J. S16036/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

WALEEM JENKINS, :

:

Appellant : No. 2586 EDA 2014

Appeal from the Judgment of Sentence November 12, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010227-2011

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2016

Appellant, Waleem Jenkins, appeals from the November 12, 2013 

Judgment of Sentence entered in the Philadelphia Court of Common Pleas. 

After careful review, we affirm on the basis of the trial court’s Opinion, which 

found Appellant’s claims were either waived or without merit.

The trial court’s Rule 1925(a) Opinion includes a thorough and 

complete narrative of the facts and procedural history in this case. See Trial 

Court Opinion, filed 3/21/15, at 1-8. While we will not go into exhaustive 

detail here, some of the relevant facts are as follows. 

A jury convicted Appellant of Possession with Intent to Deliver a 

Controlled Substance after officers of the Philadelphia Police Department’s 

Narcotics Field Unit observed Appellant selling narcotics to a confidential 

informant (“CI”) on two separate occasions, and found narcotics and other 
J. S16036/16

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incriminating evidence on Appellant’s person while searching him incident to 

arrest. Id. at 2-3.

At trial, the Commonwealth called three members of the Narcotics 

Field Unit as witnesses. The first was Officer Carlos Buitrago, who observed 

Appellant selling narcotics to the CI on both occasions. Id. at 2-4. Officer 

Buitrago testified that after the second narcotics sale, Officers Linwood 

Norman and Reginald Graham arrested Appellant, and Officer Graham 

searched Appellant’s person. Id. at 4. 

Officer Norman’s involvement in the case was limited to this minor role 

assisting Officer Graham with Appellant’s arrest. Officer Norman did not 

search Appellant, was not present for the first controlled buy, and did not 

testify at Appellant’s trial. 

The Commonwealth then called Officer Graham, who also personally 

observed both narcotics sales and confirmed he was the officer who arrested 

Appellant, searched Appellant, and recovered incriminating evidence 

including narcotics from Appellant’s person. Id. at 4-5. 

Finally, the Commonwealth called Sergeant Thomas Meehan, who 

supervised the investigation of Appellant, and provided the prerecorded buy 

money the CI used to purchase narcotics from Appellant. Id. at 5-6. 

Appellant testified in his own defense at trial, denying his involvement 

in the sale of narcotics. Appellant testified that he worked for a cousin’s 

moving company and that, on the date he was arrested, he was in the area 
J. S16036/16

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visiting friends. Id. at 6-7. He denied that any of the evidence recovered 

from his person was his and suggested that it had been planted by one of 

the officers arresting him. Id.

After the jury’s conviction, Judge Brinkley sentenced Appellant to three 

and one-half to seven years of state incarceration, to be followed by three 

years of probation. 

At some point after Appellant’s conviction and sentencing, the federal 

government indicted Officer Norman on corruption charges. Id. at 9. None 

of the allegations in Officer Norman’s indictment, however, pertained to his 

involvement in Appellant’s arrest. A federal jury later acquitted Officer 

Norman of all charges. 

Appellant filed a post-sentence motion. After its denial, Appellant 

timely appealed. 

On appeal, Appellant raises the following five issues:

a. Whether Appellant is entitled to a new trial based on afterdiscovered evidence?

b. Whether the prosecutor committed misconduct in his closing 

statement?

c. Whether the [trial court] erred in allowing the Commonwealth 

to use a letter of employment during cross-examination and in 

allowing the letter to be read to refresh the jury’s memory 

during deliberations?

d. Whether the [trial court] erred in excluding evidence that 

police officers in a separate case involving Appellant had been 

indicted?

e. Whether the verdict was against the weight of the evidence?
J. S16036/16

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Appellant’s Brief at 5 (capitalization removed). 

The Honorable Genece E. Brinkley has authored a comprehensive, 

thorough, and well-reasoned Rule 1925(a) Opinion, citing to the record and 

relevant case law in addressing Appellant’s claims on appeal. We affirm on 

the basis of that Opinion. 

In his first issue, Appellant raises an after-discovered evidence claim 

based upon Officer Norman’s indictment on corruption charges. To prevail 

on a motion for a new trial on the basis of after-discovered evidence, 

Appellant was required to produce admissible evidence, discovered after 

trial, that:

(1) could not have been obtained prior to the end of trial with 

the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative evidence; (3) is not merely 

impeachment evidence; and (4) is of such a nature that its use 

will likely result in a different verdict on retrial.

Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (citation 

omitted). As the reviewing court, “this Court affirms unless the 

determination constitutes abuse of discretion.” Id. 

Based on our review of the record, the arguments presented by 

Appellant, and the relevant case law and statutes, we agree with the trial 

court that Appellant’s after-discovered evidence claim warrants no relief 

because of Officer Norman’s de minimis involvement in the case against 

Appellant and because none of the other officers involved in the 

investigation into Appellant have been accused of wrongdoing. 
J. S16036/16

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Furthermore, as the trial court has thoroughly addressed the issue in 

its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s 

claim. See Trial Court Opinion at 8-9. Accordingly, we grant no relief on 

this issue. 

Appellant bases his second claim, one of prosecutorial misconduct, on 

the Commonwealth attorney’s statements in closing arguments referring to 

himself as “a gladiator” and to the courtroom as “the coliseum.” Appellant’s 

Brief at 15-16. 

