J. S63007/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

WILLIAM ORTIZ, : No. 3301 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, June 18, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR-0001116-2012,

CP-51-CR-000-1119-2012, CP-51-CR-0001122-2012,

CP-51-CR-0001561-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 22, 2016

William Ortiz appeals the judgment of sentence in which the Court of 

Common Pleas of Philadelphia County, after a jury trial, sentenced him to 

serve an aggregate of 36 to 72 years’ imprisonment for four counts of 

aggravated assault, four counts of possession of an instrument of crime, 

possession of a firearm prohibited, firearms not to be carried without a 

license, and carrying firearms on public streets in Philadelphia.1

The facts as recounted by the trial court are as follows:

On July 5, 2011, Sergeant Joseph McDonald 

responded to a call for multiple gunshots in the area 

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a), 907(a), 6105(a)(1), 6106(a)(1), and 6108, 

respectively.
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of Ann Street and Amber Street in Philadelphia, 

Pennsylvania. Sergeant McDonald pulled onto 

Bellmore Avenue, saw people congregated, and

began to clear the area and mark it off as a crime 

scene. Counsel stipulated to three people being 

wounded by gunshots: Angel Rodriguez, Sianie 

Pena, and [appellant]. Sergeant McDonald testified 

the street was littered with numerous shell casings 

from a handguns [sic] and a shotgun. Sergeant 

McDonald further testified a blue van, pickup truck, 

and house near the scene were riddled with bullet 

holes. . . .

. . . . Officer Ronald Weitman, stipulated as an 

expert in ballistics and firearms identification, 

testified that a total of nine fired cartridge casings 

from a .45 caliber gun, eight fired cartridge casings 

from a .40 caliber gun, and seven fired cartridge 

casings from a .380 caliber gun were all recovered 

near the intersection of Orleans and Amber 

Street’s [sic].

On July 5, 2011, at approximately 5:30 [p.m.], 

Angel Rodriguez, entered a grocery store at the 

corner of Bellmore Avenue and Amber Street, to buy 

a soda. Mr. Rodriguez left the store and crossed 

Amber Street, when he was shot in his right rib cage. 

. . . . Mr. Rodriguez did not sustain damage to any 

organs or vital areas. In his statement made to 

detective Ronald Aitken on July 12, 2011, 

Mr. Rodriguez stated that “This guy ([appellant]), he 

was in the same store I was in when the shooting 

[occurred].” However, at trial, Mr. Rodriguez 

testified that he could not recall seeing [appellant] in 

the store with him, and stated he knew [appellant] 

from the neighborhood. Mr. Rodriguez testified he 

heard gunfire from both directions on Amber Street 

from Orleans Street to Stella Street.

Sianie Pena, a two-year-old victim, was playing 

in the backyard of her godfather’s house when a 

stray bullet struck her. . . . Sianie suffered a 

gunshot wound to her right shoulder. On July 18, 

2011, the bullet was removed surgically.
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[Appellant] suffered gunshot wounds to his 

lower left quadrant, right lower quadrant, and right 

back area. [Appellant] was taken to Episcopal 

Hospital by his friends, Isaias Justiniano and Jose 

Melendez. [Appellant] underwent surgery and was 

released on July 16, 2011.

Detective Leahy testified that Mr. Justiniano’s 

statement from . . . July 6, 2011, indicated, “I 

noticed that Wreck[Footnote 1] [appellant] was 

trying to get into his car and as he tried to get up 

the first time, he fell to his knees. He got back up 

and then I noticed as he tried to get back up that he 

dropped a few things from his hands. I couldn’t tell 

what he was dropping[,] but I heard a loud clang 

when whatever it was hit the ground.” Detective 

Leahy further testified that he took Mr. Justiniano’s 

statement verbatim, and Mr. Justiniano was given an 

opportunity to make any changes to his statement 

after he reviewed it. Detective Leahy testified that 

two other individuals, Angel Castro and Julio Medina, 

were arrested with [appellant] and Mr. Justiniano, in 

relation to the shooting on July 5, 2011.

[Footnote 1] The written statement 

indicates “Rec” as the alias for 

[appellant] but the Notes of Testimony 

indicate “Wreck.”

. . . . At trial, Mr. Justiniano testified that he did not 

recall that part of his statement, and claimed that 

the word “clang” was not a part of his vocabulary. 

