J-A09031-23

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KASHAWN DIVINE FLOWERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 190 MDA 2022

Appeal from the Judgment of Sentence Entered December 21, 2021,

in the Court of Common Pleas of York County,

Criminal Division at No(s): CP-67-CR-0001962-2019.

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED: JULY 25, 2023

Appellant, Kashawn Divine Flowers appeals from the judgment of 

sentence imposed after a jury convicted him of first-degree murder.1 We 

affirm.

On February 4, 2019, the Commonwealth charged Appellant with 

criminal homicide and possession of firearm prohibited following the shooting 

death of Hezekiah Walker on August 18, 2014. Eventually, the case was set

for trial on one count each of first-degree and third-degree murder.

On February 6, 2020, the Commonwealth moved in limine to admit 

testimony from two cooperating witnesses about Appellant’s gang affiliation 

and related gang activity. It stated that Appellant associated with the South 

____________________________________________

1 18 Pa.C.S.A. § 2502(a).
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Side gang in York City, which had a dispute with the West Side gang after the 

2013 killing of Joseph “Plaga” Gomez. The Commonwealth outlined its 

witnesses’ expected testimony that on August 17, 2014, Dysheem Jones gave 

Appellant a handgun that Jones used earlier that day, and then Appellant went 

to the West Side “lurking” for the “opposition”—looking to kill an opponent. 

The witnesses would describe that Appellant told them that he saw Walker, 

asked where he was from, and shot him in the head. The witnesses would 

also state how their group would dispose of handguns by putting them in safes 

or burying them.

Appellant responded on February 28, 2020, objecting to (a) testimony 

that he was “in a gang,” (b) references to the South Side or West Side, (c) 

testimony about “lurking” or “opposition,” and (d) testimony about the killing 

of Joseph Gomez in 2013. Response, 2/28/20, at 3. At argument before the 

trial court on May 27, 2021, Appellant further emphasized his position that

the term “gang” was unnecessary and prejudicial.

The trial court indicated its concern that the Commonwealth witnesses 

would testify as to general actions of other gang members in disposing of 

guns. N.T., 5/27/21, at 5–6. However, the trial court ruled that the term 

“gang” was not overly prejudicial and granted the Commonwealth’s first 

motion in limine in full. Id.

On October 1, 2021, the Commonwealth filed its second motion in 

limine, seeking to admit expert testimony about gangs. Appellant filed a 
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response in opposition on October 12, 2021. The trial court granted the 

motion the same day.

The case proceeded to a jury trial on October 18–21, 2021. The trial 

court detailed the pertinent facts at trial as follows:

On August 18, 2014, at 6:00 A.M. Officer Derrick Millhouse 

responded to the 300 block of West King Street [in York City] for 

reports of a possible shooting and a man down. When Officer 

Millhouse arrived at the scene, he observed the victim with an 

obvious gunshot wound to the head [lying] on the sidewalk with 

a large pool of blood around his head. Officers secured the scene 

and found spent shell casings, bullet fragments, and damage to 

one of the nearby houses. There were no eyewitnesses of the 

shooting, no gun was found, and no DNA evidence was recovered 

from the scene. On August 18, 2014, Brenda McCleary was living 

[nearby] and heard three gunshots around 2:30 a.m. outside of 

her home. Additionally, Edward Daniels who lives [nearby] heard 

gunshots from his home on the date of the incident between 2:40 

a.m. and 3:00 a.m.

The victim was identified as Hezekiah Walker, and Dr. 

Samuel Land of Forensic Pathology Associates, an expert in 

forensic pathology, performed an autopsy on Hezekiah Walker and 

determined the cause of death was a gunshot wound to the head. 

Additionally, the autopsy report indicated that Hezekiah Walker

sustained a perforating gunshot wound to his right leg. Dr. Land 

ruled Hezekiah Walker’s manner of death a homicide.

Detective Anthony Fetrow of the York City Police 

Department was assigned as the lead detective to investigate the 

death of Hezekiah Walker. Detective Fetrow determined Hezekiah 

Walker’s last known location was 600 West College Avenue, a 

corner house on West Street and College Avenue. 600 West 

College was the home of Zach Williams, Hezekiah Walker’s friend, 

which was next to a large business. Detective Fetrow obtained 

the large business[’] surveillance video from August 18, 2014 to 

determine Hezekiah Walker’s whereabouts between the time he 

left Zach William[s’] home and when the shooting occurred. 

