Com. v. Garland, R. ( 2017 )


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  • J-S13037-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    RAYMOND GARLAND
    Appellant              No. 2153 EDA 2016
    Appeal from the Judgment of Sentence June 16, 2016
    in the Court of Common Pleas of Philadelphia County Criminal Division
    at No(s): CP-51-CR-0000749-2015
    BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 13, 2017
    Appellant, Raymond Garland, appeals from an aggregate judgment of
    sentence of twenty-one to forty-two years’ imprisonment for third degree
    murder1 and carrying firearms without a license.2          Appellant was also
    convicted of possession of an instrument of crime3 and persons not to
    possess, use, manufacture, control, sell or transfer firearms,4 but the trial
    court did not impose any penalty for these offenses. Appellant challenges
    the sufficiency of the evidence and asserts multiple objections to the trial
    proceedings.     We affirm Appellant’s conviction for third degree murder,
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S. § 2502(c).
    2
    18 Pa.C.S. § 6106(a)(1).
    3
    18 Pa.C.S. § 907(a).
    4
    18 Pa.C.S. § 6105.
    J-S13037-17
    possession of an instrument of crime and carrying firearms without a license.
    We reverse Appellant’s conviction under 18 Pa.C.S. § 6105, but because
    reversal of this conviction will not upset the overall sentencing scheme, we
    decline to remand for resentencing.
    The trial court summarized the factual history of this case as follows:
    On October 20, 2014, at around 1 a.m., Khary Ford
    (known as “Deals”), Steven Robinson (“Shooter”), and
    [Appellant] (“Ghost”) were selling drugs in the area of
    Jasper and Thayer Streets in Philadelphia. . . . At around
    this time, [Appellant] approached Ford and Robinson, who
    were in the same drug organization, and claimed that “four
    n*ggaz” just robbed him of his cell phone and $700.
    [Appellant] told Ford to grab his pistol. Ford, Robinson,
    and [Appellant] then searched the area for the alleged
    robbers.
    On the night of the shooting, [Appellant] was the drug
    organization’s caseworker.     The caseworker holds the
    majority of the money and passes out the bulk of the
    drugs to the distributors. After searching for a short time
    with [Appellant], Ford suspected that [Appellant] had
    faked the robbery and had stolen the drug money.
    After they failed to locate anyone, Robinson and
    [Appellant] left Ford and walked to a Chinese restaurant at
    around 2:20 a.m. Around the same time, the decedent,
    Kevin Parker[,] who was not involved in any drug
    organization[,] left his home on the 1800 block of East
    Ontario for a 7-Eleven located on the same block to buy
    cigarettes.    On the way to the Chinese restaurant,
    [Appellant], walking on the same block, spotted Parker,
    from around 130 feet away.          After spotting Parker,
    [Appellant] said to Robinson, “I think that’s the little
    motherf**ker right there.” [Appellant] pulled out a black
    semiautomatic firearm[5] and attempted to fire at Parker,
    5
    Robinson testified that he did not know that Appellant was carrying a
    firearm until he “pulled it out.” N.T., 3/29/16, at 175.
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    but the safety was on. After removing the safety, he fired,
    killing Parker and hitting a windowsill of a house.
    Dr. Bruce Wainer, an associate medical examiner and
    neuropathologist with the Philadelphia Medical Examiner’s
    Office, determined that Parker’s cause of death was a
    penetrating gunshot wound to the back.            The bullet
    entered Parker’s right, upper back and into the right chest
    cavity. The bullet passed through the lower left lobe of
    Parker’s right lung and into the central portion of his chest
    cavity, perforating the lower airway and aorta, and
    stopping behind his left collarbone. The manner of death
    was homicide.
    The Crime Scene Unit recovered projectile fragments on
    the ground in front of 1822 East Ontario Street. The
    frames for the window and the front door at 1822 East had
    bullet holes. There was also a bullet hole in the window
    frame of 1818 East Ontario.        The Crime Scene Unit
    recovered five Remington 9mm Luger fired cartridge
    casings (“FCCs”) within a few feet of each other, diagonally
    across the street in front of 1839 East Ontario. All five
    FCCs were fired from the same firearm. The distance from
    the sidewalk in front of 1822 to the sidewalk in front of
    1839 was roughly 130 feet.
    After shooting Parker, [Appellant] and Robinson ran,
    eventually finding Ford. [Appellant] told Ford that he had
    “dropped him,” referring to the person he had just shot.
    Moments later, [Appellant] handed Ford a Luger firearm
    rolled inside a t-shirt and asked Ford to hide it inside his
    house.     Later, Nate, a member of the same drug
    organization, retrieved the firearm from Ford’s house. On
    November 20, 2014, Ford, in an interview with Philadelphia
    Police detectives, identified [Appellant], who[m] he knew
    as “Ghost,” as the person who gave him the firearm the
    night of the shooting. Ford also selected [Appellant]’s
    photograph from an eight-person photograph array[] and
    identified himself in a still photograph taken from a 7-
    Eleven surveillance camera from the night of the shooting.
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    On November 19, 2014, Robinson, in an interview with
    detectives,[6] identified [Appellant] as the shooter from a
    photograph array. He also identified himself, Ford, and
    [Appellant] in a still photograph taken from the 7-Eleven
    footage the night of the shooting. On December 8, 2014,
    Robinson told detectives that he saw [Appellant] while in
    custody at Curran-Fromhold Correctional Facility (“CFCF”).
    There, [Appellant] told Robinson that “they got [me] for
    that shooting,” referring to the shooting on Ontario Street.
    Trial Ct. Op., 9/8/16, at 2-4 (record citations omitted). The evidence further
    established that Appellant did not have a license to carry firearms.       N.T.,
    3/30/16, at 91-92.
    On March 31, 2016, at the conclusion of a four-day trial, the jury
    found Appellant guilty of the aforementioned offenses. On June 16, 2016,
    the court imposed sentence.        On July 10, 2016, Appellant filed a timely
    notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.
