# Com. v. Rister, T.

> Superior Court of Pennsylvania · November 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10750657

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** November 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Murray
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10750657

## How later opinions describe it (automated extraction)

- holding trial court properly exercised discretion in denying a weight challenge where the appellant asked this Court to reweigh the evidence
- stating the “standard of review for a trial court’s evidentiary rulings is narrow” (citation omitted)
- holding 911 calls were admissible under present sense impression exception

## Opinion text

J-S41004-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARRELL RISTER :
:
Appellant : No. 220 EDA 2024

Appeal from the Judgment of Sentence Entered November 16, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002723-2018

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 26, 2024

Tarrell Rister (Appellant) appeals from the judgment of sentence

imposed following his convictions (a) by a jury of one count each of first-

degree murder, firearms not to be carried without a license, carrying a firearm

on public property in Philadelphia, and possession of an instrument of crime

(PIC); and (b) by the trial court of persons not to possess firearms. 1 We

affirm.

The trial court detailed the evidence presented at trial as follows:

On December 16, 2017, at approximately 6:20 p.m., the
decedent, Muhammaud Johnson [(Johnson or the victim)], met
[Appellant] outside of Joe’s Market at the corner of Benner Street
and Torresdale Avenue in Philadelphia. N.T., 11/14/23, at 61,
176-79, 184; N.T., 11/15/[23], at 84-85, 172-74. [Appellant] had
previously arranged to purchase marijuana from another man,
____________________________________________

1 See 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), 6105(a)(1).
J-S41004-24

Shakur Bennett [(Bennett)], but Bennett sent Johnson to
complete the transaction. N.T., 11/15/23, at 173-74. Johnson
gave [Appellant] two bags of marijuana and the two men parted
ways. N.T., 11/14/23, at 179-80; [N.T.,] 11/15/23, at 173-74,
181-82. At approximately 6:45 p.m., [Appellant] texted Bennett
that he wanted “two more.” N.T., 11/15/23, at 85, 174-75. At
approximately 7:15 p.m., [Appellant] returned to Joe’s Market,
where he waited for Johnson to arrive. N.T., 11/14/23, at 180-
81; N.T., 11/15/23, at 174. A short time later, Johnson also
returned to Joe’s Market, where he met with [Appellant] outside
of the store. N.T., 11/14/23, at 182; N.T., 11/15/23, at 174-75,
182. The two men proceeded westbound down Benner Street
together. N.T., 11/14/23, at 182; N.T., 11/15/23, at 182-83.
[Appellant] then pulled out a firearm and shot Johnson twice.
N.T., 11/14/23, at 183; N.T., 11/15/23, at 17, 175-76. Johnson
was struck in the right side of his chest as well as in the middle of
his back. N.T., 11/15/23, at 17. [Appellant] then fled on foot
eastbound down Benner Street. N.T., 11/14/23, at 182; N.T.,
11/15/23, at 175-76, 183.

Police arrived on the 4600 block of Benner Street at
approximately 7:30 p.m.[,] where they observed Johnson lying on
the ground with bullet holes in his jacket. N.T., 11/14/23, at 61-
63, 65-67, 72. Police transported Johnson to Temple University
Hospital, where he was later pronounced dead. Id. at 66-68, 78.
The medical examiner determined that Johnson’s cause of death
was gunshot wounds to the torso and his manner of death was
homicide. N.T., 11/15/23, at 19. [Appellant] was not licensed to
carry a firearm on the date of the murder. N.T., 11/16/23, at 16.

Trial Court Opinion, 4/15/24, at 2-3 (citations modified).

Following Appellant’s arrest, the Commonwealth charged him with the

above-mentioned offenses. As we explain further below, prior to trial,

Appellant had numerous court-appointed counsel, each of whom was granted

leave to withdraw due to Appellant’s inappropriate conduct. In short,

Appellant (a) threatened various counsel; and (b) punched his fourth counsel,

George Yacoubian, Esquire (Attorney Yacoubian), during Appellant’s first jury

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trial in May 2022, which resulted in a mistrial. See Trial Court Opinion,

4/15/24, at 7-8 (describing Appellant’s prior counsel and Appellant’s

courtroom misbehavior).

Before Appellant’s first trial, on May 3, 2022, the Commonwealth filed a

“Motion in Limine to Admit 911 Calls.” The Commonwealth claimed certain

911 calls placed following the shooting (the 911 calls) 2 were relevant and

admissible under exceptions to the rule against hearsay (discussed below).

See generally Motion in Limine, 5/3/22. The Commonwealth proffered the

911 calls were

relevant and probative of the identification of [Appellant], as well
as [the victim’s] cause of death. The calls are not excludable
under the [rule against] hearsay [], regardless of whether the
declarant is available as a witness, because [the 911 calls] were
made contemporaneously to the events they describe, before the
opportunity for reflection, and there is independent evidence to
support their veracity.

Id. at 1. Appellant did not respond to the motion in limine. The trial

court granted the motion in limine prior to trial.3

____________________________________________

2 There were several 911 calls placed by bystanders close to the scene of the

murder, three of which are relevant to this appeal. In two of the 911 calls,
the declarants reported hearing gunshots, provided a description of the
shooter, and told police the direction in which the shooter had fled. See
Motion in Limine, 5/3/22, at 2-3. The declarant in the third 911 call described
the victim’s injuries and poor condition. Id. at 5.

3 The record does not include an order or docket entry pertaining to the motion

in limine, though it is clear the motion was granted, as the Commonwealth
played the 911 calls at trial. See N.T., 11/4/23, at 58-59.

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On October 20, 2023, Appellant filed a “Motion in Limine to Introduce

Police Misconduct” through his sixth attorney, Joseph Schultz, Esquire

(Attorney Schultz or defense counsel). 4 Specifically, Appellant sought to

introduce evidence of police misconduct, in unrelated cases, committed by

three Philadelphia Police detectives involved in his case: Detective Freddie

Mole (Detective Mole), Detective Joseph Murray (Detective Murray), and

Detective Donald Suchinsky (Detective Suchinsky) (collectively, “the three

Detectives”). Motion in Limine, 10/20/23, ¶¶ 7-10 (detailing the

misconduct);5 see also id. ¶¶ 3, 4, 6 (stating in the instant case, “Detectives

[] Mole and [] Suchinsky were the first homicide detectives to arrive at the

crime scene”; “Detective [] Murray was the affiant of three search warrants”;

and “Detective Mole recovered video surveillance footage”). The trial court

denied Appellant’s motion in limine on November 8, 2023.

Appellant’s second jury trial occurred on November 13-16, 2023.

Appellant was represented by Attorney Schultz. Appellant, the sole defense

____________________________________________

4 Appellant also filed several pro se, handwritten motions in limine, while he

was represented by counsel. See Commonwealth v. Willis, 29 A.3d 393,
400 (Pa. Super. 2011) (observing the “long-standing policy that precludes
hybrid representation.” (citation omitted)).

5 The trial court competently summarized the three Detectives’ misconduct in

its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 4/15/24, at 5-6.

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witness, testified6 that he shot the victim, but maintained he acted in self-

defense or imperfect self-defense.7 See N.T., 11/15/23, at 174-77.

On November 16, 2023, the jury found Appellant guilty of first-degree

murder, as well as the remaining above-mentioned crimes, and the trial court

found him guilty of persons not to possess firearms. The trial court

immediately imposed the mandatory sentence of life in prison for the murder

charge. 8 N.T., 11/16/23, at 143. Prior to sentencing Appellant on the

remaining charges (collectively, “the remaining convictions”), the court

referenced Appellant’s repeated courtroom misconduct, noting “this is an

extraordinary case.” 9 Id. at 142. Specifically, the trial court stated

Appellant’s

____________________________________________

6 Appellant testified via pre-recorded video deposition. Before trial, the trial
court ruled Appellant had forfeited his right to give live trial testimony due to
his repeated, disruptive courtroom misconduct. See Order, 6/9/23; Trial
Court Opinion, 4/15/24, at 7-11; see also N.T., 5/9/23, at 43-45 (trial court
warning Appellant, prior to the mistrial, that if he continued his disruptive
conduct, he would waive his right to give live testimony).

7 “Unlikethe affirmative defense of self-defense, which is a justification for
the crime and, if accepted, results in acquittal, a finding of imperfect self-
defense results in conviction of the offense of voluntary manslaughter,” rather
than homicide. Commonwealth v. Busanet, 54 A.3d 35, 52 n.11 (Pa.
2012).

8 The record does not reveal whether the trial court, in sentencing Appellant,

had the benefit of a presentence investigation report.

9 The trial court also considered the victim impact statements provided by
family members of the victim. See N.T., 11/16/23, at 123-26. Further, the
(Footnote Continued Next Page)

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behavior is something that is unprecedented, that I’ve never seen
in the history of all my years in my work here…. I have never
seen anything like this or anything close to this, and that’s why I
am going to give [Appellant] consecutive [sentences on the
remaining convictions], and that’s the reason for [the court’s]
departing above the [sentencing] guidelines….

Id. at 142-43.

With regard to the remaining convictions, the trial court imposed

consecutive, statutory maximum 10 terms of 3½ to 7 years’ incarceration for

firearms not to be carried without a license; 2½ to 5 years’ incarceration for

carrying a firearm on public property in Philadelphia; 2½ to 5 years’

incarceration for PIC; and 10 to 20 years’ incarceration for persons not to

possess firearms. Thus, Appellant’s aggregate sentence was life in prison plus

18½ to 37 years’ incarceration.

Appellant timely filed a post-sentence motion on November 20, 2023.

Appellant claimed, in relevant part, “[t]he verdict was against the weight of

the evidence as there was such conflicting statements and conflicting physical

evidence presented by the Commonwealth that the verdict shocks the

consci[ence.]” Post-Sentence Motion, 11/20/23, ¶ 3; see also id. ¶ 4

____________________________________________

court considered Appellant’s lengthy allocution, wherein he complained about
Attorney Schultz’s representation and asserted his innocence. Id. at 130-36.

10 The sentences for each of the remaining convictions constituted the
respective statutory maximums. See 18 Pa.C.S.A. §§ 1103(1) and (3),
1104(1); see also Trial Court Opinion, 4/15/24, at 22 n.4 (explaining the
applicable sentencing guidelines).

