Com. v. Custis, L. (memorandum)

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J-S19035-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. LAWRENCE CUSTIS, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3223 EDA 2014 Appeal from the Judgment of Sentence November 7, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0008834-2013 BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED MAY 04, 2016 Lawrence Custis (“Custis”) appeals from the judgment of sentence entered after a jury convicted him of murder of the first degree, possession of an instrument of crime, and carrying a firearm in public in Philadelphia. 1 We affirm. The trial court set forth the relevant factual history in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein by reference. See Trial Court Opinion, 5/14/15, at 2-6. The shooting of Will Street (“the victim”) occurred in the Kingsessing section of southwestern Philadelphia (hereinafter “the Kingsessing neighborhood”). During the subsequent police investigation, witnesses told police that they had seen Custis walking away from the scene of the 1 See 18 Pa.C.S.A. §§ 2502(a), 907, 6108. J-S19035-16 shooting.2 Approximately five months after the shooting, the police obtained a warrant to arrest Custis. The police then made two unsuccessful attempts to arrest him at his last known residence, located in the Kingsessing neighborhood. Their efforts to locate Custis elsewhere in the neighborhood were likewise unsuccessful. The police later received a tip that Custis might be found in an area of northern Philadelphia, which is several miles from the Kingsessing neighborhood. Approximately 15 months after the shooting, acting on the tip, the police located and arrested Custis in a barber shop in northern Philadelphia. The Commonwealth charged Custis with the above-mentioned offenses, and a separate firearms offense, which was dismissed prior to trial. In November 2014, the matter proceeded to a jury trial. Notably (“Johnson”), to the this appeal, victim’s Commonwealth cousin, who had witness responded Kevin to Johnson the scene immediately after the shooting, testified on direct examination as to an incident he had witnessed in the Kingsessing neighborhood approximately three weeks prior to the shooting. Specifically, Johnson remarked that he had overheard Custis state to the victim during an argument, “I’m getting tired of this, this and that. I should have shot you last month.” 2 N.T., While more than one of the witnesses initially told police that Custis was the shooter, they later changed their testimony at trial. -2- J-S19035-16 11/4/14, at 88.3 Custis’s defense counsel immediately moved for a mistrial, objecting that the prosecution had improperly failed to disclose this inculpatory statement in discovery, which prejudiced the defense. After conducting a sidebar and inquiring of the prosecutor whether she knew that Johnson would offer this testimony, the trial court denied the mistrial Motion, crediting the prosecutor’s assertion that she did not know about Custis’s threat statement prior to trial, and therefore, could not have disclosed it in discovery.4 After the close of evidence, the trial court conducted a conference on the proposed jury charges, wherein the Commonwealth requested, over the defense’s objection, that the court give a flight/consciousness of guilt instruction (hereinafter “flight instruction”), based upon Custis’s alleged “flight and concealment” of his whereabouts following the shooting. The trial court found that the circumstances warranted a flight instruction, and so 3 For ease of reference, Johnson’s testimony in this regard is hereinafter referred to as “Custis’s threat statement.” 4 The trial court permitted both counsel to question Johnson, off the record and outside of the presence of the jury, as to whether he intended to introduce any other unexpected testimony. N.T., 11/4/14, at 96-99. On defense counsel’s later cross-examination of Johnson, counsel asked Johnson whether, prior to trial, he had informed the prosecutor about Custis’s threat statement. Id. at 113-14. Johnson replied that he did inform the prosecutor on the day before trial. Id. at 114-15. -3- J-S19035-16 instructed the jury.5 At the close of trial, the jury found Custis guilty of all counts. On November 7, 2014, the trial court sentenced Custis to life in prison without the possibility of parole. Custis timely filed a Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The trial court then issued a Pa.R.A.P. 1925(a) Opinion. Custis now presents the following issues for our review: 1. Did not