J. S67006/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
SHAHEED WILLIAMS,                         :         No. 3275 EDA 2015
                                          :
                         Appellant        :


          Appeal from the Judgment of Sentence, September 21, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0003684-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 16, 2016

        Shaheed Williams appeals from the September 21, 2015 aggregate

judgment of sentence of 28 to 56 years’ imprisonment imposed after a jury

found him guilty of attempted murder, aggravated assault, witness

intimidation, criminal conspiracy, and unlawful possession of a firearm.1

After careful review, we affirm.2

        The trial court summarized the lengthy factual background of this case

as follows:

                    On November 22, 2010, on the 2400 block of
              Turner Street, in Philadelphia, after witnessing
              Aki Jones place a gun to the head of a juvenile

* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 901, 2702, 4952, 903, and 6105, respectively.
2
    The Commonwealth has not filed a brief in this matter.
J. S67006/16


          female, Michael Vessels called police. Vessels also
          heard Jones shoot the gun into the air. Jones was
          arrested the same day.

                According to Tiffany Reid (Jones’ girlfriend at
          the time), prior to Jones’ preliminary hearing for the
          gun matter, Jones did not know the identity of the
          witness against him. Jay Thomas, Jones’ friend, was
          supposed to reach out to Troy Cooper (also known as
          “Taz”) for information on the witness as Cooper and
          the witness lived on the same block.

                On December 13, 2010, Vessels testified at a
          Preliminary Hearing against Jones. Reid, who was
          present at the hearing, informed Jones that she saw
          the witness there.       At some point after the
          preliminary hearing, Cooper informed Jones of
          Vessels’ name and address.

                About a week after the preliminary hearing,
          Cooper approached Vessels and disclosed that the
          person arrested for shooting the gun was his friend.
          Cooper told Vessels that he did not need to go to
          court on this matter.      In response, Vessels told
          Cooper that because he called 9-1-1 the day Jones
          was arrested, he felt obligated to go to court.

                 In March or April 2011, Jones, while
          incarcerated, devised a plan to prevent Vessels from
          testifying against him. Jones told Reid that, if need
          be, the witness would be harmed to prevent him
          from going to court. Jones’ plan involved Thomas,
          whose role was to find Vessels and kill him. At
          Jones’ request, Reid contacted Thomas, and relayed
          that Jones said to “handle it,” referring to the
          witness, [to] which Thomas replied, “I know, I got
          it.”

                  In the subsequent months, Cooper approached
          Vessels numerous times about Vessels not testifying.
          In one conversation, Cooper told Vessels that Jones’
          girlfriend would provide $500 for Vessels not to
          testify. As the conversations about not testifying



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          increased, Vessels avoided Cooper by entering the
          neighborhood from different directions.

                On September 19, 2011–a week before the
          start of Jones’ trial, scheduled to start on []
          September 26–Jones, from prison, instructed Reid to
          call Thomas in a three-way call.          During the
          three-way call, Jones stated, “Yeah, that’s part one.
          Part one, I was away.” Thomas replied, “Yeah. And
          now we got to get part two out of the way.” At trial,
          Reid testified that “part two,” which was always part
          of the plan, was to find Vessels and to shoot him to
          ensure that he did not go to court.

                 On September 23, 2011–just three days before
          the start of Jones[’] trial–in a recorded call between
          Jones and Reid, Jones stated “Jay [Thomas] gonna
          be on post.” At trial, Reid testified that the term
          “post” meant that Thomas would wait for Vessels
          outside of his house to see whether he was going to
          court.

                 On this same date, September 23, in another
          phone call between Reid and Jones, Jones instructed
          Reid to call Pop Hoagie (Charles Alexander). Reid
          testified that both Jones and Cooper knew Alexander
          from the neighborhood.         Two days later, on
          September 25–the day before the scheduled trial–
          Alexander approached Reid at a basketball court and
          gave her $500. Approximately fifteen minutes after
          Reid collected the money, Jones and Reid discussed,
          in a recorded prison call, the money amount. Jones
          then directed Reid to give the money to Cooper[.]

          ....

          On September 25, 2011, the day before Vessels was
          shot on the street, Reid took the money to Cooper’s
          house. While at Cooper’s house, Reid spoke with
          [appellant] and exchanged phone numbers. Reid
          testified at trial that Jones knew [appellant] as they
          were from the same neighborhood. After exchanging
          numbers, [appellant] asked Reid to call him at 6:30
          the next morning so that he could stand post outside


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          Vessels’ house. [Appellant] informed Reid that if he
          saw Vessels going to court, he would kill him.