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(asserting the verdicts were not supported by sufficient evidence). On the

same date, Appellant filed a motion for reconsideration of sentence. He

claimed the trial court abused its discretion in imposing an unreasonably harsh

and excessive aggregate sentence, which failed to account for all relevant

sentencing considerations. Motion for Reconsideration, 11/20/23, ¶¶ 12-14.

The trial court denied Appellant’s post-sentence motion, and motion for

reconsideration, on December 28, 2023. This timely appeal followed.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents six issues for our review:

1. Was there insufficient evidence to sustain Appellant’s
conviction for first-degree murder beyond a reasonable doubt
because the Commonwealth did not prove beyond a reasonable
doubt that Appellant acted with specific intent to kill or that
Appellant did not act in either justified self-defense or
mistaken/unreasonable self-defense?

2. Was Appellant’s conviction for first-degree murder against the
weight of the evidence because the Commonwealth did not
prove beyond a reasonable doubt that Appellant acted with
specific intent to kill or that Appellant did not act in either
justified self-defense or mistaken/unreasonable self-defense?

3. Did the trial court err by denying Appellant his Constitutional
rights to be present and testify at his trial before the jury and
cause irreparable harm to Appellant by not allowing Appellant
to be present for his trial and testify in front of the jury?

4. Did the trial court err and cause irreparable harm to Appellant
by allowing hearsay 911 calls to be admitted over Appellant’s
objection?

5. Did the trial court abuse its discretion in denying Appellant’s
request to introduce evidence [related to the three] detectives
involved in Appellant’s case[,] when several of the detectives,
particularly Detective [] Mole, habitually lied and fabricated
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evidence and when these detectives played a key role in
collecting evidence in Appellant’s case, including video
surveillance and cell phone evidence?

6. Did the sentencing court abuse[] its discretion in sentencing
Appellant to consecutive, non-guideline sentences beyond the
mandatory life sentence imposed for first-degree murder?

Appellant’s Brief at 4-5 (issues reordered; some capitalization modified).

Appellant first argues his conviction for first-degree murder cannot

stand because it is based on insufficient evidence. See id. at 21-24. Appellant

emphasizes his trial testimony that “he felt threatened by” the victim and

claims, “[t]here is no evidence to rebut this.” Id. at 21; see also id.

(asserting the surveillance “video of the incident does not in any way rebut

Appellant’s testimony that he acted in self-defense or unreasonable self-

defense.”). According to Appellant,

[t]here is insufficient evidence to sustain Appellant’s conviction for
first-degree [m]urder beyond a reasonable doubt because the
Commonwealth did not prove beyond a reasonable doubt that
Appellant acted with specific intent to kill or that Appellant did not
act in either justified self-defense or mistaken/unreasonable self-
defense.

Id. at 23 (citing N.T., 11/15/23, at 171-212 (Appellant’s trial testimony)).

The Commonwealth counters the trial court properly rejected

Appellant’s sufficiency challenge, as the Commonwealth 1) proved beyond a

reasonable doubt all elements of first-degree murder; and 2) disproved

Appellant’s claim of self-defense. See Commonwealth Brief at 31-32. The

Commonwealth claims “the jury was permitted to … infer[]” Appellant had the

“specific intent to kill based on his use of a deadly weapon” in shooting the

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victim. Id. at 32. The Commonwealth further maintains it “proved that

[Appellant] did not act out of self-defense or imperfect self-defense….” Id.

A sufficiency claim “presents a question of law, for which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Packer, 168 A.3d 161, 166 (Pa. 2017). “Our standard of review of sufficiency

claims requires that we evaluate the record in the light most favorable to the

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.” Commonwealth v. Peters, 320 A.3d 1231,

1236 (Pa. Super. 2024) (en banc) (citation and brackets omitted); see also

Commonwealth v. Banniger, 303 A.3d 1085, 1091 (Pa. Super. 2023) (“Our

inquiry is whether viewing all of 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.”

(citations and quotation marks omitted)).

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 need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances.

Peters, 320 A.3d at 1236 (citation omitted). Further, the Commonwealth

“may sustain its burden of proof by means of wholly circumstantial evidence,

and the jury, which passes upon the weight and credibility of each witness’s

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

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Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citation

omitted).

“To convict a defendant of first[-]degree murder, the Commonwealth

must prove: a human being was unlawfully killed; the defendant was

responsible for the killing; and the defendant acted with malice and a specific

intent to kill.” Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa.

2011) (citations omitted). Our Supreme Court has instructed,

[a]n 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).

Under the Crimes Code, self-defense is a defense of justification, which

is a complete defense to criminal liability. See 18 Pa.C.S.A. §§ 502, 505.

“While there is no burden on a defendant to prove [a] claim [of self-defense],

before the defense is properly at issue at trial, there must be some evidence,

from whatever source, to justify a finding of self-defense.” Commonwealth

v. Torres, 766 A.2d 342, 345 (Pa. 2001).

Self-defense is a complete defense to a homicide charge if
(1) the defendant reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was necessary
to use deadly force to prevent such harm; (2) the defendant did
not provoke the threat that resulted in the slaying; and (3) the
defendant did not violate a duty to retreat. Where the defendant
has introduced evidence of self-defense, the burden is on the
Commonwealth to disprove the self-defense claim beyond a
reasonable doubt by proving that at least one of those three

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elements is absent. If the Commonwealth proves that the
defendant’s belief that deadly force was necessary was
unreasonable but does not disprove that the defendant genuinely
believed that he was in imminent danger that required deadly
force and does not disprove either of the other elements of self-
defense, the defendant may be found guilty only of voluntary
manslaughter under the defense of imperfect self-defense.

Commonwealth v. Jones 271 A.3d 452, 458 (Pa. Super. 2021) (internal

citations omitted). Moreover, the fact-finder “is not required to believe the

defendant’s testimony that he thought that he was in imminent danger and

acted in self-defense.” Id. (citing Houser, 18 A.3d at 1135).

Here, the trial court stated in its Pa.R.A.P. 1925(a) opinion that the

evidence was sufficient to sustain Appellant’s first-degree murder conviction

and disprove his claim of self-defense:

[Appellant’s] argument that the Commonwealth failed to disprove
his claim of self-defense is frivolous. While [Appellant] testified
that he acted in self-defense, his testimony was contradicted by
[defense] counsel’s entire trial strategy as well as [Appellant’s]
own pro se pleadings.

Defense counsel’s opening statement unequivocally
presented a theory of misidentification. See N.T., 11/14/23, at
52-56. In fact, in his opening statement, [defense] counsel
stated[,] “this [case] is all about the identification … [m]ake no
other qualms about it … the video says what happens. You’re
going to see what happens. The question now before you is, who
did it?” Id. at 55. Furthermore, the Commonwealth cross-
examined [Appellant] with numerous pro se pretrial pleadings that
were inconsistent with a self-defense theory. See N.T., 11/15/23,
at 191-98. [Appellant] admitted that none of those pretrial
pleadings were consistent with his testimony regarding self-
defense. Id. at 193-95. Additionally, [Appellant] testified that it
was defense counsel’s strategy not to raise self-defense and that,
while he disagreed with defense counsel, he believed that he
needed to comply with defense counsel’s theory of the case in

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order to win pretrial motions and effectively litigate the case. Id.
at 186, 193-94.[FN1]

[FN1] During sentencing, [Appellant] conceded that his testimony

regarding self-defense was false, and maintained that he perjured
himself, pursuant to the advice of [defense] counsel, in order to
obtain a manslaughter instruction. See N.T., 11/16/23, at 130.

Moreover, [Appellant’s] testimony, which was the only
evidence presented suggesting that [Appellant] acted in self-
defense, was refuted by the other evidence presented at trial.
Most importantly, the surveillance video did not show that
Johnson had a weapon or that he made any threatening
motions toward [Appellant] during any of their interactions.
See Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). There was no evidence presented at trial
showing that Johnson possessed a weapon on the night of the
shooting. Furthermore, while [Appellant] testified that Johnson
told him to walk up Benner Street to a dark location, which was
the reason that [Appellant] stated he feared Johnson would rob
and kill him, the video showed [Appellant] motion for Johnson to
walk up Benner Street and, as the two men began to walk up
Benner Street, [Appellant] led the way. N.T., 11/15/23, at 174-
77; Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). Additionally, while [Appellant] testified that
Johnson was reaching into his pockets, [Appellant] never stated
that he saw Johnson with a weapon. See N.T., 11/15/16, at
171-212. In sum, the video shows [Appellant], unprovoked, pull
out a firearm and shoot the unarmed victim, [] then flee down
Benner Street. See Commonwealth Exhibit C-32 (Surveillance
Footage Compilation Video).

[Appellant’s] testimony that he acted in self-defense
was also undermined by his paradoxical denial that he was
the shooter in the surveillance video. While [Appellant]
admitted to shooting Johnson, he denied that he was the shooter
depicted in the surveillance video. N.T., 11/15/23, at 174-77,
182-83, 198-211. However, the Commonwealth convincingly
established that [Appellant] was the man in the video. The video
clearly captured the face of the shooter, which looked exactly like
[Appellant]. See Commonwealth Exhibit C-32 (Surveillance
Footage Compilation Video); Commonwealth Exhibit C-2

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(Photograph of [Appellant]).[FN2] Furthermore, the shooter
approached Joe’s Market from the east side of Torresdale Avenue,
which was consistent with where [Appellant] lived at the time of
the murder. Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video); N.T. 11/15/23 at 172, 201-02. Additionally,
the shooter appeared taller than Johnson, who was six-foot-four-
inches tall. Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video); N.T., 11/15/23, at 19. [Appellant] is six-foot
five-inches tall. N.T., 11/15/23, at 118; Commonwealth Exhibit
C-34 (Pennsylvania Certified Driver History).

[FN2] Since [Appellant] was not present in court with the jury, the

Commonwealth published Exhibit C-2 so the jury could see
[Appellant’s] face.

