Com. v. Pryor, J.

J-S22045-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERMAINE PRYOR : : Appellant : No. 904 EDA 2025 Appeal from the Judgment of Sentence Entered March 3, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007703-2023 BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E. MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 29, 2026 Appellant, Jermaine Pryor, appeals from the judgment of sentence imposed following his convictions for violations of the Uniform Firearms Act (VUFA). On appeal, Appellant challenges the sufficiency of the evidence and argues that the trial court erred in denying his motions for a mistrial. We affirm. By way of background, Appellant was arrested and charged with possession of firearm prohibited, firearms not to be carried without a license, carrying firearms in public in Philadelphia, aggravated assault, simple assault, possession with intent to manufacture or deliver (PWID), possession of an instrument of crime (PIC), knowingly and intentionally possessing a controlled or counterfeit substance, and recklessly endangering another person after police responded to a reported shooting in 2023. Following a preliminary hearing, Appellant was held for court on PWID, PIC, and all three VUFA J-S22045-26 offenses. See Criminal Information, 11/13/23, at 1. Both assault charges were dismissed. See id. Prior to trial, Appellant filed a motion in limine seeking to preclude any evidence pertaining to the alleged shooting of Omar Ramos Rosa, which the trial court granted. See Motion in Limine, 7/15/24, at 1-3. The matter proceeded to trial on October 24, 2024. The trial court summarized the underlying facts of the matter as follows: On August 6, 2023, at approximately 7:30 A.M. a Philadelphia Police Officer, Nicholas Lazar, responded to a call about a shooting at the 800 block of East Madison Street. Notes of Testimony (hereinafter “N.T.”) 10/30/24 at 32-33. Officer Lazar discovered two 9mm fired cartridge casings (“FCCs”) and a small pool of blood on the sidewalk. Id. at 38-39. Detective Robert Wimsey arrived at the scene to take photographs of the casings and pool of blood. Id. at 50. Detective Michael Corson recovered video footage from a nearby minimart at the time of the incident. Id. at 66-67. The store surveillance showed an individual wearing a white hooded sweatshirt turn at the comer of G Street and East Madison Street. Id. at 71. On a second surveillance camera video, the same individual in a white hooded sweatshirt appears to run down East Madison Street with a black object in his outstretched hand. Id. at 71-72. On two Real-Time Crime Cameras (“RTCC”) positioned at the comer of G Street and East Madison Street, and G Street and Hilton Street, the same individual in a white hooded sweatshirt is seen driving in a silver SUV — one block from the store surveillance video footage. Id. at 72-75, 95. On August 7, 2023, at about 7:00 P.M., Officer Steven Vivarina was alerted via a patrol alert from the Shooting Investigation Group of the suspect vehicle. He then located a silver Buick Encore SUV on the 2000 block of East Tioga Street. Id. at 112- 113. Officer Vivarina activated his lights and sirens when he witnessed a female enter the vehicle. Officer Vivarina observed the vehicle had a distinctive vanity plate, “HOME,” and was registered to the female who had entered the vehicle. Officer Vivarina then identified Appellant who exited the home at 2079 East Tioga Street. Both Officer Vivarina and his partner exited -2- J-S22045-26 their vehicle and detained Appellant, who stated, according to the officer, “I know what this is about. You are looking for me.” Id. at 115. During his testimony, Detective Thomas Somogyi mistakenly stated a gunshot victim was found, which was objected to by [] defense counsel. Thereafter, [the] defense filed a motion to this court for a mistrial. Id. at 130. This court denied the defense’s motion for a mistrial and instead immediately gave the jury a curative instruction as a result of the mistake. This court specifically instructed the jury that [t]here was no victim located in this case. There is no indication that anyone was shot in this case. The detective was speaking about a completely unrelated incident that has nothing to do with [Appellant]. What the detective just said was a mistake. Id. at 138. Furthermore, the jury was ordered “to disregard the answer he had just given . . . ” Id. On August 7, 2023, Detective Somogyi executed a search warrant of the vehicle at 2079 East Tioga Street and did not recover anything from the vehicle. Detective Somogyi then executed a search warrant of the home at the same address and U.S. Mail and clothing belonging to Appellant was located. Officers also discovered narcotics in a plastic convenience store bag. While executing the search warrant, Detective Somogyi identified that clothing discovered were the same articles of clothing seen by the individual in the RTCC and convenience store footage from the day of the reported incident. Id. at 161. Detective Mark Johnson interviewed Appellant and showed him screenshots of surveillance footage. These screenshots showed an individual wearing a white hooded sweatshirt holding a black object in his hand. When questioned about this photo Appellant stated, “the person in that picture was holding a cell phone.” Id. at 180. Counsel stipulated a certificate of non-licensure that Appellant did not possess a valid concealed-carry permit or a valid license to carry a firearm. N.T. 