Com. v. Mitchell, R.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2015
• Docket: 2524 EDA 2013
• Status: Unpublished

Opinion

J-A33011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RICHARD MITCHELL

Appellant No. 2524 EDA 2013

Appeal from the Judgment of Sentence April 19, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002357-2012, CP-51-CR-0002358-2012

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015

Richard Mitchell appeals from his judgment of sentence, imposed by

the Court of Common Pleas of Philadelphia County, following his convictions

for third-degree murder,1 possession of an instrument of a crime (PIC),2

carrying a firearm without a license,3 providing false identification to law

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 907. 3 18 Pa.C.S. § 6106(a)(1). J-A33011-14

enforcement,4 and prohibited possession of a firearm.5 Upon review, we

affirm.

On September 10, 2011, at approximately 3:30 a.m., Mitchell shot

and killed Shari Harris on the 3300 block of N. 13 th Street. Mitchell shot

Harris because she did not have the money she owed him for drugs. Police

officers spoke with several witnesses who identified Mitchell as the shooter.

The police ultimately apprehended Mitchell on September 21, 2011, after

chasing him on foot.

On February 25, 2013, a jury convicted Mitchell of the aforementioned

offenses, and on April 19, 2013, the court sentenced Mitchell to an

aggregate term of 31½ to 63 years’ imprisonment. The court denied

Mitchell’s post-sentence motion on August 27, 2013.

Thereafter, Mitchell filed a notice of appeal on August 29, 2013. On

September 3, 2013, the court ordered Mitchell to file a Concise Statement of

Errors Complained of on Appeal. Mitchell filed his statement on September

12, 2013.6 ____________________________________________

4 18 Pa.C.S. § 4914(a). 5 18 Pa.C.S. § 6105(a)(1). 6 On November 18, 2013, Mitchell filed a petition before this Court, requesting a remand to the trial court based on newly discovered evidence. On December 10, 2013, we directed the trial court to determine whether an evidentiary hearing was warranted. On December 20, 2013, following counsel’s argument on the petition, the trial court determined that an evidentiary hearing on newly discovered evidence was not warranted. This (Footnote Continued Next Page)

-2- J-A33011-14

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

1. Did the Assistant District Attorney err in her closing speech, giving her personal opinion as to the credibility of a witness and the guilt of Mitchell, suggesting the defense had the burden to produce evidence, and unfairly criticizing and demeaning Mitchell’s attorneys? Did this misconduct warrant a new trial?

2. Did Judge Byrd err in allowing testimony that Mitchell threatened his sister and brother-in-law with a gun on August 12, 2012, approximately one month before the September 10, 2011 crime at issue since this was a totally unrelated crime and the ballistic expert could not say this gun was used on September 10, 2011? Did this unrelated crime taint the jury?

3. Did Judge Byrd err in denying Mitchell’s petition to remand on newly discovered evidence concerning the newly discovered misconduct of Homicide Detective Dove, particularly since Detective Dove did not have any written waivers of Miranda7 rights?

4. Did Judge Byrd err in not suppressing Mitchell’s unsigned statement since he contends Detective Dove never read him his Miranda rights and the statement is blank for the Miranda warnings, and does not contain the Miranda warning forms always used by the Philadelphia Homicide Detectives? Was this a violation of Article 1, Section 9 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments of the United States Constitution? Was there no knowing and voluntary waiver of Miranda rights?

Brief of Appellant, at 5-6.

_______________________ (Footnote Continued)

Court subsequently issued an order permitting Mitchell to raise the claim and apply for relief in his appellate brief. 7 Miranda v. Arizona, 384 U.S. 436 (1966).

-3- J-A33011-14

We have reviewed the transcripts, briefs, the relevant law, and the

well-reasoned opinion of the Honorable Sandy L.V. Byrd, and find that the

opinion of the trial court thoroughly, comprehensively, and correctly

disposes of Mitchell’s first, second, and fourth issues on appeal. See Trial

Court Opinion, 3/31/14, 32-36; 20-23; 25-29 (finding (1) no prosecutorial

misconduct because comments were not improper or unduly prejudicial to

Mitchell; (2) no error in allowing testimony of threat because it was used to

establish access to and familiarity with handguns and to prove the identity of

the perpetrator of the crime; and (3) waiver of Miranda rights was knowing

and voluntary). We also find that Mitchell’s third claim merits no relief.

In his third issue, Mitchell argues that Judge Byrd erred when he

denied Mitchell’s request for an evidentiary hearing on newly discovered

evidence concerning Detective Dove’s alleged misconduct. Our standard for

awarding a new trial because of after-discovered evidence is well settled.

The evidence: (1) could not have been obtained prior to trial by exercising

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

not be used solely to impeach a witness’s credibility; and (4) would likely

result in a different verdict. See Commonwealth v. Pagan, 950 A.2d 270,

292 (Pa. 2008) (citations omitted).

Here, at the hearing to determine whether an evidentiary hearing was

proper, Mitchell’s counsel acknowledged that his only knowledge of Detective

Dove’s alleged misconduct came from recent newspaper articles. N.T.

Hearing, 12/20/13, at 7. Our Supreme Court recently held that newspaper

-4- J-A33011-14

articles are merely hearsay reports and not an offer of proof because they

are not evidence. Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).

Thus, in order to prevail on a motion for a new trial based on after-

discovered evidence, the motion “must, at the very least, describe the

evidence that will be presented at the hearing. Simply relying on conclusory

accusations made by another, without more, is insufficient to warrant a

hearing.” Id. at 827. Accordingly, we find Castro dispositive and discern

no error by the trial court for denying Mitchell’s request for an evidentiary

hearing.

For the foregoing reasons, we affirm Mitchell’s judgment of sentence.

Counsel is directed to attach a copy of the trial court opinion in the event of

further proceedings in this matter.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2015

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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTII OF PENNSYLV ANlA CP -51 -CR-0002357-20 12 CP-51-CR-00023 58-20 12

v. FILED SUPERIOR COURT MAR 31 2014 RlCHARD MITCHELL Criminal Appeals Unii 2524 EDA 2013· First JudiCial District of PA

OPThl:ON

March 31, 2014

On February 25, 2013, a jury convicted defendant Richard Mitchell of third-degree murder and possession of an instrument of crime, at CP-SI-CR-0002357 -2012. The jury also convicted defendant of carrying a firearm without a license in violation of Section 6106 of the Uniform Firearms Act, providing fals~ identification to law enforcement, and violating. Section 6105 of the Uniform Firearms Act, at CP-S1 -CR-0002358 -2012. On April 19, 2013, defendant was sentenced to an aggregate imprisonment term of thirty-one and one-half (31 "Yz) to sixty- three (63) years in prison. After his post-sentence motion was denied on August 27, 2013, defendant filed a notice of appeal on August 29,2013. On September 3,2013, this court ordered defendant to file a Statement of Matters Complained of on Appeal. Defendant's Statement was illed on September 12, 2013. On November 18, 2013, defendant filed a petition before the Superior Court requesting a remand to this court based on newly discovered evidence. On December 10, 2013, the Superior Court directed this court to determine whether an evidentiary hearing was warranted. l On December. 20, 2013, .following counsel's argument on the petition, this court determined that an evidentiary hea.rio.g: on newly discovered evidence was not warranted~

J A second identical order was issued on January 8,2014 to incorporate 'defendant's second case docket number, which had been inadvertently omitted from the December 20,2013 order.

Commw. V. Richard j'v[itchell Page 1 of39 Circulated 01/21/2015 03:18 PM

STATEMENT OF FACTS

On September 10, 2011, at approximately 3:30 a.m., defcndant shot and killed Sbari Harris on the 3300 block of 13th Street near the intersection of 13th Street and Rising Sun Boulevard. (NT 02114/13, pp. 20-23, 27-28; NT 02l151l3, pp. 23-27). Ms. Harris was twenty-threc (23) years old, five (5) feet and one (1) inch tall and one bundred and twenty-four (124) pounds. (NT 02114/13, p. 164). Defendant approached her and asked about a large drug dcbt that she owed to him. (NT 02l151l3, pp. 23-24,26-27). Ms. Harris told him that she did not have any money for him. (N.T. 02115/13, pp. 23 -24). Enraged with Ms. Harris's response, defendant put a gun to her head and fired. (N.T. 02115/13, pp. 23-27). After one gunshot, Ms. Ha..TTis fell to the ground, landing on her side with her head halfway on the sidewalk and her body on the strect between two vehicles. (NT 02114/13, pp. 29, 64, /29-130). Defendaot immediately fled the sccne. (N.T. 02114113, pp. 27, 62-64; NT 02115113, pp. 23-24). At 3:36 am., Ms. Harris "was pronounced dead by paramedics who responded to 3340 North 13th Street in Philadelphia. (NT 02l141l3, p. 164). Dr. Sam Gulino, Chief Medical Examiner, conducted an autopsy of the victim and testified at trial as an expert :in forensic pathology. (N.Y. 02114113, pp. 157, 161, 163, 167). Dr. Gulino concluded to a reasonable degree of scientific and medical certainty that the cause of Ms. Harris's death was one through and through gunshot wound to her head. (NT 02114/13, pp. 169-171, 175). The entrance wound was on Ms. Harris's left temple, about balfway between the corner of her eye and top of her ear. (NT 021l41l3, p. 173). The exit wound was on the rigbt rear of Ms. Harris's head, above and behind the ear. (N.T. 02114/13, p. 173). Thc bullet entered Ms. Harris's left temple, went through ber skull, and exited the right rear of her scalp. (NT 02/14/13, pp. 167, 173). It struck the frontal and parietal lobes on the left side. (N.Y. 02114113, pp. 169-170). It also struck some structures deep in the brain, induding the thalamus, the midbrain, and the occipital lobe on the right side of the brain. (N.Y. 02iI4/13, pp. 169-171). A person With damage to this part of the brain dies very quickly. thus Ms. Harris would have been rendered unconscious immediately aod collapsed to the ground. (N.T. 02114113, p. 171). Although a toxicology test detected cocaine ·and phencyclidine (PCP) in Ms. Harris's blood, those drugs did not contribute to her death. (N.Y. 02l14113,pp. 174-175, 178-179). Dr. Gulino also concluded to a reasonable degree of scientific and medical certainty that the maoner of Sbari Harris's death was homicide. (N.T. 02114/13, p. 175). He observed soot

Commw. v. Richard l\lfitchell Page 2 of39 Circulated 01/21/2015 03:18 PM

and gunpowder around the entrance wound. (NT. 02114/13, p. 168). The soot and gunpowder had seared into wIs. Harris's skin, indicating that the muzzle of a gun was approximately 8 inches or less from the victim's skin wben it Wl!5 fired. (NT 02114/13, pp. 168-169). On Saturday, September 10,2011, at approximately 3:35 a.ro., Police Officer Robert " Iavarez responded to 3300 North 13th Street (N.I. 02114/13, p. 129). Whcn he arrived on the scene, he saw Ms. Harris lying on her side with her head haL.:way on the sidewalk and her body on the street between two vehicles. (NT. 02114/13, pp. 129-130). Officer Iavarez searched the area for ballistics evidence, but none was recovered. (NT. 02114/13, pp. 133- 135, 206). He also searched for nearby video cameras in the area. (NT . 02114/13, p. 132). He found one facing the victim, but later discovered that it was not operational. (N.T. 02114/13, p. 132). Police officers found several witnesses who identified defendant as the shooter who fled the scene carrying a handgun. On the moming of September 10, 2011, Kevin Abraham arrived at 13th Street and Rising Sun Avenue while police officers were processing the scene. (NT . 02113113, pp. 99-1 00, 102-L03). After .' having a conversation with Anthony Baldwin, !vIr. .