The trial court found that Appellant waived this issue, and we find this 

position to be correct. See Commonwealth v. Cox, 983 A.2d 666, 685 

(Pa. 2009). Appellant did not object to any of the allegedly improper 

statements at trial. N.T., 6/6/13, at 26-28. Furthermore, as the trial court 

has thoroughly addressed the issue in its opinion, we adopt the trial court’s 

discussion as dispositive of Appellant’s claim. See Trial Court Opinion at 10-

12. Accordingly, we grant no relief on this issue.

Appellant’s third and fourth issues both challenge the trial court’s 

rulings on the admissibility of certain evidence introduced or excluded at 

trial. “Questions regarding the admission of evidence are left to the sound 

discretion of the trial court, and we, as an appellate court, will not disturb 

the trial court's rulings regarding the admissibility of evidence absent an 

abuse of that discretion.” Commonwealth v. Russell, 938 A.2d 1082, 

1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more 
J. S16036/16

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than a mere error of judgment; rather, an abuse of discretion will be found 

when “the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, 

as shown by the evidence or the record.” Commonwealth v. Busanet,

817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted). 

Appellant first argues that the trial court erred in permitting the 

Commonwealth to read a letter of employment to the jury during crossexamination and again during deliberations. The trial court found that 

Appellant waived his claim with respect to the use of the letter during cross 

examination, and we find this position to be correct. “To preserve a claim 

for review, the defendant must make a timely and specific objection to the 

introduction of the challenged evidence at trial.” Commonwealth v. Gray, 

867 A.2d 560, 574 (Pa. Super. 2005) (citation omitted). Appellant did not 

object to the reading of the letter and, thus, waived the issue. N.T., 6/5/13, 

at 175-79. 

Likewise, we conclude Appellant’s claim regarding the reading of the 

letter to the jury during deliberations has no merit, as reading the letter 

assisted the jury in determining credibility. Furthermore, as the trial court 

has thoroughly addressed both of Appellant’s claims regarding the letter in 

its opinion, we adopt the trial court’s discussion as dispositive of Appellant’s 

claims regarding the letter. See Trial Court Opinion at 12-15.
J. S16036/16

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Appellant’s next evidentiary claim is that the trial court erred in 

excluding evidence that two police officers who had no involvement in the 

instant case, but who had previously arrested Appellant for a wholly 

unrelated matter, were indicted on allegations of planting drugs and robbing 

drug dealers. Once again, based on our review of the record, the arguments 

presented by Appellant, and the relevant case law and statutes, we conclude 

Appellant’s claim has no merit. Furthermore, as the trial court has 

thoroughly addressed Appellant’s claims regarding the letter in its Opinion, 

we adopt the trial court’s discussion, which found the evidence was 

irrelevant, unfairly prejudicial, and likely to cause confusion. See id. at 15-

16. 

Finally, Appellant claims that the jury’s guilty verdict in this case was 

against the weight of the evidence presented at trial. “A weight of the 

evidence claim concedes that the evidence is sufficient to sustain the verdict, 

but seeks a new trial on the ground that the evidence was so one-sided or 

so weighted in favor of acquittal that a guilty verdict shocks one's sense of 

justice.” Lyons, supra at 1067 (citation omitted). 

When this Court reviews a trial court’s ruling on a weight of the 

evidence claim we do not “substitute [our] judgment for the finder of fact 

and consider the underlying question of whether the verdict is against the 

weight of the evidence, but, rather, [this Court] determines only whether the 

trial court abused its discretion in making its determination.” Id. 
J. S16036/16

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Based on our review of the record, the arguments presented by 

Appellant, and the relevant case law and statutes, we conclude Appellant’s 

weight of the evidence claim warrants no relief. Furthermore, as the trial 

court has thoroughly addressed the issue in its Opinion, we adopt the trial 

court’s discussion as dispositive of Appellant’s claim. See Trial Court 

Opinion at 17-18. Accordingly, no relief is due. 

Therefore, after a careful review of the parties’ arguments, and the 

record, we affirm on the basis of the trial court Opinion.

Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2016
I 

i :1 

been indicted; (5) whether the verdict was against the weight of the evidence. 

Court erred in excluding evidence that police officers in a separate case involving Defendant had 

allowing the letter to be read to refresh the jury's memory during deliberations; (4) whether this 

allowing the Commonwealth to use a Jetter of employment during cross-examination and in 

prosecutor committed misconduct in his closing statement; (3) whether this Court erred in 

whether Defendant is entitled to a new trial based on after-discovered evidence; (2) whether the 

judgment of sentence to the Superior Court and raised the following issues on appeal: ( l) 

Defendant to 3 Yi to 7 years state incarceration, plus 3 years probation. Defendant appealed this 

of Possession with Intent to Deliver a Controlled Substance (PWID). This Court sentenced 

Defendant Waleem Jenkins appeared before this Court for a jury trial and was convicted· 

OPINION 

BRINKLEY, J. MARCH 31, 2015 

WALEEM JENKINS 

SUPERIOR COURT 

2586 EDA 2014 

IF. il fl IE'fD 

MAR 31 2015 

Criminai Appeal~ Unit 

First Judicial District of PA 

vs. 

