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March 13, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Marfisi, E.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 2779 EDA 2024
• Precedential Status: Non-Precedential

• Judges: McLaughlin

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (25.2K)

• PDF

Combined Opinion

                        by McLaughlin

J-S43029-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ESTALIN MARFISI :
:
Appellant : No. 2779 EDA 2024

Appeal from the Judgment of Sentence Entered August 23, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008545-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ESTALIN MARFISI :
:
Appellant : No. 2780 EDA 2024

Appeal from the Judgment of Sentence Entered August 23, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008548-2022

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 13, 2026

Estalin Marfisi was convicted and sentenced for multiple crimes:

conspiracy to commit murder, possession of a firearm by a prohibited person,

possessing instruments of crime, recklessly endangering another person, and

two counts each of firearms not to be carried without a license and carrying
J-S43029-25

firearms on public streets or public property in Philadelphia. 1 He appealed from

the judgment of sentence and challenges the consolidation of his cases, the

admission of expert testimony and a cell phone video, the denial of a mistrial,

and discretionary aspects of sentencing. We affirm.

Marfisi’s convictions stem from charges against him in three cases. One

related to Marfisi’s involvement on October 3, 2020 in the murder of Kenny

Le.2 Another related to Marfisi’s possession on November 15, 2020 of a

firearm.3 A third case related to Marfisi’s involvement on November 16, 2020

in the attempted murder of Michael Walker.4 See Motion for Consolidation,

filed 5/8/24.

The Commonwealth moved on May 8, 2024, to consolidate the cases.

The Commonwealth argued that “all three crimes are tied together by ballistics

evidence, which shows that the same 9mm semi-automatic firearm was fired

at all three scenes.” Id. at ¶ 4. It also alleged that all three crimes occurred

within a month and a half; the murder of Le and the attempted murder of

Walker occurred on the same block; and the motive for the attempted murder

was directly tied to the firearm possession that occurred the day before. The

Commonwealth maintained that it would use Marfisi’s use and possession of

---

1 18 Pa.C.S.A. §§ 903(c) (of 2502), 6105(a)(1), 907(a), 2705(a), 6106(a)(1),

and 6108(a), respectively.

2 See Common Pleas docket number CP-51-CR-0008545-2022.

3 See Common Pleas docket number CP-51-CR-0008548-2022.

4 See Common Pleas docket number CP-51-CR-0008542-2022.

-2-
J-S43029-25

the firearm to establish identity and motive in each case. Id. at 4

(unpaginated).

After a hearing, the court granted consolidation:

This Court finds that the admission of evidence of other acts
is necessary to give full context to the allegations in this
case, that the ballistics evidence joins them together,
probably is dispositive on its own.

This Court finds that there’s ample evidence that
overlaps across the three. This Court finds that it would not
be confusing to the jury and that it would not be unduly
prejudicial.

This Court further finds that there’s been ample notice
given to Defense and that the notice is fair even if
disappointing to the Defense. And, in fact, admission of the
other alleged acts is in the interest of justice.

N.T., Motion Volume 1, 5/13/24, at 12.

Marfisi proceeded with a jury trial. On the morning that trial began, the

defense objected to the Commonwealth presenting expert testimony about a

cell phone extraction report. The report related to a photograph recovered

from Marfisi’s phone showing him possessing a firearm. See N.T., May 14,

2024, at 5. The photograph’s metadata listed a capture time of October 10,

2020, at 4:51:17 p.m. See Commonwealth Exhibit 98 (“Phone Extraction

Analysis”). According to the defense, the date of the photograph was “crucial

in this case” because the homicide occurred a week before the date on the

photo, on October 3, 2020. N.T., May 14, 2024, at 21. There was also video

of Marfisi shooting a gun weeks later, on November 15, 2020, and that it was

the same gun as the one in the October 10 photograph. Id. Defense counsel

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J-S43029-25

explained that she had previously asked the Commonwealth if it would call an

expert to testify about when the photograph was taken and the

Commonwealth had assured her that it was not calling an expert witness. Id.

at 5-6. However, on the morning of trial, counsel received an email from the

Commonwealth that a detective would testify as an expert regarding an

extraction report of Marfisi’s phone and would testify that, based on the

metadata, the photograph was taken on October 10, 2020. Id. at 6. Counsel

argued that if she had known an expert would be called, she would have

obtained her own expert or would have talked to Marfisi about when the

photograph was taken. Id. at 22.