Hezekiah Walker was seen in camera view for approximately three 

minutes from 2:20 to 2:23 a.m. Next, Detective Fetrow obtained 

footage from St. Paul’s Evangelical Congregational Church at 450 
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West King Street in York which showed Hezekiah Walker walking 

on the south sidewalk toward Penn Street [at 2:35 a.m.] 

Additionally, Detective Fetrow obtained surveillance video from 

Elite Property Management on the corner of Penn and King 

Street[s] which showed Hezekiah Walker at 2:37 a.m. on August 

18, 2014. None of the video surveillance obtained showed 

Hezekiah Walker having contact with any other individuals.

Hezekiah Walker’s cell phone was found at the crime scene 

and [o]fficers conducted a forensic analysis to review any 

communication that Hezekiah had in the hours leading up to his 

death. Hezekiah Walker exchanged text messages with two exgirlfriends between 2:33 a.m. and 2:39 a.m. Based on the 

surveillance video and text message communications, [Detective] 

Fetrow was able to determine the shooting occurred sometime 

around 2:37 a.m. An analysis of Appellant’s cell phone records 

indicated that he was near the crime scene between 2:27 a.m. 

and 2:46 a.m. on August 18, 2014, the day the shooting occurred.

Through an investigation, Detective Wesley Kahley, an 

expert on gang culture and gang affiliation, determined that 

Appellant represented himself as a member of the [S]outh [S]ide 

criminal street gang in York. Detective Kahley reviewed 

Appellant’s social media posts and conversation during his 

investigation. Appellant made various posts claiming his 

association with the [S]outh [S]ide criminal street gang including:

(1) “[Ots] be my squad,” short for “only the south be my squad,” 

(2) “ClaimGangLife,” and (3) “#600K,” indicating disrespect to 

opposition as “600” refers to the [W]est [S]ide and “K” is short for 

“kill.” Additionally, Appellant has a “F-O-E” tattoo meaning 

“family over everything,” indicative of Appellant’s involvement in 

gang culture.

Acquaintances of Appellant, Marcos Martinez and Raymond 

Bruno Carrasquillo, testified that Appellant and other individuals 

from the South Side used the term or phrase “1017” to refer to 

their friend, Joseph Gomez, also known as Plaga Two Times 

(“Plaga”), who passed away in April of 2013, during a shootout 

with Flair Griggs, an individual who hung out in the “West End.” 

[Martinez and Carrasquillo] testified that ... “beef” and “ops,” were 

two terms used to describe the opposition between the “South 

Side” and “West Side” “groups” of York. Plaga’s death caused beef 

between the South Side and West Side because it made a lot of 

people angry, including Appellant. Appellant had two tattoos in 

memory of Plaga’s death, one that stated, “RIP Plaga,” and 
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another “1017.” [Martinez] went on to testify that Appellant

“wanted to get revenge” for Plaga’s death, and [Carrasquillo]

testified that Appellant was “revengeful” of Plaga’s death. 

Additionally, [Martinez] testified that he and other 

individuals from the South Side were involved in a shootout on 

August 17, 2014, with individuals he believed to be from the West 

End. On the same day of this shootout, Appellant came to 

[Martinez’s] home around 12:00 in the afternoon and retrieved a 

gun, specifically a Colt .45, which was used in the earlier shootout. 

Later that night, Appellant returned to [Martinez’s] home and 

explained that he drove out West looking for “ops” and shot 

someone in the head after the individual told Appellant that he 

was from out West. [Firearm toolmark analysis revealed that the 

cartridge casings from the shooting on August 18 were discharged 

from one of the same guns as the earlier shootout on August 17.]

[Martinez] observed Appellant to be “hype[d],” “excited,” 

and “happy” when informing [Martinez] and other South Side 

individuals that he shot someone from the West End. While 

incarcerated, Appellant was bragging to [Carrasquillo] that he had

a “head shot,” meaning he shot someone in the head and killed 

them, on King Street. Appellant proceeded to tell [Carrasquillo] 

that on August 18, 2014, he was very emotional and decided that 

he would shoot whoever he saw walking on the West Side. 

[Carrasquillo] said Appellant appeared happy and excited about 

the shooting.

Trial Court Opinion, 4/18/22, at 1–5 (record citations omitted).

The jury found Appellant guilty of first-degree murder. On December 

21, 2021, the trial court sentenced Appellant to life in prison without the 

possibility of parole. Appellant filed a timely post-sentence motion, which the 

trial court denied without opinion on January 3, 2022. Appellant timely 

appealed. Both Appellant and the trial court complied with Pennsylvania Rule 

of Appellate Procedure 1925.

