [In] 2006, . . . Harmon and his best friend whom he had known for 20 years, Nathaniel Dowling, were selling PCP together on the 1200 block of Dover Street. Neither of them [were] affiliated with anyone else . . . dealing drugs either on that block or on neighboring blocks. . . . [D]uring this time period . . . Dowling and . . . Harmon were having problems with neighboring drug dealers on "Thompson and Hollywood" which is a "block over" from where Dowling and . . . Harmon sold their drugs. [Defendants Anthony Collins and Malik Collins] were part of [a] group of individuals who were known to be present on the Hollywood Street corner and were known to sell drugs there. One week prior to the shooting, while Dowling was wrapping up his drug dealing for the night, two [men] had come over to him and told him to get on the ground and shot at Dowling as he . . . ran away. Dowling observed these two individuals run towards Hollywood Street.
Dowling recalled that, on the day of the murders, he had stopped his car in front of a bar at 30th and Stiles Streets and saw Antoine Collins, Anthony Collins' brother, standing outside. As Dowling drove off he saw Antoine make a phone call and, a short time later . . . Harmon was shot. After leaving the bar, Dowling drove to the 1200 block of Dover Street to meet up with . . . Harmon. The two friends were planning on going out to a club that night. Dowling parked his vehicle on the corner of Thompson and Dover Streets and walked back to the 1200 block of Dover Street, where he encountered [Harmon and Bostic], both of whom were sitting in . . . Harmon's truck. Harmon and Dowling spoke for about five minutes, after which . . . Harmon indicated that he was going to finish speaking with . . . Bostic and then go to [a] club with Dowling. Dowling left . . . Harmon and walked over to 1250 Dover Street where Harmon's niece, Deborah Stackhouse, lived.
Moments after Dowling walked into the 1250 Dover Street residence, he heard numerous gunshots. Dowling got down on the floor and, when the gunshots stopped, he got up, looked out the window, and saw somebody run in front of the window, stop, and backtrack. Dowling identified the person at the window as the defendant [Malik Collins] - a person whom he had known all his life. Dowling ran out the front door and saw that [Collins] had a gun in his hand and was running with a second person, whom he recognized as co-defendant Anthony Collins by the way he ran and his body structure. Dowling ran to his truck to get
his gun and ran towards Stiles Street, towards which he had seen the defendants running.
After the gunshots, Ms. Stackhouse had run up to the second floor of her residence and looked out the window; she saw . . . Harmon's truck but did not see him moving. She also saw Dowling run to his truck and retrieve a gun. Unable to find the defendants, Dowling ran to . . . Harmon's truck and saw that his friend had a gunshot wound to the head. As a police car came up Stiles Street, Dowling ran back to 1250 Dover Street to put his gun inside the residence.
Shortly before the shooting, Elise Hinton, second cousin of the two defendants, saw the two defendants walking around 29th and Thompson Streets and saw [Collins] carrying a gun in his hand. They were headed in the direction of Dover Street. Moments after they had walked by her, Ms. Hinton heard gunshots, but did not see . . . the shooting.
Nine 9mm fired cartridge casings (FCCs) and three [.]40 caliber FCCs were recovered from the scene of the shooting. The three [.]40 caliber FCCs were determined to have been fired from the same firearm although the firearm was never recovered. The 9mm firearm did turn up more than three months later when a search warrant was executed, in an unrelated case, on August 25, 2006, at the location of 1209 Windrim Street in Philadelphia. Through a cross-check, the ballistics expert was able to determine that the nine 9mm FCCs were all fired from the weapon seized during the execution of the search warrant. The individual inside the 1209 Windrim Street residence at the time the search warrant was executed was identified as Emery Hicks. He was also known as Gutterman. A photograph of Gutterman was identified at trial by defense witness Antoine Collins, Anthony Collins' brother and cousin to the defendant, as someone he knew.
