J. S16036/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                        Appellee           :
                                           :
                  v.                       :
                                           :
WALEEM JENKINS,                            :
                                           :
                        Appellant          :     No. 2586 EDA 2014

         Appeal from the Judgment of Sentence November 12, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010227-2011

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 11, 2016

      Appellant, Waleem Jenkins, appeals from the November 12, 2013

Judgment of Sentence entered in the Philadelphia Court of Common Pleas.

After careful review, we affirm on the basis of the trial court’s Opinion, which

found Appellant’s claims were either waived or without merit.

      The trial court’s Rule 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history in this case. See Trial

Court Opinion, filed 3/21/15, at 1-8. While we will not go into exhaustive

detail here, some of the relevant facts are as follows.

      A jury convicted Appellant of Possession with Intent to Deliver a

Controlled Substance after officers of the Philadelphia Police Department’s

Narcotics Field Unit observed Appellant selling narcotics to a confidential

informant (“CI”) on two separate occasions, and found narcotics and other
J. S16036/16


incriminating evidence on Appellant’s person while searching him incident to

arrest. Id. at 2-3.

      At trial, the Commonwealth called three members of the Narcotics

Field Unit as witnesses. The first was Officer Carlos Buitrago, who observed

Appellant selling narcotics to the CI on both occasions. Id. at 2-4. Officer

Buitrago testified that after the second narcotics sale, Officers Linwood

Norman and Reginald Graham arrested Appellant, and Officer Graham

searched Appellant’s person. Id. at 4.

      Officer Norman’s involvement in the case was limited to this minor role

assisting Officer Graham with Appellant’s arrest.          Officer Norman did not

search Appellant, was not present for the first controlled buy, and did not

testify at Appellant’s trial.

      The Commonwealth then called Officer Graham, who also personally

observed both narcotics sales and confirmed he was the officer who arrested

Appellant,   searched     Appellant,    and    recovered   incriminating   evidence

including narcotics from Appellant’s person. Id. at 4-5.

      Finally, the Commonwealth called Sergeant Thomas Meehan, who

supervised the investigation of Appellant, and provided the prerecorded buy

money the CI used to purchase narcotics from Appellant. Id. at 5-6.

      Appellant testified in his own defense at trial, denying his involvement

in the sale of narcotics.       Appellant testified that he worked for a cousin’s

moving company and that, on the date he was arrested, he was in the area



                                         -2-
J. S16036/16


visiting friends. Id. at 6-7. He denied that any of the evidence recovered

from his person was his and suggested that it had been planted by one of

the officers arresting him. Id.

      After the jury’s conviction, Judge Brinkley sentenced Appellant to three

and one-half to seven years of state incarceration, to be followed by three

years of probation.

      At some point after Appellant’s conviction and sentencing, the federal

government indicted Officer Norman on corruption charges. Id. at 9. None

of the allegations in Officer Norman’s indictment, however, pertained to his

involvement in Appellant’s arrest.    A federal jury later acquitted Officer

Norman of all charges.

      Appellant filed a post-sentence motion.      After its denial, Appellant

timely appealed.

      On appeal, Appellant raises the following five issues:

      a. Whether Appellant is entitled to a new trial based on after-
      discovered evidence?

      b. Whether the prosecutor committed misconduct in his closing
      statement?

      c. Whether the [trial court] erred in allowing the Commonwealth
      to use a letter of employment during cross-examination and in
      allowing the letter to be read to refresh the jury’s memory
      during deliberations?

      d. Whether the [trial court] erred in excluding evidence that
      police officers in a separate case involving Appellant had been
      indicted?

      e. Whether the verdict was against the weight of the evidence?



                                     -3-
J. S16036/16


Appellant’s Brief at 5 (capitalization removed).

      The Honorable Genece E. Brinkley has authored a comprehensive,

thorough, and well-reasoned Rule 1925(a) Opinion, citing to the record and

relevant case law in addressing Appellant’s claims on appeal. We affirm on

the basis of that Opinion.

      In his first issue, Appellant raises an after-discovered evidence claim

based upon Officer Norman’s indictment on corruption charges. To prevail

on a motion for a new trial on the basis of after-discovered evidence,

Appellant was required to produce admissible evidence, discovered after

trial, that:

      (1) could not have been obtained prior to the end of trial with
      the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative evidence; (3) is not merely
      impeachment evidence; and (4) is of such a nature that its use
      will likely result in a different verdict on retrial.

Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (citation

omitted).       As   the   reviewing   court,      “this   Court   affirms   unless    the

determination constitutes abuse of discretion.” Id.

      Based on our review of the record, the arguments presented by

Appellant, and the relevant case law and statutes, we agree with the trial

court that Appellant’s after-discovered evidence claim warrants no relief

because of Officer Norman’s de minimis involvement in the case against

Appellant      and   because   none    of    the   other    officers   involved   in   the

investigation into Appellant have been accused of wrongdoing.



                                            -4-
J. S16036/16


      Furthermore, as the trial court has thoroughly addressed the issue in

its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s

claim. See Trial Court Opinion at 8-9. Accordingly, we grant no relief on

this issue.

