J-A08004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES L. KULOW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 787 EDA 2019

Appeal from the Judgment of Sentence Entered February 7, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0001280-2018

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.: Filed: December 24, 2020

Charles L. Kulow appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, following his convictions by a

jury of third-degree murder,1two violations of the Uniform Firearms Act

(VUFA),

2 and possession of an instrument of crime (PIC).3 After careful 

review, we affirm, relying in part on the trial court opinion.

The trial court set forth the facts of the case as follows:

[Philadelphia] Police Officer Frank Ray testified that on November 

17, 2016, he received a rescue call for a drunk male outside [on] 

the 8000 block of Frankford Avenue. When Officer Ray arrived [at 

8037 Frankford Avenue,] he observed a very tall white male, with 

a big beard, lying on the sidewalk, bleeding, with vomit coming 

out of his nose and mouth. The male was pronounced dead at the 

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1 18 Pa.C.S.A. § 2502(c).

2 18 Pa.C.S.A. §§ 6106, 6108.

3 18 Pa.C.S.A. § 907(a).
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scene [and] later identified as [] Brian Keith Jones. Officers 

recovered a cell phone charger, [a] marijuana bowl with no 

marijuana, a lighter, and a few knives from [Jones’] body.

While Officer Ray was holding the scene, two women climbed out 

of a back window of the apartment building that [Jones] was lying 

in front of [] and jumped into the bed of a pickup truck. Officer 

Ray observed the pickup truck pull off at a high rate of speed. 

Officer Ray recovered a money clip on the ground in the back of 

the apartment building. A few minutes after the truck pulled off, 

a man named Thomas Vendetti walked up to Officer Ray and 

claimed the money clip was his. Vendetti identified himself as the 

owner of the pickup truck that had just driven away, and told 

officers that the truck was currently parked one block away. 

Vendetti was held for questioning.

* * *

Allen Lazicki testified that on November 17, 2016, he lived in the 

second floor apartment at 8037 Frankford Avenue. Lazicki lived 

there with a woman named [Christina] Leaman[, and] Leaman’s 

friend[,] Shannon Burns[.] On [that date,] when Lazicki arrived 

home at 5:35 p.m., Leaman, Burns, Burns’ boyfriend (Anthony 

Felix), and [Jones] were all present in his apartment. Lazicki 

greeted everyone in the apartment and headed to the back 

bedroom to take a nap.

While in his bedroom, Lazicki heard a “bang.” Leaman and Burns 

ran into Lazicki’s bedroom. They appeared to be frightened, and 

told Lazicki that the “bang” was a gunshot. When they left his 

bedroom, [Kulow] walked in and said “I'm sorry” and told Lazicki 

that he shot [Jones] in the shoulder.

Lazicki testified that [Kulow] was a member of the Breed 

Motorcycle Gang. [Kulow] told Lazicki that he shot [Jones]

because [Jones] was bragging that [Jones] was an enforcer with 

the Breed [Motorcycle Gang], when he was not. After [Kulow]

told Lazicki that he shot [Jones], Lazicki immediately left the 

apartment. As he was leaving, he saw [Jones] sitting in a recliner 

with his eyes closed and his head laying on his chest. Lazicki did 

not observe any blood. 

[] Leaman testified that she knew [Kulow] by his nickname 

“Ruthless,” and knew him to be a member of the Breed Motorcycle 

Gang. [] On the day of the murder, at [Kulow’s] request, Leaman

contacted [Jones] and told [Jones] that [Kulow] wanted to talk to 
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him. Leaman, [Jones], Burns, and Felix were all in Lazicki’s 

apartment when Lazicki arrived home. Shortly after Lazicki 

arrived, Leaman and Burns went into the bathroom and closed the 

door. While Leaman was in the bathroom, she heard a “loud pop.” 

Leaman never observed [Kulow] enter the apartment. 

Burns left the bathroom to investigate. She returned with Felix 

and they were both “freaking out.” Felix said “I gotta get out of 

here, there’s crazy shit going on.” When Leaman left the 

bathroom, she saw [Jones] sitting in the recliner trying to breathe.

[Jones] was making gurgling noises and couldn’t speak. [Kulow]

and another [unknown] male [] were standing near [Jones]. 

[Burns] heard [Kulow] tell [Jones] “You’re no Breed enforcer.”

Lazicki and Felix both left the apartment while [Jones] was still in 

the recliner. [Kulow] and the unknown male lifted [Jones] from 

the chair, and placed him on a sheet. The last time Leaman saw 

[Jones,] he was on his back being dragged down a flight of stairs,

which lead to the outside of the apartment building.

