J-S52045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
                                               :
    JOSEPH JAMES NEWMAN, JR.                   :
                                               :
                      Appellant                :   No. 264 MDA 2018

          Appeal from the Judgment of Sentence October 16, 2017
               in the Court of Common Pleas of Clinton County
            Criminal Division at No(s): CP-18-CR-0000635-2016

BEFORE:      BENDER, P.J.E., McLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED: NOVEMBER 9, 2018

        Joseph James Newman, Jr. (Appellant) appeals from the judgment of

sentence imposed following his convictions for one count of aggravated

assault, attempt to cause serious bodily injury to another; one count of

aggravated assault, attempt to cause bodily injury with a deadly weapon;

one count of person not to possess a firearm; one count of firearm not to be

carried without a license; two counts of simple assault; and one count of

recklessly endangering another person. We affirm.

        The Commonwealth charged Appellant with the above-referenced

crimes1 following an incident in Mill Hall Borough, Pennsylvania on August


____________________________________________


1  Appellant was also charged with attempted homicide and terroristic
threats. A mistrial was declared after the jury deadlocked on the attempted
homicide charge. The jury found Appellant not guilty of terroristic threats.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S52045-18


22, 2016.     We begin with a summary of the facts established by the

Commonwealth at the jury trial conducted on August 10-11, 2017.

       On August 22, 2016, Tim Moore, the president of the Outsiders

Motorcycle Club (the Club), a non-profit organization, encountered Appellant

and Appellant’s friend James Schmidtberg at a Sheetz convenience store

around 8:30 p.m. N.T., 8/10/2017, at 230. Appellant is a former member

of the Club with whom Moore had bad blood. Id. at 228, 232. According to

Moore,   Appellant   appeared   intoxicated   and   shouted   at   Moore   in   a

threatening manner, telling Moore that Moore better get 12-15 people

together because Appellant, his boss, and 12 other men were “going to end

things tonight.” Id. at 230.

       Later that evening, Moore and several members of the Club, including

Gary Lucas, gathered in Mill Hall Borough near the residence of Moore’s

daughter. Id. at 241, 300. Appellant resided close to this location. Id. at

239.

       After they arrived, Moore and Lucas observed Appellant, Schmidtberg,

and Mike Bingaman walking up Arch Street towards them. Id. at 244, 278,

280. Lucas walked towards the trio, intending to diffuse the situation, and

ended up standing face to face with Appellant with about a foot and one-half




                                    -2-
J-S52045-18


between them.2         Id. at 249-50, 280, 282.          Lucas smelled alcohol on

Appellant. N.T., 8/11/2017, at 5.

       Appellant pulled out a black semi-automatic pistol3 and Moore and

Lucas heard Appellant pull the action.           N.T., 8/10/2017, at 246-47, 251,

283. According to Lucas, Appellant pointed the gun at Lucas’s forehead, and

all Lucas could see was the black hole at the end of the barrel. Id. at 283-

84. Appellant told Lucas “it’s going to end tonight,” and fired a shot in the

air. Id. at 248, 250, 284; N.T., 8/11/2017, at 28.

       Lucas then struggled with Appellant over the gun. N.T., 8/10/2017, at

249-50, 280. Appellant regained control of the gun, pointed it back towards

Lucas’s head, and fired a second time. Id. at 284; N.T., 8/11/2017, at 28-

31.   Moore initially thought Appellant shot Lucas in the head because of

where Appellant had the gun pointed prior to shooting, but Moore realized

the shot went past Lucas’s head.               N.T., 8/10/2017, at 250-51.   Lucas

testified that he had turned to his right to avoid the shot and the shot sailed

past his left ear. Id. at 284-86. He thought he was dead, but realized he


____________________________________________


2Moore followed Lucas to meet Appellant, and estimated he also ended up
about one to two feet away from Appellant. N.T., 8/10/2017, at 251. It is
unclear from the record exactly where he was standing in relation to Lucas
and Appellant.

