J-A12018-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MONTY WILLIAM JACKSON II 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 425 WDA 2021

Appeal from the Judgment of Sentence Entered July 28, 2020

In the Court of Common Pleas of Greene County

Criminal Division at CP-30-CR-0000259-2019

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: May 13, 2022

Monty William Jackson, II (Appellant) appeals from the judgment of 

sentence imposed after a jury convicted him of persons not to possess 

firearms.1 Upon review, we affirm.

The trial court summarized the relevant facts as follows:

On June 7, 2019, [Appellant] was visiting with Kell[i]

Murphy at her home in Carmichaels Borough in Greene County,

Pennsylvania. Gary Varesko [(Mr. Varesko or Varesko)] was the 

main witness for the Commonwealth ... Mr. Varesko was the stepfather of Kelli Murphy[.] Mr. Varesko testified that Kelli Murphy

was an alcoholic and that he would frequently visit [her] home ... 

to monitor Ms. Murphy and to attempt to prevent Ms. Murphy from 

consuming alcohol. 

On June 7, 2019, Mr. Varesko entered Kelli Murphy’s

residence and according to the testimony of Mr. Varesko, noticed 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1).
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a book bag that he did not recognize to be Ms. Murphy’s. He called 

out for Ms. Murphy and then ... opened the book bag. ... Mr. 

Varesko [also] retrieved a [handgun in plain view, located on top 

of] a heater in the living room[, which also did not belong to Ms. 

Murphy.] According to the testimony of Varesko, [Appellant] then 

appeared from another room of the residence ... and yelled at 

Varesko while Varesko was in possession of [the handgun,] which 

the jury determined to be [Appellant’s]. [Appellant] testified [at 

trial] and denied possession of the firearm. Varesko then 

describe[d] [a scuffle] where [Appellant] wrestled Varesko for 

control of the firearm and at some point, Mr. Varesko ... held 

[Appellant] in a headlock. In the struggle for the gun, the gun []

struck Mr. Varesko in the bridge of the nose and [Appellant] 

ultimately ran from Ms. Murphy’s residence and was later arrested 

by Ryan Campbell of the Carmichaels Borough Police 

[Department]. 

As a result[, Appellant] was charged with simple assault, 

recklessly endangering [another person (REAP)], aggravated 

assault, a summary offense of disorderly conduct, and a charge of 

persons not to possess, use, manufacture, control, sell or transfer

firearms, a felony of the first degree.

After the incident on June 7, 2019, and unrelated to these 

events, Ms. Kell[i] Murphy passed away prior to the trial in this 

matter.

Trial Court Opinion, 6/25/21, at 4-5 (footnote citations to record omitted).

Prior to trial, Appellant filed a motion in limine to preclude any reference 

to Varesko being a retired police officer. Appellant alleged that such reference 

would constitute improper character evidence.2 See N.T., 1/22/20, at 7-9. 

The Commonwealth countered that Varesko’s prior employment was relevant 

____________________________________________

2 The motion is not in the record. However, the trial court stated that defense 

counsel “has moved to preclude the Commonwealth from introducing at trial 

that Mr. Varesko is a retired police officer. ... There’s a written ... motion.” 

N.T., 1/22/20, at 7; see also id. at 11 (trial court stating, “It’s just a onepage document that’s not ... docketed but it will be docketed[.]”).
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to establish his familiarity and experience with firearms, and further asserted 

the information would not be offered to bolster Varesko’s credibility. Id. at 

8-9 (prosecutor arguing, “we’re trying to establish knowledge, Your Honor. 

And [Varesko’s] profession establishes that knowledge.”). 

The trial court denied Appellant’s motion in limine on the record prior to 

the commencement of trial. The court stated,

[Appellant’s counsel] has moved to preclude the Commonwealth 

from introducing at trial that Mr. Varesko is a retired police officer. 

I’m going to deny that request. ... [T]he attorney for the 

Commonwealth[] ... believes that Mr. Varesko’s experience as a 

police officer may be critical in ... [Varesko’s] identifying what is 

alleged to have been a firearm. But I want to remind the 

Commonwealth and the defense that ... Varesko is not ... going to 

be qualified as an expert. So, he’s not going to be able to testify 

in that capacity. If you ask [Varesko] what he is and that 

contributes to his ... knowledge as an eyewitness, that’s possible. 

But ... if [defense counsel] makes an objection I’ll give an 

instruction ... during the trial as to the fact that [Varesko] is a ...

lay witness and to be treated the same as any other person.

Id. at 7-8.

