J. A15033/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

WESLEY WATERS, :

:

Appellant : No. 118 EDA 2014

Appeal from the Judgment of Sentence September 5, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0004959-2011

BEFORE: BOWES, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015

Appellant, Wesley Waters, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following a jury 

trial and convictions for robbery,1conspiracy,2violations of the uniform 

firearms act,3and possession of an instrument of crime.4 Appellant 

contends that the court improperly limited his cross-examination by stating 

that if he cross-examined the police on the extent of their investigation, then 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii).

2 18 Pa.C.S. § 903.

3 18 Pa.C.S. §§ 6105(a)(1), 6108.

4 18 Pa.C.S. § 907(a).
J. A15033/15

- 2 -

the testifying police officer could potentially disclose his prior robbery 

conviction. He claims the court erred by allowing a police officer to opine on 

whether Appellant acted like a robbery victim. Appellant challenges the 

court’s refusal to issue a Kloiber5instruction and the prosecutor’s comment 

during her closing arguments. We affirm. 

We adopt the facts set forth by the trial court’s decision. See Trial Ct. 

Op., 8/25/14, at 1-3. Following a hung jury and mistrial, Appellant was 

again tried by a jury. At the second trial, the following exchange transpired 

during the direct examination of Officer Floyd Allen, the arresting officer who 

was with her partner:

[Commonwealth]. You get a flash[6]for an armed robbery?

A. Yes.

Q. What do you guys do?

A. Proceed to the area. I happened to be around the 

corner from there. Beings [sic] as though the flash said it 

happened on Wayne and Seymour, I took Seymour Street 

down. As I’m approaching Germantown Avenue, I see 

[Appellant] to my left with the gray shirt on standing on 

the corner with another male. They were at that point 

 

5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

6

“A flash information is based on a report from the initial officers to 

investigate the scene of a crime and is broadcast to other police units in the 

district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super. 

1986). Instantly, Officer Allen testified that Appellant and codefendant were 

the only two in the area that matched the description in the flash 

information, which was “two black males, one with a beard” and a blue, 

green, or blue-green hoody. N.T., 7/3/13, at 49, 82-84.
J. A15033/15

- 3 -

separating. The other male is starting to walk up Seymour 

into the 14th. As I get closer, [Appellant] is making a 

head and hand gesture, pointing like this like he has a 

gun.

The court: I’m sorry. Repeat that, please.

[A.] Making a head and hand gesture, like the male going 

to the left had a gun. So stopped [Appellant]. Put him in 

my car for investigation. Went and stopped the other 

male. Brought him back to the car. At that point [another 

officer, Officer Sommerville, who had arrived at the scene 

in response to the flash, see N.T. Trial, 7/3/13, at 91-92] 

recovered a weapon which was a revolver [from a trash 

can near codefendant Dominic Broadneck7].

* * *

Q. There’s a map behind you there. Can you show the 

ladies and gentlemen of the jury the route that you took to 

ultimately get to where [Appellant] and codefendant were?

A. This is Seymour here. Knox and Seymour. I basically 

just came straight down from Wayne. Straight down 

Seymour to Germantown Avenue. [Appellant] was 

standing here on this corner. As I’m approaching this 

corner, [Appellant] pointing to the other male who is 

walking into the 14th District along alongside of I believe 

it’s a church, if I’m not mistaken. There’s a trash can right 

here which I see the other male stop at. As [Appellant’s] 

pointing like this, I’m looking at the male. The male stops 

at the trash can which is the side of the building and he 

continues to walk. Again, I placed [Appellant] into my 

vehicle for investigation purposes and stopped the other 

male with the help of Officer Sommerville.

Q. Let me stop you for a second. Can you describe 

[Appellant’s] demeanor as he’s standing on the corner kind 

of like bobbing his head?

 

7 The record also indicates codefendant’s last name was Broadnax.
J. A15033/15

- 4 -

A. He’s bobbing his head and pointing and making a 

gesture that the other male had a gun, but he’s very cool 

and very calm. And in my profession—

[Appellant’s counsel.] Objection. It’s not asking for 

opinion evidence here.

The court: That’s fine. It’s denied.

[Commonwealth]. You can continue.

A. In my years of service normally when people were 

getting robbed, they are excited when they see the police. 

They are jumping up and down. They are flagging us 

down: Officer, Officer, this man had a gun. He was not 

exited [sic] or anything. So for investigation purposes, I 

placed [Appellant] in my vehicle so I could stop the other 

male and find out what’s going on.

Q. Why did you place [Appellant in your] vehicle [sic] if 

he’s kind of acting like a victim?

[Appellant’s counsel.] Objection.

The court: Sustained.

[Commonwealth]. Why did you place [Appellant] in the 

rear of your car?

A. A lot of times you get a robbery job. People say, oh, 

this male—

[Appellant’s counsel.] Objection. A lot of times? Let’s 

limit it to this case. 

The court: That’s fine. You can limit it to this case. You 

can rephrase the question.

[Commonwealth]. Why in this particular case did you 

place [Appellant] in the rear of your car for investigation 

purposes?

A. To find out exactly what was going on.
J. A15033/15

- 5 -

Q. Are you certain this person was a victim at that point?

A. No, I was not.

Q. And what happened once you placed [Appellant] in your 

vehicle for investigation and then you start pursuing the 

codefendant?

A. Once I knew that [Appellant] was secured and my 

partner was safe watching him, that’s when Officer 

Sommerville and I cut the other defendant off. Brought 

him back to the vehicle so he could be checked and make 

sure he didn’t have a weapon at that point. Until he was 

safe and we could put him in the vehicle.

N.T., 7/3/13, at 43-48. 

Appellant also cross-examined at least one police officer and one 

detective about the extent of their investigation and asked, inter alia, why 

the police did not lift fingerprints from the victim’s credit cards or investigate 

Appellant’s cell phone. See id. at 75-76, 191-92, 198. For the defense, 

Appellant’s sister, Dashawna Waters, was the sole witness. Id. at 204-11. 

She testified she dropped Appellant off near Germantown and Seymour to 

see his friend. Id. at 206. 

During his closing argument, Appellant argued he was the victim of the 

instant crimes and the perpetrator was his codefendant, Dominic Broadneck:

There’s more obvious problems with this case. This is 

in fact a high crime area. I mean, it’s not pleasant to say 

that this part of the city of Philadelphia is what we call a 

high crime area. . . . And we need to put more police 

officers in those areas because they have more burglaries; 

they have more robberies; they have more drug sales; 

they have more shootings.
J. A15033/15

- 6 -

And guess what? The 39th District is one of those. 

Officer Waltman’s told you and Officer Sommerville told 

you. This has been identified by the police department 

and they have tactical units there. They have burglary 

units out there. They have five squad out there. And for 

them to say that, well, there was nobody else out there

and nobody else could have been out there robbing 

[Appellant], that’s impossible. 

. . . So let’s just talk about what a robbery is. A 

robbery is, you know, two or more people getting together 

and saying, hey, let’s go steal some money. And if they 

say, meet me at 1:00 out at the bank, that’s pretty 

simple; right? I need some money. You do? All right. 

1:00 at the bank at 15th and JFK. All right. Be there. 

They meet there, Rob and they go away. 

Ask yourself this: two people at different parts of the 

city, because we know [Appellant] was by himself. How do 

they decide we’re just going to meet at a moving target 

that we don’t even know where it’s going to be or who’s 

going to be there or if anyone is going to be there? How 

does this happen? How does [Appellant] go from being 

alone to getting so lucky as to find someone at Seymour 

and Knox [i.e., the location of the robbery,] and being 

there at the same time as [codefendant] Broadneck? This 

is too much. 

What evidence do they have to show that was such a 

coordination that they were able to say, you know what? I 

think there’s going to be a guy right at Knox and Seymour 

at exactly 2:00. And if you meet here and I meet here 

and we meet in the middle, there’s going to be someone 

there to rob. It’s not that easy. In fact, it’s quite difficult. 

It makes no sense. And they can’t prove how that could 

have possibly happened. 

Another thing that’s very clear. The gun and the 

proceeds are all on [codefendant] Dominic Broadneck. If 

someone is a victim of a robbery and they say, hey, that’s 

the guy that did it and they got the gun and the proceeds, 

well, it’s pretty clear to say that that’s the right person. 

[Appellant] had none of that. He didn’t have the gun. He 
J. A15033/15

- 7 -

didn’t have the credit cards. He didn’t have the cell phone. 

He didn’t have the wallet. He didn’t have the cash. 

* * *

Now, there’s [Appellant’s] head gesture. This head 

gesture, this could have been number one. This could 

have been number one or number two. Moving your head 

towards another guy who has a gun? Well, I guess that 

now means when you go like this and you point to the 

other person who has a gun, you’re saying to the police, 

hey, I did it, too. I’m a robber, too; right? That’s what he 

must have been saying. Or was he trying to tell the police 

officer, hey, that guy just robbed me? That is reasonable 

doubt in and of itself.

