J-S40021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LARRY WILLIAMS

                        Appellant                    No. 46 EDA 2014


         Appeal from the Judgment of Sentence December 2, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007973-2012


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LARRY WILLIAMS

                        Appellant                  No. 2965 EDA 2014


           Appeal from the Judgment of Sentence June 5, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007973-2012


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                             FILED JULY 06, 2016

     Appellant, Larry Williams, appeals from the aggregate judgment of

sentence of 17 to 34 years’ incarceration, imposed after he was convicted, in

two separate trials, of conspiracy to commit murder, conspiracy to commit
J-S40021-16


aggravated assault, and recklessly endangering another person (REAP).1

After careful consideration, we affirm Appellant’s convictions, affirm his

December 2, 2013 judgment of sentence, but vacate Appellant’s June 5,

2014 judgment of sentence and remand for re-sentencing.

        The somewhat convoluted factual and procedural history of this case is

as follows.      Appellant was arrested and charged with, inter alia, the

aforementioned offenses.         The facts contained in the certified record from

the first trial reveal that on December 2, 2011, the victim, Eric Brooks-

Blanding, was shot in both knees.              N.T., 9/24/13, at 51-52.   Philadelphia

Police Officer Matthew Crosson testified that he was called to the shooting

scene, where the victim related that he was shot by a black male wearing a

gray hoodie and camel jacket, and known as “Lo.” Id. at 62-63. The victim

stated that the shooter fled in a Mercury Milan. Id.

        The victim additionally testified that he was shot three times, including

twice in the knees, but denied that it was Appellant who shot him. Id. at

89.    The victim denied being shot by Appellant, and averred that he was

shot by “a dark skin[ned] boy.                 He looked like he was Jamaican or

something.” Id. at 91. The victim repeatedly denied giving any statements

to the police identifying Appellant as the shooter. Id. at 100-116. Amid his

denials, the victim stated, “I didn’t accuse [Appellant].           I was forced to
____________________________________________


1
    18 Pa.C.S.A. §§ 903 (to commit 2502 and 2702) and 2705, respectively.




                                           -2-
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accuse him.”    Id. at 124.   The Commonwealth asked the victim “[w]hat

happens to snitches?” and the victim responded, “[g]et stitches.”      Id. at

128.

       Brittney Romano testified to being at a 7-11 store the morning of the

shooting. Ms. Romano identified Appellant as also being present at the 7-

11. Id. at 150. After leaving the 7-11, Ms. Romano saw Appellant on the

street corner; she identified him in court as “Lo.” Id. at 154. Ms. Romano

related that Appellant “was cursing” and “talking about” Ms. Romano, which

led her to call the victim. Id. at 154-156. Ms. Romano testified that when

the victim appeared, he started yelling at Appellant, who then “ran down the

block.” Id. at 157. After Appellant fled, Ms. Romano and the victim began

to argue when “a car pulled up and four boys hopped out and I heard

gunshots.” Id. at 158. Ms. Romano identified the car as a Mercury. Id. at

167.

       Alisa Bull testified to being with Ms. Romano and the victim on the day

of the shooting. She explained that she did not want to testify or come to

court, and that her ex-boyfriend called her from jail and told her not to

appear in court. N.T., 9/25/13, at 7-8. Nonetheless, Ms. Bull stated that

she was with Ms. Romano and the victim when “two people got out of the

car” and “started shooting at us.” Id. at 14.

       Philadelphia Police Officer Chris Casee testified to responding to the

shooting scene and sending Ms. Romano and Ms. Bull to headquarters to be


                                     -3-
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interviewed. Id. at 64. Officer Casee then went to the hospital where he

interviewed the victim, who was “fully cooperative.”            Id. at 85.   Officer

Casee testified that he showed the victim a photo array from which the

victim identified Appellant as being “involved in the incident.”        Id. at 94.

Officer Casee stated that the victim “actually circled the photo of [Appellant],

wrote on the photo itself this is LO. Signed his name and wrote the date and

time.”   Id.    Officer Casee also testified that Ms. Romano “came in on her

own and was willing to speak with me.” Id. at 97.

       Philadelphia Detective Edward Horger also testified to interviewing Ms.

Romano and Ms. Bull on the day of the shooting and taking the women’s

statements. Id. at 122, 127. He stated that Ms. Romano was not hostile or

uncooperative when she described the individual who approached her at the

7-11     as    “half-black   …   skinny,    kind   of   short    …   about    5’7”.”

