J-S57004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JALIK PEAY

                            Appellant                 No. 495 EDA 2013


         Appeal from the Judgment of Sentence September 27, 2012
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011915-2010


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 22, 2015

       Appellant, Jalik Peay, appeals from the September 27, 2012 aggregate

judgment of sentence of 20½ to 41 years’ imprisonment, imposed after a

jury convicted Appellant of one count each of attempted murder, aggravated

assault, carrying a firearm without a license, carrying a firearm in public in

Philadelphia, and possession of an instrument of a crime (PIC).1         After

careful review, we affirm.

       The trial court summarized the relevant factual and procedural

background of this case as follows.

                   At approximately 9:30 p.m. on March 2, 2010,
              Shikeem Alexander-Frederick got into his silver Buick
              sedan and drove to the neighborhood store to
____________________________________________
1
   18 Pa.C.S.A. §§          901(a), 2702(a), 6106(a)(1), 6108    and 907(a),
respectively.
J-S57004-15


          purchase cigarettes.     When he arrived at this
          intersection, he encountered [Appellant] as well as
          Ashia Terry and Arron Williams, three men known for
          their affiliation to a gang called the Jungle Mob
          Soldiers (JMS).

                Mr. Alexander-Frederick and [Appellant] got
          into a verbal argument, which escalated into
          [Appellant] brandishing a .357 Smith and Wesson
          revolver and emptying its chamber into Mr.
          Alexander-Frederick.

                 [Mr.] Alexander-Frederick was rushed to
          Einstein Medical Center in extremely critical condition
          resulting from five gunshot wounds: two to the left
          side of his back, a third to his left thigh, a fourth to
          his left hand, and a fifth wound to his left mandible.
          Doctors surgically removed bullet fragments, later
          determined to be of the .357/.38 caliber family, from
          his left lung. Additionally, Mr. Alexander-Frederick
          suffered a fractured sternum, three fractured ribs, a
          severely lacerated liver, a damaged gallbladder and
          colon, and fifty percent of his small intestine was
          removed. Doctors performed no less than twelve
          surgeries to repair the damage to his body and
          placed him in a medically-induced coma for
          approximately one month.

                An investigation ensued.        Two deformed
          projectiles were recovered from the intersection of
          Chew [Avenue] and Locust [Street]. This ballistic
          evidence established that these projectiles were from
          a .38 caliber revolver. A .357 Smith and Wesson
          revolver belongs to the .38 caliber family.

                 Detectives      conducted     several    witness
          interviews.     Mr. Jesse Jones told the police and
          testified that in the early afternoon of March 2, 2010,
          when he was outside on the 5500 block of Crowson
          Street, [Appellant] and Ashia Terry approached him
          and asked “what’s up with Keem … when is a good
          time to get (rob) him?”




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J-S57004-15


                Mr. Darnell Powell told the police and testified
          that he was waiting for the bus at the corner of Chew
          and Locust at about 9:15 p.m. or 9:30 p.m. on the
          evening of March 2, 2010. He told police that a guy
          exited a Buick, went into and exited the pizza shop,
          and upon exiting the pizzeria, starting arguing with
          another man. The men argued for a few minutes
          before one of them shot the other.

                Mr. Michael Edward Woodson stated that on
          March 2, 2010, he walked past [Appellant], Ashia
          Terry, and Arron Williams on the porch at 5534
          Crowson Street “and as soon [as] I sat down in my
          homie’s living room I heard about eight shots …
          about ten to fifteen minutes went by and [Appellant]
          came from the bottom of the block to the middle of
          the block … where I was at. You can tell that he was
          paranoid, sweating and nervous.”

