Com. v. Roper, A.

J-S21042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ANTWAIN ROPER :

:

Appellant : No. 875 EDA 2023

Appeal from the Judgment of Sentence Entered March 10, 2023

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

No(s): CP-51-CR-0001715-2020

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 24, 2024

Antwain Roper (Appellant) appeals from the judgment of sentence

entered following his convictions of first-degree murder and possessing an

instrument of crime (PIC), and two violations of the Uniform Firearms Act

(VUFA)1: firearms not to be carried without a license and carrying firearms in

public in Philadelphia (collectively, the VUFA violations). 2 We affirm.

The trial court described the facts underlying Appellant’s convictions as

follows:

On May 24, 2019, shots were fired in the area of 2525 South 71 st

Street, [Philadelphia, Pennsylvania,] where police responded and

took the victim[,] Naeem Reid [(Reid, victim, or decedent),] to

Penn Presbyterian Hospital, where he later died from multiple

gunshot wounds. (N.T. 3-7-2023, pp. 46-50). Surveillance

____________________________________________

1 See 18 Pa.C.S.A. §§ 6101-6128.

2 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907.

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[video] showed a silver Infinity fleeing from the scene, [with

heavily tinted windows,] and damage to the driver[-]side bumper.

Five days later, that silver Infinity was found abandoned at 8500

Gibson Place[, Philadelphia]. (N.T. 3-7-2023, pp. 58-60).

Surveillance videos also showed Reid walking down the street …

when the silver Infinity drove past heading the other direction[.]

[The vehicle] appeared again following Reid’s path until it pulled

up, [Appellant] exited the vehicle, sho[t] Reid and then got back

into the car and fleeing. (N.T. 3-7-2023, pp. 123-147). The

vehicle had previously been registered to [Appellant], and

although he had changed the registration, evidence indicated that

he was still the owner of the vehicle but had changed the

registration information to someone whose identity had been

stolen. (N.T. 3-9-2023, pp. 11-12, 16-20). [Appellant’s] phone

[GPS data] also showed that he was in the area of the shooting

when it took place, and then immediately after in the area where

the car was recovered. (N.T. 3-8-2023, pp. 73-115).

A warrant was executed for [Appellant’s] property and an arrest

warrant issued. After an incident in the City of Chester, where

[Appellant] was apprehended, the vehicle he had been in was

searched, and a key fob to an Infinity was found and turned over

to Detective [Frank] Mullen, who was conducting the investigation

into Reid’s murder. (N.T. 3-8-2023, pp. 12-22). The key fob was

later determined to be the key to the Infinity that … [was] used in

the murder of [] Reid. (N.T. 3-9-2023, pp. 38-39).

Trial Court Opinion, 9/5/23, at 2-3 (paragraph break added).

Police arrested Appellant on September 17, 2009. As the trial court

explained,

A jury trial was held from March 6th through the 10th, 2023, with

[Appellant] being convicted of murder of the first degree and the

remaining charges. Appellant was sentenced to life imprisonment

without the possibility of parole for murder, [and] a concurrent

two to five years’ imprisonment for the remaining charges. Post-

sentencing motions were filed and subsequently denied.

[Appellant’s c]ounsel was permitted to withdraw, and new counsel

[was] appointed….

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Id. at 1. Appellant timely appealed.3 Appellant and the trial court have

complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

[1.] Was the evidence presented by the Commonwealth

insufficient and against the weight of the evidence regarding the

Appellant’s convictions for: Murder Of The First Degree [];

Firearms Not To Be Carried W[ithout a] License []; Carry[ing]

Firearms Public In Phila[delphia] []; and [PIC] …?

[2.] Did the Trial Court improperly admit witness Nicole Wright’s

[(Ms. Wright)] testimony regarding the poor relationship history

and ill will between Appellant and [Reid], at the time of [Reid’s]

death, where such testimony was based on inadmissible hearsay

and was not based on the witness’s personal knowledge[?]

[3.] Is Appellant entitled to a new trial where the Trial Court

violated Appellant’s Sixth Amendment right to a public trial and

committed structural error by precluding Appellant’s family from

jury selection[,] where the court did not find an overriding interest

to enforce a total closure of the courtroom, did not explore[] more

reasonable alternatives[,] and failed to place adequate reasoning

on the record?

[4.] Did the Trial Court improperly admit Medical Examiner’s

photographs D2, D7, D11 and D12[,] where said photographs

were timely objected to, were inflammatory and were not of

essential evidentiary value, and where D11 had previously been

precluded by the Trial Court?

Appellant’s Brief at 7-8 (issues reordered).

____________________________________________

3 Although Appellant purportedly appealed from the order denying his post-

sentence motions, an appeal actually lies from the judgment of sentence. See

Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)

(en banc) (“In a criminal action, appeal properly lies from the judgment of

sentence made final by the denial of post-sentence motions.” (citation

omitted)). The caption has been changed accordingly. In addition, this Court

has dismissed Appellant’s duplicative appeal at No. 1069 EDA 2023.

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Appellant first challenges the sufficiency and weight of the evidence

underlying his conviction of first-degree murder and his VUFA convictions. Id.

at 60-61. Appellant argues the evidence is

entirely circumstantial, is in contradiction to the facts, in

contravention to human experience and the laws of nature, [and]

as such[,] it is insufficient as a matter of law.

Id. at 62. Appellant directs our attention to the eyewitness testimony of Eric

Pane (Pane), “who describe[d] the shooter as a black male, 5’6” – 5’8”, stocky

build, in all black clothing.” Id. Appellant asserts he does not match the

description given by this sole eyewitness. Id. Appellant directs our attention

to evidence that Pane failed to identify Appellant in a photo lineup or in person.

