J-A09009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH TUNSTALL,

Appellant No. 904 EDA 2014

Appeal from the Judgment of Sentence November 25, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009724-2011

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 25, 2015

Joseph Tunstall appeals from the judgment of sentence of life 

imprisonment that the trial court imposed after a jury convicted him of firstdegree murder, criminal conspiracy, and possession of a firearm without a 

license. We affirm. 

At 12:55 a.m., on January 30, 2011, Kelly Nelson was shot and killed 

in the Hill Creek Public Housing Community (“Hill Creek”) in Philadelphia, 

Pennsylvania. In the aftermath of the murder, Commonwealth investigators 

uncovered the following facts. On January 29, 2011, the victim’s older 

cousin, Warren Darrell Wright, was drinking at the Grand Slam, a 

neighborhood bar, with Appellant’s niece, Jamira Tunstall, and a group of her 

friends. N.T., 11/21/13, at 100. Mr. Wright and Ms. Tunstall were playing a 
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touchscreen computer game on the bar-top together when Wright asked her 

if she would end her conflict with his friend, Danielle Doebler. Id. at 101. 

This request resulted in a verbal confrontation between Mr. Wright and Ms. 

Tunstall, which supposedly culminated in Mr. Wright hitting and/or grabbing 

Ms. Tunstall. N.T., 11/20/13, at 30. As a result, both patrons were asked to 

leave the establishment. N.T., 11/19/13, at 199. 

According to testimony adduced at trial, only Ms. Tunstall left the bar 

after the argument. Id. at 196. However, she returned approximately 

forty-five minutes later, and the argument with Mr. Wright resumed. Id. at 

199. Diana Koba, a patron in the bar, testified that, prior to both parties 

leaving the bar permanently, Ms. Tunstall claimed that she was going to 

“make a phone call to her people.” Id. at 195. Moreover, Ms. Tunstall 

herself later testified that she called Appellant and asked him to go to the 

Grand Slam to fight Mr. Wright because Wright had hit her. N.T., 11/20/13, 

at 37-40. 

Mr. Wright later returned to his residence, which he shared with the 

victim, and told him about his argument with Ms. Tunstall. Id. at 103-104. 

The victim attempted to calm Mr. Wright, but Wright left the house to visit 

Ms. Doebler. Id. at 105. The victim later went to the Grand Slam to find 

Mr. Wright. He ordered one drink and left after he had consumed it. N.T., 

11/19/13, at 202. He was murdered shortly thereafter, and his body was 

discovered with the straw from this drink still in his mouth. The victim was 
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pronounced dead at the scene, suffering a total of ten gunshot wounds. Id. 

at 87-100, 102. Police recovered fourteen fired cartridges, which included 

three 9 millimeter and eleven .40 caliber shells. N.T., 11/21/13, at 13, 36, 

40, 78-81. 

Testimony began on November 19, 2013. The Commonwealth’s first 

witness was medical examiner, Dr. Gary Collins, who testified to the number 

of wounds that the victim had suffered and confirmed that the wounds were 

the cause of death. N.T., 11/19/13, at 102. The Commonwealth also 

presented F.B.I. Special Agent, William Shute, who was qualified as an 

expert on cellular telephone site analysis. Id. at 108, 133. Special Agent 

Shute testified that he tracked cellular telephone calls and text messages 

between Appellant and Ms. Tunstall from January 29, 2011, at 11:35 p.m., 

until January 30, 2011, at 1:10 a.m. Id. at 138-139. This tracking was 

accomplished via the use of cellular towers, which indicated that Appellant’s 

cell phone was in the area around Hill Creek at the time of the victim’s 

death, and was then identified moving away from that location. Id. at 157-

160. 

The Commonwealth called Darren Rogers as an eyewitness to the 

shooting. During the murder investigation, Mr. Rogers informed Philadelphia 

Detectives Gregory Santamala and Joseph Pirrone that, on the night of the 

murder, he witnessed Appellant and a group of armed men surround the 

victim while Appellant screamed, “your peoples [sic] slapped my niece.” 
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N.T., 11/21/13, at 200. Rogers then stated that he witnessed Appellant with 

a gun in his hand, before observing flashes in front of Appellant, 

accompanied by the sound of gunshots. Id. However, when questioned at 

trial about these statements, Mr. Rogers denied witnessing the shooting. He 

stated that he was released from jail the night of the shooting, got high on 

drugs at his girlfriend’s house, and was asleep when the shooting occurred. 

Id. at 241-242, 294-295. Mr. Rogers had also previously denied witnessing 

the shooting at the preliminary hearing. He testified at trial that he did not 

remember making any of the prior statements to the detectives because he 

was also high during his police interview. Id. at 284, 301-304.