Appellant raises five issues on appeal:
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A. Was the evidence insufficient to prove, beyond a reasonable 

doubt, that [Appellant] committed First Degree Murder where: 

(a) there was no eyewitness to the shooting (b) there was no 

forensic evidence attributable to [Appellant], e.g., fingerprints 

or DNA, found either on the victim or even in the vicinity of the 

offense; (c) testimony from two individuals purportedly 

implicating [Appellant] in the offense was so corrupt, polluted 

and contradictory as to make any verdict based thereon 

unreliable and pure conjecture, and (d) the cell triangulation 

testimony was, at best, speculative, thus requiring the 

conviction be reversed and vacated?

B. Alternatively, was the verdict against the weight of the 

evidence and so contrary to the evidence as to shock one’s 

sense of justice, thus requiring that the conviction be reversed, 

and a new trial granted?

C. Did the trial court abuse its discretion, err and infringe on

[Appellant’s] right to due process of law as guaranteed by the 

[federal and state constitutions] by granting the prosecution’s 

motion in limine to admit at trial certain testimony pursuant to 

Rule 404(b) where: (a) the testimony was not relevant, as it 

did not make any material fact at issue more of less probable; 

(b) the testimony was rank propensity evidence which sought 

to establish [Appellant] as a member of a “criminal street gang” 

who had the propensity to engage in violent acts and who may 

have been involved in other uncharged crimes; (c) none of the 

“permitted uses” set forth in Rule 404(b)(2) which would 

permit this propensity evidence applied; and (d) even if some 

permitted use of the bad character evidence existed, the 

probative value of the evidence was outweighed by its potential 

for unfair prejudice, thus requiring that the conviction be 

reversed and a new trial granted?

D. Did the trial court abuse its discretion, err and infringe on 

[Appellant’s] right to due process of law as guaranteed by the 

[federal and state constitutions] by allowing the prosecution to 

present expert testimony concerning gang activities and 

[Appellant’s] alleged gang affiliation where: (a) to the extent 

that any evidence concerning [Appellant’s] involvement with a 

gang was relevant, such type of evidence is not beyond the 

knowledge of an average layperson, and expert testimony was 

not needed to help the jury understand the evidence or 

determine a fact in issue; and (b) the expert testimony only 

emphasized and bolstered the general nature and 
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dangerousness of gang activity and the propensity of gang 

members to engage in criminal conduct, thus requiring that the 

conviction be reversed and a new trial granted?

E. Did the trial court abuse its discretion, err and infringe on 

[Appellant’s] right to due process of law as guaranteed by the 

[federal and state constitutions] by denying [Appellant’s]

motion for a mistrial where the prosecution’s expert on gang 

activities and [Appellant’s] alleged gang affiliation testified that 

gangs are involved in criminal activity, specifically referencing 

drug activity, an offense with which [Appellant] was not 

charged, thus requiring that [Appellant’s] conviction be 

reversed and a new trial granted?

Appellant’s Brief at 7–8 (excess capitalization omitted).

A. Sufficiency of the Evidence

Appellant’s first claim is that the evidence was insufficient to establish 

his identity as the person who killed Walker. He emphasizes the unreliability 

of the evidence against him. Appellant notes that Martinez and Carrasquillo 

had motive to testify favorably for the Commonwealth and gave inconsistent 

accounts of what Appellant told them. He further challenges the accuracy of 

the cell site location information that placed him in the vicinity of the shooting. 

Appellant concludes that in this case, the jury’s verdict could only be the result 

of conjecture and must be overturned.

A sufficiency challenge “presents a question of law and is subject to our 

plenary review under a de novo standard.” Commonwealth v. Moore, 263 

A.3d 1193, 1205 (Pa. Super. 2021) (citing Commonwealth v. Smith, 234 

A.3d 576, 581 (Pa. 2020)). We determine “whether viewing all the evidence 

admitted at trial in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every element of the crime 
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beyond a reasonable doubt.” Commonwealth v. Williams, 255 A.3d 565, 

578 (Pa. Super. 2021) (quoting Commonwealth v. Smith, 97 A.3d 782, 790 

(Pa. Super. 2014)). A jury is generally “free to believe some, all, or none of 

the Commonwealth’s evidence” and to resolve inconsistencies in favor of

either party. Commonwealth v. Jacoby, 170 A.3d 1065, 1078 (Pa. 2017) 

(citing Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011)). 