3 The police recovered a Taurus 93 black semi-automatic pistol at the scene;
the Commonwealth proceeded on the theory this was the gun used by
Appellant.



                                           -3-
J-S52045-18


was not. Id. at 286. He was not injured but sustained ringing in his left ear

that still persisted at the time of trial. Id.

         After Appellant fired the gun the second time, Lucas tussled with

Appellant over the gun while Appellant shouted at Bingaman to shoot Lucas

in the knee. Id. at 251, 287. Bingaman fired two shots from his gun into

the ground near Lucas’s feet.          Id. at 252, 288; N.T., 8/11/2017, at 80.

Meanwhile, Lucas threw Appellant’s gun off to the side, where the police

later recovered it. N.T, 8/10/2017, at 289.

         Police responded to the scene, and took statements from Appellant,

Lucas, and other witnesses.4 The Commonwealth also admitted, and played

for the jury, video footage from a security camera in the vicinity, which

depicted, inter alia, Appellant, Bingaman, and Schmidtberg in the area

during the time in question. N.T., 8/10/2017, at 190-93; N.T., 8/11/2017,

at 16.

         After receiving the foregoing testimony, the jury found Appellant guilty

of the crimes discussed supra.             On October 16, 2017, the trial court

sentenced Appellant to an aggregate term of 14½ years to 29 years of

imprisonment. Appellant filed a post-sentence motion challenging, inter alia,



____________________________________________


4 The written statements taken by police from Lucas and another
Commonwealth witness, Doug Smith, were admitted at trial as a defense
exhibit. See Defendant’s Exhibit D-2, D-3.



                                           -4-
J-S52045-18


the sufficiency and weight of the evidence,5 which the trial court denied.

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

with the mandates of Pa.R.A.P. 1925.             On appeal, Appellant raises three

issues. Appellant’s Brief at 9.

       We first address his argument that the evidence was insufficient to

convict Appellant of aggravated assault by using the following standard.

       Whether sufficient evidence exists to support the verdict is a
       question of law; our standard of review is de novo and our scope
       of review is plenary. When reviewing the sufficiency of the
       evidence, this Court is tasked with determining whether the
       evidence at trial, and all reasonable inferences derived
       therefrom, [is] sufficient to establish all elements of the offense
       beyond a reasonable doubt when viewed in the light most
       favorable to the Commonwealth[.]           The evidence need not
       preclude every possibility of innocence….


____________________________________________


5   On October 19, 2017, three days after his judgment of sentence,
Appellant, through his newly-appointed counsel, filed a motion for extension
of time in which to file his post-sentence motion due to counsel’s recent
appointment and the unavailability of the trial and sentencing transcripts.
The trial court granted this motion on October 20, 2017, permitting
Appellant to file a post-sentence motion within 10 days of his receipt of the
trial and sentencing transcripts. Trial Court Order, 10/20/2017, at 1. The
trial court had jurisdiction to grant that request as the motion was filed prior
to the deadline for filing a post-sentence motion. See Commonwealth v.
Moore, 978 A.2d 988, 991 (Pa. Super. 2009) (holding that trial court had
authority to grant motion for extension of time to file post-sentence motion
filed eight days after Moore’s judgment of sentence). Although the trial
court did not use the words “nunc pro tunc,” its order made clear that it was
expressly granting Appellant the right to file a post-sentence motion in such
a fashion. See Commonwealth v. Batty, 169 A.3d 70, 72 n.4 (Pa. Super.
2017) (holding that trial court did not err by permitting counsel to file a
motion nunc pro tunc after counsel filed a motion requesting such relief due
to counsel’s recent appointment).



                                           -5-
J-S52045-18


Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted).          Credibility of witnesses and the

weight of the evidence produced is within the province of the trier of fact,

who is free to believe all, part, or none of the evidence. Commonwealth v.

Scott, 146 A.3d 775, 777 (Pa. Super. 2016).

