### J-S68016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. MANUEL DEL ROSARIO GONZALEZ Appellant No. 3070 EDA 2013 Appeal from the Judgment of Sentence October 8, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001329-2012 BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 14, 2014 Appellant, Manuel Del Rosario Gonzalez, appeals from the judgment of sentence entered in the Lehigh County Court of Common pleas, following his jury trial conviction for third degree murder. 1 

### We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant raises the following issues for our review: DID THE LOWER COURT MISTAKENLY DENY THE DEFENSE REQUEST FOR A MISTRIAL BASED UPON THE PROSECUTOR'S QUESTIONING AND STATEMENTS THAT BROUGHT INTO ISSUE THE DEFENDANT'S TESTIMONIAL SILENCE?

____________________________________________ 1 

### 18 Pa.C.S. § 2502(c).

### J-S68016-14

- 2 - DID THE LOWER COURT ERR BY NOT GRANTING THE DEFENSE REQUEST FOR A MISTRIAL BASED UPON THE PROSECUTOR'S PREJUDICIAL STATEMENT ABOUT DEFENSE COUNSEL AND THE DEFENSE COUNSEL'S ROLE IN THE TRIAL? DID THE TRIAL COURT, INAPPROPRIATELY AND PREJUDICIALLY, TAKE A POSITION OF ADVOCACY WHEN IT QUESTIONED THE DEFENDANT DURING THE COMMONWEALTH'S CROSS-EXAMINATION? DID THE TRIAL COURT MISTAKENLY LIMIT THE DEFENSE COUNSEL'S CROSS-EXAMINATION OF VARIOUS COMMONWEALTH WITNESSES AS IT RELATED TO THEIR POSSIBLE GANG AFFILIATION? (Appellant’s Brief at 7-8). Our standard of review of a court's denial of a motion for mistrial is as follows: A motion for a mistrial is within the discretion of the trial

court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court’s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion. Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super.2014) (quoting Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.2003). Further, the admissibility of evidence is within the sound discretion of the trial court and will be reversed only when there is an abuse of that discretion. Commonwealth v. Wantz, 84 A.3d 324, 336 (Pa.Super.2014).

### J-S68016-14

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After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Lawrence J. Brenner, we conclude Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed December 11, 2013, at 6-22) (finding: Appellant, through his direct examination, opened the door to questions about his credibility on cross-examination, especially where Appellant outwardly acknowledged that he did not remain silent, but lied to police during the investigation; the prosecutor’s statement about defense counsel’s role in trial was a proper exhibit of oratorical flair, a proper cautionary instruction was issued to the jury that counsel did not attempt to mislead them with respect to testimony, and none of the prosecution’s comments or questions posed to Appellant were improperly prejudicial such that they warranted a mistrial; Appellant’s counsel did not object when the court questioned Appellant, thus waiving this issue for appellate review, and the court’s questioning was proper to clarify Appellant’s testimony; and evidence of alleged gang membership of two witnesses was properly excluded at trial as irrelevant without compromising Appellant’s ability to make his argument to the jury regarding his fear for his safety). Accordingly, we affirm on the basis of the trial court’s opinion. Judgment of sentence affirmed.

### J-S68016-14

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2014Circulated 11/07/2014 12:09 PM

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA



### v. MANUEL GONZALEZ, Appellant CRIMINAL DIVISION

No. l3290f2012



## * * * * * * * * * ***~~.** \ ,-,' 

## S\:, \..- Appearances: 

# -
-- Craig W. Scheetz, Deputy District Attorney, onbehalfofthe Commonwealth Michael E. Brunnabend, Esquire, onbehalfofthe Appellant 

## * * * * * * * * * * LAWRENCE 

### J. BRENNER, SENIORJUDGE
Pa.R.A.P. 1925(a) OPINION .-. ' 

# -- 

# - - ..

Following ajury trial, the Appellant, Manuel Gonzalez, was convicted ofmurder in the third degree based on his shooting and killing Devon Robinson on October 22, 2011. Thereafter, this court sentenced Appellantto a term ofimprisonment at a state correctional institution for a period ofnot less than 20 years to not more than 40 years. On October 18, 2013, Appellant filed the current notice ofappeal to the Superior Court ofPennsylvania. In the appeal, Appellant raises four appellat"issues. All ofthese issues relate to purported

errors made by the court and the prosecution during trial. For the reasons thatfollow, all ofAppellant's contentions lack merit and this appeal should be denied. p.,-rCirculated 11/07/2014 12:09 PM

Factual and Procedural History 

### On the night ofOctober 21, 2011, Appellant was attending a social gathering at the residence ofDarlene DeLeon, which is located near the intersection ofSixth and Gordon Streets in Allentown, Pennsylvania. Also attending this gathering were Manuel DeLaRosa (aka 