Id. at 62-63.

Appellant argues the victim failed to identify Appellant as his assailant

prior to his death. Id. at 63. Appellant states,

[t]his is significant in the context of when we consider [Ms.]

Wright’s testimony that Appellant and [Reid] knew one another,

[they] had history[,] and there was ill will at the time of the

shooting. Decedent was able to talk to Officer Brown, told

[O]fficer Brown he had been shot in the back, [and] apparently

knew the Appellant, yet did not identify Appellant as the shooter.

Id.

Appellant additionally disputes the cell phone GPS location analysis,

arguing it is “confusing, misleading, contradictory to itself and points to an

individual other than Appellant as the suspect.” Id. at 63-64. Appellant points

out that the T-Mobile phone numbers ending in 0483 and 1617 are registered

to “Michael Davis” (Davis), who lives near the crime scene. Id. at 64.

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According to Appellant, these phone numbers connected to cell towers within

the area where the silver Infinity was abandoned. Id. Notwithstanding,

Appellant argues, Davis was not investigated as a suspect. Id.

Appellant also challenges the Commonwealth’s evidence connecting him

to the cell phone number ending in 0483. Id. Appellant points out that the

Commonwealth’s evidence “simply places [that phone number] within

approximately one square mile of the crime scene, at the time of the shooting,

and within two square miles” of the abandoned Infinity. Id. According to

Appellant, the evidence failed to establish “who is using the phone at the time

of the analyzed calls.” Id. at 64-65.

Appellant directs our attention to another suspect, Damon Holly (Holly).

Id. at 65. Appellant asserts the silver Infinity was registered to and insured

by Holly. Id. According to Appellant, although Holly was informed of the

possible theft of his identity, he declined to pursue an investigation as to the

theft. Id. Appellant further asserts Holly was not subjected to DNA testing.

Id. at 66.

Appellant points out police never recovered the murder weapon. Id. at

67. Appellant directs our attention to evidence that the firearm shells and

casings

recovered from Appellant’s home were tested and compared

against the [shells and casings] recovered at the scene[,] and it

was determined they were not from the same gun that was used

in Decedent’s murder. It was also determined that the gun (never

recovered) belonging to the Glock 26 gun box [that police

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recovered from Appellant’s home] could not have been the murder

weapon.

Id. at 66-67.

Regarding his VUFA convictions, Appellant argues that the certificate of

non-licensure, presented by the Commonwealth, is not sufficient to sustain

his convictions. Id. at 69. He argues,

any determination that [Appellant] possessed and/or carried a

firearm is entirely circumstantial, is in contradiction to the facts,

[and] in contravention to human experience and the laws of

nature[;] as such, it is insufficient as a matter of law….

Id. Appellant emphasizes police never recovered the murder weapon. Id. at

70-71.

Because a determination of evidentiary sufficiency presents a question

of law,

our standard of review is de novo and our scope of review is

plenary. In reviewing the sufficiency of the evidence, we must

determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient

to prove every element of the offense beyond a reasonable doubt.

[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. It is within the

province of the fact-finder to determine the weight to be accorded

to each witness’s testimony and to believe all, part, or none of the

evidence. The Commonwealth may sustain its burden of proving

every element of the crime by means of wholly circumstantial

evidence. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the fact-

finder.

Commonwealth v. Rosario, 307 A.3d 759, 764-65 (Pa. Super. 2023)

(citation omitted).

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The Pennsylvania Supreme Court has identified the elements of first-

degree murder as follows: “(1) a human being was unlawfully killed; (2) the

defendant was responsible for the killing; and (3) the defendant acted with

malice and a specific intent to kill.” Commonwealth v. Martin, 101 A.3d

706, 718 (Pa. 2014) (citing 18 Pa.C.S.A. § 2502(a)). Circumstantial evidence

may prove specific intent and malice where a defendant uses a deadly weapon

on a vital part of the victim’s body. Commonwealth v. Hicks, 156 A.3d

1114, 1124 (Pa. 2017).

The Crimes Code prohibits carrying a firearm without a license:

[A]ny person who carries a firearm in any vehicle or any person

who carries a firearm concealed on or about his person, except in

his place of abode or fixed place of business, without a valid and

lawfully issued license under this chapter commits a felony of the

third degree.

18 Pa.C.S.A. § 6106(a)(1). Section 6108 of The Crimes Code provides that

[n]o person shall carry a firearm, rifle or shotgun at any time upon

the public streets or upon any public property in a city of the first

class unless

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b)

of this title (relating to firearms not to be carried without a

license).

Id. § 6108.

Finally, a person commits the crime of PIC as a first-degree

misdemeanor “if he possesses any instrument of crime with intent to employ

it criminally.” Id. § 907(a).

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In its September 5, 2023, opinion, the trial court reviewed the trial

evidence in a light most favorable to the Commonwealth as verdict winner.

According to the trial court, the victim’s mother, Ms. Wright, testified

that she knew [Appellant] and that her and [Appellant’s] families

“have history” and that at the time of Reid’s murder, [Appellant]

and Reid didn’t have a good relationship. (N.T. 3-7-2023, pp. 42-

45).

Trial Court Opinion, 9/5/23, at 5. The Commonwealth presented the

testimony of Philadelphia Police Officers Harvel Brown and Theofanis Plialis.

As described by the trial court,

[Officer Brown] testified that on May 24, 2019, he responded to a

radio call about shots fired, and upon arriving on the scene, saw

a male on the highway in the northbound lane of 71 st Street. The

male, later determined to be [Reid,] told Officer Brown that he

was shot in the back. Officer Brown … put [Reid] in his patrol car

to rush him to Penn Presbyterian Hospital. (N.T. 3-7-2023, pp.