Mr. Justiniano further testified he had seen 

[appellant] drop his phone and keys, and it must 

have been the phone that made the “clang” noise. 

Mr. Justiniano testified that the reason he failed to 

tell the detectives that [he] saw [appellant] drop 

anything was that he was trying to make his 

statement as short as possible, and wanted to leave.

At trial, Mr. Melendez testified he did not know 

[appellant] by any name other than William Ortiz. 

Mr. Melendez testified he did not see [appellant] 

drop a gun at the scene of the crime, or mention a 
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gun at all to Detective Ronald Aitken, who took 

Mr. Melendez[’s] statement. However, 

Mr. Melendez’s testimony was contradictory to his 

statement made to Detective Aitken on July 6, 2011 

and July 12, 2011. In his statement made on July 6, 

2011, Mr. Melendez referred to [appellant] as 

“Wreck” multiple times, and acknowledged the name 

“Wreck” in response to questions made by Detective 

Aitken. In the same statement, Mr. Melendez stated 

he saw [appellant] drop a “dark-colored gun.” In his 

statement made to Detective Aitken on July 12, 

2011, Mr. Melendez stated the reason [appellant] 

was out on the block that particular day was because 

he “hustles around the area.” Mr. Melendez testified 

that the statement he gave on July 12, 2011, was 

just a regurgitation of the statement he made on 

July 6, 2011. Mr. Melendez testified that he did not 

ID [appellant] with a gun on the night of the 

shooting. However, in his statement made on 

July 12, 2011, Mr. Melendez confirmed for the 

detective that he had identified [appellant] with a 

gun on the night of the shooting. Mr. Melendez 

further testified that the statements he made to 

Detective Aitken on July 6, 2011, and July 12, 2011 

were both dated, signed, and reviewed by 

Mr. Melendez.

Trial court opinion, 1/30/16 at 2-6 (citations omitted).

Following appellant’s convictions and sentencing, appellant filed a 

post-sentence motion which was denied by operation of law on October 27, 

2014.

Appellant raises the following issues before this court:

I. Whether [appellant] is entitled to an arrest of 

judgment and/or new trial in the 

above-captioned matter on the ground that the 

verdict is against the weight of the evidence 

since the Commonwealth’s own witnesses 

placed [appellant] inside the corner store at 

Amber and Bellmore Streets at the time of the 
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shooting and the wounds on [appellant’s] body 

were inconsistent with him being one of the 

shooters involved in the incident in question?

II. Whether [appellant] is entitled to an arrest of 

judgment in the above-captioned matter on 

the ground that the evidence was insufficient 

to sustain [appellant’s] conviction at CP-51-

CR-0001119-2012 (complt. Julio Medina) and 

CP-51-CR-0001122-2012 (complt. Angel 

Castro) since the Commonwealth’s evidence 

failed to establish that [appellant] was one of 

the shooters in the incident in question and 

also failed to establish that complainants 

Julio Medina and Angel Castro were even 

present at the scene at the time of the 

incident?

III. Whether [appellant] is entitled to an arrest of 

judgment in the above-captioned matter on 

the ground that the evidence was insufficient 

to sustain [appellant’s] convictions at CP-51-

CR-0001116-2012 (complt. Angel Rodriguez) 

and CP-51-CR-0001561-2012 (complt. Siani[e] 

Pena) since [appellant] was acquitted of 

Conspiracy (F1) and the Commonwealth’s 

evidence failed to establish that [appellant] 

fired the shots which struck either Angel 

Rodriguez or Siani[e] Pena and in fact, failed 

to even establish that [appellant] was a 

shooter in the alleged incident giving rise to 

the charges?

IV. Whether [appellant’s] sentence of 15-30 years 

for Aggravated Assault (F1) at CP-51-CR0001561-2012 should be vacated on the 

ground that the sentence is illegal in that it 

exceeds the statutory maximum established by 

18 Pa.C.S.[A.] § 1103?

V. Did the lower court err in denying [appellant’s] 

request for a mistrial after the prosecutor 

committed prosecutorial misconduct by 

improperly stated [sic] in closing argument, 
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“tell [appellant] it’s not okay to turn your 

neighborhoods into a shooting gallery.”?

Appellant’s brief at 3-4.