the lower court err in denying defense counsel’s [M]otion for [a] mistrial where the Commonwealth 5 The trial court gave the following flight instruction: There was evidence, including the testimony of Officer [Kaliv] Ivy and[] members of the homicide unit and intelligence unit of the Philadelphia Police Department[,] that tended to show that [Custis] left his neighborhood[, i.e., the Kingsessing neighborhood,] after the shooting in this case. The Commonwealth contends that he fled or hid from police. The credibility, weight, and effect of this evidence is for you to decide. Generally speaking, when a crime has been committed and a person thinks he or she may be accused of committing it and he or she flees or conceals himself [], such flight or concealment is a circumstance tending to prove the person is conscious of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case. A person may flee or hide for some other motive and may do so even though innocent. Whether the evidence of flight or concealment in this case should be looked at as tending to prove guilt depends upon the facts and circumstances of this case and especially upon motives that may have prompted flight or concealment. You may not find [Custis] guilty solely upon the basis of flight or concealment. N.T., 11/6/14, at 147-48 (paragraph breaks omitted). mirrors the Pennsylvania Standard Criminal Jury flight/consciousness of guilt. See Pa.S.S.J.I (Crim.) 3.14. -4- This instruction Instruction on J-S19035-16 committed a discovery violation by failing to provide [Custis] with the statement of [Johnson,] who testified at trial that he heard [Custis] say to the decedent, “I should have shot you last month,” and [Johnson] also testified that he had relayed this information to the [D]istrict [A]ttorney prior to trial? 2. Did not the lower court err in instructing the jury that [Custis] fled from the police, and that such conduct tends to show that a person is conscious of guilt, where the instruction was improper because the police made only a minimal effort to find [Custis], and apprehended him, without incident, on their second attempt? 3. Did not the lower court err in overruling defense counsel’s objection during the prosecutor’s closing argument[,] where the prosecutor used the phrase several times “this is our community,” while exhorting jurors to do the “right thing,” which constituted an improper request that the jurors exact revenge for the crime in general[,] instead of relying on the facts of the case? Brief for Appellant at 5. Custis first argues that the trial court erred and deprived him of a fair trial by denying his Motion for a mistrial concerning the prosecution’s alleged discovery violation as to Custis’s threat statement. See id. at 26-27. Custis points out that Johnson specifically testified, on cross-examination, that he had informed the prosecutor, prior to trial, of Custis’s threat statement, and argues that this directly rebuts the prosecutor’s statement to the contrary during the sidebar conference. Id. at 27. According to Custis, he suffered unfair prejudice from the prosecution’s improper introduction of Custis’s threat statement, and he should be granted a new trial wherein the prosecution shall be required to disclose all inculpatory evidence. Id. at 30, 32. -5- J-S19035-16 It is well settled that “[a] mistrial is an ‘extreme remedy’ that is only required where the challenged event deprived the accused of a fair and impartial trial. The denial of a mistrial motion is reviewed for an abuse of discretion.” Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010) (citations omitted); see also Commonwealth v. Bozic, 997 A.2d 1211, 1226 (Pa. Super. 2010) (in the context of reviewing the denial of a mistrial motion, stating that “the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.” (citation omitted)). “The trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, assess the degree of any resulting prejudice.” Bozic, 997 A.2d at 1225 (citation and ellipses omitted). In its Pa.R.A.P. 1925(a) Opinion, the trial court addressed Custis’s claim, set forth the applicable law and relevant portions of the transcript, and determined that no discovery violation occurred, and a mistrial was thus unwarranted, because the prosecutor was not aware of Custis’s threat statement until Johnson testified at trial. See Trial Court Opinion, 5/14/15, at 7-10. In so ruling, the trial court relied upon this Court’s decision in Commonwealth v. Sullivan, 820 A.2d 795, 804 (Pa. Super. 