March 6, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MONIQUE ROBINSON, Appellant
Appeal from the Judgment of Sentence July 11, 2013 in the Court of Common Pleas of Chester County Criminal Division at No.: CP-15-CR-0000157-2012
BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]
Appellant, Monique Robinson, appeals from the judgment of sentence entered after her jury conviction of murder of the second degree, aggravated assault, robbery, criminal conspiracy, firearms not to be carried without a license, and flight. For the reasons discussed below, we affirm.
The underlying facts and procedural history in this matter are taken from the trial court's September 30, 2013 opinion:
Evidence at Appellant's trial established that at approximately midnight on the morning of September 14, 2011, twenty-one[-]year-old Selvin Lopez stood talking to his uncle on Prospect Street in Phoenixville, Pennsylvania. Mr. Lopez had just finished working the late shift at Wendy's Restaurant and was on his way home. He carried with him his backpack, which contained his paycheck, some cash, and his fast-food dinner. Three people, Saleem Williams, Stephan Reidler, and the Appellant Monique Robinson, out on a "mission" to rob someone, approached Mr. Lopez, beat him, and robbed him of his backpack. When Mr. Lopez attempted to fight back, Saleem Williams shot him once in the stomach. The three robbers fled the scene, and returned to Saleem Williams['] girlfriend's apartment, where they went through the backpack, retrieved the cash, and ate Mr. Lopez's dinner. Mr. Lopez, left shot on the street, later died from his injuries.
Police subsequently arrested Saleem Williams, Stephan Reidler and Appellant and charged them with Mr. Lopez's murder. Saleem Williams and Stephen Reidler later entered into negotiated guilty pleas to third-degree murder. Appellant refused the plea offer and insisted on going to trial against her experienced counsel's advice.
Appellant's trial began on April 1, 2013. Both Williams and Reidler testified for the Commonwealth. On April 4, 2013, the jury found Appellant guilty of murder of the second degree, aggravated assault, robbery, criminal conspiracy and related offenses. On July 11, 2013, the Court sentenced her to a mandatory sentence of life in prison. This appeal followed.
(Trial Court Opinion, 9/30/13, at 1-2).
On appeal, Appellant raises the following questions for our review:
1. Did not the trial court err in denying a mistrial or other proper remedy when the prosecutor argued Appellant's silence at trial as evidence of guilt?
2. Did not the trial court err, and deprive Appellant of her rights to compulsory process and due process of law when it prevented the rehabilitation of a defense witness alleged to have a bias?
(Appellant's Brief, at 5).
In her first claim, Appellant argues that she is entitled to a new trial because, in its closing argument, the Commonwealth argued Appellant's silence at trial as affirmative evidence of guilt, and the trial court erred in not granting a mistrial or giving some other proper remedy. (See id. at 17-23). This claim is waived.
This Court has stated that, "[i]n order to preserve a claim of prosecutorial misconduct for appeal, a defendant must make an objection and move for a mistrial." Commonwealth v. Sasse, 921 A.2d 1229, 1237 (Pa.Super. 2007), appeal denied, 938 A.2d 1052 (Pa. 2007); see also Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010) (noting that where defendant objects and trial court sustains objection, failure to request either curative instruction or mistrial constitutes waiver on appeal).
During closing argument, the Commonwealth stated:
Did [Appellant] shed a tear during this case? Yes, she did. She did in my opening statement when I was talking about her and what she did. But we sat here as she sat here and heard three times from this witness stand the detailed accounts of Selvin Lopez being shot and left to die in the street.
Ladies and gentlemen, I don't know if you noticed, but her eyes were as dry as the desert.
[Defense Counsel]: This is the Commonwealth testifying to something I cannot cross examine on or didn't have a chance to-
The Court: Sir, please keep evidence-your closing to evidence.
(N.T. Trial, 4/04/13, at 62-63).
While Appellant objected and the trial court sustained her objection, Appellant does not identify the location in the record on appeal where she moved for a mistrial, or sought other relief, and our review of the record for this purpose likewise did not identify any such action. See Pa.R.A.P. 2119(e). Because Appellant did not preserve this issue in the trial court, she has waived it for purposes of appeal. See Manley, supra at 267 n.8; Sasse, supra at 1237.
Further, Appellant did not argue below that the Commonwealth was improperly commenting on her silence at trial, but instead argued that the Commonwealth was commenting on something outside the evidence and assuming facts not in evidence. (See N.T. Trial, 4/04/13, at 63). It is well settled that "[a] theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief." Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa.Super. 2006) (citation omitted). We have further stated that, "[w]here a specific objection is interposed, other possible grounds for the objection are waived." Commonwealth v. Shank, 883 A.2d 658, 672 (Pa.Super. 2005), appeal denied, 903 A.2d 538 (Pa. 2006) (citation omitted). Because an appellant cannot raise a new legal theory on appeal, the issue is waived for this reason as well. See Pa.R.A.P. 302(a); see also Commonwealth v. King, 999 A.2d 598, 600 n.3 (Pa.Super. 2010).
