J-S21007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN ADAMS

                             Appellant                  No. 3892 EDA 2017


         Appeal from the Judgment of Sentence entered July 11, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0013625-2012


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                                FILED MAY 20, 2020

       Appellant, John Adams, appeals from the judgment of sentence entered

on July 11, 2017 in the Court of Common Pleas of Philadelphia County

following his convictions of aggravated assault and related crimes. Appellant

asserts several trial court errors including denial of his requests for a new trial

and a post-sentence evidentiary hearing, rejection of claims of prosecutorial

misconduct, limiting the cross-examination of a Commonwealth witness, and

denial of his request for a Kloiber1 instruction. Upon review, we affirm.

       The trial court provided the following factual history, supported with

citations to the trial transcripts, as follows:

       On August 5, 2012, at or around 10pm, a shooting took place at
       2063 Ridge Avenue, in the City and County of Philadelphia.

____________________________________________


1   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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     Located at this address was The Traveler’s Club, the bar of choice
     for the Wheels of Soul motorcycle club. Complainants Darrell
     Jenkins and Gregory Gordon[fn] were with others at The Traveler’s
     as part of a repass for a friend who was a member of another
     motorcycle club, Jay Hawkers. Mr. Jenkins is a disabled veteran
     of the Marine Corps. Appellant and his girlfriend arrived at
     Traveler’s, socialized, and played pool. A few hours after his
     arrival, Mr. Jenkins heard various people arguing and trying to
     escort Appellant out of the facility and its vicinity. Appellant grew
     violent whilst being ejected. There was conflicting testimony as
     to whether the Appellant is left or right handed. Appellant’s eye
     became injured during the commotion, at which point his girlfriend
     tried to bring him to their vehicle in order to escort him to the
     hospital. Shots were fired while they were trying to enter their
     vehicle. During the first round of gunshots Gregory Gordon
     shouted he had been hit in the shoulder. Appellant returned to
     the scene, reaching into his waistband for a gun. Witnesses
     attempted to hold Appellant back, who then began shooting,
     hitting Darrell Jenkins in the left foot.

        [Fn] Complainant Gregory Gordon was uncooperative and did not testify
        during trial.

     Following the shooting incident, both Complainants drove together
     to the hospital in a white SUV. Philadelphia Police Officer Wright
     observed their vehicle ignore stop signs and speeding, and
     attempted to pull them over, to which they did not comply. The
     Complainants continued on and pulled into the emergency bay at
     Presbyterian Hospital. Mr. Gordon exited the vehicle and informed
     the police he was shot in the shoulder, while Mr. Jenkins was
     brought directly into the hospital for treatment. Officer Wright
     noticed that the rear driver’s side window was broken, and the
     driver’s side rear tire was on its rim. Later, a shell casing was
     found near the vehicle. While in the hospital, both Complainants
     reported being shot by an unknown individual.

     Philadelphia Police Officers O’Shaughnessy and Hernandez
     responded to a radio call report of gunshots and arrived at
     Traveler’s Club two to three minutes after the call. Approximately
     thirty people remained at the scene. Witnesses reported the
     gunshots had come from near the Bloomberg housing
     development. Officers O’Shaughnessy and Hernandez left after
     surveying the area with negative results. When they were later
     informed that gunshot victims from Traveler’s had been admitted


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         to Presbyterian, the officers returned to the club. Three to four
         people remained there, with one male trying to close and lock the
         gate. Officers gained entry and surveyed the scene, finding three
         spent shell casings, a projectile, and blood.                Officers
         O’Shaughnessy and Hernandez received the names of the victims
         from the Police Officers at the hospital and filled out the required
         paperwork. They remained on scene until 11:50pm.

         On August 7, 2012, Darrell Jenkins gave a statement to Detective
         Rocks, detailing the events of the shooting. A confidential
         informant provided Detective Rocks with information implicating
         the Appellant. Based on the available information, on August 9,
         2012, Mr. Jenkins was shown a photo array and chose the
         Appellant out of the array in less than 5 seconds. On October 26,
         2012, Appellant was driving his girlfriend’s car and disregarded a
         stop-sign.     Police Officer Celce stopped the vehicle and
         immediately recognized Appellant from an outstanding warrant.
         Officer Celce asked for identification, which Appellant did not
         provide. Appellant provided a false name and number, but his
         correct date of birth. As Appellant had a warrant out for his arrest,
         Officer Celce requested he exit the vehicle and was subsequently
         hand-cuffed.

