J-A11019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BROOKS,

Appellant No. 588 EDA 2014

Appeal from the Judgment of Sentence of September 16, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011224-2012

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 05, 2015

Appellant, James Brooks, appeals from the judgment of sentence 

entered on September 16, 2013, as made final by the denial of Appellant’s 

post-sentence motion on January 16, 2014. We affirm.

The trial court has ably explained the underlying facts of this case:

On the evening of January 25, 2012, [Appellant and 

Appellant’s co-defendant, Tyrone Jefferson (Jefferson)] 

walked together along Bridge Street in the direction of 

Torresdale Avenue[, in Philadelphia]. After the pair crossed 

Ditman Street, they passed a house [on] Bridge Street, 

where Quadir Bush (Bush) and [Bush’s] cousins were 

celebrating a family member’s birthday. Bush’s cousins, 

Mark Brown (Brown) and Darryl Wallace (Wallace), both 

described feeling uneasy as Jefferson and [Appellant] 

walked past.

At the intersection of Bridge Street and Torresdale Avenue, 

four of [Appellant’s] friends – Ali Ellis (Ellis), Zakeem 

Singleton (Singleton), Dhubair Muhamad (Muhamad), and 

Mysheer Pryor (Pryor) – stood, smoking cigarettes together 
J-A11019-15

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outside of a corner store. Jefferson and [Appellant] spoke 

to Ellis and Muhamad for two-and-a-half to five minutes. 

After that conversation, Jefferson and [Appellant] doubledback [and walked] north on Bridge Street in the direction 

from which they had come. Jefferson and [Appellant] 

walked directly to Bush and his cousins, where [Appellant] 

asked if anyone had marijuana. In response, Bush and his 

cousins laughed; they told [Appellant] that they did not 

have any marijuana. [Appellant] pressed [and asked] for 

drugs a second time. The cousins once again answered in 

the negative, angering [Appellant]. Wallace [testified] that 

[Appellant] “went from 0 to 100.” [Appellant] then said, 

“you all think I’m playing[?]” and told Jefferson to pass him 

a gun. Jefferson took a revolver from the waistband of his 

pants and handed it to [Appellant]. 

[Appellant] [] pointed the gun at the cousins, prompting 

Wallace and Brown to run for cover. As they ran toward the 

house, [Appellant] aimed the gun at Bush’s head [and 

pulled] the trigger [from] less than two feet away. A single 

bullet penetrated Bush’s head, killing him. Immediately 

thereafter, Jefferson and [Appellant] ran away together 

“down Torresdale towards Pratt.”

. . .

On September 16, 2013, following a jury trial[, Appellant] 

was found guilty of [first degree murder, criminal 

conspiracy, and possessing instruments of crime1]. That 

same day, [the trial court] sentenced [Appellant] to the 

mandatory term of life imprisonment for murder of the first 

degree. On September 20, 2013, [Appellant] filed [a] postsentence motion[], which [the trial court] denied on January 

16, 2014. 

Trial Court Opinion, 6/17/14, at 1-3 (internal footnotes and citations omitted 

and some internal corrections omitted).

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a), 903(a), and 907(a), respectively.
J-A11019-15

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Appellant filed a timely notice of appeal; Appellant now raises one 

claim to this Court:

Did the trial court commit an abuse of discretion when it 

overruled objections to comments made by the prosecutor 

during his closing speech wherein he gave his personal 

opinion regarding testimony given by Ali Ellis, [a/k/a] Hawk 

and told the jury that the defense had a duty to interview 

and take statements from witnesses even though the police 

had not done so?

Appellant’s Brief at 3.

We have reviewed the briefs of the parties, the relevant law, the 

certified record, and the thorough and well-written opinion of the able trial 

judge, the Honorable Teresa Sarmina. We conclude that the claim raised in 

Appellant’s brief is meritless and that the trial court’s opinion, filed on June 

17, 2014, meticulously and accurately explains why Appellant’s claim fails. 