      Appellant bases his second claim, one of prosecutorial misconduct, on

the Commonwealth attorney’s statements in closing arguments referring to

himself as “a gladiator” and to the courtroom as “the coliseum.” Appellant’s

Brief at 15-16.

      The trial court found that Appellant waived this issue, and we find this

position to be correct.    See Commonwealth v. Cox, 983 A.2d 666, 685

(Pa. 2009).       Appellant did not object to any of the allegedly improper

statements at trial. N.T., 6/6/13, at 26-28. Furthermore, as the trial court

has thoroughly addressed the issue in its opinion, we adopt the trial court’s

discussion as dispositive of Appellant’s claim. See Trial Court Opinion at 10-

12. Accordingly, we grant no relief on this issue.

      Appellant’s third and fourth issues both challenge the trial court’s

rulings on the admissibility of certain evidence introduced or excluded at

trial. “Questions regarding the admission of evidence are left to the sound

discretion of the trial court, and we, as an appellate court, will not disturb

the trial court's rulings regarding the admissibility of evidence absent an

abuse of that discretion.”     Commonwealth v. Russell, 938 A.2d 1082,

1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more



                                     -5-
J. S16036/16


than a mere error of judgment; rather, an abuse of discretion will be found

when “the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence or the record.”         Commonwealth v. Busanet,

817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted).

      Appellant first argues that the trial court erred in permitting the

Commonwealth to read a letter of employment to the jury during cross-

examination and again during deliberations.          The trial court found that

Appellant waived his claim with respect to the use of the letter during cross

examination, and we find this position to be correct. “To preserve a claim

for review, the defendant must make a timely and specific objection to the

introduction of the challenged evidence at trial.” Commonwealth v. Gray,

867 A.2d 560, 574 (Pa. Super. 2005) (citation omitted). Appellant did not

object to the reading of the letter and, thus, waived the issue. N.T., 6/5/13,

at 175-79.

      Likewise, we conclude Appellant’s claim regarding the reading of the

letter to the jury during deliberations has no merit, as reading the letter

assisted the jury in determining credibility. Furthermore, as the trial court

has thoroughly addressed both of Appellant’s claims regarding the letter in

its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s

claims regarding the letter. See Trial Court Opinion at 12-15.




                                       -6-
J. S16036/16


      Appellant’s next evidentiary claim is that the trial court erred in

excluding evidence that two police officers who had no involvement in the

instant case, but who had previously arrested Appellant for a wholly

unrelated matter, were indicted on allegations of planting drugs and robbing

drug dealers. Once again, based on our review of the record, the arguments

presented by Appellant, and the relevant case law and statutes, we conclude

Appellant’s claim has no merit.       Furthermore, as the trial court has

thoroughly addressed Appellant’s claims regarding the letter in its Opinion,

we adopt the trial court’s discussion, which found the evidence was

irrelevant, unfairly prejudicial, and likely to cause confusion. See id. at 15-

16.

      Finally, Appellant claims that the jury’s guilty verdict in this case was

against the weight of the evidence presented at trial.       “A weight of the

evidence claim concedes that the evidence is sufficient to sustain the verdict,

but seeks a new trial on the ground that the evidence was so one-sided or

so weighted in favor of acquittal that a guilty verdict shocks one's sense of

justice.” Lyons, supra at 1067 (citation omitted).

      When this Court reviews a trial court’s ruling on a weight of the

evidence claim we do not “substitute [our] judgment for the finder of fact

and consider the underlying question of whether the verdict is against the

weight of the evidence, but, rather, [this Court] determines only whether the

trial court abused its discretion in making its determination.” Id.



                                     -7-
J. S16036/16


      Based on our review of the record, the arguments presented by

Appellant, and the relevant case law and statutes, we conclude Appellant’s

weight of the evidence claim warrants no relief.     Furthermore, as the trial

court has thoroughly addressed the issue in its Opinion, we adopt the trial

court’s discussion as dispositive of Appellant’s claim.      See Trial Court

Opinion at 17-18. Accordingly, no relief is due.

      Therefore, after a careful review of the parties’ arguments, and the

record, we affirm on the basis of the trial court Opinion.

      Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2016




                                     -8-
,
    !i
                                                                                               Circulated 03/23/2016 04:50 PM




                                        IN THE COURT OF COMMON PLEAS
                                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                            CRIMINAL TRIAL DIVISION


               COMMONWEALTH                                                         CP-51-CR-0010227-2011



                      vs.                      IF. il fl IE'fD
                                                MAR 31 2015
                                           Criminai Appeal~ Unit
                                         First Judicial District of PA              SUPERIOR COURT
              WALEEM JENKINS                                                        2586 EDA 2014



              BRINKLEY, J.                                                         MARCH 31, 2015

                                                           OPINION

                      Defendant Waleem Jenkins appeared before this Court for a jury trial and was convicted·

              of Possession with Intent to Deliver a Controlled Substance (PWID). This Court sentenced

              Defendant to 3 Yi to 7 years state incarceration, plus 3 years probation. Defendant appealed this

              judgment of sentence to the Superior Court and raised the following issues on appeal: ( l)

              whether Defendant is entitled to a new trial based on after-discovered evidence; (2) whether the

              prosecutor committed misconduct in his closing statement; (3) whether this Court erred in

              allowing the Commonwealth to use a Jetter of employment during cross-examination        and in

              allowing the letter to be read to refresh the jury's memory during deliberations; (4) whether this

              Court erred in excluding evidence that police officers in a separate case involving Defendant had

              been indicted; (5) whether the verdict was against the weight of the evidence.