                 Mr.        Alexander-Frederick        regained
          consciousness on April 7, 2010. On that day, while
          talking to his girlfriend, Lovewanda Carter, Mr.
          Alexander-Frederick said that [Appellant] shot him.
          Ms. Carter informed Detective Knecht of this fact,
          and on April 9, 2010, the Detective came to Einstein
          Medical Center to memorialize a statement from the
          victim.     During this interview, Mr. Alexander-
          Frederick stated, “… someone called my name then I
          heard six gunshots. I felt like I was hit everywhere.
          I fell to the ground. Before I passed out I looked
          and saw [Appellant] … smiling at me.” Detective
          Knecht also produced an eight-person photo array
          that included [Appellant]’s photo. Mr. Alexander-
          Frederick immediately identified [Appellant] as the
          man who shot him.

                 On April 15, 2010, Philadelphia Police executed
          an arrest warrant and search warrant for
          [Appellant]’s residence located at 5518 Chew
          Avenue.      In [Appellant]’s second-floor bedroom,
          police recovered a .357 Smith and Wesson revolver
          loaded with six live rounds and a loaded .25 caliber
          semiautomatic Raven Arms handgun. At trial, the
          ballistician could not testify with one hundred

                                  -3-
J-S57004-15


            percent scientific certainty that the bullet fragments
            recovered from Mr. Alexander-Frederick’s body were
            fired from [Appellant]’s .357 revolver.

                  The preliminary hearing was scheduled for
            June 17, 2010. Mr. Alexander-Frederick, who was
            released from the hospital at the end of May 2010,
            met with [the Commonwealth] a week prior to the
            hearing. During these preparations, he reaffirmed
            that he would testify, under oath, that [Appellant]
            was indeed the man who shot him on March 2, 2010.

                  However, [Appellant] took steps to ensure that
            Mr. Alexander-Frederick would not testify against
            him.   While incarcerated, by way of letters and
            telephone conversations, [Appellant] remained in
            contact with members of the JMS and his family and
            made several references to ending Mr. Alexander-
            Frederick’s life.

                  At 5:45 p.m. on June 12, 2010, five days
            before the preliminary hearing, Mr. Alexander-
            Frederick was executed on the front porch of his
            home located at 500 Ashmead Street. He suffered
            approximately seven gunshot wounds and died
            almost instantly. At the time this trial commenced,
            no one, including [Appellant], was charged with the
            murder of Shikeem Alexander-Frederick.

Trial Court Opinion, 2/25/14, at 4-7 (internal citations and footnotes

omitted).

     On October 26, 2010, the Commonwealth filed an information charging

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

terroristic threats, simple assault, and recklessly endangering another




                                    -4-
J-S57004-15


person (REAP).2 On June 7, 2012, Appellant proceeded to a jury trial, at the

conclusion of which, the jury found Appellant guilty of one count each of

attempted murder, aggravated assault, carrying a firearm without a license,

carrying a firearm in public in Philadelphia, and PIC. The terroristic threats,

simple assault, and REAP charges were nolle prossed.          On September 27,

2012, the trial court imposed an aggregate sentence of 20½ to 41 years’

imprisonment.3 On October 5, 2012, Appellant filed a timely post-sentence

motion, which the trial court denied on February 1, 2013. On February 8,

2013, Appellant filed a timely notice of appeal.4

        On appeal, Appellant raises the following issues for our review.

              [1.]   Did the trial court improperly admit unduly
                     prejudicial  hearsay      evidence    from    the
                     deceased complaining witness at this jury trial,
                     violating Appellant[’s] confrontation rights?
____________________________________________
2
    18 Pa.C.S.A. §§ 2706(a)(1), 2701(a) and 2705, respectively.
3
   Specifically, the trial court sentenced Appellant to 18 to 36 years’
incarceration for attempted murder, one and one-half to three years for
firearms not to be carried without a license, and one to two years for
carrying firearms in public in Philadelphia. All sentences were to run
consecutively and no further penalty was imposed on the remaining two
charges.
4
   On August 14, 2013, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days. Appellant
did not timely comply. However, on November 19, 2013, this Court granted
Appellant’s application for a remand to the trial court to file a Rule 1925(b)
statement within 60 days. Appellant timely complied with this Court’s order
on December 3, 2013. The trial court filed its Rule 1925(a) opinion on
February 25, 2014.



