J-S57004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JALIK PEAY

Appellant No. 495 EDA 2013

Appeal from the Judgment of Sentence September 27, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011915-2010

BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 22, 2015

Appellant, Jalik Peay, appeals from the September 27, 2012 aggregate 

judgment of sentence of 201⁄2 to 41 years’ imprisonment, imposed after a 

jury convicted Appellant of one count each of attempted murder, aggravated 

assault, carrying a firearm without a license, carrying a firearm in public in 

Philadelphia, and possession of an instrument of a crime (PIC).1 After 

careful review, we affirm.

The trial court summarized the relevant factual and procedural 

background of this case as follows.

At approximately 9:30 p.m. on March 2, 2010, 

Shikeem Alexander-Frederick got into his silver Buick 

sedan and drove to the neighborhood store to 

____________________________________________

1 18 Pa.C.S.A. §§ 901(a), 2702(a), 6106(a)(1), 6108 and 907(a), 

respectively.
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purchase cigarettes. When he arrived at this 

intersection, he encountered [Appellant] as well as 

Ashia Terry and Arron Williams, three men known for 

their affiliation to a gang called the Jungle Mob 

Soldiers (JMS).

Mr. Alexander-Frederick and [Appellant] got 

into a verbal argument, which escalated into 

[Appellant] brandishing a .357 Smith and Wesson 

revolver and emptying its chamber into Mr. 

Alexander-Frederick.

[Mr.] Alexander-Frederick was rushed to 

Einstein Medical Center in extremely critical condition 

resulting from five gunshot wounds: two to the left 

side of his back, a third to his left thigh, a fourth to 

his left hand, and a fifth wound to his left mandible. 

Doctors surgically removed bullet fragments, later 

determined to be of the .357/.38 caliber family, from 

his left lung. Additionally, Mr. Alexander-Frederick 

suffered a fractured sternum, three fractured ribs, a 

severely lacerated liver, a damaged gallbladder and 

colon, and fifty percent of his small intestine was 

removed. Doctors performed no less than twelve 

surgeries to repair the damage to his body and 

placed him in a medically-induced coma for 

approximately one month.

An investigation ensued. Two deformed 

projectiles were recovered from the intersection of 

Chew [Avenue] and Locust [Street]. This ballistic 

evidence established that these projectiles were from 

a .38 caliber revolver. A .357 Smith and Wesson 

revolver belongs to the .38 caliber family.

Detectives conducted several witness 

interviews. Mr. Jesse Jones told the police and 

testified that in the early afternoon of March 2, 2010, 

when he was outside on the 5500 block of Crowson 

Street, [Appellant] and Ashia Terry approached him 

and asked “what’s up with Keem ... when is a good 

time to get (rob) him?”
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Mr. Darnell Powell told the police and testified 

that he was waiting for the bus at the corner of Chew 

and Locust at about 9:15 p.m. or 9:30 p.m. on the 

evening of March 2, 2010. He told police that a guy 

exited a Buick, went into and exited the pizza shop, 

and upon exiting the pizzeria, starting arguing with 

another man. The men argued for a few minutes 

before one of them shot the other.

Mr. Michael Edward Woodson stated that on 

March 2, 2010, he walked past [Appellant], Ashia 

Terry, and Arron Williams on the porch at 5534 

Crowson Street “and as soon [as] I sat down in my 

homie’s living room I heard about eight shots ... 

about ten to fifteen minutes went by and [Appellant] 

came from the bottom of the block to the middle of 

the block ... where I was at. You can tell that he was 

paranoid, sweating and nervous.”

Mr. Alexander-Frederick regained 

consciousness on April 7, 2010. On that day, while 

talking to his girlfriend, Lovewanda Carter, Mr. 

Alexander-Frederick said that [Appellant] shot him. 

Ms. Carter informed Detective Knecht of this fact, 

and on April 9, 2010, the Detective came to Einstein 

Medical Center to memorialize a statement from the 

victim. During this interview, Mr. AlexanderFrederick stated, “... someone called my name then I 

heard six gunshots. I felt like I was hit everywhere. 

I fell to the ground. Before I passed out I looked 

and saw [Appellant] ... smiling at me.” Detective 

Knecht also produced an eight-person photo array 

that included [Appellant]’s photo. Mr. AlexanderFrederick immediately identified [Appellant] as the 

man who shot him.

