J-S84005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DARRYL PALMER, Appellant No. 3086 EDA 2014

Appeal from the Judgment of Sentence of September 29, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013136-2013

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED January 12, 2017

Appellant, Darryl Palmer, appeals from the judgment of sentence entered on September 29, 2014 in the Court of Common Pleas of Philadelphia County. We affirm.

At the conclusion of a three-day trial on April 11, 2014, a jury found

Appellant guilty of carrying a firearm on a street or public place in Philadelphia (18 Pa.C.S.A. § 6108) and the trial court found Appellant guilty

of persons not to use or possess firearms (18 Pa.C.S.A. § 6105). Thereafter, on September 29, 2014, the court sentenced Appellant to an aggregate punishment of six to 13 years’ incarceration.^[1]

____________________________________________

J-S84005-16

reasonable inferences to be drawn from the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). Nevertheless, “the Commonwealth need not establish guilt to a mathematical certainty.” Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence”). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.” Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038–1039 (Pa. Super. 2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (parallel citations and quotation omitted).

We have carefully reviewed the certified record, the submissions of the parties, and the opinions of the trial court. Based upon our review, we

conclude that the trial court has adequately and accurately addressed the contentions raised by Appellant and we adopt its sufficiency analysis as our J-S84005-16 own. In particular, we agree with the trial court’s determination that Leach’s testimony, together with the 911 recordings, provided the jury with sufficient proof upon which to find, beyond a reasonable doubt, that

Appellant possessed a firearm on the date in question. See Trial Court

Opinion, 6/30/15, at 10-11. Moreover, we decline Appellant’s invitation to

reconsider the weight and credibility of the evidence adduced by the Commonwealth, as our standard of review forbids such an undertaking.

Accordingly, we direct the parties to include a copy of the trial court June 30, 2015 opinion with all future filings relating to our disposition of this appeal.

Judgment of sentence affirmed. Judgment Entered.

Circulated 01/12/2017 11:49 AM the CourtReporting System on March 3, 2015. On March 12, -2015, this Court granted defense counsel' s request for-an extension of tillle· and defense counsel'filed a Statement of-Errors on

March 26, 1;015, AnAmended Statement of En ors was filed n~ncpro tune on Marth 27; 2015.

FACTS From April9-l l, 2()14, Defendant appeared before this Court for a.jury trial. Ronald.

Leach ("Leach'i.) testified first for the Co01monwealth. Leach stated that on the morning of September 5,..2013; he-wasasleepin.his Kensingtonhome.on the l 90Qblock ofEast Clearfield when he was awakened bythe sounds of'rnen arguing in loud. voices outside. Leach looked outside his-bedroom window and saw three. men, including Defendant, another black male (later identified as Defendant's brother Dante Geary), and an unknown Latino male (later identified as

Joshua Perez), standing and-shouting nextto Leach's car. Geary and Perez had emerged from the .house directly across the: street from Leach's. Defendant was holding a large shotgun in a

"pistol grip." Leach sawPerez retrieve anitem fromhis right .. hand pocket, stick iton the front

right-tire of Leach's car, and.then back away. A few seconds later, Perez went back, picked up the object, andput it inside his.right' frontsock, Perez crossed the street, followed by Geary and

Defendant, Defendant approached Perez and. hit him with the. butt of the shotgun. Leach turned.

away from his window and then heard a single gunshot. He.immediately called the police and described the Defendant, the gunman, as a'heavy-set black male wearing a.white shirt. Leach testified-that he called the po Hee again aftcdhey hadarrived on the scene when he.noticed that

Perez hadreturned to-the area and was sitting on a bicycle at the erid 9fthe street, watching the police activity. Leach later met with police detectives and gave a statement. He also looked at

-photographs and identified' Defendant.Geary and Perez as the men who were outside his home arguing, Leach told detectives-that Defendanthad been holding a shotgun and that he had "butt-

} . 3. stroked" Perez with the gun. Leach testifiedthara few days after the shotgun incident, Geary

.. · approached him and . asked, "What did you tell the police about my brother"? Leachfurther

testified that on the morning of'trial, Geary· sat in: a parked caroutside of Leach's house and said, "I need .to .talk to you;" as Leach walked past. Leach further testified that. he.. had seen Geary.almost d~ily since the incident happened butthat Geary had 'spoken to him only onthose