COMMONWEALTH CP-51-CR-0010227-2011 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

! 

, i 

Circulated 03/23/2016 04:50 PM
2 

Department since 2008. Buitrago testified that, on August 16, 2011, he and his partner, Officer 

testified that he had been assigned to the Narcotics Field Unit of the Philadelphia Police 

Commonwealth called Officer Carlos Buitrago ("Buitrago") as its first witness. Buitrago 

Russeck, Esquire, while the Commonwealth attorney was Kevin Harden, Jr., Esquire. The 

Trial began in this matter on June 5, 2013. Defendant was represented at trial by Tobi 

FACTS 

Statement on March I 7, 2015. 

for an extension of time to file the Concise Statement of Errors, and defense counsel filed the 

2015, after receiving the additional notes of testimony, this Court granted Defendant's request 

Statement of Errors so that additional notes of testimony may be transcribed. On March 12, 

trial based upon after-discovered evidence and requested an extension of time to file the Concise 

pursuant to Pa.R.A.P. I 925(b). On December 2 I, 2014, defense counsel filed a motion for a new 

December I, 20 I 4, this Court ordered defense counsel to file a Concise Statement of Errors 

Defendant. On August 29, 2014, Defendant filed a Notice of Appeal to the Superior Court. On 

this Court reinstated Defendant's appellate rights nunc pro tune and appointed new counsel for 

file a notice of appeal and Defendant was not appointed appellate counsel. On July 31, 2014, 

and asked this Court to appoint appellate counsel for him. Trial counsel subsequently failed to 

sentencing hearing, Defendant stated that he wished to appeal his sentence to the Superior Court 

jury. On June 10, 2013, Defendant was found guilty of PWID. On November 12, 2013, this 

I Court sentenced him to 3Yi to 7 years state incarceration, plus 3 years probation. At his 

of a Communication Facility. From June 5 to June 6, 2013, a trial was held in the presence of a 

On August 18, 2011, Defendant was arrested and charged with PWID and Criminal Use 

PROCEDURAL HISTORY 

,I 
3 

Reginald Graham ("Graham"), met with a confidential informant ("CI") and gave the CI $40 in 

prerecorded buy money after searching him to make sure that he was not carrying any 

contraband or currency. (N.T. 6/5/2013 p. 50-60). 

Buitrago testified that CI told him there was a black male selling narcotics in the vicinity 

of the 2400 block of Carpenter Street and that this person would deliver drugs if contacted by 

telephone at (267)230-1174. Buitrago testified that he told CI to place a call to that number, 

which CI did in his presence. Buitrago further testified that CI asked for two packets and then 

walked to the southeast comer of 241h and Carpenter, while he remained behind and observed. 

Buitrago stated that he remained approximately 25-30 feet away from CI and that nothing 

impeded his view of CI. Buitrago testified that he saw Defendant walk westbound on Carpenter 

towards 241h Street and approach CI. Buitrago further testified that Defendant and CI had a brief 

conversation, following which CI handed Defendant the prerecorded buy money and Defendant 

handed CI small objects in return. Buitrago testified that CI returned to his location as 

Defendant walked out of view and, upon returning, CI handed him two brown Ziploc packets 

containing a white chunky substance. Buitrago testified that he field-tested the substance he 

received from CI and it tested positive for cocaine. Buitrago stated that he attempted to locate 

Defendant, but was unable to find him. Id. at 62-66. 

Buitrago testified that he decided to arrange a "buy bust" on August 18, 2011, in which 

CI would purchase narcotics from Defendant and Defendant would be arrested immediately. 

Buitrago testified that, at approximately 3 :00 p.m. on the 1 gth, he met with CI and gave him $40 

in prerecorded buy money after he searched CI for currency and contraband. Buitrago testified 

that he instructed CI to place a call to the same number that he phoned on the l 61h and CI placed 

the call in his presence. Buitrago testified that CI was released on the 1900 block of Carpenter 
4 

Street while he remained approximately 25-30 feet away and Graham was across the street from 

CI. Buitrago testified that he observed Defendant, wearing a black shirt and tan shorts, walk 

westbound on Carpenter Street towards 19th Street and approach CI. Buitrago further testified 

that the two had a brief conversation, after which CI handed Defendant the prerecorded buy 

money and received small objects from Defendant in return. Buitrago stated that er returned to 

his location, at which time CI handed him two clear Ziploc packets containing a white chunky 

substance. Id. at 70- 73. 

Buitrago testified that he signaled to other members of the Narcotics Field Unit to arrest 

Defendant, at which point Graham and Officer Linwood Norman ("Norman") stopped and 

arrested Defendant. Buitrago stated that Graham searched Defendant and recovered one clear 

sandwich bag that contained seventeen clear Ziploc packets, each of which contained the same 

white chunky substance as the packets he received earlier from CI, from the front right pocket of 

Defendant's shorts. Buitrago further testified that Graham recovered a separate clear sandwich 

bag that contained a ball of the white chunky substance, unused packets, and a razor blade with 

white powder residue on it from the same pocket. Buitrago testified that Graham additionally 

recovered the prerecorded buy money, $57 in United States currency, and a cell phone bearing 

the same number that er had called. Buitrago stated that he confirmed the cell phone's number 

by dialing it with his own phone, at which point the cell phone rang and showed Buitrago's 

number on the caller identification. Id. at 73-77. 