Id. at 125.

       On September 30, 2013, a jury convicted Appellant of REAP, with a

mistrial declared on conspiracy and assault charges. On December 2, 2013,

the trial court sentenced Appellant to 1 to 2 years’ incarceration. Appellant

filed a notice of appeal on December 30, 2013. In the meantime, Appellant

was re-tried as a result of the mistrial.

       The facts of record from the second trial reveal that Philadelphia Police

Officer Crosson once again testified to reporting to the shooting scene on

December 2, 2011.        Officer Crosson testified that the victim gave him a


                                       -4-
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statement, telling him where the shooter “stayed,” but that the shooter had

fled in a black Mercury Milan. N.T., 2/26/14, at 47-48, 54-55. The victim

told Officer Crosson that the shooter was known as “Lo.” Id. at 51.

     The victim testified again and stated he remembered “what happened,

but I didn’t give a statement.” Id. at 58. He testified that he was dating

Brittney Romano at the time of the shooting. Id. at 67. He denied telling

police that “Lo” set up the shooting, and did not remember describing “Lo”

as a “light skinned” black male with braids, approximately 5’9”. Id. at 79.

The victim testified that he “didn’t see the people” who shot him, and was

“telling the truth about everything.”   Id. at 97-98, 105.   The victim also

stated that being in court and testifying against Appellant would make him a

snitch, but that he was not protecting Appellant. Id. at 99, 107.

     Ms. Bull also testified at the second trial. She remembered the day of

the shooting and speaking with the police afterward. N.T., 2/27/14, at 18.

She testified that the victim was dating Ms. Romano at the time, and that

she and Ms. Romano were in the 7-11 the morning of the shooting. Id. at

19-20. Ms. Bull did not see Appellant in the 7-11. Id. at 21-22. After Ms.

Bull and Ms. Romano left the 7-11, the victim appeared and was yelling at a

man from the 7-11 about a “fight in jail.”     Id. at 31.    The victim then

returned to where Ms. Bull and Ms. Romano were on the street when the

shooting began.   Id. at 34-36. Afterward, Ms. Bull spoke with the police.

Id. at 38.    She explained that she was testifying pursuant to a bench


                                    -5-
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warrant and did not “want to come to court.”       Id. at 41.    She said she

“didn’t want to put the wrong person in jail” and “d[id]n’t care about being

called a snitch.” Id. at 43, 46. Ms. Bull explained that “two guys got out [of

a Mercury Milan] and I just seen guns and that’s it and I ran.” Id. at 67.

Ms. Bull stated that she did not remember what she said to police because

“it was two years ago.” Id. at 72.

      Philadelphia Police Detective Horger testified to arriving on the scene

of the shooting and interviewing Ms. Bull, who was cooperative. Id. at 79.

Ms. Bull told Detective Horger that the shooter was the passenger in the

Mercury Milan, who was “black, light-skin, wearing a white T shirt and khakis

and a snow hat that had strings.” Id. at 85. Detective Horger testified that

an hour before the second trial, Ms. Bull told him “she wasn’t going to say

anything, this happened a few years ago, she still had to live there, she

didn’t want to say anything.” Id. at 87.

      After testimony from Detective Casee regarding his unsuccessful

attempts to contact Ms. Romano to appear to testify at the second trial, the

trial court granted the Commonwealth’s motion to declare Ms. Romano

unavailable to testify at the second trial.    Id. at 103.      In lieu of Ms.

Romano’s testimony, an assistant district attorney, Ms. Tracey Gaydos, read

Ms. Romano’s testimony from the first trial, in which, inter alia, she

identified Appellant as being at the 7-11 on the day of the shooting, and




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then out on the street “cursing” and yelling with the victim just prior to the

shooting. Id. at 108, 112-113.

        Detective Casee testified to investigating the shooting and interviewing

the victim at the hospital.       Id. at 60.     Detective Casee stated he “started

developing possible suspects based on the information that [the victim] had

given me.”     Id. at 60-01.      Thereafter, Detective Casee showed the victim

photos, from which the victim identified Appellant. 2         Id. at 61.   Detective

Casee interviewed Ms. Romano five days after the shooting, and she

identified Appellant from a photo array as the individual who engaged in the

argument outside the 7-11. Id. at 95.

