Com. v. Grandinetti, M.

J-S10009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MIZZON UNIQUE GRANDINETTI :

:

Appellant : No. 512 WDA 2023

Appeal from the Judgment of Sentence Entered August 9, 2022

In the Court of Common Pleas of Cambria County Criminal Division at

No(s): CP-11-CR-0000135-2021

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED: June 18, 2024

Appellant, Mizzon Unique Grandinetti, appeals from the judgment of

sentence entered August 9, 2022, as made final by the denial of his

post-sentence motion on March 23, 2023. We affirm.

“This case arises out of the homicide of Barron Grumbling that occurred

in Johnstown[,] Pennsylvania on or about May 1, 2017.” Trial Court Opinion,

3/29/23, at 1. On February 24, 2021, Appellant was charged in relation to

Grumbling’s death. “A jury trial [proceeded from January 25, 2022 until

January 29, 2022]” but resulted in a mistrial. Id. “Following certain pre-trial

conferences, a second jury trial was held on June 8, 2022 [through] June 10,

2022.” Id. On June 10, 2022, the jury found Appellant guilty of first-degree

J-S10009-24

murder.1 On August 9, 2023, the trial court sentenced Appellant to life

imprisonment without the possibility of parole.2 This timely appeal followed.3

____________________________________________

1 18 Pa.C.S.A. § 2502(a).

2 At the time of the offense, Appellant was 16-years-old. As such, Appellant

met the criteria of a juvenile homicide offender whose sentence for

first-degree murder is fixed by 18 Pa.C.S.A. § 1102.1, which directs the trial

court to exercise its discretion pursuant to certain statutory factors in imposing

a sentence where the minimum punishment starts at 35 years and extends to

life without the possibility of parole.

3 On August 10, 2022, trial counsel filed a motion to withdraw as counsel. In

his motion, trial counsel indicated that he was only retained for trial but that

Appellant wished to file an appeal and could not afford privately-retained

appellate counsel. As such, trial counsel requested leave to withdraw and

asked the trial court to appoint appellate counsel. On August 15, 2022, the

trial court granted trial counsel leave to withdraw and appointed Andrew

Skala, Esquire, as appellate counsel. That same day, the trial court sua sponte

granted Appellant a 21-day extension to file a post-sentence motion. On

August 26, 2022, Attorney Skala filed a motion to withdraw as counsel, citing

a conflict of interest. Thus, that day, the trial court granted Attorney Skala

leave to withdraw, appointed Christy Foreman, Esquire as substitute counsel,

and issued, sua sponte, a 30-day extension for Appellant to file a post-

sentence motion. On September 19, 2022, Attorney Foreman requested an

extension of time to file a post-sentence motion, which the trial court granted

on September 21, 2022. In particular, the trial court directed Attorney

Foreman to file a post-sentence motion on Appellant’s behalf on or before

October 25, 2022. Appellant, through Attorney Foreman, filed a post-

sentence motion on October 24, 2022, as well as a motion for leave to file an

amended post-sentence motion nunc pro tunc. On October 27, 2022, the trial

court granted Appellant leave to file an amended post-sentence motion nunc

pro tunc. Appellant filed an amended post-sentence motion nunc pro tunc, as

permitted by the trial court, on November 23, 2022. The trial court then

scheduled a hearing on Appellant’s post-sentence motion. In recognition of

the fact that the trial court scheduled the hearing on Appellant’s post-sentence

motion after 120 days of its filing, which would result in Appellant’s

post-sentence motion being denied by operation of law before the hearing

took place, Appellant filed a 30-day extension request, seeking to extend the

time that the trial court had to decide the post-sentence motion pursuant to

(Footnote Continued Next Page)

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____________________________________________

Pa.R.Crim.P. 720(B)(3)(b). The trial court granted Appellant’s request and,

as such, extended the time for deciding Appellant’s post-sentence motion to

March 23, 2023. Ultimately, on March 29, 2023, the trial court issued an order

denying Appellant’s post-sentence motion. A notice of appeal was then filed

on April 17, 2023.

A notice of appeal must be filed within 30 days of the entry of the challenged

order. See Pa.R.A.P. 903(a). If a timely post-sentence motion is filed, an

appeal must be taken within 30 days of the entry of the order deciding the

motion. See Pa.R.Crim.P. 720(A)(2)(a). If made within 10 days of the

issuance of a judgment of sentence, a request for an extension of time to file

a post-sentence motion may toll the appeal period. See Commonwealth v.

Horst, 481 A.2d 677 (Pa. Super. 1984). In general, a trial court only has 120

days to decide a post-sentence motion and, if it fails to decide a motion within

that time, the post-sentence motion is denied by operation of law. See

Pa.R.Crim.P. 720(B)(3)(a). If a post-sentence motion is denied by operation

of law, the clerk of courts must enter an order deeming the motion denied on

behalf of the trial court and serve copies on the parties. See Pa.R.Crim.P.

720(B)(3)(c). Upon request, however, a trial court may, “for good cause

shown,” grant one 30-day extension of the 120-day decision period. See

Pa.R.Crim.P. 720(B)(3)(b).

Herein, the trial court sua sponte granted an extension request on August 15,

2022, which was within 10 days of Appellant’s judgment of sentence. Because

the subsequent extension requests were granted within the extended filing

periods, we conclude that Appellant’s post-sentence motion, filed on October

24, 2022, was timely filed. In addition, we conclude that, because Appellant’s

counsel made a timely request under Pa.R.Crim.P. 720(b)(3)(a) for an extra

30 days of time to decide Appellant’s motion, and the trial court properly

granted Appellant’s request, the trial court was permitted to issue a ruling on

Appellant’s post-sentence motion within 150 days of its filing, i.e., on or before

March 23, 2023. In this instance, however, the trial court did not issue its

order denying Appellant’s post-sentence motion until March 29, 2023 and, as

such, the motion was still denied by operation of law on March 23, 2023. A

review of the record, however, reveals that the clerk of courts failed to enter

an order deeming Appellant’s post-sentence motion denied by operation of

law. In addition, it is apparent that, despite the clerk’s failure, Appellant filed

a timely notice of appeal on April 17, 2023. Based upon the foregoing, we

conclude that Appellant’s appeal is timely and will address the merits of his

claims.

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Appellant raises the following issues on appeal:4

1. [Whether the] trial court erred in denying Appellant’s motion

for reconsideration of sentence [when] the court failed to

adequately consider the mitigating factors when imposing

the sentence of life imprisonment in this matter and

improperly relied on evidence related to other potential

homicides?

2. [Whether the] trial court erred in denying Appellant’s motion

for judgment of acquittal as Appellant is innocent and the

evidence in this matter was insufficient to sustain Appellant’s

conviction for [criminal homicide?]

3. [Whether the] trial court erred in denying Appellant’s motion

for a new trial as the verdict was against the weight of the

evidence[?]

4. [Whether the] trial court erred in permitting multiple

“affiant” law enforcement officers to remain in the

[courtroom] in violation of the sequestration order, thereby

tainting their testimony in violation of [] Appellant’s

constitutional rights, thus warranting [a new trial?]

5. [Whether the] trial court erred in not granting the jury’s

request during deliberations to review the [tape-recorded]

interview of witness [Daekwon] Coleman, which had been

entered into evidence, thus warranting the grant of a new

trial[?]

6. [Whether the] trial court erred in permitting Detective

[Mark] Britton to testify at trial regarding the conclusions of

the forensic evidence when he was not qualified as an expert

in the field of forensics, and such error warrants the grant of

a new trial[?]

7. [Whether the] trial court erred in permitting Detective

Britton to testify at trial regarding [Daekwon] Coleman’s

credibility when [the court] failed to give a limiting

instruction to the jury after [the detective’s] credibility

statement was entered on the record before the jury, and

such error warrants the grant of a new trial[?]

____________________________________________

4 We have reordered Appellant’s issues for ease of discussion and disposition.

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8. [Whether the] trial court erred in failing to give a No Adverse

Inference Jury Instruction during its final instructions to the

jury in violation of Appellant’s constitutional rights thus

warranting the grant of a new trial[?]