,•

Police.Officer Phillip l;ewis ('10fficerLewi~'').testifiech1extforthe Commonwealth. He testified that on September 5, 2013, he. wascarrying out.his duties as a, routine patrol officer with his. partnef Officer 'Benz when they received information over the policeradio that there was a· man on Clearfield Street with ashotguri. When they-arrived on the scene, Officer Lewis observedtwo blackmales arguing.. Heidentified one:ofthose men as Defendant, Officer Lewis testified.that he and Officer Benz detained the two then. Defendant told police thathe had beet} in an.argument-with ·hjs brotherthat morning, One of the.men told ·the officers that he lived at

1916 East Clearfield-Street, so: Officer Lewiswalkedtowards . . the house. . Adjacentto the house,.

he·obser.ved an empty lot with a table set µp. Oi:i the·JabJ.e., heobserved drug packaging paraphernalia: He also observed red shotgun shells on the table and. ground. As Officer Lewis wasexamining these. items, he .stepped ona hard object on the ground covered .by a.blue plastic

tarp. He lifted the tarp and observed a shotgun sleeve marked. "Cabela's, '' .a well-known hunter 's

outfitting company. Officer 'Lewrs'testlfied 'thathe opened'the sleeve: and o bserved ~ .gray and -, black Moss.shotgun. Insidethe gun, there were two live rounds.and . one spent round,... meaning that the gun .had been.fired, Defendant and.his brother were arrested and transported to the police stationforprocessing. Officer Lewistestified.that bothDefendant and.his brother refused to press criminal charges ·againstthctother. Officer Lewiecompleted a 75-4~ form, and in it, described Defendant as a heavy-set black- mail wearing. a white shirt and blue Jeans. (N. T, 419/l 4, p; l09Ml36). ••• •

Police Officer Christopher Benz testified next for the Commonwealth. He statedthat on

September S, 2013, h.e arid his partner, Officer Lewis, responded to a report ofa man with a shotgun OIJ. the. 1900 block of Clearfield street. He detained Defendant, who was wearing a.white shirt, andDefendant's brotherDonte Geary, who was wearing a blue shirt (N.T. 4/10/14, p, 4M

10).

Next, Police Officer Zhao Chen testified that QC responded to a call oh the 1900 block Of Clearfield Street. From· underneath a bicycle next to 1916 East Clearfield Street; Officer Chen recovered a bundle of 14 clear plastic baggies filled with smaller blue glassine paper stamped

"heat" containing a white substance, later identified as· heroin. Officer Chen detained a Hispanic

man, JoshuaPerez, wearing a black shirtand green shorts, who seemed very interested in the situation and did not disburse when asked to do so by police. Officer Chen asked Perez afew

questions.ranhis information through the computer; and then released him without arrest. Later, Officer Chen interviewed Mr. Leachand spoke with him about Perez. Jd. at 10:-1.8.

Police Officer Marco Padilla testified next. He stated, that he transported Defendant to the police station-for. processing and that, as a result, he completed a 229 form. Officer Padilla stated thatat-the time. of Defendant's arrest; he was wearing a white shirt, blue jeans and sneakers; Id . at2s.:2s.

Next, Detective Dennis Demas testified forthe Commonwealth. He stated that he

executed a search warrant at 191 (> East Clearfield Street; searching for any additional firearms or related evidence. He did not recover any further evidence inside the house; ho-Wever, he did recover two spent 12-gauge . fired shotgun shells from. the . vacant Iotnext to the house. Detective Demas stated that he surveyed the area for strike marks but did not locate arty; He also looked for --··-fonctiorring··video cameras on nearby homes-and businesses in the area but was unable to locate any, .ll!, ~t 28~40.

Qn cross-examination, Detective Demas testified that he did not.request a gunshot residue test on Defendant's clothing or hands because this was not a case of mistaken identity;

Leach positively identified Defendant ·a::i the man with the gun. He farther testified- that he ·decided notto have-the shotgun checked for fingerprints because it was already "contaminated" as several people had touched it. Id. 40.:.47.

