J-S01013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
               v.                           :
                                            :
GARY WILSON,                                :
                                            :
                    Appellant               :          No. 3337 EDA 2014

               Appeal from the Judgment of Sentence July 19, 2013
               in the Court of Common Pleas of Philadelphia County,
                  Criminal Division, No: CP-51-CR-0011361-2008

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED FEBRUARY 03, 2016

      Gary Wilson (“Wilson”), pro se, appeals from the judgment of sentence

entered after a jury convicted him of persons not to possess firearms.1 We

affirm.

      The trial court set forth the relevant procedural and factual history in

its Pa.R.A.P. 1925(a) Opinion.     See Trial Court Opinion, 5/11/15, at 1-3.2

We incorporate the court’s recitation herein by reference. See id.

      On appeal, Wilson presents the following issues for our review:

          I. Did the trial judge violate [Wilson’s] Fifth and Fourteenth
             Amendment rights to due process of law when the judge

1
   See 18 Pa.C.S.A. § 6105(a)(1) (providing, in relevant part, that “[a]
person who has been convicted of an offense enumerated in subsection (b)
… shall not possess, use, control, sell, transfer or manufacture or obtain a
license to possess, use, control, sell, transfer or manufacture a firearm in
this Commonwealth.”); see also id. § 6105(b).
2
  We additionally note that Wilson’s counsel had stipulated that, at the time
of the offense, Wilson had a prior conviction for an offense enumerated in 18
Pa.C.S.A. § 6105(b). See N.T., 5/7/13, at 19; see also id. at 101.
J-S01013-16


          told the jury, in advocacy for the District Attorney, that
          [Wilson] had a firearm in his possession[,] and failed to give
          an on[-]the[-]record colloquy to ascertain whether or not
          [Wilson] agreed to … the stipulations and the consequences
          of introducing drugs and [Wilson’s] prior bad acts to the
          jury?

      II. Did the prosecutor violate [Wilson’s] Fifth and Fourteenth
          Amendment rights to due process of law when the
          prosecutor expressed h[er] personal belief as to [Wilson’s]
          guilt and introduced drugs to the jury to divert the jury from
          its duty to decide the case on the evidence, [and]
          introduced prior bad acts?

Brief for Appellant at 4 (capitalization omitted).3, 4

      Wilson first argues that the trial court committed reversible error by

making a comment during its jury instructions that was so prejudicial that it

deprived him of a fair trial. See id. at 7. Specifically, Wilson points to the

trial court’s following remark: “Wilson has been charged with a single

offense, and that is a person who is not able to possess, use, manufacture,

control, sell, or transfer a firearm, he, nonetheless, had a firearm in his

possession.”    Id. (quoting N.T., 5/7/13, at 168) (emphasis added by

Wilson). According to Wilson, the trial court’s prejudicial remark “improperly

invaded the province of the jury[,]” and entitles him to a new trial. Brief for

Appellant at 8 (citing Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa.

1973) (stating that “[a] new trial is required when the remark is

3
  In his two issues, Wilson conflates several distinct sub-issues, most of
which he preserved in a separate portion of his pro se Pa.R.A.P. 1925(b)
Concise Statement. Accordingly, we will address each separately.
4
 We note, with displeasure, that the Commonwealth did not file a brief on
appeal, despite having requested, and received, two extensions of time.


                                    -2-
J-S01013-16


prejudicial[,] that is, when it is of such a nature or substance or delivered in

such a manner that it may reasonably be said to have deprived the

defendant of a fair and impartial trial.” (emphasis omitted)).

             [W]hen reviewing jury instructions for error, the charge
      must be read as a whole to determine whether it was fair or
      prejudicial. The trial court has broad discretion in phrasing its
      instructions, and may choose its own wording so long as the law
      is clearly, adequately, and accurately presented to the jury for
      its consideration.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1141 (Pa. 2012) (citation

and internal quotation marks omitted); see also Commonwealth v.

Hansley, 24 A.3d 410, 420 (Pa. Super. 2011) (stating that “[a] faulty jury

charge will require the grant of a new trial only where the charge permitted

a finding of guilt without requiring the Commonwealth to establish the

critical elements of the crimes charged beyond a reasonable doubt.” (citation

omitted)).