Ms. Tunstall was called on the second day of trial, November 20, 2013. 

N.T., 11/20/13, at 15. She testified that she was in an intimate relationship 

with Mr. Wright when the murder occurred. She also acknowledged that she

and Mr. Wright had argued over her interactions with Danielle Doebler. This 

episode ended after Mr. Wright grabbed her by the neck and she left the bar 

for the first time. Id. at 15-17, 21, 28-31. Ms. Tunstall also claimed that 

when she came back to the bar, Mr. Wright began to yell at her again and 

punched her in the face. Id. at 35. She asserted that, although she did call 

Appellant to have him come and assault Mr. Wright as retaliation for his 

actions in the bar, she never asked Appellant to shoot or kill Mr. Wright. Id. 

at 40, 88. Ms. Tunstall confirmed that Appellant, another uncle Jerome 

Tunstall, and her aunt Toya Tunstall, arrived at Hill Creek in response to her 
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request; but testified that she did not see either of her uncles in possession 

of weapons. Id. at 42. Finally, Ms. Tunstall agreed that she previously pled 

guilty to criminal solicitation and conspiracy in relation to the murder. Id. at 

57, 64. 

The Commonwealth’s next witness was Quinton Gamble. Mr. Gamble 

confirmed that he was currently in custody for failing to comply with a 

subpoena to appear to testify in the instant case. Id. at 106-107. Mr. 

Gamble explained that investigators brought him to the police station two 

weeks after the homicide and he gave a statement to homicide detectives. 

In that statement, Mr. Gamble stated that Appellant and his brother 

appeared at his house on the night of the murder and asked him if he had 

seen Mr. Wright that night. Id. at 114. Mr. Gamble continued in his 

statement that, after informing Appellant that he had not had contact with 

Mr. Wright, Appellant’s brother brandished a firearm, and both brothers 

implied that they were going to look for Wright at the Grand Slam. Id. Mr. 

Gamble’s statement also indicated that, around twenty minutes later, he 

heard gunshots from the direction of the shooting and observed Appellant, 

his brother, and another man run down the street, enter a car, and flee. Id. 

During his direct examination, however, Mr. Gamble changed aspects 

of the prior statement that he gave to the homicide detectives. In contrast 

to his earlier identification of Appellant and his brother, Mr. Gamble now 

claimed that all he observed after hearing the gunfire were two people 
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running past his house with guns and that it was too dark for him to be able 

to accurately describe the assailants. Id. at 112. On cross-examination, 

Mr. Gamble further recanted his prior statement that he observed Appellant 

in the vicinity of the murder, although he later acknowledged that he 

identified one of the individuals who ran by his house that night as 

Appellant’s brother. Id. at 129. 

The Commonwealth also called Philadelphia Police Detective George 

Pirrone and Philadelphia Police Officers Sean Kennelly and Edgar Ruth. Id. 

at 144, 165, 176. Detective Pirrone acknowledged taking the statements of 

both Ms. Tunstall and Mr. Gamble, while Officer Kennelly testified that he 

was the officer who arrested Appellant on June 4, 2011. Id. at 148-151, 

168. Officer Ruth then informed the court that Appellant had shared a 

holding cell with Mr. Gamble as both were waiting to testify in these 

proceedings and that Appellant attempted to engage Mr. Gamble, who uses 

the alias “Q,” in conversation by shouting, “Q, come on,” and directing him, 

“you know what you gotta do.” Id. at 179-180. Officer Ruth also stated 

that, at this point, Mr. Gamble acknowledged Appellant by responding “I 

didn’t see shit, I didn’t see it, I don’t remember.” Id. at 180. 

Investigator William Whitehouse of the Crime Scene Unit and 

Philadelphia Police Officer Ernest Bottomer from the Ballistics Unit were the 

Commonwealth’s next two witnesses. They testified about the locations of 

the various shell casings at the crime scene as well as confirming that the 
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bullets recovered from the victim’s body matched these shell casings. N.T., 

11/21/13, at 40-53, 74-75. Officer Bottomer further confirmed that all of 

the recovered bullets and casings came from either a 9mm or .40 caliber 

firearm. Id. at 75. 

The next witness was Mr. Wright, who confirmed that he had been in a 

relationship with Ms. Tunstall and requested that she not confront Ms. 

Doebler. Id. at 100. Mr. Wright also acknowledged that he and Ms. Tunstall 

had gotten into a verbal confrontation at the bar but denied striking her. Id. 

at 102. He further stated that he texted Ms. Tunstall at 2:04 a.m. that 

morning and informed her that Appellant had killed his cousin instead of 

him; to which Ms. Tunstall responded with a text that read, “I’m sorry for 

your loss, but you’re not going to threaten me.” Id. at 120-121. 

