J. S67006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SHAHEED WILLIAMS, : No. 3275 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, September 21, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0003684-2014

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2016

Shaheed Williams appeals from the September 21, 2015 aggregate 

judgment of sentence of 28 to 56 years’ imprisonment imposed after a jury 

found him guilty of attempted murder, aggravated assault, witness 

intimidation, criminal conspiracy, and unlawful possession of a firearm.1 

After careful review, we affirm.2

The trial court summarized the lengthy factual background of this case 

as follows:

On November 22, 2010, on the 2400 block of 

Turner Street, in Philadelphia, after witnessing 

Aki Jones place a gun to the head of a juvenile 

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901, 2702, 4952, 903, and 6105, respectively.

2 The Commonwealth has not filed a brief in this matter.
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female, Michael Vessels called police. Vessels also 

heard Jones shoot the gun into the air. Jones was 

arrested the same day.

According to Tiffany Reid (Jones’ girlfriend at 

the time), prior to Jones’ preliminary hearing for the 

gun matter, Jones did not know the identity of the 

witness against him. Jay Thomas, Jones’ friend, was 

supposed to reach out to Troy Cooper (also known as 

“Taz”) for information on the witness as Cooper and 

the witness lived on the same block.

On December 13, 2010, Vessels testified at a 

Preliminary Hearing against Jones. Reid, who was 

present at the hearing, informed Jones that she saw 

the witness there. At some point after the 

preliminary hearing, Cooper informed Jones of 

Vessels’ name and address.

About a week after the preliminary hearing, 

Cooper approached Vessels and disclosed that the 

person arrested for shooting the gun was his friend. 

Cooper told Vessels that he did not need to go to 

court on this matter. In response, Vessels told 

Cooper that because he called 9-1-1 the day Jones 

was arrested, he felt obligated to go to court. 

In March or April 2011, Jones, while 

incarcerated, devised a plan to prevent Vessels from 

testifying against him. Jones told Reid that, if need 

be, the witness would be harmed to prevent him 

from going to court. Jones’ plan involved Thomas, 

whose role was to find Vessels and kill him. At 

Jones’ request, Reid contacted Thomas, and relayed 

that Jones said to “handle it,” referring to the 

witness, [to] which Thomas replied, “I know, I got 

it.”

In the subsequent months, Cooper approached 

Vessels numerous times about Vessels not testifying. 

In one conversation, Cooper told Vessels that Jones’ 

girlfriend would provide $500 for Vessels not to 

testify. As the conversations about not testifying 
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increased, Vessels avoided Cooper by entering the 

neighborhood from different directions.

On September 19, 2011–a week before the 

start of Jones’ trial, scheduled to start on [] 

September 26–Jones, from prison, instructed Reid to 

call Thomas in a three-way call. During the 

three-way call, Jones stated, “Yeah, that’s part one. 

Part one, I was away.” Thomas replied, “Yeah. And 

now we got to get part two out of the way.” At trial, 

Reid testified that “part two,” which was always part 

of the plan, was to find Vessels and to shoot him to 

ensure that he did not go to court.

On September 23, 2011–just three days before 

the start of Jones[’] trial–in a recorded call between 

Jones and Reid, Jones stated “Jay [Thomas] gonna 

be on post.” At trial, Reid testified that the term 

“post” meant that Thomas would wait for Vessels 

outside of his house to see whether he was going to 

court.

On this same date, September 23, in another 

phone call between Reid and Jones, Jones instructed 

Reid to call Pop Hoagie (Charles Alexander). Reid 

testified that both Jones and Cooper knew Alexander 

from the neighborhood. Two days later, on 

September 25–the day before the scheduled trial–

Alexander approached Reid at a basketball court and 

gave her $500. Approximately fifteen minutes after 

Reid collected the money, Jones and Reid discussed, 

in a recorded prison call, the money amount. Jones 

then directed Reid to give the money to Cooper[.]

. . . . 

On September 25, 2011, the day before Vessels was 

shot on the street, Reid took the money to Cooper’s 

house. While at Cooper’s house, Reid spoke with 

[appellant] and exchanged phone numbers. Reid 

testified at trial that Jones knew [appellant] as they 

were from the same neighborhood. After exchanging 

numbers, [appellant] asked Reid to call him at 6:30 

the next morning so that he could stand post outside 
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Vessels’ house. [Appellant] informed Reid that if he 

saw Vessels going to court, he would kill him. 