Furthermore, cell phone records also corroborated that
[Appellant] was the shooter depicted in the video. The
Commonwealth presented a cell phone extraction of the phone
found next to the [victim]. N.T., 11/15/23, at 76-77. The
extraction included phone calls and text messages between the
phone found next to the [victim] and the number registered to
[Appellant]. Id. at 77. These calls and text messages occurred
on December 16, 2017, the date of the murder, between
approximately 5:50 p.m. and 7:20 p.m. Id. at 81-86;
Commonwealth Exhibit C-20 (Phone Extraction Report). These
text messages and calls lined up with actions the shooter took on
the video. See Commonwealth Exhibit C-20 (Phone Extraction
Report); Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). For example, at approximately 7:18 p.m.,
the shooter is seen making a phone call on the surveillance video.
Commonwealth Exhibit C-32 (Surveillance Footage Compilation
Video). The call records show that a call was placed at
approximately 7:18 p.m. from the number associated with
[Appellant] to the phone found next to the [victim].
Commonwealth Exhibit C-20 (Phone Extraction Report).

All of this was compelling proof that completely refuted
[Appellant’s] claim of self-defense. Furthermore, based upon the
evidence adduced at trial by both the Commonwealth and
defense, [Appellant’s] testimony that he acted in self-
defense was utterly incredible. The jury was free to reject his

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testimony. See Ramtahal, 33 A.3d at 607.

Trial Court Opinion, 4/15/24, at 16-19 (emphasis added; footnotes in original;

some citations and capitalization modified). The trial court additionally found

that Appellant’s use of a deadly weapon on a vital part of the victim’s body

“was sufficient evidence to show that [Appellant] acted with specific intent to

kill.” Id. at 19; see also Rega, 933 A.2d at 1009.

Our review confirms the trial court’s reasoning is supported by the

record and we agree with its conclusion. See id. at 16-19. Appellant

essentially asks us to 1) ignore the evidence of his guilt (including compelling

surveillance video); 2) reweigh the evidence, viewed in a light most favorable

to him; and 3) substitute our judgment for that of the jury and credit

Appellant’s justification defense. This we cannot do. See Jones 271 A.3d at

458 (stating the fact-finder “is not required to believe the defendant’s

testimony that he thought that he was in imminent danger and acted

in self-defense.” (emphasis added)). Because the Commonwealth clearly

produced sufficient, overwhelming evidence establishing all elements of first-

degree murder beyond a reasonable doubt, his sufficiency challenge does not

merit relief.

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In his second issue, Appellant argues the jury’s verdict of guilty for first-

degree murder is against the weight of the evidence. 11 See Appellant’s Brief

at 24-27. Appellant repeats essentially the same argument he raised in

connection with his sufficiency challenge. Namely, he 1) emphasizes his trial

testimony that “he felt threatened by” the victim and “feared for his safety

prior to shooting” him, id. at 24, 27; and 2) claims “video of the incident does

not in any way rebut Appellant’s testimony that he acted in self-defense or

unreasonable self-defense.” Id. at 27. Accordingly, Appellant contends the

trial court erred in denying his post-sentence motion for a new trial. Id.

The Commonwealth counters the trial court properly exercised its

discretion in rejecting Appellant’s weight claim. See Commonwealth Brief at

32-34. “Because the evidence demonstrating that [Appellant] did not act out

of self-defense or imperfect self-defense was overwhelming, [Appellant’s

weight] claim is meritless.” Id. at 32; see also id. at 33 (correctly pointing

out “the only evidence [Appellant] proffered that he acted out of self-defense

or imperfect self-defense was his own testimony.”). According to the

Commonwealth, the “verdict did not shock the consci[ence] because the jury

accepted the objective facts rather than [Appellant’s] self-contradicting

testimony.” Id. at 34.

____________________________________________

11 Appellant preserved this issue, as required by Pa.R.Crim.P. 607, by raising

it with the trial court in a post-sentence motion. See Post-Sentence Motion,
11/20/23, ¶ 3.
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We review a trial court’s ruling on a challenge to the verdict as against

the weight of the evidence for an abuse of discretion. Banniger, 303 A.3d at

1095; see also Commonwealth v. Harrington, 262 A.3d 639, 646 (Pa.

Super. 2021) (“An abuse of discretion will not be found based on a mere error

of judgment, but rather exists where the court has reached a conclusion which

overrides or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.” (citation

omitted)).

A verdict is not contrary to the weight of the evidence
because of a conflict in testimony or because the reviewing court
on the same facts might have arrived at a different conclusion
than the fact finder. Rather, a new trial is warranted only when
the jury’s verdict is so contrary to the evidence that it shocks one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail. Where, as
here, the judge who presided at trial ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.

One of the least assailable reasons for granting or denying
a new trial is the lower court’s determination that the verdict was
or was not against the weight of the evidence and that new
process was or was not dictated by the interests of justice. Thus,
only where the facts and inferences disclose a palpable abuse of
discretion will the denial of a motion for a new trial based on the
weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (internal citations,

emphasis, and quotation marks omitted); see also Commonwealth v.

Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) (“Where issues of credibility

and weight of the evidence are concerned, it is not the function of the appellate

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court to substitute its judgment based on a cold record for that of the trial

court.”). “It is well settled that the fact-finder is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses….”

Commonwealth v. James, 297 A.3d 755, 768 (Pa. Super. 2023) (citation

omitted).

Here, the trial court opined it properly exercised its discretion in

rejecting Appellant’s weight claim, and found the guilty verdict for first-degree

murder was amply supported by the evidence and did not shock the court’s

conscience. See Trial Court Opinion, 4/15/24, at 20. We decline Appellant’s

invitation to assume the role of the fact-finder, reweigh the evidence on

appeal, and usurp the jury’s credibility determinations concerning, inter alia,

Appellant’s self-serving and self-contradictory trial testimony. Upon review,

we conclude the trial court properly exercised its discretion in denying

Appellant’s weight claim. See Commonwealth v. Scott, 146 A.3d 775, 778

(Pa. Super. 2016) (stating an appellate court will not disturb the fact-finder’s

credibility findings that are supported by evidence of record);

Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009) (holding

trial court properly exercised discretion in denying a weight challenge where

the appellant asked this Court to reweigh the evidence). Consequently,

Appellant’s second issue merits no relief.

In his third issue, Appellant claims the trial court unlawfully deprived

him of his right to be physically present for trial. See Appellant’s Brief at 12-

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14. Although Appellant concedes he “had engaged in courtroom misconduct

previously,” id. at 12, he maintains “there was minimal misconduct in the

second trial and denial of the right to be present and testify before the jury

prejudiced Appellant.” Id. According to Appellant, “[t]he trial court abused

its discretion and Appellant was harmed because the jury could only assume

that Appellant was guilty because he could not even be in the courtroom.” Id.

at 14; see also id. (“Alternative measures were not adequately considered.”).

The Commonwealth conversely argues the trial court did not violate

Appellant’s right to be physically present during trial, as he had forfeited this

non-absolute right due to his repeated courtroom misconduct. See

Commonwealth Brief at 16-21.

[Appellant’s] egregiously disruptive, violent, and threatening
behavior, even after [a] warning from the [trial] court, fully
supported the trial court’s conclusion that [Appellant] had
forfeited his right to be present. Given [Appellant’s] behavior
throughout his case, it was exceedingly likely that that he would
again engage in threatening or disruptive behavior before the jury
if permitted to testify in-person. Thus, the court fashioned a
reasonable alternative that preserved [Appellant’s] rights to
testify. Accordingly, neither his right to be present nor his right
to testify were violated.

Id. at 16. The Commonwealth points out Appellant “cites no authority to

suggest that a court must overlook the prior behavior of a defendant after

that very behavior led to a mistrial.” Id. at 18.

It is well-settled that “[a] criminal defendant has both a rule-based right

to be present for trial, Pa.R.Crim.P. 602, as well as a constitutional right.”

Commonwealth v. Tejada, 188 A.3d 1288, 1293 (Pa. Super. 2018); see

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also Commonwealth v. Kelly, 78 A.3d 1136, 1141 (Pa. Super. 2013)

(explaining the constitutional right). However, this right is not absolute.

Tejada, 188 A.3d at 1293.

[A] defendant can lose his right to be present at trial if, after he
has been warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with
him in the courtroom.

Id. (citation omitted); see also Commonwealth v. Baldwin, 58 A.3d 754,

764 (Pa. 2012) (stating while a defendant has the right to testify, this right

“is not without parameters, and cannot be used as a vehicle for a defendant

to obviate the rules of trial procedure and evidence.”). “[A] judge has the

responsibility and authority to maintain in the courtroom the appropriate

atmosphere for the fair and orderly disposition of the issues presented.”

Commonwealth v. Chester, 587 A.2d 1367, 1379 (Pa. 1991).

Here, the trial court opined it did not violate Appellant’s rights or err in

ruling he had forfeited his right to give live trial testimony:

[Appellant] forfeited his right to be present through his disorderly,
disruptive and disrespectful behavior. [Appellant] was originally
represented by privately retained counsel, Allan Sagot, Esquire,
who moved to withdraw after claiming [Appellant] failed to pay
him. [Appellant’s] next four appointed attorneys all withdrew due
to [Appellant’s] behavior. Attorney Deborah Nixon complained of
hostile telephone calls from [Appellant] in which [Appellant]
screamed, used profanity, threatened “to sabotage” her, and
stated there would be a “gang war” with her. N.T., 8/26/19, at
15-20. Attorney Benjamin Cooper, the next to serve, withdrew
after [Appellant] accused him of collaborating with the prosecution
and filed a complaint about him with the FBI. … Attorney Eileen

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Hurley, who took over next, withdrew after [Appellant] made
threats against her.

On May 9, 2022, [Appellant’s] initial jury trial began before
the Honorable Barbara McDermott. [Attorney] Yacoubian …
represented [Appellant]. Based upon [Appellant’s] long history of
issues with prior counsel, the court asked [Appellant] if he was
ready to proceed with [Attorney] Yacoubian representing him.
N.T., 5/9/22, at 12-14. [Appellant] confirmed that he was ready
to proceed. Id. After the jury was sworn in, as [Appellant had]
entered his not guilty plea, [Appellant] stated that [Attorney]
Yacoubian was “railroading” him and had not subpoenaed
witnesses. Id. at 40-42. The court cleared the jurors from the
courtroom. Id. At that time, [Appellant] warned [Attorney]
Yacoubian not to “play with [him].” Id. at 41-42. [Attorney]
Yacoubian asked [Appellant] if [Appellant] was threating him, to
which [Appellant] responded, “I said don't play with me.” Id. The
court then warned [Appellant] that if he had another outburst he
would be removed from the courtroom. Id. at 42-43. [Appellant]
confirmed he understood the warning. Id. at 44-46.