46- 50).

… Officer [] Plialis testified that on May 24, 2019, he

responded to the shooting in the area of 2525 South 71 st Street,

where the evidence [known to him] at the time was that a silver

Infinity was seen fleeing from the scene, and officers were

checking surveillance. He could see on the surveillance [video]

that the Infinity had a heavy [window] tint, and damage to the

driver[’s] side bumper. Five days later, Officer Plialis found the

car at 8500 Gibson Place, a place known [to police as a location]

where stolen vehicles are [abandoned]. (N.T. 3-7-2023, pp. 58-

60).

Id. at 5-6.

The trial court further summarized,

Officer Dennis Moore from the Crime Scene Unit testified

that he was [the] officer who processed the crime scene, taking

photographs and collecting evidence[.] … Officer Theresa Weaver

of the Crime Scene Unit was later assigned to process the 2010

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silver Infinity that was brought into the police garage once it was

found. (N.T. 3-7-2023, pp. 68-77, 85-95).

Assistant Medical Examiner Victoria Sorokin, M.D. [(Dr.

Sorokin)], an expert in the area of forensic pathology[], … testified

as to the autopsy [report]. Reid was pronounced dead at 3:25

a.m. on May 25, 2019, his cause of death being multiple gunshot

wounds[,] and the manner of death was homicide. Reid’s injuries

included two gunshot wounds to the head, three gunshot wounds

to the back, gunshot wounds to his right and left buttocks, and

gunshot wounds to both the right and left forearms. Dr. Sorokin

testified that she estimates that the decedent was shot nine times,

with six bullets [that] were recovered during the autopsy. (N.T.

3-7-2023, pp. 102-117).

Id. at 6.

The trial court described testimony concerning the video evidence

collected by police:

Detective Thorsten Lucke of the Homicide Unit[, who was qualified

as] an expert in video recovery and analysis[, played for the jury]

videos taken from multiple surveillance cameras around the crime

scene, showing Reid walking in the area, and the silver Infinity, in

the area before the shooting took place. Detective Lucke

[presented] the video images of the vehicle, which showed distinct

damage to the car, along with photographs of the [silver Infinity]

that was recovered and processed during this investigation,

showing the same damage. Video was shown [that depicted] Reid

walking down the street and the [silver Infinity] driving past[,]

going the opposite direction when they pass each other. The

vehicle then comes back into view driving in the same direction as

Reid, with the footage showing the vehicle following Reid’s path.

The footage then shows the car pull up when [Appellant]

exits the vehicle, runs over, shoots Mr. Reid and then runs

back to the driver’s side of the car before the car drives off.

The time period between when the [silver Infinity] first passes

Reid to when the shooting began is approximately 5 minutes.

(N.T. 3-7-2023, pp. 123-147).

Id. (emphasis added).

Regarding the firearms evidence,

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Officer Robert Stott of the Firearms Identification Unit testified

that there were 10 fired cartridge cases and six bullet specimens

collected in this case, which were tested, and it was determined

that the gun used in this case was a 9mm Luger. (N.T. 3-8-2023,

pp. 49-56).

Id. at 8.

The trial court summarized the testimony describing Appellant’s

apprehension by police:

Detective James Simpkins testified that on September 12, 2019,

[Appellant] was arrested in the City of Chester after a vehicle

pursuit the day before. A blue Subaru had struck an Upland Police

Officer, and that vehicle was chased to the City of Chester. Both

occupants of the car fled, and [Appellant], the passenger in that

car, was apprehended and arrested. When the blue Subaru

was searched, the keys to an Infinity were found in the

glove box of that car, and were turned over to Detective Mullen,

who was investigating the murder of [] Reid. (N.T. 3-8-2023, pp.

12-22).

Id. at 7 (emphasis added).

[Detective Mullen] explained [that] when the silver Infinity was

recovered, it had a license plate that was registered to [] Holly.

However, the paperwork found in the glove compartment

had vehicle service receipts from Infinity of Ardmore with

[Appellant’s] name listed, and the license plate that was

registered to [Appellant] for the silver Infinity was found in

the trunk of the car. (N.T. 3-9-2023, pp. 11-12, 16-20). []

Holly was the victim of theft a few years before[,] where his

personal identification information was stolen[;] when contacted

by Detective Mullen, [Holly] stated that he did not have a vehicle

registered to him, and when shown the registration card, [Holly]

stated that it was not his signature. Detective Mullen stated that

he believed [Appellant] was the owner of the silver Infinity, and

suggested to [] Holly that he was the victim of identity theft. (N.T.

3-9-2023, pp. 12, 36, 61-64, 76). Detective Mullen reiterated

that the cell phone analysis showed that [] Holly was in a separate

section of [Philadelphia] at the time of the shooting, while

[Appellant] was in the area of the murder [and] where the vehicle

was recovered.

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Along with all the other evidence collected, including the

paperwork from Infinity of Ardmore, the evidence indicated that

[Appellant] was still in possession of the Infinity, and a search

warrant was obtained for [Appellant’s] residence, and executed

on June 14, 2019. (N.T. 3-9-2023, pp. 24-28). After [Appellant]

was arrested in the City of Chester, Detective Mullen was informed

that when he was arrested, [Appellant] was a passenger in a blue

Subaru, and recovered from that blue Subaru was a key fob for

an Infinity vehicle. The key fob was turned over to Detective

Mullen[,] and it was later confirmed that the Infinity key fob was

for the Infinity [police] had confiscated in this case. (N.T. 3-9-

2023, pp. 38-39).

Id. at 8-9 (paragraph break added).

