J-S15023-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN BROWN,

Appellant No. 1728 EDA 2014

Appeal from the Judgment of Sentence of May 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001342-2013

BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 16, 2016

Appellant, Justin Brown, appeals from a judgment of sentence entered 

on May 15, 2014 in the Criminal Division of the Court of Common Pleas of 

Philadelphia County. We affirm.

The trial court thoroughly summarized the facts and procedural history 

of this case as follows:

Sixteen-year-old Yasin Harvey was shot and killed on May 2, 

2012 in a drive-by shooting in West Philadelphia. [Appellant] 

and co-defendant, Elijah Fleming (“Fleming”), were arrested and 

charged with his murder. From May 7-15, 2014, [Appellant] and 

Fleming were tried together before a jury.

[At trial, Police Officer Kevin Dorin was the first witness called to 

testify on behalf of the Commonwealth]. Officer Dorin stated 

that on March 27, 2012, he responded to a report of gunshots on 

the 600 block of Edgemore Road. He observed six shell casings 

on the scene, contacted Southwest Detectives, and then waited 

for them to arrive.
J-S15023-16

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Detective Vincent Parker testified next. He stated that on March 

27, 2012, he and his partner, Detective Ortiz, investigated the 

shooting on the 600 block of Edgemore Road. At the scene, he 

discovered six shell casings and two bullet projectiles. After 

speaking with two neighbors in the area, Detective Parker went 

to the hospital to speak with victim Jamal Payne (“Payne”); 

however, he was unable to be interviewed as he was undergoing 

treatment. The next day, Detective Parker met with Payne but 

Payne refused to identify the shooter. On April 26, 2012, 

Detective Parker interviewed Fleming at Southwest Detectives 

and obtained a statement from him regarding Payne’s shooting. 

Fleming told him that on March 27, 2012, he was kidnapped by 

three armed men, who forced him into a car. The three men 

beat him and stole his two cell phones and $90[.00] in cash, 

before driving him back to his home and demanding that he get 

more money for them. Fleming told Detective Parker that he 

went into his house, retrieved a firearm, and shot one of his 

abductors, later identified as Payne. Detective Parker testified 

that Fleming reviewed the written statement, initialed each 

page, and signed at the bottom.

Samir Green (“Green”) testified next. He stated that on May 2, 

2012, he was 15 years old and was spending time with his friend 

Yasin Harvey (“Harvey”). He and Harvey, along with two other 

friends, were standing outside of a store at the corner of 62nd

and Callowhill, when a dark Pontiac with tinted windows pulled 

up and someone began shooting at them. Green testified that 

he saw someone leaning out [of] the front passenger window, 

firing a gun with his arm fully extended. He described the 

shooter as “[b]rown skinned, caramel” but did not get a good 

look at the shooter’s face. Green stated that when he realized 

bullets were flying, he ran and ducked behind parked cars. After 

the Pontiac drove away, Green came out of hiding and saw 

Harvey lying in the street, trying to get up. Green ran inside a 

nearby house to hide in case the shooter returned. He testified 

that he looked out the window and saw people running to help 

Harvey so he and his friends returned outside and waited until 

Harvey was transported to the hospital. Green gave a statement 

to detectives later that same day.

Police Officer Jasmin Torres testified next for the 

Commonwealth. Officer Torres stated that on May 2, 2012, she 

and her partner, Officer Benson, heard gunshots near police 

headquarters. She then received a radio call, indicating that 
J-S15023-16

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someone had been shot near 62nd and Callowhill. When she 

arrived on the scene, she saw Harvey lying on the ground 

between two vehicles, covered in blood. Officer Torres put him 

in the backseat of her police vehicle and drove him to the 

emergency room. She remained at the hospital until Harvey was 

pronounced dead by medical personnel.

Next, Police Officer Gregory Yatcilla of the Crime Scene Unit 

testified. He stated that he responded to the report of a 

shooting at 62nd and Callowhill Streets. He took photographs of 

the scene and collected evidence, including blood samples, two 

bullets specimens and seven fired shell casings.

Police Officer John Cannon testified next as an expert in the 

identification and testing of firearms and ammunition. He stated 

that he analyzed the fired cartridge cases and two bullets 

recovered from the scene of the shooting [at 62nd and Callowhill 

Streets] and cross-checked them against ballistics evidence 

recovered from the March 27, 2012 shooting of Jamal Payne on 

Edgemore Road. He determined that the fired cartridge cases all 

came from the same firearm.

Farid Brown (“Brown”) testified next for the Commonwealth. He 

denied that he was in the area of 62nd and Callowhill Streets on 

May 2, 2012 when Yasin Harvey was shot. He also denied giving 

a statement to Homicide Detective Tracy Byard on May 10, 

2012, wherein he admitted being present at the scene of 

Harvey’s death. In this written statement, which he initialed and 

signed, Brown told detectives that he knew [Appellant] and 

Fleming “from playing basketball,” and that Fleming drove a dark 

green Pontiac Grand Prix. Brown further told detectives that on 

May 2, 2012 he was at the store on the corner of 62nd and 

Callowhill and heard gunshots.

Next, Police Sergeant Bob Wilkins testified. He stated that he 

met with [Appellant] at police headquarters on August 25, 2012 

and questioned him regarding the murder of Yasin Harvey. In 

his statement, [Appellant] told Sergeant Wilkins that Kareem 

Terry, a/k/a “Reem,” shot Harvey[. In addition, Appellant] 

relayed the following version of events: [Appellant], another 

man and Kareem were driving around in a car together, smoking 

weed and on their way to meet some girls. As they drove by the 

corner of Felton and Callowhill, the driver stopped and Kareem 

rolled down the window and started shooting from the back seat, 
J-S15023-16

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trying to hit Farid Brown before he entered the corner store. 

This was a retaliatory response to Farid Brown’s murder of 

Stephen Hamilton, [Appellant’s] best friend. When Kareem was 

done shooting, the driver of the vehicle then sped away. 

[Appellant asked,] “What the fuck is wrong with you all?” and 

then jumped out of the front passenger seat at the next red 

light. He said [he] never saw the driver or Kareem Terry again.