      In its Opinion, the trial court determined that Wilson’s claim lacks

merit:

      Here, [Wilson] misunderstood the [trial c]ourt and believed that
      the use of the pronoun “he” was in direct reference to [Wilson,]
      when[,] in fact[,] the pronoun “he” was in reference to the
      “person” who, in order to be found guilty and in violation of [18
      Pa.C.S.A. § 6105(a)(1)], “… nonetheless, had a firearm in his
      possession.”     [N.T., 5/7/13, at 168].     The [trial c]ourt’s
      instructions, when read as a whole, clearly, adequately, and
      accurately presented to the jury the law concerning [persons not
      to possess firearms] under 18 Pa.C.S.[A.] § 6105(a)(1). This is
      all that is required. The mere fact that [Wilson] misunderstood
      the [c]ourt’s language does not render this charge defective.
      Accordingly, this claim is meritless.



                                  -3-
J-S01013-16


Trial Court Opinion, 5/11/15, at 5. We agree with the trial court’s rationale,

which is supported by the law and the record, and affirm on this basis with

regard to Wilson’s first issue. See id.

      As an addendum, we observe that, in response to the trial court’s

foregoing rationale, Wilson asserts that he “does not object to the jury

charge.     [Wilson] objects specifically to the tone and delivery of which

the [t]rial [c]ourt specifically stated that ‘[h]e, nonetheless, had a firearm in

his possession[.]’”     Brief for Appellant at 9 (quoting N.T., 5/7/13, at 168)

(emphasis supplied by Wilson); see also Brief for Appellant at 9 (citing

Commonwealth v. Trunk, 167 A. 333, 337 (Pa. 1933) (ruling that a new

trial was warranted based upon the Court’s determination that “the [trial]

judge’s     attitude   throughout   the   trial   was   biased   and   prejudicial   to

defendants[,] … [and] [t]he tone and language of the [judge’s jury] charge

in many parts was that of an advocate for the prosecution, and, therefore,

not such a judicial presentation of the case as the defendants were entitled

to[.]”)).

      Here, we are clearly unable to assess the trial court’s “tone” and/or

“delivery” during the trial based upon the cold record, and, in any event,

discern no reversible error concerning the trial court’s wording of the jury

charge. See Sepulveda, 55 A.3d at 1141 (observing that a trial court has

broad discretion in phrasing its jury instructions); see also Trial Court

Opinion, 5/11/15, at 5. Moreover, even assuming, arguendo, that the trial



                                     -4-
J-S01013-16


court’s charge was technically faulty in its use of the pronoun “he,” or that

the court’s “tone” was somehow improper, the charge did not permit “a

finding of guilt without requiring the Commonwealth to establish the critical

elements of the crime[] charged beyond a reasonable doubt.” Hansley, 24

A.3d at 420. Thus, we cannot grant Wilson relief.

      Next, Wilson contends that the trial court erred by failing to conduct

an on-the-record colloquy to ascertain whether he fully understood the

consequences of the stipulations made by his defense counsel at trial.5 See

Brief for Appellant at 10-11.

      At trial, the prosecutor set forth the stipulations as follows:

      [T]he first is the testimony of Officer Andrejczak, who … [would
      testify that] the firearm [that Wilson discarded] was tested by
      the Firearms Investigation Unit. The officer prepared a report.
      The firearm was found to be operable, and [Officer Andrejczak]
      determined it to be a firearm for purposes of [18 Pa.C.S.A.
      §] 6105. …

      The second stipulation is that the narcotics that were recovered
      … by Police Officer [Kim] Watts from Karim Buckner [“Buckner”]
      from the floor … were submitted to a chemistry lab. They were
      tested by a technician, and they were found to be marijuana.

      [T]he final stipulation is … that [Wilson] is prohibited by law to
      possess a firearm, and that he was convicted of a felony
      [enumerated] under [18 Pa.C.S.A. § 6105(b)] ….

5
  We observe that Wilson fails to cite the place in the record where the
stipulations appear. See Pa.R.A.P. 2119(c) (stating that “[i]f reference is
made to the pleadings, evidence, charge, opinion or order, or any other
matter appearing in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appears[.]”); see also
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en
banc). However, we will overlook this defect.


                                   -5-
J-S01013-16



N.T., 5/7/13, at 100-01.

     According to Wilson, “[t]he stipulations were done unknown to [him,]

and guilt could be inferred from the stipulations in and of themselves.” Brief

for Appellant at 11.   Wilson maintains that “[t]he stipulations [] basically

place[] [Wilson] at the scene[,]” and “the stipulations concerning a firearm

and drugs are tantamount to a guilty plea.”      Id.   Wilson contends that,

pursuant to our Supreme Court’s decision in Commonwealth v. Davis, 322

A.2d 103 (Pa. 1974), the trial court should have colloquied him concerning

whether he understood the consequences of the stipulations.           Brief for

Appellant at 10.