The Commonwealth called Graham as its next witness. Graham testi tied that he had 

been assigned to the Narcotics Field Unit for approximately thirteen years, and had been a 

Philadelphia Police Officer for approximately eighteen years. Graham testified that, on August 

16, 2011, he participated in a narcotics investigation in the area of2400 Carpenter Street with his 
i 5 

I 

I .. 

narcotics evidence is recovered, he would review and approve the paperwork the officers 

testified that, when an officer under his supervision used prerecorded buy money, he would have 

I to authorize their use of the money and then, once provided with the money, the officer would 

make a photocopy of the money and mark the money they were given. Meehan stated that, when 

Graham with the prerecorded buy money they used in their investigation of Defendant. Meehan 

forth by the Philadelphia Police Department. Meehan testified that he provided Buitrago and 

Meehan stated his role was to ensure that his officers followed the policies and protocols set 

investigation of Defendant in a supervisory role, and that he was present for Defendant's arrest. 

testified that he was a sergeant in the Narcotics Field Unit, that he participated in the 

The Commonwealth called Thomas Meehan ("Meehan") as its next witness. Meehan 

from Defendant's person. Id. at 112-16. 

white residue on it, $57 in United States currency, the prerecorded buy money, and a cell phone 

testified that he recovered one clear baggy containing 17 packets of aJleged crack cocaine, 

I another clear baggy containing numerous chunks of alleged crack cocaine, a razor blade with 

Buitrago flicked the car's headlights, at which point he arrested Defendant. Graham further 

while he spoke with Defendant. Graham testified that CI returned to Buitrago's vehicle and 

for small objects. Graham further testified that he was approximately 20 to 25 feet away from CI 

observed CI and Defendant have a conversation and then exchange the prerecorded buy money 

block of Carpenter Street and Defendant approached CI on foot. Graham testified that he 

which time CI made a phone call and asked for two packets. Graham stated CI went to the 1900 

small objects. Graham testified that, on August 18, 2011, he and Buitrago again met with CI, at 

conversation, after which CI handed Defendant the prerecorded buy money in exchange for 

partner, Buitrago. Graham testified that he observed Defendant and CI have a brief 
6 

There was a stipulation, by and between counsel, that if police chemist Phillip Sajju 

("Sajju") v.:'as called to testify he would testify that he analyzed the two clear Ziploc packets that 

were purchased by CI on August 18, 2011. The packets had off-white chunks inside of them, 

and the chunks tested positive for Schedule II cocaine base. Sajju would further testify that he 

received an additional clear plastic bag containing 17 clear Ziploc packets with off-white chunks 

in them, that those chunks were analyzed and that they tested positive for Schedule II cocaine 

base. Sajju would further testify that he analyzed another clear plastic bag containing a chunk of 

an off-white substance, which tested positive for cocaine base. Sajju would testify that the razor 

was not analyzed for any narcotics. Id. at 148-49. 

There was a further stipulation, by and between counsel, that, if police chemist Timothy 

Pelletier ("Pelletier") was called to testify, he would testify that he tested the two Ziploc packets 

containing off-white chunks that were purchased by CI on August 16, 2011 and that those two 

packets tested positive for cocaine base. Furthermore, both Sajju and Pelletier would testify that 

they were trained as police chemists, that they were certified by the Philadelphia Police 

Department, and that their conclusions were to a reasonable degree of scientific certainty. Id. at 

150. After the stipulations, the Commonwealth rested. Id. at 152. 

Defendant testified on his own behalf. Defendant stated that he did not remember what 

he did on August 16, 2011 but he believed he was at work at some point during that day. 

Defendant stated that he worked for Thomas Family Moving, a moving company owned by one 

submitted to him and he would ensure that all evidence was accounted for. Meehan testified that 

he reviewed the property receipts of the evidence recovered from Defendant on August l 6, 20 l l 

and August l 8, 2011 and that he signed the receipts the same day they were submitted. Id. at 

134-40. 
7 

that his phone number had a 570 area code, and he did not recognize the 267 number that CI 

else from the time he left his friend's house to when he was arrested. Defendant further testified 

any narcotics or a razor blade on him. Defendant testified that he did not interact with anyone 

me," to which Buitrago replied, "We got you now." Defendant stated that he was not carrying 

he said to Buitrago, "Hold. That's not mine. I'm not going for that. You not going to do that to 

testified that Buitrago had a Ziploc bag and some money in his hand. Defendant further testified 

you got something," and pulled his hands away from Defendant in a cupping motion. Defendant 

search him while asking him where the guns were. Defendant testified Buitrago then said "Oh, 

Defendant further testified that Buitrago put his hands in Defendant's pockets and began to 

held him against the wall, three vehicles pulled up to the scene and more men approached him. 