Collins was tried with his alleged co-conspirator and cousin, Anthony Collins ("Anthony"), and found guilty of the above offenses. Over the course of the trial, attorneys for both Collins and Anthony objected to the Commonwealth's solicitation of testimony regarding Collins and Anthony's involvement in the drug trade. See e.g. N.T. Trial, 8/16/2011, at 113-18, 154-57; N.T. Trial, 8/18/2011, at 8-10; N.T. Trial, 8/19/2011, at 37-39. Anthony's attorney also moved for a mistrial several times on the same basis, which the trial court denied. N.T. Trial, 8/16/2011, at 122; N.T. Trial, 8/19/2011, at 39. Additionally, Collins' attorney requested a jury instruction from the judge that Hinton's testimony should be received with care and caution. N.T. Trial, 8/22/2011, at 11-12, 39. Judge Sarmina denied the motion. Id. at 40.
Anthony was found guilty of the same offenses, and has appealed his judgment of sentence to this Court. Commonwealth v. Collins, No. 292 EDA 2011. Anthony had his own counsel at trial.
The jury found Collins guilty and, on August 30, 2011, Judge Sarmina sentenced him to consecutive life sentences for each murder conviction, a concurrent 20 to 40 year sentence for the conspiracy conviction, and a concurrent 2½ to 5 year sentence for the PIC conviction. Collins filed post-sentence motions on September 2, 2011, which the trial court denied on January 5, 2012. This timely appeal followed.
Collins raises the following issues for our review:
1. Did the trial court commit an abuse of discretion by permitting the [C]ommonwealth to refer to "the Thompson University Gang" and to introduce evidence implying that appellant was involved in selling drugs?Appellant's Brief, at 4-5 (citations omitted).
2. Did the trial court commit an abuse of discretion by permitting . . . Dowling to testify that . . . Harmon had been threatened by members of a drug gang because the response consisted of hearsay and violated appellant's right of confrontation?
3. Did the trial court err by failing to grant a mistrial for several instances of prosecutorial misconduct during his closing speech?
4. Did the trial court deprive appellant of a fair trial by refusing to charge the jury that it should receive . . . Hinton's testimony with care and caution because she waited three and one-half years to contact authorities and inculpate appellant?
We have deleted the third claim raised in Appellant's Brief because it does not pertain to this case, and was clearly included in error. We have numbered the remaining claims accordingly.
Collins first argues that the trial court erred in allowing considerable testimony implicating Collins and Anthony in a drug distribution organization. Specifically, Collins complains that the trial court erred in allowing Dowling to testify that the rival drug distribution organization referred to itself as "Thompson University." Appellants' Brief, at 13; See N.T. Trial, 8/16/2011, at 115-16.
Our standard of review regarding the admissibility of evidence is an abuse of discretion. "[T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and . . . an appellate court may only reverse upon a showing that the trial court abused its discretion." Commonwealth v. Weiss, 776 A.2d 958, 967 (Pa. 2001) (citations omitted). "An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law." Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. 2011).
Pennsylvania Rule of Evidence 404 provides in relevant part:
Rule 404. Character Evidence; Crimes or Other ActsPa.R.E. 404(b).
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
Our Supreme Court has explained:
Evidence of a defendant's prior criminal activity is inadmissible to demonstrate his bad character or criminal propensity. The same evidence may be admissible for various legitimate purposes, however, provided that its probative value outweighs the prejudicial effect likely to result from its admission, . . . and an appropriate limiting instruction is given. One such evidentiaryCommonwealth v. Paddy, 800 A.2d 294, 307 (Pa 2002) (citations omitted).
purpose is . . . to demonstrate the defendant's motive for committing the crime charged.