The trial court summarized the Commonwealth’s trial evidence of prior

police interactions involving same 2021 silver Infinity:

Officer Ernie Williams testified that approximately eleven months

prior to Reid’s murder, on June 21, 2018, he [effectuated a traffic]

stop of a 2010 Infinity that was owned by [Appellant]. (N.T. 3-8-

2023, pp. 39-44). Officer Jonathan Stralo testified that on August

4, 2019, he also stopped a silver Infinity, [] which [Appellant] was

driving[,] and noted damage to the driver’s side rear bumper

quarter panel. (N.T. 3-8-2023, pp. 45-48). Police Officer Greg

Coppola testified that he also made a [traffic] stop of [Appellant]

on August 12, 2019, who was driving a 2010 silver Infinity, which

was registered to [Appellant]. (N.T. 3-8-2023, pp. 67-68).

Id. at 7-8.

As explained by the trial court, the Commonwealth additionally

presented cellular location data from Appellant’s phone:

Detective James Dunlop, an expert in the area of historical cell

site analysis, testified that he took the data from outgoing and

incoming calls on [Appellant’s] phone to establish that around the

time of the shooting, [Appellant] was in the area of the crime

scene and, shortly thereafter, near the area where the silver

Infinity was later recovered. Several of the phone calls [Appellant

placed] were with Michael Davis, whose phone entered the same

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geographical area as [Appellant’s] phone, also in the area

consistent with where the car was later recovered. Detective

Dunlop also testified that he was asked to search the data for a

phone number for [] Holly, and that he found that [Holly’s phone]

was far away from the crime scene at that time. (N.T. 3-8-2023,

pp. 73-115).

Id. at 8. The trial court’s recitation of the evidence is supported by the record.

The above-stated evidence is sufficient to sustain Appellant’s conviction

of first-degree murder. The Commonwealth presented surveillance video of

Appellant exiting the silver Infinity, shooting Reid, and driving away from the

scene. Paperwork found inside the Infinity listed a license plate number

registered to Appellant, and service receipts in Appellant’s name. Moreover,

police later recovered a key fob for the Infinity from the glove compartment

of a vehicle in which Appellant was a passenger. The Commonwealth

presented data showing Appellant’s presence near the scene of the shooting

and near the location of the abandoned silver Infinity. Thus, the

Commonwealth presented sufficient evidence to establish Appellant’s identity

as Reid’s assailant. See Commonwealth v. Stevenson, 283 A.3d 196, 204

(Pa. 2022) (“It is well-established that the Commonwealth may sustain its

burden of proof by means of wholly circumstantial evidence and the [fact-

finder], while passing upon the credibility of witnesses and the weight of the

evidence, is free to believe all, part, or none of the evidence.”).

In addition, the evidence established that Appellant shot Reid twice in

the head and three times in Reid’s back. This evidence is sufficient to establish

Appellant’s specific intent to kill. See Hicks, 156 A.3d at 1124 (recognizing

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circumstantial evidence may prove specific intent where the defendant used a

deadly weapon on a vital part of the victim’s body). Thus, the evidence is

sufficient to sustain Appellant’s conviction of first-degree murder.

Regarding Appellant’s VUFA convictions, the above-stated evidence was

sufficient to prove Appellant carried “a firearm in any vehicle or … on or about

his person[.]” 18 Pa.C.S.A. § 6106(a). Further, the evidence established

Appellant carried a firearm on the public streets of Philadelphia. See id. §

6108. For these reasons, Appellant’s challenge to the sufficiency of the

evidence, merits no relief.

Appellant additionally challenges the verdicts as against the weight of

the evidence.

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. 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.

Commonwealth v. Arias, 286 A.3d 341, 352 (Pa. Super. 2022) (citations

and quotation marks omitted).

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In its opinion, the trial court addressed Appellant’s claim and concluded

it lacks merit:

[The trial court] applied the appropriate standards when reviewing

[Appellant’s] claim that the verdict was against the weight of the

evidence. Having reviewed the entire record, including a thorough

reading of the trial transcripts and admitted exhibits, th[e] court

concludes that the verdict was not so contrary to the evidence as

to shock one’s sense of justice, nor was it so tenuous, vague and

uncertain that it shocks the conscience of the court. To the

contrary, the evidence in this case was compelling and substantial,

and strongly supported the verdict. Accordingly, [Appellant’s]

claim … is without merit.

Trial Court Opinion, 9/5/23, at 12. Based upon our review of the record, we

discern no abuse of the trial court’s discretion in rejecting Appellant’s weight

claim. As such, this issue merits no relief.

In his second issue, Appellant argues the trial court improperly admitted

the testimony of Ms. Wright regarding the poor relationship between Appellant

and decedent. Appellant’s Brief at 34. Appellant argues this evidence was

inadmissible hearsay. Id. Additionally, Appellant asserts, the trial court gave

no limiting instruction regarding the jury’s consideration of this improper

relationship testimony. Id.

Appellant claims this evidence does not fall within any exception to the

rule against hearsay. Id. at 36. Appellant asserts the evidence does not

explain a course of conduct or the declarant’s state of mind. Id. at 37-38.

Appellant further disputes the trial court’s characterization of the testimony

as non-hearsay. Id. at 40-41. According to Appellant, the trial court

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ignores that [Ms.] Wright did not testify, or offer any indication,

that her expressed opinions were based on her own personal

experiences, observations or knowledge. … [T]he trial court

completely ignores that there is absolutely no testimony that

indicates this was the result of [Ms.] Wright’s interaction with the

parties.

Id. at 41.