I Defendant testified that he recognized one of the men who approached him as Buitrago. 

stated that the two men repeatedly asked him, "Where the guns at?" and that, as the two men 

black males who were holding him, although he could not identify either of them. Defendant 

to walk to his aunt's house at 23rd and Tasker Street. Defendant stated that he walked down 19th 

I until he got to Carpenter Street, at which time he turned right towards 23rd_ Defendant testified 

I that he was· on Carpenter Street when someone came up to him from behind and pushed him 

I 

against a wall. Id. at 152-58. 

Defendant testified that, once he was pushed against the wall, he saw that it was two 

friend who lived nearby and walked to her house near the corner of 19th and Christian. 

I Defendant testified that he stayed at his friend's house for approximately 45 minutes and the two 

of them watched television. Defendant testified that, after he left his friend's house, he decided 

I 

of his cousins. Defendant testified that, on August I 8, 20 I I , he was at 1621 Christian Street 

with his cousin and that sometime between I :30 p.m. to 2:00 p.m. on that day he called a female 
8 

78, 96 A.3d 1031, 1037 (quoting Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1058 

use will likely result in a different verdict on retrial. Commonwealth v. Trinidad, 2014 PA Super 

cumulative evidence; (3) is not merely impeachment evidence; and (4) is of such a nature that its 

to the end of trial with the exercise ofreasonable diligence; (2) is not merely corroborative or 

producible and admissible evidence discovered after trial (1) could not have been obtained prior 

court should grant a motion for new trial on the ground of after-discovered evidence where 

Defendant is not entitled to a new trial based upon after-discovered evidence. A trial 

I. DEFENDANT IS NOT ENTITLED TO A NEW TRIAL BASED UPON 

AFTER-DISCOVERED EVIDENCE. 

DISCUSSION 

V. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. 

IV. WHETHER THE COURT ERRED IN EXCLUDING EVIDENCE THAT 

POLICE OFFICERS ~NA SEPARATE CASE INVOLVING DEFENDANT 

HAD BEEN INDICTED. 

III. WHETHER THE COURT ERRED IN ALLOWING THE 

COMMONWEALTH TO USE A LETTER OF EMPLOYMENT DURJNG 

CROSS-EXAMINATION AND IN ALLOWING THE LETTER TO BE 

READ TO REFRESH THE JURY'S MEMORY DURING 

DELIBERATIONS. 

II. WHETHER THE PROSECUTOR COMMITTED MISCONDUCT IN HIS 

CLOSING STATEMENT. 

I. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BASED 

UPON AFTER-DISCOVERED EVIDENCE. 

ISSUES 

Defendant's testimony. Id. at 184. 

2011, because he lived in that neighborhood. Id. at 158-67. The defense rested after 

called. Defendant stated that it was possible he was in the area of Carpenter Street on August 16, 
9 

(2013)). Before granting a new trial, a court must assess whether the alleged after-discovered 

evidence is of such nature and character that it would likely compel a different verdict if a new 

trial is granted. Commonwealth v. Padillas, 2010 PA Super 108, 997 A.2d 356, 365 (2010) 

(citing Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008)). In making that 

determination, a court should consider the integrity of the alleged after-discovered evidence, the 

motive of those offering the evidence, and the overall strength of the evidence supporting the 

conviction. Id. ( citing Commonwealth v. Parker, 494 Pa. 196, 200, 431 A.2d 216, 218 (1981 )). 

In the case at bar, Defendant filed a post-sentence motion for a new trial based upon 

after-discovered evidence as a result of Norman's subsequent federal indictment on corruptionrelated charges. However, Defendant is not entitled to a new trial based upon Norman's 

indictment as the nature and character of the evidence would not compel a different verdict if a 

new trial were granted. Contrary to Defendant's assertions, Norman's role in his arrest was de 

minimis. According to the testimony presented at trial, Norman was only one of multiple officers 

who were present at the scene when Defendant was arrested on August 18, 2011. He was not 

present on August 16, 2011 during the first purchase by the CI nor did he handle the CI on 

August 18, 2011. Moreover, Norman did not search Defendant or interact with him other than 

when he and Buitrago stopped Defendant, and he did not testify at Defendant's trial. 

Furthermore, there is no allegation that Buitrago or Graham were in any way involved with 

Norman's alleged activities or that they otherwise engaged in corruption. As the evidence of 

Defendant's guilt presented at trial was wholly derived from the investigation and testimony of 

Buitrago and Graham, and in no part derived any evidence provided by Norman, there is no 

indication that evidence of Norman's subsequent indictment would likely compel a different 

verdict. Therefore, Defendant is not entitled to a new trial based upon after-discovered evidence. 
10 

the guilt or innocence of the accused under the controlling law, or by making predictions of the 

divert the jury from its duty to decide the case on the evidence, by injecting issues broader than 

passions or prejudices of the jury; (d) The prosecutor should refrain from argument which would 

guilt of the defendant; ( c) The prosecutor should not use arguments calculated to inflame the 

express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the 

I unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the 

jury as to the inferences it may draw; (b) It is unprofessional conduct for the prosecutor to 

provides: (a) the prosecutor may argue all reasonable inferences from evidence in the record. It is 

Pennsylvania follows Section 5.8 of the American Bar Association (ABA) Standards. Section 5.8 

In defining what constitutes impermissible conduct during closing argument, 

(1997)). 

