J. S30023/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

VERNEL J. McDONALD, : No. 2909 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, September 16, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0011816-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 22, 2015

Vernel J. McDonald appeals from the judgment of sentence of 

September 16, 2014. We affirm.

The facts of this matter have been aptly summarized by the trial court 

as follows:

At approximately 5:20 p.m. on June 13th, 

2012, Philadelphia Police Officer Kenneth Sherard 

responded to a radio call at the 8400 block of 

Lindbergh Boulevard, just north of Philadelphia 

International Airport. Upon arrival, Officer Sherard 

saw Tyrell Brown lying face down on the sidewalk, in 

a large pool of blood that had accumulated around 

his neck area. Brown was completely unresponsive, 

and Officer Sherard could detect no signs of life. 

Officer Sherard saw several fired cartridge casings 

and a black wallet, all lying on the ground. The 

wallet was lying near a blue Pontiac.

Police recovered a Glock 23 .40 caliber 

handgun from the decedent’s body. Philadelphia 
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Police Officer Khaliv Ivy and his partner spoke on the 

scene with a man named Jamal, who would later be 

identified as Jamal Gregory. Gregory was distraught 

and said he was the decedent’s cousin. He said that 

they had been approaching the scene of a 

prospective drug deal when males from a Blue 

Pontiac shot at them, killing Tyrell Brown. 

Officer Ivy recovered $1,028 and a plastic baggie 

containing thirty-one green tinted small Ziploc 

baggies from Gregory.

Police recovered seven fired cartridge casings 

at the scene. They also impounded the blue Pontiac, 

a G6 GT, from which they later recovered a Sturm 

Ruger Model P94, .40 caliber handgun. Police also 

received a bullet fragment from the right upper chest 

of the deceased, and a fragment from the left side of 

his neck. All seven of the casings found at the 

scene, as well as the bullet fragments found in the 

decedent, were fired from the P94 found in the blue 

Pontiac.

Detective James Crone took a statement from 

the defendant on September 15th, 2012, in which the 

defendant said that he met with the decedent and 

Jamal Gregory, who he knew as “Mally,” on the night 

of the shooting. He was meeting with them in order 

to purchase Oxycontin, because his prescription pain 

medicine had been stolen. He reported that they 

robbed him at gunpoint, taking $1300 and his wallet. 

According to the defendant’s statement, as the 

decedent and “Mally” were leaving the scene of the 

robbery, the defendant shot the decedent because 

the decedent was pointing a gun at him. The blue 

Pontiac G6 GT impounded from the scene belonged 

to the defendant.

Dr. Marlon Osbourne, Associate Medical 

Examiner, gave expert testimony that the decedent’s 

death was caused by two bullet wounds to his back.

Jamal Gregory, the decedent’s cousin, testified 

that he was present when the decedent was shot. 

He said that the decedent and the defendant argued 
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while in the defendant’s car, but that he was leaning 

on the outside of the car and could not hear what 

they were arguing about. When the defendant got 

out of his car, Gregory took the defendant’s phone 

and car keys. As he was walking away with them, 

he looked at the decedent and heard a gunshot, and 

then saw the decedent fall.

During the incident, the defendant was 

accompanied by a Kimey Wong, who did not testify 

at trial. Jamal Gregory testified that Kimey Wong 

was armed and chased him at gunpoint from the 

scene. Philadelphia Police Officer Torin Saunders 

testified that he arrested Wong near the scene of the 

shooting, and that employees of a local business 

pointed him toward an object that Wong dropped in 

a trash can, which turned out to be a gun.

The parties stipulated that the defendant did 

not have a license to carry a gun and was not eligible 

for such a license.

The defendant elicited character testimony 

from Jonathan Koutcher, Esq., James Zergani, 

Eugene Garfield, Kim Griffin, Stephen Troy, 

Kendall Swain, and Keith Robinson. The Assistant 

District Attorney asked Zergani, Garfield, Troy, and 

Swain whether knowing that the defendant was 

involved with a drug deal and had an illegal firearm 

would change their opinion as to the defendant’s 

character.

Trial court opinion, 12/3/14 at 2-4 (citations to the transcript omitted).