### "Sencillo"), Ronald Diaz (aka "Mafia"), Eddie Herman (aka "Choko"), and Mario Nunez. At some point that night, Manuel DeLaRosa and Mario Nunez became involved in

an altercation infront ofMs. DeLeon's residence with Kareem Lomax and Anthony Santiago. DeLaRosa and Nunez then chased Lomax and Santiago several blocks on foot. During the chase, either DeLaRosa or Nunez fired gunshots in the direction ofLomaxand Santiago. After the altercation, DeLaRosa and Nunez returned to Ms. DeLeon's residence. Thereafter, Appellant tookpossession ofa handgun from Mario Nunez. At some time later on the night ofOctober 21, 2011, or in the early hours of October 22,2011, Appellant, Manuel DeLaRosa, Ronald Diaz, Eddie Herman and Mario Nunez decided to leave that gathering at Ms. DeLeon's residence and drive to the south side ofAllentown to attend another party and effectuate a sale ofmarijuana. Mario Nunez drove the men in the blue Acura automobile he owned. Around 2:00 a.m. on the morning ofOctober 22, before driving to the south side of Allentown, Mr. Nunez stopped atthe Sunoco gas station and minimarket located at the intersection of 12th 

### and Hamilton Streets in Allentown. Mr. Nunez stopped there to add gasoline to his automobile and to allow his passengers to purchase food and drinks at the minimarket.

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While atthe Sunoco parking lot, Appellant and his group encountered a group of approximately 30 to 40 people. Appellant recognized several people in this group as members ofthe "Bloods" street gang. This large group ofpeople hadjust left a party at a nearby residence where the guests had been consuming alcohol. Included in this large group were Kareem Lomax and the victim in this case, Devon Robinson. Kareem Lomax saw the Appellant and the two shook hands. Though not friends, Lomax and Appellant were acquaintances and knew each other from living in the same neighborhood around 5th and Gordon Streets in Allentown. Lomax also sawManuel DeLaRosa and recognized him as one ofthe men who had chased him and fired gunshots in his direction a fewhours earlier. Lomax confronted DeLaRosa and questioned him about the incident. As the two men argued, they were approached byAppellant, his group and the large group ofpeople with which Lomax was associated. Several men in Lomax's group, including Nelson Soler, possessed guns. At one point, Soler pointed his gun inthe direction ofAppellant's group. During the argument, DeLaRosa denied any involvement in the earlier altercation, but smirked and snickered at Lomax. Withthis, Lomax threw a juice or iced teahe was holding atDeLaRosa and began to chase himthroughthe parking lot. This action precipitated a brawl between Appellant's group and Lomax's group. During the brawl, Appellant initially attempted to pacify the belligerents and end the fighting. However, Devon Robinson approached Appellant and punched him in the head, knocking himto the ground. This act was met with laughter from the Lomax group. Appellant then stood up and began to chase Robinson while brandishing a handgun. Mario NunezjoinedAppellant in chasing after Robinson. During the chase, Appellant fued a

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gunshot into the back ofRobinson. Around the same time, Robinson and Appellant collided with an automobile attempting to back out ofa parking spot and Robinson fell to the ground. Appellant was able to stay standing, but dropped his handgun. Nunez approached Robinson, who was still onthe ground, and began to kick him in the face and chest. Appellant quickly retrieved his handgun, walked overto Robinson, stood over 

### him and fired a gunshot into his head. Robinson died as a result ofthe initial gunshot into his back. The entirety ofthe altercation described above wasrecorded on a wireless surveillance camera fixed at the intersection of 12th and Hamilton Streets by the Allentown Police Department. After shooting Robinson, Appellant ran from the scene. Later onthe morning of October 22, Appellant went to the residence ofhis girlfriend, Ambar Perez, located at 333 North Hall Street inAllentown. Appellant woke Ms. Perez and explained to her that he

was in a fight and that he believed he may have badly hurt or killed someone. Ms. Perez

was disturbed by this revelation and asked Appellantto leave her residence. Appellant complied and evaded authorities for approximately three and a halfmonths. Appellant ultimately retuned to Ms. Perez's residence inFebruary of2012. On February 13,2012, Officer Joseph launetta, a patrolman employed bythe Allentown Police Department, executed an arrest warrant for Appellant at Ms. Perez's residence and Appellant was taken into custody. After being taken into custody, Appellant was interviewed at police headquarters by Detectives Joseph Vazquez and Stephen Milkovits of