Identity, like any element of a crime, can be established by evidence that is 

circumstantial and which “need not be positive and certain.” Id. at 579 

(quoting Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super. 

2008)).

However, our Supreme Court has recognized “atypical situations” in 

which “the entire body of evidence introduced at trial which furnished the basis 

for an appellant’s conviction is so deficient that it does not reasonably support 

a finding of guilt beyond a reasonable doubt, as a matter of law.” In the 

Interest of J.B., 189 A.3d 390, 409 (Pa. 2018) (citing Commonwealth v. 

Jackson, 66 A.2d 841, 843 (Pa. 1949)). In such a case, the reviewing court 

must reject the conjectural findings of fact and find the evidence insufficient. 

Id. (citations omitted).

Here, Martinez and Carrasquillo testified that Appellant told them that 

he shot and killed someone on the west side of York, which is consistent with 

Walker’s death. Their testimony, if believed, was sufficient to identify 

Appellant as the shooter. We hold that this testimony is not so inherently 

unreliable that it is insufficient as a matter of law. Notably, both witnesses 
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stated that they had abandoned their gang lifestyles and acknowledged any 

expectation of favorable treatment. Further, their testimony was corroborated 

by common elements between what Appellant told them, as well as the 

identification of the casings down the street from where Walker was shot 

coming from the same gun used in the shootout the day before.

The inconsistencies in testimony were up to the jury to resolve, rather 

than removing the case from consideration. Jacoby, supra. As to Martinez 

and Carrasquillo’s testimony that the shooting occurred around 11 p.m., not 

2:30 a.m., this reflects Appellant’s own misperception of the time he told them 

that he shot Walker. And while McCleary and Daniels did not recall hearing 

any exchange of words before the early morning gunfire, this is logical given 

the time of the shooting and relative volume; a voice, even one shouting down 

the block, may not be heard the same way as a .45-caliber gunshot. The 

totality of the evidence, viewed in a light most favorable to the Commonwealth

as verdict winner, was therefore sufficient to identify Appellant as the person 

who killed Walker. Appellant’s first claim fails.

B. Weight of the Evidence

Appellant’s second claim concerns the denial of his post-sentence 

motion for a new trial based on the weight of the evidence. He argues that 

the trial court abused its discretion by not assessing whether the verdict 

shocked its sense of justice, instead merely deferring to the jury’s findings. 

Had the trial court appropriately reviewed the evidence, Appellant contends, 
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it would have found that the jury’s verdict was so contrary to the weight of 

the evidence as to shock the trial court’s sense of justice.

Our Supreme Court has explained the standard to be applied by a trial 

court in ruling on a weight-of-the-evidence challenge as follows:

An allegation that the verdict is against the weight of the 

evidence is addressed to the discretion of the trial court. 

Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994). A new 

trial should not be granted because of a mere conflict in the 

testimony or because the judge on the same facts would have 

arrived at a different conclusion. Thompson v. City of Phila.,

493 A.2d 669, 672 (Pa. 1985). A trial judge must do more than 

reassess the credibility of the witnesses and allege that he would 

not have assented to the verdict if he were a juror. Trial judges, 

in reviewing a claim that the verdict is against the weight of the 

evidence do not sit as the thirteenth juror. Rather, the role of the 

trial judge is to determine that “notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice.” 

Id. at 674.

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

format altered). Under this standard, a trial court awards relief upon a finding 

that “the jury’s verdict is so contrary to the weight of the evidence as to shock 

one’s sense of justice and the award of a new trial is imperative so that right 

may be given another opportunity to prevail.” Jacoby, 170 A.3d at 1080 

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). This 

stands in contrast to an assessment of evidentiary sufficiency, which draws 

reasonable inferences in favor of the Commonwealth and accepts that jurors 

are free to believe any evidence. Id. at 1078.
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An appellate court, in turn, reviews whether the trial court abused its 

discretion in ruling on the weight claim, not whether the verdict itself was 

against the weight of the evidence. Commonwealth v. Rogers, 259 A.3d 

539, 541 (Pa. Super. 2021) (citing Commonwealth v. Windslowe, 158 A.3d 

698, 712 (Pa. Super. 2017)). “An abuse of discretion is not merely an error 

of judgment, but is rather [1] the overriding or misapplication of the law, [2]

the exercise of judgment that is manifestly unreasonable, or [3] the result of 

bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Id.

(quoting Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017)). 

It is a misapplication of the law, and thus an abuse of discretion, for a trial 

court to deny a weight challenge based only on evidentiary sufficiency.

