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NON

-PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.
JAQUEL SHAMON TIRADO Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 1225 WDA 2019 Appeal from the Judgment of Sentence Entered March 23, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

-25

-CR

-0003831

-2016
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 22, 2020 Jaquel Shamon Tirado appeals from the judgment of sentence entered after a jury convicted him of First

-Degree Murder and numerous other crimes: Aggravated Assault

– Causing Bodily Injury, Aggravated Assault

– Causing Bodily Injury with a Deadly Weapon, Recklessly Endangering Another Person (“REAP”), Tampering with Physical Evidence, Possessing Instruments ofCrime (“PIC”), Conspiracy to commit Murder, Conspiracy to commit Aggravated Assault

– Causing Bodily Injury, Conspiracy to commit Aggravated Assault

– Causing Bodily Injury with a Deadly Weapon, and Persons not to Possess Firearms

. 1 

### Tirado challenges the sufficiency of the evidence. We affirm. Tirado was charged in December 2016, with offenses related to the killing of Stephen Bishop on Cottage Street in Erie. Tirado was a juvenile at

____________________________________________ 1 

### 18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), 2702(a)(4), 2705, 4910(1), 907, 903, and 6105(a)(1), respectively.

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- the time of the crime, but the charges were in criminal court

. At a jury trial, the investigating officer, Detective Christopher Janus, testified and narrated surveillance video depicting Victim and Tirado. Video from various cameras showed Tirado and two other individuals approach Victim and continue to walk with him. N.T., Day 2, 178. Tirado and one of those individuals were supporting the right pockets of their pants, as if the pockets contained firearms. Id. at 181 , 183, 1 85

-86, 190

. One of the videos showed Victim, Tirado, and the others entering Cottage Street, after which the sound of eight gunshots could be heard

. Id. at 193

-95. The video shows Tirado and another individual 18 seconds later running from the scene. Id. As they ran, their right hands supported an item in each of their right pants pockets. Id. The videos showed Tirado wearing a white t

-shirt and tan pants, and did not capture anyone else wearing tan pants and a white shirt at the time of the shooting. Id. at 198. Detective Janus testified on cross

-examination that Tirado’s cousin, Eli Tirado, was a suspect, as the police officers believed he was there at the time of the shooting. N.T., Day 3, 96. Police found Eli’s cell phones, jacket, and cigarette pack near the property where they recovered Victim’s body. Id. at 90. However, at the time of the trial, Detective Janus testified that “based on [his] investigation now, [he] would call [Eli] a victim.” Id. The officers also interviewed numerous other individuals as potential persons of interest. Id. at 88

-103

. Detective Janus stated that the people mentioned were “investigated and cleared.” Id. at 103. Detective Janus further testified that

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- the video showed one of the individuals with Tirado, Keyon Lucas, was on foot, and another, Xavier Wykoff, was on a bike. Id. at 105. Police did not charge either one in relation to the shooting. An eyewitness, Ralph Green, testified that he was sitting on his porch, which was near the scene of the shooting, and he saw two teenagers lure Victim down the street. Id. at 199

. Green said one of the teenagers was wearing a white shirt and tan or gray pants. Id. at 198. He heard gunshots, but did not see the shooting. Green said he then looked down the street and
saw Victim stagger to a porch, and the person in tan or gray pants put a gun in his pants pocket, follow the Victim to a porch, and then run from the scene. Id. at 197, 200, 202, 205

-06, 211

. Green also testified that the individual with a white shirt and tan or gray pants had braids. Id. at 200

-01. Green could not identify the face of the individual with the white shirt and tan or gray pants. Id. at 203

-05

. The officers investigating the shooting, sent photos captured from the video to other officers for assistance with identification. N.T., Day 2, at 187

- 88. Officer Justin Landfried testified that he viewed the still frame from the video and recognized Tirado from prior encounters, which included 15 to 20 face-to

-face interactions. N.T., Day 3, at 190

-91 . He was 100% confident in his identification, and previously had seen Tirado wearing a white t

-shirt and tan pants
. Id. at 192. Officer Dave Madurski testified that a couple hours after the shooting, he knocked on a door on the street where the video surveillance had last

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- captured the fleeing suspects. N.T., Day 3, at 217

-19

. He found Tirado in an upstairs bedroom, holding a baby. Id. at 219

-220. Officer Madurski testified that Tirado seemed nervous, was sweating, was wearing black shorts and no shirt, his hair was styled as a “short afro,” and the interaction was “awkward.” Id. at 221. He testified that “[i]t appeared as if the stage had been set.” Id. After obtaining a warrant, police officers searched Tirado’s residence, and discovered white t

-shirts and a pair of tan pants. Id. at 228, 232, 237. The pants were in a plastic garbage bag in Tirado’s bedroom. The bag also contained a label discarded from a new article of clothing. N.T., Day 4, at 41; N.T., Day 3, at 232

-34. Police officers recovered two types of bullets

– .9 mm bullets from Victim’s body and .32 caliber bullets at the scene. N.T., Day 2, at 149

-54, 168

. An expert in primer gunshot residue analysis and interpretation, Allison Laneve, testified that the tan pants found at Tirado’s residence bore gunshot residue. The residue was on the front of both legs of the pants, and the right pants pocket. N.T., Day 4, at 69

-71. A forensic DNA scientist, Joseph Kukosky, testified that DNA testing on material recovered from the zipper of the tan pants revealed a Y chromosome identical to Tirado’s Y chromosome. N.T., Day 4, at 30

. Kukosky stated that the material could have been from Tirado or any of Tirado’s paternal male relatives. Id. at 31. A forensic pathologist, Dr. Eric Vey, testified that the Victim died “as a result of a gunshot wound to the chest, with the entrance in the left proximal arm.” N.T., Day 2, at 119. He stated that a bullet entered Victim’s left arm

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- and wounded a number of major organs, including Victim’s left lung, brachiocephalic artery, and trachea. Id. at 122

-23. He said that a second bullet entered his right foot. Id. at 120 The jury found Tirado guilty as above, and the trial court imposed an aggregate sentence of 42 years to life in prison. Tirado filed a post

-sentence motion, which the trial court denied

. After Tirado obtained reinstatement of his appellate rights nunc pro tunc through a timely Post Conviction Relief Act petition, he filed this appeal. His issue on appeal challenges the sufficiency of the evidence: Whether the Commonwealth failed to present sufficient evidence to find [Tirado] guilty beyond a reasonable doubt of murder of the first degree, conspiracy to commit murder of the first degree, aggravated assault, conspiracy to commit aggravated assault, recklessly endangering another person, tamper with/fabricate physical evidence, possession of an instrument of crime, and possession of a firearm prohibited? Tirado’s Br. at 3. When reviewing a challenge to the sufficiency of the evidence, we “must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt.” Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en banc) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853

-854 (Pa.Super. 2011)). “Where there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a reasonable doubt,

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- the sufficiency of the evidence claim must fail.” Id. (quoting Stokes, 38 A.3d at 853). This standard applies equally where the Commonwealth’s evidence is circumstantial. Commonwealth v. Patterson , 180 A.3d 1217, 1229 (Pa.Super. 2018). Tirado first argues the Commonwealth presented insufficient evidence to support the First

-Degree Murder conviction. He maintains the Commonwealth did not prove that he was the perpetrator of the killing or that he had the specific intent to kill. He argues that the presence of gunshot residue on the pants meant only that the person wearing the pants was nearby when a firearm discharged, not that the person wearing the pants fired a gun

. He also claims that the DNA from the button and zipper from the tan pants matched Tirado’s Y chromosomal sample. He claims this could have matched his cousin, Eli Tirado, whom police also questioned. Tirado further points out that Green testified that the person with a white shirt and tan pants had braided hair, and notes that he did not have braided hair when an officer spoke with him later that day

. Tirado also highlights that Green testified that he did not see the shooter’s face and did not make an in

-court identification. Tirado further claims that the Commonwealth failed to prove he had a specific intent to kill. He argues that the bullet entered Victim’s left arm and right foot, which are not vital organs. He asserts that the evidence therefore does not support an inference of specific intent. “To sustain a conviction for first

-degree murder, the Commonwealth must prove that: (1) a human being was unlawfully killed; (2) the accused

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- was responsible for the killing; and (3) the accused acted with malice and a specific intent to kill.” Commonwealth v. Williams, 176 A.3d 298, 306

-07 (Pa.Super. 2017) (citing Commonwealth v. Ballard , 80 A.3d 380, 390 (Pa. 2013)). “A jury may infer the intent to kill ‘based on the accused’s use of a deadly weapon on a vital part of the victim’s body.’” Id. at 307 (citation omitted) (quoting Commonwealth v. Sanchez , 36 A.3d 24, 37 (Pa. 2011))

. The trial court concluded the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Tirado committed First

- Degree Murder. It noted that that the autopsy established that the Victim died from a gunshot wound to the chest. The court further pointed out that the surveillance video showed Tirado and others with the Victim immediately prior to the shooting, and depicted Tirado and another individual supporting their right pockets, as if the pockets contained guns, and an eyewitness testified that Tirado put a gun back in his pocket and fled the scene. After review of the briefs, the certified record, and the well

-reasoned opinion of the Honorable Stephanie Domitrovich, we agree that the evidence was sufficient to prove First

-Degree Murder beyond a reasonable doubt. We thus affirm based on the trial court’s opinion. Trial Court’s Opinion, filed Oct. 15, 2019, at 5

-7 (“1925(a) Op.”). We add only that Tirado’s arguments go to the weight of the evidence, and do not render it insufficient as a matter of law. The jury saw both the video and Tirado, and heard all of the testimony, and was capable of resolving any discrepancies and determining whether Tirado was, in fact, the shooter

.