Abraham told police that Mr. Baldwin was an .eyewitness and assisted them in finding him. (N.I. 02113/13, p. 102). Mr. Abraham provided a statement to homicide detectives at 5:40 a.m. (N.I. 02113113, pp. 104-105). Officer Tavarez transported wh. Baldwin to the Homicide Unit at 5:05 a.m. on September 10,2011. (NT. 02114113, pp. 138-139, 152, 154). On September 11, 2011, at approximately 7:50 a.m., Detective James Pitts interviewed Anthony Baldwin, who did not appear to be under the influence of drugs Or alcohoL (N.I. 02114/13, pp. 57, 62). During the interview, Mr. Baldwin identified the victim from a photograph and informed police that he knew her from the neighborhood. (N.I. 02114/13, p. 62). Mr. Baldwin signed this photograph after making the identification. (N.I . 02114/13, pp. 67-68). Mr. Baldwin told police that lie was sitting on his friend's porch down the street when the shooting occurred. (N.I. 02/14/13, p: 62). After Mr. Baldwin heard a "pow", he saw the shooter run from behind a van with a gun in his hand, turn onto Rising Sun Avenue heading toward Germantown Avenue. (N.I. 02114113, pp. 62-63). Mr. Baldwin described the shooter as a brown-skinned man whn appeared to be in his late20s. (N.I. 02114/13, pp. 63-64). The man ~-as wearing a bright red Adidas track suit and either a hood or a 'hat on his head. (N,T. 02114/13, p. 64). The man appeared to weigh more than him and was approximately 5 feet and 8

Cor:nmw. v. Richard Mitchell Page 3 of39 Circulated 01/21/2015 03:18 PM

to 9 inches tall. (NT 02114113, pp. 63-64). After re,iewing his statement, Mr. Baldwin signed it. (NT 02114/13, pp. 66-67). Detective Pitts showed Mr. Baldwin a pbotograpbic array that included eight photographs, one of which depicted defendant. (N. T. 02114113, p. 65). Mr. Bald",in stated that photograph number 5 looked familiar, but that the person was not the shooter. (N.T. 02114113, p. 66). Mr. Baldwin also stated that pllOtograph number 3 looked like the shooter, but he was not sure. (N.T. 02114/13, p. 66). Photograph ollIOber 3 displayed defendant. (N.T. 02114/13, p. 66). Mr. Baldwin circled both of these photographs after IIUiking the identiJications. (N.T.02/14113, p.70). During his interview, :Mr. Baldwin informed police that an "old bead fat smoker from around the way" picked up an unidentifiable item that defendant dropped as he fled the scene. (NT 02114/13, p. 63). The "fat smoker" was identiJied as Lathan Peterson after Mr. Baldwin was shown a photograph. (NT 02114113, pp. 64, 73). Mr. Baldwin signed this photograph after. making the identiJication. (N.T. 02114/13, pp. 67-68). Mr. Baldwin stJ.ted that Mr. Peterson , walked over to him and his friends and told them that he saw defendant fleeing the scene. (NT. 02114113, p. 64). Mr. Baldwin stated that he then walked oyer to the victim's corpse, which was lying between two cars. (N.T. 02114/13, p. 64). On September 11, 2011, at 10:15 am., Detective James Burns interviewed Lathan Peterson, who was also known as Lathan Barfield. (NT. 02114113, pp. 18-19). Barfield was the maiden name of Mr. Peterson's mother. (N. T. 02114113, p. 19). Mr. Peterson did not appear to be under the influence of alcohol or controlled substances during this interview. (NT. 02/14/13, pp. 19-20). Mr. Peterson told Detective Burns that he knew the shooter and his family, but he did not know the shooter's name. (NT. 02114/13, p. 20). As a result, Detective Burns gave Mr. Peterson the opportunity to review a substantial number of photographs before he made an identiJication. (N.T. 02114/13, pp. 21 -22). When Mr. Peterson viewed a photograph of defendant, he stJ.ted: "[T]hat's him. This is the guy I'm talking about." (N.T. 02114113, p. 21). Detective Burns printed the photograph and attached it te.' ivIr. Peterson's statement. (N.T. 02114/13, pp. 21-22). Mr. Peterson wrote On the top of the photograph "Guy running from . scene" and signed his name at the bottom. {NT. 02114/13, pp. 22-23). After MJ. Peterson made this identification, Detective Burp.s proceeded to tak.e his written statement. (N.T. 02114/13, p. 23). Detective Burns asked Mr. Peterson: <'Lathan, a little earlier you went on our imager and

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identified the person you saw dressed in the red shirt and red hat that was running from the scene and where the girl was shot and killed. Are you certain of that identification?" (NT 02114/13, p. 23). /vir. Peterson answered in the affirmarive without hesitation. (NT 02114/13, pp. 23-24). Mr. Peterson si~ed his statement. (NT 02(14/13, pp. 52-53). On September 15, 2011, at approximately 12:25 p.m., Detective Bums interviewed Nicole Porter. (N.T. 02/14/13, pp. 24-25). Ms. Porter was not under the influence of alcohol or controlled substances during this int~rview. (NT. 02/14/13, p. 25). Ms. Porter stated that she w~ outside on her mother's porch with Mr. Baldwin and another male nickllamed "Leaf' before the shooring. (NT 02114/13, pp. 27-28). Her daughter, Cashae Porter, was inside the house. . (N.T. 02114/13, p. 27). The shooting occurred while she was across the street from her mother's house talking to an unidentified male. (NT 02114/13, p. 27). Ms. Poner heard a "pow" and then saw a man run on 13th Street and tum onto Rising Sun Avenue. (NT . 02/14/13, p. 27). Ms. Porter described the man as having "black, brown skin" and being about her height, which is 5 feet and 6 inches. (NT 02/14/13, p. 28). The man was wearing a red shirt and a hat. (NT 02l14J13, p. 28). Although she did not get a good look at the man, she thought that his hat was " red also. (N.T. 02/14113, p. 28). A couple of minutes after thd shooting, Mr. Peterson came down the street and told her that the man had killed the victim. (N.T. 02114/13, p. 28). llllother man who lived on Rising Sun Avenue informed Ms. Porter that the shooter ran up to !vIr. Peterson and told him something about the shooring. (NT 02/14113, pp. 28-29). Based on this information, Ms. Porter thought that Mr. Peterson saw the shooter. (NT 02/14113, p. 28). Ms. Porter also stated that she and Mr. Baldwin walked over to the victim's body'and saw her lying on the ground in between two parked cars. (NT 02/14113, p. 29). Ms. Porter identified the victim after being shown a photograph. (NT 02114/13, pp. 29-30). This photograph was included in Ms. Porter's written statement, which she signed. (NT 02114/13, pp.29-31). On September 20,2011, Police Officers Diaz and Hernandez were assigned to work the I burglary detail as plain clothed officers. (NT 02115/13, pp. 69-71). At approximately 1l:52 p.m., they were directed to investigate an anonymous tip that a suspect described as a black male wearing a red hat, black jacket, and Timberland boots was at the intersection of Germantown Avenue and Tioga Street. (NT 02115/13, pp. 71-72). Within two minutes, they responded to

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·that area in search of the suspect. (NT. 02115/13, pp. 71-73). As they .werc travelling southbound on the "3400 block of Germantown Avenue, Officer Diaz 'observed defendant, who matcbed the description that had been provided over police radio. (N.T. 02115/13, p. 74). Defendaot was walking northbound with ao unidentified female. (NT. 02115113, p. 73). Because they were directed to a specific location, Officers Diaz and Hernandez continued onto the intersection of G=aotown Avenue aod Tioga Street. (N.T. 02/1511 3, p. 74). They saw DO one who matched the police radio description at that intersection. (N.T. 02/15113, p. 74) . . As a result, they made a U~twn and ?egan travelling northbound tow.ard the same direction that , defendant was walking. (N.T. 02115113, p. 74). Defendaot then turned left on Venango Street and was walking westbound toward Broad Street. (N.T. 02/15113, p. 75). When Officers Diaz and Hernandez reached defendant, their unmarked vehicle was almost parallel to him. (N.T. , 02115/13, p. 75). Officers Diaz and Hernandez turned on the siren and exited their vehicle. (N.T. 02115113, pp. 70, 75-76). When they approached defendaot, they identified themselves as police officers and asked if they could talk to him. (NT. 02115113, pp. 75-76). Before they could say anything else, defendant grabbed the right side of his waistband and began to run westbound. (NT. 02115/13, pp. 75, 77:78). Officer Diaz then pursued defendant on foot. (N.T. 02115113, pp. 76-77). Based on his experience and training, Officer Di~ recognized defendant's action as an indicator that he was in possession of a handgun. (N.T. 02115/13, pp. 76-77). Officer Diaz found defendant in.an alley near the 1400 block of Pacific Avenue) where he was. discarding his coat and hat and reacbing for his waistband. (N.T. 02/15/13, p. 78). Officer Diaz continued his pursuit aod toppled defendaot at the end of the alley. (NT. 02115/13, p. 78). Officer Diaz and defendaot fell into a fenee, whieh opened onto Paei:fic Avenue. (NT. 02115113, pp. 98-99). As the fenee opened, defendaot's gun was dislodged, flew into the air aod landed on the ground. (N.T. 02/15113, pp. 78, 84-85). Defendant continued his attempt to flee. (N.T. 02115113, pp. 78-79). As a result, Officer Diaz struck defendant once in the leg with his baton. (NT. 02115/13, pp. 78- 79). At that time, Officer Hernandez arrived and assisted with defendant's arrest, whieh occurred at 12:30 am. on September 21, 2011. (NT. 02/15113, pp. 78-79,89-90,102).'

, .' 1 At that time, there was an outstanding arrest warrant for defendant that bad been issued on August 17, 201! for another incident. (N.T. 02111114, pp. 289-290).

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At the time of his arrest, defendant told Officer Hernandez that his name was Dante Dawson and that his birthday was January 14, 1979. (NT. 02115/13, pp. 90, 104-105). Defendant also stated that he was five feet and ~ight inches tall and that he weighed 165 pounds. (N.T. 02115/13, p. lOS). He further stated that his address was 2522 Bouvier Street. (NT. 02115113, pp. 90-91, 106). As a result, Officer Hernandez processed defendant's arrest under the name Dante Dawson. (N.T. 02115113, p. 92). This procedure included an immecliate record check which revealed defendant's true identity, and that he bad used the name and date of birth of ills older brother when arrested. (N.T. 02l15!13, p. 112). Donte Dawson wed on October I, 1998. (NT. 02115113, p. 112). At the time of his death, Donte Dawson was nicknamed "Black" and lived at 1721 West Pacific Street in Philede1phia (N.T. 02115/13, p. 112). Immediately after his arrest, Officer Diaz retrieved defendant's gun ~d his discarded clothing frOID the alleyway. (N.T. 02115113, pp. 84, 87). Defendant's clothing included a black

wool navy coat and a red hat with a New Jersey Devil logo and a black brim. (NT. 02115/13, p. 84). Officer Diaz also recovered the gun that fell from defendant's person during his flight from the officers. (N.T. 02115/13, p. 84). The gun was a dark grayibroIlZe .38 caliber Colt handgun with a handle wrapped in electrical tape. (NT. 02115/13, p. 86). Officer Diaz quickly recovered this gun to insure that no one else could grab it. (N.T. 02/15/13, p. 87). Because he had

wfficulty opening the cylinder, he requested the SWAT Unit's assistance. (N.T. 02l151I3, p.

