filed: April 20, 1987.
COMMONWEALTH OF PENNSYLVANIA
SALVATORE CHIMENTI, APPELLANT
Appeal from the Judgment of Sentence July 9, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 3365, 3367 June 1982.
Paul L. Shechtman, Philadelphia, for appellant.
Marianne E. Cox, Deputy District Attorney, Philadelphia, for Com., appellee.
Olszewski, Tamilia and Kelly, JJ.
[ 362 Pa. Super. Page 355]
Appellant appeals from the judgment of sentence imposed after a jury found him guilty of first-degree murder and possession of an instrument of crime. The trial judge sentenced appellant to the mandatory term of life imprisonment on the first-degree murder charge and to a concurrent term of 2 1/2 to 5 years' imprisonment on the possession of an instrument of crime charge. In this appeal, appellant argues that: (1) he was denied effective assistance of counsel because his trial counsel failed to call two witnesses and chose to present testimony that counsel knew was perjurious; (2) he was denied a fair trial because of the prosecutor's misconduct; and (3) the evidence was not legally sufficient to support a first-degree murder conviction.*fn1 For the reasons stated below, we affirm the judgment of sentence.
[ 362 Pa. Super. Page 356]
It was later adduced that the victim had been right handed. There was a little blood on the frame of the gun. There also was blood in the street and on the car which was parked between the victim's body and the curb.
Testimony at trial established that the shooting stemmed from an on-going dispute between the defendant, Salvatore Chimenti, and the victim, Andrew Tucker. They had had an argument at the defendant's mother's house three or four days before the shooting. Following this, Chimenti, who had been renting a house from Robert Harris, a friend of Tucker's as well, asked Harris to arrange a meeting between them.
On the night of the shooting Harris and Walter Schiffler went to a Phillies game. They left the game early and went to the Brothers 2 Lounge at 15th and Ritner Streets. There they met the victim, Tucker, who had been drinking, and whose behaviour reflected this fact.*fn2 Tucker asked Harris to give him a ride to the defendant's mother's house.
The three men left the Brothers 2 Lounge. They went to the victim's apartment so that Tucker could drop off his baseball equipment and pick up some marijuana. They did not smoke it. Harris entered the apartment with Tucker while Schiffler waited in the car. From there the three men proceeded to 2747 S. Sheridan Street.
Upon their arrival, Harriss recognized the defendant's brother, Mario, and his friend, Mike Cavanaugh, who were walking out of the house. Mario told Harris that the defendant was not home. Tucker got out of the car, and walked off saying that he was going to a friend's house on the street. Harris stayed to talk to Mario and Cavanaugh. Tucker said he would be at the end of the street and that they should come down and honk for him when they had finished their talk.
Tucker went to 2707 S. Sheridan Street, a house occupied by Theresa Ann Marie Bardon. She was in bed watching TV. Steve Cavalieri, Bardon's boyfriend responded to Tucker's knock. Tucker asked to borrow Bardon's van.*fn3 Cavalieri decided to drive Tucker so he
[ 362 Pa. Super. Page 358]
told Tucker they would meet at the van. Tucker left. Moments later Bardon and Cavalieri heard shots.
According to Harris' trial testimony, while Tucker was at Bardon's, Harris finished his conversation with Mario and Cavanaugh. He was preparing to leave when another car pulled up behind his. The defendant and Linda Romeo emerged. The driver, a man, never got out.
The defendant asked Harris what he was doing there. Harris explained that he had brought Tucker for the meeting the defendant had requested.
The defendant told Harris that he would "blow (Tucker) away," if the victim started any trouble in frot of the defendant's mother's house. Harris had noticed that the defendant had a gun. He also heard the defendant ask his brotther if he had his gun. Tucker did not have a gun.*fn4
While Harris and the defendant were talking, Tucker left Bardon's house. When he saw them Tucker started to walk toward them, yelling. Harris went to Tucker to attempt to calm him down. He thought Tucker was going to fight with the defendant.
After Harris calmed Tucker, they proceeded to 2747 S. Sheridan Street. The defendant was standing on the steps. Mario and Cavanaugh were on the porch. The defendant accused Tucker of doing things he didn't like. The defendant pointed his finger in Tucker's face. Tucker slapped it away. The defendant drew his gun and shot. Harris ran. He jumped in his car, and Schiffler, who had never gotten out, drove off.
