J-S67010-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

LAZARUS MIAL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2414 EDA 2016

Appeal from the Judgment of Sentence July 11, 2016

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

No(s): CP-51-CR-0002762-2014

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 27, 2017

Appellant Lazarus Mial appeals from the Judgment of Sentence entered 

in the Court of Common Pleas of Philadelphia County on July 11, 2016, at 

which time he was sentenced to life in prison without parole along with a 

concurrent term of five (5) years to ten (10) years in prison and two 

concurrent terms of two and one-half (2 1⁄2) to five (5) years in prison following 

his convictions of First Degree Murder, violations of the Uniform Firearms Act, 

and Possession of an Instrument of Crime.1 We affirm in part, vacate in part, 

and remand for resentencing. 

The trial court briefly set forth the relevant facts herein as follows: 

[Appellant] and Latosha Porter had an ongoing relationship 

until June of 2009, when Ms. Porter evicted [Appellant] from her 

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1 18 Pa.C.S.A. §§ 2502(a), 6105(a)(1), 6106(a)(1), 6108, 907(a). 
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home. On July 27, 2009, Ms. Porter met John ‘Peanut’ Hairston 

and invited him back to her house at 2046 Margaret Street in 

Philadelphia. Somehow [Appellant] learned that Ms. Porter had a 

man over her house and he stormed over there, pounding on the 

front door and yelling to be let in for a considerable amount of 

time. [Appellant] finally got into the house and confronted 

‘Peanut.’ [Appellant] chased ‘Peanut’ out of the house and down a 

dead-end alley, where [Appellant] shot Hairston five times, 

resulting in his untimely death. 

Trial Court Opinion, filed 1/4/17, at 3. 

In her opening statement to the jury, defense counsel represented that 

Appellant had no involvement in Mr. Hairston’s death. In fact, the first line of 

the statement was as follows: “[Appellant] did not kill John Hairston. 

[Appellant] is absolutely innocent of these charges.” N.T. Trial, 6/30/16, at 

38. Shortly thereafter, counsel characterized this case as one where Appellant 

was not just presumed innocent but was “in fact absolutely innocent” and 

declared Mr. Hairston’s family deserved a “real investigation into who actually 

killed him.” N.T. Trial, 6/30/16, at 45-46. Counsel suggested the incident 

was part of a robbery and that someone else had killed the victim. Id. at 40-

41. 

Prior to closing arguments, the trial court held a charging conference at 

which time defense counsel requested a voluntary manslaughter jury charge:

Defense Counsel: We would be asking for a charge of 

voluntary manslaughter. In this case, obviously, we presented a 

defense that [Appellant] is innocent. He did not do this. However, 

the jury doesn’t have to listen to me. My opening, her opening, 

my closing is not evidence. 

N.T. Trial, 7/6/16, at 136. 
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Over the Commonwealth’s objection and following additional argument 

and further research, the trial court ruled the next day that it would provide 

the standard voluntary manslaughter charge unless Appellant chose to testify 

and say “something different.” N.T. Trial, 7/7/16, at 4, 6. The Commonwealth 

responded as follows:

I don’t know if they’re going to argue it or not, but assuming that 

they’re asking for the charge and they do not argue anything 

about it in their closing, then I think the Commonwealth should 

be permitted to say in my closing, that the only reason that they’re 

getting that charge is because the defense asked for it because I 

think that’s only fair under the scenario.

They don’t get to have their cake and eat it too. They don’t 

get to just say, the judge gives this instruction because you 

decided to give it because you thought it was appropriate. They 

asked for it and then they’re not going to argue alternative 

defenses because if they strategically decide not to do that, which 

is probably a good decision, because that’s not a good idea, but 

then they’re still going to get the charge. 

Id. at 11. At that juncture, the trial court stated that it “will address that 

when we get to the time that it’s appropriate after they’ve closed, if that’s 

going to be part of the issue.” Id. 

Appellant ultimately did not testify in his own defense at his trial. In 

asking for a ruling on the issue of whether the Commonwealth could comment 

regarding which party had requested that the voluntary manslaughter 

instruction be given, defense counsel stated “if [the prosecutor] is allowed to 

comment, I’m just going to withdraw my request to give the charge at all 

because it’s not for the jury to know who asked for what charge. . . if, for 

some reason, she is allowed to comment on it and it leaves the impression 
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that we think we need some kind of safety net, then I’d rather not have it.” 

