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Commonwealth v. Drummond

Superior Court of Pennsylvania

September 9, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD DRUMMOND, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT McDOWELL, Appellant

Appeal from the Judgment of Sentence, January 13, 2011, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0015491-2008.

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND MUSMANNO, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

In these consolidated appeals, co-defendants Gerald Drummond and Robert McDowell appeal the judgment of sentence entered following their conviction for first degree murder and related offenses. Finding no merit, we affirm the judgment of sentence as to each appellant.

The victims in this case are 27-year-old Damian Holloway and 14-year-old Timmy Clark. Holloway was the apparent target of Drummond and McDowell; the Clark child was apparently killed because he was an unfortunate witness present at the scene when Holloway was confronted.

Much of the evidence in this case consisted of testimony from friends of Drummond and McDowell to whom the pair had made incriminating admissions. At trial, some of these witnesses disavowed earlier statements because of a fear of reprisal. Evidence was presented that both Drummond and McDowell had a motive to kill Holloway. Drummond, who is Caucasian, resented the fact that his sister was in a relationship with Holloway, who was African-American. Drummond and Holloway had recently been quarrelling because Drummond believed Holloway was "disrespecting" his sister. As for McDowell, his dispute with Holloway also involved his sister. Approximately three weeks before the murders, Holloway had an argument with McDowell's sister during which he called her a "bitch." In response, she telephoned McDowell, who subsequently arrived at the scene yelling at and smacking Holloway, ordering him not to "f**k with his sister."

Drummond and McDowell confronted the victims in the early morning hours of July 13, 2007. Drummond and McDowell surrounded the victims from the front and rear. The victims were made to kneel in the street with their hands interlaced behind their heads. McDowell was armed with a revolver but apparently "couldn't do it"; consequently Drummond took the gun from him and shot each victim in the head, execution-style. Drummond subsequently bragged about his actions to various witnesses while McDowell acknowledged his participation.

On December 20, 2010, a jury convicted both appellants of two counts of first degree murder, two counts of criminal conspiracy, one count of carrying a firearm in public in Philadelphia, and one count of possessing criminal instruments.[1] On January 13, 2011, appellants were sentenced to two consecutive life terms plus 15 to 30 years' imprisonment. These timely appeals followed.

On appeal, Robert McDowell raises the following seven issues:[2]

I. Is the Defendant, Appellant herein, entitled to an arrest of judgment on each of two counts of murder in the first degree, as well as on all related charges, where the verdict is not supported by sufficient evidence, as the Commonwealth did not prove, beyond a reasonable doubt that the Defendant was the perpetrator of the crimes, nor an accomplice to, or an accomplice of, the co-defendant?
II. [I.] Is the Defendant entitled to a new trial on all charges where the verdict is against the greater weight of the evidence, and based on speculation, conjecture and surmise?
III. [V.] Is the Defendant entitled to a new trial as the result of Court error when it answered the jury's question incorrectly as it pertains to a "shared specific intent to kill" necessary for first degree murder?
IV. Is the Defendant entitled to a new trial as the result of Court error in incorrectly denying the pretrial motion to suppress the Defendant's out-of-court statement, which was taken without necessary and adequate warnings and which was obtained as the result of psychological and emotional coercion?
V. [III.] Is the Defendant entitled to a new trial as the result of prosecutorial misconduct in closing argument?
VI. [IV.] Is the Defendant entitled to a new trial as the result of Court error, where the Court permitted impermissible hearsay without any exception to the hearsay rule, or without any case law permitting same?
VII. [II.] Is the Defendant entitled to a new trial where the Court impermissibly permitted a homicide detective to testify as to his opinion that they "had" arrested the two people who committed the murders?

McDowell brief at 3.

In his first issue, McDowell claims that the evidence was insufficient to convict him of any charge because the evidence did not show that he was a perpetrator, conspirator, or accomplice to the crimes. We begin our analysis with our standard of review:

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013), quoting Commonwealth v. Norley, 55 A.3d 526, 531 (Pa.Super.2012) (citations omitted).