Initially, appellant contends that he is entitled to an arrest of judgment 

and/or a new trial because the verdict was against the weight of the 

evidence in that the Commonwealth’s own witnesses placed appellant inside 

a corner store at the time of the shooting and appellant’s wounds were 

inconsistent with him acting as one of the shooters. Specifically, appellant 

argues that because Angel Rodriguez testified that appellant was in the store 

at the corner of Bellmore and Amber Streets, that meant he could not be at 

the corners where the shooting took place. Similarly, appellant argues that 

the fact that he sustained gunshot wounds to both sides of his body 

indicated that he was caught in a crossfire of two groups of shooters as 

opposed to him acting as a shooter.

[T]he weight of the evidence is 

exclusively for the finder of fact who is 

free to believe all, part, or none of the 

evidence and to determine the credibility 

of the witnesses. An appellate court 

cannot substitute its judgment for that of 

the finder of fact . . . thus, we may only 

reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock 

one’s sense of justice. Moreover, where 

the trial court has ruled on the weight 

claim below, an appellate court’s role is 

not to consider the underlying question 

of whether the verdict is against the 

weight of the evidence, . . . rather, 

appellate review is limited to whether the 
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trial court palpably abused its discretion 

in ruling on the weight claim.

Commonwealth v. Kim, 888 A.2d 847, 851 

(Pa.Super. 2005) (citations and quotations omitted). 

A motion for a new trial based on a challenge to the 

weight of the evidence concedes the evidence was 

sufficient to support the verdict. Commonwealth v. 

Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

With respect to this issue of whether the verdict was against the 

weight of the evidence, the trial court reasoned:

Although in his statement to Detective Aitken, 

Mr. Rodriguez stated [appellant] was with him in the 

store right before the shooting, at trial he testified 

that he could not recall [appellant] being in that 

store. As Mr. Rodriguez indicated different facts at 

different times, it is well within the discretion of the 

jury to determine which facts are true. The jury 

heard the mere inconsistency in Mr. Rodriguez’s 

testimony but was still able to determine the facts of 

the case.

[Appellant] contends that his wounds were 

inconsistent with him being one of the shooters 

involved in the incident. There was no evidence 

presented to infer the injuries sustained by 

[appellant] were inconsistent with him being one of 

the shooters in the incident. The injuries [appellant] 

sustained to his lower left quadrant, lower right 

quadrant, and right back area, could have all been 

sustained during, or after, his direct involvement in 

the shooting. There is circumstantial evidence 

demonstrating [appellant] was in a shootout, and he 

could have been wounded at any point.

Trial court opinion, 1/30/16 at 9.
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This court determines that the trial court did not abuse its discretion. 

Rodriguez presented conflicting evidence. The jury, as the fact-finder, had 

the authority to believe all, part, or none of Rodriguez’s testimony. See 

Commonwealth v. Keaton, 729 A.2d 529, 540 (Pa. 1999). In addition, 

the trial court correctly stated that there is nothing in the record to support 

appellant’s contention that the location of his wounds proves that he was not 

one of the shooters. The evidence appellant cites does not lead to the 

conclusion that the jury’s verdict shocked one’s sense of justice.

Appellant next contends that he is entitled to an arrest of judgment on 

the basis that the evidence was insufficient to sustain his convictions at 

CP-51-CR-0001119-20112 and CP-51-CR-0001122-2012 because the 

Commonwealth’s evidence failed to establish that he was one of the shooters 

at the incident and failed to establish that the complainants Julio Medina 

(“Medina”) and Angel Castro (“Castro”) were present at the scene at the 

time of the incident.2 Appellant asserts that the record does not contain any 

evidence that either Medina or Castro were present at the time of the 

shooting, were intended targets, or were harmed in any way. Further, 

appellant asserts that the Commonwealth failed to produce any eyewitness 

testimony that identified him as a participant in the shooting.

A claim challenging the sufficiency of the 

evidence is a question of law. Commonwealth v. 

Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 

 

2 Appellant was charged under four different docket numbers. Two of them 

listed the complainants as Julio Medina and Angel Castro, respectively.
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(2000). In that case, our Supreme Court set forth 

the sufficiency of the evidence standard:

Evidence will be deemed sufficient to 

support the verdict when it establishes 

each material element of the crime 

charged and the commission thereof by 

the accused, beyond a reasonable doubt. 

Commonwealth v. Karkaria, 533 Pa. 

412, 625 A.2d 1167 (1993). Where the 

evidence offered to support the verdict is 

in contradiction to the physical facts, in 

contravention to human experience and 

the laws of nature, then the evidence is 

insufficient as a matter of law. 