Therefore, we adopt the trial court’s opinion as our own. In any future 

filings with this or any other court addressing this ruling, the filing party 

shall attach a copy of the trial court’s opinion.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/2015
1 

4 As to the conviction for criminal conspiracy, this Court sentenced the defendant to a concurrent term of not less than 

20 years nor more than 40 years confinement. N.T. 9/16/13 at 71. As to the conviction for PIC, this Court sentenced 

the defendant to a concurrent term of not less than one year nor more than five }'Cars confinement. Id. 

318 Pa.C.S. § 1102(a)(1). 

218 Pa.C.S. §§ 2502(a), 903(a), and 907(a), respectively. 

1 111e defendant was tried alongside Tyrone Jefferson O efferson), CP-51-CR-0008441-2012, Superior Court Docket No. 

776 EDA 2014. Jefferson was convicted of murder of the third degree (F-1), criminal conspiracy (F-1 ), and possessing 

instruments of crime (PIC) (M-1). Notes of Testimony (N.T.) 9/16/13 at 59. 

February 12, 2014, the defendant filed this timely appeal. 

2013, the defendant filed post-sentence motions, which this Court denied on January 16, 2014. On 

to the mandatory term'' of life imprisonment for murder of the first degree.4 On September 20, 

possessing instruments of crime (PIC) (M-1).2 That same date, this Court sentenced the defendant 

I . I 

defendant) was found guilty of murder of the first degree (H-1), criminal conspiracy (F-1), and 

On September 16, 2013, following a jury trial' before this Court,James Brooks (the 

PROCEDURAL HISTORY 

JUN 1 7 2014 

Criminal Appeals Unit 

First 1-I udicial District of P/.t 

OPINION 

Sarmina,J. 

June 17, 2014 

JAMBS BROOKS 

Superior Court Docket No. 

588 EDA2014 

v. 

CP-51-CR-0011224-2012 

COMMONW'EALTH 

PHILADELPHIA COURT OF COMMON PLEAS 

CRIMINAL TRIAL DIVISION 

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7 The comer store is located at the intersection of Bridge Street and Torres<lale Avenue. Ellis, Singleton, Muharnad, and 

Pryor had been on the comer smoking cigarettes for about ten minutes before the defendant and Jefferson approached. 

N.T. 9/12/13 at 160-61. Ordinarily, these four friends did not spend an extended period of time in this area. Id. at 195; 

N.T. 9/13/13 at 76, 192. 

6 Jefferson and the defendant had played basketball with these four individuals in the past at \\'lute Hall Park, five blocks 

away from Bridge Street and Torresdale Avenue. N.T. 9/12/13 at 114; N.T. 9/13/13 at 176, 184-85, 191-92. 

5 Roughly fourteen months earlier, on the evening of November 20, 2012, Philadelphia Police Officer John Descher had 

encountered Jefferson and the defendant together, walking northbound on 5000 Ton:esdale Avenue, approximately two 

to five blocks away from the intersection of Bridge Street and Torresdale Avenue. N.T. 9/11 /13 at 135-40, 142. 

the defendant. Wallace stated that the defendant "went from O to 100." Id. at 59. The defendant 

pressed, asking for drugs a second ti.me. The cousins once again answered in the negative, angeti.ng 

cousins laughed; they told the defendant that they did not have any marijuana. The defendant 

the defendant asked if anyone had marijuana. N.T. 9/11/13 at 24. In response, Bush and his 

which they had come. Jefferson and the defendant walked directly to Bush and his cousins, where 

Jefferson and the defendant doubled-back, walking north on Bridge Street in the direction from 

two-and-a-half to five minutes. N.T. 9/10/13 at 91; N.T. 9/12/13 at 166. After that conversation, 

244-45; N.T. 9/13/13 at 79-80, 88. Jefferson and the defendant spoke to Ellis and Muhamad for 

\ 

(P1-yor)6- stood, smoking cigarettes together outside of a corner store.7 N.T. 9/12/13 at 161-2, 

Ali Ellis (Ellis), Zakeem Singleton (Singleton), Dhubair Muharnad (Muhamad), and Mysheer Pryor 

At the intersection of Btidge Street and Tonesdale Avenue, four of the defendant's friends - 

at 103-04; N.T. 9/11/13 at 23. 

