J-S75019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL JEROME PALMER

Appellant No. 3510 EDA 2015

Appeal from the Judgment of Sentence October 28, 2015

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0004205-2014

BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 23, 2016

Michael Jerome Palmer appeals from the October 28, 2015 judgment 

of sentence entered in the Court of Common Pleas of Lehigh County 

following his conviction for persons not to possess firearms.1 We affirm.

The trial court set forth the following facts:

[A]t 5:00 P.M. on February 12, 2014, Detective Robert 

Flores of the Allentown Police Department Vice and 

Intelligence Division was conducting a prostitution sting. 

Detective Flores had responded to an ad placed on the 

internet site, Backpage.com, that led to the exchange of 

text messages with a female. The female, later identified 

as Amanda Shore, made arrangements to meet Detective 

Flores at 6:00 P.M. at the Rodeway Inn located at 2115 

Downeyflake Lane, Allentown, Lehigh County, 

Pennsylvania. An agreement was reached between him 

and Ms. Shore regarding the exchange of one (1) hour of 

____________________________________________

1 18 Pa.C.S. § 6105(a)(1).
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sex for One Hundred seventy-five ($175.00) Dollars. 

Detective Flores proceeded to Room 215 at the Rodeway 

Inn as instructed. Ms. Shore observed Detective Flores 

through the peep hole and allowed his entrance into the 

motel room.6 

6 Ms. Shore had provided Detective Flores with the 

room number across the hall from her motel room as 

a safety precaution. She wanted the opportunity to 

view him prior to allowing him to enter her motel 

room.

After Detective Flores placed the money on the table 

and Ms. Shore began to take off her shirt, three (3) other 

detectives and one (1) detective sergeant (Detective 

Sergeant Rocca) responded and knocked on the door.7 

The four (4) police officers entered the motel room to 

arrest the subject female. Detective Flores inquired of Ms. 

Shore if there was any contraband in the room and she 

replied in the negative. Thereafter, the officers searched 

the motel room for contraband and weapons. While doing 

so, three (3) bags by the bed closer to the window were 

located. Specifically, a red and blue duffel bag, a suitcase 

with women’s clothing, and a toiletry bag with women’s 

toiletries in it. Within the red and blue duffel bag, a black 

Champion drawstring bag which contained a loaded black 

Kel-Tec 9mm handgun with a magazine was located.8 It 

was determined that this handgun had been stolen from 

Jacksonville, Florida in 2011.9

7 At this time, Detective Flores texted the other 

officers to come into the motel room.

8 All of the clothing within the red and blue duffel 

bag was men’s clothing.

9 The female showed Detective Flores approximately 

ten (10) to fifteen (15) pictures on her cell phone of 

“Millz,” and in one (1) picture he was wearing the 

same red shirt and red and black Chicago Bulls hat 

that were found in the duffel bag.

When Detective Flores inquired as to whom the bags 

belonged to, the woman denied ownership of same. She 

called a male known as “Millz,” and asked him, via speaker 

phone, to come to the motel room. Shortly thereafter, 
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[Palmer] arrived at the Rodeway Inn in a black Jeep.10 

This black male, later identified as the Defendant Michael 

Palmer,11 proceeded to knock on the door of the motel 

room. [Palmer] entered the room, and Detective Boyer 

patted him down for officer safety. Detective Boyer asked 

[Palmer] to furnish his name and date of birth so that a 

warrant check could be performed. Upon learning that 

there were no warrants outstanding, Detective Flores 

inquired of [Palmer] if the duffel bag in the motel room 

was his. [Palmer] indicated that, “Yes. The clothes belong 

to me,” and asked if he could get them back. At this point, 

[Palmer] was handcuffed, placed into custody, and 

transported to the Headquarters of the Allentown Police 

Department.12

10 Ms. Shore had advised Detective Flores that Millz 

would be returning in a black Jeep.

11 Detective Flores immediately recognized [Palmer] 

as the same male depicted in Ms. Shore’s pictures.