                                           -5-
J-S57004-15



            [2.]   Did the trial court improperly admit extensive
                   and unduly prejudicial other acts evidence
                   pursuant to Pennsylvania Rule of Evidence
                   404(b)?

            [3.]   Did the [Commonwealth]’s statements during
                   his    closing   argument    unduly    prejudice
                   Appellant[,] … improperly comment on
                   [Appellant]’s silence, or improperly attempt to
                   shift the Commonwealth’s burden?

Appellant’s Brief at 2.

      Appellant’s first issue on appeal has two components; however, we

address both parts together because they are intertwined. Appellant argues

that the trial court erred when it admitted into evidence certain statements

of the victim. Specifically, Appellant avers that the Commonwealth failed to

meet its burden under both the forfeiture by wrongdoing exception to the

rule against hearsay and the Confrontation Clause. Id. at 14, 20. We begin

by noting our well-settled standard of review.

            The admissibility of evidence is at the discretion of
            the trial court and only a showing of an abuse of that
            discretion, and resulting prejudice, constitutes
            reversible error. An abuse of discretion is not merely
            an error of judgment, but is rather the overriding or
            misapplication of the law, or the exercise of
            judgment that is manifestly unreasonable, or the
            result of bias, prejudice, ill-will or partiality, as
            shown by the evidence of record. Furthermore, if in
            reaching a conclusion the trial court over-rides or
            misapplies the law, discretion is then abused and it is
            the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

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A.3d 167 (Pa. 2013). However, the determination of “[w]hether Appellant

was denied [his] right to confront a witness under the confrontation clause

of the Sixth Amendment is a question of law for which our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Dyarman, 33 A.3d 104, 106 (Pa. Super. 2011) (citation omitted), affirmed,

73 A.3d 565 (Pa. 2013), cert. denied, Dyarman v. Pennsylvania, 134 S.

Ct. 948 (2014).

      “Hearsay means a statement that … the declarant does not make while

testifying at the current trial or hearing; and … a party offers in evidence to

prove the truth of the matter asserted in the statement.”      Pa.R.E. 801(c).

“Hearsay is not admissible except as provided by [the Pennsylvania Rules of

Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or

by statute.” Pa.R.E. 802.

            This Court has long recognized that to insure a party
            the guarantees of trustworthiness resulting from a
            declarant’s presence in court, a proponent of hearsay
            evidence must point to a reliable hearsay exception
            before such testimony will be admitted. Thus, the
            burden of production is on the proponent of the
            hearsay statement to convince the court of its
            admissibility under one of the exceptions.

Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal

quotation marks and citations omitted).

      Rule 804 contains numerous exceptions to hearsay, including the one

at issue in this case, pertaining to forfeiture by wrongdoing. The relevant

part of the Rule provides as follows.

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J-S57004-15


              Rule 804. Exceptions to the Rule Against
              Hearsay--When the Declarant is Unavailable as
              a Witness

                                               …

              (b) The Exceptions. The following are not excluded
              by the rule against hearsay if the declarant is
              unavailable as a witness:

                                               …

              (6) Statement Offered Against a Party That
              Wrongfully Caused the Declarant’s Unavailability. A
              statement offered against a party that wrongfully
              caused--or acquiesced in wrongfully causing--the
              declarant’s unavailability as a witness, and did so
              intending that result.

Pa.R.E. 804(b)(6).

       Likewise, the Sixth Amendment provides in relevant part that “[i]n all

criminal prosecutions, the accused shall enjoy the right … to be confronted

with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.

Washington, 541 U.S. 36 (2004), the United States Supreme Court

declared a dramatic change in Confrontation Clause doctrine.5       The Court

held that “[t]estimonial statements of witnesses absent from trial [may be]

admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.”            Id. at 59.
____________________________________________
5
  The Confrontation Clause of the Sixth Amendment is applicable to the
States via the Due Process Clause of the Fourteenth Amendment.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citation
omitted).




