J-S15023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                    v.

JUSTIN BROWN,

                           Appellant                  No. 1728 EDA 2014


          Appeal from the Judgment of Sentence of May 15, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001342-2013


BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 16, 2016

      Appellant, Justin Brown, appeals from a judgment of sentence entered

on May 15, 2014 in the Criminal Division of the Court of Common Pleas of

Philadelphia County. We affirm.

      The trial court thoroughly summarized the facts and procedural history

of this case as follows:

      Sixteen-year-old Yasin Harvey was shot and killed on May 2,
      2012 in a drive-by shooting in West Philadelphia. [Appellant]
      and co-defendant, Elijah Fleming (“Fleming”), were arrested and
      charged with his murder. From May 7-15, 2014, [Appellant] and
      Fleming were tried together before a jury.

      [At trial, Police Officer Kevin Dorin was the first witness called to
      testify on behalf of the Commonwealth]. Officer Dorin stated
      that on March 27, 2012, he responded to a report of gunshots on
      the 600 block of Edgemore Road. He observed six shell casings
      on the scene, contacted Southwest Detectives, and then waited
      for them to arrive.



*Retired Senior Judge assigned to the Superior Court.
J-S15023-16


     Detective Vincent Parker testified next. He stated that on March
     27, 2012, he and his partner, Detective Ortiz, investigated the
     shooting on the 600 block of Edgemore Road. At the scene, he
     discovered six shell casings and two bullet projectiles. After
     speaking with two neighbors in the area, Detective Parker went
     to the hospital to speak with victim Jamal Payne (“Payne”);
     however, he was unable to be interviewed as he was undergoing
     treatment. The next day, Detective Parker met with Payne but
     Payne refused to identify the shooter. On April 26, 2012,
     Detective Parker interviewed Fleming at Southwest Detectives
     and obtained a statement from him regarding Payne’s shooting.
     Fleming told him that on March 27, 2012, he was kidnapped by
     three armed men, who forced him into a car. The three men
     beat him and stole his two cell phones and $90[.00] in cash,
     before driving him back to his home and demanding that he get
     more money for them. Fleming told Detective Parker that he
     went into his house, retrieved a firearm, and shot one of his
     abductors, later identified as Payne. Detective Parker testified
     that Fleming reviewed the written statement, initialed each
     page, and signed at the bottom.

     Samir Green (“Green”) testified next. He stated that on May 2,
     2012, he was 15 years old and was spending time with his friend
     Yasin Harvey (“Harvey”). He and Harvey, along with two other
     friends, were standing outside of a store at the corner of 62 nd
     and Callowhill, when a dark Pontiac with tinted windows pulled
     up and someone began shooting at them. Green testified that
     he saw someone leaning out [of] the front passenger window,
     firing a gun with his arm fully extended. He described the
     shooter as “[b]rown skinned, caramel” but did not get a good
     look at the shooter’s face. Green stated that when he realized
     bullets were flying, he ran and ducked behind parked cars. After
     the Pontiac drove away, Green came out of hiding and saw
     Harvey lying in the street, trying to get up. Green ran inside a
     nearby house to hide in case the shooter returned. He testified
     that he looked out the window and saw people running to help
     Harvey so he and his friends returned outside and waited until
     Harvey was transported to the hospital. Green gave a statement
     to detectives later that same day.

     Police Officer   Jasmin   Torres  testified  next   for   the
     Commonwealth. Officer Torres stated that on May 2, 2012, she
     and her partner, Officer Benson, heard gunshots near police
     headquarters. She then received a radio call, indicating that

                                  -2-
J-S15023-16


     someone had been shot near 62nd and Callowhill. When she
     arrived on the scene, she saw Harvey lying on the ground
     between two vehicles, covered in blood. Officer Torres put him
     in the backseat of her police vehicle and drove him to the
     emergency room. She remained at the hospital until Harvey was
     pronounced dead by medical personnel.

     Next, Police Officer Gregory Yatcilla of the Crime Scene Unit
     testified.  He stated that he responded to the report of a
     shooting at 62nd and Callowhill Streets. He took photographs of
     the scene and collected evidence, including blood samples, two
     bullets specimens and seven fired shell casings.

     Police Officer John Cannon testified next as an expert in the
     identification and testing of firearms and ammunition. He stated
     that he analyzed the fired cartridge cases and two bullets
     recovered from the scene of the shooting [at 62nd and Callowhill
     Streets] and cross-checked them against ballistics evidence
     recovered from the March 27, 2012 shooting of Jamal Payne on
     Edgemore Road. He determined that the fired cartridge cases all
     came from the same firearm.

     Farid Brown (“Brown”) testified next for the Commonwealth. He
     denied that he was in the area of 62nd and Callowhill Streets on
     May 2, 2012 when Yasin Harvey was shot. He also denied giving
     a statement to Homicide Detective Tracy Byard on May 10,
     2012, wherein he admitted being present at the scene of
     Harvey’s death. In this written statement, which he initialed and
     signed, Brown told detectives that he knew [Appellant] and
     Fleming “from playing basketball,” and that Fleming drove a dark
     green Pontiac Grand Prix. Brown further told detectives that on
     May 2, 2012 he was at the store on the corner of 62 nd and
     Callowhill and heard gunshots.

     Next, Police Sergeant Bob Wilkins testified. He stated that he
     met with [Appellant] at police headquarters on August 25, 2012
     and questioned him regarding the murder of Yasin Harvey. In
     his statement, [Appellant] told Sergeant Wilkins that Kareem
     Terry, a/k/a “Reem,” shot Harvey[.       In addition, Appellant]
     relayed the following version of events: [Appellant], another
     man and Kareem were driving around in a car together, smoking
     weed and on their way to meet some girls. As they drove by the
     corner of Felton and Callowhill, the driver stopped and Kareem
     rolled down the window and started shooting from the back seat,

                                   -3-
J-S15023-16


     trying to hit Farid Brown before he entered the corner store.
     This was a retaliatory response to Farid Brown’s murder of
     Stephen Hamilton, [Appellant’s] best friend. When Kareem was
     done shooting, the driver of the vehicle then sped away.
     [Appellant asked,] “What the fuck is wrong with you all?” and
     then jumped out of the front passenger seat at the next red
     light. He said [he] never saw the driver or Kareem Terry again.

