[J-54-2013] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER Y, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

JAKEEM LYDELL TOWLES, Appellant : : : : : : : : : : : No. 666 CAP Appeal from the Judgment of Sentence entered on 06/11/2012 in the Court of Common Pleas, Criminal Division of Lancaster County at No. CP-36-CR-0002879-2010 (post-sentence motions denied on 07/17/2012 with order entered on 07/18/2012) ARGUED: September 10, 2013

OPINION

MR. JUSTICE EAKIN DECIDED: SEPTEMBER 22, 2014 This is a direct appeal from a death sentence impos ed after a jury convicted appellant of first degree murder. At the penalty p hase, the jury found one aggravating circumstance and multiple mitigating circumstances, determined the aggravating circumstance outweighed the mitigating circumstance s, and sentenced appellant to death. For the following reasons, we affirm. Appellant and Antwain Robinson took a bus from Lanc aster to Columbia to visit appellant’s cousin, Tyrone Hunter, and to attend a local rap performance at a venue near Hunter’s apartment. Appellant and Robinson drank a lcohol and smoked marijuana throughout the night, walking between Hunter’s apar tment and the venue several times. At some point, appellant took Hunter’s handgun from his apartment and hid it in a nearby alley. At the venue, appellant interrupted Cornell Stewart and John Wright’s rap performance by grabbing Wright’s microphone. As a result, appellant and Wright got[J-54-2013] - 2

into a physical altercation wherein Wright hit appe llant at least once. Security separated them, and escorted appellant and Robinson out the f ront door and Wright and Stewart out

the back door. Appellant immediately retrieved the handgun he hid earlier, went behind the venue, and fired three shots at Wright and Stewart. One of the shots fatally struck Stewart in the head. Appellant and Robinson fled t he scene and asked a friend for a ride to Lancaster. During the trip, appellant made incri minating statements to all occupants of the vehicle, including Robinson, their friend, a nd two other women, and instructed them

not to talk. Appellant was charged with Stewart’s homicide, the attempted homicide of Wright, and unlawful possession of a firearm. The unlawful possession charge was severed for trial. The Commonwealth filed notice of an aggrava ting circumstance and intent to seek the death penalty. Appellant filed a pre-trial mot ion seeking suppression of any evidence relating to his use and handling of Hunter’s handgu n on occasions prior to the night of the murder and evidence of an unrelated altercation day s earlier during which he sustained an injury to his lip. The trial court denied the m otion. During voir dire, defense counsel objected to the t rial court’s striking of one potential juror for cause and raised a Batson 1 challenge to each of the Commonwealth’s four peremptory challenges to exclude jurors. The trial court overruled those objections. At trial, appellant’s defense theory was to negate specific intent to kill by arguing he was in the heat of passion from the altercation wit h Wright and also had diminished capacity due to voluntary intoxication. Appellant sought to admit a report from his expert, a toxicologist; the report contained appellant’s de tailed account of his alcohol and drug consumption on the night of the murder. The expert was also prepared to testify about

1 Batson v. Kentucky, 476 U.S. 79 (1986).[J-54-2013] - 3

all the facts in his report, including appellant’s statements. The Commonwealth brought a motion in limine to exclude the report and preclu de the expert from testifying to any of appellant’s statements. Defense counsel objected, asserting the expert should be permitted to testify about all the facts on which h e relied in rendering his opinion regarding the psychological and physiological effects of appe llant’s alcohol and drug consumption, including appellant’s statements. The trial court granted the Commonwealth’s motion and limited defense counsel to using hypothetical q uestions based on record evidence. Appellant also requested the trial court instruct t he jury on the distinct definitions of “premeditation” and “deliberation,” and submitted t wo suggested instructions defining each term. The trial court declined to follow appe llant’s points for charge and instead relied on the Pennsylvania Suggested Standard Crimi nal Jury Instructions. The jury convicted appellant of first degree murder and attempted homicide. In the penalty phase, the jury found one aggravating c ircumstance — in the commission of the murder, appellant created a grave risk of death to another person in addition to Stewart. See 42 Pa.C.S. § 9711(d)(7). Although on e or more jurors found various factors relating to the circumstances of the offens e and appellant’s character and criminal history supported the “catch-all mitigator,” see id ., § 9711(e)(8), the jury unanimously sentenced appellant to death. Appellant timely fil ed a post-sentence motion to modify his sentence to life imprisonment, alleging the jur y failed to check the blank on the verdict slip indicating the aggravating circumstance outwei ghed the mitigating circumstances. The trial court denied the motion, finding the jury meaningfully weighed the mitigating factors against the sole aggravating factor as indi cated by the individual polling of the jury on the record. Appellant timely appealed to this C ourt, raising the following claims of

error: 1. Did not the [trial] court err in challenging a juror for cause sua sponte when the juror, although expressing a preference fo r imposing a life[J-54-2013] - 4