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- Tirado’s challenge to the finding that Tirado had a specific intent to kill likewise fails. Although the bullet entered Victim’s left arm, it penetrated his chest, suggesting that killing Victim was the shooter’s intention all along. This, coupled with the evidence that Tirado and another individual lured Victim to the location, while appearing to carry weapons in their pockets, supports a finding that Tirado had the specific intent to kill. Tirado also claims the Commonwealth presented insufficient evidence to support the aggravated assault convictions. He argues the Commonwealth did not establish that he was the individual responsible for causing Victim’s injuries, or that the injuries arose from Tirado’s use of a deadly weapon. The two convictions for aggravated assault required the Commonwealth to prove two slightly different things. One required proof that Tirado

“attempt[ed] to cause serious bodily injury to another, or cause[d] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life,” while the other required evidence that he “attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to another with a deadly weapon,” 18 Pa.C.S.A. § 2702(a)(1), (a)(4), respectively

. A deadly weapon for this purpose includes “[a]ny firearm, whether loaded or unloaded . . . .” 18 Pa.C.S.A. § 2301. The trial court concluded the Commonwealth presented sufficient evidence to support the conviction for Aggravated Assault under Section 2702(a)(1). It reasoned the evidence proved that Tirado and another individual were carrying items in their front pants pockets, there was gunshot

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- residue on the pants recovered from Tirado’s residence, Green saw Tirado put
a gun back in his pocket, and the video showed Tirado and another individual leaving the scene. It further concluded the evidence established Tirado knowingly caused bodily injury to another with a deadly weapon, and therefore supported the conviction under Section 2502(a)(4), as Victim died from a gunshot wound. After reviewing the briefs, the certified record, and the trial court’s opinion, we agree with the trial court’s analysis and affirm on basis of its opinion. 1925(a) Op. at 10

-11, 12

-13. Tirado next claims the Commonwealth failed to establish the Conspiracy to commit Murder conviction and the Conspiracy to commit Aggravated Assault convictions. Tirado argues the Commonwealth did not prove an agreement existed between Tirado and any other individual, noting the police did not charge anyone else in connection with the crime. Tirado also claims the Commonwealth failed to prove that there was an agreement between Tirado and another individual whose intent or purpose it was to commit Aggravated Assault, or that Tirado attempted to cause serious bodily injury. “[T]o prove the existence of a criminal conspiracy, the Commonwealth must demonstrate that the defendant: ‘(1) entered an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy.’” Commonwealth v. Chambers, 188 A.3d 400, 409

-10 (Pa. 2018) (quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996)). “Proving the existence of such an agreement is not always easy, and is rarely

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- proven with direct evidence.” Id. at 410 (citing Commonwealth v. Spotz , 716 A.2d 580, 592 (Pa. 1998)). The Commonwealth may prove a conspiracy “inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co

-conspirators are competent as proof that a criminal confederation has in fact been formed.” Id. (quoting Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982)). Here, the trial court concluded the Commonwealth presented sufficient evidence to support the Conspiracy to commit Murder conviction. It reasoned that Tirado and another individual were with Victim prior to the shooting, that they lured Victim onto the street, and that Tirado and the other individual were protecting items in their right front pockets, and presented evidence that Victim was dead. After reviewing the briefs, the record, and the trial court’s opinion, we affirm based on the trial court’s opinion. 1925(a) Op. at 9

-10, 11

- 12, 13

-14
. The trial court also rejected the challenge to the convictions for Conspiracy to commit Aggravated Assault. It reasoned the evidence established that Tirado and another individual were following Victim and lured Victim to the street, and Victim was shot and killed. After reviewing the briefs, the record, and the trial court’s opinion, we affirm on the basis of the trial court’s opinion

. Id. at 11

-12. Tirado next argues the Commonwealth failed to present sufficient evidence to support the REAP conviction. He claims the Commonwealth

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- presented no evidence that he was the person responsible for causing Victim’s injuries. A person commits REAP if the person “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. ” 18 Pa.C.S.A. § 2705; see Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003). The trial court concluded the evidence was sufficient to support the REAP conviction, reasoning Victim was lured onto the street, and shot by a man wearing a white t

-shirt and gray or tan pants, and the shooting caused Victim’s death. The court concluded that the evidence also established Tirado’s identity as the perpetrator. After reviewing the briefs, record, and trial court’s opinion, we affirm based on the trial court’s opinion. 1925(a) Op. at 15. Tirado also claims the Commonwealth failed to prove he tampered with evidence. He argues the Commonwealth failed to prove he was aware he was the subject of an official investigation, and that he attempted to, or succeeded in, concealing the pants. The crime of tampering with evidence occurs when a person “believing that an official proceeding or investigation is pending or about to be instituted

. . . alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation.” 18 Pa.C.S.A. § 4910(1); see Commonwealth v. Toomer, 159 A.3d 956, 961 (Pa.Super. 2017).

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- Here, the trial court found the Commonwealth presented sufficient evidence to support the tampering with evidence conviction. It noted that there was evidence that police recovered from Tirado’s residence a bag of trash containing the pair of tan pants matching pants that Tirado was seen
w earing at the time of the crime, and that the Commonwealth presented evidence that Tirado knew, or should have known, an investigation would follow the shooting. We agree and, after reviewing the briefs, record, and trial court’s opinion, we affirm on the basis of the trial court’s opinion. 1925(a) at 16

-17. In the last two sections, Tirado claims the Commonwealth failed to present sufficient evidence to sustain the conviction for PIC and Possession of
a Firearm Prohibited. He argues both convictions fail because the Commonwealth did not present evidence he was in possession of a weapon

. The crime of PIC occurs when a person “possesses any instrument of crime with intent to employ it criminally. ” 18 Pa.C.S.A. § 907(a). The trial court found the evidence here sufficient to meet that definition because, among other evidence, Green testified he saw Tirado place a gun back into Tirado’s pocket. We agree, and, after review of the briefs, the record, and the trial court’s opinion, we affirm based on the trial court’s opinion. 1925(a) Op. at 17

-18. Tirado’s sufficiency challenge to the Persons not to Possess a Firearm conviction does not appear in Tirado’s Rule 1925(b) statement. He therefore

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- waived the claim

. See Pa.R.A.P. 1925(b)(4)(vii). In any event, even if he had preserved the claim, we would conclude it lacked merit. The statute governing Persons not to Possess a Firearm, 18 Pa.C.S.A. § 6105, provides that a person prohibited from possessing a firearm pursuant to subsection 6105(b), “within or without this Commonwealth,

. . . shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. ” 18 Pa.C.S.A. § 6105. The parties stipulated that Tirado was a minor at the time of the crime and could not lawfully possess a firearm. See 18 Pa.C.S.A. § 6110.1. Further, the Commonwealth presented evidence that Tirado possessed a firearm, including that he was supporting his pocket as though it contained a firearm, and Green saw Tirado put the firearm back in his pocket. This was sufficient to support the conviction. In sum, we conclude the Commonwealth presented sufficient evidence to support all convictions. We therefore affirm the judgment. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2020Circulated 08/27/2020 12:05 P

COMMONWEALTH OF 

### PENNSYLVANIA IN

### THE COURT OF COMMONPLEAS

: OF 

### ERIE COUNTY, PENNSYLVANIA v. JAQUEL SHAMON TIRADQ, 

### Appellant : CRIMINAL 

### DIVISION

: CR 3831 

### of2016

: 1225 

### WDA2019

Appearances: 

### Emily M. Merski, Esq., forAppellant Jaquel Shamon Tirado 

### John H. Daneri, 

### Erie County District Attorney, for Appellee Commonwealth 

### OfPennsylvania1925(a) 

### OPINION Domitrovich, J., October 15th, 2019 On July 30th, 2019, this Trial Court granted the 

### request 

### of Appellant Jaquel Shamon Tirado [hereinafter Appellant] 

### by and through his 

### counsel's "Supplement to Motion for Post- Conviction Collateral Relief" [hereinafter Supplemental PCRA], 

### with no objection by the Commonwealth, to reinstate 

### Appellant's appellate rights nunc 

### pro tunc. 

### Appellant's counsel, 

### Emily M. Merski, Esq., on appeal raises nine (9) issues as to the 

### sufficiency 

### of the evidence 

### of nine (9) 

### of his 

### ten (10) criminal convictions and also raises 

### an issue as to an allegation 

### of prosecutorial misconduct in Commonwealth's closing argument. This Trial Court provides the followingprocedural history: On 

### December 22nd, 2016, the District 

### Attorney's Office filed a Criminal Tnformation chargingAppellant and his co-conspirators with shooting and killing Stephen Bishop [hereinafter Victim] at ornear the2000 block 