9. [Whether the] trial court erred in failing to conduct a colloquy

with [Appellant] regarding his decision to testify and call

character witnesses, thus warranting the grant of a new

trial[?]

Appellant’s Brief at 7-8 (unnecessary capitalization omitted) (cleaned-up).

In his first issue, Appellant raises a challenge to the discretionary

aspects of his sentence.

This Court previously explained:

It is well-settled that “the right to appeal a discretionary aspect

of sentence is not absolute.” Commonwealth v. Dunphy, 20

A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant

challenges the discretionary aspects of a sentence, we should

regard his[, or her,] appeal as a petition for allowance of appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.

2007). As we stated in Commonwealth v. Moury, 992 A.2d

162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of

his[, or her,] sentence must invoke this Court's

jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine:

(1) whether appellant [] filed a timely notice of

appeal, see Pa.R.A.P. 902 and 903; (2) whether

the issue was properly preserved at sentencing

or in a motion to reconsider and modify sentence,

see Pa.R.Crim.P. 720; (3) whether appellant's

brief has a fatal defect, [see] Pa.R.A.P. 2119(f);

and (4) whether there is a substantial question

that the sentence appealed from is not

appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

[Moury, 992 A.2d] at 170 [(citation omitted)].

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Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original

brackets omitted).

Herein, Appellant filed a timely notice of appeal, preserved his

sentencing challenge in his post-sentence motion, and included a Rule 2119(f)

concise statement in his appellate brief. See Appellant's Brief at 28-30. Thus,

we turn to whether Appellant raised a substantial question. A substantial

question exists when an appellant presents a colorable argument that the

sentence imposed is either (1) “inconsistent with a specific provision of the

[s]entencing [c]ode” or (2) is “contrary to the fundamental norms which

underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d

581, 585 (Pa. Super. 2010) (citation omitted), appeal denied, 14 A.3d 825

(Pa. 2011). This Court will not look beyond the statement of questions

involved and the prefatory Rule 2119(f) statement to determine whether a

substantial question exists. Commonwealth v. Radecki, 180 A.3d 441, 468

(Pa. Super. 2018) (citation omitted). Moreover, for purposes of determining

what constitutes a substantial question, “we do not accept bald assertions of

sentencing errors,” but rather require an appellant to “articulat[e] the way in

which the court's actions violated [sentencing norms or] the sentencing code.”

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. 2006).

In Appellant’s 2119(f) statement, he contends that the trial court abused

its discretion by imposing a sentence of life without the possibility of parole.

In particular, Appellant claims that, in so doing, the trial court overly relied

upon improper factors and failed to consider important mitigating factors.

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Both of Appellant’s claims raise a substantial question, warranting review.

See Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa. Super. 2022)

(juvenile homicide defendant raised substantial question in alleging that trial

court failed to consider relevant mitigating factors when imposing life without

possibility of parole); see also Commonwealth v. Seagraves, 103 A.3d

839, 842 (Pa. Super. 2014) (holding that the appellant’s claim that the “trial

court improperly relied on factors derived from a prior decertification hearing”

raised a substantial question). Because Appellant raises a substantial

question, we shall proceed to the merits of his discretionary sentencing

challenge.

Appellant argues that the trial court, in fashioning his sentence,

improperly relied upon unsubstantiated and uncharged offenses, as well as

hearsay statements pertaining to other homicides that were never subjected

to cross-examination. See Appellant’s Brief at 33-34. In addition, Appellant

claims that the trial court failed to consider other mitigating factors such as

his good behavior while incarcerated, the fact that he “was a child born in

prison,” spent “most of his childhood in and out of the [Office of Children,

Youth and Families] system,” and was a “victim of neglect with no father and

a mother routinely incarcerated.” Id. at 36-37.

With respect to our standard of review, we have held that “sentencing

is a matter vested in the sound discretion of the sentencing judge, whose

judgment will not be disturbed absent an abuse of discretion.”

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Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). This

Court has held:

[A]n abuse of discretion is more than a mere error of judgment;

thus, a sentencing court will not have abused its discretion

unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-will. In more expansive terms, our Court [has

explained]: An abuse of discretion may not be found merely

because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness,

or partiality, prejudice, bias, or ill-will, or such lack of support

so as to be clearly erroneous.

The rationale behind such broad discretion and the

concomitantly deferential standard of appellate review is that

the sentencing court is in the best position to determine the

proper penalty for a particular offense based upon an evaluation

of the individual circumstances before it.

Moury, 992 A.2d at 169–170 (internal citation and brackets omitted).

In fashioning a sentencing scheme for a juvenile homicide offender, our

Supreme Court instructed trial courts to consider the sentencing requirements

codified in 18 Pa.C.S.A. § 1102.1. Subsection 1102.1 provides, in relevant

part, as follows.

(a) First degree murder.--A person who has been convicted

after June 24, 2012, of a murder of the first degree, first degree

murder of an unborn child or murder of a law enforcement

officer of the first degree and who was under the age of 18 at

the time of the commission of the offense shall be sentenced as

follows:

(1) A person who at the time of the commission of the

offense was 15 years of age or older shall be

sentenced to a term of life imprisonment without

parole, or a term of imprisonment, the minimum of

which shall be at least 35 years to life.

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(2) A person who at the time of the commission of the

offense was under 15 years of age shall be sentenced

to a term of life imprisonment without parole, or a

term of imprisonment, the minimum of which shall be

at least 25 years to life.

(b) Notice.--Reasonable notice to the defendant of the

Commonwealth's intention to seek a sentence of life

imprisonment without parole under subsection (a) shall be

provided after conviction and before sentencing.

***

(d) Findings.--In determining whether to impose a sentence of

life without parole under subsection (a), the court shall consider

and make findings on the record regarding the following:

(1) The impact of the offense on each victim, including oral

and written victim impact statements made or submitted

by family members of the victim detailing the physical,

psychological and economic effects of the crime on the

victim and the victim's family. A victim impact statement

may include comment on the sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual

posed by the defendant.

(4) The nature and circumstances of the offense committed

by the defendant.

(5) The degree of the defendant's culpability.

(6) Guidelines for sentencing and resentencing adopted by

the Pennsylvania Commission on Sentencing.

(7) Age-related characteristics of the defendant, including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication exhibited

by the defendant.

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(v) The nature and extent of any prior delinquent or

criminal history, including the success or failure of

any previous attempts by the court to rehabilitate

the defendant.

(vi) Probation or institutional reports.

(vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1(a)(b) and (d).

Importantly, it is well-settled that “[a] sentencing court may consider

any legal factor” while making its determination of the sentence to be

imposed. Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super.

2009) (citation omitted). Moreover, we previously determined:

In deciding whether a trial judge considered only permissible

factors in sentencing a defendant, an appellate court must, of

necessity, review all of the judge's comments. Moreover, in

making this determination it is not necessary that an appellate

court be convinced that the trial judge in fact relied upon an

erroneous consideration; it is sufficient to render a sentence

invalid if it reasonably appears from the record that the trial

court relied in whole or in part upon such a factor.

Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (internal

quotations and citations omitted). “[W]here the sentencing judge had the

benefit of a pre-sentence investigation report (“PSI”), it will be presumed that

he or she was aware of the relevant information regarding the defendant's

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Clemat, 218 A.3d 944, 960 (Pa. Super. 2019).

Our review of the sentencing transcript reveals no abuse of discretion

on the part of the trial court. First, it is apparent that, in fashioning Appellant’s

sentence, the trial court painstakingly considered each of the seven factors

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listed in Subsection 1102.1(d). See N.T. Sentencing Hearing, 8/9/22, at

41-49. In its 1925(a) opinion, the trial court summarized its consideration of

Subsection 1102.1(d)’s factors as follows:

At the time of sentencing, this [c]ourt explored the seven

factors found in 18 Pa.C.S.A. § 1102.1(d) on the record. As to

the first factor, this [c]ourt considered both the statements

made by the family of [Barron] Grumbling, as well as those

made by [Appellant’s] family. Specifically, this [c]ourt

referenced the sense of loss from [Barron] Grumbling’s family,

stating “from listening to these people, they [are] crushed.” As

to the second factor, impact on the community, this [c]ourt

referenced [that] the shooting occurred on the street. While no

eyewitnesses of the shooting itself, several people heard it and

were looking out of windows within seconds. This [c]ourt

further emphasized that this was, for a time, one of several

unsolved murders of young people in the City of Johnstown.