He didn’t run away. He didn’t hide. He didn’t start 

throwing things out of his pockets. He stands there on the 

corner. That guy has a gun. He’s not saying he’s got a 

gun because we’re out robbing people together. This is 

nonsense. This is absolute nonsense. 

N.T., 7/5/13, at 30-33, 35-36.

In response to Appellant’s closing argument that he was not the 

perpetrator, the prosecutor summarized video surveillance footage:

This video, ladies and gentlemen, is worth a 1,000 words. 

What do you have on this video? Let’s talk about the 

timeline. This video helps us figure out exactly what’s 

going on. All right. He says he doesn’t know what time 

the robbery happened. Well, I can do math and I know 

you can do math. So I can tell you what time the robbery 

happened? All right.

Here we are, 2:00 a.m. and one second. You have 

[Appellant] walking towards Knox and Seymour in the 

direction of the robbery. He’s headed right there. He’s 

headed right towards Mr. Coleman. He’s walking there at 

2:00.02. 2:00 a.m. He’s walking there at 2:00.04. 

2:05.32 and somewhere between 2:06. That’s when Mr. 

Coleman is being robbed. Does he have time to get there? 

Yes. Detective O’Neill told you, I walked that and I just 
J. A15033/15

- 8 -

walked it at a normal pace and I got there at five minutes 

and two seconds. But did he make it five blocks? Five 

regular city blocks? Absolutely.

How did we know when the robbery happened? 

2:08.31. That C.A.D.[8]report that counsel was talking 

about, well, 2:08.31 is when you get the call, the 911 

dispatch. Mr. Coleman sat there and said it took me two 

to three minutes to get home tops. I called 911. My wife 

called 911 immediately. That’s how we know when the 

robbery is taking place. 

When do we see [Appellant] again? 2:11.7. And where 

do we see him? I’ll tell you. He’s walking back from the 

direction of the robbery. He’s walking back from Knox on 

Seymour. That’s where he’s coming from because he just 

robbed Mr. Coleman. And remember the minute behind 

him? His codefendant, Dominic Broadneck. That person 

wearing all dark clothing, dark boots. The guy on that 

video, you see him in the corner. He’s walking back from 

Knox and Seymour, too, the same direction a minute 

behind this defendant. Dark pants, dark boots. That’s 

Dominic Broadneck. You heard the description. That’s 

where he is.

The crime is solved on the street by officers within 

minutes. Ladies and gentlemen, that video is something 

he can’t explain away. Well, he wants to say there was a 

cab somewhere in that video? Okay. Germantown Cab 

Company. What, did he call a cab? Is someone picking 

him up? Is that why he was there? He has five $1’s in his

pocket. How is he going to pay for that cab. Where was 

he going? Is he going to get in the cab and go somewhere 

with the money he didn’t have to pay for the cab or is he 

going to Portico Street to take a cab a half a block. That 

doesn’t make sense. Because what makes sense is that 

timeline there.

Okay. So he’s stopped a couple minutes later and the 

codefendant is tossing the gun; right? The gun is not in 

 

8 Criminal Arrest and Disposition Report.
J. A15033/15

- 9 -

his waistband. So what? We know where the gun was 

when the robbery was happening. It was in his waistband. 

He was using it to paralyze Mr. Coleman to have him give 

up all his items. Okay. Crime for dummies 101. Read the 

first couple chapters. I just committed an armed robbery. 

I got the gun and I got the proceeds. I’m standing like a 

sitting duck on the corner of Germantown and Seymour. 

I’m sitting right here. I got Officer Sommerville coming 

down this way. I got Officers Allen and Officer Lee Coming 

up this way. I’m done. I’m toast.

A crime for dummies 101. Get rid of the gun, get rid of 

the proceeds and then stand there and go like this. It’s 

that guy. It was him. Officer Allen didn’t buy it. No one 

bought it. And I know you guy’s don’t buy it. That’s not 

how someone acts when they were being robbed. If he 

was a victim, he would have been up there telling 

the story. He wasn’t the victim. He was one of the 

robbers.

[Appellant’s counsel]: Objection.

The court: Noted.

Id. at 91-94 (emphasis added). The court did not caution the jury at that 

point.

After the prosecutor completed her closing and the jury was excused, 

Appellant’s counsel formally moved for mistrial:

[Appellant’s counsel]: Briefly, your Honor, I have a motion 

for mistrial. During the prosecution’s closing, there was a 

line of testimony in which the prosecutor actually with her 

arms signaled towards the witness box and stated that he, 

referring to [Appellant], never testified. And it was in the 

context of claiming that he was a victim. He was the 

person who was robbed that day and he never testified. 

That’s clearly prohibited as to argument. It infringes on 

my client’s Fifth Amendment right to remain silent and also 

his Fifth Amendment right not to speak on his own half 

[sic] at a trial. Such argument and such blatant gesturing, 

emphasizing to the jury is clearly prosecutorial misconduct 
J. A15033/15

- 10 -

and inadmissible argument and those are grounds for a 

mistrial.

The court: And [assistant district attorney?]

[Assistant district attorney]: Your Honor, counsel argued 

during his closing arguments that he was a victim. And 

my reference to the fact that he was a victim, they would 

have known about it, your Honor. It’s not a violation of 

the Fifth Amendment right. I don’t think, your Honor, it is 

improper.

The court: I will deny the motion for mistrial. I think that 

the instructions that I will give including as to whose 

burden it is, the presumption of innocence and his failure 

to testify, that there can be no inference of guilt or other 

inference. An adverse inference is sufficient in my view to 

guide the jury as to how they should decide this case. 

Id. at 101-03. 

The court, during its charge, instructed the jury as follows:

It is entirely up to the defendant in very criminal trial 

whether or not to testify. He has an absolute right 

founded under the Constitution to remain silent. You must 

not draw any inference of guilt or any other inference 

adverse to the defendant from the fact he did not testify. 

Id. at 110-11.

The jury convicted Appellant, and the court sentenced Appellant to an 

aggregate sentence of seven to twenty years’ incarceration. Appellant filed 

a timely post-sentence motion, which the court denied that same day. 

Appellant did not file a notice of appeal within thirty days, but later filed a 

successful Post Conviction Relief Act9 petition to reinstate his direct appellate 

 

9 42 Pa.C.S. §§ 9541-9546.
J. A15033/15

- 11 -

rights nunc pro tunc. Appellant timely appealed and timely filed a courtordered Pa.R.A.P. 1925(b) statement. 

Appellant raises the following issues on appeal:

Did trial court err in limiting Appellant’s cross examination 

of the lead detective regarding the extent of the 

investigation?

Did the trial court err in permitting a Philadelphia police 

officer to testify as to his opinion that Appellant did not act 

like the victim of a robbery?

Was Appellant denied a fair trial and due process of law by 

the Court permitting the prosecutor in her closing remarks 

to comment upon [A]ppellant’s silence?

Was Appellant entitled to a Kloiber jury charge?

Appellant’s Brief at 4.

In support of his first issue, Appellant claims that two detectives 

interviewed him and prepared his five-page statement, although he 

concedes he never introduced the statement into evidence. Id. at 10, 11 

n.3. Appellant claims that his statement memorialized his allegations that 

he was a victim of the robbery and identified four potential defense 

witnesses, including his sister, Dashawna Waters,10 and a cab driver. Id. 

He insists the police refused to interview any of his witnesses. Id. Although 

he did not attempt to introduce the statement at trial, Appellant argues the 

prosecutor “fought to keep out any mention of this statement or that the 

 

10 As noted supra, she testified at Appellant’s trial.
J. A15033/15

- 12 -

police refused to interview potentially exculpatory witnesses.” Id. at 10. 

Appellant asserts the court ruled that if he questioned the police about the 

“nature and extent” of the police investigation, then the Commonwealth 

could introduce evidence of Appellant’s prior conviction for robbery.11 Id. at 

11. Appellant contends the court’s conditional ruling was error as it 

constituted a de facto prohibition of his right to confront and cross-examine 

the witnesses against him. Id. at 13.

The Commonwealth counters that the two detectives who purportedly 

recorded Appellant’s statement did not testify at trial.12 Commonwealth’s 

Brief at 11. In conjunction with the fact that Appellant’s statement was 

never mentioned or introduced into evidence, the Commonwealth contends 

 

11 The trial court’s ruling follows:

The court: And the second would be as to investigating 

any of the named witnesses that [Appellant] had provided 

to the detectives and the extent of his investigation. At 

least in my view, if you are to challenge the detective as to 

why he did not interview them, in my view you’re opening 

the door to whatever his truthful response would be. And 

if that includes that he thought that that [sic] they were 

the right person based in part on a prior conviction for 

robbery in the same area, that comes through. 

N.T., 7/2/14, at 248-49.

