J.S26045/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

KAREEM HOGAN, :

:

Appellant : No. 2723 EDA 2013

Appeal from the Judgment of Sentence August 27, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0003016-2012

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 13, 2015

Appellant, Kareem Hogan, appeals from the judgment of sentence of 

twenty-six to fifty-two years’ imprisonment imposed after a jury found him 

guilty of murder of the third degree,1conspiracy,2and carrying firearms in 

public in Philadelphia.3 Appellant claims the evidence was insufficient to 

sustain the conspiracy conviction and the trial court erred in refusing to 

instruct the jury on voluntary manslaughter—heat of passion. In nine 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(c).

 

2 18 Pa.C.S. § 903.

3 18 Pa.C.S. § 6108. 
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additional arguments, Appellant asserts the Commonwealth committed 

prosecutorial misconduct by suggesting he threatened witnesses, referring to 

his pretrial incarceration, arguing inferences not supported by the trial 

evidence, and mischaracterizing the issue of self-defense.4 We are 

constrained to affirm. 

On January 6, 2012, Appellant was arrested and charged with general 

homicide, conspiracy, and related weapons violations for the October 27, 

2011 shooting death of Joel Negron (“decedent”).5 Appellant proceeded to a 

jury trial that commenced on June 25, 2013. The trial court summarized the 

evidence presented at Appellant’s jury trial.6

On October 27, 2011, at approximately 6:30 p.m., in 

response to a radio call, Police Officer Antonio Smith, upon 

arrival at Waterloo and Westmoreland Streets in 

Philadelphia, saw [the decedent] lying on the sidewalk of 

Westmoreland Street. Police Officer Smith examined [the 

decedent’s] injuries, noting multiple bullet wounds. The 

officer did not observe a weapon on or about [the 

decedent]’s body. Within minutes an ambulance arrived 

and took [the decedent] to the hospital. 

At 7:17 p.m., [the decedent] died at Temple University 

Hospital. Dr. Edwin Lieberman, an Assistant Medical 

Examiner and an expert in forensic pathology, concluded 

that [the decedent] died of gunshot wounds to his back 

and torso. [The decedent] had suffered three gunshot 

wounds. One shot was to his upper back, which fractured 

 

4 As noted below, we have reordered Appellant’s questions in this appeal. 

5 Appellant was eighteen years old at the time of the incident. Appellant’s 

codefendant Brandon Sanabria was seventeen years old. 

6 Sanabria entered a negotiated plea on June 20, 2013. 
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his sixth rib and hit his right lung. One shot was to his 

upper left back, which fractured his sixth rib and hit his left 

lung. One shot was to his front right side of the hip which 

exited through the right buttock. 

Police Officer Robert Flade of the Crime Scene Unit 

arrived at the scene at 8:08 p.m. Officer Flade recovered 

seven fired cartridge casings from the scene: five .25-

caliber fired cartridge casings and two .40-caliber fired 

cartridge casings. 

According to Police Officer Raymond Andrejczak, an 

expert in firearms identification, the five .25-caliber fired 

cartridge cases recovered from the scene were fired from 

the same firearm. The two .40-caliber fired cartridge 

casings were fired from a separate firearm. The two 

projectiles recovered from [the decedent]’s body by the 

medical examiner’s office were both .25-caliber and fired 

from the same firearm. 

At trial, many of the witnesses in this case gave 

testimony that was inconsistent with the statements they 

gave to police. On November 25, 2011, Johnny Walker 

gave a statement to police. Walker explained that he was 

walking in the area of Front and Westmoreland Streets 

when he heard yelling and saw [Appellant] and Brandon 

Sanabria. [The decedent] and a friend were walking from 

Waterloo and Westmoreland Streets towards Hope Street. 

[The decedent] said “there’s that bitch ass nigga right 

there.” [Appellant] responded “[o]h, he [is] pulling.” 

[Appellant] and Sanabria pulled out their guns and started 

shooting at [the decedent. The decedent] said “[t]hat’s all 

your bitch ass nigga got?” [The decedent] walked to 

Waterloo and Westmoreland Street and then fell on the 

sidewalk.

The day after the murder, Sanabria showed Walker a 

silver gun and asked if he wanted to buy it. Walker 

refused. Walker also told the police that he always saw 

[Appellant] carrying a black .40-caliber firearm on his 
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hip.[7] At trial, Walker recanted, denying that gave the 

answers in his statement. 

On November 26, 2011, Fredrick Miller, [Appellant’s] 

[stepfather], gave a statement to police. In the 

statement, Miller explained that on the night of the 

murder, he was at home at 3335 Waterloo Street when he 

heard about seven gunshots. [Appellant] and Sanabria ran 

into the house and put guns on the floor. Miller told 

[Appellant] and Sanabria to leave and they did. Monte 

Hogan, Miller’s stepson, put the guns in a bag in the 

corner. About two hours later, Sanabria called and 

informed Monte Hogan that he was sending a woman to 

retrieve the guns. A woman called Goida arrived and took 

the guns to Sanabria’s house.

The next day, [Appellant] came to Miller’s house and 

told him that he had been walking with Sanabria on 

Westmoreland Street when he saw [the decedent] walking 

with Edwin Laboy and Onehida Rodriguez. [The decedent] 

told [Appellant], “there goes those bitch niggas from 

Waterloo.” [The decedent] was trying to reach for a 

weapon, so [Appellant] pulled out his .40-caliber and tried 

to shoot, but it jammed. Sanabria then pulled out his .25-

caliber firearm and shot [the decedent]. [Appellant] 

explained that the reason they were arguing with [the 

decedent] was that Yaniz Estrada had a conflict with 

people from Mascher Street about selling PCP on Waterloo 

Street. [Appellant] and Sanabria didn’t want Estrada 

selling PCP on the block because they sold PCP on Mascher 

Street. 

At trial, although Miller confirmed that himself, [the 

decedent], and Estrada sold PCP in the area of Waterloo 

and Westmoreland Streets, he denied that [Appellant] and 

 

7 Walker previously gave a statement to police on November 15, 2011. A 

detective read into the trial record his summary of the November 15th 

statement, in which Walker described that the decedent’s friend was 

reaching into his jacket. Based on that statement, Appellant suggested at 

trial that either the decedent or Laboy was reaching for a weapon when 

Appellant and Sanabria shot. We note, however, the November 15th 

statement was not contemporaneously transcribed or signed by Walker. 
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Sanabria ran into hi[s] home with guns after the murder. 

Instead, he said that on the night of the murder after he 

heard gunshots he saw a group of people from Mascher 

and Mutter Streets yelling and running around.

On November 26, 2011, Rafael Torres-Burgos gave a 

statement to police describing that on the night of the 

murder he was walking down Westmoreland Street to pick 

up his girlfriend when he heard arguing and yelling. 

Torres-Burgos heard about three gunshots and saw 

[Appellant] who was holding a gun and Sanabria running 

from Waterloo Street towards Howard and Hope Street. 

At trial, Torres-Burgos denied seeing [Appellant] and 

Sanabria shoot [the decedent]. Torres-Burgos testified 

that he was in his home when he heard two or three 

gunshots. Torres-Burgos ran outside and saw [the 

decedent] laying on the ground and two people he did not 

recognize running away.