886, 907 (2009) (quoting Commonwealth v. Washington, 549 Pa. 12, 700 A.2d 400, 407-08 

context of the closing argument as a whole. Commonwealth v. Smith, 604 Pa. 126, 985 A.2d 

Allegedly improper remarks of a prosecutor during closing arguments must be viewed in the 

886, 878 (2012) (citing Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861, 869 (1990)). 

evidence and engage in oratorical flair. Commonwealth v. Culver, 2012 PA Super 172, 51 A.3d 

the record or reasonable inferences therefrom, a prosecutor is permitted to respond to defense 

Pa. 223, 983 A.2d 666, 685 (2009). While a closing argument must be based upon evidence in 

otherwise such a claim will not be available on appellate review. Commonwealth v. Cox, 603 

alleged prosecutorial misconduct, Defendant must object to the misconduct in a timely manner; 

statement when he repeatedly referred to himself as "a gladiator". In order to raise a claim of 

The Commonwealth attorney did not commit prosecutorial misconduct during his closing 

II. THE PROSECUTOR DID NOT COMMIT MISCONDUCT IN HIS 

CLOSING ARGUMENT. 
11 

referring to himself as a gladiator was not properly preserved for appellate review. 

that the Commonwealth attorney committed misconduct in his closing statement by repeatedly 

However, defense counsel failed to object after any of these statements and therefore the claim 

gladiator, my brother," and "you're in the coliseum with a gladiator, my brother." Id. at 27-28. 

(N.T. 6/26/2013 p. 26). Shortly thereafter, Mr. Harden stated, "you went to the coliseum with a 

"Once you get in the coliseum with the Commonwealth, you have 

to bring it. If this is ancient Rome and we're in the coliseum, if you 

stay outside the coliseum, no judgment. But once you decide to step 

into this coliseum with a gladiator, I'm going to pick your story apart, 

my brother." 

Harden stated, 

gladiator'' and to the courtroom as "the coliseum" during his closing statement. Specifically, Mr. 

In the case at bar, the Commonwealth attorney made three references to himself as "a 

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

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

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

(2012) (citing Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 110 (1998)). 

hence permissible comment. Commonwealth v. Keaton, 615 Pa. 675, 45 A.3d 1050, 1074-75 

in response to the defense's closing argument, it will generally be deemed fair response and 

( quoting Commonwealth v. Elliott, 80 .2d 415, 443 (Pa. 2013 ). If a challenged remark is made 

I consequences of the jury's verdict. Commonwealth v. Judy, 2009 PA Super 148, 978 A.2d 1015, 

11019-20 (2009) ( citing Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006)). 

I Even an otherwise improper comment may be appropriate if it is in fair response to 

defense counsel's remarks. Commonwealth v. Burno, 96 A.3d 956, 974 (Pa. Super. 2014) 
12 

Commonwealth v. Strunk, 2008 PA Super 149, 953 A.2d 577, 579 (2008) (quoting 

silent and afterwards complain of matters which, if erroneous, the court would have corrected. 

Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 395 (2003)). A party may not remain 

evidence at trial. Commonwealth v. Gray, 2005 PA Super 22, 867 A.2d 560, 574 (2005) ( citing 

defendant must make a timely and specific objection to the introduction of the challenged 

allowed the Jetter to be read to the jury during deliberations. To preserve a claim for review, the 

be introduced during Defendant's cross-examination. Furthermore, this Court did not err when it 

This Court did not err when it allowed a letter of employment from Old Country Buffet to 

III. THE COURT DID NOT ERR WHEN IT ALLOWED THE 

COMMONWEAL TH TO USE A LETTER OF EMPLOYMENT DURING 

CROSS-EXAMINATION AND THEN ALLOWED THE LETTER TO BE 

READ TO REFRESH THE JURY'S MEMORY DURING 

DELIBERATIONS. 

commit prosecutorial misconduct in his closing argument. 

evidence objectively and render a true verdict. Thus, the Commonwealth attorney did not 

in their minds a fixed bias and hostility towards Defendant so that they could not weigh the 

referrals to himself as a gladiator had the unavoidable effect of prejudicing the jury and forming 

Buitrago and Graham framed him. Furthermore, there is no indication that Mr. Harden's 

Defendant's inconsistent testimony regarding his employment status and his argument that 

defense's arguments. Notably, Mr. Harden referred to himself as a gladiator after highlighting 

adversarial process of a trial and his duty to respond accordingly to inconsistencies in the 

as a gladiator and the courtroom as a coliseum, Mr. Harden was offering a metaphor for the 

engaging in oratorical flair to respond to arguments made by the defense. In referring to himself 

attorney did not engage in misconduct by referring to himself as a gladiator but was merely 

Even if the claim was properly preserved for appellate review, the Commonwealth 
13 

Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274 (1974)). A Rule 1925(b) statement is 

not a substitute for the contemporaneous objection required at trial. Commonwealth v. Ali, 608 

Pa. 71, 10 AJd 282, 293 (2010). 

Cross-examination may be employed to test a witness' story, to impeach credibility, and 

to establish a witness's motive for testifying. The scope of cross-examination is a matter within 

the discretion of the trial court and will not be reversed absent an abuse of that discretion. 

Commonwealth v. Ballard, 622 Pa. 177, 80 A.3d 380, 394 (2013) (citing Commonwealth v. 