Immediately after the prosecutor’s opening statement, Appellant’s 

counsel objected to the prosecutor identifying Varesko as a retired police 

officer, and moved for mistrial. Id. at 26-27. Though the court overruled the

objection, id. at 28, the court subsequently instructed the jury it was required 

to “consider [Varesko’s] testimony the way you consider everybody else to 

include bias, prejudice, et cetera.” Id. at 63. 

During the Commonwealth’s case-in-chief, Varesko testified as follows:

Q [Prosecutor]: So, you picked ... the gun up. And then you said 

that you had intended to leave but what occurred next?
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A: [Appellant] came running at me and told me to give [him] his 

f’ing gun.

* * *

Q: Okay. And then as [Appellant] came running to the dining 

room, what occurred next?

A: After he told me to give [him] his f’ing gun, I replied you are 

not allowed to have a gun. You’re a convicted felon.

Id. at 57-58 (emphasis added).

3

 Appellant immediately moved for mistrial. 

Id. at 58. The court declined to grant a mistrial, but gave the following 

curative instruction to the jury:

THE COURT: ... [F]irst of all, Mr. Varesko, answer the question 

that’s put to you and quit volunteering things, okay? ... Number 

two, the last thing that was said was [Mr. Varesko] said I know 

[Appellant is] a convicted felon. That is for you to decide. That 

is not for Mr. Varesko to decide nor ... are you able to use what 

he’s saying [on] the witness stand as evidence of anything 

whatsoever in terms of conviction. It is ... not right. It may or 

may not be proven by the Commonwealth, but it is their burden 

to prove that. It is not being proven in any way by what Mr. 

Varesko just said. Nor does Mr. Varesko have any law 

enforcement power whatsoever, nor d[id] Mr. Varesko have any 

law enforcement power on the day he [encountered Appellant in 

Ms. Murphy’s home]. [Mr. Varesko] was acting strictly as a citizen 

____________________________________________

3 The trial court explained: “From the outset of trial, it was clear Mr. Varesko 

believed [Appellant] was a poor influence on Ms. Murphy, and in the opinion 

of Mr. Varesko, [Appellant’s] presence threatened the sobriety of Ms. Murphy,

Mr. Varesko’s step-daughter. ... [A] fair reading of the evidence and the 

statements of Mr. Varesko would quickly reveal Mr. Varesko’s hostility toward 

[Appellant].” Trial Court Opinion, 6/25/21, at 5-6 (footnote citation omitted). 

The court further stated: “Numerous objections were made throughout the 

testimony of Mr. Varesko, instructions were given by the [trial c]ourt, and also 

the [c]ourt frequently admonished Mr. Varesko as a result of certain objections 

or as a result of the responses by Mr. Varesko to questions asked of him.” Id.

at 7 (footnote citation omitted).
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and I’ll give you a different instruction about that more. You

consider his testimony the way you consider everybody else[’s.]

Id. at 62-63; see also id. at 63 (trial court reprimanding the prosecutor: “ask 

the questions in a way that Mr. Varesko answers them as to what happened.”). 

After the close of the Commonwealth’s case, the trial court instructed 

the jury as to Appellant’s prior conviction:

The Commonwealth has introduced [evidence] ... that [Appellant] 

was convicted of a crime of robbery. That ... is a crime that if you 

were convicted of that it would be one element of [persons not to 

possess firearms] that would need to be proven by the 

Commonwealth beyond a reasonable doubt. ... You cannot use ... 

evidence of that conviction to show any propensity of the crime. 

You can’t use that ... for any other reason [] than to prove that 

one element.

Id. at 152-53. Thereafter, the jury convicted Appellant of persons not to 

possess firearms; the jury acquitted Appellant of simple assault, aggravated 

assault, REAP, and disorderly conduct.

On July 28, 2020, the trial court sentenced Appellant to 5-10 years in 

prison.4 Appellant timely filed a post-sentence motion, asserting that: the 

jury’s verdict was against the weight and sufficiency of the evidence; the 

sentence was excessive and an abuse of discretion; and the court erred with 

respect to certain evidentiary rulings and jury instructions. Post-Sentence 

Motion, 8/7/20, at ¶¶ 1-4. On August 10, 2020, the trial court appointed new 

____________________________________________

4 The sentence is in the standard range of the guidelines, and imposed with 

the court having the benefit of a presentence investigation report (PSI). See

N.T., 7/28/20, at 3 (trial court stating, “A [PSI] has been prepared and I’ve 

reviewed it”).
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counsel (Counsel) for Appellant, and gave Counsel 20 days to file 

supplemental post-sentence motions. However, Counsel never filed 

supplemental post-sentence motions. The court, for reasons not of record, 

subsequently permitted Counsel to withdraw.