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### the Allentown Police Department. Appellant admitted being at the scene ofthe altercation and being punched by Devon Robinson. However, Appellant denied shooting Robinson. The criminal proceedings at hand were commenced on February 14,2012, with the filing ofa criminal complaint againstAppellant charging him with the criminal homicide ofDevon Robinson. At his arraignment on April 30, 2012, Appellant entered aplea of"not guilty" to the charge ofcriminal homicide. That same day, Attorney Dennis G. Charles entered his appearance as counsel for Appellant. Appellant'sjurytrial commenced on July 8, 2013. During the trial, Appellant waived his Fifth Amendment rights and testified as the sole defense witness. Through this testimony, Appellant admitted to shooting Devon Robinson. On July 15,2013, thejury returned a verdict finding Appellant guilty ofmurder in the third degree. On October 8, 2013, Judge Lawrence J. Brenner (the undersigned) sentenced Appellant to not less than 20 to not more than 40 years incarceration at a state correctional institution. Appellant filed the appeal at hand on October 18, 2013. On October 23,2013, the Court ordered Attorney Michael E. Brunnabend, appellate counsel for Appellant, to file a concise statement ofmatters complained ofon appeal pursuant to Pa.R.A.P. 1925(b) (Concise Statement). On November 13, 2013, Appellant filed a Concise Statementraising four appellate issues.

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Discussion and Conclusions ofLaw Appellant raises four allegations oferror inhis Concise Statement: 

### 1. The Court erred in failing to grantthe Defendant's objection and/or mistrial request based upon the Prosecuting Attorney's comments during the Commonwealth's case in chiefaboutthe Defendant'stestimonial silence and invocation ofhis right to remain silent. 2. The Court erred in failing to act on the Prosecuting Attorney's attempts and comments about the Defense counsel trying to "mislead" or deceive thejury, which comments went far beyond proper advocacy. 3. The Courttook a position ofadvocacy by [its] questioning ofthe Defendant and/or other defense witnesses while questions were close in form to cross-examination of the witnesses); and, 4. The Court erred byprohibiting the Defense Counsel from examining witnesses about the possible gang membership and involvement ofCommonwealth's witnesses or other friends ofthe victim, which evidence would showthe Defendant'sreasonable actions to protect himselfand the evidence properly corroborated the testimony ofthe Defendant. (Concise Statement, at 1-2.) ProsecutingAttorney's Comments Appellant's first two issues on appeal address commentary from the Commonwealth during the closing argument and questions posed to Appellant when he testified in his own defense. With respect to the Commonwealth's cross-examination ofAppellant, the defense theory ofthe case as presented in its opening statement was essentially that Appellantwas not the shooter. Onthe final day oftestimony, the last witness called was Appellant. Appellant advised defense counsel during lunch that day that he

### was in fact the shooter and that he had lied to police whenhe was interviewed. During Appellant's testimony that afternoon, the following exchange occurred:
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BY MR. CHARLES: 

### Q When the police asked you about whether you performed the shooting, you said you did not; is that right? A Yes. 

### Q Were you being truthful with them? 

### A No. 

### Q When is the first time you advised me that you did perform the shooting? A Lunchtime. 

### Q Lunch time. What day? A I don't know. I don't know whatthe date is today. 

### Q Today's date? A Buttoday is what, I guess, the 12th. A couple minutes ago. 

### Q So youtold me about a little over an hour and-a-halfago; is thatright? A Yes. 

### Q Why did you persistin denying that you were the shooter? A Because I know I'm going to be killed. (N.T. Jury Trial, at 909-10.) On cross-examination, the Commonwealth asked the following questions of Appellant: BY MR. SCHEETZ: 

### Q Mr. Gonzalez, you sat up here for 15, 20 minutes and denied shooting Devon Robinson, correct? A I said I did. 

### Q When youfirst sat here you said you did not shoot Devon Robinson, correct? A I said I did. 

### Q Your first question from Mr. Charles, you said you got scared and you ran, you did not shoot Devon Robinson, correct? A He asked me. MR. CHARLES: Excuse me, Your Honor. Objection. THE COURT: The objection's overruled. A He never said that. (N.T. Jury Trial, at 913-14.) During Attorney Scheetz's closing, he argued:

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Okay, common sense, what happened here? What happened in this Court? A week oftestimony, a week ofhearing from witnesses. Mr. Gonzalez, I see sitting over there. Do you remember their opening statements? A little confusing, ah? Think about it. What did theypropose to you? Itwasn't my guy. Butifit was my guy, I have an explanation why it was. What happened here? 