N.T. Trial, 7/8/16, at 7. A sidebar discussion was then held off the record, 

after which the trial court ruled as follows:

The Court: My ruling stays the same. If you wish to have 

voluntary manslaughter presented, the Commonwealth is going to 

be allowed, in this case, to tell the jury why that charge is being 

asked and that the defense asked for it. 

Id. at 11. At that time, Appellant withdrew his request to have the trial court 

instruct the jury on voluntary manslaughter. The trial court 

contemporaneously noted the defense wished to object to the charge that it 

was about to provide the jury because it would not include a charge on 

voluntary manslaughter. Id. Appellant also placed an objection on the record

following the jury charge. Id. at 165. 

Appellant filed a timely appeal following the imposition of his sentence.

After seeking and receiving an extension of time in which to file a concise 

statement of the matters complained of on appeal, Appellant filed the same 

on November 30, 2016. In his brief, Appellant presents the following 

Statement of the Questions Presented: 

1. Did not the trial court err in predicating a defense requested 

voluntary manslaughter charge to the jury, on the improper 

condition that the Commonwealth would then be allowed to tell 

the “jury why that charge is being asked and that the defense 

asked for it [?]” 

2. Did not the trial court err by allowing the Commonwealth to 

instruct the jury that by seeking the manslaughter jury 

instruction, the defense was admitting the intentional act of 

killing, and that the reason for the requested instruction was an 

attempt by the defense to mislead the jury, and would not such 
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an instruction violate the defendant’s rights to due process and a 

fair trial under both the Federal and Pennsylvania constitutions?

3. Was not the five to ten year sentence of incarceration 

imposed on the offense of carrying a firearm on the public streets 

of Philadelphia illegal because the maximum sentence for a 

misdemeanor of the first degree is not more than five years?

Brief for Appellant at 4. As Appellant’s first two issues challenge the trial 

court’s instructions to the jury, we address them together and begin with our 

standard of review: 

Our standard of review regarding jury instructions is limited to 

determining whether the trial court committed a clear abuse of 

discretion or error of law which controlled the outcome of the case. 

Error in a charge occurs when the charge as a whole is inadequate 

or not clear or has a tendency to mislead or confuse rather than 

clarify a material issue. Conversely, a jury instruction will be 

upheld if it accurately reflects the law and is sufficient to guide the 

jury in its deliberations.

The proper test is not whether certain portions or 

isolated excerpts taken out of context appear erroneous. 

We look to the charge in its entirety, against the 

background of the evidence in the particular case, to 

determine whether or not error was committed and 

whether that error was prejudicial to the complaining 

party.

In other words, there is no right to have any particular form of 

instruction given; it is enough that the charge clearly and 

accurately explains the relevant law.

James v. Albert Einstein Med. Ctr., 2017 WL 4001763, at * 5-6 (Pa.Super. 

Sept. 12, 2017) (citation omitted). This Court has stated that the trial court 

is not mandated to charge the jury on voluntary manslaughter when such a 

charge is requested, and it may not provide the charge absent evidence to 
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support such a verdict. Commonwealth v. Browdie, 654 A.2d 1159, 1164 

n. 3 (Pa.Super. 1995). 

Appellant maintains that in light of the evidence the Commonwealth 

presented at trial, “voluntary manslaughter was an issue and the trial court 

(not the Commonwealth’s attorney) was required to instruct the jury on the 

crime of voluntary manslaughter and because it would not, a new trial is 

warranted.” Appellant posits the trial court’s ruling was in error “as the giving 

of instructions to the jury is a judicial function that cannot be delegated to the 

prosecutor” and that this error was compounded by the court’s “allowing the 

Commonwealth to instruct the jury that by seeking the manslaughter charge, 

the defense was admitting the intentional act of killing (N.T. 7/6/16, 139) and 

that the reason for the requested charge was an attempt by the defense to 

mislead the jury (N.T. 7/8/16, at 8)” which statements were “improper and 

prejudicial” and constituted “prosecutorial misconduct.” Brief for Appellant at 

13, 26. 

Appellant further contends that “[a]s defense counsel did not put on a 

defense, she was free to argue any defense reasonably suggested by the 

evidence” and in doing so reasons a jury instruction “that [A]ppellant was 

conceding that he killed intentionally invaded the province of the jury to 

determine the facts and what, if any, crimes were committed. It took away 

the jury’s option of finding the Commonwealth’s evidence lacking and that a 

reasonable doubt existed as to [A]ppellant’s guilt on the murder charge, or, 
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on the contrary, that [A]ppellant in their estimation was guilty but only of 

voluntary manslaughter.” Brief for Appellant at 25. Appellant argues that the 

prosecutor’s disparaging comments and its “proffered explanation to the jury 

for why the defense counsel was requesting a manslaughter instruction 

constitute[] prosecutorial misconduct.” Brief for Appellant at 26. Appellant 

concludes that “[a]s the trial court in this case abdicated its duty to instruct 

the jury by delegating its authority to the Commonwealth’s attorney, 

[A]ppellant was denied due process and a fair trial. A new trial should be 

granted.” Id. at 18. 