sentence, never indicated that she was incapable of imposing a death sentence under all circumstances? 2. Did the trial court improperly permit the dismi ssal of four female jurors who were either African-American or Hispanic after a Batson challenge by defense counsel, where the Commonwealth did not pro vide legitimate, race-neutral and gender-neutral reasons for exercis ing peremptory challenges to remove them from the jury? 3. Did the trial court err in permitting the Commo nwealth to introduce a string of “prior bad act” evidence detailing [appel lant]’s prior, unrelated interest in the handgun used to kill the decedent a nd referring to an unrelated beating that [appellant] sustained three days prior to his killing the decedent? 4. Did the [trial] court violate the terms of Pa.R .E. 703 by preventing [appellant]’s expert witness, a medical doctor and toxicologist, from referring to all the facts on which he reasonably r elied in forming his conclusions as to the effects of [appellant]’s drug and alcohol use on the date of the charged offense and by requiring such e xpert witness thereby to amend his conclusions in a manner that negatively a ffected their impact on the legal defenses which [appellant] proffered at t rial? 5. Did not the [trial] court err in refusing to in struct the jury, as requested by [appellant], with respect to the distinct meanings of the concepts of “premeditation” and “deliberation” necessary to sus tain a conviction for murder in the first degree? 6. Was not the jury’s death verdict invalid under 42 Pa.C.S. § 9711, Pa.R.Crim.P. 807 and 808, and various constitutiona l provisions, where the jury on the written verdict slip failed to set fort h the specific statutory finding upon which the death sentence was based?

Appellant’s Brief, at 6-7.

I. SUFFICIENCY OF EVIDENCE FOR FIRST DEGREE MURDER CONVICTION

We begin by reviewing the sufficiency of the evide nce for appellant’s first degree

murder conviction. “In all cases in which the deat h penalty is imposed, it is this Court’s duty to review the record to ensure the evidence su fficiently supports the first degree murder conviction[.]” Commonwealth v. Brown, 987 A .2d 699, 705 (Pa. 2009) (citations omitted). In sufficiency review, “we must determin e whether the evidence admitted at[J-54-2013] - 5

trial, and all reasonable inferences derived theref rom, when viewed in the light most

favorable to the Commonwealth as the verdict winner , supports the jury’s finding of all of the elements of the offense beyond a reasonable dou bt.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citation omitted). The elements of first degree murder exist where the Commonwealth proves: (1) a human being was unlawfully killed; (2) the person a ccused is responsible for the killing; and (3) the accused acted with malice and specific intent to kill. See 18 Pa.C.S. § 2502(a); Commonwealth v. Arrington, 86 A.3d 831, 84 0 (Pa. 2014) (citation omitted). At trial, the only disputed element was whether appell ant had the requisite malice and intent to kill. For first degree murder, “an intentional killing” is a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). In o ther words, first degree murder is a killing with specific intent. See Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005) (citation omitted). The fact-finder may infe r malice and specific intent to kill based on the defendant’s use of a deadly weapon upon a vi tal part of the victim’s body. Arrington, at 840 (citation omitted). We find the Commonwealth provided sufficient evide nce to prove each element of first degree murder beyond a reasonable doubt. Spe cifically, it is undisputed the shooting took place several minutes after the earli er altercation with Wright and Stewart, during which appellant left the venue out the front door, retrieved the handgun he hid earlier in the night, went behind the venue, and po inted and fired three shots at them, killing Stewart. The record evidence suggests a pr esence of mind belying appellant’s contentions he lacked specific intent. Viewed in t he light most favorable to the Commonwealth as the verdict winner, the evidence wa s sufficient to support a finding that Stewart was unlawfully killed, appellant killed him , and he acted with malice and specific

intent to kill.[J-54-2013] - 6 II. JURY SELECTION

A. Striking Juror 32 For Cause Appellant notes the distinction between a juror who makes general objections to the death penalty versus one who unequivocally stat es she would automatically vote against the death penalty without regard for the la w or the facts of the case. Appellant’s Brief, at 32-33 (quoting Commonwealth v. Weeden, 32 2 A.2d 343, 347 (Pa. 1974) (jurors may not be excluded for cause simply because they v oiced general objections to death penalty)). Appellant characterizes Juror 32 as one who made general objections, stating she “expressed a preference for imposing a sentence of life imprisonment[,]” id., at 31, but “never indicated that she was incapable of imposing a sentence of death under all circumstances[,]” id., at 33. Although Juror 32 re peatedly expressed her own individual preference, appellant notes she nonetheless indicat ed she could follow the court’s instructions. Therefore, he argues the trial court erred by striking Juror 32 for cause rather than forcing the Commonwealth to use one of its peremptory challenges. 2 The Commonwealth avers Juror 32 unequivocally stated sh e could not impose the death penalty and the trial court did not abuse its discr etion in striking her for cause. During voir dire, Juror 32 was questioned extensive ly by defense counsel, the Commonwealth, and the trial court as to whether she would be able to follow the law and impose a death sentence if the facts of the case me t the statutory criteria for such a penalty. See N.T. Voir Dire, 4/30-5/4/12, at 367-8 3. Juror 32 generally stated she could follow the law and would listen to argument with an open mind. Id., at 378-79. However, her responses as a whole unquestionably de monstrated an opposition to the