Moreover, the claim is without merit.
It is axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with respect to the charges against him since such commentary would compromise the defendant's privilege against self-incrimination and the defendant's constitutional presumption of innocence. This is so because allowing the prosecution to comment on the accused's failure to testify is, in effect, allowing the failure to take the witness stand to be used as evidence against him, which in the minds of the jurors would be indicative of guilt.
However, [s]uch comments are improper only if they unequivocally call attention to the defendant's failure to testify. Therefore, [r]eference to the failure of a defendant to testify on his own behalf, to constitute reversible error, must call the jury's attention to the fact that the defendant has not testified and must reasonably lead to an inference that he would have taken the stand if not guilty.
Commonwealth v. Randall, 758 A.2d 669, 681-82 (Pa.Super. 2000), appeal denied, 764 A.2d 1067 (Pa. 2000) (quotation marks and citations omitted).
Here, we see nothing in the prosecutor's statement that commented on Appellant's silence at trial or called attention to her failure to testify. Rather, the prosecutor commented on her demeanor during the trial. It is settled that:
[c]omments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict. Further, when considering [an a]ppellant's claims of prosecutorial misconduct, it must be noted [that] a prosecutor's comments do not constitute evidence.
Commonwealth v. Fletcher, 861 A.2d 898, 916 (Pa. 2004), cert. denied, 547 U.S. 1041 (2006) (citation omitted). Here, the trial court stated that it had:
reviewed the entirety of the prosecutor's closing argument to the jury with particular emphasis on the challenged comment. We are convinced that the prosecutor's brief comment regarding Appellant's tears could not, and did not, prejudice the jury towards Appellant and form in the jurors' minds such a fixed bias and hostility that the jury was unable to weigh the evidence objectively and render a fair verdict.
(Trial Ct. Op., at 5). We have reviewed the record and agree with the trial court's finding that this fleeting comment could not have so prejudiced the jury that they were unable to properly weigh the evidence and deliver a fair verdict. See Fletcher, supra at 916. Appellant's claim would lack merit.
In her second claim, Appellant argues that the trial court erred and deprived her of her rights to compulsory process and due process of law when it prevented the rehabilitation of a defense witness alleged to have a bias. (See Appellant's Brief, at 23-24). We disagree.
At trial, Appellant's friend, Raiana Smith, testified on her behalf. (See N.T. Trial, 4/03/13, at 56-84). Her testimony about Appellant's activities during the afternoon and early evening before the murder contradicted the testimony of Commonwealth witness Saleem Williams. (See N.T. Trial, 4/02/13, at 72; N.T. Trial, 4/03/13, at 208-09, 214-16). Thus, Smith's credibility was at issue and the Commonwealth could question her concerning possible bias. See Commonwealth v. Sattazahn, 952 A.2d 640, 663 (Pa. 2008), cert. denied, 556 U.S. 1283 (2009) (citation omitted).
On cross-examination, the Commonwealth questioned Smith as follows:
Q. Now, [Appellant] is your friend?
Q. You want to help her out?
A. I would say tell the truth-
Q. You don't want to help your friend?
A. I'm not going to come on the stand and say things that are false.
Q. That is not what I asked. Do you want to help [Appellant]?
A. Do I want to see the best thing happen? If I try to help her, I'm trying to answer the questions presented to me.
Q. Do you want to help a friend?
Q. If you have a friend do you try to help them?
(N.T. Trial, 4/03/13, at 78-79).
On redirect examination, defense counsel asked Smith, "Ma'am would you come in and put your hand on a bible and commit perjury for [Appellant]?" (Id. at 84). The Commonwealth objected; the trial court sustained the objection, and defense counsel did not ask any further questions. (See id.).
It is long-settled that when a witness is attacked for bias, counsel should be allowed to rehabilitate that witness. See Commonwealth v. Griffin, 515 A.2d 865, 872-73 (Pa. 1986), cert. denied, 480 U.S. 940 (1987). However, we see nothing in the record that demonstrates that Appellant was prevented from rehabilitating Smith. Here, counsel's specific question was improper because it called for a legal conclusion: whether she would commit the crime of perjury. See Commonwealth v. Joseph, 848 A.2d 934, 940 (Pa.Super. 2004) (holding that trial court properly precluded questions that sought to elicit legal conclusions). Further, the question called for speculation because counsel did not ask Smith if she had committed perjury but rather if she would commit perjury. See Commonwealth v. Elliott, 80 A.3d 415, 446-47 (Pa. 2013) (holding that evidence that is speculative is properly excluded). This ruling did not prohibit counsel from rephrasing the question in a manner that neither was speculative nor called for a legal conclusion. However, counsel chose not to do so. Thus, Appellant's claim that the trial court prevented her from rehabilitating Smith lacks merit.
Accordingly, for the reasons discussed above, we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.