12 Both detectives were apparently on preplanned vacations scheduled that 

week, each of which was requested in December of 2012. N.T., 7/3/14, at 

183-84, 199-200.
J. A15033/15

- 13 -

Appellant’s claim lacks merit. Alternatively, it claims the court’s ruling was 

correct:

First, in the absence of any testimony from [Appellant], 

it was entirely proper for the court to rule that he could not 

use his cross-examination as a back door through which to 

bring in his own hearsay statement to police, in 

contravention of Pa.R.Evid. 802.4 Second, the trial court 

was well within its discretion to rule that [Appellant] could 

question the detectives about their failure to investigate 

certain supposed witnesses, but that doing so might open 

the door to their truthful responses that they believed they 

had the right person based on the evidence and 

[Appellant’s] prior conviction for a similar robbery in the 

same neighborhood.

4 Even now on appeal, [Appellant] utilizes a similar backdoor approach by inappropriately attaching the statement 

he gave to police to his brief. He does so despite explicitly 

acknowledging that “the Statement was never introduced 

into evidence in the trial” and, thus, it is not a part of the 

certified record on appeal.

Commonwealth’s Brief at 12-13 & n.4 (citations omitted). The 

Commonwealth also notes Appellant “repeatedly questioned the officers 

through the trial regarding their failure to investigate certain aspects of the 

case (See, e.g., N.T. 7/3/2013, 75-76) (asking Officer Allen on crossexamination why he did not speak with the cab driver who was on the scene 

or investigate [Appellant’s] cell phone to see if he had made any phone 

calls).”13 Id. at 13. We agree that Appellant is not entitled to relief.

 

13 The officer responded that it was the detective’s job, and not her job, to 

contact the cab driver or retrieve Appellant’s cell phone. N.T., 7/3/13, at 76.
J. A15033/15

- 14 -

We initially note that cross-examination is the primary 

method for testing the believability of a witness and the 

truth of his testimony. Cross-examination may be 

employed to test a witness’ story, to impeach credibility, 

and to establish a witness’ motive for testifying. The scope 

of cross-examination is a matter within the discretion of 

the trial court and will not be reversed absent an abuse of 

that discretion.

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citations and 

quotation marks omitted); see also Pa.R.E. 611(b) & cmt. Similarly, the 

limits placed on cross-examination also lie within the discretion of the trial 

court. Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super. 

1995). Any error is subject to the harmless error standard. Id. at 1279. 

With respect to a written statement by the defendant, Pa.R.E. 801 and 

802 apply:

(a) Statement. “Statement” means a person’s oral 

assertion, written assertion, or nonverbal conduct, if the 

person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made 

the statement.

(c) Hearsay. “Hearsay” means a statement that

(1) the declarant does not make while testifying at the 

current trial or hearing; and

(2) a party offers in evidence to prove the truth of the 

matter asserted in the statement.

Pa.R.E. 801. “Hearsay is not admissible except as provided by these rules, 

by other rules prescribed by the Pennsylvania Supreme Court, or by 

statute.” Pa.R.E. 802.
J. A15033/15

- 15 -

Instantly, and regarding Appellant’s statement, we agree with the trial 

court that Appellant could not elicit the contents of his written statement via 

cross-examination of the two detectives—who did not even testify—without 

sufficient evidentiary foundation for the statement. See id. Indeed, 

Appellant conceded he did not introduce or attempt to introduce the 

statement at trial, although he included it as an exhibit to his appellate brief. 

See Appellant’s Brief at 11 n.3. Appellant cannot attempt to introduce the 

contents of his statement for the truth of the matter asserted therein via 

other means, i.e., cross-examination. Under these circumstances, the trial 

court properly exercised its discretion to limit Appellant’s cross-examination. 

See Chmiel, 889 A.2d at 527; Mullins, 665 A.2d at 1277.

As for Appellant’s claim that the court limited his cross-examination of 

any police witness, we discern no basis for this contention. Rather, the court 

cautioned Appellant that if he elected to question the police about why they 

did not interview the witnesses he identified in his statement, then he must 

accept the response of the police, including their belief that Appellant was 

the perpetrator based on his prior conviction for robbery in the same area. 

See N.T., 7/2/14, at 248-49. Indeed, Appellant asked the police about the 

extent of their investigation, including whether they contacted the cab 

driver, reviewed Appellant’s cell phone, or obtained fingerprints from the 

victim’s credit cards. See N.T., 7/3/13, at 75-76, 191-92, 198. The police, 

however, did not testify about their belief that Appellant was the perpetrator 
J. A15033/15

- 16 -

because of a prior, similar robbery conviction. Thus, we construe the court’s 

instruction as more cautionary and observational and not an absolute 

command. See N.T., 7/2/13, at 248-49 (stating, “if you are to challenge . . 

. , in my view you’re opening the door . . . .”). And even if we construed 

this conditional language as a limiting instruction, then we discern no error 

from the court’s rulings regarding the scope of Appellant’s cross-examination 

of the police about the nature and extent of their investigation. See, e.g., 

N.T. 7/3/13, at 198. Assuming error, however, after viewing the record in 

the Commonwealth’s favor, we discern no “reasonable possibility that [it] 

might have contributed to [Appellant’s] conviction.” See Mullins, 665 A.2d 

at 1279. Accordingly, we discern no abuse of discretion. See Chmiel, 889 

A.2d at 527; Mullins, 665 A.2d at 1277. 

Appellant next argues that the court erred by permitting the 

Commonwealth to permit Officer Allen to testify that he was not acting like a 

victim. The standard of review of a “trial court’s decision to admit evidence 

is subject to review for an abuse of discretion.” Commonwealth v. 

Hairston, 84 A.3d 657, 664 (Pa. 2014) (citation omitted). After careful 

consideration of the parties’ arguments, the certified record, and the 

decision by the Honorable Daniel Anders, we affirm this issue on the basis of 

the trial court’s decision as we discern no abuse of discretion. See Trial Ct. 

Op. at 11-13 (holding it sustained counsel’s objection to whether Appellant 

acted “like a victim” and it was permissible for police to testify about 
J. A15033/15

- 17 -

Appellant’s demeanor on the street corner and reason for placing Appellant 

in back of vehicle); see also Hairston, 84 A.3d at 664.

We summarize Appellant’s argument in support of his third issue. He 

contends the Commonwealth, in its closing statement, argued that if he was 

the victim, then he would have testified. Id. at 21 (referencing, as set forth 

above, N.T., 7/5/13, at 94). Appellant claims the prejudice was not cured 

by the court’s “standard instruction that no inference should be drawn” by 

his refusal to testify. Id. at 20. He asserts the Commonwealth’s statement 

was doubly unfair because it possessed Appellant’s statement to the police 

that alleged he was the victim and identified four corroborative witnesses 

that the police did not interview. Appellant notes that in conjunction with 

Officer Allen’s testimony regarding whether he was a victim, he concludes a 

new trial is warranted. We hold Appellant has not established the error was 

so prejudicial as to warrant a new trial.

In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our 

Supreme Court stated:

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. . . . 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 comment is forbidden if the language used by the 

prosecutor is intended to create for the jury an adverse 

inference from the failure of the defendant to testify. It is 

well settled that any comment by the prosecution or the 
J. A15033/15

- 18 -

court violates 42 Pa.C.S. § 5941[14]if it draws attention to 

or focuses on the fact that no one except the defendant 

can rebut the Commonwealth’s case.

Id. at 142 (citations and quotation marks omitted).

In Wright, the prosecutor sarcastically stated the following during his 

closing arguments:

Tammy Mowery did it. That’s why [the defendant] has 60 

rounds of ammunition on him, not counting what’s in the 

gun, almost twice what a police officer would call—or 

carry, I’m sorry, ‘cause Tammy Mowery did it. That’s why 

[the defendant] has the shells, the bullets, the live rounds. 

Tammy Mowery did it. That’s why [the defendant] had the 

Taser and the Pepper Spray, ‘cause Tammy Mowery did it. 

And then, of course, he didn’t say anything, but the police, 

of course, lying indicated to you that he basically 

confessed. I just toasted a guy and I know I’m going to 

jail. Don’t try to tell me I’m not. I know what happened. 

But that’s all made up. That’s all made up. Truth is, folks, 

two best Commonwealth witnesses here are the two that 

didn’t testify in person. Jim Mowery, who says [the 

defendant] broke in my house shootin’, and [the 

defendant] says, yeah, I killed him.

 

14 This statute states as follows:

(a) General rule.—Except defendants actually upon trial 

in a criminal proceeding, any competent witness may be 

compelled to testify in any matter, civil or criminal; but he 

may not be compelled to answer any question which, in 

the opinion of the trial judge, would tend to incriminate 

him; nor may the neglect or refusal of any defendant, 

actually upon trial in a criminal proceeding, to offer himself 

as a witness, be treated as creating any presumption 

against him, or be adversely referred to by court or 

counsel during the trial.