Commonwealth v. Santana, 460 Pa. 

482, 333 A.2d 876 (1975). When 

reviewing a sufficiency claim the court is 

required to view the evidence in the light 

most favorable to the verdict winner 

giving the prosecution the benefit of all 

reasonable inferences to be drawn from 

the evidence. Commonwealth v. 

Chambers, 528 Pa. 558, 599 A.2d 630 

(1991).

Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

A person will be found guilty of aggravated assault if he “attempts to 

cause serious bodily injury to another, or causes such injury intentionally, 

knowingly or recklessly under circumstances manifesting extreme 

indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The 

term “serious bodily injury” is defined by statute as “[b]odily injury which 

creates a substantial risk of death or which causes serious, permanent 
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disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ.” 18 Pa.C.S.A. § 2301. 

[T]he charge of aggravated assault can be supported 

. . . if the evidence supports a finding of an attempt

to cause such injury. A person commits an attempt

when, with intent to commit a specific crime, he 

does any act which constitutes a substantial step 

toward the commission of that crime. An attempt

under Subsection 2702(a)(1) requires some act, 

albeit not one causing serious bodily injury, 

accompanied by an intent to inflict serious bodily 

injury.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012) 

(quotations and quotation marks omitted).

Where the victim suffers serious bodily injury, the Commonwealth is 

not required to prove specific intent. Commonwealth v. Nichols, 692 A.2d 

181, 185 (Pa.Super. 1997). Instead, the Commonwealth must establish that 

the defendant acted recklessly under circumstances that manifested an 

extreme indifference to the value of human life. Id. In order to prevail on a 

theory of recklessness, the Commonwealth must prove that the defendant 

acted with malice. Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 

2007). 

Malice exists where there is a 

“wickedness of disposition, hardness of 

heart, cruelty, recklessness of 

consequences, and a mind regardless of 

social duty, although a particular person 

may not be intended to be injured.” 

Commonwealth v. Pigg, 391 Pa.Super. 

418, 571 A.2d 438, 441 (1990), appeal 

denied, 525 Pa. 406, 581 A.2d 565 
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(1990) (quoting Commonwealth v. 

Drum, 58 Pa. 9, 15 (1868). Where 

malice is based on a reckless disregard 

of consequences, it is not sufficient to 

show mere recklessness; rather, it must 

be shown the defendant consciously 

disregarded an unjustified and extremely 

high risk that his actions might cause 

death or serious bodily injury. See 

Commonwealth v. Scales, 437 

Pa.Super. 14, 648 A.2d 1205, 1207 

(1994), appeal denied, 540 Pa. 640, 

659 A.2d 559 (1995) (regarding third 

degree murder). A defendant must 

display a conscious disregard for almost 

certain death or injury such that it is 

tantamount to an actual desire to injure 

or kill; at the very least, the conduct 

must be such that one could reasonably 

anticipate death or serious bodily injury 

would likely and logically result. See

[Commonwealth v.] O’Hanlon, . . . 

[539 Pa. 478,] 653 A.2d [616] at 618 

[(1995)] (regarding aggravated assault).

[Commonwealth v.] King, 731 A.2d [145] at 147-

148 [(Pa.Super. 1999)].

Bruce, 916 A.2d at 664.

With respect to this sufficiency issue, the trial court determined:

There is sufficient circumstantial evidence to 

prove [appellant] possessed the intent to shoot and 

thus cause serious bodily injury to Julio Medina and 

Angel Rodriguez. Based on Mr. Justiniano’s 

testimony, a reasonable jury could conclude that the 

“clang” noise he heard when he observed [appellant] 

drop a few things from his hands, was in fact a gun. 

A reasonable jury could also conclude that 

[appellant] possessed a gun based on Mr. Melendez’s 

testimony that he saw [appellant] drop a 

“dark-colored gun.” Mr. Melendez testified that 

[appellant] was out on the block that particular day 
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. . . because he “hustles around the area.” The 

circumstantial evidence indicates that the shooting 

occurred due to a dispute concerning the area in 

which [appellant] “hustled.” While there was 

inconsistent testimony as to Julio Medina and Angel 

Castro’s involvement in the shooting, they were both 

arrested on the same day of the shooting. The 

totality of circumstantial evidence is adequate to 

enable a reasonable jury to conclude that [appellant] 

intended to shoot Julio Medina and Angel Castro, but 

instead struck Angel Rodriguez and Sianie Pena.