Sergeant Wilkins testified that [Appellant] told him he hadn’t 

come forward with this information sooner because he was 

scared and knew he had outstanding warrants on unrelated 

matters. Wilkins showed [Appellant] a photograph of Yasin 

Harvey; however, [Appellant] told him that he did not know 

Harvey and was unable to identify him from the photograph.

Gary L. Collins, M.D., Deputy Chief Medical Examiner, testified as 

an expert in forensic pathology. He testified that he examined 

Yasin Harvey’s body and determined that he died as a result of 

multiple gunshot wounds: one to his head, two to his chest, and 

one to his arm. The gunshots to the chest would have been fatal 

to Harvey even if he had not been fatally shot in the head.

Next, Police Officer Ronald Burgess testified for the 

Commonwealth. He stated that on May 9, 2012, he spotted 

Fleming driving in a dark green Pontiac vehicle with heavily 

tinted windows that matched the description of the car involved 

in Harvey’s shooting. He stopped the vehicle and discovered 

that Kareem Terry, the car’s owner, was sitting in the front 

passenger seat. Both Fleming and Terry were taken into 

custody. Burgess testified that he knew the area of 62nd and 

Callowhill very well, and knew Jamal Payne to frequent this area.

Detective Tracy Byard testified next. He stated that he executed 

a search warrant at Fleming’s house and recovered several 

pieces of mail as well as a funeral card for the services of 

Stephan C. Hamilton. Byard further testified that during the 

course of the investigation, he came into contact with 

[Appellant], and noted that [Appellant] had the numbers “six 

four” surrounded by skulls tattooed on his arms, as well as the 

word “Callowhill” tattooed across his back. Byard stated that he 

and his fellow police officers searched for [Appellant] from May 

8, 2012 until August 25, 2012, when he was finally 

apprehended.
J-S15023-16

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Kareem Terry (“Terry”) testified next for the Commonwealth. 

Terry stated that on May 2, 2012, Fleming (also known as “Lihj”) 

and [Appellant] (also known as “Dot”) picked him up at his 

home. Terry testified that Fleming was driving the car, 

[Appellant] was in the front passenger seat, and he was in the 

backseat alone. As they drove down 62nd Street, Fleming 

spotted a group of males on the corner. He circled the block and 

then pointed out the males as members of “Deuce.” [Appellant] 

began firing a gun at them. Terry testified that [Appellant] shot 

approximately six times. Fleming drove away, and turned down 

a small block between Callowhill and Vine Streets. Terry 

testified that his ears were ringing from the gunshots so he 

asked to be let out of the vehicle. He then walked back to his 

house at Callowhill and Simpson Streets. Three days later, on 

May 5, 2012, Terry was taken into police custody. He testified 

that he told the police that the car Fleming was driving was 

registered [in Terry’s name] but that it actually belonged to 

Fleming. Fleming paid for the vehicle but gave Terry a couple 

hundred dollars to put the car’s paperwork in Terry’s name 

because Fleming did not have a valid driver’s license. Terry then 

reviewed the statement he gave police on May 5, 2012. In this 

statement, he described the shooting as follows:

Like I said, it was Dot who shot at the crowd and the boy 

must have been in the crowd. I was in the back seat of the 

car when Dot lit up the crowd. The car is in my name but 

Lihj gave me some money to put the car in my name. I 

ride around with them once in a while but the car is in my 

name for the papers only. Lihj always drives that car.

The night the boy got killed I was riding with Lihj and Dot. 

Dot was in the front on the passenger side. Lihj was 

driving. Lihj drove by Sixty-Second Street and there was a 

crowd on the corner. Lihj drove by it and then went around 

the corner and started coming up on the crowd again. Lihj 

told Dot, yo, there goes them Deuce niggas right there, 

shoot them. Dot then pulled a gun from I think from under 

the seat or the side well on the door cause I seen him reach 

down. I didn’t know there was a gun in the car. I just seen 

Dot reach down, then come up with the gun and he started 

lighting up the crowd that was there.

Then Lihj drove off. I was like what the fuck. Lihj got to 

like Sixty-Third and Vine and I was yelling, yo, let me the 
J-S15023-16

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fuck out. I didn’t want no part of anything. I got out of the 

car and Lihj and Dot drove off. You see, Sixty-Fourth and 

Callowhill been going through it with anybody on Callowhill 

that is on the other side of Sixty-Third Street. I just walked 

off and went home.

The next day I was around on Sixty-Fourth and Dot and Lihj 

were talking about it and word was out one of the boys in 

the crowd that got hit died. Lihj was saying how he still had 

the gun in his car. That’s when Dot told Lihj, yo, you got to 

get rid of that gun. Lihj said he would get rid of it but I 

don’t know what he did with it.

Terry testified that Fleming was the leader of the 64[th] and 

Callowhill gang and that he “has everyone else do his dirty 

work.” He further testified that Fleming previously had been 

kidnapped by members of Deuce and that there had been a lot 

of “back and forth” after that between the two gangs. Terry 

stated that he was currently incarcerated, awaiting trial for 

attempted murder, that he had immunity with respect to his 

involvement in the murder of Yasin Harvey, but he did not have 

any deals with the Commonwealth that would benefit him in his 

ongoing attempted murder case. He stated that Fleming called 

him at home from prison several times after his arrest. A 

redacted audio recording of these phone calls was then played 

for the jury. Terry testified that during the phone conversations, 

Fleming instructed Terry not to point the finger at him and told 

him not to tell the police that Fleming initiated everything. Terry 

assured Fleming that he was not going to testify in court; 

however, he appeared at the preliminary hearing and identified 

Fleming as the driver of the vehicle.

At the conclusion of Terry’s testimony, counsel [for the parties] 

entered evidence [into the record] by way of stipulation[.] 

Counsel first stipulated to a certificate of non-licensure, stating 

that Fleming was not licensed to carry a firearm. Counsel then 

stipulated to another certificate of non-licensure, indicating that 

[Appellant] was not licensed to carry a firearm. The 

Commonwealth moved its exhibits into evidence and rested. 