Chmiel, 585 Pa. 54 7, 889 A.2d 501, 527 (2005)). An attorney is entitled to question the witness 

about subjects raised during direct examination as well as any facts tending to refute inferences 

arising from matters raised during direct testimony. Commonwealth v. Bricker, 2005 PA Super 

307, 882 A.2d 1008, 1018-19 (2005) (citing Commonwealth v. Begley, 566 Pa. 239, 276-77, 

780 A.2d 605, 627 (200 I)). Similarly, an attorney may discredit a witness by cross-examining 

the witness about omissions or acts that are inconsistent with his testimony. Id. 

When a jury requests that a portion of recorded testimony be read aloud to refresh its 

memory, the matter is within the trial court's discretion. Commonwealth v. Arrington, 86 A.3d 

831, 848 (Pa.2014) (citing Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968)). As 

long as there is not a flagrant abuse of discretion, this decision should not be overturned on 

appeal. Commonwealth v. Manley, 2009 PA Super 227, 985 A.2d 256, 173 (citing 

Commonwealth v. Gladden, 445 Pa.Super. 434, 665 A.2d 1201, 1205 (1995)). If the court grants 

the request and the review does not place undue emphasis on the witness's testimony, no 

reversible error is committed. Arrington, 86 A.3d at 848. In Manley, the Superior Court held that 

the trial court did not abuse its discretion when it allowed the contents of an exhibit to be read to 

the jury after the jury had requested that they be provided a physical copy of the exhibit. See 
14 

Manley, 985 A.2d at 272- 73. In arriving at the conclusion, the Superior Court noted that the trial 

court had the discretion to both allow the jury to have an exhibit during deliberation and to have 

testimony read back to them during deliberations. Id. 

In the case at bar, the Commonwealth cross-examined Defendant regarding a Jetter 

written by James Hargrove, manager at Old Country Buffet. The Jetter, which was dated 

September 2, 2011, stated that Defendant was presently employed at Old Country Buffet and had 

been employed there since July 2010. Defense counsel did not object to the Commonwealth 

reading the Jetter at the time. On June 10, 2013, the jury requested to see the letter. Defense 

counsel objected to the Jetter being read to the jury because it had not been moved into evidence 

or authenticated. The Commonwealth argued that reading the Jetter to the jury would not place 

improper weight on it, as the jury had determined it was important to assess Defendant's 

credibility. The Commonwealth further argued that reading the Jetter would aid the jury in 

making that determination. This Court allowed the letter to be read to the jury because it had 

been read to the jury during trial and it would assist the jury in reaching a verdict. (N.T. 

6/10/2013 p. 4-11). 

As defense counsel failed to object to the Jetter during cross-examination, the claim that 

the letter was improperly read during cross-examination was not properly preserved for appellate 

review. Even if the claim was preserved for appellate review, there was no error in allowing the 

letter to be read during cross-examination. Defendant testified that he was at work for Thomas 

Family Moving on August 16, 2011 and therefore could not have been on Carpenter Street 

selling drugs at that time. The Jetter, along with the biographical information Defendant gave to 

police at the Homicide Unit in which he stated he was unemployed, was therefore properly used 

by the Commonwealth to test Defendant's story and impeach his credibility. Moreover, this 
15 

66, 93, 720 A.2d 711, 724 (1998)). 

v. Jones, 2003 PA Super 220, 826 A.2d 900, 908 (2003) (citing Commonwealth v. Baez, 554 Pa. 

distracting its attention away from the jury's primary concern to collateral issues. Commonwealth 

may nevertheless be excluded because its general effect on the trial will be to confuse the jury by 

A.2d 119, 151 (2008). Furthermore, evidence, although logically relevant on the ultimate issue, 

from its duty of weighing the evidence impartially. Commonwealth v. Wright, 599 Pa. 270, 961 

means a tendency to suggest decision on an improper basis or divert the jury's attention away 

of unfair prejudice. Pa.R.E. 403. Unfair prejudice supporting exclusion of relevant evidence 

(2013). The court may exclude relevant evidence if its probative value is outweighed by a danger 

irrelevant to the issues presented. Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 446 

v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (2006)). A trial court may exclude evidence that is 

Commonwealth v. Kinard, 2014 PA Super 41, 95 A.3d 279, 284 (2014) (quoting Commonwealth 

less probable or supports a reasonable inference or presumption regarding a material fact." 

"if it logically tends to establish a material fact in the case, tends to make a fact at issue more or 

involving Defendant had been indicted. Generally, evidence is admissible if it is relevant, that is, 

This Court did not err when it excluded evidence that police officers in a separate case 

IV. THE COURT DID NOT ERR WHEN IT EXCLUDED EVIDENCE THAT 

POLICE OFFICERS IN A SEPARATE CASE INVOLVING DEFENDANT 

HAD BEEN INDICTED. 

allowed the Jetter to be read to the jury during deliberations. 

assistance in their determination of Defendant's credibility. Therefore, this Court properly 

jury's memory, and reading it once more did not place undue weight upon it, as the jury wanted 

deliberations. The Jetter had been read previously in its entirety, was being used to refresh the 