Leaman and Burns remained in the apartment and talked about 

what had happened. While they were talking, they wiped up a 

“spot” of blood on the floor. Leaman called her friend Vendetti to 

give her and Burns a ride. [Leaman] directed Vendetti to come to 

the back of the apartment building because the police were out 

front. When Vendetti arrived, Leaman and Burns climbed out of 

a back window and onto the bed of Vendetti’s truck. After they 

had driven for approximately one to two blocks, Leaman realized 

that she had dropped her phone. Vendetti pulled over and went 

back to the crime scene to look for Leaman’s phone. Burns left 

on foot.

While Leaman was in the truck, police arrived and took her to the 

Homicide Division.

* * *

[The jury viewed v]ideo surveillance from the apartment complex, 

marked as Commonwealth Exhibit 45[.] The video begins with an 

outside view of the apartment building. Lazicki can be seen 

walking into the building. The video switches to a camera inside 

the building, and Lazicki can be seen walking up the stairs to the 

second floor. Twenty-five minutes and five seconds later [Kulow]

can be seen walking up to and into the building. [Kulow] walks to 

the second floor. The unknown male can be seen in the same clip 
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following behind [Kulow]. The unknown male enters the 

apartment building roughly 12 seconds after [Kulow].

After an eight minute and ten second gap, Felix can be seen 

exiting the apartment with his bike and riding off. Three minutes 

and thirty-five seconds later, Lazicki walks out of the apartment 

and down the street. Approximately thirty seconds after Lazicki 

leaves, a blue towel is thrown over the interior camera.

One minute and twenty-five seconds later, the exterior camera 

shows Burns leave the apartment. Burns then drags a trashcan 

from off camera to the door of the apartment building. [Kulow]

and the unknown male help Burns position the trashcan, and then 

the two men drag [Jones’] body behind the trashcan and walk off 

down the street. Burns goes back inside the building.

One hour, fifty-two minutes, and thirty-five seconds later, a 

camera showing the rear parking lot of the apartment building 

captures [Burns’ and Leaman’s] exit. A truck reverses to the back 

of the apartment building and Vendetti climbs onto the tailgate. 

Vendetti takes two bags from the women and places them in the 

truck. Vendetti then helps Burns and Leaman climb from a second 

floor overhang onto the truck.

Dr. Albert Chu, Deputy Chief Medical Examiner for Philadelphia, 

testified that [Jones] was shot once in the back of the left 

shoulder. The wound was a “contact entrance wound,” [meaning 

the barrel of the firearm was in contact with Jones’ body when 

fired.] The bullet traveled from [Jones’] left shoulder through his 

fifth rib, left lung, heart, liver, stomach, pancreas, and was 

eventually recovered in the small intestine. Dr. Chu opined that 

the wound would have caused death within one to two minutes. 

Additionally, the wound could have caused [Jones] to vomit 

and/or cough up blood.

It was stipulated by counsel that [Kulow] did not possess a license 

to carry a firearm in the City and County of Philadelphia.

Trial Court Opinion, 5/13/19, at 2-8 (internal citations and footnotes omitted). 

At the conclusion of the trial, a jury convicted Kulow of the above-stated

offenses. On February 7, 2019, the court sentenced Kulow to an aggregate 

sentence of seventeen to thirty-four years’ imprisonment: seventeen to 
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thirty-four years’ imprisonment for third-degree murder, two-and-one-half to 

five years’ imprisonment for each VUFA offense, each to be served 

concurrently with the other and concurrently with the lengthier sentence, with 

no further penalty for PIC. On February 19, 2019, Kulow filed a post-sentence 

motion, which the court denied on February 21, 2019. On March 18, 2019, 

Kulow filed a timely notice of appeal; both Kulow and the trial court have 

complied with Pa.R.A.P. 1925. 

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

(1) Was the evidence insufficient for the jury to find that 

[Kulow] committed [the] crimes of [t]hird-[d]egree 

[m]urder, [the section 6106 and section 6108 violations of 

the Uniform Firearms Act,] and [PIC]?

(2) Did the trial court abuse its discretion when it included the 

jury instruction for accomplice liability?

Appellant’s Brief, at 4.4

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4 For reasons unknown to this Court, Kulow has failed to provide a copy of the 

video exhibits played at trial. In an effort to obtain the video, this Court’s 

prothonotary contacted the parties and the trial court’s prothonotary. 

