Com. v. Watson, A.

J-S33024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

ALEX WATSON, A/K/A- LESLIE
WILLIAMS, A/K/A- TREMANE BOSTIC,
A/K/A- TREMONE BOSTIC No. 1694 EDA 2019

Appellant

Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001353-2017

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 04, 2020

Alex Watson (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of first-degree murder, firearms not to be

carried without a license, carrying a firearm on public streets in Philadelphia,

and possessing an instrument of crime (PIC).1 We affirm.

On May 18, 2015, Appellant shot and killed Alex Fauntelroy (Victim).

Appellant was charged with the above crimes and appeared for a jury trial on

October 30, 2018. However, the jury could not reach a unanimous verdict

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a), 6106(a), 6108, and 907(a).
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and the trial court declared a mistrial. In advance of his second trial, Appellant

filed a motion to proceed pro se, which the trial court granted.2

The second jury trial commenced on April 29, 2019. The court provided

a detailed account of the evidence presented at trial:

On May 18, 2015, at approximately 10:12 p.m., [Victim]
was with his sister, Shaheen Ahmed, at her home on Allison Street
in Philadelphia. Before the [Victim] left Ahmed’s home, he told
her he was “going to meet Dil at Master and Conestoga.” Ahmed
did not know Dil’s real name, but knew he was “Aaron’s little
brother, Leslie.” [Appellant], whose legal name is Leslie Williams,
also lived on Allison Street. Both [Appellant] and Ahmed’s homes
are about two blocks from the 1300 block of Conestoga Street,
where [Victim’s] murder later occurred.

At approximately 11:41 p.m., on the 1300 block of
Conestoga Street, between Master and West Thompson Streets,
[Appellant shot Victim] eighteen times, killing him. Within
seconds of hearing the gunshots, Philadelphia Police Officers
Michael Carey and Michael Paige arrived at the crime scene, where
[Victim] was lying on his back with no sign of life. They observed
multiple fired cartridge casings []. [Victim], who suffered from
multiple gunshot wounds to the chest, was pronounced dead at
the scene. The officers secured the crime scene and waited for
the other responding officers to arrive.

Philadelphia Police Officers Andre Dunkley and Marvin
Wilkins arrived to the scene about one minute after Officers Carey
and Paige. Officer Dunkley observed the 18 [fired cartridge
casings] on the ground trailing from [Victim’s] body, in the middle
of the block, to the rear of a silver Buick Enclave that was parked
at the end of the block, near the corner of Conestoga and West
Thompson Street. When looking inside the passenger side
window, Officer Dunkley saw a silver handgun with a black handle
and the slide locked back. At 12:40 a.m., the Philadelphia Crime
Scene Unit arrived and recovered all 18 [fired cartridge casings]
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2 Appellant’s court-appointed counsel from his first trial acted as standby
counsel during his second trial, and represents Appellant in this appeal. See
Trial Court Opinion, 8/15/19, at 1 n.1.

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from the street, [Victim’s] cell phone, and a 9 millimeter [R]uger
handgun from the car.

Around 2:45 a.m., Officer Wilkins, who remained at the
scene to guard the Buick, observed a [Nissan] car pull up to the
corner of Conestoga and West Thompson Streets. Quinn Wise got
out of the car, walked towards the Buick and attempted to open
the front driver’s side door. When stopped by officers, Wise
claimed it was her vehicle. When questioned by detectives at the
Homicide Unit, Wise stated that her daughter’s father, [Appellant],
told her that the vehicle was on Conestoga Street and asked her
to go get it for him. A swab of Wise’s DNA was taken.

Keith Schofield arrived in the Nissan with Wise. During an
interview with Homicide Detectives, Schofield told detectives that
earlier in the evening, he was near Fairmount Park on Kelly Drive
with Diashauna Coleman. At approximately 1:34 a.m., after
Schofield drove Coleman home, he returned a missed call from
[Appellant]. [Appellant] asked Schofield to meet him on Master
Street between 52nd and 53rd Street. When Schofield arrived,
[Appellant] proclaimed, “I f***ed up . . . I might have f***ed up.”
[Appellant] then instructed Schofield to take Wise to get the car
from Conestoga Street. Schofield identified [Appellant] in a
photograph as the individual that told him to retrieve the car.