On November 27, 2011, Yaniz Estrada gave a statement 

to police. In the statement, Estrada explained that about 

two or three days before [the decedent]’s murder she was 

on the 3300 block of Waterloo Street when she was 

approached by [Appellant] and Sanabria. They asked 

Estrada if she was selling drugs and told her that she 

needed to stop selling. Estrada told them she was not 

selling drugs and they walked away. On the day of the 

murder, at about 5:00 p.m., Estrada arrived on the 3300 

block of Waterloo Street. While she was in the area she 

said hello to [the decedent] and then went home. 

At trial, Estrada confirmed that she was on the block on 

the day of the murder and had said hello to [the 

decedent]. Estrada denied that two days before the 

murder, [Appellant] and Sanabria had approached her. 

She also denied selling drugs at the time of the murder.

On November 27, 2011, Edwin Laboy gave a statement 

to police. Laboy stated that on the night of the murder 

when it was just starting to get dark, Laboy ran into [the 

decedent] near Westmoreland and Waterloo Streets. As 

he was talking to [the decedent, Appellant] and Sanabria 

approached them. Laboy started to walk away and heard 
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four or five gunshots. Laboy saw [Appellant] and Sanabria 

run away. Laboy explained that [Appellant] and his friends 

had been selling PCP on the block and wanted rent money 

from Estrada, who was working with Miller and [the 

decedent]. 

At trial, Laboy confirmed that he had seen [the 

decedent] near Westmoreland and Waterloo Streets 

shortly before [the decedent] was murdered, but testified 

that he was on a different street when he heard about four 

or five gunshots. Laboy walked back to Westmoreland and 

Waterloo Streets and went to [the decedent] who was shot 

and dying on the street. Laboy explained that a few days 

before [the decedent]’s murder, . . . there was an 

argument because [the decedent], Miller, and Estrada 

wanted to sell PCP on the block but [Appellant] did not 

want them to sell PCP without paying rent for it.

Trial Ct. Op., 10/29/13, at 2-6 (record citations omitted). Appellant did not 

testify at trial and presented no evidence on behalf of his defense. 

We reproduce the following portions of the trial record relevant to 

Appellant’s prosecutorial misconduct claims. The Commonwealth, in its 

opening statements, argued:

To understand this case, you need to understand that this 

area near Waterloo Street and Westmoreland is a very 

high-crime, very high-drug area. 

[Appellant’s counsel]: Objection. Objection.

THE COURT: That’s overruled.

[Commonwealth]: It’s the kind of area where people don’t 

want to come forward and talk to police. People don’t 

want to get involved.

[Appellant’s counsel]: Objection.

THE COURT: Overruled.
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[Commonwealth]: It’s the kind of area where, when the 

police are on the scene, even though people saw what 

happened, they’re not going to run up to the police and 

say, hey, I got information, take my name, let me give a 

statement. It’s actually quite the opposite. People don’t 

want to get involved, and they certainly don’t want people 

to see them interacting with the police. To understand this 

case, you need to understand why that is, the fear that 

comes along with being involved in cooperating with the 

police and telling them the truth and coming to court and 

testifying and pointing the finger, and it’s essential that 

you understand that to understand this case.

* * *

. . . The witnesses are not paid actors that are going to get 

up there and act the way you think they should. These are 

people that live in our city, and they have the pressures 

that come along with testifying, that fear that I talked 

about, that code of the streets that say you don’t talk to 

detectives, you don’t testify, and you certainly don’t point 

the finger from that stand.

No one in this case is probably going to cooperate, 

meaning no one is going to willingly get on this stand and 

tell you what happened the way they told detectives what 

happened and point the finger in court.

* * *

. . . So I’m giving you the heads-up that many of these 

witnesses that get on the stand are going to be hostile. 

They’re going to be hostile. They might be belligerent. 

They won’t want to answer questions. They’re going to 

deny that they saw anything. They may deny that they 

gave a statement. They’re going to do everything they 

can to distance themselves from that statement that they 

gave to detectives where they identified the people who 

committed this murder. If that happens, you may say, 

well, What are we doing here? These witnesses take the 

stand. They say they didn’t see anything. Well, it doesn’t 

stop there because all of you took an oath that you would 

listen to all the evidence and not make up your mind until 
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you heard all of the evidence and Her Honor’s instructions 

on the law.

And the law is smart, and the law has a way to get 

justice. And the law says if someone gets on that stand 

and they recant, that means they get on that stand and 

they say I didn’t see nothing, I didn’t say nothing, I didn’t 

say that, and you think that they’re not telling the truth on 

that stand, that they’re just acting out of fear or the code 

of the street, but you agree that what they said in their 

signed statement to detectives was the truth, then you 

may consider that signed statement as evidence, 

substantive evidence as to whether or not this defendant 

committed this crime. . . . You decide, Do I believe what’s 

on that witness stand or do I believe what the detectives 

wrote down that the witnesses told them in that 

statement? I want to give you a heads-up to look out for 

that, and that’s probably going to happen in this case. 

N.T., 6/25/13, at 29-30, 35, 37-39.

During the Commonwealth’s direct examination of Walker, the 

following exchange occurred:

[Commonwealth]: And, sir, when I did talk to you in the 

room before you testified at the preliminary hearing [and 

recanted a prior statement to police], didn’t I ask you to 

make sure nothing happened to you in prison, meaning no 

one had got to you in prison?

[Appellant’s counsel]: Judge, I object.

THE COURT: Let’s not do the leading questions. Rephrase 

it. That’s sustained.

[Commonwealth]: The nature of my conversation with you 

with respect to being in prison on open cases, wasn’t it in 

the respect of [sic] if anyone had got to you in prison or 

threatened you in prison?

[Appellant’s counsel]: Objection.

THE COURT: That’s overruled.
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[Commonwealth]: Do you remember, sir?

* * *

[Commonwealth]: When I came in there to speak with you 

before the preliminary hearing, wasn’t it in the context of:

While you’re in prison, did anyone get to you or threaten 

you in relation to this case?

[Walker]: No. You told me that when you found out that 

me and [Appellant] were both in the same jail, you moved 

me over to another cell.

[Commonwealth]: Right, because I found out that you and 

[Appellant]—

[Appellant’s counsel]: Objection.

THE COURT: Hold on. [To the Commonwealth,] You can’t 

testify, . . . but I want to make sure. 

You were told that you were changed to a different jail 

or [Appellant] was?

[Walker]: No. She moved me to E block.

THE COURT: You got moved to a different block?

[Walker]: Yeah.

THE COURT: All right.

[Appellant’s counsel]: My objection, meaning it’s 

overruled?

THE COURT: It’s overruled. I asked the question. He was 

transferred to a different block.

But, ladies and gentlemen, I am going to instruct you at 

this point, we’re going into this testimony as to how it 

affects the witness’s credibility, his believability, what he 

said, whether he said different things. 
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There’s absolutely no evidence at this point that there’s 

any inappropriate behavior by [Appellant] in this case, and 

that’s not why this testimony is being elicited.

All right. You may proceed.

[Commonwealth]: I’m sorry. You said that I moved you to 

another block. Why was that?

THE COURT: What was his understanding?

[Commonwealth]: What was your understanding of why 

that was?

[Walker]: Because you thought [Appellant] wanted to do

something to me.

[Appellant’s counsel]: Objection. May I see Your Honor at 

sidebar.

THE COURT: That’s overruled and we’ll go to sidebar later.