### ofCottage Street in Erie, Pennsylvania. The District 

### Attorney's Office filed the 

### following criminal counts against Appellant: Criminal Homicide/Murder, in 

### violation 

### of 18 

### Pa.C.S. § 2501(a); Aggravated Assault, in 

### violation 

### of 18 Pa.C.S. § 2702(a)(1); Page 1 

### of29Aggravated Assault, in 

### violation 

### of 18 Pa.C.S. § 2702(a)(4); Recklessly Endangering Another Person, in violation 

### of 18 Pa.C.S. § 2705; Firearms not to be carried without a License, in violation 

### of 18 Pa.C.S. § 6106(a)(1); Possession 

### of Firearm by 

### a Minor, in violation 

### of 18 Pa.C.S. §6110.1(a); Tampering 

### with orFabricating 

### Physical Evidence, in violation 

### of 18 Pa.C.S. § 4910(1); Possessing Instruments 

### of Crime, in 

### violation 

### of 18 Pa.C.S. § 907(a); Criminal Conspiracy-Criminal Homicide/Murder under 18 Pa.C.S. 2501(a), in 

### violation 

### of 18 Pa.C.S. § 903; Criminal Conspiracy-Aggravated Assault 

### under 18 Pa.C.S. 2702(a)(1), in violation 

### of 18 Pa.C.S. § 903; Criminal Conspiracy-Aggravated Assault under 18 Pa.C.S. 2702(a)(4), in violation 

### of 18 Pa.C.S. § 903; and Possession 

### ofFirearms Prohibited, in 

### violation 

### of 18 Pa.C.S. § 6105(a)(1). On March 21st, 2017, Appellant, by and 

### through his prior counsel, 

### Nathaniel E. Strasser, Esq., filed 

### Appellant's Petition for Writ ofHabeas Corpus. On April 19th, 2017, 

### a hearing was held on 

### Appellant's Petition for 

### Writ 

### of Habeas Corpus at 

### which time 

### this Trial Court heard expert testimony 

### fromtoolmark examination expert Corporal Dale Weimer. This Trial Court also considered the 

### Preliminary Hearing testimony from Detective 

### Michael Hertel 

### ofthe City 

### ofErie Police from 

### November 18th, 2016. By Opinion and Order dated May 1st, 2017, this Trial Court 

### concluded the Commonwealth failed to produce sufficient evidence as to the specific barrel length 

### ofthe firearm used by Appellant to support the charges 

### ofFirearms 

### Not to be Carried Without a License (18 

### Pa.C.S. § 6106(a)(1)) and Possession 

### ofFirearms by a 

### Minor (18 Pa.C.S. § 6110.1(a)). Specifically, no testimony or evidence was 

### presented regarding a specific barrel description of the handgun, 

### nor was any testimony or evidence presented demonstrating an analysis 

### of shell casings found at the scene was

### performed to determine 

### the type 

### offirearm used.

Page 2 

### of29Thus, this Trial Court granted 

### Appellant's Petition for Writ 

### ofHabeas Corpus to the extent this Trial Court

### dismissed Counts Five and Six from his Criminal Information. After

### jury selection, a

### jury trial was held onAugust 1st, 2nd, and 3rd, 2017. On August 3rd, 2017, the

### jury returned verdicts 

### ofguilty against Appellant on all ten 

### ofthe following charges: Criminal Homicide/Murder, Criminal Conspiracy/Murder 

### ofthe First Degree, two counts 

### of Aggravated Assault, two counts 

### of Criminal 

### Conspiracy/Aggravated Assault, Recklessly Endangering Another Person, Possession 

### ofInstruments 

### ofa Crime, Tampering Evidence, and Person

### Notto 

### Possess Firearms. On 

### March 29th, 2018, 

### Appellant's counsel filed a Motion for Judgment 

### of Acquittal arid/or Motion for 

### New Trial. 

### On April 11th, 2018, argument was held on said Motions, and 

### by Order dated the same day, April 11th, 2018, this Trial Court directed both counsel forAppellant and Commonwealth to file 

### Memoranda 

### ofLaw on the 

### relevant issues 

### presented in

### Appellant's Motion. On May 1st, 2018, 

### Appellant's counsel filed 

### a Motion for Extension to File 

### Memorandum 

### of Law wherein counsel for Appellant indicated the court reporter 

### needed additional time to transcribe the relevant portions 

### ofthe

### jury trial in this matter. 

### By Order dated 

### May 

### rd, 2018, this Trial Court granted 

### Appellant's Motion for Extension to File Memorandum 

### of Law. 

### On June 4th, 2018, 

### Appellant's counsel filed 

### Appellant's Memorandum 

### of Law in Support 

### of Appellant's Post-Sentence Motion, and on June 12th, 2018, counsel for 

### Commonwealth filed a 

### Memorandum 

### of Law in 

### Opposition to 

### Appellant's Post-Sentence Motion. Before this Trial Court issued its decision on 

### Appellant's Motion, 

### Appellant's counsel provided to this Trial Court the following 

### relevant transcripts: testimony 

### of Detective Christopher Janus [hereinafter Detective Janus] from 

### August lst and 3rd, 2017, and 

### Commonwealth's closing argument from August 2nd, 2017. On July 6th, 2018, this Trial Court

Page 3 

### of29issued an Opinion and Order denying 

### Appellant's Motion for 

### Judgment 

### of Acquittal and/or 

### Motion for

### New Trial. On August 7th, 2018, 

### Appellant filed a 

### Notice 

### of Appeal to the Pennsylvania Superior Court 

### of this Trial 

### Court's Post-Sentence Order dated July 6th, 2018. This 

### Trial Court filed its 1925(b) Order on August 9th, 2018. Appellant filed his Statement 

### ofMatters Complained 

### of on Appeal on August 29th, 2018. On 

### December 14, 2018, the 

### Pennsylvania Superior Court quashed 

### Appellant's appeal for failure 

### ofdefense counsel file a timely Notice 

### ofAppeal as required by Pa.R.A.P. 902. On May 15, 2019 

### Appellant filed a 

### pro se Post-Conviction 

### Relief Act petition [hereinafter PCRA], alleging ineffective assistance

### ofcounsel for failure 

### ofAppellant's previous counsel to file a 

### timely Notice 

### ofAppeal. On May 17, 2019 

### AttorneyWillian J. Hathaway, Esq.


### was appointed as 

### "PCRA counsel." On June 17, 2019, Attorney 

### Hathaway filed 

### Appellant's "Supplement to Motion For Post-Conviction Collateral 

### Relief." As relevant to the instant appellate case and as 

### explained earlier, this Trial Court granted 

### Appellant's Supplemental PCRA


### on July 30, 2019 to the extent 

### Appellant's appellate 

### rights were 

### restored nunc 

### pro tune. 

### Appellant's new appellate counsel, Emily Merski, Esq. [hereinafter 

### Appellant's Counsel], 

### subsequently filed a 

### timelyNotice 

### ofAppeal 

### on August 9, 2019. This Trial Court issued its 1925(b) Order 

### on August 9, 2019 directing 

### Appellant's counsel to file a concise statement 

### ofmatters complainedon appeal within twenty-one (21) days 

### of said date. Upon the 

### first request 

### of Appellant's counsel for additional time to review 

### Appellant's record filed on August 27, 2019, this Trial Court granted her request to file her 

### concise statement providing an additional ten (10) days. 

### Appellant's counsel then filed a second 

### request for additional time on September 6, 2019. This Trial Court granted this second request,

Page 4 

### of29and provided an additional five (5) days for 

### Appellant's counsel to file her concise statement. 

### Appellant's counsel filed her "Concise Statement 

### ofthe 

### Matters Complained on Appeal" on September 11, 2019. 

### Appellant challenges nine (9) 

### ofhis ten (10) convictions arguing Commonwealth failed to provide sufficient evidence to convict him 

### ofthose charges. 

### A claim in which the sufficiency 

### ofthe evidence is challenged is a question 

### of law. Commonwealth v. 

### Stahl, 175 

### A.3d 301, 303 (Pa. Super. 2017) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 

### A.2d 745, 751 (2000)). Evidence is sufficient to support a verdict 

### ifit "establishes each material element 

### of the crime charged and the 

### commission

### thereofby the accused, beyond areasonable doubt." Id. 

### Ifevidence offered in support 

### ofthe 

### verdict is contradictory to the physical facts "in contravention to 

### human experience and the laws 

### ofnature," then the evidence is 

### insufficient as a 

### matter 

### oflaw. 

### Id at 303- 04. The court is required to 

### view the evidence in the light most favorable to the 

### "verdict winner" when reviewing a sufficiency

### ofthe evidence claim. Id. at 304. Circumstantial evidence alone may be sufficient to convict. Commonwealth v. Littlejohn, 250 A.2d 811, 828 (1969). 

### Circumstantial evidence is sufficient as long as the inferences arising 

### fromthis evidenceprove thefacts in question beyond areasonable doubt. Id. To sustain a 

### conviction for Murder 

### of the First Degree, the 

### jury must find beyond a reasonable doubt a victim is dead; defendant killed said

### victim; and did so 

### with specific intent to kill and 

### with malice. Commonwealth v. Bracey, 662 

### A.2d 1062, 1066 (1995). A court 

### may infer specific intent from "the use 

### ofa deadly weapon upona vital 

### part 

### ofthe 

### victim's body."Id. At 

### Appellant's trial, in the instant case, Commonwealth 

### presented evidence that when Officer Carducci arrived at the scene, Victim was "pulseless, no carotid pulse was present, 

### bleeding profusely from the mouth." (See Notes 

### ofTestimony, Jury Trial, Day 2 

### ("N.T.2.") atpg.

Page 5 

### of2938:20-24). Furthermore, Officer Carducci statedthe breaths 

### Victim was taking at the scene were not able to supporthis life. (N.T.2. atpg. 38:25-39:1). Dr. Eric Vey, a forensic pathologist for twenty-five (25) years and licensed in forensic pathology having done over four 

### thousand (4000) autopsies 

### with approximately five hundred (500) to seven hundred fifty (750) autopsies involving fatal shootings, was qualified by this Trial Court as an expert in forensic pathology. Dr. Vey provided his expert testimony as to the cause 

### ofdeath

### ofVictim, in which Dr. Vey opined and concluded Victim "died as a

### result 

### ofa gunshot wound to 

### the chest, 

### with the entrance in the left proximal arm." (N.T.2. at pg. 119:11-12). Dr. Vey further found and concluded Victim expelled blood from his mouth, and the 

