J-A20020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ALONZO ELLISON 

 Appellant No. 2564 EDA 2012 

Appeal from the Judgment of Sentence July 25, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006872-2009 

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 23, 2014 

 Appellant, Alonzo Ellison, appeals from the July 25, 2012 judgment of 

sentence of life without the possibility of parole after a jury found him and 

his co-defendants, Mikechel Brooker and Ferock Smith1

, guilty of murder in 

the first degree, criminal conspiracy, firearms not to be carried without a 

license, and possession of an instrument of a crime (PIC).2 After careful 

review, we affirm. 

 The trial court summarized the relevant facts and procedural history of 

this case as follows. 

____________________________________________ 

1 Brooker’s appeal is currently pending in this Court at 96 EDA 2013, and 

Smith’s appeal is currently pending in this Court at 188 EDA 2013. 

2

 18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively. 
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On July 18, 2008, Barry Jacobs, Jr. (“Jacobs”) 

was shot and killed on the 8700 Block of Glenoch 

Place in Philadelphia, by [Appellant], Ferock Smith 

(“Smith”) and [Mikechel] Brooker (“Brooker”) in an 

apparent dispute over drug territory after Antoniette 

Gray (“Gray”) refused to purchase drugs from 

[Appellant]. When Gray[,] shortly thereafter[,] 

purchased drugs from Jacobs, [Appellant], Smith, 

and Brooker shot Jacobs multiple times. At trial, 

Gray testified that she did not remember the 

shooting and her July 20, 2008[] statement to police 

was admitted. In her statement, Gray identified 

[Appellant], Smith, and Brooker as the three people 

who shot Jacobs. Gray also saw [Appellant], Smith, 

and Brooker the next day and heard them laughing 

about shooting Jacob[s]. Another eyewitness, 

Jeffrey Gould (“Gould”), testified that he saw 

someone standing over Jacobs and shoot him in the 

head. Gould had identified that person as 

[Appellant] in a July 18, 2008 statement to police, 

which was introduced at trial. 

At trial, Eleanore Sampson (“Sampson”) 

testified that she did not remember the events after 

the shooting and her July 19, 2008 statement to 

police was admitted. In her statement, Sampson 

stated that [Appellant], Smith, and Brooker came to 

her apartment on the night of July 18, 2008. 

Sampson stated that she let [Appellant], Smith, and 

Brooker use her apartment because they gave her 

drugs. [Appellant], Smith and Brooker had a 

conversation in Sampson’s apartment that night, 

during which she heard Smith say he shot Jacobs. 

Smith and Brooker had handguns with them which 

they placed in Sampson’s apartment. Sampson 

asked [Appellant] to remove the guns from her 

apartment and [Appellant] took a 9 millimeter 

handgun from Smith. Brooker and Smith left 

Sampson’s apartment shortly thereafter, at which 

time, [Appellant] gave the 9 millimeter handgun 

back to Smith. [Appellant] stayed and slept at 

Sampson’s apartment and was arrested leaving from 

the rear of the apartment when the police were 

knocking at the front door. A .32 caliber handgun 
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was found during a search of Sampson’s apartment 

after [Appellant]’s arrest. ...

Trial Court Opinion, 12/26/12, at 2-3.

 On June 1, 2009, the Commonwealth filed an information charging 

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

persons not to use a firearm and carrying firearms in public in Philadelphia.3

 

On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of 

said trial, on July 16, 2012, the jury found Appellant guilty of first-degree 

murder, criminal conspiracy, firearms not to be possessed without a license, 

and PIC. The Commonwealth nolle prossed the remaining two charges. On 

July 25, 2012, the trial court imposed a sentence of life imprisonment 

without the possibility of parole as to first-degree murder. The trial court did 

not impose any further penalty on the remaining charges. On July 31, 2012, 

Appellant filed a timely post-sentence motion, arguing that the jury’s verdict 

was against the weight of the evidence. See generally Pa.R.Crim.P. 

607(A)(3). The trial court entered an order on August 6, 2012, denying 

Appellant’s post-sentence motion. On August 23, 2012, Appellant filed a 

timely notice of appeal.4

 On appeal, Appellant raises four issues for our review. 