Appellant contends Wright’s testimony does not fall within the state-of-

mind exception to the rule against hearsay. Id. at 44. According to Appellant,

[Ms.] Wright’s statements were offered as evidence of Appellant’s

state of mind, i.e., his motive and/or intent. “However, the ‘state

of mind’ exception traditionally applies to the declarant’s state of

mind, emotion, sensation or physical condition such as intent,

plan, motive, design, mental feeling, pain, and bodily health. See

Pa.R.E. 803(3)” Com. v. Levanduski, 907 A.2d 3, 19 (Pa. Super.

[] 2006).

Id. at 45.

Appellant further claims that Ms. Wright’s testimony about the parties’

relationship is based on “either the statements of the [v]ictim, or the

statements of the Appellant; both of which are hearsay.” Id. at 41. Without

a foundation, Appellant argues, the testimony was inadmissible. See id. at

41-42. Using Oxford Languages Dictionary, Appellant points to Ms. Wright’s

use of the phrase “we all” in her statement, “we all have history,” to indicate

that her relationship testimony referred to the victim’s beliefs. Id. at 42.

Appellant points out Ms. Wright never stated that her relationship testimony

was based on her own experiences, “nor was any such foundation laid.” Id.

Appellant asserts,

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It is manifestly unreasonable for the trial court to simply conclude

that [Ms. Wright’s] opinions are the result of this witness’s

interaction with all of the parties …, without a trace of any such

foundational testimony.

Id. at 47 (internal quotation marks omitted).

Appellant argues this testimony caused him prejudice, as there was no

evidence connecting him to the victim. Id. According to Appellant, there was

no physical evidence linking him to the crime scene, only evidence regarding

cell phone locations. Id. at 47-48. Appellant asserts, “By introducing

evidence of motive and ill will it gives the jury a direct connection to consider

between Appellant and [d]ecedent.” Id. at 48 (capitalization modified).

Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow:

Admission of evidence is a matter within the sound discretion of

the trial court, and will not be reversed absent a showing that the

trial court clearly abused its discretion. Not merely an error in

judgment, an abuse of discretion occurs when the law is

overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (internal citations

and quotation marks omitted). “[A] discretionary ruling cannot be overturned

simply because a reviewing court disagrees with the trial court’s conclusion.”

Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa. Super. 2003).

To preserve a claim of error in an evidentiary ruling, a party must not

only make a timely objection, but articulate “the specific ground” for the

objection, “unless it was apparent from the context.” Pa.R.E. 103(a)(1)(B).

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“Hearsay is a statement the declarant does not make while testifying

at the current trial … [and] is offered in evidence to prove the truth of the

matter asserted.” Commonwealth v. Fitzpatrick, 255 A.3d 452, 471 (Pa.

2021) (emphasis added) (citing Pa.R.E. 801(c)(1)-(2)) (ellipses and quotation

marks omitted). “Hearsay generally is inadmissible unless it falls within one

of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of

Evidence.” Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. 2020).

With this in mind, we review the relevant testimony of Ms. Wright:

Q. [The Commonwealth:] Ms. Wright, do you know - or did you

know the decedent in this case, [] Reid?

A. [Ms. Wright:] Yes. The decedent is my son.

Q. Your son. And how old was he when he was killed back in May

of 2019?

A. Twenty-one years old.

Q. Ms. Wright, do you know the defendant in this case,

[Appellant]?

A. Yes, I do.

Q. And how do you know him?

A. Our families have history.

Q. How long have you known [Appellant] and his family?

A. All of my life, and all of his life.

Q. Did your son, … did he know [Appellant]?

A. Yes, he did.

Q. And how did he know him?

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A. We all have history. Our families have history.

Q. And what was the state of their relationship?

A. Those two didn’t get along.

….

Q. Okay. And did there come a time where you were told that

your son had been shot?

A. Yes.

Q. When you learned that, where did you go? Did you go to the

hospital?

A. After the call, yes.

Q. [] And did you make it to the hospital before he was

pronounced dead later that night at sometime after 3:00 a.m.?

A. I was at the hospital when he was pronounced.

Q. [] And you mentioned that your family and the [Appellant’s]

family, had history. Was there ever a time when your families

were close prior to the incident?

A. Yes. We had good history all up until the day all of this

happened.

Q. [] But the relationship between your son –

[Defense counsel:] Objection.

THE COURT: Finish the question, please.

Q. [The Commonwealth:] But the relationship between your son

and [Appellant], what was that at the time of the incident?

THE COURT: Overruled.

[Ms. Wright:] Their relationship wasn’t a good relationship.

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[Defense counsel]: Your Honor, may we see you at sidebar?

---

(Whereupon, a discussion was held off the record at

sidebar.)

THE COURT: Overruled.

[The Commonwealth]: Thank you Ms. Wright. I have no further

questions.

N.T. at 42-45 (emphasis added). Defense counsel declined to cross-examine

Ms. Wright. Id. at 45.

We are unable to discern the basis for Appellant’s objection, as the

discussion following the objection took place off the record. There is nothing

to suggest that Appellant challenged Ms. Wright’s testimony based upon a lack

of foundation. As such, we cannot grant him relief on his challenge to the lack

of foundation for Ms. Wright’s testimony. See Pa.R.E. 103(a)(1)(B).

However, the trial court discerned a challenge to the testimony as

inadmissible hearsay:

The complained of testimony, plain and simple is not an out-of-

court statement and[,] as such[,] is not hearsay. [Ms. Wright]

stated that the families had a good history together that soured

before the killing. The witness did not state that she was told

this by anyone, but that it was her family and the family of

[Appellant]. There isn’t the slightest indication that this testimony

wasn’t the result of the witness’ interaction with all of the parties,

and she gave every intimation that it was the result of her

observation and interaction with her family and the family

of the decedent.