For its part, the Commonwealth maintained that the report was not an

expert report but rather "screenshots from the cellphone extraction that

[counsel] has, that she’s had in evidence since March when I passed

everything.” Id. at 8. The Commonwealth claimed that the detective who

conducted the extraction of the phone would testify to the metadata related

to the photograph and had experience with the program “Cellebrite, that looks

at phone dumps for their job every single day as part of it and explaining what

it is.” Id. at 9. The Commonwealth also explained that when it told counsel

that it was not calling an expert witness, “it was specifically in regards to

phone location and GPS data[.]” Id. at 32.

Defense counsel agreed that the Commonwealth previously provided an

extraction report for the cellphone and that it contained the same information

as the report the Commonwealth wanted to offer into evidence through the

-4-
J-S43029-25

detective. Id. at 9-11. She also agreed that the only difference between the

two reports was that certain information was pulled from the extraction report

and placed in the detective’s report. Id. at 11.

The court overruled counsel’s objection. Id. at 32. It determined that

the report the Commonwealth sought to use at trial “is the separation of

certain materials already provided to assist in the presentation by the witness”

and was “not new material, either conceptually or physically.” Id. at 18. The

court also stated that the detective would have to testify as an expert based

on the information related to metadata. Id. at 26.

During opening statements, defense counsel told the jury that Marfisi

was hospitalized until the end of September 2020, with a bullet in his leg and

a colostomy bag. According to counsel, “There was no way he was crouched

in any van on October [3], 2020.” Id. at 70.

Following openings, the Commonwealth presented its evidence. The trial

court aptly summarized the Commonwealth’s evidence as follows:

On October 3, 2020, [Marfisi], along with Derrick Vargas,
Dominick Butler, Donaven Velezquez and Azim Hayward
were in a Chrysler mini-van recently purchased by [Marfisi].
Vargas was the driver, Velezquez was in the front passenger
seat, and Hayward was in the rear with Butler and [Marfisi].
[Marfisi] was carrying a nine-millimeter Smith & Wesson
semiautomatic handgun. Velezquez a nine-millimeter Glock,
and Hayward a .380 semiautomatic handgun. Shortly after
midnight they drove onto Letterly Street, where they
encountered their target, Kenny Le, who was with his friend
Joe Scott, working on a car. Velezquez fired 14 shots at Le,
while Scott dove into the car. Thinking the shooting was
over, Scott began to exit the vehicle, when [Marfisi] and
Hayward shot at him through the rear seat windows,

-5-
J-S43029-25

totaling at least 20 shots altogether. Le died in the hospital
later that day.

Meanwhile, Vargas drove the van to [Marfisi’s]
grandmother’s house, where they taped up the windows
before moving the van. Later that same day, [Marfisi] called
Vargas’s brother, Edwin, bragging about the shooting, and
sent a screenshot about the shooting to a friend. Hayward
and Butler also sent messages bragging and taking credit
for the shooting. Several weeks later Velezquez, Vargas and
[Marfisi] burned the van to get rid of any evidence
connecting it to the shooting.

On November 15, 2020, [Marfisi] and Derrick Vargas
were in a deli they were known to frequent. Video footage
from the deli showed [Marfisi] tucking a black and silver
firearm into his waistband. A short while later, while
standing outside the deli, someone driving by in a black
sedan fired several shots at [Marfisi] and Vargas. [Marfisi]
pulled his gun and returned fire. Vargas was fatally
wounded.

The next day, November 16, 2020, [Marfisi] was in a rage
over what he believed to be Instagram posts mocking
Vargas’s death. [Marfisi] and Butler returned to the vicinity
of the Le shooting, where they encountered Michael Walker,
who they believed to have made the posts making fun of
Vargas’s death. In fact, it was Walker’s lookalike cousin who
had made the posts. [Marfisi] and Butler each fired multiple
shots at Michael Walker before leaving the scene. Walker
survived, but was severely wounded.

