J-A20019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

FEROCK SMITH 

 Appellant No. 188 EDA 2013 

Appeal from the Judgment of Sentence December 17, 2012 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006875-2009 

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 23, 2014 

 Appellant, Ferock Smith, appeals from the December 17, 2012 

aggregate judgment of sentence of 50 years to life imprisonment after a jury 

found him and his co-defendants, Mikechel Brooker and Alonzo Ellison1

, 

guilty of first-degree murder, criminal conspiracy, firearms not to be 

possessed without a license, and possession of an instrument of a crime 

(PIC).2 After careful review, we affirm.3

____________________________________________ 

1 Brooker’s appeal is currently pending in this Court at 96 EDA 2013, and 

Ellison’s appeal is currently pending at 2564 EDA 2012.

2

 18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively. 

3

 On July 17, 2014, Appellant filed an application for post-submission 

communication pursuant to Pennsylvania Rule of Appellate Procedure. 2501. 

Said application is hereby granted. 
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In its opinion authored in Ellison’s appeal, the trial court summarized 

the relevant facts and procedural history of this case as follows. 

On July 18, 2008, Barry Jacobs, Jr. (“Jacobs”) 

was shot and killed on the 8700 Block of Glenoch 

Place in Philadelphia, by [Alfonso Ellison (Ellison)],

[Appellant] and [Mikechel] Brooker (“Brooker”) in an 

apparent dispute over drug territory after Antoniette 

Gray (“Gray”) refused to purchase drugs from 

[Ellison]. When Gray[,] shortly thereafter[,] 

purchased drugs from Jacobs, [Ellison], [Appellant], 

and Brooker shot Jacobs multiple times. At trial, 

Gray testified that she did not remember the 

shooting and her July 20, 2008[] statement to police 

was admitted. In her statement, Gray identified 

[Ellison], [Appellant], and Brooker as the three 

people who shot Jacobs. Gray also saw [Ellison], 

[Appellant], and Brooker the next day and heard 

them laughing about shooting Jacob[s]. Another 

eyewitness, Jeffrey Gould (“Gould”), testified that he 

saw someone standing over Jacobs and shoot him in 

the head. Gould had identified that person as 

[Ellison] in a July 18, 2008 statement to police, 

which was introduced at trial. 

At trial, Eleanore Sampson (“Sampson”) 

testified that she did not remember the events after 

the shooting and her July 19, 2008 statement to 

police was admitted. In her statement, Sampson 

stated that [Ellison], [Appellant], and Brooker came 

to her apartment on the night of July 18, 2008. 

Sampson stated that she let [Ellison], [Appellant], 

and Brooker use her apartment because they gave 

her drugs. [Ellison], [Appellant] and Brooker had a 

conversation in Sampson’s apartment that night, 

during which she heard [Appellant] say he shot 

Jacobs. [Appellant] and Brooker had handguns with 

them which they placed in Sampson’s apartment. 

Sampson asked [Ellison] to remove the guns from 

her apartment and [Ellison] took a 9 millimeter 

handgun from [Appellant]. Brooker and [Appellant] 

left Sampson’s apartment shortly thereafter, at 

which time, [Ellison] gave the 9 millimeter handgun 
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back to [Appellant]. [Ellison] stayed and slept at 

Sampson’s apartment and was arrested leaving from 

the rear of the apartment when the police were 

knocking at the front door. A .32 caliber handgun 

was found during a search of Sampson’s apartment 

after [Ellison]’s arrest. ...

Trial Court Opinion, 2564 EDA 2012, 12/26/12, at 2-3.

 On June 1, 2009, the Commonwealth filed an information charging 

Appellant with the above-mentioned offenses, as well as one count each of 

possession of a firearm by a minor and carrying firearms in public in 

Philadelphia.4

 On July 10, 2012, Appellant proceeded to a jury trial. At the 

conclusion of said trial, on July 16, 2012, the jury found Appellant guilty of 

first-degree murder, criminal conspiracy, firearms not to be possessed 

without a license, and PIC. The Commonwealth nolle prossed the remaining 

two charges. On December 17, 2012, the trial court imposed an aggregate 

sentence of 50 years to life imprisonment.5 Appellant did not file a postsentence motion. On January 15, 2013, Appellant filed a timely notice of 

appeal.6

____________________________________________ 

4

 18 Pa.C.S.A. §§ 6110.1(c) and 6108, respectively. 

5

 The trial court imposed 50 years to life imprisonment for first-degree 

murder and six to 12 years’ imprisonment for criminal conspiracy, to run 

concurrently to the murder sentence. The trial court imposed no further 

penalty for the PIC and firearm charges. 

6

 On January 17, 2013, the trial court entered an order directing Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Appellant timely filed said statement on February 27, 

(Footnote Continued Next Page) 
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 On appeal, Appellant raises seven issues for our review. 

I. Whether the evidence was so contradictory and 

 unreliable that the verdicts must be set aside 

 because they are based on surmise or 

 conjecture? 

II. Whether a conviction based on unreliable, 

 unsworn statements not given in open court 

 violates the Fourteenth Amendment to the 

 Constitution of the United States? 

