J-S01013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

GARY WILSON, :

:

Appellant : No. 3337 EDA 2014

Appeal from the Judgment of Sentence July 19, 2013

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No: CP-51-CR-0011361-2008

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 03, 2016

Gary Wilson (“Wilson”), pro se, appeals from the judgment of sentence 

entered after a jury convicted him of persons not to possess firearms.1 We 

affirm.

The trial court set forth the relevant procedural and factual history in 

its Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 5/11/15, at 1-3.2 

We incorporate the court’s recitation herein by reference. See id.

On appeal, Wilson presents the following issues for our review:

I. Did the trial judge violate [Wilson’s] Fifth and Fourteenth 

Amendment rights to due process of law when the judge 

 

1 See 18 Pa.C.S.A. § 6105(a)(1) (providing, in relevant part, that “[a] 

person who has been convicted of an offense enumerated in subsection (b) 

... 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.”); see also id. § 6105(b). 

2 We additionally note that Wilson’s counsel had stipulated that, at the time 

of the offense, Wilson had a prior conviction for an offense enumerated in 18 

Pa.C.S.A. § 6105(b). See N.T., 5/7/13, at 19; see also id. at 101.
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told the jury, in advocacy for the District Attorney, that 

[Wilson] had a firearm in his possession[,] and failed to give 

an on[-]the[-]record colloquy to ascertain whether or not 

[Wilson] agreed to ... the stipulations and the consequences 

of introducing drugs and [Wilson’s] prior bad acts to the 

jury?

II. Did the prosecutor violate [Wilson’s] Fifth and Fourteenth 

Amendment rights to due process of law when the 

prosecutor expressed h[er] personal belief as to [Wilson’s] 

guilt and introduced drugs to the jury to divert the jury from 

its duty to decide the case on the evidence, [and] 

introduced prior bad acts?

Brief for Appellant at 4 (capitalization omitted).3, 4

Wilson first argues that the trial court committed reversible error by 

making a comment during its jury instructions that was so prejudicial that it 

deprived him of a fair trial. See id. at 7. Specifically, Wilson points to the 

trial court’s following remark: “Wilson has been charged with a single 

offense, and that is a person who is not able to possess, use, manufacture, 

control, sell, or transfer a firearm, he, nonetheless, had a firearm in his 

possession.” Id. (quoting N.T., 5/7/13, at 168) (emphasis added by 

Wilson). According to Wilson, the trial court’s prejudicial remark “improperly 

invaded the province of the jury[,]” and entitles him to a new trial. Brief for 

Appellant at 8 (citing Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 

1973) (stating that “[a] new trial is required when the remark is 

 

3

In his two issues, Wilson conflates several distinct sub-issues, most of 

which he preserved in a separate portion of his pro se Pa.R.A.P. 1925(b) 

Concise Statement. Accordingly, we will address each separately.

4 We note, with displeasure, that the Commonwealth did not file a brief on 

appeal, despite having requested, and received, two extensions of time.
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prejudicial[,] that is, when it is of such a nature or substance or delivered in 

such a manner that it may reasonably be said to have deprived the 

defendant of a fair and impartial trial.” (emphasis omitted)). 

[W]hen reviewing jury instructions for error, the charge 

must be read as a whole to determine whether it was fair or 

prejudicial. The trial court has broad discretion in phrasing its 

instructions, and may choose its own wording so long as the law 

is clearly, adequately, and accurately presented to the jury for 

its consideration. 

Commonwealth v. Sepulveda, 55 A.3d 1108, 1141 (Pa. 2012) (citation 

and internal quotation marks omitted); see also Commonwealth v. 

Hansley, 24 A.3d 410, 420 (Pa. Super. 2011) (stating that “[a] faulty jury 

charge will require the grant of a new trial only where the charge permitted 

a finding of guilt without requiring the Commonwealth to establish the 

critical elements of the crimes charged beyond a reasonable doubt.” (citation 

omitted)).

In its Opinion, the trial court determined that Wilson’s claim lacks 

merit: 

Here, [Wilson] misunderstood the [trial c]ourt and believed that 

the use of the pronoun “he” was in direct reference to [Wilson,] 

when[,] in fact[,] the pronoun “he” was in reference to the 

“person” who, in order to be found guilty and in violation of [18 

Pa.C.S.A. § 6105(a)(1)], “... nonetheless, had a firearm in his 

possession.” [N.T., 5/7/13, at 168]. The [trial c]ourt’s 

instructions, when read as a whole, clearly, adequately, and 

accurately presented to the jury the law concerning [persons not 

to possess firearms] under 18 Pa.C.S.[A.] § 6105(a)(1). This is 

all that is required. The mere fact that [Wilson] misunderstood 

the [c]ourt’s language does not render this charge defective. 

