J-A28038-16

2016 PA Super 310

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARQUIS LEE RAYNER,

Appellant No. 1263 EDA 2015

Appeal from the Judgment of Sentence April 17, 2015

in the Court of Common Pleas of Chester County

Criminal Division at No.: CP-15-CR-0001737-2013

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED DECEMBER 29, 2016

Appellant, Marquis Lee Rayner, appeals from the judgment of sentence 

imposed following his jury conviction of murder of the second degree, 

robbery, burglary, and conspiracy to commit robbery.1 We affirm.

The trial court aptly set forth the facts and procedural history of this 

case, as follows:

Shortly after midnight on June 29, 2012, three armed men 

burst into the living room of the apartment shared by Dominick 

Williams and Aaron Crawford. Mr. Crawford was asleep in his 

bedroom. Mr. Williams was awake and playing video games in 

the living room. All three intruders wore t-shirts wrapped 

around their faces to disguise their identity. One of the intruders 

immediately shot Mr. Williams in the groin. Another of the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 3502(a), and 903, respectively.
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intruders went to Mr. Crawford’s bedroom and grabbed a clear, 

plastic jar that contained marijuana, money and a pack of 

cigarettes. All three intruders then ran from the apartment. 

Dominick Williams remained on his living room floor bleeding to 

death. Later, at the hospital, he died.

Shortly after the robbery[,] the police located the plastic 

jar about two blocks away from the victim’s apartment. Located 

nearby was a black t-shirt. Subsequent testing revealed the 

presence of co-defendant Dominique Lee’s[2] thumbprint on the 

jar, and [Appellant’s] DNA on the t-shirt. [Appellant] and 

Dominique Lee, who are half-brothers, were subsequently 

arrested for the murder of Dominick Williams.

On November 20, 2014, after a four-day trial, a jury found 

Appellant guilty of second degree murder, robbery, burglary, and 

criminal conspiracy. He was sentenced to life in prison on April 

17, 2015. [The trial court] denied his optional post-sentence 

motion by order dated April 23, 2015.

This [timely] appeal followed.[3] 

(Trial Court Opinion, 5/03/16, at 1-2).

Appellant raises five issues for the Court’s review.

1. Were the convictions for murder of the second degree, 

robbery, burglary and conspiracy to commit robbery and 

burglary against the weight of the evidence? Were the verdicts 

against the weight of the evidence when the only evidence was 

[Appellant’s] DNA on a black tee shirt found [one and one-half] 

blocks from the crime and [fifteen] feet from a jar taken from 

the house, which jar had his half-brother’s fingerprints?

____________________________________________

2 Dominique Lee also has filed an appeal at docket number 1299 EDA 2015. 

3

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on May 5, 2015. See Pa.R.A.P. 1925(b). 

After receiving the court’s permission, Appellant also filed a supplemental 

statement on September 29, 2015. The trial court filed an opinion on May 3, 

2016. See Pa.R.A.P. 1925(a).
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2. Were the convictions for murder of the second degree, 

robbery, burglary and conspiracy to commit robbery and 

burglary not supported by sufficient evidence?

3. Did the Assistant District Attorney err in his opening 

statement and err when presenting Detective Dutter by stating 

his office received an anonymous tip linking Dominique Lee 

(half-brother of [Appellant]) as a participant in the crime? Did 

[the trial court] err in denying the defense request for a mistrial? 

Did this intentional error violate [Appellant’s] right to confront a 

critical witness in violation of the Sixth Amendment of the United 

States Constitution and Article I, Section 9 of the Pennsylvania 

Constitution and further, was this improper hearsay, particularly 

since [Appellant] was charged with conspiracy?

4. Did [the Commonwealth] err in [its] closing speech by 

incorrectly suggesting [Appellant] kept the alibi defense a secret 

until the last day of trial when, in fact, the alibi notice had been 

filed long before the trial, and did the [Commonwealth] err in 

giving [a] personal opinion that [Appellant] was guilty? Did [the 

trial court] err in not granting a timely mistrial?

