Commonwealth of Pa. v. Solomon

• Decision Date: 22 July 2011
• Citation: 25 A.3d 380,2011 PA Super 151
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Ronald M. SOLOMON, Appellant.
• Court: Pennsylvania Superior Court

25 A.3d 380

2011 PA Super 151

COMMONWEALTH of Pennsylvania, Appellee

v.Ronald M. SOLOMON, Appellant.

Superior Court of Pennsylvania.

Argued June 21, 2011.Filed July 22, 2011.

Norris E. Gelman, Philadelphia, for appellant.Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: STEVENS, P.J., GANTMAN, and OTT, JJ.OPINION BY GANTMAN, J.:

Appellant, Ronald M. Solomon, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for aggravated assault and possessing an instrument of crime (“PIC”).¹ Appellant asks us to determine whether the prosecutor's comments during summation constituted misconduct justifying reversal. Appellant also challenges the court's order for payment of restitution directly to the victim rather than to the hospital. We hold the prosecutor's statements during closing were mere oratorical flair; they were also made in fair response to Appellant's demeanor and testimony at trial as well as his counsel's defense strategy and did not impede the jury from properly weighing the evidence and rendering a true verdict. We further hold the trial court correctly ordered Appellant to pay restitution directly to the victim rather than to the hospital, because the medical provider was not a direct-loss “victim” under the restitution statute. Accordingly, we affirm.

The trial court opinion set forth the relevant facts of this appeal as follows:

At around 11:45 p.m. on March 19, 2009, [the victim] left the Temptations nightclub in Philadelphia after a night of dancing and walked to the parking lot across the street to get his car. In the parking lot, [the victim] saw [Appellant] and an unidentified man who had just parked his car next to [the victim's]. Concerned that he would not be able to pull out of his parking spot because of the way the man's car was positioned, [the victim] asked the man to move his car. As the man began to walk back to his car, [Appellant] turned and yelled to [the victim], “If a nigger can't get his car out of that spot, he don't need no fucking car.” [The victim] and [Appellant] then got into a heated argument until [the victim] got in his car to leave.

As [the victim] backed up out of his parking spot, he saw [Appellant] coming toward him with a gun. [The victim] ducked, accelerated the car, and drove to the lot's exit. [Appellant] fired his gun as [the victim] passed him, shattering one of the car's windows and striking [the victim] in the back of his shoulder. The force of the bullet caused [the victim] to lurch forward and lose control of his car, which he drove into a pole located near the parking lot's exit. After taking a moment to [recover], [the victim] drove out of the parking lot towards Temple University Hospital. He began having trouble breathing, however, and pulled his car over to the side of the road when he saw a police officer in front of a church on Germantown Avenue. [The victim] told the officer and the officer's partner about the shooting and described the shooter. The officers took [the victim] to Temple University Hospital where he remained for four days while he was treated for a gunshot wound before being transferred to a Veterans Administration hospital.

Doctors were unable to remove both the bullet and some of the pieces of shattered glass from [the victim's] car from his body because they were lodged too deeply inside him. The glass, in particular, continues to cause him serious pain. In addition to pain medication, [the victim] also required physical therapy during his recovery. The costs associated with [the victim's] treatment caused a substantial financial burden to him and his family.

(Trial Court Opinion, filed October 26, 2010, at 2–3). On March 25, 2010, the jury found Appellant guilty of aggravated assault and PIC. Appellant obtained new counsel for sentencing. On April 28, 2010, the court sentenced Appellant to an aggregate term of five (5) to ten (10) years' incarceration. Appellant timely filed a post-sentence motion on May 4, 2010, and a supplemental post-sentence motion on June 1, 2010. On July 16, 2010 and July 23, 2010, the court denied Appellant's post-sentence motion and supplemental post-sentence motion, respectively. Appellant filed a timely notice of appeal on July 29, 2010. On August 2, 2010, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on August 19, 2010.

Appellant raises two issues on appeal:

DOES PROSECUTORIAL MISCONDUCT IN SUMMATION COMPEL REVERSAL?