        On March 4, 2014, a jury convicted Appellant of conspiracy to commit

murder and conspiracy to commit aggravated assault.3             On June 5, 2014,

the trial court sentenced Appellant to 17 to 34 years’ incarceration for

conspiracy to commit murder, and 10 to 20 years’ incarceration for

conspiracy to commit aggravated assault, with both sentences to run

concurrent to each other and to Appellant’s December 2, 2013 sentence of 1

to 2 years’ incarceration for REAP. Appellant filed a post-sentence motion

____________________________________________


2
  Detective Casee testified that the victim also identified another male,
Lamar Osborne, known as “Marty,” as being involved in the shooting, and
who at the time of the second trial had a warrant out for his arrest but had
not been taken into custody. Id. at 61-63.
3
    Appellant was acquitted of aggravated assault.




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seeking an arrest of judgment, new trial, and reconsideration of sentence on

June 12, 2014, as well as an amended post-sentence motion on August 28,

2014.     The trial court denied all of Appellant’s post-sentence motions on

October 14, 2014. Appellant filed a second notice of appeal on October 15,

2014.     On December 2, 2014, this Court granted Appellant’s request to

consolidate his appeals.4

        On appeal, Appellant presents five issues for our review.

              [1.]      Did the [t]rial [c]ourt abuse its discretion in
                        denying [A]ppellant’s pretrial motion to
                        dismiss the charges under Pa.R.C.P.
                        600(A)(2), where more than three hundred
                        sixty-five (365) days had elapsed between
                        the filing of the complaint and the
                        commencement of the first trial, and further
                        abuse[d] its discretion in refusing to grant
                        [A]ppellant’s right to a prompt trial?

              [2.]      Did the [t]rial [c]ourt abuse its discretion in
                        denying       [A]ppellant’s     post-sentence
                        motions seeking an arrest of judgment on
                        all charges where there was insufficient
                        evidence to support the convictions in both
                        trials, absent the consideration by the jury
                        of impermissibly admitted out-of-court
                        statements as substantive evidence, when
                        the jury was not properly instructed as to
                        the consideration of the statements where
                        there was no proof declarants of the
                        statements      adopted     the   out-of-court
                        statements[?]

____________________________________________


4
  Trial court did not direct compliance with Pennsylvania Rule of Appellate
Procedure 1925. The docket states “Opinion Not Filed – Judge No Longer
Sitting.” Docket Entry, 4/7/15.



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              [3.]      Did the [trial] court commit reversible error
                        entitling [A]ppellant to a new trial by
                        usurping the function of the jury as to
                        credibility of witnesses, when it prejudicially
                        asked the victim whether he was “capable
                        of telling the truth about anything?”

              [4.]      Did the [trial] court impose an illegal
                        sentence requiring this [C]ourt to remand
                        for a new sentencing hearing, when there
                        was insufficient evidence that the victim
                        sustained serious bodily injury?

              [5.]      Did the [trial] court abuse its discretion by
                        imposing a sentence that was manifestly
                        excessive,     unreasonable     under     the
                        circumstances and otherwise violated a
                        particular provision of the Sentencing Code
                        or was contrary to the fundamental norms
                        underlying the sentencing process; and []
                        did not the lower court abused [sic] its
                        discretion by denying [A]ppellant’s post-
                        sentence motion raising this claim?

Appellant’s Brief at 3-4.

       In his first issue, Appellant argues that he was brought to trial in

violation of his prompt trial rights as prescribed by Pennsylvania Rule of

Criminal Procedure 600(A).5 In addressing these issues, we adhere to the

____________________________________________


5
  Effective July 1, 2013, the former Rule 600 was rescinded and a new
version was adopted which “clarified the provisions of the rule in view of the
long line of cases that have construed the rule.” Pa.R.Crim.P. 600 cmt. The
new rule consolidates the former distinction between excludable and
excusable time in the calculation of an adjusted run date. Id. at 600(C)(1).
As the trial court heard and considered Appellant’s Rule 600 claim on
September 24, 2013, the claim is raised under the current Rule 600,
although our case law referencing the former Rule 600 is applicable to our
analysis of this case.



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following standard and scope of review.       “When reviewing a trial court’s

decision in a Rule 600 case, an appellate court will reverse only if the trial

court abused its discretion.”   Commonwealth v. Bradford, 46 A.3d 693,

700 (Pa. 2012).