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Trial Court Opinion, 9/5/23, at 13-14 (emphasis added). Given the lack of

any explanation for defense counsel’s objection, 4 and the testimony at issue,

we discern no trial court error or abuse of its discretion. Ms. Wright did not

testify regarding an out-of-court statement by a non-testifying witness. See

Fitzpatrick, 255 A.3d at 471. Accordingly, Appellant’s second issue merits

no relief.

In his third issue, Appellant claims the trial court violated his Sixth

Amendment right to a public trial, when it precluded his family from attending

jury selection. Appellant’s Brief at 53. Appellant explains,

[j]ury selection began March 6, 2023, and all spectators, including

Appellant’s family members, were asked to leave the courtroom.

(“I’m going to ask everybody to leave[.]” [N.T., 3/6/23, at 8.]).

The court stated, “we have no room … in which to keep the

individuals here. We have no place to put them, and we have no

availability in order for them to watch from afar. So based on

that, we’re going to put the jury panel in here, and give them the

very basic instructions. And then we will select the jury.” [See

id. at 8-9)].

Id. at 53-54 (citations modified). According to Appellant, his counsel objected

to the exclusion of Appellant’s family members. Id. at 54. Appellant states

that only an off-the-record conversation between his counsel and the trial

court took place, after which jury selection began without the public’s

presence in the courtroom. Id.

____________________________________________

4 Our review discloses no pre-trial motion to preclude Ms. Wright’s testimony.

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Appellant argues that the exclusion of the public from the courtroom

violated his Sixth Amendment right to a public trial. Id. According to

Appellant, “an accused is at the very least entitled to have his friends, relatives

and counsel present, no matter with what offense he may be charged.” Id.

(quoting In re Oliver, 333 U.S. 257, 271-72 (1948)). Appellant asserts, “the

accused has the right to have the public attend voir dire.” Id. at 55 (quoting

Commonwealth v. Jordan, 212 A.3d 91, 101 (Pa. Super. 2019)).

Appellant acknowledges that closing a courtroom may be permissible

under certain circumstances. Id. at 55 (citing Jordan, 212 A.3d at 102).

Nevertheless, Appellant argues that even when “overriding interests” warrant

closure, “if the parties petition the trial court to admit certain individuals, the

trial court must consider that request and place on the record the reasons for

denying the request.” Id. at 56 (citing Waller v. Georgia, 467 U.S. 39, 48

(1984)). According to Appellant, the trial court erred because it failed to find

an overriding interest; “rather it merely stated there was no room.” Id. at

57.

Appellant directs our attention to the United States Supreme Court’s

decision in Presley v. Georgia, 558 U.S. 209 (2010). Appellant’s Brief at 56.

In Presley, Appellant argues, the Supreme Court recognized there are

“circumstances where a judge could conclude that threats of improper

communications with jurors or safety concerns are concrete enough to warrant

closing voir dire.” Id. at 56 (quoting Presley, 558 U.S. at 215). According

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to Appellant, if the parties nevertheless petition the court to admit certain

individuals, the court must consider that request and place on the record its

reasons for denial. Id. (citing Jordan, 212 A.3d at 102).

Appellant further claims the trial court failed to consider reasonable

alternatives to a complete ban of the public. Id. at 58. Appellant argues,

“the court did not explain why a less broad remedy was not available, nor did

it consider one.” Id. Appellant contends the trial court’s failure to consider

reasonable alternatives, or place its findings on the record, cannot pass

muster under Waller and Presley. Id. at 58, 59. According to Appellant,

the trial court’s structural error of (a) closing voir dire to the public after

Appellant requested that his family remain; (b) failing to consider reasonable

alternatives; and (c) failing to place adequate reasons on the record warrants

a new trial, even without a finding of prejudice. Id. at 60.

In reviewing an order to close a courtroom, we accept the trial court’s

factual findings if they are supported by the record. Jordan, 212 A.3d at 102-

03. In all other respects, we review the order for an abuse of discretion.

Id. at 103.

“A defendant has a Sixth Amendment right to a trial that is open to

members of the public.” Id. at 101 (citation omitted); see also PA. CONST.

art. 1, § 9. However, the United States Supreme Court has held that, although

a defendant has the right to a public trial, a court may close the courtroom if

the following factors are met:

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(1) there is “an overriding interest that is likely to be prejudiced,”

(2) the closure is “no broader than necessary to protect that

interest,” (3) the trial court considers “reasonable alternatives” to

closure, and (4) the trial court makes “findings adequate to

support the closure.”

Jordan, 212 A.3d at 101 (quoting Waller, 467 U.S. at 48). “The violation of

the right to a public trial constitutes a structural defect, a specific type of

constitutional error warranting a new trial without any showing of

prejudice.” Id. at 103 (citation omitted).

Courtrooms can be closed in situations to keep certain evidence

confidential or to preserve order and safety. See id. It is “the responsibility

of the [trial] court to maintain not only the control but also the security of the

courtroom[.]” Id. at 102.

Our review discloses the following. On March 6, 2023, the trial court

called Appellant’s case for trial. N.T., 3/6/23, at 3. In open court, the trial

court swore in Appellant and colloquied him regarding his education, sobriety

and competence. Id. at 3-5. The trial court inquired about the

Commonwealth’s plea offer, which Appellant had declined. Id. at 5-6. The

trial court further inquired about Appellant’s satisfaction with his plea counsel.

Id. at 6. Appellant confirmed his decision to proceed with jury selection. Id.

at 7-8.

Upon completing this colloquy, the trial court asked that the potential

jurors be seated in court. Id. at 8. At that time, the following discussion took

place:

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THE COURT: Okay. We’re going to bring in the panel.