                 On the same day that Reid dropped the money
          off to Cooper, Cooper approached Vessels outside his
          home and offered him the $500 not to appear in
          court. Cooper said, “they finally dropped it off,”
          referring to the money. Vessels replied that he could
          not take it. Cooper responded with, “then it is
          whatever.”      Vessels testified at trial that he
          understood “whatever” to mean “anything goes” and
          that “if you don't do what I want you to do, then I’m
          going to do something to you.”

                 The next day, September 26, 2011, at
          6:30 a.m., Reid called [appellant]. Reid testified at
          trial that this was the wake-up call that [appellant]
          had requested so he could stand post outside
          Vessels’ home. After the wake-up call, there were
          another four phone calls between [appellant] and
          Reid, from 7:06 and 9:11 a.m.

                That morning, September 26, at around
          9:30 a.m., Vessels left his house on the way to meet
          a member of his church. As he walked to the corner
          on the next block, [appellant] jumped out,
          immediately drew a silver revolver, and said, “You
          like to talk.” [Appellant] then placed the gun six
          inches from Vessels’ face and pulled the trigger.
          Vessels blocked the shot with his wrist. [Appellant]
          fired again, shooting Vessels in the side. After the
          second shot, Vessels took off running, with
          [appellant] in close pursuit.     While Vessels ran,
          [appellant] fired several more shots, striking Vessels
          in his elbow and back, the latter of which knocked
          him to the ground. [Appellant] then stood over
          Vessels, and said[,] “you won’t talk no more,” and
          shot Vessels in the neck.

                Within a few minutes of the shooting, at
          9:45 a.m., [appellant] called Reid. At 9:56 a.m.,
          Reid called [appellant] back. At 9:59 a.m., Reid sent
          a text message to [appellant], followed by an



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          exchange of several more text messages. Lastly, at
          2:59 p.m., Reid called [appellant].

                On the same day, Reid also spoke with
          [appellant] in person. According to Reid, [appellant]
          informed her that Vessels did not go to court and
          described in detail how he had shot him. [Appellant]
          told Reid that he spotted Vessels leaving his house,
          dressed like he was ready to go to court. [Appellant]
          then ran around the corner, up a block, approached
          Vessels from behind, and shot him. [Appellant] told
          Reid that Vessels had placed his hand in front of his
          face and was shot in the arm. He also told Reid that
          he shot Vessels five times, and that he tried to keep
          shooting, but the gun jammed.

                In    January    2012,    [p]olice  encountered
          [appellant] and recovered his cell phone. Police
          retrieved a photograph from the phone which
          depicted a revolver. At trial, Special Agent Detective
          Charles Bowman testified that the description of the
          gun used to shoot Vessels was similar to the
          photograph of the revolver found on [appellant’s] cell
          phone. Bullet fragments recovered at the shooting
          scene of Vessels were also consistent with a
          .38 caliber or 9 millimeter, which are both capable of
          being fired from a revolver.

                On February 14, 2012, the Bureau of Alcohol,
          Tobacco, Firearms (“ATF”) executed a search
          warrant on Tiffany Reid’s home. From her home,
          federal agents recovered a letter sent to Reid by
          Jones from prison. The letter was addressed to
          Lulu Blackchild. (Lulu is Reid’s middle name and
          Jones sometimes referred to her by that name.)
          Written on the back of the letter was “The date is
          5/25/11 and the last letter received from you is
          5/18. Payback is fair.” At trial, Reid testified that
          the handwriting was Jones’. Inside the envelope was
          a transcript of Vessel[s’] preliminary hearing
          testimony regarding the incident in which Jones had
          shot a gun into the air.




                                  -5-
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                 On November 14, 2012, Vessels identified
           [appellant] from a photographic array as his shooter.
           At   trial,   Vessels  again   positively   identified
           [appellant].

                  In March of 2014, Carla Reid received a letter
           at her home addressed to her daughter, Tiffany Reid.
           The letter was addressed from another prisoner,
           Jacque Walker, with a return address from the
           Philadelphia prison system. Jones was imprisoned
           with Walker in the same building at the CFCF, and in
           the same pod (Pod One), at the time the letter was
           post-marked (March 26, 2014). In the letter, the
           author threatened Tiffany Reid and her family.
           Although the letter was not in Jones’ handwriting,
           the author referenced “Zaire” as his son–Jones and
           Reid’s child–and referenced several of Reid’s family
           members by name. The letter was also signed with
           “A.DoTTTTTT,” Jones’ nickname. After reading the
           letter, Carla Reid took it directly to the police.