While it is true that McDowell was not the actual perpetrator of the two murders, he may still be found criminally liable on a theory of conspirator liability:

Once there is evidence of a conspiracy, all conspirators are equally criminally responsible for the acts of their co-conspirators committed in furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook the action. Even if a defendant did not act as a principal in committing the underlying crime, therefore, he is still criminally liable for the actions of the co-conspirator taken in furtherance of the conspiracy.

Commonwealth v. Figueroa, 859 A.2d 793, 798-799 (Pa.Super. 2004) (citations omitted).

To prove a conspiracy, the Commonwealth must establish three elements: 1) the defendant entered into an agreement with another to commit or aid in the commission of a crime; 2) he shared the criminal intent with that other person; and 3) an overt act was committed in furtherance of the conspiracy. Commonwealth v. Knox, 50 A.3d 749, 755 (Pa.Super. 2012), appeal granted in part, ___ Pa. ___, 68 A.3d 323 (2013). Proof of a conspiracy, however, need not demonstrate an explicit agreement:

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.

Id., quoting Commonwealth v. McCall, 911 A.2d 992, 996-997 (Pa.Super.2006) (citation omitted).

Amy Rudnitskas testified that she discussed the murders at issue with both Drummond and McDowell and each admitted to her that he had participated. (Notes of testimony, 12/9/10 at 205-213 (Drummond); at 215-220 (McDowell).) Drummond described the crime in greater detail, noting that he and his co-conspirator surrounded the victims from the front and behind, forced them to kneel on the ground, and then put their hands behind their heads, interlocking their fingers. (Id. at 205; 211-212.) At this time, his co-conspirator had the gun out. (Id. at 212.) McDowell stated that he "couldn't do it." (Id. at 218-219.) Drummond stated that he took the gun from the co-conspirator and shot first the child, and then Holloway as he attempted to run. (Id. at 212.)

Susan Coulter testified that McDowell's girlfriend, Erica Marrero, confided in her. Coulter testified that on the night of the killing McDowell and Drummond returned to Marrero's apartment and McDowell gave her a gun and told her to dispose of it, which she did. (Notes of testimony, 12/13/10 at 76-77.)

The testimonies of these two witnesses alone are sufficient to show that Drummond and McDowell entered into a conspiracy to murder the victims. McDowell had recently displayed hostility to the victim Holloway. McDowell actively participated in bringing the murder weapon to the crime scene, in helping to surround the victims, in brandishing the weapon, and in ordering the victims to their knees. Following the murders McDowell took responsibility for disposing of the murder weapon. This is enough to prove that a conspiracy existed between Drummond and McDowell.

Furthermore, we do not find that McDowell's inability to pull the trigger proves that he had not agreed to kill the victims or that that failure acted as a renunciation of a prior agreement. As McDowell indicates in his brief, renunciation must occur before commission of the crime becomes so imminent that avoidance is out of the question. (McDowell's brief at 17, citing Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).) We find that McDowell's alleged renunciation occurred well beyond the point of no return.

In the case McDowell cites for this principle, Roux and his co-conspirator McClendon forced an intended robbery victim to the ground and beat him for two or three minutes. McClendon then took a knife from Roux, who turned and walked away while McClendon repeatedly stabbed the victim. The victim died from the stab wounds. The court found that there was no appreciable interval between the time Roux left the scene and the stabbing occurred to constitute an abandonment of the conspiracy. In the very similar circumstances instantly, we note that there is no indication that McDowell even turned away. Under the case McDowell himself cites, we cannot find that he abandoned or renounced the conspiracy. Moreover, McDowell's disposal of the murder weapon after the killings is proof that he had not renounced the conspiracy.