When the defendant took the stand he admitted that he had emptied the entire clip of his gun almost instantaneously. Tucker, he said, never fired a shot. The evidence showed that the defendant had continued to fire at Tucker even as he attempted to run. Bullets entered the front, back, and left side of the deceased.
The defendant's gun was never recovered. The defendant stated that as he ran from the scene of the shooting he dropped his Walther PPKS, a semi-automatic .380 caliber gun, in a vacnt lot. He had retrieved this gun
[ 362 Pa. Super. Page 359]
earlier that evening, from a floor safe in a rental property he owned because he knew the victim was looking for him.
Subsequent police investigationn revealed that there were spent bullet casings on the steps and on the porch of 2747 S. Sheridan Street. The casings found on the porch were .25 caliber. There was one .25 caliber casing on the sidewalk. The ballistics expert testified that these were fired from a semi-automatic pistol which usually ejects shells over the right shoulder of the shooter.
The defendant ran from his mother's house to his Aunt Betty's and Uncle Frank's. He stayed there for a couple of hours trying to calm down. The defendant's uncle suggested that Joel Moldovsky be contacted for legal assistance. The defendant tried to reach Mr. Moldovsky that evening, but did not succeed until the following day. The defendant retained Moldovsky three days later, May 13, 1982.
Mr. Moldovsky called Homicide Headquarters to determine whether the defendant was wanted. He made several calls between May 13th and May 27th or 28th when he learned that a warrant had been issued for the defendant's arrest. The defendant then voluntarily turned himself over to police custody in Mr. Moldovsky's office. From there Chimenti was taken to the Police Administration Building where he was charged with this crime.
(Trial court opinion at 4-9) (footnote omitted).
II. EFFECTIVE ASSISTANCE OF COUNSEL
Appellant's first contention on appeal is that he was enied the effective assistance of counsel. Appellant
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argues that his trial counsel failed to call two potential witnesses and suborned perjured testimony. The standard for analyzing ineffectiveness-of-counsel claims consists of a two-pronged test.. The reviewing court must first determine whether the issue underlying a defendant's ineffectiveness claim is of arguable merit and, if so, the court must then determine whether the course chosen by counsel had some reasonable basis in promoting defendant's interests. See Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985), allocatur granted, 510 Pa. 244, 507 A.2d 368 (1986). Additionally, our Supreme Court has recently stated that implicit in this two-pronged test is the requirement that the defendant demonstrate that he was prejudiced by his attorney's alleged ineffective assistance. See Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). For the reasons stated below, we find that the issues underlying appellant's claims of ineffectiveness are meritless.
Specifically, appellant argues that his trial counsel was ineffective because:
He "added" another eyewitness, Gregory Spain, whose race, he believed, would appeal to the jurors. He instructed witnesses to testify that Harris, not Mario Chimenti, was in possession of the .25 caliber gun, so that the attack on appellant would seem even more fearsome. He coached witnesses to testify that Harris was on the porch of the Chimenti house, where the spent .25 caliber cartridges were recovered. And he chose not to call Frank Cioffi and Marie Convery, despite their favorable testimony, because each would have said that Harris was not on the porch at the time of the shooting.
(Brief for appellant at 30). First, in reference to appellant's claim that trial counsel was ineffectivee in failing to call two witnesses, this Court has stated: "the failure to call potential witnesses will not be equated with a conclusion of ineffectiveness absent some positive demonstration that their testimony would have been helpful to the defense." Commonwealth v. Wallace, 347 Pa. Super. 248, 252, 500 A.2d 816, 818 (1985). We find that the testimony of the two
[ 362 Pa. Super. Page 361]
potential witnesses would not have been helpful to the defense.