88). The SWAT Unit arrived and opened the cylinder for Officer Diaz, who retrieved one 9

millimeier fired cartridge casing and three live 9 millimeter cartridges from inside the gun. (NT. 02115/13, pp. 86, 88-89). This ballisti~s evidence was later submitted to the Firearms Unit. On November 20, 201 1, Police Officer Clyde Frasier received the .38 Colt revolver 'from the Firearms Unit. (N.T. 02/14113: p. 226). He ;;sually examined and tested the gun for fingerprints. (N.T. 02114113, pp. 22 1-224). No fingerprints were found. (N.T. 02114113, p. 224). Officer Frasier prepared a report and returned the gun to the Firearms Identification Unit. (NT. 02114/13, pp. 222, 226-227). On April 16, 201 2, P olice Officer Raymond Andrejczak examined the.38 Colt revolver, one 9 millimeter Luger fired cartridge casing, and three 9 millimeter Luger cartridges and prepared a report. (N.T. 02114/13, pp. 198, 200-203, 214-215). While conducting a visual examination of the firearm, Officer Andrejczak found gunshot residue, which indicated that it

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had been fired previously. (NT 02114113, p. 201). Officer Andrejczak offered the foregoing at tria! where he testified as an expert wilDess. (NT 02114113, pp. 190-192). Officer Andrejczak conduded to a reasonable degree of scientific certainty that the 9 millimeter Luger cartridges could fit into the revolver even though they were Dot the proper cartridges for that firearm. (NT 02114113, p. 202). He stated that it was not unco=on for him to "examine weapons loaded v,.-ith the wrong ammunition. (N.T. 02114/13, p. 202). He further testified that ~though it is more typical for a semi-automatic firearm to have 9 millimeter Luger ammunition, there are revolvers that are chambered similar to a 9 mjlljrneter Luger. (NT. 02/14113, pp. 201-202). Those revolvers require the use of a special moon clip, which is a small meta! ring thot holds the cartridges in the cylinder. (N.T. 02114/13, p. 202). Officer Andrejczak test-flred ·the firearm with the correct ammunition. (N.T. 021l4/13, p. 203). He then test-fired the firearm with a 9 millimeter Luger' primed case to see if it would fire without exploding, and he found that. it was operable. (NT 02114/13, pp. 203 -204). For analysis, Officer. Andrejczak created a 9 millimeter Luger fired cartridge casing and a .38 Smith and Wesson fired cartridge casing. (N.T. 02/14113, p. 204). He compared the microscopic markings of those two fired cartridge casings to the microscopic markings of the one 9 millimeter Luger fired cartridge casing thot was submitted. (N.T. 02114/13, p. 204). After making this ccmparison, Officer Andrejczak concluded to a reasonable degree of scientific certainty that the 9 millimeter Luger fired caliridge casing was fired from the.38 Colt revolver. (N.T. 02114113, pp. 204-205). Officer Andrejczak explained the difference between a semi-automatic firearm, an automatic firearm, and a revolver. (N.T. 02114/13, p. 197). A semi-automatic firearm 'Nill automatically eject a fired cartridge casing and then be prepared to fire another live caItridge. (NT. 02114/13, p. 197). An automati~ firearm will continuously fire until the person stops or the a=unition has been exhausted. (N.T. 02/14113, p. 197). A properly operating revolver does not automatically eject a fired cartridge casing. (N.T. 02114113, p. 198). The fired cartridge casing stays inside the cylinder until it is manually removed. (N.T. 02114113, pp. 197-198). Officer .A.ndrejczak concluded to a reasonable degree of scientific certainty that the lack of fired cartridge casings recovered at the crime scene is consistent with the use of a revolver. (NT. 02114113, pp. 206-207). Officer }\ndrejczak conducted a trigger pull test to determine how much pressure was needed to pull the trigger of the submitted firearm. (N.T. 02il4/13, pp. 207-208). He ccncluded

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to a reasonable degree of scientific certainty that it took 5 pounds of pressure to fire the revolver in .single action, which is a short pull of the trigger when the hammer is cocked.. (N. T. 02114113, pp. 208-210). He also concluded to a reasonable degree of scientific certainty that it took in pounds to fire the revolver in double action, which is a long continuous pull of the trigger. (N.T. 02114/13. pp. 208-210). Officer AndIejczak: noted that most revolvers fire within the range of 5 to 10 pounds unless they have been modified. (NT. 02114/13, pp. 208-210, 216-217). He also explained that the velocity of a fireaun can differ becaU'5e it is bised on ·the brand of ammunition and the weight of the bullet. (N.T. 02114/13, p. 206). The average velocity for a 9 milljmeter Luger cartridge was approximately 1,050 to 1,100 feet per second. (N.T. 02114113, p. 205). The average velocity for a .38 Smith and Wesson CGrtridge was approximately 700 feet per second. (N.T. 02114/13, pp. 205-206). Officer Andrejczak noted thal the submitted firearm was loaded with ammunition that gave it a greater velocity than it would have had otherwise. (N.T. 02/14/13. p. 206). Officer Andrejczak concluded .to.a reasonable degree of scientific certainty that the 9 millimeter ammunition could cause a perforating gunshot wound or a through and through gunshot wound if it is within close proximity to a person. (N.T. 02114/13, pp. 206, 210). At trial, Michael Rigney testified about a prior incident where he observed defendant in possession of a gun. (N.T. 02/13113, p. 21). On August 12, 2011, Mr. Rigney lived with his ex- girlfriend Sondra Mitchell, who is defendant's sister. (N.T. 02113/13, pp. 20-21,26). He also lived with defendant, Sondra's sister, and Sondra's cousin. (N.T. 02113113, p. 20). On that day, at 5:00 a.m., Mr. Rigney saw defendant ·and Sondra's cousin in his bedroom. (N.T. 02/13/13, p. 21). Defendant was holding a long, black revolver with black tape. (N.T. 02113/13, pp. 21-22). During his testimony. Mr. Rigney identified the gun that Officer Diaz recovered from defendant as an identical match to the gun he saw on August 12,2011. (N.T. 02/13113, p. 25; 02114113, p. 194; 02115113, pp. 86-87). At trial, the parties stipulated that defendant was not licensed to carry a firearm. (NT. 02/15113, pp. 113-114). DeteCtive Ron Dove was the assigned investigator of this homicide. (N.T. 02115/13, p. 11). Detective Dove first encountered defendant on September 21, 2011, at around 5:00 a.m. (N.T. 02115/13, p. 13). After resolving the discrepancy of defendant's ide~tity, Detective Dove advised defendant of his Miranda rights. (N.T. 02/15113, p. 14). When Detective Dove asked defendant if he understood the warnings, defendan1 answered in the affirmative. (N.T. 02/15/13.

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pp. 14-15). After being provided his Miranda warnings, defendant was cooperative and began to talk to Detective Dove. (NT 02l151i3, p. 15). Before taking defendant's written statement, Detective Dove read defendant his 1vfuanda warnings a second time. (N.T. 02115/13, p . (6). Defendant was then presented with a form to memorialize that he understood his :Miranda rights and that he declined the opportunity to invoke same. (N.T. 02115/13 , p . 16). After defendant read the content of this form, Detective Dove asked defendant whether he understood the form. (N.T. 02115113, pjJ. 17-18). Detective Dove also asked defendant if he wished ~o continue taLlcing or if he wished to invoke his right to remain silent or to have a lawyer present. (N.T. 02115/13, pp. 17-18). Defendant indicated that he did not wish to invoke his rights. (N.T. 02115/13, p. 18). Defendant then signed the bottom of the form in Detective Dove's presence. (N.T. 02115/13, p. 19). Thereafter, at 6:35 a.m., Detective Dove interviewed defendant. (N.T. 02115113 , pp. 20- 21) . . Defendant was not under the influence of alcohol or drugs at that time. (N.T. 02/15/13, p. 23). At the beginning of the interview, defendant confiimed that he had been advised of his Miranda rights. (N.T. 02115113, p. 23). Defendant also indicated that he understood everything that Detective Dove had reviewed with him. (N.T. 02115113, p. 23). He finther understood that he was arrested for the murder of sbiiri Hanis. (N. T. 02115/13, p. 23). Defendant indicated that he wanted to make a statement. (N.T. 02115/13, pp. 23-24). Defendant gave a statement, wherein he 'admitted to killing the victim. (NT. 02/15/13, pp. 23-24). Defendant informed Detective Dove that he was upset with the victim because she owed him approximately $3000 for cocaine that he had provided to her over the COillse of a couple of months. (N.T. 02/15113, pp. 23-24, 26-27). Defendant told Detective Dove that he asked the victim for his money and she told him that she did not have any money for him. (N. T. 02115 /13, pp. 23-24). ' Defendant stated: "She was all disrespectful, like saying she don't have shit for me and that is when I got pissed and put the gun to her head. I was putting it right up against her head to scare her and it went off. She dropped right there and I ran away. I didn't mean to shoot I was seared." (N.T. 02/151l3, pp. 23-24). When Detective Fetters showed defendant a photograph of the victim, defendant stated: "[¥leah, that's Me-Me, that's the girl I sbot." (N.T. 02115/13, pp. 25-26). Defendant denied taking anything from the victim after he shot her. (N.T. 02/15113, p. 27). However, he admitted to using the same gun that he possessed on the night that he was arrested. (N.T. 02115113 , p. 27).

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·'

Defendant stated that he did not remember what he was wearing that particular night, but that he usually wears Sweatpants and a baseball hat. (NT 02115/13, p. 27). At the end of the interview, Detective Fetters read back the statement to defendant. (N.T. 02115/13, p. 28). Defendant then responded, '1 heard everyJllng he read hack to me and that's what I told you today but I ain't signing anymore without my lawyer." (N.Y. 02115113, pp. 28- 29). At that point, Detective Dove stopped asking defendant questions. (N.T. 02115/13, p. 29). Following defendant's statement, he was charged with the above-stated crimes. (NT 02/15113, pp.29-30).

STATEIYIENT OF MATTERS COMPLAINED OF ON APPEAL

Defendant raised the following issues in his Statement of Matters Complained of on

. Appeal, in accordance with PennsylvainaRule of Appellate PIocedure 1925(b): 3

1. The Defendant, RichaId Mitchell, was found guilty of two counts of murder of the third degree and one count of possessing an instrument of crime on bill of information 2357- 2012 and on bill of information 2358-2012, Mr. Mitchell was found guilty of possessing a firean:n, f21se information to law enforcement and a convict possessing a gun.

2. Mr. Mitchell was sentenced to 20 to 40 years of incarceration on the murder charge and a consecutive 2 ~ to 5 years of incarceration on the charge of possessing an instrument of crime. On the charge of a convict possessing a gun, :Mr. 'Mitchell was sentenced to a consecutive 5 to 10 years, plus a consecutive 3 y, to 7 year sentence on carrying a firearm without a license, plus 6 to 12 years on the charge of false information to law authorities, to be consecutive.

3. The Defendant contends the verdict was against the weight of the evid~ce. He contends there was conflicting testimony. TJ:le Commonwealth witnesses were contradictory. The Defendant presented an alibi defense. The main Commonwealth witness, Lathan Barfield, was' drunk and did not make a statement ¥nmediately after. The witness, Darnell Flowers, was uncertain as to the identification. There was no cOIIooorating evidence in that the gun that was later found did not match the bullet'i or shell casings that were found. No contraband

3 The following is a verbatim a~count of defendant's Statement.

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or anything was found on Mr. Mitchell's physical person. No blood splatter was found on any clothing. There was DO physical evidence connecting the Defendant The Defendant contends the verdict was based on speculation and guess work and should be reversed.

4. The Defendant contends the verdict was against the weight of the e. .idence. The Defendant would incorporate by reference a brief summary ,of the evidence in the sufficiency of evidence.argument. He contends that thls verdict should shock the conscience of the fact finder.

s. The Defendant, Richard Mitchell, contends the trial judge erred in allowing evidence of him threatening his sister and brother and law [sic] . with a gun on August 12, 2011, approximately one month before the alleged crlme on September 10, 2011. The Court allowed the sister and brother in law to say they were threatened by the gun. The brother in law supposedly .identified the .gun .that was taken on September 20, 20 II at the time the Defendant was being arrested, as being the same gun. But in an earlier statement, he was DOt able to say it was the same gun. The introouction of his prior assault and robbery against his sister and brother in law a month before was clearly enor and tainted the jury and denied Mr. Mitchell his right to due process and a fair trial. This tainted the jury with unrelated, bad conduc~.