Accordingly, this claim is meritless.
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Trial Court Opinion, 5/11/15, at 5. We agree with the trial court’s rationale, 

which is supported by the law and the record, and affirm on this basis with 

regard to Wilson’s first issue. See id.

As an addendum, we observe that, in response to the trial court’s 

foregoing rationale, Wilson asserts that he “does not object to the jury 

charge. [Wilson] objects specifically to the tone and delivery of which 

the [t]rial [c]ourt specifically stated that ‘[h]e, nonetheless, had a firearm in 

his possession[.]’” Brief for Appellant at 9 (quoting N.T., 5/7/13, at 168) 

(emphasis supplied by Wilson); see also Brief for Appellant at 9 (citing 

Commonwealth v. Trunk, 167 A. 333, 337 (Pa. 1933) (ruling that a new 

trial was warranted based upon the Court’s determination that “the [trial] 

judge’s attitude throughout the trial was biased and prejudicial to 

defendants[,] ... [and] [t]he tone and language of the [judge’s jury] charge 

in many parts was that of an advocate for the prosecution, and, therefore, 

not such a judicial presentation of the case as the defendants were entitled 

to[.]”)). 

Here, we are clearly unable to assess the trial court’s “tone” and/or 

“delivery” during the trial based upon the cold record, and, in any event, 

discern no reversible error concerning the trial court’s wording of the jury 

charge. See Sepulveda, 55 A.3d at 1141 (observing that a trial court has 

broad discretion in phrasing its jury instructions); see also Trial Court 

Opinion, 5/11/15, at 5. Moreover, even assuming, arguendo, that the trial 
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court’s charge was technically faulty in its use of the pronoun “he,” or that 

the court’s “tone” was somehow improper, the charge did not permit “a 

finding of guilt without requiring the Commonwealth to establish the critical 

elements of the crime[] charged beyond a reasonable doubt.” Hansley, 24 

A.3d at 420. Thus, we cannot grant Wilson relief.

Next, Wilson contends that the trial court erred by failing to conduct 

an on-the-record colloquy to ascertain whether he fully understood the 

consequences of the stipulations made by his defense counsel at trial.5 See

Brief for Appellant at 10-11. 

At trial, the prosecutor set forth the stipulations as follows:

[T]he first is the testimony of Officer Andrejczak, who ... [would 

testify that] the firearm [that Wilson discarded] was tested by 

the Firearms Investigation Unit. The officer prepared a report. 

The firearm was found to be operable, and [Officer Andrejczak] 

determined it to be a firearm for purposes of [18 Pa.C.S.A. 

§] 6105. ...

The second stipulation is that the narcotics that were recovered 

... by Police Officer [Kim] Watts from Karim Buckner [“Buckner”] 

from the floor ... were submitted to a chemistry lab. They were 

tested by a technician, and they were found to be marijuana.

[T]he final stipulation is ... that [Wilson] is prohibited by law to 

possess a firearm, and that he was convicted of a felony 

[enumerated] under [18 Pa.C.S.A. § 6105(b)] ....

 

5 We observe that Wilson fails to cite the place in the record where the 

stipulations appear. See Pa.R.A.P. 2119(c) (stating that “[i]f reference is 

made to the pleadings, evidence, charge, opinion or order, or any other 

matter appearing in the record, the argument must set forth, in immediate 

connection therewith, or in a footnote thereto, a reference to the place in the 

record where the matter referred to appears[.]”); see also 

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en 

banc). However, we will overlook this defect.
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N.T., 5/7/13, at 100-01.

According to Wilson, “[t]he stipulations were done unknown to [him,] 

and guilt could be inferred from the stipulations in and of themselves.” Brief 

for Appellant at 11. Wilson maintains that “[t]he stipulations [] basically 

place[] [Wilson] at the scene[,]” and “the stipulations concerning a firearm 

and drugs are tantamount to a guilty plea.” Id. Wilson contends that, 

pursuant to our Supreme Court’s decision in Commonwealth v. Davis, 322 

A.2d 103 (Pa. 1974), the trial court should have colloquied him concerning 

whether he understood the consequences of the stipulations. Brief for 

Appellant at 10.