12 At Headquarters, [Palmer] denied that the 

handgun belonged to him.

Trial Court Opinion, 11/9/15, at 13-15 (“Op.”) (internal citations omitted).2 

After Palmer was taken to the police department, the police conducted a 

criminal background check and discovered that Palmer was prohibited from 

carrying a firearm because of a 2009 felony robbery conviction in 

Northampton County. Id.

On September 11, 2015, a jury convicted Palmer of persons not to 

possess firearms. On October 28, 2015, the trial court sentenced Palmer to 

31⁄2 to 7 years’ imprisonment. On November 3, 2015, Palmer filed post-

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2

In its subsequent Pennsylvania Rule of Appellate Procedure 1925(a) 

Opinion, the trial court incorporated its November 9, 2015 opinion in its 

entirety.
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sentence motions, which the trial court denied. Palmer filed a timely notice 

of appeal. 

Palmer raises the following issues on appeal:

A. WHETHER OR NOT THE EVIDENCE AS PRESENTED WAS 

SUFFICIENT AS A MATTER OF LAW TO SUPPORT THE 

CONVICTION FOR PERSON NOT TO POSSESS A FIREARM 

WHEN THE EVIDENCE IDENTIFYING THE DEFENDANT AS 

THE POSSESSOR OF THE FIREARM WAS UNCLEAR, VAGUE, 

OR SPECULATIVE?

B. WAS THE VERDICT AGAINST THE WEIGHT OF ALL THE 

EVIDENCE IN REGARDS TO THE PROOF OF WHETHER OR 

NOT THE DEFENDANT WAS PROPERLY IDENTIFIED AS THE 

POSSESSOR OF THE FIREARM?

C. WAS THE DEFENDANT UNFAIRLY PREJUDICED WHEN 

THE PROSECUTOR, DURING CLOSING ARGUMENTS, 

MISSTATED THE EVIDENCE REGARDING THE OWNERSHIP 

OF THE BAG IN WHICH THE ILLEGAL FIREARM WAS 

FOUND OR IMPROPERLY ASKED THE JURY TO CONSIDER 

AS EVIDENCE TESTIMONY THAT HAD BEEN SPECIFICALLY 

LIMITED IN ITS USE?

Palmer’s Br. at 8-9.

Palmer first challenges the sufficiency of the evidence. We apply the 

following standard when reviewing a sufficiency claim: “[W]hether viewing 

all the evidence admitted at trial in the light most favorable to the verdict 

winner, there is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt.” Commonwealth v. 

Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff’d, 870 A.2d 818 (Pa. 

2005) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 

(Pa.Super. 2001)). In applying this standard, “we may not weigh the 

evidence and substitute our judgment for the fact-finder.” Id.
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“[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Id. Moreover, “[a]ny 

doubts regarding a defendant’s guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined circumstances.” Id. 

“The Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Id. In applying the above test, we must evaluate the entire 

record and consider all evidence actually received. DiStefano, 782 A.2d at 

582. Further, “the trier of fact[,] while passing upon the credibility of the 

evidence produced, is free to believe all, part or none of the evidence.” Id.

A defendant is guilty of persons not to possess a firearm if he has been 

convicted of an enumerated offense and possesses, uses, controls, sells, 

transfers, or manufactures a firearm. 18 Pa.C.S. § 6105(a)(1).3 Because 

the firearm was not found on Palmer’s person, the Commonwealth had to 

prove constructive possession. See Commonwealth v. Kirkland, 831 A.2d 

607, 610 (Pa.Super. 2003) (finding that when no narcotics were found on 

appellant’s person, the Commonwealth had to prove constructive 

possession). “Constructive possession is established when a person, though 

lacking . . . physical custody, still has the power and intent to exercise 

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3 Robbery is an offense enumerated in 18 Pa.C.S. § 6105(b).
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control over the object.” Henderson v. United States, 135 S.Ct. 1780, 

1784 (2015). The elements of constructive possession may be inferred from 

the totality of the circumstances and may be proven by circumstantial 

evidence. Commonwealth v. Gray, 469 A.2d 169, 170-71 (Pa.Super. 