5. Did [the trial court] err by interfering improperly with 

[defense counsel’s] cross-examination of a key prosecution 

witness on his critical testimony on the tee shirt, and did [the 

trial court] err in criticizing [defense counsel] before the jury? 

Did [the trial court] further err in repeatedly and incorrectly 

criticizing [defense counsel] during his closing argument on the 

issue of burden of proof? Did [the trial court] wrongly criticize 

[defense counsel] in front of the jury? Did [the trial court] err in 

not granting a mistrial? Did [the trial court’s] improper inference 

and criticism of [defense counsel] prejudice [Appellant], deny 

him a fair trial, and impact on [Appellant’s] [Sixth] Amendment 

right to effective counsel?

(Appellant’s Brief, at 6-8).
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Appellant’s first two issues challenge the sufficiency and weight of the 

evidence to support his convictions. (See id. at 41-55).4 For ease of 

disposition, we will address Appellant’s sufficiency challenge first, and then 

his weight of the evidence claim.

In his second issue, Appellant argues that the evidence was insufficient 

to support the verdict because it required pure speculation. (See

Appellant’s Brief, at 49-55). Appellant’s issue lacks merit.

In reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial, and all 

reasonable inferences drawn from that evidence, when viewed in 

the light most favorable to the Commonwealth as verdict winner, 

was sufficient to enable the fact finder to conclude that the 

Commonwealth established all of the elements of the offense 

beyond a reasonable doubt. The Commonwealth may sustain its 

burden by means of wholly circumstantial evidence. Further, the 

trier of fact is free to believe all, part, or none of the evidence.

____________________________________________

4 Although Appellant recognizes that each of these issues has its own 

standard of review, (see Appellant’s Brief, at 49), he appears to confuse the 

legal concepts. (See id. at 41-55). For example, “[a] motion for new trial 

on the grounds that the verdict is contrary to the weight of the evidence, 

concedes that there is sufficient evidence to sustain the verdict.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation 

omitted). However, in support of his weight of the evidence challenge, 

Appellant repeatedly states that the Commonwealth failed to prove the 

elements necessary to support his convictions. (See Appellant’s Brief, at 

44-46). Also, in his sufficiency challenge, Appellant maintains that “[t]he 

speculative and conflicting nature of the testimony would warrant a reversal 

on the basis of sufficiency of evidence.” (Appellant’s Brief, at 52). However, 

this allegation goes to the weight of the evidence. See Commonwealth v. 

Doleno, 633 A.2d 203, 206 (Pa. Super. 1993) (“claim goes to the weight of

the evidence because it depends upon a resolution of the conflicting

testimony of competing witnesses.”).
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Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (citation 

omitted). In this case, Appellant was convicted of murder of the second 

degree, robbery, burglary, and conspiracy.

Pursuant to section 2502(b) of the Crimes Code, “[a] criminal homicide 

constitutes murder of the second degree when it is committed while 

defendant was engaged as a principal or an accomplice in the perpetration of 

a felony.” 18 Pa.C.S.A. § 2502(b). The Crimes Code also provides, in 

pertinent part, that “[a] person is guilty of robbery if, in the course of 

committing a theft, he . . . inflicts serious bodily injury upon another [or] 

threatens another with or intentionally puts him in fear of immediate serious 

bodily injury[.]” 18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii). It further provides, “[a] 

person commits the offense of burglary if, with the intent to commit a crime 

therein, the person . . . enters a building or occupied structure, or separately 

secured or occupied portion thereof that is adapted for overnight 

accommodations in which at the time of the offense any person is 

present[.]” 18 Pa.C.S.A. § 3502(a)(1). Finally:

A person is guilty of conspiracy with another person or persons 

to commit a crime if with the intent of promoting or facilitating 

its commission he . . . agrees with such other person or persons 

that they or one or more of them will engage in conduct which 

constitutes such crime . . . or . . . agrees to aid such other 

person or persons in the planning or commission of such crime . 

. . .

18 Pa.C.S.A. § 903(a).
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In this case, the evidence at trial established that three men broke into 

Dominick Williams’ apartment with the intent of robbing him. (See N.T. 