III. Whether the [trial court] erred when it 

 admitted evidence that Appellant was found in 

 possession of a 9 mm. handgun when expert 

 testimony conclusively established based on 

 analysis of the cartridge casings that the 

 murder weapon was a .380 caliber pistol, and 

 definitely not a 9 mm. pistol? 

IV. Whether the [trial] court erred when it failed to 

 grant a mistrial arising from the 

[Commonwealth]’s repeated assertions made 

 without factual support that Appellant was a 

 drug dealer? 

V. Whether the jury instructions on first[-]degree 

 murder which blur the elements of 

 premeditation and deliberation relieved the 

 [Commonwealth] of the burden of proving 

 each element of the crime beyond a reasonable 

 doubt in violation of the Due Process Clause of 

 the Fourteenth Amendment? 

VI. Whether the [trial court] erred and denied due 

 process when it sent prior unsworn ambiguous 

 statements back with the jury leading the jury 

(Footnote Continued) _______________________ 

2013 after successfully seeking an extension. The trial court did not file a 

Rule 1925(a) opinion, as the trial judge who presided over the trial retired 

from the bench in the interim. 
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 to infer that the statements were accurate and 

 had heightened importance? 

VII. Whether the fifty[-]year sentence imposed on 

 a juvenile was imposed without consideration 

 of age[-]related factors including prospects for 

 rehabilitation and without a record suitable for 

 appellate review? 

Appellant’s Brief at 3-4.

 In his first issue, Appellant argues the Commonwealth failed to present 

sufficient evidence to sustain his conviction for first-degree murder. 

Specifically, Appellant avers the Commonwealth did not provide sufficient 

evidence because “the jury’s verdict had to be based on speculation and 

conjecture because the evidence was in hopeless conflict, and some of the 

information in the prior statements was ambiguous and unfairly prejudicial.” 

Id. at 17. 

 Our standard of review regarding challenges to the sufficiency of the 

Commonwealth’s case is well settled. “In reviewing the sufficiency of the 

evidence, we consider whether the evidence presented at trial, and all 

reasonable inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury’s verdict beyond 

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 

2014) (citation omitted). “The Commonwealth can meet its burden by 

wholly circumstantial evidence and any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak and 

inconclusive that, as a matter of law, no probability of fact can be drawn 
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from the combined circumstances.” Commonwealth v. Watley, 81 A.3d 

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation 

omitted), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an 

appellate court, we must review “the entire record ... and all evidence 

actually received[.]” Id. “[T]he trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced is free to 

believe all, part or none of the evidence.” Commonwealth v. Kearney, 92 

A.3d 51, 64 (Pa. Super. 2014) (citation omitted). “Because evidentiary 

sufficiency is a question of law, our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 

126 (Pa. 2013) (citation omitted). 

Before we may address the merits of Appellant’s issue, we must first 

address the Commonwealth’s argument that Appellant has failed to preserve 

this issue by not including it in his concise statement of errors complained of 

on appeal pursuant to Rule 1925(b). See Commonwealth’s Brief at 12. By 

its plain text, Rule 1925(b) requires that statements “identify each ruling or 

error that the appellant intends to challenge with sufficient detail to identify 

all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The Rule also 

requires that “[e]ach error identified in the Statement will be deemed to 

include every subsidiary issue contained therein which was raised in the trial 

court ....” Id. at 1925(b)(4)(v). Finally, any issues not raised in accordance 
J-A20019-14

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with Rule 1925(b)(4) will be deemed waived. Id. at 1925(b)(4)(vii). Our 

Supreme Court has held that Rule 1925(b) is a bright-line rule. 

Our jurisprudence is clear and well-settled, and 

firmly establishes that: Rule 1925(b) sets out a 

simple bright-line rule, which obligates an appellant

to file and serve a Rule 1925(b) statement, when so 

ordered; any issues not raised in a Rule 1925(b) 

statement will be deemed waived; the courts lack 

the authority to countenance deviations from the 

Rule’s terms; the Rule’s provisions are not subject to 

ad hoc exceptions or selective enforcement; 

appellants and their counsel are responsible for 

complying with the Rule’s requirements; Rule 1925 

violations may be raised by the appellate court sua 

sponte, and the Rule applies notwithstanding an 

appellee’s request not to enforce it; and, if Rule 

1925 is not clear as to what is required of an 

appellant, on-the-record actions taken by the 

appellant aimed at compliance may satisfy the Rule. 

We yet again repeat the principle first stated in 

[Commonwealth v.] Lord, [719 A.2d 306 (Pa. 

1998)] that must be applied here: “[I]n order to 

preserve their claims for appellate review, 

[a]ppellants must comply whenever the trial court 

orders them to file a Statement of Matters 

Complained of on Appeal pursuant to Pa.R.A.P. 1925. 

Any issues not raised in a Pa.R.A.P. 1925(b) 

statement will be deemed waived.” [Id.] at 309. 

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted). 

In this case, Appellant’s Rule 1925(b) statement fails to list any claim 

addressing the sufficiency of the Commonwealth’s evidence. In his reply 

brief, Appellant argues that nevertheless, his sufficiency argument should 

not be waived because, in Appellant’s view, our Supreme Court “has stated 

that such a claim must be considered by the Superior Court whether it is 

included in the 1925(b) statement or not.” Appellant’s Reply Brief at 1. 
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Appellant also claims that since the trial judge has retired and did not file an 

opinion in this case, “[t]he 1925(b) statement is [rendered] redundant.” Id. 

