J-S19003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM ROGERS

Appellant No. 3605 EDA 2013

Appeal from the Judgment of Sentence entered September 27, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0007426-2012

BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015

Appellant, William Rogers, appeals from the September 27, 2013 

judgment of sentence imposing life in prison without parole for first-degree 

murder, a concurrent three to six year sentence for unlawful possession of a 

firearm, and a concurrent two to five year sentence for possession of an 

instrument of crime.1 We affirm. 

The testimony of multiple eyewitnesses established that Appellant shot 

the victim after an altercation that occurred on the 2200 block of West 

Edgeley Street in North Philadelphia on March 14, 2012. The trial court 

summarized the pertinent facts: 

____________________________________________

1

 18 Pa.C.S.A. §§ 2502(a), 6106, and 907, respectively. 
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Zahir Wiggins testified that on 3/14/12, he was walking on 

the 2200 block of West Edgeley Street between 5:00 P.M. and 

5:30 P.M. when he heard shots and saw a group of people 

running from the area where a male, later identified as the 

decedent, was lying in the middle of the sidewalk. 

Approximately 45 seconds after hearing the shots, he saw 

[Appellant], aka ‘Slug’, who[m] he knows from the Raymond 

Rosen projects, running down 23rd Street with something in his 

hand. He did not know what [Appellant] was holding. 

Mr. Wiggins testified that five minutes prior to hearing the 

gunshots and seeing the decedent lying on the sidewalk, he saw 

‘Diddy’, ‘Ab’ and [Appellant] engaged in a fistfight with the 

decedent. 

Mr. Wiggins provided a signed statement to homicide 

detectives on 3/29/12 at 2:50 P.M. In that statement, he 

indicated that he saw [Appellant] running down Edgeley Street 

toward 24

th Street holding a gun down by his leg. 

At trial, Mr. Wiggins testified that he did not want to testify 

because his family still lives in the area where the incident 

occurred and he felt threatened for them. 

Nyteisha Sanders testified that on 3/14/12 between 5:15 

and 5:30 P.M., she was at a store at 23rd and Diamond Streets, 

when she heard gunshots and saw a group of people standing 

over a male lying on the ground, bleeding. She testified that she 

did not see the shooting or who did the shooting. And, that she 

did not see [Appellant] running away from the area. 

In a signed statement given by Ms. Sanders to homicide 

detectives on 5/14/12, she indicated that as she was walking 

back from the store she saw [Appellant] standing on the corner 

at 23rd and Edgeley Streets pointing a gun at a male, later 

identified as the decedent, and saying to the decedent “I told 

you not to come back.’ [Appellant] then started shooting at the 

decedent. [Appellant] was wearing a gray hoodie. After 

shooting at the decedent, [Appellant] ran with two (2) other 

males across Edgeley Street and up Judson Street. She had 

seen [Appellant] before in the neighborhood for approximately a 

year. [Appellant] has a tattoo on his neck that reads ‘Slug.’ She 

identified and signed a photograph of [Appellant]. 
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Shanae Talley, Zahir Wiggins’ sister, testified that at 

approximately 5:15 P.M. on March 14, 2012, she was standing 

at 23rd and Edgeley Streets talking to a friend when she heard 

gunshots. She turned around to see Appellant, who[m] she 

knows from the neighborhood as ‘Slug,’ running down Edgeley 

Street. 

In her signed statement of 3/19/12, Ms. Talley indicated 

that she saw a tall, light-skinned male she knows as ‘Slug’ 

standing on the corner. She did not see a gun but saw ‘fire’

coming from an item he was pointing. Immediately after 

hearing the gunshots, she saw ‘Slug’ run down Edgeley Street to 

Judson Street. She could only see the side of his face but knew 

it was Slug because he was wearing a gray hoodie that she had 

seen him wearing before and she knows him from the 

neighborhood. 

In her April 17, 2012 statement, Ms. Talley identified and 

signed a photo of [Appellant]. 

Enrico Crispo testified that he was at a community meeting 

at the recreation center located at 23rd and Edgeley Streets on 

3/14/12. After the meeting as he was walking to his car, a black 

male, 5’8” tall, weighing 140-150 pounds, wearing jeans and a 

dark sweatshirt walked by him at a fast pace. Mr. Crispo looked 

back at the male and saw him reach into the back of his pants 

and pull out a modern-looking black gun that was ‘not a revolver 

type.’ The male proceeded north to the southwest corner of 23rd

and Edgeley Streets. As the male approached the corner, he 

nodded at two (2) younger black males who were sitting on 

bikes at the corner. The males on the bikes separated allowing a 

clear path between the male with the gun and another male, 

later identified as the decedent. The male with the gun shot the 

decedent from approximately twenty-five feet away. The 

decedent collapsed on the corner. The shooter walked away 

quickly, travelling west on Edgeley Street. Mr. Crispo could not 

identify the shooter. 

Trial Court Opinion, 8/7/14, at 2-4 (record citations omitted). 