On March 6, 2021, police recovered a black and silver,
nine-millimeter Smith & Wesson semiautomatic handgun
from an uninvolved person, which ballisticians were able to
match to fired cartridge casings at the scene of the October
3, 2020 shooting of Kenny Le; the November 15, 2020 fatal
shooting of Derrick Vargas; and the November 16, 2020
shooting of Michael Walker.

During the course of the investigation, in addition to the
Instagram and phone messages, police recovered a
photograph of [Marfisi] showcasing a black and silver Smith
& Wesson semiautomatic handgun, taken on October 10,
2020 – a week after the fatal shooting of Kenny Le. The
police also obtained on-line September 30, 2020,

-6-
J-S43029-25

transactional communications between [Marfisi] and the
seller of the Chrysler minivan – a few days prior to the Le
shooting.

In July 2021, police interviewed [Marfisi] about the
Derrick Vargas shooting, during which [Marfisi] admitted to
possessing and firing the black and silver Smith & Wesson
handgun, and to having had it for a couple of months prior
to the Vargas shooting on November 15, 2020.

At trial, Butler and Velezquez, who had been charged as
codefendants and entered pleas of guilty, testified about
[Marfisi’s] involvement in [the] shooting of Le and the
events surrounding it. Although Velezquez insisted at trial
that he was high and didn’t remember many of the events
around the Le shooting, his video statement to a federal
agent, his signed prior written statement, and his prior
testimony were presented as substantive evidence. Butler
also testified to his involvement with [Marfisi] in the non-
fatal shooting of Michael Walker.

Memorandum Opinion (“Memorandum Op.”), filed 4/28/25, at 2-4.

Another Commonwealth witness, Rosalinda Torres, testified about

events on the night of Le’s shooting, October 3, 2020. On cross-examination,

defense counsel asked Torres if she had seen Marfisi in early October 2020

with a colostomy bag and if he had “a hard time walking.” N.T., Trial, 5/14/24,

at 235. Torres replied that she had seen Marfisi with a colostomy bag and that

he had difficulty walking, but that she had not seen him while he was in the

hospital recovering. Id. at 234-35. She also testified that she went to visit

Marfisi on October 3, 2020, and that she saw his wound. Id. at 235.

A few days later in the trial, the Commonwealth moved to admit a video

from Marfisi’s cell phone from September 20, 2020, to contradict counsel’s

opening statement that Marfisi was in the hospital until the end of September

1. It was also offered to counter Torres’ testimony about whether Marfisi

-7-
J-S43029-25

was in the hospital during that time and his condition after being discharged

from the hospital. See N.T., Trial, 5/20/24, at 99-100.

Defense counsel responded that her opening statement did not intend

to imply an alibi. She stated that she instead suggested that Marfisi would

have been incapable of the physical exertion necessary to commit the crimes

on October 3, 2020. She also argued that the video would be prejudicial

because it showed Marfisi committing an unrelated violent crime. See id. at

102-04.

The court granted the Commonwealth’s motion, finding the evidence

admissible to rebut counsel’s suggestion that Marfisi was hospitalized until the

end of September 2020. The court also determined that any undue prejudice

was outweighed by the probative value of the evidence. The court stated:

To the extent that [Marfisi’s] general incapacity has been
implied and to the extent that some of the testimony
suggests that he was in the hospital [un]til the end of
September, this is admissible to rebut it.

And as to its prejudicial value outweighing its probative
value, I don’t necessarily think we’re quite there. I do think
the probative value outweighs the prejudicial value, so I’ll
let it in.

Id. at 107.

The Commonwealth played the video for the jury. It depicted a man

assaulting another man while holding what appeared to be a gun. The

Commonwealth also admitted evidence that approximately an hour after the

timestamp on the video, Marfisi had used his phone to send it to someone,

with an accompanying text message, “That’s what I do to pussy niggas.” Id.

