[J-54-2013] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, 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 imposed after a jury convicted 

appellant of first degree murder. At the penalty phase, the jury found one aggravating 

circumstance and multiple mitigating circumstances, determined the aggravating 

circumstance outweighed the mitigating circumstances, and sentenced appellant to 

death. For the following reasons, we affirm. 

Appellant and Antwain Robinson took a bus from Lancaster 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 alcohol and smoked marijuana 

throughout the night, walking between Hunter’s apartment 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 appellant at least once. Security separated 

them, and escorted appellant and Robinson out the front 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 the scene and asked a friend for a ride 

to Lancaster. During the trip, appellant made incriminating statements to all occupants 

of the vehicle, including Robinson, their friend, and 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 aggravating circumstance and intent to seek 

the death penalty. Appellant filed a pre-trial motion seeking suppression of any evidence 

relating to his use and handling of Hunter’s handgun on occasions prior to the night of the 

murder and evidence of an unrelated altercation days earlier during which he sustained 

an injury to his lip. The trial court denied the motion. 

During voir dire, defense counsel objected to the trial court’s striking of one 

potential juror for cause and raised a Batson1 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 with 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 detailed 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 preclude 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 he relied in rendering his opinion regarding 

the psychological and physiological effects of appellant’s alcohol and drug consumption, 

including appellant’s statements. The trial court granted the Commonwealth’s motion 

and limited defense counsel to using hypothetical questions based on record evidence. 

Appellant also requested the trial court instruct the jury on the distinct definitions of 

“premeditation” and “deliberation,” and submitted two suggested instructions defining 

each term. The trial court declined to follow appellant’s points for charge and instead 

relied on the Pennsylvania Suggested Standard Criminal Jury Instructions. 

The jury convicted appellant of first degree murder and attempted homicide. In 

the penalty phase, the jury found one aggravating circumstance — 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 one or more jurors found various 

factors relating to the circumstances of the offense 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 filed a post-sentence motion to modify 

his sentence to life imprisonment, alleging the jury failed to check the blank on the verdict 

slip indicating the aggravating circumstance outweighed the mitigating circumstances. 

The trial court denied the motion, finding the jury meaningfully weighed the mitigating 

factors against the sole aggravating factor as indicated by the individual polling of the jury 

on the record. Appellant timely appealed to this Court, 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 for 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 dismissal of four female jurors 

who were either African-American or Hispanic after a Batson challenge by 

defense counsel, where the Commonwealth did not provide legitimate, 

race-neutral and gender-neutral reasons for exercising peremptory 

challenges to remove them from the jury? 

3. Did the trial court err in permitting the Commonwealth to introduce a 

string of “prior bad act” evidence detailing [appellant]’s prior, unrelated 

interest in the handgun used to kill the decedent and 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 relied 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 expert witness thereby to 

amend his conclusions in a manner that negatively affected their impact on 

the legal defenses which [appellant] proffered at trial? 

5. Did not the [trial] court err in refusing to instruct the jury, as requested by 

[appellant], with respect to the distinct meanings of the concepts of 

“premeditation” and “deliberation” necessary to sustain 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 constitutional provisions, where the 

jury on the written verdict slip failed to set forth 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 evidence for appellant’s first degree 

murder conviction. “In all cases in which the death penalty is imposed, it is this Court’s 

duty to review the record to ensure the evidence sufficiently supports the first degree 

murder conviction[.]” Commonwealth v. Brown, 987 A.2d 699, 705 (Pa. 2009) (citations 

omitted). In sufficiency review, “we must determine whether the evidence admitted at 
[J-54-2013] - 5 

trial, and all reasonable inferences derived therefrom, 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 doubt.” 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 accused 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, 840 (Pa. 2014) (citation omitted). At 

trial, the only disputed element was whether appellant 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 other 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 infer malice and specific intent to kill based 

on the defendant’s use of a deadly weapon upon a vital part of the victim’s body. 

Arrington, at 840 (citation omitted). 

 We find the Commonwealth provided sufficient evidence to prove each element of 

first degree murder beyond a reasonable doubt. Specifically, it is undisputed the 

shooting took place several minutes after the earlier 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 pointed and fired three shots at them, 

killing Stewart. The record evidence suggests a presence of mind belying appellant’s 

contentions he lacked specific intent. Viewed in the light most favorable to the 

Commonwealth as the verdict winner, the evidence was 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 states she would automatically vote 

against the death penalty without regard for the law or the facts of the case. Appellant’s 

Brief, at 32-33 (quoting Commonwealth v. Weeden, 322 A.2d 343, 347 (Pa. 1974) (jurors 

may not be excluded for cause simply because they voiced 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 repeatedly expressed her own individual 

preference, appellant notes she nonetheless indicated 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 she could not impose the death 

penalty and the trial court did not abuse its discretion in striking her for cause. 

