J-S25020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT M. ANDERSON

Appellant No. 2117 EDA 2015

Appeal from the Judgment of Sentence June 26, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013588-2013

BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017

Appellant, Robert M. Anderson, appeals from the judgment of sentence 

of twenty to forty years of incarceration, imposed June 26, 2015, following a 

jury trial resulting in his conviction for third degree murder.1 We affirm.

We adopt the following statement of facts from the trial court’s 

opinion, which in turn is supported by the record. See Trial Court Opinion 

(TCO), 6/9/16 at 1-7. 

On July 13, 2013, Daimeen Walker and Josiah McClarence were 

involved in an altercation with Giovanni Bain and Nkingi Jones in southwest 

Philadelphia. Following the incident, Mr. Walker called Tyreek Hall, also 

____________________________________________

1 See 18 Pa.C.S. § 2502(c).
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known as “Southwest Reek,” for help.2 Driving a gold Buick, Mr. Hall and 

Appellant picked up Mr. Walker and Mr. McClarence and asked them to 

identify the men with whom they had brawled. After Mr. Walker and Mr. 

McClarence did so, Appellant and Mr. Hall switched cars, getting into a 

rented silver Ford Mustang.

At approximately 4:00 p.m., Appellant and Mr. Hall drove to North 

64th Street, where Mr. Jones and Mr. Bain were playing basketball with 

brothers Aaron and Tremaine Rogers. Mr. Hall asked if any of the men had 

been bothering his cousin. Mr. Jones informed him that the fight was over. 

At that time, Appellant told Mr. Hall to “get busy” with the young men. Mr. 

Hall took a gun from his waistband and fired seven times into the crowd 

before fleeing with Appellant. 

Police responded to the scene and were provided with a description of 

the perpetrators. As they began to search for evidence, officers discovered 

Tremaine Rogers lying face down in the back yard of 905 N. 64th Street. 

Mr. Rogers had suffered a gunshot wound to the lower back and was 

pronounced dead at the scene. 

Police interviewed Mr. Bain, Mr. Jones, and Aaron Rogers, who 

described both the fistfight and shooting. Police also interviewed Mr. 

McClarence and Mr. Walker, who identified Mr. Hall as “Southwest Reek” and 

____________________________________________

2 Appellant and Mr. Hall were tried together; Mr. Hall’s appeal is docketed at 

3670 EDA 2015.
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Appellant as “Bobby.” From two photo arrays, Mr. Bain, Mr. Jones, and Mr. 

Rogers identified Appellant as the driver and Mr. Hall as the shooter. 

Further investigation revealed that on June 26, 2013, Appellant rented a 

gray Ford Mustang. Although the car was due to be returned July 27, 2013, 

Appellant exchanged the car on July 13, 2013 at 5:32 p.m., approximately 

one half hour after Mr. Rogers was pronounced dead.

In March 2015, the matter proceeded to jury trial. Mr. Hall testified 

that he was acting in self-defense and claimed that Aaron Rogers had a gun 

on the night of the murder. No other evidence supported this statement. 

Appellant did not testify in his own defense, and the jury was instructed 

accordingly. 

During trial, Appellant’s trial counsel, Jack McMahon, raised his voice 

during cross-examination of a police detective and following the court 

overruling an objection. See Notes of Testimony (N.T.), 3/6/15, at 176-

184. In front of the jury, Mr. McMahon accused the court of yelling. Id. at 

176. After sending the jury from the room, the court admonished Mr. 

McMahon for raising his voice to the court and stated that if he could not 

control his behavior in front of the jury, he would be held in contempt. Id.

at 176-184. 
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Following trial, the jury convicted Appellant of third degree murder and 

acquitted him of criminal conspiracy and possessing an instrument of crime.3 

In June 2016, the court sentenced Appellant to twenty to forty years of 

incarceration.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The trial court issued a 

responsive opinion.

On appeal, Appellant raises the following questions for our review:

1. Is the evidence insufficient as a matter of law to sustain 

Appellant’s conviction for murder in the third degree?

2. Did the trial court err in failing to grant Appellant’s motion for 

a mistrial when the prosecutor engaged in misconduct and drew 

explicit adverse inferences in relation to Appellant’s post-arrest 

silence?