The Homicide Unit focused their investigation on
[Appellant]. On November 20, 2015, in an attempt to locate
[Appellant] and obtain his DNA, Philadelphia Detective Joseph
Bamberski and United States Marshals Fugitive Task Force Agent
Timothy Stevenson went to 1336 N. Allison Street, [Appellant’s]
approved parole residence. [Appellant’s] mother and brother,
Aaron Williams, indicated that [Appellant] was not home. On
November 23, 2015, Detective Bamberski and Agent Stevenson
went back to [Appellant’s] address, and were again unsuccessful
in locating him. On February 24, 2016, [Appellant] was located
by Detective Bamberski and Agent Stevenson at an apartment on
the 5100 block of Regent Street in Philadelphia. In furtherance of
their investigation, [Appellant] was brought to the Homicide Unit
for questioning and a buccal swab.

A search of [Appellant’s] cell phone [] revealed that on
November 21, 2015, [Appellant] had taken a screenshot of a
conversation in which he was discussing the United States
Marshals waiting outside his home with a search warrant. On

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November 27, 2015, [Appellant] downloaded a PDF of the “Most
Wanted” list from the Pennsylvania State Police website.

Detective [James] Dunlap reviewed the phone records for
[Appellant’s] phone number and discovered that on the night of
the murder between 10:01 p.m. and 1:53 a.m., [Appellant’s]
phone was within the geographical area of the crime scene.

Brittany Rehrig, a forensic scientist at the Philadelphia
Forensic Lab, conducted DNA analysis of the handgun and the
Buick. [Appellant’s] DNA was found on the handgun’s slide, grip,
and trigger, and the Buick’s steering wheel. Wise’s DNA was
detected as a major source on the handgun’s magazine. Her DNA
was also found on the gearshift and radio control area. The results
for [Appellant’s] DNA on the front and rear driver’s side door
handles, magazine, gearshift, and radio control area were
determined to be inconclusive, but his DNA was not excluded as a
source. A defense expert, Katherine Cross, concurred with
Rehrig’s overall conclusions that [Appellant’s] DNA was present as
a major source on the handgun. On December 13, 2016, after
[Appellant’s] DNA was confirmed as a match, an arrest warrant
was prepared.

According to Police Officer Kelly Walker, an expert in the
Firearms Identification Unit, all 18 [cartridge casings] were fired
from the same handgun, the 9mm Ruger recovered from the
Buick. The firearm was capable of holding 18 bullets, 17 in the
magazine and one in the chamber.

At trial, the Commonwealth presented a Certificate of Non-
Licensure showing that on May 18, 2015, [Appellant] was not
licensed to carry a firearm.

[Appellant] presented two lifelong friends as witnesses,
Joshua Edwards and Bayyan Finney, who attempted to provide an
alibi defense. Finney, who was in custody at the time of trial, also
testified that the night before his testimony, he made a phone call
to his friend, “Mock,” who was on the phone with [Appellant] at
the time of his call. Mock put Finney on speakerphone so the three
of them could have a conversation. [Appellant] asked Finney to
trade shoes with him before court, because Finney had dress
shoes, and [Appellant] did not want to wear his Reebok Classic
sneakers to trial. During cross-examination, Finney denied that

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[Appellant] attempted to bribe him with a new pair of shoes in
exchange for his testimony at trial.

Trial Court Opinion, 8/15/19, at 2-6 (citations to notes of testimony and

footnotes omitted).

On May 3, 2019, the jury convicted Appellant of the aforementioned

crimes. That same day, the trial court sentenced Appellant to life in prison

without parole. Appellant filed a timely post-sentence motion, which the trial

court denied on May 13, 2019. This timely appeal followed. Both Appellant

and the trial court have complied with Pennsylvania Rule of Appellate

Procedure 1925.

Appellant presents four evidentiary issues for our review:

[1.] Is [Appellant] entitled to an arrest of judgment and/or new
trial in the above-captioned matter on the ground the evidence
was insufficient to sustain the verdict in light of the numerous
inconsistencies in the Commonwealth’s testimony, including but
not limited to, ballistic evidence showing the presence of a second
shooter, cell tower records showing [Appellant] to be outside the
sector encompassing the crime scene at the time of the murder
and the failure of the DNA evidence to exclude the possibility of
secondary transfer?