### Mr. Gonzalez sat there listening to every ounce of evidence, listened to his girlfriend come in here, his friends fromjail, his friend Sencillo, all the independent eye witnesses pointed him out. So what does he do? He's playing a game with you, ladies and gentlemen. What did he do? They got me. I'm cornered. I have no other option. What did he do at that point? What did 

### Mr
..Charles ask you? Oh, at the lunch time was the first time he told methis. He satthere and realized that we had them, that you had them. Youknewhe was the shooter. He had no way out. And then he decides -- it's a game to him -- he's calculating. He's manipulative. That's whatkind ofperson he is. He waited until all these witnesses. You saw Ambar Perez. Howwas she testifying up here? It was physically difficult for her to testify. He waits for the ballistics people to get up there. There is one weaponthat was fired, one. The eye witnesses, the DNA, he waited for all that. What does your common sense say? They got me. Plan B. That's whathappened here, ladies and gentlemen. (N.T. Jury Trial, at 1026-27.) Following Attorney Scheetz's closing argument, defense counsel objected to this reference and properly preserved his argument for appellate review. See Pa.R.A.P. 302(a). Defense counsel moved for animmediate mistrial. A trial court may only grant a mistrial when "the incident upon which the motion is based is ofsuch a nature that its unavoidable effect isto deprive the defendant ofa fair trial by preventing thejury from weighing andrendering a true verdict." Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008). Review ofa trial court's denial ofa motion for a mistrial is lirnitedto determining whether the trial court abused its discretion. 

### Id. at 142. An abuse ofdiscretion requires more than a mere error of judgment. 

### Id. Thus, discretion is abused only when "in reaching a conclusion the law is overridden ormisapplied, orthe

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judgment exercised is manifestly unreasonable, orthe result ofpartiality, prejudice, bias or ill-will." ld. (quoting Christianson v. Ely, 838 A.2d 630,634 (Pa. 2003)). Itis well-established that attorneys' arguments are not evidence, and may only be considered to the extent they are supported bythe evidence. See Commonwealth v. Baez, 720 A.2d 711,729 (pa. 1998) (noting that a prosecutor's comments do not constitute evidence). Furthermore, a prosecutor's comments will not constitute reversible error "unless the unavoidable effect ofsuch comments would beto prejudice thejury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weighthe evidence objectively and render a true verdict." ld (citing Commonwealth v. Sam, 535 Pa. 350,362,635 A.2d 603,608 (1993), cert. denied, 511 U.S. 1115,114 S.Ct. 2123,128 L.Ed.2d 678 (1994); Commonwealth v. Jones, 530 Pa. 591, 607, 610 A.2d 931, 938-39 (1992)). Pennsylvania case lawrecognizes thatthe Commonwealth is notpermittedto impeach a testifying defendant regarding the inconsistency between silence at the time of arrest, butbefore Miranda warnings are administered, and his trial testimony. See Commonwealth v. Turner, 454 A.2d 537, 539-40 (Pa. 1982). However, where a defendant gives a statement to the police and later acknowledges thathis statement was a falsehood, a prosecutor mayproperly ask questions tending to highlight that inconsistency to thejury. See Commonwealth v. McNeal, 319 A.2d 669, 673 (Pa. 1974) (cross-examination question posed to defendant whose in-court testimony contradicted what he told police officers regarding whether he was "lying" to them does not create prejudice, bias, orhostility in the jury).

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This case presents a factual scenario where Appellant, through his direct examination, opened the doorto questions about his credibility on cross-examination and comments onhis credibility during the Commonwealth's closing argument. Appellant testified unequivocally on direct examinationthat he was nottruthful with the police. He acknowledged for the first time while hetestified that he was indeed the shooterwho killed Devon Robinson. The Commonwealth was then atlibertyto ask appropriate questions to call attention to Appellant's in-court admission and the contradictory statements he made and position he took prior to that day because 

### itreflected onhis credibility. Appellant asserts, as defense counsel did following the Commonwealth's closing statement, that the Commonwealth madereference to Appellant's testimonial silence and his invocation ofhis right to remain silent. This is notthe case. The Commonwealth properly emphasized through its questioning ofAppellant that he had lied to the police and

was now acknowledging that fact. The Court must acknowledge that the Commonwealth's initial questions to Appellant on cross-examination mischaracterized Appellant's direct examination testimony. Duringhis direct examination, Appellant testified that he shot Devon Robinson and never denied the shooting. The Commonwealth's questions indicating that Appellant denied the shooting on direct examination were incorrect. However, Appellant properly responded by indicating that his testimony was that he did shoot Devon Robinson. Additionally, while the Commonwealth's questions on cross-examination mischaracterized Appellant's testimony on direct examination, the Court issued an instruction during its

