J-A09009-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

JOSEPH TUNSTALL,

                           Appellant                   No. 904 EDA 2014


        Appeal from the Judgment of Sentence November 25, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009724-2011


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                             FILED AUGUST 25, 2015

     Joseph Tunstall appeals from the judgment of sentence of life

imprisonment that the trial court imposed after a jury convicted him of first-

degree murder, criminal conspiracy, and possession of a firearm without a

license. We affirm.

     At 12:55 a.m., on January 30, 2011, Kelly Nelson was shot and killed

in the Hill Creek Public Housing Community (“Hill Creek”) in Philadelphia,

Pennsylvania. In the aftermath of the murder, Commonwealth investigators

uncovered the following facts.         On January 29, 2011, the victim’s older

cousin, Warren Darrell Wright, was drinking at the Grand Slam, a

neighborhood bar, with Appellant’s niece, Jamira Tunstall, and a group of her

friends. N.T., 11/21/13, at 100. Mr. Wright and Ms. Tunstall were playing a
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touchscreen computer game on the bar-top together when Wright asked her

if she would end her conflict with his friend, Danielle Doebler. Id. at 101.

This request resulted in a verbal confrontation between Mr. Wright and Ms.

Tunstall, which supposedly culminated in Mr. Wright hitting and/or grabbing

Ms. Tunstall. N.T., 11/20/13, at 30. As a result, both patrons were asked to

leave the establishment. N.T., 11/19/13, at 199.

       According to testimony adduced at trial, only Ms. Tunstall left the bar

after the argument.     Id. at 196.    However, she returned approximately

forty-five minutes later, and the argument with Mr. Wright resumed. Id. at

199.   Diana Koba, a patron in the bar, testified that, prior to both parties

leaving the bar permanently, Ms. Tunstall claimed that she was going to

“make a phone call to her people.”      Id. at 195.   Moreover, Ms. Tunstall

herself later testified that she called Appellant and asked him to go to the

Grand Slam to fight Mr. Wright because Wright had hit her. N.T., 11/20/13,

at 37-40.

       Mr. Wright later returned to his residence, which he shared with the

victim, and told him about his argument with Ms. Tunstall. Id. at 103-104.

The victim attempted to calm Mr. Wright, but Wright left the house to visit

Ms. Doebler. Id. at 105. The victim later went to the Grand Slam to find

Mr. Wright. He ordered one drink and left after he had consumed it. N.T.,

11/19/13, at 202. He was murdered shortly thereafter, and his body was

discovered with the straw from this drink still in his mouth. The victim was

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pronounced dead at the scene, suffering a total of ten gunshot wounds. Id.

at 87-100, 102. Police recovered fourteen fired cartridges, which included

three 9 millimeter and eleven .40 caliber shells. N.T., 11/21/13, at 13, 36,

40, 78-81.

       Testimony began on November 19, 2013. The Commonwealth’s first

witness was medical examiner, Dr. Gary Collins, who testified to the number

of wounds that the victim had suffered and confirmed that the wounds were

the cause of death.    N.T., 11/19/13, at 102.     The Commonwealth also

presented F.B.I. Special Agent, William Shute, who was qualified as an

expert on cellular telephone site analysis. Id. at 108, 133. Special Agent

Shute testified that he tracked cellular telephone calls and text messages

between Appellant and Ms. Tunstall from January 29, 2011, at 11:35 p.m.,

until January 30, 2011, at 1:10 a.m.    Id. at 138-139.    This tracking was

accomplished via the use of cellular towers, which indicated that Appellant’s

cell phone was in the area around Hill Creek at the time of the victim’s

death, and was then identified moving away from that location. Id. at 157-

160.

       The Commonwealth called Darren Rogers as an eyewitness to the

shooting. During the murder investigation, Mr. Rogers informed Philadelphia

Detectives Gregory Santamala and Joseph Pirrone that, on the night of the

murder, he witnessed Appellant and a group of armed men surround the

victim while Appellant screamed, “your peoples [sic] slapped my niece.”

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N.T., 11/21/13, at 200. Rogers then stated that he witnessed Appellant with

a gun in his hand, before observing flashes in front of Appellant,

accompanied by the sound of gunshots. Id. However, when questioned at

trial about these statements, Mr. Rogers denied witnessing the shooting. He

stated that he was released from jail the night of the shooting, got high on

drugs at his girlfriend’s house, and was asleep when the shooting occurred.

Id. at 241-242, 294-295. Mr. Rogers had also previously denied witnessing

the shooting at the preliminary hearing. He testified at trial that he did not

remember making any of the prior statements to the detectives because he

was also high during his police interview. Id. at 284, 301-304.