         Appellant argues that because Lucas did not suffer “serious bodily

injury,” the Commonwealth needed to prove that he specifically intended to

injure Lucas. Appellant’s Brief at 16-19. He claims the evidence introduced

at trial established only that he fired past Lucas, not “at” him, particularly

the testimony of Douglas Smith, a Commonwealth witness who testified that

Appellant moved his gun in the opposite direction from Lucas on the second

shot.6     Id. at 18-19.      Finally, Appellant argues that he could not have

intended to injure Lucas because he was only one and one-half feet away

from Lucas when the gun was fired and “it would have been impossible to

miss him.” Id. at 19.

         In order to prove that Appellant committed aggravated assault

pursuant to subsection 2702(a)(1) of the Crimes Code, the Commonwealth

needed to provide that Appellant either “attempt[ed] to cause serious bodily
____________________________________________


6 Specifically, when asked if Appellant moved his gun away from Lucas
before firing the second shot, Smith responded that “[Appellant] moved [the
gun] and [Lucas] leaned at the same time. [Lucas] moved and the gun
moved at the same time in the opposite direction.” N.T., 8/11/2017, at 30.
He then stated that both Appellant and Lucas moved as Appellant was
pulling the trigger, and he could not say who moved first. Id. at 30-31.



                                           -6-
J-S52045-18


injury   to   another”     or    “cause[d      serious   bodily   injury]   intentionally,

knowingly[,]     or   recklessly    under      circumstances      manifesting    extreme

indifference to the value of human life[.]”7,8 18 Pa.C.S. § 2702(a)(1).

____________________________________________


7 The Crimes Code defines “serious bodily injury” as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301(a). The Commonwealth established
that Lucas suffered ringing in his ear that persisted at the time of trial, which
was almost one year after the shooting. N.T., 8/10/2017, at 286. This
arguably could constitute “protracted … impairment of the function of any
bodily member[.]” 18 Pa.C.S. § 2301(a). However, because no further
testimony was developed regarding Lucas’s impairment, we will focus our
analysis on whether the Commonwealth proved beyond a reasonable doubt
that Appellant attempted to cause serious bodily injury.

8 Appellant also argues that the Commonwealth’s evidence was insufficient
to convict him under 18 Pa.C.S. § 2702(a)(4) (“A person is guilty of
aggravated assault if he … attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly weapon.”). Appellant’s Brief at
16-19.     In contrast to subsection 2702(a)(1), which requires the
Commonwealth to prove that the defendant caused or attempted to cause
“serious bodily injury,” a person can be guilty of aggravated assault
pursuant to subsection 2702(a)(4) if he causes or attempts to cause “bodily
injury.” Compare 18 Pa.C.S. § 2702(a)(1) with 18 Pa.C.S. § 2702(a)(4).

       However, Appellant has waived any challenge to the sufficiency of the
evidence regarding his conviction under subsection 2702(a)(4) by failing to
preserve the issue in his Pa.R.A.P. 1925(b) concise statement. Appellant’s
concise statement addresses his aggravated assault conviction pursuant to
subsection 2702(a)(1) only. See Appellant’s Concise Statement, 3/1/2018,
at 1 (questioning “[w]hether the evidence was insufficient … to convict
[Appellant] on the charge of [a]ggravated [a]ssault, specifically where the
Commonwealth’s evidence failed to establish beyond a reasonable doubt
that it was [Appellant’s] intent to cause serious bodily injury to [Lucas]”)
(emphasis added).

      Failure to preserve an issue in the Rule 1925(b) concise statement
results in waiver of the issue for appeal. See Pa.R.A.P. 1925(b)(4)(ii), (iv)
(Footnote Continued Next Page)


                                            -7-
J-S52045-18


      “For aggravated assault purposes, an attempt is found where an

accused who possesses the required, specific intent acts in a manner which

constitutes a substantial step toward perpetrating a serious bodily injury

upon another.”      Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.