### bullet wounded
a number 

### ofmajor organs such as 

### Victim's left lung, brachiocephalic artery, and trachea. (N.T.2. atpg. 122:6-123:24). Dr. Vey ultimately concluded

### Victim's "cause 

### ofdeath, technically, is from bleeding 

### to death, 

### both internally and externally 

### with a component 

### of having his lungs fill up with blood." (N.T.2 at pg. 123:12-16) Dr. Vey indicated Victim 

### drowned 

### "in his own blood at the same

### time." (Id.) Therefore, Commonwealth presented sufficient evidence to satisfy the first element 

### ofMurder 

### ofthe FirstDegree in thatVictim is dead. The second 

### element is 

### whether sufficient evidence existed to prove beyond a reasonable doubt Appellant 

### killed the victim. See Bracey at 1066. 

### While showing the video to the

### jury, Detective Janus narrated that the video from August 18, 2016 demonstrated Victim waswalking with Appellant and two other individuals prior to the 911 

### call when Victim was shot. (N.T.2. at pg. 178:15-24). 

### Detective Janus further indicated that 

### prior to the shooting, Appellant and another individual were supporting the right pocket 

### of their pants as 

### iftheir pockets contained firearms. (N.T.2. 

### at pg. 181:5-13, pg. 183:12-23, pg. 185:13-486:16). 

### Eight gunshots were 

### heard via audio recordings from the videos. (N.T.2. at pg. 194:13-195:25). 

### Appellant and another

Page 6 

### of29individual were 

### recorded running away from the scene 

### immediately after Victim was shot. (N.T.2. at pg. 194:13-195:25). 

### Appellant and another individual were running from the area 

### with their left 

### hands free 

### but with 

### their right hands supporting an item in 

### each 

### ofthe right pockets 

### of theirpants. (Id.). Ralph Green, a 

### bystander witness, stated on 

### August 18, 2016, he heard gun shots while he was sitting on 

### his porch. (See Notes 

### ofTestimony, Jury Trial, 

### Day 3 

### ("N.T.3.") at pg. 197:16- 19). Mr. Green further noted after the gunshots, he witnessed Appellant staring back at him, placing his gun back into his pants, and proceeding to run away from the scene. (Id.). Furthermore, Mr. Green stated 

### Appellant was wearing a white 

### t-shirt and tan or grey pants on 

### August 18, 2016, as 

### Appellant stared back at Mr. Green. (N.T.3. atpg. 200:18-21). Moreover, when several 

### ofthe Erie City Police searched 

### Appellant's residence following the shooting, police officers discovered white 

### t-shirts and a 

### pair 

### of tan pants. (N.T. 3. at pg. 232:13-19, 237:4-23). This evidence directly corroborated statements made by Ralph Green, a 

### bystanderwitness, describing 

### Appellant's clothing earlier on 

### August 18, 2016. (N.T.3. at 200:18- 21). 

### Appellant's pantswere 

### found in a plasticbag in 

### hisbedroom. (See.

### Notes 

### ofTestimony, Jury Trial, Day 4 

### ("N.T.4.") at pg. 41:8-20). 

### Allison Laneve [hereinafter Expert Laneve], Manager and Forensic Scientist for 

### RJ Lee Group, who has 

### testified approximately one 

### hundred five (105) 

### times as 

### an expert witness, was qualified by this Trial 

### Court as an expert witness in 

### primer gunshot residue 

### analysis and interpretation. Expert Laneve stated gunshot residue was found on 

### both 

### ofthese tan pants and white t-shirt 

### which were recovered 

### from 

### Appellant's residence. (N.T.4. at pg. 71:1-22, 74:3-75:4). Moreover, 

### Commonwealth's video evidence shown to the 

### jury indicated no 

### other individual was wearing the same clothes as 

### Appellant wore on any 

### ofthe surveillance videos 

### from August 18, 2016. (N.T.2. at pg. 198:17-25). Therefore, Commonwealth

Page 7

### of29presented sufficient evidence to satisfy the second element 

### ofMurder 

### ofthe First Degree in that Appellant killedthis Victim. For Murder 

### of the First Degree, Commonwealth must satisfy the third element in that Appellant acted with specific intent to kill and malice. See 

### Bracey at 1066. Detective 

### Janus stated Appellant and 

### another individual were withthe Victim 

### priorto the shooting, as evidenced by video from August 18, 2016. (N.T.2. at pg. 178:15-24). These individuals were protecting 

### theirright front pants 

### pockets priortothe shooting 

### ofVictim as 

### illustrated onthe video displayed to the jury. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). 

### Prior to Appellant and another


### man luring the Victim 

### down Cottage Avenue, Mr. Green noted he initially sawthe Victim onthe sidewalk 

### prior to 

### hearing gunshots. (N.T.3. at pg. 199:20-23). Furthermore as stated in Bracey, specific intent may be inferred from use 

### ofa deadly weapon to a vital area 

### ofthe 

### victim's body. Commonwealth v. Bracey, 662 A.2d 1062, 1066 (1995). Dr. Vey opined and concludedthe bullet wounded a number 

### ofmajor organs such as 

### Victim's left lung, the 

### brachiocephalic artery, and the trachea. (N.T.2. at pg. 122:6-123:24). Furthermore, Dr. Vey 

### ultimately concluded Victim died from a bullet wound thereby bleeding to death, drowning in 

### Victim's own blood. (See N.T.2. at 123:12-16). Specific intent to kill was inferred from 

### Appellant's conduct and his actions and, therefore, Commonwealth presented specific evidence to satisfy thethird element

### of Murder 

### ofthe First Degree. Contrary 

### to argument by 

### Appellant's counsel, 

### Commonwealth did meet its burden 

### of proof by sufficient evidence proving that Appellant 

### caused the death 

### of Victim as indicated above. Therefore, 

### Commonwealth presented sufficient evidence to convict 

### Appellant 

### ofMurder 

### ofthe First Degree 

### thereby satisfyingall three elements 

### ofMurder

### oftheFirst Degree.

Page 8 

### of29As to whether Commonwealth presented sufficient evidence to sustain a conviction 

### for Conspiracy to Commit Murder 

### of the First Degree under 18 Pa.C.S. §903, a conviction 

### for conspiracy requires: an unlawful 

### agreement or an agreementto do an act in 

### an unlawfulmanner, and 

### an agreement that makes each 

### member criminally responsible for the acts 

### of the other members. Commonwealth v. Tingle, 419 A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy 

### may be inferentially established 

### by showing the relation, conduct or circumstances 

### of the parties, 

### and overt acts by the 

### conspiratorshave beenheld competent to 

### prove that a corrupt confederation has in fact been formed." Id. (citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Kinsey, 249 Pa. Super. 1, 8, 375 

### A.2d 727, 730 (1977)). The Commonwealth must present evidence that the goal 

### ofthe conspiratorial agreement
was to commit first degree murder, and secondly the Appellant entered into a conspiratorial agreement. Tingle at 10. The overt act necessary to prove conspiracy 

### must be done openly to accomplish the purpose 

### of the conspiracy. Commonwealth v. Cohen, 199 A.2d 139, 154 (Pa.Super. 1964). In the instant case, 

### Commonwealth presented sufficient evidence Appellant and another individual were 

### present withVictim in the momentsprior to 

### this shooting. (N.T.2. at pg. 178:15- 24). Furthermore, 

### Commonwealth presented sufficient evidence Appellant and another individual were walking 

### while protecting an item in 

### their right front 

### pants' pockets. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Mr. Green noted 

### he initially saw Victim, prior to two
men luring Victim down Cottage Avenue. (N.T.3. at pg. 199:20-23). It is 

### uncontested Victim is dead achieving 

### the goal sought by the criminal conspiracy; 

### therefore an overt act was 

### present to sustain 

### Appellant's conviction. 

### In summary, Commonwealth presented evidence from August 18, 2016 in which 

### Appellant and another individual were 

### following Victim, carrying firearms,

Page 9 

### of29and lured Victim down Cottage Avenue moments before Victim was shot. The overt act proving conspiracy, 

### ifnot the 

### following 

### ofVictim while carrying a firearm, 

### would be luring Victimdown Cottage Avenue immediately before Appellant and another individual shot Victim. Therefore, Commonwealthpresented sufficient evidence to sustain 

### Appellant's conviction 

### ofConspiracy to Commit Murder

### ofthe 

### First Degree 

### under 18 Pa.C.S. §903(a)12501(a). As to 

### whether Commonwealth presented sufficient evidence to sustain a conviction for Aggravated Assault

### under 18 Pa.C.S. §2702(a)(1), a

### person is guilty 

### ofAggravated assault

### ifhe "attempts to cause serious bodily 

### injury to another, or causes such injury intentionally, knowingly or recklessly 

### under circumstances manifesting extreme indifference to the value 

### of human life." Commonwealth v. Bullock, 170 A.3d 1109, 1119 (Pa.Super. 2017). In order to convict Appellant 

### of this charge, Commonwealth must have presented sufficient evidence that Appellant caused serious bodily harmto Victim and 

### Appellant acted intentionally,knowingly, or recklessly under 

### circumstancesmanifesting extremeindifferenceto

### the value 

### ofhuman life. Appellant possessed a firearm capable 

### of causing 

### bodily harm, based on statements by DetectiveJanus that demonstrate Appellant and another individual were protecting items in their right front 

### pants' pockets, and Expert 

### Laneve's opinion 

### that gunshotresidue was found onboth Appellant's pants as 

### well as inside the pocket 

### of these same pants. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16; N.T.4. at pg. 74:3-75:4). Mr. Green stated after watching Victim being lured back down Cottage Avenue, Mr. Green heard gun shots. (N.T.3. at pg. 199:20-23; N.T. 3, pg. 197:16-19). Mr. Green then witnessed Appellant placing his gun back into his pants. N.T.3. at pg. 197:16-19). Video evidence depicted to the 