(\Vallace), both described feeling uneasy as Jefferson and the defendant walked past. N.T. 9/10/13 

9/11/13 at 24; N.T. 9/13/13 at 186. Bush's cousins, Mark Brown (Brown) and Darryl Wallace 

(Bush) and his cousins were celebrating a family member's birthday. N.T. 9/10/13 at 84; N.T. 

After the pair crossed Ditman Street, they passed a house at 2091 Bridge Street, where Quadit Bush 

Bridge Street in the direction of Torresdale Avenue.5 N.T. 9/10/13 at 83-84; N.T. 9/11/13 at 24. 

On the evening of January 25, 2012, Jefferson and the defendant walked together along 

FACTS 

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8 As the defendant has not alleged that the prosecutor's conduct violated a statutorily protected right, this Court will only 

address the defendant's claim of prosecutorial misconduct as being rooted in a violation of a constitutionally protected 

right. 

property, without due process of law." U.S. CONST. amend. XIV,§ 1. \Xlbile there is no "precise 

the United States Constitution establishes that no State shall "deprive any person of life, liberty, or 

Commonwealth v. Rhone, 619 A.2d 1080, 1084 (Pa.Super. 1993). The Fourteenth Amendment of 

constitutionally protected rights." Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009); 

Prosecutorial misconduct exists when there is a violation of a defendant's statutorily or 

defendant's claim fails. 

As the Due Process Clause was not violated by either of the prosecutor's purported errors, the 

produce evidence to the defendant; second, the prosecutor improperly proffered a personal opinion. 

for his claim of prosecutorial misconduct: first, the prosecutor improperly shifted the burden to 

misconduct, depriving the defendant of a fair and impartial trial. The defendant identifies two bases 

defense counsel's objections on the grounds that the prosecutor committed prosecutorial 

I I 

The defendant claims that this Court committed an abuse of discretion when it overruled 

On appeal, the defendant raised a single issue with two components. 

LEGAL DISCUSSION 

23. 

Jefferson and the defendant ran away together "down Torresdale towards Pratt].]" N.T. 9/13/13 at 

70; N.T. 9/1.1/13 at 24. A single bullet penetrated Bush's head, killing him. Immediately thereafter, 

aimed the gun at Bush's head, pulling the trigger while less than two feet away. N.T. 9/10/13 at 68, 

for cover. N.T. 9/10/13 at 92; N.T. 9/11/13 at 24. As they ran toward the house, the defendant 

The defendant then pointed the gun at the cousins, prompting \Xlallace and Brown to tun 

took a revolver from the waistband of his pants and handed it to the defendant. Id. 

then said, "[Ylou all think I'm playing[?]" and told Jefferson to pass him a gun. Id. at 57. Jefferson 

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the defense[.]" Commonwealth v. S1ieed, 45 A.3d 1096, 1112 (Pa. 2012). 

trial when the statements are in response to "defense counsel's argument" or a "theory espoused by 

concerning a defendant's failure to produce evidence does not violate a defendant's right to a fair 

produce evidence infringes upon his presumption of innocence. A prosecutor's comment 

evidence. I:v1iller, 208 A.2d at 870. However, not eveq comment about a defendant's failure to 

from which the jury may draw an adverse inference from the defendant's failure to produce 

A defendant's constitutionally-protected right to be presumed innocent is violated by a statement 

essential element of the crime charged and the defendant need not offer any defense whatsoever."). 