    1925.
    Appellant raises the following issues in this appeal:
    I. Is Appellant entitled to an arrest of judgment with
    regard to his convictions for third degree murder, violation
    of the Uniform Firearms Act (two counts) and possessing
    instruments of crime[,] since the evidence is insufficient to
    sustain the verdicts of guilt as the Commonwealth failed to
    sustain its burden of proving Appellant’s guilt beyond a
    reasonable doubt?
    II. Is Appellant entitled to a new trial as a result of the
    trial court’s failure to grant his challenge for cause to
    prospective Juror No. seventeen?
    6
    During trial, Robinson recanted his statements to the detectives. N.T.,
    3/29/16, at 160-61 (Robinson’s testimony that police officers bribed and
    threatened him on three occasions when he gave statements).
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    III. Is Appellant entitled to a new trial as a result of the
    trial court’s ruling that denied his Batson[7] challenge?
    IV. Is Appellant entitled to a new trial as a result of the
    trial court’s ruling that denied his motion for a mistrial
    made after the prosecutor made inflammatory remarks
    during his opening statement to the jury?
    V. Is Appellant entitled to a new trial as a result of the
    trial court’s ruling that allowed the Commonwealth to
    present the testimony of prosecutors Emily Rodriguez and
    Edward Cameron with regard to any deals or agreements
    with Commonwealth witnesses in exchange for their
    testimony?
    VI. Is Appellant entitled to a new trial as a result of the
    trial court’s ruling that allowed the Commonwealth to read
    the portion of Khary Ford’s statement to the jury with
    regard to his position during the incident and his
    identification of the individuals involved?
    VII. Is Appellant entitled to a new trial as a result of the
    trial court’s ruling that denied his request for a specific jury
    instruction as to bias of Commonwealth witnesses?
    Appellant’s Brief at 5-6.
    Appellant first argues that the evidence was insufficient to sustain his
    conviction for third degree murder due to the failure to prove that he
    committed the shooting, the failure to prove the element of malice, the
    absence of physical evidence and the alleged inconsistencies in the
    Commonwealth’s evidence. We disagree.
    The standard we apply in reviewing the sufficiency of
    the evidence is whether viewing all the evidence admitted
    at trial the in the light most favorable to the verdict
    7
    Batson v. Kentucky, 
    476 U.S. 79
    (1986).
    -5-
    J-S13037-17
    winner, there is sufficient evidence to enable the fact-
    finder to find every element of the crime beyond a
    reasonable doubt. In applying the above test, we may not
    weigh the evidence and substitute our judgment for the
    fact-finder.   In addition, we note that the facts and
    circumstances established by the Commonwealth need not
    preclude every possibility of innocence.         Any doubts
    regarding a defendant’s guilt may be resolved by the fact-
    finder unless the evidence is so weak and inconclusive that
    as a matter of law no probability of fact may be drawn
    from the combined circumstances. The Commonwealth
    may sustain its burden of proving every element of the
    crime beyond a reasonable doubt by means of wholly
    circumstantial evidence. Moreover, in applying the above
    test, the entire record must be evaluated and all evidence
    actually received must be considered. Finally, the finder of
    fact [,] while passing upon the credibility of witnesses and
    the weight of the evidence produced is free to believe all,
    part or none of the evidence.
    Commonwealth v. Talbert, 
    129 A.3d 536
    , 542-43 (Pa. Super. 2015)
    (citation omitted), appeal denied, 
    138 A.3d 4
    (Pa. 2016).
    “Third 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.” Commonwealth v. Truong, 
    36 A.3d 592
    ,
    597 (Pa. Super. 2012) (en banc) (citation and quotation marks omitted).
    “Malice is not merely ill-will but, rather, wickedness of disposition, hardness
    of heart, recklessness of consequences, and a mind regardless of social
    duty.” 
    Id. at 597-98
    (citation and quotation marks omitted). “Malice may
    be inferred from the use of a deadly weapon on a vital part of the victim’s
    body . . . [or] after considering the totality of the circumstances.”   
    Id. at 598
    (citation omitted).
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    The evidence was sufficient to establish Appellant’s identity as the
    killer. Appellant shot the victim to death on a public street, and Appellant’s
    cohort, Robinson, gave statements in which he identified Appellant as the
    shooter and pointed him out in a still photograph recovered from video
    surveillance tapes. See Commonwealth v. Patterson, 
    940 A.2d 493
    , 502
    (Pa. Super. 2007) ((“positive identification by one witness is sufficient for
    conviction”) (citation omitted)).   The fact that Robinson recanted these
    statements during trial is of no moment. Prior inconsistent statements, such
    as Robinson’s statements to police, are admissible as substantive evidence
    when
    the witness who gave the prior inconsistent statement
    testif[ies] at trial and [is] subject to cross-examination
    regarding the statement, and, also, [his] previous
    inconsistent statement [is] “given under oath subject to
    the penalty of perjury at a trial, hearing, or other
    proceeding, or in a deposition, or (b) is a writing signed
    and adopted by the declarant, or (c) is a verbatim
    contemporaneous recording of an oral statement.”
    Commonwealth v. Brown, 
    52 A.3d 1139
    , 1171 n. 52 (Pa. 2012) (citing
    Pa.R.E. 803.1(1)). Prior inconsistent statements that satisfy these requisites
    “must . . . be considered by a reviewing court in the same manner as any
    other type of validly admitted evidence when determining if sufficient
    evidence exists to sustain a criminal conviction.”     
    Id. at 1171.
        Here,
    Robinson testified at trial, was subject to cross-examination concerning his
    statements to police, and his prior statements were writings that he signed
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    and adopted. Accordingly, we must review them in the same manner as any
    other valid evidence for sufficiency purposes.