     In Davis

     our Supreme Court recognized that testimony entered by
     counsel’s stipulation may be so damaging that admission of the
     stipulation at trial must be surrounded by safeguards similar to
     those attending the entry of a guilty plea.           There, it was
     stipulated that the complaining witness, if present at trial, would
     have testified that the defendant was one of two men who had
     robbed him at gunpoint. The Court concluded that counsel’s
     stipulation to this testimony placing his client at the scene of the
     crime and naming him as a participant therein was the
     equivalent to an admission of guilt by the defendant, despite his
     plea of not guilty. By stipulating to the testimony that would
     have been offered by the complaining witness, appellant gave up
     the opportunity to cross-examine that witness and to attempt to
     discredit his incriminating testimony. Under the circumstances
     of the case[,] the stipulation made a not guilty verdict highly
     unlikely.    Therefore, an on-record colloquy, demonstrating
     defendant’s understanding of the consequences of the
     stipulations, and his consent thereto, was deemed necessary.




                                 -6-
J-S01013-16


Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super. 1978) (en banc)

(emphasis omitted).    Under Davis, the test to be applied, essentially, is

whether the stipulation in question makes the “outcome [of the trial] a

foregone conclusion.” Davis, 322 A.2d at 105.

      We determine that Davis is unavailing to Wilson.     We disagree with

Wilson’s interpretation of Davis, as such an interpretation would “compel

the trial court to conduct a colloquy each time counsel for the defendant

chooses as a matter of trial strategy to concede a fact which is pertinent to

proof of the offense charged.” Commonwealth v. Overton, 352 A.2d 105,

106 (Pa. Super. 1975) (en banc).       Davis, however, does not have such

wide-ranging application. Id. Rather, the Davis decision relates only to a

particular situation in which the stipulation involved is so damaging that it

constitutes an admission of guilt.   Such is not the case here.     First, the

stipulation concerning Officer Andrejczak merely established that the firearm

recovered was operable.     This fact, alone, in no way inculpated Wilson.

Second, the stipulation concerning the marijuana (which police attributed to

Buckner) was merely the evidence found at the bar, and it did not make the

verdict of guilt a foregone conclusion.   Indeed, Wilson was not charged in

connection with the marijuana, and it had no bearing upon whether he

unlawfully possessed a firearm. Finally, the trial court correctly determined

in its Opinion that “the stipulation concerning [Wilson’s] prior conviction[,]

for the purpose of [18 Pa.C.S.A.] § 6105, did not implicate [Wilson] in the



                                 -7-
J-S01013-16


commission of the instant crime; it merely established that an element of

the charge had in fact been satisfied.    Since [Wilson’s] guilt could not be

inferred from the stipulation as entered, an on-the-record colloquy was not

required.” Trial Court Opinion, 5/11/15, at 6. Accordingly, this claim does

not entitle Wilson to relief.

      Wilson next argues that he was deprived of a fair trial and due process

when the prosecutor, during her opening statement, improperly expressed

her personal opinion as to Wilson’s guilt. Brief for Appellant at 12.    Wilson

points to the prosecutor’s following statement: “I’m sure you too will know

why [Wilson] ran into the vestibule of that bar and why he tossed that gun.

It was because he was guilty. And I ask you to return that verdict to him at

the end of this trial.” N.T., 5/7/13, at 25; see also Brief for Appellant at 12.

      In its Opinion, the trial court set forth the applicable law and standard

of review concerning claims of prosecutorial misconduct, and determined

that Wilson’s claim lacks merit.   See Trial Court Opinion, 5/11/15, at 6-8.

We affirm with regard to this issue based on the trial court’s rationale. See

id.

      Next, Wilson avers that the trial court abused its discretion when it

permitted the prosecution to introduce into evidence the marijuana that the

police had recovered from the sidewalk.6 Brief for Appellant at 13. Wilson

points out that the police charged Buckner, not him, with possession of the

6
  As noted above, Wilson’s counsel stipulated to the fact that Buckner had
discarded marijuana at the scene. N.T., 5/7/13, at 100.


                                   -8-
J-S01013-16


marijuana in question. Id. at 14; see also id. at 15 (pointing out that the

sole charge for which Wilson was on trial was persons not to possess

firearms).

      In its Opinion, the trial court found that Wilson had waived this claim,

as he had failed to raise any objection at trial to the Commonwealth’s

introduction of the marijuana, or to any reference to Wilson’s possible

involvement in drug activity with Buckner.         See Trial Court Opinion,

5/11/15, at 9; see also Commonwealth v. Montalvo, 956 A.2d 926, 936

(Pa. 2008) (stating that in order to preserve a claim on appeal, a party must

lodge a timely objection at trial); see also Pa.R.A.P. 302(a) (stating that an

issue cannot be raised for the first time on appeal).     As the trial court’s

analysis is supported by the law and the record, we affirm on this basis

concerning Wilson’s claim. See Trial Court Opinion, 5/11/15, at 9.