A.2d 880 (Pa. 1974) ("The Commonwealth bears a never shifting burden of proving each and every 

Commonwealth v. Wiggins, 328 A.2d 520, 521 (Pa.Super, 1974), citing Commonwealth v. Rose, 321 

of his right to a fair trial. Commomvealth v. :tvliller, 208 A.2d 867, 869-71 (Pa. 1965); see also 

may infringe upon the defendant's constitutionally-protected presumption of innocence in violation 

In a criminal trial, a suggestion that a defendant has a duty or obligation to produce evidence 

a. The prosecutor did not shift the burden to produce evidence such that the 

defendant was deprived of a fair and impartial trial. 

1019 (Pa.Super. 2009). 

occurred, and (b) assess the degree of resulting prejudice. Commonwealth v. Judy, 978 A.2d 1015, 

been deprived a fair and impartial trial, a trial court must (a) analyze whether misconduct actually 

v. Thompson, 281 A.2d 856, 858 (Pa. 1971). When determining whether or not a defendant has 

tribunal." Id. at 764, citing Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008); Commonwealth 

(1981 ). Procedural due process requires "the chance to defend oneself before a fair and impartial 

134 S. Ct. 1771 (U.S. 2014), citil{g Lassiter v. Dep't of Soc. Serv. of Durham County, 452 U.S. 18 

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied SHh uo/». Turner v. Pennsylvania, 

definition" of due process, "the phrase expresses the requirement of 'fundamental fairness[.]"' 

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production, and the defendant was not deprived of a fair and impartial trial. In defense counsel's 

advanced in defense counsel's summation, the prosecutor did not improperly shift the burden of 

In the case sub jlldice, as the prosecutor's comments were made in response to the allegations 

proffered evidencej]" did not amount to an improper shift of the burden to produce evidence. Id. 

disabilities. Our Supreme Court found that "suggesting possible weaknesses regarding the defense's 

that the defense had not produced evidence to corroborate Mclvlurren's claim. about the defendant's 

to tun and could not use his right band. Id. In his closing argument, the prosecutor pointed out 

Mclvlurren, who testified thatthe defendant could not have committed the crime as he was unable 

denied sub uom. Thomas v. Pennsvlvania J 34 S. Ct. 173, 187 (U.S. 2013). The defense called Tamika 

defense counsel during summation lacked evidentiary support. 54 A.3d 332, 340 (Pa. 2012), cert. 

not improperly shift the burden to produce evidence by highlighting that the theory espoused by 

Similarly, our Supreme Court in Conunonwealth v. Thomas found that the prosecutor did 

does not constitute burden-shifting. Id. at 110-11. 

( 

that commenting on the absence of evidence to demonstrate the weakness of the defense's theory 

it would have demonstrated that Zlatnik: had not been visited by Castillo. The De Jesus Court held 

omitted). The prosecutor then suggested that the defense had not prese~ted the prison log because 

present the prison log as to who contacted Ms. Zlatnik at prison." Id. at 1 lO (internal citations 

Castillo during a visit in jail. Id. The prosecutor responded, "ask(i.ng] why the defense did not 

argued that Ms. Zlatnik's testimony had been colored by information she received from Antonio 

the truthfulness of Commonwealth witness Jennifer Zlatrick's trial testimony. Defense counsel 

summation, 860 A.2d 102, 110-111 (Pa. 2004). During that summation, defense counsel questioned 

evidence because the prosecutor's comment rebutted the theory offered during defense counsel's 

about the defense's failure to produce evidence did not improperly shift the burden to produce 

In Commonwealth v. Dejesus, our Supreme Court found that the prosecutor's comment 

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Commonwealth's theory changed slightly during the course of trial because neither party had 

indicative of weaknesses in the Commonwealth's case. The prosecutor agreed that the 

He admitted that new information was revealed during trial, but he disputed that the change was 

The prosecutor responded to the accusation that his theory of the case changed mid-trial. 

N.T. 9/13/13 at 237-40. 

You have the awesome responsibility of not only sifting through this evidence, but making 

sense of it, which is absolutely impossible; and if it's impossible for you to sift through this 

evidence to the extent that you must in order to decide this case, the only appropriate verdict 

here is not guilty. 