On the same day that Reid dropped the money 

off to Cooper, Cooper approached Vessels outside his 

home and offered him the $500 not to appear in 

court. Cooper said, “they finally dropped it off,” 

referring to the money. Vessels replied that he could 

not take it. Cooper responded with, “then it is 

whatever.” Vessels testified at trial that he 

understood “whatever” to mean “anything goes” and 

that “if you don't do what I want you to do, then I’m 

going to do something to you.”

The next day, September 26, 2011, at 

6:30 a.m., Reid called [appellant]. Reid testified at 

trial that this was the wake-up call that [appellant] 

had requested so he could stand post outside 

Vessels’ home. After the wake-up call, there were 

another four phone calls between [appellant] and 

Reid, from 7:06 and 9:11 a.m.

That morning, September 26, at around 

9:30 a.m., Vessels left his house on the way to meet 

a member of his church. As he walked to the corner 

on the next block, [appellant] jumped out, 

immediately drew a silver revolver, and said, “You 

like to talk.” [Appellant] then placed the gun six 

inches from Vessels’ face and pulled the trigger. 

Vessels blocked the shot with his wrist. [Appellant] 

fired again, shooting Vessels in the side. After the 

second shot, Vessels took off running, with 

[appellant] in close pursuit. While Vessels ran, 

[appellant] fired several more shots, striking Vessels 

in his elbow and back, the latter of which knocked 

him to the ground. [Appellant] then stood over 

Vessels, and said[,] “you won’t talk no more,” and 

shot Vessels in the neck. 

Within a few minutes of the shooting, at 

9:45 a.m., [appellant] called Reid. At 9:56 a.m., 

Reid called [appellant] back. At 9:59 a.m., Reid sent 

a text message to [appellant], followed by an 
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exchange of several more text messages. Lastly, at 

2:59 p.m., Reid called [appellant].

On the same day, Reid also spoke with 

[appellant] in person. According to Reid, [appellant] 

informed her that Vessels did not go to court and 

described in detail how he had shot him. [Appellant] 

told Reid that he spotted Vessels leaving his house, 

dressed like he was ready to go to court. [Appellant] 

then ran around the corner, up a block, approached 

Vessels from behind, and shot him. [Appellant] told 

Reid that Vessels had placed his hand in front of his 

face and was shot in the arm. He also told Reid that 

he shot Vessels five times, and that he tried to keep 

shooting, but the gun jammed.

In January 2012, [p]olice encountered 

[appellant] and recovered his cell phone. Police 

retrieved a photograph from the phone which 

depicted a revolver. At trial, Special Agent Detective 

Charles Bowman testified that the description of the 

gun used to shoot Vessels was similar to the 

photograph of the revolver found on [appellant’s] cell 

phone. Bullet fragments recovered at the shooting 

scene of Vessels were also consistent with a 

.38 caliber or 9 millimeter, which are both capable of 

being fired from a revolver.

On February 14, 2012, the Bureau of Alcohol, 

Tobacco, Firearms (“ATF”) executed a search 

warrant on Tiffany Reid’s home. From her home, 

federal agents recovered a letter sent to Reid by 

Jones from prison. The letter was addressed to 

Lulu Blackchild. (Lulu is Reid’s middle name and 

Jones sometimes referred to her by that name.) 

Written on the back of the letter was “The date is 

5/25/11 and the last letter received from you is 

5/18. Payback is fair.” At trial, Reid testified that 

the handwriting was Jones’. Inside the envelope was 

a transcript of Vessel[s’] preliminary hearing 

testimony regarding the incident in which Jones had 

shot a gun into the air.
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On November 14, 2012, Vessels identified 

[appellant] from a photographic array as his shooter. 

At trial, Vessels again positively identified 

[appellant]. 

In March of 2014, Carla Reid received a letter 

at her home addressed to her daughter, Tiffany Reid. 

The letter was addressed from another prisoner, 

Jacque Walker, with a return address from the 

Philadelphia prison system. Jones was imprisoned 

with Walker in the same building at the CFCF, and in 

the same pod (Pod One), at the time the letter was 

post-marked (March 26, 2014). In the letter, the 

author threatened Tiffany Reid and her family. 

Although the letter was not in Jones’ handwriting, 

the author referenced “Zaire” as his son–Jones and 

Reid’s child–and referenced several of Reid’s family 

members by name. The letter was also signed with 

“A.DoTTTTTT,” Jones’ nickname. After reading the 

letter, Carla Reid took it directly to the police. 

