J-A20009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
DARNELL JENKINS,                           :
                                           :
                   Appellant               : No. 2658 EDA 2013

          Appeal from the Judgment of Sentence September 3, 2013,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0005600-2011

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 20, 2015

       Appellant, Darnell Jenkins (“Jenkins”), appeals from the judgment of

sentenced entered on September 3, 2013 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of first-

degree murder, firearms not to be carried without a license, carrying

firearms on public streets or public property in Philadelphia, and possessing

instruments of crime (“PIC”).1      For the reasons that follow, we vacate

Robinson’s judgment of sentence and remand for a new trial.

       The trial court summarized the facts of this case as follows:

             On September 8, 2010, at about 10:25 p.m.,
             [Jenkins allegedly] shot Lamont Smith (“Smith”) in
             the head as a result of an on-going dispute between
             them. At trial, the jury heard that Jared Stovall
             (“Stovall”), on the day before the shooting, made a
             plan to get defendant Jenkins and the victim Smith


1
    18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a).
J-A20009-15


          together because Stovall wanted Jenkins and Smith
          to “squash the beef” between them. Multiple phone
          calls between Stovall and decedent Smith and
          between Stovall and Jenkins confirm that Stovall set
          up the meeting between Jenkins and Smith.

          Jenkins was seemingly apprehensive about the
          meeting because earlier in the day [on] September
          8th someone had shot at him. Accordingly, Jenkins
          decided that he needed additional weapons to bring
          to the arranged meeting and he asked neighborhood
          friend Martamus Watts (“Watts”) to get him a
          “second” gun.      Numerous text messages sent
          between Jenkins and another number ending in 3705
          both before and after the shooting on September 8,
          2010 confirm that Jenkins brought a gun with him to
          the meeting. Specifically, at 10:16 p.m.[,] Jenkins
          texted “He on his way with dudes frm [sic] Willows.
          l got bull Jerry hammer on me.” Then there was a
          response text saying “You want me to bring minds
          [sic] out or what!” At 10:19 p.m., approximately six
          minutes before the murder, Jenkins responded
          saying “Yea, he bring niggas frm [sic] 58 and
          Willows.”

          The arranged meeting turned into an argument
          between Jenkins and Smith and gunfire erupted.
          Witnesses heard about four or five gunshots and saw
          muzzle flash from Jenkins’ hand. Immediately after
          hearing the gunshots, the witnesses saw Smith fall
          to the ground. Jenkins and Stovall both took off
          running westbound on Chester Street from 60th to
          61st. Stovall later texted one of the witnesses to see
          if Smith was dead and if there were “any shells
          outside.”

          Philadelphia police officers arrived on scene and
          found Smith lying on his right side with a large pool
          of blood under his head. The officers recovered two
          cell phones from Smith’s pocket as well as his keys
          and glasses.    Additionally, the officers recovered
          Smith’s five-shot black revolver with five live
          cartridges that had been underneath his waist area.



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            Medics arrived and transported Smith to the Hospital
            of the University of Pennsylvania, where he was
            pronounced dead on September 9, 2010 at 1:58
            a.m. An autopsy revealed that victim Smith had
            sustained three .38/.357 caliber gunshots to the
            head, specifically two to the neck and one to the
            brain.

Trial Court Opinion, 6/27/14, at 3-4 (footnotes omitted).

      On September 3, 2013, following trial, a jury found Jenkins guilty of

the above-referenced crimes.      At the conclusion of trial, the trial court

sentenced Jenkins to life imprisonment without the possibility of parole. On

September 11, 2013, Jenkins filed a timely notice of appeal. On April 25,

2014, the trial court ordered Jenkins to file a concise statement of the errors

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure.    On May 16, 2014, Jenkins filed his timely Rule

1925(b) statement.

      On appeal, Jenkins raises the following issues for our review and

determination:

            1. Did not the trial court err in permitting Roland
            Jackson to testify to incidents of intimidation, where
            there was no evidence that those incidents occurred
            at [Jenkins’] behest, where the witness was fully
            cooperative with the prosecution both at the time of
            his initial statement and at trial, and where such
            evidence was therefore both irrelevant and grossly
            prejudicial?