But I will once again instruct the members of the jury, 

again, the DA’s mental state and/or the detective’s is not 

relevant here. What’s relevant is what the witness, his 

mental state.

Proceed.

[Commonwealth]: Prior to me moving you to another 

block, were you and [Appellant] in the same block?

[Appellant’s counsel]: Objection.

THE COURT: That’s overruled. Were you on the same 

block?

[Walker]: Not on the same block. We were, like, maybe 

across. Like, maybe, like, there are four pods on the same 

unit.

THE COURT: Okay.
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[Commonwealth]: So you were across in the same unit?

THE COURT: He just said he was not in the same pod, but 

it was in the same general area.

[Walker]: Yes.

Id. at 195-96, 197-200.

During the Commonwealth’s direct examination of Laboy, the following 

exchanges occurred:

[Commonwealth]: Now, did you stay and tell the police, I 

was just talking to him seconds before he got shot?

[Laboy]: No, I never told them that. That was never my 

intention to talk to the cops.

[Commonwealth]: You don’t like cops; right? 

[Laboy]: Nope.

[Commonwealth]: Did you stay and tell the police about 

what was going on over drug territory on the block? 

[Laboy]: No.

[Commonwealth]: Why not? 

[Laboy]: Because that’s not me.

[Commonwealth]: Now—

[Laboy]: It is now. 

[Commonwealth]: What do you mean it is now? 

[Laboy]: Never mind.

[Commonwealth]: Go ahead. What do you mean it is now?
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[Laboy]: What do I mean? It’s because when the word get 

out, I’m done in Philadelphia. In other words, I got to 

leave.

[Commonwealth]: What do you mean by that?

[Appellant’s counsel]: Judge, I object.

THE COURT: That’s overruled.

[Commonwealth]: What do you mean, sir?

[Laboy]: My life will be in danger.

[Appellant’s counsel]: Objection.

[Laboy]: That’s what I mean.

THE COURT: Overruled.

[Commonwealth]: Your life will be in danger when it gets 

out, what, that you talked to the police?

[Laboy]: That I’m sitting here and spoke to the police, 

period.

* * *

[Commonwealth]: Do you remember identifying that 

picture of [Appellant from a photographic array on 

November 27, 2011]? 

[Laboy]: Yes. 

[Commonwealth]: Okay. Is that the person that was Fred 

[Miller]’s stepson[, i.e., Appellant] or stepson’s friend?

[Laboy]: I don’t know if he was a friend or a stepson. Like 

I said, it was a bunch of them there. I don’t know which 

one was his stepson.

[Commonwealth]: Okay. Did you sign and circle that 

picture?
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[Laboy]: Yes.

[Commonwealth]: And is that the same person that’s in 

the courtroom?

[Laboy]: I don’t know. It don’t look like him. Like I said, 

he been in jail a long time. He look different.

[Appellant’s counsel]: Objection.

THE COURT: Well, no. The statement stands. . . . 

N.T., 6/26/13, at 65-67, 74-75. 

During closing statements, the Commonwealth argued:

[Commonwealth]: Just because [the decedent] said, There 

goes those bitch ass niggas, doesn’t mean he’s the 

aggressor. I want to just comment on that because the 

word “nigga,” I don’t like it, but I think in this case it 

wasn’t meant to call anyone a racial slur.

[Appellant’s counsel]: Objection.

THE COURT: That’s overruled.

* * *

[Commonwealth]: And by the way, just because [the 

decedent] said words to somebody, words under the law 

does not mean that someone is justified to gun you down. 

Words never justify deadly force.

[Appellant’s counsel]: Objection.

[Commonwealth]: And her Honor will explain that.

THE COURT: That’s an argument that the Commonwealth 

is making in this case. That objection is overruled, but I 

suggest that the DA confine her remarks to this case, not 

generally. 

* * *
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[Commonwealth]: In this case I told you in the opening 

that the witnesses in this case are probably going to recant 

on that stand. They’re probably going to come in and say 

I didn’t say that or distance themselves from their 

statement, and we talked about why.

Fear is a very powerful thing. No one wants to be a 

witness in a homicide case, and there’s no evidence in this 

case that [Appellant] or Brandon or anyone on their behalf 

directly threatened anyone. But it’s not that. It’s the 

general fear, and this is where your common sense and 

your collective street smarts come in. People do not want 

to be involved in a homicide. 

People do not want it to get out on the street that they 

are cooperating with the police and taking the stand and 

pointing the finger because, unfortunately, in our city, 

there is a culture of no snitching. There is a street code 

where it says if you go in there and you tell on somebody 

in court, you’re a snitch. And you don’t have to like it. 

You don’t have to agree with it. I want it to stop, but 

unfortunately it’s the reality. 

I can’t go home and I can’t provide body guards for 

every witness to protect them after they testify in this 

case. Any witness that gives a statement to detectives, 

even if they come on the stand and recant, has to always 

look over their shoulder wants [sic] it gets out that they 

told.

[Appellant’s counsel]: Judge, I object to all of this.

THE COURT: That’s sustained. Let’s move on. Let’s talk 

about this case.

[Commonwealth8]: In this case, these witnesses were able 

to tell the truth to the detectives, but when they got on the 

stand, they would not admit that they said that in court. 

 

8 We have added this notation to the Commonwealth based on the tenor of 

the closing statement. The original transcript did not contain a notation 

delineating the trial court’s ruling from the Commonwealth’s resumption of 

its argument. 
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And, again, it comes from that fear that they know what 

these young guys are capable of.

* * *

The medical examiner, the autopsy. The [decedent] 

was shot a total of three times. Two of them are in the 

back which lodged into his body, and they were .25-

caliber, which are small. It’s not a powerful gun, but if you 

get someone in the right spot, it’s obviously deadly. 

These are the two times in the victim’s back. One of 

them is in his torso in his pelvis area and out of his 

buttocks. This is likely the .40, the .40 is a very powerful 

gun, and that bullet from that .40 went right though his 

body as opposed to the smaller caliber .25s which lodged 

in his body. Absolutely that shot came from his 

[Appellant’s] gun. 

[Appellant’s counsel]: Objection.

THE COURT: Again, members of the jury, it’s going to be 

your recollection of the evidence that controls, and you will 

take whatever inference from the evidence that’s been 

presented. 

* * *

[Commonwealth]: This is not a self-defense case. Let’s 

get something straight. Self-defense means that he is 

completely justified. If you find that there’s self-defense in 

this case, you are saying you, [Appellant], when you’re 

trying to assert your drug turf, when you’re carrying that 

gun that you don’t have a license to carry and no business 

carrying, when you’re going around threatening people, 

and you go up to them and you pull out your gun and you 

blast, that you are completely justified. That’s what selfdefense means. 

[Appellant’s counsel]: Objection.

THE COURT: That’s overruled. 

* * *
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Using deadly force is an extreme that is only supposed 

to be used if he has a sincere and reasonable belief that 

he’s in a kill-or-be-killed situation.

* * * 

First of all, nothing in the record shows that he sincerely 

and reasonably believed that he was going to be killed. 

Nothing on this record. 

[Appellant’s counsel]: Objection.

[Commonwealth]: He doesn’t duck. He doesn’t hide. 

THE COURT: Again, that’s overruled. The jury will make 

that decision. 