Trial, 11/17/14, at 67, 69, 150). The men were armed with guns and wore 

t-shirts across their faces. (See id. at 66-68, 77, 118-119, 132). After 

shooting Mr. Williams, and pistol whipping his roommate, Aaron Crawford, 

one of the men stole a plastic-lidded jar that contained marijuana and other 

items. (See id. 155-57). The individual was not wearing gloves. (See id.

at 150).

As further described by the trial court:

Approximately [ninety] minutes after Dominick Williams 

had been shot, police officer Stephen Galletta of the Coatesville 

City Police Department located the clear plastic jar tossed in a 

hedge row approximately a block and a half from the crime 

scene. (See id. at 244). The jar contained a pack of Newport 

cigarettes. (See id. at 163). Located several feet away was a 

black t-shirt. (See id. at 244, 248). Witness Aaron Crawford 

was brought to the discovery scene and identified the jar as the 

one taken from his bedroom earlier that morning, and the t-shirt 

as the type of shirt that one of the robbers had been wearing 

across his face. (See id. at 161-64).

Chester County Detective Kenneth Beam testified as an 

expert in the field of fingerprint analysis. Detective Beam 

received as evidence the plastic jar and t-shirt found close to the 

scene of the robbery. (See N.T. Trial, 11/18/14, at 49). 

Detective Bean testified that the print with the sharpest and 

clearest detail found on the plastic jar belonged to co-defendant 

Dominique Lee. (See id. at 65, 69, 73). Because Detective 

Bean knew that the t-shirt had possibly been tied across the face 

of one of the intruders as a disguise, he surmised that the 

intruder might have left saliva on the shirt. Accordingly, 

Detective Bean sent the t-shirt to the State Police Laboratory for 

DNA analysis. (See id. at 55).
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Michael Gossard, a forensic scientist with the Pennsylvania 

State Police, testified as a serology expert. Mr. Gossard tested 

the t-shirt for evidence of saliva. (See id. at 117). His testing 

indicated the presence of saliva on two different areas of the tshirt. (See id. at 121, 135).

Timothy Gavel, a forensic scientist with the Pennsylvania 

State Police DNA lab, performed a DNA analysis on the evidence 

left on the t-shirt. Mr. Gavel testified that DNA evidence left on 

the t-shirt belonged to Appellant []. (See id. at 149, 153). He 

also testified that the chance of a coincidental DNA match in the 

African-American population was one in 7.9 quintillion. (See id.

at 154).

(Trial Ct. Op., at 4-6) (some record citation formatting provided).

Based on the above evidence, and our review of the record in the light 

most favorable to the Commonwealth as verdict winner, we conclude that it 

was sufficient to establish the elements of the crimes of which Appellant was 

convicted. See Taylor, supra at 614. Appellant’s sufficiency challenge 

does not merit relief.

Appellant also challenges the weight of the evidence to support his 

convictions. (See Appellant’s Brief, at 41-49). Appellant’s issue lacks merit.

When we review a weight-of-the-evidence challenge, we 

do not actually examine the underlying question; instead, we 

examine the trial court’s exercise of discretion in resolving the 

challenge. This type of review is necessitated by the fact that 

the trial judge heard and saw the evidence presented. Simply 

put, [o]ne of the least assailable reasons for granting or denying 

a new trial is the lower court’s conviction that the verdict was or 

was not against the weight of the evidence and that a new trial 

should be granted in the interest of justice. A new trial is 

warranted in this context only when the verdict is so contrary to 

the evidence that it shocks one’s sense of justice and the award 

of a new trial is imperative so that right may be given another 

opportunity to prevail.
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Of equal importance is the precept that, “The finder of fact 

. . . exclusively weighs the evidence, assesses the credibility of 

witnesses, and may choose to believe all, part, or none of the 

evidence.” Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 

24, 39 (2011) (citation omitted).

Commonwealth v. Konias, 136 A.3d 1014, 1022-23 (Pa. Super. 2016), 

appeal denied, 145 A.3d 724 (Pa. 2016) (most citations and quotation marks 

omitted).