6. The Defendant, Richard Mitchell, conteods ·that the Court erred in not sev:ering the case where he was arrested with a gun on September 20,,2012 by the police. Although the gun was a revolver, there was no connection of that gun to the crime itself. Having the jury hear that the Defendant was arrested ten days after the alleged murder for an unrelated crime 'With a gun tainted the jury with unrelated, bad conduct. A new trial is warranted.

7. The trial judge erred in allowing a gruesome picture of the decedent, which was in color and bloody (Commonwealth's Exhibit C-12), to be introduced at the trial and shown on a big screen to the jury repeatedly during the trial. The said picture denied the Defendant his right to due process and a fair trial and was very inflammatory.

8. The Defendant contends he should be granted a new trial and arrest of judgmeot since Judge Byrd erred in not suppressing his statement The Defendant contends his statement is a violation of his Fifth and Fourteenth Amendment rights in the

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United States Constitutioo and Article J, SectioD 9 of the Pennsylvania ConstitutiOD. The Defendant contends there was no valid waiver of Miranda rights. The police officers did Dot have the Donna! and required Miranda waiver forms signed. There was nothing that indicated Mr. Mitchell validly waived his rights at any time. The questions and answers in the statement requiring the answers to the Miran9a waivers was blank. The Defendant contends his statement should not have been admitted into evidence and a new trial is warranted since he was not properly warnCd of his Miranda rights and, therefore, the statement was invalid and sbould bc suppressed. Further, hc did Dot knowingly, voluntarily and intelligently waive his Miranda rights.

9. The Defendant contends that the stop and search and seizure of the gun from him on September 20, 2012 was without probable caus~ or reasonable suspicion and a violation of the Fourth and Fo~eenth Amendments of the United States Constitution and Article I. Section 8 of the Pennsylvania Constitution. The stop was ten days .after the murder. The Defendant was walking on the street with his girlfriend when the police approached him and tried to seize him. Mr. Mitchell ran and was chased and then ultimately arrested and the guo was recovered. Mr. Mitchell contends that the stopping and seizing of him was an improper search and seizure and arrest and in violation of the above constitutional provisions.

10. Tne Defendant contends that the prosecutor crred iiI her closing speech to the jwy. The District Attorney made several statements of personal opinion, including a personal statement that the truth wa~ that the defendant was guilty. He conteods the District Attorney made improper statements criticizing his defense counsel and suggested the defense had certain burdens of proof. The District Attorney improperly indicated that the defense bad the purpose of degrading the victim. The District Attorney made those and other inflammat9ry statement<;. The District Attorney also made statements about the Defendant' 5 family outside and that was improper. l1w Defendant requests that a new trial be granted. The statements are as follows:

•. ) "Ms. Kim: So when cOUDSel talks to you over and over again about a condom in her, first of all, it was preserved. Ii the Defense wan~ed to test it, it is available for anyone to test it.

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Mr. Stretton: Objection. The Court: Sustained." (2/19 NT. 133) . .' This statemenf improperly placed the burden on the defense.

b.) ''MS. Kim: She is a young lady who, as you heard, had a lot of drugs in her system. So is it possible that .she didn't know that was in her? Of course. Does it have . anything to do with her death? No. That's just a disgusting detail to, again, try to besmirch or smear this young WODlan who didn't do anything wrong. rvIr. Stretton: Objection, move for a mistrial. The Court: Denied." (2/19 N.T. 134). '. I This statement 'Wrongly criticized for valid cross examination of the defense.

c.) "Ms. Kim: ... Verdict means to speak the truth and so I beg you speak the truth on behalf of Shari H=is, on behalf of Philadelphia and the truth is that the Defendant is guilty. Mr. Stretton: Objection. Move for a mistrial. The Court: Overruled. Denied." (2/19 N.T. 175).

This ~tement IS lIDproper and almost asks to send a message.

11. Tne D~fendant contends the trial judge erred ia not giving the following instructions as quoted by Mr. Stretton:

a.) 'Mr. Stretton: 1 have ODe objection. On your instruction on the Defendant's prior drug use, remember that arose during Mr. Peterson 1 s testimony, the statement about him grinding and what that means, that was to be introduced primarily for his opportunity -- how he knew the Defendant. In your instruction though. you noted that it went to the moti:ve and other lD2.tters. That

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was different from your instructions you had given to the jury earlier." (2119 NT 227).

DISCUSSION

Defendant's first and second · claims challenge the sufficiency and the weight of the evidence. In evaluating whether the evidence . vas . sufficient to suc;tain a conviction, the appellate court "must view the evidence in th~ light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determ.i.ue whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Tate, 485 Pa. 180, 182,401 A.2d 353, 354 (1979). In applying this test, "the entire record must be evaluated and all evidence actually received muc;t be considered." Commonwealth v. DiStefano, 782 A.2d 574, 582 (pa Super. 2001) (quoting Commonwealrh v. Hennigan, 753 A.2d 245, 253 (Fa. Super. 2000)). In Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Fa. Super. 2002), the court recognized that the "question of any doubt regarding the facts and circumstances established by the Commonwealth is for the fact-finder to resolve 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." The appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Commomvealth v. Taylor, 8J.I A.2d 661 (Fa. Super. 2003). Further, "it is for the fact finder to make credibility determinations, and the finder of fact may believe ali, part, or none of a witness's testimony." Commomvealth v. Mack, 850 A.2d 690, 693 (Fa. Super. 2004). In Commonwealth v. Geiger, 475 Pa. 249, 254; 380 A.2d 338, 340 (1977), the court held that "[t]he Co=onwealth must indeed prove every element of a crime beyond a reasonable doubt in order to sustain a valid conviction for that crime." . The , Commonwealth may meet this burden by presenting "wholly circumstantial evidence." Commonwealth v. Williams, 615 A.2d 416, 418 (Fa. Super. 1992). In the instant matter, defendant was convicted of thi..rd-degree .murder and possession of an instrument of crime, at CP-51-cR-0002357-2012. First, there was sufficient evidence to support defendant's third-degree murder conviction. In Commonwealth v. Kling, 731 A.2d 145, 147 (Fa. Super. 1999), the court explained that "[t]bird degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice." See also 18 Pa. C.S. §2502(c) (stating that "[a]ll other kinds of

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murder sball be murder of the third degree"); Commonwealrh v. Carter, 481 Pa. 495, 498-499, 393 A.2d 13, 15 (1978) (defining third-degree murder as "an unlawful killing with maliceexptessed or implied, but absent 8ll.y specific intent to take a life"). Malice "comprehends not only a particular ill~will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." G;>mmonwealth v. Ludwig, 583 Pa. 6, 21, 874 A.2d 623,632 (2005) (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). It "may be found to exist not only in an intentional killing, but also in an, unintentional homicide where the perpetrator 'consciously disregarded an unjustified and extremely high risk that his actions rolgbt cause death or serious bodily barm.''' Commonwealth v. Young, 494 Pa. 224, 228, 431 A2d 230, 232 (1981) (quoting Commomvealth v. Hare, 486 Pa. 123, 129,404 A2d 388,391 (1979)). The existence of "malice may be inferred from aU the circumstances surrounding the conduct of the accused." Commonwealth v. Mercado, 649 A.2d 9.46, 955 (pa. Super. 1994). See also Commonwealth v. Thomas, 656 A.2d 514, 516 (pa. Super. 1995) (explaining that "all facts, including those before, during, and after the event, must be considered" when determining whether a third-degree murder conviction should be upbeld). As stated above, there was siIfficient evidence that an unlawful and malicious killing occurred. After confronting Ms. Harri.s about a large drug debt., defendant held a gun in his hand and pointed it within close range to he~ head. By engaging in such conduct, defendant consciously disregarded an unjustified and extremely high risk that the gun would fire and kill the victim. Ms. Harris's death resulted from defendant's unla'Wful and malicious conduct. After the gun fired once, N[s. Harris fell to the ground and was left lying there until rescue arrived. The bullet entered her left temple, went through her skull, and exited the right rear of her scalp. As a result, the victim suffered significant and irreparable damage to her brain. At trial, the chief medical , examiner concluded to a reasonable degree of medical certainty that the cause of Ms. Harris's death was one through and through guns~ot wound to her head. See Commonwealth v. Manchas, 633 A.2d 618, 623 (pa. Super. 1993) (reiterating principle that "the inference [arising] from the use of a deadly weapon upon a vital part of the body alone is sufficient to establish malice''). The chief medical examiner further concluded to a reasonable degree of medical certainty that the manner of Ms. Harris's dcath was by homicide. These facts certainly show that malice was present.

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Furthermore, evidence of defendant's f4ght from the crime scene and from police prior to his arrest, and his false identification to law enforcement is evidence of consciousness of guilt &'l.d coustirutes additional support that he was guilty of the crimes charged. See Commonwealth v. Paddy, 569 Pa. 47, 92, 800 A.2d 294, 322 (2002) (reiterating that "wben a person commitS a crime, haws that he is wanted therefor, and flees or conceals himself, such' conduct is evidence of consciousness of guilt, and may form the basis [of a conviction] in connection with other proof from which guilt may be inferred"). Thus, the Commonwealth proved beyond a reasonable doubt that defendant was guilty of third-degree murder. Defendant was also convicted of possession of an instrument of crime. A defendant is guilty of this offense when he "possesses any instrument of crime with intent to employ it criminally." 18 Pa. C.S. §907(a). An instrument of crime is "[a]nything specially made or . specially adapted for criminal use" or "[a]nything used for criminal ptuposes and possessed by the actor under circumstances not manifestly appropriate for la..-vful uses it may have." 18 Pa. C..S. §907(d). Here, the facts clearly demonstrate that defendant possessed a gun with the intent to use it in a criminal manner. See Commonwealth v. Stokes, 38 A.3d 846, 854 (pa. Super. 2011) (balding that "[ilt is undisputed that a gun can be an instrument of crime"). Although police did not recover a handgun at the crime scene, there were eyewitnesses who testified that they saw defendant flee the scene of the shooting with a gun in his hand. The Commonwealth also presented evidence that police officers recovered a gun from defendant immediately after his arrest. This evidence established that defendant had ready access . to a weapon. At trial, Officer Andrejczak, an expert in firearms identification, testified that he concluded to a reasonable degree of scientific certainty that the gun had been used previously due to the presence of gunshot residue. Officer Andrejczak further concluded to a reasonable degree of scientific certainty that it was likely that a revolver was used in this murder given the absence of fired cartridge casings at the crime scene. Tills evidence showed that defendant possessed and used a weapon at the time of the shooting. See Commonwealth v. McKeithan, 504 A2d 294, 299 (pa. Super. 1986) (noting that "[a] person may be convicted on the basis of circumstantial evidence alone if reasonable inferences arising therefrom prove the fact in question beyond a reasonable doubt"). In addition to being convicted of third-degree mur~er and possession of an instrument of crime, defendant was found guilty of providing :fulse identification to law enforcement, carrying a