            2. Did not the attorney for the Commonwealth
            commit gross and intentional misconduct by violating
            the [trial] court’s order limiting the introduction of
            prior statements and testimony of Roland Jackson,



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               repeatedly inquiring as to matters specifically barred
               by the court, and commenting in the jury’s presence
               that he was not being “allowed” to introduce certain
               material, and did not the court err in denying the
               defense’s motion for a mistrial on the basis of that
               misconduct?

Jenkins’ Brief at 3.

         For his first issue on appeal, Jenkins argues that the trial court erred in

permitting the Commonwealth to question Roland Jackson (“Jackson”), the

Commonwealth’s principal eyewitness, about how he was threatened and

told not to come to court prior to testifying at the preliminary hearing in this

case.     Jenkins’ Brief at 12-18.     Jenkins asserts that because there is no

evidence linking him to these threats and because the Commonwealth did

not use this testimony to explain inconsistencies in Jackson’s testimony or to

explain any prior inconsistent statements made by Jackson, the evidence

was irrelevant and grossly prejudicial. Id. at 12, 15-16.

         Jenkins’ first issue challenges an evidentiary ruling made by the trial

court.     We review a trial court’s evidentiary decisions according to the

following standard:

               The decision to admit or exclude evidence is
               committed to the trial court’s sound discretion, and
               evidentiary rulings will only be reversed upon a
               showing that a court abused that discretion. A
               finding of abuse of discretion may not be made
               merely because an appellate court might have
               reached a different conclusion, but requires a result
               of    manifest   unreasonableness,        or   partiality,
               prejudice, bias, or ill-will, or such lack of support so
               as to be clearly erroneous. Matters within the trial



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            court’s discretion are reviewed on appeal under a
            deferential standard, and any such rulings or
            determinations will not be disturbed short of a
            finding that the trial court “committed a clear abuse
            of discretion or an error of law controlling the
            outcome of the case.”

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quotations

and citations omitted).

      The questioning to which Jenkins takes issue proceeded as follows:

            Q     There were a couple of incidents that occurred
            after [the interview with detectives], both on a bus
            and at your house, that caused you not to come to
            the [c]ourt when you were subpoenaed for a
            preliminary hearing in the months that followed
            September of 2010?

            A     Yes.

            Q     I’m not asking and you’re not to say who it
            was who came or anything like that, but were you
            instructed not to come to court?

            A     Yes.

            Q     That was the first time getting off the bus?

            A     Yes.

            Q     And then somebody came or two people came
            to your home?

            A     Yes.

            Q     How did that make you feel?

            A     I was mad.

            Q     Also scared?




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             A     A little bit.

             Q     If not for you but for your three-year-old son?

             A      I ain’t really scared; I’ma [sic] be honest.       I
             ain’t scared of nobody.

N.T., 8/27/13, at 56-57.

      Regarding the threatening of witnesses, this Court has held:

             In general, “‘threats by third persons against ...
             witnesses are not relevant [and thus not admissible
             into evidence] unless ... the defendant is linked in
             some way to the making of the threats.’”
             Commonwealth v. Carr, [] 259 A.2d 165, 167
             ([Pa.] 1969) (citation omitted). Nevertheless, an
             exception to the rule exists where the evidence in
             question was not offered to prove the accused’s
             guilt “but to explain a [witness’] prior inconsistent
             statement.” [Id.] at 167.

Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983)

(brackets,   except   for    citation   modifications,   in   original);   see   also

Commonwealth v. Collins, 702 A.2d 540, 544 (Pa. 1997) (“[T]he

Commonwealth’s line of questioning was permissible to demonstrate [that

the witness’] motive for changing his testimony was that he was afraid of

the consequences if he testified truthfully.”); Commonwealth v. Martin,

515 A.2d 18, 21 (Pa. Super. 1986) (“When the evidence in question is not

offered to prove the defendant’s guilt, but to explain a [witness’] prior

inconsistent statement, however, it is admissible.”).              “Such evidence,

however, must be used to rehabilitate the witness after the defense, in an

effort to discredit the witness, has questioned the witness about the previous



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J-A20009-15


testimony.”   Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa.

Super. 1997) (emphasis in original).