In this case, the trial court “presided over Appellant’s trial [and did] 

not find the jury verdict so contrary to the evidence as to shock the [c]ourt’s 

sense of justice. Thus, [the court] specifically [found] that the verdict in this 

matter was not against the weight of the evidence.” (Trial Ct. Op., at 6). 

We decline Appellant’s invitation to re-weigh the evidence in this matter, and 

conclude that the trial court did not abuse its discretion in denying his 

weight of the evidence challenge. See Konias, supra at 1022-23. 

Appellant’s weight of the evidence claim does not merit relief.

In his third issue, Appellant challenges the trial court’s denial of his 

motion for a mistrial after the Commonwealth’s attorney referenced an 

anonymous tip during his opening statement and during his examination of 

Detective Dutter. (See Appellant’s Brief, at 55-61). This issue lacks merit.

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

a motion for a 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 
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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. Chamberlain, 30 A.3d 381, 422 (Pa. 2011), cert. 

denied, 132 S. Ct. 2377 (2012) (citations and quotation marks omitted); 

see also Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa. 2014)

(observing that “the jury is presumed to follow the court’s instructions.”) 

(citation omitted).

Appellant first argues that the trial court erred in denying his motion 

for a mistrial where Commonwealth’s counsel made a hearsay statement 

during his opening statement, which prejudiced him. (See Appellant’s Brief, 

at 55-56). We disagree.

It has long been the law of this Commonwealth that:

Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted. [See] 

Pa.R.E. 801(c). Thus, any out of court statement offered not for 

its truth but to explain the witness’s course of conduct is not 

hearsay.

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012), cert. denied, 

133 S. Ct. 1795 (2013) (case citation and internal quotation marks omitted).

In this case, during the Commonwealth’s opening statement, the 

prosecutor explained the process by which the fingerprints on the jar were 

identified. Specifically, after stating that investigators had been unable to 

identify the fingerprints for approximately six months, the prosecutor stated:
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Now it’s time for me to talk about that second lucky break that 

happened in January of 2013 when Detective Harold Dutter 

received an anonymous tip from someone who identified 

Dominque Lee, this [co-]defendant, as one of the men who 

[was] involved in the home invasion robbery.

(N.T. Trial, 11/17/14, at 18). Immediately thereafter, Appellant’s counsel 

objected and moved for a mistrial, which the trial court denied. (See id.). 

When counsel completed his opening statement, the court instructed the 

jury:

Ladies and gentlemen, before we get to the defense 

opening, I need to give you an instruction. You will recall that 

during the course of [the prosecutor’s] opening[,] he made 

mention of what a tipster said and certain tipster information 

was provided to the police and there was an objection by 

defense. I need to give you an instruction with respect to that. 

When an anonymous tip comes to the police[,] the police 

are allowed to act on an anonymous tip. In other words, they 

are allowed to check fingerprints and identities and these types 

of things. But what the tipster said, his actual words, is not 

evidence of [Appellant’s] guilt and you may not consider what 

the tipster said as being evidence of any defendant’s guilt. 

However, the prints that were checked as a result of the tip is 

evidence that you may consider in this particular case. . . .

(Id. at 30-31).

Here, because the statement about the tipster was made to explain 

the course of conduct pursued by the police, not for the truth of the matter 

asserted, it was not hearsay. See Johnson, supra at 1035. Moreover, any 

prejudice allegedly suffered by Appellant was cured by the court’s cautionary 

instruction, which the jury is presumed to have followed. See Jemison, 

supra at 1263; Chamberlain, supra at 422. This argument lacks merit.
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Appellant also argues that the trial court abused its discretion when it 

denied counsel’s motion for a mistrial on the basis of the prosecutor’s 

questioning of Detective Dutter about the anonymous tip. (See Appellant’s 

Brief, at 57-58). Appellant maintains that, because the anonymous tip led 

to a fingerprint identification that allowed Detective Dutter to determine that 

he and Dominque Lee were half-brothers, the tip was “very damning 

evidence” that denied Appellant the right to confrontation. (Appellant’s 

Brief, at 58). However, this argument also fails. 