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final charge that thejurors were to rely solely on their own reGOllection ofthe testimony, not counsels' recollections. Furthermore, the Commonwealth's comments during its closing argument attempted to offer some explanation as to why Appellant changed his mind. During a closing argument, it is entirely proper for a prosecutorto summarize the evidence, offer reasonable deductions and inferences for thejuryto draw therefrom, and argue the evidence establishes the defendant's guilty beyond a reasonable doubt. Commonwealth v. Thomas, 54 A.3d 332, 338 (Pa. 2012) (citation omitted). Comments constituting mere oratorical flair are not objectionable because a prosecutor is free to present his argument with a logical amount offorce and vigor. Id.; Commonwealth v. Hutchinson, 25 A.3d 277, 306-07 (pa. 2011). Here, the Commonwealth endeavored to offer thejury an explanation for why Appellant decided to admit his guilt for the first time on the final day oftestimony. The evidence, both circumstantial and direct, showed that Appellant was guilty, and Appellant opened the doorto commentary onhis prior lies to police when he outwardly acknowledged that he had lied to them during their investigation. Accordingly, Attorney Scheetz's comments regarding Appellant's admission that he lied to police were proper and do not constitute reversible error. The next issue also concerns Attorney Scheetz's comments during his closing argument. At the outset ofthe Commonwealth's closing argument, Attorney Scheetz remarked: I'm not going to talk to you like I'm a doctor ofthe law. I like that, but I'm not going to talk down to you. I'm not going to lecture you. I'm not going to make you sit through class. What I want to do is talk to you about common sense, okay. Common sense each ofyou has inyour everyday



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experience. That's what I'm going focus on. The defendant's job, Mr. Charles' job, is to argue. It's also to confuse you, to muddy the water. (N.T. Jury Trial, at 1025 (emphasis added).) Defense counsel objected and his objection was overruled. Following the closing argument and after thejury was excused, Attorney Charles moved for a mistrial, which

was denied. In similar case, 

### Commonwealth v. 

### Carter, 855 A.2d 885 (Pa. Super. 2004) (rev'd

on other grounds, 

### Commonwealth 

### v. Knox, 50 A.3d 749 (Pa. Super. 2012», the Commonwealth argued to thejurythat the defense was attempting to muddy the water by using an allusion to compare the defendant's trial strategy to an octopus clouding the water and escaping by releasing its pouch ofink. 

### Carter, 855 A.2d at 889. The Superior Court reviewed these comments and found no reversible error. 

### Id. at 890. Itreasoned that counsel is permitted to use a certain amount oforatorical flair inpresenting its case to the jury, and the Court gave thejury a cautionary instruction reminding it that comments by the attorneys do not constitute evidence inthe case. 

### Id. at 889-90. Applying the standards setforth above, Attorney Scheetz's comments were not grounds for a mistrial. Attorney Scheetz appealed to thejurors' common sense to render their verdict without being overly confused by defense counsel's argument. Defense counsel's closing summarized the testimony and evidence and previewed various legal topics that were later explained in full inthe closing instructions by the Court. Defense counsel's closing was legalistically-styled and the Commonwealth's closing took a
common sense approach whichresponded to defense counsel's closing. 

### See Commonwealth 

### v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation omitted) (noting

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prosecutor may fairly respond to defense counsel's closing). Finally, during the closing instructions, the Court instructed thejury: Now, the attorneys have made reference to some testimony inthe case during their closing arguments. I may make some reference to some portions ofthe testimony in order to pointoutthe issues which you must resolve. Neither the lawyers, who are respected members ofthe bar, norwould I intentionally mislead you with respect to any ofthe testimony that has been produced. Nevertheless, ifthrough some inadvertence, the recollection ofthe attorneys or the recollection ofmyself should be at variance with your recollection, then disregard what we say the evidence or statement was and rely upon your ownrecollection ofwhatthat testimony has been. (N.T. Jury Trial, at 1046-47 (emphasis added).) Accordingly, a proper cautionary instruction was issued advising thejurythat counsel did not attempt to mislead them with respect to testimony. Jurors are presumed to follow the court's instructions. Commonwealth v. Passarelli, 789 A.2d 708, 713 (Pa. Super. 2001) (citation omitted). Therefore, Attorney Scheetz's comments regarding the defense attempting to muddy the water and confuse thejury were notimproperly prejudicial to Appellant and an appropriate cautionary instruction was issued during the closing instructions. In sum, none ofAttorney Scheetz's comments or questions posedto Appellant

were improperlyprejudicial such that they warranted a mistrial. Appellant's change of position and admission on direct examination thathe lied to the police openedthe door to examination ofthat area on cross-examination and commentary during the closing. Further, Attorney Scheetz's comments during the closing about defense counsel attempting to muddy the water were proper and within the scope oforatorical flair

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afforded to counsel during their closings, and a proper cautionary instruction was issued during the closing instructions. No reliefis due. Questioning

