J-A20020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALONZO ELLISON

                            Appellant                 No. 2564 EDA 2012


             Appeal from the Judgment of Sentence July 25, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006872-2009


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                         FILED SEPTEMBER 23, 2014

        Appellant, Alonzo Ellison, appeals from the July 25, 2012 judgment of

sentence of life without the possibility of parole after a jury found him and

his co-defendants, Mikechel Brooker and Ferock Smith1, guilty of murder in

the first degree, criminal conspiracy, firearms not to be carried without a

license, and possession of an instrument of a crime (PIC).2        After careful

review, we affirm.

        The trial court summarized the relevant facts and procedural history of

this case as follows.

____________________________________________
1

                     currently pending in this Court at 188 EDA 2013.
2
    18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively.
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          was shot and killed on the 8700 Block of Glenoch
          Place in Philadelphia, by [Appellant], Ferock Smith
                                                            an
          apparent dispute over drug territory after Antoniette

          [Appellant].   When Gray[,] shortly thereafter[,]
          purchased drugs from Jacobs, [Appellant], Smith,
          and Brooker shot Jacobs multiple times. At trial,
          Gray testified that she did not remember the
          shooting and her July 20, 2008[] statement to police
          was admitted. In her statement, Gray identified
          [Appellant], Smith, and Brooker as the three people
          who shot Jacobs. Gray also saw [Appellant], Smith,
          and Brooker the next day and heard them laughing
          about shooting Jacob[s].      Another eyewitness,

          someone standing over Jacobs and shoot him in the
          head.     Gould had identified that person as
          [Appellant] in a July 18, 2008 statement to police,
          which was introduced at trial.


          testified that she did not remember the events after
          the shooting and her July 19, 2008 statement to
          police was admitted. In her statement, Sampson
          stated that [Appellant], Smith, and Brooker came to
          her apartment on the night of July 18, 2008.
          Sampson stated that she let [Appellant], Smith, and
          Brooker use her apartment because they gave her
          drugs.     [Appellant], Smith and Brooker had a
                                        apartment that night,
          during which she heard Smith say he shot Jacobs.
          Smith and Brooker had handguns with them which

          asked [Appellant] to remove the guns from her
          apartment and [Appellant] took a 9 millimeter
          handgun from Smith.     Brooker and Smith left

          time, [Appellant] gave the 9 millimeter handgun
          back to Smith.    [Appellant] stayed and slept at

          the rear of the apartment when the police were
          knocking at the front door. A .32 caliber handgun

                                  -2-
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Trial Court Opinion, 12/26/12, at 2-3.

        On June 1, 2009, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses, as well as one count each of

persons not to use a firearm and carrying firearms in public in Philadelphia.3

On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of

said trial, on July 16, 2012, the jury found Appellant guilty of first-degree

murder, criminal conspiracy, firearms not to be possessed without a license,

and PIC. The Commonwealth nolle prossed the remaining two charges. On

July 25, 2012, the trial court imposed a sentence of life imprisonment

without the possibility of parole as to first-degree murder. The trial court did

not impose any further penalty on the remaining charges. On July 31, 2012,

Appellant filed a timely post-                                               verdict

was against the weight of the evidence.                 See generally Pa.R.Crim.P.

607(A)(3).     The trial court entered an order on August 6, 2012, denying

                   -sentence motion.           On August 23, 2012, Appellant filed a

timely notice of appeal.4

        On appeal, Appellant raises four issues for our review.



____________________________________________
3
    18 Pa.C.S.A. §§ 6105(a.1)(1) and 6108, respectively.
4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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J-A20020-14


              I.     Is [Appellant] entitled to an arrest of judgment
                     on all charges as the verdict is not supported
                     by sufficient evidence?

              II.    Is [Appellant] entitled to a new trial as the
                     verdict is not supported by the greater weight
                     of the evidence?

              III.   Is [Appellant] entitled to a new trial as the
                     result of [trial c]ourt error where the [trial
                     c]ourt denied a mistrial request, even though
                     the [Commonwealth] branded [Appellant] as a
                     drug dealer, all to his untold and unfair
                     prejudice?

              IV.    Is [Appellant] entitled to a new trial as the
                     result of prosecutorial misconduct during
                     closing argument where the [Commonwealth]
                     made       a     knowing        and   material
                     misrepresentation as to the possession of a
                     firearm allegedly used in this case?




provide sufficient evidence that Appellant was a principal, conspirator, or

accomplice regarding first-degree murder.        Id. at 14-15.    Regarding his

conspiracy conviction, Appellant also argues

                                                  Id. at 17.5



____________________________________________
5
  We note that Appellant placed this argument in his second argument point
pertaining to the weight of the evidence. Nevertheless, as he did raise this
element in his Rule 1925(b) statement on sufficiency grounds, we will
address it with the balance of his sufficiency argument.