Additionally, this Court issued an Order, pursuant to Pa.R.A.P. 1926, directing 

the Philadelphia Clerk of Courts to transmit the video exhibits within 15 days 

of the date of the filing of the order. See Order, 10/16/20. The trial court 

acknowledged receipt of our order. See Trial Court Acknowledgment of Order, 

10/23/20. Nevertheless, more than six weeks have elapsed since this Court 

issued that order, and we have yet to receive the exhibit.

“It is the appellant’s responsibility to provide a complete and comprehensive 

record to the reviewing court for the purposes of appeal.” Commonwealth 

v. Feflie, 581 A.2d 636, 640-41 (Pa. Super. 1990). We may deem any claim 

waived where an appellant fails to certify the complete record for our review. 

See Commonwealth v. Bongiorno, 905 A.2d 998, 1001 (Pa. Super. 2006)

(en banc). Whether waiver is warranted is “a question that must be evaluated 
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Kulow first challenges the sufficiency of the evidence with regard to each 

of his convictions. He claims that the evidence was insufficient because “[t]he 

testimony undeniably indicates that the unknown white male was in 

possession of a gun and was the person who shot the decedent.” Appellant’s 

Brief, at 15. Kulow further supports this claim by stating that, because the 

jury returned a guilty verdict for third-degree murder, “[c]ommon sense 

dictates that the jury did not believe the testimony of the witnesses nor the 

Commonwealth’s theory as the jury only found [Kulow] guilty of murder in the 

third degree.” Id. We disagree.5

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under the particular facts and circumstances of a specific appeal.” Id. See 

also Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa. Super. 2006) (en 

banc) (“In the absence of specific indicators that a relevant document exists 

but was inadvertently omitted from the certified record, it is not incumbent 

upon this Court to expend time, effort and manpower scouting around judicial 

chambers or the various prothonotaries’ offices . . . for the purpose of 

unearthing . . . exhibits[.]”). 

Here, we decline to find waiver of Kulow’s issues on appeal. Like in Feflie, 

we may “rely on the trial court’s detailed description of the [evidence.]” 

Feflie, supra at 641. Additionally, the court’s description of the contents of 

the video is adequately supplemented by Lazicki’s and Leaman’s testimony, 

which described the same observations and identifications of the objects and 

people recorded in the now-missing video. See Trial Court Opinion, 5/13/19, 

at 6 n.3.

5 As an initial matter, our Supreme Court has previously explained that “a 

jury’s acquittal on a charge may not be interpreted as a specific finding in 

relation to the evidence.” Commonwealth v. Moore, 103 A.3d 1240, 1244 

(Pa. 2014) (internal quotation marks omitted). Moreover, we note that these 

claims raise challenges to the weight, not the sufficiency, of the evidence—a 

challenge that Kulow abandoned on appeal. Pursuant to Pa.R.A.P. 2116, “[n]o 

question will be considered unless it is stated in the statement of questions 
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Our well-settled standard of review when evaluating a challenge to the 

sufficiency of the evidence is as follows:

[W]e assess the evidence and all reasonable inferences 

drawn therefrom in the light most favorable to the 

[Commonwealth as] verdict-winner. We must determine 

whether there is sufficient evidence to enable the fact[-

]finder to have found every element of the crime beyond a 

reasonable doubt. In applying the above test, we may not 

weigh the evidence and substitute our judgment for that of 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts 

regarding a defendant’s guilt may be resolved by the factfinder unless the evidence is so weak and inconclusive that 

as a matter of law no probability of fact may be drawn from 

the combined circumstances. The Commonwealth may 

sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above

test, the entire record must be evaluated and all evidence

actually received must be considered. Finally, the trier of

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involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a); see also 

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (appellant’s 

duty is to present arguments sufficiently developed for our review; brief must 

support claims with pertinent discussion, references to record, and citations 

to legal authorities; we will not act as counsel and will not develop arguments 

on behalf of appellant).

We glean from the record that Kulow properly preserved his weight of the 

evidence claim in a post-sentence motion, see Pa.R.Crim.P. 607(A), and the 

trial court addressed the issue in its Pa.R.A.P. 1925(a) opinion. See Trial 

Court Opinion, 5/13/19, at 11-12. Nevertheless, Kulow failed to properly 

present this claim in his statement of the questions involved and failed to 

devote a separate part of the argument section of his brief to this claim. See

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there 

are questions to be argued; and shall have at the head of each part—in 

distinctive type or in type distinctively displayed—the particular point treated 

therein, followed by such discussion and citation of authorities as are deemed 

pertinent.”). Thus, we cannot address Kulow’s weight of the evidence claim. 