In the instant case, the Commonwealth presented evidence that Harmon and Dowling were partners in drug distribution, and that Collins and Anthony were involved in a rival drug distribution organization. We turn first to the specific mention of "Thompson University." Collins claims that the trial court erred in "permitting the [C]ommonwealth to refer to 'the Thompson University Gang.'" Appellant's Brief, at 13. Collins objected to the single reference to Thompson University at sidebar, and the trial court sustained the objection instructing the Commonwealth to refrain from any further references. N.T. Trial, 8/16/2011, at 117-21; Trial Court Opinion, 12/23/2011, at 10. No further references were made. Id. Therefore, this part of the claim fails because the trial court sustained Collins' objection and therefore did not permit the Commonwealth to refer to Thompson University as Collins asserts.
As discussed above, the Commonwealth also introduced evidence that Collins and Anthony were involved in the drug trade. However, this evidence was not introduced to show Collins had a propensity to commit murder, but to show motive. See N.T. Trial, 8/22/2011, at 28-29. Accordingly it was not subject to the prohibition of Pa.R.E. 404(b)(1). Nevertheless, we must still determine if the trial court properly weighed the probative value of the evidence against potential prejudice. Involvement in an illegal and often violent enterprise such as drug distribution is certainly prejudicial. However, in this case it was also important evidence linking Collins and Anthony to Harmon and suggesting a motive for why they would kill him. See Commonwealth v. Childress, 680 A.2d 1184, 1187-88 (Pa. Super. 1996) (evidence appellant participated in co-defendant's drug organization admissible to show motive for killing member of rival drug organization); Commonwealth v. Williams, 660 A.2d 1316, 1321 (Pa. 1995) (evidence of motive admissible even where it has no direct bearing on guilt of crime charged). Additionally, Judge Sarmina issued a limiting instruction to the jury that it might only consider the evidence that Collins and Anthony were involved in the drug trade for purposes of establishing a motive, as required by Paddy. N.T. Trial, 8/22/2011, at 28-29; Paddy, 800 A.2d at 307. We find that Judge Sarmina did not abuse her discretion in determining that the probative value of the evidence outweighed any prejudicial effect.
Collins next argues that the trial court erred in allowing Dowling to present hearsay testimony to the court. Appellant's Brief, at 13. Collins also argues that this testimony violated his "right of confrontation." Id. While this second part of the claim is undeveloped in his brief, we assume that Collins is attacking the use of the evidence as violating his right under the Sixth Amendment to the U.S. Constitution that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. We find no grounds for relief under either part of this claim.
On the first part of this claim, we find that Collins "opened the door" to this testimony during his cross-examination of Dowling. Dowling had testified that he and Harmon had been having problems with the rival drug distribution organization. N.T. Trial, 8/16/2011, at 159-64. During his cross-examination of Dowling, Collins asked him if he had told the police about these problems, selectively quoting from a statement Dowling had made to police in which he denied that he had any problems with the rival organization. N.T. Trial, 8/17/2011, at 90-91. On re-direct, the Commonwealth further questioned Dowling about what he told police, establishing that Dowling had changed his story during the interview, and indeed had told police about problems both he and Harmon had had with the rival organization. This included Dowling recounting an incident Harmon had told Dowling about, but that Dowling did not personally witness. Id. at 101-11. Judge Sarmina informed the jury that the only reason she allowed Dowling to relate what Harmon had said was to rebut Collins' attack on Dowling's credibility, and not as substantive evidence that the encounter Harmon described had actually occurred. Id. at 111-12.
This Court had held that "[i]f a defendant delves into what would have been objectionable testimony on the Commonwealth's part, then the Commonwealth can probe into this objectionable area." Commonwealth v. Patosky, 656 A.2d 499, 504 (Pa. Super. 1995). In Commonwealth v. Fransen, 42 A.3d 1100 (Pa. Super. 2012), this Court applied a similar rationale to a detective's hearsay testimony where the defendant had asked the detective on cross-examination about his investigation into the ownership of a gun. On re-direct, the prosecutor asked the detective about hearsay evidence he had collected during the course of his investigation. This Court found that this line of questioning was permissible, as the defendant had opened the door to the subject on cross-examination. Id. at 1118.