____________________________________________ 

3

 18 Pa.C.S.A. §§ 6105(a.1)(1) and 6108, respectively.

4

 Appellant and the trial court have complied with Pa.R.A.P. 1925. 
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I. Is [Appellant] entitled to an arrest of judgment 

on all charges as the verdict is not supported 

by sufficient evidence? 

II. Is [Appellant] entitled to a new trial as the 

verdict is not supported by the greater weight 

of the evidence? 

III. Is [Appellant] entitled to a new trial as the 

result of [trial c]ourt error where the [trial 

c]ourt denied a mistrial request, even though 

the [Commonwealth] branded [Appellant] as a 

drug dealer, all to his untold and unfair 

prejudice? 

IV. Is [Appellant] entitled to a new trial as the 

result of prosecutorial misconduct during 

closing argument where the [Commonwealth] 

made a knowing and material 

misrepresentation as to the possession of a 

firearm allegedly used in this case? 

Appellant’s Brief at 3.

In Appellant’s first issue, he challenges the sufficiency of the 

Commonwealth’s case. Specifically, he avers the Commonwealth failed to 

provide sufficient evidence that Appellant was a principal, conspirator, or 

accomplice regarding first-degree murder. Id. at 14-15. Regarding his 

conspiracy conviction, Appellant also argues “[t]he evidence here does not 

establish an agreement between the parties.” Id. at 17.5

____________________________________________ 

5

 We note that Appellant placed this argument in his second argument point 

pertaining to the weight of the evidence. Nevertheless, as he did raise this 

element in his Rule 1925(b) statement on sufficiency grounds, we will 

address it with the balance of his sufficiency argument.
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 Our standard of review regarding challenges to the sufficiency of the 

Commonwealth’s case is well settled. “In reviewing the sufficiency of the 

evidence, we consider whether the evidence presented at trial, and all 

reasonable inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury’s verdict beyond 

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 

2014) (citation omitted). “The Commonwealth can meet its burden by 

wholly circumstantial evidence and any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak and 

inconclusive that, as a matter of law, no probability of fact can be drawn 

from the combined circumstances.” Commonwealth v. Watley, 81 A.3d 

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation 

omitted) , appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an 

appellate court, we must review “the entire record ... and all evidence 

actually received[.]” Id. “[T]he trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced is free to 

believe all, part or none of the evidence.” Commonwealth v. Kearney, 92 

A.3d 51, 64 (Pa. Super. 2014) (citation omitted). “Because evidentiary 

sufficiency is a question of law, our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 

126 (Pa. 2013) (citation omitted). 
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Appellant challenges the sufficiency of the Commonwealth’s evidence 

regarding his conviction for murder in the first degree. The relevant statute 

provides as follows. 

§ 2502. Murder

(a) Murder of the first degree.--A criminal 

homicide constitutes murder of the first degree when 

it is committed by an intentional killing. 

...

(d) Definitions.--As used in this section the 

following words and phrases shall have the meanings 

given to them in this subsection: 

...

“Intentional killing.” Killing by means of poison, or 

by lying in wait, or by any other kind of willful, 

deliberate and premeditated killing. 

...

“Principal.” A person who is the actor or 

perpetrator of the crime. 

18 Pa.C.S.A. § 2502. Furthermore, our Supreme Court has consistently 

stated when proving the sufficiency of the evidence for first degree murder, 

the Commonwealth’s burden is as follows. 

 In order to sustain a conviction for first-degree 

murder, the Commonwealth must prove that: (1) a 

human being was unlawfully killed; (2) the 

defendant was responsible for the killing; and (3) the

defendant acted with malice and a specific intent to 

kill. Specific intent and malice may be established 

through circumstantial evidence, such as the use of a 

deadly weapon on a vital part of the victim’s body.
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Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal 

citation omitted). 

Additionally, Appellant challenges the sufficiency of the 

Commonwealth’s evidence to support his conviction for criminal conspiracy. 

Appellant’s Brief at 17. The criminal conspiracy statute provides as follows.