Finally, Appellant avers that the sufficiency arguments are embedded in 

other issues raised in his opening brief, “but under different labels.” Id.

 As noted above, our Supreme Court has held Rule 1925(b) is a brightline rule, and the Rule’s text explicitly states any issues not raised in said 

statement are waived for the purposes of appeal. See Hill, supra; 

Pa.R.A.P. 1925(b)(4)(vii). Contrary to Appellant’s assertion, our Supreme

Court’s decision in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007), 

does not mandate that this Court review all sufficiency claims, even when 

not raised in the Rule 1925(b) statement. In Laboy, our Supreme Court 

considered whether this Court correctly determined that the defendant, who 

had included but “failed to adequately develop his claim of insufficient 

evidence” in his Rule 1925(b) statement, was entitled to review of his claim. 

Id. at 1058. Laboy held that this Court should have reviewed the merits of 

the sufficiency challenge as his case was a “relatively straightforward drug 

case[.]” Id. at 1060. The instant matter is distinguishable from Laboy as 

Appellant did not include his sufficiency issue at all in his Rule 1925(b) 

statement.7

 Likewise, Appellant’s remaining arguments against waiver 

appear to be the type of “ad hoc exceptions or selective enforcement” that 

____________________________________________ 

7

 Moreover, Laboy predates Hill by approximately four years, before our 

Supreme Court solidified Rule 1925(b)’s mandates as a bright-line rule. 
J-A20019-14

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we are powerless to grant. Hill, supra. Therefore, for all of these reasons, 

following our Supreme Court’s instructions in Hill, we deem Appellant’s first 

issue on appeal waived for failure to list it in his Rule 1925(b) statement. 

 In his second issue, Appellant argues that his due process rights were 

violated because his convictions were “based on unsworn testimony.” 

Appellant’s Brief at 19. Specifically, Appellant complains that the trial court 

erroneously admitted the prior statements of Gray, Gould, and Sampson. 

Id. at 20-21. 

 At its core, the Due Process Clause of the Fourteenth Amendment 

entitles a criminal defendant to a fair trial. United States v. GonzalezLopez, 548 U.S. 140, 146 (2006) (citations omitted). Our Supreme Court 

has held that convictions based on prior inconsistent statements can amount 

to a due process violation, but only in extremely rare circumstances. See 

generally Commonwealth v. Brown, 52 A.3d 1139, 1170-1171 (Pa. 

2012). Prior inconsistent statements are admissible as substantive 

evidence, if any of the following apply. 

[O]nly those prior inconsistent statements 

“that are demonstrably reliable and 

trustworthy” may be admitted as substantive 

evidence. Commonwealth v. Lively, [] 610 

A.2d 7, 10 ([Pa.] 1992). To this end, the 

Lively Court required as a requisite to 

admissibility, that the prior statement be: 

(1) given under oath at a formal legal 

hearing; 
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(2) reduced to a writing which was 

signed or adopted by the witness; or 

(3) a contemporaneous verbatim 

recording of the witness’s statements.

Id.; see also Commonwealth v. Johnson,

[] 638 A.2d 940 ([Pa.] 1994) (holding that, to 

be admissible, a prior inconsistent statement 

must have been uttered under highly reliable 

circumstances which would render inferences 

to be drawn from it more probable than not). 

Commonwealth v. Grimes, [] 648 A.2d 538, 544 

([Pa. Super.] 1994)[, appeal denied, 670 A.2d 642 

(Pa. 1995)]. 

Commonwealth v. Bibbs, 970 A.2d 440, 447-448 (Pa. Super. 2009) 

(internal parallel citations omitted), appeal denied, 982 A.2d 1227 (Pa. 

2009). 

 Instantly, the statements admitted at trial satisfy Lively as each of the 

statements in question were “reduced to a writing which was signed or 

adopted by the witness.” Bibbs, supra. In fact, Appellant concedes in his 

brief that all of the statements “satisfy Lively” but nevertheless, do not 

satisfy “the principles of due process because some of the information in the 

statements was ambiguous and unreliable based on the misuse of the 

pronoun ‘[h]e.’” Appellant’s Brief at 20. 

 Our Supreme Court has rejected the argument that convictions based 

on prior inconsistent statements violates a defendant’s right to due process 

of law. 
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In sum ... our review of authority from the 

United States Supreme Court and our Court, as well 

as our consideration of jurisprudence from other 

states which reject a per se rule, coupled with our 

over quarter-century of experience with the use of 

prior inconsistent statements as substantive 

evidence by the courts of this Commonwealth, 

convinces us that criminal convictions which rest 

only on prior inconsistent statements of witnesses 

who testify at trial do not constitute a deprivation of 

a defendant’s right to due process of law, as long as 

the prior inconsistent statements, taken as a whole, 

establish every element of the offense charged 

beyond a reasonable doubt, and the finder-of-fact 

could reasonably have relied upon them in arriving at

its decision. Prior inconsistent statements, which 

meet the requirements for admissibility under 

Pennsylvania law, must, therefore, be considered by 

a reviewing court in the same manner as any other 

type of validly admitted evidence when determining 

if sufficient evidence exists to sustain a criminal 

conviction. 