See Pa.R.A.P. 2116(a); see also Hardy, supra.
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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. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (quoting 

Commonwealth v. Evans, 901 A.2d 528, 532-33 (Pa. Super. 2006)).

“Murder in the third degree is an unlawful killing with malice but without 

the specific intent to kill.” Commonwealth v. Santos, 876 A.2d 360, 363-

64 (Pa. 2005); 18 Pa.C.S.A. § 2502(c). Our Supreme Court has explained 

that “malice is present under circumstances where a defendant did not have 

an intent to kill, but nevertheless displayed a conscious disregard for an 

unjustified and extremely high risk that his actions might cause death or 

serious bodily harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 

2017) (quotation marks and citation omitted). “Malice may be inferred by 

considering the totality of the circumstances.” Commonwealth v. Thomas,

656 A.2d 514, 516 (Pa. Super. 1995).

With regard to the defendant’s convictions under the Uniform Firearms 

Act, section 6106 “prohibits the carrying of a firearm concealed on or about []

the defendant’s person.” Commonwealth v. Peters, 218 A.3d 1206, 1213 

(Pa. 2019) (internal quotation marks omitted); 18 Pa.C.S.A. § 6106(a). A

conviction under section 6108 “require[s] proof that appellant carried a 

firearm in the City of Philadelphia.” Commonwealth v. Williams, 496 A.2d 

31, 39 (Pa. Super. 1985); 18 Pa.C.S.A. § 6108. 

Lastly, regarding PIC, “the offense requires proof of possession of such 

instrument, coupled with an intention to employ it criminally.” 
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Commonwealth v. Andrews, 768 A.2d 309, 313 (Pa. 2001); 18 Pa.C.S.A. 

§ 907(a). “It is the actor’s criminal purpose that provides the touchstone of 

his liability” for possessing an instrument of crime. Id. at 317. Such purpose 

may be inferred from the circumstances surrounding the possession. Id. at 

318. Our Supreme Court has long held that an “appellant’s use of a loaded 

gun on his victim is more than sufficient to establish his guilt of possession of 

an instrument of crime.” Commonwealth v. Santiago, 980 A.2d 659, 662 

(Pa. Super. 2009) (quoting Commonwealth v. McNair, 603 A.2d 1014, 1017 

(Pa. 1992)).

In response to the sufficiency issues raised by Kulow, the trial court has 

provided a thorough and well-reasoned discussion explaining why these claims 

are meritless. See Trial Court Opinion, 5/13/19, at 8-11 (finding evidence

sufficient to prove all elements of third-degree murder, violations of sections

6106 and 6108 of the Uniform Firearms Act, and PIC where: (1) Kulow 

requested Leaman to invite Jones over so Kulow could “talk to him”; (2) video 

evidence corroborated eyewitness testimony that Kulow was in same room as 

Jones at time of murder; (3) both Lazicki and Burns heard Kulow admit to 

shooting Jones; (4) Lazicki and Leaman both testified that Kulow was member 

of Breed Motorcycle Gang and that Kulow was upset with Jones because Jones

falsely claimed to be enforcer for gang; (5) video evidence showed Kulow and 

unknown male dragging victim’s body out front door of apartment building, 

dumping body on sidewalk, and quickly walking away; (6) Dr. Chu testified 

that Jones was shot from point-blank range in back left shoulder, gun was 
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pointed towards Jones’ torso, and bullet pierced his lung, heart, liver, and 

pancreas; (7) Kulow did not possess license to carry firearm in City and County 

of Philadelphia; (8) video evidence showed Kulow arriving and leaving scene 

of murder via Frankford Avenue, a public street in Philadelphia; (9) and Kulow 

used gun to kill Jones). Because we agree with the sound analysis employed 

by the Honorable Rose-Marie DeFino-Nastasi in her opinion, we adopt the trial 

court’s analysis to dispose of Kulow’s sufficiency issues raised in this appeal. 

See Dunphy, supra. We instruct the parties to attach a copy of Judge 

DeFino-Nastasi’s decision in the event of further proceedings.

Next, Kulow claims that the trial court erred when it included a jury 

charge on accomplice liability. Kulow contends that because the 

Commonwealth did not charge him with criminal conspiracy, and because the 

District Attorney did not request the accomplice liability charge, the trial court 

abused its discretion in giving such an instruction. See Appellant’s Brief, at 

14. Additionally, Kulow argues that accomplice liability requires active and 

purposeful participation in criminal activity with others, but that the evidence 

demonstrates that he was only merely present when Jones was murdered.