Jones’ letter also references the shooter in the 

subject crime. Any reference to [appellant’s] 

involvement in the actual shooting of Vessels[] was 

redacted with neutral phrases. Portions of the letter 

that potentially exonerated [appellant] were left in 

with defense counsel’s approval.

Trial court opinion, 12/23/15 at 2-8 (citations to notes of testimony and 

footnotes omitted).

On February 28, 2014, appellant was arrested and charged in 

connection with this incident. On June 8, 2015, appellant proceeded to a 

jury trial alongside co-defendant Jones and was subsequently found guilty of 

the aforementioned offenses on June 15, 2015. On September 21, 2015, 

the trial court sentenced appellant to an aggregate term of 28 to 56 years’ 

imprisonment. On September 30, 2015, appellant filed a post-sentence 
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motion arguing that the verdict was against the weight and sufficiency of the 

evidence, that his right against self-incrimination was violated, and that his 

aggravated-range sentence should be modified. (See “Motion for 

Post-Sentence Relief,” 9/30/15 at ¶¶ I-III.) The trial court denied 

appellant’s post-sentence motion on October 13, 2015. Thereafter, on 

October 29, 2015, appellant filed a timely notice of appeal. On November 2, 

2015, the trial court ordered appellant to file a concise statement of errors 

complained of on appeal in accordance with Pa.R.A.P. 1925(b). Appellant 

filed his timely Rule 1925(b) statement on November 23, 2015, and the trial 

court issued its Rule 1925(a) opinion on December 23, 2015.

On appeal, appellant raises the following issues for our review:

I. Was [a]ppellant deprived of his state and 

federal constitutional right of confrontation by 

the admission of statements of a non-testifying 

co-defendant implicating [a]ppellant in the 

shooting for which he was charged?

II. Was [a]ppellant deprived of his state and 

federal constitutional right against 

self-incrimination when a Philadelphia Police 

Detective testified that [a]ppellant ended an 

interview when asked where he was on the day 

of the shooting that was the subject of the 

trial?

III. Did the admission of a photograph of a gun 

allegedly retrieved from [a]ppellant’s mobile 

phone violate [a]ppellant’s right of due process 

guaranteed by the Fifth and Fourteenth 

Amendments to the United States Constitution 

and Article I, Section 9 of the Pennsylvania 

Constitution?
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IV. Did the Commonwealth’s attorney violate 

[a]ppellant’s right of due process by referring 

during closing arguments [] to guilty verdicts 

reached by other juries in cases unrelated to 

[a]ppellant’s?

V. Did the [trial] court impose an illegal sentence 

of 20 to 40 years on the charge of [a]ttempted 

[m]urder when there was no specific finding by 

the jury that [a]ppellant inflicted serious bodily 

injury?

Appellant’s brief at 4-5.

Appellant first argues that his rights under the Confrontation Clause3

were violated when the trial court permitted the Commonwealth to introduce 

a March 26, 2014 letter that Jones wrote to Reid implicating appellant in the 

shooting. (Id. at 14.) Appellant contends that despite the trial court’s 

redaction of his nickname -- Pizza -- from said letter, “it was obvious from 

the content of the letter and other evidence . . . that Jones was referring to 

[a]ppellant.” (Id. at 14, 18-19.) In support of this contention, appellant 

cites the following three redacted portions of Jones’ letter:

Original: How they saying Pizza is the shooter all 

of a sudden?

Redacted: How they saying who shooter all of a 

sudden?

******

 

3 The Confrontation Clause of the Sixth Amendment, made applicable to the 

States via the Fourteenth Amendment, provides that “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” U.S. Const. amend. VI.
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Original: I no you aint tell them people you the 

one that told Pizza to do that shit. It’s in 

yall phones records dummy. You texted 

him making sure he out there & all that!

Redacted: I no you aint tell them people you the 

one that told someone to do that shit. 

It’s in yall phones records dummy. You 

texted him making sure he out there & 

all that! 

******

Original: I talk to Pizza already and I know what’s 

is on his mind. He don’t want to believe 

it is you who is saying name. He will find 

out and he know my plans with you and 

he got some n s that will move too.

Redacted: I talk to someone already and I know 

what is on someone’s mind. Someone

don’t want to believe it is you who is 

saying name. Someone will find out 

and that person know my plans with 

you and that person got some [n]** ** 

that will move too.