                  Judicial discretion requires action in conformity
            with law, upon facts and circumstances judicially
            before the court, after [a] hearing and due
            consideration. An abuse of discretion is not merely
            an error of judgment, but if in reaching a conclusion
            the law is overridden or misapplied or the judgment
            exercised is manifestly unreasonable, or the result of
            partiality, prejudice, bias, or ill will, as shown by the
            evidence or the record, discretion is abused.

                  The proper scope of review … is limited to the
            evidence on the record of the Rule 600 evidentiary
            hearing, and the findings of the trial court. An
            appellate court must view the facts in the light most
            favorable to the prevailing party.

                                       …

                   So long as there has been no misconduct
            on the part of the Commonwealth in an effort
            to evade the fundamental speedy trial rights of
            an accused, Rule 600 must be construed in a
            manner consistent with society’s right to
            punish and deter crime. In considering these
            matters …, courts must carefully factor into the
            ultimate equation not only the prerogatives of the
            individual accused, but the collective right of the
            community to vigorous law enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc) (citations omitted) (emphasis added), affirmed, 44 A.3d 655 (Pa.

2012).




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       Instantly, Appellant asserts that he was not tried until 624 days had

passed from the January 13, 2012 filing of the criminal complaint against

him, until the commencement of his first trial on September 25, 2013.6

Appellant’s Brief at 12-13. Appellant concedes that the time lapse was due

to “judicial delay,” and bases his argument on the supposition that “there is

absolutely no justification for [A]ppellant not being tried until 624 days after

the filing of the complaint on the primary basis of ‘judicial delay.’ This Court

must not condone the [Commonwealth] ‘sitting on its hands’ and taking no

active role in attempting to secure another judge who could have timely

tried [A]ppellant’s case under Rule 600.” Id. at 15-16.

       In response, the Commonwealth counters that it was “not required to

prove its diligence during a delay caused by the trial court’s crowded

docket.” Commonwealth’s Brief at 11. It further cites our Supreme Court’s

decisions in Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991), and

Commonwealth v. Smith, 569 A.2d 337, 340 (Pa. 1990), as support for its

contention that “the circumstances that could place an obligation on the

Commonwealth to seek another judge are limited, and do not include delays

caused in the normal course by busy court dockets.” Id. at 18-19. Upon

review, we agree with the Commonwealth.


____________________________________________


6
 Although the difference is negligible, we calculate 621 days from January
13, 2012 to September 25, 2013.



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      Appellant argued this issue before the trial court at the September 24,

2013 Rule 600 hearing. Appellant’s counsel asserted that “when there’s a

very long judicial delay, the Commonwealth in my opinion should have a bit

of a duty, a big duty I should say, to work with criminal listings, court

administration, whatever you want to call it, to see if there’s an earlier date

within the adjusted run date to bring the defendant to trial so that he is

brought to trial within the adjusted run date.” N.T., 9/24/13, at 6-7. The

trial court responded to this argument and referenced its busy caseload as

follows.

                  Well, let me just add that if the Commonwealth
            could do that then they could do more than judges.
            They won’t listen to me. They don’t want to hear
            from me in criminal listings. We can call them. They
            don’t even want to talk about it. There’s nobody
            who will even listen to that.

Id. at 7.

      Appellant’s counsel nevertheless continued, “the biggest chunk of time

[of] 282 days [is] when Your Honor continued the case from December 12 th

to September 20th because of Your Honor’s calendar which I’m sure was very

crowded and you had many trials.” Id. at 8. Appellant’s counsel and the

trial court thereafter engaged in the following exchange.

            THE COURT:           Because [Philadelphia C]ourt
            administration probably decided where I was going
            to be and what I was going to do. They don’t even
            tell me in advance when I’m not going to be here. I
            don’t find out until I come into the courtroom and
            the crier tells me you’re not here that week. Keep
            going.


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              COUNSEL: I’m just pointing out Your Honor that
              judicial delay is 30 days maybe because you had
              another jury in progress or the judge had a vacation.
              Thirty days I can live with, a 30-day continuance.
              But when you get a 282 day gap this is one I feel
              something has to be done by either the court and
              with the assistance of the DA or the DA on its own,
              something should be done.

              THE COURT: Or you should take this up with the
              [S]uperior [C]ourt. This is their rule. They run this
              court.

              COUNSEL: If I don’t win this case, Your Honor,
              that’s going to be a big issue.