DID THE COURT ERR IN ORDERING RESTITUTION TO BE PAID DIRECTLY TO THE VICTIM AND NOT TO THE HOSPITAL WHOSE MEDICAL BILLS COMPRISE THE RESTITUTION ORDERED?

(Appellant's Brief at 4).

Appellant first asserts the prosecutor commented inappropriately during closing arguments when he said Appellant's testimony was the most arrogant testimony the prosecutor had ever witnessed, Appellant was without remorse, and Appellant acted intentionally in the commission of the crime. Appellant alleges the prosecutor based these statements on matters outside of the record and attributed invented thoughts to Appellant. Appellant contends these statements were extraordinarily prejudicial, had no place in a proper summation, and exceeded the permissible bounds of vigorous prosecutorial advocacy. Appellant concludes the prosecutorial misconduct described compels reversal of his convictions. We cannot agree.

“Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion.” Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa.Super.2008). “In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one.” Id. (quoting Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super.2005), appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007)).

[A] prosecutor's arguments to the jury are [generally] not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict.

A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present [his] arguments with logical force and vigor. The prosecutor is also permitted to respond to defense arguments. Finally, in order to evaluate whether the comments were improper, we do not look at the comments in a vacuum; rather we must look at them in the context in which they were made.

Rolan, supra (quoting Commonwealth v. May, 587 Pa. 184, 197–98, 898 A.2d 559, 567 (2006), cert. denied, 549 U.S. 1022, 127 S.Ct. 557, 166 L.Ed.2d 414 (2006)).

In the present case, the trial court responded to Appellant's first issue as follows:

A. Alleged Prosecutorial Misconduct

[Appellant] claims that the assistant district attorney committed prosecutorial misconduct during his closing argument. The complained of portion of the assistant district attorney's closing argument is as follows:

The most unrepentive and arrogant testimony I've ever seen is from this [Appellant], unrepentive, completely unrepentive. He shot a guy in the back, says it's an accident. Did you sense any—even a hint of bad feeling from him? No because he did it on purpose. He's thinking that SOB got what he deserved.

[Appellant] claims that this argument was impermissible because: 1) it constituted “testimony from the prosecutor based on his personal experience in [c]ourt”; 2) the assistant district attorney improperly “attributed a statement to [Appellant] when he told the jury [Appellant] was thinking the ‘SOB got what he deserved.’ ”; and 3) “the prosecutor gave his opinion as to the guilt of [Appellant] when he told the jury, ‘he did it on purpose.’ ” This claim is without merit.

It is well established that in determining the prejudicial effect of an assistant district attorney's comments during closing argument, the comments in question “cannot be viewed in isolation but, rather, must be considered in the context in which they were made.” Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super.2006)[, appeal denied, 589 Pa. 720, 907 A.2d 1102 (2006) ] (quoting Commonwealth v. Correa , 664 A.2d 607, 609 (Pa.Super.1995)[, appeal denied, 544 Pa. 673, 678 A.2d 364 (1996) ] ). A new trial is not required unless the “unavoidable effect” of the comments “would be to prejudice the jury, forming in their minds fixed bias and hostility toward [Appellant], so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Linder , 425 A.2d 1126, 1128 (Pa.Super.1981) (quoting Commonwealth v. Stoltzfus, 337 A.2d 873, 882 (1975)).

In context, the assistant district attorney, in the challenged portion of his closing, was arguing that [Appellant's] trial testimony demonstrated a lack of remorse for his admitted act of having shot [the victim].² Such a comment on the appearance of [Appellant] as being arrogant and unrepentant was an attempt by the prosecutor to marshal the evidence on the issue of [Appellant's] criminal intent. The assistant district attorney was arguing that had this shooting been an accident, as the defense argued, that [Appellant] would have shown more remorse, which was completely absent from [Appellant's] testimony.

Next, Appellant argues the court should have ordered him to pay restitution of $59,400.00 directly to the hospital to cover the victim's hospital costs, and not to the victim. Appellant asserts: (1) if Appellant pays the victim, the money might not reach the hospital; and (2) it would be more cost effective to pay the money straight to the hospital. Appellant maintains there is no reason to distinguish between an insurance company (which the statute includes in the definition of “victim”...