On January 11, 2021, Appellant timely filed a pro se petition pursuant 

to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546; 

see also PCRA Petition, 1/11/21, at ¶¶ 11-13 (claiming ineffectiveness based 

on Counsel’s failure to file supplemental post-sentence motions). Appellant 

filed a supplemental pro se PCRA petition on January 22, 2011, seeking 

reinstatement of his direct appeal rights. The court appointed PCRA counsel, 

and the Commonwealth filed an answer to Appellant’s PCRA petition on 

February 18, 2021. By order entered February 26, 2021, the court denied

Appellant’s pending August 7, 2020, post-sentence motion,

5 but reinstated his 

direct appeal rights. Order, 2/26/21, at 1-2.

Appellant timely appealed on March 24, 2021.

6

 See Commonwealth

v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (“where the clerk of courts 

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5 The clerk of courts never entered an order denying Appellant’s August 7, 

2020, post-sentence motion by operation of law, pursuant to Pa.R.Crim.P. 

720(B)(3)(c) (“When a post-sentence motion is denied by operation of law, 

the clerk of courts shall [] enter an order on behalf of the court, and ... shall 

serve a copy of the order on the” parties).

6 Appellant purports to appeal from the February 26, 2021, order. However, 

an appeal “from an order denying a post-trial motion is procedurally improper 

because a direct appeal in a criminal proceeding lies from the judgment of 

(Footnote Continued Next Page)
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does not enter an order indicating that the post-sentence motion is denied by 

operation of law and notify the defendant of same, a breakdown in the court 

system has occurred and we will not find an appeal untimely under these 

circumstances”); Commonwealth v. Braykovich, 664 A.2d 133, 135-38 

(Pa. Super. 1995) (excusing facially untimely notice of appeal where clerk of 

courts never entered order denying appellant’s post-sentence motions by 

operation of law, under predecessor to Pa.R.Crim.P. 720(B)(3)(c), supra). 

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents six issues for our consideration:

I. Was the verdict, as it pertains to the conviction of person not 

to possess, use, manufacture, control, sell, or transfer 

firearms, against the sufficiency of the evidence?

II. Was the verdict, as it pertains to the conviction of person not 

to possess, use, manufacture, control, sell, or transfer 

firearms, against the weight of the evidence?

III. Was the denial of Appellant’s counsel’s motion in limine to 

exclude identification of the victim as a former police officer 

appropriate given the circumstances?

IV. Was the denial of Appellant’s counsel’s motion for mistrial due 

to the victim’s testimony identifying the Appellant as a felon 

appropriate given the circumstances?

V. Was the denial of Appellant’s counsel’s motion for mistrial due 

to the District Attorney’s exaggeration of the evidence in his 

closing remarks appropriate given the circumstances?

____________________________________________

sentence.” Commonwealth v. Gilliam, 249 A.3d 257, 264 n.5 (Pa. Super. 

2021). We have corrected the caption.
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VI. Was the sentence, as it pertains to the conviction of person 

not to possess, use, manufacture, control, sell, or transfer 

firearms, against the weight of the evidence?

Appellant’s Brief at 6 (issues reordered).

Appellant first argues the Commonwealth failed to present sufficient 

evidence for the jury to convict him of persons not to possess firearms. See 

id. at 16-19. We are mindful of our standard of review:

When reviewing a sufficiency of the evidence claim, this Court 

must view the evidence and all reasonable inferences to be drawn 

from the evidence in the light most favorable to the 

Commonwealth as verdict winner, and we must determine if the 

evidence, thus viewed, is sufficient to prove guilt beyond a 

reasonable doubt. This Court may not substitute its judgment for

that of the factfinder. If the record contains support for the

verdict, it may not be disturbed. Moreover, a jury may believe all,

some or none of a party’s testimony.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2020) (citations 

omitted). The testimony of a single witness, even if uncorroborated, may

constitute sufficient evidence to support a conviction. Gilliam, 249 A.3d at

268.

The Crimes Code defines persons not to possess firearms, in relevant

part, as follows:

A person who has been convicted of an offense enumerated in 

subsection (b), within or without this Commonwealth, regardless 

of the length of sentence or whose conduct meets the criteria in 

subsection (c) shall not possess, use, control, sell, transfer or 

manufacture or obtain a license to possess, use, control, sell, 

transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).
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Instantly, Appellant does not dispute that he was convicted of an 

enumerated offense in 18 Pa.C.S.A. § 6105(b). See Appellant’s Brief at 17; 

see also N.T., 1/22/20, at 152-53. He argues “the testimony provided was 

insufficient to establish the other element, that the Appellant was actually in 

possession of the firearm.” Id. at 17. Appellant asserts, “Mr. Varesko’s 

testimony was inconsistent and clearly exhibited malice towards [Appellant,] 

... [w]hile [Appellant’s] testimony was clear about never seeing or possessing 

a firearm[.]” Id. at 18. Appellant also emphasizes: “No other physical 

evidence was presented to establish [Appellant] was in possession of a firearm 

on the evening in question.” Id.