[2.] Is [Appellant] entitled to an arrest of judgment and/or new
trial in the above-captioned matter on the ground that the jury’s
verdict was against the weight of the evidence in light of the
numerous inconsistencies in the Commonwealth’s testimony,
including but not limited to, ballistic evidence showing the
presence of a second shooter, cell tower records showing
[Appellant] to be outside the sector encompassing the crime scene
at the time of the murder and the failure of the DNA evidence to
exclude the possibility of secondary transfer?

[3.] Is [Appellant] entitled to a new trial due [to] the trial court’s
improper admission of evidence that [Appellant] was on state
parole at the time of the killing?

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[4.] Is [Appellant] entitled to a new trial due to the trial court’s
failure to grant a mistrial after the prosecution improperly stated
that [Appellant] had attempted to bribe an alibi witness with shoes
when the prosecutor was aware that prison phone calls in its
possession did not support this inference[?]

Appellant’s Brief at 3-4 (reordered for ease of disposition).

Appellant’s first two issues challenge the sufficiency and weight of the

evidence. We reiterate:

The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
(Pa. 1983), whereas a claim challenging the weight of the
evidence if granted would permit a second trial. Id.

A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. Commonwealth v. Santana, 333 A.2d 876
(Pa. 1975). When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v.
Chambers, 599 A.2d 630 (Pa. 1991).

A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Commonwealth v.
Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial court
is under no obligation to view the evidence in the light most
favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.11.

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Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations

modified). “A true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006)

(citation omitted).

In challenging the sufficiency of the evidence, Appellant assails five

facets of the evidence presented at trial, asserting: 1) Appellant’s statements

to Wise and Schofield never specifically indicated he was the killer and “were

both vague assertions that could be equally consistent with references to non-

criminal activity”; 2) the Commonwealth’s decision not to “substrate” failed to

eliminate the possibility that the DNA on the murder weapon may have come

from a secondary transfer; 3) the cell tower evidence was equally consistent

with Appellant “being at the crime scene, his residence or the Mark V Lounge”;

4) Victim’s sister’s testimony was “extremely suspect”;3 and 5) the medical

examiner’s autopsy report and testimony clearly raised the possibility of a

second shooter. Appellant’s Brief at 18-19.

We find no merit to Appellant’s sufficiency claim. Notably, to preserve

a challenge to the sufficiency of the evidence, an appellant’s Rule 1925(b)

statement must specify the element or elements of a crime alleged to be

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3 This claim goes to weight, as opposed to sufficiency. See Commonwealth
v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An argument regarding the
credibility of a witness’[] testimony goes to the weight of the evidence, not
the sufficiency of the evidence.”).

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insufficiently proven. Commonwealth v. Brown, 186 A.3d 985, 990 (Pa.

Super. 2018) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009)). “Such specificity is of particular importance in cases where . .

. the appellant was convicted of multiple crimes, each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Id. (citation omitted).

Instantly, Appellant failed in his Rule 1925(b) statement to specify which

elements of which crime(s)/conviction(s) he is challenging. See Appellant’s

Concise Statement, 7/8/19, at 1 (unnumbered). Appellant’s sufficiency claim

is likewise underdeveloped in his brief. See Appellant’s Brief at 17-19.

Although the procedural posture of this case and Appellant’s evidentiary

assertions convey a strong inference that Appellant, at a minimum, is

challenging the sufficiency of the evidence pertaining to his first-degree

murder conviction, Appellant does not expressly say so, and does not identify

any of his four convictions and their statutory elements. Our review is

hindered by the deficiency, from which we could arguably find waiver.

However, upon review of the record, and particularly the notes of testimony,

we are in agreement with the trial court as to the sufficiency of the evidence

supporting all four of Appellant’s convictions.

The trial court succinctly and capably addressed the statutory elements

of Appellant’s four convictions, explaining:

Evidence presented at trial is sufficient when, viewed in the light
most favorable to the Commonwealth as the verdict winner, the

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evidence and all reasonable inferences derived therefrom are
sufficient to establish all elements of the offense beyond a
reasonable doubt. Commonwealth v. Baumhammers, 960
A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain its
burden of proving each element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011)
(citing Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.
Super. 2010)). The fact-finder is free to believe all, part, or none
of the evidence, and credibility determinations rest solely within
the purview of the fact-finder. Commonwealth v. Treiber, 874
A.2d 26, 30 (Pa. 2005).