Donte Geary roeary••) testified next for.the Commonwealth; He stated that be lived at 1916 East Clearfield Street with his-child's mother and her family. Defendant visited him there

"sometimes." On the morning ofSeptember 5~ 2013, he and Defendant were arguing because

Defendant ..disrespected" Geary's child's mother-and they Were shouting at each other on the sidewalkeutside of the house. Gearytestified thatPerezwasoutside on the sidewalk.a few houses away, . but he, was not involved in their disagreement. Geary stated that . he and Defendant were about to go their separate ways when the police arrived, Geary testified that Defendant.did

not have a: firearm. and there were "no shots fired at all." He continued to deny ever hearing gunshots that morning even after the Commonwealth played the recorded 911 calls from that

morning, wherein three separate neighbors on. Clearfield Street reported to the. police that they heard a gunshot. Geary testified thaf he did not remember what his brother was wearing that day, Hefurther stated tli;:t't.bothliis household and the neighbors next door use the vacant lot

. adjacent to his house. Id. at 58-95.

Next? Joshua Perez ("Pere:l') testified for the Commonwealth. He stated thathe wa~ incarcerated on an unrelatedmatter and that he had notbeen threatened or promised anything in After the jury was excused> defensecounsel moved for a judgment of acquittal on the charge-ef'aggravated assault, This-C9urt·denied . the-motion>. finding. . that the Commonwealth.had met its minimum burden. and it was up to the jury to make a credibility determination as to which

witnesses' version of even ts to believe. The jury returned a verdict of not guilty on the cliarge$. of aggravated assaul t and possession ofaninstrument of crime. The jury found Defendant guilty of carryingafirearm.on the public streets ofPhiladelphia, VUF A § 6108.

'I"bis Court then conducted a -waiver trial with respect to the. charge of carrying a firearm as a person not to use. or possess firearms, VUF A § 6105. Counsel stipulated that Defendant WdS. statutorily ineligible to .possess a firearm. The Court found Defendant guilty of this charge.

On September 29, 2014, Defendant appeared before this Courtfor sentencing. Defense counsel argued that Defendant had a traumatic childhood and had entered the system at 14 years old when he became too difficult for his grandmother to control. Defense counsel recommended

concurrent sentences. The Commonwealth argued that Defendant had a long criminal history and that his crimes were escalating .in .serionsness. He recommended an aggregate sentence of 7 to 14 years mcarceration plus one. year reporting probation. This Court sentenced Defendant toS. to 1 Q

years state incarceration on me VUFA § 6105 charge and 1 to. 3 years state incarceration on the VUFA.. § 6108 'charge;to run consecutively, for an aggregate sentence of 6 to 13 years state incarceration; This Court ordered that Defendant undergo dual diagnosis treatment and anger

management treatment while in custody, earn his GED. and upon release, seek and maintain employment. He was further ordered to pay mandatory court costs at a rate of $25 per month.

ISSUES ·-··· I,, ·----WH,t.HEJ.tXHE EV-IDENCE..WAS.S.UFFICJ.ENTFO-R. . TJ,JE.JURYT..0-FIN:O ..--- · P.EFENO.AJIT Gl11Ll'Y QF C.ARRYING A FIREARM ON'.PUBLI(J°.STREETS IN PHILADELPHIA; VUFA 6108. ANJ) CARRYIN'C A FIR.EA.Ri.'1.AS A P.ERS:ON. NOT TQ JJSE OR POSSES$ FlREARMS, VUF A.§ 6105 ..

It W:iIETB,ER Tilt TRIAL COURT ERRED WHEN IT -P.ERMITTE]) THE .COMMONWEALTH TO iNTRODUCEINTO EVIDENCE THE SHOTGlJN CASINGS.RECOVERED BY POLlCE. lN THE VACANT LOT NEXT TO GE;ARY~-S HOUSE ..

UL WiIETHEE- THETRIAL COURT ERRED.IN ALLOWING THE COMMONWEALTH TO REFER IN.ITS CLOSING ARGUMENT TOTHE :cri'Y'S·EC()NOJ.\iiic-CO.NDITIONS AS A .REASON FOR.THE POLICE.'·S· FAILURETO CO.N.DUCTGUNSHOT RESIOtJE ANUFINGER.PlUNT TESTING.