              THE COURT: I think that would be a good issue for
              you to take up with them.

              COUNSEL: That would be my argument. I think
              maybe it would be expeditious to do one argument
              at a time.

              THE COURT:       Your motion is denied.

Id. at 8-9.

      Preliminary, we note that we do not “run [the trial] court.”        In

addition, we recognize that the Superior Court is an error-correcting court.

Commonwealth v. Flowers, 113 A.3d 1246, 1252 (Pa. Super. 2015). We

further acknowledge that because the Commonwealth cannot control the

calendar of a trial court, delay occasioned by the court’s unavailability –

which is not disputed in this case – is usually excusable. Commonwealth

v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011) (citation omitted).

Similarly, delays caused by administrative decisions of the court, decisions

over which the Commonwealth has no control, are generally excused. Id.

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         Here, the record indicates that the majority of the delay occasioned in

this case – the 282 days identified by Appellant7 – was attributable to the

heavy caseload of the Criminal Division of the Philadelphia Court of Common

Pleas.     We empathize with Appellant’s argument, however, under existing

case law, we discern no abuse of discretion by the trial court in denying

Appellant’s Rule 600 motion where neither the Commonwealth nor the trial

court was obligated to, or could control the court calendar.

         In his next issue, Appellant assails the sufficiency of the evidence. “A

claim impugning the sufficiency of the evidence presents us with a question

of law.”     Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super.

2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).             Our

standard and scope of review is as follows.

              The standard we apply in reviewing the sufficiency of
              the evidence is whether viewing all the evidence
              admitted at trial in the light most favorable to the
              verdict winner, there is sufficient evidence to enable
              the fact-finder to find every element of the crime
              beyond a reasonable doubt. In applying the above
              test, we may not weigh the evidence and substitute
              our judgment for the fact-finder. In addition, we
              note that the facts and circumstances established by
              the Commonwealth need not preclude every
              possibility of innocence. Any doubts regarding a
              defendant’s guilt may be resolved by the fact-finder
              unless the evidence is so weak and inconclusive that
              as a matter of law no probability of fact may be
____________________________________________


7
  To clarify, when these 282 days are subtracted from the 624 days total
asserted by Appellant, he was tried within 342 days, and thus within the
confines of Pennsylvania Rule of Criminal Procedure 600.



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           drawn from the combined circumstances.           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
           record must be evaluated and all evidence actually
           received must be considered. Finally, the [finder] of
           fact while passing upon the credibility of witnesses
           and the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

     After review of Appellant’s argument within his brief, we decline to

reach the merits of Appellant’s sufficiency claim because Appellant’s

argument is vague and underdeveloped.       Appellant generally asserts that

the evidence was insufficient to sustain his convictions “absent the improper

admission of and consideration by the jury of out-of-court statements.”

Appellant’s Brief at 16-20. Nowhere in his argument does Appellant mention

the three offenses of which he was convicted, nor the elements of these

three offenses.   Appellant simply and broadly asserts, without naming the

witnesses or citing their testimony, that the trial court erred by permitting

the Commonwealth “to introduce and confront the victim and other two

witnesses with their alleged prior out-of-court statements for consideration

by both juries as substantive evidence.” Id. at 18. Appellant has failed to

specify or detail how, in either of his two trials, which out-of-court

statements, by whom, and where in the record, the errors occurred.

Although we could make inferences from Appellant’s general argument and

                                   - 15 -
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our reading of the record, to take such liberty would be improper.          See

Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (stating

“[w]hen a court has to guess what issues an appellant is appealing, that is

not enough for meaningful review[]”), appeal denied, 919 A.2d 956 (Pa.

2007). Moreover, with regard to claims pertaining to the sufficiency of the

Commonwealth’s evidence, we have stated as follows.

            “The failure to develop an adequate argument in an
            appellate brief may [ ] result in waiver of the claim”
            under     Pa.R.A.P.   2119.     Commonwealth        v.
            Gonzalez, 415 Pa.Super. 65, 608 A.2d 528, 531
            (1992). In this case, [appellant] has presented no
            argument explaining how he was affected …, and
            includes no citation to the record to support his
            argument. We shall not develop an argument for
            [appellant], nor shall we scour the record to find
            evidence to support an argument; consequently, we
            deem this issue waived.

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en

banc), appeal denied, 982 A.2d 509 (Pa. 2009).

