J-A20009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DARNELL JENKINS, :

:

Appellant : No. 2658 EDA 2013

Appeal from the Judgment of Sentence September 3, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0005600-2011

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 20, 2015

Appellant, Darnell Jenkins (“Jenkins”), appeals from the judgment of 

sentenced entered on September 3, 2013 by the Court of Common Pleas of 

Philadelphia County, Criminal Division, following his convictions of firstdegree murder, firearms not to be carried without a license, carrying 

firearms on public streets or public property in Philadelphia, and possessing 

instruments of crime (“PIC”).1 For the reasons that follow, we vacate 

Robinson’s judgment of sentence and remand for a new trial.

The trial court summarized the facts of this case as follows:

On September 8, 2010, at about 10:25 p.m., 

[Jenkins allegedly] shot Lamont Smith (“Smith”) in 

the head as a result of an on-going dispute between 

them. At trial, the jury heard that Jared Stovall 

(“Stovall”), on the day before the shooting, made a 

plan to get defendant Jenkins and the victim Smith 

 

1

 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a). 
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together because Stovall wanted Jenkins and Smith 

to “squash the beef” between them. Multiple phone 

calls between Stovall and decedent Smith and 

between Stovall and Jenkins confirm that Stovall set 

up the meeting between Jenkins and Smith.

Jenkins was seemingly apprehensive about the 

meeting because earlier in the day [on] September 

8

th someone had shot at him. Accordingly, Jenkins 

decided that he needed additional weapons to bring 

to the arranged meeting and he asked neighborhood 

friend Martamus Watts (“Watts”) to get him a 

“second” gun. Numerous text messages sent 

between Jenkins and another number ending in 3705 

both before and after the shooting on September 8, 

2010 confirm that Jenkins brought a gun with him to 

the meeting. Specifically, at 10:16 p.m.[,] Jenkins 

texted “He on his way with dudes frm [sic] Willows. 

l got bull Jerry hammer on me.” Then there was a 

response text saying “You want me to bring minds 

[sic] out or what!” At 10:19 p.m., approximately six 

minutes before the murder, Jenkins responded 

saying “Yea, he bring niggas frm [sic] 58 and 

Willows.”

The arranged meeting turned into an argument 

between Jenkins and Smith and gunfire erupted. 

Witnesses heard about four or five gunshots and saw 

muzzle flash from Jenkins’ hand. Immediately after 

hearing the gunshots, the witnesses saw Smith fall 

to the ground. Jenkins and Stovall both took off 

running westbound on Chester Street from 60th to 

61st. Stovall later texted one of the witnesses to see 

if Smith was dead and if there were “any shells 

outside.”

Philadelphia police officers arrived on scene and 

found Smith lying on his right side with a large pool 

of blood under his head. The officers recovered two 

cell phones from Smith’s pocket as well as his keys 

and glasses. Additionally, the officers recovered 

Smith’s five-shot black revolver with five live 

cartridges that had been underneath his waist area. 
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Medics arrived and transported Smith to the Hospital 

of the University of Pennsylvania, where he was 

pronounced dead on September 9, 2010 at 1:58 

a.m. An autopsy revealed that victim Smith had 

sustained three .38/.357 caliber gunshots to the 

head, specifically two to the neck and one to the 

brain.

Trial Court Opinion, 6/27/14, at 3-4 (footnotes omitted).

On September 3, 2013, following trial, a jury found Jenkins guilty of 

the above-referenced crimes. At the conclusion of trial, the trial court 

sentenced Jenkins to life imprisonment without the possibility of parole. On 

September 11, 2013, Jenkins filed a timely notice of appeal. On April 25, 

2014, the trial court ordered Jenkins to file a concise statement of the errors 

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules 

of Appellate Procedure. On May 16, 2014, Jenkins filed his timely Rule 

1925(b) statement.

On appeal, Jenkins raises the following issues for our review and 

determination:

1. Did not the trial court err in permitting Roland 

Jackson to testify to incidents of intimidation, where 

there was no evidence that those incidents occurred 

at [Jenkins’] behest, where the witness was fully 

cooperative with the prosecution both at the time of 

his initial statement and at trial, and where such 

evidence was therefore both irrelevant and grossly 

prejudicial?