DISCUSSION

I. -~~~~~1:Nc:.o~~=~~:;~!~- § J;>HILADEJ,PlllA/VUFA g~~~~~~:.~;i~~~sIN. 6108 ANt>.CAMYllN:G A FIREAfu'VI AS.A · PtRSON .NOT TO uss OR.POSSESS· FIREARMS, VUF A·§ 6105.

The evidence adduced a~ trial 'was sufficient.fer the jury to find Defendant g\iiHy of carrying a firearm on public streets in Philadelphia, in violation of section . .§'6.108 of the Unifonn Firearms Act; andcarryinga firearm as a person not.tc use.or possess firearms in violation of section § 6JQ~ of the Uniform Firearms Act . .

A._ S.ufficiency . of the Evidence .

A review ofthe sufficiencyofthe evidencetosupport a convictiontequlres-thatthe evidence. be-reviewed inthe light most favorabletothe Commonwealth as the verdictwinner. Commonwealth v. Walter, 2004 PA Super, 14t-849·A:2d 265; 26T(20.04) (citing

Goinmoriwealth v. Ro'se,. 463 Pa. Super. 2647 344'A2tt, 874, 925 {1975)). The Commonwealth is also entitled to all favorable inferences which may be drawn from. the.evidence .. Col!l.~onwealt~ v._S_anch~z, ;2006.Pa;'LEXJS 183~ ,(2006)(cjtip.g Coggppnwealtpy. Collim;, 500 Pa. 46, 50; 703 A2(1 41.8, 4 20· ( I 997)). ·with.in tqls frfu,Qework, the evidence put forth. by the Common weal th

. wil_l be.considered .su.fficlerit-if..(t establishes eaeh-material-el ement. 0£. the crime-bey ond-a-» reasonable. doubt, evenif by wholly circumstantial.evidence ... Commonwealth v. Dargan, 200.~

PA Super, 74~:897 A.2d 496,. 503 .(2006}(citing . . Qo,rrimonwealth . . v. Distefano., . 200.1 .PA Super

238, 782 A.2d 574, 582.(2001)).

When determining whether the evidence :is sufficient to.support a ~uilty verdict, the.

appellate court must consider all bf the. evidenceactually received. at trial, id·. . However, the trier ... · .~ of facr is entitled, to believe all, part.or none of'theevidence received at trial, and the appellate court cannot.substitute. its judgment fo.r·¢at of the. fact-finder. Commonwealth v. Fds_bie,,2006

PA Super. 430, 889 A,2d 127l;.J274 (20.0~) (citing DiSt~funo, 782A.2d at 574);

. Coninionwealth . ' v.. Kim, 2005 \ i>A. Super. . 3.8.1, ~:8.8 A.2d.. 847, 851 (200S}(citihgCommo.n.2tealth .

. v. Champney; 574J~a 43 :,, 83i A2d.403 ,. 40.8 (2Q03))~ The facts and circumstances established

by the Commonwealth need not eliminate.any possibility of the defendant'sinnocence; rather, any doubt is to'be-resolvedby the. fact-finder unless-the evidenceis so weak and inconclusive:

that.asa marterof.lawnoprobability of'factceuld be concloded:·.Qommonwealth v.. Lambert, 2002 PASuper .. 82, 795' A.2c_i 1010 (2002) (citing,Comm0nweaJth v. Cassidy; 447 Pa. Super.

192, 194, 668A.·241143, 1144{1,'995)).

:8. VUFA.§.610.8 and VVFA§·6:105 ..

Under Pennsylvania law, ''[n:Jo person· shall carry a firearm.zifle or .shotgun at arty time upon the public streetsorupon anypublic property in a cityof'fhe first class unless such person

is licensed to c~ry a firearm" OJ:'·\S exempt' from licensing. ^[1] g· !>a.Cs.§ .61..08 .. Lack of a. license is not an element.ofthis statutory provision. Com;momye~th v. I-io..pkins, 200·0 PA Su.per 47JI

18, 747 A.2d 910, 917 (Pa. $uper. Ct. 2000Y(citing·cornmonwea1th 'v, ·Ford1 3'1$ Pa.Super, 2Jl, 461 A.2d 1281, 1287 (1983). 11As withany crime, the factfinder may infer guiltfrom the totality of'the circumstances, so long as the evidence-reasonably supports the factfinder's conclusion."

