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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    XAVIER BRASWELL,                           :
                                               :
                       Appellant               :   No. 1893 EDA 2018


         Appeal from the Judgment of Sentence Entered, May 21, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0008185-2016.

BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                       FILED SEPTEMBER 11, 2019

        Xavier Braswell appeals from the judgment of sentence imposed

following his conviction of murder and related firearms offenses.1 We affirm.

        On the night of July 24, 2016, Braswell and several of his associates

were at a nightclub in Philadelphia when certain of them became involved in

multiple fights that broke out with another group, which included Shelton

Merritt. During one of those fights, Braswell’s cousin, Alex Rice, was struck

with a bottle, causing him to fall to the ground. Merritt and his group left the

club and walked to their vehicle a few blocks away.           Before the vehicle

departed, Braswell approached it, and confronted the occupants.         Braswell


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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 2502(a), 6108, 907(a).
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pulled out a 9 millimeter semi-automatic shotgun and pointed it at the

individual who exited the front passenger seat, demanding that he identify

who struck Rice with the bottle. Braswell pulled the trigger but the gun failed

to fire. The occupants of the vehicle then fled, except for Merritt, who was

seated in the third row of the vehicle. He was unable to escape from the

second row door because Braswell had kicked it shut. Braswell then fired nine

times into the vehicle, fatally injuring Merritt, who sustained six gunshots to

his head, neck and back.

      Braswell was arrested and charged with murder and related firearms

offenses. His first trial ended in a mistrial. Following a retrial, a jury convicted

Braswell of first-degree murder and the firearms offenses.         The trial court

sentenced him to life in prison on the murder conviction, and a concurrent

aggregate term of one to two years of imprisonment on the firearms

convictions.   Braswell filed a post-sentence motion, which the trial court

denied. Braswell filed a timely notice of appeal, and both he and the trial

court complied with Pa.R.A.P. 1925.

      Braswell raises one issue for our review: “Did the trial court cause

structural error by repeatedly interjecting its comments during witness

testimony and chastising defense counsel in front of the jury, [and] deny

[Braswell] a fair trial?” Appellant’s Brief at 2 (unnecessary capitalization and

punctuation omitted).




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        Braswell contends that “the trial court repeatedly admonished defense

counsel in front of the jury, while editorializing and testifying in the process,

interjected comments and questions during witness questioning, and directed

witness questioning.” Appellant’s Brief at 9. Braswell claims that the trial

court’s actions “imputed its bias and opinion of the case on the jury,” and that

its “improper commentary also served to bolster the credibility of the

Commonwealth’s witnesses.”           Id.   Braswell argues that, because the trial

court “overstepped its role of maintaining order in the court room and

advocated for the Commonwealth,” he is entitled to a new trial. Id. at 15.

        In its Pa.R.A.P. 1925(a) opinion, the trial court determined that the issue

was waived because Braswell’s counsel did not object to the trial court’s

comments and rulings during trial. See Trial Court Opinion, 8/6/18, at 8. In

response, Braswell acknowledges that, generally, “such a claim must be

preserved by counsel’s contemporaneous objection at trial.” Appellant’s Brief

at 8.    However, Braswell argues that counsel’s failure to object does not

prevent appellate review under all circumstances. Id. In support, he relies

on Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985), which was

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002).2

____________________________________________


2Braswell also directs our attention to two 2017 non-precedential unpublished
memorandum decisions by this Court. While Pa.R.A.P. 126 was recently
amended to permit parties to cite non-precedential unpublished memorandum



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       In Hammer, the trial court repeatedly interrupted defense counsel

during his direct examination of the defendant and defense witnesses to ask

prosecutorial-style questions, failed to rule on defense objections, and

bolstered the Commonwealth’s case with his comments and questions.

Hammer, 494 A.2d at 1061-64. Defense counsel failed to object to these

actions and omissions at trial, but raised them in post-trial motions. The trial

court ruled that the defendant had waived those issues. On appeal, this Court

declined to apply the waiver doctrine, reasoning that in certain circumstances,

where a timely objection would be a futile, and possibly detrimental exercise

in legal procedure, a strict enforcement of the waiver doctrine would not be

constructive. Id. at 1059, n.4.

       However, Hammer does not stand for the proposition that claims of

judicial impropriety need not be raised before the trial court.          Rather,

Hammer provides that, in limited circumstances, a party may forgo raising

allegations of judicial misconduct during trial, and may instead raise such

claims for the first time in post-trial motions.       As our Supreme Court

explained:

       Hammer did not mark the end of the waiver doctrine in cases of
       judicial impropriety. To the contrary, the general rule remains
       that a party waives an issue concerning perceived trial court error,
       if the party fails both to preserve the issue with a timely and
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decisions of this Court for their persuasive value, the amendment pertains to
decisions filed after May 1, 2019. See Order Amending Rule 126 of the
Pennsylvania Rules of Appellate Procedure, No 278 (Pa. 2019). The cases
cited by Braswell have no persuasive authority.

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       specific objection at trial and present it in post-trial motions.
       Thus, Hammer provides a limited exception to the waiver
       doctrine. Where it appears from all the circumstances that a
       timely objection to perceived judicial misconduct would be
       meaningless, a party may choose to raise the issue for the
       first time at post-trial motions to preserve it for appellate
       review.

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1126 (Pa. 2000)

(emphasis added).

       Here, Braswell filed a post-trial motion; however, he did not raise any

claim regarding judicial impropriety in that motion. Instead, he raised this

claim for the first time in his Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Accordingly, he failed to preserve this claim for our

review. See id.3

       Judgment of sentence affirmed.




____________________________________________


3 We observe that a stern and short-tempered judge’s ordinary efforts at
courtroom      administration,    including    expressions     of     impatience,
dissatisfaction, annoyance, and anger, are within the bounds of what
imperfect men and women, even after having been confirmed as judges,
sometimes display. See Commonwealth v. Rayner, 153 A.3d 1049, 1060
(Pa. Super. 2016) (holding that judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge). Thus,
even if Braswell had preserved his claim for our review, we would have
concluded that the trial court’s challenged remarks did not create an
atmosphere of unfairness that constituted grounds for a mistrial in this case.
See Commonwealth v. Jones, 683 A.2d 1181, 1191 (Pa. 1996).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/19




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