Trial Court Opinion, 11/14/18 at 2-4 (citations to notes of testimony omitted).

         Appellant was arrested and charged with aggravated assault, violations

of the uniform firearms act, possession of an instrument of crime, simple

assault, and reckless endangerment. His first trial ended in a mistrial with a

deadlocked jury. Following an appeal to this Court, we remanded for a new

trial.

         On May 9, 2017, the jury returned a guilty verdict on all charges. On

July 11, 2017, the trial court sentenced Appellant to seven to fifteen years in

prison, followed by five years’ reporting probation.           On July 13, 2017,

Appellant filed post-sentence motions requesting a new trial.          On July 21,

2017, he filed an additional post-sentence motion to dismiss based on

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prosecutorial misconduct. The trial court denied both motions on October 30,

2017. This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant asks us to consider five issues in this appeal:

      A.     Did the lower court err in denying [Appellant’s] request for
      a mistrial because the Assistant District Attorney in his closing
      argument repeatedly called into question defense counsel’s
      strategies and accused defense counsel of hiding evidence when,
      in fact, defense counsel was simply obeying the rules of court?

      B.     Did the lower court err in denying [Appellant] certain post-
      sentence discovery and relief where [Appellant] had a good-faith
      basis to believe that the Assistant District Attorney had a pattern
      and practice of accusing defense counsels [sic] of hiding evidence
      in his closing arguments?

      C.   Did the lower court err in denying [Appellant’s] request for
      a Kloiber instruction where the Commonwealth’s witness
      repeatedly failed to identify [Appellant]–or anyone else–as the
      perpetrator of the crime?

      D.    Did the lower court err in denying [Appellant] the right to
      cross examine the Commonwealth’s witness on the potential
      sentence he faced if he violated his probation or from inquiring on
      which charges the witness was serving his probation?

      E.    Did the lower court err in denying [Appellant’s] request for
      a new trial where the verdicts were against the weight of the
      evidence?

Appellant’s Brief at 4-5.

      Appellant first contends the trial court erred by denying his request for

a mistrial. As our Court recently reiterated, our standard of review of the trial

court’s denial of a motion for mistrial 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

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      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. Bennett, --- A.3d ---, 2019 PA Super 363, *15 (filed

December 23, 2019) (quoting Commonwealth v. Caldwell, 117 A.3d 763,

774 (Pa. Super. 2015) (additional citation omitted)). As our Supreme Court

has instructed, “reversible error arises from a prosecutor’s comments only

where the unavoidable effect is to prejudice the jurors, forming in their minds

a fixed bias and hostility toward the defendant such that they could not weigh

the evidence objectively and render a fair verdict.” Commonwealth v. Reid,

99 A.3d 470, 507 (Pa. 2014) (citation omitted).

      Appellant argues that the prosecutor “repeatedly commented on

defense counsel’s tactics;” “accused defense counsel of using objections to

hide evidence;” “told the jury that defense counsel’s job is to do whatever he

can to get the best result for [Appellant];” and “accused defense counsel of

using leading questions [on cross-examination of the Commonwealth’s

witness] to hide evidence from the jury.” Appellant’s Brief at 21-22. The trial

court considered these allegations during argument at the conclusion of

closing arguments and accepted letter briefs prior to ruling on the mistrial

motion. The trial court determined that the prosecutor’s remarks were “right

at the line.” Notes of Testimony, Trial, 5/9/17, at 5. The trial court denied




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the motion, but accepted and subsequently delivered the following curative

instruction proposed by Appellant’s counsel:

             Yesterday in closing arguments, you heard an objection in
      the middle of closing arguments and I do want to give you an
      instruction pertaining to the objection so you can have an
      understanding as to what occurred during the objections.
             In the closing remarks of the assistant district attorney[, he]
      suggested to you that the defense counsel [] had used objections
      during the trial to hide certain evidence from you and used yes or
      no questions to also hide evidence to do the same. In addition,
      during his closing arguments, the assistant district attorney
      suggested that the defense counsel[’s] motivation in doing this
      was to secure a favorable result for his client and nothing more.
      These remarks were improper.
             Attorneys on both sides must object during trial when they
      believe that inadmissible evidence is being offered. And on cross-
      examination, it is expected that attorneys will ask yes or no
      questions. Nonetheless, all of the evidence that the assistant
      district attorney in his argument claimed was hidden from you
      was, in fact, presented to you at some point during these
      proceedings.
             I need you to understand that it is defense counsel’s duty to
      advocate for his client and it is no different than the assistant
      district attorney’s duty to advocate for the interest of the
      Commonwealth. Okay? So just like I explained in the beginning,
      when either counsel make an argument, it’s not evidence, it’s just
      their argument. Now, let me go forward with my final instructions.