-8-
J-S43029-25

at 147. The perpetrator in the video had a tattoo on his hand like a tattoo

Marfisi has on his hand. The court gave a limiting instruction:

Before cross, ladies and gentlemen, the evidence that
you’ve just seen, the soundless video and the text
messages, are being offered not to prove the defendant’s
guilt as to the crimes that’s [sic] he charged with in this
case, but to rebut the implication or testimony that he was
incapacitated or in the hospital until the end of September.

I instruct you to consider this particular piece of evidence
for that purpose only.

Id. at 148-149.

The Commonwealth also offered into evidence a recording of prison

phone calls Vargas made to Marfisi on the day before Le’s murder. See N.T.,

5/15/24, at 76-80. During its closing argument, the Commonwealth

highlighted the discussions between Vargas and Marfisi during the calls:

What else does [Marfisi] say in these phone prison calls on
October 2nd, the day before Kenny Le is murdered? He’s
talking with Edwin Vargas about like some fight, something
that went down that happened, and he starts talking about
like seemingly a hypothetical situation of what could happen
next.

And what does he say? We got the van with both of the
doors on both sides. You know I’m in the van so they can't
see me. Chitty chit chit bang. And then he talks about a
Freddy Krueger massacre, like nightmare on Letterly Street.
And the very next day, there is indeed a massacre, a
nightmare on Letterly Street, the street that you heard from
Donaven Velezquez was where their opps, people that they
don’t like [to] go.

And you heard from Donaven Velezquez they went to
that block not necessarily looking for Chino, but looking for
anyone out there who they might have a problem with and
they found Chino. There go Chino. And that’s when they
shot.

-9-
J-S43029-25

Estalin Marfisi did indeed brag about this shooting, this
homicide. He may not have done it on social media, but he
did on it on October 3rd when he had another call with Edwin
Vargas, almost immediately he brings up – the Chinese boul
is what he says.

And then what does he say after that? My youngin’ hit a
home run and knocked it out of the park. My youngin’, being
Donaven Velezquez. Because in Marfisi’s mind, Donovan
[sic] Velezquez is the one that took that kill shot, the one
that was first out there, the one that first started shooting
from that van when Kenny Le went down, giving credit to
Donaven Velezquez for what he did.

N.T., 5/21/24, at 65-67.

In its closing, the Commonwealth also discussed one of the co-

defendants, Dominick Butler. Butler’s testimony identified the participants in

Le’s murder, including himself and Marfisi. See N.T., Trial (Jury) Volume 1,

5/16/24, at 67-78.

Dom Butler. Dom Butler comes out here and this is the
first time that he is facing Estalin Marfisi since he got
arrested, since he gave a statement, and since he decided
to cooperate. And, understandably, he might be a little
nervous for that reason. In fact, you even heard during his
questioning, you heard him saying something about [it] in
his statement[,] he told the agent, he said, You’re trying to
make me be a rat. Because that’s what he considers himself
to be. He considers himself to be a rat.

And being a rat is not a good thing, members of the jury.
There is not a lot of times that I will say that T.V. and movies
get it correct when it comes to this job. But what they do
get right is being a rat is a very bad thing. Being a rat makes
you unsafe. Being a rat could get you possibly killed. So no
one wants to come and sit in that chair and face the person
in front of them and be a rat.

So, understandably, Dom Butler was probably a little
nervous when he first came out here. And I had to remind
him of some of the testimony he gave prior, some of the

• 10 - J-S43029-25

testimony he gave when he was at another hearing without
Estalin Marfisi there, when he didn't have to face him. So
keep that in mind and keep that in consideration.

N.T., Trial (Jury) Volume 3, 5/21/24, at 46-47.

Following closing arguments, defense counsel objected and moved for a

mistrial for the Commonwealth’s reference to the prison calls. She argued that

the Commonwealth had engaged in prosecutorial misconduct when it

“[p]icked up the transcript and then read from it, when we have no testimony

of whose voice was that, when there was no transcript read.” Id. at 75.

Counsel claimed that by doing this, the prosecutor had implied that the

Commonwealth had an official transcript and asked that the court either grant

a mistrial or give a curative instruction to the jury. The Commonwealth stated

that it was referencing its notes, and even if it had implied that there was a

transcript, the court had instructed the jury that it should rely on its memory.