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firearm mthout a license in violation of Section 6106 of the Uniform Firearms Act, and possessing a firearm as a convicted felon in violation of Section 6105 of the Uniform Firearms Act, at CP-51 -CR-0002358-2012. An individual is guilty of providing false identification to law enforcement "if he furnishes law enforcement authorities with false information about his identity after being ipforrned by a law enforcement officer who is in urriform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law." 18 Pa. C.S. §4914. The evidence shows that defendant is guilty of com,nitting this offense. After his arrest, defendant identified himself to poli~e officers as Dante Dawson and told them that his date of birth was January 14, 1979. He provided this same information when be was. transported to the police station. As a result, defendant's arrest was processed under that name. Police officers subsequently discovered defendant's true identity and learned that he bad provided them vvith the name and date of bir'-ill of his deceased brother. Based on these facts, there was sufficient evidence to convict defendant of providing.false identification to l~w eruorcement. Defendant was also found guilty of violating Section 6106 of the Uniform Firearms Act and Section 6105 of the Uniform Firearms Act. Pursuant to Section 6106(a)(I) of the Uniform Firearms Act, a person is guilty of carrying a fueann without a license if he «carries a firearm in

any vehicle or ... carries a firearm concealed on or about his person, except in his place of abode or fixed. place of business, without a valid and lawfully issued license .... " 18 Pa. c.s. §6106(a)(1). Here, the evidence shows that defendant was carrying a firearm without a license in violation of Section 6106 of the Uniform Firearms Act. At trial, the parties stipulated that defendant was not licensed to carry a firearm. Notwithstanding this fact, defendant was found in possession of a dark graylbronze .38 caliber Colt revolver with a handle wrapped in electrical tape at the time of his arrest. The gun had one 9 millimeter fired cartridge casing and three live 9 rnilllirneter cartridges inside the cylinder. In light of these facts, there :was sufficient evidence for the jury to conclude that defendant was guilty of violating Section 6106 of the Uniform Firearms Act. After the j ury en~ed its verdict, this court conducted a waiver trial and found defendant guilty ofyiolating Section 6105 of the Uniform Firearms Act. At the outset, this court did not err in conducting a separate proceeding for this charge. See Commonwealth v. Brown, 323 A.2d 223, 224 cPa Super. 1974) (ruling that "[tJhe grant or denial of severance is a matter of the discretion of the trial court whose conclusion will be reversed only for manifest abuse of discretion or

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prejudice or clear- injustice to the defendant"). Moreover, this court did n~t err in finding defendznt guilty of violating Section 6105 of the Uniform Firearms Act, which prohibits an individual convi.cted of any enumerated offense from possessing a firearm. To be convicted under Section 6105, the Commonwealth "must only prove that Appellant was cODvicted of an enumerated offense." Commonwealth v. Williams, 920 A.2d 887, 891 (pa. Super. 2007). Here, counsel stipulated that defendant was previously convicted of conspiracy to commit murder (first-degree felony), which is an enumerated offense in Section 6105. As a result of this conviction, defendant was not permitted to possess a firearm. In light of the jury's verdict finding defendant in possession of a handgun, this court did not err in finding defendant guilty of violating S~ction 6105. Furthermore, there is no basis for defendant's contention that there was insufficient evidence for his other conv;ctions because the elements of each crime were established beyond a reasonable doubt. Therefor~, the evidence was sufficient to support defendant's convictions. Defendant also claims that the verdict is against the weight .of the evidence. A new trial will be granted on this basis "only When the jury's verdict is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. VanDivner, 599 Pa. 617, 630, 962 A2d 1170, 1177 (2009). The trial court "cannot grant a new trial merely because of some conflict in testimony or because the judge would reach a different conclusion on the same facts, but should oolydo so in extraordinary circumstances[.]" Commonwealth v. Blakeney, 596 Pa. 510, 523,946 A.2d 645, 653 (2008). Indeed, "[t]he factfindcr is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." Comm01'Twealch v. Diggs, 597 Pa. 28, 39, 949 A.2d 873, 879 (2008). In reviewing whether the verdict was against the weight of the evidence, the trial court must exercise its discretion in determi.ni.IJg whether «'certain facts are so clearly of greater weight that to ignore them or to give them equal weight Vlith all the facts is to deny justice:" Cammonwealth, v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000) (quoting Thompson v. Philadelphia, 507 Pa. 592,601,493 A.2d 669, 674 (1985)). The appeUate cowt's review "is limited to wheth~r the trial judge's discretion was properly exercised, and relief \.1{ill orily be granted where the facts and inferences of record disclose a palpable abuse of discretion." Diggs, 597 Pa. at 39, 949 A2d at 879. As the abqve analysis demonstrates, the verdict in this case was not against the weight of the evidence. See Commorrweairh v. Murray, 597 A2d 111, 112 (pa. Super. 1991) (recognizing "that in many instances challenges to the

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weight of the evidence are in reality, attacks on the sufficiency of the evidence")' Thus, defendant's claim has no basis. Defendant contends that this court erred in admitting evidence of the August 12, 2011 incident, wherein he allegedly tbre~tened his sister and his sister' s boyfriend v.rith a gun and robbed them. Defendant claims that the introduction of this prior assault and robbery tainted the jury v.rith unrelated priqr bad cond1,lct Ther.e is no merit to defendant's claim. First, it is important to note that the Commonwealth did not elicit testimony regarding a prior assault and robbery.4 At trial, Mr. Rigney 's testimony focused on defendanfs prior possession of a handgun. 1vf:r. Rigney testified that he saw defendant with a long, black revolver on August 12, 2011, at approximately 5:00 a.m. Nir. Rigney also identified the gun that defendant possessed on September 10, 201 1 as an identical match to the gun that he saw in defendant's possession on August 12, 2011. Aside from briefly mentioning that defendant pointed a gun at him, Mr. Rigney did not disclose the assault or robbery that defendant allegedly perpetrated against him or defendant's sister. Consequently, the jury was only made aware of defendant's prior possession of a handgun. This court did Dot err in admitting evidence regarding defendant' s prior possession of a handgun. It is well settled "that the admissibility of evidence is within the discretion of the trial court, and such rulings will Dot form: the basis for appellate relief absent an abuse of discretion." Commonwealth v. Rivera, 603 Pa. 340,368,983 A.2d l2-l1 , 1228 (2009). An evidentiary ruling ''will not be disturbed on appeal 'unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will , or such lack of support to be clearly erroneous. ' " Commonwealth v. Minich, 4 A.3d 1063 , 1068 (pa. Super. 2010) (quoting Commonwealth v. Owens, 929 A.2d 1187, 1190 (pa. Super. 2007)). Indeed, "[e)vidence of other crimes, wrongs, or

4 Prior to introducing this witness, the prosecutor provided the following offer of proof:

[THE COURT] , Give me your offer of proof on J.\.1r. Rigney, please. '; [Assistant D istrict Atto rney] : Your Honor, if I may, !>"Uchael Rigney will testify in accordance withlhis Court's earlier ruling that on August 12, 2011 at approximately 5;00 a.m., he had the opportunity to see the Defendant in his bedroom. He saw the Defendant with a gun. He had an opportunity to view the gun at close .proximity . .In fact, be will not only describe the gun, I believe he will identify the gun as being the same gun the Defendant was arrested with.

NT 02113/13, pp. 10-11.

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acts is not admissible to prove the character of a person in order to show action in conformity therewith." Pa. R. Evid. 404(b)(1). Nooetheless, such evideoce "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or abseoee of mistake or .ccideo!." Pa. R. Evid. 404(b)(2). Furthermore, Penosyivania Rule of Evidence 404(b) "is not limited to evidence of crimes that have been proven beyond a reasonable doubt in court. It encompasses both prior crimes and prior wrongs and acts, the latter of which, by their oaiure, ofreo lack 'defioitive proof.''' Commonwealth v. Loekeuff, 813 A.2d 857, 861 '. (pa. Super. 2002) (emphasis omitted). This court did not err in admitting Mr. Rigney's testimony concerning defendant's prior possessioo of a handgun, 10 Commonwealth v. Edwards, 762 A.2d 382 (pa. Super. 2000), the court Doted that" '[tJhe CommooweaJth need Dot estahlish that a particular weapon was actually used in the commission of a crime in order for it to be introduced at trial. Rather, the Commonwealth need only show sufficient circumstances to justify an inference by the finder of. fact that the particular weapon was likely to have been used in the commission of the crime charged.''' Id. at 386· (quoting Commonwealth v. Spotz, 552 Pa. 499, 522, 7 16 A.2d 580, 591 (1998)). Heoee, the court held that "[a] weapoo shown to have beco in a defeodant's possession may properly be admitted. into evidence, even though it cannot positively be identified as the weapon used in the commission of a.particular crime, if it tends to prove that the defendant had a weapon similar to the one used in the perpetration of the crime. Any uncertainty that the weapon is the actual weapon used in the cri.rJ:1e goes to the weight of such evidence." Commonwealth v. Williams, 537 Pa. 1,20,640 A.2d 1251, 1260 (1994). 10 Commonwealth v. Dejesus, 584 Pa. 29, 40-41,880 A.2d 608, 615 (2005) (emphasis omitted), the court further explained that "[aJs with any other evidence, the question of admissibility depends to a large extent upon the purpose for which the evidence was proffered, as well as a balance of probative value and prejudi"cial effect. If evidence of possession of, or access to, a weapon other than the murder weapon were proffered for some other relevant purpose, no hard and fast rule could require its exclusion." 10 this matter, Mr. Rigney's testimooy was introduced for the pUlpose of establishing defendant's ready access to and familiarity with a h.aodgun very similar to the handgun used in this murder. Mr. Rigney's testimonywas also admitted to prov~ the identity of the perpetrator of the crime. See, e.g., Commomvealth·v. Evans, 488 Pa. 38, 410 A.2d 1213 (1979) (ruling that trial court properly a~tted evidence of defendant's participation in bank robbery several months

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prior to murder because gun stolen from bank's security guar~ was same gun used as murder weapon, thereby proving defendant's identity). This evidence was also offered to assist the jury in determining defendant's state of mind, knowledge, awareness and intent at the time of the homicide as well as whether or not defendant acted with malice. See Commomvealth v. Rose, 483 Pa. 382, 396 A.2d i221 (1979) (stating that there is a general concession that the probative value outweighs any prejudice to defendant when the other crimes evidence is relevant and impor.ant to one of the enume;rated exceptions above). This evidence was not a.dm.itted for the impermissible purpose of shoViing that defendant was a person of bad character or that he had crilllinal tendencies. See Commonwealth v. Cousar, 593 Pa. 204, 225, 928 A.2d 1025, 1037 (2007) (explaining that "proofs concerning distinct crimes is inadmissible solely to demonstrate a defendant's bad character or his propensity to , commit crimes"). Before admitting this evidence, this court determined that the probative value outweighed any prejudicial effect it may have .had on defendant. See Commonwealth v. Owens, 929 A.2d 1187, 1191 (pa. Super. 2007) (reaffirrrring holding in Commonwealth v. Broaster, 863 A.2d 588, 592 (p"- Super. 2004), that "[blecause all relevant Co=onwealth evidence is meant to prejudice a defendant, exclusion is limited to evidence so pr:ejudicial that it would inflame the jury to make a decision based upon something other than. the legal propositions relevant to the case"). Moreover, any potential prejudice that may have inured to defendant was cured by this couri's cautionary jury instruction' See Commorrwealth v. Claypool, 508 Pa. 198, 206, 495 A.2d

5 This court provided the following instruction to the jury:

There was also evidence introduced regarding fue Defendant's aUeged possession of a .38 caliber revolver on August 12, 2011. Generally speaking, evidence regarding a Defendant's possible involvemern in ai1.other Uil!elated crime is not admissible at trial; however; such evidence is admissible if it is offered for a legitimate reason such as to assisl the jury in determining other trial issues and, therefore, may be considered by you for this limited purpose.

You may consider the evidence regarding the Defendant's alleged possession .of a .38 caliber revolver on August 12, 2011 to assist you in determ..ining the Defendant's state of mind., knowledge, awareness and intent at the tUne of the homicide in this case. as well as whether or not the Defendant acted with malice.