         I
         i
         :1
,I'




                                          PROCEDURAL HISTORY

              On August 18, 2011, Defendant was arrested and charged with PWID and Criminal Use

      of a Communication Facility. From June 5 to June 6, 2013, a trial was held in the presence of a

      jury. On June 10, 2013, Defendant was found guilty of PWID. On November 12, 2013, this

  I   Court sentenced him to 3Yi to 7 years state incarceration, plus 3 years probation. At his

      sentencing hearing, Defendant stated that he wished to appeal his sentence to the Superior Court

      and asked this Court to appoint appellate counsel for him.    Trial counsel subsequently failed to

      file a notice of appeal and Defendant was not appointed appellate counsel.     On July 31, 2014,

      this Court reinstated Defendant's appellate rights nunc pro tune and appointed new counsel for

      Defendant. On August 29, 2014, Defendant filed a Notice of Appeal to the Superior Court. On

      December I, 20 I 4, this Court ordered defense counsel to file a Concise Statement of Errors

      pursuant to Pa.R.A.P.   I 925(b). On December 2 I, 2014, defense counsel filed a motion for a new

      trial based upon after-discovered evidence and requested an extension of time to file the Concise

      Statement of Errors so that additional notes of testimony may be transcribed. On March 12,

      2015, after receiving the additional notes of testimony, this Court granted Defendant's request

      for an extension of time to file the Concise Statement of Errors, and defense counsel filed the

      Statement on March I 7, 2015.

                                                    FACTS

             Trial began in this matter on June 5, 2013. Defendant was represented at trial by Tobi

      Russeck, Esquire, while the Commonwealth attorney was Kevin Harden, Jr., Esquire. The

      Commonwealth called Officer Carlos Buitrago ("Buitrago") as its first witness. Buitrago

      testified that he had been assigned to the Narcotics Field Unit of the Philadelphia   Police

      Department since 2008. Buitrago testified that, on August 16, 2011, he and his partner, Officer



                                                        2
 Reginald Graham ("Graham"), met with a confidential informant ("CI") and gave the CI $40 in

 prerecorded buy money after searching him to make sure that he was not carrying any

 contraband or currency. (N.T. 6/5/2013 p. 50-60).

         Buitrago testified that CI told him there was a black male selling narcotics in the vicinity

 of the 2400 block of Carpenter Street and that this person would deliver drugs if contacted by

 telephone at (267)230-1174.     Buitrago testified that he told CI to place a call to that number,

 which CI did in his presence.   Buitrago further testified that CI asked for two packets and then

 walked to the southeast comer of 241h and Carpenter, while he remained behind and observed.

 Buitrago stated that he remained approximately 25-30 feet away from CI and that nothing

 impeded his view of CI. Buitrago testified that he saw Defendant walk westbound on Carpenter

 towards 241h Street and approach CI. Buitrago further testified that Defendant and CI had a brief

conversation, following which CI handed Defendant the prerecorded buy money and Defendant

handed CI small objects in return. Buitrago testified that CI returned to his location as

Defendant walked out of view and, upon returning, CI handed him two brown Ziploc packets

containing a white chunky substance.     Buitrago testified that he field-tested the substance he

received from CI and it tested positive for cocaine. Buitrago stated that he attempted to locate

Defendant, but was unable to find him. Id. at 62-66.

       Buitrago testified that he decided to arrange a "buy bust" on August 18, 2011, in which

CI would purchase narcotics from Defendant and Defendant would be arrested immediately.

Buitrago testified that, at approximately 3 :00 p.m. on the 1 gth, he met with CI and gave him $40

in prerecorded buy money after he searched CI for currency and contraband.         Buitrago testified

that he instructed CI to place a call to the same number that he phoned on the l 61h and CI placed

the call in his presence. Buitrago testified that CI was released on the 1900 block of Carpenter



                                                   3
Street while he remained approximately 25-30 feet away and Graham was across the street from

CI. Buitrago testified that he observed Defendant, wearing a black shirt and tan shorts, walk

westbound on Carpenter Street towards 19th Street and approach CI. Buitrago further testified

that the two had a brief conversation,    after which CI handed Defendant the prerecorded buy

money and received small objects from Defendant in return. Buitrago stated that      er returned to
his location, at which time CI handed him two clear Ziploc packets containing a white chunky

substance.   Id. at 70- 73.

        Buitrago testified that he signaled to other members of the Narcotics Field Unit to arrest

Defendant, at which point Graham and Officer Linwood Norman ("Norman") stopped and

arrested Defendant.    Buitrago stated that Graham searched Defendant and recovered one clear

sandwich bag that contained seventeen clear Ziploc packets, each of which contained the same

white chunky substance as the packets he received earlier from CI, from the front right pocket of

Defendant's shorts. Buitrago further testified that Graham recovered a separate clear sandwich

bag that contained a ball of the white chunky substance, unused packets, and a razor blade with

white powder residue on it from the same pocket. Buitrago testified that Graham additionally

recovered the prerecorded buy money, $57 in United States currency, and a cell phone bearing

the same number that    er had called.   Buitrago stated that he confirmed the cell phone's number

by dialing it with his own phone, at which point the cell phone rang and showed Buitrago's

number on the caller identification. Id. at 73-77.