                 Jones’ letter also references the shooter in the
           subject crime.      Any reference to [appellant’s]
           involvement in the actual shooting of Vessels[] was
           redacted with neutral phrases. Portions of the letter
           that potentially exonerated [appellant] were left in
           with defense counsel’s approval.

Trial court opinion, 12/23/15 at 2-8 (citations to notes of testimony and

footnotes omitted).

     On February 28, 2014, appellant was arrested and charged in

connection with this incident.   On June 8, 2015, appellant proceeded to a

jury trial alongside co-defendant Jones and was subsequently found guilty of

the aforementioned offenses on June 15, 2015.     On September 21, 2015,

the trial court sentenced appellant to an aggregate term of 28 to 56 years’

imprisonment.   On September 30, 2015, appellant filed a post-sentence



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motion arguing that the verdict was against the weight and sufficiency of the

evidence, that his right against self-incrimination was violated, and that his

aggravated-range     sentence   should   be   modified.    (See   “Motion   for

Post-Sentence Relief,” 9/30/15 at ¶¶ I-III.)          The trial court denied

appellant’s post-sentence motion on October 13, 2015.          Thereafter, on

October 29, 2015, appellant filed a timely notice of appeal. On November 2,

2015, the trial court ordered appellant to file a concise statement of errors

complained of on appeal in accordance with Pa.R.A.P. 1925(b).         Appellant

filed his timely Rule 1925(b) statement on November 23, 2015, and the trial

court issued its Rule 1925(a) opinion on December 23, 2015.

      On appeal, appellant raises the following issues for our review:

            I.     Was [a]ppellant deprived of his state and
                   federal constitutional right of confrontation by
                   the admission of statements of a non-testifying
                   co-defendant implicating [a]ppellant in the
                   shooting for which he was charged?

            II.    Was [a]ppellant deprived of his state and
                   federal      constitutional   right    against
                   self-incrimination when a Philadelphia Police
                   Detective testified that [a]ppellant ended an
                   interview when asked where he was on the day
                   of the shooting that was the subject of the
                   trial?

            III.   Did the admission of a photograph of a gun
                   allegedly retrieved from [a]ppellant’s mobile
                   phone violate [a]ppellant’s right of due process
                   guaranteed by the Fifth and Fourteenth
                   Amendments to the United States Constitution
                   and Article I, Section 9 of the Pennsylvania
                   Constitution?



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            IV.     Did the Commonwealth’s attorney violate
                    [a]ppellant’s right of due process by referring
                    during closing arguments [] to guilty verdicts
                    reached by other juries in cases unrelated to
                    [a]ppellant’s?

            V.      Did the [trial] court impose an illegal sentence
                    of 20 to 40 years on the charge of [a]ttempted
                    [m]urder when there was no specific finding by
                    the jury that [a]ppellant inflicted serious bodily
                    injury?

Appellant’s brief at 4-5.

      Appellant first argues that his rights under the Confrontation Clause 3

were violated when the trial court permitted the Commonwealth to introduce

a March 26, 2014 letter that Jones wrote to Reid implicating appellant in the

shooting.   (Id. at 14.)      Appellant contends that despite the trial court’s

redaction of his nickname -- Pizza -- from said letter, “it was obvious from

the content of the letter and other evidence . . . that Jones was referring to

[a]ppellant.”    (Id. at 14, 18-19.)    In support of this contention, appellant

cites the following three redacted portions of Jones’ letter:

            Original:       How they saying Pizza is the shooter all
                            of a sudden?

            Redacted: How they saying who shooter all of a
                      sudden?

                                       ******



3
  The Confrontation Clause of the Sixth Amendment, made applicable to the
States via the Fourteenth Amendment, provides 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.


                                        -8-
J. S67006/16


             Original:   I no you aint tell them people you the
                         one that told Pizza to do that shit. It’s in
                         yall phones records dummy. You texted
                         him making sure he out there & all that!

             Redacted: I no you aint tell them people you the
                       one that told someone to do that shit.
                       It’s in yall phones records dummy. You
                       texted him making sure he out there &
                       all that!