During voir dire, Juror 32 was questioned extensively 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 met the statutory criteria for such a 

penalty. See N.T. Voir Dire, 4/30-5/4/12, at 367-83. 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 demonstrated 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 discretion 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 would rather give the life sentence than 

death. M I’d just rather not do that, send him to death.” 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 asked if she had personal beliefs that would 

make her incapable of imposing a death sentence, she replied, “Okay. Yes, I can’t do that. 

M I cannot put him to death, no.” Id., at 375. When 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 or 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 dismissal for cause was warranted. 

“[T]he purpose of voir dire is to ensure the empanelling 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 trial 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 veniremen and assesses their credibility 

and ability to be impartial.” Commonwealth v. Smith, 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 within the trial court’s discretion and will 

be reversed only for an abuse of discretion. Commonwealth v. Philistin, 53 A.3d 1, 11 

(Pa. 2012) (citation omitted). 

Appellant cites Weeden to posit “‘that a sentence of 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 infliction.’” 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 against the imposition of capital 

punishment without regard to any evidence that might be developed at the 

trial of the case before them, or (2) that their attitude 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 cause as: 

“whether the jurors’ views would ‘prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and 

his oath.’ [I]n addition to dispensing with Witherspoon’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 to life even if the law required a 

death sentence. Juror 32’s views need not be expressed with “unmistakable clarity” or 

automatic, unequivocal certainty, see id. (citation omitted), but those views were clearly 

discernable here. Accordingly, we conclude the trial court did not abuse its discretion in 

determining Juror 32’s views would prevent or substantially 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 and gender-based 

peremptory challenges to exclude Jurors 25, 31, 45, and 86 in violation of Batson.3

 In 

support of his gender discrimination claims, appellant 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. Appellant also alleges the Commonwealth’s 

reasons for striking Jurors 25 and 45 were pretextual, essentially contesting the trial 

court’s credibility determinations regarding the Commonwealth’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 case4

 for racial 

discrimination and asserts appellant waived his gender discrimination claims by failing to 

raise them during voir dire. Alternatively, the Commonwealth contends race-neutral and 

 

3

 Appellant fails to make any particularized argument 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 had 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 inquiry under the second prong of Batson, 

requesting the prosecutor’s reasoning for the strikes. The trial court accepted the 

prosecutor’s non-discriminatory reasons, finding no purposeful discrimination and moving 

on to question the next potential juror. In Commonwealth v. Harris, 817 A.2d 1033 (Pa. 

2002), we noted the plurality decision by the United 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 for the peremptory challenges and the 

trial court has ruled on the ultimate question of intentional discrimination, the preliminary 

issue of whether the defendant had made a prima facie showing becomes moot.’” 

Harris, at 1044 (quoting Hernandez, at 359). Although this Court admitted the plurality 

opinion did not compel us to deem the preliminary prima facie inquiry as moot in similar 

circumstances, we found such language “gives us pause[.]” Id. Therefore, we 

addressed whether the appellant carried his ultimate burden of proving the 

Commonwealth struck jurors based on race without first deciding a prima facie case of 

purposeful discrimination. See id.; see also Commonwealth v. Edwards, 903 A.2d 1139, 

1154 n.16 (Pa. 2006). We will follow the same process here. 
[J-54-2013] - 10 

gender-neutral reasons were provided for excusing Jurors 25 and 45,5 and the record 

supports the trial court’s denial of appellant’s Batson challenges. 

In response to appellant’s Batson challenge to Juror 25, the Commonwealth listed 

non-discriminatory reasons, stating she: (1) indicated 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 her 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 beyond 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 the accused and victim were both 

adult males; (2) her comments appellant was too young for the death penalty; and (3) her 

brother’s incarceration, of which she would not provide any details but disclosed she 

maintains a close relationship with him. Id., at 366-67. Concerning Juror 45, the 