Id. at 77. The court overruled the objection and denied the motion for mistrial.

It found that “[t]here’s no reference to that transcript as being part of the

record. It’s no different from counsel referring from her notes.” Id. at 77-78.

Counsel also objected to the Commonwealth’s remarks about Butler.

She argued that the remarks implied “that there’s been some kind of threat

in this case . . . to not testify or to testify.” Id. at 76. Counsel asked for a

curative instruction for this comment as well. The Commonwealth replied that

inferences are permitted during closing and that it did not “suggest that it was

Estalin Marfisi or . . . his family who were the ones that made any threat

against him, who may have threatened his life, or anything to that effect.” Id.

• 11 - J-S43029-25

at 78. The court overruled the objection. It determined that the

Commonwealth’s argument was “fully within the []ambit of the facts in this

case and it’s fair argument as fair inference from the facts.” Id. at 79. The

court declined to give curative instructions for both statements.

The jury convicted Marfisi in two of the cases – the charges related to

the shooting of Le and the possession of the firearm – and found Marfisi guilty

of the above offenses. However, it acquitted him of attempted murder for the

shooting of Michael Walker.5 The court sentenced him to an aggregate term

of 38½ to 77 years’ incarceration. Marfisi filed a motion for reconsideration of

his sentence, alleging that the sentence did not reflect the mitigating factors.

See Motion to Reconsider Sentence, filed 8/30/24, at ¶ 5. The court denied

the motion. See Docket 8545, Entry 181; Docket 8548, Entry 169. This timely

appeal followed.

Marfisi presents the following questions:

I. Did the lower court err in granting consolidation of
[Marfisi’s] two unrelated cases for trial where
evidence of each of the offenses would not be
admissible in a separate trial for the other and where
[Marfisi] was unduly prejudiced by the consolidation
of the offenses?

II. Did the trial court abuse its discretion in ruling that a
witness could present expert testimony that a
photograph of [Marfisi] with a gun that was uploaded
on October 10, 2020, was also taken on October 10,
2020, one week after the murder of Kenny Le, based
on his analysis of metadata where the prosecutor had

---

5 See Common Pleas docket number CP-51-CR-0008542-2022.

• 12 - J-S43029-25

specifically represented to the defense that she would
not offer expert testimony on this issue?

III. Did the trial court abuse its discretion in permitting
the Commonwealth to introduce into evidence a
prejudicial cell phone video showing [Marfisi]
committing an unrelated crime over the defense’s
objection?

IV. Did the trial court err in denying [Marfisi’s] request for
a mistrial where the Commonwealth’s attorney
committed two instances of prosecutorial misconduct
during her summation?

V. Did the lower court abuse its discretion in sentencing
[Marfisi] to a manifestly excessive sentence of 38 ½
to 77 years of imprisonment where the court
disregarded substantial evidence that would have
supported the imposition of a mitigated sentence?

Marfisi’s Br. at 5-6 (answers of trial court committed).

Marfisi first argues that the court erred in granting the Commonwealth’s

motion to consolidate his cases. He claims that evidence in each case would

not be admissible in a separate trial of the other and the consolidation was

prejudicial. He maintains that while the prosecutor referred to “a lot of

overlapping evidence,” she only identified three pieces of evidence admissible

in all three cases: a photo of Marfisi holding a gun he admitting having

possessed; the testimony of Derrick Butler; and Marfisi’s statement to police

admitting possessing the gun. Marfisi concedes that ballistics evidence showed

that the same gun was used in all three shootings. He also admits that there

was evidence that Le was murdered because he had “shot up Vargas’s

mother’s house.” Id. at 22. He also acknowledges evidence that Michael

Walker was shot because someone “was making fun of Vargas’[s] death on

• 13 - J-S43029-25

Instagram,” and in a case of mistaken identity, Marfisi and Butler shot Walker.