In Davis

our Supreme Court recognized that testimony entered by 

counsel’s stipulation may be so damaging that admission of the 

stipulation at trial must be surrounded by safeguards similar to 

those attending the entry of a guilty plea. There, it was 

stipulated that the complaining witness, if present at trial, would 

have testified that the defendant was one of two men who had 

robbed him at gunpoint. The Court concluded that counsel’s 

stipulation to this testimony placing his client at the scene of the 

crime and naming him as a participant therein was the 

equivalent to an admission of guilt by the defendant, despite his 

plea of not guilty. By stipulating to the testimony that would 

have been offered by the complaining witness, appellant gave up 

the opportunity to cross-examine that witness and to attempt to 

discredit his incriminating testimony. Under the circumstances 

of the case[,] the stipulation made a not guilty verdict highly 

unlikely. Therefore, an on-record colloquy, demonstrating 

defendant’s understanding of the consequences of the 

stipulations, and his consent thereto, was deemed necessary.
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Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super. 1978) (en banc) 

(emphasis omitted). Under Davis, the test to be applied, essentially, is 

whether the stipulation in question makes the “outcome [of the trial] a 

foregone conclusion.” Davis, 322 A.2d at 105.

We determine that Davis is unavailing to Wilson. We disagree with 

Wilson’s interpretation of Davis, as such an interpretation would “compel 

the trial court to conduct a colloquy each time counsel for the defendant 

chooses as a matter of trial strategy to concede a fact which is pertinent to 

proof of the offense charged.” Commonwealth v. Overton, 352 A.2d 105, 

106 (Pa. Super. 1975) (en banc). Davis, however, does not have such 

wide-ranging application. Id. Rather, the Davis decision relates only to a 

particular situation in which the stipulation involved is so damaging that it 

constitutes an admission of guilt. Such is not the case here. First, the 

stipulation concerning Officer Andrejczak merely established that the firearm 

recovered was operable. This fact, alone, in no way inculpated Wilson. 

Second, the stipulation concerning the marijuana (which police attributed to 

Buckner) was merely the evidence found at the bar, and it did not make the 

verdict of guilt a foregone conclusion. Indeed, Wilson was not charged in 

connection with the marijuana, and it had no bearing upon whether he 

unlawfully possessed a firearm. Finally, the trial court correctly determined 

in its Opinion that “the stipulation concerning [Wilson’s] prior conviction[,] 

for the purpose of [18 Pa.C.S.A.] § 6105, did not implicate [Wilson] in the 
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commission of the instant crime; it merely established that an element of 

the charge had in fact been satisfied. Since [Wilson’s] guilt could not be 

inferred from the stipulation as entered, an on-the-record colloquy was not 

required.” Trial Court Opinion, 5/11/15, at 6. Accordingly, this claim does 

not entitle Wilson to relief.

Wilson next argues that he was deprived of a fair trial and due process 

when the prosecutor, during her opening statement, improperly expressed 

her personal opinion as to Wilson’s guilt. Brief for Appellant at 12. Wilson 

points to the prosecutor’s following statement: “I’m sure you too will know 

why [Wilson] ran into the vestibule of that bar and why he tossed that gun. 

It was because he was guilty. And I ask you to return that verdict to him at 

the end of this trial.” N.T., 5/7/13, at 25; see also Brief for Appellant at 12.

In its Opinion, the trial court set forth the applicable law and standard 

of review concerning claims of prosecutorial misconduct, and determined 

that Wilson’s claim lacks merit. See Trial Court Opinion, 5/11/15, at 6-8. 

We affirm with regard to this issue based on the trial court’s rationale. See 

id.

Next, Wilson avers that the trial court abused its discretion when it 

permitted the prosecution to introduce into evidence the marijuana that the 

police had recovered from the sidewalk.6 Brief for Appellant at 13. Wilson 

points out that the police charged Buckner, not him, with possession of the 

 

6 As noted above, Wilson’s counsel stipulated to the fact that Buckner had 

discarded marijuana at the scene. N.T., 5/7/13, at 100.
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marijuana in question. Id. at 14; see also id. at 15 (pointing out that the 

sole charge for which Wilson was on trial was persons not to possess 

firearms). 

In its Opinion, the trial court found that Wilson had waived this claim, 

as he had failed to raise any objection at trial to the Commonwealth’s 

introduction of the marijuana, or to any reference to Wilson’s possible 

involvement in drug activity with Buckner. See Trial Court Opinion, 

5/11/15, at 9; see also Commonwealth v. Montalvo, 956 A.2d 926, 936 

(Pa. 2008) (stating that in order to preserve a claim on appeal, a party must 

lodge a timely objection at trial); see also Pa.R.A.P. 302(a) (stating that an 

issue cannot be raised for the first time on appeal). As the trial court’s 

analysis is supported by the law and the record, we affirm on this basis 

concerning Wilson’s claim. See Trial Court Opinion, 5/11/15, at 9.