       The Commonwealth called Graham as its next witness. Graham testi tied that he had

been assigned to the Narcotics Field Unit for approximately thirteen years, and had been a

Philadelphia Police Officer for approximately eighteen years. Graham testified that, on August

16, 2011, he participated in a narcotics investigation in the area of2400 Carpenter Street with his



                                                     4
          partner, Buitrago.   Graham testified that he observed Defendant and CI have a brief

          conversation, after which CI handed Defendant the prerecorded buy money in exchange for

          small objects.   Graham testified that, on August 18, 2011, he and Buitrago again met with CI, at

          which time CI made a phone call and asked for two packets. Graham stated CI went to the 1900

          block of Carpenter Street and Defendant approached CI on foot. Graham testified that he

          observed CI and Defendant have a conversation and then exchange the prerecorded buy money

          for small objects. Graham further testified that he was approximately 20 to 25 feet away from CI

          while he spoke with Defendant.    Graham testified that CI returned to Buitrago's    vehicle and

          Buitrago flicked the car's headlights, at which point he arrested Defendant.    Graham further

          testified that he recovered one clear baggy containing 17 packets of aJleged crack cocaine,

      I   another clear baggy containing numerous chunks of alleged crack cocaine, a razor blade with

          white residue on it, $57 in United States currency, the prerecorded buy money, and a cell phone

          from Defendant's person. Id. at 112-16.

                 The Commonwealth called Thomas Meehan ("Meehan") as its next witness. Meehan

          testified that he was a sergeant in the Narcotics Field Unit, that he participated in the

          investigation of Defendant in a supervisory role, and that he was present for Defendant's arrest.

          Meehan stated his role was to ensure that his officers followed the policies and protocols set

          forth by the Philadelphia Police Department. Meehan testified that he provided Buitrago and

          Graham with the prerecorded buy money they used in their investigation of Defendant. Meehan

          testified that, when an officer under his supervision used prerecorded buy money, he would have

      I to authorize their use of the money and then, once provided with the money, the officer would

          make a photocopy of the money and mark the money they were given. Meehan stated that, when

          narcotics evidence is recovered, he would review and approve the paperwork the officers



 i                                                          5
 I
I..
submitted to him and he would ensure that all evidence was accounted for. Meehan testified that

he reviewed the property receipts of the evidence recovered from Defendant on August l 6, 20 l l

and August l 8, 2011 and that he signed the receipts the same day they were submitted. Id. at

 134-40.

           There was a stipulation, by and between counsel, that if police chemist Phillip Sajju

("Sajju") v.:'as called to testify he would testify that he analyzed the two clear Ziploc packets that

were purchased by CI on August 18, 2011. The packets had off-white chunks inside of them,

and the chunks tested positive for Schedule II cocaine base. Sajju would further testify that he

received an additional clear plastic bag containing 17 clear Ziploc packets with off-white chunks

in them, that those chunks were analyzed and that they tested positive for Schedule II cocaine

base. Sajju would further testify that he analyzed another clear plastic bag containing a chunk of

an off-white substance, which tested positive for cocaine base. Sajju would testify that the razor

was not analyzed for any narcotics. Id. at 148-49.

           There was a further stipulation, by and between counsel, that, if police chemist Timothy

Pelletier ("Pelletier") was called to testify, he would testify that he tested the two Ziploc packets

containing off-white chunks that were purchased by CI on August 16, 2011 and that those two

packets tested positive for cocaine base. Furthermore, both Sajju and Pelletier would testify that

they were trained as police chemists, that they were certified by the Philadelphia Police

Department, and that their conclusions were to a reasonable degree of scientific certainty. Id. at

150. After the stipulations, the Commonwealth rested. Id. at 152.

       Defendant testified on his own behalf. Defendant stated that he did not remember what

he did on August 16, 2011 but he believed he was at work at some point during that day.

Defendant stated that he worked for Thomas Family Moving, a moving company owned by one



                                                   6
     of his cousins. Defendant testified that, on August I 8, 20 I I , he was at 1621 Christian Street
    I with his cousin and that sometime between   I :30 p.m. to 2:00 p.m. on that day he called a female

     friend who lived nearby and walked to her house near the corner of 19th and Christian.

    I Defendant testified that he stayed at his friend's house for approximately 45 minutes and the two
     of them watched television. Defendant testified that, after he left his friend's house, he decided

     to walk to his aunt's house at 23rd and Tasker Street. Defendant stated that he walked down 19th

I until he got to Carpenter Street, at which time he turned right towards 23rd_     Defendant testified

I that he was· on Carpenter Street when someone came up to him from behind and pushed him
     against a wall. Id. at 152-58.
I           Defendant testified that, once he was pushed against the wall, he saw that it was two

     black males who were holding him, although he could not identify either of them. Defendant

     stated that the two men repeatedly asked him, "Where the guns at?" and that, as the two men

    held him against the wall, three vehicles pulled up to the scene and more men approached him.