McDowell also argues that the fact that Drummond took the gun from him rather than McDowell voluntarily handing it over relieves him of some criminal responsibility. We disagree. First, the testimony only stated that Drummond "took" the gun from McDowell. The verb "took" encompasses a wide spectrum of possibilities ranging from Drummond violently wresting the gun away from McDowell to McDowell casually offering the gun to Drummond and Drummond taking it. Our standard of review requires that we adopt the scenario most favorable to the Commonwealth. Second, the Roux court also found this to be a distinction without a difference: "Nor is it relevant that McClendon took the murder weapon from Roux for, as the evidence demonstrates, Roux was carrying the weapon 'at the ready' where McClendon could grab it easily." Roux, 465 Pa. at 490, 350 A.2d at 871. We find no merit to this issue.

Next, both Drummond and McDowell argue that their convictions are against the weight of the evidence. We note our standard of review:

The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.
As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury's verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one's sense of justice. A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when "the figure of Justice totters on her pedestal, " or when "the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience."
Furthermore,
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.

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012) (citations omitted), appeal denied, ___ Pa. ___, 60 A.3d 535 (2013).

While the trial court ruled on this issue during post-sentence motions, it did so summarily by order. The court also did not enter an opinion following the filing of the statements of errors complained of on appeal, nor can we remand this matter for the preparation of an opinion since the trial judge is no longer with the court. Thus, we assess the evidence directly to determine whether the jury's verdict shocks our judicial conscience.

There is no physical evidence tying the appellants to this crime, no confession, nor were there any eyewitnesses. Rather, the Commonwealth relied largely upon witnesses who had heard appellants admit to their participation in the crime. Nonetheless, a fairly clear picture of the actual crime emerged because witnesses who heard the story from the appellants at different times and venues all described the crime in nearly identical accounts.

For instance, Amy Rudnitskas testified that she first heard Drummond describe the crime about a week later, in the dining room of Drummond's mother's house. She stated that Drummond proudly bragged how the victims were surrounded, made to kneel in the street, and put their hands behind their heads. Drummond also related that he had to take the gun from his co-conspirator and kill the victims. He described the child as a casualty of war. Later that year, near Halloween, Thomas Zehnder was at a party where he overheard Drummond again bragging about the killings. (Notes of testimony, 12/10/10 at 150-151.) Zehnder listened as Drummond said he made the two victims get on their knees and that he took the weapon from his co-conspirator because he did not have the heart to do it. (Id. at 159-161.) Drummond stated that he killed the victims execution-style. (Id. at 159.) Holloway was killed for "disrespecting" Drummond's sister and the child was murdered so there would not be any "loose ends." (Id. at 161.) Erica Marrero gave a statement to the police in which she described how McDowell admitted to her that he and another person killed Holloway and the Clark child.[3] (Id. at 69.) McDowell stated that he "couldn't do it" so the other person took the gun from him and shot them. (Id.) Holloway was killed for "disrespecting" Drummond's sister and the child was killed to eliminate any "loose ends." (Id. at 88.)

The fact that these witnesses each heard Drummond and McDowell describe the crime so similarly on different occasions lends credence to their various accounts. Based upon the testimony at trial, we cannot say that the jury's verdict shocks our judicial conscience. The verdict was not against the weight of the evidence.

Next, appellants argue that the trial court erred when the court answered a jury question as to the "shared specific intent to kill" necessary to a first degree murder conviction.

When reviewing a challenge to jury instructions, the reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury.

Commonwealth v. Miskovitch, 64 A.3d 672, 684 (Pa.Super. 2013) (emphasis in original), quoting Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 792 (2009) (internal citations and quotation marks omitted).

We see no possible error as to appellant Drummond because he could not be prejudiced by any mistake here. Drummond was the actor and a specific intent to kill could be inferred from his use of a deadly weapon upon a vital part of the victims' bodies. Commonwealth v. Bryant, ___ Pa. ___, ___, 67 A.3d 716, 721 (2013). The shared specific intent to kill only affected the non-actor, appellant McDowell, because it was necessary to his conviction that he shared Drummond's specific intent to kill. McDowell, however, has waived this issue because his counsel at trial agreed to the instruction and did not object. (Notes of testimony, 12/17/10 at 114.); Commonwealth v. Burwell, 58 A.3d 790, 795 (Pa.Super. 2012), appeal denied, ___ Pa. ___, 69 A.3d 242 (2013) ("Because our rules of procedure require that a party specifically object to the language of a jury charge in order to preserve the claim, this issue is waived.").