During the trial, appellant contended that the shooting was done in self-defense. Appellant testified that he borrowed $30,000 from Robert Harris and that Tucker, a friend of Robert Harris, had confronted appellant twice previous to the shooting, seeking repayment of the loan. Defense witnesses testified that Robert Harris was on the porch of the Chimenti house and that both Tucker and Harris drew guns on appellant. Appellant, they said, shot Tucker before Tucker could shoot appellant. Gregory Spain also testified for the defense and told the jury that he had driven appellant home on the night of the shooting. Spain testified that Tucker had a gun and that he saw Harris run from the porch with what seemed to be a gun in his hand. On appeal, appellant arues that the testimony of two eyewitnesses -- Frank Cioffi and Marie Convery -- would have shown that the gun found at Tucker's side could not have been planted. Appellant argues that the two eyewitnesses were walking down South Sheridan Street when they saw the shooting and that no one approached Tucker's body to plant a gun since they stayed with Tucker until the police arrived on the scene. (See Brief for appellant at 10). Appellant contends that trial counsel did not call them as witnesses because each would have testified that Harris was not on the porch at the time of the shooting.
We find that while the two potential witnesses could have contradicted the Commonwealth's claim that the .38 caliber gun which was found next to Tucker's body was planted, their testimony would have impeached aspects of appellant's self-defense theory. During the trial, defense witnesses had consistently testified that appellant's brother, Mario Chimenti; his friend, Michael Cavanaugh; Robert Harris; and appellant were all on the porch of the Chimenti house at the time of the shooting and that Harris and Tucker each had a gun. By testifying that Harris was not on the porch with a gun at the time of the shooting, the testimony of the two potential witnesses would have created
[ 362 Pa. Super. Page 362]
confusion in the minds of the jury and may have caused the jury to question the credibility of three of the defense's major witnesses -- appellant, Mario Chimenti, and Michael Cavanaugh -- who were all on the porch of the Chimenti house at the time of the shooting. The course chosen by trial counsel had a reasonable basis in promoting appellant's interests, i.e., trial counsel's decision to present the testimony of those eyewitnesses who were on the porch at the time of the shooting and who testified that Tucker and Harris both had guns, rather than presenting the testimony of Cioffi and Convery who were walking down Sheridan Street some distance from the scene of the shooting. If defense counsel had chosen to present the testimony of the two potential witnesses, the prosecutor could have readily attacked the accuracy of their view of the shooting and the events that subsequently occurred.
Appellant also claims that he was denied the effective assistance of counsel because his trial counsel suborned perjured testimony. Because the burden of proving counsel's ineffectiveness rests on the party alleging it, appellant's burden in this case was to prove that his trial counsel suborned perjured testimony. See Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983) (counsel is presumed to be effective and the burden of proving to the contrary rests on the party alleging counsel's ineffectiveness). We find that appellant has failed to carry this burden.
As proof of this allegation, appellant relies on an investigation by the District Attorney's Office,*fn2a the testimony
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of Elizabeth Harris (Robert Harris' sister), and the addendum attached to his appellate brief which consists of the results of numerous polygraph examinations. The investigative report and the results of the polygraph examinations, however, are not a part of the official record. Our Supreme Court has stated that "'it is a black letter law that an appellate court cannot consider anything which is not a part of the record in the case.'" Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974) (quoting McCaffrey v. Pittsburgh Athletic Ass'n, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972)). We, consequently, cannot go outside the record to consider appellant's evidence. Additionally, Elizabeth Harris, a Commonwealth witness, testified at trial that Gregory Spain, a defense witness, told her that he was going to testify at trial that he witnessed the shooting although he actually had not. After carefully reviewing the record, however, we can find no proof that appellant's trial counsel forced Spain to testify.*fn3a Since the official record is
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devoid of any proof that appellant's trial counsel suborned perjured testimony, this claim must fail.
III. PROSECUTORIAL MISCONDUCT
Appellant's next contention on appeal is that he is entitled to a new trial on the grounds of prosecutorial misconduct. In enunciating the appropriate standard of appellate review, our Supreme Court stated:
This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor's statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor's remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
Furthermore, "(T)he prejudicial effect of the district attorney's remarks must be evaluated in the context in which they occurred." Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution.