To the extent Appellant complains of Varesko’s purportedly inconsistent 

testimony, and asks us to credit Appellant’s trial testimony over that of 

Varesko, he assails the weight of the evidence. See Commonwealth v.

Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An argument regarding the 

credibility of a witness’[] testimony goes to the weight of the evidence, not 

the sufficiency of the evidence.”); Commonwealth v. Trinidad, 96 A.3d 

1031, 1038 (Pa. Super. 2014) (“variances in testimony go to the credibility of 

the witnesses and not the sufficiency of the evidence.” (citation omitted)). 

Our Supreme Court has explained an appellant’s “challenge to the sufficiency 

of the evidence must fail” where he phrases an issue as a challenge to 

the sufficiency of the evidence, but the argument that appellant advances 
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goes to the weight of the evidence. Commonwealth v. Small, 741 A.2d 

666, 672 (Pa. 1999).

When a defendant did not have actual possession of the contraband, the 

Commonwealth is required to establish that he constructively possessed it. 

See Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) (in 

firearm possession cases, the Commonwealth may meet its burden by 

showing actual, constructive, or joint constructive possession); see also

Commonwealth Brief at 7 (“The Commonwealth will concede that at trial, no 

evidence was shown that a gun was found on Appellant.”). We have 

explained:

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. Constructive 

possession is an inference arising from a set of facts that 

possession of the contraband was more likely than not. We have 

defined constructive possession as conscious dominion. ... We 

subsequently defined conscious dominion as the power to control 

the contraband and the intent to exercise that control. ... To aid 

application, we have held that constructive possession may be 

established by the totality of the circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation 

omitted); see also Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 

2011) (“circumstantial evidence may be used to establish constructive 

possession of [contraband].”). However, a defendant’s mere presence does 

not establish constructive possession of a weapon. Commonwealth v. 

Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en banc); see also Parrish, 
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191 A.3d at 37 (the location and proximity of an actor to contraband alone is 

not conclusive of guilt).

Here, the evidence adduced at trial, properly viewed in the light most 

favorable to the Commonwealth as verdict winner, established that Varesko 

lived near his stepdaughter, Ms. Murphy, who passed away shortly before trial. 

N.T., 1/22/20, at 32-33. Varesko had keys to Murphy’s residence and 

frequently checked on her because she was an alcoholic. Id. at 34-36. On 

the evening in question, when Varesko entered the front door of Murphy’s 

residence, he saw items he knew did not belong to her, including a bookbag 

and shoes. Id. at 39-40. Varesko called out to Murphy, but she did not reply. 

Id. at 40. Varesko eventually located Murphy, who was in the shower. Id.

at 46. Varesko then saw a gun in plain view on a heater in the living room, 

next to a Pennsylvania identification card bearing Appellant’s name and 

picture; Varesko picked up both items. Id. at 46, 48, 88, 99; see also id.

Commonwealth Ex. 4 (Appellant’s Pennsylvania identification card). Varesko, 

a retired Maryland State Trooper, described his experience with firearms, and 

testified that the gun on the heater was not a toy and had weight to it. Id. at 

52-53, 87. 

Varesko also testified Murphy did not own any firearms. Id. at 56. Prior 

to her death, Murphy executed a written police statement confirming she did 

not own a firearm, and did not see a gun in her home on the date in question. 

Id. at 144; Commonwealth Ex. 8.
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Varesko testified he picked up the gun, intending to leave Murphy’s 

residence with it and call police. Id. at 50, 55, 65. As Varesko was leaving, 

Appellant appeared and “came running at [Varesko] and told me to give me 

his f’ing gun.” Id. at 57 (emphasis added); see also id. at 101 (Varesko 

testifying that Appellant said, “give me my fucking gun.”). A physical 

altercation ensued. Id. at 65 (Varesko testifying Appellant “tried taking the 

gun from my right hand. ... I got him in a headlock. ... And we scuffled. ... 

[Appellant] hit me in the head with the gun and cracked my head open.”); 

see also id. at 106. Appellant eventually got the gun from Varesko and fled. 

Id. at 67, 73-74, 101. 