2. Did not the attorney for the Commonwealth 

commit gross and intentional misconduct by violating 

the [trial] court’s order limiting the introduction of 

prior statements and testimony of Roland Jackson, 
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repeatedly inquiring as to matters specifically barred 

by the court, and commenting in the jury’s presence 

that he was not being “allowed” to introduce certain 

material, and did not the court err in denying the 

defense’s motion for a mistrial on the basis of that 

misconduct?

Jenkins’ Brief at 3.

For his first issue on appeal, Jenkins argues that the trial court erred in 

permitting the Commonwealth to question Roland Jackson (“Jackson”), the 

Commonwealth’s principal eyewitness, about how he was threatened and 

told not to come to court prior to testifying at the preliminary hearing in this 

case. Jenkins’ Brief at 12-18. Jenkins asserts that because there is no 

evidence linking him to these threats and because the Commonwealth did 

not use this testimony to explain inconsistencies in Jackson’s testimony or to 

explain any prior inconsistent statements made by Jackson, the evidence 

was irrelevant and grossly prejudicial. Id. at 12, 15-16. 

Jenkins’ first issue challenges an evidentiary ruling made by the trial 

court. We review a trial court’s evidentiary decisions according to the 

following standard:

The decision to admit or exclude evidence is 

committed to the trial court’s sound discretion, and 

evidentiary rulings will only be reversed upon a 

showing that a court abused that discretion. A 

finding of abuse of discretion may not be made 

merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous. Matters within the trial 
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court’s discretion are reviewed on appeal under a 

deferential standard, and any such rulings or 

determinations will not be disturbed short of a 

finding that the trial court “committed a clear abuse 

of discretion or an error of law controlling the 

outcome of the case.” 

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quotations 

and citations omitted).

The questioning to which Jenkins takes issue proceeded as follows:

Q There were a couple of incidents that occurred 

after [the interview with detectives], both on a bus 

and at your house, that caused you not to come to 

the [c]ourt when you were subpoenaed for a 

preliminary hearing in the months that followed 

September of 2010?

A Yes.

Q I’m not asking and you’re not to say who it 

was who came or anything like that, but were you 

instructed not to come to court?

A Yes.

Q That was the first time getting off the bus?

A Yes.

Q And then somebody came or two people came 

to your home?

A Yes.

Q How did that make you feel?

A I was mad.

Q Also scared?
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A A little bit.

Q If not for you but for your three-year-old son?

A I ain’t really scared; I’ma [sic] be honest. I 

ain’t scared of nobody.

N.T., 8/27/13, at 56-57.

Regarding the threatening of witnesses, this Court has held:

In general, “‘threats by third persons against ... 

witnesses are not relevant [and thus not admissible 

into evidence] unless ... the defendant is linked in 

some way to the making of the threats.’” 

Commonwealth v. Carr, [] 259 A.2d 165, 167 

([Pa.] 1969) (citation omitted). Nevertheless, an 

exception to the rule exists where the evidence in 

question was not offered to prove the accused’s 

guilt “but to explain a [witness’] prior inconsistent 

statement.” [Id.] at 167.

Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) 

(brackets, except for citation modifications, in original); see also

Commonwealth v. Collins, 702 A.2d 540, 544 (Pa. 1997) (“[T]he 

Commonwealth’s line of questioning was permissible to demonstrate [that 

the witness’] motive for changing his testimony was that he was afraid of 

the consequences if he testified truthfully.”); Commonwealth v. Martin, 

515 A.2d 18, 21 (Pa. Super. 1986) (“When the evidence in question is not 

offered to prove the defendant’s guilt, but to explain a [witness’] prior 

inconsistent statement, however, it is admissible.”). “Such evidence, 

however, must be used to rehabilitate the witness after the defense, in an 

effort to discredit the witness, has questioned the witness about the previous 
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testimony.” Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa. 

Super. 1997) (emphasis in original).