As an addendum, we observe that even if Wilson had objected to the 

introduction of this evidence, it was relevant and admissible to provide a 

complete history of the case to the fact-finder (e.g., to explain why Wilson 

evaded the police after they apprehended Buckner). See Commonwealth 

v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (en banc) (stating that 

Pennsylvania courts “have long recognized the special significance of 

evidence which provides [the fact-finder] with the res gestae, or complete 

history, of a crime. ... The trial court is not required to sanitize the trial to 

eliminate all unpleasant facts from consideration where those facts are 
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relevant to the issues at hand and form part of the history and natural 

development of the events and offenses for which the defendant is 

charged.”) (citations and some ellipses omitted); see also Commonwealth 

v. Lark, 543 A.2d 491, 497 (Pa. 1988) (stating that evidence of other 

criminal acts may be relevant and admissible to show “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.”).

Finally, Wilson contends that that he is entitled to a new trial because 

the prosecutor improperly stated, during her opening statement, that Wilson 

had a prior felony conviction. Brief for Appellant at 16-17. Specifically, 

Wilson points out that the prosecutor made the following statement to the 

jury: “[Wilson] was a person prohibited by law to [possess a firearm], 

because prior to August 16, 2008, he had been convicted of a felony.” N.T., 

5/7/13, at 19;7see also Brief for Appellant at 16. Wilson asserts that this 

remark was prejudicial and unnecessary (given his stipulation to his prior 

convictions for purposes of 18 Pa.C.S.A. § 6105(b)), stating as follows: 

“[Wilson’s] charge under [18 Pa.C.S.A. § 6105(a)(1)] was based upon [his] 

being a person who has been convicted of an offense enumerated in 

subsection [6105](b)[;] therefore it would not [have been] prejudicial to the 

Commonwealth ... [for it to] merely tell[] the jury that [Wilson] had a 

 

7 Wilson’s counsel objected to the prosecutor’s remark about Wilson’s prior 

conviction, and moved for a mistrial. N.T., 5/7/13, at 19. During a sidebar, 

the trial court denied the mistrial Motion. Id. at 19-20.
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previous conviction [enumerated in] subsection (b) of the statute.” Brief for 

Appellant at 16. Wilson points out that, in the trial court’s Opinion, it 

determined that Wilson’s claim lacks merit based upon the Pennsylvania 

Supreme Court’s Opinion in Commonwealth v. Stanley, 446 A.2d 583, 

588 (Pa. 1982) (holding that the Commonwealth may use any proper 

evidence to prove its case, and it does not have to accept a defendant’s 

stipulations). See Brief for Appellant at 16 (citing Trial Court Opinion, 

5/11/15, at 8). According to Wilson, the Stanley decision is in conflict with 

the United States Supreme Court’s decision in Old Chief v. U.S., 519 U.S. 

172 (1997), wherein the Court held that a defendant charged under the 

federal statute prohibiting convicted felons from possessing a firearm (18 

U.S.C.A. § 922(g)(1)) has the right to withhold from the jury the specific 

nature of the predicate conviction, provided that the defendant adheres to a 

stipulation stating the fact of a qualifying conviction itself without 

elaboration. See Brief for Appellant at 16-17.

Initially, we observe that Wilson did not raise this claim, nor his 

reliance upon Old Chief, in his court-ordered Pa.R.A.P. 1925(b) Concise 

Statement. Accordingly, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) 

(providing that “[i]ssues not included in the Statement ... are waived.”); see 

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that 

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”). 
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Nevertheless, even if this claim was not waived, we would determine that it 

does not entitle Wilson to relief.

Our Pennsylvania Supreme Court, in Commonwealth v. Jemison, 98 

A.3d 1254 (Pa. 2013), addressed the exact issue posed by Wilson herein, 

and the matter of whether Pennsylvania should follow the holding of Old 

Chief and overturn Stanley. The Jemison Court declined to overturn 

Stanley, distinguishing Old Chief based on certain “highly relevant” 

differences between the state and federal firearms statutes, and holding that 

under 18 Pa.C.S.[A.] § 6105, one element of persons not to 

possess firearms is a prior conviction of a specific, enumerated 

offense, and this fact strongly supports the [] view, as well as 

our precedent in Stanley, that the prosecution should not be 

required to accept a stipulation which acknowledges that a prior 

conviction satisfies the element, but does not name or identify 

the specific prior offense.