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J-S57004-15


Crawford generally divests the Confrontation Clause from state hearsay law

and evidence rules.6 See generally Ohio v. Clark, 135 S. Ct. 2173, 2180

(2015).

       However, the United States Supreme Court has held that the

Confrontation Clause contains an exception of forfeiture by wrongdoing.

Giles v. California, 554 U.S. 353, 359 (2008).                At common law,

“unconfronted testimony would not be admitted without a showing that the

defendant intended to prevent a witness from testifying.”            Id. at 361

(emphasis in original). The High Court noted that Federal Rule of Evidence

804(b)(6) “codifies the forfeiture doctrine.”        Id. at 367.    Federal Rule

804(b)(6) and Pennsylvania Rule 804(b)(6) are identical.               Compare

Fed.R.E. 804(b)(6), (allowing admission of “[a] statement offered against a

party that wrongfully caused--or acquiesced in wrongfully causing--the

declarant’s unavailability as a witness, and did so intending that result[]”,

with Pa.R.E. 804(b)(6) (same).           Therefore, if the Commonwealth met its

burden under Rule 804(b)(6), it will have a fortiori satisfied the exception to




____________________________________________
6
  Prior to Crawford, the controlling case in this area was Ohio v. Roberts,
448 U.S. 56 (1980). In Roberts, the United States Supreme Court held
that the Confrontation Clause permitted the use of hearsay testimony of an
unavailable declarant at trial if it fell into a “firmly rooted hearsay exception”
or if the statement bore “particularized guarantees of trustworthiness.” Id.
at 66.




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J-S57004-15


the Confrontation Clause.7         Commonwealth v. King, 959 A.2d 405, 416

(Pa. Super. 2008).          To satisfy its burden under Rule 804(b)(6), the

Commonwealth “must establish by a preponderance of the evidence that:

“(1) the defendant … was involved in, or responsible for, procuring the

unavailability of the declarant … and (2) the defendant … acted with the

intent of procuring the declarant’s unavailability as an actual or potential

witness.” Id. at 415, quoting United States v. Dhinsa, 245 F.3d 635, 653-

654 (2d Cir. 2001), cert. denied, Dhinsa v. United States, 534 U.S. 897

(2001).

       In this case, as detailed by the trial court, the Commonwealth

presented ample         evidence    that Appellant was involved in procuring

Alexander-Frederick’s unavailability, thus precluding him from testifying at

Appellant’s trial.      In its motion in limine, the Commonwealth provided

transcribed telephone conversations from when Appellant was incarcerated

awaiting trial.    Therein, Appellant discussed with his father the witnesses

who    were     going    to    testify   against   him   at   his   upcoming   trial.


____________________________________________
7
  The parties do not appear to dispute that Alexander-Frederick’s statements
to the police at the hospital were testimonial and Appellant was not afforded
a prior opportunity to cross-examine him. See, e.g., Hammon v. Indiana,
547 U.S. 813, 830 (2006) (concluding that victim’s statement to police
during interview that took place in her living room after domestic
disturbance was testimonial for the purposes of the Confrontation Clause).
Therefore, unless the Commonwealth met its burden under the forfeiture by
wrongdoing exception, the Confrontation Clause would have rendered
Alexander-Frederick’s statements inadmissible.



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J-S57004-15


Commonwealth’s Motion In Limine, 11/22/11, at 12.          Appellant identified

Alexander-Frederick by name to his father.        Id. at Exhibit C-8, at 13.

Appellant also discussed “a rat” with another caller and how the caller should

“get someone to go up there and talk to that bull though man.”

Commonwealth’s Motion In Limine, 11/22/11, at 14.          Appellant and this

caller also discussed how the caller reacts in “certain situations.”      After

Alexander-Frederick talked to the police, Appellant, while speaking with his

father, discussed how Alexander-Frederick “got two sets of bullets in him.”