* * *

[Commonwealth]: There’s no evidence that [Appellant] did 

not provoke the situation. Actually, he did provoke the 

situation. He provoked the situation when he made that 

threat to two days before to [Estrada]. He provoked the 

situation when him and his friend were carrying an 

unlicensed gun that they have no business carrying. He 

provoked the situation by trying to assert his authority 

over that block selling PCP. So he does not have clean 

hands. You cannot in this scenario ever claim selfdefense. 

[Appellant’s counsel]: Objection.

THE COURT: That’s overruled. 

N.T., 6/28/13, at 48-50, 52-53, 70-71, 76, 80. 

Following the arguments by counsel, the trial court instructed the jury 

on first- and third-degree murder, and voluntary manslaughter based on an 

unreasonable belief in the need to use deadly force, and self-defense. Id. at 

119, 122, 124-25, 126-28. The court also issued cautionary instructions 
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regarding testimony of Appellant’s incarceration and the witnesses’ concerns 

about testifying. Id. at 109-11. The court denied Appellant’s request for an 

instruction on voluntary manslaughter—heat of passion. N.T., 6/27/13 at 

96. 

On July 1, 2013, the jury found Appellant guilty of third-degree 

murder, conspiracy, and carrying firearms in public in Philadelphia. On 

August 27th, the trial court sentenced Appellant to twenty to forty years’ 

imprisonment for third-degree murder, a consecutive five to ten years’ 

imprisonment for conspiracy, and a consecutive one to two years’ 

imprisonment for carrying firearms in public in Philadelphia. On September 

5th, Appellant filed timely post-sentence motions challenging the sufficiency 

of the evidence regarding third-degree murder and the weight of the 

evidence.9 The trial court denied those motions on September 9th.

Appellant filed a timely notice of appeal on September 18, 2013, and, 

after timely requesting an extension, complied with the trial court’s order to 

submit a Pa.R.A.P. 1925(b) statement. This appeal followed.

 

9 Appellant’s post-sentence motion did not include claims of inadmissible 

evidence, improper arguments to the jury, and allegations of “prosecutorial 

misconduct.” Nevertheless, Appellant objected contemporaneously at trial 

and preserved all issues raised in this appeal. See Pa.R.Crim.P. 

720(B)(1)(c) (“Issues raised before or during trial shall be deemed 

preserved for appeal whether or not the defendant elects to file a postsentence motion on those issues.”). Moreover, Appellant’s sufficiency 

challenge to his conspiracy conviction was preserved in his Pa.R.A.P. 

1925(b) statement. See Pa.R.Crim.P. 606(A)(7). 
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Appellant presents the following questions, which we reproduce, but 

reorder as follows: 

[ ]WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE 

CHARGE OF CRIMINAL CONSPIRACY TO COMMIT MURDER?

[ ]DID THE TRIAL COURT ERR BY REFUSING TO CHARGE 

THE JURY ON HEAT OF PASSION VOLUNTARY 

MANSLAUGHTER BECAUSE THE EVIDENCE SUPPORTED

THE GIVING OF THAT INSTRUCTION?

[ ]DID THE TRIAL COURT ERR IN OVERRULING AN 

OBJECTION TO TESTIMONY THAT APPELLANT HAD BEEN 

IN JAIL A LONG TIME?

[ ]DID THE TRIAL COURT COMMIT AN ABUSE OF 

DISCRETION BY OVERRULING NUMEROUS OBJECTIONS 

AND A MOTION FOR A MISTRIAL MADE AFTER TESTIMONY 

THAT PERMITTED THE JURY TO INFER THAT APPELLANT 

THREATENED WITNESSES?

[ ]DID THE TRIAL COURT COMMIT AN ABUSE OF 

DISCRETION IN OVERRULING A MOTION FOR A MISTRIAL 

MADE AFTER THE PROSECUTOR ARGUED DURING HER 

OPENING ARGUMENT THAT WITNESSES WERE RELUCTANT 

TO TESTIFY BECAUSE OF FEAR, WHICH PERMITTED THE 

JURY TO INFER THAT APPELLANT WAS THE SOURCE OF 

THE THREATS?

[ ]DID THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION IN FAILING TO GRANT A MISTRIAL 

FOLLOWING SEVERAL OBJECTIONABLE COMMENTS THE 

PROSECUTOR MADE DURING HER CLOSING SPEECH?

Appellant’s Brief at 4. 

Preliminarily we summarize Appellant’s eleven arguments 

encompassed in his questions presented. First, Appellant argues the 

evidence was insufficient to convict him of conspiracy. Id. at 18-28. He 

claims the evidence only established his presence at the scene and his 
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spontaneous reaction to the decedent’s aggression. According to Appellant, 

this evidence did not support the jury’s conclusion that he came to a criminal 

agreement with Sanabria to shoot the decedent. In support, he refers this 

Court to inter alia, Commonwealth v. Kennedy, 453 A.2d 927 (Pa. 1982), 

Commonwealth v. Menginie, 383 A.2d 870 (Pa. 1978), Commonwealth 

v. Fields, 333 A.2d 745 (Pa. 1975), Commonwealth v. Wilson, 296 A.2d 

719 (Pa. 1972), and Commonwealth v. Johnson, 513 A.2d 476 (Pa. 

Super. 1986). 

Second, Appellant argues the trial court erred in failing to instruct the 

jury on voluntary manslaughter—heat of passion. Appellant’s Brief at 38-45. 

He claims evidence that the decedent’s use of a slur constituted sufficient 

provocation for the court to instruct the jury regarding a killing committed in 

the heat of passion.

Appellant’s remaining arguments allege prosecutorial misconduct 

and/or error in the rulings of the trial court overruling his objections and 

requests for mistrial. Specifically, Appellant directs his third argument to 

Walker’s testimony that the Commonwealth transferred him within a jail at 

which Appellant was also housed. Id. at 31. Appellant’s fourth and fifth 

arguments focus on Laboy’s testimony that he believed his life was in danger 

and Laboy’s reference to Appellant’s incarceration. Id. at 29-31, 36-38. 

Sixth, Appellant argues the Commonwealth impermissibly argued to the jury 

that he threatened the witnesses. Id. at 32-36, 55-57. Appellant’s 
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underlying argument in these three claims is that the Commonwealth 

burdened his presumption of innocence and suggested he was a person of 

bad character and acted in conformity with that character. See Pa.R.E. 

404(b) (stating evidence of wrongs not generally admissible to prove 

character and action in accordance character, but may be admissible for 

another purpose such as motive). 

Seventh, Appellant asserts the trial evidence did not support the 

Commonwealth’s argument that he caused the non-fatal wound to the 

decedent’s hip. Appellant’s Brief at 57-60. Eighth, he challenges the 

Commonwealth’s closing statement that the decedent’s slur, “bitch ass 

nigga,” was not intended as a racial insult. Id. at 49-52. 

Appellant, in his ninth argument, claims the Commonwealth’s assertion 

that “[w]ords never justify deadly force” misstated the law of self-defense. 

Id. at 52-55. Tenth, he asserts the Commonwealth mischaracterized the 

law of self-defense by arguing that he did not sincerely believe in the need 

for self-defense. Appellant’s eleventh argument focuses on the 

Commonwealth’s argument that self-defense was not available based on his 

criminal behavior. Id. at 60-64. 