While [Appellant] was in prison on other charges subsequent to

the murder, no arrests were made on this homicide for years.

The [e]ffect on the community “was that they were concerned,

in fact, probably were in fear, of not knowing if the perpetrator

was still at large.” This [c]ourt next considered the threat to the

safety of the public or any individual. This [c]ourt found that[,]

not only would the public at large have to fear [Appellant], but

this [c]ourt had specific concern for two individuals,

specifically[,] Daekwon Coleman and Alonya Chatman. A brief

portion of a letter from [Alonya] Chatman was read into the

record were [she] expressed fear for her life due to her

testimony in this matter. Factors four and five pertain to the

nature of the offense and [Appellant’s] culpability. This [c]ourt

found that Barron Grumbling was shot three times, and there

was testimony that [Appellant] killed him and did so in an

intentional way. The sixth factor calls for the guidelines for

sentencing as adopted by the Pennsylvania Commission on

Sentencing. Specifically, the standard range was 438 months

to life and the mitigated range 420 months.

Finally, this [c]ourt considered factors and characteristics

related to the age of [Appellant]. This court considered the

mental capacity of [Appellant], namely a lack of medical

restrictions or evidence of any neuropsychological deficits. As

well, this [c]ourt noted that [Appellant] appeared mature

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beyond his stated years from the [c]ourt’s personal

observations. As to the degree of criminal sophistication, this

[c]ourt noted [Appellant’s] ability to avoid apprehension for

[three] years as well as the fact that this was a planned murder

by [Appellant]. The nature and extent of prior delinquent or

criminal history was also considered. Briefly, this included a

juvenile record beginning when [Appellant] was nine years old

with an offense pertaining to possession of a BB gun. On the

record, this [c]ourt reviewed [Appellant’s] extensive, escalating

criminal history.

Trial Court Opinion, 3/29/23, at 4-5 (internal citations omitted).

Second, a review of the record indicates that, in contrast to Appellant’s

claims, the trial court considered Appellant’s troubled upbringing as well as

his behavior while incarcerated as mitigating factors. Indeed, the trial court

specifically stated:

And I did consider mitigating factors. I considered the

testimony of [the] folks that came forward, the relatives. I

looked at the PSI, and I considered that. So appropriately

brought out by [counsel, Appellant] did not have a childhood

like he had, that I had, that [the District Attorney] had. Now,

does that excuse what he did?

I also considered in his favor the fact that while incarcerated,

[Appellant] has completed a batterers group, did that on

November [2, 2021]; and violence prevention and modern

intensity program on February [23, 2022]. So when you look

at how he grew up, what chance he had, and the fact that he

did, once in jail for an extended sentence as an adult prior to

being arrested on these charges, he did make some attempts

and I give him credit for that. However, that does not outweigh

the whole history of [Appellant] from the time he was nine years

old.

N.T. Sentencing Hearing, 8/9/22, at 47-48.

Finally, a review of the record as well as the trial court’s 1925(a) opinion

confirms that the trial court considered allegations that, in addition to the

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killing of Barron Grumbling, Appellant allegedly committed “two other

homicides for which he has not been arrested.” Id. at 5; see also N.T.

Sentencing, 8/9/23, at 48. This information was provided to the court by the

Commonwealth. In particular, the Commonwealth submitted as an exhibit

Alonya Chatman’s testimony at another jury trial, wherein she stated that

Appellant confessed to murdering a woman because he believed she was a

“snitch.” Id. at 6 (Commonwealth’s Exhibit 3). In addition, the

Commonwealth submitted as an exhibit Alonya Chatman’s grand jury

testimony, wherein she claimed she witnessed Appellant murder another

individual. Id. (Commonwealth’s Exhibit 4). Importantly, the trial court was

permitted to consider such evidence. Bowen, 975 A.2d at 1122 (explaining

that a court may consider “any legal factor” while making its determination of

the sentence to be imposed). Our review confirms that, in contrast to

Appellant’s claims, the trial court did not significantly rely on the

aforementioned allegations while imposing his sentence. Instead, “the

allegations were taken in concert with the rest of [Appellant’s] history and

factors in order to better understand his background, conduct, and the

circumstances effecting his behavior.” Trial Court Opinion, 3/29/23, at 5

(citation omitted). Because the trial court simply considered these allegations

in conjunction with the PSI report, as well as each of the seven factors listed

in Subsection 1102.1(d), it cannot be said to have committed an abuse of

discretion.

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Based on the totality of the circumstances, and because Appellant's

sentence complies with subsection 1102.1(a) and the precedents of our

Supreme Court, we find no grounds on which to award relief to Appellant.

In his second issue, Appellant contends that the Commonwealth failed

to present sufficient evidence to support his conviction for first-degree

murder. In particular, Appellant claims the Commonwealth failed to

demonstrate that he, in fact, killed Barron Grumbling. We disagree.

Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of evidence

is whether, viewing all the evidence admitted at trial in the light

most favorable to the verdict 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 that of

the fact-finder. In addition, we note that the facts and

circumstances established by the Commonwealth may 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 trier 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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)

(internal citations and quotation omitted).

Our Supreme Court previously explained:

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Evidence is sufficient to sustain a conviction of first-degree

murder when the Commonwealth establishes that (1) a person

was unlawfully killed; (2) the person accused did the killing;

and (3) the accused acted with specific intent to kill. An

intentional killing is one committed by means of poison, lying in

wait, or by any other kind of willful, deliberate, and

premeditated action. The use of a deadly weapon on a vital

part of the body is sufficient to establish the specific intent to

kill.

Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007) (internal citations

omitted).

The trial court herein addressed Appellant’s claim as follows.

Bearing [the aforementioned] standards in mind, th[e court is

satisfied that the evidence presented at trial, viewed in the light

most favorable to the Commonwealth as the verdict winner,

was sufficient to sustain [Appellant’s] conviction of first-degree

murder. Turning to the specific elements of the evidence, there

can be no question that the first element was met. Barron

Grumbling was killed by gunshot wounds to the head and chest.

In fact, [Appellant] stipulated that Barron Grumbling was killed

and the manner of death was homicide. [Appellant] primarily

contests the second element of first[-]degree murder, that he

was responsible for the death of Barron Grumbling.

The evidence at trial included numerous lay witnesses that were

at or near the area of the murder the night of May 1, 2017. One

such witness, Constance Kralik, testified that she heard multiple

gun shots and observed two young black males wearing dark

red hooded sweatshirts. She also testified that one individual

was noticeably shorter than the other. The jury further heard

from Daekwon Coleman, a friend of [Appellant]. [] Coleman

testified as to the history between different groups living in the

Johnstown area, and how these groups interacted with each

other. Specifically, the individuals living in Prospect, such as

[Appellant], or Coopersdale, as Barron Grumbling [did],

sometimes “did [not] get along very well.” [In addition],

Coleman testified that Coopersdale [sic] had robbed

[Appellant’s] cousin, “Baby Sheik.” … Coleman further testified

that he was in fact present with [Appellant] the night of the

murder. [] Coleman testified that he, [Appellant], and Barron

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Grumbling were walking together when [Appellant] stopped,

saying he had to tie his shoe. [] Coleman then testified that he

heard a gunshot, and turned to see [Appellant] holding a gun,

and watched him shoot Barron Grumbling twice. Per []

Coleman, he and [Appellant] then ran away in the same

direction. It is important to note that Daekwon Coleman is

5’10” tall and [Appellant] is 5’5”, which corroborates the

testimony of Constance Kralick. Finally, the Commonwealth

called Alonya Chatman, [Appellant’s] ex-girlfriend. [] Chatman

testified that [Appellant] in fact confessed to her that []he shot

“B.G.”, which was a nickname that Barron Grumbling went by.

As to the third element, whether [Appellant] acted with the

specific intent to kill, th[e court] takes note of the fact that

specific intent to kill may be inferred from the use of a deadly

weapon on a vital part of the body. In this particular case, the

evidence showed that Barron Grumbling died of gunshot

wounds to the chest and head. Both the chest and head are

vital areas of the body and a gun is a deadly weapon. Using

those pieces of evidence, the specific intent to kill may be

inferred.