Contrary to Appellant’s claim, we conclude the evidence was sufficient 

for the jury to find, beyond a reasonable doubt, that Appellant constructively 

possessed the gun. See, e.g., Commonwealth v. Hopkins, 67 A.3d 817, 

820-21 (Pa. Super. 2013) (viewed in totality, the facts and circumstances 

supported a finding that defendant constructively possessed drugs and 

gun); cf. Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa. Super. 1982)

(Commonwealth failed to prove defendant constructively possessed gun police 

found on passenger side of car he was driving, with three passengers, because 

defendant could not have seen the gun and there was no evidence he knew 

of its presence). Moreover, the jury could weigh Appellant’s flight as

consciousness of guilt. See Commonwealth v. Perez, 220 A.3d 1069, 1078 

(Pa. Super. 2019) (en banc) (flight from the scene of a crime can constitute 
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circumstantial evidence of consciousness of guilt); Commonwealth v.

Hudson, 955 A.2d 1031, 1036 (Pa. Super. 2008) (same). Finally, it bears 

repeating that the jury acquitted Appellant of the majority the charges. Thus, 

the trial court did not abuse its discretion in rejecting Appellant’s sufficiency 

claim.

In his second issue, Appellant contends the jury’s verdict was against 

the weight of the evidence, and “the trial court abused its discretion in finding 

that the verdict of the jury did not shock the conscience.” Appellant’s Brief at 

14. Appellant argues he 

provided testimony to the jury that he was never in possession of 

any firearm, never used one in his scuffle with Mr. Varesko, and 

never saw one in [Ms. Murphy’s] residence. This testimony was 

clear and concise, as opposed to Mr. Varesko’s testimony. 

According to Mr. Varesko’s testimony, though he was able to see 

what he alleges to be a small handgun on a heating register inside 

the residence, he was unclear of the color of the handgun.

Id. at 18. 

“When reviewing a challenge to the weight of the evidence, we review 

the trial court’s exercise of discretion.” Commonwealth v. Clemens, 242 

A.3d 659, 667 (Pa. Super. 2020) (citation omitted). For an appellant to prevail 

on a challenge to the weight of evidence, he must establish that the evidence 

supporting a conviction is “so tenuous, vague, and uncertain that the verdict 

shocks the conscience of the court.” Commonwealth v. Akhmedov, 216 

A.3d 307, 326 (Pa. Super. 2019) (en banc) (citation omitted). “The weight of 

the evidence is exclusively for the finder of fact, who is free to believe all, 
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none, or some of the evidence and to determine the credibility of the 

witnesses.” Clemens, supra at 667 (citation omitted). “One of the least 

assailable reasons for granting or denying a new trial is the lower court’s 

conviction that the verdict was or was not against the weight of evidence[.]” 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). 

We discern no abuse of the trial court’s discretion in rejecting Appellant’s 

weight claim. Appellant improperly asks us to substitute our judgment for 

that of the jury, and credit his version of events over Varesko’s. See, e.g.,

Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa. Super. 2007) (“As an 

appellate court, we cannot substitute our judgment for that of the finder of 

fact.”). Further, to the extent there were conflicts in the testimony (e.g., 

Varesko’s description of the color of the gun and Appellant’s testimony that 

the gun was not his), the jury ostensibly accepted Varesko’s testimony, and 

discredited Appellant’s. See, e.g., Trial Court Opinion, 6/25/21, at 8, 9 

(stating, the “jurors, as the finder of facts, had the opportunity to observe Mr. 

Varesko, to observe [Appellant, and] to properly consider bias, prejudice or 

motives of all witnesses to include Mr. Varesko,” and “[i]t is not unusual that 

witnesses testifying at a jury trial provide inconsistent testimony.”); N.T., 

1/22/20, at 234-36 (trial court instructing jury it had sole responsibility to

make credibility determinations and weigh conflicts in testimony). We may

not assume the role of factfinder and disturb the jury’s credibility 
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determinations. See Rabold, 920 A.2d at 861 (rejecting weight claim where 

appellant essentially asked this Court to reassess the credibility of witnesses).

In his third issue, Appellant argues the trial court erred in denying his 

motion in limine to exclude identification of Varesko as a retired police officer, 

which “carried no relevance to the case and would only be used to bias a jury 

into giving more credibility to his testimony than would normally be provided 

to a lay person.” Appellant’s Brief at 20. Appellant claims the court’s denial 

“was wholly unreasonable, ... and prejudiced the Appellant’s ability to present 

a proper defense at trial.” Id. at 21.

We review orders denying motions in limine, and granting the admission 

of evidence, for an abuse of discretion. Commonwealth v. Mangel, 181 

A.3d 1154, 1158 (Pa. Super. 2018). “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.” 

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citation 

omitted).