      We conclude that the trial court erred in allowing the Commonwealth

to question Jackson about the threats he received prior to testifying at the

preliminary hearing. First, as the Commonwealth concedes and the certified

record on appeal confirms, there is no evidence linking Jenkins to making

threats against Jackson.   See N.T., 8/26/13, at 11.     Although the record

does reflect that Jenkins’ brother Jermaine was responsible for threatening

Jackson, there is no evidence Jenkins wanted his brother or encouraged his

brother to do so. See id. at 4-21; N.T., 8/30/13, at 85; see also Jenkins’

Motion In Limine, 8/19/13, ¶ 1(d.). Additionally, while arguing the matter

prior to trial, the prosecutor stated that he was not going to make any

connection between Jenkins and the threats and that he was not going bring

out that it was Jenkins’ brother who threatened Jackson. N.T., 8/26/13, at

11. Furthermore, the trial court instructed the jury that they could not “infer

that [Jenkins] in any way directed, requested or even was aware that the

contact was made or even knew the people who made the contact.” N.T.,

8/30/13, at 85. Thus, the jury heard no evidence linking Jenkins to threats

made against Jackson.

      Second, the certified record also reflects that the Commonwealth did

not offer the evidence of the threats against Jenkins to explain a prior

inconsistent statement. The Commonwealth questioned Jackson about the



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threats he received on direct examination, not redirect examination.          See

N.T., 8/27/13, at 56-57. While Jenkins did attempt to impeach Jackson at

trial with portions of his testimony from the preliminary hearing, see id. at

93-94, 106-10, the Commonwealth never offered the threats against

Jackson   as   an   explanation   for    these   inconsistencies.     Thus,   the

Commonwealth did not use the evidence of the threats against Jackson

following an effort by Jenkins’ counsel to discredit Jackson by questioning

him about previous testimony. See Rickabaugh, 706 A.2d at 838.

      The Commonwealth argues that the evidence of threats against

Jackson was admissible “to show their impact on the witness,” “to allow the

jury to fairly evaluate Jackson’s demeanor,” and to assist in the jury’s

determination of Jackson’s state of mind. Commonwealth’s Brief at 14, 20.

The Commonwealth asserts that Jackson appeared agitated while on the

stand, which it contends the jury could have attributed “to a lack of candor

or malice towards [Jenkins].” Id. at 14-15. As stated above, evidence that

a witness was threatened by someone other than the defendant is generally

inadmissible at trial.   See Bryant, 462 A.2d at 788.               The narrowly

prescribed exception to the general rule is that such evidence is admissible

only to explain a prior inconsistent statement. See id. The exception to the

rule proposed by the Commonwealth here, namely that the evidence is

admissible so that the jury can assess the witness’ state of mind, is so broad

that it would, in practice, swallow the general rule. In the present case, the



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Commonwealth contends that the threats to Jackson show that he testified

credibly despite fear of retribution. Commonwealth’s Brief at 16. Such an

argument, however, could be (and presumably would be) made for any

witness testifying that he or she had received some threat prior to taking the

stand.     This result would be contrary to the well-established law of

Pennsylvania in this area.

      Additionally, the Commonwealth argues that the evidence of threats

against Jackson is admissible to explain why he did not voluntarily come

forward with information about Smith’s murder and to explain why he was

not initially forthcoming with police. Id. at 15. Jackson, however, testified

that he did not receive any threats until after his initial police interview and

prior to when he was to testify at the preliminary hearing.2 N.T., 8/27/13,

at 56. Thus, the threats Jackson received after his initial police interview are

not relevant to explain why he did not voluntarily come forward with

information about the murder or why he was not initially forthcoming with

police.3



2
    We note that it was the Commonwealth, and not Jenkins’ counsel, who
elicited the testimony about Jackson not being initially forthcoming when he
spoke to police. See N.T., 8/27/13, at 55-56.
3
   Furthermore, the Commonwealth contends that the evidence of threats
against Jackson is admissible because the basis of Jenkins’ defense, as
indicated by Jenkins’ counsel’s opening statement, was that Jackson was not
a credible witness who was falsely accusing Jenkins of murder and that it
was therefore proper to preemptively address Jackson’s credibility on direct
examination by bringing out the evidence of threats against Jackson. See