Super. 2012) (citation and quotation marks omitted).           “A person acts

intentionally with respect to a material element of an offense when ... it is

his conscious object to engage in conduct of that nature or to cause such a

result....” 18 Pa.C.S. § 302(b)(1)(i). “[I]ntent ordinarily must be proven

through circumstantial evidence and inferred from acts, conduct or attendant

circumstances.” Martuscelli, 54 A.3d at 948.       When determining whether

a person acted with the necessary intent, we must examine the totality of

the circumstances, which may include factors such as

      evidence of a significant difference in size or strength between
      the defendant and the victim, any restraint on the defendant
      preventing him from escalating the attack, the defendant’s use
      of a weapon or other implement to aid his attack, and his

(Footnote Continued) _______________________

(providing that “[t]he [s]tatement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge” or such issue is waived); see also
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (holding
that a Rule 1925(b) concise statement that does not “specify the element or
elements upon which the evidence was insufficient” does not preserve the
issue for appeal).

      Moreover, even if Appellant had preserved his challenge to subsection
2702(a)(4), we would conclude that the Commonwealth produced sufficient
evidence to sustain his conviction for the same reasons as subsection
2702(a)(1) as discussed infra.



                                          -8-
J-S52045-18


      statements before, during, or after the attack which might
      indicate his intent to inflict injury.

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (quoting

Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978)).

      In the instant case, the Commonwealth established through the

testimony of Lucas, Moore, and Smith that Appellant, while standing a foot

and one-half away from Lucas, pointed his gun at Lucas’s forehead, moved

the gun to fire a shot into the air, resumed pointing the gun at Lucas’s

forehead while he told Lucas that he was going to “end it,” and fired a

second shot, this time inches from Lucas’s head. See N.T., 8/10/2017, at

250-51   (testimony   by   Moore),   284-86   (testimony   by   Lucas);   N.T.,

8/11/2017, at 28-31 (testimony by Smith); see also N.T., 8/11/2017, at 58

(testimony of Jen Workman, a neighbor who said she saw from her window

Appellant fire a shot in Lucas’s direction); id. at 74-77 (testimony of

Bingaman, Appellant’s companion, who said he saw Appellant fire a shot in

Lucas’s direction).

      “A gun is a lethal weapon; pointing it toward a person, and then

discharging it, speaks volumes as to one’s intention.” Commonwealth v.

Hall, 830 A.2d 537, 543 (Pa. 2003).     The jury was free to conclude that

Lucas did not get hit because Appellant’s aim was off or because Lucas

moved when the gun was discharged, not because Appellant did not intend

to shoot him in the head. See Commonwealth v. Thompson, 739 A.2d

1023 (Pa. 1999) (finding sufficient evidence presented to convict Thompson

                                     -9-
J-S52045-18


of aggravated assault where Thompson shot at and narrowly missed the

victim); Commonwealth v. McCalman, 795 A.2d 412, 415-16 (Pa. Super.

2002) (“It can be inferred that [McCalman] intended to cause serious bodily

injury to [the victim] because the bullet he fired into the car missed her by

only three inches.”).

        Additionally,   despite    Appellant’s     assertion   in   his   brief,   Smith’s

testimony did not clearly establish that Appellant moved the gun away from

Lucas to avoid hitting Lucas.          To the contrary, Smith testified that “the

second [shot] looked like [it was] aimed at [Lucas’s] head.”                         N.T.,

8/11/2017, at 28. Smith said that he did not know who moved first; he just

knew that both Appellant and Lucas were moving as the second shot was

fired and the bullet narrowly missed Lucas.9 Id. at 30-31.