Finally, the Commonwealth called Philadelphia Police Detective 

Gregory Santamala. Id. at 170. Detective Santamala testified concerning 

text messages between Appellant and others on the morning of the victim’s 

death that implied that Appellant may have been involved with the shooting. 

Id. at 170, 181-183. Detective Santamala also explained that, since Mr. 

Rogers was under the influence of drugs when he was first brought to the 

police station for his interview at 11:00 am on February 14, 2011, he 

remained at the station for approximately twenty-nine and one-half hours 

until he was sober enough up to give an accurate statement. Id. at 191, 

207-215. 
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After the Commonwealth rested, Appellant testified on his own behalf. 

He confirmed that he had received a phone call from Ms. Tunstall around 

11:52 p.m., and was informed that Mr. Wright had punched her in the face. 

N.T., 11/22/13, at 22-23, 29. He also admitted to coming to Hill Creek that 

night and searching the Grand Slam for Mr. Wright, but claimed that his only 

purpose was to threaten Mr. Wright with physical violence if he hit Ms. 

Tunstall again. Id. at 30-32. Appellant also asserted that he was not 

involved in the murder and that it was not until he was leaving Hill Creek 

that he heard any gunshots. Id. at 35-36. 

Appellant called one additional witness, Tierra Nesmith, who was Mr. 

Rogers’s girlfriend at the time of the shooting. She testified that Mr. Rogers 

was with her for most of the night in question. Ms. Nesmith stated that Mr. 

Rogers returned to Hill Creek earlier that evening, got high on Xanax, and 

then went to sleep around 10:00 p.m. Id. at 137-140. Although Ms. 

Nesmith acknowledged that she briefly visited the Grand Slam and witnessed 

Mr. Wright striking Appellant’s niece, she continued to assert that she 

remained with Mr. Rogers between 12:00 a.m. and 1:00 a.m. on Sunday 

and that Mr. Rogers was not in a position to make any observations of the 

shooting during this time period because he remained asleep. Id. 140-142. 

She also explained that she had a previous romantic relationship with 

Appellant and that Mr. Rogers held ill will toward Appellant as a result. Id. 

at 142-143. 
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The jury convicted Appellant on all counts on November 25, 2013, and 

he was sentenced to life imprisonment. N.T., 11/25/13, at 114-115, 128. 

Appellant filed post-sentence motions seeking a new trial and arrest of 

judgment on November 26, 2013. These motions were denied on March 14, 

2014. Appellant then filed a timely notice of appeal. 

Appellant presents the following issues for our review:

1. Were Appellant’s convictions for Murder of the First Degree (18 

Pa.C.S.A. 2502), Criminal Conspiracy to Commit Murder (18 

Pa.C.S.A 903), and Violation of the Uniform Firearms Act (18 

Pa.C.S.A 6106), not supported by sufficient evidence?

2. Were the convictions for Murder of the First Degree, Criminal 

Conspiracy to Commit Murder, and Violation of the Uniform 

Firearms Act against the weight of the evidence?

3. Did the trial judge err in not granting a mistrial after the 

Assistant District Attorney: made inflammatory statements, 

statements of personal opinion, improperly personally vouched 

for witnesses, improperly gave testimony not of record, and left 

a photograph of the deceased victim on the screen in front of the 

jury during his opening and closing statements?

4. Did Judge Bronson err in allowing the two written statements of 

the key prosecution witness, Darren Rogers, as well as 

Appellant’s text messages, to go back with the jury because this 

evidence only favored the prosecution, thereby tainting the 

jury’s deliberation and verdict?

Appellant’s brief at 6-7. 

Appellant’s first challenge is to the sufficiency of the evidence 

presented by the Commonwealth at trial. Appellant asserts that the 

testimony of two key Commonwealth witnesses was so “contradictory, 

unreliable, and speculative,” that it was insufficient as a matter of law to 
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support his convictions for first-degree murder, criminal conspiracy, and 

carrying a firearm without a license. Appellant’s brief at 40. At the outset, 

we observe that this claim resonates as a challenge to the weight of the 

evidence. This observation is bolstered by the fact that Appellant specifically 

incorporates the identical argument in support of his subsequent weight of 

the evidence claim. 

Generally, “[o]ur standard when reviewing the sufficiency of the 

evidence is whether the evidence at trial, and reasonable inferences derived 

therefrom, when viewed in the light most favorable to the Commonwealth as 

verdict winner, are sufficient to establish all elements of the offense beyond 

a reasonable doubt.” Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. 