Fleming’s counsel moved for a judgment of acquittal. This 

motion was denied and the defense rested. The jury found 

[Appellant] guilty of first-degree murder, criminal conspiracy, 

and carrying a firearm without a license.
J-S15023-16

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[The trial court, on May 15, 2014, sentenced Appellant to the 

mandatory sentence of life imprisonment without the possibility 

of parole. In addition, Appellant received 10 to 20 years’ 

incarceration on the conspiracy charge and 31⁄2 to 7 years’ 

imprisonment for carrying a firearm without a license. The trial 

court directed that these sentences run concurrently with 

Appellant’s term of life imprisonment. Appellant did not file 

post-sentence motions. A notice of appeal was filed on June 3, 

2014. Thereafter, on June 9, 2014, the trial court ordered 

Appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Trial counsel timely 

complied on June 30, 2014. Appellant raises the following issues 

for review: (1) whether the verdict was against the weight of 

the evidence; (2) whether the trial court erred in redacting 

Appellant’s statement to police by making it appear that he was 

“covering up” for someone; (3) whether Appellant was 

improperly prejudiced by the redaction of his co-defendant’s 

prison phone conversations; and (4) whether the prosecutor 

improperly raised issues of “witness fear and intimidation” and 

expressed his own personal opinions during closing arguments.]

Trial Court Opinion, 12/17/14, at 1-8 (last paragraph setting forth 

procedural history summarized from trial court’s opinion at 1-2).

We have carefully reviewed the certified record, the submissions of the 

parties, and the thorough opinion issued by the trial court. Based upon our 

review, we are persuaded that the trial court has adequately and accurately 

assessed each of the claims raised on appeal. We therefore concur with the 

trial court’s determinations that: (1) Appellant waived his challenge to the 

weight of the evidence and, alternatively, the claim was meritless; (2) the 

court properly redacted Appellant’s statement to police in order to protect 

his co-defendant’s Sixth Amendment rights and “the redaction did not 

destroy the narrative integrity of [Appellant’s] statement to police and did 

not prevent [Appellant] from using the statement in his defense”; (3) the 
J-S15023-16

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court’s redaction of an entire prison telephone conversation between 

co-defendant Fleming and an unknown male was necessary to protect 

Fleming’s Fifth Amendment rights and to conform the evidence to the court’s 

prior ruling that suppressed Fleming’s statement to police; and, (4) 

Appellant waived any challenge to the prosecutor’s closing argument and, in 

any event, there was no prosecutorial misconduct since the prosecutor’s 

comments regarding the credibility of certain witnesses and his references to 

witness intimidation were based on evidence appearing in the record and 

were made in response to arguments raised by defense counsel. Trial Court 

Opinion, 12/17/14, at 9-19. Since the record supports the trial court’s 

findings and since the court’s conclusions are consistent with applicable 

Pennsylvania law, we adopt the court’s assessments as our own. We direct 

the parties to include a copy of the trial court’s opinion with all future filings 

relating to the disposition of this appeal.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016
sentence should be affirmed. 

expressed his own personal opinions during closing arguments. This Court's judgment of 

and (4) whether the prosecutor improperly raised issues of "witness fear and intimidation" and 

was improperly prejudiced by the redaction of his co-defendant's prison phone conversations; 

statement by making it appear that he was "covering up" for someone; (3) whether Defendant 

was against the weight of the evidence; (2) whether the Court erred in redacting Defendant's 

to the Superior Court and raised the following issues for appellate review: (1) whether the verdict 

concurrently with his term of life imprisonment. Defendant appealed this judgment of sentence 

the conspiracy charge, and 3 ~ to 7 years state incarceration on the § 6106 charge, to run 

possibility of parole. Defendant was further sentenced to l O to 20 years state incarceration on 

a License. This Court imposed the mandatory sentence of life imprisonment without the 

Conspiracy) and one Violation of the Uniform Firearms Act§ 6106; Carrying a Firearm without 

A jury found Defendant Justin Brown guilty of Murder of the First Degree, Criminal 

BRINKLEY, J. DECEMBER 17, 2014 

OPINION 

SUPERIOR COURT 

1728 EDA 2014 

. 

C\.·1mir,t.111.\u11iY~1s \ tnil 

JUSTIN BROWN ;,:h-~tJl.;dh.:;::'.\i)/3~rici ~J1f PA 

11111 II 111111111111111 Ill 

7235576431 DEC 1 7 2014 

vs. 

CP-51-CR-0001342-2013 Comm. v. Brown, Justin 

Opinion 

COMMONWEALTH CP-51-CR-0001342-2013 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

Received 04/20/2015 Superior Court Eastern District Circulated 02/25/2016 01:44 PM
2 

neighbors in the area, Detective Parker went to the hospital to speak with victim Jamal Payne 

scene, he discovered six shell casings and two bullet projectiles. After speaking with two 

partner, Detective Ortiz, investigated the shooting on the 600 block of Edgemore Road. At the 

Detective Vincent Parker testified next. He stated that on March 27, 2012, he and his 

5/7/14, p. 90-95). 

casings on the scene, contacted Southwest Detectives, and then waited for them to arrive. (N.T. 

he responded to a report of gunshots on the 600 block of Edgemore Road. He observed six shell 

i -. .- e , 

Kevin Dorin testified first for the Commonwealth. Officer Dorin stated that on March 27, 2012, 

From May 7-15, 2014, this Court conducted a jury trial in this matter. Police Officer 

FACTS 

R.A.P. 1925(b) and defense counsel did so on June 30, 2014. 

9, 2014, this Court ordered Defendant to file a Concise Statement of Errors Pursuant to Pa. 

were filed. On June 3, 2014, Defendant filed a Notice of Appeal to the Superior Court. On June 

6106 charge, to run concurrently with his term of life imprisonment. No post sentence motions 

years state incarceration on the conspiracy charge, and 3 Y2 to 7 years state incarceration on the § 

imprisonment without the possibility of parole. Defendant was further sentenced to 10 to 20 

license. On May 15, 2014, this Court sentenced him to the mandatory sentence of life 

Defendant guilty of first degree murder, criminal conspiracy, and carrying a firearm without a 

together before a jury. Defendant was represented by Jack McMahon, Esquire. The jury found 

arrested and charged with his murder. From May 7-15, 2014, Defendant and Fleming were tried 

shooting in West Philadelphia. Defendant and co-defendant, Elijah Fleming ("Fleming"), were 