A review of the testimony reveals that the Commonwealth’s attorney 

asked Detective Dutter, “[w]hen [] Dominique’s Lee’s name first c[a]me up 

in the context of this investigation[,]” to which the detective responded, “I 

received an anonymous tip.” (N.T. Trial, 11/18/14, at 183). Appellant’s 

counsel objected and moved for a mistrial, which the trial court denied after 

cautioning the jury: “[J]ust because somebody’s name comes up in an 

anonymous tip, it is not to be construed in any way by you as evidence 

against that individual. It[ is] simply being used in this context to show that 

the police took [a] step and went forward.” (Id. at 183-84).

Again, we conclude that the cautionary instruction provided by the trial 

court was sufficient to overcome any potential prejudice. See 

Chamberlain, supra at 422; see also Jemison, supra at 1263. 

Moreover, as observed previously, the statement by the anonymous tipster 

was not hearsay because it was offered to show why the police took the 
J-A28038-16

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investigation in the direction that they did, not for the truth of the matter 

asserted. See Johnson, supra at 1035. Therefore, this argument fails and 

the trial court did not abuse its discretion when it denied Appellant’s motions 

for a mistrial on the basis of the anonymous tip. See Chamberlain, supra

at 422. Appellant’s third issue lacks merit.

In his fourth issue, Appellant argues that the trial court erred in 

denying his motion for a mistrial where the prosecutor committed 

prosecutorial misconduct during his closing argument. (See Appellant’s 

Brief, at 61-68). Specifically he maintains that the Commonwealth’s counsel 

incorrectly suggested that Appellant kept the alibi defense a secret until the 

last day of trial and gave his opinion that Appellant was guilty. (See id.). 

Appellant’s issue does not merit relief.

With specific reference to a claim of prosecutorial

misconduct in a closing statement, it is well settled that [i]n 

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) (citations 

and quotation marks omitted). Here, when viewing the prosecutor’s 

comments about the alibi witnesses in context, it is clear that Appellant’s 

argument in this regard lacks merit. 

During the prosecutor’s closing argument, the following exchange 

occurred:
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[Commonwealth:] Let’s talk about some other obvious issues 

with the alibi witnesses. None of these people who had this 

valuable information ever brought it to the attention of anyone 

except the defense lawyers. Think about this. Your loved one 

gets arrested on a crime such as this. And you know 

unequivocally, without a doubt this person could not have 

committed the crime. Why? Because they were with [you] at 

that precise moment in time. 

Are you going to just sit on that information for two years,

not pick up the phone, call the police [and] the County 

Detectives and just sit on it and let it sit there and sit there until 

when? The last day of trial it comes out. Does that make any 

sense at all?

[Additionally,] [t]wo of the four witnesses, when the police 

did find out they that they were alleged alibi witnesses couldn’t, 

wouldn’t talk to police. Who does that? . . .

They refused to talk to the police. Why do you think that 

is? Why do you think they didn’t want to talk to them? You 

know. Because if they told the detectives what their account 

was and the detectives could follow-up on it, see if it holds 

water, attempt to corroborate. But if they don’t talk to the 

detective and the detectives [don’t] have a chance to do any of 

that. That is why they kept it a secret until the last day of the 

trial.

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

notices were filed.

THE COURT: Objection overruled. Motion denied.

(N.T. Trial, 11/19/14, at 219-20).

Reading the prosecutor’s comments in context, we conclude that he 

did not commit prosecutorial misconduct. See Judy, supra at 1019. He 

properly questioned the reliability of alibi witnesses who chose not speak to 

police on behalf of their loved one prior to trial, when they allegedly could 

have given him an alibi. (See N.T. Trial, 11/19/14, at 219-20). Therefore, 
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the trial court did not abuse its discretion when it denied Appellant’s motion 

for a mistrial on this basis. See Chamberlain, supra at 422.

Additionally, Appellant’s argument that the Assistant District Attorney 

committed prosecutorial misconduct because he gave his personal opinion 

about Appellant’s guilt also lacks merit. (See Appellant’s Brief, at 64-66).