Brown, supra (footnote omitted). 

 Appellant does not identify or explain how any of the prior statements 

fails to meet Brown’s criterion of “establish every element of the offense 

charged” when taken in their totality. See id. Instead Appellant argues 

that some of the statements were ambiguous, based on the misuse of the 

pronoun “he.” Appellant’s Brief at 20. It is axiomatic that such 

“[d]iscrepancies concerning the evidence affect the weight of the evidence 

given by the trier of fact but do not affect the admissibility of such 

evidence.” Commonwealth v. Edmiston, 634 A.2d 1078, 1089 (Pa. 

1993), overruled on other grounds, Commonwealth v. Freeman, 827 A.2d 

385 (Pa. 2003). Additionally, it was for the jury to resolve any ambiguity in 
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the statements. See Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. 

Super. 2013) (stating, “the trier of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to believe all, 

part or none of the evidence[]”) (citation omitted), appeal denied, 79 A.3d 

1095 (Pa. 2013). Based on these considerations and Appellant’s concession 

as to Lively being satisfied, we conclude Appellant’s due process rights were 

not violated in this case. See Brown, supra; Bibbs, supra. 

 In his third issue, Appellant avers that the trial court erred when it 

allowed “the admission of evidence of [Appellant’s] possession of [a] 9 mm 

handgun at the point of arrest[.]” Appellant’s Brief at 25. Appellant 

contends that the handgun was irrelevant and therefore Detective Walter’s 

testimony should have been inadmissible. Id. We begin by noting our wellsettled standard of review regarding evidentiary matters. 

The admissibility of evidence is at the discretion of 

the trial court and only a showing of an abuse of that

discretion, and resulting prejudice, constitutes 

reversible error. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the 

result of bias, prejudice, ill-will or partiality, as 

shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides or 

misapplies the law, discretion is then abused and it is 

the duty of the appellate court to correct the error. 

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 83 

A.3d 167 (Pa. 2013). 
J-A20019-14

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Before we may consider Appellant’s issue, we must first address the 

Commonwealth’s argument that Appellant has not preserved this issue for 

our review. The Commonwealth argues that Appellant never objected to the 

admission of this evidence below and therefore cannot raise the issue on 

appeal. Commonwealth’s Brief at 15-16.

It is axiomatic that “[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “[T]o 

preserve a claim of error for appellate review, a party must make a specific 

objection to the alleged error before the trial court in a timely fashion and at 

the appropriate stage of the proceedings; failure to raise such objection 

results in waiver of the underlying issue on appeal.” Commonwealth v. 

Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citation omitted). 

Furthermore, with regard to evidentiary issues, “[a] party complaining, on 

appeal, of the admission of evidence in the court below will be confined to 

the specific objection there made.” Commonwealth v. Bedford, 50 A.3d 

707, 713 (Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 57 

A.3d 65 (Pa. 2012). “If counsel states the grounds for an objection, then all 

other unspecified grounds are waived and cannot be raised for the first time 

on appeal.” Id. (citation omitted). 

 In the case sub judice, Appellant argues the trial court abused its 

discretion in permitting Detective Michael Walter to testify regarding a gun 

that was recovered from his person. Detective Walter testified that when 
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Appellant was apprehended, “a gun was recovered from him ... in his 

waistband.” N.T., 7/12/12, at 144. Detective Walter went on to testify that 

“[i]t was a 9-millimeter handgun.” Id. Detective Walter was then shown 

the handgun in question, and he identified it as the one found on Appellant’s 

waistband when he was arrested. Id. at 145. At no point in time during or 

after this exchange did Appellant object to Detective Walter’s testimony. As 

a result, Appellant has waived any issue regarding this testimony for failure 

to object at trial.8

 See Bedford, supra, Akbar, supra. 

 In his fourth issue, Appellant avers that the trial court erred in failing 

to declare a mistrial when the Commonwealth labeled Appellant and his codefendants as drug dealers in the neighborhood. Appellant’s Brief at 28. 

Specifically, Appellant highlights three instances where the Commonwealth 

referred to Appellant as a drug dealer. Id. The first instance was during its 

opening statement, the second was during its redirect examination of 

____________________________________________ 

8

 We note that the 9 mm handgun was mentioned during discussion of the 

Commonwealth’s motion in limine on July 9, 2012. Appellant did not raise 

any objection to that motion or the gun in any way during those 

proceedings. See N.T., 7/9/12, at 4-9. At oral argument on July 15, 2014, 

Appellant argued that under Pennsylvania Rule of Criminal Procedure 603, 

Brooker’s argument against the Commonwealth’s motion in limine, 

preserved the issue for all three defendants because all three defendants are 

adversely affected by it. However, Rule 603 does not stand for this 

proposition. Rule 603(A) states, “[a]ny ruling of the judge on an objection 

or motion made during the trial of any action or proceeding shall have the 

effect of a sealed exception in favor of the party adversely affected[.]” 

Pa.R.Crim.P. 603(A). The plain text of Rule 603(A) assumes that “an 

objection” is made. Id. As a result, Rule 603 does not alter our conclusion. 
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Detective Thomas Gaul, and finally during the Commonwealth’s summation. 