Sixteen-year-old Yasin Harvey was shot and killed on May 2, 20 I 2 in a drive-by 

PROCEDURAL HISTORY 
3 

Samir Green ("Green") testified next. He stated that on May 2, 20 I 2, he was 15 years old 

and was spending time with his friend Yasin Harvey ("Harvey"). He and Harvey, along with two 

other friends, were standing outside of a store at the corner of 62"d and Callowhill, when a dark 

Pontiac with tinted windows pulled up and someone began shooting at them. Green testified that 

he saw someone leaning out the front passenger window, firing a gun with his arm folly 

extended. He described the shooter as "[b]rown skinned, caramel" but he did not get a good look 

at the shooter's face. Green stated that when he realized bullets were flying, he ran and ducked 

behind parked cars. After the Pontiac drove away, Green came out of hiding and saw Harvey 

lying in the street, trying to get up. Green ran inside a nearby house to hide in case the shooter 

returned. He testified that he looked out the window and saw people running to help Harvey so 

he and his friends returned outside and waited until Harvey was transported to the hospital. 

Green gave a statement to detectives later that same day. Id. at 139-162. 

("Payne"); however, he was unable to be interviewed as he was undergoing treatment. The next 

day, Detective Parker met with Payne but Payne refused to identify the shooter. On April 26, 

2012, Detective Parker interviewed Fleming at Southwest Detectives and obtained a statement 

from him regarding Payne's shooting. Fleming told him that on March 27, 2012, he was 

kidnapped by three armed men, who forced him into a car. The three men beat him and stole his 

two cell phones and $90 in cash, before driving him back to his home and demanding that he get 

more money for them. Fleming told Detective Parker that he went into his house, retrieved a 

firearm, and shot one of his abductors, later identified as Payne. Detective Parker testified that 

Fleming reviewed the written statement, initialed each page, and signed at the bottom. Id. at 96- 

122. 
4 

Police Officer Jasmin Torres testified next for the Commonwealth. Officer Torres stated 

that on May 2, 2012, she and her partner, Officer Benson, heard gunshots near police 

headquarters. She then received a radio call, indicating that someone had been shot near 6211d and 

Callowhill. When she arrived on the scene, she saw Harvey lying on the ground between two 

vehicles, covered in blood. Officer Torres put him in the backseat of her police vehicle and drove 

him to the emergency room. She remained at the hospital until Harvey was pronounced dead by 

medical personnel. (N.T. 5/8/14, p. 17-20). 

Next, Police Officer Gregory Yatcilla of the Crime Scene Unit testified. He stated that he 

responded to the report of a shooting at 6211d and Callowhill Streets. He took photographs of the 

scene and collected evidence, including blood samples, two bullets specimens and seven fired 

shell casings. Id. at 24-54. 

Police Officer John Cannon testified next as an expert in the identification and testing of 

firearms and ammunition. He stated that he analyzed the fired cartridge cases and two bullets 

recovered from the scene of the shooting and cross-checked them against ballistics evidence 

recovered from the March 27, 2012 shooting of Jamal Payne on Edge more Road. He determined 

that the fired cartridge cases all came from the same firearm. Id. at 74~94. 

Farid Brown ("Brown") testified next for the Commonwealth. He denied that he was in 

the area of 62"d and Callowhill Streets on May 2, 2012 when Yasin Harvey was shot. He also 

denied giving a statement to Homicide Detective Tracy Byard on May l 0, 2012, wherein he 

admitted being present at the scene of Harvey's death. In this written statement, which he 

initialed and signed, Brown told detectives that he knew Defendant and Fleming "from playing 

basketball," and that Fleming drove a dark green Pontiac Grand Prix. Brown further told 
5 

detectives that on May 2, 2012 he was at the store on the corner of 62"d and Callowhill and heard 

gunshots. Id. at 104-116. 

Next, Police Sergeant Bob Wilkins testified. He stated that he met with Defendant at 

police headquarters on August 25, 2012 and questioned him regarding the murder of Yasin 

Harvey. In his statement, Defendant told Sergeant Wilkins that Kareem Terry, a/k/a "Reem," 

shot Harvey and relayed the following version of events: Defendant, another man and Kareem 

were driving around in a car together, smoking weed and on their way to meet some girls. As 

they drove by the corner of Felton and Callowhill, the driver stopped and Kareem rolled down 

the window and started shooting from the back seat, trying to hit Farid Brown before he entered 

the comer store. This was a retaliatory response to Farid Brown's murder of Stephan Hamilton, 

Defendant's best friend. When Kareem was done shooting, the driver of the vehicle then sped 

away. Defendant asked, "What the fuck is wrong with you all?" and then jumped out of the front 

passenger seat at the next red light: He said never saw the driver or Kareem Terry again. 

Sergeant Wilkins testified that Defendant told him he hadn't come forward with this 

information sooner because he was scared and knew he had outstanding warrants on unrelated 

matters. Wilkins showed Defendant a photograph of Yasin Harvey; however, Defendant told him 

that he did not know Harvey and was unable to identify him from the photograph. (N.T. 5/8/14, 

p. 156-191). 

Gary L. Collins, M.D., Deputy Chief Medical Examiner, testified as an expert in forensic 

pathology. He testified that he examined Yasin Harvey's body and determined that he died as a 

result of multiple gunshot wounds: one to his head, two to his chest, and one to his arm. The 

gunshots to the chest would have been fatal to Harvey even if he had not been fatally shot in the 

head. Id. at 217-225. 
6 

Detective Tracy Byard testified next. He stated that he executed a search warrant at 

Fleming's house and recovered several pieces of mail as well as a funeral card for the services of 

Stephan C. Hamilton. Byard further testified that during the course of the investigation, he came 

into contact with Defendant, and noted that Defendant had the numbers "six four" surrounded by 

skulls tattooed on his arms, as well as the word "Callowhill" tattooed across his back. Byard 

stated that he and his fellow police officers searched for Defendant from May 8, 2012 until 

August 25, 2012, when he was finally apprehended. Id. at 22-45. 