Specifically, Kulow claims: there was no evidence of a conspiracy, and that 

he and the unknown male entered the apartment building separately; there 

was no testimony indicating Kulow and the unknown male knew one another 

or even spoke to one another while they were in the apartment, or that Kulow 

knew the unknown male possessed a firearm; and, finally, that any conclusion 
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that Kulow and the unknown male were accomplices would be based on 

assumption or speculation. Id. at 16-18. 

Our standard of review for challenges to jury instructions is well-settled:

We review a challenge to a jury instruction for abuse of

discretion or an error of law. We must consider the charge as a

whole, rather than isolated fragments. We examine the entire

instruction against the background of all evidence presented, to

determine whether error was committed. A jury charge is

erroneous if the charge as a whole is inadequate, unclear, or has

a tendency to mislead or confuse the jury rather than clarify a

material issue. Therefore, a charge will be found adequate unless

the issues are not made clear to the jury or the jury was palpably

misled by what the trial judge said. Furthermore, our trial courts

are invested with broad discretion in crafting jury instructions, and

such instructions will be upheld so long as they clearly and

accurately present the law to the jury for its consideration. The

trial court is not required to give every charge that is requested

by the parties and its refusal to give a requested charge does not

require reversal unless the appellant was prejudiced by that

refusal.

Commonwealth v. Rush, 162 A.3d 530, 540 (Pa. Super. 2006) (internal

citations, quotation marks, and brackets omitted).

Further, we have previously noted that “it [is] within the power of the 

trial court to decide whether additional information which was not requested 

by the jury [is] necessary to assist the jury in its understanding of the issue 

involved.” Commonwealth v. Graham, 576 A.2d 371, 375 (Pa. Super. 

1990). The court’s instructions will be upheld if supported by the record, and 

against the background of all of the evidence. See Commonwealth v.

Hairston, 84 A.3d 657, 668 (Pa. 2014) (party requesting jury instruction 

must “establish that the trial evidence would reasonably support a verdict 
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based on the desired charge and may not claim entitlement to an instruction

that has no basis in the evidence presented during trial”) (internal quotation 

marks omitted); see also Graham, supra (trial court’s sua sponte decision 

to make supplemental jury instruction on voluntary intoxication not an abuse 

of discretion where record evidence supported such instruction).

We find that, contrary to Kulow’s claims, the testimony presented and 

video evidence viewed at trial support an accomplice liability instruction. 

Specifically, the video showed Kulow and the unknown male arriving at the 

crime scene within seconds of each other. See Trial Court Opinion, 5/13/19, 

at 7; N.T. Trial, 10/24/18, at 79-82; N.T. Trial, 10/25/18, at 86-87, 190. After 

the shooting, Leaman and Felix saw Kulow and the unknown male standing 

behind Jones. N.T. Trial, 10/24/18, at 73, 115; N.T. Trial, 10/25/18, at 195-

96; N.T. Trial, 10/26/18, at 57-58. Leaman observed Kulow and the unknown 

male remove Jones from the apartment. N.T. Trial, 10/24/18, at 157-59. 

Burns testified that she saw Kulow and the unknown male drag Jones down 

the stairs and out the front of the apartment complex. N.T. Trial, 10/25/18, 

at 19-25. From there, the surveillance video captured Kulow and the unknown 

male positioning Jones’ body behind a trashcan and walking away from the 

scene together. See Trial Court Opinion, 5/13/19, at 7; N.T. Trial, 10/24/18, 

181-82; N.T. Trial, 10/25/18, at 100. Because there was ample evidence

introduced at trial to support an instruction on accomplice liability, the trial
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court did not abuse its discretion with regard to the jury charge.6 See

Graham, supra; Rush, supra. See also Commonwealth v. Mitchell, 135

A.3d 1097, 1102 (Pa. Super. 2016) (“Accomplice liability may be established 

wholly by circumstantial evidence. Only the least degree of concert or 

collusion in the commission of the offense is sufficient to sustain a finding of 

responsibility as an accomplice. No agreement is required, only aid.”) 

(internal citations and quotation marks omitted).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/20

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6 Additionally, we note that Judge DeFino-Nastasi’s instructions to the jury 

were nearly verbatim standard jury instructions. See N.T. Trial, 10/29/18, at

3-58. The court’s instructions regarding accomplice liability were not an error

of statement on the law. See id. at 18-22; compare Pa.S.S.J.I. (Criminal) § 

8.306(a)(1). The trial court’s instructions, when reviewed as a whole, were

not inadequate, unclear, misleading, or confusing. See Rush, supra.