Id. at 8-10. When the trial court informed counsel of the intent to deliver the

curative instruction, Appellant’s counsel thanked the court for agreeing to

deliver the instruction. No further objection was lodged.

      The trial court recognized that prosecutors have considerable latitude

with their closing arguments and explained, “Here, while the comments made

may have been inappropriate as they commented on the defense’s strategy,

they do not rise to the level of prosecutorial misconduct.          No evidence


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suggests that the jury was prejudiced against the Appellant, thus impacting

his right to a fair and impartial trial.”   Trial Court Opinion, 11/14/18, at 7

(citation omitted).

      Our Supreme Court has recognized that “[w]hen the trial court gives

adequate cautionary instructions, declaration of a mistrial is not necessary.”

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (citation omitted).

      Here, we find the trial court’s cautionary instruction, in the language

proposed by defense counsel, cured any harm caused by the prosecutor’s

statements.    We find no abuse of discretion in the trial court’s denial of

Appellant’s motion for a mistrial. Therefore, Appellant’s first issue fails.

      Appellant’s second issue is somewhat related to his first. In his second

issue, he asserts trial court error for denying a post-sentence discovery motion

seeking disclosure of cases in which the prosecutor presented closing

arguments. Appellant’s counsel explained that after filing the post-sentence

motion in this case, he “serendipitously learned that the [ADA’s] misconduct

was not an isolated incident” but was rather a “pattern of [] rogue, improper

behavior.” Appellant’s Brief at 26. In support of the charge, he referenced a

2015 trial in which the same prosecutor made a comment in closing argument

about defense counsel “objecting conveniently.” Id. at 29. Consequently,

Appellant’s counsel sought to inspect the prosecutor’s closing arguments in

other cases and requested an evidentiary hearing on the matter “to determine

if a broader pattern of injustice exists.” Id. at 30.


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         The trial court denied the motion, noting that “Appellant cites to no

source of authority from which it can be discerned that Appellant has this

right.     Appellant simply points to one instance in which the [ADA] also

mentioned objections during testimony in his closing argument, and asserts

that this illustrated a pattern.”       Trial Court Opinion, 11/14/18, at 6.

Regardless, as reflected above, the trial court determined that the

prosecutor’s remarks in the instant case did “not rise to the level of misconduct

warranting a new trial. Therefore, the court did not err in denying Appellant’s

motion for an evidentiary hearing and discovery.” Id. We agree. Appellant’s

second issue fails for lack of merit.

         Appellant next argues the trial court erred in denying his request for a

Kloiber instruction, contending the Commonwealth’s witness, Darrell Jenkins,

“repeatedly failed to identify [Appellant]—or anyone else—as the perpetrator

of the crime.”        Appellant’s Brief at 30.     As this Court explained in

Commonwealth v. Sanders, 42 A.3d 325 (Pa. Super. 2012), “[a] Kloiber

instruction informs the jury that an eyewitness identification should be viewed

with caution when either the witness did not have an opportunity to view the

defendant clearly, equivocated on the identification of the defendant, or has

had difficulties identifying the defendant on prior occasions.” Id. at 332 (citing

Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010)). “We evaluate whether

a Kloiber instruction is necessary under an abuse of discretion standard.” Id.




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at 332-33 (citing Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.

Super. 2008)).

      Appellant suggests Jenkins was confused when he initially identified

Appellant from a photo array, refused to make an in-court identification of

Appellant, and qualified his identification of Appellant on other instances.

Appellants’ Brief at 33-34. However, as the Commonwealth counters, Jenkins

identified Appellant as the person who shot Gregory Gordon.                   Any

equivocation on Jenkins’ part to identifying Appellant as the person who shot

Jenkins was irrelevant as the charges Appellant faced related to the shooting

of Gordon only. As the Commonwealth notes:

      Mr. Jenkins confirmed that [Appellant] was the person he saw
      getting escorted out of the motorcycle club, the person who
      returned to the club with a gun, and the person who was shooting
      when Mr. Gordon was hit. In fact, he confirmed that he was “100
      percent certain that [Appellant] was the individual that came to
      Travelers and started shooting.” In prior testimony, Mr. Jenkins
      confirmed that he was “near positive” and “positive” that “the
      male that was shooting inside the park[ing] lot . . . is the same
      person that was kicked out of the club earlier.”