3. Did the trial court err and cause irreparable harm to Appellant 

by engaging in shouting/admonishment with Appellant’s trial 

counsel?

Appellant’s Brief at 4.

First, Appellant claims that the evidence was insufficient to sustain his 

conviction for third degree murder. See Appellant’s Brief at 9-13. 

Essentially, Appellant contends he had no knowledge that Mr. Hall was 

armed and no evidence was introduced to show that Appellant intended for 

____________________________________________

3 See 18 Pa.C.S. § 903 and 907, respectively. Appellant’s co-defendant, Mr. 

Hall, was convicted of third degree murder and possession of an instrument 

of crime.
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Mr. Hall to shoot the decedent. Id. Appellant notes he was acquitted of 

conspiracy, and that Mr. Hall believed he was acting in self-defense. 

Accordingly, Appellant concludes that these facts render his conviction 

unsustainable. Id.

We review a challenge to the sufficiency of the evidence as follows.

In determining whether there was sufficient evidentiary support 

for a jury’s finding [], the reviewing court inquires whether the 

proofs, considered in the light most favorable to the 

Commonwealth as a verdict winner, are sufficient to enable a 

reasonable jury to find every element of the crime beyond a 

reasonable doubt. The court bears in mind that: the 

Commonwealth may sustain its burden by means of wholly 

circumstantial evidence; the entire trial record should be 

evaluated and all evidence received considered, whether or not 

the trial court’s rulings thereon were correct; and the trier of 

fact, while passing upon the credibility of witnesses and the 

weight of the evidence, is free to believe all, part, or none of the 

evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations 

omitted). 

Third degree murder occurs when a person commits a killing which is 

neither intentional nor committed during the perpetration of a felony but 

contains the requisite malice. See Commonwealth v. Morris, 958 A.2d 

569, 576 (Pa. Super. 2008); 18 Pa.C.S. § 2502(c). Third degree murder 

requires no specific intent to kill. Commonwealth v. DiStefano, 782 A.2d 

574, 582 (Pa. Super. 2001). The mens rea for third degree murder is 

malice, which has been defined as

[w]ickedness of disposition, hardness of heart, cruelty, 

recklessness of consequences, and a mind regardless of social 
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duty, although a particular person may not be intended to be 

injured . . . [M]alice may be found where the defendant 

consciously disregarded an unjustified and extremely high risk 

that his actions might cause serious bodily injury.

DiStefano, 782 A.2d at 582 (internal quotations and citations omitted). 

Further, malice can be shown by “proving that a defendant used a 

dangerous weapon on a vital part of another’s body.” Commonwealth v. 

Clark, 411 A.2d 800, 802 (Pa. Super. 1979). In the instant case, it is 

beyond dispute that the evidence showed a dangerous weapon, a gun, was 

used on a vital part of Mr. Rogers’ body, namely, his torso. 

Appellant did not fire the fatal shot but was instead convicted under 

the theory of accomplice liability. The Crimes Code defines an accomplice as 

a person who with the intent of promoting or facilitating the commission of 

the offense, 1) solicits such other person to commit it or 2) aids, agrees, or 

attempts to aid such other person in planning or committing it. See

Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005); 

see also 18 Pa.C.S. § 306. Thus, the Commonwealth must establish that 

Appellant intended to facilitate or promote the underlying offense and that 

he actively participated in the crime by soliciting or aiding the principal, Mr. 

Hall. Id. Significantly,

[b]oth requirements may be established wholly by circumstantial 

evidence. Only the least degree of concert or collusion in the 

commission of the offense is sufficient to sustain a finding of 

responsibility as an accomplice. No agreement is required, only 

aid. 
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Kimbrough, 872 A.2d at 1251 (internal citations and quotations omitted); 

see also Commonwealth v. Gooding, 818 A.2d 546, 550-51 (Pa. Super. 

2003) (finding evidence sufficient to establish guilt where defendant drove 

another man to an apartment where he retrieved a gun, then drove 

conspirator to the scene of the crime).