Commonwealth gave its non-discriminatory reasons, stating she: (1) indicated on her 

written jury questionnaire that she would be less likely to believe the testimony of a police 

officer, and her responses to related questioning during voir dire were equivocal; (2) 

responded equivocally as to whether she would acquit appellant to avoid issuing him the 

death penalty; (3) commented on how appellant had to fight the case; and (4) expressed 

affinity toward defense counsel and smiled at appellant. Id., at 566-68. For Juror 86, 

the Commonwealth responded: (1) she was uneasy in issuing the death penalty where 

the victim was not elderly or a child; (2) the prosecutor 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 penalty 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 appellant’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 Batson challenges. In its Rule 1925(a) 

opinion, the court noted appellant waived all gender-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 although he did not explicitly allege gender 

discrimination, the record clearly shows his emphasis on gender in support of his Batson 

challenge, noting Juror 45 was “the second female minority juror” to be stricken, N.T. Voir 

Dire, 4/30-5/4/12, at 568 (emphasis added), Juror 86 was “the fourth woman of color” to 

be stricken, id., at 714 (emphasis added), and alleging 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 counsel solely objected on the basis 

of race and never alleged gender-based discrimination, nor did he reference or 

emphasize the gender of the jurors stricken; therefore, the trial court was correct in finding 

appellant waived his gender-based challenge regarding those two jurors. See Pa.R.A.P. 

302(a). 

The trial court further determined, even if appellant’s gender-based claims were 

preserved, the Commonwealth gave sufficient race-neutral and gender-neutral reasons 

for its peremptory challenges and demonstrated no purposeful 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 from 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 analyzing Batson claims: 

 The second prong of the Batson test, involving the prosecution’s 

obligation to come forward with a race-neutral explanation 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 at that stage is the facial 

validity of the prosecutor’s explanation. Unless a discriminatory intent is 

inherent in the prosecutor’s explanation, the reason offered will be deemed 

race neutral. 

 If a race-neutral explanation is tendered, the trial 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 extension of Batson to encompass 

challenges on the basis of gender. See Commonwealth v. Spotz, 896 A.2d 1191, 1211 

(Pa. 2006) (“‘[I]ntentional discrimination on the basis of gender by state actors violates the 

Equal Protection Clause[.]’” (quoting J.E.B. v. Alabama, 511 U.S. 127, 130-31 (1994))). 

 The trial court should consider the totality of circumstances when determining 

whether the prosecutor acted with discriminatory intent 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 trial 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 viewing 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 his 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 occasion, 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 only this limited evidence, not that he 

asked to borrow Hunter’s handgun on multiple occasions and once fired it from a moving 

vehicle. Appellant contends this was irrelevant, inadmissible character evidence. 

Appellant further contends this evidence, even if relevant, should be excluded because its 

probative value is outweighed by the potential prejudice. 

The Commonwealth responds by highlighting it bore the burden of proving specific 

intent to kill and appellant’s state of mind; therefore, evidence proving appellant’s 

familiarity with the handgun was relevant and admissible to prove his intent and absence 

of mistake or accident. The Commonwealth also asserts evidence demonstrating 

appellant asked Hunter to borrow his handgun on prior 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 apply only to acts that are “bad” or 

immoral in nature. Rule 404(b) makes no such distinction. It not only concerns prior 

crimes or “bad” conduct but also relates to other acts 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 to show that on a 

particular occasion the person acted in accordance with the character. 

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

such as proving motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident. In a criminal case this 

(continuedM) 
[J-54-2013] - 14 

possess a firearm presented to the jury since the unlawful possession charge was 

severed from the murder trial. The Commonwealth further contends if this is considered 

“prior bad acts” evidence, it is admissible under the res gestae exception as part of a 

natural development of the facts of this case, asserting appellant’s prior requests to 

borrow Hunter’s handgun may be introduced to show appellant 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 result of manifest unreasonableness, or 

partiality, prejudice, bias, or ill-will, or such lack 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 familiar 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 added). 
[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 prejudicial impact.” Sherwood, at 497 

(citations omitted). This Court has also recognized the res gestae exception to Rule 404, 

allowing evidence of other acts to be admitted to tell “‘the complete story[.]’” 

Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (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 prior acts evidence demonstrated 

appellant knew where the handgun was located, had the ability to retrieve it, and was 

familiar with it due to his prior use of it, thereby refuting any claim of lack of specific intent 

or mistake or accident due to unfamiliarity with the handgun. Additionally, the prior acts 

were relevant for res gestae purposes to explain the 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 with Wright. See Commonwealth v. 