It is well established that a prosecutor must have 

reasonable latitude in presenting a case to the jury, and must be 

free to present arguments with logical force and vigor. Counsel 

may comment upon fair deductions and legitimate inferences 

from the evidence presented during the testimony. Although a 

prosecutor may argue to the jury that the evidence establishes 

the defendant’s guilt, arguments from personal opinion as to the 

guilt of the accused are not proper.

Chamberlain, supra at 407-08 (citations and quotation marks omitted).

Here, Appellant’s counsel objected to the following language by the 

prosecutor:

The word verdict is from the Latin word verdictum. It 

means to speak the truth. That is what I am asking you to do. 

I’m asking you to go back to the jury room, deliberate and speak 

the truth. 

And there is only one truth in this case and it is a very 

simple truth. And that is that these two men, these halfbrothers, these two co-conspirators, went into the house at 744 

Merchant Street and committed a home invasion robbery. In the 

course of committing that, Dominick Williams was shot and 

killed.

(N.T. Trial, 11/19/14, at 212).

Reading the prosecutor’s statement in light of his closing argument as 

a whole, it appears that he merely was commenting on “fair deductions and 

legitimate inferences from the evidence[.]” Chamberlain, supra at 408 
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(citation omitted). Moreover, even if the prosecutor’s comments were 

considered prejudicial, we observe that:

[N]ot every remark by the prosecutor, even assuming it is 

intemperate or uncalled for, requires a new trial. A prosecutor’s 

comments do not amount to reversible error unless the 

unavoidable effect of such comments would be to prejudice the 

jury, forming in their minds fixed bias and hostility toward the 

defendant so that they could not weigh the evidence objectively 

and render a true verdict. Moreover, the prejudicial effect of the 

prosecutor’s remarks must be evaluated in the context in which 

they occurred. In applying these standards on appellate review, 

we have explained that whether this standard has been violated 

by the language of the prosecutor is not in the first instance an 

appellate court’s decision to make; rather, it is the duty of the 

trial judge to rule upon the comments and we are limited to 

reviewing whether the trial court abused its discretion.

Chamberlain, supra at 408 (citations and quotation marks omitted).

In this case, it was for the trial court to weigh whether the 

prosecutor’s remarks constituted reversible error. See id. The court found 

that they did not, but that, instead, the “prosecutor was not offering his 

personal opinion[, but rather] was arguing to the jury that the evidence 

presented established [A]ppellant’s guilt.” (Trial Ct. Op., at 12). We discern 

no abuse of discretion. See Chamberlain, supra at 408.

Finally, in his fifth issue, Appellant argues that the trial court 

improperly interfered with trial. (See Appellant’s Brief, at 68-82). 

Specifically, he claims that “[the trial court’s] interference, commenting on 

evidence, improper criticism and interruption of [defense counsel’s] closing 

speeches[,] denied [Appellant] his right to due process and a fair trial and 
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impacted [his] Sixth Amendment right to effective counsel.” (Id. at 68) 

(underlining omitted). After exhaustively reviewing the record, we disagree.

[O]pinions formed by the judge on the basis of facts 

introduced or events occurring in the course of the current 

proceedings, or of prior proceedings, do not constitute a basis 

for a bias or partiality motion unless they display a deep-seated 

favoritism or antagonism that would make fair judgment 

impossible. Thus, judicial remarks during the course of a trial 

that are critical or disapproving of, or even hostile to, counsel, 

the parties, or their cases, ordinarily do not support a bias or 

partiality challenge. They may do so if they reveal an opinion 

that derives from an extrajudicial source; and they will do so if 

they reveal such a high degree of favoritism or antagonism as to 

make fair judgment impossible. . . . Not establishing bias or 

partiality, however, are expressions of impatience, 

dissatisfaction, annoyance, and even anger, that are within the 

bounds of what imperfect men and women, even after having 

been confirmed as [] judges, sometimes display. A judge’s 

ordinary efforts at courtroom administration—even a stern and 

short-tempered judge’s ordinary efforts at courtroom 

administration—remain immune. However, [a] judge’s remarks

to counsel during trial do not warrant reversal unless the 

remarks so prejudice the jurors against the defendant that it 

may reasonably be said [that the remarks] deprived the 

defendant of a fair and impartial trial.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014), appeal 

denied, 101 A.3d 102 (Pa. 2014) (citation and emphases omitted).