2003) (holding that the Commonwealth does not commit a discovery violation when it fails to disclose to the defense inculpatory evidence that it does not possess and -6- J-S19035-16 of which it is unaware); see also Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (same). The trial court’s analysis is supported by the law and the record, and we therefore affirm on this basis in concluding that the court did not abuse its discretion by denying Custis the extreme remedy of a mistrial. See Trial Court Opinion, 5/14/15, at 7-10.6 Next, Custis contends that the trial court erred by giving the jury a flight instruction, over defense counsel’s objection, based upon Custis’s purported flight or concealment following the shooting. See Brief for Appellant at 33-36. Custis argues that there was no evidence that he had fled or concealed his whereabouts, and that the police had made only a “minimal effort” in attempting to locate him. See id. at 33; see also id. (pointing out that the police found Custis in Philadelphia, his “city of residence[,]” and “he was apprehended at [a] barber shop, an indication that he was merely following a normal routine.”). We review a challenge to a jury charge for an abuse of discretion. Commonwealth v. Greer, 951 A.2d 346, 354 (Pa. 2008); see also 6 To the extent that Custis argues that the trial court’s reliance upon Sullivan is misplaced, see Brief for Appellant at 29-30, we are unpersuaded by this claim. Sullivan is closely analogous to the instant case, and even if it was not, there is ample authority for the well-settled proposition stated in Sullivan that the prosecution does not violate the discovery rules in instances where it fails to provide the defense with inculpatory evidence that it does not possess or of which it is unaware. See Commonwealth v. Burke, 781 A.2d 1136, 1142 (Pa. 2001) (collecting the “unbroken line of decisions”); see also Collins, supra. Moreover, to the extent that Custis challenges the trial court’s crediting the prosecutor’s assertion at trial that she was not previously made aware of Custis’s threat statement, we decline Custis’s invitation to improperly substitute our determination for that of the trial court on the matter of the prosecutor’s veracity. -7- J-S19035-16 Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (stating that “[i]n examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.”). “A jury instruction is proper if supported by the evidence of record.” Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008). A flight instruction is properly given where “a person commits a crime, knows that he is wanted therefor, and flees or conceals himself[. S]uch conduct is evidence of consciousness of guilt, and may form the basis [of a conviction,] in connection with other proof from which guilt may be inferred.” Id. (citation and brackets omitted); see also Commonwealth v. Tha, 64 A.3d 704, 714 (Pa. Super. 2013). Here, the record reflects that the victim was shot and killed in the Kingsessing neighborhood. See N.T., 11/4/14, at 121-22, 130, 161-62. The shooting occurred in broad daylight, and several witnesses saw Custis walking away from the scene. Additionally, Gerald Harvey See id. at 81-83, 121-25, 145, 156. (“Harvey”), who knew Custis from the Kingsessing neighborhood, testified that on the day of the shooting, he encountered Custis on the street, and Custis confessed to Harvey that he had shot the victim because the victim’s brother previously gave Custis some bad pills. See id. at 161-62. When the warrant was issued for Custis’s arrest, his last known place of residence was in the Kingsessing neighborhood. -8- See N.T., 11/6/14, at J-S19035-16 62, 62, 141-43; see also N.T., 11/4/14, at 119-20, 161 (wherein two acquaintances of Custis stated that he lived on Woodland Avenue, located in the Kingsessing neighborhood, for at least several years). Custis was not apprehended until over a year after the shooting, despite the police having initially acted on the arrest warrant five months after the shooting, and the several attempts police made to find Custis in the Kingsessing neighborhood. N.T., 11/6/14, at 6-8, 141-43; see also Trial Court Opinion, 5/14/15, at 12 (stating that “[t]he Commonwealth presented compelling evidence that after the shooting took place, despite several attempts, various officers and detectives were unable to locate [Custis] anywhere in the vicinity of the scene of the crime.”). The police finally located and apprehended Custis in northern Philadelphia, the opposite side of the City from the Kingsessing neighborhood.7 See 11/6/14, at 6-8, 11-12; see also Trial Court Opinion, 5/14/15, at 12. Though no direct evidence was presented to establish Custis’s actual knowledge that he was being sought by the police for this crime, we conclude that the above-mentioned circumstantial evidence permits a reasonable inference that Custis was aware that the police were or would be looking for him in connection with the shooting, and therefore, the trial court was within its discretion in giving the jury a flight instruction. 