Next, McDowell argues that the court erred in failing to suppress his out-of-court statement. McDowell objects to the testimony of police detective Thomas Gaul who testified that when he interviewed McDowell, he changed his alibi several times. Detective Gaul testified that he read McDowell his Miranda rights and ascertained that McDowell was coherent.[4](Notes of testimony, 12/13/10 at 195-196.) First, McDowell claimed that he was at the Borgata Casino with Erica Marrero at the time of the murders. (Id. at 198-199.) When the detective informed McDowell that the Borgata had excellent video-cameras and that they could verify his story with those videos, McDowell changed his alibi, saying he was not at the Borgata, but was at a re-hab. (Id. at 199-200.) When the detective asked for the name of the re-hab so police could check the sign-in records, McDowell stated that he was not at a re-hab, but was at his girlfriend's apartment all night. (Id. at 200.)

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa.Super. 2012).

McDowell complains that Detective Gaul failed to have him sign a written waiver of his Miranda rights, and thus, there was no tangible evidence that he had been read his rights. However, McDowell indicates no authority for the proposition that police must obtain a written and signed waiver, and we are aware of none. The detective testified that he read appellant each of the required Miranda warnings, and specifically testified as to each individual warning. (Id. at 195-196.) Clearly, the suppression court found Detective Gaul credible because the court denied the suppression motion. We cannot reweigh the evidence.

McDowell also argues that Detective Gaul's testimony was inherently contradictory, with his assertions that he continually reinforced McDowell's right to remain silent while simultaneously prodding McDowell for information. We see nothing contradictory in telling a defendant, on multiple occasions, that he has a right to remain silent and then continuing to ask him questions. That is how Miranda rights are supposed to function. We see no indication from this that Detective Gaul was untruthful. Moreover, as we just noted, we cannot reweigh evidence. There is no merit here.

Next, appellants contend that they are entitled to a new trial because of prosecutorial misconduct during the closing argument.

Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one. Not every inappropriate remark by a prosecutor constitutes reversible error. A prosecutor's statements to a jury do not occur in a vacuum, and we must view them in context. Even if the prosecutor's arguments are improper, they generally will not form the basis for a new trial unless the comments unavoidably prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa.Super. 2013), quoting Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa.Super.2012) (internal quotes and citations omitted), appeal denied, ___ Pa. ___, 51 A.3d 838 (2012).

Appellants' argument in this regard is two-fold. First, appellants complain that the prosecution made an improper biblical reference during closing:

So what do you do? Well, after you hear all of the evidence and as the Judge explains to you, you go in that room and you discuss it, they stand before you naked of a sin that was committed, the killing of two people, the killing of a young man, the killing of a boy.

Notes of testimony, 12/16/10 at 111 (emphasis added).

Second, appellants assert that the prosecution erred during closing when the prosecutor pointed out Tara McDowell and David Drummond in the courtroom gallery and asked each to stand:[5]

Then you hear in that second conversation, he [Drummond] says I did it. I'm bad. They say who is there. Nik-Nak and Tara. So now we have Turtle saying Nik-Nak and Tara was [sic] there for this conversation. By the way, everybody talks about Tara –
Tara, stand up, say hi. There you go, Tara. (Indicating).
Remember how Amy was saying, they told me if I get involved, David is going to take my kids away and he is going to take care of me and they showed me my statement. I am afraid of David. I have a baby by him but I am afraid of him. I lived with him for ten years. I know what he is going to do to me.
Come on, David. Raise your hand. Stand up, David, with the glasses, pink shirt, get up, wave hi. That's David in this room. (Indicating).

Notes of testimony, 12/16/10 at 140-141.