THE COURT OFFICER: All right. Ladies and gentlemen, I’m going

to ask everybody to leave. It’s going to take us about two hours

or so, so if you guys want to get something to eat and stuff like

that, you’re welcome to do that. Please do not hang out in this

hallway here for the time being. Thank you.

THE COURT: Thank you all. [Appellant], the reason they’re

going out is because we have no place else to put the jury

panel, and I have to discuss with them – tell them the law

and some other things while we’re picking. Okay?

[Appellant]: Okay.

[Defense Counsel]: Judge, just based on … that case that came

out that overturned a murder conviction because … one of the

other judges … had the family step outside. And the Supreme

Court suggested that it is not a good idea; that you have to let

them in. That’s at least what the case said. So for the record, I

have to object. But the reason is because there’s only this amount

of room in the room.

THE COURT: We have no room – on the record, we have no

room in which to keep the individuals here. We have no

place to put them, and we have no availability in order for

them to watch from afar. So based on that, we’re going to

put the jury panel in here, and give them the very basic

instructions. And then we will select the jury.

Once we select the jury, and get into the more elaborate

rules and regulations and laws that will follow, the families will be

permitted to be here.

[Defense counsel]: Judge, just for the record though, I will be

object[ing] based on that recent ruling.

Id. at 8-10 (emphasis added).

Outside of the presence of Appellant’s family, the trial court swore in the

jury pool and issued a general instruction regarding what takes place during

trial. Id. at 10-17, 22-23. The trial court generally inquired regarding jurors’

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potential conflicts, see id. at 17-22, and inquired whether any juror could not

serve because of extraordinary hardship, see id. at 23-24. Thereafter, the

trial court dismissed all but the first panel of potential jurors for questioning.

Id. at 25-26. At that time, the trial court permitted Appellant’s family

members to return. Id. at 27. Appellant’s family was not excluded from

the subsequent questioning of the individual jurors, or the selection of the jury

panel. See id. at 30.

In addressing this issue, the trial court stated the following:

In the case at bar, the courtroom was only closed while the entire

panel was given a brief synopsis of the law, advising how the jury

selection and trial would proceed. The jury panel was asked a

few questions as a panel that would aid in a determination

of their ability to be fair, but they were not questioned

about those matters until individual voir dire was

conducted and the spectators were back in the courtroom.

At that time, the families were permitted back into the courtroom,

to view each prospective juror and how they answered each and

every question. A court may impose reasonable restrictions on

access to the courtroom and clearly, the two purposes served by

a public trial of preventing the accused from being subject to a

Star Chamber proceeding and assuring the public that the

standards of fairness were observed. … Commonwealth v.

Berrigan, 509 Pa. 118, 134, 501 A.2d 226, 234 (1985)….

Trial Court Opinion, 9/5/23, at 19 (emphasis added).

Our review thus discloses (1) there was an overriding interest, as the

pool of potential jurors was so large that exclusion of the public was necessary

to initially seat the jury pool; (2) the closure was no broader than necessary,

as the trial court allowed Appellant’s family to return during individual voir

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dire and jury selection;5 (3) the trial court implemented a reasonable

alternative by only addressing the potential jurors generally, and reopening

the courtroom during individual voir dire; and (4) the trial court placed

sufficient findings on the record to support its decision. See Jordan, 212

A.3d at 102. Under these circumstances, we discern no constitutional violation

by the trial court during jury selection. See id. Appellant’s third issue merits

no relief.

In his fourth and final issue, Appellant argues that the trial court

improperly admitted into evidence, and allowed the jury to view, the medical

examiner’s photographs of Reid: Exhibits D2, D7, D11, and D12. Appellant’s

Brief at 48. Appellant argues Exhibit D11 was improperly admitted, as the

trial court previously ruled this exhibit could not be presented. Id. at 49.

Regarding the other three exhibits, Appellant explains that the photos at issue

are 8½” x 11” full glossy photographs of [Reid’s] [c]orpse in the

Medical Examiner’s office. The photos depict bloody gunshot

wounds to [Reid’s] face, arm, back and buttocks….

Id. at 60 (citation omitted). Appellant argues,

[i]n Com. v. Chacko, 480 Pa. 504, 506 (Pa. 1978), the

Pennsylvania Supreme Court found similar photographs as to the

ones at issue to be inflammatory. It follows the photos at issue

in the case at bar are also inflammatory. With regards to D11, we

must presume that the trial court found it to be inflammatory, as

it was objected to and precluded.

____________________________________________

5 Moreover, a full and complete transcript was made of what took place during

the general instructions.

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Id. at 50-51 (capitalization modified; citation omitted).

Appellant asserts the photographs are not of “essential evidentiary

value,” as a pathologist could have effectively testified without the use of

these exhibits. Id. at 51. Appellant agues, “such photos should not be

resorted to where the witness can clearly convey the facts to the jury without

their use.” Id. at 52 (quoting Commonwealth v. Scaramuzzino, 317 A.2d

225, 227 (Pa. 1974)). Appellant asserts there is no reason that the medical

examiner “could not have adequately and effectively testified without the use

of these photographs.” Id. at 52. Appellant states he did not contest the

nature of the wounds, cause of death, or that a deadly weapon was used. Id.

at 52-53. Appellant further emphasizes no one contested that this was a

murder. Id. at 53. Thus, Appellant argues, the photographs did not advance

the Commonwealth’s case. Id.

The Commonwealth counters that the photos “were relevant to support

an inference of specific intent to kill.” Commonwealth’s Brief at 14. The

Commonwealth claims the photos were “crucial to helping the jury understand

the medical examiner’s testimony regarding the location and nature of the

victim’s injuries.” Id. at 14-15. The Commonwealth points out the trial court

issued cautionary instructions regarding the jury’s consideration of this

evidence. Id. at 16.