Super. 2006). Conflicting testimony between witnesses does not render the 

evidence insufficient because it is within the province of the factfinder to 

determine the weight to be given to the testimony and to believe all, part, or 

none of the evidence. Commonwealth v. Rabold, 920 A.2d 857, 859 

(Pa.Super. 2007). In addition, the Commonwealth may sustain its burden of 

proof based entirely on circumstantial evidence. Commonwealth v. Laird,

988 A.2d 618, 624 (Pa. 2010). “[A]ny doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak and 

inconclusive that, as a matter of law, no probability of fact can be drawn 

from the combined circumstances.” Commonwealth v. Watley, 81 A.3d 

108, 113 (Pa.Super. 2013) (en banc). 
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Appellant recognizes that weight-related considerations are generally 

excluded from the review of the sufficiency of the evidence, however, he 

argues that the pertinent standard of review has been altered as a result of 

our Supreme Court’s holding in Commonwealth v. Karkaria, 625 A.2d 

1167 (Pa. 1993) and Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 

1976). In Karkaria, our Supreme Court addressed a sufficiency of the 

evidence claim by reiterating that, whenever “evidence offered to support a 

verdict of guilt is so unreliable and/or contradictory as to make any verdict 

based thereon pure conjecture, a jury cannot be permitted to return such a 

finding.” Karkaria, supra at 1170 (citations omitted). Appellant argues 

that this principle is applicable herein. 

We note that our High Court has previously found that challenges to a 

verdict pursuant to the Farquharson standard are properly to the weight, 

and not the sufficiency of, the evidence. Commonwealth v. Sanchez, 36 

A.3d 24, 37 (Pa. 2011). However, in a more recent decision, the Supreme 

Court elected to address a sufficiency claim through the lens of the 

Farquharson standard. See Commonwealth v. Brown, 52 A.2d 1139 

(Pa. 2012). The Brown Court ultimately found, as we find now, that even if 

this standard is applicable to a sufficiency claim, an appellate court “will not, 

on sufficiency review, disturb the finder of fact’s resolution except in those 

exceptional instances . . . where the evidence is so patently unreliable that 
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the jury was forced in engage in surmise and conjecture in arriving at a 

verdict based on that evidence.” Id. at 1166. 

Appellant maintains that, because the testimony of two of the 

Commonwealth’s key witnesses was inconsistent and based on statements 

that they later recanted at trial, it was insufficient to support his convictions. 

However, our Supreme Court previously affirmed that prior inconsistent 

statements may be admitted as substantive evidence. Brown, supra at 

1168. Contradictory evidence is deemed sufficient for a criminal conviction if 

it can be determined that “the finder of fact could hear the witnesses’ 

explanations for making the out-of-court statements, and for their trial 

recantation,” and the jury could reasonably credit the prior statements over 

the witness’s later recantations. Id. This is the nature of the evidence in 

the case at bar.

It is beyond argument that credibility determinations are for the jury 

to resolve; hence, an appellate court may not reweigh the evidence and 

substitute its judgment for that of the finder of fact. Commonwealth v. 

Gibson, 720 A.2d 473 (Pa. 1998). Thus, as fact finder in the case at bar, 

the jury was free to believe all, part, or none of the initial statements given 

by Mr. Rogers and Mr. Gamble to police and admitted during trial, the 

witnesses’ respective retractions, and Appellant’s testimony denying his 

involvement in the shooting. See Commonwealth v. Spotz, 716 A.2d 580, 

585 (Pa. 1998) (Holding that a jury is free to disbelieve evidence proffered 
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by Appellant that he was not the trigger person). Herein, the factfinder 

accepted the incriminating evidence in the witness statements and declined 

to believe the witnesses’ retractions and Appellant’s self-serving testimony. 

Moreover, additional circumstantial evidence demonstrated that 

Appellant was one of the men involved in the murder. This evidence 

included: (1) the testimony of three additional witnesses that established 

that Appellant’s niece and the victim’s cousin had gotten into a fight at the 

bar that night; (2) Appellant’s niece had requested that he come to Hill 

Creek and retaliate against Mr. Wright on her behalf, and later responded to 

Mr. Wright’s assertion that Appellant retaliated against his younger cousin 

instead by stating “I’m sorry for your loss, but you’re not going to threaten 

me,” n.t., 11/20/13, at 53; (3) cell phone records which clearly showed that 

Appellant was near the crime scene immediately before and after the 

murder, and; (4) incriminating text messages between Appellant and other 

parties following the homicide. Mindful that the Commonwealth can 

establish any element of the offense beyond a reasonable doubt by wholly 

circumstantial evidence, and in light of the fact that the jury was cognizant 

of the circumstances surrounding the witnesses’ statements to police and 

their motives for recanting those statements, we find that this case does not 

present an exceptional instance where the evidence is so patently unreliable 

that the jury was forced to engage in surmise or conjecture. Appellant’s 

claim fails.
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Having established Appellant as the assailant, we next address the 

mens rea. “In order to sustain a finding of first degree murder, the evidence 

must establish that a human being was unlawfully killed; (2) the person 

accused is responsible for the killing; and (3) the accused acted with a 

specific intent to kill.” Commonwealth v. Mitchell, 902 A.2d 430, 444 (Pa. 