      Instantly, Appellant’s sufficiency argument is underdeveloped and fails

to comply with Pennsylvania Rule of Appellate Procedure 2119(a)-(d), such

that we would need to “scour the record” to advance it.        Id. We will not

further develop Appellant’s argument for him.       Accordingly, his sufficiency

issue is waived.

      In his third issue, Appellant asserts that the trial court erred in failing

to grant a mistrial in his second trial where the trial court asked the victim

whether he was “capable of telling the truth about anything?”        Appellant’s


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Brief at 21, citing N.T., 2/26/14, at 98. Appellant asserts that the trial court

erred by    “injecting   its   own   opinion”   and   thus   “severely   prejudiced

[A]ppellant,” entitling him to a new trial. Id. at 22.

      Our standard of review is as follows.

            A motion for a mistrial is within the discretion of the
            trial court. A mistrial upon motion of one of the
            parties is required only when an incident is of such a
            nature that its unavoidable effect is to deprive the
            appellant of a fair and impartial trial. It is within the
            trial court’s discretion to determine whether a
            defendant was prejudiced by the incident that is the
            basis of a motion for a mistrial. On appeal, our
            standard of review is whether the trial court abused
            that discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003) (citations

and footnote omitted).

      The exchange referenced by Appellant occurred during his second trial.

The Commonwealth was questioning the victim as follows.

            COMMONWEALTH:              And then you heard the shot.

            VICTIM:                    … I heard the shot. I didn’t
                                       see them, I didn’t hear no
                                       cars or nothing.

            COMMONWEALTH:              When you saw [Appellant]
                                       and Marty, they were coming
                                       from the one-way sign, is
                                       that what you are saying?


            DEFENSE COUNSEL:           Objection.

            THE COURT:                 What is your objection?




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          DEFENSE COUNSEL:   When you saw [Appellant]
                             and Marty. He never said
                             that he saw [Appellant].

          VICTIM:            I said the people already was
                             there running down the
                             street while I was running on
                             the porch.

          THE COURT:         Is he changing it now, what
                             is he saying now?

          VICTIM:            I didn’t change it.

          COMMONWEALTH:      [Victim], where was Marty
                             and where was [Appellant]
                             when you were shot?

          VICTIM:            They w[ere]n’t there.

          COMMONWEALTH:      They weren’t there now?

          VICTIM:            No.

          COMMONWEALTH:      They weren’t running from
                             where the one way, where
                             the one-way sign is?

          VICTIM:            No, that’s where the people
                             that were shooting at me
                             started running.

          COMMONWEALTH:      But that was not Marty and
                             [Appellant]?

          VICTIM:            No.

          COMMONWEALTH:      So what you just said five
                             minutes ago, two minutes
                             ago, maybe even less, is
                             different?




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          VICTIM:            No, I’m just saying [that]
                             because that’s what you
                             want me to say.

          COMMONWEALTH:      I want you to say the truth.

          VICTIM:            I didn’t see the people that
                             really shot me, I’m just
                             telling you where I think it’s
                             coming from. You asked me
                             was Marty and them standing
                             right here, and I said no the
                             people that shot me was
                             coming[.]

          COMMONWEALTH:      Well,   I    asked   you       if
                             [Appellant] and Marty—

          VICTIM:            Were standing right here—

          COMMONWEALTH:      -- were standing right here
                             and you said, no, they were
                             coming from where the one
                             way is … That’s what you
                             said two and a half minutes
                             ago.

          VICTIM:            I meant they. I believe I did
                             say, tell – I mean the people
                             that were shooting at me.

          THE COURT:         Are you capable of telling
                             the truth about anything?

          DEFENSE COUNSEL:   Objection, Your Honor.

          THE COURT:         Are you?

          VICTIM:            I’m telling the truth about
                             everything.

          THE COURT:         Continue.

          COMMONWEALTH:      Thank you, Your Honor.

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N.T., 2/26/14, at 96-98 (emphasis added). Thereafter, Appellant repeated

his objection and requested a mistrial.        The trial court noted that it

“understood” the objection and denied the request. Id. at 118.

      In Commonwealth v. Ables, where an appellant contended that a

new trial should be granted because the trial judge acted improperly by

questioning witnesses and acted as a prosecutorial advocate, we examined

this issue as follows.