Two days later, on May 11, 2022, as the Commonwealth
called its first witness of the day’s proceedings, [Appellant]
punched [Attorney] Yacoubian in the face. N.T., 5/11/22, at
14-16. The court immediately removed the jurors from the
courtroom and sent them to the courtroom next door. Id. at 14-
19, 24. [Appellant] was removed from the courtroom by the
sheriff and placed in the lockup located in the [cell block] next to
the courtroom [(adjacency lockup)]. Id. at 17[; see also id. at
23-24 (trial court stating the configuration “of the courtroom … is
such that the cell block is immediately next to the courtroom.”).
Appellant] then began screaming from the adjacency lockup. Id.
[at 17. Appellant] accused Judge McDermott of colluding with the
District Attorney’s Office. Id. at 17-21. Moreover, [Appellant]
began threatening [Attorney] Yacoubian’s family stating, “I know
where your kids are at, George” and “I don’t know why you would
do this, George. You know I know where your fucking family lives
at, George.” Id. at 17-21. [Appellant] then began yelling juror
numbers and stating “y’all know what y’all are doing.” Id. at 22-
23. At that point, Judge McDermott had [Appellant] removed from
the adjacency lockup to the court’s main holding center. Id. at
22-26.

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Judge McDermott brought the jurors back into the
courtroom to explain the delay and then individually colloqu[i]ed
them about whether they could still be fair. Id. at 30-56. During
the individual colloquies, it became apparent that the jurors had
seen [Appellant] punch [Attorney] Yacoubian, heard [Appellant’s]
threats and shouting from the [adjacency lockup], and felt
threatened by [Appellant’s] behavior. Id. Out of fourteen jurors,
only two stated they could potentially still be fair. Id. [Attorney]
Yacoubian motioned for a mistrial and the court granted
[Attorney] Yacoubian’s motion. Id. at 19, 56-60.

At a status listing on February 16, 2023, Judge McDermott
again had to remove [Appellant] from the courtroom after
[Appellant] continued to interrupt the court and accused Judge
McDermott of lying. N.T., 2/16/23, at 27. As sheriffs removed
[Appellant], he began mouthing words and yelling obscenities at
the court. Id. at 28. A court officer reported to the court that
[Appellant] was mouthing the phrase “I will kill you” to
Judge McDermott as [Appellant] was removed from the
courtroom. Id. at 33. As sheriffs removed [Appellant] from the
adjacency lockup to the main holding center located in the
basement of the courthouse, [Appellant] threatened Judge
McDermott again by stating “[b]itch, you’ve got something to
worry about, not the lawyer.” Id. at 34-35. Based upon this
behavior, Judge McDermott recused herself from the case and the
case was reassigned to the [] judge [who authored the Pa.R.A.P.
1925(a) opinion, the Honorable Glenn B. Bronson.]

On June 9, 2023, th[e trial] court issued an order, which
outlined [Appellant’s] long history of misbehavior and ordered that
[Appellant] had forfeited his right to be present for trial as well as
his right to proceed pro se. However, the court agreed to allow
[Appellant] to be present in the courthouse during his trial and
watch it via audio-visual transmission from the adjacency lockup.
The court moved [Appellant’s] trial to a larger courtroom[,] where
the adjacency lockup is located farther from the jury box so that
the jurors would not be able to hear [Appellant] if he yelled
disruptive threats as he had in the initial trial. Additionally, the
court arranged to have a camera capture a live feed of the
proceedings, which would be broadcasted directly to [Appellant]
in the adjacency lockup.

[Appellant’s] trial began with jury selection on November
13, 2023, under the aforementioned restrictions. The next day,

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just minutes after the jury was sworn in as the court gave
preliminary instructions, [Appellant] began yelling from the
adjacency lockup. N.T., 11/14/23, at 14. Unfortunately, even in
the larger courtroom, [Appellant] was able to yell loud enough to
be heard by the jurors. The court immediately removed the jurors
from the courtroom. Id. As the court heard argument from
counsel regarding whether [Appellant] could remain in the
adjacency [lockup] going forward, [Appellant] continuously yelled
from the adjacency [lockup] and disrupted the proceedings. Id.
at 14-21. At that point, the court ruled that [Appellant] had
forfeited his right to be present in the adjacency [lockup] with a
live feed of the proceedings. Id. at 15-20. The court had
[Appellant] removed from the adjacency lockup to the court’s
main holding center. Id. at 21-22. Once [Appellant] was
removed, the jurors were brought back to the courtroom. Id. at
24. After consulting with both defense counsel and the assistant
district attorney, the court informed the jurors that “[w]e did have
a slight disturbance, which has been rectified, so we’re going to
continue on now with our trial.” Id. at 22-24.

Therefore, [Appellant’s] long history of outrageous
behavior necessitated a trial in absentia. In [Appellant’s] first
trial, he physically assaulted [Attorney Yacoubian] in full view of
the jury and then threatened jurors …, which caused a mistrial.
At a later status hearing, [Appellant] threatened to kill the [Judge]
McDermott, which caused Judge McDermott to recuse herself from
the case. After the case was reassigned …, the [trial] court
attempted to make every accommodation to balance
[Appellant’s] right to be present with the need to try the
case fairly. Even under such accommodations, [Appellant]
still could not maintain proper decorum and had to be
removed in order to prevent another mistrial. Since
[Appellant] forfeited his right to be present through his behavior
in the courtroom, the court did not err in barring [Appellant] from
the courtroom during his trial. See Tejada, 188 A.3d at 1293-
94.

Trial Court Opinion, 4/15/24, at 7-11 (emphasis added; some citations and

capitalization modified).

The trial court continued:

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Additionally, having forfeited his right to be present in the
courtroom, [Appellant] necessarily forfeited his right to testify in
front of the jury. Nonetheless, the [trial c]ourt permitted
[Appellant] to testify by recorded trial deposition, which obviated
the concern that [Appellant] would misbehave in order to cause
another mistrial. [Appellant’s] testimony was taken in a manner
similar to a Pa.R.Crim.P. 500 preservation hearing. 12
[Appellant’s] testimony was recorded on video in the courtroom.
All parties were situated exactly as they would have been at trial,
with the sole exception that the jury was not present. Both the
attorney for the Commonwealth as well as defense counsel
conducted the questioning…. Furthermore, the [c]ourt did not
require the [Appellant] to decide whether to testify until after the
Commonwealth had rested.

Id. at 11-12 (footnote added).

Our review discloses the trial court’s cogent reasoning is supported by

the law and the record, and we agree with its conclusion. See id. at 7-12;

see also Tejada, 188 A.3d at 1293.

Moreover, Appellant cannot show prejudice, as the trial court issued

several cautionary instructions to the jury regarding Appellant testifying by

video in lieu of live testimony. Specifically, prior to jury selection, the court

instructed as follows:

The defendant in this case, ladies and gentlemen, is
[Appellant]. And as you folks can see he is not here in this
courtroom. He is, however, able to see and hear everything that
is going on during this trial through an audio-visual system that
we have set up here in this courtroom.

____________________________________________

12 Rule 500 provides, in relevant part, a trial court “may order the taking and

preserving of the testimony of any witness who may be unavailable for trial
…, or when due to exceptional circumstances, it is in the interests of justice
that the witness’ testimony be preserved.” Pa.R.Crim.P. 500(A)(1).
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In addition, he will be able to confer with his attorney,
[Attorney] Schultz, here throughout the course of this trial. Now,
the reason that we are proceeding in this fashion is not something
you should concern yourselves with. I need you folks to
understand -- and this is important -- that it is completely lawful
for us to proceed in this way under the circumstances of this case.

In addition, folks, if you are selected to be on this jury you
may not in any manner consider the fact that [Appellant] is
attending the trial through audio-visual communication
when you’re making your decision in this case. In other
words, you may not hold it against [Appellant] or against the
Commonwealth or against anybody else connected with this case.

N.T., 11/13/23, at 19-20 (emphasis added).

Moreover, the trial court questioned the prospective jurors prior to jury

selection:

Is there anybody here who believes that because
[Appellant] will be participating in this trial through audio-
visual communication and will not be here in the courtroom
that you would be unable to be a fair and an impartial juror
in this case, in other words, [Appellant’s] absence from the
courtroom would substantially interfere with or prevent you from
being a fair and an impartial juror?

Id. at 25 (emphasis added). No juror responded in the affirmative. Id.

Before Appellant’s recorded testimony was played for the reconvened

jury, the trial court again instructed the jury:

[Appellant] has decided to testify in this case, and you are
going to hear from him. However, for logistical purposes that
need not concern you, you will be hearing his testimony by way
of what we call a trial deposition, which is completely lawful in this
case. What this means is that this testimony was recorded today
after the Commonwealth presented all of its evidence and rested,
okay? That’s why we had this long break.

[Attorney] Schultz was there to ask questions on direct
examination; … the assistant district attorney[] cross-examined

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[Appellant]; and I was there to rule on any objections. And I
instruct you to consider this testimony just as if you were
sitting here live and listening to it. You may not hold it against
[Appellant] or the Commonwealth or anyone else connected with
this case that the testimony is being presented in this fashion,
okay?

N.T., 11/15/23, at 217-18 (emphasis added); see also N.T., 11/16/23, at 57-

58 (trial court’s final charge to the jury, wherein it repeated essentially the

same instructions detailed supra).13

It is well established that a jury is presumed to follow a trial court’s

instructions. Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004) (“It

is presumed the jury follows [a trial] court’s instructions.”); Commonwealth

v. Watkins, 843 A.2d 1203, 1216 (Pa. 2003) (stating a jury “is assumed to

have followed” a cautionary instruction, and such an instruction “is presumed

to be sufficient to cure any prejudice”). Based on the foregoing, there is no

merit to Appellant’s claim he was unlawfully tried in absentia.

In his fourth issue, Appellant contends the trial court erred in granting

the Commonwealth’s motion in limine and admitting inadmissible hearsay

evidence in the form of the 911 calls. See Appellant’s Brief at 14-20.

Appellant claims that a “verdict based in any material respect on inadmissible

hearsay is unreliable because inadmissible hearsay by definition is unreliable.”