### by the Court In his third issue, Appellant asserts that the Court assumed a position ofadvocacy by questioning Appellant using questions which were close in form to cross-examination. Admissibility ofevidence is a matter ofdiscretion for the trial court and only amounts to reversible error when there is a showing ofboth abuse ofthat discretion and resulting prejudice. Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012) (citation omitted). With respect to trial court questioning ofwitnesses or the defendant, Pennsylvania appellate courts have noted that trialjudges must be ever cautious that their questioning of any witnesses "not showbias or a beliefin the credibility ofparticular witnesses." Commonwealth 

### v. Hogentogler, 53 A.3d 866, 880 (Pa. Super. 2012) (quoting Commonwealth 

### v. Folino, 439 A.2d 145, 148 (pa. Super. 1981)). Nonetheless, trialjudges have the "inherentright, and, at times, the duty to question witnesses to clarify existing facts and to elicit new information." 

### Id. Thus, where clarification or eliciting new information are the objectives ofthe questioning and it is neither unduly protracted or conducted in a marmer demonstrating bias, the trialjudge's discretion in questioning witnesses will not be found erroneous. 

### Id. In this case, the sole defense witness was Appellant. At two points during Appellant's testimony, the Court asked questions ofAppellant. First, during crossexamination, the following exchange occurred:

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BY MR. SCHEETZ: Q


### A 

### Q A 

### Q A Q 

### A Okay. Your testimony was that, basically, you got to the gas station. There was a fight. Someone pulled a gun, you ran? No, no, that's not what happened. I got punched. You're not being specific. All right. Can you be specific, please? You got up here on the witness stand. Yes. And you said that someone pulled a gun out and you were afraid for your life and you ran, correct? No. THE COURT: Let mejust ask one question. Back at Sixth and Gordon, at that time when you were down there, THE WITNESS: Yes. THE COURT: Why did you put that gun inyour waist at that point and take itwith you? THE WITNESS: I took it from Choko since he was a minor. THE COURT: Why didn't youjust leave it there? Why did you take it and put 

### itin your possession? THE WITNESS: You're right, buthe was acting out ofcontrol, and then a minor had it. THE COURT: Why did you do that? THE WITNESS: Because I seen that-- THE COURT: You had no permit to carry a gun; did you? No lawful right to carry that gun; did you? THE WITNESS: No. THE COURT: You put it inyour waistband and took it up to the 10th and-- THE WITNESS: I was going to walk home, and when I seen Kareem Lomax, and 

### I know he's a Blood member

-- THE COURT: Why didn't you -- THE WITNESS:

-- I was scared. THE COURT: Why didn't you get rid ofthe gunright away? THE WITNESS: Because I was going to walk home. I was scared because I know Mario shot at Kareem Lomax at Sixth and Gordon. THE COURT: All right. Go on. (N.T. Jury Trial, at 914-15.) The Court first notes that defense counsel did not object to this line ofquestioning, which constitutes waiver ofthe issue for appellate purposes. Pa.R.A.P. 302(a) ("Issues

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not raised in the lower court are waived and cannot be raised for the first time on appeal."). Even ifdefense counsel had objected, the questioning was proper to clarify Appellant's responses to Attorney Scheetz's questions because Appellant was nonresponsive to Attorney Scheetz in his requests for additional specificity. Furthermore, this line ofquestioning could theoretically have been helpful to Appellant ifhe had a permit to carry a firearm. Nonetheless, these questions drewno objection from defense counsel, and as a result, they cannot serve as the basis for an appellate issue. The second interaction between the Court and Appellant came at the close of defense counsel'sredirect examination: THE COURT: Before -- let me ask you a question. You were here. You heard the testimony ofthe parties. You sawthe video. You saw the time when Devon got shot. You recall the figure onthat video pointing that -- the weapon, and the testimony that Devon got shotin the chest and then shot in the head. Do you recall that? THE WITNESS: I don't remember. THE COURT: You don't -- you remember it as far as seeing it in the courtroom? THE WITNESS: Well, we seen it. THE COURT: And you saw it? THE WITNESS: Pardon me? THE COURT: Andthe party who evidently did it, the aim was pretty good; wasn't it? Right in the chest, right inthe head? (N.T. Jury Trial, at 937.) Atthis time, defense counsel objected and moved for a mistrial. A discussion was held at sidebar as follows: MR. CHARLES: I object to this. I'm going to move for a mistrial. You're

-- you're -- you're almost taking onthe cross-examination for the Commonwealth. THE COURT: No, I'm not. MR. CHARLES: I mean, what does aim have to do with anything? THE COURT: Except hejustindicated that--