In this case, Appellant first maintains that the trial court improperly 

interrupted his cross-examination of Aaron Crawford, who was in the subject 

house during the robbery. (See Appellant’s Brief, at 72-76). On direct 

examination, Crawford testified that the intruders who entered the home 

were African American individuals, and that they wore t-shirts on their heads 

as disguises, with one of the two individuals entering his bedroom wearing a 
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white t-shirt on his head, and the other wearing a black one. A third person, 

who did not enter the bedroom wore a white t-shirt on his head. (See N.T. 

Trial, 11/17/14, at 149, 151, 169). In response to the prosecutor’s 

questions about what color shirts the men were wearing on their bodies, 

Crawford testified that the two men wearing white t-shirts on their heads 

were also wearing white t-shirts on their torsos, and the individual wearing a 

black t-shirt on his head was wearing a black t-shirt on his body. (See id.

at 169-70). One of the individuals disguised by a white t-shirt struck 

Crawford in the head and stole a jar from his bedroom that contained 

marijuana, money, and a pack of Newport cigarettes. (See id. at 152, 155). 

Minutes later, police took Crawford to a location approximately one-and-ahalf blocks from his home where he identified a jar containing a pack of 

Newport cigarettes as the one taken from his home. (See id. at 161-63). 

He also identified a black t-shirt located “a couple feet away” from the jar as 

being the one worn on the head of one of the intruders. (Id. at 164).

On cross-examination, the following relevant exchange occurred:

[Defense Counsel]: Now two guys come in [the bedroom], you 

said . . . both of them had white t-shirts on. . . .

[Crawford]: I don’t know.

[Defense Counsel]: White t-shirts on their head[s] today earlier 

in front of the jury[?]

[Commonwealth]: Objection.

THE COURT: Sustained.
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* * *

THE COURT: [Defense counsel], the testimony was that one had 

a white t-shirt on. He testified that the other had a black t-shirt. 

There was another man outside that had a white t-shirt.

(Id. at 186). 

After our independent review, we conclude that the trial court was 

responding to an objection raised by the Commonwealth, not condemning 

defense counsel. The court merely was correcting the mistake in counsel’s 

recitation of Crawford’s testimony. This does not evidence any of the 

partiality or bias necessary to find that the trial court acted improperly. See 

Kearney, supra at 61.

Next, Appellant complains that the trial court’s attempt to clarify 

whether defense counsel was asking about the shirts worn on the assailants’ 

faces or on their bodies, (see N.T. Trial, 11/17/14, at 190-91), evidenced 

partiality necessitating a new trial. This issue is waived because Appellant 

provides only one incoherent sentence in support of it. (See Appellant’s 

Brief, at 74); see also Pa.R.A.P. 2101, 2119(a)-(b). Moreover, after 

reviewing the entire record in this matter, we conclude that the trial court 

was clarifying counsel’s question in an attempt to maintain the orderly 

presentation of this case. See Kearney, supra at 61. This claim would 

lack merit, even if not waived.

Appellant additionally maintains that the trial court improperly 

interfered when defense counsel was impeaching Crawford about an 
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allegedly inconsistent statement about a Polo insignia on the black t-shirt. 

(See Appellant’s Brief, at 74-76). Specifically, Appellant attempted to bring 

in Crawford’s grand jury testimony as an inconsistent statement where, in 

that statement, he had said that one of the assailant’s t-shirts was black 

and, at trial, he testified that the shirt was black with a Polo insignia on it. 

(See N.T. Trial, 11/17/14, at 197-99). The trial court advised defense 

counsel that this was not a prior inconsistent statement, and suggested that 

he read the rules about what such a statement is. (See id. at 199). We 

find no error.