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     Our standard of review regarding challenges to the sufficiency of the

                                           In reviewing the sufficiency of the

evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth

                       Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.



wholly circumstantial evidence and any doubt about the defend

to be resolved by the fact finder unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

                                      Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted) , appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an



                       Id.                                                the

credibility of witnesses and the weight of the evidence produced is free to

                                            Commonwealth v. Kearney, 92



sufficiency is a question of law, our standard of review is de novo and our

                              Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted).




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J-A20020-14




regarding his conviction for murder in the first degree. The relevant statute

provides as follows.

            § 2502. Murder

            (a) Murder of the first degree.--A criminal
            homicide constitutes murder of the first degree when
            it is committed by an intentional killing.



            (d) Definitions.--As used in this section the
            following words and phrases shall have the meanings
            given to them in this subsection:



                                   Killing by means of poison, or
            by lying in wait, or by any other kind of willful,
            deliberate and premeditated killing.



                            A person    who    is   the   actor   or
            perpetrator of the crime.

18 Pa.C.S.A. § 2502.     Furthermore, our Supreme Court has consistently

stated when proving the sufficiency of the evidence for first degree murder,

                                as follows.

                  In order to sustain a conviction for first-degree
            murder, the Commonwealth must prove that: (1) a
            human being was unlawfully killed; (2) the
            defendant was responsible for the killing; and (3) the
            defendant acted with malice and a specific intent to
            kill. Specific intent and malice may be established
            through circumstantial evidence, such as the use of a




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J-A20020-14


Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal

citation omitted).

      Additionally,   Appellant   challenges    the    sufficiency   of   the




             § 903. Criminal conspiracy

             (a) Definition of conspiracy.--A person is guilty
             of conspiracy with another person or persons to
             commit a crime if with the intent of promoting or
             facilitating its commission he:

             (1) agrees with such other person or persons that
             they or one or more of them will engage in conduct
             which constitutes such crime or an attempt or
             solicitation to commit such crime; or

             (2) agrees to aid such other person or persons in
             the planning or commission of such crime or of an
             attempt or solicitation to commit such crime.



             (e) Overt act.--No person      may be convicted of
             conspiracy to commit a crime   unless an overt act in
             pursuance of such conspiracy   is alleged and proved
             to have been done by him       or by a person with
             whom he conspired.



18 Pa.C.S.A. § 903.      To sustain a criminal conspiracy conv            the



agreement with another to commit or aid in the commission of a crime; 2)

he shared the criminal intent with that other person; and 3) an overt act was


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J-A20020-14


committed in furtherance                         Commonwealth v. Nypaver,

69 A.3d 708, 715 (Pa. Super. 2013) (citation omitted).

       After careful review of the certified record, we conclude that the

Commonwealth presented sufficient evidence to sustain the convictions. In

the case sub judice, the Commonwealth presented the testimony of Gray.

Gray testified that she could not recall the events that transpired on the

night of the shooting.          N.T., 7/10/12, at 112-113.   As a result, the

                                                             ent to the police



statement, Gray told the police that she was only a few feet away from

Jacobs when he was killed, and that she knew who killed him. Id. at 122.

Recalling the events of July 18, 2008, Gray told the police that prior to the

                                                             Id. at 123.6 Gray



                                                                        Id. at

123, 124-125. She further testified that after Jacobs fell to the ground, two

other men named Butter and Doughnut each shot Jacobs in the head and in

the chest while he was on the ground. Id. at 123-125. Gray was shown a

photo array and picked out photographs of Appellant and his co-defendants

as those who shot Jacobs. Id. at 148.
____________________________________________
6

123.



                                           -8-
J-A20020-14


     In addition



                                       Eleanore    Sampson,   who   was   an

                                                                        N.T.,

7/11/12, at 213.    Gould, who viewed the murder from his living room

window, also identified Appellant as the man who shot Jacobs. Id. at 162.



sufficiency arguments. The Commonwealth presented substantive evidence

that identified Appellant as one of the three men who shot Jacobs in the

head and in the chest, as an eyewitness was only a few feet away at the

time of the shooting. Pennsylvania courts have consistently held that this is

sufficient for a first-degree murder conviction.   See Commonwealth v.

Mattison, 82 A.3d 386, 392 (Pa. 2013) (concluding sufficient evidence

                eye witness testimony demonstrate[d] that [the defendant]

                                             range while the victim was lying




between Appellant and his cohorts to kill Jacobs. See Commonwealth v.