    In addition to Robinson’s statements, the Commonwealth furnished
    other substantial evidence that Appellant committed the shooting. Minutes
    after the shooting, Ford saw Appellant fleeing the scene. Appellant told Ford
    that he had just “dropped” someone and asked Ford to a hide a nine-
    millimeter firearm, the same caliber gun used to shoot the victim.      Police
    officers later recovered one nine-millimeter round from Appellant’s house. It
    is reasonable to infer from all of this evidence that defendant was the
    shooter. See Commonwealth v. Montalvo, 
    956 A.2d 926
    , 933 (Pa. 2008)
    (defendant’s admission of murdering victim was substantive evidence of
    guilt); Commonwealth v. Wallace, 
    561 A.2d 719
    , 722-23 (Pa. 1989)
    (evidence that defendant was seen near scene of shooting, possessed gun
    similar to one used to commit crime, and later admitted his involvement was
    sufficient to convict him of murder); 
    Truong, 36 A.3d at 600
    (attempt to
    dispose of murder weapon is evidence of consciousness of guilt).
    The evidence also was sufficient to establish malice.   To begin with,
    Appellant shot the victim in the back. See Commonwealth v. Lohr, 
    468 A.2d 1375
    , 1377 (Pa. 1983) (back is vital part of body); Commonwealth v.
    Martinez, 
    446 A.2d 899
    , 901 (Pa. 1982) (citation omitted) (use of deadly
    weapon on vital part of victim’s body establishes malice).         The callous
    manner of the shooting demonstrates malice as well. Appellant claimed to
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    J-S13037-17
    be hunting down the man who robbed him, although it was possible that
    that Appellant faked the robbery himself. Upon glimpsing the victim more
    than 100 feet away, Appellant suddenly exclaimed “that’s the little
    motherfucker right there,” pulled out a gun, and fired at least five shots.
    N.T., 3/29/16, at 173. Afterward, he boasted that he “dropped” the victim.
    
    Id. at 239.
      His lack of regard for human life and the flimsiness of his
    pretext for shooting the victim evidences his “wickedness of disposition
    [and] hardness of heart.”        
    Truong, 36 A.3d at 597-98
    ; see also
    Commonwealth v. Marquez, 
    980 A.2d 145
    , 149 (Pa. Super. 2009) (en
    banc) (fact that defendant sought out victim before murder supported
    conclusion that he acted with malice).
    Appellant further claims the evidence was insufficient because “the
    Commonwealth     did   not   present   any   physical   or   scientific   evidence”
    connecting him to the shooting. Appellant’s Brief at 21. We disagree. It is
    the “totality of the circumstances [that is] determinative, not the presence
    or absence of any particular piece of evidence[.]”           Commonwealth v.
    Harper, 
    611 A.2d 1211
    , 1217 (Pa. Super. 1992) (citation omitted).              The
    totality of evidence summarized above clearly supports the verdict of guilt.
    Appellant also contends that the evidence was insufficient under
    “incontrovertible physical facts rule,” which provides that a witness’s
    testimony cannot be accepted, and a verdict based on this testimony cannot
    stand, when the testimony “is contradicted by incontrovertible physical
    -9-
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    facts.” Commonwealth v. Newman, 
    470 A.2d 976
    , 979 (Pa. Super. 1984)
    (citations omitted). This rule is inapplicable here, for as the Commonwealth
    correctly observes, Appellant “does not point to any incontrovertible facts
    that   are   in   any   way   contrary   to    the   Commonwealth’s   evidence.”
    Commonwealth’s Brief at 13.
    Appellant asserts that the testimony was “inconsistent” and “biased,”
    but he does not point out which testimony is inconsistent.            Assuming
    inconsistencies exist, “[this] is not, absent more, enough to destroy the
    Commonwealth's case, as it is the fact finder’s function to resolve
    inconsistencies by believing all, part or none of a particular witness’
    testimony.” Commonwealth v. Mercado, 
    649 A.2d 946
    , 957 (Pa. Super.
    1994) (citations omitted).     The jury chose to resolve any inconsistencies
    against Appellant, as it was entitled to do.
    Appellant also contends that the evidence was insufficient to sustain
    his conviction for possession of an instrument of crime.      The Crimes Code
    provides: “A person commits a misdemeanor of the first degree if he
    possesses any instrument of crime with intent to employ it criminally.” 18
    Pa.C.S. § 907(a). The same statute defines “instrument of crime” as, inter
    alia, “[a]nything used for criminal purposes and possessed by the actor
    under circumstances not manifestly appropriate for lawful uses it may have.”
    18 Pa.C.S. § 907(d).     The evidence summarized above demonstrates that
    Appellant used a gun for criminal purposes and possessed it under
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    circumstances not manifestly appropriate for lawful uses that it may have.
    Accordingly, Appellant’s challenge to the sufficiency of the evidence for this
    offense fails.
    Further, Appellant argues that the evidence was insufficient to sustain
    his conviction for carrying firearms without a license.   We disagree.    The
    Crimes Code provides, with exceptions not relevant here, that “any person
    who carries a firearm in any vehicle or any person who 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 under this chapter
    commits a felony of the third degree.” 18 Pa.C.S. § 6106(a)(1). Viewed in
    the light most favorable to the Commonwealth, the evidence demonstrates
    that Appellant was carrying a firearm concealed on his person, because
    Robinson did not know that Appellant was carrying a gun until he “pulled it
    out” and began firing at the victim. N.T., 3/29/16, at 175. The evidence
    also established that Appellant did not have a valid and lawfully issued
    license to carry a firearm. Thus, Appellant’s challenge to the sufficiency of
    the evidence for this offense fails.
    Finally, Appellant contends that the evidence was insufficient to
    sustain his conviction under 18 Pa.C.S. § 6105, entitled “Persons not to
    possess, use, manufacture, control, sell or transfer firearms.” Section 6105
    prohibits persons from possessing firearms if they have been “convicted” of
    certain enumerated crimes, including robbery. 18 Pa.C.S. § 6105(a)(1), (b).
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    Our Supreme Court recently held that juvenile adjudications of delinquency
    do not qualify as “convictions” under section 6105. See Commonwealth v.