Id. "The factfinder's determination that a defendant carried. a weapon on a public street in Philadelphia will be affirmed if the evidence ofrecord reasonably supports this conclusion," Jg,1_

Last,.aperson whohasbeenconvicted of any offense enumerated in 18 Pa:C.S. § 6105(b) or whose conductmeets the. criteriaset.forth iii 18 Pa.C.S. § 6105(c) cannot/'possess, use, control, sell, transferor manufaeture] ... ] a.flrearm in thisCommonwealth:" 18 l,a.C.S. §.6105(a)(l).

In the case at bar, Defendant was properly found guilty ofviolating two sections ofthe U nif orm Firanns Act: carrying .a firearm op public streets in Philadelphia, §6108; and carrying a firearm as a person not to possess a firearm, § 610~. f\.t trial, Leach testified that. in the early

· hours of September 5, 2013, he woke up to the sound pf men arguing outside his house. He looked out his window and saw Defendant standing on the sidewalk near Leach's car, holding a

larg¢ shotgun "in a pistol grip." When he turned away from the window, he heard a gunshot and immediately called the :police. He described the gunman.as a heavy-set blackmale wearing a white.shirt.Later.Leach-was interviewed by detectives and identified Defendant in a photo array

as the man whohad been.holding theshotgun, Officer Lewis testifiedthat whenhe arrivedon the scene- in response to a radio call about a gunman in the area, he observed Defendant.and his brother arguingin front of 1916 Clearfield Street.Jn a vacant lot adjacent to the house; Officer

Lewis recovered a shotgun with two.live rounds and one spent.round, In his arrest report, Officer

Lewis described Defendant as a "hca:vy.;set black . male wearing a white shirt and.blue.jeans,"

Officer Benz testified ·that Defendant was wearinga white shirt when he. was. detained. Officer

Padilla: testified that he transported Defendant to the police station for processing. and that Defendant was wearing a white shin, bluejeans and sneakers. Last.afterthe jury found D~fcndant guilty of carrying a firearm on public streets in Philadelphia, counsel stipulated that

Defendant wasstatutorily prohibited from carrying a firearm..

This evidence was sufficient to sustain Defendant's firearms convictions. The jury heard

Leach's eyewitness testimony that Defendant was carrying a shotgun while he was outside on the sidewalk on Clearfield Street. Leach 's description. of Defendant as a heavy-set black male in a white shirt was recorded repeatedly in written reports by the arresting officers-that day .

. . Additionally, although Perez denied seeing anyone With a firearm, he testified that he heard people arguing, followed by a gunshot; and that when he rode his bike over to see what was

. goingon, he saw Defendant-and his brother Donte on the sidewalk. From .the totality ofthe clrcumstanocs.the jury properly inferred that Defendant was carrying a firearm on a public street in.Philadelphia, and, as a result, found him guilty of this charge. Since the jury found himguilty of carrying a firearm, "1J,d counsel stipulated that Defendant. was statutorily prohibited from carrying firearms, this CorntproperJyfpurrdpefe~dant .guilty of carrying a firearm, as a perso~ notto~ use or possess. firearms. Accordingly,. . . Defendant's convictions should be affirmed..

II. THIS COURT PROPERLY PERi'11TTED THE COMMONWEALTH TO INTRODUCE INTO EVID.ENC~ TWO SHOTGUN CASINGS RECOVERED · BY POLICE IN THE VACANT LOT; ·

This Court properly allowed the Commonwealth tcintroduce into evidence shotgun casings recovered by police in the vacantJot next to 1916 East Clearfield Street Defendant argued that the shotgun casings should have been excluded because they "had no probative value and Were unduly prejudicial" to Defendant's case: This claim is Without merit.

It is Well established that the admissibility of evidence is solely within the discretion of the trial. court and its decision will not be disturbed on appeal absent an abuse of that discretion .