On September 27, 2013, a jury found Appellant guilty of the 

aforementioned offenses. The trial court imposed sentence the same day. 

Appellant filed a timely post-sentence motion for a new trial on October 2, 
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2013. The trial court denied that motion on December 9, 2013 and 

Appellant filed this timely appeal on December 17, 2013. 

Appellant raises two issues for our review: 

I. Did the prosecutor commit misconduct in summation 

when she told the jury she had personal knowledge 

that ‘the defendant does not tell the truth,’ which 

because of its impact on the verdict requires 

reversal? 

II. Did the prosecutor commit misconduct when she 

condemned an entire section of the city as having a 

lawless culture where law enforcement is a base 

value and assisting criminals is a positive value such 

as to require reversal? 

Appellant’s Brief at 6. Appellant unsuccessfully sought a mistrial after the 

prosecutor’s alleged misconduct during closing argument. We review the 

order denying a mistrial as follows: 

In criminal trials, declaration of a mistrial serves to 

eliminate the negative effect wrought upon a defendant when 

prejudicial elements are injected into the case or otherwise 

discovered at trial. By nullifying the tainted process of the 

former trial and allowing a new trial to convene, declaration of a 

mistrial serves not only the defendant’s interest but, equally 

important, the public’s interest in fair trials designed to end in 

just judgments. Accordingly, the trial court is vested with 

discretion to grant a mistrial whenever the alleged prejudicial 

event may reasonably be said to deprive the defendant of a fair 

and impartial trial. In making its determination, the court must 

discern whether misconduct or prejudicial error actually 

occurred, and if so, . . . assess the degree of any resulting 

prejudice. Our review of the resulting order is constrained to 

determining whether the court abused its discretion. Judicial 

discretion requires action in conformity with [the] law on facts 

and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion if, 

in resolving the issue for decision, it misapplies the law or 

exercises its discretion in a manner lacking reason.
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Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009). Mistrial 

is an “extreme remedy” necessary “only when an incident is of such a nature 

that its unavoidable effect is to deprive the appellant of a fair and impartial 

tribunal.” Id. 

The Judy Court analyzed prosecutorial misconduct in the context of a 

closing argument. The prosecutor’s remarks “cannot be viewed in isolation 

but, rather, must be considered in the context in which they were made.” 

Id. (quoting Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 

2006), appeal denied, 907 A.2d 1102 (Pa. 2006)). “It is well settled that a 

prosecutor has considerable latitude during closing arguments and his 

arguments are fair if they are supported by the evidence or use inferences 

that can reasonably be derived from the evidence.” Id. at 1020 (quoting 

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008), appeal 

denied, 959 A.2d 928 (Pa. 2008)). “Further, prosecutorial misconduct does 

not take place unless the unavoidable effect of the comments at issue was to 

prejudice the jurors by forming in their minds a fixed bias and hostility 

toward the defendant, thus impeding their ability to weigh the evidence 

objectively and render a true verdict.” Id. “Prosecutorial misconduct is 

evaluated under a harmless error standard.” Id. 

Pennsylvania courts hold prosecutors to the standards set forth in the 

American Bar Association Standards: 

Argument to the jury. 
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(a) The prosecutor may argue all reasonable inferences 

from evidence in the record. It is unprofessional conduct for the 

prosecutor intentionally to misstate the evidence or mislead the 

jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to 

express his personal belief or opinion as to the truth or 

falsity of any testimony or evidence or the guilt of the 

defendant.

(c) The prosecutor should not use arguments calculated to 

inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which 

would divert the jury from its duty to decide the case on the 

evidence, by injecting issues broader than the guilt or innocence 

of the accused under the controlling law, or by making 

predictions of the consequences of the jury's verdict.

Id. at 1020 (emphasis added) (quoting American Bar Association Standards, 

§ 3-5.8). 

“[T]he prosecutor may fairly respond to points made in the defense 

closing.” Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005), cert. 

denied, 549 U.S. 848 (2006). “A remark by a prosecutor, otherwise 

improper, may be appropriate if it is in fair response to the argument and 

comment of defense counsel.” Id. (quoting Commonwealth v. Trivigno, 

750 A.2d 243, 249 (Pa. 2000) (plurality)). 

Appellant first challenges the prosecutor’s statement that she knew 

the defendant did not tell the truth. For context, the record reflects that 

defense counsel, during his closing, argued that Appellant’s statement, 

assuming its correctness, “totally refutes the facts of the other witnesses, 

the eyewitnesses.” N.T. Trial, 9/27/13, at 45. 
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The prosecutor assessed Appellant’s statement in her closing: 

Here is his statement. What did he say? Painfully, and 

you know what, I know [Appellant] does not tell the truth. 

He did not tell the truth – (Indicating).

[Appellant’s Counsel]: Objection, move for a mistrial. 

[Prosecutor]: He is a fibber. 

[Appellant’s Counsel]: Personal opinion. 

The Court: Overruled. It is argument. 