      As an addendum, we observe that even if Wilson had objected to the

introduction of this evidence, it was relevant and admissible to provide a

complete history of the case to the fact-finder (e.g., to explain why Wilson

evaded the police after they apprehended Buckner). See Commonwealth

v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (en banc) (stating that

Pennsylvania courts “have long recognized the special significance of

evidence which provides [the fact-finder] with the res gestae, or complete

history, of a crime. … The trial court is not required to sanitize the trial to

eliminate all unpleasant facts from consideration where those facts are



                                  -9-
J-S01013-16


relevant to the issues at hand and form part of the history and natural

development of the events and offenses for which the defendant is

charged.”) (citations and some ellipses omitted); see also Commonwealth

v. Lark, 543 A.2d 491, 497 (Pa. 1988) (stating that evidence of other

criminal acts may be relevant and admissible to show “part of the chain or

sequence of events which became part of the history of the case and formed

part of the natural development of the facts.”).

      Finally, Wilson contends that that he is entitled to a new trial because

the prosecutor improperly stated, during her opening statement, that Wilson

had a prior felony conviction.   Brief for Appellant at 16-17.    Specifically,

Wilson points out that the prosecutor made the following statement to the

jury: “[Wilson] was a person prohibited by law to [possess a firearm],

because prior to August 16, 2008, he had been convicted of a felony.” N.T.,

5/7/13, at 19;7 see also Brief for Appellant at 16. Wilson asserts that this

remark was prejudicial and unnecessary (given his stipulation to his prior

convictions for purposes of 18 Pa.C.S.A. § 6105(b)), stating as follows:

“[Wilson’s] charge under [18 Pa.C.S.A. § 6105(a)(1)] was based upon [his]

being a person who has been convicted of an offense enumerated in

subsection [6105](b)[;] therefore it would not [have been] prejudicial to the

Commonwealth … [for it to] merely tell[] the jury that [Wilson] had a


7
  Wilson’s counsel objected to the prosecutor’s remark about Wilson’s prior
conviction, and moved for a mistrial. N.T., 5/7/13, at 19. During a sidebar,
the trial court denied the mistrial Motion. Id. at 19-20.


                                 - 10 -
J-S01013-16


previous conviction [enumerated in] subsection (b) of the statute.” Brief for

Appellant at 16.        Wilson points out that, in the trial court’s Opinion, it

determined that Wilson’s claim lacks merit based upon the Pennsylvania

Supreme Court’s Opinion in Commonwealth v. Stanley, 446 A.2d 583,

588 (Pa. 1982) (holding that the Commonwealth may use any proper

evidence to prove its case, and it does not have to accept a defendant’s

stipulations).    See Brief for Appellant at 16 (citing Trial Court Opinion,

5/11/15, at 8). According to Wilson, the Stanley decision is in conflict with

the United States Supreme Court’s decision in Old Chief v. U.S., 519 U.S.

172 (1997), wherein the Court held that a defendant charged under the

federal statute prohibiting convicted felons from possessing a firearm (18

U.S.C.A. § 922(g)(1)) has the right to withhold from the jury the specific

nature of the predicate conviction, provided that the defendant adheres to a

stipulation   stating    the   fact   of   a   qualifying   conviction   itself   without

elaboration. See Brief for Appellant at 16-17.

      Initially, we observe that Wilson did not raise this claim, nor his

reliance upon Old Chief, in his court-ordered Pa.R.A.P. 1925(b) Concise

Statement.       Accordingly, it is waived.          See Pa.R.A.P. 1925(b)(4)(vii)

(providing that “[i]ssues not included in the Statement … are waived.”); see

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”).




                                      - 11 -
J-S01013-16


Nevertheless, even if this claim was not waived, we would determine that it

does not entitle Wilson to relief.

      Our Pennsylvania Supreme Court, in Commonwealth v. Jemison, 98

A.3d 1254 (Pa. 2013), addressed the exact issue posed by Wilson herein,

and the matter of whether Pennsylvania should follow the holding of Old

Chief and overturn Stanley.          The Jemison Court declined to overturn

Stanley, distinguishing Old Chief based on certain “highly relevant”

differences between the state and federal firearms statutes, and holding that

      under 18 Pa.C.S.[A.] § 6105, one element of persons not to
      possess firearms is a prior conviction of a specific, enumerated
      offense, and this fact strongly supports the [] view, as well as
      our precedent in Stanley, that the prosecution should not be
      required to accept a stipulation which acknowledges that a prior
      conviction satisfies the element, but does not name or identify
      the specific prior offense.