For the reasons that follow, we conclude no relief is due in light of 

Appellant’s first, second, and fourth through tenth argument. Although 

Appellant’s third and eleventh arguments implicate prosecutorial misconduct 
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and/or trial error, we conclude he has not demonstrated sufficient prejudice 

to establish his entitlement to a new trial. 

Appellant first argues the evidence was insufficient to sustain the 

jury’s finding that there was a criminal agreement between him and 

Sanabria to shoot the decedent. Our review of the sufficiency of the 

evidence is governed by the following principles.

[W]e view the evidence, and all reasonable inferences to 

be drawn therefrom, in the light most favorable to the 

Commonwealth in deciding whether the evidence was 

sufficient to establish each element of the crimes beyond a 

reasonable doubt.

Moreover, when conflicts and discrepancies arise, it is 

within the province of the jury to determine the weight to 

be given to each witness’s testimony and to believe all, 

part, or none of the evidence as it deems appropriate.

* * *

To convict of criminal conspiracy, the evidence must 

establish that the defendant entered an agreement with 

another person to commit or aid in the commission of an 

unlawful act, that the conspirators acted with a shared 

criminal intent, and that an overt act was done in 

furtherance of the conspiracy. An explicit or formal 

agreement to commit crimes can seldom, if ever, be 

proved and it need not be, for proof of a criminal 

partnership is almost invariably extracted from the

circumstances that attend its activities. An agreement 

sufficient to establish a conspiracy can be inferred from a 

variety of circumstances including, but not limited to, the 

relation between the parties, knowledge of and 

participation in the crime, and the circumstances and 

conduct of the parties surrounding the criminal episode.

Commonwealth v. Geiger, 944 A.2d 85, 90-91 (Pa. Super. 2008) 

(citations and punctuation omitted); see also 18 Pa.C.S. § 903 (a)(1). 
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As the Pennsylvania Supreme Court observed in Kennedy, “more than 

mere association of participants in crime must be shown. Thus, persons 

do not commit the offense of conspiracy when they join into an affray 

spontaneously, rather than pursuant [to] a common plan, agreement, or 

understanding.” Kennedy, 453 A.2d at 930 (citations omitted) (emphasis in 

original) (holding evidence that brawl in which codefendants participated 

occurred was alone insufficient to demonstrate existence of conspiracy); 

accord Menginie, 383 A.2d at 872-73 (noting evidence “might warrant the 

inference that [the defendant] and his companions expressly or tacitly 

agreed to taunt or ‘bully’ the victim and his family,” but holding such 

evidence was insufficient to support inference of unlawful agreement to kill 

or inflict serious bodily injury); Fields, 333 A.2d at 745 (holding evidence 

insufficient to establish accomplice liability where there was “nothing in the 

testimony to indicate [defendant] had any prior knowledge of 

[codefendant’s] lethal intent or that [defendant] in anyway counseled or 

participated in the shooting”); Wilson, 296 A.2d at 721 (holding evidence of 

defendant’s participation in bar fight with victim was insufficient to prove his 

shared intent to commit homicide “where a third party decide[d] on his own 

initiative to become a participant in an affray between two others and 

without any request or encouragement . . . alter[ed] radically the nature and 

course of the encounter” by stabbing victim); Johnson, 513 A.2d at 477-78 

(holding evidence—that defendant and two codefendants exited bar, one 
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codefendant stated, “Here comes a white boy. Let’s get him,” and second 

codefendant shot decedent—only proved defendant’s mere presence and 

thus was insufficient to sustain convictions for, inter alia, murder and 

conspiracy).

Instantly, when viewed in a light most favorable to the 

Commonwealth, the record established the following. Appellant lived at his 

stepfather’s residence. Days before the shooting, Appellant and Sanabria 

demanded payments from Estrada to sell drugs in the neighborhood. 

Appellant and Sanabria’s encounter with Estrada led to their argument with 

the decedent. Thus, the Commonwealth presented background evidence of 

an association between Appellant and Sanabria, as well as an existing 

dispute with the decedent. 

With respect to the shooting, the undisputed evidence established that 

Appellant and Sanabria encountered the decedent on the street and began 

shooting shortly thereafter. Although there was conflicting testimony 

regarding the events precipitating the shooting, the evidence established his 

active participation in an agreed upon course of action with Sanabria. 

Specifically, Appellant warned the decedent “was trying to reach,” and drew 

his .40 caliber pistol. The presence of the two .40 caliber shell casings at 

the scene suggested he fired at least two shots, despite his assertion that 

his pistol jammed. Sanabria drew his .25 caliber pistol and fired five shots, 

two of which struck the decedent in the back and mortally wounded him. 
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In light of this evidence, we conclude the cases cited by Appellant are 

inapposite. The instant record shows that Appellant was an active 

participant in the shooting, encouraged the actions taken by Sanabria by 

issuing the warning and drawing his own pistol, and that Sanabria’s actions 

did not radically alter the nature of the confrontation set in motion by 

Appellant. Cf. Kennedy, 453 A.2d at 930; Menginie, 383 A.2d at 872-73; 

Fields, 333 A.2d at 745; Wilson, 296 A.2d at 721; Johnson, 513 A.2d at 

477-78. Furthermore, if the jury elected to credit Laboy’s testimony that 

Appellant and Sanabria approached the decedent and began firing without 

provocation, such evidence would also establish the existence of a 

conspiracy to commit homicide. Accordingly, we discern no merit to 

Appellant’s sufficiency challenge to his conspiracy conviction. 

Second, Appellant argues the trial court erred in denying his request 

for an instruction on voluntary manslaughter—heat of passion. It is well 

settled that:

[a] voluntary manslaughter instruction is warranted only 

where the offense is at issue and the evidence would 

support such a verdict. Third degree murder is a killing 

done with legal malice, but without the specific intent to 

kill; voluntary manslaughter is a form of homicide that 

involves the specific intent to kill, but contains no legal 

malice as a result of passion and provocation.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1260-61 (Pa. Super. 2014) 

(en banc) (citations and punctuation omitted). When considering the 

adequacy of an alleged provocation for voluntary manslaughter, we apply an 
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objective standard and ask “whether a reasonable man, confronted with this 

series of events, became impassioned to the extent that his mind was 

incapable of cool reflection.” Commonwealth v. Berry, 336 A.2d 262, 264 

(Pa. 1975) (citation and punctuation omitted). The Pennsylvania Supreme 

Court has long observed, “[I]nsulting or scandalous words are not sufficient 

cause of provocation.” Commonwealth v. Drum, 58 Pa. 9, 17 (1868); 

accord Commonwealth v. Mouzon, 53 A.3d 738, 751 (Pa. 2012); Berry, 

336 A.2d at 264 (distinguishing Drum and holding that words conveying 

facts could constituted adequate provocation). 

Instantly, viewing the record in a light most favorable to Appellant, the 

decedent’s slur “bitch ass nigga” occurred in the context of his ongoing 

dispute with Appellant and Sanabria. However, we discern no evidence that 

Appellant spontaneously reacted to the slur. Rather, as discussed above, 

Appellant exclaimed that the decedent or the decedent’s friend was 

“reaching” for a weapon before Appellant drew his own weapon. Given this 

evidence, we discern no basis to disturb the trial court’s conclusion that a 

voluntary manslaughter—heat of passion instruction was not warranted, see

Buterbaugh, 91 A.3d at 1260-61, but that voluntary manslaughter—

unreasonable belief in the need for self-defense was available. See Trial Ct. 