2006); 18 Pa.C.S. § 2502(a). An intentional killing is a “killing by means of 

poison, or by lying in wait, or by any other kind of willful, deliberate and 

premeditated killing.” 18 Pa.C.S. § 2502(d). Both the specific intent and 

malice necessary to sustain a conviction for first-degree murder may be 

established through circumstantial evidence, such as the use of a deadly 

weapon on a vital part of the victim’s body. Commonwealth v. Smith, 985 

A.2d 886, 895 (Pa. 2009); Commonwealth v. Houser, 18 A.3d 1128, 1134 

(Pa. 2011).

Instantly, police recovered multiple fired cartridges from the crime 

scene and several bullets were also recovered from the victim’s body. N.T. 

11/21/2013, at 36, 40, 78-81. The fatal bullet was extracted from the 

victim’s brain, which is quite clearly a vital part of the victim’s body. Id. at 

81. The testimony and circumstantial evidence provided by multiple 

witnesses, including a witness to the shooting, was sufficient for the jury to 

conclude beyond a doubt that Appellant was guilty of first-degree murder. 

Next, we address the conspiracy conviction. To sustain a conviction 

for conspiracy, the Commonwealth must prove that:
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(1) The defendant intended to commit or aid in the commission 

of the criminal act; (2) the defendant entered into an agreement 

with another (a “co-conspirator”) to engage in the crime; and 

(3) the defendant or one or more of the other co-conspirators 

committed an over act in furtherance of the agreed upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).

Most conspiracy cases lack direct evidence to illustrate the defendant’s 

conspiratorial agreement. Therefore, the defendant’s intent and the 

agreement are often proved through circumstantial evidence via the 

relations, conduct, or circumstances of parties. See Commonwealth v. 

Ruiz, 819 A.2d 92, 97 (Pa.Super. 2003) (Finding that the conduct and 

circumstances relating to the parties’ conduct may satisfy the evidentiary 

requirement of linking the defendant to the alleged conspiracy beyond a 

reasonable doubt).

At trial, Ms. Tunstall testified that she called Appellant and asked him 

to confront Mr. Wright. N.T., 11/20/13, at 37-40. Mr. Gamble testified that 

he witnessed Ms. Tunstall say that she was going to “call her peoples” to 

come and physically harm Mr. Wright, and that shortly after, Appellant and 

his brother arrived at Mr. Gamble’s house and asked him if he had seen Mr. 

Wright. Id. at 114. Mr. Gamble also testified that Appellant’s brother 

subsequently showed him a gun that he was carrying and both stated that 

they were going to go look for Mr. Wright at the Grand Slam. Id.

Mr. Rogers also told police that he saw Appellant and a group of men 

surround an individual and that he heard Appellant yell, “your people 
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slapped my niece,” right before he witnessed Appellant fire his gun at the 

victim. N.T., 11/21/13, at 200-201. The Commonwealth presented ample 

evidence from which the jury could find that Appellant and at least one other 

individual advanced a conspiracy to kill the victim. Accordingly, the certified 

record sustains the trial court’s finding that the Commonwealth proved 

beyond a reasonable doubt the elements of criminal conspiracy. 

The final sufficiency claim relates to the evidence supporting the 

firearms violation. Pennsylvania law defines carrying a firearm without a 

license as:

Any person who carries a firearm in any vehicle or any person 

who carries a firearm concealed on or about his person, except 

in his place of abode or fixed place of business, without a valid 

and lawfully issued license under this chapter commits a felony 

of the third degree.

18 Pa.C.S. § 6106(1). “In order to sustain a conviction, the Commonwealth 

must prove that: (1) the weapon was a firearm; (2) the firearm was 

unlicensed; and (3) that the firearm was concealed on or about the person, 

outside his home or place of business.” Commonwealth v. Parker, 847 

A.2d 745, 750 (Pa.Super. 2004) (citations omitted).

Both parties stipulated at trial that Appellant did not have a license to 

carry a firearm. N.T., 11/21/13, at 160. Additionally, Mr. Rogers’s 

established that Appellant possessed a gun, leveled it at the victim after 

encountering him on the public street, and shot him. Id. at 200-201. 
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Therefore, there was sufficient evidence for the jury to conclude that 

Appellant was guilty of carrying a firearm without a license. 