      Ms. Tunstall was called on the second day of trial, November 20, 2013.

N.T., 11/20/13, at 15. She testified that she was in an intimate relationship

with Mr. Wright when the murder occurred. She also acknowledged that she

and Mr. Wright had argued over her interactions with Danielle Doebler. This

episode ended after Mr. Wright grabbed her by the neck and she left the bar

for the first time. Id. at 15-17, 21, 28-31. Ms. Tunstall also claimed that

when she came back to the bar, Mr. Wright began to yell at her again and

punched her in the face. Id. at 35. She asserted that, although she did call

Appellant to have him come and assault Mr. Wright as retaliation for his

actions in the bar, she never asked Appellant to shoot or kill Mr. Wright. Id.

at 40, 88.    Ms. Tunstall confirmed that Appellant, another uncle Jerome

Tunstall, and her aunt Toya Tunstall, arrived at Hill Creek in response to her

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request; but testified that she did not see either of her uncles in possession

of weapons. Id. at 42. Finally, Ms. Tunstall agreed that she previously pled

guilty to criminal solicitation and conspiracy in relation to the murder. Id. at

57, 64.

      The Commonwealth’s next witness was Quinton Gamble. Mr. Gamble

confirmed that he was currently in custody for failing to comply with a

subpoena to appear to testify in the instant case.       Id. at 106-107.    Mr.

Gamble explained that investigators brought him to the police station two

weeks after the homicide and he gave a statement to homicide detectives.

In that statement, Mr. Gamble stated that Appellant and his brother

appeared at his house on the night of the murder and asked him if he had

seen Mr. Wright that night.      Id. at 114.    Mr. Gamble continued in his

statement that, after informing Appellant that he had not had contact with

Mr. Wright, Appellant’s brother brandished a firearm, and both brothers

implied that they were going to look for Wright at the Grand Slam. Id. Mr.

Gamble’s statement also indicated that, around twenty minutes later, he

heard gunshots from the direction of the shooting and observed Appellant,

his brother, and another man run down the street, enter a car, and flee. Id.

      During his direct examination, however, Mr. Gamble changed aspects

of the prior statement that he gave to the homicide detectives. In contrast

to his earlier identification of Appellant and his brother, Mr. Gamble now

claimed that all he observed after hearing the gunfire were two people

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running past his house with guns and that it was too dark for him to be able

to accurately describe the assailants.    Id. at 112.    On cross-examination,

Mr. Gamble further recanted his prior statement that he observed Appellant

in the vicinity of the murder, although he later acknowledged that he

identified one of the individuals who ran by his house that night as

Appellant’s brother. Id. at 129.

       The Commonwealth also called Philadelphia Police Detective George

Pirrone and Philadelphia Police Officers Sean Kennelly and Edgar Ruth. Id.

at 144, 165, 176. Detective Pirrone acknowledged taking the statements of

both Ms. Tunstall and Mr. Gamble, while Officer Kennelly testified that he

was the officer who arrested Appellant on June 4, 2011.        Id. at 148-151,

168.   Officer Ruth then informed the court that Appellant had shared a

holding cell with Mr. Gamble as both were waiting to testify in these

proceedings and that Appellant attempted to engage Mr. Gamble, who uses

the alias “Q,” in conversation by shouting, “Q, come on,” and directing him,

“you know what you gotta do.”      Id. at 179-180.      Officer Ruth also stated

that, at this point, Mr. Gamble acknowledged Appellant by responding “I

didn’t see shit, I didn’t see it, I don’t remember.” Id. at 180.

       Investigator William Whitehouse of the Crime Scene Unit and

Philadelphia Police Officer Ernest Bottomer from the Ballistics Unit were the

Commonwealth’s next two witnesses. They testified about the locations of

the various shell casings at the crime scene as well as confirming that the

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bullets recovered from the victim’s body matched these shell casings. N.T.,

11/21/13, at 40-53, 74-75.    Officer Bottomer further confirmed that all of

the recovered bullets and casings came from either a 9mm or .40 caliber

firearm. Id. at 75.

     The next witness was Mr. Wright, who confirmed that he had been in a

relationship with Ms. Tunstall and requested that she not confront Ms.

Doebler. Id. at 100. Mr. Wright also acknowledged that he and Ms. Tunstall

had gotten into a verbal confrontation at the bar but denied striking her. Id.

at 102.    He further stated that he texted Ms. Tunstall at 2:04 a.m. that

morning and informed her that Appellant had killed his cousin instead of

him; to which Ms. Tunstall responded with a text that read, “I’m sorry for

your loss, but you’re not going to threaten me.” Id. at 120-121.