That's when they run in the bar, and you also see that 17-year-old kid, Mr. Pryor, standing 

there on the corner watching everything, 

You don't see those people at the bar -- despite what he says, it's what the tape shows, not 

what we say. \Y/e don't get to tell you what the evidence is. The evidence is what it is. 

And the evidence in this case, if you watch the video, those people don't nm into that bar 

until right around the time two people run by them. 

Ladies and gentlemen, one of the things that Mr, Lim made a big deal about today was he 

was attempting to argue with a witness about what the reaction -- he was comparing the 

reaction of the people outside the bar with the people on this corner here (indicating). 

We all know, when you see something startling, you look at it. You stop and take your eyes 

off it. That's what those people at the bar did. 

( 

\Xlhy aren't those people sitting at this table if that's what he really thinks? And if that's what 

he really thinks, he's changed his theory of the case from when he first argued the case. 

Because when he first presented this case to you on Tuesday, in his opening, Mr, Lim said it 

was these two guys, not these six guys or four guys or three guys. 

\X!ell, if this is what he thinks -- and we're almost two years post murder in this case -- then 

why weren't any one of these individuals that he thinks were accomplices and set up this hit 

or directed th.is hit, why weren't one of these persons arrested? 

And through this examination today of certain witnesses, seems like he's going to stand up 

here in a moment and argue that this was some grand setup, that there were people, in his 

words, positioned, a 17-year-old kid [Pryor] positioned on the bar over here. Other people 

over here in front of the corner store. 

theory of the case mid-trial in order to distract the jury from underlying weaknesses in its evidence: 

closing argument, he attacked the Commonwealth's case, arguing that the prosecutor changed the 

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9 The prosecutor did not place the onus for the absence of pre-trial statements on the defense. 

thus impeding their ability to weigh the evidence objectively and render a true verdict."). 

was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, 

("[P]rosecutorial misconduct does not occur unless the unavoidable effect of the comments at issue 

778, 787 (Pa.Super, 1998); see also Commonwealth v. Chmiel 889 A.2d 501, 542 (Pa. 2005) 

determine if it denied the defendant a fair and impartial trial. Conunonwealth v. Johnson, 719 A.2d 

produce evidence, the trial court would then evaluate the prejudice exacted by the statement to 

Had the prosecutor, in fact, improperly suggested that the defense had the burden to 

defense's allegation that the prosecutor's theory of the case changed mid-trial because it was weak. 

statements did not shift the burden to produce evidence to the defense, but instead rebutted the 

The prosecutor's explanation that his case changed because of the absence of pre-trial 

N.T. 9 /13/13 at 320. 

The motive, the reason, the why came together and was supported by their own witnesses. 

But now, you want me to believe that they were there, that in1ages ate burned and they want 

to clear their conscience and that's not them? So they know them and let them sit till trial 

without a statement, without anything? They ha? conversations with each other and they 

don't mention it to each other? 

at trial: 

The prosecution then explained how his theory evolved as he heard the witnesses' testimony 

N.T. 9/13/13 at 314. 

But I didn't get to do that because I didn't have enough statements, I'm learning like you're 

learning, as these defense witnesses testified and as I'm learning like [sic] listening. 

When people don't give statements, they're not committed to anything. They can walk into 

this courtroom, take the seat and say whatever it is they want to say; and that's what 

happened and when I won't get statements -- see, by rules, I got to give all these documents 

in that box. I got to turn them all over to the attorneys before we start, so they can read, 

review and critically analyze my witnesses before we get started. 

weak: 

obtained pre-trial statements" from certain witnesses, not because the Commonwealth's case was 

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10 Although an immediate instruction is preferable, a trial court may wait to address an issue until its charge at the 

conclusion of a case. Commonwealth v. Rough, 418 A.2d 605, 611 (Pa.Super. 1980) (noting that a curative instruction 

"need not be given immediately following the erroneous admission, but may occur later in the charge."). 