7 See According to the Commonwealth, the area in which Custis was apprehended was eight miles, and a “45-minute car ride[, away,] from [Custis’s] home” in the Kingsessing neighborhood. Brief for the Commonwealth at 14. -9- J-S19035-16 Commonwealth v. Whack, 393 A.2d 417, 420 (Pa. 1978) (where the defendant was seen running from the scene of a stabbing, and was not seen again at his home or the places he usually frequented for approximately two months, holding that this was sufficient to establish a reasonable inference that the defendant had deliberately attempted to conceal his whereabouts to avoid prosecution); Commonwealth v. Tinsley, 350 A.2d 791, 793 (Pa. 1976) (stating that where “immediately after [the homicide,] and for a period of five days thereafter[, the defendant] abandoned his pattern of living and could not be located at those places where his regular pursuits would place him[,]” and “contacts at his residence … were to no avail … and no explanation [] [was offered] for this absence,” holding that “these circumstances raise a permissible inference that [the defendant] was aware that he was being sought by police and attempted to conceal his whereabouts to avoid apprehension for this crime.”); see also Trial Court Opinion, 5/14/15, at 12 (stating that “[t]he circumstances surrounding [Custis’s] evasion from law enforcement authorities is sufficient to infer [his] knowledge that he was wanted in connection with the crime and warranted [an] instruction to the jury that such conduct “may form a basis, in connection with other proof, from which guilt may be inferred.” (emphasis in original, quotation marks omitted)). Finally, Custis asserts that he is entitled to a new trial because the trial court erred by overruling the objection of his counsel to portions of the - 10 - J-S19035-16 prosecutor’s closing argument, wherein she referred to “our community.” See Brief for Appellant at 37-41. Custis contends that the prosecutor’s attacks were of a sort specifically condemned by Pennsylvania’s [appellate] courts, that is, by urging the jury to “do the right thing” by “our community,” she invited them to see themselves as victims and exact revenge. This appeal to the emotions encouraged the jurors to shift their inquiry away from the case before them, and thus prejudiced [Custis]. Id. at 40; see also id. at 39 (citing, inter alia, Commonwealth v. Revty, 295 A.2d 300, 302 (Pa. 1972) (stating that “the prosecutor’s unique position as both an administrator of justice and an advocate gives [her] a responsibility not to be vindictive or attempt in any manner to influence the jury by arousing their prejudices.”)). With regard to a claim of prosecutorial misconduct in a closing statement, it is well settled that [t]he prosecutor is allowed to vigorously argue h[er] case so long as h[er] comments are supported by the evidence or constitute legitimate inferences arising from that evidence. In considering a claim of prosecutorial misconduct, our inquiry is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect one. Thus, a prosecutor’s remarks do not constitute reversible error unless their unavoidable effect … was to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. *** In determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel’s conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair. - 11 - J-S19035-16 Commonwealth v. Ragland, 991 A.2d 336, 340-41 (Pa. Super. 2010) (citations and brackets omitted); see also Commonwealth v. Judy, 978 A.2d 1015, 1019-20 (Pa. Super. 2009). In its Opinion, the trial court addressed Custis’s claim, set forth the relevant excerpts of the prosecutor’s closing argument, and determined that none of the prosecutor’s remarks during closing were inappropriate, nor did they prejudice the jury to develop a fixed bias and hostility toward Custis. See Trial Court Opinion, 5/14/15, at 14-16. We agree with the trial court’s determination, and affirm on this basis in rejecting Custis’s claim of prosecutorial misconduct. See id.; see also Ragland, supra. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/4/2016 - 12 - Circulated 04/04/2016 04:01 PM

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