Jemison, 98 A.3d at 1260, 1261.8 Accordingly, Wilson’s reliance upon Old

Chief is unavailing.

      Judgment of sentence affirmed.




8
  Additionally, the Jemison Court held that any possibility of unfair prejudice
to the defendant was mitigated by the use of proper cautionary instructions
to the jury, directing them to consider the defendant’s prior conviction as
evidence to establish the prior conviction element of the charge under
section 6105(a), not as evidence of the defendant’s bad character or
propensity to commit crime. Jemison, 98 A.3d at 1262. While, in the
instant case, the trial court did not issue such a cautionary instruction,
Wilson testified, on direct examination, that he had prior convictions for
robbery and burglary. See N.T., 5/7/13, at 117.


                                     - 12 -
J-S01013-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2016




                          - 13 -
                                                                                .. 5- ,SOI() /_3-{(,,
                                                                                              Circulated 01/15/2016 11:12 AM




                          IN THE COURT OF COMMON PLEAS
                    FIRST J11JDICIALDISTRICT OF PENNSYLVANIA
                        TRIAL DIVISION - CRIMINAL SECTION
                              i

                            l

        COMMONWEALTH bF       i
                                                                            CP-51-CR-0011361-2008
        PENNSYLVANIA ,                                               ·
                             6P-51-CR-001136                   •
                              ,              1-2008 Comm v w,1
                                  i            Opinion  - - 'son, Gary


              vs.
                                          Ill/I I/II I /Ill/II/I II I Ill
                                                 7292672221
                                                                            NO. 333Pf    reo
                                                                            SUPERIOR COURT



        GARY WILSON                                                                  MAY 11 2015
                                                                               _ Criminal Appeals Unit
                                                         OPINION
                                                                              First Judicial District of PA
BUTCHART, J.                                                                      May 11, 2015
                                      i

                                      \
                                      i

   I.      PROCEDURAL HISTORY

        Gary Wilson ("Defendint") was charged with Possession of a Firearm Prohibited under

18 Pa.C.S. § 6105(a)(l), a felony of the second degree. On May 8, 2013, a jury found Defendant

guilty and the Court deferred sentencing for completion of a Presentence Investigation Report.

On July 19, 2013, Defendant was sentenced to two and one half to five years, plus five years

reporting probation to run consecutively,

        On July 24, 2013, and October 15, 2013, Defendant filed post-sentence motions. On

November 22, 2013, Defendant's post-sentence motions were denied. On March 17, 2014,

Defendant filed a Post-Convict~on Relief Act ("PCRA") petition. On June 6, 2014, the Court

received Defendant's motion to proceed prose. On July 21, 2014, a Grazier hearing was held

where Defendant waived his right to counsel on direct appeal and for purposes of the PCRA. On

June 23, 2014, Defendant filed.an amended PCRA petition requesting his appeal rights be

reinstated. On July 28, 2014 the Court received Defendant's prose correspondence asking to
                            ,--
                           J.·
                           \


waive the sixty days that was granted to amend his PCRA petition. On October 30, 2014, a

video hearing was held and the Court reinstated Defendant's direct appeal rights nunc pro tune.

          On November 6, 2014,\ Defendant filed a Notice of Appeal. On December 1, 2014,

Defendant filed a Statement of Errors Complained of on Appeal ("Statement") in which he

argues:

             1. The Trial Judge violated [Defendant's] Fifth and Fourteenth Amendment
                rights to due process oflaw when the Judge told the jury, in advocacy for
                the District Attorney, that [Defendant] had a firearm in his possession;
                [sic] and failed to give an on the record colloquy to ascertain whether or
                not if [sic] [Defendant] agree [sic] to, or disagree to, [sic] the stipulations
                and the consequences of introducing drugs and prior bad acts to the jury.

            2. The Prosecutor ~iolated [Defendant's] Fifth and Fourteenth Amendment
               rights to due process of law when the prosecutor expressed his personal
               belief as to [Defendant's] guilt; [sic] and introduced drugs to the jury to
               divert the jury fr6m its duty to decide the case on the evidence, introduced
               [sic] prior bad acts.

See Statement at~ 1-2.