                                    ******

             Original:   I talk to Pizza already and I know what’s
                         is on his mind. He don’t want to believe
                         it is you who is saying name. He will find
                         out and he know my plans with you and
                         he got some n****s that will move too.

             Redacted: I talk to someone already and I know
                       what is on someone’s mind. Someone
                       don’t want to believe it is you who is
                       saying name. Someone will find out
                       and that person know my plans with
                       you and that person got some [n]****
                       that will move too.

Id. at 18, citing notes of testimony, 6/11/15, at 217-220 (emphasis in

original).   Appellant argues that the probative value of this letter is

outweighed by its prejudicial impact and challenges the admission of these

statements on the grounds that they violated the United States Supreme

Court’s decision in Bruton v. United States, 391 U.S. 123 (1968), and its

progeny. (Appellant’s brief at 14-17, 19.) This claim is meritless.

      In the seminal case of Bruton, the United States Supreme Court

recognized a narrow       exception to    the   general rule    that cautionary

instructions are sufficient to eradicate any potential prejudice in joint trials.


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Bruton, 391 U.S. at 124-126. The United States Supreme Court held that a

defendant is deprived of his rights under the Confrontation Clause when his

non-testifying co-defendant’s confession naming him as a participant in the

crime is introduced at trial, even if the jury is instructed to consider that

confession only against the co-defendant. Id. at 135-136.

      Our supreme court has recently summarized Bruton and its progeny

as follows:

                     The general rule in a joint trial of
              co-defendants is that the law presumes that the jury
              can follow an appropriate instruction, which explains
              that evidence introduced with respect to only one
              defendant cannot be considered against other
              defendants.     Bruton departed from this salutary
              general rule only by concluding that where there are
              “powerfully incriminating statements” admitted
              against a non-testifying co-defendant who stands
              side by side with the accused, such statements can
              be devastating as well as inherently suspect when
              they shift the blame to the accused.        Following
              Bruton, the U.S. Supreme Court has approved
              redaction and a limiting instruction as a means of
              eliminating the possible spillover prejudice arising
              from     the    admission    of    a    non-testifying
              co-defendant’s confession against that co-defendant
              at a joint trial. Bruton and its progeny establish
              Sixth Amendment norms governing state criminal
              trials, and this Court has had ample opportunity to
              consider and apply the precepts.         In our own
              implementation of this federal law, we have
              explained that the challenged co-defendant’s
              statement must be incriminating on its face and that
              redactions involving the substitution of neutral
              pronouns . . . instead of names or other obvious
              methods of deletion, do not obviously identify the
              other co-defendants.




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Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014) (citations

omitted).

      Applying these well-settled principles, we conclude that the statements

in Jones’ letter did not give rise to a Bruton violation because they did not

explicitly reference or facially incriminate appellant in any way. As the trial

court recognized in its opinion,

            [t]he letter was properly redacted with all references
            to [appellant] related to the shooting replaced by
            neutral phrases, such as “who” and “someone.” . . .
            [B]ased on the evidence presented at trial, it was not
            automatic that [appellant] was the shooter
            referenced in Jones’ letter, as the jury was free to
            believe [] Thomas shot Vessels.

Trial court opinion, 12/23/15 at 9-10.

      Furthermore, the record reflects that the trial court provided two

separate cautionary instructions to the jury emphasizing that they were

prohibited from considering the contents of this letter against appellant.

Specifically, the trial court instructed the jury as follows:

                   Members of the jury, remember I told you
            some evidence can be admitted and you have to
            consider evidence in this case against one defendant
            and not the other defendant.          Statements of
            co[-]conspirators can be admitted against each other
            when conspiracy is ongoing. But by the date of this
            letter, clearly there is no evidence that the
            conspiracy was still ongoing at that time. So this
            evidence is only admissible against Aki Jones, and I
            [will] talk about that when I give my final
            instruction.

Notes of testimony, 6/11/15 at 222.



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            And I also just want to remind you there was some
            evidence during this trial that was specially admitted
            against Mr. Jones that was [sic] pertained to him and
            did not pertain to [appellant]. And I’m talking about
            that letter that was allegedly sent to Mr. [sic] Reid.
            Because, remember . . . statements of the
            co[-]conspirator during the course of the conspiracy
            can be admitted and are admitted against each of
            the co[-]conspirators.     Once the conspiracy has
            ended, then that evidence can only, in any
            statement made by one co[-]conspirator, cannot be
            introduced because that conspiracy has ended. So if
            you were a previous conspirator, what you then say
            after it is over with does not pertain to the other
            person. So that’s why I’m reminding you that the
            contents of that letter was [sic] introduced as
            evidence against Mr. Jones and not [appellant].