     Sergeant Wilkins testified that [Appellant] told him he hadn’t
     come forward with this information sooner because he was
     scared and knew he had outstanding warrants on unrelated
     matters. Wilkins showed [Appellant] a photograph of Yasin
     Harvey; however, [Appellant] told him that he did not know
     Harvey and was unable to identify him from the photograph.

     Gary L. Collins, M.D., Deputy Chief Medical Examiner, testified as
     an expert in forensic pathology. He testified that he examined
     Yasin Harvey’s body and determined that he died as a result of
     multiple gunshot wounds: one to his head, two to his chest, and
     one to his arm. The gunshots to the chest would have been fatal
     to Harvey even if he had not been fatally shot in the head.

     Next, Police Officer Ronald Burgess testified for the
     Commonwealth. He stated that on May 9, 2012, he spotted
     Fleming driving in a dark green Pontiac vehicle with heavily
     tinted windows that matched the description of the car involved
     in Harvey’s shooting. He stopped the vehicle and discovered
     that Kareem Terry, the car’s owner, was sitting in the front
     passenger seat.      Both Fleming and Terry were taken into
     custody. Burgess testified that he knew the area of 62 nd and
     Callowhill very well, and knew Jamal Payne to frequent this area.

     Detective Tracy Byard testified next. He stated that he executed
     a search warrant at Fleming’s house and recovered several
     pieces of mail as well as a funeral card for the services of
     Stephan C. Hamilton. Byard further testified that during the
     course of the investigation, he came into contact with
     [Appellant], and noted that [Appellant] had the numbers “six
     four” surrounded by skulls tattooed on his arms, as well as the
     word “Callowhill” tattooed across his back. Byard stated that he
     and his fellow police officers searched for [Appellant] from May
     8, 2012 until August 25, 2012, when he was finally
     apprehended.


                                   -4-
J-S15023-16


     Kareem Terry (“Terry”) testified next for the Commonwealth.
     Terry stated that on May 2, 2012, Fleming (also known as “Lihj”)
     and [Appellant] (also known as “Dot”) picked him up at his
     home.      Terry testified that Fleming was driving the car,
     [Appellant] was in the front passenger seat, and he was in the
     backseat alone.     As they drove down 62nd Street, Fleming
     spotted a group of males on the corner. He circled the block and
     then pointed out the males as members of “Deuce.” [Appellant]
     began firing a gun at them. Terry testified that [Appellant] shot
     approximately six times. Fleming drove away, and turned down
     a small block between Callowhill and Vine Streets.          Terry
     testified that his ears were ringing from the gunshots so he
     asked to be let out of the vehicle. He then walked back to his
     house at Callowhill and Simpson Streets. Three days later, on
     May 5, 2012, Terry was taken into police custody. He testified
     that he told the police that the car Fleming was driving was
     registered [in Terry’s name] but that it actually belonged to
     Fleming. Fleming paid for the vehicle but gave Terry a couple
     hundred dollars to put the car’s paperwork in Terry’s name
     because Fleming did not have a valid driver’s license. Terry then
     reviewed the statement he gave police on May 5, 2012. In this
     statement, he described the shooting as follows:

       Like I said, it was Dot who shot at the crowd and the boy
       must have been in the crowd. I was in the back seat of the
       car when Dot lit up the crowd. The car is in my name but
       Lihj gave me some money to put the car in my name. I
       ride around with them once in a while but the car is in my
       name for the papers only. Lihj always drives that car.

       The night the boy got killed I was riding with Lihj and Dot.
       Dot was in the front on the passenger side. Lihj was
       driving. Lihj drove by Sixty-Second Street and there was a
       crowd on the corner. Lihj drove by it and then went around
       the corner and started coming up on the crowd again. Lihj
       told Dot, yo, there goes them Deuce niggas right there,
       shoot them. Dot then pulled a gun from I think from under
       the seat or the side well on the door cause I seen him reach
       down. I didn’t know there was a gun in the car. I just seen
       Dot reach down, then come up with the gun and he started
       lighting up the crowd that was there.

       Then Lihj drove off. I was like what the fuck. Lihj got to
       like Sixty-Third and Vine and I was yelling, yo, let me the

                                   -5-
J-S15023-16


       fuck out. I didn’t want no part of anything. I got out of the
       car and Lihj and Dot drove off. You see, Sixty-Fourth and
       Callowhill been going through it with anybody on Callowhill
       that is on the other side of Sixty-Third Street. I just walked
       off and went home.

       The next day I was around on Sixty-Fourth and Dot and Lihj
       were talking about it and word was out one of the boys in
       the crowd that got hit died. Lihj was saying how he still had
       the gun in his car. That’s when Dot told Lihj, yo, you got to
       get rid of that gun. Lihj said he would get rid of it but I
       don’t know what he did with it.

     Terry testified that Fleming was the leader of the 64 [th] and
     Callowhill gang and that he “has everyone else do his dirty
     work.” He further testified that Fleming previously had been
     kidnapped by members of Deuce and that there had been a lot
     of “back and forth” after that between the two gangs. Terry
     stated that he was currently incarcerated, awaiting trial for
     attempted murder, that he had immunity with respect to his
     involvement in the murder of Yasin Harvey, but he did not have
     any deals with the Commonwealth that would benefit him in his
     ongoing attempted murder case. He stated that Fleming called
     him at home from prison several times after his arrest. A
     redacted audio recording of these phone calls was then played
     for the jury. Terry testified that during the phone conversations,
     Fleming instructed Terry not to point the finger at him and told
     him not to tell the police that Fleming initiated everything. Terry
     assured Fleming that he was not going to testify in court;
     however, he appeared at the preliminary hearing and identified
     Fleming as the driver of the vehicle.

     At the conclusion of Terry’s testimony, counsel [for the parties]
     entered evidence [into the record] by way of stipulation[.]
     Counsel first stipulated to a certificate of non-licensure, stating
     that Fleming was not licensed to carry a firearm. Counsel then
     stipulated to another certificate of non-licensure, indicating that
     [Appellant] was not licensed to carry a firearm.               The
     Commonwealth moved its exhibits into evidence and rested.
     Fleming’s counsel moved for a judgment of acquittal. This
     motion was denied and the defense rested. The jury found
     [Appellant] guilty of first-degree murder, criminal conspiracy,
     and carrying a firearm without a license.