Commonwealth v. Sullivan, 820 A.2d 795, 806–07 (Pa. Super. 2003). This 

Court’s role is then to remand for the trial court to apply the proper standard. 

Id. at 807 n.12 (citing Widmer, 744 A.2d at 752).

In reviewing this issue, the trial court set forth the proper legal standard 

to be followed in assessing a weight of the evidence claim. Trial Court Opinion, 

4/18/22, at 9. (“A true weight of the evidence challenge concedes that 

sufficient evidence exists to sustain the verdict but questions which evidence 

is to be believed. Exclusively, the finder of fact is to determine the weight of 

the evidence and is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. ... When reviewing a challenge to 

the weight of the evidence, the verdict may be reversed only if it is so contrary 
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to the evidence as to shock one’s sense of justice.” (footnotes, citations and 

quotation marks omitted)). In applying this correct standard to the case sub 

judice, the trial court found as follows:

The elements and supporting evidence for the charge[] of [f]irst-

[d]egree [m]urder are listed in section I [of the trial court’s 

1925(a) opinion].[2] The jury, sitting as the finder of fact for the 

charges, was free to determine the credibility of all witnesses and 

to make inferences based on all the evidence presented at trial. 

Appellant states that “the cell phone triangulation evidence was, 

at best, speculative,” but fails to support this statement with any 

facts or argument; however, the jury was free to determine the 

credibility of the testimony related to Appellant’s cell phone 

records. Further Appellant alleges that “the testimony of [Marcos] 

Martinez and [Raymond] Bruno-Carrasquillo was so corrupt, 

polluted and incredible that no reliable jury verdict could be 

premised on this testimony;” however, the jury, as factfinder was 

free to determine the credibility of each witness, and likely found 

both Martinez and Bruno-Carrasquillo to be credible witnesses, 

and thus found that Appellant informed both Martinez and BrunoCarrasquillo that he has a “headshot” on the [W]est [S]ide on the 

same date that Hezekiah Walker was killed by a gunshot wound 

to the head on the [W]est [S]ide.

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2

In ruling on the sufficiency of the evidence challenge raised by Appellant, 

the trial court stated as follows:

[T]he evidence established that Appellant wanted revenge against 

the [W]est [S]ide for the death of his friend, [Joseph Gomez, also 

known as Plaga Two Times], and he told at least two individuals 

that he shot someone on the [W]est [S]ide the same day that 

Hezekiah Walker was shot and killed by a gun shot wound to the 

head on the [W]est [S]ide. Appellant outwardly represented 

himself as being associated with the [S]outh [S]ide criminal street 

gang in York and publicly displayed his affiliation with the [S]outh 

[S]ide by posting about killing individuals on the [W]est [S]ide, 

the [S]outh [S]ide’s opposition []. Additionally the cell phone 

analyst testimony and evidence placed Appellant in the vicinity of 

the crime scene on the date and time of the shooting.” 

Trial Court Opinion, 4/18/22, at 8 (footnotes omitted).
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Id. at 9-10. Although the trial court did not expressly state that, 

notwithstanding all the facts, certain facts are so clearly of greater weight that 

to ignore them or give them equal weight with all the facts is to deny justice, 

or that the jury’s verdict is so contrary to the weight of the evidence as to 

shock one’s sense of justice, it is clear that the trial court applied the correct 

legal standard and did not abuse its discretion in denying Appellant’s weight 

of the evidence claim. Accordingly, Appellant’s second issue merits no relief.

C. Evidence that Appellant Was in a Gang

Appellant’s third claim is that the trial court erred in admitting testimony 

about his gang affiliation. He submits that this evidence should have been 

excluded under Pennsylvania Rule of Evidence 404 because it showed only 

that he had a propensity for violence and was not relevant for any permissible 

purpose. Further, Appellant argues that the potential for unfair prejudice from 

evidence that he was in a violent “criminal street gang” outweighed any 

probative value. He posits that the evidence was so pervasive and 

inflammatory that it stripped him of the presumption of innocence and denied 

his right to a fair trial, despite the trial court’s limiting instruction.

The Commonwealth responds that the trial court properly admitted 

evidence that Appellant was affiliated with a gang. It explains that the 

evidence was relevant to prove Appellant’s motive and to show the sequence 

of events leading up to the shooting. The Commonwealth also argues that 
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the trial court made no error in finding that the probative value of the evidence 

outweighed the potential that it would unfairly prejudice Appellant.