### jury that Appellant and another individual ran from the location 

### ofthe shooting. (N.T.2. at pg. 194:13-195:25).

Page 10 

### of29In the instant case, elements 

### of aggravated assault are satisfied since Appellant lured Victim down Cottage Avenue intending to cause serious 

### bodily harm to Victim by way 

### of a firearm. 

### Commonwealth's evidence clearly showed 

### Appellant acted intentionally by shooting Victim, knowing the goal 

### Appellant achieved would be death or serious 

### bodily harm to Victim. The death 

### of Victim constituted obvious serious bodily injury. Therefore, Commonwealth presented sufficient evidence to convict Appellant 

### of Aggravated assault under 18 Pa.C.S. §2702(a)(1). As to whether Commonwealth presented sufficient evidence to sustain a conviction for 

### Conspiracy to Commit Aggravated Assault under 18 Pa.C.S. §903, a conviction for conspiracy requires: 

### an unlawful agreement or an agreement to do an act in an unlawful manner, and an agreement that makes each member criminally responsible for the acts 

### ofthe other members. Commonwealth v. Tingle, 419 

### A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy may be inferentially established by showing the relation, conduct or circumstances 

### ofthe 

### parties, and overt acts by the conspirators have been 

### held competent to prove that 

### a corrupt confederation has in fact been formed." Id. (citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 

### A.2d 867 (1976); Commonwealth v. Kinsey, 249 Pa. Super. 1, 8, 375 A.2d 727, 730 (1977)). In the instant case, Commonwealth was required to prove a 

### combination 

### oftwo 

### or more 

### persons existed, 

### with criminal motive or criminal intent, 

### to do a criminal or unlawful act or a legal act by criminal or unlawful means. Commonwealth v. Petrosky, 166 A.2d 682, 688 (Pa.Super. 1960). The overt act necessary to prove 

### conspiracy must be done openly to accomplish the 

### purpose 

### of the conspiracy. Commonwealth v. Cohen, 199 

### A.2d 139, 154 (Pa.Super. 1964).

Page 11 

### of29Commonwealth presented sufficient evidence Appellant and 

### another individual were following 

### Victim on August 18, 2016 prior to the shooting. (N.T.2. at pg. 178:15-24). Furthermore, 

### Commonwealth presented sufficient evidence 

### Appellant and another individual
were walking as 

### portrayed on the surveillance video protecting firearm in 

### theirright front 

### pants' pockets as testified to by Detective Janus. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Expert Laneve noted gunshot residue (GSR) was found on 

### Appellant's clothing items recovered from the location 

### Appellant resided. (N.T.4. at pg.71:1-22, 74:3-75:4). Presence 

### ofAppellant and 

### another individual 

### prior to the death 

### ofVictim on August 18, 2016 demonstrated the agreement between the 

### parties to engage in conspiratorial acts. Furthermore, 

### bystander witness testimony from Mr. Green that 

### Appellant and another man lured 

### Victim down Cottage Street sufficiently demonstrated Appellant and another man were engaged in the criminal act resulting 

### in the 

### death 

### ofVictim. (N.T.3. at pg. 199:20-23). Victim, as a result 

### ofbeing luredby 

### Appellant and the 

### otherman down Cottage Avenue, is 

### now deceased achieving 

### Appellant's criminal goal. Therefore, Commonwealth presented sufficient evidence to convict Appellant

### ofConspiracy to 

### Commit AggravatedAssault under 18 Pa.C.S. §903(a)/2702(a)(1). As to whether Commonwealth presented sufficient evidence to sustain a conviction for Aggravated Assault under 18 Pa.C.S. §2702(a)(4), 

### Commonwealth must have 

### proven "attempt[] to cause or 

### intentionally or knowingly cause[] bodily injury to 

### another with a 

### deadly weapon." 18 Pa.C.S. §2702(a)(4). 

### A deadly weapon is defined as 

### "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable 

### ofproducing death or serious bodily injury, or any other device or instrumentality which

. . . is calculated or likely to 

### produce death or serious bodily 

### injury." 18 Pa.C.S. §2301. To convict Appellant 

### of this crime, Commonwealth must have 

### presented sufficient evidence for the

### jury to find 

### Appellant caused bodily injury to

Page 12

### of29another, acting 

### intentionally or knowingly to achieve such aresult, and 

### caused such an injury or harm with a deadly 

### weapon. Shooting a 

### person with a gun will cause serious bodily injury 

### or death and Victim is 

### now deceased as 

### aresult 

### ofgunshot wounds sustained on August 18, 2016. 

### Commonwealth presented sufficient evidence to 

### prove Appellant possessed a gun, a 

### deadly weapon, on August 18, 2016, and knew and intended to cause serious bodily harm to Victim. Contrary to 

### Appellant's argument, Commonwealth 

### presented sufficient GSR evidence which was found from 

### Appellant's clothing recovered at 

### Appellant's residence. (N.T.4. at pg.71:1-22, 74:3-75:4). 

### Both Appellant's tan pants recovered, and 

### Appellant's right front

### pants' pocket tested positive for GSR as shown by expert evidence and testimony. (Id.) Furthermore, gun shots were heard in the area where Victim was shot. (N.T.3. atpg. 197:16-19). Evidence also demonstrated Appellant clutched his right front pocket as 

### ifAppellant were supporting a 

### firearm in that pocket. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Therefore, sufficient evidence existed for this 

### jury to 

### convict Appellant 

### of Aggravated Assault under 18 Pa.C.S. §2702(a)(4). As to whether Commonwealth presented sufficient evidence to prove Appellant was guilty 

### of Conspiracy to 

### Commit Aggravated Assault under 18 Pa.C.S. §903, 

### an unlawful agreement or an agreement to do 

### an act in an unlawful 

### manner must exist, and the 

### agreement makes each 

### member criminally responsible for the acts 

### ofthe 

### other members. Commonwealth v. Tingle, 419 A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy may 

### be inferentially established by showing the relation, conduct or circumstances 

### ofthe parties, and overt acts by the conspirators have been held competent to prove that a corrupt 

### confederation has in fact been formed." Id.

Page 13

### of29(citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Kinsey, 249 Pa. Super. 1, 8, 375 A.2d 727, 730 (1977)). In the instant case, 

### Commonwealth was required to prove a 

### combination 

### oftwo or more persons existed, with criminal motive or criminal intent, to do a criminal or unlawful act or a legal act by criminal 

### or unlawful means. Commonwealth v. 

### Petrosky, 166 A.2d 682, 688 (Pa.Super. 1960). The overt act 

### necessary to prove conspiracy must be 

### done openly to accomplish the purpose 

### of the conspiracy. Commonwealth v. Cohen, 199 A.2d 139, 154 (Pa.Super. 1964). Commonwealth 

### presented sufficient evidence 

### Appellant and another individual were following Victim on 

### August 18, 2016 prior to the shooting. (N.T.2. at pg. 178:15-24). Furthermore, Commonwealth 

### presented the surveillance videos shown to the

### jury that Appellant andanother individual when walking, protected items 

### presumed to be firearms 

### intheir right front pants pockets. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Expert Laneve stated gunshot residue (GSR) was found on 

### Appellant's clothing items recovered from the location Appellant resided. (N.T.4. at

### pg.71:1-22, 74:3-75:4). Furthermore, video surveillance illustratedAppellant and 

### another individual immediately 

### prior to the 

### death 

### ofVictim on 

### August 18, 2016 demonstrated the agreement between Appellant and another individual to engage in conspiratorial acts. 

### Bystander witness statements from Mr. Green demonstrated 

### Appellant and another man lured Victim 

### down Cottage Street and were sufficient to show 

### Appellant and another man were engaged in the criminal act resulting in the 

### death 

### ofVictim. (N.T.3. at pg. 199:20-23). Victim, as a 

### result 

### offollowing Appellant and another
man down Cottage Avenue, is 

### now deceased achieving Appellant and the other 

### man's criminal result. Therefore, 

### Commonwealth satisfied proving elements 

### of conspiracy and provided

Page 14 

### of29sufficient evidence to convict Appellant 

### ofConspiracy to Commit 

### Aggravated Assault under 18 Pa.C.S. §903/2702(a)(4). As to whether Commonwealth presented sufficient evidence to convict Appellant 

### of Recklessly Endangering Another Person (REAP) 

### under 18 Pa.C.S. 2705, 

### "[a] person commits a misdemeanor

### ofthe second degree 

### ifhe recklessly engages in conduct 

### whichplaces 

### or mayplace another person in 

### danger 

### of death or serious bodily injury." 18 Pa.C.S. §2705. To convict Appellant 

### of REAP, 

### Commonwealth must present sufficient evidence to prove 

### Appellant's conduct was reckless, causation, and a particular result must be reached. Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003). Commonwealth 

### presented sufficient evidence through 

### Ralph Green who saw Victim being called back down Cottage Avenue on August 18, 2016. (N.T.3. at pg. 199:20-23, pg. 201:11-25). Furthermore, Mr. Green stated he heard a series 

### ofgun shots and saw Victim who had been shot. (N.T.3. at pg. 197:16-24). Mr. Green also stated he saw a man wearing a white t- shirt and 