                                    -6-
J-S15023-16


     [The trial court, on May 15, 2014, sentenced Appellant to the
     mandatory sentence of life imprisonment without the possibility
     of parole.    In addition, Appellant received 10 to 20 years’
     incarceration on the conspiracy charge and 3½ to 7 years’
     imprisonment for carrying a firearm without a license. The trial
     court directed that these sentences run concurrently with
     Appellant’s term of life imprisonment. Appellant did not file
     post-sentence motions. A notice of appeal was filed on June 3,
     2014. Thereafter, on June 9, 2014, the trial court ordered
     Appellant to file a concise statement of errors complained of on
     appeal pursuant to Pa.R.A.P. 1925(b).       Trial counsel timely
     complied on June 30, 2014. Appellant raises the following issues
     for review: (1) whether the verdict was against the weight of
     the evidence; (2) whether the trial court erred in redacting
     Appellant’s statement to police by making it appear that he was
     “covering up” for someone; (3) whether Appellant was
     improperly prejudiced by the redaction of his co-defendant’s
     prison phone conversations; and (4) whether the prosecutor
     improperly raised issues of “witness fear and intimidation” and
     expressed his own personal opinions during closing arguments.]

Trial Court Opinion, 12/17/14, at 1-8 (last paragraph setting forth

procedural history summarized from trial court’s opinion at 1-2).

     We have carefully reviewed the certified record, the submissions of the

parties, and the thorough opinion issued by the trial court. Based upon our

review, we are persuaded that the trial court has adequately and accurately

assessed each of the claims raised on appeal. We therefore concur with the

trial court’s determinations that: (1) Appellant waived his challenge to the

weight of the evidence and, alternatively, the claim was meritless; (2) the

court properly redacted Appellant’s statement to police in order to protect

his co-defendant’s Sixth Amendment rights and “the redaction did not

destroy the narrative integrity of [Appellant’s] statement to police and did

not prevent [Appellant] from using the statement in his defense”; (3) the

                                    -7-
J-S15023-16


court’s redaction of an entire prison telephone conversation between

co-defendant Fleming and an unknown male was necessary to protect

Fleming’s Fifth Amendment rights and to conform the evidence to the court’s

prior ruling that suppressed Fleming’s statement to police; and, (4)

Appellant waived any challenge to the prosecutor’s closing argument and, in

any event, there was no prosecutorial misconduct since the prosecutor’s

comments regarding the credibility of certain witnesses and his references to

witness intimidation were based on evidence appearing in the record and

were made in response to arguments raised by defense counsel. Trial Court

Opinion, 12/17/14, at 9-19.       Since the record supports the trial court’s

findings and since the court’s conclusions are consistent with applicable

Pennsylvania law, we adopt the court’s assessments as our own. We direct

the parties to include a copy of the trial court’s opinion with all future filings

relating to the disposition of this appeal.


      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2016



                                      -8-
                                                                           Received 04/20/2015Circulated
                                                                                                Superior 02/25/2016 01:44
                                                                                                         Court Eastern     PM
                                                                                                                       District




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


 COMMONWEALTH                                                                     CP-51-CR-0001342-2013
                                                                            CP-51-CR-0001342-2013 Comm.   v. Brown,   Justin
                                                                                              Opinion


        vs.

                               DEC 1 7 2014
                                                                                11111 II 111111111111111
                                                                                        7235576431
                                                                                                                Ill
                                                         .
                         C\.·1mir,t.111.\u11iY~1s \ tnil                          SUPERIOR COURT
 JUSTIN BROWN         ;,:h-~tJl.;dh.:;::'.\i)/3~rici ~J f PA
                                                     1                            1728 EDA 2014


                                                     OPINION

 BRINKLEY, J.                                                                    DECEMBER17, 2014

        A jury found Defendant Justin Brown guilty of Murder of the First Degree, Criminal

Conspiracy) and one Violation of the Uniform Firearms Act§ 6106; Carrying a Firearm without

a License. This Court imposed the mandatory sentence of life imprisonment without the

possibility of parole. Defendant was further sentenced to l O to 20 years state incarceration on

the conspiracy charge, and 3 ~ to 7 years state incarceration on the § 6106 charge, to run

concurrently with his term of life imprisonment.               Defendant appealed this judgment of sentence

to the Superior Court and raised the following issues for appellate review: (1) whether the verdict

was against the weight of the evidence; (2) whether the Court erred in redacting Defendant's

statement by making it appear that he was "covering up" for someone; (3) whether Defendant

was improperly prejudiced by the redaction of his co-defendant's prison phone conversations;

and (4) whether the prosecutor improperly raised issues of "witness fear and intimidation" and

expressed his own personal opinions during closing arguments. This Court's judgment of

sentence should be affirmed.
                                   PROCEDURAL HISTORY

         Sixteen-year-old Yasin Harvey was shot and killed on May 2, 20 I 2 in a drive-by

 shooting in West Philadelphia. Defendant and co-defendant, Elijah Fleming ("Fleming"), were

 arrested and charged with his murder. From May 7-15, 2014, Defendant and Fleming were tried

 together before a jury. Defendant was represented by Jack McMahon, Esquire. The jury found

 Defendant guilty of first degree murder, criminal conspiracy, and carrying a firearm without a

 license. On May 15, 2014, this Court sentenced him to the mandatory sentence of life

imprisonment without the possibility of parole. Defendant was further sentenced to 10 to 20

years state incarceration on the conspiracy charge, and 3 Y2 to 7 years state incarceration on the §

6106 charge, to run concurrently with his term of life imprisonment. No post sentence motions

were filed. On June 3, 2014, Defendant filed a Notice of Appeal to the Superior Court. On June

9, 2014, this Court ordered Defendant to file a Concise Statement of Errors Pursuant to Pa.

R.A.P. 1925(b) and defense counsel did so on June 30, 2014.