We conclude that the trial court erred in allowing the Commonwealth 

to question Jackson about the threats he received prior to testifying at the 

preliminary hearing. First, as the Commonwealth concedes and the certified 

record on appeal confirms, there is no evidence linking Jenkins to making 

threats against Jackson. See N.T., 8/26/13, at 11. Although the record 

does reflect that Jenkins’ brother Jermaine was responsible for threatening 

Jackson, there is no evidence Jenkins wanted his brother or encouraged his 

brother to do so. See id. at 4-21; N.T., 8/30/13, at 85; see also Jenkins’ 

Motion In Limine, 8/19/13, ¶ 1(d.). Additionally, while arguing the matter 

prior to trial, the prosecutor stated that he was not going to make any 

connection between Jenkins and the threats and that he was not going bring 

out that it was Jenkins’ brother who threatened Jackson. N.T., 8/26/13, at 

11. Furthermore, the trial court instructed the jury that they could not “infer 

that [Jenkins] in any way directed, requested or even was aware that the 

contact was made or even knew the people who made the contact.” N.T., 

8/30/13, at 85. Thus, the jury heard no evidence linking Jenkins to threats 

made against Jackson. 

Second, the certified record also reflects that the Commonwealth did 

not offer the evidence of the threats against Jenkins to explain a prior 

inconsistent statement. The Commonwealth questioned Jackson about the 
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threats he received on direct examination, not redirect examination. See

N.T., 8/27/13, at 56-57. While Jenkins did attempt to impeach Jackson at 

trial with portions of his testimony from the preliminary hearing, see id. at 

93-94, 106-10, the Commonwealth never offered the threats against 

Jackson as an explanation for these inconsistencies. Thus, the 

Commonwealth did not use the evidence of the threats against Jackson 

following an effort by Jenkins’ counsel to discredit Jackson by questioning 

him about previous testimony. See Rickabaugh, 706 A.2d at 838.

The Commonwealth argues that the evidence of threats against 

Jackson was admissible “to show their impact on the witness,” “to allow the 

jury to fairly evaluate Jackson’s demeanor,” and to assist in the jury’s 

determination of Jackson’s state of mind. Commonwealth’s Brief at 14, 20. 

The Commonwealth asserts that Jackson appeared agitated while on the 

stand, which it contends the jury could have attributed “to a lack of candor 

or malice towards [Jenkins].” Id. at 14-15. As stated above, evidence that 

a witness was threatened by someone other than the defendant is generally 

inadmissible at trial. See Bryant, 462 A.2d at 788. The narrowly 

prescribed exception to the general rule is that such evidence is admissible 

only to explain a prior inconsistent statement. See id. The exception to the 

rule proposed by the Commonwealth here, namely that the evidence is 

admissible so that the jury can assess the witness’ state of mind, is so broad 

that it would, in practice, swallow the general rule. In the present case, the 
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Commonwealth contends that the threats to Jackson show that he testified 

credibly despite fear of retribution. Commonwealth’s Brief at 16. Such an 

argument, however, could be (and presumably would be) made for any 

witness testifying that he or she had received some threat prior to taking the 

stand. This result would be contrary to the well-established law of 

Pennsylvania in this area.

Additionally, the Commonwealth argues that the evidence of threats 

against Jackson is admissible to explain why he did not voluntarily come 

forward with information about Smith’s murder and to explain why he was 

not initially forthcoming with police. Id. at 15. Jackson, however, testified 

that he did not receive any threats until after his initial police interview and 

prior to when he was to testify at the preliminary hearing.2 N.T., 8/27/13, 

at 56. Thus, the threats Jackson received after his initial police interview are 

not relevant to explain why he did not voluntarily come forward with 

information about the murder or why he was not initially forthcoming with 

police.3

 

2

 We note that it was the Commonwealth, and not Jenkins’ counsel, who 

elicited the testimony about Jackson not being initially forthcoming when he 

spoke to police. See N.T., 8/27/13, at 55-56.