So to summarize, you may not find the defendants guilty based upon a mere suspicion of 

guilt. The Commonwealth has the burden of provio.g each defendant guilty beyond 

reasonable doubt. If the Commonwealth has met that burden, .then the defendants are 110 

longer presumed innocent and you should find them guilty. 

This Court then summarized: 

N.T. 9/16/13 at 11-12. (emphasis added). 

If the evidence presented fails to meet the Commonwealth's burden, then your verdict must 

be not guilty. On the other hand, if the evidence does prove beyond reasonable doubt that 

the defendants are guilty of the crimes charged, then your verdict should be guilty. 

It is not a defendant's burden to prove anything in his own defense. Instead, it is the 

Commonwealth that always has the burden of proving each and every element of the crimes 

charged and that each defendant is guilty of those crimes beyond a reasonable doubt. And I 

will give you those elements toward the end of this charge. 

A fundamental principle of our system of criminal law is that a defendant is presumed 

innocent. The mere fact that someone is arrested and is charged with crimes is not evidence 

of guilt. Furthermore, the presumption of innocence that I was just telling you about stays 

with a defendant throughout the entire trial and unless and until you, the jury, conclude 

based upon a careful and impartial consideration of the evidence that the Commonwealth 

has proven each guilty beydnd reasonable doubt of the charges made against him. 

1 

instruction to the jury: 

a mistrial. N.T. 9/13/13 at 320, 324. In its final charge, this Court provided the following 

burden of production to the defense. Th.is Court overruled the objection and denied the motion for 

prosecutor and moved for a mistrial on the ground that the prosecutor improperly shifted the 

In the case ssb Judice, defense counsel objected to the aforementioned statements of the 

Szakal, 50 A.3d 210, 222 (Pa.Super. 2012). 

eradicate prejudice as long as it corrects the potentially improper statement. Commonwealth v. 

issue. to As jurors are presumed to follow a trial court's instructions, an appropriate instruction will 

In making this determination, the court's instructions may counterbalance the comments at 

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perceive their decision, not on the evidence presented at trial and/ or the penalty phase hearing. 

improper statement, asking the jury to sentence the defendant to death based on how society would 

the trial court's instruction thereafter cured the prejudice at issue. The prosecutor had made an 

by a prosecutor during closing arguments did not violate the defendant's due process rights because 

In Commonwealth v. Jones, our Supreme Court held that an improper statement proffered 

creates a fixed bias in the minds of the jury. Johnson, 719 A.2d at 787; Chmiel, 889 A.2d at 542. 

Clause is not automatically violated. A defendant is deprived of a fair trial only where that statement 

As discussed supra, when a prosecutor makes an improper statement, the Due Process 

impressions-the defendant was not deprived of a fair and impartial trial. 

instruction to base its determination on the evidence presented at trial-not on the prosecutor's 

January 25, 2012. As this Court sustained counsel's objection and provided the jury with an 

when recounting how the evidence elicited at trial impacted his understanding of the events on 

points to the portion of the prosecutor's closing where he stated, "[M)y1God" and "I can't believe" 

closing arguments which violated his due process right to a fair trial. The defendant specifically 

The defendant claims that the prosecutor offered an improper personal opinion during 

b. The defendant was not deprived of a fair and impartial trial when the prosecutor 

offered his personal opinion, as this Court provided a limiting instruction which 

cured any prejudice. 

instruction properly addressed any possible prejudice flowing from the prosecutor's statement. 

proved each and every element of the crimes charged beyond a reasonable doubt. Thus, th.is Court's 

presumed that the jury followed this Court's instruction to analyze whether the Commonwealth 

guilt beyond a reasonable doubt-rested with the Conunonwealth, not the defendant. It is 

This Court's instructions made it clear that the burden to produce evidence-and to prove 

Id. at 13. 