Appellant’s next issue challenges the weight of the evidence. The trial 

court’s belief that the verdict is not against the weight of the evidence and 

that a new trial is not warranted in the interest of justice is one of the least 

assailable reasons for a trial court to deny a new trial. Commonwealth v. 

Widmer, 744 A.2d 745, 753. (Pa. 2000). It is well-established that 

appellate review of a weight claim is limited to determining whether the trial 

court abused its discretion and is not to substitute an appellate court’s 

judgment for that of the trial court. Commonwealth v. Best, __A.3d__, 

2015 WL 4366508 (Pa.Super. 2015). A new trial should only be awarded if 

the jury’s verdict is so contrary to the evidence as to shock one’s sense of 

justice. Thompson v. City of Philadelphia, 493 A.2d 669, 672 (Pa. 

1985). 

Appellant once again invokes the rulings in Karkaria and 

Farquharson as the bases for his argument that the recantations of Mr. 

Rogers and Mr. Gamble established that the jury’s verdict cannot stand. 

Appellant also states that the fact that Mr. Rogers’s girlfriend, Ms. Nesmith, 

corroborated that he was asleep at the time of the shooting further indicates 

the unreliability of that witness’s prior statements to the police. However, as 

we elucidated thoroughly supra, the law is clear that the jury was free to 

disregard the witnesses’ recantations and accept the evidence presented by 
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the Commonwealth. See Brown, supra at 1168 (contradictory evidence is 

sufficient for criminal conviction if it can be determined that factfinder heard 

witnesses’ explanations for recantation at trial and reasonably credited prior 

statements). Furthermore, the additional circumstantial evidence, such as 

the cell phone data, text message records, and testimony from the

remaining witnesses, supported the trial court’s determination that the jury’s 

guilty verdict was not so contrary to the evidence as to shock one’s sense of 

justice. Appellant’s claim fails. 

Next, we address Appellant’s contention that the trial court erred in 

refusing his requests for a mistrial after the Assistant District Attorney 

committed prosecutorial misconduct due to alleged improper statements 

that he made to the jury during his opening and closing arguments, and 

because the Commonwealth displayed a photograph of the victim’s body 

during its summations. For the reasons that follow, no relief is due.

As support for his assertions of prosecutorial misconduct, Appellant 

refers to four separate incidents where he alleges that the prosecutor made 

inflammatory or intemperate remarks. A prosecutor may vigorously argue 

his case as long as his comments are either supported by the evidence, or 

contain reasonable inferences in light of this evidence. Commonwealth v. 

Eichinger, 108 A.3d 821, 836 (Pa. 2014). Not every intemperate or 

improper remark by the prosecution requires a new trial. Commonwealth 

v. Jarvis, 394 A.2d 483 (Pa. 1978). When a prosecutor uses intemperate 
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language or makes improper remarks a new trial is required only where the 

language’s unavoidable effect is to prejudice the jury in such a way as to 

cause them to form a fixed bias or hostility against Appellant such that they 

could not weigh the evidence and render a true verdict. Commonwealth v. 

Begley, 780 A.2d 605, 626 (Pa. 2001). Finally, the determination of 

whether a prosecutor’s misconduct created prejudice in the minds of the jury 

falls within the trial court’s authority and will not be reversed absent an 

abuse of discretion. Commonwealth v. D’Amato, 526 A.2d 300, 310 (Pa. 

1987).

In order to evaluate whether comments made by the prosecutor were 

improper, they must be examined in the context in which they were made. 

Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997). As discussed infra, 

our review of Appellant’s argument reveals that none of the statements, 

either alone or collectively, prejudiced the jury unavoidably or formed in 

their minds a fixed bias or hostility that would prevent them from properly 

weighing the evidence and rendering a true verdict. Commonwealth v.

Weiss, 776 A.2d 958, 970 (Pa. 2001). 

Appellant accuses the prosecutor of “improperly vouching” for the 

decedent after he described the victim as “a pretty decent guy, a guy that 

didn’t harm anybody,” to the jury in his opening statement. N.T., 11/19/13, 

at 52. However, the prosecutor was simply using his opening argument to 

outline what he expected the evidence to show, i.e., that the victim was 
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murdered as a consequence of his cousin’s actions towards Appellant’s niece 

and that he had just been trying to prevent his cousin from being hurt. 

Though the trial court overruled Appellant’s objection to this remark, the 

judge also immediately reminded the jurors that the prosecutor’s opening 

arguments did not constitute evidence and were simply his opinions on what 

he expected the evidence to illustrate. Id. at 53. An immediate curative 

instruction to the jury can alleviate the harmful effects of the improper 

admission of evidence and it is presumed that the jury will follow these 

instructions. Commonwealth v. Johnson, 533 A.2d 994, 997 (Pa. 1987). 