     Finally,   the   Commonwealth    called   Philadelphia   Police   Detective

Gregory Santamala. Id. at 170. Detective Santamala testified concerning

text messages between Appellant and others on the morning of the victim’s

death that implied that Appellant may have been involved with the shooting.

Id. at 170, 181-183.    Detective Santamala also explained that, since Mr.

Rogers was under the influence of drugs when he was first brought to the

police station for his interview at 11:00 am on February 14, 2011, he

remained at the station for approximately twenty-nine and one-half hours

until he was sober enough up to give an accurate statement.        Id. at 191,

207-215.

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     After the Commonwealth rested, Appellant testified on his own behalf.

He confirmed that he had received a phone call from Ms. Tunstall around

11:52 p.m., and was informed that Mr. Wright had punched her in the face.

N.T., 11/22/13, at 22-23, 29. He also admitted to coming to Hill Creek that

night and searching the Grand Slam for Mr. Wright, but claimed that his only

purpose was to threaten Mr. Wright with physical violence if he hit Ms.

Tunstall again.   Id. at 30-32.   Appellant also asserted that he was not

involved in the murder and that it was not until he was leaving Hill Creek

that he heard any gunshots. Id. at 35-36.

     Appellant called one additional witness, Tierra Nesmith, who was Mr.

Rogers’s girlfriend at the time of the shooting. She testified that Mr. Rogers

was with her for most of the night in question. Ms. Nesmith stated that Mr.

Rogers returned to Hill Creek earlier that evening, got high on Xanax, and

then went to sleep around 10:00 p.m.        Id. at 137-140.     Although Ms.

Nesmith acknowledged that she briefly visited the Grand Slam and witnessed

Mr. Wright striking Appellant’s niece, she continued to assert that she

remained with Mr. Rogers between 12:00 a.m. and 1:00 a.m. on Sunday

and that Mr. Rogers was not in a position to make any observations of the

shooting during this time period because he remained asleep. Id. 140-142.

She also explained that she had a previous romantic relationship with

Appellant and that Mr. Rogers held ill will toward Appellant as a result. Id.

at 142-143.

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      The jury convicted Appellant on all counts on November 25, 2013, and

he was sentenced to life imprisonment. N.T., 11/25/13, at 114-115, 128.

Appellant filed post-sentence motions seeking a new trial and arrest of

judgment on November 26, 2013. These motions were denied on March 14,

2014. Appellant then filed a timely notice of appeal.

      Appellant presents the following issues for our review:

   1. Were Appellant’s convictions for Murder of the First Degree (18
      Pa.C.S.A. 2502), Criminal Conspiracy to Commit Murder (18
      Pa.C.S.A 903), and Violation of the Uniform Firearms Act (18
      Pa.C.S.A 6106), not supported by sufficient evidence?

   2. Were the convictions for Murder of the First Degree, Criminal
      Conspiracy to Commit Murder, and Violation of the Uniform
      Firearms Act against the weight of the evidence?

   3. Did the trial judge err in not granting a mistrial after the
      Assistant District Attorney: made inflammatory statements,
      statements of personal opinion, improperly personally vouched
      for witnesses, improperly gave testimony not of record, and left
      a photograph of the deceased victim on the screen in front of the
      jury during his opening and closing statements?

   4. Did Judge Bronson err in allowing the two written statements of
      the key prosecution witness, Darren Rogers, as well as
      Appellant’s text messages, to go back with the jury because this
      evidence only favored the prosecution, thereby tainting the
      jury’s deliberation and verdict?

Appellant’s brief at 6-7.

      Appellant’s first challenge is to the sufficiency of the evidence

presented by the Commonwealth at trial.          Appellant asserts that the

testimony of two key Commonwealth witnesses was so “contradictory,

unreliable, and speculative,” that it was insufficient as a matter of law to

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support his convictions for first-degree murder, criminal conspiracy, and

carrying a firearm without a license. Appellant’s brief at 40. At the outset,

we observe that this claim resonates as a challenge to the weight of the

evidence. This observation is bolstered by the fact that Appellant specifically

incorporates the identical argument in support of his subsequent weight of

the evidence claim.

      Generally, “[o]ur standard when reviewing the sufficiency of the

evidence is whether the evidence at trial, and reasonable inferences derived

therefrom, when viewed in the light most favorable to the Commonwealth as

verdict winner, are sufficient to establish all elements of the offense beyond

a reasonable doubt.” Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa.