In the instant case, Collins' counsel opened the door to Harmon's story on cross-examination by attempting to portray Dowling as an inconsistent witness who said one thing to police and another at trial. While Harmon's story was hearsay, the question at hand was what Dowling had said to the police and whether it comported with what he was testifying to at trial. Because Collins initiated this line of questioning, the Commonwealth was permitted to bring in Dowling's full statement to police to rebut Collins' challenge to Dowling's credibility. Accordingly, the trial court did not err in finding the testimony admissible, and correctly issued an instruction to the jury that they were to consider such testimony only for purposes of assessing Dowling's credibility as a witness. N.T. Trial, 8/17/2011, at 111-12.
Collins also asserts a claim under the Confrontation Clause. The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. "The Confrontation Clause applies to 'witnesses' against the accused - in other words, those who 'bear testimony.'" Commonwealth v. Holton, 906 A.2d 1246, 1252 (Pa. Super. 2006). The U.S. Supreme Court's landmark case, Crawford v. Washington, 541 U.S. 36 (2004), made clear that the Confrontation Clause enshrined the right to confront an accuser in open court and is distinct from the Rules of Evidence, which are primarily concerned with excluding material because it is inherently unreliable or confusing to the jury. Id. at 50-51. The Crawford Court did not provide an exact definition of what constituted testimonial evidence, although it did articulate that it includes "'witnesses' against the accused[.]" Id. at 51.
In this case, it is clear that Harmon's statement to Dowling was not testimonial. Dowling testified that Harmon had told him about an encounter he had had with several people Dowling identified as being associated with the rival drug organization, including Collins. N.T. Trial, 8/17/2011, at 104-5. As recounted by Dowling, Harmon did not accuse Collins of any wrongdoing, but instead told Dowling that Collins and his associates were looking for Dowling. Id. Nor did Harmon accuse Collins of committing the crime for which he was on trial. Accordingly, Harmon's statement was not testimonial, and the Confrontation Clause offers Collins no relief.
Collins next argues that the trial court erred by not granting a mistrial when the Assistant District Attorney ("ADA") allegedly engaged in prosecutorial misconduct. Judge Sarmina thoroughly addressed this issue in her trial court opinion:
The defendant raises several claims alleging trial court error by not granting a mistrial where the prosecutor engaged in several instances of prosecutorial misconduct. All of these claims are without merit.Trial Court Opinion, 4/24/2012, at 15-19 (footnotes omitted). We rely on Judge Sarmina's thorough analysis, and reject Collins' claims of prosecutorial misconduct.
"Not every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial." Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006). "Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003), quoting Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).
Furthermore, according to the Pennsylvania Supreme Court in Commonwealth v. Chmiel:
In determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in fair response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.889 A.2d 501, 543-44 (Pa. 2005). Finally, a mistrial is granted only under manifest necessity. "Mistrials should be granted only when an incident is of such a nature that its unavoidable effect is to deprive appellant of a fair trial." Commonwealth v. Johnson, 815 A.2d 563, 576 (Pa. 2002) (citations omitted). The trial court is permitted to rectify an event prejudicial to the defendant by means less drastic than granting a mistrial. See Commonwealth v. Rivera, 715 A.2d 1136 (Pa. Super. 1998). The defendant first claims that the Court erred in not granting a
mistrial where the prosecutor engaged in misconduct by arguing that the jury's oath is to "do justice and to render a verdict that speaks the truth." N.T. 8/19/2011 at 182. This, the defendant argues, implied to the jury that only a guilty verdict would satisfy their oath. The defendant is mistaken. Although the prosecutor is not permitted to express his or her personal opinion as to the guilt of the defendant, here the prosecutor did not and, rather, urged the jury to render a verdict that speaks the truth, whatever that may be. Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citing to the American Bar Association (ABA) Standards Section 3-5.8 which defines what constitutes impermissible conduct during closing arguments). It certainly cannot be said that such comment "destroyed the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment." Reid, 642 A.2d at 460 (internal citations omitted). Thus, the defendant's first allegation of misconduct is devoid of merit.