    Hale, 
    128 A.3d 781
    , 785 (Pa. 2015).        The evidence demonstrates that in
    2013, Appellant was adjudicated delinquent for robbery. N.T., 3/31/16, at
    13. Under Hale, this adjudication does not establish Appellant’s guilt under
    section 6105. Accordingly, we reverse Appellant’s judgment of sentence for
    this conviction.
    In his second argument, Appellant contends that the trial court abused
    its discretion in denying his challenge for cause to strike Juror No. 17, whose
    son had been arrested two years prior for drug dealing and forgery, because
    the juror “express[ed] doubts with regard to his ability to be fair.”
    Appellant’s Brief at 29.   We hold that the trial court should have stricken
    Juror No. 17, but its failure to do so was harmless error.
    During jury selection, Juror No. 17 stated that his son was addicted to
    drugs and had been arrested for dealing drugs and forgery. When the trial
    court informed the juror that this case involved evidence related to drug
    trafficking, the following colloquy took place:
    COURT: . . . [T]here may be evidence in this case that one
    or more individuals were involved in the distribution of
    narcotics. If you heard that evidence, given what has
    been going on with your son, would that interfere with
    your ability to be fair in this case?
    [JUROR NO. 17]: I would try not to let it be, I guess.
    COURT: It may be a hard situation. You tell me. Would
    you prefer to go to another room and hear possibly
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    J-S13037-17
    another case, or do you think you can put [your son’s
    history] aside and judge this case only on its merits?
    Forget about going to the other room. The real question is
    could you put aside what your personal experience—you
    don’t put it aside. You have to be able to be fair and judge
    this case on its merits.
    [JUROR NO. 17]: Consciously I would imagine I could.
    COURT: I’m asking because it sounds like this is a fairly
    new situation with your son.
    [JUROR NO. 17]: We are still struggling with it.
    COURT: Is there anything else about you that—anything
    else about your life we didn’t cover that would interfere
    with your ability to be fair?
    [JUROR NO. 17]: Not that I can think of.
    COURT: Bottom line we are looking for jurors who could be
    fair to both the defendant and Commonwealth. Are you
    one of those people?
    [JUROR NO. 17]: I think so.
    N.T., 3/28/16, at 81-82.    Appellant used a peremptory strike to dismiss
    Juror No. 17. 
    Id. at 83.
    By the conclusion of jury selection, Appellant used
    only five of his seven peremptory challenges.
    A challenge for cause for a prospective juror is sustained only where
    that juror “demonstrates through his conduct and answers a likelihood of
    prejudice.” Commonwealth v. Penn, 
    132 A.3d 498
    , 502 (Pa. Super. 2016)
    (citation omitted).
    Where a prospective juror indicates that he or she
    cannot be an impartial juror, much depends upon the
    answers and demeanor of the potential juror as observed
    by the trial judge.
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    J-S13037-17
    Individuals are not expected to be free from all
    prejudices in order to sit on a jury and the burden here is
    on appellant to establish that the challenged jurors
    possessed a fixed, unalterable opinion that prevented
    [them] from rendering a verdict based solely on the
    evidence and the law.
    Commonwealth v. Impellizzeri, 
    661 A.2d 422
    , 427 (Pa. Super. 1995),
    (citations and quotation marks omitted). “[T]he test of disqualification is the
    juror’s ability and willingness to eliminate the influence of his scruples and
    render a verdict according to the evidence.”          
    Penn, 132 A.3d at 502
    (citation omitted). “The decision whether to disqualify a venireman is within
    the discretion of the trial court and will not be disturbed on appeal absent a
    palpable abuse of that discretion.” 
    Id. (citation omitted).
    The trial court abused its discretion in denying Appellant’s motion to
    strike Juror No. 17 for cause.        The record indicates that the juror was
    uncertain whether he could put aside his son’s drug history and judge the
    case fairly on its merits, because he “was still struggling with [his son’s drug
    issues].”     N.T., 3/28/16, at 82.     The trial court should not have been
    confident under these circumstances that this juror exhibited “[the] ability
    and willingness to eliminate the influence of his scruples and render a verdict
    according to the evidence.” 
    Penn, 132 A.3d at 502
    .
    Nevertheless, our review of the record reveals that the error was
    harmless. Our Supreme Court has noted that
    [t]he doctrine of harmless error is a technique of appellate
    review designed to advance judicial economy by obviating
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    J-S13037-17
    the necessity for a retrial where the appellate court is
    convinced that a trial error was harmless beyond a
    reasonable doubt. Its purpose is premised on the well-
    settled proposition that a defendant is entitled to a fair trial
    but not a perfect one.
    Commonwealth v. Thornton, 
    431 A.2d 248
    , 251 (Pa. 1981) (quotation
    and citations omitted).
    Harmless error exists where: (1) the error did not
    prejudice the defendant or the prejudice was de minimis;
    (2) the erroneously admitted evidence was merely
    cumulative of other untainted evidence which was
    substantially similar to the erroneously admitted evidence;
    or (3) the properly admitted and uncontradicted evidence
    of guilt was so overwhelming and the prejudicial effect of
    the error was so insignificant by comparison that the error
    could not have contributed to the verdict.
    Commonwealth v. Melvin, 
    103 A.3d 1
    , 20 (Pa. Super. 2014) (quotation
    and citations omitted).
    In this case, the trial court’s decision not to strike Juror No. 17 did not
    prejudice Appellant, because Appellant peremptorily struck this individual
    without exhausting his peremptory challenges.         See Commonwealth v.
    Kelly, 
    134 A.3d 59
    , 62 (Pa. Super. 2016), appeal denied, __ A.3d __, 
    2016 WL 5400621
    (Pa. Sep. 27, 2016) (“[t]he improper refusal of a challenge for
    cause is harmless error where the juror is excluded by a peremptory
    challenge and the defendant does not exhaust his peremptory challenges”).