§ 903. Criminal conspiracy

(a) Definition of conspiracy.--A person is guilty 

of conspiracy with another person or persons to 

commit a crime if with the intent of promoting or 

facilitating its commission he: 

(1) agrees with such other person or persons that 

they or one or more of them will engage in conduct 

which constitutes such crime or an attempt or 

solicitation to commit such crime; or 

(2) agrees to aid such other person or persons in 

the planning or commission of such crime or of an 

attempt or solicitation to commit such crime. 

...

(e) Overt act.--No person may be convicted of 

conspiracy to commit a crime unless an overt act in 

pursuance of such conspiracy is alleged and proved 

to have been done by him or by a person with 

whom he conspired. 

...

18 Pa.C.S.A. § 903. To sustain a criminal conspiracy conviction, “the 

Commonwealth must establish that “1) the defendant entered into an 

agreement with another to commit or aid in the commission of a crime; 2) 

he shared the criminal intent with that other person; and 3) an overt act was 
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committed in furtherance of the conspiracy.” Commonwealth v. Nypaver, 

69 A.3d 708, 715 (Pa. Super. 2013) (citation omitted). 

 After careful review of the certified record, we conclude that the 

Commonwealth presented sufficient evidence to sustain the convictions. In 

the case sub judice, the Commonwealth presented the testimony of Gray. 

Gray testified that she could not recall the events that transpired on the 

night of the shooting. N.T., 7/10/12, at 112-113. As a result, the 

Commonwealth admitted Gray’s original witness statement to the police 

during Gray’s testimony as substantive evidence. At the time of said 

statement, Gray told the police that she was only a few feet away from 

Jacobs when he was killed, and that she knew who killed him. Id. at 122. 

Recalling the events of July 18, 2008, Gray told the police that prior to the 

incident she had just bought a “dime bag” off of Jacobs. Id. at 123.6

 Gray 

told the police that shortly after that, a man named Worm “just pointed a 

gun at [Jacobs] and shot him [in the head], like, two or three times.” Id. at 

123, 124-125. She further testified that after Jacobs fell to the ground, two 

other men named Butter and Doughnut each shot Jacobs in the head and in 

the chest while he was on the ground. Id. at 123-125. Gray was shown a 

photo array and picked out photographs of Appellant and his co-defendants 

as those who shot Jacobs. Id. at 148. 

____________________________________________ 

6 A “dime bag” is a term for $10.00 worth of crack cocaine. N.T., 7/10/12 at 

123.
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 In addition to Gray’s testimony, the Commonwealth presented two 

additional witnesses to establish Appellant as both “Butter” and one of 

Jacobs’ shooters. One witness, Eleanore Sampson, who was an 

acquaintance of all three defendants, identified Appellant as “Butter.” N.T., 

7/11/12, at 213. Gould, who viewed the murder from his living room 

window, also identified Appellant as the man who shot Jacobs. Id. at 162. 

Based on the above testimony, we reject both of Appellant’s 

sufficiency arguments. The Commonwealth presented substantive evidence 

that identified Appellant as one of the three men who shot Jacobs in the 

head and in the chest, as an eyewitness was only a few feet away at the 

time of the shooting. Pennsylvania courts have consistently held that this is 

sufficient for a first-degree murder conviction. See Commonwealth v. 

Mattison, 82 A.3d 386, 392 (Pa. 2013) (concluding sufficient evidence 

existed where, “eye witness testimony demonstrate[d] that [the defendant] 

... fatally shot the victim in the head at close range while the victim was lying 

defenseless on the ground[]”). Additionally, the jury was free to believe and 

infer from Gray and Gould’s original statements that an agreement existed 

between Appellant and his cohorts to kill Jacobs. See Commonwealth v. 

Collins, 70 A.3d 1245, 1250 (Pa. Super. 2013) (concluding that a jury can 

infer an agreement for conspiracy purposes where the defendant and a 

cohort arrive and leave the crime scene together), appeal denied, 80 A.3d 
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774 (Pa. 2013). As a result, Appellant is not entitled to relief on this issue. 

See Diamond, supra. 

In his second issue, Appellant avers that the jury’s verdict was against 

the weight of the evidence. Specifically, Appellant argues that “the greater 

weight of the evidence does not establish that [Appellant] was the shooter.” 