Super. 2006). Conflicting testimony between witnesses does not render the

evidence insufficient because it is within the province of the factfinder to

determine the weight to be given to the testimony and to believe all, part, or

none of the evidence.     Commonwealth v. Rabold, 920 A.2d 857, 859

(Pa.Super. 2007). In addition, the Commonwealth may sustain its burden of

proof based entirely on circumstantial evidence. Commonwealth v. Laird,

988 A.2d 618, 624 (Pa. 2010). “[A]ny doubt about the defendant’s guilt is

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

from the combined circumstances.” Commonwealth v. Watley, 81 A.3d

108, 113 (Pa.Super. 2013) (en banc).

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      Appellant recognizes that weight-related considerations are generally

excluded from the review of the sufficiency of the evidence, however, he

argues that the pertinent standard of review has been altered as a result of

our Supreme Court’s holding in Commonwealth v. Karkaria, 625 A.2d

1167 (Pa. 1993) and Commonwealth v. Farquharson, 354 A.2d 545 (Pa.

1976).   In   Karkaria, our Supreme Court addressed a sufficiency of the

evidence claim by reiterating that, whenever “evidence offered to support a

verdict of guilt is so unreliable and/or contradictory as to make any verdict

based thereon pure conjecture, a jury cannot be permitted to return such a

finding.” Karkaria, supra at 1170 (citations omitted).        Appellant argues

that this principle is applicable herein.

      We note that our High Court has previously found that challenges to a

verdict pursuant to the Farquharson standard are properly to the weight,

and not the sufficiency of, the evidence. Commonwealth v. Sanchez, 36

A.3d 24, 37 (Pa. 2011). However, in a more recent decision, the Supreme

Court elected to address a sufficiency claim through the lens of the

Farquharson standard.        See Commonwealth v. Brown, 52 A.2d 1139

(Pa. 2012). The Brown Court ultimately found, as we find now, that even if

this standard is applicable to a sufficiency claim, an appellate court “will not,

on sufficiency review, disturb the finder of fact’s resolution except in those

exceptional instances . . . where the evidence is so patently unreliable that




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the jury was forced in engage in surmise and conjecture in arriving at a

verdict based on that evidence.” Id. at 1166.

      Appellant maintains that, because the testimony of two of the

Commonwealth’s key witnesses was inconsistent and based on statements

that they later recanted at trial, it was insufficient to support his convictions.

However, our Supreme Court previously affirmed that prior inconsistent

statements may be admitted as substantive evidence. Brown, supra at

1168. Contradictory evidence is deemed sufficient for a criminal conviction if

it can be determined that “the finder of fact could hear the witnesses’

explanations for making the out-of-court statements, and for their trial

recantation,” and the jury could reasonably credit the prior statements over

the witness’s later recantations. Id. This is the nature of the evidence in

the case at bar.

      It is beyond argument that credibility determinations are for the jury

to resolve; hence, an appellate court may not reweigh the evidence and

substitute its judgment for that of the finder of fact.     Commonwealth v.

Gibson, 720 A.2d 473 (Pa. 1998). Thus, as fact finder in the case at bar,

the jury was free to believe all, part, or none of the initial statements given

by Mr. Rogers and Mr. Gamble to police and admitted during trial, the

witnesses’ respective retractions, and Appellant’s testimony denying his

involvement in the shooting. See Commonwealth v. Spotz, 716 A.2d 580,

585 (Pa. 1998) (Holding that a jury is free to disbelieve evidence proffered

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by Appellant that he was not the trigger person).          Herein, the factfinder

accepted the incriminating evidence in the witness statements and declined

to believe the witnesses’ retractions and Appellant’s self-serving testimony.

      Moreover,   additional   circumstantial   evidence     demonstrated    that

Appellant was one of the men involved in the murder.              This evidence

included: (1) the testimony of three additional witnesses that established

that Appellant’s niece and the victim’s cousin had gotten into a fight at the

bar that night; (2) Appellant’s niece had requested that he come to Hill

Creek and retaliate against Mr. Wright on her behalf, and later responded to

Mr. Wright’s assertion that Appellant retaliated against his younger cousin

instead by stating “I’m sorry for your loss, but you’re not going to threaten

me,” n.t., 11/20/13, at 53; (3) cell phone records which clearly showed that

Appellant was near the crime scene immediately before and after the

murder, and; (4) incriminating text messages between Appellant and other

parties following the homicide.       Mindful that the Commonwealth can

establish any element of the offense beyond a reasonable doubt by wholly

circumstantial evidence, and in light of the fact that the jury was cognizant

of the circumstances surrounding the witnesses’ statements to police and

their motives for recanting those statements, we find that this case does not

present an exceptional instance where the evidence is so patently unreliable

that the jury was forced to engage in surmise or conjecture.          Appellant’s

claim fails.