3

 Furthermore, the Commonwealth contends that the evidence of threats 

against Jackson is admissible because the basis of Jenkins’ defense, as 

indicated by Jenkins’ counsel’s opening statement, was that Jackson was not 

a credible witness who was falsely accusing Jenkins of murder and that it 

was therefore proper to preemptively address Jackson’s credibility on direct 

examination by bringing out the evidence of threats against Jackson. See
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The testimony regarding the threatening of Jackson did not implicate 

Jenkins nor was it elicited in response to Jenkins’ counsel impeaching 

Jackson’s testimony. Thus, the trial court clearly erred in admitting the 

evidence of threats against Jackson. See Bryant, 462 A.2d at 788. This 

does not end our inquiry, as we must now determine whether this error was 

harmless. See Rickabaugh, 706 A.2d at 838 (“we must now consider 

whether the error warrants a reversal of Appellant’s conviction; for it is wellsettled that not every legal mishap prejudices a defendant to the extent that 

a reversal is necessary”). Our Supreme Court has stated the following 

regarding the harmless error doctrine:

“The harmless error doctrine, as adopted in 

Pennsylvania, reflects the reality that the accused is 

entitled to a fair trial, not a perfect trial.” 

Commonwealth v. Rasheed, [] 640 A.2d 896, 898 

([Pa.] 1994); Commonwealth v. Story, [] 383 

A.2d 155 ([Pa.] 1978). We have described the 

proper analysis as follows:

Harmless error exists if the record 

demonstrates either: (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 

 

Commonwealth’s Brief at 15-16 n.4. The Commonwealth, however, does 

not cite any pertinent authority in support of this argument. See id. Rather 

the Commonwealth cites two inapplicable cases holding that where a 

defendant bases his or her defense on impeaching a witness’ credibility, the 

Commonwealth may introduce prior consistent statements before the 

defense impeaches the witness on cross-examination. See id. (citing 

Commonwealth v. Cook, 952 A.2d 594, 625-26 (Pa. 2008); 

Commonwealth v. Smith, 540 A.2d 246, 258 (Pa. 1988)). 
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evidence which was substantially similar 

to the erroneously admitted evidence; or 

(3) the properly admitted and 

uncontradicted evidence of guilt was so 

overwhelming and the prejudicial effect 

of the error was so insignificant by 

comparison that the error could not have 

contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (quoting 

Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997); 

Commonwealth v. Williams, 573 A.2d 536 (Pa. 1990)).

We conclude that the harmless error doctrine is inapplicable here 

because none of the three above-referenced requirements prongs of the 

were satisfied in this case. First, the trial court’s error was not de minimis 

and did prejudice Jenkins because it predisposed the jury to believe 

Jackson’s testimony. As the Commonwealth readily acknowledged, 

That [Jackson] chose to testify, in the face of 

threats, was also relevant because it spoke volumes 

about his credibility. It was reasonable for the jury 

to conclude that the witness would only have faced 

down those threats if he had actually seen [Jenkins] 

murder [Smith], and not merely to falsely accuse 

someone. 

Commonwealth’s Brief at 16. 

It is well settled, however, that “the question of a witness[’] credibility 

is reserved exclusively for the jury.” Commonwealth v. Alicia, 92 A.3d 

753, 761 (Pa. 2014) (quoting Commonwealth v. Davis, 541 A.2d 315, 317 

(Pa. 1988)); see also Commonwealth v. Kane, 10 A.3d 327, 334 
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(Pa. Super. 2010) (holding that the “credibility of witnesses is a matter 

within the exclusive province of the factfinder”). Additionally, “Evidence of a 

witness[’] character for truthfulness or honesty is not admissible to bolster 

the witness[’] credibility unless the witness[’] truthfulness and honesty have 

first been attacked.” Commonwealth v. Schwenk, 777 A.2d 1149, 1156 

(Pa. Super. 2001)

 By allowing the Commonwealth to introduce evidence of the 

intimidation of Jackson to demonstrate that he was a credible witness, 

without Jackson’s credibility having first been attacked, the trial court 

permitted the Commonwealth to invade the province of the jury’s exclusive 

right to make credibility determinations. See Commonwealth v. Smith, 

567 A.2d 1080, 1083 (Pa. Super. 1989) (holding that by introducing

evidence of a witness’ credibility prior to the defense impeaching that 

witness, the Commonwealth “usurped the credibility determining function of 

the jury”). The improperly admitted evidence of the intimidation of Jackson 

allowed the Commonwealth to show that Jackson, the lone eyewitness to the 

murder in this case and the only source of evidence that could put Jenkins at 

the scene of the crime, testified in the face of threats and potential 

retribution. This predisposed the jury to believe and find credible the 

testimony of the Commonwealth’s most important witness. Consequently, 

the trial court’s error in this respect was not de minimis and was prejudicial 

to Jenkins. 
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Second, the erroneously admitted evidence was not merely cumulative 

of other untainted evidence that was substantially similar to the erroneously 

admitted evidence. Jackson was the lone eyewitness of the murder in this 

case. He provided the only testimony that placed Jenkins at the scene of the 

crime and was the only witness that identified Jenkins as the person that 

shot Smith. 