Taking all of the evidence in the light most favorable to the

Commonwealth, th[e court] finds the evidence submitted by the

Commonwealth is sufficient to sustain a conviction for

first-degree murder.

Trial Court Opinion, 3/29/23, at 7-8 (internal citations omitted). We adopt

this aspect of the trial court reasoning as our own. As such, we conclude that

the Commonwealth presented sufficient evidence to sustain Appellant’s

conviction for first-degree murder.

In his third issue, Appellant clams that the verdict was against the

weight of the evidence. Appellant challenges the credibility of the testimony,

namely, that of Daekwon Coleman and Alonya Chatman, and other evidence

proffered by the Commonwealth to support its contention that Appellant

murdered Barron Grumbling. When considering a challenge to the weight of

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the evidence offered in support of a criminal conviction, our standard of review

is well settled.

The essence of appellate review for a weight claim appears to

lie in ensuring that the trial court's decision has record support.

Where the record adequately supports the trial court, the trial

court has acted within the limits of its discretion.

A motion for a new trial based on a claim that the verdict is

against the weight of the evidence is addressed to the discretion

of the trial court. A new trial should not be granted because of

a mere conflict in the testimony or because the judge on the

same facts would have arrived at a different conclusion. Rather,

the role of the trial judge is to determine that notwithstanding

all the facts, certain facts are so clearly of greater weight that

to ignore them or to give them equal weight with all the facts is

to deny justice.

An appellate court's standard of review when presented with a

weight of the evidence claim is distinct from the standard of

review applied by the trial court. Appellate review of a weight

claim is a review of the exercise of discretion, not of the

underlying question of whether the verdict is against the weight

of the evidence.

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)

(quotations omitted), appeal denied, 171 A.3d 1286 (Pa. 2017). “To

successfully challenge the weight of the evidence, a defendant must prove the

evidence is ‘so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.’” Id. (citations and internal quotations omitted).

The entirety of Appellant's argument challenges the credibility of the

Commonwealth's witnesses’ testimony. We conclude that the trial court did

not abuse its discretion in denying Appellant's challenge to the weight of the

evidence. The jury heard the evidence introduced at trial and was free to

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determine the weight of the evidence and testimony. It is the fact-finder's

duty to assess credibility and we may not substitute our judgment for the

jury's findings. Moreover, the evidence was not so tenuous, vague and

uncertain that the verdict shocked the conscious of the court. Accordingly,

Appellant's weight of the evidence claim fails.

In his fourth issue, Appellant argues that the trial court committed an

error of law by allowing multiple law enforcement officers to remain in the

courtroom at counsel’s table for the duration of Appellant’s trial. More

specifically, Appellant claims that, because the trial court allowed Detective

Britton, Agent Ryan Caputo and Agent Moore5 to remain in the courtroom,

they all heard each other’s evidence, which “tainted their testimony” to

Appellant’s “detriment.” Appellant’s Brief at 44-45. We disagree.

We previously explained:

This Court's standard of review for a trial court's decision on

sequestration of witnesses is abuse of discretion.

Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super.

2001). We will not reverse a trial judge's decision to grant or

deny sequestration absent a clear abuse of discretion.

Commonwealth v. Pursell, 724 A.2d 293, 310 (Pa. 1999).

Moreover, an appellant must demonstrate that he or she was

actually prejudiced by a trial judge's sequestration order before

any relief may be warranted. See id. at 310 (holding that an

appellant's failure to show prejudice rendered meritless his

ineffectiveness claim against counsel who failed to object to the

presence of a police witness after trial court ordered a

sequestration of witnesses); Commonwealth v. Albrecht,

511 A.2d 764, 773 (Pa. 1986) (holding that an appellant's

failure to show prejudice rendered meritless his argument that

____________________________________________

5 Agent Moore’s first name is not of record.

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the trial court erred by not sequestering a Commonwealth

expert witness). “[A] request for sequestration must be specific

and supported by a showing that the interests of justice require

it. The purpose of sequestration is to prevent a witness from

molding his testimony with that presented by other witnesses.”

Commonwealth v. Counterman, 719 A.2d 284, 299 (Pa.

1998) (citation omitted).

Further, Rule 615 of the Pennsylvania Rules of Evidence

provides:

At the request of a party or on its own motion, the court

may order witnesses sequestered so that they cannot learn

of the testimony of other witnesses. This section does not

authorize sequestration of the following:

(1) a party who is a natural person or the guardian

of a party who is a minor or an incapacitated person;

(2) an officer or employee of a party which is not a

natural person (including the Commonwealth)

designated as its representative by its attorney; or

(3) a person whose presence is shown by a party to

be essential to the presentation of the party's cause.

Pa.R.E. 615.

The Comment to Rule 615 explains that the parenthetical

phrase relating to “the Commonwealth” in subsection (2) “is

meant to make clear that in a criminal case, the prosecution

has a right to have the law enforcement agent primarily

responsible for investigating the case at the counsel table to

assist in presenting the case, even though the agent will be a

witness.” Id., cmt. (1998).

Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa. Super. 2006)

(parallel citations omitted), overruled on other grounds by Commonwealth

v. Hicks, 208 A.3d 916 (Pa. 2019).

Upon review, we conclude that Appellant’s claim fails – and does so for

two reasons. First, Detective Britton, Agent Caputo and Agent Moore were

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noted by the Commonwealth as the “affiants,” who were “involved in the

investigation together” and, as such, were assisting the Commonwealth in its

presentation of the case. N.T. Trial, 6/8/22, at 35. Hence, pursuant to Pa.R.E.

615, all three were permitted to be “at the counsel table to assist in presenting

the case,” even if they were also witnesses during the trial. Pa.R.E. 615, cmt.

Second, Appellant utterly fails to demonstrate that the trial court’s ruling

resulted in prejudice. On appeal, Appellant asserts that permitting the officers

to “remain in the courtroom through[out] the entire proceedings would have

tainted their testimony to the detriment of Appellant.” Appellant’s Brief at 45.

Not only is Appellant’s claim nothing more than a bald assertion, it is also

belied by the record. Indeed, as noted by the trial court, “only two of the

non-sequestered witnesses/affiants testified at trial,” namely, Detective

Britton and Agent Caputo. Trial Court Opinion, 3/29/23, at 11. Detective

Britton testified first and “focused on the investigative steps taken by police.”

Id. Agent Caputo, on the other hand, “focused primarily on the [tele]phone

records seized in the case.” Id. The officers’ testimony, therefore, did not

overlap and, in turn, cannot be considered “tainted” to Appellant’s detriment.

Based upon the foregoing, we conclude that Appellant’s claim lacks merit.

In his fifth issue, Appellant contends that the trial court abused its

discretion in denying the jury’s request, during deliberations, to review

Daekwon Coleman’s tape-recorded interview with police. We disagree.

This Court explained:

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Pursuant to Pennsylvania Rule of Criminal Procedure 646,

“[u]pon retiring, the jury may take with it such exhibits as the

trial judge deems proper, except as provided in paragraph (C)

[delineating which materials the jury shall not be permitted to

have].” Pa.R.Crim.P. 646. “The recognized reason for

excluding certain items from the jury's deliberations is to

prevent the jury from placing undue emphasis or credibility on

the material sent back with the jury and de-emphasizing or

discrediting other items not in the room with the jury.”

Commonwealth v. Creary, 201 A.3d 749, 753 (Pa. Super.

2018).

When considering materials that are not expressly prohibited

under section 646(C), the question of “[w]hether an exhibit

should be allowed to go out with the jury during its deliberation

is within the sound discretion of the trial judge.”

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super.

2012). This decision “cannot be overturned absent an abuse of

discretion.” Id. See also Commonwealth v. Lane, 424 A.2d

1325, 1328 (Pa. 1981) (trial court will not be found to have

abused its discretion unless record discloses judgment

exercised is manifestly unreasonable, or result of partiality,

prejudice, bias, or ill-will).

Commonwealth v. Wallace, 244 A.3d 1261, 1272 (Pa. Super. 2021)

(parallel citations and emphasis omitted).