42 Pa.C.S. § 5941.
J. A15033/15

- 19 -

Id. at 141. The prosecutor then concluded: 

As I said before, I suggest two of the best witnesses that 

were here are the ones that did not testify—[the 

defendant], who admitted to doin’ it, and Jim Mowery, who 

pointed out his killer, even though he’s not here to face ya 

and tell you that in person.

Id. The defendant’s counsel then moved for a mistrial based on the 

prosecutor’s references to the defendant’s failure to testify. Id.

The court denied the motion, but immediately gave a 

cautionary instruction: “The defendant’s right to remain 

silent . . . is absolutely in place. And you shouldn’t take 

any of the Commonwealth’s argument that you heard as in 

any way disturbing that right to remain silent or that 

burden of proof. . . . I’ll talk with you in more detail about 

all of those. . . .”

Id.

Our Supreme Court held that the prosecutor’s comments were 

inappropriate but nonetheless held the error was harmless given the 

overwhelming evidence of the defendant’s guilt:

There is a fine line between vigorously arguing the 

evidence and drawing attention to appellant’s decision not 

to testify. As stated above, this Court vigilantly protects 

the right to remain silent and recognizes references to an 

accused’s exercise of this right may jeopardize the 

presumption of innocence in the jury’s mind. For this 

reason, though we believe no impropriety was intended, 

we cannot find the prosecutor’s comments were not 

inappropriate; the spirit of “oratorical flare,” as 

characterized by the Commonwealth, must bend to the 

accused’s fundamental right to remain silent.

However, not every reference to a defendant’s failure to 

testify automatically requires a new trial; the verdict can 

still be sustained if the error was harmless. An error is 

harmless if it could not have contributed to the verdict. In 
J. A15033/15

- 20 -

other words, an error cannot be harmless if there is a 

reasonable possibility the error might have contributed to 

the conviction. We have found harmless error where:

(1) the error did not prejudice the defendant or the 

prejudice was de minimis;

(2) the erroneously admitted evidence was merely 

cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; 

or

(3) the properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect of the 

error was so insignificant by comparison that the error 

could not have contributed to the verdict.

The Commonwealth has the burden of proving harmless 

error beyond a reasonable doubt. 

Id. at 143 (some punctuation and citations omitted). The Wright Court 

held the Commonwealth met its burden as “[t]his was not a close case, 

where a remark such as the one the prosecutor made can change the flow of 

a trial—this trial was a river of evidence, and its flow was unaffected by this 

reference.” Id. at 144.

The Wright Court additionally held that “the trial court’s curative 

instructions curtailed any damage the prosecutor’s reference could have 

caused.” Id.

The court issued an immediate cautionary instruction 

regarding [the defendant’s] right to remain silent and the 

Commonwealth's burden of proof. During jury 

instructions, the court charged the jury at length regarding 

appellant’s right to remain silent and specifically warned 

the jury against drawing any adverse inferences from the 

prosecutor’s comments.
J. A15033/15

- 21 -

Id. “Further, appellant has offered nothing to rebut the presumption the 

jury followed the trial court’s instructions.” Id. Accordingly, our Supreme 

Court, although holding the prosecutor erred by commenting that the 

defendant did not testify, concluded the error was harmless given, inter alia, 

the overwhelming evidence of guilt, the court’s jury charge regarding the 

defendant’s right to not testify, and the absence of any evidence the jury 

disobeyed the trial court’s charge. Id.

Instantly, assuming without deciding that the prosecutor erred by 

gesturing to the empty witness box and opining that Appellant could have 

testified,15 see Wright, 961 A.2d at 141, we ascertain whether the error 

was harmless. With respect to evidence of guilt,16 the victim identified 

Appellant and Broadneck as the people that robbed him on the night of the 

robbery, at the preliminary hearing, and at trial. See Trial Ct. Op. at 3-4, 

19. Video surveillance placed them both near the scene at the time of the 

robbery. See N.T., 7/3/13, at 43-48. Similar to the trial court in Wright, 

the instant trial court charged the jury regarding Appellant’s right to remain 

silent, cautioned the jury about drawing any adverse inferences because 

Appellant did not testify, and Appellant has not rebutted the presumption the 

jury followed the trial court’s instructions. See id. Although the court did 

 

15 This was wholly unnecessary.

16 Appellant has not challenged the sufficiency of evidence for his 

convictions.
J. A15033/15

- 22 -

not issue an immediate cautionary instruction, cf. Wright, 961 A.2d at 141, 

we cannot conclude the prosecutor’s error was prejudicial given the 

evidence, the jury charge regarding Appellant’s right to remain silent, and 

the lack of evidence the jury disobeyed the trial court’s instructions. Cf. 

Wright, 961 A.2d at 141-44.

Appellant lastly argues the court erred by not instructing the jury 

pursuant to Kloiber. He contends the circumstances under which the victim 

allegedly observed him and the victim’s inconsistent testimony regarding 

aspects of the encounter warranted a Kloiber charge. We hold Appellant is 

due no relief.

“We evaluate whether a Kloiber instruction is necessary under an 

abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325, 

332-33 (Pa. Super. 2012). “Pursuant to Kloiber, where a witness was not 

in a position to observe the assailant clearly, or had previously failed to 

identify the defendant, the court must instruct the jury to receive the 

witness’ identification testimony with caution.” Chmiel, 889 A.2d at 541 

(citations omitted); Commonwealth v. Rollins, 738 A.2d 435, 448 n.14 

(Pa. 1999) (“A Kloiber charge instructs the jury that a eyewitness’ 

identification should be viewed with caution where the eyewitness: (1) did 

not have an opportunity to clearly view the defendant; (2) equivocated on 

the identification of the defendant; or (3) had a problem making an 

identification in the past.”). After careful review of the certified record—
J. A15033/15

- 23 -

including the victim’s testimony identifying Appellant—the parties’ briefs, 

and the well-reasoned decision of the trial court, we affirm on the basis of 

the trial court’s decision. See Trial Ct. Op. at 17-21 (holding record 

establishes victim unequivocally and without hesitation identified Appellant 

on the night of the robbery, at the preliminary hearing, and at trial). For 

these reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015
Dominic Broadnax approached Coleman near i 00 West Seymour Street at approximately . . -·, .. ,' 

neighborhood to "cool off' after an argument with his wife. Defendant and co-defendant 

In the early hours of February 24, 2011, Lorenzo Coleman went for a walk around his 

1. The Robbery At l 00 West Seymour Street 

FACTUAL BACKGROUND 

stated below, the Superior Court should affirm the judgment of sentence. 

request for a Kloiber instruction regarding the victim's identification testimony. For the reasons 

for a mistrial, which was denied in error, and (6) the trial court erred in denying Defendant's 

closing argument denied Defendant a fair trial and due process of law and was a sufficient basis 

and not like a victim, (5) the prosecutor's improper comments upon Defendant's silence in her 

officer to testify as a fact witness and state his opinion that Defendant acted like a co-defendant 

examination of a police detective, ( 4) the trial court erred in permitting a Philadelphia police 

judge erred in denying his motion for a lineup, (3) the trial court erred in limiting his crossargues that: (1) the verdict was against the weight of the evidence, (2) the preliminary hearing 

appeal ( after his rights were reinstated 111mc pro tune by way of a PCRA petition) in which he 

court sentenced Defendant to a total of 7 to 20 years of incarceration. Defendant filed a timely 

two violations of the uniform firearms act, and possession of an instrument of crime. The trial 

Following a jury trial, Defendant Wesley Waters was convicted of robbery, conspiracy, 

WESLEY WATERS 

118 EDA 201J<l Lf 

II I I II llll 111111111111111 

7190385271 

OPINION 

vs. 

RECEIVED 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST nJDICIAL DISTRICT OF PENNSYLVANIA AUG 2 5 2014 

TRIAL DIVISION - CRJ1v[INAL APPE 

ALS/POST TRIAL 

COMMONWEALTH OF PRNNSYLV ANIA CP-51-CR-0004959-2011 

CP-51-CR-0004959-2011 Comm. v. Waters. Wesley 

Opinion 

Circulated 06/30/2015 12:22 PM
•} 

2 

Waltman and David Palmer went to Coleman's house. The officers drove Coleman to where 

";• .'·:· . 

As Officers Lee and Allen held Defendant and Broadnax at the scene, Officers Ryan 

N.T. 07/02/2013 at 54-68, 224-30; N.T. 07/03/2013 at 41-59. 

revolver with a black handle, which Coleman identified at trial as the gun used in the robbery. 

From the recycling bin, Officer Allen recovered a silver Smith and Wesson .347 magnum 

Broadnax wrestling around in the bin, and heard a distinct noise come from the recycling bin. 