On April 15, 2010, Philadelphia Police executed 

an arrest warrant and search warrant for 

[Appellant]’s residence located at 5518 Chew 

Avenue. In [Appellant]’s second-floor bedroom, 

police recovered a .357 Smith and Wesson revolver 

loaded with six live rounds and a loaded .25 caliber 

semiautomatic Raven Arms handgun. At trial, the 

ballistician could not testify with one hundred 
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percent scientific certainty that the bullet fragments 

recovered from Mr. Alexander-Frederick’s body were 

fired from [Appellant]’s .357 revolver.

The preliminary hearing was scheduled for 

June 17, 2010. Mr. Alexander-Frederick, who was 

released from the hospital at the end of May 2010, 

met with [the Commonwealth] a week prior to the 

hearing. During these preparations, he reaffirmed 

that he would testify, under oath, that [Appellant] 

was indeed the man who shot him on March 2, 2010.

However, [Appellant] took steps to ensure that 

Mr. Alexander-Frederick would not testify against 

him. While incarcerated, by way of letters and 

telephone conversations, [Appellant] remained in 

contact with members of the JMS and his family and 

made several references to ending Mr. AlexanderFrederick’s life.

At 5:45 p.m. on June 12, 2010, five days 

before the preliminary hearing, Mr. AlexanderFrederick was executed on the front porch of his 

home located at 500 Ashmead Street. He suffered 

approximately seven gunshot wounds and died 

almost instantly. At the time this trial commenced, 

no one, including [Appellant], was charged with the 

murder of Shikeem Alexander-Frederick.

Trial Court Opinion, 2/25/14, at 4-7 (internal citations and footnotes 

omitted). 

On October 26, 2010, the Commonwealth filed an information charging 

Appellant with the above-listed offenses, as well as one count each of 

terroristic threats, simple assault, and recklessly endangering another 
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person (REAP).2 On June 7, 2012, Appellant proceeded to a jury trial, at the 

conclusion of which, the jury found Appellant guilty of one count each of 

attempted murder, aggravated assault, carrying a firearm without a license, 

carrying a firearm in public in Philadelphia, and PIC. The terroristic threats, 

simple assault, and REAP charges were nolle prossed. On September 27, 

2012, the trial court imposed an aggregate sentence of 201⁄2 to 41 years’ 

imprisonment.3 On October 5, 2012, Appellant filed a timely post-sentence 

motion, which the trial court denied on February 1, 2013. On February 8, 

2013, Appellant filed a timely notice of appeal.4

On appeal, Appellant raises the following issues for our review.

[1.] Did the trial court improperly admit unduly 

prejudicial hearsay evidence from the 

deceased complaining witness at this jury trial, 

violating Appellant[’s] confrontation rights?

____________________________________________

2 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a) and 2705, respectively.

3 Specifically, the trial court sentenced Appellant to 18 to 36 years’ 

incarceration for attempted murder, one and one-half to three years for 

firearms not to be carried without a license, and one to two years for 

carrying firearms in public in Philadelphia. All sentences were to run 

consecutively and no further penalty was imposed on the remaining two 

charges.

4 On August 14, 2013, the trial court entered an order directing Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days. Appellant 

did not timely comply. However, on November 19, 2013, this Court granted 

Appellant’s application for a remand to the trial court to file a Rule 1925(b) 

statement within 60 days. Appellant timely complied with this Court’s order 

on December 3, 2013. The trial court filed its Rule 1925(a) opinion on 

February 25, 2014.
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[2.] Did the trial court improperly admit extensive 

and unduly prejudicial other acts evidence 

pursuant to Pennsylvania Rule of Evidence 

404(b)?

[3.] Did the [Commonwealth]’s statements during 

his closing argument unduly prejudice 

Appellant[,] ... improperly comment on 

[Appellant]’s silence, or improperly attempt to 

shift the Commonwealth’s burden?

Appellant’s Brief at 2.

Appellant’s first issue on appeal has two components; however, we 

address both parts together because they are intertwined. Appellant argues 

that the trial court erred when it admitted into evidence certain statements 

of the victim. Specifically, Appellant avers that the Commonwealth failed to 

meet its burden under both the forfeiture by wrongdoing exception to the 

rule against hearsay and the Confrontation Clause. Id. at 14, 20. We begin 

by noting our well-settled standard of review. 