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J-A20009-15


      The testimony regarding the threatening of Jackson did not implicate

Jenkins nor was it elicited in response to Jenkins’ counsel impeaching

Jackson’s testimony.    Thus, the trial court clearly erred in admitting the

evidence of threats against Jackson.     See Bryant, 462 A.2d at 788. This

does not end our inquiry, as we must now determine whether this error was

harmless.   See Rickabaugh, 706 A.2d at 838 (“we must now consider

whether the error warrants a reversal of Appellant’s conviction; for it is well-

settled that not every legal mishap prejudices a defendant to the extent that

a reversal is necessary”).    Our Supreme Court has stated the following

regarding the harmless error doctrine:

            “The harmless error doctrine, as adopted in
            Pennsylvania, reflects the reality that the accused is
            entitled to a fair trial, not a perfect trial.”
            Commonwealth v. Rasheed, [] 640 A.2d 896, 898
            ([Pa.] 1994); Commonwealth v. Story, [] 383
            A.2d 155 ([Pa.] 1978).       We have described the
            proper analysis as follows:

                  Harmless error exists if the record
                  demonstrates either: (1) the error did
                  not prejudice the defendant or the
                  prejudice was de minimis; or (2) the
                  erroneously admitted evidence was
                  merely cumulative of other untainted


Commonwealth’s Brief at 15-16 n.4. The Commonwealth, however, does
not cite any pertinent authority in support of this argument. See id. Rather
the Commonwealth cites two inapplicable cases holding that where a
defendant bases his or her defense on impeaching a witness’ credibility, the
Commonwealth may introduce prior consistent statements before the
defense impeaches the witness on cross-examination.           See id. (citing
Commonwealth v. Cook, 952 A.2d 594, 625-26 (Pa. 2008);
Commonwealth v. Smith, 540 A.2d 246, 258 (Pa. 1988)).


                                     - 10 -
J-A20009-15


                  evidence which was substantially similar
                  to the erroneously admitted evidence; or
                  (3)    the    properly    admitted   and
                  uncontradicted evidence of guilt was so
                  overwhelming and the prejudicial effect
                  of the error was so insignificant by
                  comparison that the error could not have
                  contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (quoting

Commonwealth        v.   Hawkins,     701     A.2d   492,   507   (Pa.   1997);

Commonwealth v. Williams, 573 A.2d 536 (Pa. 1990)).

      We conclude that the harmless error doctrine is inapplicable here

because none of the three above-referenced requirements prongs of the

were satisfied in this case. First, the trial court’s error was not de minimis

and did prejudice Jenkins because it predisposed the jury to believe

Jackson’s testimony. As the Commonwealth readily acknowledged,

            That [Jackson] chose to testify, in the face of
            threats, was also relevant because it spoke volumes
            about his credibility. It was reasonable for the jury
            to conclude that the witness would only have faced
            down those threats if he had actually seen [Jenkins]
            murder [Smith], and not merely to falsely accuse
            someone.

Commonwealth’s Brief at 16.

      It is well settled, however, that “the question of a witness[’] credibility

is reserved exclusively for the jury.”   Commonwealth v. Alicia, 92 A.3d

753, 761 (Pa. 2014) (quoting Commonwealth v. Davis, 541 A.2d 315, 317

(Pa. 1988)); see also Commonwealth v. Kane, 10 A.3d 327, 334




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J-A20009-15


(Pa. Super. 2010) (holding that the “credibility of witnesses is a matter

within the exclusive province of the factfinder”). Additionally, “Evidence of a

witness[’] character for truthfulness or honesty is not admissible to bolster

the witness[’] credibility unless the witness[’] truthfulness and honesty have

first been attacked.” Commonwealth v. Schwenk, 777 A.2d 1149, 1156

(Pa. Super. 2001)

       By allowing the Commonwealth to introduce evidence of the

intimidation of Jackson to demonstrate that he was a credible witness,

without Jackson’s credibility having first been attacked, the trial court

permitted the Commonwealth to invade the province of the jury’s exclusive

right to make credibility determinations.    See Commonwealth v. Smith,

567 A.2d 1080, 1083 (Pa. Super. 1989) (holding that by introducing

evidence of a witness’ credibility prior to the defense impeaching that

witness, the Commonwealth “usurped the credibility determining function of

the jury”). The improperly admitted evidence of the intimidation of Jackson

allowed the Commonwealth to show that Jackson, the lone eyewitness to the

murder in this case and the only source of evidence that could put Jenkins at

the scene of the crime, testified in the face of threats and potential

retribution.   This predisposed the jury to believe and find credible the

testimony of the Commonwealth’s most important witness.         Consequently,

the trial court’s error in this respect was not de minimis and was prejudicial

to Jenkins.



