J-S52025-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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WILLIAM F. COLON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1701 EDA 2015

Appeal from the Judgment of Sentence January 16, 2015, 

in the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No: CP-51-CR-0015317-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED JANUARY 10, 2017

I join the Majority’s analysis of Appellant’s first, second, third, and 

fourth issues. However, I dissent as to the fifth and sixth issues.

The trial court abused its discretion in failing to give at least a curative 

instruction regarding the improper comments made by the prosecutor in the 

course of Juan Inglesias’ cross-examination. Accordingly, I would reverse. 

As our Supreme Court has explained,

It is well established that a prosecutor, just as a defense 

attorney, must have reasonable latitude in presenting a case to 

the jury and must be free to present his or her arguments with 

“logical force and vigor.” Counsels’ remarks to the jury may 

contain fair deductions and legitimate inferences from the 

evidence presented during the testimony. The prosecutor may 

always argue to the jury that the evidence establishes the 

defendant’s guilt, although a prosecutor may not offer his 

personal opinion as to the guilt of the accused either in 

argument or in testimony from the witness stand. Nor may he or 
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she express a personal belief and opinion as to the truth or 

falsity of evidence of defendant’s guilt, including the credibility of 

a witness. 

However, not every intemperate or uncalled for remark by 

the prosecutor requires a new trial. As we have stated many 

times:

[C]omments 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 that they could not weigh the 

evidence objectively and render a true verdict.” 

Furthermore, the prejudicial effect of the prosecutor’s 

remarks must be evaluated in the context in which they 

occurred. As the United States Supreme Court has stated:

The “consistent and repeated 

misrepresentation” of a dramatic exhibit in evidence 

may profoundly impress a jury and may have a 

significant impact on the jury’s deliberations. 

Isolated passages of a prosecutor’s argument, billed 

in advance to the jury as a matter of opinion not of 

evidence, do not reach the same proportions. Such 

arguments, like all closing arguments of counsel, are 

seldom constructed in toto before the event; 

improvisation frequently results in syntax left 

imperfect and meaning less than crystal clear. While 

these general observations in no way justify 

prosecutorial misconduct, they do suggest that a 

court should not lightly infer that a prosecutor 

intends an ambiguous remark to have its most 

damaging meaning or that a jury, sitting through 

lengthy exhortation, will draw that meaning from the 

plethora of less damaging interpretations.

In applying these standards on appellate review, we have 

stated:
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Whether this standard has been violated by the 

language of the district attorney is not in the first 

instance our decision to make. It is the duty of the 

trial judge to rule upon the comments; this Court is 

limited in its review to whether the trial court abused 

its discretion.

Commonwealth v. D’Amato, 526 A.2d 300, 309–10 (Pa. 1987) (citations 

omitted).

Here, the prosecutor asked Inglesias, “After the shooting, after the 

second shooter went up this way, what did [Appellant] -- what did he tell 

you about the second shooter, the guy who put a bullet in the back of 

someone’s head in front of your house, what did [Appellant] say about 

that?” N.T., 1/14/2015, at 35-36. Defense counsel then stated “There is no 

testimony that he said anything. If he didn’t say anything, how could 

[Inglesias] testify to what was said?” Id. The trial court took counsel’s 

statement as an objection, which it sustained. Immediately thereafter, the 

prosecutor stated “He didn’t say anything, sir, because he was the one 

committing that murder. He didn’t know who he was because he did it.” Id. 

Counsel’s request for a mistrial was denied and there was no curative 

instruction given. While I am cognizant that the statements and questions 

of counsel are not testimony, I cannot agree with the Majority that the 

prosecutor’s inappropriate comment was “invited by defense counsel and

was made in response to the question, even if rhetorical, posed by defense 

counsel.” Majority Memorandum at 12. Rather, the statement constitutes an 
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improper commentary on the guilt of Appellant, the unavoidable effect of 

which was to form in the jury’s mind a prejudice against Appellant, such that 

the partiality of the jury’s decision is put into question. Thus, it was 

reversible error for the trial court to deny counsel’s contemporaneous motion 

for a mistrial.

Additionally, I agree with Appellant that the trial court erred in 

instructing the jury to consider his untimely notice of alibi defense in 

evaluating his alibi testimony. N.T., 1/15/2015, at 17-18. 

Rule of Criminal Procedure 567 provides that, 

[i]f the defendant fails to file and serve the notice of alibi as 

required by this rule, the court may exclude entirely any 

evidence offered by the defendant for the purpose of proving the 

defense, except testimony by the defendant, may grant a 

continuance to enable the Commonwealth to investigate such 

evidence, or may make such other order as the interests of 

justice require.

Pa.R.Crim.P. 567(B)(1) (emphasis added). The purpose of this subsection is 

to cure any prejudice suffered by the Commonwealth due to a defendant’s 

late filing. Thus, any “other order” entered by a trial court must be crafted 

with this purpose in mind.1

 

1 Orders in this vein may include permitting the Commonwealth to explain to 

the jury, through cross-examination of the defendant, why it was 

unprepared to address an untimely alibi defense. See Commonwealth v. 

Servich, 602 A.2d 1338, 1343 (Pa. Super. 1992).
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Here, the trial court chose to allow Appellant’s alibi testimony, but 

instructed the jury as follows.2

In this case, the defendant has presented evidence of an 

alibi, that is, that [he] [she] was not present at the scene or was 

rather at another location at the precise time that the crime took 

place. 

The rules of criminal procedure require that a defendant 

file a notice of alibi defense within 30 days of the 

defendant’s arraignment. No such notice was filed with 

the clerk in this case.

You should consider this evidence, both the alibi and the 

failure to give timely notice to [(sic)] the alibi, along with all 

the other evidence in the case in determining whether the 

Commonwealth has met its burden of proving beyond reasonable 

doubt [(sic)] that a crime was committed and that the defendant 

himself committed it. 

The defendant’s evidence that he was not present, either by 

itself or together with other evidence, may be sufficient to raise 

a reasonable doubt of his guilt. If you have a reasonable doubt 

of the defendant’s guilt, you must find him not guilty.

N.T., 1/15/2015, at 17-18 (emphasis added).

This instruction makes no effort to cure any prejudice the 

Commonwealth may have suffered due to Appellant’s untimely disclosure, in 

clear contradiction of the purpose of Rule 567(B)(1). Rather, the court’s 

charge required the jury to consider the untimely notice in determining 

Appellant’s guilt or innocence. This is not a proper function for a jury. 

 

2 The Commonwealth did not request a continuance.
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Accordingly, I would reverse on this basis as well and grant Appellant a new 

trial.