Kareem Terry ("Terry") testified next for the Commonwealth. Terry stated that on May 

2, 2012, Fleming (also known as "Lihj") and Defendant (also known as "Dot") picked him up at 

his home. Terry testified that Fleming was driving the car, Defendant was in the front passenger 

seat, and he was in the backseat alone. As they drove down 6211d Street, Fleming spotted a group 

of males on the corner. He circled the block and then pointed out the males as members of 

"Deuce." Defendant began firing a gun at them. Terry testified that Defendant shot 

approximately six times. Fleming drove away, and turned down a small block between 

Callowhill and Vine Streets. Terry testified that his ears were ringing from the gunshots so he 

asked to be let out of the vehicle. He then walked back to his house at Callowhill and Simpson 

Next, Police Officer Ronald Burgess testified for the Commonwealth. He stated that on 

May 9, 2012, he spotted Fleming driving in a dark green Pontiac vehicle with heavily tinted 

windows that matched the description of the car involved in Harvey's shooting. He stopped the 

vehicle and discovered that Kareem Terry, the car's owner, was sitting in the front passenger 

seat. Both Fleming and Terry were taken into custody. Burgess testified that he knew the area of 

6211d and Callowhill very well, and knew Jamal Payne to frequent this area. (N.T. 5/9/14, p. 13- 

17). 
7 

Fleming was the leader of the 64"d and Callowhill gang and that he "has everyone else do his 

Id. at 79"81 (from written police statement of Kareem Terry, dated 5/5/12). Terry testified that 

The next day I was around on Sixty-Fourth and Dot and Lihj were 

talking about it and word was out one of the boys in the crowd that 

got hit died. Lihj was saying how he still had the gun in his car. 

That's when Dot told Lihj, yo, you got to get rid of that gun. Lihj 

said he would get rid of it but I don't know what he did with it. 

Then Lihj drove off. I was like what the fuck. Lihj got to like 

Sixty-Third and Vine and I was yelling, yo, let me the fuck out. I 

didn't want no part of anything. I got out of the car and Lihj and 

Dot drove off. You see, Sixty-Fourth and Callowhill been going 

through it with anybody on Callowhill that is on the other side of 

Sixty-Third Street. I just walked off and went home. 

The night the boy got kiUed I was riding with Lihj and Dot. Dot 

was in the front on the passenger side.' Lihj was driving. Lihj drove 

by Sixty-Second Street and there was a crowd on the corner. Lihj 

drove by it and then went around the corner and started coming up 

on the crowd again. Lihj told Dot, yo, there goes them Deuce 

niggas right there, shoot them. Dot then pulled a gun from I think 

from under the seat or the side well on the door cause I seen him 

reach down. I didn't know there was a gun in the car. I just seen 

Dot reach down, then come up with the gun and he started lighting 

up the crowd that was there. 

Like I said, it was Dot who shot at the crowd and the boy must 

have been in the crowd. I was in the back seat of the car when Dot 

lit up the crowd. The car is in my name but Lihj gave me some 

money to put the car in my name. I ride around with them once in a 

while but the car is in my name for the papers only. Lihj always 

drives that car. 

the shooting as follows: 

Terry then reviewed the statement he gave police on May 5, 2012. In this statement, he described 

the car's paperwork his Terry's name because Fleming did not have a valid driver's license. 

belonged to Fleming. Fleming paid for the vehicle but gave Terry a couple hundred dollars to put 

he told the police that the car Fleming was driving was registered to Terry but that it actually 

Streets. Three days later, on May 5, 2012, Terry was taken into police custody. He testified that 
8 

III. WHETHER THE RECORDED PRISON PHONE CALLS WERE PROPERLY 

REDACTED. 

II. WHETHER DEFENDANT'S STATEMENTS TO POLICE WERE 

PROPERLY REDACTED. 

I. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. 

ISSUES 

first degree murder, criminal conspiracy, and carrying a firearm without a license. 

acquittal. This motion was denied and the defense rested. The jury found Defendant guilty of 

moved its exhibits into evidence and rested. Fleming's counsel moved for a judgment of 

licensure, indicating that Defendant was not licensed to carry a firearm. The Commonwealth 

Fleming was not licensed to carry a firearm. Counsel then stipulated to another certificate of nonby and between counsel. Counsel first stipulated to a certificate of non-licensure, stating that 

At the conclusion of Terry's testimony, counsel entered evidence by way of stipulation 

driver of the vehicle. Id. at 81-141. 

testify in court; however, he appeared at the preliminary hearing and identified Fleming as the 

tell the police that Fleming initiated everything. Terry assured Fleming that he was not going to 

phone conversations, Fleming instructed Terry not to point the finger at him and told him not to 

He stated that Fleming called him at home from prison several times after his arrest. A redacted 

I 

audio recording of these phone calls was then played for the jury. Terry testified that during the 

any deals with the Commonwealth that would benefit him in his ongoing attempted murder case. 

immunity with respect to his involvement in the murder of Yasin Harvey, but he did not have 

stated that he was currently incarcerated, awaiting trial for attempted murder, that he had 

Deuce and that there had been a lot of "back and forth" after that between the two gangs. Terry 

dirty work." He further testified that Fleming previously had been kidnapped by members of 
9 

weight of the evidence claim concedes that the evidence was sufficient to sustain the verdict. 

Even if the issue is not waived, the verdict was not against the weight of the evidence. A 

waived. 

sentence motions. Since Defendant failed to comply with Pa. R. Crim. P. 607, his claim is 

sentence motion. In fact, a review of the docket shows that Defendant did not file any postcounsel make a motion for a new trial. Furthermore, he failed to raise this claim in a postDefendant was sentenced that same day. At no time between verdict and sentencing did defense 

sentencing. The record shows that the jury reached its verdict of guilty on May 15, 2014 and that 

In the case at bar, Defendant did not raise this claim orally or in writing prior to 

at 753). 

evidence." Commonwealth v. Burkett, 830 A.2d 1034, 1037 (2003) (quoting Widmer, 744 A.2d 

discretion, not of the underlying question of whether the verdict is against the weight of the 

jurisdiction over a matter since "appellate review of a weight claim is a review of the exercise of 

post-sentence motion." This claim must be presented, to the trial court while it exercises 

at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a 

evidence shall be raised with the trial judge in a motion for a new trial: (I) orally, on the record, 

Criminal Procedure 607 requires that a "claim that the verdict is against the weight of the 

the evidence must be raised with the trial judge or it will be waived. Pennsylvania Rule of 

matter, Defendant has not preserved this claim for appellate review. A challenge to the weight of 

Defendant claims that the verdict was against the weight of the evidence. As a threshold 

I. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE. 