Id. 

 A review of the transcript reveals that Appellant did not lodge an 

objection to anything said by the Commonwealth in its opening statement. 

Appellant objected during Detective Gaul’s testimony, which the trial court 

immediately sustained. See N.T., 7/12/12, at 131. Finally, Appellant 

objected once during the Commonwealth’s closing statement, to a statement 

that could be interpreted to imply that Appellant dealt drugs to Sampson, 

which the trial court overruled. See N.T., 7/13/12, at 98. Appellant never 

requested a mistrial from the trial court in any of these instances. 

“[E]ven where a defendant objects to specific conduct, the failure to 

request a remedy such as a mistrial or curative instruction is sufficient to 

constitute waiver.” Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. 

Super. 2013) (citation omitted), appeal denied, --- A.3d ---, 835 MAL 2013 

(Pa. 2014). However, where “the trial court d[oes] not sustain [a 

defendant]’s objection to this specific statement, it [is] unnecessary for [the 

defendant] to request specifically a mistrial in order to preserve the issue.” 

Commonwealth v. Hogentogler, 53 A.3d 866, 877 (Pa. Super. 2012) 

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013). 

As noted, Appellant did not request a mistrial during the 

Commonwealth’s opening statement or during redirect examination of 

Detective Gaul. Therefore, Appellant has waived any argument as to a 
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mistrial regarding those incidents.9

 See Sandusky, supra. However, as 

the trial court overruled Appellant’s objection during the Commonwealth’s 

summation, he was not required to request a mistrial to preserve the issue 

for our review. See Hogentogler, supra. Accordingly, we confine our 

discussion to that occurrence. 

 We begin by stating our standard of review. 

It is well-settled that the review of a trial court’s 

denial of a motion for a mistrial is limited to 

determining whether the trial court abused its 

discretion. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the 

law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will ... discretion is 

abused. A trial court may grant a mistrial only 

where the incident upon which the motion is based is 

of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the 

jury from weighing and rendering a true verdict. A 

mistrial is not necessary where cautionary 

instructions are adequate to overcome prejudice. 

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation 

omitted). 

With specific reference to a claim of 

prosecutorial misconduct in a closing statement, it is 

well settled that “[i]n reviewing prosecutorial 

remarks to determine their prejudicial quality, 

comments cannot be viewed in isolation but, rather, 

____________________________________________ 

9 As with Appellant’s previous issue, we note that Pa.R.Crim.P. 603(A) does 

not alter our conclusion even though Brooker and Ellison did object to the 

incident during Detective Gaul’s redirect examination. See Pa.R.Crim.P. 

603(A); N.T., 7/12/12, at 134. 
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must be considered in the context in which they 

were made.” Commonwealth v. Sampson, 900 

A.2d 887, 890 (Pa. Super. 2006) (citation omitted)[,

appeal denied, 907 A.2d 1102 (Pa. 2006)]. Our 

review of prosecutorial remarks and an allegation of 

prosecutorial misconduct requires us to evaluate 

whether a defendant received a fair trial, not a 

perfect trial. 

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009). 

 During its closing argument, the Commonwealth made the following 

reference to the defendants and Sampson. 

[Commonwealth]: Why would [Sampson] point 

the finger at these three individuals if she didn’t tell 

you exactly what she saw and what she heard? Why 

would she try and ruin any relationship with these 

three individuals, her free drugs, by providing a 

statement to Homicide that assists them in trying to 

figure out who killed [the victim], by specifically 

saying Worm told me and made a comment that he 

shot [the victim]? 

[Appellant’s Counsel]: Objection. 

[Trial Court]: Overruled. 

N.T., 7/13/12, at 98 (emphasis added). Appellant argues this statement by 

the Commonwealth implied to the jury that Appellant and his co-defendants 

were providing Sampson with drugs on a regular basis. Appellant’s Brief at 

29.

 Assuming arguendo that the Commonwealth’s remark was improper, it 

does not follow that a new trial is warranted if the error is harmless. “[A]n 

error may be considered harmless only when the Commonwealth proves 

beyond a reasonable doubt that the error could not have contributed to the 
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verdict.” Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super. 

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013). 

The Commonwealth bears the burden of establishing 

the harmlessness of the error. This burden is 

satisfied when the Commonwealth is able to show 

that: (1) the error did not prejudice the defendant or 

the prejudice was de minimis; or (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 

[e]ffect of the error so insignificant by comparison 

that the error could not have contributed to the 

verdict. 

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation 

omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014). 

 In this case, the Commonwealth argues that any error was harmless 

due to Sampson’s other testimony during trial, to which Appellant did not 

object. Commonwealth’s Brief at 22-23. The Commonwealth highlights the 

following exchange during Sampson’s direct examination with the 

Commonwealth. 

[Commonwealth]: Do you see Butter in the 

courtroom today? 

[Sampson]: I’m not sure. I’m not sure which 

one it is. Wait a minute. I think it’s the middle one 

is Butter I think. 

[Commonwealth]: Okay. Your Honor, for the 

record identifying Alonzo Ellison by point of finger 

and also by location in relation to the other 

defendants. ... How did you know Butter? 
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[Sampson]: Through drug activity. 

[Commonwealth]: What do you mean? 