Notes of testimony, 6/15/15, at 36-37.

      Courts in this Commonwealth have repeatedly recognized that “when

examining the potential for undue prejudice, a cautionary jury instruction

may   ameliorate    the   prejudicial    effect   of   the   proffered   evidence.”

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), cert. denied,

135 S.Ct. 164 (2014) (citations omitted). Jurors are presumed to follow the

trial court’s instructions. Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa.

2013), cert. denied, 135 S.Ct. 50 (2014). Accordingly, for all the foregoing

reasons, we conclude that appellant’s claim of trial court error must fail.

      Appellant next argues that the trial court abused its discretion in

allowing the Commonwealth to elicit testimony from Philadelphia Police

Detective James Kopaczewski that referenced appellant’s pre-arrest silence.




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(Appellant’s brief at 20.)   Specifically, Detective Kopaczewski testified as

follows:

            [The Commonwealth:] And did you ask him where
            he was on September 26, 2011?

            [Detective Kopaczewski:] I did and he immediately
            -- just got up and that was it.

                  THE COURT:      So that was the end of the
                  interview?

                  [Detective Kopaczewski]: That’s correct.

Notes of testimony, 6/11/15 at 87. For the following reasons, we disagree.

      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An abuse of discretion is not merely an error of judgment; rather

discretion is abused 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. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

      Here, appellant avers that Detective Kopaczewski’s testimony violated

his right against self-incrimination guaranteed by the Fifth and Fourteenth

Amendments of the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution. (Appellant’s brief at 20-24.) In support of this


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claim,   appellant    relies,   in   large   part,   on   this   court’s   decision   in

Commonwealth v. Molina, 33 A.3d 51 (Pa.Super. 2011), affirmed, 104

A.3d 430 (Pa. 2014). In Molina, an en banc panel of this court held that

“the Commonwealth cannot use a non-testifying defendant’s pre-arrest

silence to support its contention that the defendant is guilty of the crime

charged as such use infringes on a defendant’s right to be free from self-

incrimination.” Molina, 33 A.3d at 62 (citations omitted). The Molina court

further noted that,

             [w]e find it of no moment whether the silence
             occurred before or after the arrest or before or after
             Miranda warnings were administered. The Fifth
             Amendment was enacted to protect against
             self-incrimination, whether they are in custody
             or not, charged with a crime, or merely being
             questioned during the investigation of a crime.
             We clarify that our finding does not impose a
             prima facie bar against any mention of a
             defendant’s silence; rather, we guard against the
             exploitation of appellant’s right to remain silent by
             the prosecution.

Molina, 33 A.3d at 63 (citation and footnote omitted).

      Upon review, we conclude that appellant’s reliance on Molina is

misplaced.     Unlike Molina, the record in this case indicates that the

Commonwealth, via Detective Kopaczewski, did not offer evidence of

appellant’s pre-arrest silence as substantive evidence of his guilt. Rather, it

is evident that the Commonwealth elicited said testimony for the narrow

purpose of explaining the way his interview with appellant ended. Appellant

also fails to cite to any place in the record wherein the Commonwealth


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referenced     appellant’s   decision     to     terminate   the    interview   with

Detective Kopaczewski as implicit evidence of his guilt.           We find that our

holding in Commonwealth v. Adams, 39 A.3d 310 (Pa.Super. 2012),

affirmed, 104 A.3d 511 (Pa. 2014), is instructive. In Adams, a panel of

this court concluded that a police officer’s testimony that a defendant “had

nothing to say” during his homicide investigation interview did not violate his

Fifth Amendment right to remain silent.           Adams, 39 A.3d at 319.          The

Adams court reasoned that this testimony “was offered for a narrow

purpose, namely to demonstrate the nature and focus of the investigation,”

and “neither [the officer] nor the Commonwealth implied that [the

defendant’s] silence constituted a tacit admission of guilt.” Id.

      Moreover,    we   note   that     Detective    Kopaczewski’s    reference    to

appellant’s pre-arrest silence was brief in context. Our supreme court has

recognized that “[e]ven an explicit reference to silence is not reversible error

where it occurs in a context not likely to suggest to the jury that silence is

the equivalent of a tacit admission of guilt[.]”              Commonwealth v.