                                             FACTS

        From May 7-15, 2014, this Court conducted a jury trial in this matter. Police Officer
                                                 i   -.   .-   e,

Kevin Dorin testified first for the Commonwealth. Officer Dorin stated that on March 27, 2012,

he responded to a report of gunshots on the 600 block of Edgemore Road. He observed six shell

casings on the scene, contacted Southwest Detectives, and then waited for them to arrive. (N.T.

5/7/14, p. 90-95).

       Detective Vincent Parker testified next. He stated that on March 27, 2012, he and his

partner, Detective Ortiz, investigated the shooting on the 600 block of Edgemore Road. At the

scene, he discovered six shell casings and two bullet projectiles. After speaking with two

neighbors in the area, Detective Parker went to the hospital to speak with victim Jamal Payne



                                                2
 ("Payne"); however, he was unable to be interviewed as he was undergoing treatment. The next

 day, Detective Parker met with Payne but Payne refused to identify the shooter. On April 26,

 2012, Detective Parker interviewed Fleming at Southwest Detectives and obtained a statement

 from him regarding Payne's shooting. Fleming told him that on March 27, 2012, he was

 kidnapped by three armed men, who forced him into a car. The three men beat him and stole his

 two cell phones and $90 in cash, before driving him back to his home and demanding that he get

 more money for them. Fleming told Detective Parker that he went into his house, retrieved a

 firearm, and shot one of his abductors, later identified as Payne. Detective Parker testified that

Fleming reviewed the written statement, initialed each page, and signed at the bottom. Id. at 96-

 122.

        Samir Green ("Green") testified next. He stated that on May 2, 20 I 2, he was 15 years old

and was spending time with his friend Yasin Harvey ("Harvey"). He and Harvey, along with two

other friends, were standing outside of a store at the corner of 62"d and Callowhill, when a dark

Pontiac with tinted windows pulled up and someone began shooting at them. Green testified that

he saw someone leaning out the front passenger window, firing a gun with his arm folly

extended. He described the shooter as "[b]rown skinned, caramel" but he did not get a good look

at the shooter's face. Green stated that when he realized bullets were flying, he ran and ducked

behind parked cars. After the Pontiac drove away, Green came out of hiding and saw Harvey

lying in the street, trying to get up. Green ran inside a nearby house to hide in case the shooter

returned. He testified that he looked out the window and saw people running to help Harvey so

he and his friends returned outside and waited until Harvey was transported to the hospital.

Green gave a statement to detectives later that same day. Id. at 139-162.




                                                  3
        Police Officer Jasmin Torres testified next for the Commonwealth. Officer Torres stated

 that on May 2, 2012, she and her partner, Officer Benson, heard gunshots near police

 headquarters. She then received a radio call, indicating that someone had been shot near 6211d and

 Callowhill. When she arrived on the scene, she saw Harvey lying on the ground between two

 vehicles, covered in blood. Officer Torres put him in the backseat of her police vehicle and drove

 him to the emergency room. She remained at the hospital until Harvey was pronounced dead by

medical personnel. (N.T. 5/8/14, p. 17-20).

        Next, Police Officer Gregory Yatcilla of the Crime Scene Unit testified. He stated that he

responded to the report of a shooting at 6211d and Callowhill Streets. He took photographs of the

scene and collected evidence, including blood samples, two bullets specimens and seven fired

shell casings. Id. at 24-54.

        Police Officer John Cannon testified next as an expert in the identification and testing of

firearms and ammunition. He stated that he analyzed the fired cartridge cases and two bullets

recovered from the scene of the shooting and cross-checked them against ballistics evidence

recovered from the March 27, 2012 shooting of Jamal Payne on Edge more Road. He determined

that the fired cartridge cases all came from the same firearm. Id. at 74~94.

       Farid Brown ("Brown") testified next for the Commonwealth. He denied that he was in

the area of 62"d and Callowhill Streets on May 2, 2012 when Yasin Harvey was shot. He also

denied giving a statement to Homicide Detective Tracy Byard on May l 0, 2012, wherein he

admitted being present at the scene of Harvey's death. In this written statement, which he

initialed and signed, Brown told detectives that he knew Defendant and Fleming "from playing

basketball," and that Fleming drove a dark green Pontiac Grand Prix. Brown further told




                                                 4
 detectives that on May 2, 2012 he was at the store on the corner of 62"d and Callowhill and heard

 gunshots. Id. at 104-116.

         Next, Police Sergeant Bob Wilkins testified. He stated that he met with Defendant at

 police headquarters on August 25, 2012 and questioned him regarding the murder of Yasin

 Harvey. In his statement, Defendant told Sergeant Wilkins that Kareem Terry, a/k/a "Reem,"

 shot Harvey and relayed the following version of events: Defendant, another man and Kareem

were driving around in a car together, smoking weed and on their way to meet some girls. As

they drove by the corner of Felton and Callowhill, the driver stopped and Kareem rolled down

the window and started shooting from the back seat, trying to hit Farid Brown before he entered

the comer store. This was a retaliatory response to Farid Brown's murder of Stephan Hamilton,

Defendant's best friend. When Kareem was done shooting, the driver of the vehicle then sped

away. Defendant asked, "What the fuck is wrong with you all?" and then jumped out of the front

passenger seat at the next red light: He said never saw the driver or Kareem Terry again.

        Sergeant Wilkins testified that Defendant told him he hadn't come forward with this

information sooner because he was scared and knew he had outstanding warrants on unrelated

matters. Wilkins showed Defendant a photograph of Yasin Harvey; however, Defendant told him

that he did not know Harvey and was unable to identify him from the photograph. (N.T. 5/8/14,

p. 156-191).

        Gary L. Collins, M.D., Deputy Chief Medical Examiner, testified as an expert in forensic

pathology. He testified that he examined Yasin Harvey's body and determined that he died as a

result of multiple gunshot wounds: one to his head, two to his chest, and one to his arm. The

gunshots to the chest would have been fatal to Harvey even if he had not been fatally shot in the

head. Id. at 217-225.



                                                5
        Next, Police Officer Ronald Burgess testified for the Commonwealth. He stated that on

May 9, 2012, he spotted Fleming driving in a dark green Pontiac vehicle with heavily tinted

windows that matched the description of the car involved in Harvey's shooting. He stopped the

vehicle and discovered that Kareem Terry, the car's owner, was sitting in the front passenger

seat. Both Fleming and Terry were taken into custody. Burgess testified that he knew the area of

6211d and Callowhill very well, and knew Jamal Payne to frequent this area. (N.T. 5/9/14, p. 13-

17).