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II at 189, Vol. III at 135, Vol. X at 41); a police officer testified that certain people who wouldn't give their names had told him that appellant's neighbors were "scared to death" of appellant's family (N.T. Vol. IX at 147); a Commonwealth witness referred to appellant's mother by her maiden name, "Emma Riccobene" (N.T. Vol. III at 76-77); the prosecutor referred to Mrs. Chimenti as "Emma Riccobene" four times (N.T. Vol. III at 99; Vol. IV at 212, 213, 216); the prosecutor referred to appellant's "Uncle Harry" and to his loan sharking activities six times (N.T. Vol. VIII at 90, 92, 93, 96, 117, 248). Additionally, appellant argues that the most egregious error occurred during the prosecutor's summation where reference was made to "Uncle Harry."*fn4
Initially, we note that appellant's defense counsel has failed to preserve most of these allegations for our review.*fn5 For instance, defense counsel objected to the following
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exchange which occurred during the prosecutor's cross-examination of the accused:
Q. Now, your uncle was in the business of lending money, was he not?
A. I don't know what my uncle does.
Q. You have no idea what your uncle does?
MR. MOLDOVSKY: Objection about his uncle.
THE COURT: He answered it.
(N.T. Vol. VIII at 96). While defense counsel did object, he failed to request a mistrial or curative instruction and consequently, this issue is not preserved for our review. See Commonwealth v. Jones, 501 Pa. 162, 460 A.2d 739 (1983) (issue was waived on appeal where defense counsel immediately objected to prosecutor's conduct but made no request for mistrial or curative instructions). Several of appellant's allegations, however, are preserved for our review. We find that both those issues preserved for our review and those waived on appeal are meritless.
We find that the prosecution's references to appellant's family did not prejudice appellant to such a degree that the jury was prevented from weighing the evidence and rendering a true verdict. In fact, appellant's trial counsel opened the door to discussions about appellant's family. The very first reference to appellant's family was elicited by appellant's trial counsel. In cross-examining Mr. Harris, the following exchange occurred:
BY MR. MOLDOVSKY:
Q. Mr. Harris, did you go to the police on May the 16th?
Q. Did you go to the police on May the 17th?
Q. Did you go to the police on May the 18th?
Q. Did you tell this jury that you saw Mr. Chimenti take out a gun and shoot down your friend, shoot him down with rapid fire, unload his gun into him?
A. Yes, I did.
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Q. Why didn't you go to the police on May the 11th, 1982?
A. Because my family was threatened. He used his family to threaten my family; the Riccobenes; that's why.
(N.T. Vol. II at 188, 189).*fn6 At the time the trial judge granted the appellant's counsel's request for a ruling prohibiting
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the prosecutor from referring to the Riccobenes or to organized crime, the trial court also warned defense counsel (Mr. Moldovsky):
Now, if on cross-examination, as a result of your questioning, something comes forward, that is no one's fault because the case law is equally clear that when, on cross-examination, you bring out issues which on direct might be grounds for a mistrial, there is no longer any availability of that request.
(N.T. Vol. II at 2, 3). Additionally, appellant is the nephew of a newsworthy, allegedly organized crime figure. As the trial court explained:
The indisputable and immutable fact is that the defendant is his uncle's nephew. Most of his witnesses were family members. It is impossible for the prosecutor to blindfold himself to that reality. Given extremely hard issues in the trial the prosecutor did what he had to do: refute the defense portrait of Chimenti as a struggling, pitiful, Horatio Alger-type to show that he killed the victim in cold blood.
(Post-verdict ruling at 5).
We will address appellant's allegation regarding the prosecutor's closing argument separately because appellant alleges that this was the prosecutor's most egregious error since his comments were specifically directed to the jury. Appellant argues that the prosecutor's remarks in his closing argument connected appellant to an organized crime figure, appellant's Uncle Harry. Appellant additionally maintains that because of that connection, a loan from Harris was unnecessary and no one would threaten appellant as he claimed Tucker had done. See supra note 2. We find that the prosecutor's remarks were a fair response to defense counsel's allegations in his closing argument that the prosecutor prejudiced appellant.*fn7 See Commonwealth v. D'Ambro, 500 Pa. 303, 456 A.2d 140 (1983) (prosecutor
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can respond to remarks made by defense counsel in his closing). Additionally, the trial judge gave a cautionary instruction in her charge to the jury that the attorneys' "speeches are not evidence."*fn8 As this Court stated in Commonwealth v. Williams:
Our system of jurisprudence not only relies but rests upon the notion that the scales of justice are evenly
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balanced and each party, not only the defendant but also the Commonwealth, must be afforded an equal opportunity to tip the scales. It, therefore, follows, that the Commonwealth is entitled to a full measure of oral advocacy and the prosecutor has not only the privilege but the duty to exert his skills as an advocate in such manner as he deems the most likely to be persuasive. There is no sound reason why counsel for the Commonwealth should be expected to show any less fervor than counsel for the defendant during any portion of the trial, including the closing remarks, provided, of course, the statements do not fall afoul of the ABA Prosecution Standards. The trial court is the best monitor of the propriety of the remarks of counsel for the Commonwealth during argument and the appellate courts must be more than hesitant to disturb a determination of the trial court regarding propriety since the quiet, studied solemnity of the appellate court is a world apart from the charged atmosphere of the trial courtroom.