Here, viewing Appellant’s actions in the light most favorable to the 

Commonwealth as the verdict winner, we may conclude that the evidence 

was sufficient to sustain Appellant’s conviction as an accomplice. Appellant 

accompanied Mr. Hall to meet Mr. Walker after the two were called for 

assistance following a brawl. Appellant drove Mr. Hall, Mr. McClarence, and 

Mr. Walker to identify the young men involved in the altercation. Prior to 

driving to the scene of the crime, Appellant switched to a rental car. During 

the confrontation, Appellant ordered Mr. Hall to “get busy” with the young 

men. Following the confrontation, Appellant fled with Mr. Hall and almost 

immediately attempted to conceal the car involved in the shooting.

Despite Appellant’s contention that he was unaware Mr. Hall was 

carrying a gun and that he did not intend for a shooting to occur, we note 

that no agreement is required, only aid. See Kimbrough, 872 A.2d at 

1251. Appellant provided that aid by facilitating Mr. Hall’s arrival and 

departure from the scene, delivering the inciting words leading to the fatal 

shooting, and concealing the getaway vehicle. Accordingly, the evidence 

was sufficient to sustain his conviction for third degree murder. Diggs, 949 

A.2d at 877; Morris, 958 A.2d at 576; Gooding, 818 A.2d at 550-51.
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Appellant’s argument regarding his acquittal of possession of an 

instrument of crime and conspiracy is equally meritless. An acquittal is not a 

specific factual finding as to any evidence; the law requires only that the 

evidence be sufficient to support the verdicts as rendered. See 

Commonwealth v. Rakowski, 987 A.2d 1215, 1220 (Pa. Super. 2010).

Next, Appellant claims that the court erred in failing to grant his 

motion for a mistrial for two instances of prosecutorial misconduct. See

Appellant’s Brief at 13. First, Appellant contends the prosecutor committed 

misconduct by drawing explicit, adverse inferences in relation to Appellant’s 

post-arrest silence. Id. Second, Appellant argues that the prosecutor’s 

characterization of defense arguments as “concocted,” “ridiculous,” and 

“absurd” constituted misconduct. Id. at 20.

It is well-settled that the review of a trial court’s denial of a 

motion for mistrial is limited to determining whether the trial 

court abused its discretion. An abuse of discretion is not merely 

an error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will . . . . discretion is abused. A trial court may grant 

a mistrial only where the incident upon which the motion is 

based is of such a nature that its unavoidable effect is to deprive 

the defendant of a fair trial by preventing the jury from weighing 

and rendering a true verdict. A mistrial is not necessary where 

cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (quoting 

Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011)).

With reference to a claim of prosecutorial misconduct in a closing 

statement, 
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it is well settled that in 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 prosecutorial misconduct requires us to evaluate 

whether a defendant received a fair trial, not a perfect trial. 

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

citations and quotations omitted). A prosecutor has considerable latitude 

during closing arguments when the comments are supported by the 

evidence. See Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 

2008). Further, a prosecutor may respond to defense arguments with 

logical force and vigor. See Commonwealth v. Chmiel, 889 A.2d 501, 544

(Pa. 2005). 

First, Appellant claims that the prosecutor improperly commented on 

his post-arrest silence. See Appellant’s Brief at 13. Such remarks are 

prohibited and considered innately prejudicial. See Commonwealth v. 

Clark, 626 A.2d 154, 158 (Pa. 1993). In making such a claim, it “must be 

clear that the reference is to post-arrest silence.” Commonwealth v. 

Mitchell, 839 A.2d 202, 213 (Pa. 2003). 

We first note that Appellant’s brief does not cite to relevant authority 

or appropriate portions of the record. See Pa.R.A.P. 2119(a) (requiring 

citation to the record and pertinent authority); see also Commonwealth v. 

McMullen, 745 A.2d 683, 689 (Pa. Super. 2000) (noting that assertions 

unsupported by argument and authority result in the waiver of claims). 

Appellant spends approximately five pages of his brief citing to case law 
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regarding post arrest silence but does not identify a specific comment by the 

prosecutor in support his claim. See Appellant’s Brief at 13-19. Instead, he 

cites to pages of the record, including counsel’s request for a mistrial, 

without further elaboration. Id. Accordingly, we find that he has waived 

this claim. See McMullen, 745 A.2d at 689.