Jemison, 98 A.3d at 1260, 1261.8 Accordingly, Wilson’s reliance upon Old 

Chief is unavailing.

Judgment of sentence affirmed.

 

8 Additionally, the Jemison Court held that any possibility of unfair prejudice 

to the defendant was mitigated by the use of proper cautionary instructions 

to the jury, directing them to consider the defendant’s prior conviction as 

evidence to establish the prior conviction element of the charge under 

section 6105(a), not as evidence of the defendant’s bad character or 

propensity to commit crime. Jemison, 98 A.3d at 1262. While, in the 

instant case, the trial court did not issue such a cautionary instruction, 

Wilson testified, on direct examination, that he had prior convictions for 

robbery and burglary. See N.T., 5/7/13, at 117.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016
reinstated. On July 28, 2014 the Court received Defendant's prose correspondence asking to 

June 23, 2014, Defendant filed.an amended PCRA petition requesting his appeal rights be 

received Defendant's motion to proceed prose. On July 21, 2014, a Grazier hearing was held 

where Defendant waived his right to counsel on direct appeal and for purposes of the PCRA. On 

November 22, 2013, Defendant's post-sentence motions were denied. On March 17, 2014, 

Defendant filed a Post-Convict~on Relief Act ("PCRA") petition. On June 6, 2014, the Court 

On July 24, 2013, and October 15, 2013, Defendant filed post-sentence motions. On 

reporting probation to run consecutively, 

On July 19, 2013, Defendant was sentenced to two and one half to five years, plus five years 

guilty and the Court deferred sentencing for completion of a Presentence Investigation Report. 

18 Pa.C.S. § 6105(a)(l), a felony of the second degree. On May 8, 2013, a jury found Defendant 

Gary Wilson ("Defendint") was charged with Possession of a Firearm Prohibited under 

i 

\ 

i 

I. PROCEDURAL HISTORY 

BUTCHART, J. May 11, 2015 

GARY WILSON 

Ill/I I/II I /Ill/II/I II I Ill 

7292672221 

vs. 

SUPERIOR COURT 

NO. 333Pf reo 

MAY 11 2015 

_ Criminal Appeals Unit 

First Judicial District of PA OPINION 

COMMONWEALTH bF CP-51-CR-0011361-2008 

i 

PENNSYLVANIA , · 

6P-51-CR-001136 • 

, 1-2008 Comm v w,1 i Opinion - - 'son, Gary 

IN THE COURT OF COMMON PLEAS 

FIRST J11JDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

i 

l 

.. 5- ,SOI() /_3-{(,, 

Circulated 01/15/2016 11:12 AM
approached Buckner and engaged in a conversation. Id. Defendant and Buckner were each 

comer of Broad and Louden Streets. Id. at 37. Officer Hulmes testified that Defendant 

was conducting his surveillance from the second floor porch of Circles Bar on the northwest 

("Buckner") on the southwest corner of Broad and Louden Streets. Id. at 36-37. Officer Hulmes 

Hulmes"), testified that he observed Defendant and another male identified as Karim Buckner 

2 

' Testimony ("N.T."), May 7, 20\13 at 33-35. Philadelphia Police Officer Chris Hulmes ("Officer 

Philadelphia Police Department on August 16, 2008, _at approximately 12: 15 a.m., in the area of 

Circles Bar located on the 4800 block of North Broad Street in Philadelphia. Notes of 

This case arises out of a surveillance conducted by the Narcotics Task Force of the 

II. FACTUAL BACKGROUND 

1. The Trial Judge violated [Defendant's] Fifth and Fourteenth Amendment 

rights to due process oflaw when the Judge told the jury, in advocacy for 

the District Attorney, that [Defendant] had a firearm in his possession; 

[sic] and failed to give an on the record colloquy to ascertain whether or 

not if [sic] [Defendant] agree [sic] to, or disagree to, [sic] the stipulations 

and the consequences of introducing drugs and prior bad acts to the jury. 

2. The Prosecutor ~iolated [Defendant's] Fifth and Fourteenth Amendment 

rights to due process of law when the prosecutor expressed his personal 

belief as to [Defendant's] guilt; [sic] and introduced drugs to the jury to 

divert the jury fr6m its duty to decide the case on the evidence, introduced 

[sic] prior bad acts. 