I Defendant testified that he recognized one of the men who approached him as Buitrago.
    Defendant further testified that Buitrago put his hands in Defendant's pockets and began to

    search him while asking him where the guns were. Defendant testified Buitrago then said "Oh,

    you got something," and pulled his hands away from Defendant in a cupping motion. Defendant

    testified that Buitrago had a Ziploc bag and some money in his hand. Defendant further testified

    he said to Buitrago, "Hold. That's not mine. I'm not going for that. You not going to do that to

    me," to which Buitrago replied, "We got you now." Defendant stated that he was not carrying

    any narcotics or a razor blade on him. Defendant testified that he did not interact with anyone

    else from the time he left his friend's house to when he was arrested. Defendant further testified

    that his phone number had a 570 area code, and he did not recognize the 267 number that CI



                                                      7
 called. Defendant stated that it was possible he was in the area of Carpenter Street on August 16,

 2011, because he lived in that neighborhood.   Id. at 158-67.   The defense rested after

 Defendant's testimony. Id. at 184.

                                                     ISSUES

        I.      WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BASED
                UPON AFTER-DISCOVERED EVIDENCE.

        II.     WHETHER THE PROSECUTOR COMMITTED MISCONDUCT IN HIS
                CLOSING STATEMENT.

        III.   WHETHER THE COURT ERRED IN ALLOWING THE
               COMMONWEALTH TO USE A LETTER OF EMPLOYMENT DURJNG
               CROSS-EXAMINATION AND IN ALLOWING THE LETTER TO BE
               READ TO REFRESH THE JURY'S MEMORY DURING
               DELIBERATIONS.

        IV.    WHETHER THE COURT ERRED IN EXCLUDING EVIDENCE THAT
               POLICE OFFICERS ~NA SEPARATE CASE INVOLVING DEFENDANT
               HAD BEEN INDICTED.

        V.     WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE
               EVIDENCE.

                                          DISCUSSION

       I.      DEFENDANT IS NOT ENTITLED TO A NEW TRIAL BASED UPON
               AFTER-DISCOVERED EVIDENCE.

       Defendant is not entitled to a new trial based upon after-discovered evidence. A trial

court should grant a motion for new trial on the ground of after-discovered evidence where

producible and admissible evidence discovered after trial (1) could not have been obtained prior

to the end of trial with the exercise ofreasonable diligence; (2) is not merely corroborative or

cumulative evidence; (3) is not merely impeachment evidence; and (4) is of such a nature that its

use will likely result in a different verdict on retrial. Commonwealth v. Trinidad, 2014 PA Super

78, 96 A.3d 1031, 1037 (quoting Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1058



                                                 8
(2013)). Before granting a new trial, a court must assess whether the alleged after-discovered

evidence is of such nature and character that it would likely compel a different verdict if a new

trial is granted. Commonwealth v. Padillas, 2010 PA Super 108, 997 A.2d 356, 365 (2010)

(citing Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008)). In making that

determination, a court should consider the integrity of the alleged after-discovered evidence, the

motive of those offering the evidence, and the overall strength of the evidence supporting the

conviction. Id. ( citing Commonwealth v. Parker, 494 Pa. 196, 200, 431 A.2d 216, 218 (1981 )).

       In the case at bar, Defendant filed a post-sentence motion for a new trial based upon

after-discovered evidence as a result of Norman's subsequent federal indictment on corruption-

related charges. However, Defendant is not entitled to a new trial based upon Norman's

indictment as the nature and character of the evidence would not compel a different verdict if a

new trial were granted. Contrary to Defendant's assertions, Norman's role in his arrest was de

minimis. According to the testimony presented at trial, Norman was only one of multiple officers

who were present at the scene when Defendant was arrested on August 18, 2011.        He was not

present on August 16, 2011 during the first purchase by the CI nor did he handle the CI on

August 18, 2011. Moreover, Norman did not search Defendant or interact with him other than

when he and Buitrago stopped Defendant, and he did not testify at Defendant's trial.

Furthermore, there is no allegation that Buitrago or Graham were in any way involved with

Norman's alleged activities or that they otherwise engaged in corruption.   As the evidence of

Defendant's guilt presented at trial was wholly derived from the investigation   and testimony of

Buitrago and Graham, and in no part derived any evidence provided by Norman, there is no

indication that evidence of Norman's subsequent indictment would likely compel a different

verdict. Therefore, Defendant is not entitled to a new trial based upon after-discovered evidence.



                                                9
               II.    THE PROSECUTOR DID NOT COMMIT MISCONDUCT                          IN HIS
                      CLOSING ARGUMENT.

               The Commonwealth attorney did not commit prosecutorial misconduct during his closing

    statement when he repeatedly referred to himself as "a gladiator". In order to raise a claim of

    alleged prosecutorial misconduct, Defendant must object to the misconduct in a timely manner;

    otherwise such a claim will not be available on appellate review. Commonwealth v. Cox, 603

    Pa. 223, 983 A.2d 666, 685 (2009). While a closing argument must be based upon evidence in

    the record or reasonable inferences therefrom, a prosecutor is permitted to respond to defense

    evidence and engage in oratorical flair. Commonwealth v. Culver, 2012 PA Super 172, 51 A.3d

    886, 878 (2012) (citing Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861, 869 (1990)).