Id. at 18, citing notes of testimony, 6/11/15, at 217-220 (emphasis in 

original). Appellant argues that the probative value of this letter is 

outweighed by its prejudicial impact and challenges the admission of these 

statements on the grounds that they violated the United States Supreme 

Court’s decision in Bruton v. United States, 391 U.S. 123 (1968), and its 

progeny. (Appellant’s brief at 14-17, 19.) This claim is meritless.

In the seminal case of Bruton, the United States Supreme Court 

recognized a narrow exception to the general rule that cautionary 

instructions are sufficient to eradicate any potential prejudice in joint trials. 
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Bruton, 391 U.S. at 124-126. The United States Supreme Court held that a 

defendant is deprived of his rights under the Confrontation Clause when his 

non-testifying co-defendant’s confession naming him as a participant in the 

crime is introduced at trial, even if the jury is instructed to consider that 

confession only against the co-defendant. Id. at 135-136.

Our supreme court has recently summarized Bruton and its progeny 

as follows:

The general rule in a joint trial of 

co-defendants is that the law presumes that the jury 

can follow an appropriate instruction, which explains 

that evidence introduced with respect to only one 

defendant cannot be considered against other 

defendants. Bruton departed from this salutary 

general rule only by concluding that where there are 

“powerfully incriminating statements” admitted 

against a non-testifying co-defendant who stands 

side by side with the accused, such statements can 

be devastating as well as inherently suspect when 

they shift the blame to the accused. Following 

Bruton, the U.S. Supreme Court has approved 

redaction and a limiting instruction as a means of 

eliminating the possible spillover prejudice arising 

from the admission of a non-testifying 

co-defendant’s confession against that co-defendant 

at a joint trial. Bruton and its progeny establish 

Sixth Amendment norms governing state criminal 

trials, and this Court has had ample opportunity to 

consider and apply the precepts. In our own 

implementation of this federal law, we have 

explained that the challenged co-defendant’s 

statement must be incriminating on its face and that 

redactions involving the substitution of neutral 

pronouns . . . instead of names or other obvious 

methods of deletion, do not obviously identify the 

other co-defendants. 
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Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014) (citations 

omitted).

Applying these well-settled principles, we conclude that the statements 

in Jones’ letter did not give rise to a Bruton violation because they did not 

explicitly reference or facially incriminate appellant in any way. As the trial 

court recognized in its opinion, 

[t]he letter was properly redacted with all references 

to [appellant] related to the shooting replaced by 

neutral phrases, such as “who” and “someone.” . . . 

[B]ased on the evidence presented at trial, it was not 

automatic that [appellant] was the shooter 

referenced in Jones’ letter, as the jury was free to 

believe [] Thomas shot Vessels. 

Trial court opinion, 12/23/15 at 9-10. 

Furthermore, the record reflects that the trial court provided two 

separate cautionary instructions to the jury emphasizing that they were 

prohibited from considering the contents of this letter against appellant. 

Specifically, the trial court instructed the jury as follows: 

Members of the jury, remember I told you 

some evidence can be admitted and you have to 

consider evidence in this case against one defendant 

and not the other defendant. Statements of 

co[-]conspirators can be admitted against each other 

when conspiracy is ongoing. But by the date of this 

letter, clearly there is no evidence that the 

conspiracy was still ongoing at that time. So this 

evidence is only admissible against Aki Jones, and I 

[will] talk about that when I give my final 

instruction.

Notes of testimony, 6/11/15 at 222. 
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And I also just want to remind you there was some 

evidence during this trial that was specially admitted 

against Mr. Jones that was [sic] pertained to him and 

did not pertain to [appellant]. And I’m talking about 

that letter that was allegedly sent to Mr. [sic] Reid. 

Because, remember . . . statements of the 

co[-]conspirator during the course of the conspiracy 

can be admitted and are admitted against each of 

the co[-]conspirators. Once the conspiracy has 

ended, then that evidence can only, in any 

statement made by one co[-]conspirator, cannot be 

introduced because that conspiracy has ended. So if 

you were a previous conspirator, what you then say 

after it is over with does not pertain to the other 

person. So that’s why I’m reminding you that the 

contents of that letter was [sic] introduced as 

evidence against Mr. Jones and not [appellant]. 

Notes of testimony, 6/15/15, at 36-37.

Courts in this Commonwealth have repeatedly recognized that “when 

examining the potential for undue prejudice, a cautionary jury instruction 

may ameliorate the prejudicial effect of the proffered evidence.” 