2 Jurors may be excluded for cause when their views on the death penalty would prevent or substantially impair their performance of duties in accordance with their instructions and oath, and the trial court is within its discret ion in excluding jurors who expressed such views. Commonwealth v. Chmiel, 30 A.3d 1111, 1176 (Pa. 2011) (citations omitted).[J-54-2013] - 7

death penalty. During voir dire, she said, “I woul d rather give the life sentence than death. M I’d just rather not do that, send him to d eath.” Id., at 371. When asked, “[A]re you telling us that you would have a difficult time , even if justified by law, standing and saying yes, the sentence here should be death?[,]” she replied, “Probably, yeah, then I would, yes.” Id., at 372. Additionally, when aske d if she had personal beliefs that would make her incapable of imposing a death sentence, sh e replied, “Okay. Yes, I can’t do that. M I cannot put him to death, no.” Id., at 375. Wh en defense counsel further explained a death sentence is not automatic upon conviction for first degree murder, she stated she “would give him life instead of death probably[,]” id., at 381, and when the court asked, “[I]f the law says ... you are required to vote for death , ... are you still going to say, no, it’s a life prison sentence, regardless of what the testimony o r the evidence was during the penalty phase?[,]” she again concluded she “would probably still send him to life[,]” id., at 383. As a result, the trial court determined its dismiss al for cause was warranted. “[T]he purpose of voir dire is to ensure the empane lling of a fair and impartial jury capable of following the instructions of the trial court.” Commonwealth v. Lesko, 15 A.3d 345, 412-13 (Pa. 2011) (citation omitted). The tri al court must be given great deference in ruling on challenges for cause, as it “not only hears the questions and answers during voir dire, but also observes the demeanor of the ve niremen and assesses their credibility and ability to be impartial.” Commonwealth v. Smit h, 540 A.2d 246, 256 (Pa. 1988) (citations omitted). We have held the decision to exclude a juror who expressed reservations about imposing the death penalty is wi thin the trial court’s discretion and will be reversed only for an abuse of discretion. Commo nwealth v. Philistin, 53 A.3d 1, 11 (Pa. 2012) (citation omitted). Appellant cites Weeden to posit “‘that a sentence o f death cannot be carried out if the jury that imposed or recommended it was chosen by excluding the venireman for[J-54-2013] - 8

cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its inf liction.’” Weeden, at 347 (quoting Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)). However, Weeden further held: it was not error to exclude for cause “[veniremen] who made unmistakably clear (1) that they would automatically vote agains t the imposition of capital punishment without regard to any evidence that migh t be developed at the trial of the case before them, or (2) that their at titude towards the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” Id. (emphasis omitted) (quoting Witherspoon, at 522 n.21). This Court noted the United States Supreme Court’s clarification of Witherspoon, setting the standard for determining a strike for c ause as: “whether the jurors’ views would ‘prevent or substa ntially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ [I]n addition to dispensing with Wither spoon’s reference to ‘automatic’ decision making, this standard likewise does not require that a juror’s bias be proved with ‘unmistakable clarity.’ ” Commonwealth v. Buehl, 508 A.2d 1167, 1175-76 (Pa. 1986) (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Although appellant contends Juror 32 merely voiced general objections to the death penalty and stated she could follow the law, the record shows otherwise — Juror 32 repeatedly expressed she would sentence appellant t o life even if the law required a death sentence. Juror 32’s views need not be expre ssed with “unmistakable clarity” or automatic, unequivocal certainty, see id. (citation omitted), but those views were clearly discernable here. Accordingly, we conclude the tri al court did not abuse its discretion in determining Juror 32’s views would prevent or subst antially impair her ability to perform in accordance with her oath, and hence striking her on that basis. B. Batson Challenges[J-54-2013] - 9

Appellant argues the Commonwealth used race-based a nd gender-based peremptory challenges to exclude Jurors 25, 31, 45, and 86 in violation of Batson. 3 In support of his gender discrimination claims, appell ant relies on the number of female jurors struck, noting the Commonwealth used 14 out of 19, or 73.7%, of its total peremptory challenges to exclude females. Appellan t also alleges the Commonwealth’s reasons for striking Jurors 25 and 45 were pretextu al, essentially contesting the trial court’s credibility determinations regarding the Co mmonwealth’s non-discriminatory reasons for its peremptory challenges. As a result , appellant requests a new trial. The Commonwealth argues appellant failed to make a prima facie case 4 for racial discrimination and asserts appellant waived his gen der discrimination claims by failing to raise them during voir dire. Alternatively, the Co mmonwealth contends race-neutral and

3 Appellant fails to make any particularized argumen t regarding Jurors 31 and 86, but merely alleges generally that they were struck as a result of race-based and gender-based peremptory challenges. See Appellant’ s Brief, at 34-37.

4 When defense counsel objected to the Commonwealth’ s peremptory challenges, the prosecutor responded by first arguing the defense h ad failed to make a prima facie showing of discrimination. The trial court did not explicitly conclude the defense met its burden, but did so implicitly by conducting an inqu iry under the second prong of Batson, requesting the prosecutor’s reasoning for the strik es. The trial court accepted the prosecutor’s non-discriminatory reasons, finding no purposeful discrimination and moving on to question the next potential juror. In Common wealth v. Harris, 817 A.2d 1033 (Pa. 2002), we noted the plurality decision by the Unite d States Supreme Court in Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion ), which offered that “‘[o]nce a prosecutor has offered a race-neutral explanation f or the peremptory challenges and the trial court has ruled on the ultimate question of i ntentional discrimination, the preliminary issue of whether the defendant had made a prima fac ie showing becomes moot.’” Harris, at 1044 (quoting Hernandez, at 359). Altho ugh this Court admitted the plurality opinion did not compel us to deem the preliminary p rima facie inquiry as moot in similar circumstances, we found such language “gives us pau se[.]” Id. Therefore, we addressed whether the appellant carried his ultimat e burden of proving the Commonwealth struck jurors based on race without fi rst deciding a prima facie case of purposeful discrimination. See id.; see also Commo nwealth v. Edwards, 903 A.2d 1139, 1154 n.16 (Pa. 2006). We will follow the same proc ess here.[J-54-2013] - 10