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      Having established Appellant as the assailant, we next address the

mens rea. “In order to sustain a finding of first degree murder, the evidence

must establish that a human being was unlawfully killed; (2) the person

accused is responsible for the killing; and (3) the accused acted with a

specific intent to kill.” Commonwealth v. Mitchell, 902 A.2d 430, 444 (Pa.

2006); 18 Pa.C.S. § 2502(a). An intentional killing is a “killing by means of

poison, or by lying in wait, or by any other kind of willful, deliberate and

premeditated killing.”   18 Pa.C.S. § 2502(d).    Both the specific intent and

malice necessary to sustain a conviction for first-degree murder may be

established through circumstantial evidence, such as the use of a deadly

weapon on a vital part of the victim’s body. Commonwealth v. Smith, 985

A.2d 886, 895 (Pa. 2009); Commonwealth v. Houser, 18 A.3d 1128, 1134

(Pa. 2011).

      Instantly, police recovered multiple fired cartridges from the crime

scene and several bullets were also recovered from the victim’s body. N.T.

11/21/2013, at 36, 40, 78-81.       The fatal bullet was extracted from the

victim’s brain, which is quite clearly a vital part of the victim’s body. Id. at

81.   The testimony and circumstantial evidence provided by multiple

witnesses, including a witness to the shooting, was sufficient for the jury to

conclude beyond a doubt that Appellant was guilty of first-degree murder.

      Next, we address the conspiracy conviction.      To sustain a conviction

for conspiracy, the Commonwealth must prove that:

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     (1) The defendant intended to commit or aid in the commission
     of the criminal act; (2) the defendant entered into an agreement
     with another (a “co-conspirator”) to engage in the crime; and
     (3) the defendant or one or more of the other co-conspirators
     committed an over act in furtherance of the agreed upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).

     Most conspiracy cases lack direct evidence to illustrate the defendant’s

conspiratorial agreement.    Therefore, the defendant’s intent and the

agreement are often proved through circumstantial evidence via the

relations, conduct, or circumstances of parties.   See Commonwealth v.

Ruiz, 819 A.2d 92, 97 (Pa.Super. 2003) (Finding that the conduct and

circumstances relating to the parties’ conduct may satisfy the evidentiary

requirement of linking the defendant to the alleged conspiracy beyond a

reasonable doubt).

     At trial, Ms. Tunstall testified that she called Appellant and asked him

to confront Mr. Wright. N.T., 11/20/13, at 37-40. Mr. Gamble testified that

he witnessed Ms. Tunstall say that she was going to “call her peoples” to

come and physically harm Mr. Wright, and that shortly after, Appellant and

his brother arrived at Mr. Gamble’s house and asked him if he had seen Mr.

Wright.   Id. at 114.   Mr. Gamble also testified that Appellant’s brother

subsequently showed him a gun that he was carrying and both stated that

they were going to go look for Mr. Wright at the Grand Slam. Id.

     Mr. Rogers also told police that he saw Appellant and a group of men

surround an individual and that he heard Appellant yell, “your people

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slapped my niece,” right before he witnessed Appellant fire his gun at the

victim. N.T., 11/21/13, at 200-201. The Commonwealth presented ample

evidence from which the jury could find that Appellant and at least one other

individual advanced a conspiracy to kill the victim. Accordingly, the certified

record sustains the trial court’s finding that the Commonwealth proved

beyond a reasonable doubt the elements of criminal conspiracy.

      The final sufficiency claim relates to the evidence supporting the

firearms violation. Pennsylvania law defines carrying a firearm without a

license as:

      Any person who carries a firearm in any vehicle or any person
      who carries a firearm concealed on or about his person, except
      in his place of abode or fixed place of business, without a valid
      and lawfully issued license under this chapter commits a felony
      of the third degree.

18 Pa.C.S. § 6106(1). “In order to sustain a conviction, the Commonwealth

must prove that: (1) the weapon was a firearm; (2) the firearm was

unlicensed; and (3) that the firearm was concealed on or about the person,

outside his home or place of business.”      Commonwealth v. Parker, 847

A.2d 745, 750 (Pa.Super. 2004) (citations omitted).

      Both parties stipulated at trial that Appellant did not have a license to

carry a firearm.     N.T., 11/21/13, at 160.       Additionally, Mr. Rogers’s

established that Appellant possessed a gun, leveled it at the victim after

encountering him on the public street, and shot him.         Id. at 200-201.