Op. at 18. Thus, no relief is due. 
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As noted above, Appellant’s next nine arguments allege prosecutorial 

misconduct and/or the improper admission of evidence. The following 

principles govern our consideration of these claims. 

[The] declaration of a mistrial serves to eliminate the 

negative effect wrought upon a defendant when prejudicial 

elements are injected into the case or otherwise 

discovered at trial. By nullifying the tainted process of the 

former trial and allowing a new trial to convene, 

declaration of a mistrial serves not only the defendant’s 

interest but, equally important, the public’s interest in fair 

trials designed to end in just judgments. Accordingly, the 

trial court is vested with discretion to grant a mistrial 

whenever the alleged prejudicial event may reasonably be 

said to deprive the defendant of a fair and impartial trial. 

In making its determination, the court must discern 

whether misconduct or prejudicial error actually occurred, 

and if so, . . . assess the degree of any resulting prejudice. 

Our review of the resulting order is constrained to 

determining whether the court abused its discretion. 

Judicial discretion requires action in conformity with the 

law on facts and circumstances before the trial court after 

hearing and consideration. Consequently, the court 

abuses its discretion if, in resolving the issue for decision, 

it misapplies the law or exercises its discretion in a manner 

lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation 

and punctuation omitted). 

When assessing whether misconduct or error occurred during the 

Commonwealth’s arguments to the jury, 

[i]t is well-established that comments by a prosecutor 

constitute reversible error only where their unavoidable 

effect is to prejudice the jury, forming in the jurors’ minds 

a fixed bias and hostility toward the defendant such that 

they could not weigh the evidence objectively and render a 

fair verdict. A prosecutor’s remarks in opening statements 

must be fair deductions from the evidence the 
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Commonwealth intends to offer, which the prosecutor 

believes, in good faith, will be available and admissible at 

trial. In closing arguments, a prosecutor may comment on 

the evidence and any reasonable inferences arising from 

the evidence. 

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citations and 

punctuation omitted).

As to the trial court’s evidentiary rulings, “the admissibility of evidence 

is a matter addressed to the sound discretion of the trial court and that an 

appellate court may only reverse upon a showing that the trial court abused 

its discretion.” Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994) 

(citation omitted). The court may exercise reasonable control over the mode 

and order of interrogating witnesses and presenting evidence. Pa.R.E. 

611(a). The court may also “question witnesses to clarify existing facts and 

to elicit new information.” Commonwealth v. Hogentogler, 53 A.3d 866, 

880 (Pa. Super. 2012) (citation omitted). 

If misconduct or error occurred at trial, a defendant must show 

prejudice resulted. See Culver, 51 A.3d at 871. In reviewing the trial 

court’s determination regarding prejudice, we are mindful that prompt and 

adequate cautionary instructions can cure the harmful effects of the 

impropriety or error. Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. 

Super. 2010); see also Commonwealth v. O’Hannon, 732 A.2d 1193, 

1196 (Pa. 1999) (reiterating that “[a]bsent evidence to the contrary, the 

jury is presumed to have followed the trial court’s instructions.”). 
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Appellant’s third argument focuses on the Commonwealth’s 

examination of Walker, during which it was revealed (1) Appellant was 

incarcerated before trial; (2) Appellant was in the same jail as Walker; and 

(3) the Commonwealth moved Walker to a different cell because the 

prosecutor was concerned that Appellant “wanted to do something” to 

Walker. N.T., 6/25/13, at 197-200. Appellant asserts that this exchange 

was prejudicial because it “blemish[ed him] with unsupported allegations of 

witness intimidation.” Appellant’s Brief at 31. 

With respect to evidence of threats, this Court has noted,

In general, threats by third persons against witnesses are 

not relevant and thus not admissible into evidence unless 

the defendant is linked in some way to the making of the 

threats. Nevertheless, an exception to the rule exists 

where the evidence in question was not offered to prove 

the accused’s guilt but to explain a witness’s prior 

inconsistent statement.

Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (citations 

and punctuation omitted); accord Commonwealth v. Brewington, 740 

A.2d 247, 256 (Pa. Super. 1999). 

The Pennsylvania Supreme Court has observed “there is no rule in 

Pennsylvania which prohibits reference to a defendant’s incarceration 

awaiting trial or arrest for the crimes charged.” Commonwealth v. 

Johnson, 838 A.2d 663, 680 (Pa. 2003). Nevertheless, our courts

recognize that “constant reminders” of a defendant’s incarceration may 

affect the jury’s judgment and burden the defendant’s right to the 
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presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 503-

504 (1976); Johnson, 838 A.2d at 681. 

In Brewington, this Court concluded that evidence that the defendant 

was in the same jail as a witness was not objectionable. Brewington, 740 

A.2d at 256. The Court noted the witness recanted a prior statement 

implicating the defendant and determined that evidence the defendant had 

access to the witness in jail could “show the possibility of [the witness] being 

threatened or coerced by [the defendant] to change his testimony.” Id. 

Thus, the Brewington Court concluded that the defendant’s counsel was 

not ineffective for failing to object to the evidence of the defendant’s 

incarceration. Id. 

Although evidence that Appellant had access to Walker in jail could be 

relevant to explain Walker’s recantation at trial, see id., the 

Commonwealth’s questioning is problematic. The Commonwealth’s 

exchange with Walker required the trial court to sustain Appellant’s 

objection, instruct the Commonwealth not to testify, issue two cautionary 

instructions, and question the witness from the bench.10 N.T., 6/25/13, at 

 

10 By contrast, in Brewington, the testimony of the defendant’s 

incarceration was elicited as follows: 

[By the prosecution]. How long were you at Delaware 

County?

[The Witness]. I believe about three weeks, maybe.
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197-200. Moreover, having elicited testimony that Walker and Appellant 

were housed in the same jail, id. at 197, the Commonwealth, over 

Appellant’s objections, persisted in questioning Walker on why he thought 

the prosecutor moved him to a different jail. Id. at 198 (asking Walker, 

“You said that I moved you to another block. Why was that?” which trial 

court rephrased as “What was his understanding?”). Walker responded he 

believed the prosecutor thought Appellant “wanted to do something” to 

Walker while they were in the same jail. Id. at 199. Such testimony was 

improper and resulted from an objectionable line of questioning calling for 

Walker’s understanding of the prosecutor’s decision to move him.

Thus, we consider whether the trial court erred in concluding that the 

prejudice resulting from the exchange was cured by the court’s cautionary 

 

Q. How long?

A. Three or four weeks.

* * *

Q. And you were there. Tell the ladies and gentlemen of 

the jury who else was there, at the time you were there, 

who is here on trial today?

[Counsel for co-defendant]. Objection.

A. [The Witness] Which jail?

Q. [By the prosecution] Delaware County?

A. [Appellant.]

Brewington, 740 A.2d at 256 (record citation omitted). 
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instructions. See Culver, 51 A.3d at 871; Trial Ct. Op. at 10. During the 

Commonwealth’s exchange with Walker, the court issued cautionary 

instructions directing the jury to consider the “testimony as to how it affects 

the witness’s credibility, his believability, what he said, whether he said 

different things.” Id. at 198. The court also observed, “There’s absolutely 

no evidence at this point that there’s any inappropriate behavior by the 

defendant in this case, and that’s not why this testimony is being elicited.” 