On the other hand, if the Commonwealth has not met its burden, then you must find them 

not guilty. 

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MR. STRETTON: Move for mistrial. 

MR. PAGANO: Objection. 

I'vfR. STRETTON: Objection. 

:MR. LHvf: I'm like I can't believe day four and I realize this conspiracy is so much larger than 

the two people sitting at this table. . 

THE COURT: Stop with the conversation, Mr. Lim. 

:tvIR. PAGANO: Objection. 

MR. STRETION: Objection. 

I'm about to cry inside and sit down and then Mr. Pagano asks a question: \Xlhere are you? 

And Mysheer Pryor says: I'm standing right in front of this bar smoking a cigarette. 

And I'm like, my God, you're kidding me. And like a bell goes off. You can ask my 

detectives, I went outside yesterday - 

He's like, no, I was there, this is what I saw and I was there, my God, I set them up, I'm like 

sweating, what's going on here? Until Mysheer Pryor came out of the wall and sat in the 

same chair; and again I'm fighting him, you're not there, you're not there, you're not there, 

because I kept thinking he was pointing up here (indicating) like, he was up here, Mysheer 

Pryor being the second guy and I'm like, why? Why is this guy not budging? 

And I'm challenging you, see me getting mad at him. I'm like, you ain't there, stop it, tell me 

this, tell me that. He's kind of, in all honesty, beating me up. 

objection but denied the motion for a mistrial: 

improperly asserted his personal opinion in his closing argument. This Court sustained counsel's 

believe" during his summation, and moved for a mistrial on the ground that the prosecutor 

Here, defense counsel timely objected when the prosecutor stated, "[1vI]y God" and "I can't 

court adequately cured any possible prejudice." Id. at 1201. 

defendant's right to a fair trial was not violated because "the cautionary instructions given by the 

Our Supreme Court determined that the prosecutor's comments were improper, but the 

instead to base its decision on the facts presented. Id. at 1201 n.11. 

the objection and instructed the jury "not to be concerned by how other people would react(,]" and 

Defense counsel immediately objected. 683 A.2d 1181, 1201 (Pa. 1996). The trial court sustained 

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lVL ,TERESA SARI\rIINA J. 

BY THE COURT: 

11t.ck~~~- 

Accordingly, for all of the foregoing reasons, the judgments of sentence should be affirmed. 

prosecutor's statements, thus mitigating any possible prejudice. 

and impartial trial, As in Jones, this Court instructed the jury not to be influenced by the 

This Court's instruction eliminated any prejudice that would have denied the defendant a fair 

N.T. 9/16/13 at 39-40. (emphasis added). 

And as I have told you many times, you are the sole and only judges of the credibility and 

weight of all of the testimony in this case. And so you are not required to accept the 

arguments of any of the lawyers. It is for you and you alone to decide the case based on the 

evidence as it was presented to you from the witness stand and in accordance with the -- and 

that includes the stipulations that were entered into by and between counsel, and in 

accordance with the instructions which I have just been giving you. 

Now, Mr. Lim shared with you his thought processes to some extent and to some 

extent his personal opinions. You are to disregard those. Do not think that because 

he is the prosecutor he has some special knowledge or insight that was not presented 

to you through evidence. That is not the case. And to the extent that anybody, 

including myself, stated any facts which differ from your recollection of the facts, 

then you are to go with your recollection and to disregard all of ours, including mine. 

The speeches of counsel are not part of the evidence, and you should not consider them as 

such. In deciding the case, you should carefully consider the evidence in light of the various 

reasons and arguments which each lawyer presented to you. It is the right and duty of each 

lawyer to discuss the evidence in a manner which is most favorable to the side which he 

presents. You should be guided.by each lawyers' arguments to the extent that they are 

supported by the evidence, and insofar as they aid you in applying your own reason and 

common sense. 

During its final charge, this Court instructed the jury: 

N.T. 9/13/13 at 315-17. 

THE COURT: Sustained. Denied. 

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