DISCUSSION 

IV. WHETHER THE PROSECUTOR'S CLOSING STATEMENT WAS 

IMPROPER. 
'10 

Commonwealth v. Smith, 2007 PA Super. 77, 853 A.2d 1020, 1028 (citing Commonwealth v. 

Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The weight of the evidence is "exclusively 

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

credibility of the witnesses." Commonwealth v. Rice, 2006 PA Super. 143, 902 A.2d 542, 546 

(2006) (quoting Commonwealth v. Champneyi 574 Pa., 435, 832 A.2d 403, 408 (2003)). An 

appellate court cannot substitute its judgment for that of the fact finder; therefore, a verdict will 

be reversed only in the extraordinary situation where the verdict is "so contrary to the evidence 

as to shock one's sense of justice" and the award of a new trial is imperative so that right may be 

given another opportunity to prevail. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 

(2003) (citing Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189 (1994)); 

Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2004) (citing Commonwealth v. 

Drumheller, 570 Pa. 117, 808 A.2d 893, 908 (2002)). 

In the case at bar, the jury properly assessed the evidence and based its guilty verdicts 

upon that evidence. The jury, as fact-finder, was free to believe all, part, or none of the evidence 

presented, and, as discussed in Tharp and Smith (.supi·a), its conclusion should not be disturbed 

unless it "shocks one's sense of justice." That is not the case here. During the trial, the jury was 

able to observe the demeanor of each witness and found the police detectives and, more 

importantly, Kareem Terry, to be credible witnesses. The jury found Defendant's version of 

events, as described in his written statement to detectives where he claimed that Terry was the 

shooter, to be incredible. 

The evidence adduced at trial established that Defendant was a member of the '1641h and 

Callowhill" gang, as demonstrated by his tattoos and close association with Fleming. The "64111 

and Callowhill" gang was involved in ongoing retaliatory conduct with a rival gang, the "6211d 
11 

Commonwealth v. Melvin, 2014 PA Super 181, --- A.3d -"-, pg. 17 (2014) ( citing 

reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant." 

consolidated for trial "is within the sole discretion of the trial court and such discretion will be 

during redaction, there was no harm to Defendant. Whether multiple defendants' cases should be 

preserve Fleming's Sixth Amendment rights. Furthermore, even if any errors were committed 

This Court properly redacted the statements of Defendant and Fleming in order to 

II. DEFENDANT'S POLICE STATEMENT WAS PROPERLY REDACTED TO 

PROTECT HIS SIXTH AMENDMENT RIGHTS AND DID NOT MAKE IT 

APPEAR TO THE JURY THAT HEW AS "COVERING UP" FOR ANYONE. 

sense of justice." Accordingly, this jury's verdict should not be disturbed on appeal. 

Pontiac. Based upon this evidence, the jury's finding of guilt cannot be said to "shock one's 

Defendant from around the neighborhood, and that he knew Fleming to drive a dark green 

when he saw a dark green Pontiac drive by and begin shooting, that he knew Fleming and 

written statement to police, he stated that he was standing on the corner of 6211d and Callowhill 

passenger seat shot at him and his friends. Farid Brown refused to testify at trial but in his 

the corner and testified that he saw a dark green Pontiac drive by and that someone in the front 

the same gun that Fleming used to shoot Jamal Payne. Samir Green was standing with Harvey on 

shot and killed. The ballistics from this shooting were analyzed and police determined that it was 

the front passenger seat. Yasin Harvey, a l o-year-old boy not associated with either group, was 

in his dark green Pontiac, pointed out members of "Deuce" and Defendant began shooting from 

that in retaliation for Deuce's actions, Fleming drove by the corner of 62nd and Callowhill Streets 

Fleming admitted to shooting Jamal Payne, one of his Deuce abductors. TeITy testified at trial 

Defendant's best friend, Stephan Hamilton, and previously had kidnapped and robbed Fleming. 

and Callowhill" gang, more simply known as "Deuce." Members of Deuce had murdered 
12 

Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa.Super. 1999)). Joint trials are favored when 

judicial economy will be served by avoiding the expensive and time-consuming duplication of 

evidence, and where the defendants are charged with conspiracy. Commonwealth v. Akbar, 2014 

PA Super 89, 91 A.3d 227, 232 (2014) (citing Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 

319, 336 (2011)). Separate trials of co-defendants should be granted only where the defenses of 

each are antagonistic to the point where such individual differences are irreconcilable and a joint 

trial would result in prejudice. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 232 (2007) 

(citing Commonwealth v. Lambe11, 529 Pa. 320, 603 A.2d 568, 573 (1992)). Just as severance is 

not required where one defendant may try to save himself at the expense of the other, neither is it 

required where one has tried to save the other at the expense of himself. Commonwealth v. 

Gribble, 580 Pa. 647, 863 A.2d 455, 462-63 (2004). 

Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has a 

right to confront witnesses against him. Akbar, 91 A.3d at 232 (citing Commonwealth v. Rivera, 

565 Pa. 289, 773 A.2d 131, 137 (2000)). A defendant is deprived of his Sixth Amendment rights 

when his non-testifying co-defendant's facially incriminating confession is introduced at their 

joint trial, even if the jury is instructed that the confession can be considered only against the 

confessing co-defendant. Id. Nevertheless, if a confession can be edited so that it retains its 

narrative integrity and yet in no way refers to the non-confessing defendant, then use of it does 

not violate the principles of the Sixth Amendment. Id. (citing Commonwealth v. Travers, 564 Pa. 

362, 768 A.2d 845, 848 (2001)). In Travers, the Pennsylvania Supreme Court held that the 

redaction of a nontestifying co-defendant's confession in a joint trial, which replaced any direct 

reference to the non-confessing co-defendant with a neutral pronoun, in this case "the other guy," 

sufficiently protected the non-confessing defendant's Sixth Amendment rights. Id. Pennsylvania 
13 

courts have further upheld the redaction of a defendant's statement to read "one of the guys" in 

order to protect a co-defendant's Sixth Amendment rights on the basis that such a redacted 

statement still allowed the defendant to provide a defense. See Commonwealth v. Garcia, 2004 

PA Super 61, 84 7 A.2d 67, 72- 73 (2004 ). 

