J-S52032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOHN BRAGG, JR. Appellant No. 657 EDA 2014

Appeal from the Judgment of Sentence November 7, 2013 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003233-2012

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2014 Appellant, John Bragg, Jr., appeals from the judgment of sentence entered in the Northampton County Court of Common Pleas, following his jury trial convictions for criminal attempt (criminal homicide), aggravated assault (serious bodily injury), aggravated assault (bodily injury with deadly We affirm.

The relevant facts and procedural history of this case are as follows.

administrator of their estate. Appellant and his brother are the sole

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18 Pa.C.S.A §§ 901(a) (2501 related); 2702(a)(1); 2702(a)(4); 907(a), respectively.

_____________________________ *Former Justice specially assigned to the Superior Court.

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Appellant and Victim had multiple disagreements over matters relating to

residing. Victim initially listed the house for sale for approximately $100,000.00, but when Victim was unable to secure a buyer at that price or lower listing prices, Victim ultimately agreed to sell the house for $52,000.00. Appellant was unhappy with this sale price and tension ensued between Appellant and Victim.

On September 2, house, Appellant asked Victim to come to the house to look at a leaking pipe in the basement. Victim was unavailable that day but agreed to stop by the next day. On September 3, 2012, Victim arrived at the house and both men headed to the basement, with Victim walking in front of Appellant. Appellant then pulled out a butcher knife and stabbed Victim in the back three times.

Victim was able to push past Appellant, get outside, and call the police.

Police arrested Appellant, and the Commonwealth subsequently charged him with criminal attempt (criminal homicide), two counts of aggravated assault,

On September 9, 2013, a jury trial commenced. the case was that he stabbed Victim in self-defense. Specifically, Appellant maintained that Victim sexually abused him as a child numerous times.

Appellant claimed that when Victim came to the house on September 3,

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2012, the men argued over the sale price of the house and Victim stated:

Appellant insisted Victim also threatened to retrieve his golf club from

sexual abuse and threats, Appellant contended he acted in self-defense when he stabbed Victim.

The Commonwealth rebutted the defense theory by presenting, inter alia, the testimony of Victim and testimony from Devon Emory, Appe cellmate in prison prior to trial. Mr. Emory testified that Appellant admitted he tried to kill Victim and that Appellant described the attack in detail to Mr. Emory, including how Appellant lured Victim to the house with a false story about a lea

(meaning Appellant was going to say Victim sexually assaulted Appellant, even though untrue) to justi . Mr. Emory further indicated Appellant intended to kill Victim after Appellant was released from prison.

During closing arguments, the prosecutor made the following statement to the jury: oing. He knows that [Victim] is an educator. He knows what the a way to continue to victimize [Victim]. Instead of using a gentleman, are going to last longer? The physical scars -3- J-S52032-14

caused when [Appellant] took the stand and spewed venomous lies about his own uncle? And what [Appellant] did on the stand belies victimization. It insults those who are actually victims of sexual assault because it causes us always to question the Sandusky defense. (N.T. Trial, 9/11/13, at 19- remarks as prejudicial and beyond the scope of the case. The court overruled the objection. (Id. at 20).

On September 11, 2013, the jury convicted Appellant of criminal attempt (criminal homicide), two counts of aggravated assault, and PIC. 2 The court sentenced Appellant on November 7, 2013, to a term of ten (10)

imposed no further penalty for the remaining convictions. Appellant timely filed post-sentence motions on Monday, November 18, 2013, which the court denied on January 27, 2014. Appellant timely filed a notice of appeal on February 26, 2014. The next day, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on March 14, 2014.

Appellant raises one issue for our review:

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During trial, the Commonwealth withdrew the REAP charge, and the verdict sheet confirms the jury did not convict Appellant of that crime. To the extent the certified record indicates the jury convicted Appellant of REAP and the conviction merged for sentencing purposes, that is error and must be corrected.

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PREJUDICE APPELLANT AND DEPRIVE HIM OF A FAIR TRIAL WHERE THE PROSECUTOR WARNED THE JURY THAT NEGATIVELY IMPACT TRUE VICTIMS OF SEXUAL ASSAULT?

The relevant standard of review in this case is as follows: Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one.

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 [her] 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.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.Super. 2011), appeal denied, 615 Pa. 766, 40 A.3d 1236 (2012) (internal citations and quotation marks omitted).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Paula A.

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opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed March 18, 2014, at 1-4) (finding:

abused him as child and brought up past sex abuse on date of incident to

Victim on September 3, 2012, and plan (meaning Appellant was going to say Victim sexually assaulted Appellant,

were fair response to issue of sexual assault raised by Appellant at trial; viewing alleged improper remarks in context of whole summation,

claim fails). Accordingly, we affirm on Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2014

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