Instantly, the prosecutor’s comments were not prejudicial nor did they 

create a fixed bias which prevented the jury from rendering a true verdict. 

This challenge lacks merit.

Appellant also asserts that the prosecutor made inflammatory 

statements of his personal opinion during his closing arguments after he 

addressed the issue of the substantial period of time that the two witnesses, 

Mr. Rogers and Mr. Gamble, had been held in custody. Specifically, 

Appellant claims that the prosecutor gave his own personal testimony 

concerning his opinion of Appellant’s guilt when he stated, in reference to 

Mr. Gamble’s noncompliance with the subpoena, “I am unapologetic about 

putting Quinton Gamble in jail for five days if it’s required to take a killer off 

the street.” N.T., 11/22/13, at 247. However, the trial court found that this 

statement was simply being used as a reference to address the questions 
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Appellant raised about the length of time that the witnesses had been 

imprisoned. The prosecution’s statement was made to clarify that Mr. 

Gamble was placed in custody as a result of his refusal to comply with a 

subpoena to testify. N.T., 11/20/13, at 107, 177-180. Nevertheless, the 

court once again provided the jury with strict instructions that arguments 

are not evidence in order to prevent the jury from giving them inappropriate 

consideration during their deliberation. As the jury is presumed to have 

followed these instructions, no relief is due. Johnson, supra at 997. 

Next, Appellant contends that the assistant district attorney again 

proffered an improper statement of his personal opinion to the jury when he 

claimed that there were many reasons why witnesses might be 

uncooperative. Instantly, the prosecutor stated that, “They have to live in 

that neighborhood. They’re in prison. Heck, they’re getting confronted by a 

murderer.” N.T., 11/22/23, at 252. Even if the prosecution’s use of the 

word “murderer” was intemperate, Appellant fails to lend proper credence to 

the fact that the prosecutor immediately clarified the last sentence by 

rephrasing it as “one who is accused of murder.” Id. Regardless, the trial 

court properly issued a curative instruction when he told the jury to 

disregard the prosecution’s remark and it did not abuse its discretion by 

holding that this was sufficient to address any possibility of prejudice. Id. As 

jurors are presumed to have followed a trial court’s curative instruction, we 
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find no basis to disturb the court’s denial of the motion for mistrial on these 

grounds. Johnson, supra.

Appellant also incorrectly asserts that the above statement was 

improper because no evidence had been presented that he had threatened 

anyone. The Commonwealth highlights, however, that it presented evidence 

that Appellant confronted Mr. Gamble when they were accidentally placed in 

the same holding area and instructed, “you know what you gotta do.” N.T., 

11/20/13, at 179-180. This was a matter of record and it is not improper 

for a prosecutor to refer to a matter in evidence when asking the jury to 

make a credibility assessment of a recanting witness. Commonwealth v. 

Rios, 684 A.2d 1025, 1033-1034 (Pa. 1996). This assertion fails. 

The next assertion of prosecutorial misconduct concerns a remark the 

prosecutor made during summation regarding another suspect in the case. 

During opening arguments, Appellant raised the issue as to why his brother, 

Jerome a/k/a “Fatty,” had not been charged with the same crime when he 

had also been identified as being present at the scene of the murder on the 

night in question. Appellant now contends that the assistant district 

attorney committed prosecutorial misconduct by giving his own testimony on 

matters not in evidence after he said to the jury, “Ladies and gentlemen, 

you may ask why [F]atty isn’t here. Where is Jerome? Well, if we get one 

more piece [of evidence], if we get one more piece . . . If we get one more 

piece--.” N.T., 11/22/13, at 262. 
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A prosecutor may properly respond to all defense arguments. 

Commonwealth v. Brown, 711 A.2d 444, 454 (Pa. 1998). The trial judge 

correctly found that Appellant had opened himself up to this rebuttal when 

he referred to the fact that Jerome had not been charged, essentially asking 

the jury to draw inferences from this fact. The Commonwealth did not 

commit misconduct by addressing Appellant’s inference. 

Appellant next claims that a photograph of the victim that he 

described as clearly illustrating the bullet wounds in the victim’s body 

improperly was allowed to remain projected on the large screen in front of 

the jury during the Commonwealth’s closing arguments. Appellant argues 

that the prosecutor intended to inflame the jury. In passing upon this 

assertion, the trial court concluded that this issue was waived because 

Appellant failed to either identify the photograph or explain why he 

specifically believed that the unidentified photograph was improper and 

inflammatory. We concur with the trial court’s finding that the issue is 

waived. 

Appellant’s only description of the ostensibly prejudicial exhibit is, “a 

photograph of the decedent showing bullet holes.” Appellant’s brief at 56. 