        Detective Tracy Byard testified next. He stated that he executed a search warrant at

Fleming's house and recovered several pieces of mail as well as a funeral card for the services of

Stephan C. Hamilton. Byard further testified that during the course of the investigation, he came

into contact with Defendant, and noted that Defendant had the numbers "six four" surrounded by

skulls tattooed on his arms, as well as the word "Callowhill" tattooed across his back. Byard

stated that he and his fellow police officers searched for Defendant from May 8, 2012 until

August 25, 2012, when he was finally apprehended. Id. at 22-45.

       Kareem Terry ("Terry") testified next for the Commonwealth. Terry stated that on May

2, 2012, Fleming (also known as "Lihj") and Defendant (also known as "Dot") picked him up at

his home. Terry testified that Fleming was driving the car, Defendant was in the front passenger

seat, and he was in the backseat alone. As they drove down 6211d Street, Fleming spotted a group

of males on the corner. He circled the block and then pointed out the males as members of

"Deuce." Defendant began firing a gun at them. Terry testified that Defendant shot

approximately six times. Fleming drove away, and turned down a small block between

Callowhill and Vine Streets. Terry testified that his ears were ringing from the gunshots so he

asked to be let out of the vehicle. He then walked back to his house at Callowhill and Simpson



                                                6
Streets. Three days later, on May 5, 2012, Terry was taken into police custody. He testified that

he told the police that the car Fleming was driving was registered to Terry but that it actually

belonged to Fleming. Fleming paid for the vehicle but gave Terry a couple hundred dollars to put

the car's paperwork his Terry's name because Fleming did not have a valid driver's license.

Terry then reviewed the statement he gave police on May 5, 2012. In this statement, he described

the shooting as follows:

               Like I said, it was Dot who shot at the crowd and the boy must
               have been in the crowd. I was in the back seat of the car when Dot
               lit up the crowd. The car is in my name but Lihj gave me some
               money to put the car in my name. I ride around with them once in a
               while but the car is in my name for the papers only. Lihj always
               drives that car.

               The night the boy got kiUed I was riding with Lihj and Dot. Dot
               was in the front on the passenger side.' Lihj was driving. Lihj drove
               by Sixty-Second Street and there was a crowd on the corner. Lihj
               drove by it and then went around the corner and started coming up
               on the crowd again. Lihj told Dot, yo, there goes them Deuce
               niggas right there, shoot them. Dot then pulled a gun from I think
               from under the seat or the side well on the door cause I seen him
               reach down. I didn't know there was a gun in the car. I just seen
               Dot reach down, then come up with the gun and he started lighting
               up the crowd that was there.

               Then Lihj drove off. I was like what the fuck. Lihj got to like
               Sixty-Third and Vine and I was yelling, yo, let me the fuck out. I
               didn't want no part of anything. I got out of the car and Lihj and
               Dot drove off. You see, Sixty-Fourth and Callowhill been going
               through it with anybody on Callowhill that is on the other side of
               Sixty-Third Street. I just walked off and went home.

               The next day I was around on Sixty-Fourth and Dot and Lihj were
               talking about it and word was out one of the boys in the crowd that
               got hit died. Lihj was saying how he still had the gun in his car.
               That's when Dot told Lihj, yo, you got to get rid of that gun. Lihj
               said he would get rid of it but I don't know what he did with it.

Id. at 79"81 (from written police statement of Kareem Terry, dated 5/5/12). Terry testified that

Fleming was the leader of the 64"d and Callowhill gang and that he "has everyone else do his


                                                 7
 dirty work." He further testified that Fleming previously had been kidnapped by members of

 Deuce and that there had been a lot of "back and forth" after that between the two gangs. Terry

stated that he was currently incarcerated, awaiting trial for attempted murder, that he had

immunity with respect to his involvement in the murder of Yasin Harvey, but he did not have

any deals with the Commonwealth that would benefit him in his ongoing attempted murder case.

He stated that Fleming called him at home from prison several times after his arrest. A redacted
                                                        I
audio recording of these phone calls was then played for the jury. Terry testified that during the

phone conversations, Fleming instructed Terry not to point the finger at him and told him not to

tell the police that Fleming initiated everything. Terry assured Fleming that he was not going to

testify in court; however, he appeared at the preliminary hearing and identified Fleming as the

driver of the vehicle. Id. at 81-141.

          At the conclusion of Terry's testimony, counsel entered evidence by way of stipulation

by and between counsel. Counsel first stipulated to a certificate of non-licensure, stating that

Fleming was not licensed to carry a firearm. Counsel then stipulated to another certificate of non-

licensure, indicating that Defendant was not licensed to carry a firearm. The Commonwealth

moved its exhibits into evidence and rested. Fleming's counsel moved for a judgment of

acquittal. This motion was denied and the defense rested. The jury found Defendant guilty of

first degree murder, criminal conspiracy, and carrying a firearm without a license.

                                              ISSUES

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

   II.      WHETHER DEFENDANT'S STATEMENTS TO POLICE WERE
            PROPERLY REDACTED.

   III.     WHETHER THE RECORDED PRISON PHONE CALLS WERE PROPERLY
            REDACTED.

                                                 8
     IV.        WHETHER THE PROSECUTOR'S CLOSING STATEMENT WAS
                IMPROPER.

                                                 DISCUSSION

     I.        THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE.

           Defendant claims that the verdict was against the weight of the evidence. As a threshold

 matter, Defendant has not preserved this claim for appellate review. A challenge to the weight of

 the evidence must be raised with the trial judge or it will be waived. Pennsylvania Rule of

 Criminal Procedure 607 requires that a "claim that the verdict is against the weight of the

 evidence shall be raised with the trial judge in a motion for a new trial: (I) orally, on the record,

 at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a

 post-sentence motion." This claim must be presented, to the trial court while it exercises

jurisdiction over a matter since "appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against the weight of the

evidence." Commonwealth v. Burkett, 830 A.2d 1034, 1037 (2003) (quoting Widmer, 744 A.2d

at 753).