A prior inconsistent statement, in relevant part, is “[a] prior statement 

by a declarant-witness that is inconsistent with the declarant-witness’s 

testimony and . . . was given under oath subject to the penalty of perjury[.]” 

Pa.R.E. 803.1(1)(A). In other words, prior inconsistent statements are those 

earlier statements, taken under oath, that are incompatible with the 

witness’s trial testimony.

For example, in Commonwealth v. Buford, 101 A.3d 1182 (Pa. 

Super. 2014), appeal denied, 114 A.3d 415 (Pa. 2015), this Court concluded 

that a trial court properly admitted a tape recorded statement in which the 

witness identified the defendant as the perpetrator of the subject crime as a 

prior inconsistent statement, where the witness recanted her prior 

identification, and the defendant’s culpability, at trial. See Buford, supra

at 1200. Similarly, in Commonwealth v. Stays, 70 A.3d 1256 (Pa. Super. 
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2013), a trial court properly admitted a prior inconsistent statement 

identifying the defendant and the signed photo array, where witness 

recanted the identification at trial. See Stays, supra at 1262. Finally, in 

Commonwealth v. Pitner, 928 A.2d 1104 (Pa. Super. 2007), appeal 

denied, 944 A.2d 757 (Pa. 2008), this Court affirmed a trial court’s 

admission of the witness’s guilty plea colloquy, which identified defendant as 

participating in the crime with him, as a prior inconsistent statement, where 

he denied defendant’s involvement at trial. See Pitner, supra at 1108-09.

However, here, the prior statement merely lacked a detail that was 

included in Crawford’s trial testimony. Therefore, the trial court properly 

advised Appellant that these statements were not incompatible and 

inconsistent in the sense required for admission as a prior inconsistent 

statement. See Pa.R.E. 803.1(1)(A); Buford, supra at 1200; Stays, 

supra at 1262; Pitner, supra at 1108-09. Hence, for all of these reasons, 

Appellant’s claim that the trial court improperly interfered with his crossexamination of Crawford, lacks merit. See Kearney, supra at 61.

Finally, Appellant contends that the trial court “improperly criticized 

and objected to [defense counsel’s] closing and misled the jury concerning 

[his] discussion of the burden of proof.” (Appellant’s Brief, at 78). This 

issue is waived for Appellant’s failure to provide any pertinent authority in 

support of his argument that the trial court’s interruption during his closing 

argument supports a finding that it acted improperly. (See id. at 78-81); 
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see also Kearney, supra at 66-67 (finding claim waived for failure to cite 

pertinent authority and discussion thereof). Moreover, it would not merit 

relief. 

In Commonwealth v. Britton, 482 A.2d 1294 (Pa. Super. 1984), 

appeal denied, 506 A.2d 895 (Pa. 1986), similar to this case, the appellant 

argued that the trial court acted improperly when it interrupted him during 

closing argument as defense counsel was explaining the meaning of 

reasonable doubt. See Britton, supra at 1301. In concluding the issue 

had no merit, this Court observed:

The court correctly curtailed the attorney’s remarks 

explaining to the jury that it was his role to instruct as to the 

law. It is the duty of the trial judge to instruct the jury as to the 

applicable law, and it is not error for the judge to interrupt 

counsel and correct a possibly misleading statement of the law.

Id. (citations omitted)

Likewise, here, we conclude that the trial court was acting within its 

purview when it interrupted defense counsel to correct what it perceived as 

a misstatement of the law. See id. Further, the complained-of exchange, 

(see N.T. Trial, 11/19/14, at 159-61), even were we to view it as “critical or 

disapproving of, or even hostile to, counsel[,]” does not “reveal such a high 

degree of favoritism or antagonism as to make fair judgment impossible.” 

Kearney, supra at 61 (citations omitted). Hence, Appellant’s argument in 

this regard lacks merit. Therefore, after our review of the entire record, we 

conclude that there is nothing in any of the trial court’s remarks to 
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Appellant’s counsel that rises to the level of requiring a new trial. See id. 

Appellant’s fifth issue lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2016