gender-neutral reasons were provided for excusing J urors 25 and 45, 5 and the record supports the trial court’s denial of appellant’s Ba tson challenges. In response to appellant’s Batson challenge to Juro r 25, the Commonwealth listed non-discriminatory reasons, stating she: (1) indica ted she would be less likely to believe testimony from a police officer; (2) expressed her opposition to the death penalty; (3) responded on her written jury questionnaire that he r religious and moral views might interfere with her ability to be fair and impartial ; and (4) stated she intended to hold the Commonwealth to a higher burden of proof than beyon d a reasonable doubt. N.T. Voir Dire, 4/30-5/4/12, at 308-09. As to Juror 31, the Commonwealth noted: (1) her strong preference for not issuing a death sentence where t he accused and victim were both adult males; (2) her comments appellant was too you ng for the death penalty; and (3) her brother’s incarceration, of which she would not pro vide any details but disclosed she maintains a close relationship with him. Id., at 3 66-67. Concerning Juror 45, the Commonwealth gave its non-discriminatory reasons, s tating she: (1) indicated on her written jury questionnaire that she would be less l ikely to believe the testimony of a police officer, and her responses to related questioning d uring voir dire were equivocal; (2) responded equivocally as to whether she would acqui t appellant to avoid issuing him the death penalty; (3) commented on how appellant had t o fight the case; and (4) expressed affinity toward defense counsel and smiled at appel lant. Id., at 566-68. For Juror 86, the Commonwealth responded: (1) she was uneasy in i ssuing the death penalty where the victim was not elderly or a child; (2) the pros ecutor was familiar with some unspecified conduct by her husband; and (3) she had hesitancies and equivocations in her responses during voir dire, especially with regard to death p enalty questions. Id., at 715-17.

5 The Commonwealth’s arguments do not mention Jurors 31 and 86, but only reference Jurors 25 and 45, seemingly in response to appellan t’s limited argument supra, n.3. See Commonwealth’s Brief, at 10-13.[J-54-2013] - 11

The trial court denied all four of appellant’s Bats on challenges. In its Rule 1925(a) opinion, the court noted appellant waived all gende r-based Batson claims because he only objected on the basis of race during voir dire and never alleged gender discrimination. See Trial Court Opinion, 10/23/12, at 10. We disagree as to Jurors 45 and 86. Citing Batson, defense counsel objected to the Commonwealth’s peremptory challenges to exclude Jurors 45 and 86, and althoug h he did not explicitly allege gender discrimination, the record clearly shows his emphas is on gender in support of his Batson challenge, noting Juror 45 was “the second female m inority juror” to be stricken, N.T. Voir Dire, 4/30-5/4/12, at 568 (emphasis added), Juror 8 6 was “the fourth woman of color” to be stricken, id., at 714 (emphasis added), and alle ging there “is the pattern ... that minority females are being systematically stricken as jurors based on their race[,]” id. (emphasis added). However, as to Jurors 25 and 31, defense c ounsel solely objected on the basis of race and never alleged gender-based discriminati on, nor did he reference or emphasize the gender of the jurors stricken; theref ore, the trial court was correct in finding appellant waived his gender-based challenge regardi ng those two jurors. See Pa.R.A.P. 302(a). The trial court further determined, even if appella nt’s gender-based claims were preserved, the Commonwealth gave sufficient race-ne utral and gender-neutral reasons for its peremptory challenges and demonstrated no p urposeful discrimination. See Trial Court Opinion, 10/23/12, at 10-12. In Batson, the United States Supreme Court held the Fourteenth Amendment’s Equal Protection Clause forbids the prosecution fro m using its peremptory challenges to exclude potential jurors based solely on their race . See Batson, at 89. In Harris, this Court set forth the second and third prongs for ana lyzing Batson claims: The second prong of the Batson test, involving the prosecution’s obligation to come forward with a race-neutral expl anation of the challenges[J-54-2013] - 12

once a prima facie case is proven, does not demand an explanation that is persuasive, or even plausible. Rather, the issue a t that stage is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reaso n offered will be deemed race neutral. If a race-neutral explanation is tendered, the tri al court must then proceed to the third prong of the test[.] ... It is at this stage that the persuasiveness of the facially-neutral explanation proffered by the Commonwealth is relevant.

Harris, at 1043 (internal citations and quotations omitted) (emphasis in original). We have noted the United States Supreme Court’s extens ion of Batson to encompass challenges on the basis of gender. See Commonwealt h v. Spotz, 896 A.2d 1191, 1211 (Pa. 2006) (“‘[I]ntentional discrimination on the b asis of gender by state actors violates the Equal Protection Clause[.]’” (quoting J.E.B. v. Ala bama, 511 U.S. 127, 130-31 (1994))). The trial court should consider the totality of ci rcumstances when determining whether the prosecutor acted with discriminatory in tent or engaged in purposeful discrimination. Commonwealth v. Williams, 980 A.2d 510, 531-32 (Pa. 2009) (citations omitted). Great deference must be given to the tri al court’s finding as to an absence of discriminatory intent in peremptory challenges, and this finding will not be overturned unless clearly erroneous. Spotz, at 1212 (quoting Commonwealth v. Jones, 668 A.2d 491, 520 (Pa. 1995)). Such deference is warranted because the trial court is in the position to make credibility determinations when vi ewing the demeanor of the prosecutor exercising the peremptory challenges. Williams, at 531 (citation omitted). After reviewing the record and the relevant legal principles, we conclude the trial court’s finding is supported by the record and free of legal error. Thus, appellant has failed to prove the trial court erred in denying hi s Batson claims.