Dillon, 925 A.2d 131, 139 (Pa. 2007) (res gestae evidence admissible to explain events 

surrounding criminal conduct and resulting prosecution 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 did 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 the injury existed prior to the night of 
[J-54-2013] - 16 

the murder. Appellant argues such evidence was irrelevant since he never claimed the 

facial injury was caused by Wright, and to the extent such could be found relevant, its 

relevance was outweighed by its undue prejudice. Further, appellant alleges the 

evidence permitted the jury to assume he had been in 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 Commonwealth 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 surrounding the case. 

The trial court held the evidence was admissible to rebut appellant’s claim Wright 

inflicted the injury just prior to the shooting. The court highlighted the Commonwealth did 

not elicit testimony regarding the prior altercation but limited its questioning to the 

appearance of appellant’s face prior to his fight with Wright, in response to which Hunter 

testified appellant already had a scab on his lip when 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 facial 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 appellant’s claims that Wright caused the 

injury. Whether appellant was injured during his altercation with Wright was indicative of 

the severity of the beating, which, in turn, was probative as to whether appellant was 
[J-54-2013] - 17 

operating under the heat of passion required to reduce his culpability. The jury never 

heard how appellant sustained this pre-existing injury; it only heard Hunter’s testimony as 

to appellant’s appearance prior to his fight with Wright, which did not necessarily imply he 

sustained the injury from another prior fight but simply 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 admitting 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 drug 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 interviews with his expert and argues his 

expert reasonably relied on these statements in creating 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 time of the incident. 

The Commonwealth asserts the trial court did not err in excluding appellant’s 

statements from the expert’s report and properly found no toxicology expert would 

reasonably rely on a defendant’s self-serving statements 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 having 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 hypothetical form, which allowed the expert to 

assume the facts contained in appellant’s statements. 

At trial, defense counsel objected under Pa.R.E. 703

7

 to the Commonwealth’s 

motion in limine to exclude the expert’s report. The trial court precluded admission of the 

report and testimony as to appellant’s statements contained therein as hearsay. See 

N.T. Trial, 5/7-11/12, at 443-45. The court limited 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 only found the report was based 

entirely on appellant’s self-serving hearsay statements, 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 reasonable degree of medical certainty 

regarding the effect of drug[s] and alcohol on [appellant] 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 value of the facts contained therein. 

Id. 

 

7

 Rule 703 states: 

An expert may base an opinion on facts or data in the case that the expert 

has been made aware of or personally observed. If experts in the 

particular field would reasonably rely on those kinds 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 testimony are left within the trial 

court’s sound discretion, and this Court will not disturb 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 inadmissible facts or facts not in evidence, 

including other expert opinions and hearsay statements, as long as such facts are of a 

type reasonably relied on by experts in that profession. See Pa.R.E. 703; see also 

Commonwealth v. Chambers, 599 A.2d 630, 639 (Pa. 1991) (citations omitted). Implicit 

in Rule 703 is the trial court’s sound discretion under Pa.R.E. 104(a) to make a 

preliminary determination as to whether the particular 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 expert states an opinion[,] the expert 

must state the facts or data on which the opinion is 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 mere conduit for the opinion of another 

... [and] may not relate the opinion of a non-testifying expert[.]”). 

The trial court did not abuse its discretion in finding 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 provided 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 appellant’s firsthand narrative of the events 

on the night of the murder and a detailed account of his drug and alcohol consumption 

that night. Had the expert been permitted to testify 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 provide a mechanism for a criminal 
[J-54-2013] - 20 

defendant to decline to testify and to avoid the rules of evidence by using an expert 

witness to introduce his story into the record. Accordingly, 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 suffered prejudice from the trial 

court’s decision, as his expert was permitted to testify by answering hypotheticals. 

These hypotheticals were comprehensive of appellant’s account in the report regarding 

his drug and alcohol consumption that night, including the type and amount consumed at 

the times appellant alleged, and the events that occurred that night, including details of 

appellant’s fight with Wright — the expert was asked 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 and physiological functions reflecting 

the facts stated in his report; therefore, were there any error in precluding its admission, it 

would be harmless. See Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) 

(citation omitted). 

C. Jury Instructions 

At trial, appellant requested the court instruct the jury on the distinct definitions of 

“premeditation” and “deliberation.” In support of his request, appellant submitted two 

suggested instructions on the definitions of “premeditation” and “deliberation” based on 

descriptions found in case law, legal treatises, and 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 with premeditation and 

deliberation. “Premeditation” is the process of thinking about a proposed 

killing before engaging in the homicidal conduct. “Deliberation” is the 

process of carefully weighing such matters as the wisdom of going ahead 

(continuedM) 
[J-54-2013] - 21 

to use appellant’s suggestions, and appellant objected. 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 not as clear as the one he requested. 