First-Degree Murder is any unlawful killing committed with
malice and the specific intent to kill. 18 Pa.C.S. § 2502(a).
Evidence is sufficient to sustain a First-Degree Murder conviction
if the Commonwealth established, beyond a reasonable doubt,
that (1) a person was unlawfully killed; (2) the defendant killed
the person; and (3) the defendant acted with a specific intent to
kill. Commonwealth v. Buford, 101 A.3d 1182, 1186 (Pa.
Super. 2014) (citing Commonwealth v. Ramos, 827 A.2d 1195,
1196 (Pa. 2003)). An intentional killing is a “willful, deliberate,
and premeditated killing.” 18 Pa.C.S. § 2502(d). Malice and
specific intent to kill may both be inferred from a defendant’s use
of a weapon on a vital part of the victim’s body. Buford, 101 A.2d
at 1186; Commonwealth v. Thomas, 54 A.3d 332, 335-36 (Pa.
2012).

There is no question that [Appellant] acted with the specific
intent to kill [the Victim]. In total, [Appellant] deliberately pulled
the trigger eighteen times, and hit the decedent with each and
every bullet. N.T. 5/1/2019 at 172. The decedent died as a result
of these gunshot wounds. Id. at 178. After killing the decedent,
knowing that he had “f***ed up,” [Appellant] tried to cover his
tracks by soliciting Schofield and Wise to retrieve the Buick from
the crime scene. [Appellant’s] DNA was found on the handgun’s
slide, grip, and trigger. N.T. 5/1/2019 at 89-90. This handgun,
which was recovered from the Buick, was the same gun used to
shoot the decedent eighteen times. N.T. 5/2/2019 at 81.
[Appellant’s] cell phone was also located in the same geographical
area as the crime scene at the time of the murder. The evidence
presented at trial was more than sufficient to support a conviction
for First-Degree Murder.

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To sustain a conviction for VUFA 6106, the Commonwealth
must prove beyond a reasonable doubt that the defendant carried
a firearm in any vehicle or concealed on or about his person,
except in his place of abode or fixed place of business, without a
valid and lawfully issued license. See 18 Pa.C.S. § 6106(a). To
convict a defendant of VUFA 6108, the Commonwealth must prove
beyond a reasonable doubt that the defendant carried a firearm
at any time upon the public streets or upon any public property in
a city of the first class without a license to carry a firearm or
without a licensing exemption. See 18 Pa.C.S. § 6108. To sustain
a conviction for PIC, the Commonwealth must prove beyond a
reasonable doubt that the defendant possessed a firearm or other
weapon concealed upon his person with intent to employ it
criminally. See 18 Pa.C.S. § 907(b).

Here, the evidence clearly established that [Appellant]
carried the firearm in the Buick Enclave, as the gun was recovered
from the floor mat inside the vehicle. Further, [Appellant] carried
the gun on the street when he removed it from the vehicle, and
used it to shoot the decedent eighteen times. The Commonwealth
also presented a certificate of non-licensure for [Appellant],
establishing that he was not licensed to carry a firearm on May
18, 2015, the date of the murder. N.T. 5/2/2019 at 134-136; see
also Commonwealth Exhibit C-106. Therefore, [Appellant’s]
convictions for VUFA 6106, VUFA 6108, and PIC w[ere] sufficiently
supported by the evidence presented at trial.

Trial Court Opinion, 8/15/19, at 9-11.

Consistent with the foregoing, we reject Appellant’s issue regarding the

sufficiency of the evidence, and turn to his claim regarding weight.4, 5 See

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4Again, although Appellant fails to expressly identify which convictions he is
challenging, his argument indicates—and the logical inference—is that, at a
minimum, he is assailing his conviction of first-degree murder. See
Appellant’s Brief at 16-17.

5 Appellant preserved his weight claim in compliance with Pa.R.Crim.P. 607 by
raising it with the trial court in a post-sentence motion. Appellant’s Post-
Sentence Motion, 5/10/19, at 1 (unnumbered).