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Therefore, there was sufficient evidence for the jury to conclude that

Appellant was guilty of carrying a firearm without a license.

      Appellant’s next issue challenges the weight of the evidence. The trial

court’s belief that the verdict is not against the weight of the evidence and

that a new trial is not warranted in the interest of justice is one of the least

assailable reasons for a trial court to deny a new trial. Commonwealth v.

Widmer, 744 A.2d 745, 753. (Pa. 2000).               It is well-established that

appellate review of a weight claim is limited to determining whether the trial

court abused its discretion and is not to substitute an appellate court’s

judgment for that of the trial court.   Commonwealth v. Best, __A.3d__,

2015 WL 4366508 (Pa.Super. 2015). A new trial should only be awarded if

the jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice.   Thompson v. City of Philadelphia, 493 A.2d 669, 672 (Pa.

1985).

      Appellant   once   again   invokes      the   rulings   in   Karkaria   and

Farquharson as the bases for his argument that the recantations of Mr.

Rogers and Mr. Gamble established that the jury’s verdict cannot stand.

Appellant also states that the fact that Mr. Rogers’s girlfriend, Ms. Nesmith,

corroborated that he was asleep at the time of the shooting further indicates

the unreliability of that witness’s prior statements to the police. However, as

we elucidated thoroughly supra, the law is clear that the jury was free to

disregard the witnesses’ recantations and accept the evidence presented by

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the Commonwealth. See Brown, supra at 1168 (contradictory evidence is

sufficient for criminal conviction if it can be determined that factfinder heard

witnesses’ explanations for recantation at trial and reasonably credited prior

statements).   Furthermore, the additional circumstantial evidence, such as

the cell phone data, text message records, and testimony from the

remaining witnesses, supported the trial court’s determination that the jury’s

guilty verdict was not so contrary to the evidence as to shock one’s sense of

justice. Appellant’s claim fails.

      Next, we address Appellant’s contention that the trial court erred in

refusing his requests for a mistrial after the Assistant District Attorney

committed prosecutorial misconduct due to alleged improper statements

that he made to the jury during his opening and closing arguments, and

because the Commonwealth displayed a photograph of the victim’s body

during its summations. For the reasons that follow, no relief is due.

      As support for his assertions of prosecutorial misconduct, Appellant

refers to four separate incidents where he alleges that the prosecutor made

inflammatory or intemperate remarks. A prosecutor may vigorously argue

his case as long as his comments are either supported by the evidence, or

contain reasonable inferences in light of this evidence. Commonwealth v.

Eichinger, 108 A.3d 821, 836 (Pa. 2014).           Not every intemperate or

improper remark by the prosecution requires a new trial. Commonwealth

v. Jarvis, 394 A.2d 483 (Pa. 1978). When a prosecutor uses intemperate

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language or makes improper remarks a new trial is required only where the

language’s unavoidable effect is to prejudice the jury in such a way as to

cause them to form a fixed bias or hostility against Appellant such that they

could not weigh the evidence and render a true verdict. Commonwealth v.

Begley, 780 A.2d 605, 626 (Pa. 2001).         Finally, the determination of

whether a prosecutor’s misconduct created prejudice in the minds of the jury

falls within the trial court’s authority and will not be reversed absent an

abuse of discretion. Commonwealth v. D’Amato, 526 A.2d 300, 310 (Pa.

1987).

     In order to evaluate whether comments made by the prosecutor were

improper, they must be examined in the context in which they were made.

Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997). As discussed infra,

our review of Appellant’s argument reveals that none of the statements,

either alone or collectively, prejudiced the jury unavoidably or formed in

their minds a fixed bias or hostility that would prevent them from properly

weighing the evidence and rendering a true verdict.     Commonwealth v.

Weiss, 776 A.2d 958, 970 (Pa. 2001).

     Appellant accuses the prosecutor of “improperly vouching” for the

decedent after he described the victim as “a pretty decent guy, a guy that

didn’t harm anybody,” to the jury in his opening statement. N.T., 11/19/13,

at 52. However, the prosecutor was simply using his opening argument to

outline what he expected the evidence to show, i.e., that the victim was

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murdered as a consequence of his cousin’s actions towards Appellant’s niece

and that he had just been trying to prevent his cousin from being hurt.

Though the trial court overruled Appellant’s objection to this remark, the

judge also immediately reminded the jurors that the prosecutor’s opening

arguments did not constitute evidence and were simply his opinions on what

he expected the evidence to illustrate.         Id. at 53. An immediate curative

instruction to the jury can alleviate the harmful effects of the improper

admission of evidence and it is presumed that the jury will follow these

instructions. Commonwealth v. Johnson, 533 A.2d 994, 997 (Pa. 1987).