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), cert. denied,

135 S.Ct. 164 (2014) (citations omitted). Jurors are presumed to follow the 

trial court’s instructions. Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 

2013), cert. denied, 135 S.Ct. 50 (2014). Accordingly, for all the foregoing 

reasons, we conclude that appellant’s claim of trial court error must fail.

Appellant next argues that the trial court abused its discretion in 

allowing the Commonwealth to elicit testimony from Philadelphia Police 

Detective James Kopaczewski that referenced appellant’s pre-arrest silence. 
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(Appellant’s brief at 20.) Specifically, Detective Kopaczewski testified as 

follows:

[The Commonwealth:] And did you ask him where 

he was on September 26, 2011?

[Detective Kopaczewski:] I did and he immediately 

-- just got up and that was it.

THE COURT: So that was the end of the 

interview?

[Detective Kopaczewski]: That’s correct.

Notes of testimony, 6/11/15 at 87. For the following reasons, we disagree.

“[T]he admission of evidence is within the sound discretion of the trial 

court and will be reversed only upon a showing that the trial court clearly 

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation 

omitted). “An abuse of discretion is not merely an error of judgment; rather 

discretion is abused when the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill will, as shown by the evidence or the record.” 

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

Here, appellant avers that Detective Kopaczewski’s testimony violated 

his right against self-incrimination guaranteed by the Fifth and Fourteenth 

Amendments of the United States Constitution and Article I, Section 9 of the 

Pennsylvania Constitution. (Appellant’s brief at 20-24.) In support of this 
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claim, appellant relies, in large part, on this court’s decision in 

Commonwealth v. Molina, 33 A.3d 51 (Pa.Super. 2011), affirmed, 104 

A.3d 430 (Pa. 2014). In Molina, an en banc panel of this court held that 

“the Commonwealth cannot use a non-testifying defendant’s pre-arrest 

silence to support its contention that the defendant is guilty of the crime 

charged as such use infringes on a defendant’s right to be free from selfincrimination.” Molina, 33 A.3d at 62 (citations omitted). The Molina court 

further noted that,

[w]e find it of no moment whether the silence 

occurred before or after the arrest or before or after 

Miranda warnings were administered. The Fifth 

Amendment was enacted to protect against 

self-incrimination, whether they are in custody 

or not, charged with a crime, or merely being 

questioned during the investigation of a crime. 

We clarify that our finding does not impose a 

prima facie bar against any mention of a 

defendant’s silence; rather, we guard against the 

exploitation of appellant’s right to remain silent by 

the prosecution.

Molina, 33 A.3d at 63 (citation and footnote omitted).

Upon review, we conclude that appellant’s reliance on Molina is 

misplaced. Unlike Molina, the record in this case indicates that the 

Commonwealth, via Detective Kopaczewski, did not offer evidence of 

appellant’s pre-arrest silence as substantive evidence of his guilt. Rather, it 

is evident that the Commonwealth elicited said testimony for the narrow 

purpose of explaining the way his interview with appellant ended. Appellant 

also fails to cite to any place in the record wherein the Commonwealth 
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referenced appellant’s decision to terminate the interview with 

Detective Kopaczewski as implicit evidence of his guilt. We find that our 

holding in Commonwealth v. Adams, 39 A.3d 310 (Pa.Super. 2012), 

affirmed, 104 A.3d 511 (Pa. 2014), is instructive. In Adams, a panel of 

this court concluded that a police officer’s testimony that a defendant “had 

nothing to say” during his homicide investigation interview did not violate his 

Fifth Amendment right to remain silent. Adams, 39 A.3d at 319. The 

Adams court reasoned that this testimony “was offered for a narrow 

purpose, namely to demonstrate the nature and focus of the investigation,” 

and “neither [the officer] nor the Commonwealth implied that [the 

defendant’s] silence constituted a tacit admission of guilt.” Id.

Moreover, we note that Detective Kopaczewski’s reference to 

appellant’s pre-arrest silence was brief in context. Our supreme court has 

recognized that “[e]ven an explicit reference to silence is not reversible error 

where it occurs in a context not likely to suggest to the jury that silence is 

the equivalent of a tacit admission of guilt[.]” Commonwealth v. 

DiNicola, 866 A.2d 329, 337 (Pa. 2005) (citation and parentheses omitted). 

Accordingly, we conclude that appellant’s constitutional rights were not 

violated when Detective Kopaczewski testified.

