J-S75044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN C. CRAWFORD,

Appellant No. 1776 EDA 2014 

Appeal from the Judgment of Sentence entered April 21, 2014,

in the Court of Common Pleas of Chester County,

Criminal Division, at No(s): CP-15-CR-0002624-2013

BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 08, 2014

Sean Crawford (“Appellant”) appeals from the judgment of sentence 

imposed after a jury convicted him of simple assault, 18 Pa.C.S.A. § 

2701(a)(1).

The trial court summarized the pertinent facts and procedural history 

as follows: 

On July 21, 2013, Officer David Spigarelli of the West 

Goshen Police Department was dispatched to investigate a report 

of a female assault victim. Upon arriving at the scene, Ms. 

Hayman stated to Officer Spigarelli that she was struck in the 

face by her fiancé, [Appellant]. Upon instructions from Officer 

Spigarelli, another officer took [Appellant] into custody for the 

assault on Ms. Hayman. [Appellant had previously pled guilty 

and was convicted of assaulting Ms. Hayman at Docket No 3465-

2011]. 

On January 28, 2014, a jury trial in the above matter 

began. The Commonwealth presented four witnesses. First, lay 

witnesses, David Fuller and Denise Phipps, testified that they did 

not observe the altercation between [Appellant] and Ms. 

Hayman, but observed Ms. Hayman coming towards them. She 
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was upset and bleeding from the nose. Ms. Hayman related to 

Mr. Fuller and Ms. Phipps that [Appellant] had punched her in 

the face and had taken two of her four children. The 

Commonwealth also presented expert medical testimony from 

Barry R. Smoger, M.D., who testified that he examined x-rays 

taken of Ms. Hayman’s face on July 21, 2013 after she was 

transported to the hospital. He diagnosed her with a facial bone 

fracture. The last witness to testify on behalf of the 

Commonwealth was Ms. Hayman.

Ms. Hayman testified that on July 21, 2013, she and her 

fiancé, [Appellant], were at West Goshen Park with her four 

children. Ms. Hayman testified [that Appellant] informed her 

that he was ending their relationship. When she questioned 

[Appellant] about how he planned to take care of his children’s 

needs, [Appellant] became “mad” that Ms. Hayman was thinking 

he was not going to be providing for his children and he pulled 

her hair. When she struggled to get free, [Appellant] punched 

her in the nose. It was Ms. Hayman’s testimony that she 

escaped from [Appellant] and ran across the street to where Mr. 

Fuller and Ms. Phipps were working in the yard.

After the close of the Commonwealth’s case, [Appellant’s] 

attorney made a motion for judgment of acquittal. [The trial 

court] denied the motion. [Appellant] notified the [trial court] 

that he intended to forgo his right to testify or present any 

evidence. A brief colloquy took place between the [trial court] 

and Appellant about his decision.

[The trial court] then went over the jury charge with both 

counsel in chambers. [Appellant’s counsel] placed an objection 

on the record to [the trial court’s] intention to instruct the jury 

on consciousness of guilt as requested by the Commonwealth. 

During closing statements, [Appellant] objected to a 

statement of the Commonwealth referring to the fact that the 

Commonwealth had not called the children to testify about the 

altercation. [The trial court] overruled both objections. 

Trial Court Opinion, 8/7/14, at 2-4 (footnotes and citations to notes of 

testimony omitted).
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At the conclusion of trial, the jury found Appellant guilty of simple 

assault. Appellant filed a post-sentence motion on April 30, 2014, which the 

trial court denied without a hearing on May 9, 2014. Appellant filed a notice 

of appeal on June 9, 2014. Both Appellant and the trial court have complied 

with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

1. Did the trial court err in overruling [Appellant’s] objection to 

the prosecutor’s comments during her closing argument 

regarding her decision not to call certain eyewitnesses, when 

the facts underlying those comments were not in evidence?

2. Did the [trial court] err in instructing the jury on 

“Consciousness of Guilt” where there was no evidence that 

[Appellant] left the scene in order to avoid apprehension by 

the police?

Appellant’s Brief at 4.

In his first issue, Appellant argues that the trial court erred in 

overruling his objection to improper comments by the prosecutor during 

closing arguments. Appellant’s Brief at 13-15. Our standard of review for a 

claim of prosecutorial misconduct is limited to whether the trial court abused 

its discretion. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. 