Turning first to the alleged biblical reference, we note that there is a per se prohibition against the prosecution making biblical references during death penalty-phase arguments, but that this per se rule has not been extended to guilt-phase closings. See Commonwealth v. Natividad, 595 Pa. 188, 213-214, 938 A.2d 310, 325-326 (2007). The Natividad court found that a brief guilt-phase reference to God did not require re-trial:

My best friend who had this case for the preliminary hearing, we talked about a lot of different things and, you know, it's not as the Judge has told you to decide this case on sympathy or certainly no sympathy for Ricardo Natividad but not even for the Campbell family. Not because there is a God who would when we're all going to sleep at night and when we're batting [sic] down the hatches you go out and make sure hopefully He would prevent another car window from getting smashed.

Id., 595 Pa at 213, 938 A.2d at 325 (emphasis in original).

Similarly, we find that the prosecutor's brief reference to appellants' conduct as a "sin" does not represent an infusion of biblical or religious authority requiring a new trial. Moreover, other cases have held that biblical sounding language, without direct reference to the Bible, does not impermissibly inject biblical authority. See Commonwealth v. Neff, 860 A.2d 1063, 1068 (Pa.Super. 2004), appeal denied, 583 Pa. 688, 878 A.2d 863 (2005); Commonwealth v. Messersmith, 860 A.2d 1078, 1084 (Pa.Super. 2004), appeal denied, 583 Pa. 688, 878 A.2d 863 (2005) (prosecutor's use of phrase "thou shalt not kill" without reference to Bible did not invoke biblical or religious authority). Likewise, a "sin" can be a reference to a mere transgression of any sort, and not necessarily the defiance of biblical law. For instance, one could use the phrase, "it's a sin to waste time, " without suggesting that there is a theological penalty involved. In sum, we see no error.

We next review the prosecution's invitation to Tara McDowell and David Drummond to stand up in the courtroom gallery and introduce themselves. We agree that such behavior is improper and an insult to courtroom decorum. We also find that such conduct bears the possibility of introducing evidence through impermissible means. Nonetheless, we are unable to discern any prejudice to appellants under the circumstances here. Furthermore, neither appellant has described how he was prejudiced by this conduct and both merely assert a boilerplate claim. Ultimately, although we find the prosecutor's actions to be disturbing, we can identify no reversible error as to appellants.

Next, appellants complain that certain hearsay testimony by witness Susan Coulter was permitted to enter the record over objection. Our standard of review as to the admission of evidence is whether the court abused its discretion. Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa.Super. 2013).

The specific testimony to which appellants object is as follows:

Q. Now, if you can tell me, when you spoke to Erica, whether it was five months or so after this happened, what did she tell you and where were you when you were talking to her?
A. We were in my apartment and she said I can't do this anymore. I can't take this anymore. I can't deal with Bobby anymore and I said what's the matter and she said I can't hold in anymore. I have to tell you something and I said okay, tell me what and she said it is about Timmy Clark's death and I was like what do you mean and she said Bobby and G had killed - or she actually said G had killed little Timmy and the other person that was killed, I'm not sure of his name exactly and I was like I don't want to hear anymore. I said I don't want to hear anymore and she was like, please, let me tell you what I have to say, just listen. I said okay, you are my best friend. I loved her. She was crying and she told me that Bobby and G had disappeared down the street. Bobby had told her to get the F in the house and after she heard gunshots, Bobby and G ran in the apartment. Bobby handed her a gun and told her to get rid of it.

Notes of testimony, 12/13/10 at 76-77.