### tan or grey 

### pants place a gun into his pocket and run away. (N.T.3. at pg. 197:16-19, 198:14-18). Victim 

### subsequently died from his wounds, achieving the goal sought by Appellant. 

### "But for" 

### Appellant's actions 

### ofluringVictim backdown Cottage Street to be subsequently shot by Appellant, Victim 

### would not have been seriously harmed and placed in danger 

### of death. 

### Appellant's actions on 

### August 18, 2016 directly 

### placed Victim in danger 

### of death or serious 

### bodily injury. 

### Therefore, Commonwealth presented sufficient evidence to prove Appellant 

### placed Victim in a 

### dangerous situation resulting in 

### serious bodily injury or death. 

### Commonwealth sufficientlypresented evidence to support the

### jury's finding 

### ofAppellant's guilt
asto 

### RecklesslyEndangering Another Person under 18 Pa.C.S. §2705.

Page 15 

### of29As to whether Commonwealth presented sufficient evidence to convict Appellant 

### of Tampering With or 

### Fabricating Physical Evidence 

### under 18 Pa.C.S. §4910(1), "[al 

### person commits 

### a misdemeanor 

### of the second degree if, believing that an official proceeding 

### or investigation is pending 

### or about to be instituted, he alters, destroys, conceals or removes any record, document or thing with 

### intent to impair its verity or availability in such proceeding or investigation." 18 Pa.C.S. §4910(1). Commonwealth must have proven Appellant knew an official inquiry into the crime was 

### pending or going to be instituted; 

### Appellant concealed 

### or altered the item in question; and 

### Appellant intended the 

### concealed item be impaired as to its verity or availability for use in the proceeding or investigation. Commonwealth v. Toomer, 159 A.3d 956, 961 (Pa.Super. 2017). In the instant case, sufficient evidence was 

### presented to the

### jury that a 

### pair 

### oftan

### pants
were found in a garbage bag upon searching the bedroom 

### of where 

### Appellant was residing. (N.T.3. at pg. 232:11-19). Furthermore, other items in 

### Appellant's gray 

### trash bag were soiled baby diapers, balled up tissues, four potato chip bags, and a label 

### discarded from a new article 

### of clothing. (N.T.3. at pg. 233:22-234:4). These items were in 

### Appellant's gray 

### trash bag and, therefore, no longer 

### desired by Appellant. (Id.). 

### Appellant's pants discovered in this bag were subsequently tested by an expert qualified inprimer gunshot residue analysis and interpretation, Expert Laneve, as to whether gunshot residue was present. 

### Expert Laneve opined and concluded both the 

### pants and the 

### right front 

### pocket 

### of these pants tested 

### positive for gunshot residue. (N.T.4, at 

### pg.71:1-22, 74:3-75:4). Mr. Green stated he saw a 

### person wearing a white t-shirt and 

### tan or grey pants place a firearm into his right front pocket on 

### August 18, 2016. (N.T.3. at pg. 197:16-19; 198:14-18). Commonwealth is entitled to inferences that the reason the pants were

Page 16 

### of29amongst other trash was because this item was intended to be disposed 

### of after Appellant committed this crime. Commonwealth presented sufficient evidence 

### Appellant knew or should have known an investigation would follow the shooting death 

### of Victim, 

### Appellant, with knowledge 

### of the forthcoming investigation, intentionally placed these tan 

### pants among other discarded items in that trash bag in an attempt to hide evidence 

### of the shooting 

### ofVictim on 

### August 18, 2016. Therefore, as 

### Appellant intended to conceal this item in 

### response to the pending investigation involving the death 

### of Victim, Commonwealth satisfied all elements for this crime and sufficiently presented 

### evidence to convict Appellant 

### ofTampering With or Fabricating Physical Evidence under 18 Pa.C.S. §4910(1). As to 

### whether Commonwealth presented sufficient evidence to convict Appellant 

### of Possession 

### of an 

### Instrument 

### of Crime under 18 Pa.C.S. §907(a), "[a] 

### person commits a misdemeanor 

### ofthe 

### first degree 

### ifhe possesses any instrument 

### ofcrime 

### with intent to employ it 

### criminally." 18 Pa.C.S. §907(a). 

### A conviction for 

### this crime will be 

### upheld 

### ifCommonwealth 

### proves "a 

### defendant possessed an instrument that is 

### commonly used for criminal purposes,under circumstancesnot 

### manifestly appropriate for lawful use, 

### with the intent to employ it criminally." Commonwealth v. Foster, 651 A.2d 163, 165 (Pa.Super. 1994). An instrument 

### of a crime is defined as "anything specially made

. . . or adapted for criminal 

### use," or "anything commonly used for criminal 

### purposes and 

### possessed 

### by the actor under circumstances not manifestly appropriate for 

### lawful uses it may have." Commonwealth v. Eddowes, 580 A.2d 769, 774 (Pa.Super. 1990). In the 

### instant case, Commonwealth presented sufficient evidence to the 

### jury that Mr. Green, a bystander, saw Appellant place a gun into his pants pocket after Mr. Green heard

Page 17 

### of29gunshots. (N.T.3. at pg. 197:16-19, 198:14-18). Mr. Green identified Appellant as the 

### person wearing clothing identical to the clothing 

### found at 

### Appellant's residence. (Id.; See 

### alsoN.T.3. at pg. 232:13-19, 237:4-23). Furthermore, 

### the discarded pants 

### recovered from 

### Appellant's residence contained 

### gunshot residue on 

### both the pants and inside the 

### right frontpocket. (N.T.4. at pg. 71:1-22, 74:3-75:4). A gun, which is clearly an instrument 

### of crime, was not used for a lawful purpose in

### the killing 

### ofVictim. Therefore, Commonwealth 

### presented sufficient evidence to 

### the jury to convict Appellant 

### of Possession 

### of an Instrument 

### of Crime under 18 Pa.C.S. §907(a). With respect 

### to 

### Appellant's nine (9) challenges to nine (9) 

### ofhis 

### ten (10) convictions, Commonwealth 

### presented sufficientevidencefor the

### jury to find 

### Appellant guilty on the nine (9) counts, and this Trial Court requests 

### the Pennsylvania Superior Court affirm the

### jury verdicts and this Trial Court for

### reasons as set 

### forth above in this Opinion. 

### Appellant's counsel also alleges Commonwealth conducted prosecutorial misconduct in its closing argument. 

### The case law in Pennsylvania regarding prosecutorial misconduct "is well settled [in] that a 

### prosecutor has considerable latitude during closing arguments and his arguments are fair 

### ifthey are supported by the evidence or use inferences that can reasonably be derived from 

### the evidence." Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008). Prosecutorial misconduct occurs 

### only where the "unavoidable effect 

### ofthe comments at issue
was 

### to prejudice the 

### jurors by forming in their minds a 

### fixed bias and 

### hostility toward the defendant, thus impeding 

### their ability to weigh 

### the evidence objectively and render a true verdict." 

### Id Therefore, 

### "an allegation 

### of prosecutorial misconduct requires [trial courts] to evaluate 

### whether a 

### defendant received a 

### fair trial, not a perfect trial." Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009). In determining 

### whether a 

### prosecutor engaged in

Page 18 

### of29impermissible conduct during closing argument, Pennsylvania follows Section 5.8 

### of the American Bar Association (ABA) Standards provides the following standards: (a) The 

### prosecutor may argue all reasonable inferences from evidence in the record. It is 

### unprofessional conduct for the 

### prosecutor intentionally to misstate the evidence 

### ormislead the

### juryas to the inferences 

### it may draw. (b) It is 

### unprofessional conduct for theprosecutor to express his 

### personal 

### beliefor opinion as to the truth or falsity 

### ofany testimony or evidence or the guilt 

### ofthe defendant. (c) The

### prosecutor should notuse arguments calculated to inflame the 

### passions or prejudices 

### ofthe

### jury. (d) The 

### prosecutor should refrain from argument which would divert the 

### jury from its duty to decide the case on the evidence, by injecting issues 

### broader than the guilt 

### or innocence 

### of the accused under the controlling law, 

### or by making predictions

### ofthe consequences 

### ofthe

### jury'sverdict. Judy, 978 A.2d at 1019-20. Moreover, the prosecutor may use visual aids 

### "to assist the 

### jury in understanding the evidence in appropriate cases, and permission to do so is within the sound discretion 

### ofthe trial 

### judge." Commonwealth v. Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997) (quoting Commonwealth v. 

### Pelzer, 612 A.2d 407, 412 (Pa. 1992)). Significantly, this rule "applies equally to demonstrative aids used during the actual trial 

### phase and 

### during the 

### parties' opening and closing arguments." Id.; see 

### also Pa.R.E. 1006 (a 

### proponent 

### ofevidence may use a summary to 

### prove the content 

### ofvoluminous recordings that cannot be conveniently played in court 

### ifthe originals are available to opposing parties and the court); see 

### also United 

### States v. Crockett, 49 F.3d 1357, 1360-61 (8th Cir. 1995) ("Visual aids 

### that summarize other evidence are generally permissible 

### pedagogic devices, especially when used to organize complex testimony or transactions for the

### jury,"); see also Commonwealth v. Cash, 137 A.3d 1262, 1277 (Pa. 2016) 

### ("[Ajs with the 

### admissibility 

### of other types 

### ofevidence, the 

### admissibility 

### of a slow-motion

Page 19

### of29videotape rests 

### within the sound discretion 

### ofthe trial court, and [the Pennsylvania Supreme Court] will not reverse absent an abuse 

### ofdiscretion."). The 

### Pennsylvania Supreme 

### Court in 

### Jordan concluded the trial court did not commit an abuse 

### ofdiscretion in 

### permitting Commonwealth's counsel to 

### play a 

### slow-motion surveillance videotape during 

### closing argument where two videotapes were played to the

### jury several 

### times during trial; the

### jury knew two versions 

### ofthe video tape existed; the time that transpired was displayed on the slowed-down version which Commonwealth repeatedly reminded to the

### jury; and Commonwealth during closing argument emphasized the slowed-down portion actually encompassedonly two seconds. Commonwealth v. 