        Even if Smith’s testimony could be interpreted as Appellant’s purposely

moving his gun away from Lucas before shooting it, the jury was free to

conclude that Appellant intended to commit serious bodily injury and took a

substantial step toward that goal, even notwithstanding the direction of

Appellant’s second shot.        See Matthew, 909 A.2d at 1259 (holding that

Matthew possessed the intent to inflict serious bodily injury in light of his

threats to kill the victim while pointing a loaded gun at the victim, including

pushing it against the victim’s throat). Appellant’s actions immediately prior

____________________________________________


9   Appellant’s movement could have been from recoil.



                                          - 10 -
J-S52045-18


to firing the second shot, including his verbal threat issued while pointing his

gun at a vital part of Lucas’s body while he stood face to face with him, belie

his contention that he did not possess the requisite intention to inflict serious

injury upon Lucas. Moreover, the jury was entitled to disregard any portion

of Smith’s testimony and to believe the testimony of any of the witnesses

who stated that Appellant fired his gun in Lucas’s direction. Accordingly, we

hold that the Commonwealth produced sufficient evidence to sustain

Appellant’s aggravated assault conviction.

      Appellant’s second issue raises a challenge to the weight of the

evidence   supporting    his   convictions.     Appellant’s   Brief   at   19-25.

Emphasizing the testimony of Lucas and Bingaman, the trial court stated it

was denying Appellant’s post-sentence motion regarding weight because the

jury’s verdict did not shock its sense of justice.     Trial Court Opinion and

Order, 1/19/2018, at 4 (unnumbered).

      “A verdict is against the weight of the evidence ‘where certain facts are

so clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.’”   Commonwealth v. Williams, 176

A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833

A.2d 245, 258 (Pa. Super. 2003). We examine challenges to the weight of

the evidence according to the following standard.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same

                                     - 11 -
J-S52045-18


      facts would have arrived at a different conclusion. When a trial
      court considers a motion for a new trial based upon a weight of
      the evidence claim, the trial court may award relief only when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so
      that right may be given another opportunity to prevail. The
      inquiry is not the same for an appellate court. Rather, when an
      appellate court reviews a weight claim, the court is reviewing the
      exercise of discretion by the trial court, not the underlying
      question of whether the verdict was against the weight of the
      evidence. The appellate court reviews a weight claim using an
      abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

      Appellant argues that the trial court abused its discretion in denying

his challenge to the weight of the evidence due to conflicting evidence and a

lack of objective corroborating evidence.    Appellant’s Brief at 25.   In their

brief written statements to police at the time of the incident, Lucas and

Smith indicated that Appellant had fired his gun into the ground, which

differed from their trial testimony that Appellant had fired one shot into the

air and one shot near Lucas’s head. Id. at 21-22. Appellant further argues

that there were inconsistencies between witnesses as to how many shots

were fired; some witnesses saw Appellant fire two shots and Bingaman fire

two shots, but Workman, who observed from her window in a nearby house,

only heard two shots fired total. Id. Finally, Appellant assails the lack of

forensic and ballistics testing on the firearms recovered at the scene in light

of the testimony of Schmidtberg, Appellant’s friend who testified on behalf of




                                    - 12 -
J-S52045-18


the defense, that he possessed the Taurus 93 pistol that night, not

Appellant. Id. at 24.

       “At trial, the jury was the ultimate fact-finder and the sole arbiter of

the credibility of each of the witnesses.” Jacoby, 170 A.3d at 1080. “A jury

is entitled to resolve any inconsistencies in the Commonwealth’s evidence in

the manner that it sees fit.”     Id.    Appellant cross-examined the witnesses

extensively regarding their prior inconsistent statements and introduced

their written statements as exhibits.      The jury was permitted to credit the

testimony of the Commonwealth’s witnesses at trial notwithstanding their

prior statements and minor inconsistencies between the testimonies. It also

was   permitted   to    credit   the    Commonwealth’s   witnesses   instead   of

Appellant’s witness. Assessing all of the evidence according to the governing

principles cited above, we conclude that the trial court did not abuse its

discretion when it concluded that the jury’s verdict did not shock its sense of

justice. Consequently, Appellant’s weight challenge fails.