Appellant’s Brief at 16. Appellant also argues that the weight of the 

evidence “does [not] establish that [Appellant] was a co-conspirator.” Id.

We begin by noting, “[a] claim alleging the verdict was against the 

weight of the evidence is addressed to the discretion of the trial court.” 

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation 

omitted). An argument that the jury’s verdict was against the weight of the 

evidence concedes that the evidence was sufficient to sustain the 

convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), 

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our 

Supreme Court has recently admonished that “[a] new trial should not be 

granted because of a mere conflict in the testimony or because the judge on 

the same facts would have arrived at a different conclusion.” 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). 

Instead, “the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them or to give 

them equal weight with all the facts is to deny justice.” Id. (internal 

quotation marks and citation omitted). “[A] new trial should be awarded 
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when the jury’s verdict is so contrary to the evidence as to shock one’s 

sense of justice ....” Id. 

As an appellate court it “is not [our role] to consider the underlying 

question of whether the verdict is against the weight of the evidence.” 

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted). 

An argument that the jury’s verdict was against the weight of the evidence 

remains “[o]ne of the least assailable reasons for granting ... a new trial ....” 

Id. (citation omitted). “Thus, only where the facts and inferences disclose a 

palpable abuse of discretion will the denial of a motion for a new trial based 

on the weight of the evidence be upset on appeal.” Id. (citation omitted; 

emphasis in original). 

In this case, Appellant avers that “the evidence as presented by the 

Commonwealth was contradictory and unreliable ... [and] there [wa]s no 

eyewitness testimony identifying [A]ppellant as being involved in the 

shooting death of [Jacobs], and the civilian witnesses that did testify before 

the jury all denied inculpating [A]ppellant in any out-of-court statements.” 

Appellant’s Brief at 17-18.

 To the extent these arguments speak to the weight of the evidence, as 

opposed to its sufficiency, we conclude Appellant is not entitled to relief. As 

noted above, through the use of her prior inconsistent statement to police, 

evidence was admitted that Gray witnessed Appellant and his co-defendants 

shoot Jacobs in the head and in the chest at close range. N.T., 7/10/12, at 
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123-125. In addition, the Commonwealth presented Gould’s testimony that 

he witnessed the shooting from the view of his living room window. 

Specifically, Gould stated he heard gunshots outside and went to his 

window. N.T., 7/11/12, at 143. When Gould got to the window he saw “a 

person standing over [Jacobs’s] body and shoot him in the head.” Id. at 

144. In his statement to the police, Gould identified that shooter as 

“Alonzo.” Id. at 144-145. Gould identified Appellant at trial as that Alonzo. 

Id. at 145. 

 It is axiomatic that the jury is the ultimate finder of fact at trial. 

 [T]he veracity of a particular witness is a 

question which must be answered in reliance on the 

ordinary experiences of life, common knowledge of 

the natural tendencies of human nature, and 

observations of the character and demeanor of the 

witness. As the phenomenon of lying is within the 

ordinary capacity of jurors to assess, the question of 

a witness’s credibility is reserved exclusively for the 

jury. 

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted). 

Likewise, “[t]he trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, part or none 

of the evidence.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa. 

Super. 2013), appeal denied, --- A.3d ---, 1035 MAL 2013 (Pa. 2014). This 

includes when a witness recants a prior statement. See Commonwealth v. 

Hanible, 30 A.3d 426, 443 n.11 (Pa. 2011) (stating, “the jury was free to 

evaluate both [the witness]’s statement to police as well as his testimony at 
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trial recanting that statement, and free to believe all, part, or none of the 

evidence[]”) (citation omitted), cert. denied, Hanible v. Pennsylvania, 133 

S. Ct. 835 (2013). Therefore, the jury was free to believe or disbelieve Gray 

and Gould’s recantation of their prior statements to police and credit those 

original statements. See id. As an appellate court we will not reweigh the 

evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation 

omitted). Based on these considerations, we conclude the trial court did not 

commit a palpable abuse of discretion when it denied Appellant’s postsentence motion arguing that the verdict was against the weight of the 

evidence. See Morales, supra. 