You may also consider this evidence on the issue of whether the Defendant had access to, and knowledge of, and familiarity with a particular gun, to wit, a.38 caliber revolver which may, if you so choose to find, show that the Defendant had both fue means and-the ability to com.mit the homicide in this case and, therefore, may be probative of the Defendant's identity as the person

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176, 179 (1985) (holding that "such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has "beea admitted"). Therefore, defendant's contention has no merit. Defendant next contends tb..at this court erred by not severing his case arising from the arrest on September 20, 2011, when police recovered a revolver from him. Tbis issue is deemed waived because the record does not show that defendant made a timely objection or motion seeking the severance of that case. Pennsylvania Rule of Evidence 103(a)(1) provides that ':[eJrror may not be predicated upon a ruling that admits or excludes evidence unless ... a timely objection, motion to strike or motion in limine appears of record .... " See also Pa R . .App. P. 302(a) (stating that " [i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal''); Commonwealih v. Montalvo , 641 A.2d 1176, 1184 (pa. Super. 1994) (emphasizing that the appellate court '

An abuse of discretion has not occurred" 'if the facts and elements of the_ two crimes are easily separable in the minds of the jurors and if the crimes are such that the fact of commission of each crime would be admissible as evidence in a separate trial for the otber.'" ·Commonwealth v. Galloway, 495 Pa. 535, 539,434 A.2d 1220, 1221-1222 (1981) (quoting Commonwealth v. Taylor, 393 A.2d 929. 933 cPa. Sup~r. 1978). The facts and issues were not so complex as to prevent the jury from considering each case separately. Additionally J each case would have been admissible evidence in a separate trial for the other case because it proves the identity of the perpetrator and shows the natural development of the facts and the sequence of events surrounding this murder. See Evans (holding that other crimes evidence admissible to prove defendant's identity); Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989)

who committed the crimes charged. You may not, however, cOD.sider this evideD.ce as tending to show that the Defendant is a persoD. of bad character or bas crin:llnal propensities from which you could infer that he committed the crimes charged in this case.

N.T. 09119113, pp. 200-202.

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(listing situation "where the distinct crimes were part of a chain or sequence of events which formed the history of the case and w~re part of its natural development" as an exception to rule prohibiting other bad acts or crimes) , Consequently, there was no error in consolidating these two cases into one trial. Defendant contends that this court erred in admirting a photograph of decedent, alleging that it was inflammatory. The "admissibility of photographs falls within the discretion of the trial eOlli;' and only an abuse of that discretion will constitute reversible error." Commonwealth v. Malloy, 579 Pa 42 5, 440, 856 A.2d 767, 776 (2004)). In Commonwealth v. Mollet!, 5 A.3d 291 (pa. Super. 2010), the court reiterated that "(p]hotographs of a murder victim are not per se inadmissible[.]" Ed. at 301 (quoting Commonwealth v. Tharp, 574 Pa. 202, 222,830 A.2d 519, 531 (2003)). Indeed, "[mJurder evidence is not often agreeable, but sanguinity does not equal inadmissibility." Commonwealth v. Spell, 28 A.3d 1274, 1279 (pa 2011). Instead, our Supreme Court has directed ·that ,.

"When considering the admissibility of photographs of a homicide victim, which by their very nature can be unpleasant. disturbing, and even brutal, the trial court must engage in a two-step analysis:

First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if i~ has relevance and can assist the jury's understanding of the fucts. If the photograph is inflammatory, the trial court must decide whether or not the . photographs arc of such essential evidentiary value that their necd clearly outweighs the likelihood of inflaming the minds and passions of the jurors.

Commonwealth v. lohnson, 615 Pa. 354, 383-384,42 A.3d 1017, 1033 -1034 (2012) (quoting , Commonwealth v. Pruit!, 597 Pa. 307, 327, 951 A.2d 307, 319-(2008)). In thls matter, the photograph was unpleasant, but it was not so inflammatory as to preclude the jury from vic'hwg it 'As the co~ ruJed in Commonwealth v. Marinelli, 547 Fa 294, 321, 690 A.2d 203, 217 (1997), "[w]hile the presence of blood on the victim depicted in the photographs is unpleasant, it is not in and of itself inflammatory." In Commonwealth v. Solano, 588 Pa. 716, 736, 906 A.2d 1180, 1192 (2006), the court further explained that "[e]ven gruesome or potentially inflammatory photographs are admissible whcn the .photographs arc of such essential evidentiary value that their· need clearly outweighs the likelihood of inflaming the

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minds and passions of the jurors." This pbotograpb was relevant in showing the conditions of the crime scene and in aiding the jury's understanding of the witnesses' testimony. See, e.g., Commonwealth v. Kendricks, 30 A.3d 499 (pa Super. 2011) (concluding that color photographs taken at decedent's autopsy were relevant to enhance jury's understanding of the facts). Furthermore, this court provided a curative instruction to 'diminish any prejudice that may have been caused by the introduction of this evidence. See N .T. 02112/13, pp. 166-167; Commonwealth v. Pruitt, 597 Pa. 30" 328, 951 A.2d 307, 319 (2008) (holding that "[a]lthougb the possibility of inflaming ~e passions of the jury is not to be lightly dismissed, a trial judge can minimize this danger with an appropriate instruction, warning the jury members not to be swayed emotionally by the disturbing images, but to view them ouly for their evidentiary value,,).6 Therefore, there was no error in admitting this photograph into evidence. Defendant alleges that this court erred in denying his motion to suppress the statement he made to police subsequent to his arrest. 7 When reviewing a challenge to the st.tppression court's . ruling, the appellate court is bound by the suppression court's findings of fact so long as they are supported by the record. Commonwealth v. Chandler, 505 Pa. 113,477 A.2d 851 (1984). The

6 The court instructed the jwy as follows: " Ladies and gentl~men. photograph number 12 is admitted into evidence for the purpose of showing the conditions of the scene of the alleged crime and to have you understand \he testimony of the witnesses. It is not a pleasant photograph to look at You .should not stir up yom emotions or prejudice the Defendant Your verdict must be based on a rational and fair consideration of all the evidence and not an passion or prejudice against the Defendant, the Commonwealth or anyone else connected to this case.

NT 02l12113,pp. 166-167.

1 Defendant provided the following statement to the detective:

I was arguing with my girl that night and I was driuking E&J at the house. I left my girl and vlent to the Eagle Bar and I was drinking shots, getting fucked up. I was drinking Gray Goose, 151 and Henny. lien the bar around closing and I was just walking around, that's when I seen the girl, Me-Me. I've been fronting her coke for a couple months now and she keeps coming up short with my money. 1 asked her where my money was and she gave me rabbit ears, like she was saying she didn't ha..'e any for me. Rabbit ears is like when someone is broke and they don't have any maney. She was all disrespectful, like saying she don't have shit for me ane!. thac is when I got pissed and put the gun to her head. 1 was putting it right up against her head to scare her and it went off. She dropped right there and I ran 'ifW'2y. I didn't mean to shoot I was scared.

N.T. 02115/13, pp. 23-24.

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appellate court wiJl reverse this court's decision "only if there is an error in the legal conclusions drawn frOID those findings." Commonwealth v. Basking, 970 A.2d 1181, 1187 (pa. Super. 2009) (quoting Commonwealth v. Hill, 874 A.2d 1214, 1216 (pa. Super. 2005)). Thus, the appellate court must consider "whether the suppression court properly applied the law to the facts of the casc." Commom'lealth v. Ruey, 586 Pa. 230, 240, 892 A.2d 802, 807 (2006). In cases where the defendant's motion to suppress has been denied, the appellate court will « 'consider only the evidence of the prosecution's witnesses and so much of the e"idence for the defense as. fairly read in the context of the record as a whole, remains uncontradicted.' " In re J V, 76~ A.2d 376, 379 (pa. Super. 2000) (quoting Commomvealth v. Reddix, 513 A.2d 1041 , 1042 (pa. Supet. 1986)). Our Superior Court has held that "it is the sole province of the suppression court to weigh the credibility of the witnesses. .... Further, the suppression court judge is entitled to beiieve all, part or none of the evidence presented." Commonwealth v. Benton, 655 A.2d 1030, 1032 (pa.. Super. 1995) (citation omitted). Jt .is .theCo=onwealth's burdcn to prove by a. preponderance of the evidence that the e"idence challenged by a defendant in his motion to suppress is admissible. See Basking. In this case, defendant claims that there was no valid waiver of his rights set forth in Miranda v. Arizona, 384 U.S. 436 (1966), because he did not sign the appropriate form. Contrary to defe.ndant's interpretation, there is no legal requirement that a specific form be used to effectuate the valid waiver of his Miranda rights. In Commonwealth v. Miller, 54l"Pa. 531, 664 A.2d 1310 (1995), the court ruled that "[a]ll that is necessary for a valid waiver is that appellant's rights be reasonably conveyed to him." Jd., 541 Pa. at 556, 664 A.2d at 1322 (abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003)). In M~iranda, the United States Supreme Court ouilined the following measures to protect an indi"idual 's constitutional rights:

[A defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given. and such OPP?rtunity afforded him, the individual may

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knowingiy and intelligently waive these rights and agree to answer questions or make a statement.

Jd, 384 U.S. at 479. In Duckworth v. Eagan, 492 U.S. 195 (1989), the court further instructed:

We have never insisted that Miranda warnings be given in the exact fonn described in that decision. .. .. In California )/, Prysock, 453 U.S. 355,101 S.Ct 2806, 69 L.Ed.2d 696 (1981) (per curiam), we stated that 'the rigidity of Miranda [does not] exten[ d] to the precise fomulation of the warnings given a criminal. defendant,' and that 'no talismanic incantation [is] required to satisfy its strictures.' Jd, at 359,101 S. Ct., at 2809.

Miranda has not been limited to station house questioning, and the officer in the field may not always have access to printed Miranda warnings, 'or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings. The prophylactic Miranda warnings are 'oot themselves rights protected by. the Constirution but [are] instead measures to insure 'that the right aga4:Ist compulsory self- incrimination [is) protected.' Michigan v. Tucker, 417 U.S. 433, 444, 94 S.C!. 2357, 2364, 41 L.Ed. 2d 182 (1974). Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'convery) to [a suspect] his rights as required by Miranda.' Prysock, supra; 453 U.S., at 361,101 S.C!., at 2810.

Duckworth, 492 U.S. at 202-203. As required by Miranda, the detective reasonably conveyed to defendant the nature of his constirutional rights. Defendant was advised that he had the right to remain silent, that anything he said could and would be used against him in court, that he had the right to talk to a lawyer of his own cboosing before questioning, that he had the right to have a lavryer present during questioning, and that an attorney would be appointed ifhe v{ished to have and could not afford one. Indeed, defendant was advised of his Miranda rights mice. The first time he received them verbally. On 'the second time, defendant was advised in writing. These rights were listed within letters A to E on the first page of a form containing the statement that defendant subsequeotly provided to Detective Dove. The follOwing is a verbatim recitation of the Miranda rights delineated on that page:

We have a duty to explain to you and to warn you that you have the following legal rights:

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A. You have a right to remain silent and do nat have to say anything at all. B. Anything you say can and will be used against you in Court. C. You have aright [sic] to talk to a lawyer of your own choice before we ask you any question, and also to have a lawyer here with you while we ask questions, D. If you cannot [sic] afford to hire a lawyer, and you want one, we will see that you have a lawyer provided to you, free of ch2Ige, before we ask you any questions. E. If you are willing to give us a statement, you have a right to stop any time you wish.