DiNicola, 866 A.2d 329, 337 (Pa. 2005) (citation and parentheses omitted).

Accordingly, we conclude that appellant’s constitutional rights were not

violated when Detective Kopaczewski testified.

      Appellant next argues that the trial court violated his right to due

process guaranteed by the Fifth and Fourteenth Amendments of the United

States Constitution and Article I, Section 9 of the Pennsylvania Constitution



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by permitting the Commonwealth to introduce a photograph of a revolver

recovered from his cell phone, “where there was no proof that the gun

depicted was the gun used to shoot [Vessels].”         (Appellant’s brief at 27.)

Appellant maintains that the photograph in question was inadmissible under

Pennsylvania Rule of Evidence 404(b)(1) and served only to demonstrate he

has a criminal propensity to commit the crimes charged.          (Id. at 28-31.)

Appellant further posits he is entitled to a new trial because the prejudicial

impact of this photograph outweighed its probative value.             (Id.)   We

disagree.

      “The threshold inquiry with admission of evidence is whether the

evidence is relevant.”   Commonwealth v. Cook, 952 A.2d 594, 612 (Pa.

2008) (citations and bracket omitted).       “Evidence is relevant 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. Edwards, 903 A.2d 1139,

1156 (Pa. 2006), cert. denied, 127 S.Ct. 2030 (2007) (citation and internal

quotation marks omitted).

      Generally, “evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity

therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972

A.2d 1182, 1189 (Pa.Super. 2009), appeal denied, 986 A.2d 150 (Pa.

2009) (stating, “[e]vidence of distinct crimes is not admissible against a



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defendant being prosecuted for another crime solely to show his bad

character and his propensity for committing criminal acts.” (citation omitted;

emphasis in original)).    Evidence of prior bad acts may be admissible,

however, “when offered to prove some other relevant fact, such as motive,

opportunity, intent, preparation, plan, knowledge, identity, and absence of

mistake or accident.” Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super.

2012), appeal denied, 72 A.3d 603 (Pa. 2013) (citations omitted).          “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.” Id. (citation omitted).

      Upon careful review, we discern no abuse of discretion on the part of

the trial court in admitting the photograph of the revolver into evidence.

Contrary to appellant’s contention, we conclude that the photograph in

question was relevant to establish that appellant had possession and control

of a weapon similar to the one used to shoot Vessels. The evidence at trial

established that the firearm depicted in the photograph was a silver

revolver, the same type of gun used to shoot Vessels. (Notes of testimony,

6/9/15 at 78; see also Commonwealth’s exhibit C-76A.)                At trial,

ATF Special Agent Bowman testified that the revolver depicted in the

photograph that was recovered from appellant’s cell phone was similar to

the description of the gun used to shoot Vessels.       (Notes of testimony,

6/11/15 at 69, 200-201.) Moreover, Philadelphia Police Officer Jesus Cruz,



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an expert in the field of firearms identification and ballistics, testified that

the bullet fragments recovered from the scene were consistent with

ammunition capable of being fired from this type of revolver.        (Id. at 42,

53-54.)    Likewise, the probative value of this photograph, given the

conceivable connection of said firearm to the instant crime, clearly

outweighed its prejudicial impact. Accordingly, for all the foregoing reasons,

we discern no abuse of discretion on the part of the trial court in allowing

this photograph to be admitted into evidence.4

      We now turn to appellant’s claim that he was deprived of his right to a

fair trial when the prosecutor “commented on the guilty verdicts of other

juries in other cases” during his closing argument. (Appellant’s brief at 31.)

Specifically, appellant challenges the following comments made by the

prosecutor during his summation:

                 And you heard a little bit about reasonable
            doubt. It simply means it is not some impossible

4
  Generally, a weapon that “cannot be specifically linked to a crime” is
inadmissible at trial. Commonwealth v. Robinson, 721 A.2d 344, 351
(Pa. 1998), cert. denied, 528 U.S. 1082 (2000). However, our supreme
court has recently clarified this rule, stating as follows:

            [t]he only burden on the prosecution is to lay a
            foundation that would justify an inference by the
            finder of fact of the likelihood that the weapon was
            used in the commission of the crime. If a proper
            foundation is laid, the weapon is admissible where
            the circumstances raise an inference of the likelihood
            that it was used.

Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015) (citation and
internal quotation marks omitted).


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           standard. It is the same standard upon which
           people are convicted of crimes in the city, the
           state, this country in every case.

Trial court opinion, 12/23/15 at 15, quoting notes of testimony, 6/12/15 at

130 (emphasis added); see also appellant’s brief at 31.

     “Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v.

Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 928 A.2d

1289 (Pa. 2007) (citations omitted).        Not every unwise remark on a

prosecutor’s part, however, constitutes reversible error. Id. “Prosecutorial

misconduct occurs when the effect of the prosecutor’s comments would be

to prejudice the trier of fact, forming in its mind fixed bias and hostility

toward the defendant so that it could not weigh the evidence objectively and

render a true verdict.”   Commonwealth v. Duffy, 832 A.2d 1132, 1137

(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).

                 Counsels’ remarks to the jury may contain fair
           deductions and legitimate inferences from the
           evidence presented during the testimony.         The
           prosecutor may always argue to the jury that the
           evidence establishes the defendant’s guilt, although
           a prosecutor may not offer his personal opinion as to
           the guilt of the accused either in argument or in
           testimony from the witness stand. Nor may he or
           she express a personal belief and opinion as to the
           truth or falsity of evidence of defendant’s guilt,
           including the credibility of a witness.

Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal

denied, 788 A.2d 372 (Pa. 2001).



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       Following our careful review, we conclude that the prosecutor’s

comments, when read as a whole, did not warrant that a new trial be

granted. “[A] prosecutor is permitted fairly wide latitude in advocating for

the Commonwealth, including the right to argue all fair conclusions from the

evidence, to respond to defense arguments, and to engage in a certain

degree of oratorical flair.”   Harris, 884 A.2d at 931.        All such comments

must    be   reviewed    in    the     context   in   which   they   were   made.

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005).

       Here, the record reflects that the prosecutor’s comments were made

with a permissible degree of oratorical flair and were not the kind of

comments that would cause the jury to form a fixed bias or hostility towards

appellant and prevent it from properly weighing the evidence and rendering

a fair and impartial verdict.        Moreover, the jury was properly instructed

during trial that it was the trial court’s role to instruct the jury on the law,

and that statements made by counsel do not constitute evidence.              (See

notes of testimony, 6/8/15 at 31-33; 6/15/15 at 22-27.) As noted, jurors

are presumed to follow the trial court’s instructions. Elliott, 80 A.3d at 445.

Accordingly, appellant’s claim that he is entitled to a new trial on account of

the prosecutor’s comments during closing arguments must fail.

       In his final issue, appellant contends that his sentence of 20 to

40 years’ imprisonment for attempted murder was illegal under Apprendi v.

New Jersey, 530 U.S. 466 (2000), because “there was no specific finding



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by the jury that [a]ppellant inflicted serious bodily injury [on Vessels.]”

(Appellant’s brief at 33.) We disagree.

     “The determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.”   Commonwealth v. Stradley, 50 A.3d 769,

772 (Pa.Super. 2012) (citation omitted). The Pennsylvania Supreme Court

summarized the holding in Apprendi as follows:

                 In Apprendi, the United States Supreme Court
           held     a    New    Jersey    hate-crime      statute
           unconstitutional because it permitted the imposition
           of a twenty[-]year sentence in place of the otherwise
           applicable ten year maximum if the judge
           determined, by a preponderance of the evidence,
           that the crime was perpetrated in violation of the
           statute.     The United States Supreme Court
           determined that any facts, “other than the fact of a
           prior conviction,” that subject a defendant to any
           additional penalty beyond a statutory maximum
           must be submitted to a jury and be found proved
           beyond a reasonable doubt.

Commonwealth       v.   Gordon,   942     A.2d   174,   175   n.1   (Pa.   2007),

cert. denied, 553 U.S. 1024 (2008), citing Apprendi, 530 U.S. at 490.

     The instant matter involves the application of Section 1102 of the

Crimes Code, and, in particular, the “serious bodily injury” requirement.

Read in relevant part, Section 1102 provides as follows:

           (c)   Attempt, solicitation and conspiracy.--
                 Notwithstanding section 1103(1) (relating to
                 sentence of imprisonment for felony), a person
                 who has been convicted of attempt, solicitation
                 or conspiracy to commit murder, murder of an
                 unborn child or murder of a law enforcement


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                  officer where serious bodily injury results may
                  be sentenced to a term of imprisonment which
                  shall be fixed by the court at not more than
                  40 years. Where serious bodily injury does not
                  result, the person may be sentenced to a term
                  of imprisonment which shall be fixed by the
                  court at not more than 20 years.