Appellant next argues that the trial court violated his right to due 

process guaranteed by the Fifth and Fourteenth Amendments of the United 

States Constitution and Article I, Section 9 of the Pennsylvania Constitution
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by permitting the Commonwealth to introduce a photograph of a revolver 

recovered from his cell phone, “where there was no proof that the gun 

depicted was the gun used to shoot [Vessels].” (Appellant’s brief at 27.) 

Appellant maintains that the photograph in question was inadmissible under 

Pennsylvania Rule of Evidence 404(b)(1) and served only to demonstrate he 

has a criminal propensity to commit the crimes charged. (Id. at 28-31.) 

Appellant further posits he is entitled to a new trial because the prejudicial 

impact of this photograph outweighed its probative value. (Id.) We 

disagree.

“The threshold inquiry with admission of evidence is whether the 

evidence is relevant.” Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 

2008) (citations and bracket omitted). “Evidence is relevant if it logically 

tends to establish a material fact in the case, tends to make a fact at issue 

more or less probable or supports a reasonable inference or presumption 

regarding a material fact.” Commonwealth v. Edwards, 903 A.2d 1139, 

1156 (Pa. 2006), cert. denied, 127 S.Ct. 2030 (2007) (citation and internal 

quotation marks omitted).

Generally, “evidence of other crimes, wrongs, or acts is not admissible 

to prove the character of a person in order to show action in conformity 

therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972 

A.2d 1182, 1189 (Pa.Super. 2009), appeal denied, 986 A.2d 150 (Pa. 

2009) (stating, “[e]vidence of distinct crimes is not admissible against a 
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defendant being prosecuted for another crime solely to show his bad 

character and his propensity for committing criminal acts.” (citation omitted; 

emphasis in original)). Evidence of prior bad acts may be admissible, 

however, “when offered to prove some other relevant fact, such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, and absence of 

mistake or accident.” Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 

2012), appeal denied, 72 A.3d 603 (Pa. 2013) (citations omitted). “In 

determining whether evidence of other prior bad acts is admissible, the trial 

court is obliged to balance the probative value of such evidence against its 

prejudicial impact.” Id. (citation omitted).

Upon careful review, we discern no abuse of discretion on the part of 

the trial court in admitting the photograph of the revolver into evidence. 

Contrary to appellant’s contention, we conclude that the photograph in 

question was relevant to establish that appellant had possession and control 

of a weapon similar to the one used to shoot Vessels. The evidence at trial 

established that the firearm depicted in the photograph was a silver 

revolver, the same type of gun used to shoot Vessels. (Notes of testimony, 

6/9/15 at 78; see also Commonwealth’s exhibit C-76A.) At trial, 

ATF Special Agent Bowman testified that the revolver depicted in the 

photograph that was recovered from appellant’s cell phone was similar to 

the description of the gun used to shoot Vessels. (Notes of testimony, 

6/11/15 at 69, 200-201.) Moreover, Philadelphia Police Officer Jesus Cruz, 
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an expert in the field of firearms identification and ballistics, testified that 

the bullet fragments recovered from the scene were consistent with 

ammunition capable of being fired from this type of revolver. (Id. at 42, 

53-54.) Likewise, the probative value of this photograph, given the 

conceivable connection of said firearm to the instant crime, clearly 

outweighed its prejudicial impact. Accordingly, for all the foregoing reasons, 

we discern no abuse of discretion on the part of the trial court in allowing 

this photograph to be admitted into evidence.4

We now turn to appellant’s claim that he was deprived of his right to a 

fair trial when the prosecutor “commented on the guilty verdicts of other

juries in other cases” during his closing argument. (Appellant’s brief at 31.) 

Specifically, appellant challenges the following comments made by the 

prosecutor during his summation:

And you heard a little bit about reasonable 

doubt. It simply means it is not some impossible 

 

4 Generally, a weapon that “cannot be specifically linked to a crime” is 

inadmissible at trial. Commonwealth v. Robinson, 721 A.2d 344, 351 

(Pa. 1998), cert. denied, 528 U.S. 1082 (2000). However, our supreme 

court has recently clarified this rule, stating as follows: 

[t]he only burden on the prosecution is to lay a 

foundation that would justify an inference by the 

finder of fact of the likelihood that the weapon was 

used in the commission of the crime. If a proper 

foundation is laid, the weapon is admissible where 

the circumstances raise an inference of the likelihood 

that it was used.

Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015) (citation and 

internal quotation marks omitted).
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standard. It is the same standard upon which 

people are convicted of crimes in the city, the 

state, this country in every case.