The content of this form '?las read to defendant, who bad the opportunity to review this page before be placed his signature at the bottom. These facts clearly establish that defendant's j\,[franda rights were reasonably conveyed to him. After being properly advised, defendant waived his Miranda rights voluntarily, knowingly. and intelligently. . In mcki.ng this determination, the court engaged in a twoMfold mqmry:

First[,] the relinquishment of the right must have been voluntary in the sense that it w~ the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

Commonwealth v. Rushing, 71 A.3d 939, 949 (Fa Super. 2013) (quoting In re T.E., 11 A.3d 500, 505 (pa. Super. 2010)). Here, there is no evidence that defendant was intimidated, coerced or .deceived into waiving his Jvfiranda rights. To the contrary, defendant's conduct indicated his willingness to provide a statement to the detective. After being twice advised of his Miranda rights, defendant signed and dated th."9 first page of his statement to memorialize his w-aiver. It was only at the end of the interview when defendant invoked his right to have an attorney present. At that moment, all questioning ceased, thereby exhibiting the legitimacy of defendant's s preferences. Consequently, defendant's waiver was the product of his free and deliberate

a At the end of defendant's interview, the following exchange occurred:

[Detective} : I'm going to have Det. Fetters read this interview back to you. If you arc satisfied that everything is true and correct, sign the bottom of each page.

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choice. When defendant made this choice, he was fully aware of and responsive to his StuToundings. He was not under the influence of ch-ugs or alcohoL He also understood the nature of his rights and the consequences of involdng or waiving these rights. 9 Defendant's knowledge of these rights was further supported by his prior experience 'With law enforcement. See lvfiller, 541 Pa. at 556, 664 A.2d at 1322' (holding that «prior experience with Miranda warnings suggests v"aiver is knowing and voluntary"). In addition to being voluntary, defendant's waiver was knowingly and intelligently made. Therefore, defendant's motion to suppress his statement -.. . . .a.s properly denied. Defendant's next challenge is that this court erred in denying his motion to suppress the gun that police seized during his arrest Defendant argues that police had no reasonable suspicion to detain him and no probable cause to arrest him and seize his gun. Indeed, defendant's initial contact with police was a mere encounter, which is a lawfuL interaction between a police officer and a citizen. See Commonwealth v. Boswell, 554 Pa. 275, -284, 721 A.2d 336, 340 (1998) (explaining that "[p]olice may engage in a mere encounter absent any suspicion of criminal activity"). Notwithstanding this mere encounter, defendant's subsequent

[Defendant]: I heard .~verything he read back to me and that's what I told you today but I am't signing anymore without my lawyer. Commonwealth Exhibit 18, p. 5.

9 At the beginning of defendant's interview, the following exchange occurred:

[Detective]: Several minutes ago I went over your constitutional warnings with you about yOllI' right to remain silent and have a lawyer, Do you remember? [Defendant]: Yes. [DetectiveJ: Did you understand everything that we wcnt over? [Defendant]: Yes. [Detective]: Do you have any questions for me? [Defendant]: No. {Detective] : Richard,.do you understand that you are under arrest for the murder of Shari Harris which occurred on 9.1"0.11 at 13th and Rising Sun Avenue? [Deiendant]: Yes. [Dctecti~el: Would you like to make a statement regarding this mw-de.? [DefcDdantJ: Yes. Commonwealth Exhibit 18, pp. 2-3.

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conduct yielded circumstances that gave rise to reasonable suspicion to detain defendant for .ft.L.-tber investigation. Certainly, "a police officer may, short of an arrest, conduct an investigative detention if he bas a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot." Commonwealth v. Zhahir, 561 Pa 545, 552, 751 A.2d 1153,1156 (2000)). The court "most give ' due weight ... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.''' Commonwealth v. Rogers, 578 Pa. 127. 134, , 849 A.2d 1185, 1189 (2004) (quotin$ Commonwealth Y. Cook, 558 Pa 50, 57, 735 A.2d 673, 676 (1999)). In analyzing whether there was reasonable suspicion, the court must be mindful that "the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, 'even a combination of innocent facts, when taJcen together, may warrantfurtber investigation by the police officer.'" Id. [n this case, the- police officers had reasonable suspicion to detain defendant. In Commonwealth Y. Powell, 934 A.2d 721 (pa Super. 2007), the court ruled that:

Even if probable cause to arrest is absent, the police officer may still legitimately seize a person, and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which IQ,ight be used to endanger the safety of the police officer and othe;I'S, if the police officer observes unurual and suspicious cqnduct on'the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.

Id at 723-724 (quoting Commonwealth Y. Rodriguez, 532 Pa. 62, 73-74, 614 A.2d 1378, 1383- 1384 (1992)). The record shows that on September 20, 20ll, Officers Diaz and Hernandez were working in burglary detail as plain clothed officers when they were directed to search for a black male wearing a red hat, black jacket, and Timberland boots at the intersection of Germantown Avenue and Tioga Street As a result, they began to travel southbound on.the 340.0 block of Germantown Avenue. En route to that intersection, police encountered defendant, who matched this description, walking northboUJ?d with an unidentified female. 'When they reached the intersection, they saw no one who [[latched the description. As a result, they made a U-turn and began to travel northbotmd toward the same direction as defendant. When they approached

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defendant, they identified themselves as p:>lice officers and asked if they could talk to him. Before they could say anything else, defendant grabbed the right side of his waistband and began to run westbound. See Commonwealth v. Robinson, 600 A.2d 957, 959 (pa. Super. 199 1) (holding that "possession of a concealed firearm by an individual in' public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed"). Based on his experience and training, Officer Diaz reco.gnized defendant's action as an indicator that he was in possession of a handgun. See Commonwealth v. Foglia, 979 A2d 357, 361 (pa. Super. 2009) (ruling that "it a suspect engages in hand movements that police know, based on their experience, are associated with the secretillg of a weapon, those movements ",,·ill buttress the legitimacy of a protective weap:>ns search"). At that point, police reasonably . concluded that defendant may be armed and dangerous. Furthermore, there was no other reason for defendant to run away from the police officers, other than to conceal his criminal conduct. As the coust held in Commonwealth v. Brown, 904 A.2d 925, 928 (pa. Super. 2006), ''-unprovoked flight in a high crime area [is] sufficient to create a reasonable sUspicion to justify a Terry stop under both federal and state principles." Accordingly, defendant's reaction in a high crime area gave police reasonable suspicion to believe t¥t criminal activity was afoot. Thus, the police officers were lawfully permitted to detain defendant for further investigation. Before this lawful detention could , occur, the situation escalated and gave rise ta probable cause to arrest defendant. Probable cause is a " ' fluid concept - turning on the assessment.of probabilities in particular factual contexts not readily~ or even usefully, reduced to a neat set of legal rules.' '' Commonwealth v. Ruey, 586 Pa. 230, 253, 892 A.2d 802,815 (2006) (quoting Commonwealth v. Glass,-562 Pa. 187,201,754 A.2d 655, 663 (2000)). This concept is "based on the factual and practical considerations of everyday life on which reasonable and prudeiJ.t men, not legal technicians, act." Commonwealth v. Gray, 509 Pa. 476, 483, 503 A.2d 921, 925 (1985) (quoting lllinois v. Gates, 462 U.S. 213, 231 (1983)). In Commonwealth v. Rodriguez, 526 Pa. 268, 273, 585 A.2d 988, 990 (1991), the court further instructed that "[tlhe bench mark of a warrantless arrest is the existence of probable cause, namely. whether the facts and circumstances which are within the lmowledge of the officer at the time of the arrest, and of

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which he b2S reasonably trustworthy information, are sufficient to Wfu-rant a man of reasonable caution in the belief that the suspect bas committed or is committing a crime." In the instant case, defendant's conduct led police to reasonably believe tbat he illegally possessed a handgun when he continued to flee the scene and hold onto his waistband after the police officers indicated their intent to detain him. Defendant ran into an alleyv...ay where he began to discard his clothing. In p~suit of defendant, a police officer observed defendant's gun fall from his person, fly into the air, and land onto the ground . .Based on the totality of these circumstances, there was probable cause to arrest defendant. See, e.g., Commonwealth v. Hall, 929 A.2d 1202,1208 (pa. Super. 2007)"(citing Commomvealth v. Stevenson, 894 A.2d)59, 775 (pa. Super. 2006), for the proposition that "probable cause for an arrest occurs when, immediately after the police indicate to the suspect their intent to conduct an investigatory stop because they observed the outline of a concealed handgun, the suspect physically resists the officers' efforts while maintaining possession of the firearm). Aside from these facts, there was. an outstanding warrant for defendant's arrest in another case. Consequently, the po~ce officers bad lawful authority to detain and arrest defendant notwithstanding the above stated circumstances. After his arrest, police officers lawfully seized defendant's. .38 Colt handgun with a handle wrapped in electrical tape. See Commonwealth v. Wright, 560 Pa. 34,42,742 A.2d 661 , 665 (1999) (quoting Shipley v. California, 395 U.S. 818, 819 (1969), which held that "[a] warrantless search incident to an arrest is valid '~n1y if it is substantially contemporaneous "With the arrest and confined to the immediate vicinity of the arrest' "); Commomvealth v. Ingram , 814 A.2d 264, 272 (pa. Super. 2002) (repeating ptinciple "that a warrantless search incident to a lawful arrest is reasonable, and no justification other than that required for the arrest itself is necessary to conduct such a search"). They also recovered the discarded clothing in the alieyv,ray. Accordingly, this court did not err in denying defendant's motion to suppress this lawfully seized handgun. Defendant next requests a new trial because the prosecutor allegediy com.nlitted misco.nduct by making three different statements during her closing argument. In CommOlrwealth v. Boxley, 575 Pa. 611 , 623, 838 A.2d 608, 615 (2003), the cnor! held that "[t]he decision to grant or deny 2. motion for mistrial is within the sound discretion of the tri81 court." In Commomvealth v. Faulkner, 528 Pa. 57,77,595 A.2d 28,39 (1991), the court explained that:

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'-'Every unwise or irrelevant remark made in the course of a trial ·by a judge, a witness, or counsel does not compel the granting of a new trial" Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673,674 (1973). Rather, the focus is on what, if any, effects the comments had on the jury. A new trial is required when the effect of the (Assistant] DiStrict Attorney's comments "would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render 2. true verdict." Commonwealth v. Van Cliff, 483 Pa. 576, 582, 397 A.2d 1173,1176 (1979), cert. denied, 441 U.s. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669,673 (1974).

Certainly, a prosecutor is prohibited from express~g "a personal belief regarding the defendant's guilt or innocence or the veracity of the defendant or the credibility of his witnesses." Commonwealth v.. Novasak, 606 A.2d 4.77, 481 (pa. Super. 1992). During closing argument, the prosecution is "limited to making comments based upon the evidence and fair deductions and inferences therefrom.:' Commonwealth v. Joyner, 469 Pa. 333, 340, 365 A.2d ,. 1233, 1236 (1976). Nevertheless, "the prosecutor is permitted to respond to defense arguments and is free to present his or her case with logical force and. vigor." . Commonwealth v. Koehler,

558 Pa. 334, 363, 737 A.2d 225,240 (1999). In reviewing a prosecutor's remark, our Superior Court has cautioned. that a defendant's conviction" 'is not to be lightly overturned. on the basis of a prosecutor's comments standing alone, for the statement or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected. the fairness of the triaL'" Novasak, 606 A.2d at 480 (quoting Commonwealth v. Green, 525 Pa. 424,460,581 A.2d 544, 561 -562 (1990)). Accordingly, a uew trial will be grantcd only if the unavoidable effect ofthe prosecutor's comments prevented the jury from fairly and objectively considering the evidence. See Commonwealth v. Ogrod, 576 Pa. 412, 839 A.2d 294 (2003). Here, the prosecutor's closing remarks did not prevent the jury from entering' a fair and just verdict. lo The prosecutor made the first two contested remarks to offset defense counsel's

10 The following is a verbatim account of the assistant district attorney's remarks, which has been provided in the context within which the first two contested remarks were made:

(Assistant District Attorney]: Now,] am going to have to show you, since Counsel brought it up, the pictures of he, body because where shc is found and how she is found is evidence foryou.