In this instance, the jury made various requests during deliberations.

First, the jury requested photographs that were admitted into evidence of the

scene of the murder, as well as those taken from Constance Kralick’s window.

Neither the Commonwealth nor the defense objected to the order allowing the

jury to view such evidence. Second, the jury asked to listen to Coleman’s

tape-recorded interview with the police, which was admitted into evidence, as

well as the transcripts of the interview, which were provided to the jury to

“follow along” with the interview. N.T. Trial, 6/10/22, at 73. The

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Commonwealth objected to providing the jury with such information, while the

defense did not. The exchange proceeded as follows.

[Commonwealth]: Your Honor, as it relates – I [am] going to

jump to the transcripts first, if you do [not] mind. As it relates

to the transcript, I think it was the Commonwealth’s

understanding all along that the transcript was prepared to aid

the jury in understanding the interview as it was being played

as the [court] and of course counsel knows in the previous trial

in this matter, the jurors expressed post-trial that they had real

difficulty understanding what was in that. So creating the

transcript . . . allow[ed the jury] to follow along. Having said

that, it was prepared for that purpose only. I believe, Your

Honor, you, specifically told them that was [not] the evidence,

that [it] was simply to aid in their understanding of the

evidence. The evidence was the taped conversation.

So speaking to that, the Commonwealth’s objection remains as

it relates that, that would be – frankly, it would be like asking

another witness to come in and repeat their testimony. So it

gives the possibility of it getting more influence or less. That

jury only wanting to listen to a portion of it, again, not the whole

thing, I do [not] believe it [is] appropriate in this circumstance

to turn over either of those things to the jury. It [is] their

recollection that controls.

***

[Defense counsel]: Your Honor, it [is] clear that this case is

going to hinge on the credibility of Daekwon Coleman. These

tape-recorded statements while somewhat mumbled and there

is some overtalking, he [is] not speaking a foreign language. I

do believe that the jurors, if listening to that tape recorded

statement, would be able to understand it in the absence of the

transcript.

The [c]ourt gave an instruction on prior inconsistent

statements, I believe, that it would aid the jury in their

deliberations. Clearly they [are] asking for it. I understand the

practice in this county. I can tell the [c]ourt from practicing in

several other counties in the Commonwealth, I [have] never

admitted exhibits of a prior tape-recorded statement of a

witness, when asked for, that request be rejected by the

[c]ourt. So I would ask that the recording, the [audio] be

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provided to the jury. They clearly want it. It clearly would aid

them in their deliberations.

Id. at 73-75

Thereafter, the trial court made the following statement:

[I will a]gain reference [the] section of the Pennsylvania Bench

Book of Criminal Proceedings, Third Edition, which says this is

in the discretion of the [c]ourt, and I would note under [S]ection

96.02, it says: In part, the Supreme Court has suggested that

the practice of allowing written and tape-recorded statements

to go with the jury should not be followed and they cite three

cases[,] Commonwealth v. Hall, 565 A.2d 144 [Pa. 1989];

Commonwealth v. Riggins, 386 A.2d 520 [Pa. 1978], and

Commonwealth v. Baker, 353 A.2d 406 [Pa. 1976].

However, there [is] another reference that a trial court’s

decision to allow the jury to listen to an audio tape of the

victim[’s] trial testimony during deliberations did not constitute

a violation of the expressed language of Pennsylvania Rule of

Criminal Procedure 646[(C)(1)], forbidding sending out any

portion of the transcript with the jury citing Commonwealth

v. Williams[,] 959 A.2d 1272 [Pa. 2008].

Based upon my reading of these sections, first of all, I agree

with the Commonwealth when I permitted [the] defense to give

the jurors a copy of the transcript of [] Coleman’s interview by

the police. I cautioned them that they should view this the

same way they viewed their notes that they took and . . .

specifically that their notes are not evidence, that it was an aid,

and should not have been considered evidence. I also in

listening to the tape and having the transcript in front of me

noted that[,] although it was done by an official court reporter,

it was [not] totally verbatim. There were words missing, not in

my opinion, that those words changed what the witness []

Coleman was saying[, it just] was [not one hundred percent]

accurate.

However, my view is that it should not go out under these rules

and I will not send either the transcript or the [audio] to the

jurors and I [will] note an exception by [defense counsel] to my

ruling.

Id. at 75-76 (emphasis added).

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The trial court did not abuse its discretion in denying the jury’s request

to listen to Coleman’s tape-recorded interview with police. Indeed, there is

no evidence of record that the court’s decision was “manifestly unreasonable,

or the result of bias, prejudice, ill-will or partiality.” Commonwealth v.

Bricker, 581 A.2d 147, 156 (Pa. 1990). To the contrary, it appears that the

court simply sought to ensure the jury’s determination of Coleman’s credibility

was based upon nothing more than their perception of his tape-recorded

interview with police as presented during trial. Id. at 155 (stating that it was

“beyond question that permitting the prosecution to send [plea agreements]

out with the jury during deliberations impermissibly bolstered [the witnesses]

credibility” which, in turn, violated the defendant’s right to a fair trial). As

such, no relief is due.

In his sixth issue, Appellant argues that the trial court erred in

permitting the Commonwealth to introduce “the conclusions found by forensic

scientists as to the gunshot residue [], DNA, fingerprint and serology tests

performed” through Detective Britton, as opposed to individuals who

conducted said tests or authored the various reports. Appellant’s Brief at 46.

Appellant claims that, in so doing, the trial court permitted Detective Britton,

a lay witness, to introduce “scientific evidence” in “direct violation of

Appellant’s constitutional rights.” Id. at 47.

We initially highlight the following undisputed facts to provide

background to Appellant’s claim. First, during Detective Britton’s testimony,

the Commonwealth asked him about the multiple expert reports, including a

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gunshot analysis report, a trace evidence report, two serology reports, a DNA

analysis report, and a latent fingerprint report. Second, in response to the

Commonwealth’s questions, Detective Britton read the conclusions of each of

the aforementioned reports to the jury, even though he was not the author of

said reports or proffered as an expert in such matters. See N.T. Trial, 6/8/23,

at 16-26. Third, the trial court admitted the following into evidence following

testimony by Detective Britton: (1) the two serology reports

(Commonwealth’s Exhibits 23 and 24); (2) the DNA analysis report

(Commonwealth’s Exhibit 25); and (3) the latent fingerprint report

(Commonwealth’s Exhibit 26). See id. at 38.

The trial court herein addressed Appellant’s claim of error in its 1925(a)

opinion. In so doing, the trial court admitted that “on the first day of trial,

Detective Britton read the conclusions of reports such as gunshot residue

analysis, serology, DNA analysis, and latent fingerprints.” Trial Court Opinion,

3/29/23, at 12. The trial court, however, reasoned that Appellant’s Sixth

Amendment right of confrontation was not violated because Detective Britton

did not read the “opinion[s] of [the various] expert[s]” to “establish the factual

or evidentiary basis for those reports.” Id. at 13. Instead, Detective Britton

read from the expert reports to “illuminate [to] the jury as to how [he]

proceeded in the investigation, and why he took the steps he did.” Id. Hence,

per the trial court, the expert reports were admitted for “a purpose other than

establishing the truth of the matter asserted,” namely, the investigative

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officer’s “course of conduct.” Commonwealth v. Dargan, 897 A.2d 496,

500 (Pa. Super. 2006).

Whether Appellant’s confrontation rights were violated is a pure

question of law; therefore, our standard of review is de novo and our scope of

review is plenary. Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013),

cert. denied, 572 U.S. 1135 (2014).6

This Court recently stated:

The Confrontation Clause applies to witnesses against the

accused — in other words — those who bear testimony. See

Crawford v. Washington, 541 U.S. 36, 54 (2004) (defining

testimonial statements as, inter alia, “ex parte in-court

testimony or its functional equivalent”). The focus of the

Confrontation Clause is testimonial hearsay. Crawford, 541

U.S. at 51-52. The Crawford Court made clear that the use of

testimonial statements is not barred by the Confrontation

Clause “for purposes other than establishing the truth of the

matter asserted.” Id. In fact, this Court has long-recognized:

“A statement admitted for a purpose other than establishing the

truth of the matter asserted — such as, in this case, the

investigating officers’ course of conduct — does not violate the

Confrontation Clause.” [] Dargan, 897 A.2d [at] 500[.]