    In his third argument, Appellant contends that the Commonwealth
    violated Batson by using four peremptory challenges to strike four
    prospective African-American or Hispanic jurors on the basis of race: Juror
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    Nos. 9, 25, 28 and 30. The trial court held that Appellant provided prima
    facie evidence that the Commonwealth struck jurors on the basis of race,8
    but it determined that the Commonwealth submitted non-pretextual, race-
    neutral reasons for each strike. Trial Ct. Op. at 6-7. We conclude that the
    trial court acted within its discretion.
    Batson provides a three-step process.          First, to demonstrate a
    Batson violation, the defendant must make a prima facie showing that the
    Commonwealth has exercised peremptory challenges on the basis of race.
    Commonwealth v. Reid, 
    99 A.3d 470
    , 484 (Pa. 2014) (citation omitted).
    Second, if the defendant makes this showing, the burden shifts to the
    prosecutor to articulate a race–neutral explanation for his peremptory
    challenges. 
    Id. This explanation
    need not be persuasive, or even plausible.
    Commonwealth v. Towles, 
    106 A.3d 591
    , 601 (Pa. 2014). “Rather, the
    issue at that stage is the facial validity of the prosecutor’s explanation.” 
    Id. (citation omitted).
        “Unless a discriminatory intent is inherent in the
    prosecutor’s explanation, the reason offered will be deemed race neutral.”
    8
    Arguably, this ruling was incorrect, because at the time of Appellant’s
    Batson challenge, four of the eight impaneled jurors were African-American.
    See Commonwealth v. Johnson, 
    139 A.3d 1257
    , 1283 (Pa. 2016)
    (presence of seven African-Americans on jury supported finding of no prima
    facie case of racial discrimination); Commonwealth v. Spotz, 
    896 A.2d 1191
    , 1212-13 (Pa. 2006) (prosecutor’s acceptance of eight women jurors,
    four of whom were empaneled and four of whom were struck by defense,
    supported finding of no gender discrimination).
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    J-S13037-17
    Commonwealth v. Williams, 
    980 A.2d 510
    , 530 (Pa. 2009) (citation
    omitted).
    Finally, the trial court must determine whether the defendant has
    carried his burden of proving purposeful discrimination.9   
    Id. We accord
    “great deference” to this determination and will not overturn it unless it is
    “clearly erroneous.”   Commonwealth v. Roney, 
    79 A.3d 595
    , 619 (Pa.
    2013) (such deference is appropriate because trial court “viewed the
    demeanor and heard the tone of voice of the attorney exercising the
    challenge,” and is therefore “uniquely positioned to make credibility
    determinations”).
    Guided by these standards, we examine the peremptory strikes to
    Juror Nos. 9, 25, 28 and 30.     The prosecutor struck Juror No. 9 out of
    concern she might be sympathetic towards Appellant. When the trial court
    asked the juror whether she could be fair and impartial, she looked directly
    at Appellant, smiled, and “gave a big nod.” N.T., 3/28/16, at 56-57, 116.
    This was a legitimate, race-neutral reason for striking her.   See 
    Towles, 106 A.3d at 601
    (prosecutor had non-discriminatory reason for dismissing
    9
    Appellant’s reliance on the more “flexible” approach proposed in Holloway
    v. Horn, 
    355 F.3d 707
    (3d Cir. 2004), is misplaced. Cases from the Third
    Circuit are not binding on this Court. See Commonwealth v. Clark, 
    710 A.2d 31
    , 39 (Pa. 1998) (“[Pennsylvania Courts] are not bound by decisions
    of federal courts inferior to the United States Supreme Court”), abrogated on
    other grounds by Commonwealth v. Freeman, 
    827 A.2d 385
    (Pa. 2003).
    Our Supreme Court has repeatedly declined to follow Holloway. See
    Commonwealth v. Jones, 
    951 A.2d 294
    , 301 (Pa. 2008);
    Commonwealth v. Fletcher, 
    861 A.2d 898
    , 910 n. 15 (Pa. 2004).
    - 17 -
    J-S13037-17
    juror who, inter alia, “expressed affinity toward defense counsel and smiled
    at appellant”).
    When Juror No. 25 was asked whether she knew anyone who had been
    “a victim of crime,” she answered that her father had been “arrested for
    selling narcotics.”   N.T., 3/28/16, at 102.   The prosecutor understandably
    did not want jurors who considered defendants to be “victims,” because the
    prosecutor intended to argue that drug dealing was the motive for this
    murder. 
    Id. at 73.
    Appellant argues that Juror No. 25’s reference to a drug
    dealer as a “victim” was merely the “result of nervousness.”         Appellant’s
    Brief at 38. There is no evidence in the record that the juror was nervous.
    In any event, Appellant’s beliefs about the juror do not demonstrate that the
    prosecutor lacked a race-neutral reason for striking her. Commonwealth
    v. Rico, 
    711 A.2d 990
    , 996 (Pa. 1998) (fact that prospective juror appeared
    fearful was nondiscriminatory reason for striking him).         The trial court
    properly accepted the prosecutor’s race-neutral reason for striking Juror No.
    25.
    Juror No. 28 had previously been on a jury in a drug case.           When
    asked about that experience, the juror referred to that prior defendant as a
    “gentleman.” N.T., 3/28/16, at 109. The prosecutor explained that he “d[id
    not] want someone” on the jury “who thinks drug dealers are gentleman.”
    
    Id. at 116.
    While there might be more persuasive rationales for striking a
    juror, it was within the trial court’s discretion to find that this rationale was
    - 18 -
    J-S13037-17
    race-neutral. See Commonwealth v. Jones, 
    668 A.2d 491
    , 519 n. 31 (Pa.
    1995) (potential juror’s relationship to persons arrested or convicted of
    crimes is legitimate non-discriminatory reason for striking them) (citations
    omitted); Commonwealth v. Thompson, 
    106 A.3d 742
    , 752 n. 10 (Pa.
    Super. 2014) (prosecutor had race-neutral reason for striking prospective
    juror who was drug and alcohol caseworker, because prosecutor believed
    she “would sympathize with Appellant”) (citation omitted).