Regarding Exhibit D11, the Commonwealth asserts there is no evidence

the prosecutor intentionally violated the court’s ruling. Id. at 17. In addition,

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the Commonwealth argues D11 was not materially different in type from the

other post-mortem photos admitted. Id. The Commonwealth points out the

trial court offered no reason for excluding Exhibit D11. Id. at 18. At best,

the Commonwealth posits, this exhibit was merely cumulative of other

properly admitted evidence. Id.

We reiterate the admissibility of evidence lies within the sound discretion

of the trial court. Montalvo, 986 A.2d at 94.

When the Commonwealth seeks to introduce photographs of a

homicide victim into evidence, the trial court must engage in a

two-part analysis. First, the trial court must examine whether the

particular photograph is inflammatory. Commonwealth v.

Murray, … 83 A.3d 137, 156 (Pa. 2013). If the photograph is not

inflammatory, it may be admitted if it is relevant and can serve to

assist the jury in understanding the facts of the case. Id. If the

photograph is inflammatory, the trial court must determine

whether the photograph is of such essential evidentiary value that

its need clearly outweighs the likelihood of inflaming the minds

and passions of the jurors. Id.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

At trial, the Commonwealth introduced the photographs through

testimony of Dr. Sorokin, the Commonwealth’s expert pathologist from the

Philadelphia Medical Examiner’s Office. N.T., 3/7/23, at 101. Dr. Sorokin

explained that Dr. Lindsey Emery of the Philadelphia Medical Examiner’s Office

performed Reid’s autopsy. Id. at 105. However, Dr. Emery left the Medical

Examiner’s office before the time of trial. Id.

Dr. Sorokin reviewed the autopsy report, and testified regarding the

report’s description of the victim’s wounds. Id. at 107-08. Based upon the

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wounds, Dr. Sorokin opined that the victim had sustained nine gunshot

wounds. Id. at 110.

Dr. Sorokin acknowledged and explained the difference between the

autopsy report’s estimation of seven wounds, as opposed to her opinion that

the victim sustained nine wounds. Id. at 111. Dr. Sorokin confirmed that the

original examiner recovered six bullets. Id. Regarding Exhibit D2, Dr. Sorokin

explained,

on this photograph we can see what I described as the gunshot

wound to the chin, the entrance. And next to the nose, on the

left, is the entrance of the gunshot wound to the left nasolabial

fold. And there is also a laceration to the lip.

Id. at 112. Regarding Exhibit D4, Dr. Sorokin opined, “[t]his might be one of

the abrasions that were discovered in the blunt trauma.” Id.

Dr. Sorokin described Exhibit D5 as depicting

the gunshot wounds to the right of the forearm. Again, I was

describing several entrances with several fragments of the

projectile being present in the muscle.

Id. at 112-13. Dr. Sorokin described Exhibit D6 as showing the “gunshot

wound to the left forearm. The main entrance is in the center, and there are

several, what looks like, fragment … entrances.” Id. at 113. According to Dr.

Sorokin, Exhibit D7 showed the exit “of the previous entrance.” Id. Dr.

Sorokin testified Exhibit D9 “might have been either one of the lacerations or

one of the shrapnel fragments.” Id.

Dr. Sorokin described D10 as

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the gunshot wound to the left back. This is the one that went

through the rib and the lower lobe of the left lung and lodged in

the thoracic vertebrae.

Id. Regarding Exhibit D11, Dr. Sorokin described her uncertainty

concerning the cause of the wound:

When I reviewed the photographs, … since I didn’t notice the

description of this in the gunshot wound trauma, looking at it, I

assumed it might have been a laceration. However, it might have

been a laceration from the bullet fragment. I’m not 100 percent

sure on this. However, again, this could be a laceration, which is

blunt trauma.

Id. at 113-14. Dr. Sorokin described Exhibit D12 as depicting the

gunshot wound to the lateral left buttock. That’s the one that

went above the projectile. And this is one that went above the

bone and hit the aorta.

Id. at 114.

We discern no abuse of the trial court’s discretion in admitting the

photographs. Our review of the photographs discloses that, while disturbing,

they are not inflammatory. The photographs are in color, but would not shock

the sensibility of the viewer, given the nature of the alleged crimes.

Significantly, the photos were of evidentiary value to explain Dr.

Sorokin’s testimony regarding the number and type of wounds sustained by

the victim. In particular, the photos had evidentiary value to explain

differences between Dr. Sorokin’s opinion and statements in the autopsy

report. See generally Woodard, 129 A.3d at 494.

The record further discloses the trial court issued the following

cautionary instruction following closing arguments:

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[P]hotographs were admitted for the purpose of showing the

nature of the wounds received by the decedent and for showing

the conditions of the scene of the alleged crime to help [the jury]

understand that testimony of the witnesses. They are not

pleasant photographs to look at. You should not let it disturb your

emotions to the prejudice of [Appellant]. Your verdict must be

based on a rational and fair consideration of all the evidence and

not on passion or prejudice against [Appellant], the

Commonwealth, or any[]one else in that group ….

N.T., 3/11/23, at 11. Juries are presumed to follow cautionary instructions.

Commonwealth v. Fitzpatrick, 255 A.3d 452, 487 (Pa. 2021). Under these

circumstances, we discern no error or abuse of the trial court’s discretion in

admitting any of the photos. For the foregoing reasons, we affirm the

judgment of sentence.

Judgment of sentence affirmed.

P.J. Lazarus joins the memorandum.

Judge Nichols concurs in the result.

Date: 9/24/2024

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