Court did not abuse its discretion when it allowed the Jetter to be read to the jury during 
16 

In the case at bar, the Commonwealth made a motion in limine prior to the start of trial to 

preclude any mention by the defense that police officers Sydemy Joanis ("Joanis") and Jonathan 

Garcia ("Garcia") had been federally indicted. Joanis and Garcia previously had arrested 

Defendant a few months prior to his arrest in the instant case and were afterwards indicted for 

planting drugs and robbing drug dealers. The Commonwealth argued that this evidence was 

irrelevant because Joanis and Garcia had not been involved in any way in the instant matter and 

there were no allegations of corruption regarding Buitrago and Graham. The Commonwealth 

further argued that any relevance the evidence might have was outweighed by its prejudicial 

effect and the evidence would cause undue confusion, as the allegations did not involve the 

instant case. Defendant argued that the evidence should be allowed to support an inference that 

the entire Narcotics Field Unit in South Philadelphia was corrupt and could be used to impeach 

the credibility of the testifying officers from that unit. This Court granted the motion to preclude 

any mention of Joanis and Garcia. (N.T. 6/5/2013 p. 5-12). 

This Court properly precluded any mention of Joanis and Garcia's indictments as the 

evidence was irrelevant to the case at bar. As Joanis and Garcia had no involvement whatsoever 

in the instant case, the evidence of their indictment therefore did not tend to establish a material 

fact in the case, to make a fact at issue more or less probable or support a reasonable inference or 

presumption regarding a material fact. Even if the evidence was relevant to the instant case, any 

relevance it may have had was greatly outweighed by the dangers of undue prejudice and 

confusion. As there was no allegations that Buitrago or Graham were involved in any corruption, 

the evidence would divert the jury's attention away from its duty of weighing the evidence 

impartially by distracting its attention from the jury's primary concern to collateral issues. 

Therefore, this Court properly excluded any evidence that Joanis and Garcia had been indicted. 
17 

CI told the officers that there was a black male selling narcotics in the vicinity of the 2400 block 

personally observed Defendant sell drugs to CI on two separate occasions. Buitrago testified that 

In the case at bar, the jury heard testimony from Buitrago and Graham that they 

to prevail. Id. · 

justice and the award of a new trial is imperative so that right may be given another opportunity 

warranted only when the jury's verdict is so contrary to the evidence that it shocks one's sense of 

Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 (2003)). Rather, a new trial is 

conclusion than the fact-finder. Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (quoting 

testimony or because the reviewing court on the same facts might have arrived at a different 

832 A.2d at 408). A verdict is not contrary to the weight of the evidence because of a conflict in 

Commonwealth v. Collins, 2013 PA Super 158, 70 A.3d 1245, 1251 (2013) (quoting Champney, 

whether the trial court palpably abused its discretion in ruling on the weight claim." 

whether the verdict is against the weight of the evidence ... rather, appellate review is limited to 

weight claim below, an appellate court's role is not to consider the underlying question of 

574 Pa. 435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the 

Luster, 2013 PA Super 204, 71 A.3d 1029, 1049 (2013) (quoting Commonwealth v. Champney, 

none of the evidence and to determine the credibility of the witnesses." Commonwealth v. 

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or 

(2013) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52 (2000)). The 

sufficient to sustain the verdict. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067 

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was 

The verdict in this case was not against the weight of the evidence presented at trial. 

V. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE 

EVIDENCE. 
18 

of Carpenter Street and provided them with a specific phone number that could be called to 

arrange a sale. Buitrago testified that CI called the phone number and a short time later 

Defendant appeared on the scene and exchanged packets containing a chunky, off-white 

substance for money with CI. Buitrago and Graham testified Defendant was arrested 

immediately after the second occasion, at which time he was searched and the police found 

cocaine and the prerecorded buy money that CI used to purchase the drugs on his person. 

Buitrago further testified that they found a phone on Defendant's person which matched the 

number dialed by CI to arrange the buy. The parties stipulated that chemists Sajju and Pelletier 

would testify that the substances purchased by CI from Defendant tested positive for cocaine and 

that the substance recovered from Defendant likewise testified positive for cocaine. Meehan 

testified that he supervised the investigation and that Buitrago and Graham had followed proper 

protocol during their investigation. The jury also heard testimony from Defendant that he was at 

work for Thomas Family Moving on August 16. However, the Commonwealth presented 

evidence that Defendant previously had told police that he was unemployed at the time and 

further claimed that he was employed at OldCountry Buffet. Thus, the jury's verdict was not so 

contrary to the evidence that it shocked one's sense of justice. Therefore, the verdict was not 

against the weight of the evidence. 
19 

After a review of the applicable rules of evidence, statutes, case law and testimony, this 

Court committed no error. Defendant is not entitled to a new trial based upon after-discovered 

evidence. The prosecutor did not commit misconduct in his closing statement. The Court did not 

err in allowing the Commonwealth to use a letter of employment during cross-examination of 

Defendant and in allowing the letter to be read to refresh the jury's memory during deliberations. 

The Court did not err when it excluded evidence that officers in a separate case involving 

Defendant had been indicted. The verdict was not against the weight of the evidence. Therefore, 

this Court's judgment of sentence should be upheld on appeal. 

CONCLUSION