Third, we cannot conclude that the trial court’s error could not have 

contributed to the verdict as the properly admitted and uncontradicted 

evidence of guilt was not overwhelming and the prejudicial effect of the error 

was not insignificant by comparison. A review of all of the evidence of guilt 

introduced in this case, excluding the testimony of Jackson, reveals the 

following. 

Martamus Watts (“Watts”), who had known Jenkins for a couple 

months prior to Smith’s murder, testified that he met with Jenkins on 

September 8, 2010, approximately a half hour before Smith was killed. 

N.T., 8/26/13/, at 157-58. Watts stated that Jenkins spoke briefly with him 

about an earlier altercation Jenkins had in which someone had shot at him. 

Id. Watts recounted that Jenkins asked Watts if he could get him a second 

gun because he was going to meet a couple of men near 60th Street and 

Chester Street to “squash the beef” between them and that he would feel 

safer if he had another weapon. Id. at 159-62.
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Rasheed Dublin (“Dublin”) testified that when was coming home from 

work on September 8, 2010, between 10:20 and 10:30 p.m., he observed 

three black males on the 6000 block of Chester Street, none of whom he 

recognized, talking with one another. N.T., 8/29/13, at 50-52. Once Dublin 

was inside his house, he heard multiple gunshots. Id. at 51-52. Dublin 

immediately ran outside and upon observing Smith lying on the ground in a 

pool of blood, dialed 911. Id. at 51-53. Dublin was unable to identify either 

Jenkins or Stovall as one of the three men he saw conversing on the 600 

block of Chester Street. Id. at 52. After he reviewed a picture of Stovall,

whom he recognized from the neighborhood, Dublin further testified that he 

could definitely say that Stovall was not one of the three men he observed 

that evening. N.T., 8/29/13, at 58; see also N.T., 8/30/13, at 17.

Officer Charles Henry (“Officer Henry”), of the Philadelphia Police 

Department, testified that he and Sergeant Michael Davis (“Sergeant Davis”) 

responded to a radio call, at approximately 10:25 p.m. on September 8, 

2010 for shots fired near 60th Street and Chester Street. N.T., 8/27/13, at 

146-47. Officer Henry stated that the flash information described two black 

males in their mid-twenties, both approximately 5’7”, fleeing westbound on 

Chester Street from 60th to 61st wearing white t-shirts, and blue jeans, one 

of whom had a close haircut, a beard, and glasses. Id. at 147. Officer 

Henry testified that when he and Sergeant Davis arrived at the crime scene, 

they encountered Smith lying on the ground in a pool of blood around his 
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head. Id. at 147-48. Officer Henry recounted that at the crime scene, he 

and Sergeant Davis recovered two cell phones from Smith’s pocket and a 

black revolver near Smith’s body. Id. at 148. Officer Brian Stark, who 

processed the crime scene, testified that the revolver recovered near Smith 

was a five-shot revolver loaded with five live (unfired) cartridges. N.T., 

8/26/13, at 104-05, 115. Officer Henry further testified that he and 

Sergeant Davis also encountered Roland Jackson near the crime scene, who 

was sitting on the steps of 6029 Chester Street. N.T., 8/27/13, at 157. The 

two officers also later spoke with Stovall’s mother, who had last seen Stovall 

around 7:50 p.m. that evening, and informed them that he was wearing a 

white t-shirt, blue jean shorts, and glasses. Id. at 154. Sergeant Davis also 

testified and his testimony corroborated that of Officer Henry. See N.T., 

8/29/13, at 73.