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J-A20009-15


      Second, the erroneously admitted evidence was not merely cumulative

of other untainted evidence that was substantially similar to the erroneously

admitted evidence. Jackson was the lone eyewitness of the murder in this

case. He provided the only testimony that placed Jenkins at the scene of the

crime and was the only witness that identified Jenkins as the person that

shot Smith.

      Third, we cannot conclude that the trial court’s error could not have

contributed to the verdict as the properly admitted and uncontradicted

evidence of guilt was not overwhelming and the prejudicial effect of the error

was not insignificant by comparison. A review of all of the evidence of guilt

introduced in this case, excluding the testimony of Jackson, reveals the

following.

      Martamus Watts (“Watts”), who had known Jenkins for a couple

months prior to Smith’s murder, testified that he met with Jenkins on

September 8, 2010, approximately a half hour before Smith was killed.

N.T., 8/26/13/, at 157-58. Watts stated that Jenkins spoke briefly with him

about an earlier altercation Jenkins had in which someone had shot at him.

Id. Watts recounted that Jenkins asked Watts if he could get him a second

gun because he was going to meet a couple of men near 60th Street and

Chester Street to “squash the beef” between them and that he would feel

safer if he had another weapon. Id. at 159-62.




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     Rasheed Dublin (“Dublin”) testified that when was coming home from

work on September 8, 2010, between 10:20 and 10:30 p.m., he observed

three black males on the 6000 block of Chester Street, none of whom he

recognized, talking with one another. N.T., 8/29/13, at 50-52. Once Dublin

was inside his house, he heard multiple gunshots.     Id. at 51-52.   Dublin

immediately ran outside and upon observing Smith lying on the ground in a

pool of blood, dialed 911. Id. at 51-53. Dublin was unable to identify either

Jenkins or Stovall as one of the three men he saw conversing on the 600

block of Chester Street. Id. at 52. After he reviewed a picture of Stovall,

whom he recognized from the neighborhood, Dublin further testified that he

could definitely say that Stovall was not one of the three men he observed

that evening. N.T., 8/29/13, at 58; see also N.T., 8/30/13, at 17.

     Officer Charles Henry (“Officer Henry”), of the Philadelphia Police

Department, testified that he and Sergeant Michael Davis (“Sergeant Davis”)

responded to a radio call, at approximately 10:25 p.m. on September 8,

2010 for shots fired near 60th Street and Chester Street. N.T., 8/27/13, at

146-47. Officer Henry stated that the flash information described two black

males in their mid-twenties, both approximately 5’7”, fleeing westbound on

Chester Street from 60th to 61st wearing white t-shirts, and blue jeans, one

of whom had a close haircut, a beard, and glasses.      Id. at 147.   Officer

Henry testified that when he and Sergeant Davis arrived at the crime scene,

they encountered Smith lying on the ground in a pool of blood around his



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J-A20009-15


head. Id. at 147-48. Officer Henry recounted that at the crime scene, he

and Sergeant Davis recovered two cell phones from Smith’s pocket and a

black revolver near Smith’s body.      Id. at 148.   Officer Brian Stark, who

processed the crime scene, testified that the revolver recovered near Smith

was a five-shot revolver loaded with five live (unfired) cartridges.     N.T.,

8/26/13, at 104-05, 115.         Officer Henry further testified that he and

Sergeant Davis also encountered Roland Jackson near the crime scene, who

was sitting on the steps of 6029 Chester Street. N.T., 8/27/13, at 157. The

two officers also later spoke with Stovall’s mother, who had last seen Stovall

around 7:50 p.m. that evening, and informed them that he was wearing a

white t-shirt, blue jean shorts, and glasses. Id. at 154. Sergeant Davis also

testified and his testimony corroborated that of Officer Henry.    See N.T.,

8/29/13, at 73.