1983), aff’d, 503 A.2d 921 (Pa. 1985).

Palmer claims that the Commonwealth failed to present sufficient 

evidence that he constructively possessed the firearm. Palmer’s Br. at 19. 

We disagree. As the trial court found, the Commonwealth presented 

sufficient evidence that Palmer constructively possessed the firearm. Op. at 

15-16. Shore testified that before arriving at Rodeway Inn, she and Palmer 

had stayed at The Knights Inn for two to three days, N.T., 9/10/15, at 50-

51, and that the duffel bag belonged to Palmer, id. at 58-60. She also 

testified that her arrangement with Palmer included his providing her 

protection in the event she needed it. Id. at 49-50, 87-88. At the scene, 

she showed the officers pictures of Palmer on her phone, including a picture 

of Palmer wearing the clothes that the police found in the duffel bag that 

also contained the drawstring bag with the firearm. Id. at 61-72; Op. at 6 

n.4. On one of the pictures of Palmer, Shore had superimposed the word 

“Millz.” N.T., 9/10/15, at 64-65. Shore was asked to call “Millz,” which she 

did. Id. at 78. She further informed the officers that “Millz” would be 

arriving in a black Jeep. Id. at 81. Approximately 15 minutes later, Palmer 

arrived in a black Jeep. Id. at 135-36. When the police asked him if he 
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owned the duffel bag, he responded, “Yes.” Id. at 136-37. Palmer did go 

on to say “[t]he clothes are mine,” id. at 137, and he never specifically 

admitted that the drawstring bag or firearm belonged to him. Nevertheless, 

taken together, Palmer’s admission that he owned the duffel bag in which 

the firearm was found, Shore’s testimony to his ownership of that bag and to 

his offer of protection, and circumstantial evidence linking him to the bag 

(the bag contained male clothing and a hat embroidered with “Millz”) were 

more than sufficient to allow the fact-finder to conclude that Palmer had the 

power and intent to exercise control over the firearm. 

Next, Palmer claims that the verdict was against the weight of the 

evidence and, thus, that the trial court abused its discretion in upholding the 

verdict. Palmer’s Br. at 21-22. A defendant must raise a claim challenging 

the weight of the evidence with the trial judge “in a motion for a new trial: 

(1) orally, on the record, at any time before sentencing; (2) by written 

motion at any time before sentencing; or (3) in a post-sentence motion.” 

Pa.R.Crim.P. 607(A). A defendant waives a weight challenge if he fails to 

raise it before the trial court. Commonwealth v. Sherwood, 982 A.2d 

483, 494 (Pa. 2009). Palmer waived his weight of the evidence claim 
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because he failed to raise it before sentencing, at sentencing, or in a postsentence motion.4

 

Finally, Palmer challenges the trial court’s denial of a mistrial based on 

prosecutorial misconduct. We apply the following standard when reviewing 

a claim of prosecutorial misconduct:

Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court abused its 

discretion. In considering this claim, our attention is 

focused on whether the defendant was deprived of a fair 

trial, not a perfect one. Not every inappropriate remark by 

a prosecutor constitutes reversible error. A prosecutor’s 

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4

Palmer also waived this claim by failing to include it in his 

Pennsylvania Rule of Appellate Procedure 1925(b) statement. See 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not 

raised in a [Rule] 1925(b) statement will be deemed waived.”).

Even had Palmer preserved this claim, it would fail. This court reviews 

a weight of the evidence claim for abuse of discretion. Commonwealth v. 

Clay, 64 A.3d 1049, 1055 (Pa. 2013). Palmer claims that the verdict was 

against the weight of the evidence because there was no proof that he ever 

possessed the firearm, no prints on the gun matched Palmer’s prints, and 

the evidence “was so tenuous, vague and uncertain such that the verdict 

should shock the conscience of the Court.” Palmer’s Br. at 22, 23. 