See Statement at~ 1-2. 

argues: 

Defendant filed a Statement of Errors Complained of on Appeal ("Statement") in which he 

On November 6, 2014,\ Defendant filed a Notice of Appeal. On December 1, 2014, 

video hearing was held and the Court reinstated Defendant's direct appeal rights nunc pro tune. 

waive the sixty days that was granted to amend his PCRA petition. On October 30, 2014, a 

,-- 

J.· 

\ 
3 

that Defendant was in possession of a firearm; that Defendant was not consulted about the 

III. DISCUSSION 

Defendant argues that Court, while advocating for the Commonwealth, told the jury 

holding a marijuana blunt and [emptying the cigars' contents. Id. at 37-38. Buckner went to a 

gray Jeep Cherokee that was parked nearby, retrieved a white napkin and returned to engage 

Defendant in a conversation. Id. at 38. Defendant and Buckner were taking marijuana from the 

napkin and placing it into the marijuana blunt. Id. at 38-39. At 12:25 a.m., Officer Hulmes 

radioed for backup officers. Id. at 39. When the police arrived, Buckner was stopped without 

incident and Defendant started to walk towards Circles Bar. Id. at 40. From his vantage point, 

Officer Hulmes lost sight of Defendant because a crowd in front of the bar obscured his view. 

Id. at 41. 

Philadelphia Police Officer Mark Bates ("Officer Bates") was one of the backup officers 

who responded to Officer Hulmes' call. Officer Bates testified that as he arrived he saw a black 

male, later identified as Defendant, matching the description given by Officer Hulmes. Id. at 61- 

62. Officer Bates observed Defendant walking quickly towards Circles Bar as Defendant 

dropped "a brown cigarette." Id. at 63. Officer Bates exited the passenger side of his patrol car, 

followed Defendant, and observed Defendant remove a black handgun from his pocket. Id. 

Defendant ran towards the bar as Officer Bates followed. Id. As Defendant ran into the bar, 

Officer Bates saw him pull a gun from his right front pants pocket and throw it in the direction of 

the bar. Id. at 63-64. Officer Bates apprehended Defendant, handed him over to his partner, and 

then recovered the discarded handgun. Id. at 65, 68. Philadelphia Police Officer Kim Watts 

("Officer Watts") also responded to the scene and recovered drugs from the sidewalk. Id. at 93- 

94. 
4 

I Defendant incorrectly identifies the page numbers 352-353, from N.T., May 7, 2013. 

N.T., May 7, 2013 at 168 (emphasis added); also see Statement at page 2. 

. .. To find the [D]efendant guilty of this offense, you 

must find that the following elements have been 

proven beyond a reasonable doubt: [f]irst, that the 

defendant was a person prohibited by law from 

possessing a firearm. To be prohibited, the 

Commonwealth must show that the defendant, at the 

time of this conduct, had been convicted of a specific 

offense. And you know that he was previously 

convicted of the specific offense of burglary-- I think 

robbery as well. 

Mr. Wilson has been charged with a single offense, 

and that is that a person who is not able to possess, 

use, manufacture, control, sell, or transfer a firearm, 

he, nonetheless, had a firearm in his possession ... 

The Court: 

charging the jury.1 

In his Statement, Defendant objects to the following statements of the Court made while 

578 A.2d 1273 (Pa. 1990). 

jury." Commonwealth v. Blount, 647 A.2d 199, 209 (Pa. 1994); Commonwealth v. Prosdocimo, 

particular language, provided the law is clearly, adequately, and accurately presented to the 

"The trial court has discretion in phrasing its instructions to the jury, and is not limited to 

A. The Court did not tell the jury that Defendant was in possession of a 

firearm 

reasons, Defendant's claims are without merit. 

introduced prior bad act and drugs into evidence. See Statement at ,r,r 1-2. For the following 

improperly expressed her personal belief as to Defendant's guilt; and that the ADA improperly 

stipulations at trial and that there was no colloquy about those stipulations; that the ADA 
5 

District Attorney ("ADA"), Ms. Gopal. 

In the present case, Defendant objects to the following statements made by the Assistant 

conclusion." Id. (quoting Davis, 322 A.2d at 105). 

the test is whether the stipulation in question makes "the outcome of the trial a foregone 

admission of guilt." Id. (quoting Commonwealth v. Overton, 352 A.2d 106 (1975)). Essentially, 

particular situation in which the stipulation involved is so damaging that it constitutes an 

evidence which is potentially damaging to his client. .. The Davis decision relates only to a 

require a trial court to conduct an on-record colloquy whenever defense counsel stipulates to 

defendant was one of two men who had robbed him at gunpoint. Id. "Davis, however, does not 

was stipulated that the complaining witness, if present at trial, would have testified that the 

guilty plea." Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super Ct. 1978). In Bridell, it 

the stipulation at trial must be surrounded by safeguards similar to those attending the entry of a 

recognized that testimony entered by counsel's stipulation may be so damaging that admission of 

"In Commonwealth v. Davis, 457 Pa. 194, 322 A.2d 103 (Pa. 1974), our Supreme Court 

B. Stipulations by counsel 

Accordingly, this claim is meritless. 