295 Pa. Super. 369, 441 A.2d 1277 (1982) (emphasis added). Similarly, as the trial court acknowledged, the prosecutor's remarks in the instant case were merely appropriate trial advocacy.*fn9
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This issue is also waived on appeal since appellant's trial counsel failed to make an objection. See Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967) (failure of defendant's counsel to object to improper remark by prosecutor waives defendant's rights in the matter). Even if this issue was preserved for our review, we would find appellant's contention to be meritless. Our review of the record reveals that there was no indication as to which tape defense counsel was requesting. When defense counsel requested "this tape," he was no longer questioning Miss Harris about the tape recorded telephone message. In fact, defense counsel's questioning of Miss Harris about the tape appears in the record a full twelve pages before defense counsel's request for the tape. The court was also confused and asked "which tapes" defense counsel was making reference to. (N.T. Vol. X at 40). We, consequently, find that appellant was not prejudiced by the prosecutor's statement.
Appellant further argues that he was prejudiced by a comment made by the prosecutor when the prosecutor was again challenging appellant's credibility. After the court ruled that it would not allow the prosecutor to ask questions on this topic because it was highly prejudicial, the prosecutor responded: "Usually it's prejudicial when somebody lies." (N.T. Vol. VIII at 118). We find that this issue is waived on appeal because defense counsel failed to make an objection. See Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967). Even if this issue was preserved for our review, we would find appellant's contention to be meritless. The trial court sua sponte instructed the jury to disregard the prosecutor's remark. Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981) (potential prejudice could be cured by cautionary instructions from the judge). As we previously stated, a new trial will not be granted "for every intemperate or improper comment by the prosecution." Maxwell, 505 Pa. at 166, 477 A.2d at 1317.
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he had offered to take a polygraph examination. Also, the prosecutor's reference to a "lie detector test on this crime" was merely in passing and was an attempt by the prosecutor to ascertain what lie detector test appellant was referring to.
Fourth, appellant alleges that he was prejudiced by the prosecutor's portrayal of appellant as a drug dealer. Appellant objects to the prosecutor's questioning of witnesses: asking a witness if he knew "anything about the defendant selling drugs?" (N.T. Vol. IV at 136); asking another witness if he knew "if he (appellant) was involved in smuggling drugs with Bobby Harris?" (N.T. Vol. V at 166); and asking a third witness: "He (appellant) doesn't use drugs or sell drugs, does he?" (N.T. Vol. XI at 48).
We find that all three of appellant's allegations have been waived on appeal. The first two allegations are not preserved for our review since appellant's counsel failed to make a request for mistrial or curative instructions. See Commonwealth v. Jones, 501 Pa. 162, 460 A.2d 739 (1983). Appellant's third allegation is also waived since appellant's counsel did not even object when the prosecutor asked the question. See id. Even if preserved for our review, however, appellant's claim of prosecutorial misconduct is meritless. We find that it was appellant who introduced a drug motive into this case. Appellant argued that he borrowed $30,000 from Harris, a drug dealer. Appellant's counsel questioned numerous witnesses about whether Harris and Tucker were involved in a drug smuggling ring. (See, e.g., N.T. Vol. II at 195). Since defense counsel opened the door by making drug smuggling an issue in this case, appellant cannot now complain that the prosecutor asked these witnesses if appellant was also involved with Harris and Tucker in these activities. During an in camera conference, the trial judge agreed with the prosecutor that "it is important
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to know how these two people (appellant and Harris) met." (N.T. Vol. VI at 21).*fn10
Additionally, the prosecutor's questions in this area were very carefully phrased: "Do you know anything about the defendant selling drugs?" (N.T. Vol. IV at 136); "Do you know if he was involved in smuggling drugs with Bobby Harris?" (N.T. Vol. V at 166); "He (appellant) doesn't use drugs or sell drugs, does he?" (N.T. Vol. XI at 48). We, consequently, find that the prosecutor's questions on this topic did not prejudice appellant to such a degree that the jury was prevented from weighing the evidence and rendering a true verdict.