Trial court opinion, 12/23/15 at 15, quoting notes of testimony, 6/12/15 at 

130 (emphasis added); see also appellant’s brief at 31.

“Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v. 

Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 928 A.2d 

1289 (Pa. 2007) (citations omitted). Not every unwise remark on a 

prosecutor’s part, however, constitutes reversible error. Id. “Prosecutorial 

misconduct occurs when the effect of the prosecutor’s comments would be 

to prejudice the trier of fact, forming in its mind fixed bias and hostility 

toward the defendant so that it could not weigh the evidence objectively and 

render a true verdict.” Commonwealth v. Duffy, 832 A.2d 1132, 1137 

(Pa.Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004).

Counsels’ remarks to the jury may contain fair 

deductions and legitimate inferences from the 

evidence presented during the testimony. The 

prosecutor may always argue to the jury that the 

evidence establishes the defendant’s guilt, although 

a prosecutor may not offer his personal opinion as to 

the guilt of the accused either in argument or in 

testimony from the witness stand. Nor may he or 

she express a personal belief and opinion as to the 

truth or falsity of evidence of defendant’s guilt, 

including the credibility of a witness.

Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal 

denied, 788 A.2d 372 (Pa. 2001).
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Following our careful review, we conclude that the prosecutor’s 

comments, when read as a whole, did not warrant that a new trial be 

granted. “[A] prosecutor is permitted fairly wide latitude in advocating for 

the Commonwealth, including the right to argue all fair conclusions from the 

evidence, to respond to defense arguments, and to engage in a certain 

degree of oratorical flair.” Harris, 884 A.2d at 931. All such comments 

must be reviewed in the context in which they were made. 

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005). 

Here, the record reflects that the prosecutor’s comments were made 

with a permissible degree of oratorical flair and were not the kind of 

comments that would cause the jury to form a fixed bias or hostility towards 

appellant and prevent it from properly weighing the evidence and rendering 

a fair and impartial verdict. Moreover, the jury was properly instructed 

during trial that it was the trial court’s role to instruct the jury on the law, 

and that statements made by counsel do not constitute evidence. (See

notes of testimony, 6/8/15 at 31-33; 6/15/15 at 22-27.) As noted, jurors 

are presumed to follow the trial court’s instructions. Elliott, 80 A.3d at 445. 

Accordingly, appellant’s claim that he is entitled to a new trial on account of 

the prosecutor’s comments during closing arguments must fail.

In his final issue, appellant contends that his sentence of 20 to 

40 years’ imprisonment for attempted murder was illegal under Apprendi v. 

New Jersey, 530 U.S. 466 (2000), because “there was no specific finding 
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by the jury that [a]ppellant inflicted serious bodily injury [on Vessels.]” 

(Appellant’s brief at 33.) We disagree.

“The determination as to whether the trial court imposed an illegal 

sentence is a question of law; our standard of review in cases dealing with 

questions of law is plenary.” Commonwealth v. Stradley, 50 A.3d 769, 

772 (Pa.Super. 2012) (citation omitted). The Pennsylvania Supreme Court 

summarized the holding in Apprendi as follows:

In Apprendi, the United States Supreme Court 

held a New Jersey hate-crime statute 

unconstitutional because it permitted the imposition 

of a twenty[-]year sentence in place of the otherwise 

applicable ten year maximum if the judge 

determined, by a preponderance of the evidence, 

that the crime was perpetrated in violation of the 

statute. The United States Supreme Court 

determined that any facts, “other than the fact of a 

prior conviction,” that subject a defendant to any 

additional penalty beyond a statutory maximum 

must be submitted to a jury and be found proved 

beyond a reasonable doubt. 

Commonwealth v. Gordon, 942 A.2d 174, 175 n.1 (Pa. 2007), 

cert. denied, 553 U.S. 1024 (2008), citing Apprendi, 530 U.S. at 490.

The instant matter involves the application of Section 1102 of the 

Crimes Code, and, in particular, the “serious bodily injury” requirement. 

Read in relevant part, Section 1102 provides as follows: 

(c) Attempt, solicitation and conspiracy.--

Notwithstanding section 1103(1) (relating to 

sentence of imprisonment for felony), a person 

who has been convicted of attempt, solicitation 

or conspiracy to commit murder, murder of an 

unborn child or murder of a law enforcement 
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officer where serious bodily injury results may 

be sentenced to a term of imprisonment which 

shall be fixed by the court at not more than 

40 years. Where serious bodily injury does not 

result, the person may be sentenced to a term 

of imprisonment which shall be fixed by the 

court at not more than 20 years.