 In his third issue, Appellant avers that the trial court erred when it 

refused to grant a mistrial when the Commonwealth insinuated that 

Appellant was a drug dealer. Appellant’s Brief at 19. As with Appellant’s 

previous issues, we begin by stating our standard of review. 

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

denial of a motion for a mistrial is limited to 

determining whether the trial court abused its 

discretion. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the 

law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or the result of 

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

abused. A trial court may grant a mistrial only 

where the incident upon which the motion is based is 

of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the 

jury from weighing and rendering a true verdict. A 
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mistrial is not necessary where cautionary 

instructions are adequate to overcome prejudice. 

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

omitted); see also Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. 

Super. 2012) (stating, “we review the trial court’s determination that a new 

trial was warranted due to prosecutorial misconduct for abuse of 

discretion[]”) (citation omitted).

Appellant’s argument is limited to the following incident which 

occurred during the Commonwealth’s redirect examination of Detective 

Thomas Gaul. 

[Commonwealth]: Based on the information you 

received -- and [defense counsel] has asked about 

[Jacobs], and the information that he was actively 

dealing in that same area; correct? 

[Detective Gaul]: Yes, ma’am.

[Commonwealth]: Based on the information 

that you received from the witnesses -- were these 

three defendants also actively dealing in that area? 

...

[Defense Counsel]: Objection. 

...

[Trial Court]: Sustained. The jury will absolutely 

disregard that last question. 

And [Commonwealth], you’re done with your 

direct. 

...
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 Members of the jury, you will totally disregard 

the last question. It insinuated things that are not

relevant to this case. That should not be considered 

by you. That should have no part in any 

consideration or discussions that you have during 

your deliberations. 

...

[Defense Counsel]: Just for the record, 

notwithstanding the admonition, for the record, I 

make a motion for a mistrial based on counsel’s last 

question. 

[Trial Court]: Denied. 

N.T., 7/12/12, at 131-132, 134. 

 Assuming arguendo that the Commonwealth’s remark was improper, it 

does not follow that a new trial is warranted if the error is harmless. “[A]n 

error may be considered harmless only when the Commonwealth proves 

beyond a reasonable doubt that the error could not have contributed to the 

verdict.” Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super. 

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013). 

The Commonwealth bears the burden of establishing 

the harmlessness of the error. This burden is 

satisfied when the Commonwealth is able to show 

that: (1) the error did not prejudice the defendant or 

the prejudice was de minimis; or (2) the erroneously 

admitted evidence was merely cumulative of other 

untainted evidence which was substantially similar to 

the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial 

[e]ffect of the error so insignificant by comparison 

that the error could not have contributed to the 

verdict. 
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Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation 

omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014). 

 In this case, the Commonwealth presented additional evidence that 

Appellant sold drugs. Gray told the police in her original statement that 

Appellant attempted to sell her drugs but she rejected that offer. N.T., 

7/10/12, at 122. Gould also testified via his original statement to the police 

that Appellant sold drugs in the neighborhood. N.T., 7/11/12, at 163. 

Furthermore, the following exchange occurred during Sampson’s direct 

examination with the Commonwealth. 

[Commonwealth]: Do you see Butter in the 

courtroom today? 

[Sampson]: I’m not sure. I’m not sure which 

one it is. Wait a minute. I think it’s the middle one 

is Butter I think. 

[Commonwealth]: Okay. Your Honor, for the 

record identifying Alonzo Ellison by point of finger 

and also by location in relation to the other 

defendants. ... How did you know Butter?

[Sampson]: Through drug activity. 

[Commonwealth]: What do you mean? 

[Sampson]: I would get drugs from him. 

[Commonwealth]: And would you also get drugs 

from him inside the projects? 

[Sampson]: No. Mostly I would have him come 

to my house. 

Id. at 213-214. 
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 Based on this testimony, at a minimum, we conclude that any error 

was harmless in this instance. At no point did Appellant object to the 

testimony of Gray, Gould or Sampson indicating that Appellant sold drugs. 

Therefore, the reference in question by the Commonwealth during Detective 

Gaul’s redirect implying that Appellant sold drugs was harmless because it 

was de minimis and “was merely cumulative of other untainted evidence[.]” 