Id. at 15. His father responded by saying “[h]e aint [sic] gonna testify and

all that[.]” Id.

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

The   Commonwealth’s      recorded   conversations,   as   highlighted   above,

demonstrate that Appellant actively discussed and threatened the person

who was talking to the police about his case. As the Commonwealth points

out, “[t]he physical evidence and statements from the witnesses only

indicate the presence of one shooter and one gun in shooting Mr. Alexander-

Frederick the first time.” Id. at 16. Therefore, it is logical that Appellant’s

use of the term “two sets of bullets” more likely than not referred to an

instruction to injure Alexander-Frederick a second time, with a second set of

bullets.   As the telephone calls also reveal, the discussions were all in the

context of Alexander-Frederick testifying in Appellant’s case. Therefore, we

conclude the Commonwealth did meet its burden of showing that Appellant


                                     - 11 -
J-S57004-15


was involved in procuring Alexander-Frederick’s unavailability for the

purpose of him not testifying in Appellant’s case. As a result, the trial court

did not abuse its discretion in admitting Alexander-Frederick’s statement

under Rule 804(b)(6), and Appellant’s Confrontation Clause rights were not

violated. See Fischere, supra; Dyarman, supra.

      In his second issue, Appellant avers that the trial court abused its

discretion when it admitted evidence of certain bad acts pursuant to the res

gestae exception under Pennsylvania Rule of Evidence 404(b).                  The

Commonwealth counters that the trial court did not abuse its discretion as

the   evidence   completed    the    history   of   the   case   for   the   jury.

Commonwealth’s Brief at 13.         The Commonwealth also avers that the

evidence was admissible to show consciousness of guilt. Id.

                        Generally, evidence of prior bad acts or
                  unrelated criminal activity is inadmissible to
                  show that a defendant acted in conformity with
                  those past acts or to show criminal propensity.
                  Pa.R.E. 404(b)(1). However, evidence of prior
                  bad acts may be admissible when offered to
                  prove some other relevant fact, such as
                  motive, opportunity, intent, preparation, plan,
                  knowledge, identity, and absence of mistake or
                  accident. [Id. at] 404(b)(2). In determining
                  whether evidence of other prior bad acts is
                  admissible, the trial court is obliged to balance
                  the probative value of such evidence against
                  its prejudicial impact.     Commonwealth v.
                  Powell, 598 Pa. 224, 956 A.2d 406, 419
                  (2008).

            [Commonwealth v. Sherwood, 982 A.2d 483, 497
            (Pa.  2009),  cert. denied,  Sherwood     v.
            Pennsylvania, 559 U.S. 1111 (2010)].     The

                                     - 12 -
J-S57004-15


            Commonwealth must prove beyond a reasonable
            doubt that a defendant has committed the particular
            crime of which he is accused, and it may not strip
            him of the presumption of innocence by proving that
            he    has    committed     other   criminal   acts.
            Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d
            631, 633 (1979); Commonwealth v. Constant,
            925 A.2d 810, 821 (Pa. Super. [2006]), appeal
            denied, 594 Pa. 675, 932 A.2d 1285 (2007).

Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc),

appeal denied, 72 A.3d 603 (Pa. 2013). Although Rule 404(b) is colloquially

known as a rule prohibiting evidence of prior bad acts, our cases have held

that, consistent with the text of Rule 404, its exceptions may permit the

Commonwealth     to   introduce   evidence   of   subsequent      bad   acts.

Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005) (citation

omitted), appeal dismissed, 924 A.3d 1203 (Pa. 2007). Our Supreme Court

has long recognized a res gestae or “complete story” exception to Rule

404(b)(1). See Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002)

(stating, evidence of other crimes may be admissible “where [it] was part of

the chain or sequence of events which became part of the history of the case

and formed part of the natural development of the facts[]”) (citation

omitted).