III. GUILT PHASE CLAIMS

A. Prior Acts[J-54-2013] - 13

Prior Use of Hunter’s Handgun Appellant concedes it was permissible to allow the jury to hear evidence that he lawfully used Hunter’s handgun on one prior occasio n, knew where Hunter stored the handgun, and stole the handgun on the night of the murder and hid it in the alleyway. However, he argues the jury should have received on ly this limited evidence, not that he asked to borrow Hunter’s handgun on multiple occasi ons and once fired it from a moving vehicle. Appellant contends this was irrelevant, i nadmissible character evidence. Appellant further contends this evidence, even if r elevant, should be excluded because its probative value is outweighed by the potential prej udice. The Commonwealth responds by highlighting it bore t he burden of proving specific intent to kill and appellant’s state of mind; there fore, evidence proving appellant’s familiarity with the handgun was relevant and admis sible to prove his intent and absence

of mistake or accident. The Commonwealth also asse rts evidence demonstrating appellant asked Hunter to borrow his handgun on pri or occasions does not constitute “prior bad acts” evidence, 6 as there was no evidence of appellant’s inability to legally

6 The Commonwealth’s argument that this evidence is not “prior bad acts” evidence since it does not involve criminal acts or misconduct is without merit. The term “prior bad acts” commonly refers to Rule 404(b), which does not appl y only to acts that are “bad” or immoral in nature. Rule 404(b) makes no such disti nction. It not only concerns prior crimes or “bad” conduct but also relates to other a cts or conduct. Rule 404(b), entitled “Crimes, Wrongs or Other Acts [,]” provides: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order t o 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, prepara tion, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this (continuedM)[J-54-2013] - 14

possess a firearm presented to the jury since the u nlawful possession charge was

severed from the murder trial. The Commonwealth fu rther contends if this is considered “prior bad acts” evidence, it is admissible under t he res gestae exception as part of a natural development of the facts of this case, asse rting appellant’s prior requests to borrow Hunter’s handgun may be introduced to show a ppellant committed a murder with

that same firearm. “‘The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court

committed an abuse of discretion.’” Commonwealth v . Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (quoting Commonwealth v. Sherwood, 982 A .2d 483, 495 (Pa. 2009)). “‘An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a resu lt of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such l ack of support so as to be clearly erroneous.’” Id. (quoting Sherwood, at 495). The trial court found appellant’s prior requests to see and use Hunter’s handgun — the same handgun used to kill Stewart — were admissible pursuant to Pa.R.E. 404(b) to show appellant knew of, had access to, and was fami liar with the handgun. Trial Court Opinion, 10/23/12, at 5. The court also found the probative value of the evidence outweighed its prejudicial effect “where the charge for unlawful possession of a firearm was severed from the homicide charges and the jury was unaware of [appellant]’s inability to possess a firearm.” Id.

(Mcontinued) evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(1)-(2) (first and third emphasis add ed).[J-54-2013] - 15

In deciding admissibility of other acts, “the trial court is obliged to balance the probative value of such evidence against its prejud icial impact.” Sherwood, at 497 (citations omitted). This Court has also recognize d the res gestae exception to Rule 404, allowing evidence of other acts to be admitted to t ell “‘the complete story[.]’” Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 20 06) (citation omitted). The evidence challenged by appellant was admissible to prove intent, preparation, knowledge, absence of mistake, and lack of accident . Appellant claimed at trial he lacked the specific intent to kill. The admitted p rior acts evidence demonstrated appellant knew where the handgun was located, had t he ability to retrieve it, and was familiar with it due to his prior use of it, thereb y refuting any claim of lack of specific intent or mistake or accident due to unfamiliarity with th e handgun. Additionally, the prior acts were relevant for res gestae purposes to explain th e history and course of events on the night of the murder, and appellant’s prior requests to see and use Hunter’s handgun were necessary to “complete the story” as to how he had access to the handgun, removed it from Hunter’s apartment without his knowledge, and hid it outside of the venue, enabling

him to retrieve it moments after his altercation wi th Wright. See Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa. 2007) (res gestae ev idence admissible to explain events surrounding criminal conduct and resulting prosecut ion so case presented to jury does not appear in vacuum). Furthermore, the jury never learned of appellant’s inability to legally possess a firearm; therefore, the probative value of this evidence outweighed its prejudicial effect. Accordingly, the trial court d id not abuse its discretion in admitting this

evidence. Pre-existing Facial Injury Appellant avers evidence of his pre-existing facial injury was irrelevant and the trial court erred by admitting testimony to demonstrate t he injury existed prior to the night of[J-54-2013] - 16

the murder. Appellant argues such evidence was irr elevant since he never claimed the facial injury was caused by Wright, and to the exte nt such could be found relevant, its relevance was outweighed by its undue prejudice. F urther, appellant alleges the evidence permitted the jury to assume he had been i n a recent fight and to infer he must have asked for the handgun not simply to use it but to retaliate against the individual who caused the facial injury. The Commonwealth notes it did not present evidence of appellant’s involvement in a fight just days prior to the murder, but limited its proffer and questioning to appellant’s appearance prior to the altercation. The Commonwea lth argues appellant’s appearance

was admissible to rebut his claims that he suffered a severe beating from Wright and was part of the natural development of the facts surrou nding the case.