On July 2, 2014, following a jury trial, appellant was found guilty of 

voluntary manslaughter, possession of an instrument of a crime, firearms 

not to be carried without a license, and carrying a firearm on the public 

streets of Philadelphia. Post-trial motions were denied. On September 16, 

2014, the trial court imposed an aggregate sentence of 71⁄2 to 15 years’ 
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incarceration. Post-sentence motions were denied on September 24, 2014. 

Appellant filed a timely notice of appeal on October 20, 2014. Appellant 

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has 

filed an opinion. 

Appellant has raised the following issues for this court’s review:

[1.] Was the evidence insufficient to support the 

charges because the Commonwealth failed to 

disprove beyond a reasonable doubt that 

appellant did not kill the victim in self-defense?

[2.] Did the trial court commit an abuse of 

discretion by overruling objections to 

testimony concerning an unrelated crimes [sic] 

committed by Kimey or Kimmy Wong[?]

[3.] Did the trial court commit an abuse of 

discretion by overruling objections to the 

prosecution’s impeachment of appellant’s 

character witnesses with the alleged facts of 

the instant matter?

Appellant’s brief at 3 (capitalization omitted) (citation to the record omitted).

In his first issue on appeal, appellant argues that the Commonwealth 

failed to disprove he was acting in self-defense when he shot Brown. 

According to appellant, he had a reasonable belief that he was in mortal 

danger when he shot Brown. 

When reviewing a sufficiency of the 

evidence claim, this Court must view the 

evidence and all reasonable inferences to 

be drawn from the evidence in the light 

most favorable to the Commonwealth as 

verdict winner, and we must determine if 

the evidence, thus viewed, is sufficient to 

prove guilt beyond a reasonable doubt. 
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This Court may not substitute its 

judgment for that of the factfinder. If 

the record contains support for the 

verdict, it may not be disturbed.

Commonwealth v. Smith, 710 A.2d 1218, 1219 

(Pa.Super.1998) appeal denied, 557 Pa. 638, 732 

A.2d 1209 (1998) (citations omitted). Moreover, a 

jury may believe all, some or none of a party’s 

testimony. See Commonwealth v. Purcell, 403 

Pa.Super. 342, 589 A.2d 217, 221 (1991).

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa.Super. 2000), appeal 

denied, 782 A.2d 542 (Pa. 2001).

Where there is a claim of self-defense, the 

Commonwealth has the burden to prove beyond a 

reasonable doubt that the killing was not committed 

in self-defense. See id. In order to disprove 

self-defense, the Commonwealth must prove beyond 

a reasonable doubt one of the following elements: 

(1) that the defendant did not reasonably believe it 

was necessary to kill in order to protect himself 

against death or serious bodily harm, or that the 

defendant used more force than was necessary to 

save himself from death, great bodily harm, or the 

commission of a felony; (2) that the defendant 

provoked the use of force; or (3) that the defendant 

had a duty to retreat and that retreat was possible 

with complete safety. See 18 Pa.C.S.A. 

§ 505(b)(2); see also Commonwealth v. Hill, 427 

Pa.Super. 440, 629 A.2d 949, 952 (1993). If the 

Commonwealth establishes any one of these three 

elements beyond a reasonable doubt, then the 

conviction is insulated from a defense challenge to 

the sufficiency of the evidence where self-protection 

is at issue. See Hill, 629 A.2d at 952.

Id. at 1148-1149.

In order to establish the defense of self-defense 

under 18 Pa.C.S. § 505, the defendant must not only 

show that he was protecting himself against the use 
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of unlawful force, but must also show that he was 

free from fault in provoking or continuing the 

difficulty which resulted in the killing.

Commonwealth v. Serge, 837 A.2d 1255, 1266 (Pa.Super. 2003), 

affirmed, 896 A.2d 1170 (Pa. 2006), cert. denied, 549 U.S. 920 (2006) 

(footnote omitted) (citations omitted).

Appellant claims that Gregory was turning toward him and raising his 

gun. (Appellant’s brief at 24.) This is based on appellant’s statement to 

police, in which he related, “I proceed to get out of the car while their backs 

were turned. Mally still had his gun in his hand and he started to turn 

around. I pulled my gun. When Mally was pointing the gun at me, I shot.” 

(Notes of testimony, 7/1/14 at 82.) However, this contradicts Gregory’s 

testimony, in which he denied having a gun:

Q. Mr. Gregory, did you have a gun on you that 

day?