           In the case at bar, Defendant did not raise this claim orally or in writing prior to

sentencing. The record shows that the jury reached its verdict of guilty on May 15, 2014 and that

Defendant was sentenced that same day. At no time between verdict and sentencing did defense

counsel make a motion for a new trial. Furthermore, he failed to raise this claim in a post-

sentence motion. In fact, a review of the docket shows that Defendant did not file any post-

sentence motions. Since Defendant failed to comply with Pa. R. Crim. P. 607, his claim is

waived.

          Even if the issue is not waived, the verdict was not against the weight of the evidence. A

weight of the evidence claim concedes that the evidence was sufficient to sustain the verdict.

                                                     9
 Commonwealth v. Smith, 2007 PA Super. 77, 853 A.2d 1020, 1028 (citing Commonwealth v.

 Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The weight of the evidence is "exclusively

 for the finder of fact who is free to believe all, part, or none of the evidence and to determine the

 credibility of the witnesses."   Commonwealth v. Rice, 2006 PA Super. 143, 902 A.2d 542, 546

 (2006) (quoting Commonwealth v. Champneyi 574 Pa., 435, 832 A.2d 403, 408 (2003)). An

 appellate court cannot substitute its judgment for that of the fact finder; therefore, a verdict will

 be reversed only in the extraordinary situation where the 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. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528

(2003) (citing Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189 (1994));

Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2004) (citing Commonwealth v.

Drumheller, 570 Pa. 117, 808 A.2d 893, 908 (2002)).

        In the case at bar, the jury properly assessed the evidence and based its guilty verdicts

upon that evidence. The jury, as fact-finder, was free to believe all, part, or none of the evidence

presented, and, as discussed in Tharp and Smith (.supi·a), its conclusion should not be disturbed

unless it "shocks one's sense of justice." That is not the case here. During the trial, the jury was

able to observe the demeanor of each witness and found the police detectives and, more

importantly, Kareem Terry, to be credible witnesses. The jury found Defendant's version of

events, as described in his written statement to detectives where he claimed that Terry was the

shooter, to be incredible.

        The evidence adduced at trial established that Defendant was a member of the '1641h and

Callowhill" gang, as demonstrated by his tattoos and close association with Fleming. The "64111

and Callowhill" gang was involved in ongoing retaliatory conduct with a rival gang, the "6211d



                                                 '10
 and Callowhill" gang, more simply known as "Deuce." Members of Deuce had murdered

 Defendant's best friend, Stephan Hamilton, and previously had kidnapped and robbed Fleming.

 Fleming admitted to shooting Jamal Payne, one of his Deuce abductors. TeITy testified at trial

 that in retaliation for Deuce's actions, Fleming drove by the corner of 62nd and Callowhill Streets

 in his dark green Pontiac, pointed out members of "Deuce" and Defendant began shooting from

 the front passenger seat. Yasin Harvey, a l o-year-old boy not associated with either group, was

 shot and killed. The ballistics from this shooting were analyzed and police determined that it was

 the same gun that Fleming used to shoot Jamal Payne. Samir Green was standing with Harvey on

 the corner and testified that he saw a dark green Pontiac drive by and that someone in the front

 passenger seat shot at him and his friends. Farid Brown refused to testify at trial but in his

 written statement to police, he stated that he was standing on the corner of 6211d and Callowhill

when he saw a dark green Pontiac drive by and begin shooting, that he knew Fleming and

Defendant from around the neighborhood, and that he knew Fleming to drive a dark green

Pontiac. Based upon this evidence, the jury's finding of guilt cannot be said to "shock one's

sense of justice." Accordingly, this jury's verdict should not be disturbed on appeal.

    II.      DEFENDANT'S POLICE STATEMENT WAS PROPERLY REDACTED TO
             PROTECT HIS SIXTH AMENDMENT RIGHTS AND DID NOT MAKE IT
             APPEAR TO THE JURY THAT HEW AS "COVERING UP" FOR ANYONE.

          This Court properly redacted the statements of Defendant and Fleming in order to

preserve Fleming's Sixth Amendment rights. Furthermore, even if any errors were committed

during redaction, there was no harm to Defendant. Whether multiple defendants' cases should be

consolidated for trial "is within the sole discretion of the trial court and such discretion will be

reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant."

Commonwealth v. Melvin, 2014 PA Super 181, --- A.3d -"-, pg. 17 (2014) ( citing



                                                  11
 Commonwealth     v. Boyle, 733 A.2d 633, 635 (Pa.Super.    1999)).   Joint trials are favored when

judicial economy will be served by avoiding the expensive      and time-consuming     duplication    of

evidence, and where the defendants     are charged with conspiracy. Commonwealth v. Akbar, 2014

PA Super 89, 91 A.3d 227, 232 (2014) (citing Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d

319, 336 (2011)). Separate trials of co-defendants should be granted only where the defenses of

each are antagonistic to the point where such individual differences are irreconcilable and a joint

trial would result in prejudice. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 232 (2007)

(citing Commonwealth v. Lambe11, 529 Pa. 320, 603 A.2d 568, 573 (1992)). Just as severance is

not required where one defendant may try to save himself at the expense of the other, neither is it

required where one has tried to save the other at the expense of himself. Commonwealth v.

Gribble, 580 Pa. 647, 863 A.2d 455, 462-63 (2004).

        Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has a

right to confront witnesses against him. Akbar, 91 A.3d at 232 (citing Commonwealth v. Rivera,

565 Pa. 289, 773 A.2d 131, 137 (2000)). A defendant is deprived of his Sixth Amendment rights

when his non-testifying co-defendant's facially incriminating confession is introduced at their

joint trial, even if the jury is instructed that the confession can be considered only against the

confessing co-defendant. Id. Nevertheless, if a confession can be edited so that it retains its

narrative integrity and yet in no way refers to the non-confessing defendant, then use of it does

not violate the principles of the Sixth Amendment. Id. (citing Commonwealth v. Travers, 564 Pa.