N.T. Trial, 9/27/13, at 80 (emphasis added). The prosecutor went on to 

explain, in light of the evidence, why Appellant’s statement was not 

believable. Id. at 80-90. 

The statements bolded above, in our view, plainly violate the ABA 

standards as set forth in Judy. Judy, 978 A.2d at 1020. The prosecutor 

unambiguously expressed her personal opinion of Appellant’s veracity. 

Nonetheless, the law requires us to consider those statements in context 

rather than isolation. Id. After the objectionable statement, the prosecutor 

explained in detail – based on the evidence of record and not based on her 

opinion – why Appellant’s statement was not believable. Considering the 

prosecutor’s statement in context, we believe it was a fair response to 

Appellant’s counsel’s assertion that Appellant’s statement completely refutes 

all of the testimony evincing his guilt. Per Chmiel, a prosecutor is permitted 

to make a fair response to defense counsel’s argument. Chmiel, 889 A.2d 

at 543. Id. Furthermore, we must analyze a prosecutor’s conduct under a 

harmless error standard. Judy, 978 A.2d at 1020. As set forth above, the 
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record contains substantial direct evidence – in the form of eyewitness 

testimony – confirming Appellant’s guilt. Given the overwhelming evidence 

of Appellant’s guilt and the comparative insignificance of the prosecutor’s 

remarks during closing, we cannot conclude the isolated objectionable 

remarks warrant a new trial. 

Next, Appellant agues the prosecutor committed misconduct when she 

“condemned an entire section” of the city of Philadelphia, specifically the 

North Philadelphia projects. Appellant’s Brief at 23. Once again, we begin 

with a review of the competing arguments of Appellant’s counsel and the 

prosecutor. Appellant’s counsel challenged the credibility of several 

Commonwealth witnesses because of their delay in coming forward with 

statements. N.T. Trial, 9/27/13, at 18-23. Likewise, some of the witnesses’ 

in-court testimony differed from their statements. 

In her closing, the prosecutor offered the following: 

The witnesses are scared. This is Philadelphia but more 

than Philadelphia, this is the projects in North Philly. These 

people, they got to live there. They told you their reasons. 

They said [. . . ] my momma lives in those projects. My family 

lives in those projects. They live there now. The other young 

lady [. . .] does your mother live in those projects? Yes, my 8-

year-old brother lives there. Miss [. . . ], where do you live? I 

live in the projects too with my mother. So, ladies and 

gentleman of the jury, they know what they saw but the reality 

of this case is no matter what you all decide, they are going to 

have to go back home and the whole world, everybody in the 

projects is going to know that they are tattletales. They are 

snitches and that they told. 

[Appellant’s counsel]: Objection. 
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The Court: Overruled. 

Id. at 55-56. 

Appellant asserts the prosecutor’s closing argument improperly 

bolstered her witnesses’ credibility, and that “she had no right to apologize 

for what she viewed as the deficiencies of her witnesses–their in court 

testimony–on a cultural basis–arguing that because of their culture or 

environment their in court testimony was not to be believed.” Appellant’s 

Brief at 23-24. 

We discern no misconduct in this portion of the prosecutor’s closing. 

The defense challenged the credibility of various Commonwealth witnesses 

because they came forward late and/or gave testimony that differed from 

their pre-trial statements to police. The prosecutor responded that the 

witnesses feared their cooperation with law enforcement could endanger 

them in the neighborhoods where they lived, a seemingly fair response to 

Appellant’s counsel’s argument. As the trial court explained, one witness, 

Zahir Wiggins, stated he did not wish to testify because he had family living 

in the vicinity of the murder scene. N.T Trial, 9/24/13, at 225-26. Nyteisha 

Sanders testified that her mother and 9-year-old brother live there. N.T. 

Trial, 9/25/13, at 49. Shanae Talley lives in the neighborhood with her 

mother and children. Id. at 114. 

In support of his argument, Appellant cites Commonwealth v. 

LaCava, 666 A.2d 221, 236 (Pa. 1995), in which our Supreme Court 
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remanded for a new sentencing hearing where the prosecutor committed 

misconduct during the summation in the penalty phase of a capital trial. The 

prosecutor invited the jury to consider the devastating impact drug dealers 

have on their communities, rather than the specific facts of the homicide at 

issue. Id. LaCava has no application here. The prosecutor did not attempt 

to transform the trial into a referendum on an issue of public importance. 

She argued, based on specific evidence, that reluctant witnesses and 

witnesses whose testimony differed from their police statements had reason 

to fear for their safety and that of their families. We do not believe the 

prosecutor engaged in misconduct, much less misconduct “of such a nature 

that its unavoidable effect [was] to deprive [Appellant] of a fair and impartial 

trial.” Judy, 978 A.2d at 1019. Even if we were to conclude the trial court 

erred in overruling Appellant’s objection to this line of argument, such error 

is harmless in light of the overwhelming direct evidence of Appellant’s guilt. 

In summary, we have concluded Appellant’s assertions of prosecutorial 

misconduct do not merit relief. We therefore affirm the judgment of 

sentence. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015