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MR. CHARLES: Are youtrying to make outthe case for the prosecution? THE COURT: No, I'm nottrying to, butI asked the question, and the Court MR. CHARLES: I thoughtthe Court's position was they weren't going to do this. THE COURT: The Court has a rightto ask these questions. Ifyou wish, I will limit it at this point. MR. CHARLES: Let mejustexpress my concern, Your Honor. Your Honor has been very gracious to thisjury from the time we picked it. The jury respects Your Honor, as they should. I don't know ifyou realize this, but you appear to be taking almost, like, an angry cross-examination approach towards my client. Thejury can see this. I think it's unfairly prejudicial to my client, and I think it is going to tip the balance ofhowthis verdict is going to come outifyoupersist in doing this. I would respectfully request Your Honor to leave the questions to the District Attorney's Office. THE COURT: Mr. Charles, let me indicate, the Court does have a rightto MR. CHARLES: I understand. It almost looks as though you're trying impeach my client. That's what it looks like. THE COURT: Mr. Charles, that would notbethe case. Clearly, my questions were basically - I will agree, certainly, at this point, I will not ask any further questions unless I feel it's in the interest of justice. MR. CHARLES: And I respectfully say this: I'm saying this out ofdue respect to the Court. Please don't take offense; are you trying to impeach my client? That's what it looks like with the questions. THE COURT: That would not be the case, believe me. You've known me for many, many years. MR. CHARLES: I know that. I knowthat. Sometimes we can't see what we appear like in -- THE COURT: Mr. Charles. Youmay take over. (Speaking to Mr. Scheetz) (N.T. Jury Trial, at 937-39.) The Court asked no further questions ofAppellant following the sidebar discussion. The questions asked ofAppellant showed no bias onthe Court's part. Itwas also not designed to influence thejurywithrespect to Appellant's credibility. Nevertheless, as a precautionary measure during the closing instructions, thejury was instructed as follows:

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Now, the questions that a counsel may putto the witnesses are not evidence. I also indicate to you that the questions I may have posed to a witness are not evidence. You should not guess that a fact is truejustbecause one ofthe attorneys or I asked a question about it. Itis the witness's answers thatprovide the evidence. Ofcourse you may have to consider the question to know what a witness means by his orher answer. For instance, ifa witness responds yes to a question, youhave to knowthe question to understand what the witness is really saying, in other words, their response to a question. But, again, I reinforce with you, any question that I may have asked is not evidence in the case. It's not to be taken that I in any way was showing favor. I don't take sides. And that's my oath, that's my responsibility, to keep a level playing field. You and you alone are the solejudges ofthe facts. Now, I indicate to you that you are the finders of fact. (N.T. Jury Trial, at 1048-49 (emphasis added).) As the Superior Courthas observed, A factor to be considered 

### in assessing the impact oferror, ifindeed there was one here, is whether the trial court instructed thejury to disregard information improperly before it. Prejudice can be rectified and rendered harmless by such instructions. The instructions need not be given immediately following the erroneous admission, but may occur later inthe charge. Itmust be assumed that thejury obeys the instruction and that the error is thereby rendered harmless. 

### Commonwealth 

### v. Rough, 418 A.2d 605, 611 (Pa. Super. 1980) (citations omitted). To demonstrate that the questions posed to Appellant constituted reversible error, Appellant must demonstrate abuse ofdiscretion 

### andresultant prejudice. 

### Glass, 50 AJd at 724-25 (citations omitted). 

### In this case, Appellant carmot do so. The Court, out ofan abundance ofcaution, issued a cautionary instruction reminding thejurythatit should not interpret any questions posedbythe Court as being indicative offavoritism toward one

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side or the other. This counterbalanced any appearance ofbias and redirected thejurors' focus to the testimony ofthe witnesses alone. Additionally, questions posed to Appellant regarding his aim in using the firearm, attheir worst, addressed the element ofintent to kill for murder in the first degree. See Commonwealth v. Bedford, 50 A.3d 707 (Pa. Super. 2012) (specific intent to kill can be inferred from use ofa deadly weapon on a vital part of victim's body). Thejuryreturned a verdict ofmurder in the third degree, which has no requirement ofintent to kill. Third-degree is a killing with malice which is neither intentional nor committed during the perpetration ofa felony, but contains the requisite malice. Commonwealth v. Morris, 958 A.2d 569 (pa. Super. 2008). Appellant's conviction ofmurder in the third degree and the cautionary instruction issued to thejury belies Appellant's claim in this case because Appellant cannot demonstrate prejudice. As a result, the Court's questions posed to Appellant were proper and any perceived impropriety was corrected by an appropriate cautionary instruction. GangMembership of Commonwealth Witnesses In his fourth appellate issue, Appellant contends that the Court erred in precluding defense counsel from examining Commonwealth witnesses about their possible membership in gangs. Appellant argues that this prevented him from demonstrating that he acted in self-defense when he shot and killedthe victim. This contention lacks merit. A review ofthe trial transcript reveals that defense counsel, through crossexamination, attempted to demonstrate that Kareem Lomax was a known member ofthe Bloods street gang. (N.T. Jury Trial, at 137,604,845,864,889,956.) Defense counsel also attempted to show that Nelson Soler was affiliated with the Bloods. (N.T. Jury Trial,