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Appellant’s Brief at 16-17. Appellant references “numerous inconsistencies in

the Commonwealth’s testimony[.]” Id. at 16. Specifically, Appellant claims

the trial court abused its discretion in dismissing his motion for a new trial

because:

[Appellant’s] statements never directly indicated he was the killer.
. . . [T]he Commonwealth’s decision not to use a substrate failed
to eliminate the possibility that the DNA on the murder weapon
may have come from secondary transfer. . . . [T]he testimony of
[Victim’s] sister was extremely suspect[.] . . . [T]he evidence
clearly raised the possibility of a second shooter[.]

Appellant’s Brief at 16-17.

We have explained:

Appellate review of a weight claim is a review of the exercise of
discretion, not the underlying question of whether the verdict is
against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted,

emphasis in original). To allow an appellant “to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Commonwealth v.

Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation omitted).

The trial court explained:

[Appellant’s] argument that the verdict was against the weight of

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the evidence ignores the overwhelming evidence presented
against him at trial. [Appellant’s] DNA was found on the handgun
and in the Buick, and his cell phone was located in the same
geographical area as the crime scene at the time of the murder.
[Appellant’s] weight of the evidence claim is without merit as the
verdict was consistent with the evidence and a far cry from
shocking one’s sense of justice.

Trial Court Opinion, 8/15/19, at 12.

The trial court did not abuse its discretion. As this Court has repeatedly

stated, “[t]he Commonwealth may sustain its burden by means of wholly

circumstantial evidence.” Commonwealth v. Franklin, 69 A.3d 719, 722

(Pa. Super. 2013) (citation omitted). In rejecting Appellant’s weight claim,

the trial court cites circumstantial evidence to support the jury’s determination

that Appellant committed first-degree murder. Trial Court Opinion, 8/15/19,

at 12. In addition to the evidence referenced by the trial court, the jury heard

evidence that Appellant’s legal name is Leslie Williams. N.T., 5/1/19, at 38.

On the night he was killed, the Victim told his sister that he was going to meet

“Leslie.” N.T., 5/2/19, at 26-27. After hearing multiple gunshots, responding

police officers found the Victim lying on the ground with multiple gunshot

wounds. N.T., 4/29/19, at 268.

Officer Dunkley testified that 18 fired cartridge casings were on the

ground near the Victim’s body, and led “from his body to the rear of a [silver]

Buick SUV.” Id. at 269. Inside the Buick, Officer Dunkley found a Ruger 9-

millimeter handgun with its slide in the locked back position, and capable of

holding 18 rounds. Id.; N.T., 4/30/19, at 27. When the handgun was tested,

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Appellant’s DNA was present on its slide, grip, and trigger. Id. at 89-90.

Detective Dunlap testified that cell phone records indicated that Appellant’s

phone was in the area of the crime scene when the Victim was shot. N.T.,

5/2/19, at 76-82.

In his weight argument, Appellant essentially asks us to reassess and

reweigh the evidence. See Appellant’s Brief at 16-17. However, it is well

settled that we may not substitute our judgment for that of the factfinder —

whether a jury or the trial court — because it is the province of the factfinder

to assess the credibility of the witnesses and evidence. See Commonwealth

v. DeJesus, 860 A.2d 102 (Pa. 2004); Commonwealth v. Johnson, 668

A.2d 97, 101 (Pa. 1995) (“an appellate court is barred from substituting its

judgment for that of the finder of fact.”). The jury in this case heard ample

evidence from which to conclude that Appellant committed first-degree

murder when he shot and killed the Victim. Therefore, the trial court properly

exercised its discretion in determining that “the verdict was consistent with

the evidence and a far cry from shocking one’s sense of justice.” Trial Court

Opinion, 8/15/19, at 12. Appellant’s weight claim does not merit relief.

In his third issue, Appellant argues that the trial court erred in admitting

the testimony of United States Marshals Fugitive Task Force Agent Timothy

Stevenson. See Appellant’s Brief at 20-21. Appellant asserts that testimony

“of such limited probative value simply [does] not outweigh the prejudicial

value of evidence which clearly demonstrated that [Appellant] was on [s]tate

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[p]arole, such as references to [Appellant’s] ‘Department of Corrections name’

and his[] ‘approved parole residence.’” Id. at 21.

It is well settled that the admission of evidence is solely within the
discretion of the trial court, and a trial court’s evidentiary rulings
will be reversed on appeal only upon an abuse of that discretion.
An abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.

Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016) (citations

omitted). Our Supreme Court has explained generally, “all relevant evidence,

i.e., evidence which tends to make the existence or non-existence of a

material fact more or less probable, is admissible, subject to the

prejudice/probative value weighing which attends all decisions upon

admissibility.” Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007). An

exception to this rule is that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Pa.R.E.

404(b)(1). Evidence may be admissible for a purpose other than to show

criminal propensity, “such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.

404(b)(2).

Even where an exception to Rule 404(b)’s prohibition against evidence

of prior bad acts applies, the evidence is admissible “only if the probative value

of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

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404(b)(2). “Unfair prejudice means a tendency to suggest decision on an

improper basis or to divert the jury’s attention away from its duty of weighing

the evidence impartially.” Pa.R.E. 403 (comment).

Here, the trial court explained:

At trial, Agent Timothy Stevenson testified that he knew
[Appellant] by his legal name, Leslie Williams, as well as his name
in the Department of Corrections database, Tremaine Bostic. On
two different dates in November of 2015, Agent Stevenson went
to 1336 North Allison Street, [Appellant’s] approved parole
residence, in an attempt to locate [Appellant]. Agent
Stevenson’s testimony was offered to the jury to explain
law enforcement’s efforts to locate [Appellant] and obtain
his DNA.

With [Appellant’s] agreement, this [c]ourt provided the
following jury instruction to ensure that the jury considered this
evidence only for lawful purposes:

Now, you also may have heard evidence suggesting
that [Appellant] was guilty of improper conduct for
which he is not on trial. I am speaking of the
testimony to the effect that [Appellant] was on parole
prior to the instant matter[.] . . . Understand that the
evidence that [Appellant] was on parole is before you
for a limited purpose. That is for the purpose of
tending to show the course of the police
investigation[.] . . . Understand that the evidence
must be considered by you for these reasons alone,
and for no other purposes. In other words, you must
not regard this evidence as showing that [Appellant]
is a person every [sic] bad character or criminal
tendencies from which you might be inclined to infer
guilt.

[N.T., 5/3/19, at 119-20].

The law presumes that the jury will follow the instructions
of the court. This instruction properly guided the jury’s
deliberations on how to consider the evidence that [Appellant] was
on parole at the time of the instant offense, and specifically

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instructed the jury that the evidence could not be considered to
judge [Appellant’s] character or criminal tendencies. The
introduction of this evidence was not in error, and this [court]
provided a limiting instruction on its purpose. This claim lacks
merit.

Trial Court Opinion, 8/15/19, at 7-8 (some citations to notes of testimony

omitted, emphasis added).

We agree with the trial court. The details of Appellant’s “prior crimes,

wrongs or acts” were not introduced; rather, it was Appellant’s parole status

that was relevant to the police investigation and location of Appellant.

Further, any prejudice was ameliorated by the trial court’s instruction to the

jury. See Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009)

(“[T]he trial court gave the jury cautionary instructions concerning the prior

bad acts evidence; the court advised the jury of the limited purpose for which

the evidence was introduced and that they could not consider the evidence as

proof that [a]ppellant was a person of bad character or had criminal

tendencies. We conclude that these instructions ameliorated any undue

prejudice caused by the introduction of the prior bad acts.”) (citations

omitted).

“Jurors are presumed to follow the trial court’s instructions,”

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), and “[e]vidence

will not be prohibited merely because it is harmful to the defendant.”

Commonwealth v. Gad, 190 A.3d 600, 605 (Pa. Super. 2018) (citation

omitted). Here, the trial court’s jury instruction “minimized the likelihood that

the [other acts] evidence inflamed the jury or caused it to convict Appellant

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on an improper basis.” Hairston, 84 A.3d at 666. The trial court did not

abuse its discretion, and thus we find no merit to Appellant’s third issue.

Finally, Appellant challenges the trial court’s denial of his motion for

mistrial. Appellant argues “a new trial is warrant[ed] by the

[Commonwealth’s] remarks in closing argument that [Appellant] attempted

to bribe alibi witness, Bayyan Finney, with the promise of a pair of sneakers.”

Appellant’s Brief at 15.

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

Commonwealth v. Baldwin, 158 A.3d 1287, 1293 (Pa. Super. 2017)

(citation omitted).