Regarding opinion testimony by a lay witness, Pa.R.E. 701 provides:

If a witness is not testifying as an expert, testimony in the form 

of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and
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(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Id.; cf. Pa.R.E. 702 (governing expert testimony). A lay witness “is permitted 

to express an opinion on a matter falling within the realm of common 

knowledge, experience or understanding.” Commonwealth v. Boczkowski, 

459, 846 A.2d 75, 97 (Pa. 2004); see also Pa.R.E. 602 (a witness may testify 

to matters within his or her personal knowledge). We have defined lay 

testimony as testimony “intended to describe something that jurors otherwise 

had not been able to experience for themselves, by drawing upon the sensory 

and experiential observations that the witness made firsthand.” 

Commonwealth v. Harper, 230 A.3d 1231, 1242 (Pa. Super. 2020) (citation 

omitted).

Appellant’s claim also implicates character evidence, which is governed 

by Pa.R.E. 404(a). This Rule provides: “(1) Prohibited Uses. Evidence of a

person’s character or character trait is not admissible to prove that on a

particular occasion the person acted in accordance with the character or

trait[.]” Pa.R.E. 404(a)(1).

The Commonwealth contends Appellant’s challenge is meritless:

Mr. Varesko testified as to the look of the gun, the weight of the 

gun, the opening of the barrel, and to being hit with the gun. N.T., 

1/22/20, at 87, 117-18, 123, 126, 127-28. Mr. Varesko’s 

characterization was an opinion, but not based in any specialized 

or scientific knowledge. Rather, he testified to facts that 

supported his ultimate lay-person opinion that what he observed 

and felt was a firearm. This opinion must be based on some prior 

lived experience, in this case, Mr. Varesko was a former police 

officer, had fired over 1,000 rounds through firearms, and owned 
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a firearm. Id. at 52-55. In a country with the Second 

Amendment, gun stores in every town, and ownership levels that 

are the highest in the world, no reasonable argument can be made 

that an opinion on whether a firearm is real is specialized, 

scientific, or other expert opinion.

Commonwealth Brief at 16 (citations modified). 

Upon review, we are persuaded by the Commonwealth’s argument and 

discern no abuse of the trial court’s discretion in denying Appellant’s motion 

in limine. The court determined “the mention that Mr. Varesko was a retired 

police officer was not offered to show any character testimony nor was it 

otherwise improper.” Trial Court Opinion, 6/25/21, at 6 (footnote omitted); 

see also id. at 8 (rejecting Appellant’s claim that “somehow the mere mention 

of Mr. Varesko’s former career as a law enforcement officer would 

automatically or unduly prejudice the jurors against [Appellant] or lend great 

credence to the testimony of [Mr.] Varesko.”). Furthermore, in response to 

Appellant’s motion in limine, the trial court instructed the jury that Varesko 

was not testifying as an expert, and the jury was required to “consider 

[Varesko’s] testimony the way you consider everybody else[.]” N.T., 1/22/20, 

at 63; see also id. (court instructing the jury that Varesko “was acting strictly 

as a citizen”). The law presumes that a jury will follow a trial court’s

instructions. Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004). 

Thus, the trial court did not err. See, e.g., Commonwealth v. Yedinak, 

676 A.2d 1217, 1221 (Pa. Super. 1996) (court did not err in admitting lay 

opinion testimony by police officer on issue of intoxication and inability to drive 
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safely where opinion was based on personal observations of defendant’s 

physical appearance and behavior, combined with officer’s extensive narcotics 

training and experience in drug arrests); cf. Harper, 230 A.3d at 1242 (court 

erred in admitting supposed lay testimony from police officer regarding 

whether gunshot wound was self-inflicted, holding the “testimony was beyond 

the scope of lay testimony permitted by Rule of Evidence 701(c). An opinion 

that a gunshot wound was self-inflicted would require specialized expert 

medical and forensic training. See Pa.R.E. 702(c).”). Appellant’s third issue 

does not merit relief.

In his fourth issue, Appellant claims the trial court erred in denying his 

motion for a mistrial after Varesko “indicated that the Appellant was a 

convicted felon and was unable to possess a firearm.” Appellant’s Brief at 22. 

Appellant argues: 

Along with permitting the classification of Mr. Varesko as a retired 

State Trooper, these statements in front of the jury provide a 

significant bias and prejudice towards the Appellant which were 

either not relevant to the case, or introduced by [a proper] 

witness.

Id. 

We review a denial of a motion for mistrial for an abuse of discretion. 

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). We have 

explained:

“In criminal trials, declaration of a mistrial serves to eliminate the

negative effect wrought upon a defendant when prejudicial

elements are injected into the case or otherwise discovered at

trial.” Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.
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Super. 2009) (citation omitted). “A trial court may grant a mistrial

only where the incident upon which the motion is based is of such

a nature that its unavoidable effect is to deprive the defendant of

a fair trial by preventing the jury from weighing and rendering a

true verdict.” Chamberlain, 30 A.3d at 422 (citation and

quotation marks omitted); see also Commonwealth v. Laird,

988 A.2d 618, 638 (Pa. 2010) (noting that a mistrial is an extreme

remedy). It is also settled that a mistrial is not necessary

where cautionary instructions are adequate to overcome

any potential prejudice. Commonwealth v. Spotz, 716 A.2d

580, 593 (Pa. 1998); Commonwealth v. Leap, 222 A.3d 386,

392 (Pa. Super. 2019) (same).

