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 following is a verbatim a~count of defendant's Statement. Commw. v. Richard lvfitchell Page 11 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 12 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard A1itchell Page J3 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard kfitchell Page 14 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 15 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard Mitchell Page 16 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 17 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 18 of39 ., Circulated 01/21/2015 03:18 PM 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 Commw. 'I. Richard 1Yiitchell Page 19 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard Mitchell Page 20 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard lv.litchell Page 21 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard A-fitchel! Page 22 of39 Circulated 01/21/2015 03:18 PM 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 '<v.ill not consider a claim on appeal which was not called to the trial court's attention at a·time when any error committed could have been corrected"). Even if this issue has not been waived, there was no error in consolidating the two cases. In Commonwealth v. Brown, 323 A2d 223, 224 (pa. Super. 1974), the court held that "[tlhe • 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 prejudice or clear injustice to the defendant." 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. Commw. v. Richard A1itchell Page 23 ofJ9 Circulated 01/21/2015 03:18 PM (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 Commw. v. Richard Mitchell Page 24 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard Mitchell Page 25 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 26 of39 Circulated 01/21/2015 03:18 PM • 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: Commw. v. Richard Mitchell Page 27 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard l\fitchell Page 28 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard Mitchell Page 29 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard Mitchell Page 30 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard jHitcheli Page 31 of39 Circulated 01/21/2015 03:18 PM 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: Commw. 'V. Richard Alitchell Page32ofJ9 Circulated 01/21/2015 03:18 PM '-'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. Commw. v. Richard Afitchell Page 33 of39 Circulated 01/21/2015 03:18 PM 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. Commw. 'V. Richard Mitchell Page 34 of39 Circulated 01/21/2015 03:18 PM 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 Commw. v. Richard iVitchell Page 35 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard lYfitchell Page 36 of39 Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard Mitchell Page 37 of39 .i Circulated 01/21/2015 03:18 PM 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. Commw. v. Richard i\1itchell Page 38 of39 Circulated 01/21/2015 03:18 PM " 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 ' " Commw. v. Richard Mitchell Page 39 of39