10/31/24 at 21-27-28. Counsel further stipulated that Firearms Identification Unit Examiner Stott, if he were to testify, would state there were two fired cartridge casings recovered from 800 East Madison Street from a 9mm Luger. Id. at 43-44. In the Commonwealth’s closing arguments, [defense -3- J-S22045-26 counsel] objected to the Commonwealth’s analogy of reasonable doubt. Id. at 65. This court overruled [the d]efense’s objection to the analogy. Id. at 68. Appellant was thereafter found guilty of [all three VUFA charges and] was sentenced to a total of eight and a half to seventeen years of state incarceration . . . . Trial Court Opinion (TCO), 8/29/25, at 2-5 (some formatting altered). Appellant subsequently filed a timely notice of appeal and a court- ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing Appellant’s claims. On appeal, Appellant raises the following issues: 1. Whether the evidence presented at trial established sufficient proof beyond a reasonable doubt as a matter of law for every element of the crimes for which Appellant was convicted? 2. Whether the trial court abused its discretion by denying Appellant’s motion for a mistrial when a testifying police detective referenced an alleged shooting victim that had been expressly disallowed prior to trial? 3. Whether the trial court abused its discretion by denying Appellant’s motion for a mistrial when the prosecutor’s closing statement contained an analogy regarding reasonable doubt that reduced their burden of proof and compromised Appellant’s right to a fair trial? Appellant’s Brief at 7 (some formatting altered). Sufficiency of the Evidence In his first claim, Appellant challenges the sufficiency of the evidence supporting his VUFA convictions. Id. at 13. Specifically, Appellant argues that there was “absolutely no physical or testimonial evidence presented at trial to indicate that [A]ppellant ever possessed a firearm.” Id. Appellant -4- J-S22045-26 contends that the Commonwealth relied on “surveillance video that depicts a man running down the street holding an item in his hand” but argues that the “video, and the still images captured from it, does not definitively establish that the item held by the man is indeed a firearm” or that Appellant was the individual depicted in that footage. Id. at 14. Appellant notes that although police recovered articles of clothing that were similar to the clothing depicted on the surveillance footage, “neither of the articles of clothing indicated the presence of any gunshot residue or other evidence to suggest that they had been worn by a person that possessed a firearm.” Id. Therefore, Appellant concludes that there was insufficient evidence to sustain his convictions for VUFA. Id. When reviewing a challenge to the sufficiency of the evidence, we are governed by the following standard: As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, the fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the -5- J-S22045-26 presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld. Commonwealth v. Wright, 255 A.3d 542, 552 (Pa. Super. 2021) (citation omitted and formatting altered). “Importantly, the fact finder, which passes upon the weight and credibility of each witness’s testimony, is free to believe all, part, or none of the evidence.” Id. (citation omitted and formatting altered). “When contraband is not found on the defendant’s person, the Commonwealth must establish constructive possession.” Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005). Our Supreme Court has explained: Where possession is an element of the offense, the concept of constructive possession is a legal fiction used to prove the element although the individual was not in physical possession of the prohibited item. The evidence must show a nexus between the accused and the item sufficient to infer that the accused had the power and intent to exercise dominion and control over it. Dominion and control means the defendant had the ability to reduce the item to actual possession immediately, or was otherwise able to govern its use or disposition as if in physical possession. Mere presence or proximity to the contraband is not enough. Constructive possession can be established by inferences derived from the totality of the circumstances. Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citations omitted); see also Commonwealth v. Rojas-Rolon, 256 A.3d 432, 437-38 (Pa. Super. 2021) (defining constructive possession); Commonwealth v. -6- J-S22045-26 McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (stating that “[c]onstructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not”) (citation omitted). It is well accepted that identity is an element of all criminal offenses in Pennsylvania. See Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010). Moreover, “[e]vidence of identification need not be positive and certain to sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc). Here, the trial court explained: [B]ased on the videos admitted and published during trial, there is no true question about actual possession. Appellant’s true argument is whether the individual in the video is Appellant and whether the object he is holding is a firearm. In the instant matter, during a police interview, [Appellant] was shown an image of the offender on the street holding a black item. When questioned about this image Appellant told police “that the person in that picture was holding a cell phone.” N.T. 10/30/24 at 180. Through video footage