    Allegedly improper remarks of a prosecutor during closing arguments must be viewed in the

    context of the closing argument as a whole. Commonwealth v. Smith, 604 Pa. 126, 985 A.2d

    886, 907 (2009) (quoting Commonwealth v. Washington,         549 Pa. 12, 700 A.2d 400, 407-08

    (1997)).

               In defining what constitutes impermissible conduct during closing argument,

    Pennsylvania     follows Section 5.8 of the American Bar Association (ABA) Standards. Section 5.8

    provides: (a) the prosecutor may argue all reasonable inferences from evidence in the record. It is

I   unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the

    jury as to the inferences it may draw; (b) It is unprofessional conduct for the prosecutor to

    express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the

    guilt of the defendant; ( c) The prosecutor should not use arguments calculated to inflame the

    passions or prejudices of the jury; (d) The prosecutor should refrain from argument which would

    divert the jury from its duty to decide the case on the evidence, by injecting issues broader than

    the guilt or innocence of the accused under the controlling law, or by making predictions of the


                                                      10
I    consequences of the jury's verdict. Commonwealth      v. Judy, 2009 PA Super 148, 978 A.2d 1015,

11019-20      (2009) ( citing Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006)).

I           Even an otherwise improper comment may be appropriate if it is in fair response to

    defense counsel's remarks. Commonwealth v. Burno, 96 A.3d 956, 974 (Pa. Super. 2014)

    ( quoting Commonwealth v. Elliott, 80 .2d 415, 443 (Pa. 2013 ). If a challenged remark is made

    in response to the defense's closing argument, it will generally be deemed fair response and

    hence permissible comment. Commonwealth v. Keaton, 615 Pa. 675, 45 A.3d 1050, 1074-75

    (2012) (citing Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 110 (1998)).

    Furthermore, a prosecutor's comments do not constitute reversible error unless their unavoidable

    effect was to prejudice the jury, forming in their minds fixed bias and hostility towards the

    defendant so that they could not weigh the evidence objectively and render a true verdict. Id.

            In the case at bar, the Commonwealth attorney made three references to himself as "a

    gladiator'' and to the courtroom as "the coliseum" during his closing statement. Specifically, Mr.

    Harden stated,

                     "Once you get in the coliseum with the Commonwealth, you have
                     to bring it. If this is ancient Rome and we're in the coliseum, if you
                     stay outside the coliseum, no judgment. But once you decide to step
                     into this coliseum with a gladiator, I'm going to pick your story apart,
                     my brother."

    (N.T. 6/26/2013 p. 26). Shortly thereafter, Mr. Harden stated, "you went to the coliseum with a

    gladiator, my brother," and "you're in the coliseum with a gladiator, my brother." Id. at 27-28.

    However, defense counsel failed to object after any of these statements and therefore the claim

    that the Commonwealth attorney committed misconduct in his closing statement by repeatedly

    referring to himself as a gladiator was not properly preserved for appellate review.




                                                      11
        Even if the claim was properly preserved for appellate review, the Commonwealth

attorney did not engage in misconduct by referring to himself as a gladiator but was merely

engaging in oratorical flair to respond to arguments made by the defense. In referring to himself

as a gladiator and the courtroom as a coliseum,   Mr. Harden was offering a metaphor for the

adversarial process of a trial and his duty to respond accordingly to inconsistencies   in the

defense's arguments. Notably, Mr. Harden referred to himself as a gladiator after highlighting

Defendant's inconsistent testimony regarding his employment status and his argument that

Buitrago and Graham framed him. Furthermore, there is no indication that Mr. Harden's

referrals to himself as a gladiator had the unavoidable effect of prejudicing the jury and forming

in their minds a fixed bias and hostility towards Defendant so that they could not weigh the

evidence objectively and render a true verdict. Thus, the Commonwealth attorney did not

commit prosecutorial misconduct in his closing argument.

       III.    THE COURT DID NOT ERR WHEN IT ALLOWED THE
               COMMONWEALTH TO USE A LETTER OF EMPLOYMENT DURING
               CROSS-EXAMINATION AND THEN ALLOWED THE LETTER TO BE
               READ TO REFRESH THE JURY'S MEMORY DURING
               DELIBERATIONS.

       This Court did not err when it allowed a letter of employment from Old Country Buffet to

be introduced during Defendant's   cross-examination.   Furthermore, this Court did not err when it

allowed the Jetter to be read to the jury during deliberations. To preserve a claim for review, the

defendant must make a timely and specific objection to the introduction of the challenged

evidence at trial. Commonwealth v. Gray, 2005 PA Super 22, 867 A.2d 560, 574 (2005) ( citing

Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 395 (2003)). A party may not remain

silent and afterwards complain of matters which, if erroneous, the court would have corrected.

Commonwealth v. Strunk, 2008 PA Super 149, 953 A.2d 577, 579 (2008) (quoting



                                                  12
Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274 (1974)).         A Rule 1925(b) statement is

not a substitute for the contemporaneous objection required at trial. Commonwealth v. Ali, 608

Pa. 71, 10 AJd 282, 293 (2010).