### Jordan, 65 

### A.3d 318, 330 (Pa. 2013). Courts in 

### other jurisdictions have concluded prosecutors are 

### permitted to play video exhibits, including excerpts 

### ofthe video exhibits, during 

### closing arguments to the

### jury. See e.g. State v. Muhammad, 359 N.J. Super. 361, 383, 820 A.2d 70, 83 (N.J. Super. 2003) (finding no abuse 

### of discretion in 

### permitting the playback 

### of video excerpts during 

### prosecutor's closing argument since the 

### videos "were not taken 

### out 

### of context and did not ,misstate or distort the testimony 

### ofthe witnesses presented" and "were used as an aid to the 

### prosecutor in presenting 

### her arguments"); see 

### also Hodges v. State, 194 Ga.App. 837, 392 S.E.2d 262, 263 (1990) (replay 

### ofportion 

### ofvideo 

### statement during closing is not a recall 

### ofa witness but a verbatim repetition 

### of testimony already in evidence, and trial court did 

### not erroneously exercise discretion in 

### permitting the video); see 

### also State v. Bonanno, 373 So.2d 1284, 1292 (La.1979) ("Because the tape 

### recorded statements wereproperly admitted into evidence at trial, the [trial] court did not err in 

### allowing the stateto 

### replaythetapes during its closing argument."). Where a 

### defendant claimed the prosecutor presented to the 

### jury edited tape-recorded comments during closing argument to make 

### it appear as 

### though defendant was confessing to

Page 20 

### of29murder, the Connecticut Supreme Court held the 

### prosecutor did not engage in prosecutorial misconduct. State v. Skakel, 276 Conn. 633, 888 A.2d 985 (2006). Specifically, in Skakel, defense counsel argued 

### the prosecutor manipulated a tape-recorded interview 

### ofdefendant

### with a 

### writer for a 

### book about 

### defendant's life, and that by omitting certain portions 

### ofthe tape, 

### the prosecutor conveyed to the

### jury an 

### unfair impression

### ofthe evidence to the

### jury. Id. at 1070. The Connecticut Supreme Court, 

### however, concluded the presentation was not deceptive as 

### "it was not improper for the [prosecutor] to play for the 

### jury approximately two minutes 

### of the defendant's tape-recorded interview

. . . and to display trial exhibit photographs 

### of the victim while the tape 

### was being played." Id. at 1069. Specifically, the 

### Connecticut Supreme 

### Court explainedin Skakel: After viewing the audiovisual presentation, we are notpersuaded that there is any reasonable likelihood 

### that the 

### state's presentation confused 

### the

### jury or prejudiced the defendant in any way. Contrary to the 

### defendant's claim, the 

### presentation itselfwas not deceptive. That 

### presentation consisted 

### of the 

### written transcript 

### of the interview

. . , 

### which the

### jury already 

### hadseen in its 

### entirety.... Id. (emphasis added). Thus, the Connecticut SupremeCourt in Skakel "reject[ed] 

### the defendant's claimthat the 

### [prosecutor's] use 

### ofaudiovisual aids during closing argument violated his right to
a 

### fair trial." Id. In

### the instant case, 

### Commonwealth moved for the 

### admission 

### ofa series

### ofunedited video recordings, which this Trial Court admitted as 

### Commonwealth's Exhibits 36(a)-(j) 

### without objection from counsel for Appellant. Both counsel also stipulated 

### to the authenticity 

### of said unedited videos. (See N.T.2. at pg. 10:21-11:6; 11:20-12:2). Said unedited video recordings are surveillance videos 

### taken from variousbusinesses near the scene 

### ofthe murder. These unedited 

### video recordings depict the actions 

### ofAppellant and his co-conspirators, as well as Victim 

### prior to the shooting and 

### killing 

### ofVictim and the events occurring shortly thereafter.

Page 21 

### of29During 

### Commonwealth's case-in-chief, the

### jury in the instant case 

### had the opportunity to watch and hear the individual unedited video surveillance recordings 

### ofExhibits 36(a)-(j) from different angles 

### and different surveillance cameras while Detective 

### Janus simultaneously narrated as to 

### their contents. (N.T.2. at 12:14-29:11). The individual video recordings 

### ofExhibits 36(a)-(j) were 

### unedited so no footage was excised from any 

### ofthese videos. Particularlyrelevant to this analysis, this 

### jury watched and heard the contents 

### ofVideo Exhibit 36(h) ("Unedited Video Exhibit 36(h)"), one

### ofthe unedited video surveillance recordings from Exhibits 36(a)-(j). Specifically, 

### Unedited Video Exhibit 36(h) is a surveillance recording with audio obtained from the CBK Variety Store displaying, at a southwestern direction, the entrance to a parking lot 

### of the Polish National 

### Alliance Club ("PNA Club") and 

### part 

### ofEast 21St Street. (See 

### id at 29:12- 19). According to the timestamp, Unedited Video Exhibit 36(h) shows 

### Appellant and his coconspirators leaving the 

### camera's periphery at 

### approximately 13:41:45. A 

### period 

### of seventythree seconds (from 13:41:45 to 13:42:58) is a lull in activity. A series 

### ofeight gunshots are then heard starting at 13:42:58. Theeighth and final gunshot is heard at 13:43:04. At issue in this case is 

### Commonwealth's combinedvideo recordings in Exhibits 36(a)-(j), 

### which consist 

### of independent, unedited surveillance 

### video recordings from various properties, into an edited 

### compilation video 

### ("Compilation Video 

### Exhibit 38"). Commonwealth 

### explained this Compilation Video Exhibit 38 

### provided an overview to the

### jury of the events 

### prior to and after the shooting 

### ofVictim. As 

### explained by Detective Janus during Commonwealth's case-in- chief, 

### Compilation Video Exhibit 38 is composed 

### ofthe following: BY

### ADA LIGHTNER: Q: So before we view this, explain what this is. A: Basically, we have taken all 

### ofthe videos that we have collected, and we have 

### put it in order, and 

### you'll seeit through as wehave seen it. Some 

### ofthe areas have
Page 22 

### of29been edited to make it quicker, more 

### of a time lapse, 

### but it 

### would b[e] an overview 

### from where we first started 

### offwith this original video where 

### you'll see the victim, defendant, second individual and the individual on the bicycle when they come 

### walking this way 

### and running this way, to the 

### last individual coming back. 

### You'll see all 

### ofthe angles simultaneously,like at the same time, to give an overview 

### ofthe incident. 

### (Id at 38:22-39:9). Regarding the "time lapse" as described by Detective Janus above, Detective Janus indicated to thejury: Q: Going to see time

### jump in the 

### bottom indicating

### we're moving ahead? A: Yes. Q: 

### Another

### jumpnow? A: Another

## jump.... (Id at 39:10-14). Detective Janus 

### confirmed in the following that the 

### Compilation Video Exhibit 38 was 

### played inthepresence 

### ofthe

### jury during,

### Commonwealth's case-in-chief: Q: Okay. 

### That's an entire compilation 

### ofthe video 

### ofthose individuals? A: Yes, it is. 

### (Id at 40:24-41:1). 

### Commonwealth then moved to 

### admit Compilation Video Exhibit 38, which this 

### Trial Court admitted with no objection from Appellant's counsel, who 

### indicated he had 

### previously seen the video: ADA LIGHTNER: Couple more things, Your Honor. Now, I 

### want to authenticate this next video 

### with thewitness. And Attorney Strasserknows this is coming, and 

### he's viewed it. So I 

### would ask to 

### play that now and enter it into evidence as 

### Commonwealth's 38. THE COURT: 

### No objection? ATTORNEY STRASSER:

### No objection. Ihave seen that. THE COURT: Okay.
Page 23 

### of29(Id. at 38:11-20; see also 

### id at 41:2-8). Later, Detective Janus further indicated to the

### jury that in the Unedited Video Exhibit 36(h), the seventy-three seconds 

### of footage 

### of lull time before the gunshots were fired were included. Detective 

### Janus expressly noted to the 

### jury, however, that in Compilation Video Exhibit 38, 

### the Commonwealthhad excisedthe seventy-three second lull; Q: 

### How long do we have from 

### them disappearing on screen until the shots 

### that killed the victimare fired? A: Can I come over here? It would be approximately 73 seconds 

# - or 

### I'm sorry 

# - 47 seconds. Q: Well, 

### it's 41[145 to 42[:]58? A: 

### I'm sorry. Yeah. 

### I'mgoing in the wrong

# -a minute and 13 seconds. Q: Which would be the 73 seconds that you said a moment ago? A: Yes Q: Andinthat time, how many shots were fired? A: Eight Q: 

### Andwhere did you discover ballistics evidence at? A: On cottage in the 2000block. Q: 

### How many individuals

# - or 

### howmanyfirearms were you able to uncover evidence of? A: Two. Q: Andwere you able to locate any firearms on scene? A: No, I was not. Q: 

### Andwere you ableto locate any groups 

### ofindividuals fleeing the scene? A: Yes. Q: and

### how many individuals were in that group? A: Two. Q: And were those individuals

# - well, what are they doing with their hands as 

### they're leaving? Q: They were bent. The right arms are bent, 

### placed in what appears to be in the front are 

### oftheir 

### pants' pockets on certain cameras, and 

### their left hands are 

### moving freely or -swinging as 

### they'rerunning. Q: 

### Okay. You 

### said 73 

### seconds. Is 

### it fair to 

### say 

### the video is 

### not going to 

### show 73 

### seconds?

Page 24 

### of29A: 

### Correct. Q: 

### Because 

### it's an editedversion? A. 

### It's edited. 

### Thatportion, maybe 65 

### or 70 

### seconds 

### are cut out. (SeeNotes 

### ofTestimony, Day 3, 

### ("N.T.3") Aug. 2, 2017, atpg. 157:13-159:1) (emphasisadded). The 

### jury again viewed and heard Unedited Video 

### Exhibit 36(h) in 

### Commonwealth's
case-in

### -chief when Counsel for 

### Appellant cross-examined Detective Janus regarding events which occurred shortly before gunshots were heard: 

### BY ATTORNEY S'IRASSER: Q: This is 

### approximately 1341 hours, again facing in a westerly direction on the corner 

### of 21st and Ash Streets, and there is sound on 

### this? Can you see that, Detective 

### Janus? A: I can see, I guess. Q: 

### We're going to watchthis video for a fewminutes to get a time frame,because I asked Officer Stevens yesterday about the time frame 