Commonwealth v. Agnew, 299 A.3d 1001, 1007 (Pa. Super. 2023) (parallel

citations omitted).

In Commonwealth v. Brown, 185 A.3d 316 (Pa. 2018), our Supreme

Court provided an overview of the United States Supreme Court’s and

____________________________________________

6 Although the admission of expert testimony is subject to an abuse of

discretion standard of review, Commonwealth v. Watson, 945 A.2d 174,

176 (Pa. Super. 2008) (citation omitted), an error of law constitutes an abuse

of discretion. Nat'l Cas. Co. v. Kinney, 90 A.3d 747, 753 (Pa. Super. 2014)

(citation omitted). Thus, we ultimately employ a de novo standard of review.

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Pennsylvania court’s application of the Confrontation Clause in cases “in which

the challenged statements or affidavits took the form of scientific or forensic

reports or certificates.” Id. at 325. It stated:

In Melendez–Diaz [v. Massachusetts], the Court considered

a Massachusetts trial court's admission into evidence at a

criminal trial for drug trafficking of certificates reporting the

forensic analysis of the composition and quantity of substances

seized from the defendant. 557 U.S. 305 (2009). As required

by Massachusetts law, the certificates were sworn to before a

notary public and were offered into evidence at trial as prima

facie evidence the substance seized was a specific quantity of

cocaine. Id. at 308. The defendant objected on the basis of

Crawford, claiming the analyst who prepared the certificates

was required to testify if the certificates were to be admitted

into evidence. The objection was overruled, the defendant was

convicted of cocaine distribution and his conviction was upheld

on appeal. The High Court granted certiorari to determine

whether the defendant's Sixth Amendment rights had been

violated.

The Court held “[t]he ‘certificates’ are functionally identical to

live, in-court testimony, doing ‘precisely what a witness does

on direct examination,’ ” and thus were “testimonial” in nature.

Id. at 310–[3]11, quoting Davis[ v. Washington,], 547 U.S.

[822,] 830 [(2006)]. Moreover, the Court held admission of the

certificates of analysis without the author's live testimony

violated the Confrontation Clause because the certificates fell

into the “core class of testimonial statements” identified in

Crawford. Melendez–Diaz, 557 U.S. at 310. Significantly,

the certificates of analysis were “‘made under circumstances

which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial,’”

and under Massachusetts law, the “sole purpose” of the

certificates was to provide evidence about the composition and

quantity of the analyzed substance. Id. at 311, quoting

Crawford, 541 U.S. at 52.

The Court rejected the state's argument the certificates were

admissible without supporting testimony because they simply

reflected “the resul[t] of neutral, scientific testing”; the Court

held this argument was “little more than an invitation to return

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to our overruled decision in Roberts, which held that evidence

with ‘particularized guarantees of trustworthiness’ was

admissible notwithstanding the Confrontation Clause.”

Melendez–Diaz, 557 U.S. at 317, quoting Ohio v. Roberts,

448 U.S. [56,] 66 [(1980)]. The Court reiterated, “To be sure,

the Clause's ultimate goal is to ensure reliability of evidence,

but it is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of

cross-examination[.]” Id., quoting Crawford, 541 U.S. at

61-62.

In Bullcoming[ v. New Mexico, 564 U.S. 647 (2011)],

decided two years after Melendez–Diaz, the High Court

reviewed the admissibility of a [blood alcohol content (“BAC”)]

report authored and signed by a non-testifying analyst. The

report was introduced at trial for the substantive purpose of

proving the truth of the matter asserted by its out-of-court

author, namely, that the defendant had a BAC level of 0.21,

which was the central question at the defendant's trial, and was

dispositive of his guilt. The report was introduced through the

testimony of a surrogate analyst. The New Mexico Supreme

Court held the surrogate's testimony was adequate to satisfy

the requirements of the Confrontation Clause. The issue before

the High Court was “whether the Confrontation Clause permits

the prosecution to introduce a forensic laboratory report

containing a testimonial certification—made for the purpose of

proving a particular fact—through the in-court testimony of a

scientist who did not sign the certification or perform or observe

the test reported in the certification.” Bullcoming, 564 U.S. at

652. The High Court ruled the Confrontation Clause precludes

such practice, holding “the Clause does not tolerate dispensing

with confrontation simply because the court believes that

questioning one witness about another's testimonial statements

provides a fair enough opportunity for cross-examination.” Id.

at 662. [See also Commonwealth v. Bartin–Martin, 5 A.3d

363 (Pa. Super. 2010), appeal denied, 30 A.3d 486 (Pa. 2011)

(same)].

***

Shortly after Bullcoming, the High Court decided Williams v.

Illinois, [567 U.S. 50 (2012)] a divided opinion in which the

Court sought to further refine its articulation of the primary

purpose test under the alternate factual scenario envisioned

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only hypothetically in Bullcoming by Justice Sotomayor.

Williams involved a rape prosecution in which an expert

testified she obtained a DNA profile report from an independent

lab based on a semen specimen taken from a vaginal swab of

the victim. The lab report was not introduced into evidence.

The expert testified she compared the DNA profile contained in

the lab report to the defendant's recorded DNA profile and

concluded it was a match. The defendant challenged the

expert's testimony which relied upon the lab report on the basis

the report's admission without testimony from its author

violated the Confrontation Clause.

The plurality opinion, authored by Justice Alito, joined by Chief

Justice Roberts, Justice Kennedy and Justice Breyer, relied in

part on F.R.E. 703 and held, “[o]ut-of-court statements that are

related by the expert solely for the purpose of explaining the

assumptions on which that opinion rests are not offered for their

truth and thus fall outside the scope of the Confrontation

Clause.” Williams, 567 U.S. at 58. Alternatively, the plurality

applied the primary purpose test to conclude the underlying lab

report was itself non-testimonial, and thus beyond the reach of

the Confrontation Clause, because the report did not identify

the defendant, was not inherently inculpatory, and was created

“before any suspect was identified.” Id. The plurality opined

the “report is very different from the sort of extrajudicial

statements, such as affidavits, depositions, prior testimony,

and confessions, that the Confrontation Clause was originally

understood to reach.” Id. The report “was sought not for the

purpose of obtaining evidence to be used against petitioner,

who was not even under suspicion at the time, but for the

purpose of finding a rapist who was on the loose.” Id. The

plurality thus opined the lab report differed from the certificates

of analysis and BAC reports in Melendez–Diaz and

Bullcoming, which were created for the sole purpose of

providing evidence against a particular defendant and were

used to establish the truth of the matter asserted. The plurality

concluded the defendant's Sixth Amendment confrontation right

was not violated and explained:

This conclusion is entirely consistent with Bullcoming and

Melendez–Diaz. In those cases, the forensic reports

were introduced into evidence, and there is no question

that this was done for the purpose of proving the truth of

what they asserted: in Bullcoming that the defendant's

[BAC] exceeded the legal limit and in Melendez–Diaz

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that the substance in question contained cocaine. Nothing

comparable happened here.

Id. at 79.

***

Turning to our own jurisprudence, this Court addressed whether

the admission of a toxicology report in a DUI case violated the

defendant's rights under the Confrontation Clause in Yohe. The

defendant's blood sample was tested three times by several

analysts from one lab using two different methods, as per

routine lab practice. Dr. Blum, a toxicologist, and the assistant

lab director responsible for the lab's quality assurance controls,

received the raw data from the analysts who performed the

tests, reviewed the demographic information, verified the

appropriate tests were conducted, evaluated the chain of

custody, and compared the individual test results to arrive at a

BAC result which he set forth in a toxicology report summarizing

the test results. Yohe, 79 A.3d at 523–[5]24. Dr. Blum signed

the report electronically, certifying its content and his own

participatory role in reviewing the data and ensuring its

accuracy. Id. at 524. At Yohe's trial, the report showing his

BAC to be .159 was admitted into evidence through Dr. Blum's

expert testimony. Yohe objected to the admission of the report

and to Dr. Blum's testimony on the basis they violated his right

to confrontation because the specific lab technicians who

actually performed the tests did not testify. The objections

were overruled, and Yohe was convicted of DUI and sentenced.