With regard to a claim of prosecutorial misconduct during closing

argument, it is well-settled that:

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[t]he prosecutor is allowed to vigorously argue his case so long as
his comments are supported by the evidence or constitute
legitimate inferences arising from the evidence. In considering a
claim of prosecutorial misconduct, our inquiry is centered on
whether the defendant was deprived of a fair trial, not deprived of
a perfect one. Thus, a prosecutor’s remarks do not constitute
reversible error unless their unavoidable effect was to prejudice
the jury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively
and render a true verdict.

Commonwealth v. Ragland, 991 A.2d 336, 340-41 (Pa. Super. 2010)

(citations omitted).

At trial, alibi witness Bayyan Finney testified that he had spoken with

Appellant by telephone the prior evening. N.T., 5/2/19, at 219. Finney

testified that during the conversation, he and Appellant discussed swapping

shoes for trial. Id. at 221-222. Based on Finney’s testimony, the

Commonwealth made the following statement during closing arguments:

And again, Ladies and Gentlemen, there’s still more. Think about
it. Think about what happened yesterday. The alibi witnesses.
This is a big deal. It is a big deal that Bayyan Finney got on the
stand and lied to you. [Appellant] thought he said something like
maybe he thought it was bad that we talked. It was bad that they
talked. And he admitted it. I mean he lied, and he lied, and he
lied, and then he finally admitted it. This was a quid pro quo,
Ladies and Gentlemen. This is a huge deal. This shakes the
foundations of our society. This shakes the foundations of the
criminal justice system. You cannot be calling an alibi witness,
and then calling the alibi witness the night before you put that
witness on the stand talking about giving that witness your shoes.

N.T., 5/3/19, at 96-97. Defense counsel immediately objected, and the trial

court instructed the jury that “your recollection of the facts will control.” Id.

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at 97. After closing arguments, Appellant’s counsel made an oral motion for

a mistrial, which the trial court denied. Id. at 102-104.

The trial court explained its denial of Appellant’s request:

[Appellant] alleges that this [c]ourt erred by not granting a
mistrial after the Commonwealth [indicated] that [Appellant]
attempted to bribe an alibi witness with shoes, when the
[Commonwealth] was aware that prison phone calls did not
support this inference. . . .

After the Defense rested, the Commonwealth sought to offer
rebuttal evidence in the form of prison phone calls between
[Appellant] and Finney to show that [Appellant] bribed Finney with
new shoes in exchange for his testimony. This [c]ourt, outside of
the presence of the jury, listened to phone calls between
[Appellant] and Finney, where [Appellant] indicated that he would
give Finney a new pair of shoes when he came to testify. After
hearing the phone calls, the [Commonwealth] opted not to offer
them into evidence.

During closing arguments, the [Commonwealth] referenced
Finney’s testimony and alleged that he lied on the stand about his
conversation with [Appellant] on the night before trial. This
[c]ourt sustained [Appellant’s] objection, and reminded the jury
that their recollection of the facts should control. At the conclusion
of closing arguments, [Appellant] moved for a mistrial, on the
basis that the [Commonwealth] made false inferences that
[Appellant] tried to bribe Finney with a new pair of shoes. Based
on Finney’s testimony that [Appellant] wanted to trade shoes with
him, it was reasonable for the jury to infer that [Appellant] was
attempting to bribe Finney with new shoes.

This [c]ourt properly instructed the jury that their
recollection of the facts, which included Finney’s testimony,
controlled. During its jury charge, this [c]ourt again instructed
the jury that they are “not bound by this [court’s] recollection nor
by the recollection of the evidence as it was presented to you in
arguments today.” Further, based on the overwhelming evidence
against [Appellant], he was not deprived of a fair trial by the
[Commonwealth’s] single comment during closing argument. . . .

Trial Court Opinion, 8/15/19, at 8-9.

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Again, we discern no error. From Finney’s testimony, the

Commonwealth’s statements during closing constituted “a legitimate

inference” from the evidence, Ragland, 991 A.2d at 340, i.e., that Appellant

attempted to bribe Finney for his alibi testimony given the content of their

phone conversation the night before Finney testified. Moreover, the trial

court, “in an abundance of caution, provided the jury with a cautionary

instruction.” Trial Court Opinion, 8/15/19, at 9. On this record, we cannot

conclude that Appellant was deprived of a fair trial, or that the trial court erred

in denying Appellant’s motion for a mistrial.

For the above reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/4/20

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