Collins, 70 A.3d 1245, 1250 (Pa. Super. 2013) (concluding that a jury can

infer an agreement for conspiracy purposes where the defendant and a

cohort arrive and leave the crime scene together), appeal denied, 80 A.3d




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J-A20020-14


774 (Pa. 2013). As a result, Appellant is not entitled to relief on this issue.

See Diamond, supra.




weight of the evidence does not establi



                                                           -                  Id.



w

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

evidence    concedes   that   the   evidence   was   sufficient   to   sustain   the

convictions.   Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014).                     Our



granted because of a mere conflict in the testimony or because the judge on



Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

                                                                       all the facts,

certain facts are so clearly of greater weight that to ignore them or to give

                                                                       Id. (internal




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J-A20020-14




                     Id.




Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).




Id.                                                      inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

                                                        Id. (citation omitted;

emphasis in original).

                                                                 ented by the



eyewitness testimony identifying [A]ppellant as being involved in the

shooting death of [Jacobs], and the civilian witnesses that did testify before

the jury all denied inculpating [A]ppellant in any out-of-

                         -18.

      To the extent these arguments speak to the weight of the evidence, as

opposed to its sufficiency, we conclude Appellant is not entitled to relief. As

noted above, through the use of her prior inconsistent statement to police,

evidence was admitted that Gray witnessed Appellant and his co-defendants

shoot Jacobs in the head and in the chest at close range. N.T., 7/10/12, at


                                    - 11 -
J-A20020-14


123-125. In addition, the Commonwealth presented Go

he witnessed the shooting from the view of his living room window.

Specifically, Gould stated he heard gunshots outside and went to his



person standing over [Jaco                                                      Id. at

144.    In his statement to the police, Gould identified that shooter as

            Id. at 144-145. Gould identified Appellant at trial as that Alonzo.

Id. at 145.

       It is axiomatic that the jury is the ultimate finder of fact at trial.

                    [T]he veracity of a particular witness is a
              question which must be answered in reliance on the
              ordinary experiences of life, common knowledge of
              the natural tendencies of human nature, and
              observations of the character and demeanor of the
              witness. As the phenomenon of lying is within the
              ordinary capacity of jurors to assess, the question of

              jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

L

and the weight of the evidence produced, is free to believe all, part or none

                      Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, --- A.3d ---, 1035 MAL 2013 (Pa. 2014). This

includes when a witness recants a prior statement. See Commonwealth v.

Hanible

                                                                           imony at


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J-A20020-14


trial recanting that statement, and free to believe all, part, or none of the

                                     cert. denied, Hanible v. Pennsylvania, 133

S. Ct. 835 (2013). Therefore, the jury was free to believe or disbelieve Gray

                 cantation of their prior statements to police and credit those

original statements. See id. As an appellate court we will not reweigh the

evidence   and    substitute   our    judgment   for   that   of   the   fact-finder.

Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation

omitted). Based on these considerations, we conclude the trial court did not

                                                                                    -

sentence motion arguing that the verdict was against the weight of the

evidence. See Morales, supra.

     In his third issue, Appellant avers that the trial court erred when it

refused to grant a mistrial when the Commonwealth insinuated that



previous issues, we begin by stating our standard of review.

           It is well-
           denial of a motion for a mistrial is limited to
           determining whether the trial court abused its
           discretion. 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-
           abused. A trial court may grant a mistrial only
           where the incident upon which the motion is based is
           of such a nature that its unavoidable effect is to
           deprive the defendant of a fair trial by preventing the
           jury from weighing and rendering a true verdict. A


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J-A20020-14


              mistrial is not      necessary    where   cautionary
              instructions are adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation

omitted); see also Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.



trial   was   warranted   due   to   prosecutorial   misconduct   for   abuse   of




                                            redirect examination of Detective

Thomas Gaul.

              [Commonwealth]:         Based on the information you
              received -- and [defense counsel] has asked about
              [Jacobs], and the information that he was actively
              dealing in that same area; correct?



              [Commonwealth]:        Based on the information
              that you received from the witnesses -- were these
              three defendants also actively dealing in that area?



              [Defense Counsel]:      Objection.



              [Trial Court]:    Sustained. The jury will absolutely
              disregard that last question.


              direct.




                                      - 14 -
J-A20020-14


                 Members of the jury, you will totally disregard
           the last question. It insinuated things that are not
           relevant to this case. That should not be considered
           by you.      That should have no part in any
           consideration or discussions that you have during
           your deliberations.



           [Defense Counsel]:   Just    for    the   record,
           notwithstanding the admonition, for the record, I

           question.

           [Trial Court]:    Denied.

N.T., 7/12/12, at 131-132, 134.