. An abuse of discretion is notmerely an error of judgment, but is rather the overriding cir misapplication :oftfie law or an exercise of'judgmentthat is.manifestly unreasonable, orthe res-ult of bias, prejudice, ill-w.Ui or' partiality, as shown by the evidence of record .. Commonwealth v:

. . 2005 PA Super 272, 880 A.2d ·68.2, 685. (2005). (quoting Commonwealth Watfley,. . . . v. Dent,. 837 A..2d 571, 577' (J;>A Super, 20Q3))i Wherethe trialcourt hasstated a'~'reason·forits decision, the

scope of review is limited tp an.examinaticn'of the stated. reason." Gornmmi\.vealth. v, Q'·Brien, 2003 PA S.uper.425, 836 A.2d 96~, 96.8: (20Q3)(q.u,oting Co~mornyealth v. :Horvath, 2·00JPA

Super227,)81.A.2d 1243,12.46:(20'01)). "A discretionary rule cannot be overturned simply because areviewing court disagrees with 1p~ trial court's conclusion:" Id. (quoting

Comh1.onwealthv. Cohen; 519:P~·. 55?, 60~ A.2d. 1212, 12is (1992)), To constitute reversible

error, a.;1 evidentiary ruling must not only be .erroncous, but also harmful or prejudicial to the complaining party, Cornmorrwealthv. Lopez;.2'012 PA:Super 16'1, 57 AJd 74., 8-l (20'q) (citing·

McN'an.amori v. Washko, 906 A.2d 1259.; 1268~69. (Pa.Super,2006)). An evidentiary error of the trial court will 'be deemed 'harmless on appeal where the appellate court is.convinced, 'beyond a

reasonable . doubt. . . .. . 'that. the error.could '. . . . . not . have contributed to the. verdict. Commonwealth ' . v.

DeJf!sus.• 584 Pa. 29, 88.0' A.2d 60&, 614 (2005).(cifing Commoiiwe~th v. s·t6ry, 476 Pa. 39l, 383 A.2d 155, 194-66 (l979)).

It iswell settled that all relevant evidence is admissible, except JIB otherwise providedby

Jaw. Pa:R.R402. 'Evidence is relevantif it has any tendency to make a fact more or Jess probable than it would be withoutthe evidence arid the factis of.consequence in determining the action.

Pa.R.E. 40 I. Tue 'court niay exclude relevant evidence ifits probative value is outweighed by a

danger. of one or · moreef ~QC following: unfair prejudice, confusing the. issues, misleading the Jury, undue delay, wastin~ time, or needlessly presenting cumulative evidence. Pa.RI{ 403.

'recovered ashotgunand spent: shell Casings in thevacant lot in close proximity to where

-Defendant-hadbeenarguing withPerez and-Geary, Thus; the recovered shell.casings were

relevant evidence to t]ie case at bar. Second, as discussed.above, defense counsel argued that the police did not conduct, a. thorough investigation: into thfo matter. She questioned both Detective Demas and Police. Officer

Lewis as JQ why they"~ld not request gunshot residuetests on Defendant's clothing and 'hatids.

'She wanted'to.know J.4y the polite did not tryto recover fingerprints from the shotgun, Defense counsel also -inquired as to.whether they" thoroughly canvassed the· neighborhood for additional.

witnesses . and.suspects, (l'{T. 4/9/14, 143-1.45, 147.,.i48~N.T. 4110114, 4'0:-47). Since defense . l . . . counsel drew into question the police Investigation itself, the Commonwealth properly countered

with evidenceof'the.investigatorytools employed bythepolice, including-the search for and I • • • ' ' means thafafter the. trigger is pulled, ·the projeetiveor-bullet comes out of'the front -of the shotgun, and the shotgun sh~ll remains in the shotgun, The.fired shotgun shell is ejected from the . shotgun only· after the shotgun i.s pumped again'. The factthat there is one fired shotgun shell recovered in (sic) the shotgun indicates that the .shctgunwas not pumped: after it had last been fired. Ms. Zeccardi :_[def~n_sG counsel] and 1 both signed those stipulations,

(N .T. 4/l0/14,_._p. 129-BO~. thus·,"the Commonwealth' s introduction of the shotgur; shells Into evidence was cumulative and. did not prejudice.Defendant in. anyway. . Since this Court.'c()'tnmitted noerror, .. thejury's ' .. finding.ofguilt should be affirmed.

III.. IT WAS l'l(JTJMPROPER :F9R THE:-COMMONWE:ALTH ro REJ<'ER TO THE CIT°V'.S 13;CON'QMIC·:coNDITlONS IN ITS CLOSI-NG ARGUMENT.