     Our Supreme Court and this Court have recognized that a defendant’s

subsequent bad acts directed at a witness are generally admissible under the

res gestae exception to Rule 404(b)(1). In Commonwealth v. Flamer, 53

A.3d 82 (Pa. Super. 2012), Flamer and his uncle were arrested for the


                                   - 13 -
J-S57004-15


murder of the victim, Allen Moment, Jr.      Id. at 84.   Before Flamer’s trial,

“the Commonwealth planned to call Abdul Taylor, who, according to the

Commonwealth, had knowledge of the plot by [Flamer and his uncle] to kill

Moment.” Id. at 85. Taylor was killed three months before trial. Id. The

Commonwealth sought to introduce multiple pieces of evidence showing that

Flamer and his uncle conspired with the gunman to kill Taylor to prevent him

from testifying. This Court held that “evidence of a conspiracy by [Flamer

and his uncle] to kill Taylor to prevent him from testifying at the Moment

murder trial … [was admissible] to show the history of the case and the

guilty conscience of the defendants.” Id. at 86-87. This is consistent with

the cases from our Supreme Court.            See, e.g., Commonwealth v.

Murphy, 657 A.2d 927, 932 (Pa. 1995) (stating, “[t]he facts behind the

murder of [a witness] were so interwoven with the facts of the case [for

which the defendant was on trial] that such evidence was properly admitted

as res gestae[]”).

      Here, the Commonwealth introduced the following evidence.

            (1) [Appellant]’s affiliation with the Jungle Mob
            Soldiers; (2) Ashia Terry and Arron Williams[’]
            affiliation with the Jungle Mob Soldiers; (3) recorded
            telephone conversations [Appellant] had with his
            father and Ashia Terry while incarcerated regarding
            his case; (4) testimony from Raul West describing
            the events of June 12, 2010, the day Mr. Alexander-
            Frederick was murdered; (5) the identification that
            Arron Williams murdered Mr. Alexander-Frederick;
            (6)     recorded    telephone   conversations    about
            [Appellant] confronting Edward Woodson about his
            testimony; (7) [Appellant]’s hand-written letters

                                    - 14 -
J-S57004-15


            attempting to distance himself from Ashia Terry; (8)
            [Appellant]’s hand-written letter attempting to solicit
            a women’s help because she is loyal; (9)
            [Appellant]’s statement to Mr. Jesse Jones in the
            afternoon hours of March 2, 2010 asking when and
            where he can find Mr. Alexander-Frederick; and (10)
            recorded telephone conversations where [Appellant]
            admits to owning the firearms Philadelphia police
            recovered while executing a search warrant of
            [Appellant]’s home.

Trial Court Opinion, 2/25/14, at 19.

      The trial court further explained its reasoning as follows.

                   [Appellant]’s statements to Mr. Jesse Jones
            inquiring about the victim’s whereabouts in the
            afternoon hours of March 2, 2010 is the only act the
            Commonwealth moved to introduce that happened
            prior to the crime. [Appellant] asked Mr. Jones,
            “what’s up with Keem … when is a good time to get
            him?”     This question strongly suggests that the
            shooting was not accidental; it was premeditated
            and committed with the intent to take Mr. Alexander-
            Frederick’s life. Thus, the requirements of Pa.R.E.
            404(b)(2) are met and this evidence is admissible.

                                         …

                   The remainder of the other bad acts the
            Commonwealth moved to admit occurred after March
            2, 2010 and were triggered by Mr. Alexander-
            Frederick’s signed, adopted statement to Philadelphia
            Detectives on April 9, 2010 that identified
            [Appellant] as his assailant. This identification is the
            only evidence linking [Appellant] to the shooting.
            After Mr. Alexander-Frederick identified [Appellant],
            [Appellant] was arrested and held in custody.
            [Appellant]’s incarceration proved to be his
            proverbial Achilles’ heel.      Despite [Appellant]’s
            forfeiture of his right to privacy while confined, he
            maintained contact with his family and members of
            the Jungle Mob Soldiers via the prison telephones.
            As such, his conversations were recorded. Recorded