Fifth, appellant argues that the prosecutor made other improper comments during the trial that prejudiced appellant: the prosecutor opined that he did not think a witness was "telling everything he knows" (N.T. Vol. IV at 299); he told another witness that he "wouldn't try to imply anything . . . with a witness like you" (N.T. Vol. V at 134); the prosecutor said that he "would love to put in some things" (N.T. Vol. X at 40); the prosecutor also said "let's tell the jury everything" (N.T. Vol. VII at 85); in his closing argument, the prosecutor told the jury that the failure of the police to check the .38 caliber revolver for fingerprints was inconsequential because "in eight years (as a prosecutor) I have never had a case with fingerprints . . . it just doesn't happen" (N.T. Vol. XI at 233); he explained away an inconsistency between Robert Harris' testimony at trial and
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his testimony at the preliminary hearing by saying that "(e)ven the Judge at the preliminary hearing" thought that defense counsel had treated Harris unfairly (N.T. Vol. II at 218); and the prosecutor asked a witness, without any factual foundation, whether Mrs. Chimenti had sought the witness' assistance in disposing of two guns after the shooting (N.T. Vol. VII at 75).
Once again, all of appellant's allegations have been waived on appeal. Defense counsel failed to object to five of the prosecutor's comments (N.T. Vol. II at 218; Vol. V at 134; Vol. VII at 85; Vol. X at 40; Vol. XI at 233) and failed to request a mistrial or curative instruction with regard to the other two comments made by the prosecutor (N.T. Vol. IV at 299; Vol. VII at 75). See Jones, 501 Pa. 162, 460 A.2d 739 (1983).
Even if preserved for our review, however, we would find appellant's claims to be meritless. In reference to the first four comments appellant is now challenging, we find that each was not improper when considering the context in which it occurred. See Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984) (the prejudicial effect of the district attorney's remarks must be evaluated in the context in which they occurred). The following exchange occurred when the prosecutor was cross-examining appellant's brother:
(BY MR. DiDONATO):
Q. You remember that, don't you.
THE COURT: This witness is being very candid. I think he is telling everything that he knows and it is a very legitimate question.
MR. DiDONATO: I don't think he is telling everything he knows, Judge.
MR. MOLDOVSKY: Objection.
THE COURT: He is answering your questions.
MR. DiDONATO: You can't say he is telling everything he knows.
THE COURT: Don't tell me what I can say or I cannot say.
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MR. DiDONATO: That was for this jury to decide, I thought.
THE COURT: Go on with your question.
(N.T. Vol. IV at 299) (emphasis added).
The prosecutor's comment in response to the trial court's statement that the witness was being candid was not improper in the context in which it occurred. Later, during cross-examination of the same witness, the following exchange occurred:
(BY MR. DiDONATO):
Q. You, of course, never threw this weapon down to Mr. Tucker's body, did you, Mario?
A. No, sir, I never seen that weapon in my life.
Q. You must have saw the barrel of it, you said?
A. Yeah, the tip of it.
Q. That's just a slip of the tongue, isn't it? Isn't it?
THE COURT: Mr. DiDonato.
THE WITNESS: No, Sir.
MR. DiDONATO: I have no further questions. I wouldn't try to imply anything, Mr. Chimenti --
THE COURT: Mr. Chimenti --
MR. DiDONATO: -- With a witness like you, no way.
MR. MOLDOVSKY: He said he has no further questions.
THE COURT: I ask the jury to disregard Mr. DiDonato's last statement "with a witness like you," whatever it was that he said. It is very improper.
(N.T. Vol. V at 134-135).
The witness had just testified inter alia that he was a drug addict and was recently incarcerated. Where the witness characterized himself in this manner, the prosecutor's comment cannot be deemed so prejudicial as to require a new trial. Moreover, the trial court's sua sponte curative instruction cured any possible prejudice.