The Commonwealth did not commit proseoutorial.misconduct when it referenced the dty

of Philadelphia's poor economic conditions in its closing argument, Defendant.argues that the Commonwealth should not.have been permitted to. "explain that the economic conditions in Philadelphia were the reason why the police department failed to conduct certain testing" because the Commonwealth ·''did.'.not present any evidence-to. support-this conclusion. ,,_ This.

claim is withoutmerit, Whil¢."~fdoslng-argum.ent must. be based upon evidence in the record Of reasonable inferences therefrom, a prcsec utor J.S permitted to. respond to defense evi dence and enaa~e in

oratoricalflair. C9nimonwecilth v. Culver; 2012.PA Super 172, 51 A3d 8-86, 87·8 (2012) (cit-ihg . l • .. • ' ..

remarks, Comm·onwea!Jlrv. Burno, 96 A.~d 956, 974 (~a: Super. 2014) (quoting,Comm...Q.n.wi:alth

v: Elli:ott; . . 80 .2d 415,443 . (Pa.·2013). Furthermore.a prosecutor's comments do notconstitute ' (N:l. 4/11/14.~ .P: 28-29). This· explanation for the. police failure to conduct these tests was in direct response to the defense's theory ofthe ease, specifically that the police conducted a less than thorough investigation into this matter; Ai trial, defense counsel Ms. Zeccardi. questioned ·

Detective Demas on cross-examination regarding. the police officers.' failure to request gunshot residue tesis on.Defendant' s clothing .and·.hands·ro prove· 'that he-actually had fired the. shotgun

that day. She further pressed him as to why he chose not to . have theshotgun.checked for fingerprints. Detective.Demas testified 'that he. did not request-gunshot residue tests nor did he have the firearm fingerprinted because there was an, eyewitness, 'Mr, Leach, who had. positively identified Defendantas the.shooter. Ms .. Zeccardiasked Officer Lewis the same questions; he testified thathe did not.attempt to preserve the fingerprints on the firearm because it was already containinatedand that he did not guard the. Defendant's clothing or. hands for a gunshot residue . rest., In addition, in her own closing argument, Ms, Zeccardi argued that the police had failed

to do "basic police work" by failing' fo conduct tests thatwould produceI'neutral 'evidence."

(N.T.4111/14, p. 15-16) ..'~he told the.jury:

There are very few things 'in a trial thatare neutrai.Medical records, injurtes caused, that's neutral. There 's gunshot residue on the· T-shirt and jeans. Thaf·s neutral .. The defendants' [sicjprints are or arenot on the gun, That's neutral. Not one piece of neutral evidence wasput before you, not because · they couldn't have it, but because DetectiveDemas who is not-it is not his job to call [Defendantj.guilty.. That's not his job.

That's your job. But he elected not.to do. thevery things that would have.either buttressed the Commonwealth's case or knocked it.out of the park, Either. there'sgunshot residue or there's not, But they didn't give you tpiit because I knew: I had a witness. · The Commonwealth's closing remarks regarding the police. officers' decision not to conduct a gunshot residue test or check for fingerprints on the shotgun directly respond to defense counsel's closing arguments about allegedly shoddy police work.and "neutral evidence," as well as hercross-examinations of Detective Demas and Officer Lewis; Moreover, it reiterates

Detective Demas' testimony regarding his reason for declining to request these tests; specifically that there was a positive identification by an eyewitness so these tests would have been superfluous and a waste of resources, These comments were all infair response to defense arguments arid were riot improper when viewed in the context of counsel's closing arguments as a whole. Furthermore, there was no harmto Defendant. As.stated above, "a prosecutor's comments do not constitute reversible error unless their unavoidable effect was to prejudice the. jury, forming in their minds a fixedbias andhostility ~ow~rds the defendant so that they could

not weigh the evidence objectively and render a trueverdict," This is notthe case here; The Commonwealth's closing arguments regarding the economic ·hardshipsfacirig Philadelphia in no

way -prejudiced Defendant or prevented the j'ury from rendering a true verdict based upon the evidence. Thus, the Commonwealth did not make improper remarks in its closing argument and the jury's verdict should be affirmed ..

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