Id. However, he asserts that no evidence linked Le’s killing to Walker’s

shooting. Marfisi also argues the consolidation of the cases was prejudicial

because the joining of “unrelated and dissimilar crimes” permitted the

Commonwealth to invite “the jury to convict [Marfisi] based solely on his

propensity to commit crimes.” Id. at 23.

Whether to join offenses for trial is committed to the trial court’s sound

discretion. Absent an abuse of that discretion, the decision of the court will

not be reversed. See Commonwealth v. Knoble, 188 A.3d 1199, 1205

(Pa.Super. 2018).

Offenses charged as separate cases may be joined for trial “if the

evidence of each of the offenses would be admissible in a separate trial for

the other and is capable of separation by the jury so that there is no danger

of confusion[.]” Pa.R.Crim.P. 582(A)(1). When a court considers whether to

join cases together, it “must first determine if the evidence of each of the

offenses would be admissible in a separate trial for the other.”

Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010) (citation

omitted). Where the court believes that trying the cases together would

prejudice any party, the court may order separate trials. Pa.R.Crim.P. 583.

“Under Rule 583, the prejudice the defendant suffers due to the joinder must

be greater than the general prejudice any defendant suffers when the

Commonwealth’s evidence links him to a crime.” Dozzo, 991 A.2d at 902.

• 14 - J-S43029-25

Evidence offered to establish a defendant’s propensity to commit a crime

or bad character is inadmissible. See Pa.R.E. 404(b)(1). However, evidence

of crimes, wrongs, or acts offered for a proper purpose, such as to show

motive or identity, is admissible if “the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2) (stating

evidence of other crimes, wrongs, or acts may be admissible for purposes such

as “proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident”). Additionally, “evidence of

other crimes may be admitted where such evidence is part of the history of

the case and forms part of the natural development of the facts.”

Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997).

Here, the trial court did not abuse its discretion in consolidating the

cases. Marfisi has not identified evidence that was admissible against him in

one case but not the other. Moreover, the charges each involved the use of a

firearm linked to Marfisi. As such, the ballistics evidence showing the same

firearm was used in each of the cases was admissible in each case for the

purpose of proving identity. Furthermore, consolidating the cases provided

context to the allegations in each case, considering the brief time span

between each case. Thus, the evidence for each of the offenses for the

separate cases formed part of the natural development of the facts of the

case.

In his next two issues, Marfisi challenges the admission of evidence. He

first alleges the court erroneously permitted the Commonwealth to present

• 15 - J-S43029-25

expert testimony related to the metadata of a photograph recovered from

Marfisi’s cell phone. He claims that this was a direct violation of Rule

573(B)(1)(e) of the Pennsylvania Rules of Criminal Procedure because “the

Commonwealth had not previously notified the defense that it would offer this

expert testimony[.]” Marfisi’s Br. at 26-27. Marfisi also alleges that the

Commonwealth’s “eleventh hour announcement” on the day of trial that it

would present expert testimony amounted to “trial by ambush.” Id. at 27.

Marfisi maintains that he had planned to argue that the time of the photo

could not be connected to the time of the murder, but the allowance of the

expert testimony “forced” him “to abandon this strategy on the day of trial.”

Id. He distinguishes the instant case from Commonwealth v. Clemat, 218

A.3d 944, 953 (Pa.Super. 2019), where this Court determined that the

appellant was not prejudiced by the Commonwealth’s late disclosure of an

expert witness. He argues that, unlike in Clemat, here the Commonwealth

failed to notify the defense that the witness would testify as an expert on

metadata and explain his analysis of the metadata from the photograph to

determine when it was taken.

Additionally, Marfisi argues that the court erred by permitting the

Commonwealth to play the cell phone video showing Marfisi assaulting a

person to rebut the defense’s opening statement. He argues that the video

was unrelated to any of Marfisi’s charges, and the prejudice resulting from the

jury seeing him commit an unrelated violent crime outweighed any probative

value of the evidence. He further claims that there was no need for the

• 16 - J-S43029-25

Commonwealth to rebut the defense’s suggestion that Marfisi was hospitalized

at the time of the shooting because the defense only established that Marfisi

was injured and, therefore, it would have been difficult for him to crouch in

the van on the day of the shooting.