362, 768 A.2d 845, 848 (2001)). In Travers, the Pennsylvania Supreme Court held that the

redaction of a nontestifying co-defendant's confession in a joint trial, which replaced any direct

reference to the non-confessing co-defendant with a neutral pronoun, in this case "the other guy,"

sufficiently protected the non-confessing defendant's Sixth Amendment rights. Id. Pennsylvania



                                                  12
 courts have further upheld the redaction of a defendant's statement to read "one of the guys" in

 order to protect a co-defendant's   Sixth Amendment rights on the basis that such a redacted

 statement still allowed the defendant to provide a defense. See Commonwealth v. Garcia, 2004

PA Super 61, 84 7 A.2d 67, 72- 73 (2004 ).

        In the case at bar, this Court properly redacted Defendant's statement to the police in

order to protect his co-defendant Fleming's Sixth Amendment rights. Furthermore, any error in

redacting Defendant's statement was harmless and could not have contributed to the guilty

verdict. This Court redacted Defendant's statement to police to change any reference to Fleming

to "the other man." Defendant argued that this redaction made it seem as though he was

"covering" for an unnamed individual and therefore was not forthcoming with the police when

he gave his statement. However, this redaction was necessary to preserve Fleming's Sixth

Amendment right to confrontation as it was a facially incriminating statement of a non-testifying

co-defendant. Furthermore, the redaction did not destroy the narrative integrity of Defendant's

statement to police and did not prevent Defendant from using the statement in his defense. In his

own statement to police, Defendant claimed that Kareem Terry was the shooter. This defense

was unaffected by the redacted references to Fleming, which referred to Fleming as "the other

man" and simply stated that "the other man" was driving the car. The jury could have assumed

that Defendant did not know the name of the car's driver.· Since the jury ultimately concluded

that Defendant, not Terry, was the shooter, the jurors obviously found that Defendant's statement

as a whole was not credible. Moreover, there is nothing to indicate that changing Defendant's

co-defendant's name to "the other man" in any way contributed to the guilty verdict. As

discussed above in Section I, there was more than sufficient evidence implicating Defendant in

the murder of Yasin Harvey. Accordingly, the jury's finding of guilt should be affirmed.



                                                  13
     III.      THE RECORDED PRISON PHONE CALLS WERE PROPERLY REDACTED
               TO PROTECT FLEMING'S FIFTH AMENDMENT RIGHTS AND DID NOT
               PREJUDICE DEFENDANT.

            This Court properly redacted a phone conversation between Fleming and an unknown

 male in order to protect Fleming's Fifth Amendment rights, This Court ruled prior to trial that

 Fleming's statement to police was obtained in violation of his Fifth Amendment rights and must

 be suppressed. Consequently, this Court ruled that any references to Fleming having made a

 statement to police, including in recorded phone conversations in which Fleming discussed what

 he told police, were to be precluded at trial. At trial, this Court and counsel reviewed the

 transcripts of recorded prison phone calls in order to eliminate any reference to Fleming's police

 statement. While doing so, they read the following conversation between Fleming and an

 unknown male:

        Fleming:         To clear his name dog. I swear to God the law gonna think
                         Reem is the best guy cause I was trynna clear [D]ot name.
                         I'm talking about real shit man .
                                                         .   I.

        Male voice:      I hear you.

        Fleming:         I'm like listen I told the law like listen I'll keep it real with
                         you my man Dot [Defendant], I ain't seen Dot [Defendant]
                         in like five minutes, he ain't do shit they threw me on the
                         table ...

(N.T. 5/9/2014 p. 152M53). Defendant argued that this statement should be redacted to remove "I

told the law," in order to read, 'Tm like listen, I'll keep it real with you, my man Dot

[Defendant], I ain't seen Dot [Defendant] in like five minutes. He ain't do shit." Id. at 152, 154.

The Commonwealth argued that the entire statement should be redacted because Fleming was

explaining to the unknown male what he told the police in his statement, and Fleming's entire

statement to police had been suppressed by this Court. The Commonwealth further argued that

Defendant's proposed redaction fundamentally changed the meaning of the statement from "I


                                                    14
told the police that I haven't seen Defendant and he didn't do anything" to "I haven't seen

Defendant and he did nothing." Id. at 153-55. In addition, the Commonwealth noted that

Fleming in fact did tell the police in his statement that Defendant was the shooter and was lying

to the unknown male on the phone. Id. at 163-64. Defendant argued in response that Fleming

was not explaining what he told the police, but was stating it as a fact that he had not seen

Defendant and that Defendant did nothing. Id. at 159. Defendant further argued that the joint

trial with Fleming prejudiced him because, if he had a separate trial, the entire conversation

would be admissible and the jury would have heard this allegedly exculpatory statement. Id. at

156, 160. At the conclusion of argument by both defense counsel, this Court ruled that Fleming

was recounting the story he had told the police and was not stating a fact. Therefore, the

statement was covered by this Court's ruling that all references to Fleming's conversations with

police were to be suppressed. Id. at 157-162, 168. Consequently, this Court redacted the entire

statement. Id. at 168-69.

       This Court's redaction of the phone conversation was necessary to protect Fleming's

Fifth Amendment right and conform with this Court's prior ruling suppressing Fleming's

statement to police. A plain reading of the conversation between Fleming and the unknown male

shows that Fleming was discussing what he told the polite rather than asserting a fact. As such,

the reference had to be suppressed consistent with this Court's ruling that the co-defendant's

statement was obtained in violation of his Fifth Amendment rights. Furthermore, Defendant's

claim that the redaction prejudiced him, because the statement would have been admissible in a

separate trial, was without merit. If Defendant was tried in a separate trial, and the statement

made by his co-defendant was admissible, then not only would the jury have heard the entirety of

the disputed line, as opposed to Defendant's proposed redaction, but also that Fleming told the



                                                 15
police that Defendant was the shooter. As such, it would have been more prejudicial to

Defendant had the jury heard the entirety of Fleming's statement to police. Moreover, any error

in redacting the phone conversation was harmless and did not contribute to the verdict. There

was ample evidence presented at trial, including Terry's eyewitness testimony, that Defendant

was the shooter. Whether Fleming told an unknown male that he told the police that Defendant

did nothing would not have contributed to the verdict in light of the considerable evidence

presented at trial. Accordingly, this Court's judgment of sentence should be affirmed.

    IV.       THE PROSECUTOR DID NOT MAKE ANY IMPROPER REMARKS
              DURING HIS CLOSING STATEMENT.

          The prosecutor did not engage in prosecutorial misconduct in his closing statements.