            A new trial is required only when the trial court’s
            questioning is prejudicial, that is when it is of such a
            nature or substance or delivered in such a manner
            that it may reasonably be said to have deprived the
            defendant of a fair and impartial trial. It is always
            the right and sometimes the duty of the trial judge
            to interrogate witnesses. However, questioning from
            the bench should not show bias or feeling or be
            unduly protracted. ….

            The trial judge stated that his questioning was to
            clarify [the witness’s] testimony.        While such
            questioning is better left to the trial attorneys, we
            find that the questioning merely clarified [the
            witness’s] testimony. We see no indication in the
            record that the trial judge’s questioning of witnesses
            deprived appellant of a fair and impartial trial, and
            conclude the lower court’s actions were proper.

Commonwealth v. Ables, 590 A.2d 334, 341 (Pa. Super. 1991) (citations

omitted), appeal denied, 597 A.2d 1150 (Pa. 1991).

      Additionally, in Commonwealth v. Purcell, we quoted our Supreme

Court and explained as follows.




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          Concerning the questioning of a witness by the trial
          court, the Supreme Court has recently commented:

               ‘Witnesses should be interrogated by the judge
               only when he conceives the interest of justice
               so requires. It is better to permit counsel to
               bring out the evidence and clear up disputed
               points on cross-examination unaided by the
               court; but where an important fact is indefinite
               or a disputed point needs to be clarified, the
               court may see that it is done by taking part in
               the examination.... Judges should refrain from
               extended examination of witnesses; they
               should not, during the trial, indicate an opinion
               on the merits, a doubt as to the witnesses’
               credibility, or do anything to indicate a leaning
               to one side or the other, without explaining to
               the jury that all these matters are for them.’

               [Commonwealth v. Myma, 123 A. 486, 487
               (Pa. 1924).]

               That does not mean that a trial judge
               must sit idly by, a mere evidential
               technician, silenced in the face of the
               impossible, absurd, ambiguous or the
               frivolous. Nor should he leave unasked or
               unanswered questions that center the
               matter or amplify relevant testimony on
               the question or issue. It is a false and
               dangerous neutrality that would allow loss of
               liberty or property when another question at
               further inquiry would gain the fact, expose a
               false or improper premise, interest or bias of a
               witness, or correct insinuation unfounded in
               the record. It is not partisan to maintain the
               wheel, steering evenly, between competing
               and often aggressive counsel, anxious to set
               the course. Nor should a judge yield the gavel
               to zealous partisans or allow counsel to impose
               their contentions by contumelious conduct.
               When others than the trial judge control the
               proceedings, one side has lost their day in
               court.

                                 - 21 -
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          Commonwealth v. Roldan, 572 A.2d 1214, 1215
          (Pa. 1990), quoting [] Myma, [supra]. “A new trial
          is required ... only when the trial court’s questioning
          is prejudicial, ‘that is when it is of such nature or
          substance or delivered in such a manner that it may
          reasonably be said to have deprived the defendant of
          a fair and impartial trial.’”     Commonwealth v.
          Troop, [571 A.2d 1084, 1086 (Pa. Super. 1990)],
          quoting Commonwealth v. Hammer, 494 A.2d
1054, 1060 (Pa. 1985). []

          Instantly, we view the court’s question to [the
          witness] as an attempt to clarify an earlier answer
          which the witness had given in response to defense
          counsel’s questioning. Although the court’s question
          may have been inartfully phrased, the court
          responded      immediately   to   defense    counsel’s
          concerns and cautioned the jury that there was no
          intent on the court’s part to imply skepticism of [the
          witness’s] testimony. Moreover, at the start of trial,
          the court had thoroughly informed the jurors that it
          was their function to determine the facts and weigh
          the credibility of witnesses. The court had also told
          the jury that:

                You are not bound by any opinion you might
                think counsel or I have expressed concerning
                guilt or innocence, credibility of witnesses,
                weight of evidence, facts proven by the
                evidence, or inferences to be drawn from those
                facts.
                                    ....

                I may question some of the witnesses myself.
                The questions will not reflect any opinion on my
                part about the evidence or about this case. My
                only purpose will be to inquire about matters
                which I feel that counsel may not have fully
                explored.

          When viewed with the specific cautionary instruction
          given by the trial court and the general explanation
          of the jury’s function, we are satisfied that the


                                  - 22 -
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             court's questioning of [the        witness]   was   not
             prejudicial to the defense.