We review a court’s evidentiary rulings for an abuse of discretion. See

Commonwealth v. Hernandez, 230 A.3d 480, 489 (Pa.Super. 2020).

Here, the trial court concluded that it properly exercised its discretion in

overruling Marfisi’s objection to the cellphone extraction evidence.

During an extensive exchange with defense counsel and
counsel for the Commonwealth, it was determined that
defense counsel had the phone extraction report and all the
information about the photograph. The objection came
down to whether the Commonwealth had somehow misled
the defense regarding the photograph creation evidence and
how it would be presented. The Court concluded that there
was no intentional misrepresentation by the
Commonwealth, simply attorneys not entirely
understanding each other as to how the evidence would be
presented and how the witness would be characterized. But
at the end of the day, the defense had all the necessary
information in its possession and suffered no undue
prejudice. Accordingly, the court overruled the objection.

Memorandum Op. at 5 (citations omitted). As to the video, the court found

that “[t]he evidence was proper rebuttal, and as such it was more probative

than prejudicial. Further, any prejudice was cured by the specific,

contemporaneous instruction to the jury as to how they were to consider the

evidence.” Id. at 6.

We find no abuse of discretion. Although the Commonwealth did not

inform counsel in a timely manner that it would present expert testimony

• 17 - J-S43029-25

about the metadata from the photograph, the metadata was not new

evidence. Even considering that the Commonwealth assured counsel that it

would not call an expert witness regarding the phone location and GPS,

defense counsel was not precluded from calling her own expert witness on

metadata. Furthermore, Marfisi did not suffer any undue prejudice from the

detective’s testimony because the evidence at trial established that Marfisi

admitted to possessing and firing the firearm and having it prior to November

1. See Memorandum Op. at 3.

Regarding the video evidence, this claim is also meritless. The evidence

rebutted counsel’s suggestion to the jury about the level of difficulty Marfisi

would have had to crouch inside the van used during Le’s murder. Additionally,

any prejudice created from the jury viewing the video was cured by the court’s

limiting instruction.

Next, Marfisi argues that the court abused its discretion in denying his

motion for a mistrial for the Commonwealth’s statements during its closing

argument. He claims that “the prosecutor improperly insinuated to the jury

that she had a transcript of [Marfisi’s] inculpatory statements when she read

from a document and said “[f]orgive me because I want to make sure I get

this right when I read this . . .” Marfisi’s Br. at 36 (quoting N.T., 5/21/24, at

65). He also argues that the Commonwealth’s comments about Butler

inflamed the jury and caused it to speculate whether the witness had been

threatened by Marfisi. This claim is meritless.

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We review the denial of a mistrial for an abuse of discretion. See

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014). A court may grant

a motion for a mistrial “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.”

Id. (citation omitted). Additionally, “a mistrial is not necessary where

cautionary instructions are adequate to overcome any possible prejudice.” Id.

(citation omitted).

We review a claim alleging improper prosecutorial comments for an

abuse of discretion. See Commonwealth v. Jones, 191 A.3d 830, 835

(Pa.Super. 2018). For closing arguments, the prosecution is given

“considerable latitude . . . and his or her statements are fair if they are

supported by the evidence or use inferences that can reasonably be derived

from the evidence.” Commonwealth v. Noel, 53 A.3d 848, 858 (Pa.Super.

2012). Prosecutorial misconduct occurs when “the unavoidable effect of the

comments at issue was to prejudice the jurors by forming in their minds a

fixed bias and hostility toward the defendant, thus impeding their ability to

weigh the evidence objectively and render a true verdict.” Id. (citation and

internal quotation marks omitted). We do not view the statements in a vacuum

but rather in context. Commonwealth v. Bedford, 50 A.3d 707, 715-16

(Pa.Super. 2012) (en banc).

The prosecutor’s statements did not insinuate that she had a physical

transcript of the prison calls. As the trial court explained, her statements were

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a reference to her notes. Therefore, the Commonwealth did not violate any

court order regarding the inadmissibility of the transcript. Additionally, the

Commonwealth’s statements about Butler, when read in context, were proper

to explain why he might have been nervous to testify. Immediately following

the Commonwealth’s discussion about the consequences of being a “rat,” it

went on to say, “So, understandably, Dom Butler was probably a little nervous

when he first came out here.” N.T., 5/21/24, Trial (Jury) Volume 3, at 47.