        Dr. Marlon Osbourne (“Dr. Osbourne”), from the medical examiner’s

office, testified that Smith died from multiple gunshots to the head and

neck.    N.T., 8/27/13, at 11.     Officer Cruz, who examined the ballistics,

testified that all three of the bullets removed from Smith’s head and were

fired from the same firearm, which was either a .38 caliber revolver or a

.357 caliber revolver. N.T., 8/26/13, at 142-44. Watts stated that he had

once or twice, prior to Smith’s murder, seen Jenkins in possession of a black,

slightly rusty, .38 caliber revolver. Id. at 169.




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      Additionally, the jury heard testimony from Detective John Verecchio

(“Detective Verecchio”) of the Philadelphia Police Department and Agent

William Shute (“Agent Shute”) of the FBI Cellular Analysis Survey Team,

regarding cell phone activity on the night of the murder.            Detective

Verecchio testified that between 9:40 p.m. and 10:20 p.m. there were six

calls from Stovall to Smith and that Stovall also made calls to Jenkins in that

timeframe. N.T., 8/28/13, at 186-87. Agent Shute testified that between

10:05 p.m. and 10:43 p.m. there were nine calls on Jenkins’ phone that

originated in geographical area that included the location of Smith’s murder.

Id. at 90-98. Based on Jenkins’ cell phone data, Agent Shute was able to

conclude that between 10:05 p.m. and 10:43 p.m. on the night of Smith’s

murder, Jenkins was present in a geographic area that included the crime

scene. Id. at 94-98.

      Further, as stipulated by counsel, the jury heard evidence regarding

several text messages sent between Jenkins and other numbers of unknown

persons both before and after Smith’s murder. On September 8, 2010, the

night of Smith’s murder, at 10:16 p.m., Jenkins texted a number ending in

3705 the following: “He on his way with dudes frm Willows. I got bull Jerry

hammer on me.” N.T., 8/29/13, at 31. Detective Verecchio testified that he

understood “hammer” to mean “gun.” N.T., 8/28/13, at 221. Then there

was a response text from the 3705 number that read:         “You want me to

bring minds out or what!”        N.T., 8/29/13, at 31.       At 10:19 p.m.,



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approximately six minutes before Smith’s murder, Jenkins responded to the

3705 number: “Yea, he bring niggas frm 58 and Willows.” Id. at 31. The

same night, following the shooting, at approximately 10:39 p.m., a text was

sent to Jenkins from the 3705 number stating: “Switch this line for safety.”

Id. at 31-32. Then, at 11:57 p.m., there was another text to Jenkins from

the 3705 number saying “They no – boy crib. Don’t talk to him no more or

say anything to at all.” Id. at 32.

      Additionally, there was an exchange of text messages between Jenkins

and another number ending in 3496 on September 13, 2010.                Jenkins

received a text that read:   “Shit cooled dwn since that day.     It dnt be no

undies and a whole lot of cop cars sliddn up da’9 or da’0 when I be out

there. So just lay low for like anova week. R.”        Id. at 33. In response,

Jenkins sent a text to the 3496 number stating: “Helan dis Jalil cousin. Get

with me.   Dee.   A 10 on the scale.”      Id.   Finally, there was a text from

Jenkins to another number ending in 4849 on September 14, 2010 saying

“My other number to reach me at (267) 250-2979. Dee.” Id. at 34.

      Thus, based on this evidence, the certified record reflects that, in the

hour before Smith’s murder, there were several telephone conversations

between Smith and Stovall and Stovall and Jenkins, though the content of

these phone conversations is unknown. During that same timeframe on the

night of the shooting, Jenkins met with and told Watts that he was nervous

about meeting with some other men near 60th and Chester Street in order to



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“squash the beef” and that he was heading to this meeting with at least one

gun and that he would have felt safer if he had a second gun.        Jenkins

attempted to obtain a second firearm from Watts for this meeting. Shortly

before Smith’s death, Jenkins also texted an unknown person that he was

going to a meeting with unidentified individuals, that he was bringing a gun

to the meeting, and he told the recipient of the text to bring a gun with him

or her to this meeting. The record does not reveal with whom Jenkins was

meeting with or that Jenkins actually attended the meeting.       Except for

Jackson’s testimony, we do not know Jenkins’ exact location at the time

Smith was shot or if he was ever at the scene of the crime.      The record,

however, does reflect that Jenkins was in a geographic area during Smith’s

murder that included the crime scene.