Defendant misunderstood the Court's language does not render this charge defective. 

Prohibited under 18 Pa.C.S. § 6105(a)(l). This is all that is required. The mere fact that 

adequately, and accurately presented to the jury the law concerning Possession of a Firearm 

firearm in his possession." Id. i The Court's instructions, when read as a whole, clearly, 

"person" who, in order to be found guilty and in violation of the statute, " ... nonetheless, had a 

was in direct reference to Defendant when in fact the pronoun "he" was in reference to the 

Here, Defendant misunderstood the Court and believed that the use of the pronoun "he" 

( 

I, 
6 

force and vigor." Id. Although a prosecutor may argue to the jury that the evidence establishes 

latitude in presenting a case to the jury "and must be free to present ... arguments with logical 

weighing the evidence and rendering a true verdict." Id. Prosecutors are entitled to reasonable 

fixed bias and hostility towards the accused which would prevent [the jurors] from properly 

the unavoidable effect of such comments would be to prejudice the jury, forming in their minds 

(2006)). A prosecutor's arguments to a jury "are not a basis for the granting of a new trial unless 

context in which they were made." Id. (quoting Commonwealth v. May, 898 A.2d 559, 567 

improper, we do not look at the comments in a vacuum; rather we must look at them in the 

entitled to a perfect one. Id. In order to evaluate whether a prosecutor's comments "were 

2008). The question is whether Defendant was deprived of a fair trial, although Defendant is not 

trial court abused its discretion. Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. Ct. 

The standard of review for a claim of prosecutorial misconduct is limited to whether the 

C. The prosecutor's expression of personal belief in Defendant's guilt 

from the stipulation as entered, an on-record colloquy was not required. 

element of the charge had in fact been satisfied. Since Defendant's guilt could not be inferred 

did not implicate Defendant in the commission of the instant crime; it merely established that an 

Here, the stipulation concerning Defendant's prior conviction for the purpose of§ 6105, 

N.T., May 7, 2013 at 23; also see Statement at page 2. 

Ms. Gopal: The judge is going to instruct you on the law. She is 

going to say that there are three elements that the 

Commonwealth needs to prove in order for you to 

find the defendant guilty. Well, two of those 

elements have been met. They've been stipulated to 

by counsel, so they are evidence. They don't even 

need to be debated. The first is that the defendant 

was convicted of the robbery and burglary. 

('·, {.· 

I ,' 
7 

2 Defendant incorrectly identifies the page numbers 52-53, from N.T., May 7, 2013. 

And ... to use your common sense." Id. 

does their testimony match the physical evidence that the Commonwealth provides you? 

ADA stated: "I'm asking you to evaluate what (the witnesses] say on the stand. To what extent 

common sense and evaluating the evidence. Just prior to the ADA's excerpted statement, the 

vacuum, it is clear that the ADA asked the jury to find Defendant guilty after applying their 

Here, when the ADA's comments are considered within the proper context and not in a 

N.T., May 7, 2013 at 25; also see Statement at page 3. 

I'm sure you too will know why the [D]efendant ran 

into the vestibule of that bar and why he tossed that 

gun. It was because he was guilty. And I ask you to 

return that verdict to him at the end of this trial. 

Ms. Gopal: 

In the instant case, Defendant objects to this excerpt from the ADA's opening statement.2 

748 A.2d 166, 193 (Pa. 1999). 

the verdict." Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008); Commonwealth v. Young, 

effect of the error was so insignificant by comparison that the error could not have contributed to 

properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial 

evidence which was substantially similar to the erroneously admitted evidence; or (3) the 

minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted 

error occurs where: "(l) the error did not prejudice the defendant or the prejudice was de 

Where evidence is improperly admitted, the result may be a harmless error. A harmless 

D 'Amato, 526 A.2d 300, 309 (Pa. 1987). 

proper. Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011); Commonwealth v. 

the defendant's guilt, arguments from personal opinion as to the guilt of the accused are not 

,-- ... 