        Cross-examination may be employed to test a witness' story, to impeach credibility, and

to establish a witness's motive for testifying. The scope of cross-examination    is a matter within

the discretion of the trial court and will not be reversed absent an abuse of that discretion.

Commonwealth v. Ballard, 622 Pa. 177, 80 A.3d 380, 394 (2013) (citing Commonwealth v.

Chmiel, 585 Pa. 54 7, 889 A.2d 501, 527 (2005)). An attorney is entitled to question the witness

about subjects raised during direct examination as well as any facts tending to refute inferences

arising from matters raised during direct testimony. Commonwealth       v. Bricker, 2005 PA Super

307, 882 A.2d 1008, 1018-19 (2005) (citing Commonwealth v. Begley, 566 Pa. 239, 276-77,

780 A.2d 605, 627 (200 I)). Similarly, an attorney may discredit a witness by cross-examining

the witness about omissions or acts that are inconsistent with his testimony. Id.

        When a jury requests that a portion of recorded testimony be read aloud to refresh its

memory, the matter is within the trial court's discretion. Commonwealth v. Arrington, 86 A.3d

831, 848 (Pa.2014) (citing Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968)). As

long as there is not a flagrant abuse of discretion, this decision should not be overturned on

appeal. Commonwealth v. Manley, 2009 PA Super 227, 985 A.2d 256, 173 (citing

Commonwealth v. Gladden, 445 Pa.Super. 434, 665 A.2d 1201, 1205 (1995)). If the court grants

the request and the review does not place undue emphasis on the witness's testimony, no

reversible error is committed. Arrington, 86 A.3d at 848. In Manley, the Superior Court held that

the trial court did not abuse its discretion when it allowed the contents of an exhibit to be read to

the jury after the jury had requested that they be provided a physical copy of the exhibit. See



                                                 13
Manley, 985 A.2d at 272- 73. In arriving at the conclusion, the Superior Court noted that the trial

court had the discretion to both allow the jury to have an exhibit during deliberation and to have

testimony read back to them during deliberations. Id.

        In the case at bar, the Commonwealth cross-examined Defendant regarding a Jetter

written by James Hargrove, manager at Old Country Buffet. The Jetter, which was dated

September 2, 2011, stated that Defendant was presently employed at Old Country Buffet and had

been employed there since July 2010. Defense counsel did not object to the Commonwealth

reading the Jetter at the time. On June 10, 2013, the jury requested to see the letter. Defense

counsel objected to the Jetter being read to the jury because it had not been moved into evidence

or authenticated. The Commonwealth argued that reading the Jetter to the jury would not place

improper weight on it, as the jury had determined it was important to assess Defendant's

credibility. The Commonwealth further argued that reading the Jetter would aid the jury in

making that determination.   This Court allowed the letter to be read to the jury because it had

been read to the jury during trial and it would assist the jury in reaching a verdict. (N.T.

6/10/2013 p. 4-11).

       As defense counsel failed to object to the Jetter during cross-examination, the claim that

the letter was improperly read during cross-examination was not properly preserved for appellate

review. Even if the claim was preserved for appellate review, there was no error in allowing the

letter to be read during cross-examination.   Defendant testified that he was at work for Thomas

Family Moving on August 16, 2011 and therefore could not have been on Carpenter Street

selling drugs at that time. The Jetter, along with the biographical information Defendant gave to

police at the Homicide Unit in which he stated he was unemployed, was therefore properly used

by the Commonwealth to test Defendant's story and impeach his credibility.      Moreover, this



                                                 14
 Court did not abuse its discretion when it allowed the Jetter to be read to the jury during

 deliberations. The Jetter had been read previously in its entirety, was being used to refresh the

jury's memory, and reading it once more did not place undue weight upon it, as the jury wanted

 assistance in their determination of Defendant's credibility. Therefore, this Court properly

 allowed the Jetter to be read to the jury during deliberations.

         IV.    THE COURT DID NOT ERR WHEN IT EXCLUDED EVIDENCE THAT
                POLICEOFFICERS IN A SEPARATE CASE INVOLVING DEFENDANT
                HAD BEEN INDICTED.

        This Court did not err when it excluded evidence that police officers in a separate case

involving Defendant had been indicted. Generally, evidence is admissible if it is relevant, that is,

"if it logically tends to establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a material fact."

Commonwealth v. Kinard, 2014 PA Super 41, 95 A.3d 279, 284 (2014) (quoting Commonwealth

v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (2006)). A trial court may exclude evidence that is

irrelevant to the issues presented. Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 446

(2013). The court may exclude relevant evidence if its probative value is outweighed by a danger

of unfair prejudice. Pa.R.E. 403. Unfair prejudice supporting exclusion of relevant evidence

means a tendency to suggest decision on an improper basis or divert the jury's attention away

from its duty of weighing the evidence impartially. Commonwealth v. Wright, 599 Pa. 270, 961

A.2d 119, 151 (2008). Furthermore, evidence, although logically relevant on the ultimate issue,

may nevertheless be excluded because its general effect on the trial will be to confuse the jury by

distracting its attention away from the jury's primary concern to collateral issues. Commonwealth

v. Jones, 2003 PA Super 220, 826 A.2d 900, 908 (2003) (citing Commonwealth v. Baez, 554 Pa.