      The certified record further reflects that Smith died of multiple

gunshots wounds from either a .38 caliber revolver or a .357 caliber

revolver, but we do not know which gun was used. We do know, however,

that Watts had seen Jenkins in possession of a .38 caliber revolver prior to

Smith’s murder. Finally, the certified record reflects, according to the text

messages stipulated to by the Commonwealth and Jenkins, that Jenkins was

instructed to “lay low” for a time after Smith’s death.

      Accordingly, based on this evidence, we cannot say, excluding

Jackson’s testimony, that there was overwhelming evidence of guilt.       At

most, the evidence, excluding Jackson’s testimony, reveals that at the time



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of Smith’s murder Jenkins was armed, on his way to meet with unknown

individuals to “squash the beef,” somewhere in the vicinity of the scene of

the crime.   The evidence, excluding Jackson’s testimony, also reflects that

Jenkins, at some point prior to Smith’s murder, was in possession of the

same type of gun with which Smith may have been shot.           The evidence,

excluding Jackson’s testimony is circumstantial at best, as none of it places

Jenkins at the scene of the crime when Smith was shot or identifies Jenkins

as the shooter. Therefore, we conclude that improper admission of evidence

relating to the intimidation of Jackson was not harmless.4

      Although we resolve Jenkins’ first issue in his favor, we nonetheless

proceed to address his second issue, for purposes of completeness, because

we will be remanding this case for a new trial.      For his second issue on

appeal, Jenkins argues the trial court erred in denying his request for a

mistrial based on prosecutorial misconduct.     Jenkins’ Brief at 19-28.   Our

standard of review for claims of prosecutorial misconduct 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. Not every
             inappropriate remark by a prosecutor constitutes
             reversible error. A prosecutor’s statements to a jury
             do not occur in a vacuum, and we must view them in
             context. Even if the prosecutor’s arguments are
             improper, they generally will not form the basis for a


4
   We note that the Commonwealth did not attempt to make any harmless
error argument.


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            new trial unless the comments unavoidably
            prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013) (en banc),

appeal denied, 80 A.3d 777 (Pa. 2013) (quoting Commonwealth v. Lewis,

39 A.3d 341, 352 (Pa. Super. 2012)).           Therefore, “we focus not on the

culpability of the prosecutor but rather on whether his actions deprived [the

appellant] of a fair trial by prejudicially rendering the jury incapable of fairly

weighing the evidence and entering an objective verdict.” Commonwealth

v. Melvin, 103 A.3d 1, 27 (Pa. Super. 2014).

      The prosecutorial misconduct with which the Commonwealth takes

issue followed extensive argument over the question of whether the

Commonwealth could, in response to the impeachment of Jackson and

another witness, Martamus Watts, call a fellow Assistant District Attorney to

read the entirety of those witnesses’ police statements and preliminary

hearing testimony into the record.      See N.T., 8/27/13, at 175-222; N.T.,

8/28/13, at 4-66.    The trial court ruled, much to the prosecutor’s dismay,

that the Commonwealth could rehabilitate the witnesses only as to those

points on which they had been impeached, but that it would not permit the

Commonwealth to bolster the witnesses’ testimony by pointing to their

consistency on every other point to which they had previously spoken or

testified. See id.




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J-A20009-15


      The questioning leading to the request for a mistrial proceeded as

follows:

           Q    In any way, shape or form was [Jackson] ever
           uncooperative?

           [Defense Counsel]: Objection, Your Honor.

           THE COURT: Sustained. Ms. Pescatore is not a
           witness. She’s here just to read for you what was
           said or done at the preliminary hearing notes. Her
           credibility, who she is is not for you to assess. She’s
           just here to read something to you. In fact, I don’t
           believe -- is my understanding.             That’s the
           objection?

           [Defense Counsel]: Yes, Your Honor.

           THE COURT: So even though -- so we’re just here
           so she can give to you that information in the notes
           that I think she has. So objection sustained.

           [Prosecutor]: Okay.

           BY [Prosecutor]:

           Q     So let’s go to where I’m allowed to read from.