Even if we did not find waiver, an examination of the portions of 

argument cited to by Appellant do not reveal any inference by the 

prosecutor regarding Appellant’s post-arrest silent but, instead, discuss Mr. 

Hall’s testimony regarding his claim of self-defense. While it is possible the 

record does contain such an inference, it is Appellant’s responsibility to cite 

to the appropriate portions of argument and testimony. See 

Commonwealth v. Miller, 731 A.2d 1121, 1124 (Pa. Super. 1998) (noting 

that this court will not act as appellant’s counsel and consider undeveloped 

issues). Accordingly, the prosecutor did not commit misconduct, and 

Appellant’s claim is without merit. See Judy, 978 A.2d at 1019.

Second, Appellant claims that the prosecutor committed misconduct by 

characterizing Appellant’s case as “concocted” and “ridiculous.” See

Appellant’s Brief at 19-20. He claims that the prosecutor made these 

comments referring to both Appellant and Mr. Hall, that there was no 

evidence at trial in relation to this issue, and that Appellant was unable to 

respond. Id.

An examination of the record shows that the prosecutor stated, in 

part:
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The only person who ever said that Aaron Rogers was not 

playing basketball was Southwest Reek, and you know why he 

said it. You know why he said it, because the fact that he was 

playing makes this concocted, ridiculous self-defense claim go 

down the tube . . . . that was the defense in this case . . . . they 

had to go with something so they went with that.

See TCO at 18. “They” refers to Mr. Hall and the defense team, where both 

counsel made argument that Mr. Hall had acted in self-defense. As 

discussed, supra, a prosecutor may respond to arguments made by the 

defense with logical vigor. See Chmiel, 889 A.2d at 544. Accordingly, the 

prosecutor did not commit misconduct during this argument. Id.

Finally, Appellant claims that the trial court erred in 

“shouting/admonishing” Appellant’s trial counsel. See Appellant’s Brief at 

21. He contends that this alleged yelling caused Appellant “lasting and 

irreparable harm” and prejudice, which affected the entire trial. Id. In 

support of this contention, he avers that this was a “close verdict” and 

argues the trial court does not deny “yelling.” Id. at 21-22. 

As discussed, supra, the incident occurred when the court overruled 

one of Mr. McMahon’s objections and Mr. McMahon became argumentative, 

accusing the court, in front of the jury, of yelling. The court noted that Mr. 

McMahon had been yelling for the last half hour and that he needed to stop. 

The jury was then removed from the courtroom. All other remarks 

exchanged between the court and Mr. McMahon were made outside of the 

presence of the jury.

We have observed that
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[e]very unwise or irrelevant remark made in the course of the 

trial by a judge, does not compel the granting of a new trial. A 

new trial is required when the remark is prejudicial; that is, 

when it is of such a nature or substance or delivered in such a 

manner that it may reasonably be said to have deprived the 

defendant of a fair and impartial trial.

Commonwealth v. Ragan, 645 A.2d 811, 821 (Pa. 1994) (quoting 

Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 1973) (emphasis in 

original). Further, it is well-settled that “the trial judge has discretion in 

determining the point at which further cross-examination will be of no value, 

and his ruling will not be reversed in the absence of an abuse of that 

discretion.” Commonwealth v. Marker, 331 A.2d 883, 887 (Pa. Super. 

1974).

Here, Appellant cites to no further case law in support of his position 

that the trial judge’s remark or tone of voice prejudiced him. From an 

examination of the record, we conclude that the trial court decided that 

cross-examination had devolved into argument, and it merely attempted to 

maintain order in the courtroom. Further, Appellant has not demonstrated 

how this decision prejudiced him. The jury was capable of observing Mr. 

McMahon’s courtroom demeanor and volume for itself, and any further 

exchanges between Mr. McMahon and the court occurred outside of the 

jury’s presence. We discern no abuse of discretion in the court’s decision 

and cannot find that Appellant was deprived of a fair and impartial trial as a 

result. See Ragan, 645 A.2d at 821; Marker, 331 A.2d at 887.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2017