____________________________________________

13 We note Attorney Schultz did not object to the trial court’s cautionary
instructions. See Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa.
Super. 2009) (“Because [a]ppellant did not object to the [trial court’s
cautionary] instruction, any claim in relation to its adequacy is waived.”)
(citations omitted).
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Id. at 19 (emphasis omitted). Appellant contends the trial court’s erroneous

ruling “caused irreparable harm to Appellant.” Id. at 20.

Appellant’s claim implicates the admissibility of evidence and the trial

court’s ruling on the Commonwealth’s motion in limine; we review such rulings

for an abuse of discretion. Commonwealth v. Mangel, 181 A.3d 1154, 1158

(Pa. Super. 2018); see also Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa. Super. 2013) (stating the “standard of review for a trial court’s

evidentiary rulings is narrow” (citation 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); see

also Pa.R.E. 802 (rule against hearsay). “Hearsay is a statement the

declarant does not make while testifying at the current trial or hearing [and]

is offered in evidence to prove the truth of the matter asserted.”

Commonwealth v. Fitzpatrick, 255 A.3d 452, 471 (Pa. 2021) (citing

Pa.R.E. 801(c)(1)-(2)) (ellipses and quotation marks omitted).

One hearsay exception, the present sense impression exception, applies

to “[a] statement describing or explaining an event or condition, made while

or immediately after the declarant perceived it.” Pa.R.E. 803(1). The

rationale for the present sense impression exception is that the “[r]elative

immediacy of the declaration ensures that there will have been little

opportunity for reflection or calculated misstatement.” Commonwealth v.

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Coleman, 326 A.2d 387, 389 (Pa. 1974); see also id. (“The declaration is

instinctive, rather than deliberative[.]” (citation and quotation marks

omitted)). Notably, this Court has held a 911 call may qualify as a present

sense impression if the call was placed contemporaneously with the event or

is so instantaneous “that it is unlikely that the declarant had the opportunity

to form the purpose of misstating his observation.” Commonwealth v.

Cunningham, 805 A.2d 566, 573 (Pa. Super. 2002); see also

Commonwealth v. Harris, 658 A.2d 392, 395 (Pa. Super. 1995) (stating the

present sense impression exception does not require that the comments be

made to another person also present at the scene; rather, the comments may

be made over the telephone).

Instantly, the trial court opined Appellant had waived this claim because

he never objected to admission of the 911 calls. See Trial Court Opinion,

4/15/24, at 13-14; see also Commonwealth v. Montalvo, 956 A.2d 926,

936 (Pa. 2008) (stating that in order to preserve a claim on appeal, a party

must lodge a timely objection at trial). Specifically, the trial court reasoned:

The admissibility of the 911 calls was the subject of a motion in
limine filed by the Commonwealth on May 3, 2022. See
Commonwealth’s Motion in Limine to Admit 911 Calls, 5/3/22.14
At the beginning of [Appellant’s] first trial, on May 9, 2022, after
jury selection, … [Judge] McDermott addressed the
Commonwealth’s motion. N.T., 5/9/22, at 31. However,
[Attorney] Yacoubian, [] who was [Appellant’s] counsel at that

____________________________________________

14 Appellant did not respond to the motion in limine.

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time, explicitly did not object to the admissibility of the 911
calls. Id. at 31 (“Your honor, I’m not objecting at this point to
the 911 calls.”). The Commonwealth later published the [911]
calls to the jury without objection from [Attorney Yacoubian].
N.T., 5/10/22, at 37-38. As stated above, [Appellant’s] first trial
ended in a mistrial and Judge McDermott later recused herself.

During [Appellant’s] second trial, … [Attorney] Schultz
objected to the admission of the [911] calls and incorrectly
stated, “the 911 calls… they’ve already been the subject of prior
motions in limine prior to the previous trial, and they’ve all been
admitted by Judge McDermott.” N.T., 11/14/23, at 58, 82-85.
The [c]ourt stated that anything that was previously litigated in
front of Judge McDermott is the law of the case and is “preserved
to the extent that you raised them in the in limine motions” and
“to the extent that [Judge McDermott] ruled on them in limine.”
Id. at 83-84[; see also Commonwealth v. Lancit, 139 A.3d
204, 206 (Pa. Super. 2016) (the “law of the case doctrine bars a
judge from revisiting rulings previously decided by another judge
of the same [or a higher] court, absent exceptional
circumstances.” (citation omitted; some capitalization modified));
Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa.
Super. 2005) (en banc).]

Since [Attorney] Yacoubian never objected to the
admissibility of the 911 calls, Judge McDermott never ruled on the
Commonwealth’s motion. Furthermore, while [Attorney] Schultz
purported to object to the admissibility of the [911] calls, he
incorrectly represented that the motion [in limine] had been
litigated by prior counsel in front of Judge McDermott. As a result,
the [] judge [who presided over Appellant’s second trial] never
had an opportunity to rule on the admissibility of the [911] calls.
Since neither Judge McDermott nor the [subsequent] judge
ruled on the admissibility of the calls, the issue was not
preserved. Pa.R.E. 103(a); Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first
time on appeal.”); Commonwealth v. Stevenson, 894 A.2d
759, 766 (Pa. Super. 2006), appeal denied, 917 A.2d 846 (Pa.
2007) (same).

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Trial Court Opinion, 4/15/24, at 13-14 (emphasis and footnote added; some

citations modified). The trial court’s reasoning is supported by the record and

the law. See id. Accordingly, Appellant’s claim is waived.

Nevertheless, even if this claim was not waived, we would conclude it

lacks merit. Consistent with Cunningham, supra, the trial court properly

admitted the 911 calls under the present sense impression exception.

Cunningham, 805 A.2d at 573 (holding 911 calls were admissible under

present sense impression exception); see also Appellant’s Brief at 20 (citing

Cunningham and conceding, “911 calls may be admitted for, inter alia, …

present sense impression reasons.”). We are persuaded by the

Commonwealth’s argument in its brief:

Because each of the declarants [in the 911 calls] described what
they were actively observing or what they had observed
immediately before making the call, all three 911 calls were
properly admitted as present sense impression.

The Commonwealth also offered independent corroborating
evidence that the [911] callers actually perceived the events they
describe[d]. Surveillance footage showed [Appellant] wearing the
same clothing as described in the calls and running in the same
direction as the calls report. (N.T.[,] 11/14/23, 182; 194–96).
Furthermore, the medical examiner testified that [the victim]
endured two gunshot wounds, consistent with [the 911] callers[’]
descriptions of what they heard. (N.T.[,] 11/15/23, 13–19).

Commonwealth’s Brief at 23-24.

Based on the foregoing, Appellant’s challenge to the trial court’s

admission of the 911 calls is waived, and also lacks merit. Appellant’s fourth

issue merits no relief.

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In his fifth issue, Appellant contends the trial court improperly denied

his motion in limine to introduce evidence of the three Detectives’ misconduct

in unrelated cases. See Appellant’s Brief at 10-12. Appellant points out that

“Detective[s] Mole and Murray have been charged with perjury and

[Detective] Suchinsky has been charged with sex crimes.” Id. at 10; see

also Motion in Limine, 10/20/23, ¶¶ 7-10 (detailing misconduct). According

to Appellant, the three Detectives 1) “habitually lied and fabricated evidence”

in other cases; and 2) “played a key role in collecting evidence in Appellant’s

case, including video surveillance and cell phone evidence.” Id. at 11-12.

Appellant argues the prior misconduct of the three Detectives is admissible as

habit evidence, pursuant to Pa.R.E. 406, which provides as follows:

Evidence of a person’s habit … may be admitted to prove that on
a particular occasion the person … acted in accordance with the
habit or routine practice. The court may admit this evidence
regardless of whether it is corroborated or there was an
eyewitness.

Id.; see also Appellant’s Brief at 11. Appellant complains, “[a]bsent cross-

examination or inquiry, it is impossible to assess [the] taint” that the three

Detectives’ misconduct may have had upon Appellant’s right to a fair trial.

Appellant’s Brief at 12.

The Commonwealth counters Appellant waived this claim, as he raises

it for the first time on appeal and did not preserve it. See Commonwealth

Brief at 14-15. The Commonwealth cites Pa.R.A.P. 302(a) (providing issues

not raised in the lower court are waived and cannot be raised for the first time

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on appeal), and Commonwealth v. Le, 208 A.3d 960, 971-72 (Pa. 2019)

(citing Rule 302(a) and stating, “where a defendant raises an objection before

the trial court on specific grounds, only those grounds are preserved for

appeal.” (citation omitted)). Commonwealth Brief at 14-15. The

Commonwealth correctly points out:

Although [Appellant’s] counsel filed a motion in limine before the
trial court regarding [the three Detectives’] misconduct,
[Appellant] never suggested that the misconduct was admissible
as habit evidence[,] but rather[,] vaguely argued that it should be
admitted “to impeach [the] witnesses and further [Appellant]’s
defenses of improper collection[.]”

Id. at 15 (quoting Motion in Limine, 10/20/23, ¶ 14).

The record confirms the Commonwealth’s assertion. Accordingly,

consistent with Le and Pa.R.A.P. 302(a), Appellant has waived his challenge

pertaining to admissibility of habit evidence related to the three Detectives’

misconduct. Nevertheless, even if this issue was not waived, we would

conclude the trial court properly denied Appellant’s motion in limine based

upon the thorough reasoning in its Rule 1925 opinion. See Trial Court

Opinion, 4/15/24, at 3-7.

In his sixth and final issue, Appellant argues the trial court abused its

discretion in “sentencing Appellant to consecutive, non-guideline sentences

beyond the mandatory life sentence imposed for first-degree [m]urder.”

Appellant’s Brief at 28. Appellant challenges the discretionary aspects of his

sentence, from which there is no absolute right to appeal. See

Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super. 2024)

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(“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” (citation and brackets omitted)). Rather,

where, as here, the appellant preserved his sentencing challenge in a timely

motion for reconsideration of sentence, he must (a) include in his appellate

brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied upon for

allowance of appeal; and (b) show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.

Commonwealth v. Summers, 245 A.3d 686, 691 (Pa. Super. 2021).

Here, Appellant’s brief includes a Rule 2119(f) statement. See

Appellant’s Brief at 28-30. Therein, he claims the trial court abused its

discretion in imposing an unreasonable sentence “without adequate

justification,” which was “indicative of a rigid, solitary focus on retribution.”