Commonwealth Brief at 18 (citations to notes of testimony omitted).

      Appellant also complains that Jenkins refused to identify Appellant at

the preliminary hearing and at Appellant’s first trial. However, the “failure” to

identify Appellant on those occasions was explained by Jenkins when he

testified about his post-traumatic stress disorder, his inability “to face the fact

at the time,” and his fear of looking directly at Appellant in court. Id. at 20

(citations to notes of testimony omitted). As Jenkins testified:


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      I’m sitting up here and going through a lot of emotion about the
      situation. It’s kind of hard to be in the same room with someone
      that tried to take your life. It was hard to even look in that
      direction during these courtrooms, because I was afraid of myself
      of how I would react. . . . So last time I was sitting here, I was
      saying that I’m not positive because I didn’t—I can’t really look at
      him. I can’t really look at him. But now it’s hard for me right now
      to look at him knowing it’s the same guy that’s in this courtroom
      with me. So I apologize. But I’m a hundred percent sure I know
      what I seen that night.

Notes of Testimony, Trial, 5/5/17, at 93-94. As the Commonwealth argues,

“Mr. Jenkins’ prior refusal to identify [Appellant] in court based on his fear of

facing him in person did not change his ability to observe [Appellant] during

Mr. Gordon’s shooting.” Commonwealth Brief at 21.

      Here, the trial court determined, “Jenkins was able to see Appellant

clearly and saw him multiple times; he did not fail to identify him previously

and also identified Appellant with 100% certainty.          Based on the facts

presented in testimony, there was no need for a cautionary instruction

because Jenkins’ identification was not unreliable.”       Trial Court Opinion,

11/14/18, at 11.

      Based on our review of the record, we agree with the trial court’s

assessment of the Jenkins testimony identifying Appellant as the person who

shot Gordon. Therefore, we find no abuse of discretion on the part of the

court in refusing the Kloiber instruction. Appellant’s third issue fails for lack

of merit.

      In his fourth issue, Appellant asserts trial court error for limiting cross-

examination of Jenkins with respect to a possible sentence Jenkins might face

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if he were found to be in violation of his probation. As Appellant observes, at

the time of Appellant’s trial, Jenkins was on probation for a 2014 case

involving two violations of the uniform firearms act. While Appellant was able

to question Jenkins about his probationary status, he contends he was

improperly precluded from questioning Jenkins about the “duration of the

sentence he could face if found in violation or the actual crimes for which he

was serving the probation.” Appellant’s Brief at 36. Therefore, he submits,

he was prevented “from fully challenging the witness’s self-interest and

meaningfully establishing his expectation of leniency.” Id. at 38.

      As a challenge to the admissibility of evidence, we review Appellants’

issue for abuse of discretion. As this Court observed in Commonwealth v.

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

      Our standard of review for a trial court’s evidentiary rulings is
      narrow, as the admissibility of evidence is within the discretion of
      the trial court and will be reversed only if the trial court has abused
      its discretion.    Commonwealth v. Hanford, 937 A.2d 1094,
      1098 (Pa. Super. 2007), appeal denied, 598 Pa. 763, 956 A.2d
      432 (2008). An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      the exercise of judgment that is manifestly unreasonable, or the
      result of bias, prejudice, ill will or partiality, as shown by the
      evidence of record. Commonwealth v. Mendez, 74 A.3d 256,
      260 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014)].

Id. at 35.

      In Commonwealth v. Williams, 220 A.3d 1086 (Pa. Super. 2019), this

Court reiterated:

      “A witness may be impeached on cross-examination to show the
      witness’ bias, dishonesty, or defects in h[er] ability to observe,

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       remember or recount the matter about which [s]he has testified.”
       Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236, 241
       (1982). “[W]henever a prosecution witness may be biased in
       favor of the prosecution because of outstanding criminal charges
       or because of any non-final criminal disposition against h[er]
       within the same jurisdiction, that possible bias, in fairness, must
       be made known to the jury.” Commonwealth v. Evans, 511 Pa.
       214, 512 A.2d 626, 631 (1986). Our Court has held that “[a]n
       order placing a criminal defendant on probation does not
       constitute a final disposition of a criminal case against him” as
       probation is a conditional order “placing the defendant under the
       supervision and control of the court ... to be followed by a final
       judgment of discharge [] if the conditions of his probation are
       complied with [] or by a final judgment of sentence on his being
       brought before the court following a violation of the terms of his
       probation[.]” Commonwealth v. Buksa, 440 Pa. Super. 305,
       655 A.2d 576, 581 (1995) (citation omitted).