Dr. Marlon Osbourne (“Dr. Osbourne”), from the medical examiner’s 

office, testified that Smith died from multiple gunshots to the head and 

neck. N.T., 8/27/13, at 11. Officer Cruz, who examined the ballistics, 

testified that all three of the bullets removed from Smith’s head and were 

fired from the same firearm, which was either a .38 caliber revolver or a 

.357 caliber revolver. N.T., 8/26/13, at 142-44. Watts stated that he had 

once or twice, prior to Smith’s murder, seen Jenkins in possession of a black, 

slightly rusty, .38 caliber revolver. Id. at 169. 
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Additionally, the jury heard testimony from Detective John Verecchio 

(“Detective Verecchio”) of the Philadelphia Police Department and Agent 

William Shute (“Agent Shute”) of the FBI Cellular Analysis Survey Team, 

regarding cell phone activity on the night of the murder. Detective 

Verecchio testified that between 9:40 p.m. and 10:20 p.m. there were six 

calls from Stovall to Smith and that Stovall also made calls to Jenkins in that 

timeframe. N.T., 8/28/13, at 186-87. Agent Shute testified that between 

10:05 p.m. and 10:43 p.m. there were nine calls on Jenkins’ phone that 

originated in geographical area that included the location of Smith’s murder. 

Id. at 90-98. Based on Jenkins’ cell phone data, Agent Shute was able to 

conclude that between 10:05 p.m. and 10:43 p.m. on the night of Smith’s 

murder, Jenkins was present in a geographic area that included the crime 

scene. Id. at 94-98. 

Further, as stipulated by counsel, the jury heard evidence regarding 

several text messages sent between Jenkins and other numbers of unknown 

persons both before and after Smith’s murder. On September 8, 2010, the 

night of Smith’s murder, at 10:16 p.m., Jenkins texted a number ending in 

3705 the following: “He on his way with dudes frm Willows. I got bull Jerry 

hammer on me.” N.T., 8/29/13, at 31. Detective Verecchio testified that he 

understood “hammer” to mean “gun.” N.T., 8/28/13, at 221. Then there 

was a response text from the 3705 number that read: “You want me to 

bring minds out or what!” N.T., 8/29/13, at 31. At 10:19 p.m., 
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approximately six minutes before Smith’s murder, Jenkins responded to the 

3705 number: “Yea, he bring niggas frm 58 and Willows.” Id. at 31. The 

same night, following the shooting, at approximately 10:39 p.m., a text was 

sent to Jenkins from the 3705 number stating: “Switch this line for safety.” 

Id. at 31-32. Then, at 11:57 p.m., there was another text to Jenkins from 

the 3705 number saying “They no – boy crib. Don’t talk to him no more or 

say anything to at all.” Id. at 32. 

Additionally, there was an exchange of text messages between Jenkins 

and another number ending in 3496 on September 13, 2010. Jenkins 

received a text that read: “Shit cooled dwn since that day. It dnt be no 

undies and a whole lot of cop cars sliddn up da’9 or da’0 when I be out 

there. So just lay low for like anova week. R.” Id. at 33. In response, 

Jenkins sent a text to the 3496 number stating: “Helan dis Jalil cousin. Get 

with me. Dee. A 10 on the scale.” Id. Finally, there was a text from 

Jenkins to another number ending in 4849 on September 14, 2010 saying 

“My other number to reach me at (267) 250-2979. Dee.” Id. at 34.

Thus, based on this evidence, the certified record reflects that, in the 

hour before Smith’s murder, there were several telephone conversations 

between Smith and Stovall and Stovall and Jenkins, though the content of 

these phone conversations is unknown. During that same timeframe on the 

night of the shooting, Jenkins met with and told Watts that he was nervous 

about meeting with some other men near 60th and Chester Street in order to 
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“squash the beef” and that he was heading to this meeting with at least one 

gun and that he would have felt safer if he had a second gun. Jenkins 

attempted to obtain a second firearm from Watts for this meeting. Shortly 

before Smith’s death, Jenkins also texted an unknown person that he was 

going to a meeting with unidentified individuals, that he was bringing a gun 

to the meeting, and he told the recipient of the text to bring a gun with him 

or her to this meeting. The record does not reveal with whom Jenkins was 

meeting with or that Jenkins actually attended the meeting. Except for 

Jackson’s testimony, we do not know Jenkins’ exact location at the time 

Smith was shot or if he was ever at the scene of the crime. The record, 

however, does reflect that Jenkins was in a geographic area during Smith’s 

murder that included the crime scene. 