A. No.

Q. Did you ever point any guns at anyone that 

day?

A. No.

Id. at 143.

The jury was free to reject appellant’s statement and accept Gregory’s 

testimony, that he was unarmed, as the truth. In addition, while Brown did 

have a gun, it was recovered from his front pants pocket. (Id. at 222.) 
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Brown was shot in the back, indicating that he was walking away from 

appellant when he was shot. As the trial court remarks,

Thus, it is impossible to conclude otherwise than that 

the danger to the defendant had passed at the 

moment of the shooting, and that the shooting was 

motivated by anger and fear at having been robbed 

at gunpoint, rather than by any kind of reasonable 

belief that his life was currently in danger.

Trial court opinion, 12/3/14 at 5.

Furthermore, appellant was not free from fault in provoking or 

continuing the difficulty. Brown and Gregory were walking away when 

appellant drew his weapon and exited the vehicle. The Commonwealth 

successfully disproved appellant’s self-defense claim.

Next, appellant argues that the trial court abused its discretion in 

permitting testimony regarding unrelated criminal acts of Kimey Wong. 

Appellant claims that the testimony that Wong chased Gregory through a 

parking lot, shooting at him, was irrelevant and highly prejudicial. Appellant 

was not charged as an accomplice or co-conspirator of Wong’s, and 

appellant argues that Wong’s actions could unfairly be imputed to him, since 

they arrived together.

The admission of evidence is a matter 

vested within the sound discretion of the 

trial court, and such a decision shall be 

reversed only upon a showing that the 

trial court abused its discretion. In 

determining whether evidence should be 

admitted, the trial court must weigh the 

relevant and probative value of the 

evidence against the prejudicial impact of 
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the evidence. Evidence is relevant if it 

logically tends to establish a material fact 

in the case or tends to support a 

reasonable inference regarding a 

material fact. Although a court may find 

that evidence is relevant, the court may 

nevertheless conclude that such evidence 

is inadmissible on account of its 

prejudicial impact.

Commonwealth v. Weakley, 972 A.2d 1182, 1188 

(Pa.Super.2009) (quoting Commonwealth v. Reid, 

571 Pa. 1, 811 A.2d 530, 550 (2002)). “An abuse of 

discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or 

the exercise of judgment that is manifestly 

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

or partiality, as shown by the evidence of record.” 

Id. at 1188-89 (citing Commonwealth v. Carroll, 

936 A.2d 1148, 1152-53 (Pa.Super.2007)). “An 

abuse of discretion may result where the trial court 

improperly weighed the probative value of evidence 

admitted against its potential for prejudicing the 

defendant.” Id. (quoting Commonwealth v. Viera, 

442 Pa.Super. 348, 659 A.2d 1024, 1028 (1995)).

Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014).

The evidence was admissible to refute appellant’s self-defense claim. 

Appellant alleged that Gregory was armed and pointing a gun at him when 

he shot Brown. Evidence that Wong was chasing Gregory through the 

parking lot, shooting at him, corroborates Gregory’s testimony that he was 

unarmed. In addition, the evidence was admissible to explain the three fired 

cartridge casings recovered from the middle school parking lot. They 
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matched the firearm which Wong abandoned in a restaurant trashcan. 

(Notes of testimony, 7/1/14 at 214-215.)

The evidence was also admissible as part of the natural development 

of the facts of the case. See Commonwealth v. Burton, 770 A.2d 771, 

778 (Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), 

overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d 

617 (Pa. 2002) (evidence of other crimes, wrongs, or bad acts is admissible 

where they were part of a chain or sequence of events which formed the 

history of the case and were part of its natural development, also known as 

the ‘complete story’ rationale (citations omitted)). Gregory testified that 

someone other than appellant was shooting at him. (Notes of testimony,

7/1/14 at 145-147, 171.) According to Gregory, this other individual was 

chasing him through the middle school parking lot, firing as he ran. (Id. at 

145-147.) Officer Torin Saunders’ testimony concerning the apprehension of 

Wong in a nearby restaurant and the recovery of a firearm from a trashcan 

which matched the fired cartridge casings in the parking lot not only 

corroborated Gregory’s testimony but also served to “complete the story” for 

the jurors. Furthermore, we agree with the trial court that any prejudice to 

appellant was minimal, where there was no allegation appellant told Wong to 

chase Gregory and the charges against appellant, that he shot Brown in the 

back multiple times, were far more serious than Wong’s conduct. The trial 

court did not abuse its discretion in admitting this evidence.
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Finally, appellant argues that the trial court erred in allowing the 

Commonwealth to cross-examine character witnesses about the allegations 

in this case, i.e., that appellant was in possession of an illegal firearm and 

was attempting to purchase narcotics. Appellant contends that this was 

impermissible cross-examination. 