[Sampson]: I would get drugs from him. 

[Commonwealth]: And would you also get drugs 

from him inside the projects? 

[Sampson]: No. Mostly I would have him come 

to my house. 

[Commonwealth]: Did you know someone by 

the name of AI or Doughnut? 

[Sampson]: Yes. 

[Commonwealth]: Do you see that person in the 

courtroom today? 

[Sampson]: I think this one on the end in the 

blue shirt. 

[Commonwealth]: Your Honor, for the record, 

identifying the defendant, Mikechel Brooker. ... How 

do you know Doughnut or AI? 

[Sampson]: For the same thing, for the same 

reasons, drugs. 

[Commonwealth]: You would get drugs from 

Doughnut? 

[Sampson]: Yes. 

[Commonwealth]: Do you also know somebody 

by the name or that you called Worm? 

[Sampson]: Yes. 

[Commonwealth]: Do you see Worm in the 

courtroom today? 

[Sampson]: Yes, the one with purple. 
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[Commonwealth]: Your Honor, identifying 

[Appellant], by point of finger and description of 

clothing. ... And how did you know Worm? 

[Sampson]: Through the same reasons. For the 

same reasons. 

N.T., 7/11/12, at 213-215.

 Based on this exchange, at a minimum, we agree that any error was 

harmless in this instance. Sampson’s trial testimony indicates that she

obtained drugs from all three defendants. Appellant did not object to this 

testimony. As a result, any statement by the Commonwealth as to Appellant 

giving Sampson free drugs was harmless as it was de minimis and “was 

merely cumulative of other untainted evidence[.]” Green, supra. As a 

result, Appellant is not entitled to relief on this issue. 

 In his fifth issue, Appellant avers that the trial court erroneously 

instructed the jury on first-degree murder because the instruction, as given, 

“d[id] not define the element of premeditation or deliberation with any 

degree of precision.” Appellant’s Brief at 32. We note our well-settled 

standard of review pertaining to jury instructions. 

[W]hen evaluating the propriety of jury instructions, 

this Court will look to the instructions as a whole, 

and not simply isolated portions, to determine if the

instructions were improper. We further note that, it

is an unquestionable maxim of law in this 

Commonwealth that a 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. Only where there is an abuse of 
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discretion or an inaccurate statement of the law is 

there reversible error. 

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) 

(citation omitted), appeal denied, --- A.3d ---, 126 MAL 2014 (Pa. 2014). 

Before addressing the merits of Appellant’s claim, we must again address 

the Commonwealth’s argument in its brief that Appellant has failed to 

preserve this issue for our review. The Commonwealth argues Appellant has 

waived this issue by not objecting to any of the jury instructions below. 

Commonwealth’s Brief at 24.

As we noted above, “[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). With 

regard to jury instructions, “[a] specific and timely objection must be made 

to preserve a challenge to a particular jury instruction. Failure to do so 

results in waiver.” Commonwealth v. Olsen, 82 A.3d 1041, 1050 (Pa. 

Super. 2013) (citation omitted). “Generally, a defendant waives subsequent 

challenges to the propriety of the jury charge on appeal if he responds in the 

negative when the court asks whether additions or corrections to a jury 

charge are necessary.” Commonwealth v. Charleston, 16 A.3d 505, 527-

528 (Pa. Super. 2011) (citation omitted), appeal denied, 30 A.3d 486 (Pa. 

2011). 

 In support of this argument, Appellant cites to two federal cases that 

define premeditation and deliberation. 
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“Premeditation can be successive, 

instantaneous thoughts of the mind.” Chambers v. 

McDaniel, 549 F[.]3d 1191, 1[200] (9th Cir. 2008). 

Deliberation requires “a dispassionate weighing 

process and consideration of consequences before 

acting.” Id. at 1201. “[D]eliberation means 

considering and reflecting on the preconceived 

design to kill, turning it over in the mind, giving it a 

second thought,” and that “although premeditation 

... may be as instantaneous as the thought itself, it’s 

necessary that there be an appreciable time elapse 

between formation of the design, the decision, and 

the fatal act within which there is deliberation.” 

United States v. Orleans-Lindsay, 572 F. Supp. 

2d 144, 16[0] (D. [D.C.] 2008). 

Appellant’s Brief at 32 (emphases in original).10

 Instantly, Appellant argues 

the following part of the trial court’s instruction was not given “in a 

comprehensible fashion.” Id. at 31. Appellant compares the instruction the 

trial court gave to an instruction that “describ[es] a white horse as a horse 

that is white.” Id.

 In this case, the trial court instructed the jury as follows. 

 A specific intent to kill exists if the defendant 

has fully formed intent to kill and is conscious of that

intent. 

 A killing by a person with the specific intent to 

kill is a killing with malice. 

 A killing is with the specific intent to kill if it is

willful, deliberate, and premeditated. 

____________________________________________ 

10 We observe, “this Court is not bound by decisions of federal courts inferior 

to the United States Supreme Court, even though we may look to them for 

guidance.” Commonwealth v. Huggins, 68 A.3d 962, 968 (Pa. Super. 

2013) (citation omitted), appeal denied, 80 A.3d 775 (Pa. 2013). 
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 The specific intent to kill, including the 

premeditation needed for first-degree murder, does 

not require planning or previous thought or any 

particular length of time. It can occur quickly. 