2005) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007). In 

considering such a claim, our attention is focused on whether the defendant 

was deprived of a fair trial, not a perfect one. Id.

[I]n reviewing prosecutorial remarks to determine their 

prejudicial quality, comments cannot be viewed in isolation but, 

rather, must be considered in the context in which they were 

made. Our review of prosecutorial remarks and an allegation of 
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prosecutorial misconduct requires us to evaluate whether a 

defendant received a fair trial, not a perfect trial.

* * *

It is well settled that a prosecutor has considerable latitude 

during closing arguments and his arguments are fair if they are 

supported by the evidence or use inferences that can reasonably 

be derived from the evidence. Further, prosecutorial misconduct 

does not take place unless the unavoidable effect of the 

comments at issue was to prejudice the jurors by forming in 

their minds a fixed bias and hostility toward the defendant, thus 

impeding their ability to weigh the evidence objectively and 

render a true verdict. Prosecutorial misconduct is evaluated 

under a harmless error standard.

In determining whether the prosecutor engaged in 

misconduct, we must keep in mind that comments made by a 

prosecutor must be examined within the context of defense 

counsel's conduct. It is well settled that the prosecutor may 

fairly respond to points made in the defense closing. Moreover, 

prosecutorial misconduct will not be found where comments 

were based on the evidence or proper inferences therefrom or 

were only oratorical flair.

Commonwealth v. Judy, 978 A.2d 1015, 1019–1020 (Pa. Super. 2009) 

(internal citations omitted).

Appellant objects to the following comments made by the 

Commonwealth during its closing argument, relative to the altercation 

between Appellant and Ms. Hayman:

Assistant District Attorney: [Appellant] mentioned that 

there were no other eye 

witnesses aside from the 

children. I think it is an 

undisputable fact the children 

were present in the park that 

day. They probably saw 
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what happened. There was 

evidence, there was 

testimony that Sania and 

Jordan were extremely 

upset. Call them? I didn’t 

call them to the stand. In 

Chester County we are not 

in the business of calling 

an eight year old ... to 

testify against someone 

who is very involved in 

their lives. That’s why 

they didn’t testify today.

N.T., 1/28/14, at 94-95 (emphasis added).

Appellant argues that the prosecutor’s comment deprived him of a fair 

trial. Appellant contends that there was no evidence presented at trial that 

the Commonwealth opted not to call the children because of their age, and 

that he was deprived of the opportunity to present his own evidence or 

conduct any cross-examination with regard to why the children did not 

testify. Appellant’s Brief at 14-15. The trial court, however, found no merit 

to this claim, concluding that the comment was not prejudicial and that 

Appellant was not entitled to relief on this basis. We find no abuse of 

discretion in the trial court’s determination.

In Commonwealth v. Chmiel, 889 A.2d 501, 543–44 (Pa. 2005), our 

Supreme Court explained:

In determining whether the prosecutor engaged in misconduct, 

courts must keep in mind that comments made by a prosecutor

must be examined within the context of defense counsel's 

conduct. It is well settled that the prosecutor may fairly 

respond to points made in the defense closing. A remark 
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by a prosecutor, otherwise improper, may be appropriate 

if it is in [fair] response to the argument and comment of 

defense counsel. Moreover, prosecutorial misconduct will not 

be found where comments were based on the evidence or proper 

inferences therefrom or were only oratorical flair.

Chmiel, 889 A.2d at 543–44 (emphasis added).

Here, we conclude that the prosecutor’s comments as to why it 

declined to call the children to testify, were in fair response to comments by 

Appellant’s counsel who, during his preceding closing argument, “opened the 

door” to the Commonwealth’s responsive remarks about the children’s 

failure to testify. Specifically, during closing, Appellant’s counsel addressed 

the jury:

Today Miss Hayman testified her children were ten steps 

away or nearby. Yet she also testified early on in the 

proceedings they were a mile away. Wait a minute. You 

can ask yourself why she did not want her children 

called as witnesses, because maybe they would say 

a different story. That’s for you to wonder about. In 

fact, why is there even no corroborating evidence, why did 

the State put on no corroborating evidence [that 

Appellant] was in the park that day? ... They could have 

done that if they had chosen to do so.