The admissibility of evidence is at the discretion of 

the trial court and only a showing of an abuse of that 

discretion, and resulting prejudice, constitutes 

reversible error. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the 

result of bias, prejudice, ill-will or partiality, as 

shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides or 

misapplies the law, discretion is then abused and it is 

the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 83 
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A.3d 167 (Pa. 2013). However, the determination of “[w]hether Appellant 

was denied [his] right to confront a witness under the confrontation clause 

of the Sixth Amendment is a question of law for which our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Dyarman, 33 A.3d 104, 106 (Pa. Super. 2011) (citation omitted), affirmed, 

73 A.3d 565 (Pa. 2013), cert. denied, Dyarman v. Pennsylvania, 134 S. 

Ct. 948 (2014).

“Hearsay means a statement that ... the declarant does not make while 

testifying at the current trial or hearing; and ... a party offers in evidence to 

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). 

“Hearsay is not admissible except as provided by [the Pennsylvania Rules of 

Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or 

by statute.” Pa.R.E. 802. 

This Court has long recognized that to insure a party 

the guarantees of trustworthiness resulting from a 

declarant’s presence in court, a proponent of hearsay 

evidence must point to a reliable hearsay exception 

before such testimony will be admitted. Thus, the 

burden of production is on the proponent of the 

hearsay statement to convince the court of its 

admissibility under one of the exceptions.

Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal 

quotation marks and citations omitted).

Rule 804 contains numerous exceptions to hearsay, including the one 

at issue in this case, pertaining to forfeiture by wrongdoing. The relevant 

part of the Rule provides as follows.
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Rule 804. Exceptions to the Rule Against 

Hearsay--When the Declarant is Unavailable as 

a Witness

...

(b) The Exceptions. The following are not excluded 

by the rule against hearsay if the declarant is 

unavailable as a witness:

...

(6) Statement Offered Against a Party That 

Wrongfully Caused the Declarant’s Unavailability. A 

statement offered against a party that wrongfully 

caused--or acquiesced in wrongfully causing--the 

declarant’s unavailability as a witness, and did so 

intending that result.

Pa.R.E. 804(b)(6).

Likewise, the Sixth Amendment provides in relevant part that “[i]n all 

criminal prosecutions, the accused shall enjoy the right ... to be confronted 

with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v. 

Washington, 541 U.S. 36 (2004), the United States Supreme Court 

declared a dramatic change in Confrontation Clause doctrine.5 The Court 

held that “[t]estimonial statements of witnesses absent from trial [may be] 

admitted only where the declarant is unavailable, and only where the 

defendant has had a prior opportunity to cross-examine.” Id. at 59. 

____________________________________________

5 The Confrontation Clause of the Sixth Amendment is applicable to the 

States via the Due Process Clause of the Fourteenth Amendment. 

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citation 

omitted).
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Crawford generally divests the Confrontation Clause from state hearsay law 

and evidence rules.6 See generally Ohio v. Clark, 135 S. Ct. 2173, 2180 

(2015).

However, the United States Supreme Court has held that the 

Confrontation Clause contains an exception of forfeiture by wrongdoing. 

Giles v. California, 554 U.S. 353, 359 (2008). At common law, 

“unconfronted testimony would not be admitted without a showing that the 

defendant intended to prevent a witness from testifying.” Id. at 361 

(emphasis in original). The High Court noted that Federal Rule of Evidence 

804(b)(6) “codifies the forfeiture doctrine.” Id. at 367. Federal Rule 

804(b)(6) and Pennsylvania Rule 804(b)(6) are identical. Compare

Fed.R.E. 804(b)(6), (allowing admission of “[a] statement offered against a 

party that wrongfully caused--or acquiesced in wrongfully causing--the 

declarant’s unavailability as a witness, and did so intending that result[]”, 

with Pa.R.E. 804(b)(6) (same). Therefore, if the Commonwealth met its 

burden under Rule 804(b)(6), it will have a fortiori satisfied the exception to 

____________________________________________

6

Prior to Crawford, the controlling case in this area was Ohio v. Roberts, 

448 U.S. 56 (1980). In Roberts, the United States Supreme Court held 

that the Confrontation Clause permitted the use of hearsay testimony of an 

unavailable declarant at trial if it fell into a “firmly rooted hearsay exception” 

or if the statement bore “particularized guarantees of trustworthiness.” Id.

at 66.
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the Confrontation Clause.7 Commonwealth v. King, 959 A.2d 405, 416 

(Pa. Super. 2008). To satisfy its burden under Rule 804(b)(6), the 

Commonwealth “must establish by a preponderance of the evidence that: 

“(1) the defendant ... was involved in, or responsible for, procuring the 

unavailability of the declarant ... and (2) the defendant ... acted with the 

intent of procuring the declarant’s unavailability as an actual or potential 

witness.” Id. at 415, quoting United States v. Dhinsa, 245 F.3d 635, 653-

654 (2d Cir. 2001), cert. denied, Dhinsa v. United States, 534 U.S. 897 

(2001).