Id. Although the trial court overruled Appellant’s objection to Walker’s 

testimony that the prosecutor thought Appellant “wanted to do something” 

to him, it again instructed the jury, “[T]he DA’s mental state . . . is not 

relevant. What’s relevant is what the witness, his mental state.” Id. at 199. 

Moreover, in its final charge to the jury, the court again cautioned the jury 

that there was no evidence that Appellant threatened a witness and 

emphasized that the evidence of the witnesses’ concerns about testifying 

were admitted for “one purpose only, and that is to use it to assess their 

credibility as a witness.” N.T., 6/28/13, at 111. 

Following our review, we conclude Appellant has not demonstrated the 

improper questioning of Walker resulted in undue prejudice. Appellant 

focuses on the Commonwealth’s suggestion, without an adequate 

evidentiary basis, that he threatened witnesses. Appellant’s Brief at 36. He 

submits that the jury was susceptible to accept the Commonwealth’s 

suggestion and use it as evidence of his bad character. Id. The trial court, 
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however, promptly cautioned the jury that there was no evidence Appellant 

threatened Walker and informed the jury of the proper purposes of the 

evidence the Commonwealth was intending to elicit. Moreover, Appellant 

does not argue that the cautionary instructions were inadequate. Thus, 

given the arguments presented, we decline to disturb the trial court’s 

opinion that a new trial was not necessary.

Appellant’s fourth and fifth arguments focus on the trial court’s 

decision to overrule his objections to Laboy’s testimony that (1) he was 

afraid of testifying and (2) Appellant was “in jail a long time.” As recited 

more fully above, the Commonwealth questioned Laboy regarding his failure 

to stay at the scene of shooting to report the incident to police. Laboy 

responded he did not immediately cooperate with police, “[b]ecause that’s 

not me.” N.T., 6/26/13, at 66. Laboy then interrupted the Commonwealth’s 

next question stating, “It is now.” Id. The Commonwealth then elicited 

Laboy’s explanation that he was “done in Philadelphia” and had to leave 

because his life “will be in danger” for speaking to police and being in court. 

Subsequently, the Commonwealth questioned Laboy regarding his 

identification of Appellant from a photographic array during a police 

interview on November 27, 2011. N.T., 6/26/13, at 74-75. The 

Commonwealth showed Laboy the array presented to him by police on 

November 27, 2011, and confirmed he selected Appellant’s picture. Id. at 

75. After the Commonwealth asked, “And is that the same person that’s in 
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the courtroom,” Laboy responded that Appellant had been “in jail for a long 

time” and looked different. Id. 

We conclude the evidence that Laboy believed he was “done” in 

Philadelphia and believed his life was in danger was related to an 

explanation of the variations between his trial testimony and prior 

statements to police. Consequently, we discern no abuse of discretion in 

overruling Appellant’s objection admitting this testimony. See Bryant, 462 

A.2d at 788. Furthermore, we reiterate that the trial court, in its final 

charge, emphasized there was no evidence Appellant threatened the 

witnesses and properly instructed the jury that the testimony was admitted 

to evaluate the credibility of the given witness. N.T., 6/28/13, at 110-11. 

Accordingly, we decline to disturb the trial court’s determination that a 

mistrial was not required based on Laboy’s testimony that his life was in 

danger for giving a statement to police and testifying at trial. 

As to Laboy’s reference to Appellant’s pretrial incarceration, the record 

supports the trial court’s determination that although the testimony was 

improper, the Commonwealth did not intentionally elicit Laboy’s testimony. 

Although the trial court overruled Appellant’s objection, the court expressly 

addressed Laboy’s testimony in its final charge to the jury. Moreover, as 

discussed above, the Commonwealth’s examination of Walker earlier at trial 

previously disclosed Appellant’s pretrial incarceration. Accordingly, we 

conclude Laboy’s passing reference to Appellant’s incarceration alone, or in 
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conjunction with Walker’s testimony, did not cause undue prejudice requiring 

a new trial. 

In his sixth claim, Appellant asserts the Commonwealth impermissibly 

suggested he threated witnesses in its opening and closing statements. 

However, we discern no merit to Appellant’s contention that the 

Commonwealth’s references to the witnesses’ fears in its opening statement 

were improper. The Commonwealth’s warning to the jury that its witnesses 

would likely recant was a fair deduction from the evidence it intended to 

offer, namely, the witnesses’ prior inconsistent statements to police. See

Arrington, 86 A.3d 831, 853; see also Commonwealth v. Brown, 52 

A.3d 1139, 1171 (Pa. 2012) (holding conviction based on prior inconsistent 

statement did not violate due process). Further, we discern no basis to 

conclude the Commonwealth did not have a good-faith belief that at least 

some evidence regarding its witnesses’ fears would be admissible. See 

Arrington, 86 A.3d at 853; Bryant, 462 A.2d at 788; Brewington, 740 

A.2d at 256. Similarly, the Commonwealth’s comments upon the witnesses’ 

reluctance to testify or cooperate with police was properly based on the 

evidence, see Arrington, 86 A.3d at 853, and did not unduly suggest 

Appellant had threatened the witnesses. 

Although the Commonwealth’s statements that the prosecutor could 

not provide bodyguards and that witnesses have “to always look over their 

shoulder” were intemperate, the trial court sustained Appellant’s objection to 
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that argument and issued a cautionary instruction regarding the absence of 

evidence that Appellant threatened the witnesses. Consequently, we decline 

to disturb the trial court’s determination that a mistrial was not warranted 

based on the Commonwealth’s opening and closing statements. 

Appellant’s seventh and eighth arguments challenge the 

Commonwealth closing statements suggesting that he shot the decedent 

with the .40 caliber pistol and opining the decedent’s slur was not intended 

as a racial insult. 

Following our review, we conclude that the Commonwealth’s argument 

that the wound to the decedent’s hip was caused by the .40 caliber firearm 

was proper. The medical evidence at trial established two .25 caliber bullets 

were recovered from the decedent’s chest, but the bullet causing the wound 

to the decedent’s hip was not recovered. N.T., 6/25/13, at 64. The 

Commonwealth presented expert evidence that a .40 caliber bullet is larger 

and more powerful than a .25 caliber bullet. N.T., 6/26/13, at 218. 

Accordingly, the Commonwealth’s suggestion that a larger, more powerful 

bullet may have travelled through the decedent was not an unreasonable 

inference based on the evidence. 

As to Appellant’s contention that the Commonwealth improperly 

suggested the slur “nigga” did not have a racial component, we agree with 

the trial court this comment fell within the bounds of permissible argument. 

Moreover, the Commonwealth’s comment constituted a fair response to 
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Appellant’s suggestion that the slur evinced the decedent’s initial aggression 

and precipitated Appellant’s belief in the need for self-defense. See N.T., 

6/28/13, at 18-19. Thus, the trial court properly denied relief.

Appellant’s ninth and tenth arguments focus on the Commonwealth 

assertion that “[w]ords never justify deadly force” and Appellant did not 

sincerely believe he was going to be killed. According to Appellant, these 

comments misstated the law of self-defense.