### from when the shots occurred to EPD responding, and it would determined (sic) 

### that the affiant would be the best

### personto talk about that. A: Okay. Q: So 

### we'll play that. 

### For the record, 

### it's 13[:]41:45. So 

### this would be the last time 

### that we see any 

### ofthose four individuals on 

### camerauntil the shooting; is that correct? A: Yes. Q: So 

### that time is 13[:]41:45. 

### I'm going to play 

### the video. I want to stop for the gunshots, okay? A: Okay. Q: 

### Canyou

### hearwhatthose individuals are saying? A: I cannot, 

### word for word, the entire sentence 

### that individual yelled; I cannottell youthat. Q: 

### Thank you. Was 

### that a gunshotin thebackground? A: No. Q: 

### Not yet? A: There. There was a 

### bunch 

### ofshots.

Page 25 

### of29Q: And that at 13 

# - first one at 13[:]42:58? 

### Sony. Something around there. So 

### it's one minute 

### past since we last saw those 

### four individuals to 

### when the gunshots are? A: Approximately, yes. Q: And 

### I'm going to play thevideo again. (N.T.3 at41:18-42:3; 42:22-43:19). After 

### Appellant's trial counsel cross-examined Detective Janus, Commonwealth's counsel 

### during redirect examination 

### ofDetective Janus again 

### played CompilationVideo Exhibit 38 without objection from 

### Appellant'strial counsel: ADA LIGHTNER: Your Honor, 

### we're going to 

### play the video again,but I think to save time, 

### we're going to play the compilationportion,

### ifthat's okay. MR. STRASSER: No objection to that. (N.T.3 at 125:21-25). Thus, Compilation Video 

### Exhibit 38 was 

### again 

### played to the

### jury during the Commonwealth's redirect examination 

### ofDetective Janus. During closing argument, 

### Commonwealth's counsel, 

### ADA Burns, 

### played Compilation Video Exhibit 38 to the

### jury while 

### ADA Bums simultaneouslymade his 

### closing argument. (See 

### Notes of

### Testimony, Jury Trial, Day 4 

### ("N.T.4"), pg. 12:20-14:16). 

### After the

### jury watched and 

### heard Compilation Video Exhibit 38, ADA Bums repeated to the

### jury Commonwealth's theory
as to the 

### timeline 

### of the 

### murder and reminded the 

### jury that seventy-three seconds had been excised from Compilation Video Exhibit 38: ADA 

### BURNS: From 13[:J41:45 until 13[:]42:58 or 73 seconds from the time the 

### last individual goes 

### off camera and until the time 

### of the first shot, 

### that's the 

### time-that's the 

### time---thetime elapses before the first shot. 

### And Detective Janus testifiedthe distancefromthe PNA 

### parkinglot to Cottage Streetis about 200 feet. So 73 seconds from the time we last see individuals in the 

### video going westbound on 

### East 21st, 73 seconds from then until the first shot. I would submit to you, 

### that's plenty 

### oftime for themto go 

### westboundon East21st, commit 

### the crime and come back, and 

### then 73 seconds, we see the defendant, and lo and behold, 

### there's the 

### defendant and another individual running eastbound 

### throughthe PNA parking lot.

Page 26 

### of29(Id. at 16:14-17:3). In 

### Appellant's Post-Sentence Motion, 

### Appellant's trial counsel 

### cited to the nonprecedential case in Commonwealth v. 

### Jackson as 

### supporting authority for his claim Commonwealthintentionally presented an altered, edited version 

### ofthevideo to mislead the

### jury in 

### Commonwealth's closing argument. See Commonwealth v. 

### Jackson, 2016 WL 1382909, at *5 (Pa. Super. Apr. 7, 2016). In

### Jackson,the Pennsylvania Superior 

### Court reviewedthe 

### prosecutor's closing argument in a 

### murder trial wherein the 

### prosecutor utilized a 

### PowerPoint Presentation 

### which had "dramatic allusions," including images 

### of a manacle. Id. 

### at *5. The 

### Pennsylvania Superior Court in Jackson held Commonwealth did not engage in 

### prosecutorial misconduct by 

### using this PowerPoint Presentation during closing argument. Id. at *5. Specifically, the 

### Pennsylvania Superior Court in Jackson concluded "the PowerPoint slides did not convey the 

### prosecutor's personal 

### belief or opinion on 

### Jackson's credibility or guilt, did not appeal to the prejudices 

### of the 

### jury, and did not divert the 

### jury from deciding the case 

### on the evidence presented at 

### trial." Id. at *6 (citingJudy, 978 A.2d at 1020). The 

### Pennsylvania Superior Court in 

### Jackson also indicated Commonwealth during closing argument was permitted to include "dramatic allusions" 

### which are within the reasonable bounds 

### ofthe evidence supplied attrial. Id. In the 

### instant case, similar to

### Jackson, Commonwealth's utilization 

### ofCompilation Video 

### Exhibit 38 in closing 

### argument did not convey ADA 

### Burns' personal 

### belief or opinion on 

### Appellant's credibility or guilt to the

### jurybut merely assisted ADA 

### Bums with conveying to the 

### jury the 

### chronology 

### ofevents. ADA Burns did not appeal to the 

### prejudices 

### ofthe

### jury since the 

### purpose 

### ofplaying Compilation Video Exhibit 38 

### with the 

### seventy-three seconds excised, rather than Unedited Video Exhibit 36(h), was merely "to give an 

### overview 

### ofthe incident." (N.T.2 at 

### 39:8-9). Commonwealth 

### counsel'splaying Compilation Video Exhibit 38 did not divert the

### jury

Page 27 

### of29from deciding the case on the evidence presented at trial since, as 

### noted above, Compilation Video Exhibit 38 was admitted into evidence during trial with no 

### objection from counsel 

### for Appellant. Unlike 

### Jackson, where the PowerPoint was created for purposes 

### ofCommonwealth's closing argument, in the 

### instant case 

### Unedited Video Exhibit 38 was admitted into evidence in 

### Commonwealth's case-in

### -chief before 

### Commonwealth's closing argument and played several times. Thus, unlike

### Jackson, this 

### CompilationVideo Exhibit 38 was not shown to thejury forthe first time 

### during Commonwealth's closing argument. Finally, unlike Jackson, Compilation Video Exhibit 38 in the instant case does not contain 

### any "dramatic allusions." In the instant case, Commonwealth 

### merely excised seventy-three seconds 

### of uneventful footage which is a mere lull in the video. Thus, to the extent Jackson applies to 

### the instant case, 

### Jackson supports the conclusion Commonwealth 

### did not commit prosecutorial 

### misconduct during closing argument. Therefore, after 

### review 

### of all transcripts as well as an 

### independent review 

### ofboth the Unedited Video 

### Exhibit 36(h) and the Compilation Video Exhibit 38, this Trial 

### judge who presided over the entire trial and who reinstated 

### Appellant's appeal rights continues to find and conclude 

### Commonwealth's presentation 

### of Compilation Video Exhibit 38 during closing argument did not constitute prosecutorial misconduct. The seventy-three second timeframe that transpired was

### repeatedly explained

### by Commonwealth'scounsel to the

### jury and displayed to the 

### jury inUnedited Video Exhibit 36(h) before Commonwealth made its 

### closing argument. The

### jury
was aware two 

### versions 

### of the videotapes existed during the entire trial, including closing argument: one 

### version being the Unedited Video Exhibit 36(h) and one 

### version being Compilation Video Exhibit 38. 

### Commonwealth was 

### transparent in both the 

### Commonwealth's
case-in

### -chief and closing argument 

### by informing fully the

### jury that the seventy-three seconds

Page 28 of29was excised; therefore, this 

### jury was 

### properly explained that these 

### seventy-three seconds were not present in Compilation Video Exhibit 38. Consequently, ADA Burns during closing argument did 

### not mislead 

### nor did he impede this

### jury's ability to 

### weigh the evidence objectively in orderto renderitstrue verdicts as to 

### Appellant's guilt on all tencharges. For the above reasons, this Trial Court respectfully requests the Pennsylvania Superior Court affirm this 

### Trial 

### Court's rulings andthis

### jury's verdicts 

### ofAppellant's convictions.

BYTHE COURT:
Domitrovich, Judge

cc: EmilyM. Merski,

## Esq 509 SassafrasStreet, Erie, 

### PA 16507 

### John H. Daneri, 

### District Attorney, 140 West Sixth Street, 

### Room 506, Erie, PA 16501 Nathan E. Strasser, Esq., 821 State Street, Erie, PA 16501 Michael E. 

### Bums, Assistant DistrictAttorney, 140 

### West Sixth Street, 

### Room 506, Erie, 

### PA 16501 Jeremy C. 

### Lightner, Assistant District Attorney, 140 

### West Sixth Street, Room 506, Erie, PA 16501 Elizabeth A. Hirz, First 

### Assistant District Attorney, 140 

### West Sixth Street, Room 506, Erie, PA 16501

Page 29 

### of29