Trial court opinion, 1/30/16 at 10-11 (citations omitted).

The record reflects that Angel Rodriguez testified that he observed 

gunshots coming from two directions with a group of five to ten teenagers 

on Stella Street and a similar sized group on Orleans Street. (Notes of 

testimony, 4/1/14 at 101-102.) Appellant was shot multiple times in this 

incident. Jose Melendez testified when reading from his statement that he 

saw appellant drop a gun. (Notes of testimony, 4/3/14 at 125-126.) 

Further, Isaias Justiniano (“Justiniano”), who pled guilty to aggravated 

assault in the same incident, stated to the police that he heard a loud 

“clang” when appellant fell to the ground after he was shot, though 

Justiniano did not recall making that statement when he testified. (Notes of 

testimony, 4/2/14 at 80-81.) Police recovered approximately 25 cartridge 

casings from the corner where appellant had been seen. (Notes of 

testimony, 4/3/14 at 74-82.) Justiniano testified that Medina and Castro 

were arrested in the shooting incident as well. (Notes of testimony, 4/2/14 

at 102.) A jury could reach the conclusion that appellant intended to shoot 
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Medina and Castro by firing into the group of people which included them 

but instead struck Angel Rodriguez and Sianie Pena. There is circumstantial 

evidence which is sufficient to prove the elements of the offense. See 

Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013). The evidence 

was sufficient to warrant a conviction for aggravated assault with respect to 

appellant’s intent to inflict serious bodily injury on Medina and Castro.

Appellant next contends that he is entitled to an arrest of judgment on 

the basis that the evidence is insufficient to sustain his convictions at CP-51-

CR-0001116-2012 and CP-51-CR-0001561-2012 for aggravated assault 

because he was not convicted of conspiracy and the Commonwealth’s 

evidence failed to establish that appellant fired the shots that struck either 

Angel Rodriguez or Sianie Pena and failed to establish that appellant was a 

shooter in the alleged incident that gave rise to these charges. Appellant 

argues that no legal theory exists under which he could be held criminally 

liable for the injuries to Rodriguez and Pena other than if the Commonwealth 

had established that he actually fired the shots which struck these victims.

With respect to this issue, the trial court opined:

[Appellant] clearly acted with extreme 

indifference to human life. All evidence presented 

indicates [appellant] fired a gun on a public, 

residential street with multiple people around, 

ultimately ending with both Angel Rodriguez and two 

year old Sianie Pena sustaining injuries. Shooting 

multiple rounds, to the extent of leaving vehicles and 

homes riddled with bullet holes, clearly constitutes 

an offensive act, that under the circumstances, could 

almost assure that injury or death will occur. In 
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Commonwealth v. Daniels, [354 A.2d 538, 539 

(Pa. 1976)], [t]he Supreme Court of Pennsylvania 

held there was sufficient evidence of aggravated 

assault where the defendant fired a number of shots 

in a barroom full of people, striking one bystander. 

[Id.] The court held this action constituted reckless 

conduct which manifested extreme indifference to 

the value of human life, and that the appellant’s 

actions caused serious bodily injury to another. Id. 

In the instant case, Mr. Rodriguez sustained a 

gunshot wound to his right rib cage and two year old 

Sianie Pena also sustained a gunshot wound to her 

right shoulder, which required surgery to remove the 

bullet, when [appellant] fired multiple gunshots on a 

crowded street. Mr. Rodriguez’s and Sianie Pena’s 

injuries both rise to serious bodily injury as 

[appellant] demonstrated an extreme indifference to 

human life by firing multiple gunshots into a crowded 

street.

Trial court opinion, 1/30/16 at 11-12.

This court essentially agrees with the trial court. Evidence was 

produced that indicated that appellant was on the corner where the shooting 

took place, that he was seen with a gun, shots were fired from the two 

groups, and that Angel Rodriguez and Sianie Pena were struck by gunfire in 

the area. Although there is no direct evidence to establish that appellant 

shot Rodriguez and Pena, there is circumstantial evidence which is sufficient 

to prove the elements of the offense. See Sanchez.