This Court reviews pre-trial evidentiary rulings to determine whether the 

trial court abused its discretion. Frazer v. McEntire, 265 A.3d 777, 783 (Pa. 

Super. 2021) (citing In re Fiedler, 132 A.3d 1010, 1023 (Pa. Super. 2016)). 

In general, evidence is admissible only if it is relevant. Pa.R.E. 402. 

“Evidence is relevant if it tends to make a material fact more or less probable 

than it would be without the evidence.” Commonwealth v. Lehman, 275 

A.3d 513, 519 (Pa. Super. 2022) (quoting Commonwealth v. Christine, 125 

A.3d 394, 398 (Pa. 2015)); see Pa.R.E. 401. In a criminal case, evidence of 

motive is always relevant. Commonwealth v. Gwaltney, 442 A.2d 236, 241 

(Pa. 1982) (citing Commonwealth v. Faison, 264 A.2d 394 (Pa. 1970)). 

Rule 404 provides for the exclusion of certain evidence that otherwise 

meets the test for relevance:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character 

trait is not admissible to prove that on a particular occasion the 

person acted in accordance with the character or trait.

* * *

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or 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.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident. 
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In a criminal case this evidence is admissible only if the probative 

value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(a)(1), (b)(1)–(2). Under this rule, the Commonwealth may not 

introduce evidence solely to show that the defendant has a “propensity for 

committing criminal acts.” Commonwealth v. Hairston, 84 A.3d 657, 665 

(Pa. 2014) (citing Pa.R.E. 404(b)(1) and Commonwealth v. Lark, 543 A.2d 

491 (Pa. 1988). However, subject to the balancing test of Rule 404(b)(2), 

evidence of a defendant’s other acts can be admitted if it is relevant for 

another purpose, including motive and the “res gestae exception.” Id. A jury 

is presumed to follow instructions to consider evidence of a defendant’s “other 

act” only for one of these limited purposes. E.g., Commonwealth v. 

Arrington, 86 A.3d 831, 845 n.11 (Pa. 2014) (citing Commonwealth v. 

Brown, 786 A.2d 961, 971 (Pa. 2001)).

Pennsylvania courts have previously addressed admissibility of the 

“other act” of being a gang member. Gang membership is relevant to prove 

motive to kill, such as killing a member of a rival gang. Commonwealth v. 

Gwaltney, 442 A.2d 236, 241 (Pa. 1982)3 (citing Commonwealth v. 

Faison, 264 A.2d 394 (Pa. 1970)); Commonwealth v. Blackwell, 363 A.2d 

1316, 1317 (Pa. Super. 1976). However, such evidence of motive is not 

limited to cases where the victim was in a rival gang. For example, when a 

non-gang victim stole drugs from a prospective gang member, a defendant’s 

____________________________________________

3 We cite cases from before the adoption of the Pennsylvania Rules of Evidence

mindful that the Rules were not intended to change existing law. See 

Commonwealth v. Minich, 4 A.3d 1063, 1072 (Pa. Super. 2010).
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gang membership was relevant evidence of his motive for killing the victim as 

a gang enforcer. Commonwealth v. Reid, 642 A.2d 453, 461 (Pa. 1994). 

As another example, a defendant’s gang membership was relevant to explain 

his participation in shooting at a non-gang member who had sold fake drugs 

to a gang member’s girlfriend. Commonwealth v. Wilson, No. 1470 EDA 

2019, 2020 WL 2315616, at *5–7 (Pa. Super. May 11, 2020) (unpublished 

memorandum).4 Notably, the relevance of gang membership is not limited to 

proof of a criminal conspiracy, which is a separate purpose than proof of 

motive to kill. See Gwaltney, 442 A.2d at 241 (describing these purposes 

as two reasons evidence of gang membership was properly admitted at trial).

Here, Appellant’s gang membership was relevant as evidence of his 

motive for killing Walker. The Commonwealth’s theory at trial was that 

Appellant went to the West Side territory and shot the first person he saw 

there. That Appellant was in the South Side gang makes this more likely and 

helps explain his motive in doing so—revenge over the death of Plaga the 

previous year at the hands of a West Side gang member.

Further, the trial court did not abuse its discretion in balancing the 

probative value and potential for unfair prejudice stemming from evidence 

that Appellant was in the South Side gang. N.T., 5/27/21, at 5–6. The court 

addressed concerns about the breadth of the Commonwealth’s evidence and 

____________________________________________

4 This Court may cite non-precedential decisions filed after May 1, 2019 for 

their persuasive value. Superior Court Operating Procedures § 65.37.
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found that using the word “gang” would not be overly prejudicial.5 Moreover, 

the trial court instructed the jury that it could consider the evidence of 

Appellant’s gang involvement only as proof of motive. N.T., 10/20/21, at 394. 