    Finally, the prosecutor used a peremptory challenge to strike Juror No.
    30 out of concern he would not be a competent juror. On his questionnaire,
    the juror indicated that he was both more and less likely to believe a police
    officer, and he failed to offer an explanation for this discrepancy.    N.T.,
    3/28/16, at 112.    The prosecutor reasoned that if the juror could not
    understand his responses were “mutually exclusive,” he would not be able to
    handle the issues that were going to arise during trial. 
    Id. at 115.
    This was
    a legitimate, race-neutral reason for striking him.   See 
    Rico, 711 A.2d at 996
    (prosecutor’s concern that prospective juror would not be able to
    “comprehend the facts of the case” was legitimate, ethnically neutral reason
    for striking her); see also 
    Towles, 106 A.3d at 600-01
    (prosecutor had
    non-discriminatory reason for dismissing jurors who, inter alia, “indicated
    [they] would be less likely to believe testimony from a police officer”).
    Appellant claims the prosecutor’s reasons offered are “pretextual” by
    speculating about other possible explanations for Juror No. 30’s answers,
    - 19 -
    J-S13037-17
    e.g.,    that   the    jury    questionnaire    was     supposedly   “very   confusing.”
    Appellant’s Brief at 37-38.            The fact that Appellant disagrees with the
    prosecutor’s reasons for striking this juror does not mean the prosecutor
    engaged in racial discrimination. The trial court acted within its discretion by
    permitting the prosecutor to strike a juror whom he thought appeared
    confused.
    For these reasons, Appellant’s Batson arguments fail.
    In his fourth argument, Appellant contends that the trial court erred in
    denying his motion for a mistrial after the Commonwealth stated in its
    openings remarks that Appellant sold “poison on the streets,” referring to
    drug trafficking.      N.T., 3/29/16, at 19.         The trial court denied Appellant’s
    request and offered a curative jury instruction, but defense counsel declined.
    
    Id. at 88-92.
            Appellant argues that the remark was irrelevant, because
    drug trafficking was not a relevant factor in the case.
    The court may grant a mistrial “[w]hen an event prejudicial to the
    defendant occurs during trial[.]”            Pa.R.Crim.P. 605(B).      A mistrial is a
    remedy of last resort; “[a] trial court is required to grant a mistrial only
    where the alleged prejudicial event may reasonably be said to have deprived
    the     defendant     of   a   fair   and   impartial   trial.”   Commonwealth        v.
    Fortenbaugh, 
    63 A.3d 191
    , 193 (Pa. 2013) (citation omitted). The decision
    to deny a mistrial is subject to review for abuse of discretion. 
    Id. - 20
    -
    J-S13037-17
    Here, Appellant waived his motion for mistrial by failing to make this
    motion at the time of the prosecutor’s remark. Instead, he waited until after
    the prosecutor finished, thirteen transcript pages later, before attempting to
    bring the remark to the court’s attention.       N.T., 3/29/16, at 32; see
    Commonwealth v. Smith, 
    410 A.2d 787
    , 790 (Pa. 1980) (mistrial claim
    waived where request not made until two or three minutes after alleged
    prejudicial remark); Commonwealth v. Sasse, 
    921 A.2d 1229
    , 1238 (Pa.
    Super. 2007) (mistrial claim waived where appellant did not challenge
    prosecutor’s statement until after closing argument); Commonwealth v.
    Jones, 
    543 A.2d 548
    , 550 (Pa. Super. 1988) (appellant’s objection to
    prosecutor’s improper remark must be contemporaneous with remark).
    Even if Appellant preserved this issue for appeal, it is devoid of merit.
    A prosecutor’s remarks do not warrant relief unless their unavoidable effect
    was “to prejudice the jurors by forming in their minds a fixed bias and
    hostility toward the defendant.” Commonwealth v. Paddy, 
    800 A.2d 294
    ,
    316 (Pa. 2002) (citation omitted).     The challenged remarks should not be
    viewed in isolation but in context.     Commonwealth v. Smith, 
    985 A.2d 886
    , 907 (Pa. 2009).
    Appellant claims it was improper for the prosecutor to reference his
    drug trade because it supposedly was “only tangentially involved” in the
    case. Appellant’s Brief at 42.   We disagree.     Appellant’s drug trade was
    relevant because it established his motive for the murder and explained his
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    J-S13037-17
    relationship with the Commonwealth’s key witnesses. See Commonwealth
    v. Stern, 
    573 A.2d 1132
    , 1137 (Pa. Super. 1990) (prosecutor’s references
    to defendant’s involvement in drugs and gang violence were permissible in
    murder      trial   where    drug    dealing      provided   motive      for   murder);
    Commonwealth v. Barnhart, 
    434 A.2d 191
    , 193 (Pa. Super. 1981)
    (evidence     of    other   crimes   defendant     committed     with    co-conspirator
    admissible to explain their relationship).            Appellant shot the victim in
    supposed      retaliation   for   allegedly   stealing   money    that    belonged   to
    Appellant’s drug organization that Appellant was supposed to pay back to his
    employers at the end of the night. N.T., 3/29/16, at 231. Ford explained at
    trial that it was common for “caseworkers” in their organization, like
    Appellant, to claim falsely they had been robbed so they could keep the
    money for themselves.             
    Id. at 236.
           Based on this evidence, the
    Commonwealth argued that Appellant murdered a random victim to cover up
    his own theft and prove to his manager that he had been robbed. Moreover,
    even if Appellant’s version was true and the decedent robbed him, this did
    not entitle Appellant to shoot him dead. As the trial court reasoned, “either
    way,” Appellant’s drug trade was “the impetus behind the shooting.” Trial
    Ct. Op. at 9. Therefore, it was proper for the prosecutor to reference drug
    trafficking in his opening argument.          See Commonwealth v. Collins, 
    70 A.3d 1245
    , 1254 (Pa. Super. 2013) (prosecutor did not commit misconduct
    - 22 -
    J-S13037-17
    by arguing to jury that the killing was the result of an ongoing gang war;
    argument was permissible inference from evidence submitted during trial).10
    In his fifth argument, Appellant contends that the trial court abused its
    discretion by permitting the Commonwealth to present prosecutors Emily
    Rodriguez and Edward Cameron to testify about cooperation agreements
    with Robinson.