                                       - 15 -
J-S57004-15


               telephone conversations between [Appellant] and his
               father on April 17 and 19, 2010 and [Appellant] and
               his mother on April 18, 2010 strongly suggest that
               once [Appellant] learned the identity of his accuser,
               he     sought    revenge.        Recorded   telephone
               conversations between [Appellant] and [Terry] on
               April 17, 2010 and April 20, 2010 allude to the fact
               that [Appellant] solicited help from members of the
               JMS to eliminate Mr. Alexander-Frederick. Letters
               recovered from [Appellant]’s jail cell confirm
               [Appellant]’s affiliation with the JMS and his
               connections to [Terry].       [Appellant]’s efforts to
               prevent Mr. Alexander-Frederick from testifying
               against him came to fruition one week prior to the
               preliminary hearing when the witness was shot and
               killed on the front porch of his home.

                                            …

               [T]his evidence would prevent the jury from
               wondering what happened to the complaining
               witness and would prevent speculation as to why he
               was not testifying in court. The evidence admitted
               pursuant to Pa.R.E. 404(b) showed exactly where he
               went and the circumstances surrounding his death.
               … March 2, 2010 simply began this saga. Events
               that followed the shooting of Mr. Alexander-Frederick
               on March 2, 2010 were appropriately admitted to
               enable the jury to properly understand the entire
               chain of events.

Id. at 20-23 (internal quotation marks and footnotes omitted).

       After careful review, we agree with the trial court’s conclusion.      The

Commonwealth’s evidence explained why the complaining witness of the

crime for which Appellant was on trial was not present to testify.            The

victim’s death transpired as a direct result of Appellant’s arrest and trial in

this   case.      Therefore,   in   our   view,    the   Commonwealth’s   evidence

surrounding the victim’s ultimate demise “w[as] so interwoven with the facts

                                          - 16 -
J-S57004-15


of the case [for which the defendant was on trial] that such evidence was

properly admitted as res gestae.”    Murphy, supra.        As a result, the trial

court did not abuse its discretion in granting the Commonwealth’s motion in

limine. See Fischere, supra.

     In his third issue, Appellant argues the trial court erred when it denied

his motion for a mistrial following certain statements made by the

Commonwealth     in   its   summation.       Appellant’s   Brief   at   39.   The

Commonwealth counters that the trial court properly denied Appellant’s

motion, as its comments were in fair response to those made by Appellant in

his own closing argument to the jury. Commonwealth’s Brief at 15-16.

     We begin by stating our standard of review.

            It is well-settled that the review of a trial court’s
            denial of a motion for a mistrial is limited to
            determining whether the trial court abused its
            discretion. An abuse of discretion is not merely an
            error of judgment, but if in reaching a conclusion the
            law is overridden or misapplied, or the judgment
            exercised is manifestly unreasonable, or the result of
            partiality, prejudice, bias or ill-will … discretion is
            abused. A trial court may grant a mistrial only
            where the incident upon which the motion is based is
            of such a nature that its unavoidable effect is to
            deprive the defendant of a fair trial by preventing the
            jury from weighing and rendering a true verdict. A
            mistrial is not       necessary     where    cautionary
            instructions are adequate to overcome prejudice.

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

omitted).

                 With specific reference to a claim of
            prosecutorial misconduct in a closing statement, it is

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                well settled that “[i]n reviewing prosecutorial
                remarks to determine their prejudicial quality,
                comments cannot be viewed in isolation but, rather,
                must be considered in the context in which they
                were made.” Commonwealth v. Sampson, 900
                A.2d 887, 890 (Pa. Super. 2006) (citation omitted)[,
                appeal denied, 907 A.2d 1102 (Pa. 2006)]. Our
                review of prosecutorial remarks and an allegation of
                prosecutorial misconduct requires us to evaluate
                whether a defendant received a fair trial, not a
                perfect trial.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009).

        During its closing argument, the Commonwealth made the following

comment to the jury.