In the case at bar, this Court properly redacted Defendant's statement to the police in 

order to protect his co-defendant Fleming's Sixth Amendment rights. Furthermore, any error in 

redacting Defendant's statement was harmless and could not have contributed to the guilty 

verdict. This Court redacted Defendant's statement to police to change any reference to Fleming 

to "the other man." Defendant argued that this redaction made it seem as though he was 

"covering" for an unnamed individual and therefore was not forthcoming with the police when 

he gave his statement. However, this redaction was necessary to preserve Fleming's Sixth 

Amendment right to confrontation as it was a facially incriminating statement of a non-testifying 

co-defendant. Furthermore, the redaction did not destroy the narrative integrity of Defendant's 

statement to police and did not prevent Defendant from using the statement in his defense. In his 

own statement to police, Defendant claimed that Kareem Terry was the shooter. This defense 

was unaffected by the redacted references to Fleming, which referred to Fleming as "the other 

man" and simply stated that "the other man" was driving the car. The jury could have assumed 

that Defendant did not know the name of the car's driver.· Since the jury ultimately concluded 

that Defendant, not Terry, was the shooter, the jurors obviously found that Defendant's statement 

as a whole was not credible. Moreover, there is nothing to indicate that changing Defendant's 

co-defendant's name to "the other man" in any way contributed to the guilty verdict. As 

discussed above in Section I, there was more than sufficient evidence implicating Defendant in 

the murder of Yasin Harvey. Accordingly, the jury's finding of guilt should be affirmed. 
14 

Defendant's proposed redaction fundamentally changed the meaning of the statement from "I 

statement to police had been suppressed by this Court. The Commonwealth further argued that 

explaining to the unknown male what he told the police in his statement, and Fleming's entire 

The Commonwealth argued that the entire statement should be redacted because Fleming was 

[Defendant], I ain't seen Dot [Defendant] in like five minutes. He ain't do shit." Id. at 152, 154. 

told the law," in order to read, 'Tm like listen, I'll keep it real with you, my man Dot 

(N.T. 5/9/2014 p. 152M53). Defendant argued that this statement should be redacted to remove "I 

I'm like listen I told the law like listen I'll keep it real with 

you my man Dot [Defendant], I ain't seen Dot [Defendant] 

in like five minutes, he ain't do shit they threw me on the 

table ... 

Fleming: 

. I. 

Male voice: I hear you. 

To clear his name dog. I swear to God the law gonna think 

Reem is the best guy cause I was trynna clear [D]ot name. 

I'm talking about real shit man . 

Fleming: 

unknown male: 

statement. While doing so, they read the following conversation between Fleming and an 

transcripts of recorded prison phone calls in order to eliminate any reference to Fleming's police 

he told police, were to be precluded at trial. At trial, this Court and counsel reviewed the 

statement to police, including in recorded phone conversations in which Fleming discussed what 

be suppressed. Consequently, this Court ruled that any references to Fleming having made a 

Fleming's statement to police was obtained in violation of his Fifth Amendment rights and must 

This Court properly redacted a phone conversation between Fleming and an unknown 

male in order to protect Fleming's Fifth Amendment rights, This Court ruled prior to trial that 

III. THE RECORDED PRISON PHONE CALLS WERE PROPERLY REDACTED 

TO PROTECT FLEMING'S FIFTH AMENDMENT RIGHTS AND DID NOT 

PREJUDICE DEFENDANT. 
15 

told the police that I haven't seen Defendant and he didn't do anything" to "I haven't seen 

Defendant and he did nothing." Id. at 153-55. In addition, the Commonwealth noted that 

Fleming in fact did tell the police in his statement that Defendant was the shooter and was lying 

to the unknown male on the phone. Id. at 163-64. Defendant argued in response that Fleming 

was not explaining what he told the police, but was stating it as a fact that he had not seen 

Defendant and that Defendant did nothing. Id. at 159. Defendant further argued that the joint 

trial with Fleming prejudiced him because, if he had a separate trial, the entire conversation 

would be admissible and the jury would have heard this allegedly exculpatory statement. Id. at 

156, 160. At the conclusion of argument by both defense counsel, this Court ruled that Fleming 

was recounting the story he had told the police and was not stating a fact. Therefore, the 

statement was covered by this Court's ruling that all references to Fleming's conversations with 

police were to be suppressed. Id. at 157-162, 168. Consequently, this Court redacted the entire 

statement. Id. at 168-69. 

This Court's redaction of the phone conversation was necessary to protect Fleming's 

Fifth Amendment right and conform with this Court's prior ruling suppressing Fleming's 

statement to police. A plain reading of the conversation between Fleming and the unknown male 

shows that Fleming was discussing what he told the polite rather than asserting a fact. As such, 

the reference had to be suppressed consistent with this Court's ruling that the co-defendant's 

statement was obtained in violation of his Fifth Amendment rights. Furthermore, Defendant's 

claim that the redaction prejudiced him, because the statement would have been admissible in a 

separate trial, was without merit. If Defendant was tried in a separate trial, and the statement 

made by his co-defendant was admissible, then not only would the jury have heard the entirety of 

the disputed line, as opposed to Defendant's proposed redaction, but also that Fleming told the 
16 

based upon evidence in the record or reasonable inferences therefrom, a prosecutor is permitted 

Even if this claim was not waived, no relief is due. While a closing argument must be 

should be deemed waived. 

objected to any statement made by the prosecutor during his closing statement. Thus, this claim 

Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 685 (2009). Here, defense counsel never 

misconduct in a timely manner; otherwise such a claim will not be available on appellate review. 

order to raise a claim of alleged prosecutorial misconduct, Defendant must object to the 

As a threshold matter, Defendant has not preserved this claim for appellate review. In 

response to arguments made in defense counsels' closing statements. 

only found two references to witness intimidation, and both of these statements were made in 

find any repeated, inappropriate references to witness fear and intimidation. In fact, this Court 

this." After careful review of the Commonwealth's closing statement, this Court was unable to 

constantly raised issues of witness fear and intimidation with absolutely no evidence to support 

Defendant argues that the "prosecutor in his closing expressed his personal opinion and 

The prosecutor did not engage in prosecutorial misconduct in his closing statements. 