Next, the defendant argues that the prosecutor engaged in misconduct when he argued to the jury that the killing arose out of an ongoing drug war. N.T. 8/19/2011 at 155, 162. This claim is without merit since the prosecutor's comment was permissible, as it revolved around the evidence showing motive for the murder. Commonwealth v. Stern, 573 A.2d 1132, 1137 (Pa. Super. 1990) (holding that the prosecutor's comments as to drug related violence was permissible where evidence had been presented that drug violence was the motive for the killing). As discussed supra, in relation to the first issue the defendant raised, evidence was presented from which the jury could reasonably have inferred that the violence stemmed from rivalry over drug sales on neighboring blocks. The prosecutor's argument was a reasonable inference based on the evidence presented and, therefore, the defendant has failed to establish that the prosecutor engaged in misconduct.
The defendant's third issue surrounding prosecutorial misconduct is that the prosecutor engaged in misconduct when he approached counsel's table, pointed at the defendants, and stated that they pumped shot after shot into the victims. N.T. 8/19/2011 at 182. First, the argument by the prosecutor that it was these defendants who were responsible for the multiple shots to the two victims was certainly a fair inference based on the evidence presented. Moments after the gunshots stopped, Dowling was able to identify the defendant, holding a gun,
running from the scene. The mere fact that the prosecutor pointed at the defendants in arguing that they were responsible for the killings, did not fix bias and prejudice in the minds of the jury. The defendants had been sitting at the defense table during the entire trial and it was clear that it was they who were being accused. The act of pointing at them did not present any information or evidence to the jury that was outside the record or beyond the scope of what is the normal course of a criminal trial. Thus, this claim is also without merit.
The defendant's final issue of prosecutorial misconduct alleges that the prosecutor committed misconduct when he argued that "Gutterman" was the defendants' flunky even though there was no evidence to support this assertion. The defendant is incorrect. At trial, evidence was presented that when a search warrant was executed at 1209 Windrim Street in Philadelphia in relation to an unrelated case, an individual known as Gutterman was found inside that residence. A 9mm firearm was retrieved as a result of the search and, during a cross-check, a ballistics expert was able to determine that the 9mm FCCs found at the scene of the shooting had all been shot from the 9mm firearm found at the 1209 Windrim Street property. First, the prosecutor's argument that Gutterman was the defendants' flunky was a permissible argument based on the fact that the gun that was recovered at his premises was the murder weapon and a link between the two defendants and Gutterman was established when Antoine Collins, Anthony Collins' brother and the defendant's cousin, identified a photograph of Gutterman. N.T. 8/18/2011 at 124-25. The prosecutor was free to argue that there was a connection between these individuals in light of the identification Antoine made and the murder weapon found in Gutterman's residence. The prosecutor's statement constituted one isolated statement in his closing argument and cannot be said to have diverted the jury from its duty to decide the case on the evidence. The defendant is entitled to a fair trial, not a perfect trial. Commonwealth v. Schoff, 911 A.2d 147, 157-58 (Pa. Super. 2006). Moreover, the Court instructed the jury in its final charge that the speeches of counsel are not part of the evidence. N.T. 8/22/2011 at 38. The jury is presumed to have followed the instructions of the trial court. Bridges, 757 A.2d at 883.
Accordingly, because the prosecutor did not engage in misconduct during closing arguments, a mistrial was not
warranted and, thus, this Court did not commit error. Therefore, this entire claim fails.
Finally, Collins argues that the trial court erred by not instructing the jury to receive the testimony of Hinton with care and caution due to her delay in speaking to police. We find that no such instruction was required.