18 Pa.C.S.A. § 1102(c).

      “[T]he statute imposes a condition precedent to the imposition of a

maximum term of imprisonment of up to 40 years, specifically, that ‘serious

bodily injury’ must have resulted from the attempted murder.        Otherwise,

the sentence shall be not more than 20 years.”            Commonwealth v.

Johnson, 910 A.2d 60, 66 (Pa.Super. 2006), appeal denied, 923 A.2d

1173 (Pa. 2007). Serious bodily injury is “a fact that must be proven before

a maximum sentence of forty years may be imposed for attempted

homicide.”   Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.Super.

2005), appeal denied, 890 A.2d 1058 (Pa. 2005).

      Here, the trial court reasons that appellant’s judgment of sentence for

attempted murder is proper because the jury was presented with ample

evidence to determine that appellant inflicted “serious bodily injury” upon

Vessels. (See trial court opinion, 12/23/15 at 17.) Upon review, we agree

with the trial court’s conclusions.   “Serious bodily injury” is defined in the

Crimes Code 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 a bodily member or organ.”         18 Pa.C.S.A.



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§ 2301.    The evidence at trial established that appellant shot Vessels

five times, including once in the neck, once in the back, and once in the

stomach. (Notes of testimony, 6/9/15 at 66-67, 70-74.) Vessels testified

that he lost the use of his left hand and left side of his body as a result of

the shooting, and suffered nerve damage that causes him to twitch. (Id. at

68.)

       We further point out that the jury in fact determined beyond a

reasonable doubt that serious bodily injury occurred when it found appellant

guilty of aggravated assault in violation of 18 Pa.C.S.A. § 2702(a)(1).5     In

this case, the jury instructions were fashioned so that the jury could only

convict appellant of aggravated assault if it found beyond a reasonable doubt

that he intentionally caused serious bodily injury to Vessels. Specifically, the

trial court instructed the jury as follows:

                  Aggravated assault causing serious bodily
            injury.   Both [appellant and Jones] have been
            charged with aggravated assault. To find either of
            these defendants guilty of this offense, you must find
            the elements have been proven beyond a reasonable
            doubt: First, that the defendant [a]s coconspirator
            or his accomplice caused serious bodily injury to []
            Vessels. Serious bodily injury is bodily injury that
            causes a substantial risk of death or that causes
            serious permanent disfigurement or protracted loss
            or impairment of the functions of any bodily member
            or organ. And second, that the defendant acted
            intentionally,  knowingly     or    recklessly under

5
  Section 2702(a)(1) provides that “[a] person is guilty of aggravated
assault if he . . . attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life[.]”


                                      - 23 -
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             circumstances manifesting extreme indifference to
             the value of human life.

Notes of testimony, 6/15/15 at 55-56. As noted, the jury is presumed to

follow the trial court’s instructions with regard to the applicable law. Elliott,

80 A.3d at 445.       Accordingly, in determining that appellant was guilty of

aggravated assault, the jury in fact concluded that appellant inflicted serious

bodily injury upon Vessels.

        Appellant relies, in large part, on this court’s decision in Johnson to

support his assertion that the jury had to be specifically instructed on

“serious bodily injury” for the attempted murder charge.       (See appellant’s

brief at 34-35.)    The facts of Johnson, however, are distinguishable from

the case sub judice.

        In Johnson, this court concluded that the jury did not find serious

bodily injury for the purposes of applying the maximum for attempted

murder, even though the appellant had been convicted of aggravated

assault. Johnson, 910 A.2d at 67-68. However, unlike the instant matter,

there was no evidence in Johnson that the jury convicted the appellant of

aggravated assault on the basis that serious bodily injury actually occurred.

Rather, the evidence in Johnson established that the appellant fired

multiple gunshots at the victim, but only struck her once in the heel of her

foot.    Id. at 62.    Thus, the jury in Johnson could have convicted the

appellant of aggravated assault based merely on an attempt to commit




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serious bodily injury. As such, Johnson is clearly distinguishable from the

case at hand.

     In light of the foregoing, we conclude that the trial court did not error

in imposing a sentence of 20 to 40 years’ imprisonment for the attempted

murder conviction.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2016




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