In this case, as detailed by the trial court, the Commonwealth 

presented ample evidence that Appellant was involved in procuring 

Alexander-Frederick’s unavailability, thus precluding him from testifying at 

Appellant’s trial. In its motion in limine, the Commonwealth provided 

transcribed telephone conversations from when Appellant was incarcerated 

awaiting trial. Therein, Appellant discussed with his father the witnesses 

who were going to testify against him at his upcoming trial. 

____________________________________________

7 The parties do not appear to dispute that Alexander-Frederick’s statements 

to the police at the hospital were testimonial and Appellant was not afforded 

a prior opportunity to cross-examine him. See, e.g., Hammon v. Indiana, 

547 U.S. 813, 830 (2006) (concluding that victim’s statement to police 

during interview that took place in her living room after domestic 

disturbance was testimonial for the purposes of the Confrontation Clause). 

Therefore, unless the Commonwealth met its burden under the forfeiture by 

wrongdoing exception, the Confrontation Clause would have rendered 

Alexander-Frederick’s statements inadmissible.
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Commonwealth’s Motion In Limine, 11/22/11, at 12. Appellant identified 

Alexander-Frederick by name to his father. Id. at Exhibit C-8, at 13. 

Appellant also discussed “a rat” with another caller and how the caller should 

“get someone to go up there and talk to that bull though man.” 

Commonwealth’s Motion In Limine, 11/22/11, at 14. Appellant and this 

caller also discussed how the caller reacts in “certain situations.” After 

Alexander-Frederick talked to the police, Appellant, while speaking with his 

father, discussed how Alexander-Frederick “got two sets of bullets in him.” 

Id. at 15. His father responded by saying “[h]e aint [sic] gonna testify and 

all that[.]” Id.

After careful review, we conclude Appellant is not entitled to relief. 

The Commonwealth’s recorded conversations, as highlighted above, 

demonstrate that Appellant actively discussed and threatened the person 

who was talking to the police about his case. As the Commonwealth points 

out, “[t]he physical evidence and statements from the witnesses only 

indicate the presence of one shooter and one gun in shooting Mr. AlexanderFrederick the first time.” Id. at 16. Therefore, it is logical that Appellant’s 

use of the term “two sets of bullets” more likely than not referred to an 

instruction to injure Alexander-Frederick a second time, with a second set of 

bullets. As the telephone calls also reveal, the discussions were all in the 

context of Alexander-Frederick testifying in Appellant’s case. Therefore, we 

conclude the Commonwealth did meet its burden of showing that Appellant 
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was involved in procuring Alexander-Frederick’s unavailability for the 

purpose of him not testifying in Appellant’s case. As a result, the trial court 

did not abuse its discretion in admitting Alexander-Frederick’s statement 

under Rule 804(b)(6), and Appellant’s Confrontation Clause rights were not 

violated. See Fischere, supra; Dyarman, supra.

In his second issue, Appellant avers that the trial court abused its 

discretion when it admitted evidence of certain bad acts pursuant to the res 

gestae exception under Pennsylvania Rule of Evidence 404(b). The 

Commonwealth counters that the trial court did not abuse its discretion as 

the evidence completed the history of the case for the jury. 

Commonwealth’s Brief at 13. The Commonwealth also avers that the 

evidence was admissible to show consciousness of guilt. Id.

Generally, evidence of prior bad acts or 

unrelated criminal activity is inadmissible to 

show that a defendant acted in conformity with 

those past acts or to show criminal propensity. 

Pa.R.E. 404(b)(1). However, evidence of prior 

bad acts may be admissible when offered to 

prove some other relevant fact, such as 

motive, opportunity, intent, preparation, plan, 

knowledge, identity, and absence of mistake or 

accident. [Id. at] 404(b)(2). In determining 

whether evidence of other prior bad acts is 

admissible, the trial court is obliged to balance 

the probative value of such evidence against 

its prejudicial impact. Commonwealth v. 