N.T., 7/13/12, at 144-145. We have reviewed the entire jury instruction and 

portion of the transcript immediately preceding and following the trial court’s 

charge to the jury. At no point before, during, or after the trial court’s 

charge did Appellant object to the trial court’s instruction. In fact, Appellant 

specifically stated that he had nothing to bring to the trial court’s attention 

with regard to the charge. Id. at 154. Based on these considerations, we 

agree with the Commonwealth and deem Appellant’s fifth issue on appeal 

waived for failure to object below.11

 See Olsen, supra; Charleston, 

supra. 

 In his sixth issue, Appellant argues the trial court erred when it sent 

back with the jury “redacted statements of Jeffrey Gould and Eleanore 

Sampson.” Appellant’s Brief at 33. In Appellant’s view, “[t]he statements 

____________________________________________ 

11 Appellant also argues in one sentence that “[t]rial counsel was 

constitutionally ineffective for failing to request an instruction on each and 

every element of the offense of first[-]degree murder.” Appellant’s Reply 

Brief at 21. As this claim pertains to ineffective assistance of counsel, we 

decline to address it at this juncture. Appellant is free to raise this claim on 

collateral attack pursuant to the parameters of the Post Conviction Relief 

Act, 42 Pa.C.S.A. §§ 9541-9546. See generally Commonwealth v. 

Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating, “claims of ineffective 

assistance of counsel are to be deferred to PCRA review; trial courts should 

not entertain claims of ineffectiveness upon post-verdict motions; and such 

claims should not be reviewed upon direct appeal[]”).
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should not have been sent to the jury because it gave them a heightened 

level of importance they did not deserve ....”12

 Id. 

In reviewing Appellant’s claim, we are guided by the following.

 Whether an exhibit should be allowed to go out 

with the jury during its deliberation is within the 

sound discretion of the trial judge.” 

Commonwealth v. Merbah, [] 411 A.2d 244, 247 

([Pa. Super.] 1979) (citing Commonwealth v. 

Pitts, [] 301 A.2d 646 ([Pa.] 1973)); Pa.R.Crim.P. 

1114 (renumbered 646, effective April 1, 2001). 

The underlying reason for excluding certain 

items from the jury’s deliberations is to 

prevent placing undue emphasis or credibility 

on the material, and de-emphasizing or 

discrediting other items not in the room with 

the jury. If there is a likelihood the importance 

of the evidence will be skewed, prejudice may 

be found; if not, there is no prejudice per se

and the error is harmless. 

Commonwealth v. Dupre, 866 A.2d 1089, 1103 

(Pa. Super. 2005) (quoting Commonwealth v. 

Strong, [] 836 A.2d 884, 888 ([Pa.] 2003)). 

____________________________________________ 

12 The Commonwealth requests that we find this issue waived as Appellant’s 

argument devoted to this issue only takes up one full page of the brief, and 

only has one general citation to caselaw. Commonwealth’s Brief at 26. 

While it is true that this Court will typically not hesitate to find waiver where 

an argument is not developed, we decline to exercise such discretion in this 

instance. Cf. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) 

(stating, “where an appellate brief fails to provide any discussion of a claim 

with citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived[]”), cert. denied, 

Johnson v. Pennsylvania, 131 S. Ct. 250 (2010). However, we do agree 

with the Commonwealth that to the extent Appellant argues Sampson’s 

statement should have been redacted further, this argument is waived as 

Appellant only objected at trial on the grounds of its alleged heightened 

importance. See Appellant’s Brief at 33; N.T., 7/13/12, at 166-167. 
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Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (internal 

parallel citations omitted), appeal denied, 63 A.3d 772 (Pa. 2013). 

Furthermore, Pennsylvania Rule of Criminal Procedure 646 permits the jury 

to have certain items with it during deliberations. 

Rule 646. Material Permitted in Possession of 

the Jury

(A) Upon retiring, the jury may take with it such 

exhibits as the trial judge deems proper, except as 

provided in paragraph (C). 

...

(C) During deliberations, the jury shall not be 

permitted to have: 

(1) a transcript of any trial testimony; 

(2) a copy of any written or otherwise recorded 

confession by the defendant; 

(3) a copy of the information or indictment; 

and 

(4) except as provided in paragraph (B), 

written jury instructions. 

(D) The jurors shall be permitted to have their notes 

for use during deliberations. 

Pa.R.Crim.P. 646. 

 After careful review, we conclude Appellant is not entitled to relief on 

this issue. Under Pennsylvania law, the jury is generally permitted to have 

witness statements with it during deliberations. See Commonwealth v. 