Also, the prosecutor's remark that he would "love to put in some things" was a fair response to defense
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counsel's attack on the prosecutor's integrity.*fn11 See (N.T. Vol. X at 39-40). Similarly, the prosecutor's comment, "tell the jury everything" related to whether a motion should be argued at sidebar or in front of the jury and the comment was also made in response to an attack by defense counsel on the prosecutor in the presence of the jury.*fn12
The next remark by the prosecutor that appellant challenges is the prosecutor's discussion in his closing argument of the failure of the police to check the .38 caliber gun for fingerprints. We find that the statements in the prosecutor's closing argument were a fair response to defense counsel's suggestion during closing that the police purposely did not dust the gun for fingerprints.*fn13 See D'Ambro,
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Pa. 303, 456 A.2d 140 (1983) (prosecutor can respond to remarks made by defense counsel in his closing). Appellant also challenges the comment the prosecutor made in response to defense counsel's method of cross-examining Robert Harris about his prior testimony at the preliminary hearing.*fn14 While it would have been more appropriate for the prosecutor to deal with this matter during his redirect examination of the witness, we do not find the prosecutor's comment to be so prejudicial as to require a new trial.
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Appellant's final contention of prosecutorial misconduct is that the prosecutor, without any factual foundation, asked a witness whether Mrs. Chimenti had sought the witness' assistance in disposing of two guns after the shooting.*fn15 Any possible prejudice to appellant that may have occurred as a result of the prosecutor's remarks, however, was cured when the trial court granted defense counsel's request to strike the questions (N.T. Vol. VII at 75) and by the court's cautionary instruction to the jury to disregard all statements that were made about "Mrs. Chimenti's trenchcoat, guns, et cetera." (N.T. Vol. VII at 80).
IV. SUFFICIENCY OF THE EVIDENCE
Appellant's final contention on appeal is that the evidence was insufficient to support his first-degree murder conviction. The well-established standard for reviewing a sufficiency claim on appeal from a conviction was stated recently by our Supreme Court as:
(W)hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable
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inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted)). After thoroughly examining the evidence presented, and taking from it all reasonable inferences favorable to the Commonwealth and resolving all conflicting evidence in favor of the Commonwealth, we find that appellant's claim of insufficient evidence must fail.
A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another. 18 Pa.C.S.A. Sec. 2501(a). A criminal homicide becomes a murder of the first degree when it is committed by an intentional killing. 18 Pa.C.S.A. Sec. 2502(a). We find the evidence presented at trial to be more than sufficient to sustain the jury's verdict of first-degree murder.
The Commonwealth's evidence established that a few days before the murder, appellant and Andrew Tucker, the decedent, had a verbal argument on South Sheridan Street in Philadelphia where appellant's mother lived and where appellant frequently stayed. That same day, appellant called Robert Harris, and asked him to arrange a meeting between appellant and Tucker. Harris arranged the meeting and on the night of the shooting, appellant armed himself for this confrontation with a fully loaded gun. Appellant told Harris that if Tucker "starts any trouble in front of my mother's house, I'll blow him away." (N.T. Vol.
[ 362 Pa. Super. Page 383]
II at 164). Appellant then asked his brother if he had his "piece" and checked to make sure his wife was inside the house. When Tucker walked up the street, appellant prepared for the confrontation by going to the third step of the porch. Tucker stopped in front of the steps and appellant continued the verbal argument and pointed his finger in Tucker's face. When Tucker pushed appellant's finger away, appellant drew his gun and fired all seven bullets from his powerful .38 caliber semi-automatic gun at Tucker. Appellant had also loaded his gun with aluminum-jacketed bullets which cause greater expansion on impact than ordinary bullets. The evidence showed that appellant continued to fire at Tucker even as he attempted to run, with bullets entering the front, back, and left side of the deceased. Four shots struck Tucker in the chest. According to the Commonwealth's witnesses, Tucker was unarmed.
It is well-settled that the use of a gun on a vital part of the deceased's body raises the presumption that the defendant shot with the intent to kill the deceased, Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970), and that the period of premeditation necessary to form the specific intent to kill may be very brief. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). The Commonwealth's evidence proved beyond a reasonable doubt that appellant intentionally murdered Tucker. As fact finders, the jury had the right not to believe appellant's version of the murder and his claim of self-defense.
For the foregoing reasons, we find that the issues raised on this appeal are meritless. Accordingly, we affirm the trial court's judgment of sentence.