However, as discussed above, the Commonwealth established Palmer’s guilt 

for the crime beyond a reasonable doubt. The jury was free to credit the 

Commonwealth’s evidence linking him to the crime. See Commonwealth 

v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (quoting Commonwealth 

v. Price, 616 A.2d 681, 685 (Pa.Super. 1992) (credibility determination “lies 

solely within the province of the factfinder”); Commonwealth v. DeJesus,

860 A.2d 102, 107 (Pa.Super. 2004) (“The weight of the evidence is 

exclusively for the finder of fact, which is free to believe all, part, or none of 

the evidence, and to assess the credibility of the witnesses.”). Palmer’s 

argument that we should overturn the jury’s determination is unpersuasive.
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statements to a jury do not occur in a vacuum, and we 

must view them in context. Even if the prosecutor’s 

arguments are improper, they generally will not form the 

basis for a new trial unless the comments unavoidably 

prejudiced the jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-16 (Pa.Super. 2012) 

(internal citations and quotations omitted). Further “a prosecutor has 

considerable latitude during closing arguments and his arguments are fair if 

they are supported by the evidence or use inferences that can reasonably be 

derived from the evidence.” Commonwealth v. Caldwell, 117 A.3d 763, 

773 (Pa.Super. 2015) (quoting Commonwealth v. Judy, 978 A.2d 1015, 

1020 (Pa.Super. 2009)). 

Palmer claims that the assistant district attorney (“ADA”), during his 

closing argument, improperly used Shore’s statements to the officers. 

Palmer’s Br. at 24. The following exchange occurred during closing 

argument:

[ADA]: . . . Let’s go through it. Amanda says she’s

sharing the room with [Palmer]. True. By their own 

admission, that’s true. She says that the bag belongs to 

[Palmer] when she’s questioned - -

[DEFENSE COUNSEL]: Objection. That’s a false statement 

of the evidence.

. . .

(The following discussion took place at sidebar:)

. . .

[DEFENSE COUNSEL]: He just said that she said the bag 

is his. This is a direct misstatement of her testimony. She 

couldn’t identify the bag at all. She said it repeatedly. 

That’s my objection.
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THE COURT: Your objection is overruled.

(Discussion at sidebar concluded.)

. . . 

[ADA]: She tells us the bag is [Palmer]’s, the bag that the 

gun is found in belongs to [Palmer]. Again, [Palmer] 

agrees that that is - -

[DEFENSE COUNSEL]: Objection, Your Honor. May we be 

heard?

THE COURT: No, you may not. The testimony will be the 

jury’s determination and recollection is what is controlling 

here. I believe that what [the ADA] is talking about is 

when they first spoke to Amanda Shore. So if you want to 

be a little more clear about at what point she said that 

[Palmer]’s bag - - that that bag belonged to [Palmer]. For 

that reason, if there was an objection, I’ll sustain that part 

of it. Just to be clear on which portion of time, her 

testimony versus any other statement.

[ADA]: The bag containing the male clothing, the only bag 

in the room containing male clothing - - this bag here so 

we’re sure what we’re talking about, . . . - - when she was 

asked about the bag containing male clothing found in the 

room, she said it belonged to the Defendant, Millz. That 

part is true, too.

N.T., 9/11/15, at 24-27. 

Palmer’s brief appears to advance two distinct complaints about that 

part of the ADA’s closing quoted above. The first complaint is that the ADA 

misstated the evidence. Palmer’s Br. at 23-24. In particular, Palmer 

contends that while Shore had told the detective only that the larger duffel 

bag belonged to Palmer, the ADA suggested that she had said the smaller 

drawstring bag, which held the firearm and which was in the larger bag, 

belonged to Palmer. After the trial court partially sustained a defense 

objection on this point, the ADA clarified that the “bag” he was referring to 
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was the duffel bag with Palmer’s clothes, not the drawstring bag with the 

firearm. N.T., 9/11/15, at 26-27. Moreover, the trial court promptly 

instructed the jury that, concerning trial testimony, “the jury’s determination 

and recollection is what is controlling here.” Id. at 26. “The jury is 

presumed to have followed the court’s instructions.” Commonwealth v. 