                Ladies and gentlemen, that’s less than 24 hours after
                he got arrested. Counsel wants to play the rest of
                that recording, by all means. He believes there’s
                another connotation he could[n’t] have done it.
                There’s none. There’s nothing else that he’s talking
                about.

N.T., 6/12/12, at 54-55.            Appellant argues the Commonwealth improperly

commented on facts not in evidence because the trial court had already

ruled    that    Appellant     could    not    introduce   the   referenced   recordings.

Appellant’s Brief at 41.            Appellant further avers that the Commonwealth

engaged in impermissible burden-shifting. Id. at 42. As noted above, the

Commonwealth argues that the trial court properly concluded that its

comment         was   a      fair    response     to   Appellant’s   own      summation.

Commonwealth’s Brief at 15-16.

        This Court has explained the fair response doctrine in the following

terms.

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           While it is improper for a prosecutor to offer any
           personal opinion as to guilt of the defendant or
           credibility of the witnesses, it is entirely proper for
           the prosecutor to summarize the evidence
           presented, to offer reasonable deductions and
           inferences from the evidence, and to argue that the
           evidence establishes the defendant’s guilt. In
           addition, the prosecutor must be allowed to respond
           to defense counsel’s arguments, and any challenged
           statement must be viewed not in isolation, but in the
           context in which it was offered. The prosecutor must
           be free to present his or her arguments with logical
           force and vigor.” Within reasonable bounds, the
           prosecutor may employ oratorical flair and
           impassioned argument when commenting on the
           evidence ….

Commonwealth v. Riggle, --- A.3d ---, 2015 WL 4094427, *7 (Pa. Super.

2015) (citation omitted).

     In the case sub judice, Appellant made the following argument in his

summation regarding the tapes in question.

           It should be instructed to you as we all heard
           yesterday and we’ll talk about these prison tapes in a
           moment that [Appellant] who’s been in jail for about
           two years awaiting his trial on this case you heard
           from those two years about probably 15 minutes of
           tape and you heard the [Commonwealth] fastforward
           [sic] them through portions of those tapes picking
           out snippets that they want to try to use to convince
           you that something very cerebral was going on.

                                     …

           I think in regards even to those portions of the tape
           which the Commonwealth played they felt they were
           the most incriminating portions of those tapes they
           had all the last two years to go through that’s the
           best that they can do.

N.T., 6/12/12, at 16-17, 31.

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      The trial court rejected Appellant’s arguments based on the following.

            [Appellant] clearly opened the door to the
            [Commonwealth]’s comments regarding the prison
            tapes. Once the door is opened, [Appellant] cannot
            slam it shut because he does not like the animal that
            is behind it. The [Commonwealth] simply responded
            to these comments. [The Commonwealth] did not
            suggest that [Appellant] had to prove his innocence,
            and as such, [the Commonwealth’s] comments did
            not amount to burden shifting.

Trial Court Opinion, 2/25/14, at 26.

      After careful review, we agree with the trial court’s conclusion.

Appellant argued to the jury that the Commonwealth only selected certain

portions of the prison tapes to make Appellant sound the most guilty. The

Commonwealth     was   free   to   respond      to   such   argument   by   simply

commenting that there was more dialogue recorded than what had been

played. As the trial court recognized, the Commonwealth’s response did not

imply that Appellant had the burden to negate the Commonwealth’s case.

      However, even if it could be reasonably interpreted to do so, we note

the trial court instructed the jury as part of its charge that a criminal

defendant “is not required to present evidence or to prove anything. If the

evidence that is presented fails to meet the Commonwealth’s burden, your

verdict must be not guilty.” N.T., 6/12/12, at 64-65. It is axiomatic that

the jury is presumed to have followed the trial court’s instructions.

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation




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omitted). Based on all of these considerations, the trial court did not abuse

its discretion in denying Appellant’s motion for a mistrial.

      Based on the foregoing, we conclude all of Appellant’s issues on appeal

are devoid of merit.      Accordingly, the trial court’s September 27, 2012

judgment of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2015




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