Hall, 565 A.2d 144, 148 (Pa. 1989) (concluding that the trial court did not 
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abuse its discretion in permitting the jury to have previously written and 

recorded witness statements with it during deliberations). Furthermore, 

Rule 646 does exclude the trial transcript from the jury’s possession, but not 

prior witness statements entered into evidence as exhibits. See, e.g., 

Pa.R.Crim.P. 646(A); 646(C)(1). Additionally, we agree with the 

Commonwealth that it is “illogical” to presume that the jury will attach 

heightened importance to certain statements by having them in the jury 

room. See Commonwealth’s Brief at 26-27. Rather, the record shows here 

that the jury requested the statements to aid them in clarifying “the events 

of the shooting.” N.T., 7/13/12, at 165. This Court has previously held that 

this is the policy reason behind allowing the jurors to use such exhibits. See 

Commonwealth v. Bango, 685 A.2d 564, 566 (Pa. Super. 1996) (stating, 

“where materials inform a jury and aid it in the difficult task of determining 

facts, the jury should be permitted to study those materials during its 

deliberations[]”), affirmed, 742 A.2d 1070 (Pa. 1999). Based on these 

considerations, we conclude that the trial court did not abuse its discretion in 

permitting the jury to have the witness statements during deliberations. 

See Barnett, supra. 

 In his seventh issue, Appellant avers that the trial court erred in 

imposing an aggregate sentence of 50 years to life imprisonment. 

Specifically, Appellant argues that the trial court failed to “consider 

[Appellant’s] prospects for rehabilitation.” Appellant’s Brief at 35. Appellant 
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further avers that the trial court imposed such a sentence without 

considering any of the age related factors listed in 18 Pa.C.S.A. § 1102.1(d). 

Id. at 35-38. Appellant also argues that the trial court’s sentence of 50 

years to life imprisonment is the equivalent of a life sentence. Id. at 38. 

Appellant also claims the trial court “did not make an adequate record for 

appellate review.” Id. at 35. 

At the outset, we note that Appellant’s arguments regarding his 

sentence pertain to the discretionary aspects of his sentence.

13

 It is 

axiomatic that in this Commonwealth “[t]here is no absolute right to appeal 

when challenging the discretionary aspect of a sentence.” Commonwealth 

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an 

appellant forwards an argument pertaining to the discretionary aspects of 

the sentence, this Court considers such an argument to be a petition for 

permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247, 

1265 (Pa. Super. 2014) (en banc) (citation omitted). “Rather, an [a]ppeal is 

permitted only after this Court determines that there is a substantial 

____________________________________________ 

13 We assume, without deciding, that a failure to take into account the 

Section 1102.1(d) factors goes to the discretionary aspects of a defendant’s 

sentence, even though Appellant mentions the Eighth Amendment. See 

Appellant’s Brief at 38. Even if said issue did present a non-waivable 

challenge to the legality of the sentence, Appellant would not be entitled to 

relief as Section 1102.1(d)’s age factors are only for sentences of life 

imprisonment without the possibility of parole. See 18 Pa.C.S.A. § 

1102.1(d) (stating, “[i]n determining whether to impose a sentence of life 

without parole under subsection (a), the court shall consider and make 

findings on the record regarding the following [factors]”).
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question that the sentence was not appropriate under the sentencing code.” 

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citation omitted). 

 Prior to reaching the merits of a discretionary sentencing issue, this 

Court is required to conduct a four-part analysis to determine whether a 

petition for permission to appeal should be granted. 

(1) [W]hether appellant has filed a timely notice of

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, Pa.R.Crim.P. 

[708]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

[Pa.C.S.A.] § 9781(b). 

Commonwealth v. Trinidad, 90 A.3d 721, 729 (Pa. Super. 2014) (citation 

omitted). 

 In the case sub judice, we note that Appellant has failed to include in 

his brief the required Rule 2119(f) statement. We further note that the 

Commonwealth has objected in its brief to the omission of the same. 

Commonwealth’s Brief at 29. This Court has repeatedly held that when a 

defendant fails to include a Rule 2119(f) statement and the Commonwealth 

objects, we are precluded from addressing the claim on the merits. 

Commonwealth v. Karns, 50 A.3d 158, 168 (Pa. Super. 2012), appeal 

denied, 65 A.3d 413 (Pa. 2013). As the Commonwealth has done so here, 

we deny Appellant’s petition for permission to appeal the discretionary 
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aspect of his sentence.14

 See Buterbaugh, supra; Tobin, supra;

Trinidad, supra. 

 Based on the foregoing, we conclude that all of Appellant’s issues are 

either waived or devoid of merit. Accordingly, the trial court’s December 17, 

2012 judgment of sentence is affirmed. 

 Judgment of sentence affirmed. Application for post-submission 

communication granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014 

____________________________________________ 

14 In his reply brief, Appellant attempts to add to this issue by 

“incorporat[ing] by reference the issues and arguments presented in the codefendant’s brief to the extent applicable.” Appellant’s Reply Brief at 23. 

Appellant baldly argues that “there appears to be no prohibition against 

incorporation by reference.” Id.; but see Commonwealth v. Briggs, 12 

A.3d 291, 343 (Pa. 2011) (stating, “incorporation by reference is an 

unacceptable manner of appellate advocacy for the proper presentation of a 

claim for relief[]”) (internal quotation marks and citation omitted), cert. 

denied, Briggs v. Pennsylvania, 132 S. Ct. 267 (2011); Commonwealth 

v. Colavita, 993 A.2d 874, 893 (Pa. 2010) (stating, “a reply brief is not an 

appropriate vehicle to raise a new claim[]”) (citation omitted). We therefore 

decline to address Appellant’s attempt to incorporate another defendant’s 

arguments any further as none of the same were addressed in Appellant’s 

opening brief.