Commonwealth v. Purcell, 589 A.2d 217, 223-224 (Pa. Super. 1991)

(parallel citations and footnote omitted), appeal denied, 604 A.2d 248 (Pa.

1992).

      Mindful of the foregoing authority, and upon review of the record in

toto, we discern no abuse of discretion by the trial court. We initially note

that we cannot determine from the transcript the tone, inflection or

demeanor of the trial court when it asked the victim whether he was capable

of telling the truth. Further, the question was not rhetorical, as the victim

answered, “I’m telling the truth about everything.”        The trial court then

responded “Continue.” This exchange may be perceived as the trial court’s

proper exercise of control over the proceedings, as well as its effort to clarify

the victim’s conflicting and confusing testimony.          Roldan, supra.      In

addition, we agree with the Commonwealth that the jury is presumed to

follow the trial court’s instructions to “reach a fair verdict based solely on the

evidence.”    Commonwealth’s Brief at 31; see also Commonwealth v.

Travers, 768 A.2d 845 (Pa. 2001) (noting the law presumes that the jury

will follow the instructions of the court). Here, the trial court instructed the

jury members to “each keep an open mind throughout the trial,” and that

they “were the sole judges of the credibility and the weight to be given to all

of the evidence, including the testimony of witnesses.” N.T., 2/26/14, at 11-

12. The trial court expressly instructed the jury as follows.

                                      - 23 -
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              [Y]ou are the sole judges of the facts. … You are not
              bound by nor should you consider any opinion which
              you might think counsel or I have expressed
              concerning either guilt or innocence. Credibility of
              the witnesses, weight of the evidence, facts proven
              by the evidence or inferences to be drawn from
              those facts. … I may question some of the
              witnesses myself.        The questions will not
              reflect, nor are they intended to reflect, any
              opinion on my part about the evidence or about
              the case. My only purpose will be to inquire
              about matters which, in my opinion, should be
              more fully explored.

Id. at 13-14. Based on both the legal authority and record before us, we

find no abuse of discretion in the trial court’s denial of Appellant’s request for

a mistrial.

      Next, we review Appellant’s fourth issue, in which he argues that the

trial court imposed an illegal sentence relative to his conviction for

conspiracy to commit murder, because “there was insufficient evidence to

support a finding that the victim suffered ‘serious bodily injury.’” Appellant’s

Brief at 10. The Commonwealth concedes that Appellant is entitled to a new

sentencing    hearing   because   his     sentence   “is   contrary   to   statutory

requirements.”    Commonwealth’s Brief at 32.        Both parties agree that the

jury did not determine that serious bodily injury resulted from the victim’s

shooting, such that Appellant should have faced a mandatory maximum of

20 years’ incarceration, rather than a maximum of 40 years’ incarceration,




                                        - 24 -
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as provided in 18 Pa.C.S.A. § 1102(c).8             Appellant’s Brief at 23-26;

Commonwealth’s Brief at 34.             Upon review, we agree that Appellant’s

sentence of 17-34 years’ incarceration for conspiracy to commit murder is

illegal. We thus vacate Appellant’s June 5, 2014 judgment of sentence in its

entirety, noting that our disposition upsets the overall sentencing scheme.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (explaining

where appellate disposition upsets the overall sentencing scheme of the trial

court, remand is warranted so that the trial court can restructure its

sentence), appeal denied, 946 A.2d 687 (Pa. 2008).

       Finally, given our disposition and remand relative to Appellant’s fourth

issue, we decline to review Appellant’s fifth and final issue challenging the

discretionary aspects of his sentence because it is moot.

       The December 2, 2013 judgment of sentence is affirmed. The June 5,

2014 judgment of sentence is vacated. Case remanded for re-sentencing.

Jurisdiction relinquished.

____________________________________________


8
  (c) Attempt, solicitation and conspiracy.--Notwithstanding section
1103(1) (relating to sentence of imprisonment for felony), a person who has
been convicted of attempt, solicitation or conspiracy to commit murder,
murder of an unborn child or murder of a law enforcement officer where
serious bodily injury results may be sentenced to a term of imprisonment
which shall be fixed by the court at not more than 40 years. Where serious
bodily injury does not result, the person may be sentenced to a term of
imprisonment which shall be fixed by the court at not more than 20 years.
18 Pa.C.S.A. § 1102.




                                          - 25 -
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     Judge Musmanno joins the memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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