    II.      FACTUAL BACKGROUND

          This case arises out of a surveillance conducted by the Narcotics Task Force of the

Philadelphia Police Department on August 16, 2008, _at approximately 12: 15 a.m., in the area of

Circles Bar located on the 4800 block of North Broad Street in Philadelphia. Notes of
                              '
Testimony ("N.T."), May 7, 20\13 at 33-35. Philadelphia Police Officer Chris Hulmes ("Officer

Hulmes"), testified that he observed Defendant and another male identified as Karim Buckner

("Buckner") on the southwest corner of Broad and Louden Streets. Id. at 36-37. Officer Hulmes

was conducting his surveillance from the second floor porch of Circles Bar on the northwest

comer of Broad and Louden Streets. Id. at 37. Officer Hulmes testified that Defendant

approached Buckner and engaged in a conversation. Id. Defendant and Buckner were each



                                                     2
holding a marijuana blunt and [emptying the cigars' contents. Id. at 37-38. Buckner went to a

gray Jeep Cherokee that was parked nearby, retrieved a white napkin and returned to engage

Defendant in a conversation. Id. at 38. Defendant and Buckner were taking marijuana from the

napkin and placing it into the marijuana blunt. Id. at 38-39. At 12:25 a.m., Officer Hulmes

radioed for backup officers. Id. at 39. When the police arrived, Buckner was stopped without

incident and Defendant started to walk towards Circles Bar. Id. at 40. From his vantage point,

Officer Hulmes lost sight of Defendant because a crowd in front of the bar obscured his view.

Id. at 41.

             Philadelphia Police Officer Mark Bates ("Officer Bates") was one of the backup officers

who responded to Officer Hulmes' call. Officer Bates testified that as he arrived he saw a black

male, later identified as Defendant, matching the description given by Officer Hulmes. Id. at 61-

62. Officer Bates observed Defendant walking quickly towards Circles Bar as Defendant

dropped "a brown cigarette." Id. at 63. Officer Bates exited the passenger side of his patrol car,

followed Defendant, and observed Defendant remove a black handgun from his pocket. Id.

Defendant ran towards the bar as Officer Bates followed. Id. As Defendant ran into the bar,

Officer Bates saw him pull a gun from his right front pants pocket and throw it in the direction of

the bar. Id. at 63-64. Officer Bates apprehended Defendant, handed him over to his partner, and

then recovered the discarded handgun. Id. at 65, 68. Philadelphia Police Officer Kim Watts

("Officer Watts") also responded to the scene and recovered drugs from the sidewalk.        Id. at 93-

94.


      III.      DISCUSSION

             Defendant argues that     Court, while advocating for the Commonwealth, told the jury

that Defendant was in possession of a firearm; that Defendant was not consulted about the


                                                     3
stipulations at trial and that there was no colloquy about those stipulations; that the ADA

improperly expressed her personal belief as to Defendant's guilt; and that the ADA improperly

introduced prior bad act and drugs into evidence. See Statement at              ,r,r 1-2.   For the following

reasons, Defendant's claims are without merit.

                   A. The Court did not tell the jury that Defendant was in possession of a
                      firearm

          "The trial court has discretion in phrasing its instructions to the jury, and is not limited to

particular language, provided the law is clearly, adequately, and accurately presented to the

jury." Commonwealth v. Blount, 647 A.2d 199, 209 (Pa. 1994); Commonwealth v. Prosdocimo,

578 A.2d 1273 (Pa. 1990).

          In his Statement, Defendant objects to the following statements of the Court made while

charging the jury.1


          The Court:                 Mr. Wilson has been charged with a single offense,
                                     and that is that a person who is not able to possess,
                                     use, manufacture, control, sell, or transfer a firearm,
                                     he, nonetheless, had a firearm in his possession ...

                                     . .. To find the [D]efendant guilty of this offense, you
                                     must find that the following elements have been
                                     proven beyond a reasonable doubt: [f]irst, that the
                                     defendant was a person prohibited by law from
                                     possessing a firearm. To be prohibited, the
                                     Commonwealth must show that the defendant, at the
                                     time of this conduct, had been convicted of a specific
                                     offense. And you know that he was previously
                                     convicted of the specific offense of burglary-- I think
                                     robbery as well.

N.T., May 7, 2013 at 168 (emphasis added); also see Statement at page 2.




I
    Defendant incorrectly identifies the page numbers 352-353, from N.T., May 7, 2013.

                                                          4
                         (
                         I,




       Here, Defendant misunderstood the Court and believed that the use of the pronoun "he"

was in direct reference to Defendant when in fact the pronoun "he" was in reference to the

"person" who, in order to be found guilty and in violation of the statute, " ... nonetheless, had a

firearm in his possession." Id. i The Court's instructions, when read as a whole, clearly,

adequately, and accurately presented to the jury the law concerning Possession of a Firearm

Prohibited under 18 Pa.C.S. § 6105(a)(l). This is all that is required. The mere fact that

Defendant misunderstood the Court's language does not render this charge defective.

Accordingly, this claim is meritless.