Following a review of the record, we agree with the trial court’s 

determination that Appellant’s claims lack merit. In its Opinion filed pursuant 

to Pa.R.A.P. 1925(a), the trial court cited to caselaw for the proposition that 

there is no prohibition against the Commonwealth being permitted to discuss 

applicable principles of law to the jury in its closing argument, so long as it 

does so clearly and accurately. Trial Court Opinion, filed 1/4/17, at 4 (citations 

omitted). The trial court also relied upon long-standing precedent holding

that while prosecutors may not express their personal opinions concerning a 

defendant’s guilt, they have considerable latitude during closing argument to 

comment upon the evidence presented at trial and appropriate inferences that 

may be drawn therefrom as well as to present their arguments with “oratorical 
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flair.” Id. at 5.2 The trial court stressed that the standard jury instruction for 

voluntary manslaughter concedes that a defendant killed another but 

maintains that the extenuating circumstances surrounding the crime reduce 

its severity; therefore, the Commonwealth rightfully could have argued to the 

jury during closing arguments that it was not interested in a voluntary 

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2

In this regard, our Supreme Court has held:

[a] prosecutor “has great discretion during closing argument” and 

is “free [to present] his [or her closing] arguments with logical 

force and vigor.” Commonwealth v. Eichinger, –––Pa. ––––, 

108 A.3d 821, 836 (2014) (citation omitted). Thus, we will allow 

“vigorous prosecutorial advocacy” if “there is a reasonable basis 

in the record for the [prosecutor's] comments.” Commonwealth 

v. Robinson, 581 Pa. 154, 864 A.2d 460, 516 (2004) (internal 

quotation marks omitted). Stated differently, “[p]rosecutorial 

comments based on the evidence or reasonable inferences 

therefrom are not objectionable, nor are comments that merely 

constitute oratorical flair.” Commonwealth v. Chmiel, 612 Pa. 

333, 30 A.3d 1111, 1146 (2011). In reviewing an allegation of 

prosecutorial misconduct, we will find that “[c]omments by a 

prosecutor constitute reversible error only where their 

unavoidable effect is to prejudice the jury, forming in their minds 

a fixed bias and hostility toward the defendant such that they 

could not weigh the evidence objectively and reach a fair verdict.” 

Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 33 

(2008).

Commonwealth v. Cash, 635 Pa. 451, 471, 137 A.3d 1262, 1273 (2016), 

cert. denied, Cash v. Pennsylvania, 137 S. Ct. 1202, 197 L. Ed. 2d 249 

(2017). 
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manslaughter finding and, instead, believed a first degree murder conviction 

was appropriate. Id. at 5-6.3 

Appellant characterizes the hypothetical statements the prosecutor may 

have made during closing argument as usurping the exclusive responsibility 

of the trial court to charge the jury as to the applicable law. However,

Appellant's arguments pertain only to what prejudice he surmises he would 

have suffered if defense counsel did not mention voluntary manslaughter in 

her closing and if the prosecutor commented regarding the source and 

applicability of a voluntary manslaughter charge which ultimately was never 

even given. In fact, the prejudicial effect of the prosecutor’s alleged 

“disparaging” remarks is non-existent, for the trial court did not provide a 

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3

In fact, our Supreme Court has held that following its charge on voluntary 

manslaughter, a trial court did not err in telling the jury that in its opinion 

under the facts and circumstances of the case, voluntary manslaughter would

not be an appropriate verdict where the court also clearly had instructed the 

jury that it was not bound by the court’s opinion as to the lack of evidence to 

support such a verdict. Commonwealth v. Cook, 597 Pa. 572, 636–37, 952 

A.2d 594, 633 (2008). The Court stressed the defendant had failed to present 

any evidence to support a voluntary manslaughter conviction and that in his 

closing argument defense counsel repeatedly asserted that the 

Commonwealth had not presented any credible evidence defendant had been 

involved in the killing. The Court concluded the trial court's “charge left it 

open for the jury to return an unsupported verdict of voluntary manslaughter, 

which would have been an unwarranted windfall for appellant.” Id. at 638–

39, 952 A.2d at 633–34.
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voluntary manslaughter instruction due to Appellant’s own request that it not 

be given.