IV. THE PROSECUTOR DID NOT MAKE ANY IMPROPER REMARKS 

DURING HIS CLOSING STATEMENT. 

presented at trial. Accordingly, this Court's judgment of sentence should be affirmed. 

did nothing would not have contributed to the verdict in light of the considerable evidence 

was the shooter. Whether Fleming told an unknown male that he told the police that Defendant 

was ample evidence presented at trial, including Terry's eyewitness testimony, that Defendant 

in redacting the phone conversation was harmless and did not contribute to the verdict. There 

Defendant had the jury heard the entirety of Fleming's statement to police. Moreover, any error 

police that Defendant was the shooter. As such, it would have been more prejudicial to 
17 

Furthermore, a prosecutor's comments do not constitute reversible error unless their unavoidable 

effect was to prejudice the jury, forming in their minds a fixed bias and hostility towards the 

defendant so that they could not weigh the evidence objectively and render a true verdict. Id. 

In the case at bar, there was no prosecutorial misconduct in the closing statement. In 

defense counsel's closing statement, he questioned whether Samir Green accurately could have 

recalled the shooting and claimed that Green made factual errors in his testimony. (N.T. 5/14/14, 

p. 58-59. In response, the prosecutor referred to Samir Green in his closing arguments as "about 

as credible a witness as you could possibly find" and "as credible a witness as you will ever hear 

to respond to defense evidence and engage in oratorical flair. Commonwealth v. Culver, 2012 

PA Super 172, 51 A.3d 886, 878 (2012) ( citing Commonwealth v. Basemore, 525 Pa. 512, 582 

A.2d 861, 869 (1990)). Allegedly improper remarks of a prosecutor during closing arguments 

must be viewed in the context of the closing argument as a whole. Commonwealth v. Smith, 604 

Pa. 126, 985 A.2d 886, 907 (2009) (quoting Commonwealth v. Washington, 549 Pa. 12, 700 

A.2d 400, 407-08 (1997)). Although it is improper for a prosecutor to offer his or her personal 

opinion regarding the credibility of the defendant or other witness, the prosecutor is permitted 

comment upon credibility. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citing 

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 545 (2005)). Improper bolstering or 

vouching for a government witness occurs where the prosecutor assures the jury that the witness 

is credible, and such assurance is based on either the prosecutor's personal knowledge or other 

information not contained in the record. Id. at 981, n.7 (citing Commonwealth v. Smith, 606 Pa. 

127, 995 A.2d 1143, 1157 (2010)). However, even an otherwise improper comment may be 

appropriate if it is in fair response to defense counsel's remarks. Commonwealth v. Burno, 96 

A.3d 956, 974 (Pa. Super. 2014) (quoting Commonwealth v. Elliott, 80 .2d 415, 443 (Pa. 2013). 
18 

from." Id. at 110, 112. The prosecutor further stated that Green was a credible witness because 

he unequivocally and without hesitation testified that the shooter was sitting in the front 

passenger seat. Id. at 110, 112. In making these statements, the prosecutor was not offering his 

personal opinion as to Green's credibility but was merely responding to statements made by 

defense counsel that called into question Green's testimony and credibility. 

Additionally, during his closing statement, the prosecutor made two separate references 

to Fleming intimidating Terry. Both of these statements were based upon evidence presented at 

trial and were in direct response to comments made in defense counsel's closing statements 

regarding Terry's involvement in the crime. First, the prosecutor described to the jury in his own 

words what happened when Terry and Fleming were pulled over by the police a few days after 

the murder: "He [Fleming] looks over at Kareem Terry and says don't fucking say a word, we're 

going down to Homicide." Id. at 120-21. The prosecutor was paraphrasing a recorded prison 

phone conversation between Terry and Fleming, where Fleming was upset with Terry for talking 

to the police and tells him, "Reem I fuckin told you I said before we go in there be ready for 

every trick dog I didn't tell you I said if they don't s.hbw you no paperwork that's not nothing 

that's how they do you you was at gth and Race dog that's the best homicide detectives they 

gonna trick you and say that I tried to reassure you that before we went in there dog. You 

supposed to wait till you see paperwork." (Prison Tapes of Elijah Fleming, p. 10). 

In the second instance where the prosecutor mentioned witness fear and intimation, the 

record shows that the prosecutor was putting into context a remark that Terry made to Fleming 

during a recorded prison phone call. During trial, the jury heard a recorded phone conversation 

between Fleming and Terry, in which Terry said, "I was down there on some real shit I sign off 

on that paper to get me out of the shit yeah, I wasn't like on no tip like [Fleming) did this 
19 

[Fleming] did that. Naw I like know I did this shit I was like naw." (Prison Tapes of Elijah 

Fleming, p. 14). The prosecutor told the jury, "This is about the statement. This is about ratting. 

This is about snitching. And, you know, this is their code. Remember what they say way back 

before he even calls [Terry]. Remember what it is. "If I see him, he's done." You don't snitch. 

You don't snitch when you're part of that group." Id. at 131. In his closing remarks, Defendant's 

counsel told the jury that Terry was implicating himself as the shooter when he said, "I know I 

did this shit." Hence, when the prosecutor stated in his own closing argument that Terry was 

referring to the police statement he signed when he said, "I know I did this shit," and was 

reassuring Fleming that he did not implicate him in the crime, the prosecutor was simply 

responding to remarks made by defense counsel. 

Thus, there was no prosecutorial misconduct as both of the prosecutor's remarks that 

alluded to witness fear and intimidation were in direct response to arguments made by defense 

counsel in their own closings and were based upon evidence presented at trial. Accordingly, this 

Court's judgment of sentence should be affirmed. 
20 

J. 

BY THE COURT: 

After review of the applicable statutes, case law and testimony, this Court committed no 

error. The verdict was not against the weight of the evidence. This Court properly redacted 

Defendant's statement to police by removing Fleming's name. In addition, Defendant was not 

prejudiced by the redaction of Fleming's recorded prison phone conversations to remove any 

reference to Fleming's suppressed police statement. Last, the prosecutor did not commit 

prosecutorial misconduct during his closing statement. Accordingly, this Court's judgment of 

sentence should be affirmed. 

CONCLUSION