Id. at 29, 30. These claims present a substantial question. See

Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A]

claim that a sentence is excessive because the trial court relied on an

impermissible factor raises a substantial question.”); Commonwealth v.

Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) (holding a claim the

sentencing court failed to state sufficient reasons for imposing statutory

maximum sentences, as required by the Sentencing Code, presents a

substantial question); Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.

Super. 2008) (stating a claim that the sentencing court “exceeded the

recommended range in the Sentencing Guidelines without an adequate basis

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raises a substantial question”). 15 Accordingly, we review the merits of

Appellant’s challenge to his sentence.

Our standard of review of a discretionary sentencing challenge is well

settled: “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Reid, __ A.3d __, 2024

PA Super 200, at *6 (Pa. Super. 2024) (citation omitted). “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.” Commonwealth v. Walls, 926

A.2d 957, 961 (Pa. 2007) (citation and quotation marks omitted); see also

____________________________________________

15 However, a sentencing court’s

exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Rather, the imposition of consecutive rather than
concurrent sentences will present a substantial question in
only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (emphasis
added; internal citations and quotation marks omitted)); see also
Commonwealth v. Morrobel, 311 A.3d 1153, 1157 (Pa. Super. 2024)
(observing “in most cases, the court’s exercise of discretion in imposing
consecutive as opposed to concurrent sentences is not viewed as raising a
substantial question that would allow the granting of allowance of appeal.”
(citation and quotation marks omitted)).
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Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (“[T]he sentencing

court sentences flesh-and-blood defendants and the nuances of sentencing

decisions are difficult to gauge from the cold transcript used upon appellate

review. Moreover, the sentencing court enjoys an institutional advantage to

appellate review, bringing to its decisions an expertise, experience, and

judgment that should not be lightly disturbed.” (citations and quotation marks

omitted)). A sentencing court “has broad discretion in choosing the range of

permissible confinements that best suits a particular defendant and the

circumstances surrounding his crime.” Commonwealth v. Hill, 66 A.3d 365,

370 (Pa. Super. 2013) (citation omitted).

In every case where, as here, “a sentencing court imposes a sentence

outside of the sentencing guidelines, the court must provide in open court a

contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Shull, 148 A.3d 820, 835-36 (Pa. Super. 2016) (citation

omitted); see also Commonwealth v. Snyder, 289 A.3d 1121, 1127 (Pa.

Super. 2023) (stating sentencing guidelines are “purely advisory in nature,”

and a “sentencing court is permitted to deviate from the sentencing

guidelines” where it places “on the record its reasons for the deviation.”

(citations omitted)). When doing so,

a trial judge … [must] demonstrate on the record, as a proper
starting point, its awareness of the sentencing guidelines. Having
done so, the sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact

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on the life of the victim and the community, so long as it also
states of record the factual basis and specific reasons which
compelled it to deviate from the guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted).

This Court has explained the sentencing guidelines

have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors – they are
advisory guideposts that are valuable, may provide an essential
starting point, and that must be respected and considered; they
recommend, however, rather than require a particular sentence.

Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (citation

omitted). But see also Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa.

Super. 1999) (en banc) (holding the record must demonstrate “with clarity

that the court considered the sentencing guidelines in a rational and

systematic way and made a dispassionate decision to depart from them.”).

The Sentencing Code directs a trial court to follow the general principle

that “the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b); see also Coulverson, 34

A.3d at 145 (observing a sentencing court “is not required to parrot the words

of the Sentencing Code, stating every factor that must be considered under

Section 9721(b). However, the record as a whole must reflect due

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consideration by the court of the statutory considerations enunciated in that

section.” (citations and brackets omitted)).

Further, it “is well settled that ‘imposition of consecutive rather than

concurrent sentences rests within the trial court’s discretion.’”

Commonwealth v. Foust, 180 A.3d 416, 434 (Pa. Super. 2018)

(quoting Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super. 2013));

see also Hill, 66 A.3d at 370.

Although Pennsylvania’s system stands for individualized
sentencing, the court is not required to impose the
“minimum possible” confinement. Generally, Pennsylvania
law affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.

Commonwealth v. Brown, 249 A.3d 1206, 1216 (Pa. Super. 2021) (citation

omitted; emphasis added). “An appellant is not entitled to a ‘volume discount’

on his multiple convictions by the imposition of concurrent sentences.”

Lawrence, 313 A.3d at 286 (emphasis added; citation and brackets omitted);

see also Foust, 180 A.3d at 434-35 (collecting cases and stating, “extensive

case law in this jurisdiction holds that defendants convicted of multiple

offenses are not entitled to a ‘volume discount’ on their aggregate sentence.”).

Here, Appellant claims the trial court abused its discretion in imposing

unreasonable, consecutive sentences on the remaining convictions, which

were above the sentencing guidelines, “without adequate justification.”

Appellant’s Brief at 31. According to Appellant, “[t]here is a singular and

excessive focus on retribution.” Id.

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The Commonwealth counters the trial court did not abuse its discretion

in imposing consecutive, statutory maximum sentences under the

circumstances. See Commonwealth’s Brief at 34-37. According to the

Commonwealth, the trial court “thoroughly explained its rational[e] for

imposing consecutive maximum sentences for the remaining” convictions. Id.

at 34. The Commonwealth contends the court appropriately “considered the

totality of the circumstances surrounding [Appellant’s] convictions, including

his repeated threatening and disruptive behavior at trial.” Id. at 37.

The trial court opined it properly exercised its discretion in imposing a

reasonable aggregate sentence under the circumstances:

Here, the court was required to impose the mandatory term
of life in prison without the possibility of parole for [Appellant’s]
first[-]degree murder conviction. [Appellant’s] sentences of 3½
to 7 years[’] incarceration for carrying a firearm without a license,
2½ to 5 years[’] incarceration for carrying a firearm in public or
on the public streets of Philadelphia, 2½ to 5 years[’] incarceration
for PIC, and 10 to 20 years[’] incarceration for possession of
firearm by a prohibited person were all departures above the
guidelines. In fashioning these sentences, the court explicitly
considered everything presented during the history of the
case. N.T.[,] 11/16/23[,] at 138. This included all the evidence
presented at trial, the information presented in both counseled
and pro se pretrial pleadings, and everything presented at
sentencing[,] including the statements [Appellant] made before
and during the hearing. Id. The court also took into account the
required statutory factors. Id. at 138-39[; see also 42 Pa.C.S.A.
§ 9721(b), supra.] In considering the need for the protection
of the public, the court noted that [Appellant] was a grave
threat to the public given his history of misbehavior. Id. at
138. In considering the gravity of the offense in relation to its
impact on the victim and the community, the court noted the loss
of Johnson’s life at a young age and the profound impact the
homicide had on Johnson’s family. Id. at 138-39. The court also
considered [Appellant’s] rehabilitative needs. Id. at 139.

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Additionally, the court noted on the record its rationale
for departing above the guidelines and imposing consecutive
sentences, both of which were eminently reasonable given
[Appellant’s] history of misbehavior. The court noted that
[Appellant’s] contempt for the rule of law and judicial
process was “unprecedented” and that the court had never
seen anyone act with such disdain for the rule of law. Id. at 139-
43. [Appellant] threatened five out of the six lawyers who
represented him over the course of the case. Id. at 139-40.
He punched his lawyer in the face during his prior trial. Id. at
140. At that same trial, he threatened jurors from the adjacency
lockup[,] causing jurors to be so upset and feel so threatened that
they were unable to continue, which resulted in a mistrial. Id.
[Appellant] then threatened to kill the Honorable Barbara
McDermott, which caused Judge McDermott to recuse herself
from the case. Id. Finally, the court noted that, given
[Appellant’s] history, it fashioned accommodations so that
[Appellant] could still participate in trial and [Appellant]
immediately, within three minutes of the court’s opening remarks,
began yelling and had to be removed from the adjacency lockup
in order to prevent another mistrial. Id. at 140-41. Accordingly,
consecutive sentences departing above the guidelines were
reasonable.

Trial Court Opinion, 4/15/24, at 22-23 (emphasis added; footnote omitted;

some capitalization modified).

Our review discloses the trial court’s reasoning is supported by the

record, and we agree with its conclusion. See id. The court clearly did not

abuse its ample discretion in imposing reasonable sentences on the remaining

convictions under the circumstances. The record belies Appellant’s claim the

court imposed sentence based solely on retribution. Accordingly, Appellant’s

discretionary sentencing claim lacks merit.

Based on the foregoing, as we discern no error of law or abuse of

discretion by the trial court, we affirm Appellant’s judgment of sentence.

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Judgment of sentence affirmed.

Date: 11/26/2024

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

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARRELL RISTER :
:
Appellant : No. 220 EDA 2024

Appeal from the Judgment of Sentence Entered November 16, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002723-2018

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 26, 2024

Tarrell Rister (Appellant) appeals from the judgment of sentence

imposed following his convictions (a) by a jury of one count each of first-

degree murder, firearms not to be carried without a license, carrying a firearm

on public property in Philadelphia, and possession of an instrument of crime

(PIC); and (b) by the trial court of persons not to possess firearms. 1 We

affirm.

The trial court detailed the evidence presented at trial as follows:

On December 16, 2017, at approximately 6:20 p.m., the
decedent, Muhammaud Johnson [(Johnson or the victim)], met
[Appellant] outside of Joe’s Market at the corner of Benner Street
and Torresdale Avenue in Philadelphia. N.T., 11/14/23, at 61,
176-79, 184; N.T., 11/15/[23], at 84-85, 172-74. [Appellant] had
previously arranged to purchase marijuana from another man,
____________________________________________

1 See 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), 6105(a)(1).
J-S41004-24

Shakur Bennett [(Bennett)], but Bennett sent Johnson to
complete the transaction. N.T., 11/15/23, at 173-74. Johnson
gave [Appellant] two bags of marijuana and the two men parted
ways. N.T., 11/14/23, at 179-80; [N.T.,] 11/15/23, at 173-74,
181-82. At approximately 6:45 p.m., [Appellant] texted Bennett
that he wanted “two more.” N.T., 11/15/23, at 85, 174-75. At
approximately 7:15 p.m., [Appellant] returned to Joe’s Market,
where he waited for Johnson to arrive. N.T., 11/14/23, at 180-
81; N.T., 11/15/23, at 174. A short time later, Johnson also
returned to Joe’s Market, where he met with [Appellant] outside
of the store. N.T., 11/14/23, at 182; N.T., 11/15/23, at 174-75,
182. The two men proceeded westbound down Benner Street
together. N.T., 11/14/23, at 182; N.T., 11/15/23, at 182-83.
[Appellant] then pulled out a firearm and shot Johnson twice.
N.T., 11/14/23, at 183; N.T., 11/15/23, at 17, 175-76. Johnson
was struck in the right side of his chest as well as in the middle of
his back. N.T., 11/15/23, at 17. [Appellant] then fled on foot
eastbound down Benner Street. N.T., 11/14/23, at 182; N.T.,
11/15/23, at 175-76, 183.