Powell, 598 Pa. 224, 956 A.2d 406, 419 

(2008).

[Commonwealth v. Sherwood, 982 A.2d 483, 497 

(Pa. 2009), cert. denied, Sherwood v. 

Pennsylvania, 559 U.S. 1111 (2010)]. The 
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Commonwealth must prove beyond a reasonable 

doubt that a defendant has committed the particular 

crime of which he is accused, and it may not strip 

him of the presumption of innocence by proving that 

he has committed other criminal acts. 

Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d 

631, 633 (1979); Commonwealth v. Constant,

925 A.2d 810, 821 (Pa. Super. [2006]), appeal 

denied, 594 Pa. 675, 932 A.2d 1285 (2007).

Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc), 

appeal denied, 72 A.3d 603 (Pa. 2013). Although Rule 404(b) is colloquially 

known as a rule prohibiting evidence of prior bad acts, our cases have held 

that, consistent with the text of Rule 404, its exceptions may permit the 

Commonwealth to introduce evidence of subsequent bad acts. 

Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005) (citation 

omitted), appeal dismissed, 924 A.3d 1203 (Pa. 2007). Our Supreme Court 

has long recognized a res gestae or “complete story” exception to Rule 

404(b)(1). See Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002) 

(stating, evidence of other crimes may be admissible “where [it] was part of 

the chain or sequence of events which became part of the history of the case 

and formed part of the natural development of the facts[]”) (citation 

omitted).

Our Supreme Court and this Court have recognized that a defendant’s 

subsequent bad acts directed at a witness are generally admissible under the 

res gestae exception to Rule 404(b)(1). In Commonwealth v. Flamer, 53 

A.3d 82 (Pa. Super. 2012), Flamer and his uncle were arrested for the 
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murder of the victim, Allen Moment, Jr. Id. at 84. Before Flamer’s trial, 

“the Commonwealth planned to call Abdul Taylor, who, according to the 

Commonwealth, had knowledge of the plot by [Flamer and his uncle] to kill 

Moment.” Id. at 85. Taylor was killed three months before trial. Id. The 

Commonwealth sought to introduce multiple pieces of evidence showing that 

Flamer and his uncle conspired with the gunman to kill Taylor to prevent him 

from testifying. This Court held that “evidence of a conspiracy by [Flamer 

and his uncle] to kill Taylor to prevent him from testifying at the Moment 

murder trial ... [was admissible] to show the history of the case and the 

guilty conscience of the defendants.” Id. at 86-87. This is consistent with 

the cases from our Supreme Court. See, e.g., Commonwealth v. 

Murphy, 657 A.2d 927, 932 (Pa. 1995) (stating, “[t]he facts behind the 

murder of [a witness] were so interwoven with the facts of the case [for 

which the defendant was on trial] that such evidence was properly admitted 

as res gestae[]”).

Here, the Commonwealth introduced the following evidence.

(1) [Appellant]’s affiliation with the Jungle Mob 

Soldiers; (2) Ashia Terry and Arron Williams[’] 

affiliation with the Jungle Mob Soldiers; (3) recorded 

telephone conversations [Appellant] had with his 

father and Ashia Terry while incarcerated regarding 

his case; (4) testimony from Raul West describing 

the events of June 12, 2010, the day Mr. AlexanderFrederick was murdered; (5) the identification that 

Arron Williams murdered Mr. Alexander-Frederick; 

(6) recorded telephone conversations about 

[Appellant] confronting Edward Woodson about his 

testimony; (7) [Appellant]’s hand-written letters 
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attempting to distance himself from Ashia Terry; (8) 

[Appellant]’s hand-written letter attempting to solicit 

a women’s help because she is loyal; (9) 

[Appellant]’s statement to Mr. Jesse Jones in the 

afternoon hours of March 2, 2010 asking when and 

where he can find Mr. Alexander-Frederick; and (10) 

recorded telephone conversations where [Appellant] 

admits to owning the firearms Philadelphia police 

recovered while executing a search warrant of 

[Appellant]’s home.

Trial Court Opinion, 2/25/14, at 19.

The trial court further explained its reasoning as follows.