( ·-·; 
8 

convictions for robbery and burglary. See N.T., May 7, 2013 at 117. 

Moreover, on direct examination by his own counsel, Defendant admitted to his prior 

168. As such, there was no prosecutorial misconduct on the part of the ADA in this case. 

felony, which was stipulated to by and between counsel. See N.T., May 7, 2013 at 19-20; 167- 

Here, the ADA was permitted to tell the jury that Defendant had been convicted of a 

A.3d 635, 650 (Pa. 2014). 

unreasonableness; the result of bias, prejudice, ill-will or partiality. Commonwealth v. Stollar, 84 

not merely an error of judgment it is overriding or misapplying the law; manifest 

shown. Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). An abuse of discretion is 

discretion of the trial judge, and will not be disturbed on appeal unless an abuse of discretion is 

v. Stanley. 446 A.2d 583, 588 (Pa. 1982). The admissibility of evidence is entrusted to the 

evidence to prove its case, and does not have to accept Defendant's stipulations. Commonwealth 

Payne, 463 A.2d 45, 456 (Pa. Super. Ct. 1983). The Commonwealth may use any proper 

defendant is tried on charges stemming from an alleged violation of§ 6105." Commonwealth v. 

Introducing "[ e ]vidence of a prior conviction ... is both proper and necessary when a 

D. The prosecutor's introduction of prior bad acts 

from the Philadelphia Police. 

overwhelming evidence of Defendant's guilt presented at trial including eyewitness accounts 

opinion concerning Defendant's guilt, this amount to a harmless error in light of the 

Alternatively, it the AD A's statements are seen as an improper expression of her personal 
3 Defendant incorrectly identifies the page number 197, from N.T., May 7, 2013. 

not object at trial, and so this argument is waived for purposes of direct appeal 

9 

Accordingly, the Court does not discern an appealable because Defendant's counsel did 

sidewalk, which Defendant now objects on appeal. Id. at 93-94. 

Police approaching. Id. At 63. And finally, Officer Watts testified to recovering drugs from the 

Officer Bates testified that Defendant discarded a "brown cigarette" after he saw Philadelphia 

of a marijuana blunt and then filled it with marijuana. N.T., May 7, 2013 at 37-38. Second, 

Commonwealth's witnesses. First, Officer Hulmes testified that Defendant emptied the contents 

Defendant's involvement with drugs brought to the jury's attention through the 

N.T., May 7, 2013 at 90. Further, Defendant did not object to any previous evidence of 

Here, Defendant did not object to the above testimony of Officer Watts during trial. See 

N.T., May 7, 2013 at 94; also see Statement at page 3. 

Okay. Description of evidence: [o]ne brown colored 

blunt cigarette containing a green weed and seedy 

substance, alleged marijuana, in a white colored 

napkin. 

Officer Watts: 

And if you could just read to the jury, one, and 

description of evidence? 

Ms. Gopal: 

Officer Watts: Yes. 

Did you place the narcotics on the property receipt 

yourself? 

Ms. Gopal: 

Philadelphia Police Officer Watts.3 

In his Statement, Defendant objects to the following exchange between the ADA and 

the evidence when the ADA questioned Officer Watts about recovering drugs form the scene. 

Finally, Defendant argues that the jury was diverted from its duty to decide the case on 

E. The prosecutor's introduction of drugs to the jury 

{ ... ·_· 

\. (

-· -, 

' ! 
10 

BUTCHART, J. 

BY THE COURT: 

{),~)h~ 

For all of the above reasons, the Court's judgment of sentence should be affirmed. 

IV. Conclusion 

.• 
D. Gar Bogdan, Esquire 

Law Clerk to the Honorable 

Ann M. Butchart 

Type of Service: () Personal (X) First Class Mail () Other, please specify: 

District Attorney: Hugh Burns, Assistant District Attorney 

Chief, Appeals Unit 

Three South Penn Square 

Philadelphia, PA 19107 

Type of Service: () Personal () First Class Mail (X) Other, please specify: Certified Mail 

Appellant: Gary Wilson, BE-9008 

SCI Houtzdale 

P.O. Box 1000 

Houtzdale, PA 16698-1000 

indicated below, by first class and/or certified mail. 

I certify that I am this 11th day of May, 2015, serving the forgoing Opinion on the persons 

PROOF OF SERVICE 

GARY WILSON 

SUPERIOR COURT 

vs. NO. 3337 EDA 2014 

COMMONWEALTH OF CP-51-CR-0011361-2008 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

(\ ,. ' 

(