However, he admits the trial court’s instructions were “substantially based” on the 

Pennsylvania Suggested Standard Criminal Jury Instructions, 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 insufficient. In support of his argument, his 

brief includes a six-page treatise on the history of 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 visited upon the killer if 

he [is] apprehended. “Deliberation” is present if the thinking, i.e., the 

“premeditation,” is being done in such a cool mental 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 (citations omitted). 

The second suggested instruction read: 

[A] killing is with specific intent to kill if it is willful, deliberate, and 

premeditated. The word deliberate is not defined in the statute. Therefore, 

this word should be used according to its common usage. Black’s Law 

Dictionary in the 7th [e]dition defines it as, quote, intentional, premeditated, 

fully considered, unimpulsive, slow in deciding. Webster defines it as [“]to 

consider, weigh well, carefully thought out or formed, premeditated, done 

on purpose.” 

Id. (citation omitted). 
[J-54-2013] - 22 

Pennsylvania and legal use of the words “deliberation” 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 the 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 presented 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 trial court’s instruction in this case 

thoroughly and accurately represented the law on first degree murder; thus, there was no 

error. Insofar as appellant asks us to critique the 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 chose death, the jury was to explain the 

basis for that choice. Part B contained two subsections, in which the jury was to check 

one of two blanks indicating whether it based the death sentence on finding: (B.1) an 

aggravating circumstance which outweighs any mitigating circumstances; or (B.2) at least 

one aggravating circumstance and no mitigating circumstances. Under each subsection 

in part B were blanks to write in the aggravating or mitigating circumstances. In part C, to 

be completed if the jury chose life imprisonment, it 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 circumstance 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 circumstances. During its charge, the trial 

court instructed the jury on how to complete the form. 

The jury completed part A by checking the “death” blank, indicating its unanimous 

choice to impose a death sentence. The jury then completed part B.1; the jury wrote in 

the aggravating circumstance it found unanimously and the mitigating circumstances any 

of its members found, but did not check the blank preceding part B.1. 

Appellant argues the oversight invalidated the death verdict under 42 Pa.C.S. § 

9711, Pa.R.Crim.P. 807 and 808, and violated the protections against cruel and unusual 

punishment under the Eighth Amendment to the United States Constitution and Article I, 

§ 13 of the Pennsylvania Constitution. Appellant cites various minimally relevant 

decisions by the United States Supreme Court holding the uniqueness and severity of the 

death penalty demand heightened reliability of those verdicts. See Thompson v. 

Oklahoma, 487 U.S. 815 (1988); Zant v. Stephens, 462 U.S. 862, 884 (1983); Woodson 

v. North Carolina, 428 U.S. 280, 305 (1976). However, appellant never explains how the 

minor oversight invalidates the verdict, and he does not cite any authority for this 

proposition. 

Appellant agrees the jury unanimously indicated during on-the-record polling that it 

found an aggravating circumstance and mitigating circumstances, weighed them, and 

each juror agreed with the sentence of death as a result; however, appellant contends the 

verdict was still invalid because the court never asked “whether the jury based its 

sentence of death on a specific finding that the aggravating circumstance outweighed any 

mitigating circumstances.” Appellant’s Brief, at 63 (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 explanatory of the verdict — it is not the verdict 

itself. It supports the conclusion that the jury followed 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 outweighed any mitigating circumstances. 

There is no logical way to interpret the verdict slip other than as expressing a unanimous 

finding that the aggravating circumstance outweighed 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 confirmed when the trial court polled 

each juror individually, and each confirmed he or she “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 unless 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 arbitrary factor. Champney, at 417 

(citing 42 Pa.C.S. § 9711(h)(3)(i)-(ii)). In the penalty 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). “Sufficient evidence to support the grave 

risk of death aggravator exists where a nexus connects other persons in close proximity 

to the intended or actual victim to the zone of danger created by the defendant’s actions in 

killing the victim.” Brown, at 707 (citation omitted). 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. Finally, appellant does not contend his 

conviction or sentence was the result of passion, prejudice, or any other arbitrary factors, 

see 42 Pa.C.S. § 9711(h)(3)(i), and our review of the record reveals no indication of such 

factors. 

 Accordingly, we affirm the verdict and the sentence 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 relinquished. 

 Mr. Chief Justice Castille, Messrs. Justice Saylor and Baer, Madame Justice Todd, 

and Messrs. Justice McCaffery and Stevens join the opinion.