The trial court held the evidence was admissible to rebut appellant’s claim Wright inflicted the injury just prior to the shooting. T he court highlighted the Commonwealth did not elicit testimony regarding the prior altercatio n but limited its questioning to the appearance of appellant’s face prior to his fight w ith Wright, in response to which Hunter testified appellant already had a scab on his lip w hen he arrived at Hunter’s apartment earlier that night. See Trial Court Opinion, 10/23 /12, at 6 (citing N.T. Trial, 5/7-11/12, at 247). The court also found the probative value of the evidence outweighed its prejudicial effect since the jury only heard limited testimony as to appellant’s appearance prior to the altercation with Wright, not how he sustained the f acial injury. Id. The court further stated, even if admitting this evidence was error, it was nonetheless harmless. Id. The trial court did not err in this regard. Hunter ’s testimony about appellant’s pre-existing lip injury was admissible to rebut app ellant’s claims that Wright caused the injury. Whether appellant was injured during his a ltercation with Wright was indicative of the severity of the beating, which, in turn, was pr obative as to whether appellant was[J-54-2013] - 17

operating under the heat of passion required to red uce his culpability. The jury never heard how appellant sustained this pre-existing inj ury; it only heard Hunter’s testimony as to appellant’s appearance prior to his fight with W right, which did not necessarily imply he sustained the injury from another prior fight but s imply indicated Wright did not cause it. The evidence did not impugn appellant’s character, nor was it prejudicial. Accordingly,

the trial court did not abuse its discretion in adm itting this evidence. B. Expert’s Report and Testimony

Appellant argues the trial court erred by refusing to permit his expert to testify about all the facts on which he relied in rendering his opinion as to the psychological and physiological effects of appellant’s alcohol and dr ug consumption, and a concussion he might have sustained, on the night of the murder. Appellant notes he gave a detailed account of the entirety of his consumption during i nterviews with his expert and argues his expert reasonably relied on these statements in cre ating his report. Appellant contends the trial court improperly excluded the report and precluded his expert from testifying about appellant’s statements contained therein, and it erred in only permitting his expert to testify hypothetically based on record evidence. Appellant posits the trial court’s limiting his expert to hypotheticals substantially diluted his expert’s opinion on appellant’s psychological and physiological functions at the ti me of the incident.

The Commonwealth asserts the trial court did not er r in excluding appellant’s statements from the expert’s report and properly fo und no toxicology expert would reasonably rely on a defendant’s self-serving state ments in forming an opinion. The Commonwealth argues the expert’s report was simply an attempt by appellant to submit his self-serving statements to the jury without hav ing to testify himself. The Commonwealth contends even if error is found, such error is harmless since appellant[J-54-2013] - 18

was still permitted to question his expert in hypot hetical form, which allowed the expert to assume the facts contained in appellant’s statement s. At trial, defense counsel objected under Pa.R.E. 70 3 7 to the Commonwealth’s motion in limine to exclude the expert’s report. T he trial court precluded admission of the report and testimony as to appellant’s statements c ontained therein as hearsay. See N.T. Trial, 5/7-11/12, at 443-45. The court limite d defense counsel to using hypothetical questions based on record evidence. Id., at 445. The trial court later admitted the expert’s opinion relative to the psychological and physiological effects of alcohol and drugs, and an opinion relative to concussions. Id. , at 463-64. In its Rule 1925(a) opinion, the trial court not on ly found the report was based entirely on appellant’s self-serving hearsay statem ents, but it also stated, pursuant to Pa.R.E. 703, “nothing in the report would have been of the type reasonably relied upon by a toxicologist in rendering an opinion to a reasona ble degree of medical certainty regarding the effect of drug[s] and alcohol on [app ellant] and an alleged possible concussion on the night in question.” Trial Court Opinion, 10/23/12, at 13. The trial court noted appellant did not testify, and it found that introducing appellant’s account to the jury for its truth through expert testimony or a report risked confusing and misleading the jury, which outweighed any minimal probative va lue of the facts contained therein.

Id.

7 Rule 703 states: An expert may base an opinion on facts or data in t he case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kin ds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Id.[J-54-2013] - 19

Decisions regarding the admission of expert testimo ny are left within the trial court’s sound discretion, and this Court will not d isturb such decisions absent a clear abuse of discretion. Commonwealth v. Galvin, 985 A .2d 783, 801 (Pa. 2009) (citation omitted). An expert opinion may be based on inadmi ssible facts or facts not in evidence, including other expert opinions and hearsay stateme nts, as long as such facts are of a type reasonably relied on by experts in that profes sion. See Pa.R.E. 703; see also Commonwealth v. Chambers, 599 A.2d 630, 639 (Pa. 19 91) (citations omitted). Implicit

in Rule 703 is the trial court’s sound discretion u nder Pa.R.E. 104(a) to make a preliminary determination as to whether the particu lar underlying facts are of a kind reasonably relied upon by experts in the particular field. See id., 703 cmt. Rule 705 of Pennsylvania’s Rules of Evidence mandates, “If an e xpert states an opinion[,] the expert must state the facts or data on which the opinion i s based.” Id., 705. However, an expert may not act as a mere conduit of hearsay or transmitter of extrajudicial information. See id., 703 cmt. (“An expert witness cannot be a m ere conduit for the opinion of another ... [and] may not relate the opinion of a non-testi fying expert[.]”).