We presume that the jury was able to follow this instruction and thus conclude 

that the trial court did not abuse its discretion in applying the Rule 404(b)(2) 

balancing test. Arrington, supra. 

Appellant’s third claim fails.

D. Expert Testimony on Gangs

Appellant’s fourth claim is that the trial court erred in allowing testimony 

from Detective Kahley, who was qualified as an expert in gang membership 

affiliation and identification in York City, and who concluded that Appellant

____________________________________________

5 The only witness who used the word “gang” was Detective Kahley, who

identified the South Side group as a “criminal street gang.” E.g., N.T., 

10/20/21, at 338 (emphasis added). We note that “criminal street gang” is a 

well-defined term in federal law and several state statutes. 18 U.S.C. § 521; 

see United States v. Green, 618 F.3d 120, 123 (2d Cir. 2010) (rejecting a 

challenge to the federal definition); see, e.g., Alaska Stat. Ann. 

§ 11.81.900(b)(13); Cal. Penal Code § 186.22(f); Md. Crim. Law § 9-804 

(amended 2020 to replace “criminal gang” with “criminal organization”); N.J. 

Stat. Ann. § 2C:33-29. By contrast, Pennsylvania law only defines a “criminal 

gang” in an offense that was not charged here. 18 Pa.C.S.A. § 5131(e); see

42 Pa.C.S.A. § 9720.4 (sentencing enhancement).

Appellant did not object to Detective Kahley’s use of the phrase “criminal 

street gang” at trial or in his post-sentence motion. He first challenged the 

admissibility of this phrase in his Rule 1925(b) statement. This was too late 

for the trial court to remedy any heightened prejudice caused by the 

detective’s use of this legal term of art. Therefore, Appellant waived any 

challenge to the phrase “criminal street gang.” See Commonwealth v. 

Mason, 130 A.3d 601, 639 & n.47 (Pa. 2015) (finding waiver where a 

defendant first raised a claim in his Rule 1925(b) statement).
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was in the “South Side Criminal Street Gang.” See N.T., 10/20/21, 320–338. 

Appellant contends that Detective Kahley’s testimony was not necessary or 

helpful for the jury to understand any fact in issue. Given the testimony from 

Martinez, Carrasquillo, and Detective Fetrow, Appellant submits that allowing 

Detective Kahley’s inflammatory, prejudicial testimony was reversible error.

The Commonwealth responds that Detective Kahley’s expertise went

beyond that of a layperson and that it was needed to prove Appellant’s gang 

affiliation. It adds that the trial court properly instructed the jury to minimize 

any prejudice stemming from the evidence that Detective Kahley used to 

identify Appellant as a member of the South Side gang.

As with other evidence, we review the admission of expert testimony to 

determine whether the trial court abused its discretion. Commonwealth v. 

Huggins, 68 A.3d 962, 965 (Pa. Super. 2013) (citing Commonwealth v. 

Watson, 945 A.2d 174, 176 (Pa. Super. 2008)). Pennsylvania law permits 

expert testimony where:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant 

field.

Pa.R.E. 702. Testimony from an appropriately qualified expert “is permitted 

only as an aid to the jury when the subject matter is distinctly related to a 

science, skill, or occupation beyond the knowledge or experience of the 
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average layman.” Commonwealth v. Williams, 274 A.3d 722, 729 (Pa. 

Super. 2022) (quoting Commonwealth v. Duffey, 548 A.2d 1178, 1186 (Pa. 

1988)).