Id. at 1093 (alterations in original)

       A review of the trial transcript reveals that the prosecution raised the

issue of Jenkins’ probationary status with the court in the following exchange:

       Prosecutor: Your Honor, Mr. Jenkins is on probation, and I
       understand that’s allowed to come in, however, I have an
       objection to bringing out what he is on probation for since it’s not
       a crimen falsi conviction. We can frame it to just that he’s on
       probations, and I have no objection to that.

       The Court: The probation does not apply to crimen falsi?

       Defense Counsel: It’s a 6108 and 6106 case.[2]

       Prosecutor: From 2014.

       Defense Counsel: And one of the charges is a felony, punishable
       up to seven years in jail. I believe it’s relevant that I can bring up
       the penalty, because that’s the issue. If he’s not cooperative, he
       could face up to seven years in jail on the 6108. . . . I think there
____________________________________________


2 18 Pa.C.S.A. § 6108 (carrying firearms on public streets or public property
in Philadelphia) and § 6106 (firearms not to be carried without a license).

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        is probative value in the fact he’s facing serious gun charges
        where the same district attorney’s office is prosecuting him.

        ...

        The Court: So wait. You’re saying because he’s facing – or
        because he’s on probation for gun charges, it’s relevant to this
        case?

        Defense Counsel: Yes. Absolutely.

        The Court: The fact he’s on probation for his own gun charges,
        that’s relevant to this case?

        Defense Counsel: Yes.

        The Court: No, it is not. You can bring up the fact he’s on
        probation, but you cannot bring up the basis or the actual terms
        of the crime for which he is on probation.

        Defense Counsel: Am I allowed to bring up it’s a felony charge,
        and he has seven years of jail hanging over him?

        The Court: No.

        Defense Counsel: Am I allowed to go into the fact he’s facing jail
        time if he’s found in violation? I think that’s the whole thrust. It
        goes back to Davis [v.] Alaska.[3] I’m allowed to bring up his
        possible motives to shape his testimony one way or the other. If
        I can’t bring out the fact he’s looking at jail time it renders the
        cross-examination useless.

        The Court: I mean, anyone is looking at jail time if they don’t
        come to court; you could bring that up, the fact he could be in
        violation of his probation if he did not participate.

        Defense Counsel: Okay.

        The Court: But as far as what he’s on probation for and what he’s
        doing—the fact that he’s on probation, you can bring that up, but


____________________________________________


3   Davis v. Alaska, 415 U.S. 308 (1974).

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       you can’t bring up what his case entails, because the charges are
       not relevant to what occurred and what happened.

       Defense Counsel: Very well.

Notes of Testimony, Trial, 5/5/17, at 66-69.

       We initially observe that the exchange began as a statement of an

objection by the prosecution. Defense counsel presented his position on the

scope of inquiry into Jenkins’ probationary status. After discussion, the trial

court explained the permissible scope of the inquiry. Defense counsel did not

object but simply agreed to the parameters established by the trial court.

Consequently, we question whether Appellant has preserved any objection

with   respect   to   Jenkins’   probationary   status.   Regardless,    as   the

Commonwealth recognizes, “[T]he court here allowed questioning relating to

[Jenkins’] probation potentially being revoked. . . . The questions allowed in

this case permitted the jury to draw inferences regarding Mr. Jenkins’ potential

bias, so there was no trial court error here.”      Commonwealth Brief at 26.

Further:

       [Appellant] is not entitled to appellate relief because he was not
       prejudiced by the trial court’s ruling. See Commonwealth v.
       Wyatt, 688 A.2d 710, 714 (Pa. Super. 1997) (reversal based on
       evidentiary ruling requires a showing of abuse of discretion as well
       as actual prejudice). [Appellant’s] cross-examination of Mr.
       Jenkins more than adequately established that he was on
       probation and could be sent to prison for not cooperating with the
       Commonwealth. [Appellant] did not need to establish that Mr.
       Jenkins’ crimes underlying his probation were for firearms
       offenses, or that he specifically could have gone to prison for
       seven years, to fully examine the witness’ potential biases.

Id. at 26-27 (additional citations omitted).