      Appellant’s final issue presents an evidentiary challenge. He contends

the trial court erred in not granting his motion for a mistrial after it

impermissibly permitted the Commonwealth to introduce evidence of a bad

act without notice to the defense in violation of Pa.R.E. 404(b) (stating in

pertinent part that “[e]vidence of [an] other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person

acted in accordance with the character,” and requiring the prosecution to


                                        - 13 -
J-S52045-18


provide advance notice of the general nature of any evidence it intends to

introduce at trial). Appellant’s Brief at 26-28.

       Appellant directs us to Bingaman’s testimony that Appellant fired a

gun on the night of the incident, and Bingaman’s acknowledgement that his

trial testimony was different than the statement he provided to police on the

night of the incident. N.T., 8/11/2017, at 74-77, 88. When asked why he

told police initially he did not remember seeing Appellant with a gun,

Bingaman responded, “Because I was threatened not to say anything about

the situation that went on. My family was threatened.” Id. at 88. Appellant

immediately objected and requested a sidebar.          Id.   At the sidebar,

Appellant argued that the testimony constituted a prior bad act pursuant to

Pa.R.E. 404(b) of which the defense had no notice, and moved for a

mistrial.10 Id. at 88-89. The Commonwealth responded by stating that it

was not disclosed because it was a “concurrent act.” Id. at 89. Observing

that Bingaman did not identify who threatened him, the trial court denied

the motion for a mistrial, sustained Appellant’s objection and request to

strike the testimony, ordered the Commonwealth not to pursue the issue

any further, and instructed the jury to disregard the last remark. Id. In its

contemporaneous instruction to the jury, the trial court told the jury to note
____________________________________________


10Rule 404(b) prohibits the introduction of evidence of a defendant’s other
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Pa.R.E. 404(b)(1); Commonwealth v. Hudson, 955 A.2d
1031, 1034 (Pa. Super. 2008).



                                          - 14 -
J-S52045-18


that Bingaman did not identify the person or persons who allegedly

threatened him.    Id.   The trial court urges this Court to uphold its ruling,

rationalizing that any prejudice to Appellant was rectified by its jury

instruction. Trial Court Opinion, 3/26/2018, at 3 (unnumbered).

      The following standards govern our review of the denial of a motion for

mistrial.

      In criminal trials, declaration of a mistrial serves to eliminate the
      negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant’s interest but, equally important, the
      public’s interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably
      be said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, …
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion. Judicial discretion requires action in
      conformity with [the] law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision,
      it misapplies the law or exercises its discretion in a manner
      lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016) (citation

omitted). “A mistrial is an extreme remedy that is required only where the

challenged event deprived the accused of a fair and impartial trial.”

Commonwealth v. Smith, 131 A.3d 467, 475 (Pa. 2015). “The trial court

is in the best position to assess the effect of an allegedly prejudicial

statement on the jury, and as such, the grant or denial of a mistrial will not

                                     - 15 -
J-S52045-18


be overturned absent an abuse of discretion.” Commonwealth v. Parker,

957 A.2d 311, 319 (Pa. Super. 2008) (citation omitted).

      Bingaman’s statement was made in a passive voice without any

identifying details as to who made the statement. Thus, we agree with the

trial court that he did not implicate Appellant directly.      Any potential

prejudice to Appellant was rectified when the trial court instructed the jury

to disregard Bingaman’s statement and emphasized that Bingaman never

identified who allegedly threatened him.     See Commonwealth v. Rega,

933 A.2d 997, 1016 (Pa. 2007) (“[A] mistrial is not necessary where

cautionary instructions are adequate to overcome any possible prejudice.”)

(citation omitted). The law presumes that the jury follows the trial court’s

instructions.   Commonwealth v. Bruno, 94 A.3d 956, 977 (Pa. 2014).

Accordingly, we discern no abuse of discretion in the trial court’s refusal to

grant a mistrial.

      Based on the foregoing, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




                                    - 16 -