We are mindful that “[t]here is no prohibition against a prosecutor 

discussing applicable law in his closing argument, as long as he states the 

law clearly and accurately.” Commonwealth v. Rios, 684 A.2d 1025, 1034 

(Pa. 1996) (citation omitted). However, “[i]t is obviously improper for 

counsel to misstate the law or to state it in a manner calculated to confuse 

the jury[.]” Commonwealth v. Hardcastle, 546 A.2d 1101, 1110 (Pa. 

1988) (citation omitted). 

Section 505 of the Crimes Code defines self-defense as follows: 

(a) Use of force justifiable for protection of the 

person.—The use of force upon or toward another person 

is justifiable when the actor believes that such force is 

immediately necessary for the purpose of protecting 

himself against the use of unlawful force by such other 

person on the present occasion.

(b) Limitations on justifying necessity for use of 

force.—

* * *

(2) The use of deadly force is not justifiable under 

this section unless the actor believes that such force is 
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necessary to protect himself against death, serious 

bodily injury, kidnapping or sexual intercourse 

compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or 

serious bodily injury, provoked the use of force 

against himself in the same encounter; or

(ii) the actor knows that he can avoid the 

necessity of using such force with complete safety by 

retreating . . . .

18 Pa.C.S. § 505(a), (b)(2)(i)-(ii). The reasonableness of a defendant’s 

belief in the need to use deadly force “encompasses two aspects, one 

subjective and one objective.” Mouzon, 53 A.3d at 751. The subjective 

aspect requires the defendant act “out of an honest and bona fide belief that 

he was in imminent danger.” Id. at 752 (citation omitted).

Appellant’s assertion that the prosecutor impermissibly argued that 

words alone are insufficient aggression to sustain a claim of self-defense is 

unsupported and misplaced. Our review reveals no case in which the mere 

utterance of a slur constituted sufficient evidence to warrant self-defense. 

Furthermore, Mouzon, which Appellant relies upon, does not stand for the 

proposition that words may constitute the basis for self-defense. The 

Mouzon Court referenced the traditional rule that words alone generally are 

not provocation, but rejected the defendant’s claim that his conduct did not 

provoke an encounter with the victims and negate his clam self-defense. 

Id. at 751. In any event, as discussed above, the evidence established that 

Appellant did not react to the insult, but to the alleged threat posed by the 
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decedent when the decedent or the decedent’s friend reached for a gun. 

Accordingly, Appellant has not demonstrated that the Commonwealth 

misstated the law of self-defense as it applied in this case. 

We similarly discern no merit to Appellant’s claim that the 

Commonwealth’s use of the term “sincerely” misstated the law of selfdefense. As noted above, a claim of self-defense requires consideration that 

the defendant subjectively acted “out of an honest and bona fide belief was 

in imminent danger.” Id. at 752. Therefore, the Commonwealth’s 

argument that “nothing in the record shows [Appellant] sincerely and 

reasonably belief he was going to be killed” did not mischaracterize the law 

of self-defense. See id.

Appellant’s eleventh claim is the Commonwealth improperly argued he 

provoked the situation by threatening Estrada two days before, carrying an 

unlicensed gun, and trying to assert authority over PCP sales in the 

neighborhood. See N.T., 6/28/13, at 80 (indicating Commonwealth argued 

Appellant “provoked the situation when he made that threat to two days 

before to [Estrada]. He provoked the situation when him and his friend were 

carrying an unlicensed gun that they have no business carrying. He 

provoked the situation by trying to assert his authority over that block 

selling PCP. So he does not have clean hands. You cannot in this scenario 

ever claim self-defense.”).
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As noted above, the concept of “provocation,” which negates a selfdefense claim, is defined as follows: “[t]he use of deadly force is not 

justifiable . . . if: . . . the actor, with the intent of causing death or serious 

bodily injury, provoked the use of force against himself in the same 

encounter.” 18 Pa.C.S. § 505(b)(2)(i). Thus, “to establish that an actor was 

the aggressor or provoker and, hence, was not entitled to claim a defense of 

self-defense or defense of others, there must be some evidence to support 

the inference that the defendant’s acts constituted an intent to cause death 

or serious bodily injury.” Commonwealth v. Samuel, 590 A.2d 1245, 

1248 (Pa. 1991) (punctuation omitted). Moreover, Section 505(b)(2)(i) 

requires that the defendant’s aggression or provocation occur “in the same 

encounter.” 

At the outset, we agree with the Commonwealth that it was entitled to 

argue that Appellant instigated the event by approaching the decedent and 

shooting and suggest that such acts were motivated by Appellant’s attempt 

to “assert his authority” over the sale of PCP. See Pa.R.E. 404(b) (stating 

evidence of wrongs not generally admissible to prove character and action in 

accordance with character, but may be admissible for another purpose such 

as motive). Indeed, the Commonwealth did so in other areas of its closing 

argument without objection. See N.T., 6/28/13, at 81 (arguing, Appellant 

“knew what he was doing. He knew he was armed, and he knew what he 
J. S26045/14

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wanted to do. Him and [Sanabria] wanted to kill [the decedent] and show 

how tough they were.”). 

However, the Commonwealth’s argument suggesting Appellant 

provoked the situation by engaging in several bad acts before the shooting 

was misplaced. Rather than arguing motive, the Commonwealth suggested 

that the jury reject his claim of self-defense because Appellant committed 

several wrongs before the encounter and “did not have clean hands.” 

Accordingly, the argument exceeded the proper bounds of closing 

statements. See Pa.R.E. 404(b). 

Thus, we consider whether Appellant established sufficient prejudice as 

to warrant the declaration of mistrial. Initially, we note that the trial court’s 

final charge contained the general instruction that the jury apply only the 

law given to it by the court. N.T., 6/28/13, at 96. The trial court also gave 

an extensive instruction on the law regarding self-defense. Id. at 127-34. 

The court’s instruction properly explained that provocation, for the purposes 

of rebutting a claim of self-defense required the jury to find “that in the 

same encounter with the victim, [Appellant] engaged in conduct that 

demonstrated his intent to cause death or serious bodily injury.” Id. at 131. 

The trial court repeated its complete instructions on third-degree murder 

and voluntary manslaughter-unreasonable belief when asked to do so by the 

jury. Id. at 155-161. 
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Our further review compels the conclusion that Appellant did not suffer 

undue prejudice. Instantly, the Commonwealth proceeded on a theory of 

general homicide and argued in support of a first-degree murder conviction. 

See id. at 73-75 (arguing first-degree murder because Appellant and 

Sanabria were carrying illegal firearms to “assert their dominance on the 

street,” stated their intention to Estrada, and “took their guns out” and shot 

their “intended target”). However, the jury rejected that argument and 

returned a verdict of third-degree murder. 

We acknowledge the possibility the Commonwealth prejudiced the 

jury’s consideration of third-degree murder, voluntary manslaughter, and 

justification. However, no admissible evidence demonstrated that the 

decedent or his friend were armed at the time or reached for a weapon. 

Rather than retreating, Appellant and Sanabria fired seven rounds. Although 

one bullet struck the decedent’s front hip, the two shots, those fired by 

Sanabria, struck the decedent in the back. Thus, we discern no record 

evidence rebutting the presumption that the trial court’s instructions 

dissipated the taint of the Commonwealth’s improper closing statement. 

Accordingly, we discern no basis upon which to disturb the trial court’s 

conclusion that a new trial was not required. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015