The trial court did not abuse its discretion in fin ding appellant’s self-serving statements were not of a type reasonably relied on by experts in toxicology. There is a distinction between an expert using basic facts pro vided by laymen to form an expert opinion, versus one who simply parrots out-of-court statements in court, thereby acting as a conduit for hearsay. In this case, there were no toxicology screens or tests performed on appellant. The expert’s report was simply appel lant’s firsthand narrative of the events on the night of the murder and a detailed account o f his drug and alcohol consumption that night. Had the expert been permitted to testi fy to the facts contained in his report, he would have been merely relaying testimony appellant would have given had he taken the stand. Pennsylvania’s Rules of Evidence do not pro vide a mechanism for a criminal[J-54-2013] - 20

defendant to decline to testify and to avoid the ru les of evidence by using an expert witness to introduce his story into the record. Ac cordingly, it was proper for the trial court to exclude the report from the jury’s consideration and to prevent appellant’s statements from reaching the jury via the expert’s testimony. Moreover, appellant has failed to demonstrate he su ffered prejudice from the trial court’s decision, as his expert was permitted to te stify by answering hypotheticals. These hypotheticals were comprehensive of appellant ’s account in the report regarding his drug and alcohol consumption that night, includ ing the type and amount consumed at the times appellant alleged, and the events that oc curred that night, including details of appellant’s fight with Wright — the expert was aske d to opine on the effects of three, hard, closed-fist punches to the head. See N.T. Trial, 5 /7-11/12, at 464-82. The expert rendered an opinion of appellant’s psychological an d physiological functions reflecting the facts stated in his report; therefore, were the re any error in precluding its admission, it would be harmless. See Commonwealth v. Petroll, 73 8 A.2d 993, 1005 (Pa. 1999) (citation omitted). C. Jury Instructions

At trial, appellant requested the court instruct th e jury on the distinct definitions of “premeditation” and “deliberation.” In support of his request, appellant submitted two suggested instructions on the definitions of “preme ditation” and “deliberation” based on descriptions found in case law, legal treatises, an d dictionaries. 8 The trial court declined

8 Appellant’s first suggested instruction stated: Before you can find [appellant] guilty of [m]urder in the [f]irst [d]egree, you must find beyond a reasonable doubt that he acted w ith premeditation and deliberation. “Premeditation” is the process of thi nking about a proposed killing before engaging in the homicidal conduct. “ Deliberation” is the process of carefully weighing such matters as the w isdom of going ahead (continuedM)[J-54-2013] - 21

to use appellant’s suggestions, and appellant objec ted. See N.T. Trial, 5/7-11/12, at

556-57. Appellant avers the trial court declined to define “deliberate” in its jury instructions and gave a definition of “premeditated” that was no t as clear as the one he requested. However, he admits the trial court’s instructions w ere “substantially based” on the Pennsylvania Suggested Standard Criminal Jury Instr uctions, which also do not provide a specific definition for “deliberation.” Appellant’ s Brief, at 54-55. The crux of appellant’s argument is not that the trial court’s instructions departed from the Suggested Standard Criminal Jury Instructions for first degree murder, but that the Suggested Standard Criminal Jury Instructions themselves are insuffici ent. In support of his argument, his brief includes a six-page treatise on the history o f the definition of first degree murder in

(Mcontinued) with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be vis ited upon the killer if he [is] apprehended. “Deliberation” is present if t he thinking, i.e., the “premeditation,” is being done in such a cool menta l state, under such circumstances, and for such a period of time as to permit a “careful weighing” of the proposed decision. Defendant’s Points for Charge, 5/17/12, at 18 (cita tions omitted). The second suggested instruction read: [A] killing is with specific intent to kill if it i s willful, deliberate, and premeditated. The word deliberate is not defined in the statute. Therefore, this word should be used according to its common us age. Black’s Law Dictionary in the 7th [e]dition defines it as, quot e, intentional, premeditated, fully considered, unimpulsive, slow in deciding. We bster defines it as [“]to consider, weigh well, carefully thought out or form ed, premeditated, done on purpose.” Id. (citation omitted).[J-54-2013] - 22

Pennsylvania and legal use of the words “deliberati on” and “premeditation.” See id., at

54-60. “When reviewing a challenge to a jury instruction, we review the charge as a whole to ensure it was a fair and complete statement of t he law.” Johnson, at 1036 (citation omitted). Trial courts possess great discretion in phrasing jury instructions so long as the law is clearly, adequately, and accurately presente d to the jury. Commonwealth v. Eichinger, 915 A.2d 1122, 1138 (Pa. 2007) (citation omitted); Philistin, at 12 (citation omitted). “[A] trial court need not accept counsel ’s wording for an instruction, as long as the instruction given correctly reflects the law.” Commonwealth v. Williams, 732 A.2d 1167, 1187 (Pa. 1999) (citation omitted). The tria l court’s instruction in this case thoroughly and accurately represented the law on fi rst degree murder; thus, there was no error. Insofar as appellant asks us to critique th e subtleties of the language in the Pennsylvania Suggested Standard Jury Instructions, we decline his invitation. 9