Appellant’s objection to what the jury charge lacked, i.e. a voluntary 

manslaughter charge, was the result of defense counsel’s tactical decision not 

to request that charge, not the trial court’s alleged abdicating of its duty to 

charge the jury in favor of the Commonwealth who made no comments in its 

closing argument concerning voluntary manslaughter. If the instruction had 

been given, if the prosecutor discussed it during closing arguments, and if 

Appellant believed the prosecutor’s comments were improper, he could have 

objected at the appropriate juncture during trial or asked for a mistrial. As 

such, Appellant has failed to show, in fact, that his constitutional rights were 

violated or that he was prejudiced, as the voluntary manslaughter instruction 

was not given due to a strategic decision defense counsel made not to seek 

it. See e.g. Commonwealth v. Norman, 549 A.2d 981, 986 (Pa.Super. 

1988) (en banc) (“[w]hen counsel chooses to refuse appropriate curative 

instructions for legitimate tactical reason, the defense may not plead prejudice 

on appeal”).4

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4

Indeed, even if the Commonwealth had mentioned an anticipated voluntary 

manslaughter instruction in its closing argument, as it states in its appellate 

brief, the purpose of the discussion would have been to dispel any resultant 

confusion to the jury due to the Commonwealth’s failure to charge Appellant 

with voluntary manslaughter at the outset of the case. The Commonwealth 

reasons, “[h]ad the trial court insisted on that uncharged offense without 

argument or comment from the parties, it would have given the appearance 
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In fact, Appellant's brief contains no challenge to or claims of inadequacy 

regarding the actual jury charge which included the lesser alternative of thirddegree murder and a clear directive that “[y]ou have the right to bring in a 

verdict finding [Appellant] not guilty or finding him guilty of one of these types 

of criminal homicide.” The trial court provided the jury with an opportunity 

to exercise its mercy-dispensing power in defining the elements of two types 

of criminal homicide. The jury chose to find Appellant guilty of first-degree 

murder. N.T. Trial, 7/8/16, at 152, 155-56. Thus, Appellant’s first two claims 

lack merit.

The final issue Appellant presents herein challenges the legality of his 

sentence for violating 18 Pa.C.S.A. § 6108, Carrying firearms on public streets 

or public property in Philadelphia. Appellant did not raise this claim in his 

Statement of Errors Complained of on Appeal and, instead, raised it for the 

first time in his appellate brief.5 Brief for Appellant at 14. However, a 

challenge to the legality of one’s sentence cannot be waived. See 

Commonwealth v. Barnes, ___ Pa. ____, ___151 A.3d 121, 124 (2016) 

(citation omitted) (“[A]n exception to the issue-preservation requirement 

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that the court was proposing the verdict.” Commonwealth’s Brief at 6. 

Regardless, as defense counsel admitted during trial and as the trial court 

informed the jury, opening and closing statements of counsel do not constitute 

evidence. N.T. Trial, 7/6/16, at 136; N.T. Trial 7/8/16, at 161-62. Thus, 

Appellant mischaracterizes any such potential statements as the 

Commonwealth’s act of instructing the jury in lieu of the trial court. 

5 The trial court did not consider this issue in its Rule 1925(a) Opinion. 
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exists where the challenge is one implicating the legality of the appellant's 

sentence.”). 

The Commonwealth concedes the sentence on this conviction, a 

misdemeanor of the first degree under 18 Pa.C.S.A. § 6119, is illegal because 

the five (5) year to ten (10) year sentence exceeds the statutory maximum. 

See Commonwealth’s Brief at 10; 18 Pa.C.S.A. § 106(b)(6) “[a] crime is a 

misdemeanor of the first degree if it is so designated in this title or if a person 

convicted thereof may be sentenced to a term of imprisonment, the maximum 

of which is not more than five years.” Because the trial court erroneously 

sentenced Appellant regarding this charge, we remand so that the trial court 

can resentence Appellant thereon. See Commonwealth v. Wilson, 594 Pa. 

106, 934 A.2d 1191 (2007) (where appellate court's disposition upsets trial 

court's original sentencing scheme, remanding for resentencing is appropriate 

disposition).

Judgment of sentence vacated in part. Case remanded for resentencing 

on the 18 Pa.C.S.A. § 6108 conviction only. Judgment of sentence affirmed in 

all other respects. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2017