The certified record further reflects that Smith died of multiple 

gunshots wounds from either a .38 caliber revolver or a .357 caliber 

revolver, but we do not know which gun was used. We do know, however, 

that Watts had seen Jenkins in possession of a .38 caliber revolver prior to 

Smith’s murder. Finally, the certified record reflects, according to the text 

messages stipulated to by the Commonwealth and Jenkins, that Jenkins was 

instructed to “lay low” for a time after Smith’s death.

Accordingly, based on this evidence, we cannot say, excluding 

Jackson’s testimony, that there was overwhelming evidence of guilt. At 

most, the evidence, excluding Jackson’s testimony, reveals that at the time 
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of Smith’s murder Jenkins was armed, on his way to meet with unknown 

individuals to “squash the beef,” somewhere in the vicinity of the scene of 

the crime. The evidence, excluding Jackson’s testimony, also reflects that 

Jenkins, at some point prior to Smith’s murder, was in possession of the 

same type of gun with which Smith may have been shot. The evidence, 

excluding Jackson’s testimony is circumstantial at best, as none of it places 

Jenkins at the scene of the crime when Smith was shot or identifies Jenkins 

as the shooter. Therefore, we conclude that improper admission of evidence 

relating to the intimidation of Jackson was not harmless.4

Although we resolve Jenkins’ first issue in his favor, we nonetheless 

proceed to address his second issue, for purposes of completeness, because 

we will be remanding this case for a new trial. For his second issue on 

appeal, Jenkins argues the trial court erred in denying his request for a 

mistrial based on prosecutorial misconduct. Jenkins’ Brief at 19-28. Our 

standard of review for claims of prosecutorial misconduct is as follows:

Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court 

abused its discretion. In considering this claim, our 

attention is focused on whether the defendant was 

deprived of a fair trial, not a perfect one. Not every 

inappropriate remark by a prosecutor constitutes 

reversible error. A prosecutor’s statements to a jury 

do not occur in a vacuum, and we must view them in 

context. Even if the prosecutor’s arguments are 

improper, they generally will not form the basis for a 

 

4

 We note that the Commonwealth did not attempt to make any harmless 

error argument.
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new trial unless the comments unavoidably 

prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013) (en banc), 

appeal denied, 80 A.3d 777 (Pa. 2013) (quoting Commonwealth v. Lewis, 

39 A.3d 341, 352 (Pa. Super. 2012)). Therefore, “we focus not on the 

culpability of the prosecutor but rather on whether his actions deprived [the 

appellant] of a fair trial by prejudicially rendering the jury incapable of fairly 

weighing the evidence and entering an objective verdict.” Commonwealth 

v. Melvin, 103 A.3d 1, 27 (Pa. Super. 2014). 

The prosecutorial misconduct with which the Commonwealth takes 

issue followed extensive argument over the question of whether the 

Commonwealth could, in response to the impeachment of Jackson and 

another witness, Martamus Watts, call a fellow Assistant District Attorney to 

read the entirety of those witnesses’ police statements and preliminary 

hearing testimony into the record. See N.T., 8/27/13, at 175-222; N.T., 

8/28/13, at 4-66. The trial court ruled, much to the prosecutor’s dismay, 

that the Commonwealth could rehabilitate the witnesses only as to those 

points on which they had been impeached, but that it would not permit the 

Commonwealth to bolster the witnesses’ testimony by pointing to their 

consistency on every other point to which they had previously spoken or 

testified. See id. 
J-A20009-15

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The questioning leading to the request for a mistrial proceeded as 

follows:

Q In any way, shape or form was [Jackson] ever 

uncooperative?

[Defense Counsel]: Objection, Your Honor.

THE COURT: Sustained. Ms. Pescatore is not a 

witness. She’s here just to read for you what was 

said or done at the preliminary hearing notes. Her 

credibility, who she is is not for you to assess. She’s 

just here to read something to you. In fact, I don’t 

believe -- is my understanding. That’s the 

objection?

[Defense Counsel]: Yes, Your Honor.