IV. PENALTY PHASE CLAIM During the penalty phase, the trial court provided the jury with a three-part verdict slip. In part A, the jury was to check whether it imposed a sentence of death or life imprisonment. In part B, to be completed if it cho se death, the jury was to explain the

basis for that choice. Part B contained two subsec tions, in which the jury was to check one of two blanks indicating whether it based the d eath sentence on finding: (B.1) an aggravating circumstance which outweighs any mitiga ting circumstances; or (B.2) at least one aggravating circumstance and no mitigating circ umstances. Under each subsection in part B were blanks to write in the aggravating o r mitigating circumstances. In part C, to be completed if the jury chose life imprisonment, i t was to explain the basis for that choice

9 Appellant fails to assert Pennsylvania’s Suggested Standard Jury Instructions in any way impinge upon his constitutional or other legal rights.[J-54-2013] - 23

by checking whether: (1) no aggravating circumstanc e exists; or (2) the mitigating circumstances are not outweighed by the aggravating circumstance. Also in part C were blanks to write in the aggravating or mitigating ci rcumstances. During its charge, the trial court instructed the jury on how to complete the fo rm. The jury completed part A by checking the “death” b lank, indicating its unanimous choice to impose a death sentence. The jury then c ompleted part B.1; the jury wrote in the aggravating circumstance it found unanimously a nd the mitigating circumstances any of its members found, but did not check the blank p receding part B.1. Appellant argues the oversight invalidated the deat h verdict under 42 Pa.C.S. § 9711, Pa.R.Crim.P. 807 and 808, and violated the pro tections against cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article I, § 13 of the Pennsylvania Constitution. Appellant c ites various minimally relevant decisions by the United States Supreme Court holdin g the uniqueness and severity of the death penalty demand heightened reliability of thos e verdicts. See Thompson v. Oklahoma, 487 U.S. 815 (1988); Zant v. Stephens, 46 2 U.S. 862, 884 (1983); Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Howev er, appellant never explains how the minor oversight invalidates the verdict, and he doe s not cite any authority for this proposition. Appellant agrees the jury unanimously indicated dur ing on-the-record polling that it found an aggravating circumstance and mitigating ci rcumstances, weighed them, and each juror agreed with the sentence of death as a r esult; however, appellant contends the

verdict was still invalid because the court never a sked “whether the jury based its sentence of death on a specific finding that the ag gravating circumstance outweighed any mitigating circumstances.” Appellant’s Brief, at 6 3 (emphasis in original).[J-54-2013] - 24

None of appellant’s arguments are compelling. The jury clearly chose death as the sentence in part A. Part B is merely explanato ry of the verdict — it is not the verdict itself. It supports the conclusion that the jury f ollowed the proper considerations when reaching its verdict. The jury clearly listed both an aggravating circumstance and mitigating circumstances on the verdict slip blanks in part B.1, the section indicating a finding that the aggravating circumstance outweighe d any mitigating circumstances. There is no logical way to interpret the verdict sl ip other than as expressing a unanimous finding that the aggravating circumstance outweighe d the mitigating circumstances. Indeed, the jury’s decision to thoroughly complete part B.1 and leave the remainder of the verdict slip blank indicates its actual verdict and negates any clerical failure to check the

blank next to that section. This conclusion was co nfirmed when the trial court polled each juror individually, and each confirmed he or s he “weighed the aggravating and mitigating circumstances” and decided on a verdict of death. N.T. Sentencing, 5/14-15/12, at 188-93. Therefore, the jury’s death sentence is valid.

V. STATUTORY REVIEW

This Court must affirm the sentence of death unles s we find: (i) the evidence fails to support the finding of at least one aggravating circumstance; or (ii) the sentence was the product of passion, prejudice, or any other arb itrary factor. Champney, at 417 (citing 42 Pa.C.S. § 9711(h)(3)(i)-(ii)). In the p enalty phase, the jury found appellant’s actions knowingly created a grave risk of death to another person in addition to the victim of the murder. See 42 Pa.C.S. § 9711(d)(7). “Suff icient evidence to support the grave risk of death aggravator exists where a nexus conne cts other persons in close proximity

to the intended or actual victim to the zone of dan ger created by the defendant’s actions in killing the victim.” Brown, at 707 (citation omitt ed). It was undisputed appellant purposely shot in the direction of both Stewart and Wright, which alone supports the jury’s[J-54-2013] - 25

finding of the “grave risk of death” aggravator. F inally, appellant does not contend his conviction or sentence was the result of passion, p rejudice, or any other arbitrary factors, see 42 Pa.C.S. § 9711(h)(3)(i), and our review of t he record reveals no indication of such

factors. Accordingly, we affirm the verdict and the sentenc e of death. The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor. See id., § 9711(i). Judgment of sentence affirmed; jurisdiction relinq uished. Mr. Chief Justice Castille, Messrs. Justice Saylor and Baer, Madame Justice Todd, and Messrs. Justice McCaffery and Stevens join the opinion.