Here, Appellant’s gang affiliation was relevant as evidence of his motive 

for shooting Walker, the first person he encountered when he went to the 

West Side in revenge for the death of Plaga. Gwaltney, supra. It was 

therefore a fact in issue in determining Appellant’s guilt. Furthermore, 

Detective Kahley possessed specialized knowledge beyond that of an average 

layperson that he used to identify Appellant as a member of the South Side 

gang. The detective explained that to identify gang members, he used the 

FBI’s process that includes consideration of numerous criteria. N.T., 

10/20/21, at 328. Based on his review of these criteria, he concluded that 

Appellant represented himself as a “member of the South Side Criminal Street 

Gang in York.” Id. at 328–338 (describing factors).6

While other witnesses provided information about the affiliated groups 

in York City and the background of Plaga’s death, Detective Kahley’s expertise 

____________________________________________

6

In his reply brief, Appellant notes that Detective Kahley opined that certain 

hashtags meant “criminal activity related to the gang life,” when they were 

really titles of mix tapes by a rapper. Appellant did not challenge this aspect 

of the detective’s testimony at trial. He did not cross-examine Detective 

Kahley at all. We note that the trial court instructed the jury that another one 

of Appellant’s posts was just song lyrics by the same rapper, which was “not 

to suggest that Appellant in any way has done anything other than pirated the 

lyrics of a rap song relative to an incident that occurred in York City.” N.T., 

10/20/21, at 314. Cf. Commonwealth v. Williams, 245 A.3d 710, 722 &

n.17 (Pa. Super. 2021) (finding a cautionary instruction mitigated any unfair 

prejudice stemming from a jail letter and rap song lyrics used to establish the 

defendant’s identity as the shooter).
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filled in the gap of concluding that Appellant was a member of the South Side 

gang. Because this was proper expert testimony, the trial court did not abuse 

its discretion in granting the Commonwealth’s motion in limine to admit it.

Appellant’s fourth claim fails.

E. Mistrial

Appellant’s fifth claim is that the trial court erred in denying his motion 

for mistrial after Detective Kahley mentioned drugs. The relevant excerpt of 

testimony is as follows:

[Assistant District Attorney Lombardo:] I would like to draw your 

attention to 2014 and 2013 in York City. Were there gangs in York 

City at that time?

[Detective Kahley:] Yes. Throughout my career, there have been 

gangs in York City.

Q. What kind of gangs have there been?

A. Our biggest problems come from local criminal street gangs, 

which you also see the national gangs, such as Bloods, Crips, Latin 

Kings. Those forms of group[s] that come to our area. We really 

saw a rise in the mid-’90s of our local street gangs that were kind 

of banding together because of members of the United Blood 

Nation coming into York taking over the drug selling areas.

N.T., 10/20/21, at 324 (emphasis added).

Appellant moved for a mistrial based on the reference to drug dealing. 

The trial court denied the motion and provided a cautionary instruction:

THE COURT: Ladies and gentlemen, in the answer of Detective 

Kahley, there was reference made to gangs who engage in drug 

dealing. This case is not about drug dealing. It never has been. 

They have been instructed that they will—this will not occur. I so 

instruct the detective. Don’t take it as any indication that this is 

a trial about that. It’s clearly not. Thank you.
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Id. at 326.

Appellant now argues that the instruction was flawed because it did not 

tell the jury to disregard the testimony and avoid attributing it to Appellant’s

guilt. Even if the instruction had been proper, Appellant submits that it would 

have been inadequate to cure the error in light of Detective Kahley’s other 

testimony that Appellant was a member of a criminal street gang. He 

concludes that the trial court abused its discretion by denying his motion for 

mistrial.

The Commonwealth responds that Detective Kahley’s remark was not 

intentionally elicited, was not exploited, and was cured of taint by the trial 

court’s instruction. Commonwealth’s Brief at 49 (citing Commonwealth v. 

Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009)). Therefore, the 

Commonwealth argues that the trial court did not abuse its discretion by 

denying Appellant’s motion.

A ruling on a motion for mistrial is within the discretion of the trial court. 

As such:

“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.” . . . “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.” It is also settled that a mistrial is not necessary 

where cautionary instructions are adequate to overcome any 

potential prejudice. The law presumes that a jury will follow the 

trial court’s instructions.
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Commonwealth v. Dula, 262 A.3d 609, 633 (Pa. Super. 2021) (quoting 

Commonwealth v. Gilliam, 249 A.3d 257, 274–75 (Pa. Super. 2021)).

Here, we discern no abuse of discretion. Detective Kahley’s reference 

to selling drugs arose while he was providing background information about 

the history of gangs in York City. Notably, the detective did not state that 

Appellant had any involvement with drug sales, nor that this homicide case 

was motivated by drugs. Moreover, the trial court promptly instructed the 

jury that the case was not about drug dealing. Absent any indication that the 

jury disregarded this instruction, we conclude that the trial court’s instruction 

was sufficient to cure any prejudice from Detective Kahley’s solitary remark 

about drug sales. Therefore, the trial court did not abuse its discretion in 

denying Appellant’s motion for a mistrial, and Appellant’s fifth claim fails.

Judgment of sentence affirmed.

President Judge Panella joins.

Judge Kunselman files a Concurring and Dissenting Memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/25/2023