We must first determine if, as the Commonwealth asserts and Judge Sarmina found, this issue has been waived because Collins did not make a specific objection after Judge Sarmina had instructed the jury. The Rules of Criminal Procedure provide that "[n]o portions of the charge nor any omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." Pa.R.Crim.P. 647(B). Our Supreme Court has held that "the mere submission and subsequent denial of proposed points for charge that are inconsistent or omitted from the instructions actually given will not suffice to preserve an issue, absent a specific objection or exception to the charge or the trial court's ruling respecting the points." Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005); see Commonwealth v. Baker, 963 A.2d 495, 505-06 (Pa. Super. 2008).
In the instant case, there were two co-defendants each represented by his own counsel. Both defense attorneys requested a care and caution instruction regarding Hinton before Judge Sarmina charged the jury. N.T. Trial, 8/22/2011, at 12. Judge Sarmina declined to issue the instruction. Id. After Judge Sarmina instructed the jury, counsel for Anthony specifically renewed his prior objections, preserving the issues for appeal. N.T. Trial, 8/2/2011, at 39; see Pressley, 887 A.2d at 225. Judge Sarmina then stated ". . . your objection is noted. Anything else?" N.T. Trial, 8/22/2011, at 40. Counsel for Collins responded "No, Your Honor." Id.
The question here is whether Anthony's objection was sufficient to preserve the issue for Collins. In Commonwealth v. Myers, 403 A.2d 85 (Pa. 1979), our Supreme Court found that where four of five co-defendants raised an issue at the trial level, that issue was preserved for the fifth, non-objecting defendant. Id. at 87. The Myers Court, citing to Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974), reasoned that the rationale for requiring a party to explicitly raise an issue at trial was to notify the trial court of a potential error, so that that any error could be corrected, and the trial court could make a ruling on the question. Reasoning that this rationale had been met where the appellant's co-defendants had raised the issue, the Myers Court found that the appellant could proceed. Id., but see Commonwealth v. Woods, 418 A.2d 1346, 1352 (Pa. Super. 1980) (at trial of appellant and two co-defendants, one co-defendant's counsel objected, other co-defendant's counsel joined objection, but appellant's counsel did not join; issue found waived).
Our Supreme Court's most recent decision on preservation of issues related to jury charges is Pressley, and we note that the Pressley Court's reasoning is similar to its earlier rationale in Myers. The Pressley Court, like the Myers Court, explained that the strict application of the objection rule is to afford the trial court "an opportunity to avoid or remediate potential error, thereby eliminating the need for appellate review of an otherwise correctable issue." See Pressley 887 A.2d at 224. Accordingly, we find that Myers applies to the instant case, and while Collins did not explicitly and independently object to the trial court's instruction, we find that the issue was properly placed before the trial court's attention by Anthony's counsel, and thus Collins did not waive the issue.
Turning to the merits of the claim, we find that Collins is not entitled to relief. We review challenges to jury instructions "under an abuse of discretion standard and may reverse not where the court fails to use the specific language requested by the accused, but rather only where the applicable law is not adequately, accurately and clearly communicated to the jury." Commonweath v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002).
Collins has not cited to any authority requiring that the trial court issue a special instruction where a witness did not come forward until after a significant delay. Indeed, this issue speaks to the credibility of the witness, and it is axiomatic that such determinations are the sole province of the jury, and Judge Sarmina reminded the jury of this in her charge. N.T. Trial, 8/22/2011, at 19. Counsel for Anthony fully cross-examined Hinton about the over three-year delay between the incident and when she spoke to police, and so the jury was fully aware of this. N.T. Trial, 8/17/2011, at 158-74. Accordingly, Judge Sarmina acted well within her discretion in determining that the jury required no special instruction regarding the delay and this claim fails.
After our review of the record, the parties' briefs, and the relevant law, we find no error or abuse of discretion on the part of the trial court.
Judgment of sentence affirmed. Judgment Entered. ___________
Prothonotary