[Appellant]’s statements to Mr. Jesse Jones 

inquiring about the victim’s whereabouts in the 

afternoon hours of March 2, 2010 is the only act the 

Commonwealth moved to introduce that happened 

prior to the crime. [Appellant] asked Mr. Jones, 

“what’s up with Keem ... when is a good time to get 

him?” This question strongly suggests that the 

shooting was not accidental; it was premeditated 

and committed with the intent to take Mr. AlexanderFrederick’s life. Thus, the requirements of Pa.R.E. 

404(b)(2) are met and this evidence is admissible. 

...

The remainder of the other bad acts the 

Commonwealth moved to admit occurred after March 

2, 2010 and were triggered by Mr. AlexanderFrederick’s signed, adopted statement to Philadelphia 

Detectives on April 9, 2010 that identified 

[Appellant] as his assailant. This identification is the 

only evidence linking [Appellant] to the shooting. 

After Mr. Alexander-Frederick identified [Appellant], 

[Appellant] was arrested and held in custody. 

[Appellant]’s incarceration proved to be his 

proverbial Achilles’ heel. Despite [Appellant]’s 

forfeiture of his right to privacy while confined, he 

maintained contact with his family and members of 

the Jungle Mob Soldiers via the prison telephones. 

As such, his conversations were recorded. Recorded 
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telephone conversations between [Appellant] and his 

father on April 17 and 19, 2010 and [Appellant] and 

his mother on April 18, 2010 strongly suggest that 

once [Appellant] learned the identity of his accuser, 

he sought revenge. Recorded telephone 

conversations between [Appellant] and [Terry] on 

April 17, 2010 and April 20, 2010 allude to the fact 

that [Appellant] solicited help from members of the 

JMS to eliminate Mr. Alexander-Frederick. Letters 

recovered from [Appellant]’s jail cell confirm 

[Appellant]’s affiliation with the JMS and his 

connections to [Terry]. [Appellant]’s efforts to 

prevent Mr. Alexander-Frederick from testifying 

against him came to fruition one week prior to the 

preliminary hearing when the witness was shot and 

killed on the front porch of his home.

...

[T]his evidence would prevent the jury from 

wondering what happened to the complaining 

witness and would prevent speculation as to why he 

was not testifying in court. The evidence admitted 

pursuant to Pa.R.E. 404(b) showed exactly where he 

went and the circumstances surrounding his death. 

... March 2, 2010 simply began this saga. Events 

that followed the shooting of Mr. Alexander-Frederick 

on March 2, 2010 were appropriately admitted to 

enable the jury to properly understand the entire 

chain of events.

Id. at 20-23 (internal quotation marks and footnotes omitted).

After careful review, we agree with the trial court’s conclusion. The 

Commonwealth’s evidence explained why the complaining witness of the 

crime for which Appellant was on trial was not present to testify. The 

victim’s death transpired as a direct result of Appellant’s arrest and trial in 

this case. Therefore, in our view, the Commonwealth’s evidence 

surrounding the victim’s ultimate demise “w[as] so interwoven with the facts 
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of the case [for which the defendant was on trial] that such evidence was 

properly admitted as res gestae.” Murphy, supra. As a result, the trial 

court did not abuse its discretion in granting the Commonwealth’s motion in 

limine. See Fischere, supra.

In his third issue, Appellant argues the trial court erred when it denied 

his motion for a mistrial following certain statements made by the 

Commonwealth in its summation. Appellant’s Brief at 39. The 

Commonwealth counters that the trial court properly denied Appellant’s 

motion, as its comments were in fair response to those made by Appellant in 

his own closing argument to the jury. Commonwealth’s Brief at 15-16. 

We begin by stating our standard of review.

It is well-settled that the review of a trial court’s 

denial of a motion for a mistrial is limited to 

determining whether the trial court abused its 

discretion. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the 

law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will ... discretion is 

abused. A trial court may grant a mistrial only 

where the incident upon which the motion is based is 

of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the 

jury from weighing and rendering a true verdict. A 

mistrial is not necessary where cautionary 

instructions are adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation 

omitted).

With specific reference to a claim of 

prosecutorial misconduct in a closing statement, it is 
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well settled that “[i]n reviewing prosecutorial 

remarks to determine their prejudicial quality, 

comments cannot be viewed in isolation but, rather, 

must be considered in the context in which they 

were made.” Commonwealth v. Sampson, 900 

A.2d 887, 890 (Pa. Super. 2006) (citation omitted)[, 

appeal denied, 907 A.2d 1102 (Pa. 2006)]. Our 

review of prosecutorial remarks and an allegation of 

prosecutorial misconduct requires us to evaluate 

whether a defendant received a fair trial, not a 

perfect trial.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009).