Instantly, the prosecutor’s comments were not prejudicial nor did they

create a fixed bias which prevented the jury from rendering a true verdict.

This challenge lacks merit.

      Appellant   also   asserts   that   the    prosecutor   made   inflammatory

statements of his personal opinion during his closing arguments after he

addressed the issue of the substantial period of time that the two witnesses,

Mr. Rogers and Mr. Gamble, had been held in custody.                  Specifically,

Appellant claims that the prosecutor gave his own personal testimony

concerning his opinion of Appellant’s guilt when he stated, in reference to

Mr. Gamble’s noncompliance with the subpoena, “I am unapologetic about

putting Quinton Gamble in jail for five days if it’s required to take a killer off

the street.” N.T., 11/22/13, at 247. However, the trial court found that this

statement was simply being used as a reference to address the questions

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Appellant raised about the length of time that the witnesses had been

imprisoned.      The prosecution’s statement was made to clarify that Mr.

Gamble was placed in custody as a result of his refusal to comply with a

subpoena to testify.      N.T., 11/20/13, at 107, 177-180.    Nevertheless, the

court once again provided the jury with strict instructions that arguments

are not evidence in order to prevent the jury from giving them inappropriate

consideration during their deliberation.       As the jury is presumed to have

followed these instructions, no relief is due. Johnson, supra at 997.

      Next, Appellant contends that the assistant district attorney again

proffered an improper statement of his personal opinion to the jury when he

claimed   that    there    were   many   reasons    why   witnesses   might   be

uncooperative. Instantly, the prosecutor stated that, “They have to live in

that neighborhood. They’re in prison. Heck, they’re getting confronted by a

murderer.”    N.T., 11/22/23, at 252.     Even if the prosecution’s use of the

word “murderer” was intemperate, Appellant fails to lend proper credence to

the fact that the prosecutor immediately clarified the last sentence by

rephrasing it as “one who is accused of murder.” Id. Regardless, the trial

court properly issued a curative instruction when he told the jury to

disregard the prosecution’s remark and it did not abuse its discretion by

holding that this was sufficient to address any possibility of prejudice. Id. As

jurors are presumed to have followed a trial court’s curative instruction, we




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find no basis to disturb the court’s denial of the motion for mistrial on these

grounds. Johnson, supra.

      Appellant also incorrectly asserts that the above statement was

improper because no evidence had been presented that he had threatened

anyone. The Commonwealth highlights, however, that it presented evidence

that Appellant confronted Mr. Gamble when they were accidentally placed in

the same holding area and instructed, “you know what you gotta do.” N.T.,

11/20/13, at 179-180. This was a matter of record and it is not improper

for a prosecutor to refer to a matter in evidence when asking the jury to

make a credibility assessment of a recanting witness. Commonwealth v.

Rios, 684 A.2d 1025, 1033-1034 (Pa. 1996). This assertion fails.

      The next assertion of prosecutorial misconduct concerns a remark the

prosecutor made during summation regarding another suspect in the case.

During opening arguments, Appellant raised the issue as to why his brother,

Jerome a/k/a “Fatty,” had not been charged with the same crime when he

had also been identified as being present at the scene of the murder on the

night in question.    Appellant now contends that the assistant district

attorney committed prosecutorial misconduct by giving his own testimony on

matters not in evidence after he said to the jury, “Ladies and gentlemen,

you may ask why [F]atty isn’t here. Where is Jerome? Well, if we get one

more piece [of evidence], if we get one more piece . . . If we get one more

piece--.” N.T., 11/22/13, at 262.

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     A prosecutor may properly respond to all defense arguments.

Commonwealth v. Brown, 711 A.2d 444, 454 (Pa. 1998). The trial judge

correctly found that Appellant had opened himself up to this rebuttal when

he referred to the fact that Jerome had not been charged, essentially asking

the jury to draw inferences from this fact.     The Commonwealth did not

commit misconduct by addressing Appellant’s inference.

     Appellant next claims that a photograph of the victim that he

described as clearly illustrating the bullet wounds in the victim’s body

improperly was allowed to remain projected on the large screen in front of

the jury during the Commonwealth’s closing arguments. Appellant argues

that the prosecutor intended to inflame the jury.      In passing upon this

assertion, the trial court concluded that this issue was waived because

Appellant failed to either identify the photograph or explain why he

specifically believed that the unidentified photograph was improper and

inflammatory. We concur with the trial court’s finding that the issue is

waived.

     Appellant’s only description of the ostensibly prejudicial exhibit is, “a

photograph of the decedent showing bullet holes.” Appellant’s brief at 56.