               B. Stipulations by counsel

       "In Commonwealth v. Davis, 457 Pa. 194, 322 A.2d 103 (Pa. 1974), our Supreme Court

recognized that testimony entered by counsel's stipulation may be so damaging that admission of

the stipulation at trial must be surrounded by safeguards similar to those attending the entry of a

guilty plea." Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super Ct. 1978). In Bridell, it

was stipulated that the complaining witness, if present at trial, would have testified that the

defendant was one of two men who had robbed him at gunpoint. Id. "Davis, however, does not

require a trial court to conduct an on-record colloquy whenever defense counsel stipulates to

evidence which is potentially damaging to his client. .. The Davis decision relates only to a

particular situation in which the stipulation involved is so damaging that it constitutes an

admission of guilt." Id. (quoting Commonwealth v. Overton, 352 A.2d 106 (1975)). Essentially,

the test is whether the stipulation in question makes "the outcome of the trial a foregone

conclusion." Id. (quoting Davis, 322 A.2d at 105).

       In the present case, Defendant objects to the following statements made by the Assistant

District Attorney ("ADA"), Ms. Gopal.



                                                  5
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                         I     ,'




       Ms. Gopal:                   The judge is going to instruct you on the law. She is
                                    going to say that there are three elements that the
                                    Commonwealth needs to prove in order for you to
                                    find the defendant guilty. Well, two of those
                                    elements have been met. They've been stipulated to
                                    by counsel, so they are evidence. They don't even
                                    need to be debated. The first is that the defendant
                                    was convicted of the robbery and burglary.

N.T., May 7, 2013 at 23; also see Statement at page 2.

       Here, the stipulation concerning Defendant's prior conviction for the purpose of§ 6105,

did not implicate Defendant in the commission of the instant crime; it merely established that an

element of the charge had in fact been satisfied. Since Defendant's guilt could not be inferred

from the stipulation as entered, an on-record colloquy was not required.

               C. The prosecutor's expression ofpersonal beliefin Defendant's guilt

       The standard of review for a claim of prosecutorial misconduct is limited to whether the

trial court abused its discretion. Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. Ct.

2008). The question is whether Defendant was deprived of a fair trial, although Defendant is not

entitled to a perfect one. Id. In order to evaluate whether a prosecutor's comments "were

improper, we do not look at the comments in a vacuum; rather we must look at them in the

context in which they were made." Id. (quoting Commonwealth v. May, 898 A.2d 559, 567

(2006)). A prosecutor's arguments to a jury "are not a basis for the granting of a new trial unless

the unavoidable effect of such comments would be to prejudice the jury, forming in their minds

fixed bias and hostility towards the accused which would prevent [the jurors] from properly

weighing the evidence and rendering a true verdict." Id. Prosecutors are entitled to reasonable

latitude in presenting a case to the jury "and must be free to present ... arguments with logical

force and vigor." Id. Although a prosecutor may argue to the jury that the evidence establishes



                                                      6
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                              ( ·-·;



the defendant's guilt, arguments from personal opinion as to the guilt of the accused are not

proper. Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011); Commonwealth v.

D 'Amato, 526 A.2d 300, 309 (Pa. 1987).

           Where evidence is improperly admitted, the result may be a harmless error. A harmless

error occurs where: "(l) the error did not prejudice the defendant or the prejudice was de

minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted

evidence which was substantially similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial

effect of the error was so insignificant by comparison that the error could not have contributed to

the verdict." Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008); Commonwealth v. Young,

748 A.2d 166, 193 (Pa. 1999).

           In the instant case, Defendant objects to this excerpt from the ADA's opening statement.2

           Ms. Gopal:                    I'm sure you too will know why the [D]efendant ran
                                         into the vestibule of that bar and why he tossed that
                                         gun. It was because he was guilty. And I ask you to
                                         return that verdict to him at the end of this trial.

N.T., May 7, 2013 at 25; also see Statement at page 3.

           Here, when the ADA's comments are considered within the proper context and not in a

vacuum, it is clear that the ADA asked the jury to find Defendant guilty after applying their

common sense and evaluating the evidence. Just prior to the ADA's excerpted statement, the

ADA stated: "I'm asking you to evaluate what (the witnesses] say on the stand. To what extent

does their testimony match the physical evidence that the Commonwealth provides you?

And ... to use your common sense." Id.




2   Defendant incorrectly identifies the page numbers 52-53, from N.T., May 7, 2013.

                                                           7
       Alternatively, it the AD A's statements are seen as an improper expression of her personal

opinion concerning Defendant's guilt, this amount to a harmless error in light of the

overwhelming evidence of Defendant's guilt presented at trial including eyewitness accounts

from the Philadelphia Police.