On post-sentence motions, however, the trial court held the

toxicology report was a testimonial statement requiring

production at trial of the analysts who actually performed the

underlying tests so that the defendant could confront them. Id.

at 525–[5]26. The Commonwealth appealed to the Superior

Court, arguing Dr. Blum was in fact the analyst who derived the

actual BAC result from his comparison of the readings of the

underlying tests conducted under differing methods. The

Superior Court agreed Dr. Blum (rather than the original lab

technicians) was the witness the defendant had a right to

confront, and reversed the grant of a new trial.

On appeal, this Court analyzed the relevant precedent from the

High Court, viewing “with caution” the “fragmented” decision in

Williams where there was no single rationale to explain the

result which garnered a majority. [Yohe,] 79 A.3d at 536. …

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[Ultimately,] this Court considered whether Dr. Blum's

toxicology report was testimonial by comparing it to “the facts

of the testimonial statements considered in Melendez–Diaz

and Bullcoming[,]” id. at 537, and easily concluded the

toxicology report was testimonial. Id. The Court then

considered whether Dr. Blum was the appropriate analyst to

appear at trial for purposes of protecting Yohe's rights under

the Confrontation Clause. The Court noted Dr. Blum had

extensive supervisory involvement in utilizing the information

supplied by his subordinates and highlighted his unique role as

the only individual who engaged in the critical comparative

analysis of the results of the various tests performed to

determine the defendant's actual BAC. Id. at 540. The Court

surmised the facts distinguished the case from Bullcoming

where the surrogate witness had no opinion concerning the

defendant's BAC, “[r]ather the testifying witness merely read

the analyst's report into evidence and offered no independent

opinion about the defendant's [BAC].” Id. at 541, citing

Bullcoming, 564 U.S. at 662. Thus, the Yohe Court

determined the defendant's rights under the Confrontation

Clause were not violated because the “author” of the toxicology

report was the analyst who testified at trial and was available

for cross-examination. Id.

Id. at 325–329 (parallel citations omitted).

In Brown, supra, our Supreme Court addressed whether the admission

of an autopsy report violated the defendant’s rights under the Confrontation

Clause when the report’s author did not appear as a witness during trial. In

that case, Darnell Brown was charged with, inter alia, murder, following the

shooting death of the victim, Cory Morton. Importantly, following Morton’s

death, Dr. Marion Osbourne of the Philadelphia Medical Examiner’s Officer

performed an autopsy and prepared a report detailing his findings. By the

time of Brown’s trial, however, Dr. Osbourne “was no longer employed by the

Medical Examiner’s Officer” and, as such, “he was not called as a witness.”

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Id. at 318. Instead, over defense counsel’s objection, Dr. Osburne’s “report

of the victim’s autopsy was admitted into evidence” and, the Commonwealth

called Dr. Albert Chu of the Philadelphia Medical Examiner’s Officer, “who had

not been present at the autopsy, to provide expert testimony based on the

portions of the autopsy report as well as autopsy photographs.” Id. at

318-319. After a jury convicted Brown of third-degree murder, as well as

other offenses, he appealed, “arguing the trial court erred by permitting Dr.

Chu to testify about the victim’s cause and manner of death based on Dr.

Osbourne’s autopsy report.” Id. at 320.

On appeal, the Supreme Court first considered “whether the challenged

autopsy report . . . was testimonial in nature such that Brown’s Sixth

Amendment right to confront the witness against him was violated by its

admission as trial.” Id. at 329. The Court noted that, in Pennsylvania,

autopsy reports are required “in all cases of sudden, violent, and suspicious

deaths, or deaths by other than natural causes” to “determine whether the

death occurred as the result of a criminal act.” Id. It further noted that the

coroner or medical examiner authoring the report must “consult and advise

the local district attorney to the extent practicable.” Id. Based upon the

foregoing, the Court concluded that the autopsy “in this case was testimonial.”

Id. The Court further concluded that, “under the Crawford, Melendez-Diaz,

Bullcoming and Yohe precedents, the report could properly be introduced

into evidence without Dr. Osbourne's accompanying testimony only if Dr.

Osbourne was unavailable and Brown ‘had a prior opportunity to

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cross-examine’ him.” Id. (citation omitted). Because Brown did not have

such an opportunity, the Court summarily concluded that “the admission of

Dr. Osbourne’s report into evidence at Brown’s trial was error.” Id. The

Court, however, went on to analyze and determine that the trial court’s error

was “harmless” because the “autopsy report was merely cumulative of Dr.

Chu’s independent opinion regarding the cause of death which was properly

admissible.” Id. at 330.

We are troubled by the circumstances of this case, as well as the trial

court’s reasoning. It is important to note that, not only did Detective Britton

read, verbatim, the conclusions of multiple expert reports, the trial court also

admitted four of the expert reports (two serology reports, the DNA analysis

report, and the latent fingerprint report) into evidence following Detective

Britton’s testimony, even though he did not author said reports. To the

contrary, Tina R. Smith of the Pennsylvania State Police Bureau of Forensic

Services Greensburg Laboratory authored both serology reports

(Commonwealth’s Exhibits 23 and 24); Timony Gavel of the Pennsylvania

State Police Bureau of Forensic Services Greensburg Laboratory authored the

DNA analysis report (Commonwealth’s Exhibit 25); and Randy J. Mocello of

the Pennsylvania State Police Bureau of Forensic Services Greensburg

Laboratory authored the latent fingerprint report (Commonwealth’s Exhibit

26). It is almost beyond question that each of the respective expert reports

fall “into the ‘core class of testimonial statements’” because they were “made

under circumstances which would lead an objective witness reasonably to

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believe that the statement would be available for use during at a later trial”

and were “functionally identical to live, in-court testimony.” Brown, 185 A.3d

at 325 (citation omitted). Hence, under Crawford, Melendez-Diaz,

Bullcoming, Yohe, and Brown, the expert reports could only be introduced

into evidence without the accompanying testimony of Tina R. Smith, Timothy

Gavel, and Randy J. Mocello if they were unavailable and Appellant had a prior

opportunity to cross-examine them. There is no indication that any of the

aforementioned individuals were unavailable or that Appellant previously

cross-examined them. Hence, the admission of the serology reports, the DNA

analysis report, and the latent fingerprint report during Detective Britton’s

testimony appears to be an error.

We note that, in justifying its decision, the trial court found that the

experts’ conclusions, as relayed by Detective Britton, were not offered for the

truth of the matter asserted, but to explain the officer’s “course of conduct.”

Dargan, 897 A.2d at 500. In our view, the trial court’s rationale stretches

the course of conduct jurisprudence beyond its reach. For example, Detective

Britton did not simply relay the substance of the reports to explain the course

of his investigation, he offered verbatim recitation of the reports and,

ultimately, the trial court admitted the reports without testimony from their

specific authors. The trial court, therefore, failed to recognize that, unlike

previous case law, Detective Britton’s testimony involved express review of

each conclusion prepared by highly qualified individuals – experts - not, for

example, information provided by a confidential informant. See Agnew, 299

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A.3d at 1007-1008 (holding that the Commonwealth presented text message

between the confidential informant and the appellant “to explain [an

investigator’s] course of conduct” and, as such, “the texts were admitted, not

for their truth” and the appellant’s “claim of a Confrontation Clause violation

[] merit[ed] no relief”); see also Dargan, 897 A.2d at 499-502 (same).

Hence, a level of reliability, formality and expertise accompanied Detective

Britton’s testimony due to its very subject matter. Moreover, the trial court

completely ignored the fact that the various reports, prepared by different

experts, were admitted into evidence following the testimony of Detective

Britton, a lay witness, who could not be cross-examined about the contents of

the documents, a key procedural safeguard guaranteed by the Confrontation

Clause.

Notwithstanding the foregoing, we are constrained to conclude that

Appellant is not entitled to relief because he failed to raise an objection to

Detective Britton’s testimony at trial. Indeed, a detailed review of the certified

record reveals the following.