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      Jenkins’ own testimony underscores that he did not want to be present,

he knew his probation could be revoked if he did not testify, and he understood

it was the prosecutor’s office that would recommend to the judge whether he

should be sent back to jail. See Notes of Testimony, Trial, 5/5/17, at 89-92.

Moreover, when defense counsel asked whether Jenkins knew his failure to

testify could constitute a probation violation, Jenkins responded, “Yes. I would

have still came. It had nothing to do with them telling me that.” Id. at 90.

Further, Jenkins was asked if he understood “that if you were to violate the

terms of your probation in any way shape or form, it would be the Philadelphia

District Attorney’s office that would be the one who would recommend to the

judgment whether or not you should go back to jail or not?” In response,

Jenkins answered, “Yes. But what does that have anything to do with this

case, sir?” Id. at 91-92.

      To the extent Appellant preserved this issue by objection, we discern no

abuse of discretion on the part of the trial court in establishing the parameters

of cross-examination with respect to Jenkins’ probationary status and the

consequences of a probation violation. Further, we find no resulting prejudice

to Appellant as a result of the trial court’s ruling.

      In his fifth and final issue, Appellant argues that the verdict was against

the weight of evidence.

      [A]ppellate review of a weight claim is a review of the [trial
      court’s] exercise of discretion, not of the underlying question of
      whether the verdict is against the weight of the evidence. Because
      the trial judge has had the opportunity to hear and see the

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      evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the verdict
      is against the weight of the evidence. One of the least assailable
      reasons for granting or denying a new trial is the lower court’s
      conviction that the verdict was or was not against the weight of
      the evidence and that a new trial should be granted in the interest
      of justice.

Corvin v. Tihansky, 184 A.3d 986, 992 (Pa. Super. 2018) (quoting Phillips

v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (internal quotation marks and

citation omitted)). Further,

      [w]e stress that if there is any support in the record for the trial
      court’s decision to deny the appellant’s motion for a new trial
      based on weight of the evidence, then we must affirm. An
      appellant is not entitled to a new trial where the evidence
      presented was conflicting and the fact-finder could have decided
      in favor of either party.

Id. at 992-93 (citations omitted).

      Appellant’s weight claim is based on his assertions that Jenkins changed

his testimony during trial, and that video evidence established that Appellant

is left-handed while the perpetrator is right-handed. Appellant’s Brief at 41.

He argues:

      Instantly, the record is replete with evidence showing that Mr.
      Jenkins either could not identify the assailant or that he chose not
      to. And the actual victim of the crime never testified in any judicial
      proceeding. And most importantly, the evidence is clear that
      [Appellant] is left-handed and the perpetrator is right-handed.
      Considering another person is seen in the video wearing similar
      clothes and engaging in the same fight, the Commonwealth
      presented such inherently contradictory and inconclusive evidence
      as to shock one’s sense of justice.

Id. at 42.


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With respect to identifying Appellant as the shooter, as explained above,

Jenkins did identify Appellant as the person who shot Gordon. To the extent

Jenkins was reluctant to identify Appellant in earlier proceedings, Jenkins

explained that his post-traumatic stress disorder was responsible for his

inability to look directly at Appellant. However, from the time of his initial

interview, “his picture was in my head. I seen everything. I’m telling you, I

seen him that night and everything he did.” Notes of Testimony, 5/5/17, at

84. He went on to explain his inability to look at Appellant.   However, he did

not waiver in his identification of Appellant as Gordon’s shooter. Id. at 93-

102.

       With regard to issue of “handedness,” while the video showed the

shooter firing the gun with his right hand and showed Appellant shooting pool

left-handed, the video also depicted Appellant using his right hand for other

tasks, such as exchanging money and using his cell phone. As the trial court

correctly recognized:

       As stated in the case relied upon by Appellant, the jury is
       exclusively the one to determine the credibility of witnesses, the
       weight, and effect of all testimony. At the trial, the Appellant’s
       girlfriend stated at different times that the Appellant is both left
       and right handed. It is the responsibility of the jury to determine
       the credibility of witnesses and to weigh the evidence. Appellant
       argues the Commonwealth’s evidence was self-contradictory; this
       is for the jury to decide and there is no evidence to suggest the
       jury improperly determined the credibility of the witness or weight
       of the evidence.

Trial Court Opinion, 11/14/18, at 5 (citations omitted).




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J-S21007-19


      We find no abuse of discretion on the part of the trial court for denying

Appellant’s motion for new trial based on the weight of the evidence.

Appellant’s final issue fails for lack of merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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