    The “admissibility of evidence is a matter directed to the sound
    discretion of the trial court, and an appellate court may reverse only upon a
    showing that the trial court abused its discretion.”     Commonwealth v.
    McCloskey, 
    835 A.2d 801
    , 809 (Pa. Super. 2003) (citation omitted).         The
    Commonwealth properly presented Rodriguez and Cameron, Assistant Chief
    of the Homicide Unit, in response to defense counsel’s question to Robinson
    about whether he may have received deals in exchange for his testimony.
    N.T., 3/29/16, at 200-02. Rodriguez testified that in February or March of
    2015, she conveyed an offer to Robinson for possession with the intent to
    deliver, but that at the time of the offer, she had no knowledge of the case
    at bar. N.T., 3/30/16, at 8-13. Cameron testified that he reviewed the file
    for the present case to see whether he, Cameron, or any other chief in the
    10
    It also deserves mention that Appellant declined a curative instruction,
    N.T. 3/29/16, at 89, which could have cured any imagined prejudice. This
    further supports the trial court’s conclusion that a mistrial was unnecessary.
    See Commonwealth v. Johnson, 
    668 A.2d 97
    , 105 (Pa. 1996) (“Appellant
    cannot now claim the trial court erred in refusing to take an action when the
    basis for the court’s inaction was counsel’s failure to pursue the offer of the
    curative instruction”).
    - 23 -
    J-S13037-17
    District Attorney’s Office approved a cooperation agreement for Robinson.
    
    Id. at 19-21.
    He found no agreement. 
    Id. Appellant claims
    this testimony was unfairly prejudicial because it
    supposedly had the “impermissible tendency to vouch for Robinson’s
    credibility.” Appellant’s Brief at 45. Rodriguez and Cameron, however, did
    not offer any opinion on Robinson’s truthfulness; they merely denied
    Appellant’s claim that they had struck a “deal” with Robinson.               See
    Commonwealth v. Reid, 
    99 A.3d 427
    , 447-48 (Pa. 2014) (rejecting claim
    that prosecutor improperly vouched for witness’s credibility by referencing
    terms    of   witness’s   plea   agreement;    prosecutor   made   no   “personal
    assurances” as to the “veracity of [the witness]’s testimony”).            Since
    Appellant had opened the door to this issue, the Commonwealth had the
    right to respond. See Commonwealth v. Williams, 
    896 A.2d 523
    , 541-42
    (Pa. 2006) (where defense used terms of witness’s plea agreement to call
    into question the witness’s “motivations for testifying,” he cannot complain
    that “the Commonwealth impermissibly bolstered [the witness]’s credibility
    by rebutting his line of questioning”).
    In his sixth issue, Appellant argues that the trial court abused its
    discretion by permitting Detective Frank Mullen to read a portion of Ford’s
    statement into the record in which Ford identified Appellant in a photo array
    and identified himself in a photograph recovered from video surveillance
    footage recorded near the time of the murder.         Appellant argues that this
    - 24 -
    J-S13037-17
    testimony was inadmissible hearsay. We conclude that this testimony was
    admissible to show the detective’s course of conduct in investigating the
    case. Therefore, no relief is due.
    Hearsay is defined as “an out-of-court statement offered to prove the
    truth of the matter asserted in the statement.” Commonwealth v. Kuder,
    
    62 A.3d 1038
    , 1055 (Pa. Super. 2013) (citation omitted).          Hearsay is
    generally deemed unreliable because “the declarant is not before the trier of
    fact and cannot be challenged as to the accuracy of the statement.”
    Commonwealth v. Rush, 
    605 A.2d 792
    , 795 (Pa. 1992) (citation omitted).
    Evidence is not hearsay, however, when the proponent introduces it to
    explain a course of conduct.    See Commonwealth v. Trinidad, 
    96 A.3d 1031
    , 1037 (Pa. Super. 2014) (trial court properly permitted detective to
    testify to witness’s identification of Appellant as the perpetrator, where
    testimony was offered only “to explain the detective’s course of conduct in
    questioning Appellant”); Commonwealth v. Hardy, 
    918 A.2d 766
    , 777 (Pa.
    Super. 2007) (out-of-court statements offered “to explain the course of
    conduct undertaken by an investigating police officer” are not hearsay).
    Detective Mullen testified that he applied for the arrest warrant for
    Appellant, and the prosecutor asked him to describe “the evidence . . . that
    led [him] to apply” for that warrant.    N.T., 3/30/16, at 31.   He explained
    that he had first recovered video surveillance footage from neighboring
    businesses, 
    Id. at 33-45,
    and then interviewed Robinson, who identified
    - 25 -
    J-S13037-17
    Appellant as the shooter. 
    Id. at 46-54.
    Based on the information Robinson
    provided, Detective Mullen interviewed Ford.     
    Id. at 54.
      He testified that
    Ford had identified himself in a photograph recovered from the video
    surveillance footage and picked out Appellant from a photo array. 
    Id. at 55-
    57.   Only after speaking with Ford did he obtain an arrest warrant for
    Appellant and search warrants that led to the discovery of ammunition in
    Appellant’s house. 
    Id. at 58-59,
    66.
    The Commonwealth did not offer Ford’s out-of-court statement to
    prove that Ford in fact identified Appellant.     Ford’s own testimony had
    already established his identification of Appellant. N.T., 3/29/16, at 244-47.
    Instead, the purpose for offering Ford’s statement was to demonstrate
    Detective Mullen’s course of conduct in investigating the case. Therefore, it
    was admissible.