Chmiel, 30 A.3d 1111, 1147 (Pa. 2011) (quoting Commonwealth v. Flor, 

998 A.2d 606, 632 (Pa. 2010)). Accordingly, this complaint does not merit 

reversal. 

Palmer’s second complaint is that the ADA’s closing argument used 

Shore’s statement to the detective for its truth, contrary to the trial court’s 

ruling and contrary to the rules of evidence.5 Palmer’s Br. at 24. Based on 

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5 During Detective Flores’s direct examination, Palmer’s counsel 

objected to the admission of Shore’s statements to the Detective on the day 

of the arrest as inadmissible hearsay. After that objection was overruled on 

the ground that the statements were not offered for their truth, N.T., 

9/10/15, at 114-15, counsel requested “a curative instruction so the jury 

understands the distinction.” Id. at 115. The trial court administered the 

following limiting instruction:

THE COURT: I will give the appropriate instruction during 

closing. But if you want something now, what the 

testimony is right now that is coming from this Detective 

about what was told to him by the witness you previously 

heard is what’s called hearsay. Because it’s an out-ofcourt statement made by someone who wasn’t under oath 

at the time, it can’t be offered by this officer for its truth. 

What you heard from her is direct testimony that you can 

evaluate its credibility based on its own.

(Footnote Continued Next Page)
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the trial transcript, we agree that the Commonwealth did appear to use for 

its truth Shore’s statement to the police that the duffel bag belonged to 

Palmer. See id. at 27 (“[W]hen she was asked about the bag containing 

male clothing found in the room, she said it belonged to the Defendant, 

Millz. That part is true, too.”).6 That out-of-court statement was not, and 

could not properly have been, admitted for its truth. See supra note 5. 

Despite this prosecutorial error, reversal is not warranted. First, the 

reference to Shore’s statement to the detective was merely cumulative of 

her trial testimony, during which she told the jury directly that the duffel bag 

belonged to Palmer. N.T., 9/10/15, at 58-60. Moreover, the detective 

testified that Palmer himself had admitted that the duffel bag belonged to 

him. Palmer’s Br. at 16; N.T., 9/10/15, at 137. Second, the trial court twice 

issued appropriate instructions concerning the proper use of Shore’s 

(Footnote Continued) _______________________

When he tells you now what she told him, it will explain 

to you, ladies and gentlemen, why he next did what he did 

and the acts thereafter. That is how you are to receive 

this testimony. You may continue.

N.T., 9/10/15, at 115. Furthermore, at the end of trial, the trial court again 

instructed the jury on the purpose of Shore’s statements to Detective Flores. 

See infra note 7.

6

In context, this reference appears to be to “when [Shore was] 

questioned” at the scene. N.T., 9/11/15, at 24.; see also id. at 26 (trial 

court’s observation that “I believe that what [the ADA] is talking about is 

when they first spoke to Amanda Shore”). In contrast, Shore’s trial 

testimony that the bag belonged to Palmer was properly admitted and used 

for its truth.
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statement to the detective, once during Detective Flores’s testimony, see 

supra note 5, and again during the jury charge.7 As noted above, “[t]he 

jury is presumed to have followed the court’s instructions.” Chmiel, 30 

A.3d at 1147. The trial court did not abuse its discretion in denying Palmer’s 

request for relief based on prosecutorial misconduct.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016

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7 During the jury charge, the trial court stated:

The statements made by Amanda Shore to Detective 

Flores on the night of her arrest were admitted for the 

purpose of you knowing why the Detective then took 

further action. Those statements made in the night of 

Amanda Shore’s arrest to Detective Flores were not 

admitted for the truth of the matter. 

N.T., 9/11/15, at 51. Before the court gave this instruction, Palmer’s 

counsel stated that he was satisfied with it. Id. at 41.