Coleman's credit cards to the ground and stop briefly at a recycling bin. Officer Allen heard 

Prior to stopping Broadnax, Officer Allen witnessed him discard small items later identified as 

on Seymour. Officer Lee pulled over and stopped Defendant; Officer Allen stopped Broadnax. 

the intersection of Germantown A venue and Seymour Street, and Broadnax proceeded eastbound 

from the location where Coleman was robbed. Upon observing the officers, Defendant stopped at 

that matched the descriptions from the radio call. Defendant and Broadnax were only five blocks 

observed Defendant and Broadnax walking along Seymour Street. They were wearing clothing 

were driving eastbound on Seymour Street approaching Germantown Avenue when they 

15 minutes after the radio call, Officer Erika Lee and her partner Officer Floyd Allen 

just committed a gunpoint robbery. N.T. 07/02/2013 at 43-54, 176. 

that two black males, one wearing a blue hoodie with writing on it and the other in dark clothing, 

911. Shortly thereafter a dispatcher sent out a radio call to officers in the area informing them 

immediately returned to his home and informed his wife of the incident. Coleman's wife called 

looked through the wallet and said, "Old head, there better be something in there." Coleman 

the ground, and walked away from the two men. As Coleman was walking away, Defendant 

"Old head, you know what it is." Coleman removed his wallet and cell phone, placed them on 

handle tucked into his pants. Defendant stopped about five feet away from Coleman and said, 

2: 18am. Defendant lifted up his blue hoodie (which had writing on it) to show a gun with a black 

Circulated 06/30/2015 12:22 PM
3 

The weight of the evidence is exclusively for the finder of fact who 

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

the credibility of the witnesses. An appellate court cannot 

evaluating the weight of the evidence, the standard ofreview is as follows: 

Defendant asserts that the verdict was against the weight of the evidence. When 

l. The Verdict Was Not Against The Weight Of The Evidence 

DISCUSSION 

07/02/2013 at 44-58, 176. 

Defendant used and his own cell phone and credit cards that Defendant had stolen. N.T 

07/02/2013 at 147, 156.,, Coleman also verified photographs the police had taken of the firearm 

"100% sure" that Defendant was the person who robbed him with a gun that night. N.T. 

night of the robbery as well as at the preliminary hearing and at trial. Coleman stated he was 

having sideburns. Coleman identified Defendant as the person who robbed him with a gun on the 

Defendant as lighter skinned, about five feet six inches tall, weighing about 150 pounds, and 

was well-lit and he could clearly see Defendant from five feet away. Coleman described 

Broadnax were brought within his view so he could identify them. Coleman testified that the area 

Seymour Street and Germantown A venue. Coleman remained in the car while Defendant and 

911. Two officers quickly arrived at Coleman's house and drove him to the intersection of 

Coleman handed over his wallet and cell phone and then he returned home, where his wife called 

the men was wearing a blue hoodie with writing on it and lifted up his shirt to reveal a gun. 

on the night of February 24, 2011, two men approached him at 100 West Seymour Street. One of 

At trial, Coleman testified that, while he was going for a walk around his neighborhood 

2. Testimony Of Lorenzo Coleman 

hesitation Defendant and Broadnax as the men who robbed him. N.T. 07/02/2013 at 56-58. 

Officers Lee and Allen were holding Defendant and Broadnax. Coleman identified without 

Circulated 06/30/2015 12:22 PM
4 

evidence and does not shock one's sense of justice. 

In light of the overwhelming evidence discussed above, the verdict is not contrary to the 

the jury's credibility determination, i.e., to have credited Coleman's testimony. 

tucked into his pants during the robbery. In addition to this evidence, there is no basis to disturb 

the recovered weapon as the same revolver that Defendant had showed to him while it was 

person who robbed him with a gun that night. N.T. 07/02/2013 at 147, 156. Coleman identified 

preliminary hearing and at trial. Coleman stated he was "100% sure" that Defendant was the 

without hesitation both Defendant and Broadnax. Coleman also identified Defendant at the 

were Coleman's credit cards. On the night of the robbery, Coleman immediately identified 

clothing that he was wearing. The officers observed Broadnax discarding what they later learned 

blocks from the robbery. Defendant and Broadnax matched Coleman's descriptions including the 

and Broadnax to police. Defendant and Broadnax were stopped within minutes of and only a few 

Coleman's wife alerted the authorities, and Coleman provided descriptions of Defendant 

left the scene, and Defendant and Broadnax took the frnits of their robbery. 

response, Coleman surrendered his wallet and cell phone to Defendant. Coleman immediately 

Coleman a gun tucked into his pants and then said to him, "Old head, you know what it is." In 

Broadnax approached Coleman together late at night while he was alone. Defendant showed to 

At trial, the evidence of record included the following testimony. Defendant and 

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. Super. Ct. 2003). 

substitute its judgment for that of the finder of fact. Thus, [the 

Superior Court] may only reverse the lower court's verdict if it is 

so contrary to the evidence as to shock one's sense of justice. 

Moreover, where the trial court has ruled on the weight claim 

below, an appellate court's role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim. 

Circulated 06/30/2015 12:22 PM
5 

made on oral motion for a lineup on the day of his preliminary hearing. Based on his failure to 

request the lineup in advance of the scheduled preliminary hearing. Instead, defense counsel 

Here, Defendant failed to submit a written request for a lineup. Defendant also failed to 

complain about the court's decision to deny the request on appeal. Id. 

lineup in advance of the preliminary hearing, then he has waived any objection and may not 

hearing, there is no requirement to do so. Id. If a defendant fails to submit a written request for a 

discretion to overlook the failure to make a request until the day of the scheduled preliminary 

Commonwealth v. Robinson, 5 A.3d 339 (Pa. Super. Ct. 2010). Although a court retains 

A defendant has a duty to seek a lineup in writing and prior to a preliminary hearing. 

a. Defendant Failed To Properly Request A Lineup 

In Writing And Prior To The Preliminary Hearing 

discretion. 

preliminary hearing, and the preliminary hearing court's decision was an appropriate exercise of 

argument fails on two grounds: his request was never submitted in writing and in advance of the 

will." Commonwealth v. Edwards, 762 A.2d 382, 386 (Pa. Super. Ct. 2000). Defendant's 

judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or illthe trial court will not be found to have abused its discretion unless the record discloses that the 

Super. Ct. 1994). "An abuse of discretion is more than just an error in judgment and, on appeal, 

be disturbed on review absent an abuse of discretion. Commonwealth v. Carter, 643 A.2d 61 (Pa. 

of a request for a lineup is within the sound discretion of the court, and such a decision will not 

requesting a lineup identification procedure prior to his preliminary hearing. The grant or denial 

Defendant argues that the preliminary hearing court improperly denied his oral motion 

2. The Court Properly Denied Defendant's Motion For A Lineup 

Circulated 06/30/2015 12:22 PM
6 

MS. PO\VERS: Your Honor, the information I have from the 

complainant and from the officer differs from what Counsel just 

said with respect to the number of people involved. They were on 

foot. It was two people. So there was no car and there wasn't a 

third person. 

MR. JARRETT: It is a gunpoint robbery, Your Honor. No one 

apprehended at the scene. My client is some five or six blocks 

away. Some 15 minutes later, the police approach him. He is 

cooperative, shows him a license, ask him to get in the car and they 

put another person in the car. Another car stops, gets a third 

person. They evidently pull up to a location. There are three police 

cars, cherry tops going. They pull one, two, three out of the car. 

The gentleman says one, two, three. It is an unduly suggestive on 

the street lineup, Your Honor. 

THE COURT: Tell me the facts of the identification. 

MR. JARRETT: Your Honor, we still have a lineup motion. We 

are unable to agree. 

the brief exchange regarding the lineup motion: 

The preliminary hearing court received the following representations from counsel during 

demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Id. 

of attention, (3) the accuracy of his prior description of the criminal, ( 4) the level of certainty 

opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree 

determine whether to grant a lineup request, the court must examine the following factors: (1) the 

circumstances test. Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super. Ct. 2000). To 

up, and the court must examine the reliability of an identification using a totality of the 

court's decision was not an abuse of discretion. A defendant has no constitutional right to a lineEven assuming Defendant has not waived this alleged error, the preliminary hearing 

b. The Court Did Not Abuse Its Discretion In Denying The Lineup Request 

regarding the denial of his lineup request. Robinson, 5 A.3d at 342. 

seek a lineup in writing and prior to the preliminary hearing, Defendant waived any error 

Circulated 06/30/2015 12:22 PM
7 

MS. PO\VERS: Probably a minute, Your Honor. The police come. 

Within 15 minutes, as Counsel said, the officers come, stop the 

Defendant who is wearing the same exact thing. 

THE COURT: This goes on for how long? 

MS. POWERS: The complainant then gave up his items, literally 

left them on the step, turned around and the Defendant said there 

better be something in there, old head. They are having a 

conversation while the Defendant has the gun pointed at him. 

MR. JARRETT: It is not cross-racial. 

MS. POWERS: No. African-American, 

THE COURT: Is this cross-racial? 

MS. POWERS: It was in the morning, 2:00 a.m. It was dark. 