Beyond that, there is little else in Appellant’s brief, concise statement of 

errors, or the certified record, with which we can deduce which photograph 

is the basis of Appellant’s claim. Our independent review of the certified 
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record did not reveal a photograph that fit Appellant’s description or 

illustrated the victim’s bullet-riddled body. 

One exhibit, a black and white photograph marked C-17, depicts the 

upper part of the decedent’s body in an uncovered state; however, contrary 

to Appellant’s description, there are no bullet holes visible on the body. 

Similarly, there is no evidence in the photograph of spent shells or markings 

on the street to indicate the level of violence associated with the murder. 

Moreover, the Commonwealth used a computer program to sanitize Exhibit 

C-17 before introducing it into evidence. The program dulled the presence 

of any blood and redacted all of the victim’s facial features as well as any 

evidence of a gunshot wound to his head. All that remained was the benign 

contour of the victim’s facial profile. Thus, even assuming, arguendo, that 

the photograph in question was C-17, there is nothing in it which could be 

considered “inflammatory.” As Appellant failed to identify the photograph 

upon which his claim is predicated and our independent review of the notes 

of testimony and trial exhibits did not reveal a photograph that either fit 

Appellant’s description or was so viscerally graphic that it inflamed the minds 

and passions of the jury, we cannot address the merits of this claim. 

Appellant’s final argument is that the trial court abused its discretion 

when it permitted Mr. Roger’s prior written statements and transcripts of 

Appellant’s text messages, to go back with the jury during deliberation. 

Appellant argues that this evidence only favored the prosecution, and 
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thereby tainted the jury’s verdict. The pertinent law permits liberal review 

of exhibits during deliberations. “Upon retiring, the jury may take with it 

such exhibits as the trial judge deems proper. . . [but that] [d]uring 

deliberations, the jury shall not be permitted to have: (1) a transcript of any 

trial testimony; (2) a copy of any written or otherwise recorded confession 

by the defendant; (3) a copy of the information or indictment; [or] (4) . . . 

written jury instructions.” Pa.R.Crim.P. 646.1 “Whether an exhibit should be 

allowed to go out with the jury during its deliberation is within the sound 

discretion of the trial judge.” Commonwealth v. Barnett, 50 A.3d 176 

(Pa.Super. 2012). 

Before we begin our analysis, it should be noted that the jury 

specifically requested that the exhibits in question, along with the prior 

statements taken from Ms. Koba and Mr. Gamble, be sent back during their 

deliberation. Appellant objected to this request but was overruled by the 

trial court. N.T., 11/25/13, at 77-78. Appellant now contends that Mr. 

Rogers’s statements fall under the rule’s preclusion of “a transcript of any 

trial testimony,” and that, in any event, this was an abuse of discretion 

because none of the evidence which refuted these statements was sent 

back, despite the fact that the jury had never requested these other 

____________________________________________

1 On July 7, 2015, the comment to Rule 646 was revised, effective October 

1, 2015. The revisions are not relevant to our review. 
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exhibits. Id. at 78-79. However, the trial court correctly noted that 

Appellant had sufficient opportunity during cross-examination to focus the 

jury’s attention on Mr. Rogers’s retraction and that it was unnecessary for it 

to have this contradicting testimony in hand when it had not requested the 

information in the first place. Trial Court Opinion, 06/23/14, at 20-21. 

Similarly, the mere fact that these statements were read into the record 

during witness examinations, and after they had already been approved as 

evidentiary exhibits, does not grant them the precluded status of “trial 

testimony.” Commonwealth v. Parker, 104 A.3d 17 (Pa. Super. 2014) 

(Holding that the trial court did not abuse its discretion by permitting a 

witness’s prior inconsistent statement to be sent back with jury during its 

deliberation). 

Appellant makes a similar argument in regards to the record of his text 

messages, which were allowed to be sent back to the jury upon its request. 

Although he does not claim that these particular statements fall into any of 

the precluded categories in Rule 646, Appellant instead argues that this was 

unfair because the jury was not also given, sua sponte, his own testimony 

regarding his alleged meaning of the coded language in the texts as 

referring to his illegal drug business and not the victim’s murder. 

Appellant’s legal argument conveniently ignores Rule 646’s express 

preclusion of any trial testimony, including his own. Moreover, Appellant 

fails to address how the transcript of his explanation would assist the jury in 
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light of the fact that he had multiple opportunities during trial to decode the 

meaning of the text messages for the jury. Accordingly, we find that the 

trial court was well within its discretion, pursuant to Rule 646, to send to the 

jury the properly-admitted evidence which it had requested while also 

declining to send back trial testimony and other exhibits which it had not 

requested. Appellant’s claim fails. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/25/2015