     Assuming arguendo



error may be considered harmless only when the Commonwealth proves

beyond a reasonable doubt that the error could not have contributed to the

          Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super.

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013).

           The Commonwealth bears the burden of establishing
           the harmlessness of the error.         This burden is
           satisfied when the Commonwealth is able to show
           that: (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 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
           [e]ffect of the error so insignificant by comparison
           that the error could not have contributed to the
           verdict.


                                   - 15 -
J-A20020-14


Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation

omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014).

      In this case, the Commonwealth presented additional evidence that

Appellant sold drugs.    Gray told the police in her original statement that

Appellant attempted to sell her drugs but she rejected that offer.         N.T.,

7/10/12, at 122. Gould also testified via his original statement to the police

that Appellant sold drugs in the neighborhood.            N.T., 7/11/12, at 163.

Furthermore, the

examination with the Commonwealth.

            [Commonwealth]:           Do you see Butter in the
            courtroom today?

            [Sampson]:

            is Butter I think.

            [Commonwealth]:        Okay. Your Honor, for the
            record identifying Alonzo Ellison by point of finger
            and also by location in relation to the other


            [Sampson]:           Through drug activity.

            [Commonwealth]:           What do you mean?

            [Sampson]:           I would get drugs from him.

            [Commonwealth]:        And would you also get drugs
            from him inside the projects?

            [Sampson]:           No. Mostly I would have him come
            to my house.

Id. at 213-214.


                                       - 16 -
J-A20020-14


      Based on this testimony, at a minimum, we conclude that any error

was harmless in this instance.      At no point did Appellant object to the

testimony of Gray, Gould or Sampson indicating that Appellant sold drugs.

Therefore, the reference in question by the Commonwealth during Detective

                      ng that Appellant sold drugs was harmless because it

was de minimis

Green, supra. As a result, Appellant is not entitled to relief on this issue.

      In his fourth issue, Appellant avers that the trial court erred in

overruling an objection to a factual misstatement made during the



                   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
                                                        ccur in a
            vacuum, and we must view them in context. Even if

            generally will not form the basis for a new trial
            unless the comments unavoidably prejudiced the
            jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa. Super. 2012) (en

banc) (internal quotation marks and citations omitted), appeal denied, 57

A.3d 65 (Pa. 2012).

      In the case sub judice, Appellant objected to the following remark by

the Commonwealth during its closing argument.


                                     - 17 -
J-A20020-14


              [Commonwealth]:         Also,   that   Worm     and
              [Appellant] had conversations about 9[-]millimeters.
              There was a 9-millimeter there. Butter asked Worm
              for his 9-millimeter. I mean these people have guns


              [Defense Counsel]:      Objection.

              [Trial Court]:    Overruled.

N.T., 7/13/12, at 96-

actually was that Worm asked him for his 9-millimeter, not the other way

around.     Id.

accurate.    See N.T., 7/11/12, at 231.        Appellant argues that this was a




        After careful review, we conclude Appellant is not entitled to relief on

this

nicknames was backwards, Appellant has not pointed to anywhere in the

record to support the notion that this singular reference was a deliberate

                                    Id.   Without

argument cannot succeed. See, e.g., Commonwealth v. Simmons, 662

A.2d 621, 639 (Pa. 1995) (concluding a new trial was not warranted where,



misquotation

cert.   denied,   Simmons      v.   Pennsylvania,    516   U.S.   1128   (1996);

Commonwealth v. Mollett, 5 A.3d 291, 311 (Pa. Super. 2010) (stating,


                                      - 18 -
J-A20020-14


                                                                      g statement

constitutes reversible error only if the prosecutor deliberately attempts to

                                                                 appeal denied, 14

A.3d 826 (Pa. 2011).

        In addition, the trial court also carefully instructed the jury regarding

closing arguments as follows.

                    You should keep in mind, however, that you


              evidence and yours alone that has to guide you when
              you deliberate.

                     If there is a discrepancy between how the
              lawyers remember something and how you
              remember it, you should be guided by your own
              recollection.

N.T., 7/13/12, at 11-12.



                 Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013)

(citation omitted).     Furthermore, our Supreme Court has held that courts

may deem a prosecutorial misstatement cured by the trial court giving the

above-quoted instruction to the jury. Commonwealth v. Smith, 995 A.2d

1143,    1164    (Pa.   2010)   (citation   omitted),   cert.   denied,   Smith   v.

Pennsylvania, 131 S. Ct. 518 (2010).            As the trial court gave such an

instruction in this case, we conclude the trial court did not abuse its

                                            ction. See Bedford, supra.




                                       - 19 -
J-A20020-14




sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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