Defendant argues that the "prosecutor in his closing expressed his personal opinion and

constantly raised issues of witness fear and intimidation with absolutely no evidence to support

this." After careful review of the Commonwealth's      closing statement, this Court was unable to

find any repeated, inappropriate references to witness fear and intimidation. In fact, this Court

only found two references to witness intimidation, and both of these statements were made in

response to arguments made in defense counsels' closing statements.

          As a threshold matter, Defendant has not preserved this claim for appellate review. In

order to raise a claim of alleged prosecutorial misconduct, Defendant must object to the

misconduct in a timely manner; otherwise such a claim will not be available on appellate review.

Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 685 (2009). Here, defense counsel never

objected to any statement made by the prosecutor during his closing statement. Thus, this claim

should be deemed waived.

          Even if this claim was not waived, no relief is due. While a closing argument must be

based upon evidence in the record or reasonable inferences therefrom, a prosecutor is permitted


                                                  16
 to respond to defense evidence and engage in oratorical flair. Commonwealth v. Culver, 2012

 PA Super 172, 51 A.3d 886, 878 (2012) ( citing Commonwealth v. Basemore, 525 Pa. 512, 582

A.2d 861, 869 (1990)). Allegedly improper remarks of a prosecutor during closing arguments

must be viewed in the context of the closing argument as a whole. Commonwealth v. Smith, 604

Pa. 126, 985 A.2d 886, 907 (2009) (quoting Commonwealth v. Washington, 549 Pa. 12, 700

A.2d 400, 407-08 (1997)). Although it is improper for a prosecutor to offer his or her personal

opinion regarding the credibility of the defendant or other witness, the prosecutor is permitted

comment upon credibility. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citing

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 545 (2005)). Improper bolstering or

vouching for a government witness occurs where the prosecutor assures the jury that the witness

is credible, and such assurance is based on either the prosecutor's personal knowledge or other

information not contained in the record. Id. at 981, n.7 (citing Commonwealth v. Smith, 606 Pa.

127, 995 A.2d 1143, 1157 (2010)). However, even an otherwise improper comment may be

appropriate if it is in fair response to defense counsel's remarks. Commonwealth v. Burno, 96

A.3d 956, 974 (Pa. Super. 2014) (quoting Commonwealth v. Elliott, 80 .2d 415, 443 (Pa. 2013).

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

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

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

       In the case at bar, there was no prosecutorial misconduct in the closing statement. In

defense counsel's closing statement, he questioned whether Samir Green accurately could have

recalled the shooting and claimed that Green made factual errors in his testimony. (N.T. 5/14/14,

p. 58-59. In response, the prosecutor referred to Samir Green in his closing arguments as "about

as credible a witness as you could possibly find" and "as credible a witness as you will ever hear



                                                17
  from." Id. at 110, 112. The prosecutor further stated that Green was a credible witness because

  he unequivocally and without hesitation testified that the shooter was sitting in the front

  passenger seat. Id. at 110, 112. In making these statements, the prosecutor was not offering his

  personal opinion as to Green's credibility but was merely responding to statements made by

 defense counsel that called into question Green's testimony and credibility.

         Additionally, during his closing statement, the prosecutor made two separate references

 to Fleming intimidating Terry. Both of these statements were based upon evidence presented at

 trial and were in direct response to comments made in defense counsel's closing statements

 regarding Terry's involvement in the crime. First, the prosecutor described to the jury in his own

 words what happened when Terry and Fleming were pulled over by the police a few days after

 the murder: "He [Fleming] looks over at Kareem Terry and says don't fucking say a word, we're

 going down to Homicide." Id. at 120-21. The prosecutor was paraphrasing a recorded prison

 phone conversation between Terry and Fleming, where Fleming was upset with Terry for talking

to the police and tells him, "Reem I fuckin told you I said before we go in there be ready for

every trick dog I didn't tell you I said if they don't s.hbw you no paperwork that's not nothing

that's how they do you you was at    gth   and Race dog that's the best homicide detectives they

gonna trick you and say that I tried to reassure you that before we went in there dog. You

supposed to wait till you see paperwork." (Prison Tapes of Elijah Fleming, p. 10).

        In the second instance where the prosecutor mentioned witness fear and intimation, the

record shows that the prosecutor was putting into context a remark that Terry made to Fleming

during a recorded prison phone call. During trial, the jury heard a recorded phone conversation

between Fleming and Terry, in which Terry said, "I was down there on some real shit I sign off

on that paper to get me out of the shit yeah, I wasn't like on no tip like [Fleming) did this



                                                   18
 [Fleming] did that. Naw I like know I did this shit I was like naw." (Prison Tapes of Elijah

 Fleming, p. 14). The prosecutor told the jury, "This is about the statement. This is about ratting.

 This is about snitching. And, you know, this is their code. Remember what they say way back

 before he even calls [Terry]. Remember what it is. "If Isee him, he's done." You don't snitch.

 You don't snitch when you're part of that group." Id. at 131. In his closing remarks, Defendant's

counsel told the jury that Terry was implicating himself as the shooter when he said, "I know I

did this shit." Hence, when the prosecutor stated in his own closing argument that Terry was

referring to the police statement he signed when he said, "I know I did this shit," and was

reassuring Fleming that he did not implicate him in the crime, the prosecutor was simply

responding to remarks made by defense counsel.

       Thus, there was no prosecutorial misconduct as both of the prosecutor's remarks that

alluded to witness fear and intimidation were in direct response to arguments made by defense

counsel in their own closings and were based upon evidence presented at trial. Accordingly, this

Court's judgment of sentence should be affirmed.




                                                19
                                            CONCLUSION

        After review of the applicable statutes, case law and testimony, this Court committed no

error. The verdict was not against the weight of the evidence. This Court properly redacted

Defendant's statement to police by removing Fleming's name. In addition, Defendant was not

prejudiced by the redaction of Fleming's recorded prison phone conversations to remove any

reference to Fleming's suppressed police statement. Last, the prosecutor did not commit

prosecutorial misconduct during his closing statement. Accordingly, this Court's judgment of

sentence should be affirmed.




                                                                             BY THE COURT:




                                                                                               J.




                                              20