Police arrived on the 4600 block of Benner Street at
approximately 7:30 p.m.[,] where they observed Johnson lying on
the ground with bullet holes in his jacket. N.T., 11/14/23, at 61-
63, 65-67, 72. Police transported Johnson to Temple University
Hospital, where he was later pronounced dead. Id. at 66-68, 78.
The medical examiner determined that Johnson’s cause of death
was gunshot wounds to the torso and his manner of death was
homicide. N.T., 11/15/23, at 19. [Appellant] was not licensed to
carry a firearm on the date of the murder. N.T., 11/16/23, at 16.

Trial Court Opinion, 4/15/24, at 2-3 (citations modified).

Following Appellant’s arrest, the Commonwealth charged him with the

above-mentioned offenses. As we explain further below, prior to trial,

Appellant had numerous court-appointed counsel, each of whom was granted

leave to withdraw due to Appellant’s inappropriate conduct. In short,

Appellant (a) threatened various counsel; and (b) punched his fourth counsel,

George Yacoubian, Esquire (Attorney Yacoubian), during Appellant’s first jury

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trial in May 2022, which resulted in a mistrial. See Trial Court Opinion,

4/15/24, at 7-8 (describing Appellant’s prior counsel and Appellant’s

courtroom misbehavior).

Before Appellant’s first trial, on May 3, 2022, the Commonwealth filed a

“Motion in Limine to Admit 911 Calls.” The Commonwealth claimed certain

911 calls placed following the shooting (the 911 calls) 2 were relevant and

admissible under exceptions to the rule against hearsay (discussed below).

See generally Motion in Limine, 5/3/22. The Commonwealth proffered the

911 calls were

relevant and probative of the identification of [Appellant], as well
as [the victim’s] cause of death. The calls are not excludable
under the [rule against] hearsay [], regardless of whether the
declarant is available as a witness, because [the 911 calls] were
made contemporaneously to the events they describe, before the
opportunity for reflection, and there is independent evidence to
support their veracity.

Id. at 1. Appellant did not respond to the motion in limine. The trial

court granted the motion in limine prior to trial.3

____________________________________________

2 There were several 911 calls placed by bystanders close to the scene of the

murder, three of which are relevant to this appeal. In two of the 911 calls,
the declarants reported hearing gunshots, provided a description of the
shooter, and told police the direction in which the shooter had fled. See
Motion in Limine, 5/3/22, at 2-3. The declarant in the third 911 call described
the victim’s injuries and poor condition. Id. at 5.

3 The record does not include an order or docket entry pertaining to the motion

in limine, though it is clear the motion was granted, as the Commonwealth
played the 911 calls at trial. See N.T., 11/4/23, at 58-59.

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J-S41004-24

On October 20, 2023, Appellant filed a “Motion in Limine to Introduce

Police Misconduct” through his sixth attorney, Joseph Schultz, Esquire

(Attorney Schultz or defense counsel). 4 Specifically, Appellant sought to

introduce evidence of police misconduct, in unrelated cases, committed by

three Philadelphia Police detectives involved in his case: Detective Freddie

Mole (Detective Mole), Detective Joseph Murray (Detective Murray), and

Detective Donald Suchinsky (Detective Suchinsky) (collectively, “the three

Detectives”). Motion in Limine, 10/20/23, ¶¶ 7-10 (detailing the

misconduct);5 see also id. ¶¶ 3, 4, 6 (stating in the instant case, “Detectives

[] Mole and [] Suchinsky were the first homicide detectives to arrive at the

crime scene”; “Detective [] Murray was the affiant of three search warrants”;

and “Detective Mole recovered video surveillance footage”). The trial court

denied Appellant’s motion in limine on November 8, 2023.

Appellant’s second jury trial occurred on November 13-16, 2023.

Appellant was represented by Attorney Schultz. Appellant, the sole defense

____________________________________________

4 Appellant also filed several pro se, handwritten motions in limine, while he

was represented by counsel. See Commonwealth v. Willis, 29 A.3d 393,
400 (Pa. Super. 2011) (observing the “long-standing policy that precludes
hybrid representation.” (citation omitted)).

5 The trial court competently summarized the three Detectives’ misconduct in

its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 4/15/24, at 5-6.

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witness, testified6 that he shot the victim, but maintained he acted in self-

defense or imperfect self-defense.7 See N.T., 11/15/23, at 174-77.

On November 16, 2023, the jury found Appellant guilty of first-degree

murder, as well as the remaining above-mentioned crimes, and the trial court

found him guilty of persons not to possess firearms. The trial court

immediately imposed the mandatory sentence of life in prison for the murder

charge. 8 N.T., 11/16/23, at 143. Prior to sentencing Appellant on the

remaining charges (collectively, “the remaining convictions”), the court

referenced Appellant’s repeated courtroom misconduct, noting “this is an

extraordinary case.” 9 Id. at 142. Specifically, the trial court stated

Appellant’s

____________________________________________

6 Appellant testified via pre-recorded video deposition. Before trial, the trial
court ruled Appellant had forfeited his right to give live trial testimony due to
his repeated, disruptive courtroom misconduct. See Order, 6/9/23; Trial
Court Opinion, 4/15/24, at 7-11; see also N.T., 5/9/23, at 43-45 (trial court
warning Appellant, prior to the mistrial, that if he continued his disruptive
conduct, he would waive his right to give live testimony).

7 “Unlikethe affirmative defense of self-defense, which is a justification for
the crime and, if accepted, results in acquittal, a finding of imperfect self-
defense results in conviction of the offense of voluntary manslaughter,” rather
than homicide. Commonwealth v. Busanet, 54 A.3d 35, 52 n.11 (Pa.
2012).

8 The record does not reveal whether the trial court, in sentencing Appellant,

had the benefit of a presentence investigation report.

9 The trial court also considered the victim impact statements provided by
family members of the victim. See N.T., 11/16/23, at 123-26. Further, the
(Footnote Continued Next Page)

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J-S41004-24

behavior is something that is unprecedented, that I’ve never seen
in the history of all my years in my work here…. I have never
seen anything like this or anything close to this, and that’s why I
am going to give [Appellant] consecutive [sentences on the
remaining convictions], and that’s the reason for [the court’s]
departing above the [sentencing] guidelines….

Id. at 142-43.

With regard to the remaining convictions, the trial court imposed

consecutive, statutory maximum 10 terms of 3½ to 7 years’ incarceration for

firearms not to be carried without a license; 2½ to 5 years’ incarceration for

carrying a firearm on public property in Philadelphia; 2½ to 5 years’

incarceration for PIC; and 10 to 20 years’ incarceration for persons not to

possess firearms. Thus, Appellant’s aggregate sentence was life in prison plus

18½ to 37 years’ incarceration.

Appellant timely filed a post-sentence motion on November 20, 2023.

Appellant claimed, in relevant part, “[t]he verdict was against the weight of

the evidence as there was such conflicting statements and conflicting physical

evidence presented by the Commonwealth that the verdict shocks the

consci[ence.]” Post-Sentence Motion, 11/20/23, ¶ 3; see also id. ¶ 4

____________________________________________

court considered Appellant’s lengthy allocution, wherein he complained about
Attorney Schultz’s representation and asserted his innocence. Id. at 130-36.

10 The sentences for each of the remaining convictions constituted the
respective statutory maximums. See 18 Pa.C.S.A. §§ 1103(1) and (3),
1104(1); see also Trial Court Opinion, 4/15/24, at 22 n.4 (explaining the
applicable sentencing guidelines).

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J-S41004-24

(asserting the verdicts were not supported by sufficient evidence). On the

same date, Appellant filed a motion for reconsideration of sentence. He

claimed the trial court abused its discretion in imposing an unreasonably harsh

and excessive aggregate sentence, which failed to account for all relevant

sentencing considerations. Motion for Reconsideration, 11/20/23, ¶¶ 12-14.

The trial court denied Appellant’s post-sentence motion, and motion for

reconsideration, on December 28, 2023. This timely appeal followed.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents six issues for our review:

1. Was there insufficient evidence to sustain Appellant’s
conviction for first-degree murder beyond a reasonable doubt
because the Commonwealth did not prove beyond a reasonable
doubt that Appellant acted with specific intent to kill or that
Appellant did not act in either justified self-defense or
mistaken/unreasonable self-defense?

2. Was Appellant’s conviction for first-degree murder against the
weight of the evidence because the Commonwealth did not
prove beyond a reasonable doubt that Appellant acted with
specific intent to kill or that Appellant did not act in either
justified self-defense or mistaken/unreasonable self-defense?

3. Did the trial court err by denying Appellant his Constitutional
rights to be present and testify at his trial before the jury and
cause irreparable harm to Appellant by not allowing Appellant
to be present for his trial and testify in front of the jury?

4. Did the trial court err and cause irreparable harm to Appellant
by allowing hearsay 911 calls to be admitted over Appellant’s
objection?

5. Did the trial court abuse its discretion in denying Appellant’s
request to introduce evidence [related to the three] detectives
involved in Appellant’s case[,] when several of the detectives,
particularly Detective [] Mole, habitually lied and fabricated
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J-S41004-24

evidence and when these detectives played a key role in
collecting evidence in Appellant’s case, including video
surveillance and cell phone evidence?

6. Did the sentencing court abuse[] its discretion in sentencing
Appellant to consecutive, non-guideline sentences beyond the
mandatory life sentence imposed for first-degree murder?