However, the Defendants were side-by-side. They were flanking 

the complainant; one was on the left, one was on the right. I am 

just going for his opportunity to actually have a conversation with 

the Defendant. The Defendant said give it up. He looked at him. 

He has the gun. They are face-to-face. The complainant can tell 

you he was the same height as him approximately. His complexion 

was a little lighter than him. He had about the same build as the 

complaining witness. 

THE COURT: How dark was it? 

MS. POWERS: Yes. 

THE COURT: Within 15 minutes? 

MS. POWERS: Yes. 

THE COURT: On the street? 

MS. POWERS: Two individuals. 

THE COURT: So it is a stand-up and it was two individuals? 

MS. POWERS: They were stopped on foot. 

MR. JARRETT: No. I am saying police car. They were pulled out 

of a police car. 

Circulated 06/30/2015 12:22 PM
8 

investigation. A trial court has broad discretion to determine whether evidence is admissible, and 

of witnesses that Defendant told the detective, which would undermine the thoroughness of the 

statement as evidence of his cooperation with police during the investigation, and (2) the names 

detective regarding Defendant's statement, specifically (1) the existence of Defendant's 

Defendant argues that the trial court erred by prohibiting certain cross-examination of the 

3. The Trial Court's Evidentiary Rulings During 

Cross-Examination Of The Police Detective Were Proper 

oral motion for a lineup. See Edwards, 762 A.2d at 386. 

result of partiality, prejudice, bias, or ill-will. Therefore, the court properly denied Defendant's 

court did not abuse its discretion because its judgment was not manifestly unreasonable, or the 

the court determined that the identification was reliable and a lineup was not necessary. The 

and Coleman's on-scene identification of Defendant. Under the totality of these circumstances, 

identification; and ( 4) the short time span of fifteen minutes that elapsed between the robbery 

Coleman provided an accurate description of Defendant and his clothing prior to any 

focused his attention on Defendant for approximately one minute during the robbery; (3) 

opportunity to view Defendant face-to-face at close range during the robbery; (2) Coleman 

request, the court considered the following: (1) Coleman identified Defendant after a good 

appropriate inquiries during the hearing on the motion for a lineup. In rejecting the lineup 

The preliminary hearing court carefully considered the relevant factors and made 

N.T. 04/28/2011 at 2-5. 

THE COURT: Based on what I heard from both Counsel, I will 

deny your lineup. 

MS. POWERS: Because the codefendant is chucking items to the 

side as the police come. 

MR. JARRETT: There is nothing seized from my client 

whatsoever. 

Circulated 06/30/2015 12:22 PM
9 

The Court: And second would be as to investigating any of the 

named witnesses that the Defendant had provided to the detectives 

and the extent of his investigation. At least in my view, if you are 

to challenge the detective as to why he did not interview them, in 

Defense Counsel: No. I understand what you 're saying. 

I would limit you to simply asking the detective was he 

cooperative and his response would be not in reference to giving 

any statement. And your objection, I'm not sure if you're objecting 

to that. 

And I do think an appropriate limitation would be based upon the 

fact that there could be some backdoor inference that there's 

exculpatory information in there which would be bypassing around 

at least getting that in without having the Defendant take the stand. 

The Court: As to the Defendant's statement, if you wish to make 

some reference to the Defendant's extended cooperation with the 

officers or detectives or anyone else. In my view the fact that he 

gave a statement would be evidence of cooperation. But the 

statement, itself, and what may be contained in there obviously 

would not come in. 

regarding the cross-examination of the detective with Defendant's statement: 

were never investigated by the detective. The trial court placed the following ruling on the record 

his statement to detectives, Defendant provided the names of potential defense witnesses, who 

detective by using Defendant's statement to undermine the extent of the police investigation. In 

demonstrate his cooperation with police. Additionally, Defendant sought to impeach a police 

Defendant intended to use the existence of Defendant's statement and its contents to 

clearly erroneous." Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. Ct. 2013). 

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be 

Accordingly, a ruling of evidence "will not be disturbed on appeal unless that ruling reflects 

discretion is not simply an error of judgment but an overriding or misapplication of the law. Id. 

discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. Ct. 2010). An abuse of 

a trial court's ruling on an evidentiary issue will be reversed only if the court abused its 

Circulated 06/30/2015 12:22 PM
I On September l S, 20 I I, the Commonwealth filed a motion to introduce other acts evidence. In particular, the 

Commonwealth sought permission to introduce under Rule of Evidence 404(b) that Defendant was convicted of a 

gun-point robbery a few years earlier in the same neighborhood and in circumstances similar to those of the robbery 

of Coleman. After oral argument, the trial court denied the Commonwealth's motion. 

10 

those witnesses. In a discussion side-bar with counsel, the Commonwealth represented that the 

questions-it would open the door to the detective's answer as to why he did not investigate 

investigation. The trial court did, however, decide that-if defense counsel did ask those 

detective because those questions would have been relevant to the thoroughness of his 

Defendant, the trial court did not prohibit defense counsel from asking these questions of the 

As to the second line of inquiry, i.e., investigation of the names of witnesses provided by 

otherwise come in under Rule 801. 

never testified at trial, so his statement ( or even the fact that he gave a statement) could not 

inadmissible as hearsay when offered by the defense unless the defendant testifies. Defendant 

under Pennsylvania Rule of Evidence 801, the contents of a defendant's statement are 

Defendant's statement as evidence of his cooperation, the trial court made its ruling because 

objection to the Commonwealth's 404(b) motion)'. As to the first line of question regarding 

to other evidence (which, in fact, the trial court precluded based upon Defendant's pre-trial 

would either (l) be improper without competent testimony from Defendant, or (2) open the door 

investigation. Id. at 247. The trial court clearly ruled, however, that the two lines of questions 

defense counsel to question the detective regarding Defendant's cooperation with the police 

examining the detectives regarding these lines of questioning. Indeed, the trial court permitted 

As an initial matter, the trial court did not entirely preclude Defendant from crossN.T. 07/02/2013 at 247-50. Defense counsel timely objected to both of these rulings. 

my view you're opening the door to whatever his truthful response 

would be. And if that includes that he thought that that [sic] they 

were the right person based in part on a prior conviction for 

robbery in the same area, that comes through. 

Circulated 06/30/2015 12:22 PM
2 Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the 

overwhelming and uncontradicted evidence of Defendant's guilt. See generally Co111111011wealtlt v. Petroll, 738 A.2d 

993, I 005 (Pa. 1999) ("Hamiless error exists if the reviewing court is convinced from the record that (I) the error 

did not prejudice the defendant or the prejudice was de rninimis, (2) the erroneously admitted evidence was merely 

cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so 

overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have 

contributed to the guilty verdict."). 1 .,.,~ •• · · 

11 

A. He's bobbing his head and pointing and making a gesture that 

the other male had a gun, but he's very cool and very calm. And in 

my profession-- 

Q. Can you describe this Defendant's demeanor as he's standing 

on the comer kind of like bobbing his head? 

Allen's testimony elicited the following exchange: 

opinion that Defendant acted like a co-defendant and not like a victim. At trial, Officer Floyd 

Defendant argues that the trial court erred by allowing Police Officer Allen to state his 

4. The Police Officer's Testimony Was Proper 

proper.2 

erroneous. Therefore, the trial court did not abuse its discretion, and the evidentiary rnlings were 

unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly 

As discussed above, the trial court's evidentiary rulings do not reflect manifest 

questions after considering the trial court's ruling in advance of the detective's testimony. 

prejudice to Defendant. Ultimately, defense counsel decided against pursuing this line of 

provided an appropriate limiting instruction on how to use the testimony to avoid any unfair 

if defense counsel opened the door to that line of inquiry. Of course, the trial court would have 

to explaining why the detective did not investigate the defense witnesses. This is particularly true 

robbery conviction-assuming that was his answer-would be a fair response and also relevant 

right person. The trial court believed that allowing the detective to testify to the prior gunpoint 

gunpoint robbery conviction in the same neighborhood and believed he had already found the 

detective did not investigate the defense witnesses because he knew Defendant had a prior 

Circulated 06/30/2015 12:22 PM
. 1 •• ~ • • ...... '· '. ,·:· 

· . , .,,,/4;/l' .?}#~,,,,~/~,c 'O:iijip,-; '2-1.t!'•:, 

.. ; :...:,-, . _. -:~, ... ~;::- . 

12 

based on any scientific, technical, or other specialized knowledge . 

why he placed Defendant in his vehicle. Third, Officer Allen's statements and opinion were not 

statement was helpful to clearly understanding his testimony and Iris state of mind that night, i.e., 

because he personally observed Defendant's behaviors that night. Second, Officer Allen's 

Rule of Evidence 701. First, Officer Allen's opinion was rationally based on his perception 

lay witness, his testimony did not contravene the limits on opinion testimony under Pennsylvania 

placed Defendant in his vehicle for investigation purposes. Although Officer Allen testified as a 

Here, Officer Allen's testimony was offered to explain his state of mind as to why he 

Defendant in the rear to "find out exactly what was going on." N.T. 07/03/2013 at 46-47. 