On the first day of Appellant’s trial, Detective Britton testified in the

morning and was recalled in the afternoon. During his redirect examination,

Detective Britton initially explained that, on the night of the murder, officers

arrested Colemen “approximately six blocks away” from the crime scene,

wearing a red sweatshirt, with a firearm. N.T. Trial, 6/8/23, at 12. The

officers then took Coleman in for questioning and proceeded to investigate

Coleman’s potential involvement. To do so, Detective Britton testified that “a

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gunshot residue kit was performed on [] Coleman’s hands.” Id. at 13-14.

Then, Detective Britton was provided with a trace evidence report

(Commonwealth’s Exhibit 22), issued from the Pennsylvania State Police

Bureau of Forensic Services in Harrisburg, Pennsylvania, and authored by

Albert T. Lattanzi, Jr. Id. at 16. Upon questioning, Detective Britton read the

“result or [] conclusion of [the] report to the jury.” Id. At that time, defense

counsel objected, stating:

Your Honor, I can [not] cross-examine this witness on this

information if this witness’ position is he believed based on his

investigation that –

[] I would [not] be able to specifically reference [] that

conclusion because he is not an expert. He can say based on

my investigation I believe A, B, and C so I did X, Y, and Z, but

for him to specifically reference an expert report when he [is]

not an expert, I can [not] cross-examine him based on those

findings because he is not an expert.

Id. at 17-18. After a brief discussion, counsel withdrew his objection and

stated that “[a]s long as [it is] made clear through the questioning that

[Detective Britton] is not an expert and this was [not] his conclusion . . . I

[am] fine with it.” Id. at 18. Thereafter, Detective Britton’s examination

continued wherein he read into evidence the conclusions of the two serology

reports, the DNA analysis report, and the latent fingerprint report. See id. at

20-24. Appellant’s counsel did not object to any of the questions raised

regarding these expert reports, nor did he object when Detective Britton read

the conclusions of these expert reports.

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Finally, Detective Britton was asked about a report authored by Gesuele

Burello, a corporal with the firearm and tool mark division of the Greensburg

Regional Crime Lab. More specifically, the Commonwealth asked Detective

Britton the following question: “Detective, in your experience[,] is it unusual

to not have a DNA result or a fingerprint result from a lab analysis?” Id. at

25. At that time, defense counsel objected saying that the question “[c]all[ed]

for testimony from an expert.” Id. A side bar conversation was held and

defense counsel again stated that his “standing objection [was] that [the

answer to the Commonwealth’s question] require[d] expert testimony.” Id.

at 27. The court then instructed the Commonwealth to rephrase the question.

Id. The Commonwealth obliged and no subsequent objection was raised. Id.

Later, the trial court admitted the two serology reports (Commonwealth’s

Exhibits 23 and 24), the DNA analysis report (Commonwealth’s Exhibit 25)

and the latent fingerprint report (Commonwealth’s Exhibit 26) into evidence.

It is apparent, therefore, that Appellant’s counsel only objected twice

during Detective Britton’s testimony. In particular, counsel objected when

Detective Britton read the conclusion of the trace evidence report. Counsel,

however, ultimately withdrew this objection and proceeded to allow Detective

Britton to read the conclusions of the serology reports, the DNA analysis

report, and the latent fingerprint report. Then, Appellant’s counsel lodged

another objection during Detective Britton’s discussion of the firearm and tool

mark report, but only on the basis that the question posed called for an expert

opinion. At no time did Appellant’s counsel raise a specific objection rooted in

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a claim that Detective Britton’s testimony regarding the various conclusions

of the forensic or scientific reports violated his constitutional rights, i.e., the

Confrontation Clause of the Sixth Amendment of the United States’

Constitution. Appellant’s counsel also did not object to the trial court’s

admission of the two serology reports, the DNA analysis report, or the latent

fingerprint report into evidence. See N.T. Trial, 6/8/23, at 38.7 Appellant

admitted as such in his post-sentence motion. See Appellant’s Amended

Post-Sentence Motions Nunc Pro Tunc, 11/23/22, at 3 (arguing that trial

counsel was “ineffective for failing to lodge a continuing objection to Detective

Britton being permitted to testify regarding the conclusions of the forensic

evidence when he was not qualified as an expert in the field of forensics”).

Accordingly, this issue is waived. See Commonwealth v. Konias, 136 A.3d

1014, 1021-1022 (Pa. Super. 2016) (“‘In order to preserve an issue for

review, a party must make a timely and specific objection at trial.’ Moreover,

‘[a] party complaining, on appeal, of the admission of evidence in the court

below will be confined to the specific objection there made.’”) (citations

omitted); Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014)

(“[T]he failure to make a timely and specific objection before the trial court at

the appropriate stage of the proceedings will result in waiver of the issue.”).

____________________________________________

7 We note that the Commonwealth did not introduce into evidence the trace

evidence report (Commonwealth’s Exhibit 22) or the firearm and tool mark

report during Detective Britton’s testimony (Commonwealth’s Exhibit 27).

Instead, the Commonwealth presented the expert testimony of the authors of

both reports the next day and, during their expert testimony, introduced their

reports into evidence. See N.T. Trial, 6/9/23, at 4-45.

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In his seventh issue, Appellant claims that the trial court committed an

error of law by failing to issue a limiting instruction after Detective Britton

“made various statements during his testimony” discussing “the credibility of

the Commonwealth’s [] witness, Daekwon Coleman.” Appellant’s Brief at 48.

Appellant, however, failed to request a limiting instruction following Detective

Britton’s testimony regarding Coleman’s credibility. Appellant admitted to this

failure in his post-sentence motion. See Appellant’s Amended Post-Sentence

Motions Nunc Pro Tunc, 11/23/22, at 3-4 (arguing that trial counsel was

ineffective for failing to request a limiting/curative instruction and/or mistrial

when Detective Britton testified about the witness Coleman’s credibility after

said statements were entered on the record during trial). As such, this issue

is waived. See Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004)

(“Failure to request a cautionary instruction upon the introduction of evidence

constitutes a waiver of a claim of trial court error in failing to issue a cautionary

instruction.”).

In his eighth issue, Appellant argues that the trial court erroneously

failed to issue a “No Adverse Inference Charge” to the jury at the close of trial

after Appellant “did not testify or call any witness” and, as such, “did not

provide a defense to the charges for which he was on trial.” Appellant’s Brief

at 53. A review of the record, however, reveals that Appellant did not raise

an objection to the trial court’s jury instructions, which Appellant admitted in

his post-sentence motion. See Appellant’s Amended Post-Sentence Motions

Nunc Pro Tunc, 11/23/22, at 4-5 (arguing that trial counsel “was ineffective

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for failing to request a No Adverse Inference Jury Instruction in violation of

[Appellant’s] constitutional rights”). As such, this claim is also waived. See

Commonwealth v. Shamsud—Din, 995 A.2d 1224, 1226 (Pa. Super. 2010)

(reiterating that failure to object to a jury instruction constitutes waiver of a

challenge to an error in the instruction).

In his final issue, Appellant claims that the trial court committed an error

of law by “fail[ing] to conduct a colloquy with Appellant . . . regarding his

decision on whether to testify or call character witnesses.” Appellant’s Brief

at 54. Appellant, however, neither objected to the trial court’s failure nor

requested the trial court to engage in an on-the-record colloquy. Appellant

admitted to this failure in his post-sentence motion. See Appellant’s Amended

Post-Sentence Motions Nunc Pro Tunc, 11/23/22, at 5 (arguing that trial

counsel “was ineffective for failing to request the [t]rial [c]ourt [to] conduct a

colloquy with [Appellant] regarding his decision to testify and call a character

witnesses”). Thus, this issue is waived. See Commonwealth v. Duffy, 832

A.2d 1132, 1137 (Pa. Super. 2003) (holding that because the appellant did

not object to the trial court’s failure to conduct a on-the-record colloquy

regarding the appellant’s waiver of his right to testify, his claim of error was

waived on appeal).

Because Appellant’s first five claims lack merit, and because issues six

through nine were not properly preserved before the trial court, Appellant is

not entitled to relief in this direct appeal. Accordingly, we affirm Appellant’s

judgment of sentence.

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Judgment of sentence affirmed.

Judge King joins.

Judge Lane files a Concurring Memorandum which Judge King joins.

DATE: 06/18/2024

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