Beyond that, there is little else in Appellant’s brief, concise statement of

errors, or the certified record, with which we can deduce which photograph

is the basis of Appellant’s claim.   Our independent review of the certified




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record did not reveal a photograph that fit Appellant’s description or

illustrated the victim’s bullet-riddled body.

      One exhibit, a black and white photograph marked C-17, depicts the

upper part of the decedent’s body in an uncovered state; however, contrary

to Appellant’s description, there are no bullet holes visible on the body.

Similarly, there is no evidence in the photograph of spent shells or markings

on the street to indicate the level of violence associated with the murder.

Moreover, the Commonwealth used a computer program to sanitize Exhibit

C-17 before introducing it into evidence. The program dulled the presence

of any blood and redacted all of the victim’s facial features as well as any

evidence of a gunshot wound to his head. All that remained was the benign

contour of the victim’s facial profile. Thus, even assuming, arguendo, that

the photograph in question was C-17, there is nothing in it which could be

considered “inflammatory.”     As Appellant failed to identify the photograph

upon which his claim is predicated and our independent review of the notes

of testimony and trial exhibits did not reveal a photograph that either fit

Appellant’s description or was so viscerally graphic that it inflamed the minds

and passions of the jury, we cannot address the merits of this claim.

      Appellant’s final argument is that the trial court abused its discretion

when it permitted Mr. Roger’s prior written statements and transcripts of

Appellant’s text messages, to go back with the jury during deliberation.

Appellant argues that this evidence only favored the prosecution, and

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thereby tainted the jury’s verdict. The pertinent law permits liberal review

of exhibits during deliberations.        “Upon retiring, the jury may take with it

such exhibits as the trial judge deems proper. . . [but that] [d]uring

deliberations, the jury shall not be permitted to have: (1) a transcript of any

trial testimony; (2) a copy of any written or otherwise recorded confession

by the defendant; (3) a copy of the information or indictment; [or] (4) . . .

written jury instructions.” Pa.R.Crim.P. 646.1 “Whether an exhibit should be

allowed to go out with the jury during its deliberation is within the sound

discretion of the trial judge.”       Commonwealth v. Barnett, 50 A.3d 176

(Pa.Super. 2012).

       Before we begin our analysis, it should be noted that the jury

specifically requested that the exhibits in question, along with the prior

statements taken from Ms. Koba and Mr. Gamble, be sent back during their

deliberation.    Appellant objected to this request but was overruled by the

trial court. N.T., 11/25/13, at 77-78.             Appellant now contends that Mr.

Rogers’s statements fall under the rule’s preclusion of “a transcript of any

trial testimony,” and that, in any event, this was an abuse of discretion

because none of the evidence which refuted these statements was sent

back, despite the fact that the jury had never requested these other

____________________________________________


1
  On July 7, 2015, the comment to Rule 646 was revised, effective October
1, 2015. The revisions are not relevant to our review.



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exhibits. Id. at 78-79.     However, the trial court correctly noted that

Appellant had sufficient opportunity during cross-examination to focus the

jury’s attention on Mr. Rogers’s retraction and that it was unnecessary for it

to have this contradicting testimony in hand when it had not requested the

information in the first place.     Trial Court Opinion, 06/23/14, at 20-21.

Similarly, the mere fact that these statements were read into the record

during witness examinations, and after they had already been approved as

evidentiary exhibits, does not grant them the precluded status of “trial

testimony.”      Commonwealth v. Parker, 104 A.3d 17 (Pa. Super. 2014)

(Holding that the trial court did not abuse its discretion by permitting a

witness’s prior inconsistent statement to be sent back with jury during its

deliberation).

      Appellant makes a similar argument in regards to the record of his text

messages, which were allowed to be sent back to the jury upon its request.

Although he does not claim that these particular statements fall into any of

the precluded categories in Rule 646, Appellant instead argues that this was

unfair because the jury was not also given, sua sponte, his own testimony

regarding his alleged meaning of the coded language in the texts as

referring to his illegal drug business and not the victim’s murder.

Appellant’s   legal   argument    conveniently   ignores   Rule   646’s   express

preclusion of any trial testimony, including his own.       Moreover, Appellant

fails to address how the transcript of his explanation would assist the jury in

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light of the fact that he had multiple opportunities during trial to decode the

meaning of the text messages for the jury.      Accordingly, we find that the

trial court was well within its discretion, pursuant to Rule 646, to send to the

jury the properly-admitted evidence which it had requested while also

declining to send back trial testimony and other exhibits which it had not

requested. Appellant’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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