               D. The prosecutor's introduction of prior bad acts

       Introducing "[ e ]vidence of a prior conviction ... is both proper and necessary when a

defendant is tried on charges stemming from an alleged violation of§ 6105." Commonwealth v.

Payne, 463 A.2d 45, 456 (Pa. Super. Ct. 1983). The Commonwealth may use any proper

evidence to prove its case, and does not have to accept Defendant's stipulations. Commonwealth

v. Stanley. 446 A.2d 583, 588 (Pa. 1982). The admissibility of evidence is entrusted to the

discretion of the trial judge, and will not be disturbed on appeal unless an abuse of discretion is

shown. Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). An abuse of discretion is

not merely an error of judgment it is overriding or misapplying the law; manifest

unreasonableness; the result of bias, prejudice, ill-will or partiality. Commonwealth v. Stollar, 84

A.3d 635, 650 (Pa. 2014).

       Here, the ADA was permitted to tell the jury that Defendant had been convicted of a

felony, which was stipulated to by and between counsel. See N.T., May 7, 2013 at 19-20; 167-

168. As such, there was no prosecutorial misconduct on the part of the ADA in this case.

Moreover, on direct examination by his own counsel, Defendant admitted to his prior

convictions for robbery and burglary. See N.T., May 7, 2013 at 117.




                                                  8
                                    -· -,                                      { ... ·_·
                               ('       !                                      \.




                   E. The prosecutor's introduction of drugs to the jury

           Finally, Defendant argues that the jury was diverted from its duty to decide the case on

the evidence when the ADA questioned Officer Watts about recovering drugs form the scene.

           In his Statement, Defendant objects to the following exchange between the ADA and

Philadelphia Police Officer Watts.3

           Ms. Gopal:                       Did you place the narcotics on the property receipt
                                            yourself?

           Officer Watts:                   Yes.

           Ms. Gopal:                       And if you could just read to the jury, one, and
                                            description of evidence?

           Officer Watts:                   Okay. Description of evidence: [o]ne brown colored
                                            blunt cigarette containing a green weed and seedy
                                            substance, alleged marijuana, in a white colored
                                            napkin.

N.T., May 7, 2013 at 94; also see Statement at page 3.

           Here, Defendant did not object to the above testimony of Officer Watts during trial. See

N.T., May 7, 2013 at 90. Further, Defendant did not object to any previous evidence of

Defendant's involvement with drugs brought to the jury's attention through the

Commonwealth's witnesses. First, Officer Hulmes testified that Defendant emptied the contents

of a marijuana blunt and then filled it with marijuana. N.T., May 7, 2013 at 37-38. Second,

Officer Bates testified that Defendant discarded a "brown cigarette" after he saw Philadelphia

Police approaching. Id. At 63. And finally, Officer Watts testified to recovering drugs from the

sidewalk, which Defendant now objects on appeal. Id. at 93-94.

           Accordingly, the Court does not discern an appealable because Defendant's counsel did

not object at trial, and so this argument is waived for purposes of direct appeal


3   Defendant incorrectly identifies the page number 197, from N.T., May 7, 2013.

                                                             9
.•

     IV.      Conclusion

           For all of the above reasons, the Court's judgment of sentence should be affirmed.




                                                                                 BY THE COURT:
                                                                           {),~)h~
                                                                                    BUTCHART, J.




                                                   10
                                                                               (
(\   ,.   '




                                        IN THE COURT OF COMMON PLEAS
                                    FIRSTJUDICIAL DISTRICT OF PENNSYLVANIA
                                       TRIAL DIVISION - CRIMINAL SECTION

                     COMMONWEALTH OF                                     CP-51-CR-0011361-2008
                     PENNSYLVANIA

                                                                         SUPERIOR COURT
                              vs.                                        NO. 3337 EDA 2014


                     GARY WILSON


                                                      PROOFOF SERVICE


                     I certify that I am this 11th day of May, 2015, serving the forgoing Opinion on the persons

              indicated below, by first class and/or certified mail.

                 Appellant:                  Gary Wilson, BE-9008
                                             SCI Houtzdale
                                             P.O. Box 1000
                                             Houtzdale, PA 16698-1000

              Type of Service:       () Personal () First Class Mail (X) Other, please specify: Certified Mail

              District Attorney:             Hugh Burns, Assistant District Attorney
                                             Chief, Appeals Unit
                                             Three South Penn Square
                                             Philadelphia, PA 19107

              Type of Service:       () Personal (X) First Class Mail () Other, please specify:




                                                                          D. Gar Bogdan, Esquire
                                                                          Law Clerk to the Honorable
                                                                          Ann M. Butchart