    Citing Commonwealth v. Tann, 
    459 A.2d 322
    (Pa. 1983), Appellant
    also argues that Detective Mullen’s testimony was improper because it had
    “the tendency to bolster” Ford’s credibility.   Appellant’s Brief at 49.   The
    Supreme Court held in Tann that trial counsel was ineffective for failing to
    object to the testimony of two Commonwealth witnesses on the ground of
    relevance.   
    Id. at 328.
      Here, Appellant does not dispute that Detective
    Mullen’s testimony was relevant, so his reliance on Tann is misplaced.
    Appellant also asserts that a detective does not “[o]rdinarily . . . read
    another Commonwealth’s witness[’s] statement to show the course of
    - 26 -
    J-S13037-17
    conduct.” Appellant’s Brief at 48.            We do not find this persuasive.
    Regardless of whether the evidence is not what Appellant believes the
    Commonwealth “ordinarily” presents, it is still admissible.
    In his seventh and final argument, Appellant claims that the trial erred
    by   denying   his   request   for   a    jury     instruction   concerning    bias   of
    Commonwealth witnesses. More specifically, he requested the trial court to
    instruct the jury that “you should accept this witness’s testimony with
    caution if you determine that they are testifying in the hope of [favorable
    treatment from the Commonwealth].”                N.T., 3/30/16, at 4-5.      Appellant
    argues that the instruction that the trial court gave did not cover witness
    bias issues. We disagree.
    The trial court chose to give the jury the following instructions:
    You [the jury] must consider and weigh the testimony
    of each witness and give it such weight as in your
    judgment it’s fairly entitled to receive. The matter of the
    credibility of a witness, that is, whether the witness’
    testimony is believable and accurate in whole or in part, is
    solely for your determination. I’m now going to mention
    some of the factors which might bear on that
    determination.
    Whether the witness has any interest in the outcome of
    the case or has a friendship or animosity toward other
    persons concerned in the case.        The behavior of the
    witness on the witness stand. The witness’[s] demeanor,
    the witness’[s] manner of testifying and whether the
    witness shows any bias or prejudice[,] which might color
    that testimony. The accuracy of the witness’[s] memory
    and recollection. The witness’[s] ability and opportunity to
    acquire knowledge of or to observe the matters concerning
    which he or she testifies. The consistency or inconsistency
    of the testimony, as well as its reasonableness or
    - 27 -
    J-S13037-17
    unreasonableness in light of all of the evidence in this
    case.
    In deciding which of [the] conflicting testimony to
    believe, you should not necessarily be swayed by the
    number of witnesses. You should consider whether
    the witnesses appear to be biased or unbiased
    whether they are interested or disinterested
    persons, and all other factors which go to the
    reliability of their testimony. The important thing is the
    quality of the testimony of each witness. You should also
    consider the extent to which conflicting testimony is
    supported by other evidence. Now, you heard evidence
    in this case that I believe both of the witnesses who
    testified, the civilian witnesses, had open criminal
    matters. And there was also some testimony that
    they were at various points either on probation or
    parole. The purpose for which you can consider an
    open case and the fact that they’re on probation or
    parole is in determining the witness’[s] credibility.
    Remember, I touched upon this before. So when
    you consider this information for credibility, you may
    consider whether the witness had any potential bias
    or interest or whether he testified for the
    prosecution to gain favorable treatment in his own
    case.
    N.T., 3/30/16, at 146-47 (emphases added).
    When reviewing a challenge to a trial court’s refusal to give a jury
    instruction, an appellate court’s task is to determine whether the trial court
    “abused its discretion or committed an error of law.”    Commonwealth v.
    Clouser, 
    998 A.2d 656
    , 658 (Pa. Super. 2010) (citation omitted). A trial
    court has broad discretion in fashioning its jury instructions so long as the
    law is clearly and accurately set forth. Commonwealth v. Scott, 
    73 A.3d 599
    , 602 (Pa. Super. 2013) (trial court is “not required to give every charge
    that is requested by the parties”).     It should not confuse the jury by
    - 28 -
    J-S13037-17
    instructing them on “legal principles which have no application to the facts
    presented at trial.” Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    , 1257
    (Pa. Super. 2014) (en banc) (citation omitted).
    The trial court’s instruction was satisfactory. The court listed several
    factors the jury should consider in weighing the testimony of each witness,
    including “[w]hether the witness has any interest in the outcome of the
    case” or “shows any bias . . . which might color” their testimony.        N.T.
    3/30/16, at 146; see Commonwealth v. Slyman, 
    483 A.2d 519
    , 529 (Pa.
    Super. 1984) (jury instruction was “adequate[]” where it advised the jurors
    to consider “any interest that the witnesses may have in the outcome of the
    case”). The trial court also reminded the jury that they had heard testimony
    that both civilian witnesses had “open criminal matters,” and advised them
    to consider those open cases in determining the witnesses’ credibility. N.T.,
    3/30/16, at 149. It specified that the open cases could go to “whether the
    witness had any potential bias or interest,” or “whether he testified for the
    prosecution to gain favorable treatment in his own case.” 
    Id. This language
    captured the essence of the instruction requested by Appellant. The mere
    fact that the trial court did not use the precise words Appellant preferred is
    not a basis for relief. See 
    Scott, 73 A.3d at 602
    (“[court’s] refusal to give a
    requested charge does not require reversal unless the appellant was
    prejudiced by that refusal”).
    - 29 -
    J-S13037-17
    Accordingly, we affirm Appellant’s convictions for third degree murder,
    possession of an instrument of crime and carrying firearms without a license.
    We reverse Appellant’s conviction under 18 Pa.C.S. § 6105. Reversal of this
    conviction, however, does not upset Appellant’s sentencing scheme, because
    the trial court did not impose any penalty for this offense. Accordingly, it is
    not necessary to remand this case for resentencing.
    Judgment of sentence affirmed in part and reversed in part.          The
    convictions for third degree murder, possession of an instrument of crime
    and carrying firearms without a license are affirmed. The conviction under
    18 Pa.C.S. § 6105 is reversed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/13/2017
    - 30 -