Appellant next contends that his sentence of 15 to 30 years for 

aggravated assault at CP-51-CR-0001561-2012 should be vacated on the 

ground that the sentence is illegal in that it exceeds the statutory maximum 

set forth in 18 Pa.C.S.A. § 1103. Appellant argues that the maximum 
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sentence for this crime was 20 years. The trial court and the 

Commonwealth agree with appellant. A review of Section 1103 confirms 

appellant’s contention. The Commonwealth asks that this court should 

remand to the trial court for resentencing on all offenses.

In Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986), 

cert. denied, 480 U.S. 950 (1987), our supreme court held that 

proscriptions against double jeopardy do not prevent an appellate court from 

remanding for sentencing on all bills of information when the vacation of 

various portions of the sentence could undermine the trial court’s sentencing 

scheme.

Where, as here, appellant was sentenced on multiple charges 

stemming from the same incident, it is possible that the vacation of the 

aggravated assault conviction and remand for resentencing could alter the 

sentencing scheme of the trial court. Here, the trial court with respect to 

the Angel Rodriguez complaint sentenced appellant to a term of 9 to 

18 years’ imprisonment for aggravated assault, to a consecutive term of 5 to 

10 years’ imprisonment for possession of a firearm prohibited, to a 

consecutive term of 3 to 6 years’ imprisonment for carrying a firearm in 

public in Philadelphia, and to a consecutive term of 2 to 4 years’ 

imprisonment for possession of an instrument of crime. With respect to the 

Julio Medina complaint, the trial court sentenced appellant to a term of 71⁄2 

to 15 years’ imprisonment for aggravated assault and to a term of 2 to 
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4 years’ imprisonment for possession of an instrument of crime. These 

sentences were concurrent to the “Rodriguez complaint” sentence. With 

respect to the Angel Castro complaint, the trial court sentenced appellant to 

a term of 71⁄2 to 15 years’ imprisonment for aggravated assault and to a 

term of 2 to 4 years’ imprisonment for possession of an instrument of crime. 

These sentences were concurrent to the “Rodriguez complaint” sentence. 

With respect to the sentence that we have determined was illegal, the trial 

court sentenced appellant to a consecutive term of 15 to 30 years’ 

imprisonment for aggravated assault. He was also sentenced to a 

concurrent term of 2 to 4 years’ imprisonment for possession of an 

instrument of crime. Because the vacated 15 to 30-year sentence affects 

the trial court’s overall sentencing scheme, we will agree to the request of 

the Commonwealth and vacate this sentence and remand to the trial court 

to resentence appellant.

Finally, appellant contends that the trial court erred when it denied his 

request for a mistrial after the prosecutor committed prosecutorial 

misconduct when he stated in his closing argument, “And I’m asking you 

now to tell [appellant] it’s not okay to turn your neighborhoods into a 

shooting gallery.” (Notes of testimony, 4/4/14 at 61.)

Our standard of review for a claim of 

prosecutorial misconduct is limited to whether the 

trial court abused its discretion. In considering this 

claim, our attention is focused on whether the 

defendant was deprived of a fair trial, not a perfect 

one. Not every inappropriate remark by a 
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prosecutor constitutes reversible error. A 

prosecutor’s statements to a jury do not occur in a 

vacuum, and we must view them in context. Even if 

the prosecutor’s arguments are improper, they 

generally will not form the basis for a new trial 

unless the comments unavoidably prejudiced the 

jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012) 

(internal citations and quotations omitted).

In Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009), in a 

murder trial, the prosecutor in her closing argument, stated, “[A]nd the 

second message I want to send to [Neal Lamont Patton (“Patton”), the 

defendant] is to tell him he can’t get away with murder.” Patton, 985 A.2d 

at 1285. Patton objected. The trial court agreed to give a curative 

instruction and failed to do so. The jury convicted Patton of first degree 

murder. This court affirmed. On appeal to the Pennsylvania Supreme 

Court, Patton argued that the prosecutor’s statement was per se prejudicial. 

The Pennsylvania Supreme Court affirmed on the basis that while the 

comment was inappropriate, it was not so much so as to deny Patton a fair 

trial. Id. at 1285-1286. Our supreme court also held that “Prosecutorial 

remarks encouraging a jury to ‘send a message’ to the defendant, rather 

than the community or criminal justice system, do not invite consideration of 

extraneous matters and are not misconduct.” Id. at 1288.

Similarly, here the prosecutor did not ask the jury to send a message 

to the community but to appellant as in Patton. This issue has no merit.
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Convictions affirmed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016