Also, before it made the statements about Butler considering himself a “rat,”

the Commonwealth talked about Butler agreeing to testify for the

Commonwealth, the amount of prison time he could potentially face, and that

defense counsel suggested that the testimony of the co-defendants was “a

corrupt and polluted source[.]” Id. at 42-46. It also explained that the co-

defendants in the case, including Butler, were friends with Marfisi. Id. at 45.

When viewed in context, the prosecution was making an argument

about why Butler may have been nervous during his testimony. Furthermore,

considering that defense counsel had suggested that he was a “corrupt and

polluted source,” the Commonwealth’s discussion of Butler viewing himself as

a rat and the potential consequences that come along with that was fair and

reasonable, considering the evidence. Moreover, we cannot say that either of

the comments had the unavoidable effect of prejudicing the jury against

Marfisi such that it could not render a “true” verdict.

Marfisi’s final issue addresses the discretionary aspects of his sentence.

For such a claim, there is no absolute right to appeal. See Commonwealth

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v. Devine, 326 A.3d 935, 939 (Pa.Super. 2024), appeal denied, 337 A.3d 373

(Pa. 2025). Rather, we must first determine whether the appellant: 1) filed a

timely appeal; 2) preserved the issue at sentencing or in a post-sentence

motion; 3) has filed a Pa.R.A.P. 2119(f) statement; and 4) raised a substantial

question. See Commonwealth v. Starr, 234 A.3d 755, 759 (Pa.Super.

2020).

We address the merits of Marfisi’s claim because he has satisfied all the

above requirements. Marfisi’s appeal is timely, his issue was preserved, his

brief includes a Rule 2119(f) statement, and he has raised a substantial

question. He alleges that the trial court imposed an unduly harsh sentence

that disregarded any of his mitigating factors, such as his age at the time of

the crime, his upbringing, and rehabilitative needs. This is a substantial

question. See Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.

2012) (en banc). He also raises a substantial question that the court

improperly focused solely on the serious nature of the crimes and the impact

on the victims and community. See Commonwealth v. Boyer, 856 A.2d

149, 152 (Pa.Super. 2004).

Substantively, Marfisi’s claim is meritless. At the sentencing hearing, the

court heard from defense counsel that Marfisi was 20 years old at the time of

the crime, that he was remorseful, and that he had a “very traumatic and

troubled past.” N.T., Sentencing Volume 1, 8/23/24, at 8, 12. Counsel stated

that Marfisi did not know his father, had been committed to a mental facility

at the age of 13, and had suffered abuse. Id. at 12-13. She also spoke about

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Marfisi’s drug addiction, that he dropped out of school, and that he had a prior

record score of two. Id. at 14-15. The court also heard from Marfisi’s high

school friend and his sister. See id. at 28-32. Marfisi expressed his remorse

to the court and his desire to “take all the help I can to better myself and use

this time that I’m in jail so I can better myself so I can get back home to my

family.” Id. at 54.

Before sentencing Marfisi, the court explained that it had considered

“the presentence report, the mental health evaluation report, the sentencing

guidelines, the mental health report, the arguments of both counsel, the

Commonwealth’s sentencing memorandum as well as the defense sentencing

memo.” Id. at 63. It also considered the victim impact statements and the

testimony of Marfisi’s sister and of a friend. Id. The court made note that it

agreed “that [Marfisi’s] personal history is tragic and this [c]ourt recognizes

that it played a part in who [Marfisi] became while he was doing these things.

It’s also not lost on this [c]ourt that [Marfisi] is 24 today and was 20 at the

time of these incidents.” Id. at 65. Thus, the record shows that the court aptly

articulated all its considerations, including Marfisi’s mitigating factors, and did

not solely focus on the violent nature of his crimes and the impact on the

victims and the community.

Judgment of sentence affirmed.

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Date: 3/13/2026

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