66, 93, 720 A.2d 711, 724 (1998)).



                                                   15
        In the case at bar, the Commonwealth made a motion in limine prior to the start of trial to

 preclude any mention by the defense that police officers Sydemy Joanis ("Joanis") and Jonathan

 Garcia ("Garcia") had been federally indicted. Joanis and Garcia previously had arrested

 Defendant a few months prior to his arrest in the instant case and were afterwards indicted for

 planting drugs and robbing drug dealers. The Commonwealth argued that this evidence was

 irrelevant because Joanis and Garcia had not been involved in any way in the instant matter and

 there were no allegations of corruption regarding Buitrago and Graham. The Commonwealth

further argued that any relevance the evidence might have was outweighed by its prejudicial

effect and the evidence would cause undue confusion, as the allegations did not involve the

instant case. Defendant argued that the evidence should be allowed to support an inference that

the entire Narcotics Field Unit in South Philadelphia was corrupt and could be used to impeach

the credibility of the testifying officers from that unit. This Court granted the motion to preclude

any mention of Joanis and Garcia. (N.T. 6/5/2013 p. 5-12).

        This Court properly precluded any mention of Joanis and Garcia's indictments as the

evidence was irrelevant to the case at bar. As Joanis and Garcia had no involvement whatsoever

in the instant case, the evidence of their indictment therefore did not tend to establish a material

fact in the case, to make a fact at issue more or less probable or support a reasonable inference or

presumption regarding a material fact. Even if the evidence was relevant to the instant case, any

relevance it may have had was greatly outweighed by the dangers of undue prejudice and

confusion. As there was no allegations that Buitrago or Graham were involved in any corruption,

the evidence would divert the jury's attention away from its duty of weighing the evidence

impartially by distracting its attention from the jury's primary concern to collateral issues.

Therefore, this Court properly excluded any evidence that Joanis and Garcia had been indicted.



                                                 16
         V.         THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE
                    EVIDENCE.

         The verdict in this case was not against the weight of the evidence presented at trial.

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was

sufficient to sustain the verdict. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067

(2013) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52 (2000)). The

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses." Commonwealth v.

Luster, 2013 PA Super 204, 71 A.3d 1029, 1049 (2013) (quoting Commonwealth v. Champney,

574 Pa. 435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the

weight claim below, an appellate court's role is not to consider the underlying question of

whether the verdict is against the weight of the evidence ... rather, appellate review is limited to

whether the trial court palpably abused its discretion in ruling on the weight claim."

Commonwealth v. Collins, 2013 PA Super 158, 70 A.3d 1245, 1251 (2013) (quoting Champney,

832 A.2d at 408). A verdict is not contrary to the weight of the evidence because of a conflict in

testimony or because the reviewing court on the same facts might have arrived at a different

conclusion than the fact-finder. Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (quoting

Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 (2003)). Rather, a new trial is

warranted only when the jury's verdict is so contrary to the evidence that it shocks one's sense of

justice and the award of a new trial is imperative so that right may be given another opportunity

to prevail. Id. ·

        In the case at bar, the jury heard testimony from Buitrago and Graham that they

personally observed Defendant sell drugs to CI on two separate occasions. Buitrago testified that

CI told the officers that there was a black male selling narcotics in the vicinity of the 2400 block


                                                 17
 of Carpenter Street and provided them with a specific phone number that could be called to

 arrange a sale. Buitrago testified that CI called the phone number and a short time later

 Defendant appeared on the scene and exchanged packets containing a chunky, off-white

substance for money with CI. Buitrago and Graham testified Defendant was arrested

immediately after the second occasion, at which time he was searched and the police found

cocaine and the prerecorded buy money that CI used to purchase the drugs on his person.

Buitrago further testified that they found a phone on Defendant's person which matched the

number dialed by CI to arrange the buy. The parties stipulated that chemists Sajju and Pelletier

would testify that the substances purchased by CI from Defendant tested positive for cocaine and

that the substance recovered from Defendant likewise testified positive for cocaine. Meehan

testified that he supervised the investigation and that Buitrago and Graham had followed proper

protocol during their investigation.   The jury also heard testimony from Defendant that he was at

work for Thomas Family Moving on August 16. However, the Commonwealth              presented

evidence that Defendant previously had told police that he was unemployed at the time and

further claimed that he was employed at OldCountry Buffet. Thus, the jury's verdict was not so

contrary to the evidence that it shocked one's sense of justice. Therefore, the verdict was not

against the weight of the evidence.




                                                 18
                                         CONCLUSION

       After a review of the applicable rules of evidence, statutes, case law and testimony, this

Court committed no error. Defendant is not entitled to a new trial based upon after-discovered

evidence. The prosecutor did not commit misconduct in his closing statement. The Court did not

err in allowing the Commonwealth to use a letter of employment during cross-examination of

Defendant and in allowing the letter to be read to refresh the jury's memory during deliberations.

The Court did not err when it excluded evidence that officers in a separate case involving

Defendant had been indicted. The verdict was not against the weight of the evidence. Therefore,

this Court's judgment of sentence should be upheld on appeal.




                                              19