We find this issue to be waived. At no point before, during, or after Coulter's testimony did either appellant raise an objection, hearsay or otherwise, to Coulter's testimony. Prior to Coulter's taking the stand, there was a long discussion among the court and counsel as to Coulter's proposed testimony. Counsel for McDowell, Gary Server, Esq., at one point questioned the basis for admissibility of certain unidentified proposed testimony by Coulter, but no objection was lodged. (Id. at 64.) Thereafter, the discussion continued with the court assuring counsel that the proposed testimony could be fixed and then periodically directing the prosecution not to elicit certain information. (Id. at 64-71.) At the conclusion of this discussion, all parties appeared to have been in agreement as to how Coulter was to be examined and what testimony could be given. (Id. at 71.) Again, there was no specific objection raised. The failure to make a timely and specific hearsay objection results in waiver. Commonwealth v. McAfee, 849 A.2d 270, 276 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004). We find this issue waived, being improperly raised for the first time on appeal. See Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.

Finally, appellants object to the following testimony by Police Detective Thomas Gaul:

Q. Why was [Erica Marrero] placed in an interview room as opposed to a desk in the open?
A. We had the two people that we had charged with the murder, the two people who committed the murders of Damian Holloway and Timothy Clark.
Mr. Server: Objection.
The Court: He said charged.

Notes of testimony, 12/14/10 at 143-144.

Appellants argue that the detective improperly gave his personal opinion as to appellants' guilt. We disagree, finding that the statement was not a comment as to the detective's personal belief as to the appellants' guilt, and to the extent that it may be interpreted in that light, it was not prejudicial.

Where a police officer personally opines as to the guilt of the accused, our analysis is the same as where the prosecutor makes such comments:

It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 112 (2004). However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then ask the jury to find the accused guilty based on those facts. See id.
The standard by which the court considers allegations of improper prosecutorial comments is a stringent one:
Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.

Commonwealth v. Chmiel, 612 Pa. 333, 394, 30 A.3d 1111, 1146-1147 (2011), quoting, in part, Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1 (2008).

First, we find that the second clause of Detective Gaul's remark was intended merely to clarify the first clause of the remark, rather than to express a personal opinion. The first clause informed that the police had apprehended the two people the police had charged with murder; we find it was the intent of the second clause merely to identify to which particular murder he was referring. Moreover, the trial court affirmed before the jury that the detective was only saying that they had apprehended the persons charged with the murders. Thus, we do not find that the remark conveyed Detective Gaul's personal opinion as to appellants' guilt.

Second, to the extent that Detective Gaul's remark may be interpreted in that light, we find that it was not prejudicial. Given that several other witnesses testified that appellants had admitted to their involvement in the murders, we find that Detective Gaul's fleeting comment would not have the unavoidable effect of prejudicing the jury.

Further, this court has held that an even more flagrant endorsement of guilt by a police officer did not give rise to an unavoidable effect. In Commonwealth v. Mancini, 490 A.2d 1377 (Pa.Super. 1985), the defendant was on trial for burglary. During trial, the prosecution elicited the following remark:

Q. When you got in touch with Detective Bright, specifically why did you call him?
A. I was in touch with him after contacting the
Ambler Police Department. I believe Mr. Mancini had an Ambler address. I was put in touch with Detective Bright, who advised me the defendant, Mr. Mancini, was involved in a burglary.

Mancini, 490 A.2d at 1389 (emphasis added). The Mancini court ruled that this remark would not have had an unavoidable effect on the jury.

Finally, our supreme court has recognized that where a defendant has been charged with and is being tried for a crime, it is already a clear indication to the jury that the police believe the defendant is guilty:

Furthermore, the reference to Appellant as the "prime suspect" could not have been prejudicial because it did nothing more than reiterate to the jury the obvious fact that Appellant was charged and being tried for the murder of Jamie Lamb because it was believed that he was the perpetrator. Thus, we conclude that Appellant's argument is meritless and must be rejected.

Commonwealth v. Wilson, 538 Pa. 485, 508, 649 A.2d 435, 446 (1994), cert. denied, Wilson v. Pennsylvania, 516 U.S. 850 (1995). Thus, we see no merit in this final argument either.

Accordingly, having found no merit in any argument raised on appeal, we will affirm the judgments of sentence entered below.

Judgment of sentence at No. 279 EDA 2011 is affirmed.

Judgment of sentence at No. 430 EDA 2011 is affirmed.

Judgment Entered.


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