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at442). Both Lomax and Soler testified as witnesses for the Commonwealth at Appellant's trial. The Commonwealth objectedto defense counsel's attempts to showthe gang affiliation ofthese two witnesses and the Court sustained the objections based on irrelevancy. "All relevant evidence is admissible, except as otherwise provided by law. Evidence that is notrelevant is not admissible." Pa.R.E. 402. "Evidence is considered relevant ifit logically tends to establish a material fact inthe case, tends to make the fact at issue more or less probable, or supports a reasonable inference orpresumption regarding the existence ofa material fact." Commonwealth 

### v. LaCava, 666 A.2d 221, 227"28 (Pa. 1995). Nonetheless, admissibility ofevidence is left to the sound discretion ofthe trial court and evidentiary rulings will be reversed only where there is a showing ofboth abuse ofthat discretion and resulting prejudice. Commonwealth v. Glass, 50 A.3d at 724-25 (citation omitted). As stated in the "Factual and Procedural History" section above, Manuel DeLaRosa and Mario Nunez chased and shot at Kareem Lomax after an altercation in front ofDarlene DeLeon's residence onthe night ofOctober 21, 2011. Later, in the early hours ofOctober 22, 2011, Lomax confronted DeLaRosa about the earlier incident whenthe two inadvertently met at the Sunoco gas station. Appellant was present at the Sunoco with DeLaRosa. Soler was also present atthe Sunoco as a member ofLomax's group. The confrontation between Lomax and Manuel DeLaRosa instigatedthe brawl that ultimately resulted in Devon Robinson punching Appellant and Appellant retaliating by shooting and

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killing Robinson. At some point during this brawl, Solerpointed a gun inthe direction of Appellant's group. On the night ofthe shooting, Lomax in no way threatened Appellant orputhim in fear for his life. In fact, Appellant testified that he knew Lomax and that no animosity existed between the two men. Whether Lomax was a member ofthe Bloods gang had no bearing onAppellant's decision to chase, shot and kill Devon Robinson. Therefore, the admission ofsuch evidence couId notpossibly be relevant to any potentialjustificationor self-defense claim ofAppellant. Additionally, Appellant, through his own testimony, admitted to being an acquaintance ofLomax. The two men resided in the same neighborhood and saw each other on a regular basis. In fact, Appellant explained that he would greet Lomax with a handshake whenever the two would meet. Allowing evidence ofLomax's gang affiliation couId have prejudiced Appellant inthe eyes ofthejury inthat it would have shown himto be associated with a member ofa violent street gang. As to Soler, thejury heard testimony that Soler pointed a gun in the direction of Appellant's group at the Sunoco Station. While this evidence couId potentially be relevant to a self-defense claim against Soler, Appellant shot and killed Devon Robinson, not Soler. Evidence ofSoler's purported gang membership is even more attenuated. In light ofthe fact that Appellant admitted that he interacted socially with Bloods like Lomax, the question ofwhether Soler belonged to the Bloods gang hadno bearing on Appellant's claim that he was in fear for his life onthe night ofthe shooting.

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Finally, Appellant took the stand and testified as to his beliefthatLomax and many others in the large group he was with at the Sunoco were affiliated with the Bloods street gang and that the Bloods had a reputation for violence. (N.T. Jury Trial, at 896). The Commonwealth did not object to this testimony. Appellant's trial testimony in this regard

was corroborated by the trial testimony ofMarco Bowen. Bowen took the stand as a Commonwealth witness andtestified that, while bothhe and Appellant were inmates at Lehigh County Prison, Appellant had admitted to him that he killed Devon Robinson. Bowen also testified that Appellant told him that the shooting related to his problems with the Bloods and that he feared the Bloods. (N.T. Jury Trial, at 594,604-05). Thus, thejury

was aware ofAppellant's contention that he was in fear for his safety when he encountered the large group ofpurported Bloods onthe night ofOctober 22,2011. For all ofthese reasons, evidence ofthe alleged gang membership ofLomax and Soler was properly excluded attrial as irrelevant without compromising Appellant's ability to make his argument to thejuryregarding his fear for his safety. 

## * * * * * * * * ** In sum, all ofAppellant's allegations oferror lack merit. Therefore, it is respectfully submitted thatthis appeal be denied.

December**~** 2013 LA WRENC J. BRENNER, SENIORJUDGE

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