Gilliam, 249 A.3d at 274 (emphasis added; some citations modified). 

Further, we “must consider all surrounding circumstances before finding that

curative instructions were insufficient and the extreme remedy of a mistrial is

required.” Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super.

2009) (citation omitted). 

“[W]hen dealing with a motion for mistrial due to a reference to past 

criminal behavior, the nature of the reference and whether the remark was 

intentionally elicited by the Commonwealth are considerations relevant to 

the determination of whether a mistrial is required.” Commonwealth v.

Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007) (emphasis added; citation 

omitted). This Court has previously held that a mistrial is not required when 

there is a “singular, passing reference to prior criminal activity” at trial. 

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008).

Upon review, we discern no abuse of the trial court’s discretion in

denying Appellant’s motion for mistrial. Varesko’s improper remark was a

“singular, passing reference” and not intentionally elicited by the
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Commonwealth. See id.; Kerrigan, supra at 199. Moreover, the trial court

issued specific cautionary instructions to the jury (set forth above) regarding

Varesko’s remark and Appellant’s prior conviction. See N.T., 1/22/20, at 62-

63, 152-53. We must presume the jury followed these instructions. Speight, 

supra at 458. Accordingly, Appellant’s claim lacks merit.

In his fifth issue, Appellant assails the trial court’s denial of his motion 

for a mistrial during the prosecutor’s closing argument. See Appellant’s Brief 

at 23-26. Appellant challenges the following remark: 

Ladies and gentlemen, I submit to you [Appellant] is guilty of all

of these crimes. He had a gun that night. And [Mr.] Varesko’s

lucky he didn’t get shot. [Mr.] Varesko’s lucky he got to come and

testify today.

N.T., 7/28/20, at 226; see also id. (Appellant’s counsel immediately 

objecting and requesting a mistrial at sidebar). The trial court declined to 

grant a mistrial, but gave the jury the following instruction:

THE COURT: Ladies and gentlemen I’m going to ... again remind 

you that the attorneys are obliged to present their argument in a 

light most favorable to ... the side they represent. The 

[prosecutor] ... exaggerated with regard to [Mr. Varesko] could’ve 

been shot et cetera. So, we would ask you to disregard that 

argument[.]

Id. at 227. Appellant asserts, “[n]o evidence was ever presented at trial of a 

loaded gun[, and] the Commonwealth put to the jury a significantly more 

serious situation than was presented in their case in chief. These statements 

were highly prejudicial to the Appellant.” Appellant’s Brief at 26. Appellant, 
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however, concedes the court instructed the jury to disregard the prosecutor’s

improper argument. Id. The Commonwealth responds:

While in a vacuum, with only the charge of persons not to possess 

... firearms, [the prosecutor’s] statement may have been an 

unreasonable inference and a prejudicial statement. However, 

that is not the case. Appellant was on trial, though not convicted, 

of multiple other crimes including aggravated assault [codified at] 

18 [Pa.C.S.A.] § 2702(a)(4). This section specifically criminalizes 

an attempt to cause bodily injury to another with a deadly 

weapon.

Commonwealth Brief at 21.

“It is well settled that 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. Holley, 945 A.2d 241, 250 (Pa. Super. 2008). “The court 

must evaluate a prosecutor’s challenged statement in the context in which it 

was made.” Commonwealth v. Hanible, 30 A.3d 426, 465 (Pa. 2011). Not

every intemperate or uncalled for remark by the prosecutor requires a new

trial. Commonwealth v. Cox, 983 A.2d 666, 687 (Pa. 2009). Rather,

[r]eversible error occurs only when the unavoidable effect of the 

challenged comments would prejudice the jurors and form in their 

minds a fixed bias and hostility toward the defendant such that 

the jurors could not weigh the evidence and render a true verdict.

Id. 

Upon review, we conclude the trial court did not abuse its discretion in

denying Appellant’s motion for a mistrial where the prosecutor’s remark did

not have the unavoidable effect of unduly prejudicing the jurors. See, e.g.,
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Commonwealth v. Weiss, 776 A.2d 958, 969 (Pa. 2001) (viewing 

prosecutor’s closing remarks in their entirety did not have the unavoidable

effect of prejudicing jury, and noting “[t]he prosecution, like the defense, is 

accorded reasonable latitude and may employ oratorical flair in arguing its 

version of the case to the jury.” (emphasis added)). Further, the trial court

specifically instructed the jury to disregard the prosecutor’s remark. N.T., 

7/28/20, at 226. We must presume the jury followed the instruction. 