THE COURT: So even though -- so we’re just here 

so she can give to you that information in the notes 

that I think she has. So objection sustained.

[Prosecutor]: Okay.

BY [Prosecutor]:

Q So let’s go to where I’m allowed to read from.

[Defense Counsel]: Objection.

THE COURT: Sustained.

BY [Prosecutor]:

* * *

Q Okay. And did [Jackson], during that 

preliminary hearing, identify anyone other than 

[Jenkins] as the shooter in this case?

[Defense Counsel]: Objection.
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THE COURT: Sustained. What I’m going to tell my 

jury: What did or didn’t happen at the preliminary 

hearing is not what you’re evaluating. It’s just 

whether something that you hear here is consistent 

or not, and how does that affect your view of the 

believability of [Jackson]’s testimony in court to you.

You may continue

BY [Prosecutor]:

* * *

Q Was there anywhere in these notes of 

testimony that [Jackson] named [Stovall] as the 

shooter?

[Defense Counsel]: Objection.

THE COURT: Sustained. Again, [Prosecutor], you 

know what she is here for. This is not for you guys 

to say, here’s what may or may not have happened 

in the preliminary hearing. We’re only hearing this 

to see if it was consistent or not with what you heard 

in court, and how does that affect witness’[] 

believability and credibility.

[Prosecutor], I don’t want to have to interrupt you 

again. You know what my ruling was.

BY [Prosecutor]:

Q Turn to Page 25, please, Ms. Pescatore. 

Starting with Line 3, you are permitted to go to Line 

15.

[Defense Counsel]: Objection.

THE COURT: Sustained.

[Prosecutor]: Okay. Not 15? I don’t know.

THE COURT: The form of the question ...
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[Defense Counsel]: It was the form of the question.

N.T., 8/28/13, at 116-24.

Jenkins contends that the Commonwealth’s questioning irreparably 

tainted the jury and implied that the trial court was hiding evidence from the 

jury. Jenkins’ Brief at 28. While we are troubled by the prosecutor’s 

disrespect for the trial court and his refusal to accept the trial court’s ruling, 

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

Jenkins’ request for a mistrial. First, defense counsel’s objection prevented 

Pescatore from answering the prosecutor’s questions. Second, the trial court 

sustained each of defense counsel’s objections, and provided several 

curative instructions to the jury informing them if the proper purpose of 

Pescatore’s testimony. This Court has long held that “[a] jury is presumed 

to follow a trial court’s instructions[.]” Commonwealth v. Reid, 99 A.3d 

470, 501 (Pa. 2014). Additionally, at the outset of Pescatore’s testimony, 

the trial court instructed the jury as follows:

THE COURT: I’m just going to let my jury know that 

the district attorney is about to present to you what 

we call a statement from one of the witnesses that 

you heard from, Mr. Jackson. I want to give you 

some special instructions about this statement or 

whatever it is you are about to hear.

What you’re about to hear is not, is not, substantive 

evidence. When we say “substantive evidence,” it 

means that it’s not -- the only reason that you’re 

going to be hearing preliminary hearing -- some 

things that may have been said at a preliminary 
J-A20009-15

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hearing is for you to assess whether certain 

statements made here in court were consistent or 

not here in court. This is to help you to assess 

somebody’s credibility. It is not in any way being 

admitted into evidence. The rules -- and I’ll read for 

you what the Rule of Evidence is so that you’ll 

understand that there – the evidence rules say that 

under certain circumstance[s] -- and we’ve had a 

hearing to make sure that those circumstances are 

correct. Under certain circumstances, evidence of a 

witness’ prior consistent statement may be heard by 

the jury to rehabilitate the witness. Meaning, so that 

you may hear this for you to make a determination 

whether Mr. Jackson’s testimony was consistent or 

not, and how does that affect Mr. Jackson’s 

testimony here in court. That’s the only reason that 

it’s being admitted. We call it rehabilitation 

evidence.

N.T., 8/28/13, at 112-13. Our Supreme Court has held that “[a] mistrial is 

not necessary where cautionary instructions are adequate to overcome 

prejudice.” Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 

2011). Therefore, there was no abuse of discretion in the trial court’s 

determination that the challenged questioning did not require the remedy of 

a mistrial. 

Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2015