During its closing argument, the Commonwealth made the following 

comment to the jury. 

Ladies and gentlemen, that’s less than 24 hours after 

he got arrested. Counsel wants to play the rest of 

that recording, by all means. He believes there’s 

another connotation he could[n’t] have done it. 

There’s none. There’s nothing else that he’s talking 

about.

N.T., 6/12/12, at 54-55. Appellant argues the Commonwealth improperly 

commented on facts not in evidence because the trial court had already 

ruled that Appellant could not introduce the referenced recordings. 

Appellant’s Brief at 41. Appellant further avers that the Commonwealth 

engaged in impermissible burden-shifting. Id. at 42. As noted above, the 

Commonwealth argues that the trial court properly concluded that its 

comment was a fair response to Appellant’s own summation. 

Commonwealth’s Brief at 15-16.

This Court has explained the fair response doctrine in the following 

terms.
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While it is improper for a prosecutor to offer any 

personal opinion as to guilt of the defendant or 

credibility of the witnesses, it is entirely proper for 

the prosecutor to summarize the evidence 

presented, to offer reasonable deductions and 

inferences from the evidence, and to argue that the 

evidence establishes the defendant’s guilt. In 

addition, the prosecutor must be allowed to respond 

to defense counsel’s arguments, and any challenged 

statement must be viewed not in isolation, but in the 

context in which it was offered. The prosecutor must 

be free to present his or her arguments with logical 

force and vigor.” Within reasonable bounds, the 

prosecutor may employ oratorical flair and 

impassioned argument when commenting on the 

evidence ....

Commonwealth v. Riggle, --- A.3d ---, 2015 WL 4094427, *7 (Pa. Super. 

2015) (citation omitted).

In the case sub judice, Appellant made the following argument in his 

summation regarding the tapes in question.

It should be instructed to you as we all heard 

yesterday and we’ll talk about these prison tapes in a 

moment that [Appellant] who’s been in jail for about 

two years awaiting his trial on this case you heard 

from those two years about probably 15 minutes of 

tape and you heard the [Commonwealth] fastforward 

[sic] them through portions of those tapes picking 

out snippets that they want to try to use to convince 

you that something very cerebral was going on.

...

I think in regards even to those portions of the tape 

which the Commonwealth played they felt they were 

the most incriminating portions of those tapes they 

had all the last two years to go through that’s the 

best that they can do.

N.T., 6/12/12, at 16-17, 31.
J-S57004-15

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The trial court rejected Appellant’s arguments based on the following.

[Appellant] clearly opened the door to the 

[Commonwealth]’s comments regarding the prison 

tapes. Once the door is opened, [Appellant] cannot 

slam it shut because he does not like the animal that 

is behind it. The [Commonwealth] simply responded 

to these comments. [The Commonwealth] did not 

suggest that [Appellant] had to prove his innocence, 

and as such, [the Commonwealth’s] comments did 

not amount to burden shifting.

Trial Court Opinion, 2/25/14, at 26.

After careful review, we agree with the trial court’s conclusion. 

Appellant argued to the jury that the Commonwealth only selected certain 

portions of the prison tapes to make Appellant sound the most guilty. The 

Commonwealth was free to respond to such argument by simply 

commenting that there was more dialogue recorded than what had been 

played. As the trial court recognized, the Commonwealth’s response did not 

imply that Appellant had the burden to negate the Commonwealth’s case.

However, even if it could be reasonably interpreted to do so, we note 

the trial court instructed the jury as part of its charge that a criminal 

defendant “is not required to present evidence or to prove anything. If the 

evidence that is presented fails to meet the Commonwealth’s burden, your 

verdict must be not guilty.” N.T., 6/12/12, at 64-65. It is axiomatic that 

the jury is presumed to have followed the trial court’s instructions. 

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation 
J-S57004-15

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omitted). Based on all of these considerations, the trial court did not abuse 

its discretion in denying Appellant’s motion for a mistrial.

Based on the foregoing, we conclude all of Appellant’s issues on appeal 

are devoid of merit. Accordingly, the trial court’s September 27, 2012 

judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2015