In a criminal case, the defendant may offer character 

witnesses to testify as to that defendant’s reputation 

in the community regarding a relevant character 

trait. See Pa.R.E. 404(a)(1); 405(a). Of course, the 

Commonwealth may attempt to impeach those 

witnesses. Commonwealth v. Hoover, 16 A.3d 

1148, 1149 (Pa.Super.2011) (citing 

Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 

1033, 1035 (1999)). “For example, when 

cross-examining character witnesses offered by the 

accused, the Commonwealth may test the witnesses’ 

knowledge about specific instances of conduct of the 

accused where those instances are probative of the 

traits in question.” Hoover, 16 A.3d at 1149-50 

(citing Pa.R.E. 405(a)). However, the 

Commonwealth’s right to cross-examine character 

witnesses is not unlimited: the Commonwealth may 

not cross-examine a character witness about a 

defendant’s uncharged criminal allegations, Morgan, 

739 A.2d at 1035-36, or a defendant’s arrests that 

did not lead to convictions. Commonwealth v. 

Scott, 496 Pa. 188, 436 A.2d 607, 611-12 (1981).

Commonwealth v. Kuder, 62 A.3d 1038, 1057-1058 (Pa.Super. 2013).

Appellant called several witnesses who testified to his good reputation 

in the community for being a law-abiding, non-violent, and peaceful person. 

The Commonwealth could then cross-examine them regarding the facts of 

this case, including that appellant was in possession of an illegal firearm and 

was attempting to purchase prescription pain medication off the street. 
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These allegations are not disputed. The Commonwealth did not ask the 

witnesses about uncharged criminal conduct. In addition, appellant 

effectively opened the door to such cross-examination by offering improper 

character testimony, e.g., that his former employer considers him as a son 

and “one of the best guys that we have.” (Notes of testimony, 7/2/14 at 38; 

Pa.R.E. 405(a) (“Testimony about the witness’s opinion as to the character 

or character trait of the person is not admissible.”).) See Kuder, 62 A.3d at 

1058 (“Appellant opened the proverbial door and ‘cannot complain that the 

Commonwealth chose to explore further what was behind that door.’ The 

Commonwealth’s cross-examination was directed toward what might change 

these personal opinions. This was a fair response to Appellant’s direct 

examination.”), quoting Commonwealth v. Smith, 17 A.3d 873, 914 (Pa. 

2011).

Appellant relies on Commonwealth v. Nellom, 565 A.2d 770 

(Pa.Super. 1989), which is inapposite. There, this court held that it was 

error to permit the Commonwealth to impeach the defendant’s character 

witness as to her knowledge of the defendant’s robbery conviction, which 

arose out of the same incident that gave rise to the charges for which the 

defendant was on trial. The defendant had been convicted of robbery, but 

the jury was deadlocked on the remaining charges, including rape. We held 

the robbery conviction was irrelevant because, “Evidence of the subsequent

robbery conviction, however, would not in anyway [sic] call into question the 
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reliability of the character witness’s testimony because, at the time the 

sexual offenses were allegedly committed, his reputation did not include a 

conviction for robbery.” Id. at 776. The relevant time period for reputation 

evidence is at the time of or prior to the date of the offense for which the 

defendant is on trial; convictions that occur subsequent to the offense 

presently charged are irrelevant. Id.

Here, the Commonwealth was not cross-examining the witnesses 

regarding a subsequent conviction. Rather, the Commonwealth questioned 

the witnesses about the facts of this case, including that appellant was in 

possession of an illegal firearm. This was an appropriate line of questioning 

in response to the witnesses’ testimony that appellant had a good reputation 

for being a peaceful and law-abiding person. The Commonwealth can 

cross-examine the witnesses to show that their knowledge of appellant’s 

reputation is unreliable or incomplete. There is no error here.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015