           [Defense Counsel]: Objection.

           THE COURT: Sustained.

           BY [Prosecutor]:

                               *     *      *

           Q     Okay.      And did [Jackson], during that
           preliminary hearing, identify anyone other than
           [Jenkins] as the shooter in this case?

           [Defense Counsel]: Objection.




                                   - 21 -
J-A20009-15


          THE COURT: Sustained. What I’m going to tell my
          jury: What did or didn’t happen at the preliminary
          hearing is not what you’re evaluating.         It’s just
          whether something that you hear here is consistent
          or not, and how does that affect your view of the
          believability of [Jackson]’s testimony in court to you.

          You may continue

          BY [Prosecutor]:

                               *     *      *

          Q     Was there anywhere in these notes of
          testimony that [Jackson] named [Stovall] as the
          shooter?

          [Defense Counsel]: Objection.

          THE COURT: Sustained. Again, [Prosecutor], you
          know what she is here for. This is not for you guys
          to say, here’s what may or may not have happened
          in the preliminary hearing. We’re only hearing this
          to see if it was consistent or not with what you heard
          in court, and how does that affect witness’[]
          believability and credibility.

          [Prosecutor], I don’t want to have to interrupt you
          again. You know what my ruling was.

          BY [Prosecutor]:

          Q     Turn to Page 25, please, Ms. Pescatore.
          Starting with Line 3, you are permitted to go to Line
          15.

          [Defense Counsel]: Objection.

          THE COURT: Sustained.

          [Prosecutor]: Okay. Not 15? I don’t know.

          THE COURT: The form of the question …



                                   - 22 -
J-A20009-15



             [Defense Counsel]: It was the form of the question.

N.T., 8/28/13, at 116-24.

        Jenkins contends that the Commonwealth’s questioning irreparably

tainted the jury and implied that the trial court was hiding evidence from the

jury.    Jenkins’ Brief at 28.   While we are troubled by the prosecutor’s

disrespect for the trial court and his refusal to accept the trial court’s ruling,

we conclude that the trial court did not abuse its discretion in denying

Jenkins’ request for a mistrial. First, defense counsel’s objection prevented

Pescatore from answering the prosecutor’s questions. Second, the trial court

sustained each of defense counsel’s objections, and provided several

curative instructions to the jury informing them if the proper purpose of

Pescatore’s testimony. This Court has long held that “[a] jury is presumed

to follow a trial court’s instructions[.]”   Commonwealth v. Reid, 99 A.3d

470, 501 (Pa. 2014). Additionally, at the outset of Pescatore’s testimony,

the trial court instructed the jury as follows:

             THE COURT: I’m just going to let my jury know that
             the district attorney is about to present to you what
             we call a statement from one of the witnesses that
             you heard from, Mr. Jackson. I want to give you
             some special instructions about this statement or
             whatever it is you are about to hear.

             What you’re about to hear is not, is not, substantive
             evidence. When we say “substantive evidence,” it
             means that it’s not -- the only reason that you’re
             going to be hearing preliminary hearing -- some
             things that may have been said at a preliminary



                                      - 23 -
J-A20009-15


              hearing is for you to assess whether certain
              statements made here in court were consistent or
              not here in court. This is to help you to assess
              somebody’s credibility. It is not in any way being
              admitted into evidence. The rules -- and I’ll read for
              you what the Rule of Evidence is so that you’ll
              understand that there – the evidence rules say that
              under certain circumstance[s] -- and we’ve had a
              hearing to make sure that those circumstances are
              correct. Under certain circumstances, evidence of a
              witness’ prior consistent statement may be heard by
              the jury to rehabilitate the witness. Meaning, so that
              you may hear this for you to make a determination
              whether Mr. Jackson’s testimony was consistent or
              not, and how does that affect Mr. Jackson’s
              testimony here in court. That’s the only reason that
              it’s being admitted.        We call it rehabilitation
              evidence.

N.T., 8/28/13, at 112-13. Our Supreme Court has held that “[a] mistrial is

not necessary where cautionary instructions are adequate to overcome

prejudice.”    Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa.

2011).    Therefore, there was no abuse of discretion in the trial court’s

determination that the challenged questioning did not require the remedy of

a mistrial.

      Judgment of sentence vacated.            Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015


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