Defense counsel did not object to that question, and Officer Allen responded that he placed 

this particular case did you place Defendant in the rear of your car for investigation purposes?" 

Commonwealth to rephrase the question. The Commonwealth then asked Officer Allen, "Why in 

court sustained Defendant's objection to the question. The trial court instructed the 

why he had placed Defendant in his vehicle if Defendant was "acting like a victim," the trial 

calm" so he placed him in his patrol vehicle. Although the Conunonwealth asked Officer Allen 

N.T. 07/03/2013 at 45-46. Officer Allen also testified that Defendant was "very cool and very 

A. In my years of service normally when people were getting 

robbed, they are excited when they see the police. They are 

jumping up and down. They are flagging us down: officer, officer, 

this man had a gun. He was not ex[ c ]ited or anything. So for 

investigation purposes, I placed him in my vehicle so I could stop 

the other male and find out what's going on. 

MS. GALIETT A: You can continue. 

THE COURT: That's fine. It's denied. 

MR. SCHULTZ: Objection. It's not asking for opinion evidence 

here. 

Circulated 06/30/2015 12:22 PM
.:_+; 

3 Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the 

overwhelming and uncontradicted evidence of Defendant's guilt. See Petroll, 738 A.2d at 1005. 

13 

be sufficient to guide the jury. N.T. 07/05/2013 at 93, 101-02. 

motion, stating that instructions regarding burden of proof and presumption of innocence would 

infringed on Defendant's Fifth Amendment right to remain silent. The trial court denied the 

arguments, he moved for a mistrial on the grounds that the Commonwealth's comments 

there telling the story." Defense counsel objected to this comment, and following closing 

to refute this argument by claiming that "if [Defendant] was a victim, he would have been up 

robbed by the co-defendant Broadnax. N.T. 07/05/2013 at 31, 36. The Commonwealth attempted 

Here, during closing arguments, defense counsel argued that Defendant was actually 

mistrial; and (3) the trial court improperly denied his motion for extraordinary relief. 

denied a fair trial and due process of law; (2) the trial court improperly denied his motion for a 

during closing argument that allegedly commented on Defendant's failure to testify: (1) he was 

Defendant asserts three claims of error based upon comments made by the prosecutor 

5. The Trial Court Properly Denied Defendant's Motions 

Based Upon The Prosecutor's Conunents During Closing Argument 

Allen's testimony was admissible as relevant and permissible lay opinion.3 

prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Therefore, Officer 

Last, the trial court's evidentiary ruling does not reflect manifest unreasonableness, partiality, 

of error with the Commonwealth's statements during closing argument, not an evidentiary error. 

to argue to the jury that Defendant acted like a co-defendant rather than a victim, that is a claim 

merit. To the extent the trial court admitted evidence that may have allowed the Commonwealth 

to that question. So, the specific claim of error regarding the detective's testimony is without 

like a co-defendant" rather than a "victim;" indeed, the trial com1 sustained counsel's objection 

As an initial matter, Officer Allen never specifically testified that Defendant was "acting 

Circulated 06/30/2015 12:22 PM
14 

prosecutorial misconduct. 

a separate crime for which he was not on trial. N.T. 07/05/2013 at 31, 36. As such, there was no 

Her comments were a fair response to Defendant's argument that he was allegedly the victim of 

victim of a crime. See Commonwealth v. Randall, 758 A.2d 669, 681-682 (Pa. Super. Ct. 2000). 

that Defendant would have taken the stand if not guilty; rather they dispute whether he was a 

story." N.T. 07/05/2013 at 94. The prosecutor's comments do not reasonably lead to an inference 

argument by stating that if Defendant "was a victim, he would have been up there telling the 

Wesley, that's impossible." N.T. 07/05/2013 at 31. The Commonwealth responded to this 

that, well, there was nobody else out there and nobody else could have been out there robbing 

guy just robbed me[.]"N.T. 07/05/2013 at 36. Defense counsel also argued: "And for them to say 

Defendant's head gesture to police signaled that he was "trying to tell the police officer, hey, that 

Here, the Commonwealth fairly responded to defense counsel's argument that 

when a prosecutor responds to arguments made by the defense during closing argument. Id. 

Especially relevant here, our Supreme Court has held that it is not prosecutorial misconduct 

and arriving at a just verdict. See Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006). 

with such animus toward the defendant as to render it incapable of fairly weighing the evidence 

unless the prosecutor's challenged comments had the unavoidable effect of prejudicing the jury 

Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009). Prosecutorial misconduct does not occur 

must be of sufficient significance to result in the denial of the defendant's right to a fair trial. 

To constitute a Fourteenth Amendment due process violation, prosecutorial misconduct 

a. Defendant Was Not Denied A Fair Trial Or Due Process Of Law 

Resulting From The Prosecutor's Comments During Closing Argument 

For the reasons stated below, each of these claims of error must fail. 

Circulated 06/30/2015 12:22 PM
15 

respect to the charges against him," to constitute reversible error, any such comments "must call 

"axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with 

reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). While it is 

and must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes 

380, 383 (Pa. Super. Ct. 2011). A prosecutor's statements to the jury do not occur in a vacuum 

defendant was deprived of a fair trial, not a perfect trial. Commonwealth v. So/0111011, 25 A.3d 

Consideration of claims regarding remarks by prosecutors focuses on whether the 

discretion standard. Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. Ct. 2012). 

potential prejudice. Id. Courts review claims of prosecutorial misconduct under an abuse of 

Granting a mistrial is inappropriate where cautionary instructions are sufficient to overcome any 

rendering a true verdict." Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. Ct. 2008). 

effect is to deprive the defendant of a fair trial by preventing the jury from weighing and 

only when "the incident upon which the motion is based is of such a nature that its unavoidable 

the prosecutor's comments during closing argument. The decision to grant a mistrial is necessary 

Defendant argues that the trial court improperly denied his motion for a mistrial based on 

b. The Trial Court Properly Denied Defendant's Motion 

For A Mistrial Due To The Prosecutor's Closing Argument 

law, and the trial court properly denied Defendant's motion for a mistrial. 

presumed to follow the trial court's instrnctions). Thus, Defendant was not denied due process of 

16; see Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (reiterating that jurors are 

infra at section 5(b).These instructions cured any improper argument by the prosecutor. Infra at 

to testify; and (2) it is the Commonwealth's burden to prove Defendant guilty. See discussion 

constitutional protection that they can make no adverse inference based upon Defendant's failure 

Additionally, the trial court gave the jury appropriate instructions regarding: ( 1) the 

Circulated 06/30/2015 12:22 PM
16 

The Commonwealth has the burden of proving the defendant guilty 

beyond a reasonable doubt. If the Commonwealth has met that 

burden, then the defendant is no longer presumed to be innocent 

and you should find him guilty. On the other hand if the 

Commonwealth has not met its burden, then you must find him not 

guilty. You must consider and weigh the testimony of each witness 

and give it such weight as in your judgment it is fairly entitled to 

receive. 

[ ... ) 

It is not the defendant's burden to prove that he is not guilty. 

Instead, it is the Commonwealth that always has the burden of 

proving each and every element of the crimes charges and that the 

defendant is guilty of those crimes beyond a reasonable doubt. A 

person accused of a crime is not required to present evidence or to 

prove anything in his own defense. If the evidence fails to meet the 

Commonwealth's burden, then your verdict must be not guilty. On 

the other hand, if the evidence does prove beyond a reasonable 

doubt that the defendant is guilty of the crimes charged, then your 

verdict should be guilty. 

burdens: 

Further, the trial court comprehensively instructed the jury about the Commonwealth's 

07/05/2013 at 110-111. 

any other inference adverse to the defendant from the fact that he did not testify." N.T. 

right founded under the constitution to remain silent. You must not draw any inference of guilt or 

entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute 

were insufficient to overcome such prejudice. Here, the trial court instructed the jury that "it is 

require the grant of a mistrial if they unavoidably prejudiced the jury and cautionary instructions 

Assuming arguendo the Commonwealth's comments were improper, they would only 

Commonwealth v. Sattazahn, 631 A.2d 597, 611 (Pa. Super. Ct. 1993)). 

inference that he would have taken the stand if not guilty." Randall, 758 A.2d at 681-682 (citing 

the jury's attention to the fact that the defendant has not testified and must reasonably lead to an 

Circulated 06/30/2015 12:22 PM
Suggested Standard Criminal Jury Instruction 4.07B, "Identification Testimony-Accuracy In 

17 

instrnction related to the accuracy of identification testimony based upon Pennsylvania 

Defendant argues that the trial court erred by refusing to give the jury a specific 

6. The Trial Court Properly Denied Defendant's Request For A 

Kloiber Jury Instrnction Regarding Identification Testimony 

silent. Therefore, the trial court properly denied Defendant's motion for extraordinary relief. 

the trial court's instructions as to the Commonwealth's burden and Defendant's right to remain 

not lead any jurors to draw any inferences adverse to Defendant, and the jury properly followed 

Defendant's motion for extraordinary relief As described above, the prosecutor's comments did 

Here, the prosecutor did not commit such a manifest error that would justify granting 

vehicle' for raising a matter that should be raised in a post-sentence motion." Id. 