played during the trial, the suspect was shown running down the street with their arm outstretched in front of their body holding an object that police believed to be a firearm based on the mannerisms. [Id.] at 72. When police arrived on the scene, Officer Lazar discovered two 9mm FCCs and a small pool of blood on the sidewalk. N.T. 10/30/24 at 38-39. Based on the actions by Appellant and the corroborative evidence of two 9mm FCCs located at the scene the jury possessed sufficient evidence to find Appellant possessed a firearm. Further, Appellant placed himself in the immediate area of the shooting when he acknowledged to police that he was driving the car seen on RTCC video. [Id.] at 26 and [N.T.] 10/31/24 at 47. When executing the search warrant police located a white Polo hoodie and purple camouflage Nike sneakers— the same articles of clothing the individual shown in the video of the shooting was wearing. Commonwealth Exhibit 22. Based on the totality of the -7- J-S22045-26 circumstances the jury could properly find Appellant was the individual shown on video and that he possessed a firearm. Appellant placed himself in the area of the crime scene, police located two 9mm FCCs, and the circumstantial evidence linking Appellant as the individual in the video who is seen firing a weapon was sufficient for the jury to convict Appellant. Therefore, while the Commonwealth’s case is based on circumstantial evidence that Appellant possessed a firearm, this is enough to be left to the fact-finders. The jury, as the fact-finders had sufficient evidence to determine Appellant possessed a firearm and to convict Appellant through this circumstantial evidence. TCO at 7-8. Following our review of the record, and viewing the evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence establishing that Appellant possessed a firearm. See Wright, 255 A.3d at 552. As noted by the trial court, the Commonwealth presented evidence from which the jury could conclude that Appellant was the individual depicted in the video and that he possessed an item that appeared to be a firearm. See TCO at 7. We will not re-weigh the fact-finder’s conclusions on appeal. See Wright, 255 A.3d at 552. Therefore, Appellant is not entitled to relief. Motions for Mistrial In his remaining claims, Appellant challenges the trial court’s denial of his motions for a mistrial. First, Appellant argues that the trial court should have granted his motion for a mistrial after Detective Somogyi “referenced a shooting victim that had been expressly prohibited by court order.” Id. at 16. Appellant -8- J-S22045-26 contends that “[t]he testimony cannot be separated from the jury’s consideration, mitigated by cross-examination, or cured by the court’s instruction.” Id. Further, he claims that “the trial court’s failure to grant a mistrial ignored the prejudice to [A]ppellant that was caused by the introduction of the excluded facts and allowed the jury to hear inadmissible facts that cannot be unheard.” Id. We review a trial court’s denial of a motion for a mistrial under the following standard: It is well-settled that the review of a trial court’s denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. It is also settled that a mistrial is not necessary where cautionary instructions are adequate to overcome any potential prejudice. The law presumes that a jury will follow the trial court’s instructions. Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super. 2021) (citations and quotation marks omitted); see also Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010) (noting that a mistrial is an extreme remedy). Here, as noted previously, the trial court granted Appellant’s motion in limine, which precluded the Commonwealth from introducing evidence relating to the alleged shooting of Omar Ramos Rosa. -9- J-S22045-26 However, at trial, the following exchange occurred during the Commonwealth’s direct examination of Officer Somogyi: The Commonwealth: And how did you begin your investigation? Officer Somogyi: I was first contacted by officers in the 24th District in reference to a victim that they had located on the highway, one with – N.T. 10/30/24 at 129. Appellant immediately objected, and then moved for a mistrial at sidebar. See id. at 130-38. Ultimately, the trial court denied Appellant’s motion and provided the following curative instruction: Members of the jury, the detective just misspoke about the case that has nothing to do with [Appellant], so I'm going to specifically read -- this is my instruction to you: There was no victim located in this case. There is no indication that anyone was shot in this case. The detective was speaking about a completely unrelated incident that has nothing to do with [Appellant]. What the detective just said was a mistake, okay? So that is my ruling. That is my order. You are to disregard the answer he had just given, and we are going to move on. Id. at 138. In its Rule 1925(a) opinion, the trial court addressed Appellant’s claim as follows: In the instant matter, the court immediately held a sidebar conversation. The jurors were excused from the room and a curative instruction was formulated. N.T. 10/30/24 at 130-137. Once the jurors returned, this instruction was read to the jury informing them that the detective misspoke and there was no victim. . . . [T]he curative jury instruction was sufficient to ensure that the jury understood Detective Somogyi misspoke and to ensure there was no prejudice towards Appellant. Even if there - 10 - J-S22045-26 