N.T., 1/28/14, at 89-90 (emphasis added).

By asking the jury to speculate about why the Commonwealth did not 

call the children as witnesses, Appellant opened the door to the 

Commonwealth making responsive closing remarks about the children’s 

absence at trial. Given that the Commonwealth’s comments were in fair 

response to Appellant’s closing argument, Appellant’s claim of prosecutorial 

misconduct fails. See Commonwealth v. Turner, 73 A.3d 1283, 1286, 
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n.5. (Pa. Super. 2013) (“[T]his Court may affirm a trial court's decision if it 

is correct on any basis.”) (citation omitted).

In his second issue, Appellant argues that the trial court erred in 

issuing a “consciousness of guilt” instruction to the jury. Appellant’s Brief at 

15-18. “[W]hen evaluating the propriety of jury instructions, this Court will 

look to the instructions as a whole, and not simply isolated portions, to 

determine if the instructions were improper. ... [A] trial court has broad 

discretion in phrasing its instructions, and may choose its own wording so 

long as the law is clearly, adequately, and accurately presented to the jury 

for its consideration. Only where there is an abuse of discretion or an 

inaccurate statement of the law is there reversible error.” Commonwealth 

v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations omitted). “A 

jury instruction is proper if supported by the evidence of record. [Our 

Supreme Court] has held that when a person commits a crime, knows that 

he is wanted therefor, and flees or conceals himself, such conduct is 

evidence of consciousness of guilt, and may form the basis [of a conviction] 

in connection with other proof from which guilt may be inferred.” 

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (citations and 

internal quotations omitted). 

Here, the trial court determined that a “consciousness of guilt” 

instruction was warranted, and instructed the jury: 

Now, you may have heard evidence that tended to show that 

[Appellant] left the scene. The credibility, weight, and effect of 
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this evidence is for you to decide. Generally speaking, when a 

crime has been committed and a person thinks he or she may be 

accused of committing it, [and] he or she leaves the scene, that 

is a circumstance that may prove a person’s consciousness of 

guilt. Such action does not necessarily show consciousness of 

guilt in every case. A person may leave the scene for some 

other motive, may do so even though innocent. Whether the 

evidence of [Appellant] leaving the scene in this case should be 

looked at as evidence of consciousness of guilt depends upon the 

facts and circumstances of this case and especially upon motives 

that may have prompted him to leave. You may not find 

[Appellant] guilty solely on the basis of evidence of him leaving 

the scene.

N.T., 1/28/14, at 105.

Appellant argues that the instruction was improper because the 

Commonwealth presented no evidence that he left the scene in order to 

avoid detection by the police. The trial court, however, disagreed, 

explaining:

Mr. Fuller and Ms. Phipps testified they observed Ms. Hayman 

come from the direction of the park and present herself with a 

bloody injury to her face.

Mr. Fuller testified that upon hearing Ms. Hayman relate her 

children were in the park he immediately ran to the park to 

investigate and saw the individual Ms. Hayman identified as her 

fiancé, [Appellant], pulling out of the park’s parking lot in a car.

Mr. Fuller also testified he observed two young children running 

toward [Appellant’s] car and screaming. Mr. Fuller went to the 

children when he saw they were following the car into the street 

and he was worried they would be injured.

Trial Court Opinion, 8/7/14, at 5 (citations to notes of testimony omitted).

In light of this testimony, the trial court concluded that it was not error 

to instruct the jury to decide whether Appellant’s actions in leaving the scene 
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tended to show a guilty conscience. We conclude that the trial court did not 

err in issuing a consciousness of guilt instruction to the jury. We agree with 

the trial court that the Commonwealth presented testimony that Appellant 

left the scene; Mr. Fuller, in particular, testified that when he ran toward 

Appellant, he saw Appellant “pulling out in his car” while two children ran 

toward Appellant “screaming, he’s got my brother.” N.T., 1/28/14, at 36-

37. When Mr. Fuller reached the parking lot area of the park, Appellant “had 

taken off ... straight toward Westtown Road”. Id. at 38-39. Accordingly, we 

find no abuse of discretion in the trial court’s determination that a 

consciousness of guilt instruction was warranted. Appellant’s claim that the 

trial court’s jury instruction was unsupported by the evidence and improper 

is unavailing.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2014