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attempt to highlight an irrelevant fact that had no hearing on the essential issues in this case l l See Commonwealth v. Middleton, 409 A2d 41, 44 (po. Super. 1979) (opining that "[pJrosecuting

Now, Counsel talks to you about this idea. about the cQndom in her and you take a look at the positioning of her body. Her skirt is still perfectly in place. Her clothes aren' t dlSrurbed. Now, we will move on to lighting but that is just to get the picrure of the screen. So when Counsel tells you and talks to you over and over again about a condom in her, first of all, it was preserved. If the Defense wanted to test it, it is availabJe for anyone to test it

[Defense Counsell: Objection.

lTIiE COURTJ' Sustained. Go on.

[Assistant District Attorney]: Second of all, with regard to that. you heard from the medical examiner that the condom that was in her could have been there for up to two days, that there is no sign of infection but it doesn't mean that it was there immediately beforehand and. in fact, the position of her body and the position of her hand suggests that she, in fact, was not having sex right beforehand. Tnat is a red berring, and for anyone else to stand up bere and to tell you, ob, well, just beca1l.Se she had a condom in her, that must be someone who did it. That is ridiculcUs. There are no sigl!S of sexual trauma.. This is not about that. " She is a young lady who, as you beard, had a Jot of drugs in her sys~m. So is it possible that she didn't know that was in ber? Of course. Docs it have anything to do with her death? No. That's just a disgusting detail to, again, try to besmirch or smear this young woman who didn't do allything wrong.

{DefeIlSe Counsel]: Objection, move for a mistriaL

jTHE COURTJ, Denied. Ovenuled.

(.>\SSistant District Attorney]: So, let's take a look at the actual evidence that you have in front of you, not speculation, not supposition but the bard evidence.

N.T. 02119/13, pp. 132-134.

Il Defense counsel stated the foUowi.ng: .' Going 00, as we start to get toward the eod of laS[ week, we had the Medical Examiner, if I recall, Dr. Samuel Gulioo who did the ex:aminatioD, who indicated the victim died of one gunsbot wound, I forget which side, went right through the head. There was no bullet or projectile found or located.

Si.gni.:ficant in his testimony, if you recall, was that the fael that he took her personal effects, his office did, but he couldn't remember what they were.

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attorneys must attempt to meet extravagant, emotional and even distorted arguments of defense counsel in a manner consistent with responsibility as a public prosecutor"); Commonwealth v. Trivigno, 561 Pa. 232, 244, 750 A.2d 243,249 (2000) (holding that "[a] remark by a prosecutor, otb~rwise improper, may be appropriate if it is in fair response to the argument and COIIl.II!.ent of defense counsel"). Thill, the prosecutor' s remarks were not improperly made. Likewise, the prosecutor' s third contested remark did not unduly prejudice defendanC l2 Contrary to

Remember, there was some suggestion what was taken, what was not taken. He was not able to tell us but apparently there were personal effects on her that weren't taken in this particular matter and also of significance was the fact that there was a condom in her and that he did swabs from that condom but no One ever asked to have it tested, so we don't know ifthcre was SOIDe third pa.-ty near her, by her shortly before her demise, according to DNA testing in this particular maner.

The tblngs they take from the· scene, no one· teSted them. The DNA, no one tested them. Then we have Dr. Gulino and the condom, no one tested it.

Because what really happened here? Again, r don't know. I wasn't there . Believe me I am not coming forth as your secret eyewitness. Tnis isn't PerIj' Mason where I will break down witnesses and say I saw it. By the way, here is what it is. What really happened here?

I would suggest by the evidence that it didn't happen either way the Commonwealth is suggesting in terms of my client's involvement but we do know .5ome objective things. We know, unfortunately, that the victim, Miss Hanis, was a drug user and I hate to talk bad about the dead but was a prostitute. We heard from some of the witnesses she does tricks and things of that nature. We also know in her vagina, which was discovered by Dr. Gulino, actually part of it was cut when he was examining her, was a condom and we also know in her hand when she was found, there was crack/cocaine.

N.T. 02119113, pp. 72-73, 111-112

l2 The following is a verbatim account of the assistant district attorney' s remarks, which has been provided in the context within which the third conteSled remark was made:

[Assistant District Attorney]: What you hav'.!, ladies and gentlemen, is overwhelming evidence of every type. The Defense has asked you to pick it apart if you don't like this piece or don't like this piece but you look at it all together. All together, fi01"l:l the very beginning, each of these witnesses bas oaly named or deScrIbed elie person, Richard Mitchell. They described that before we ever arrested him. with the gun, before we ever arrested him with the gun, before we ever saw what he looked like, before we got to this point.

Reasonable doubt has to be real doubl It can't be imagined to avoid carrying out an unpleasant duty. It is unpleasant to know that the Defendant ;ook that revolver, put it to her head and blew her away. That' s unpleasant but

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defendant's characterization of this remark, it was not an expression of the prosecutor's personal- belief regarding the defendant's guilt or innocence or on the veracity of any of the witnesses. Instead, the prosecutor's remark reminded the jury of its duty "to weigh the evidence and resolve conflicts therem." Commonwealth v. StDro), 476 Fa. 391, 415, 383 A.2d 155,167 (1978). See also Commonwealth v. Patton, 604 Pa. 307, 316, 985 A2d 1283, 1288 (2009) (holding that prosecutor did not commit misconduct by stating during closing statements that jury took an oath "to listen to the facts, to apply the law to the facts and render a verdict" because it was not a misstatement of jury's duty "to find facts and apply the law to them"); Commonwealth v. Carson, 590 Pa. 501, 584, 913 A2d}20, 269 (2006) (noting that in Commonwealth v. Rollins, 558 P,,- 532, 558, 738 A.2d 435, 450 (1999), the court "found no error where the prosecutor asked the jury to 'live up to' the promise it made under oath to follow the law''); Commonwealth v. Peterkin, 51l Pa. 299, 321, 513 A.id 373, 384 (1986) (recognizing that "[tJhc Commonwealth has a legitimate interest in obtaining a jury. that will abide by the jurors' oath and apply the law to the facts"). When the prosecutor's closing argument is read in context, it is clear that there was no error in making such a comment. See Commonwealth v. Correa, 664 A2d 607, 609 (pa. Super. 1995) (quoting Commonwealth v. Jubilee, 589 A2d 11l2, 1114 (pa. Super. 1991), which directs that "comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made"). Thus, defendant's claim has no merit. Defendant's final contention is that this court erred in providing a jury instruction that was different from the one that he anticipated. l3 During the testimony of Lathan Peterson, the

he did and nothing that you· heard before you erases any of that or changes any of that.

Ladies and gentlemen, you are about to go in the back after the Judge gives you his instructions and you have the power that I don't because for as much as I can bring the people in and introduce them to you and ask questions, as much as I can show you their statements, you arc the ones tha(have the very powerful job of rendering a verdict. Verdict means to speak the truth and so I beg you speak the truth on behalf of Shari Harris. on behalf of Philadelphia and the truth is that the Defendant is guilty.

N.T. 02119/13, pp. 173-175.

J~ After 615 court's closing instructions to the jUIy, the following exchange occurred:

ITHE COURT]: We are in the anteroom, outside the hearing of the jwy. :Mr. Stretton is here for the Defendant, Miss Kim for the Commonwealth.

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jury heard about defendant's prior drug dealing. Immediately after this evidence was introduced, this' court inslnicted the jury as follow?:

Ladies and gentlemen, you beard evidence tending to show that the Defendant engaged in conduct for which he is not on trial. I am speaking of the testimony you heard regarding hustling, selling. The eyidence is before you for a very limited purpose, that is the purpose tending to show motive for this crime and to present the context within which this homicide is alleged to have occurred and to complete the story of the events surrounding this incident.

N .T. 02112113, pp. 2.44-245 . Contrary to defendant's position, a nearly identical instruction was provided to the jury at the end of closi,ng arguments J when this court stated the following:

You also heard evidence tending to show that the Defendant ,engaged .in .conduct for which he is not on trial. I'm speaking of the testimony to the effect that the Defendant allegedly sold drugs. This evi4ence is before you for a limited purpose, that is, for the purpose of tending to show motive and to present the context within which this homicide is alleged to have occurred and to complete the story of the events surrounding this incident. This evidence must not be considered by you· in any other way other than the purpose I just stated. You must not regard tbis evidence as sho\"\riog that the Defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt in this case.

N.T. 02119113, pp. 199-200.

This court did Dot err in providing these instructions to the jury. Indeed, this court "has broad discretion in phrasing its charge aad can choose its own wording so long as the law is

This is your opportnnity, Counse~ to obj ect to the Court's charge and all or part to request corrections, to request additional instructioDS, to make any comment of ally sort Mr. Stretton? [Defe nse counsel] : I have one ' objection. On your instruction on the Defendant's prior drug use, remember that arose during :Mr. Peterson's testimony, the statement about him grinding and what that means, that was to be introduced primarily for his opportunity --- how he knew the: Defendant. ~ your instruction though., you noted that it went to the motive and other matters. That was different from your inst:rUctions you had given to the jury earlier.

NT. 02/19/13, p. 227.

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clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an in!,!ccurate statement of the law is there reversible error." Commonwealth v. Jones, 542 Pa. 464, 517,668 A.2d 491, 517 (1995). When evaluating the suitability of the trial court's jury instructions, those "instructions must be considered in the context of the overall charge; a single instruction may not be reviewed in isolation." Commonwealth v. Einhorn, 911 A.2d 960, 976 (pa. Super. 2006). There was no reversible error because this court properly instructed the jury on bow to evaluate the contested evidence. As the court held in Commonwealth v. Cox, 546 Pa. 515,530; 686 A.2d 1279, 1286 (1996), "[a] trial court is uoder a duty to instruet a jury on the correct legal principles applicable to the facts presented at trial." In this case, evidence of defendant's prior drug dealing was admitted for the limited purpose of showing motive. See Commonwealth v. Murphy, 613 A.2d 1215 (pa. Super. '1992) (quoting Commonwealth v. Ward, 529 Pa. 506,509, 605 A,2d 796,797 (1992), which h61d that motive "is always relevant and. admissible" even though it may not be an essential element of crime); Commomtlealth v. Rogers, 615 A.2d 55, 58 (Fa. Super. 1992) (ruling that "evidence of other crimes, even those involving drug-related activities is admissible to demonstrate motive''). This evidence was also admitted for the limited purpose of presenting the complete story of events surrounding the incident to assist the jury in understanding the context within which. this homicide occurred. See Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988) (recognizing that "evidence of other criminal acts is admissible to complete the story of the crime on trial by proving its immediate context of happenings near in time and place"). In Lark, our Supreme Cotut declared that the trial court is not "required to sanitize the trial to

eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand and form part of the hlstory and natural development of the events and offenses for whicb the defendant is cborged[.]" Jd., 518 Pa. at 310, 543 A2d at 501. These were permissible grounds upon which this evidence was introduced to the jury. Consequently, this court adequately, accurately and clearly instructed· the jury on the applicable law. See Commonwealth v. Funke, 452 A2d 857, 862 (pa. Super. 1982) (quoting Commonwealrh v. Zeger, 186 A,2d 922, 925 (pa Super. 1962), stating that "[o]ne of the duties of a trial judge is 'to clarify the issues so that the jury may comprehend the questions they are to decide' "). Thus, there was no error in providing this jury instruction.

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Therefore, in light of the foregoing, the judgment of sentence should be AFFIRMED,

BYTll:jO COURT, ( .' ' / I ! ./ / , / fi .I' / 1/ \--:. ' -

( //fi~V f £h'- J ,/ L {/, / S"I'ily L.V, Byr'C( J, v ' "

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