was prejudice based on the witness’s misstatement, any potential prejudice is far outweighed by this court’s swift curative instruction. Therefore, this immediate curative instruction is sufficient to deny the motion for a mistrial given the court’s prompt action to correct the information heard by the jury. It was more than sufficient to negate any possible prejudice to Appellant. Thus, the decision of this court should be affirmed. TCO at 12. Following our review of the record, we discern no abuse of discretion by the trial court in denying Appellant’s motion for a mistrial. See Gilliam, 249 A.3d at 274. As noted previously, the trial court specifically instructed the jury to disregard the detective’s comment about an alleged victim and explained that it was “completely unrelated” to the charges in the instant case. See N.T. 10/30/24 at 138. Further, we presume that that the jury will follow the trial court’s instructions. See Gilliam, 249 A.3d at 274. Therefore, we agree with the trial court that the cautionary instructions were adequate to overcome any potential prejudice. See id. For these reasons, Appellant is not entitled to relief on this claim. In his remaining issue, Appellant argues that the trial court erred in denying his motion for a mistrial after the prosecutor used an analogy regarding the standard for reasonable doubt. Appellant’s Brief at 18. The Commonwealth responds that Appellant did not request a mistrial on this basis and, therefore, his claim is waived. Commonwealth’s Brief at 14. At trial, the record reflects that the following exchange occurred during the Commonwealth’s closing argument: - 11 - J-S22045-26 [The Commonwealth]: Now, reasonable doubt. Every attorney in this building uses some kind of analogy to describe it. I’m surprised [defense counsel] didn’t use some type of an analogy. I use a pond. I grew up kind of in the countryside, and I used to like skip rocks. As [defense counsel] pointed out, I’m not a native of Philadelphia; I’m a native New Yorker. [Defense counsel]: Judge, objection. Can we see you at sidebar? [The trial court]: Counsel, hold on one moment. Members of the jury, you -- well, actually, [defense counsel], I’m going to let counsel finish his argument. I will let you make your argument on the record later. You may continue with your closing. [The Commonwealth]: Thank you, Your Honor. I grew up in the countryside. I used to go out to the lake, a pond, and I used to skip rocks. And when you skip rocks across a lake -- you can ask anyone that's done it -- you can see ripples in the pond. When you look down into the lake, you can kind of see a distorted image. When you look -- when I look into the lake, when I see it, I know it's me. While I can’t see every piece of my facial features that’s on there, I can tell that's me beyond any kind of reasonable doubt, beyond any doubt. But if you make too many ripples, if you throw too big a rock and you look down, you might not be able to see. You might not be able to see exactly what -- like, be able to tell with clarity that that is you. [Defense counsel’s] job is to throw as many rocks into the pond as possible to distort that, to make sure that the hypothetical pond of this case does not show [Appellant’s] face. However, all of this evidence clears up those ripples. * * * [The trial court]: Okay. Members of the jury, I’m going to leave you here for a moment. Give me a couple minutes. I'll come back and give you my closing charge, all right? I want to see counsel at sidebar with the stenographer. Thank you. Discussion held at sidebar as follows: [The trial court]: Okay. - 12 - J-S22045-26 [Defense counsel]: So, Judge, the defense objection is particularly Commonwealth [v.] Drummond, 285 A.3d 625, a [2022 Pennsylvania case]. Judge Anders has now come out with this in his own book that he just published. Particularly, instructions on proof of reasonable doubt, the Judge in that -- the trial judge gave his own example -- well, I don’t know if it was a man or woman judge -- gave their own example of reasonable doubt, and that was held to be a major problem. So that’s why I’m objecting for the record. [The trial court]: He is not the trial judge. [Defense counsel]: I understand, but I think it -- I think -- I want to protect the record. I wanted to make the objection for the record. [The trial court]: I appreciate that. Don’t object for something like that again in the middle of someone’s closing. [Defense counsel]: I understand. [The trial court]: I understand that if I, the Judge, gave an example of reasonable doubt, it’s not okay, but I just want to be clear that that – he’s in the middle of something. There is no case law anywhere that you will find that says a prosecutor cannot give an example of reasonable doubt or that a defense attorney can. And so you have preserved this for the record, but there is zero case law on that point. [Defense counsel]: All right. [The Commonwealth]: Thank you. [The trial court]: That is overruled. N.T. 10/31/24 at 67-68. Our review of the record confirms that Appellant failed to request a mistrial on this basis. Therefore, the issue is waived. See Commonwealth v. Cornelius, 180 A.3d 1256, 1262 (Pa. Super. 2018) (concluding that the appellant waived his claim by failing to make a timely request for a mistrial).; - 13 - J-S22045-26 see also Pa.R.A.P. 302(a). Accordingly, Appellant is not entitled to relief on this claim. For these reasons, we affirm. Judgment of sentence affirmed. Date: 10/29/2026 - 14 -