Speight, supra at 458.

In his final issue, Appellant argues the trial court abused its discretion

in imposing a sentence which is purportedly “against the weight of the

evidence presented.” Appellant’s Brief at 26. Appellant contends his 

sentence, i.e., 5-10 years’ imprisonment, “was wholly unreasonable and an 

abuse of discretion given the testimony provided in support of a mitigated 

sentence.” Id. at 28. Appellant maintains his probation officer at sentencing, 

“testified that the Appellant was cooperative in the [PSI] investigation, had 

previously sought drug and alcohol treatment to better himself ..., and ... had 

also been previously treated for a diagnosis of schizophrenia [for] which he 

was taking medication.” Id. at 27-28.

Appellant challenges the discretionary aspects of sentencing. “The right 

to appellate review of the discretionary aspects of a sentence is not 

absolute[.]” Commonwealth v. Fuentes, 2022 PA Super. 43, *15 (Pa. 
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Super. 2022). Before we may reach the merits of a discretionary sentencing

issue,

we conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P.

902 and 903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,

Pa.R.A.P. 2119(f); and (4) whether there is a substantial question

that the sentence appealed from is not appropriate under the

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(some citations omitted). Regarding the third factor, this Court explained:

When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v.

Mouzon, 812 A.2d 617, 621 (Pa. 2002); Pa.R.A.P. 2119(f). “The 

requirement that an appellant separately set forth the reasons 

relied upon for allowance of appeal furthers the purpose evident 

in the Sentencing Code as a whole of limiting any challenges to 

the trial court’s evaluation of the multitude of factors impinging 

on the sentencing decision to exceptional cases.” 

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 

2008) (emphasis in original) (internal quotation marks omitted).

Manivannan, 186 A.3d at 489 (citations modified).

In this case, though Appellant timely filed a notice of appeal and

preserved his claim in a post-sentence motion, his brief lacks a Pa.R.A.P.

2119(f) statement. While the Commonwealth objected to Appellant’s failure 

to properly develop and preserve his sentencing challenge, it did not 

specifically object to his omission of a Rule 2119(f) statement. See

Commonwealth Brief at 22, 23; cf. Commonwealth v. Griffin, 149 A.3d 349, 
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353 (Pa. Super. 2016) (“If the Commonwealth objects to the appellant’s 

failure to comply with [Rule] 2119(f), the sentencing claim is waived for 

purposes of review.” (emphasis added; citation omitted)). Accordingly, we

proceed to determine whether Appellant presents a substantial question for

review. Manivannan, supra at 489. “A substantial question exists only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 

2015) (en banc) (citation omitted).

Appellant’s general claim of an excessive sentence does not present a 

substantial question. See, e.g., Commonwealth v. Andrews, 213 A.3d 

1004, 1017 (Pa. Super. 2019) (“a generic claim that a sentence is excessive 

does not raise a substantial question for our review.” (citation omitted)); 

Caldwell, 117 A.3d at 768 (“An appellant making an excessiveness claim 

raises a substantial question when he sufficiently articulates the manner in 

which the sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular fundamental norm 

underlying the sentencing process.”). Nevertheless, we discern no abuse of 

the trial court’s discretion in imposing Appellant’s standard range sentence, 

which is neither excessive nor unreasonable. See, e.g., Commonwealth v. 

Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating that “where a sentence 
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is within the standard range of the guidelines, Pennsylvania law views the 

sentence as appropriate under the Sentencing Code,” and holding sentence 

was not unreasonable where trial court had benefit of PSI and imposed 

standard range sentence); Commonwealth v. Ventura, 975 A.2d 1128, 

1135 (Pa. Super. 2009) (where sentencing court is informed by PSI, it is 

presumed the court is aware of all appropriate sentencing factors and 

considerations (including any mitigating factors, such as rehabilitation

efforts), and “where the court has been so informed, its discretion should not 

be disturbed.”). Here, the trial court explained it,

considered the offense gravity score of the crime for which 

[Appellant] was convicted, [Appellant’s] prior record score, and 

sentenced [Appellant] within the standard range of the sentencing 

guidelines. The [c]ourt did not sentence [Appellant] in the 

mitigated or aggravated range of the sentencing guidelines, as we 

found no factors to support deviation from the standard 

guidelines.

Trial Court Opinion, 6/25/21, at 15; see also N.T., 7/28/20, at 21 (stating 

reasons for sentence). Appellant’s final claim does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/2022