Appellate courts have repeatedly held that "we will not allow such motions as a 'substitute 

relief is essential. Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. Ct. 2009). 

allow the trial judge the opportunity to address only those errors so manifest that immediate 

for a judgment of acquittal, or for a new trial." Pa.R.Crim.P. 704(8). Rule 704(B) is intended to 

justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, 

Procedure 704(B) provides that, "[u]nder extraordinary circumstances, when the interests of 

based on the prosecutor's comments during closing argument. Pennsylvania Rule of Criminal 

Defendant argues that the trial court improperly denied his motion for extraordinary relief 

c. The Trial Court Properly Denied Defendant's Motion For 

Extraordinary Relief Based Upon The Prosecutor's Closing Argument 

court properly denied Defendant's motion for a mistrial. 

(reiterating that jurors are presumed to follow the trial court's instructions). Therefore, the trial 

shifting by the Commonwealth. See Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) 

N.T. 07/05/2013 at 107-109. Thus trial court's instructions were sufficient to cure alleged burden 

Circulated 06/30/2015 12:22 PM
Doubt." Defendant claimed several factors supported giving the Kloiber instruction, including: 

(1) Coleman's lack of sleep and statement to detectives that he was not sure ifhe was "mentally 

awake or alert," (2) the robbery occurred late at night, it was dark outside at the time of the 

robbery, and there were no street lights in the area of the robbery, (3) Coleman's opportunities to 

observe the person who robbed him occurred with his back to the person, looking over his 

shoulder for a few seconds, and with only a quarter-face view of the person, (4) Coleman was 

unable to give a clothing description of the person who robbed him, (5) Coleman could not 

accurately provide a description of the weapon, and (6) the robbery was surprising and an 

"exciting thing" that impaired his ability to observe. N.T. 07/05/2013 at 2-13. For the reasons 

stated below, Defendant's claim fails. 

When reviewing a challenge to a jury instruction, the charge as a whole must be 

considered. There is no error in failing to give a specific charge when the trial court provides a 

full and complete charge. Commonwealth v. Vincens-Rodriguez, 911 A.2d 116, 120 (Pa. Super. 

Ct. 2006). An appellate court will reverse a trial court's instruction only when it abuses its 

discretion or commits an error of law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 

2009). When giving jury instrnctions, the trial court has broad discretion in phrasing the 

instructions so long as the instrnctions given "clearly, adequately, and accurately" reflect the 

law. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011). 

Appellate courts examine the charge in its entirety to determine if it accurately and fairly 

sets forth the law to the jury. Commonwealth v. Ogrod, 839 A.2d 294, 331-32 (Pa. 2003). A trial 

court is not required to instruct the jury, verbatim, with all requested instructions, even if the 

substantive law within the proposed charge is without error. Id. The trial court is merely required 

to explain clearly and accurately the law to the jury; the trial court is not required to use the form 

requested by a party. Id. ( citing Co111111011wea/1h v. Jones, 683 A.2d 1181, 1196 (Pa. 1996)). 

18 

Circulated 06/30/2015 12:22 PM
19 

You must consider and weigh the testimony of each witness and 

give it such weight as, in your judgment, it is fairly entitled to 

receive. The matter of the credibility of a witness, that is, whether 

their testimony is believable and accurate, in whole or in part, is 

solely for your determination. I will mention some of the factors 

which might bear on that determination. Whether the witness has 

any interest in the outcome of the case, or has friendship or 

animosity towards other persons concerned in the case; the 

behavior of the witness on the witness stand, and his or her 

demeanor manner of testifying. And whether they show any bias or 

prejudice that might color their testimony. The accuracy of his or 

testimony, reliability of witness testimony, and mistaken recollections: 

credibility and reliability of testimony of a witness, which included instructions on conflicts in 

Moreover, the trial court comprehensively instructed the jury on how to determine the 

obstructed from making an identification). 

identify the defendant on a prior occasion, or where a witness is physically prevented or 

Ct. 2003) (Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to 

awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super. 

where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room, 

Commonwealth v. Paolello, 665 A.2d 439 (Pa. Super. Ct. 1995) (Kloiber instruction not required 

typical credibility determinations made by a fact-finder such as a witness who is intoxicated); 

where a witness might be physically incapable of making a reliable observation as opposed to the 

v. Collins, 70 A.3d 1245, 1255 (Pa. Super. Ct. 2013) (a Kloiber instruction is appropriate only 

precluded from observing Defendant or made a prior misidentification. Compare Commonwealth 

only to the credibility and reliability of Coleman's testimony at trial, not that he was physically 

Defendant, or made an incorrect identification prior to trial. Thus, Defendant's arguments relate 

preliminary hearing and at trial. Second, he never hedged on his identification, failed to identify 

consistently identified Defendant without hesitation on the night of the robbery, at the 

Defendant's claim of error fails for several reasons. First, as discussed above, Coleman 

Circulated 06/30/2015 12:22 PM
20 

knowledge of or to observe the matters concerning that which they testified," whether it is 

as the jury believes is appropriate given the witness's "ability and opportunity to acquire 

statements of identification-are not sacrosanct and that testimony should be given such weight 

The charge as a whole advised the jury that any testimony by a witness-including 

N.T. 07/05/2013 at 109-13. 

In deciding which of conflicting testimony to believe, you should 

not necessarily be swayed by the number of witnesses on either 

side. You should consider whether the witnesses appear to be 

biased or unbiased, whether they are interested or disinterested, 

and you should consider all other factors which go to the reliability 

of their testimony. The important thing is the quality of the 

testimony of each witness. You should also consider the extent to 

which conflicting testimony is supported by other evidence. 

Also, it is not uncommon for a witness to be innocently mistaken 

in his or her recollection of how something happened. If you 

cannot reconcile a conflict in the testimony, it is up to you to 

decide which testimony, if any, to believe, and which to reject as 

not true or inaccurate. In making this decision, consider whether 

the conflict involves a matter of importance to your decision, or 

merely some unimportant detail. And you should consider whether 

the conflict is brought about by an innocent mistake or by an 

intentional falsehood. You should also keep in mind the other 

factors already discussed which go into deciding whether or not to 

believe a particular witness. 

If you find there are conflicts in the testimony, you, the jury, have 

the duty to decide which testimony to believe. But you should first 

try to reconcile, that is, fit together any conflicts in the testimony if 

you can fairly do so. Discrepancies in and conflicts between the 

testimony of different witnesses may or may not cause you to 

disbelieve some or all of their testimony. Remember that two or 

more persons witnessing an incident may see or hear it happen 

differently. 

[ ... ) 

her memory and recollection and his or her ability and opportunity 

to acquire knowledge of or to observe the matters concerning that 

which they testified. The consistency or inconsistency of their 

testimony, as well as its reasonableness or unreasonableness in 

light of all of the evidence in the case. 

Circulated 06/30/2015 12:22 PM
21 

Based on the for goin , the judgment of sentence should be affirmed. 

B~URT: 

CONCLUSION 

witness. 

and the trial court properly instructed the jury on how to consider and weigh testimony from a 

because Defendant was not entitled to a Kloiber charge based solely upon issues of credibility 

Thus, the failure to give the specific charge on identification testimony is without merit 

contradicted by any other evidence." 

qualified or weakened through cross-examination, and whether it was "corroborated or 

Circulated 06/30/2015 12:22 PM
Bobby 96hoa, Esquire 

Law Clerk to Hon. Daniel J. Anders 

Type of Service: ) Personal (X) Regular mail () CJC mailbox 

Wesley Waters 

DOB: 05/30/1988; Inmate#: HN3818, 

PID/PP#:0938798,SID:26118913 

SCI Smithfield 

1120 Pike Street, P.O. Box 999 

Huntingdon, PA 16652 

Defendant: 

Type of Service: ( ) Personal (X) Regular mail () CJC mailbox (X) Email 

Joseph T. Schultz, Esq. 

Two Penn Center, Suite 200 

Philadelphia, PA 19102 

Attorney for Defendant: 

Type of Service: ( ) Personal O Regular mail (X) CJC mailbox (X) Email 

Hugh Bums, Esquire 

District Attorney's Office 

Three South Penn Square 

Philadelphia, PA 19107 

Attorney for the Commonwealth: 

I hereby certify that I am this day caused to be served the foregoing this person(s), and in the 

manner indicated below: 

PROOF OF SERVICE 

Commonwealth v. Wesley Waters 

CP-51-CR-0004959-2011 

118 EDA 2013 

Circulated 06/30/2015 12:22 PM