Green, supra. As a result, Appellant is not entitled to relief on this issue. 

 In his fourth issue, Appellant avers that the trial court erred in 

overruling an objection to a factual misstatement made during the 

Commonwealth’s summation. Appellant’s Brief at 21.

 Our standard of review for a claim of 

prosecutorial misconduct is limited to whether the 

trial court abused its discretion. In considering this 

claim, our attention is focused on whether the 

defendant was deprived of a fair trial, not a perfect

one. Not every inappropriate remark by a 

prosecutor constitutes reversible error. A 

prosecutor’s statements to a jury do not occur in a 

vacuum, and we must view them in context. Even if 

the prosecutor’s arguments are improper, they 

generally will not form the basis for a new trial 

unless the comments unavoidably prejudiced the 

jury and prevented a true verdict. 

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa. Super. 2012) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 57 

A.3d 65 (Pa. 2012). 

 In the case sub judice, Appellant objected to the following remark by 

the Commonwealth during its closing argument. 
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[Commonwealth]: Also, that Worm and 

[Appellant] had conversations about 9[-]millimeters. 

There was a 9-millimeter there. Butter asked Worm 

for his 9-millimeter. I mean these people have guns 

in [Sampson’s] house.

[Defense Counsel]: Objection. 

[Trial Court]: Overruled. 

N.T., 7/13/12, at 96-97. Appellant argued that Sampson’s statement 

actually was that Worm asked him for his 9-millimeter, not the other way 

around. Id. at 161. Appellant’s recollection of Sampson’s statement was 

accurate. See N.T., 7/11/12, at 231. Appellant argues that this was a 

“material misrepresentation” by the Commonwealth and that Appellant “was 

unfairly prejudiced.” Appellant’s Brief at 22.

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

this issue. Although the Commonwealth’s recitation of the defendants’ 

nicknames was backwards, Appellant has not pointed to anywhere in the 

record to support the notion that this singular reference was a deliberate 

“material misrepresentation.” Id. Without such evidence, Appellant’s 

argument cannot succeed. See, e.g., Commonwealth v. Simmons, 662 

A.2d 621, 639 (Pa. 1995) (concluding a new trial was not warranted where, 

“a review of the record does not show that the prosecutor’s paraphrasing or 

misquotation of [a witness]’s testimony was deliberate[]”) (citation omitted), 

cert. denied, Simmons v. Pennsylvania, 516 U.S. 1128 (1996); 

Commonwealth v. Mollett, 5 A.3d 291, 311 (Pa. Super. 2010) (stating, 
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“[a] prosecutor’s declaration[s] during an opening or closing statement 

constitutes reversible error only if the prosecutor deliberately attempts to 

destroy the objectivity of the jury[]”) (emphases added), appeal denied, 14 

A.3d 826 (Pa. 2011). 

 In addition, the trial court also carefully instructed the jury regarding 

closing arguments as follows. 

 You should keep in mind, however, that you 

are not bound by counsel’s recollection of the 

evidence because it’s your recollection of the 

evidence and yours alone that has to guide you when 

you deliberate. 

 If there is a discrepancy between how the 

lawyers remember something and how you 

remember it, you should be guided by your own 

recollection. 

N.T., 7/13/12, at 11-12.

It is axiomatic that “[t]he jury is presumed to follow the [trial] court’s 

instructions.” Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013) 

(citation omitted). Furthermore, our Supreme Court has held that courts 

may deem a prosecutorial misstatement cured by the trial court giving the 

above-quoted instruction to the jury. Commonwealth v. Smith, 995 A.2d 

1143, 1164 (Pa. 2010) (citation omitted), cert. denied, Smith v. 

Pennsylvania, 131 S. Ct. 518 (2010). As the trial court gave such an 

instruction in this case, we conclude the trial court did not abuse its 

discretion in overruling Appellant’s objection. See Bedford, supra. 
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Based on the foregoing, we conclude all of Appellant’s issues on appeal 

are devoid of merit. Accordingly, the trial court’s July 25, 2012 judgment of 

sentence is affirmed. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014