18 Pa.C.S.A. § 1102(c).

“[T]he statute imposes a condition precedent to the imposition of a 

maximum term of imprisonment of up to 40 years, specifically, that ‘serious 

bodily injury’ must have resulted from the attempted murder. Otherwise, 

the sentence shall be not more than 20 years.” Commonwealth v. 

Johnson, 910 A.2d 60, 66 (Pa.Super. 2006), appeal denied, 923 A.2d 

1173 (Pa. 2007). Serious bodily injury is “a fact that must be proven before 

a maximum sentence of forty years may be imposed for attempted 

homicide.” Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.Super. 

2005), appeal denied, 890 A.2d 1058 (Pa. 2005).

Here, the trial court reasons that appellant’s judgment of sentence for 

attempted murder is proper because the jury was presented with ample 

evidence to determine that appellant inflicted “serious bodily injury” upon 

Vessels. (See trial court opinion, 12/23/15 at 17.) Upon review, we agree 

with the trial court’s conclusions. “Serious bodily injury” is defined in the 

Crimes Code as “[b]odily injury which creates a substantial risk of death or 

which causes serious, permanent disfigurement, or protracted loss or 

impairment of the function of a bodily member or organ.” 18 Pa.C.S.A. 
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§ 2301. The evidence at trial established that appellant shot Vessels 

five times, including once in the neck, once in the back, and once in the 

stomach. (Notes of testimony, 6/9/15 at 66-67, 70-74.) Vessels testified 

that he lost the use of his left hand and left side of his body as a result of 

the shooting, and suffered nerve damage that causes him to twitch. (Id. at 

68.)

We further point out that the jury in fact determined beyond a 

reasonable doubt that serious bodily injury occurred when it found appellant 

guilty of aggravated assault in violation of 18 Pa.C.S.A. § 2702(a)(1).5 In 

this case, the jury instructions were fashioned so that the jury could only 

convict appellant of aggravated assault if it found beyond a reasonable doubt 

that he intentionally caused serious bodily injury to Vessels. Specifically, the 

trial court instructed the jury as follows:

Aggravated assault causing serious bodily 

injury. Both [appellant and Jones] have been 

charged with aggravated assault. To find either of 

these defendants guilty of this offense, you must find 

the elements have been proven beyond a reasonable 

doubt: First, that the defendant [a]s coconspirator 

or his accomplice caused serious bodily injury to [] 

Vessels. Serious bodily injury is bodily injury that 

causes a substantial risk of death or that causes 

serious permanent disfigurement or protracted loss 

or impairment of the functions of any bodily member 

or organ. And second, that the defendant acted 

intentionally, knowingly or recklessly under 

 

5 Section 2702(a)(1) provides that “[a] person is guilty of aggravated 

assault if he . . . attempts to cause serious bodily injury to another, or 

causes such injury intentionally, knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life[.]”
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circumstances manifesting extreme indifference to 

the value of human life. 

Notes of testimony, 6/15/15 at 55-56. As noted, the jury is presumed to 

follow the trial court’s instructions with regard to the applicable law. Elliott, 

80 A.3d at 445. Accordingly, in determining that appellant was guilty of 

aggravated assault, the jury in fact concluded that appellant inflicted serious 

bodily injury upon Vessels.

Appellant relies, in large part, on this court’s decision in Johnson to 

support his assertion that the jury had to be specifically instructed on 

“serious bodily injury” for the attempted murder charge. (See appellant’s 

brief at 34-35.) The facts of Johnson, however, are distinguishable from 

the case sub judice.

In Johnson, this court concluded that the jury did not find serious 

bodily injury for the purposes of applying the maximum for attempted 

murder, even though the appellant had been convicted of aggravated 

assault. Johnson, 910 A.2d at 67-68. However, unlike the instant matter, 

there was no evidence in Johnson that the jury convicted the appellant of 

aggravated assault on the basis that serious bodily injury actually occurred. 

Rather, the evidence in Johnson established that the appellant fired 

multiple gunshots at the victim, but only struck her once in the heel of her 

foot. Id. at 62. Thus, the jury in Johnson could have convicted the 

appellant of aggravated assault based merely on an attempt to commit 
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serious bodily injury. As such, Johnson is clearly distinguishable from the 

case at hand.

In light of the foregoing, we conclude that the trial court did not error 

in imposing a sentence of 20 to 40 years’ imprisonment for the attempted 

murder conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016