Appellant’s Brief at 4-5 (issues reordered; some capitalization modified).

Appellant first argues his conviction for first-degree murder cannot

stand because it is based on insufficient evidence. See id. at 21-24. Appellant

emphasizes his trial testimony that “he felt threatened by” the victim and

claims, “[t]here is no evidence to rebut this.” Id. at 21; see also id.

(asserting the surveillance “video of the incident does not in any way rebut

Appellant’s testimony that he acted in self-defense or unreasonable self-

defense.”). According to Appellant,

[t]here is insufficient evidence to sustain Appellant’s conviction for
first-degree [m]urder beyond a reasonable doubt because the
Commonwealth did not prove beyond a reasonable doubt that
Appellant acted with specific intent to kill or that Appellant did not
act in either justified self-defense or mistaken/unreasonable self-
defense.

Id. at 23 (citing N.T., 11/15/23, at 171-212 (Appellant’s trial testimony)).

The Commonwealth counters the trial court properly rejected

Appellant’s sufficiency challenge, as the Commonwealth 1) proved beyond a

reasonable doubt all elements of first-degree murder; and 2) disproved

Appellant’s claim of self-defense. See Commonwealth Brief at 31-32. The

Commonwealth claims “the jury was permitted to … infer[]” Appellant had the

“specific intent to kill based on his use of a deadly weapon” in shooting the

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J-S41004-24

victim. Id. at 32. The Commonwealth further maintains it “proved that

[Appellant] did not act out of self-defense or imperfect self-defense….” Id.

A sufficiency claim “presents a question of law, for which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Packer, 168 A.3d 161, 166 (Pa. 2017). “Our standard of review of sufficiency

claims requires that we evaluate the record in the light most favorable to the

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.” Commonwealth v. Peters, 320 A.3d 1231,

1236 (Pa. Super. 2024) (en banc) (citation and brackets omitted); see also

Commonwealth v. Banniger, 303 A.3d 1085, 1091 (Pa. Super. 2023) (“Our

inquiry is whether viewing all of 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.”

(citations and quotation marks omitted)).

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 need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances.

Peters, 320 A.3d at 1236 (citation omitted). Further, the Commonwealth

“may sustain its burden of proof by means of wholly circumstantial evidence,

and the jury, which passes upon the weight and credibility of each witness’s

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

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J-S41004-24

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citation

omitted).

“To convict a defendant of first[-]degree murder, the Commonwealth

must prove: a human being was unlawfully killed; the defendant was

responsible for the killing; and the defendant acted with malice and a specific

intent to kill.” Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa.

2011) (citations omitted). Our Supreme Court has instructed,

[a]n 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).

Under the Crimes Code, self-defense is a defense of justification, which

is a complete defense to criminal liability. See 18 Pa.C.S.A. §§ 502, 505.

“While there is no burden on a defendant to prove [a] claim [of self-defense],

before the defense is properly at issue at trial, there must be some evidence,

from whatever source, to justify a finding of self-defense.” Commonwealth

v. Torres, 766 A.2d 342, 345 (Pa. 2001).

Self-defense is a complete defense to a homicide charge if
(1) the defendant reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was necessary
to use deadly force to prevent such harm; (2) the defendant did
not provoke the threat that resulted in the slaying; and (3) the
defendant did not violate a duty to retreat. Where the defendant
has introduced evidence of self-defense, the burden is on the
Commonwealth to disprove the self-defense claim beyond a
reasonable doubt by proving that at least one of those three

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J-S41004-24

elements is absent. If the Commonwealth proves that the
defendant’s belief that deadly force was necessary was
unreasonable but does not disprove that the defendant genuinely
believed that he was in imminent danger that required deadly
force and does not disprove either of the other elements of self-
defense, the defendant may be found guilty only of voluntary
manslaughter under the defense of imperfect self-defense.

Commonwealth v. Jones 271 A.3d 452, 458 (Pa. Super. 2021) (internal

citations omitted). Moreover, the fact-finder “is not required to believe the

defendant’s testimony that he thought that he was in imminent danger and

acted in self-defense.” Id. (citing Houser, 18 A.3d at 1135).

Here, the trial court stated in its Pa.R.A.P. 1925(a) opinion that the

evidence was sufficient to sustain Appellant’s first-degree murder conviction

and disprove his claim of self-defense:

[Appellant’s] argument that the Commonwealth failed to disprove
his claim of self-defense is frivolous. While [Appellant] testified
that he acted in self-defense, his testimony was contradicted by
[defense] counsel’s entire trial strategy as well as [Appellant’s]
own pro se pleadings.

Defense counsel’s opening statement unequivocally
presented a theory of misidentification. See N.T., 11/14/23, at
52-56. In fact, in his opening statement, [defense] counsel
stated[,] “this [case] is all about the identification … [m]ake no
other qualms about it … the video says what happens. You’re
going to see what happens. The question now before you is, who
did it?” Id. at 55. Furthermore, the Commonwealth cross-
examined [Appellant] with numerous pro se pretrial pleadings that
were inconsistent with a self-defense theory. See N.T., 11/15/23,
at 191-98. [Appellant] admitted that none of those pretrial
pleadings were consistent with his testimony regarding self-
defense. Id. at 193-95. Additionally, [Appellant] testified that it
was defense counsel’s strategy not to raise self-defense and that,
while he disagreed with defense counsel, he believed that he
needed to comply with defense counsel’s theory of the case in

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order to win pretrial motions and effectively litigate the case. Id.
at 186, 193-94.[FN1]

[FN1] During sentencing, [Appellant] conceded that his testimony

regarding self-defense was false, and maintained that he perjured
himself, pursuant to the advice of [defense] counsel, in order to
obtain a manslaughter instruction. See N.T., 11/16/23, at 130.

Moreover, [Appellant’s] testimony, which was the only
evidence presented suggesting that [Appellant] acted in self-
defense, was refuted by the other evidence presented at trial.
Most importantly, the surveillance video did not show that
Johnson had a weapon or that he made any threatening
motions toward [Appellant] during any of their interactions.
See Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). There was no evidence presented at trial
showing that Johnson possessed a weapon on the night of the
shooting. Furthermore, while [Appellant] testified that Johnson
told him to walk up Benner Street to a dark location, which was
the reason that [Appellant] stated he feared Johnson would rob
and kill him, the video showed [Appellant] motion for Johnson to
walk up Benner Street and, as the two men began to walk up
Benner Street, [Appellant] led the way. N.T., 11/15/23, at 174-
77; Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). Additionally, while [Appellant] testified that
Johnson was reaching into his pockets, [Appellant] never stated
that he saw Johnson with a weapon. See N.T., 11/15/16, at
171-212. In sum, the video shows [Appellant], unprovoked, pull
out a firearm and shoot the unarmed victim, [] then flee down
Benner Street. See Commonwealth Exhibit C-32 (Surveillance
Footage Compilation Video).

[Appellant’s] testimony that he acted in self-defense
was also undermined by his paradoxical denial that he was
the shooter in the surveillance video. While [Appellant]
admitted to shooting Johnson, he denied that he was the shooter
depicted in the surveillance video. N.T., 11/15/23, at 174-77,
182-83, 198-211. However, the Commonwealth convincingly
established that [Appellant] was the man in the video. The video
clearly captured the face of the shooter, which looked exactly like
[Appellant]. See Commonwealth Exhibit C-32 (Surveillance
Footage Compilation Video); Commonwealth Exhibit C-2

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(Photograph of [Appellant]).[FN2] Furthermore, the shooter
approached Joe’s Market from the east side of Torresdale Avenue,
which was consistent with where [Appellant] lived at the time of
the murder. Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video); N.T. 11/15/23 at 172, 201-02. Additionally,
the shooter appeared taller than Johnson, who was six-foot-four-
inches tall. Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video); N.T., 11/15/23, at 19. [Appellant] is six-foot
five-inches tall. N.T., 11/15/23, at 118; Commonwealth Exhibit
C-34 (Pennsylvania Certified Driver History).

[FN2] Since [Appellant] was not present in court with the jury, the

Commonwealth published Exhibit C-2 so the jury could see
[Appellant’s] face.

Furthermore, cell phone records also corroborated that
[Appellant] was the shooter depicted in the video. The
Commonwealth presented a cell phone extraction of the phone
found next to the [victim]. N.T., 11/15/23, at 76-77. The
extraction included phone calls and text messages between the
phone found next to the [victim] and the number registered to
[Appellant]. Id. at 77. These calls and text messages occurred
on December 16, 2017, the date of the murder, between
approximately 5:50 p.m. and 7:20 p.m. Id. at 81-86;
Commonwealth Exhibit C-20 (Phone Extraction Report). These
text messages and calls lined up with actions the shooter took on
the video. See Commonwealth Exhibit C-20 (Phone Extraction
Report); Commonwealth Exhibit C-32 (Surveillance Footage
Compilation Video). For example, at approximately 7:18 p.m.,
the shooter is seen making a phone call on the surveillance video.
Commonwealth Exhibit C-32 (Surveillance Footage Compilation
Video). The call records show that a call was placed at
approximately 7:18 p.m. from the number associated with
[Appellant] to the phone found next to the [victim].
Commonwealth Exhibit C-20 (Phone Extraction Report).

All of this was compelling proof that completely refuted
[Appellant’s] claim of self-defense. Furthermore, based upon the
evidence adduced at trial by both the Commonwealth and
defense, [Appellant’s] testimony that he acted in self-
defense was utterly incredible. The jury was free to reject his

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testimony. See Ramtahal, 33 A.3d at 607.

Trial Court Opinion, 4/15/24, at 16-19 (emphasis added; footnotes in original;

some citations and capitalization modified). The trial court additionally found

that Appellant’s use of a deadly weapon on a vital part of the victim’s body

“was sufficient evidence to show that [Appellant] acted with specific intent to

kill.” Id. at 19; see also Rega, 933 A.2d at 1009.

Our review confirms the trial court’s reasoning is supported by the

record and we agree with its conclusion. See id. at 16-19. Appellant

essentially asks us to 1) ignore the evidence of his guilt (including compelling

surveillance video); 2) reweigh the evidence, viewed in a light most favorable

to him; and 3) substitute our judgment for that of the jury and credit

Appellant’s justification defense. This we cannot do. See Jones 271 A.3d at

458 (stating the fact-finder “is not required to believe the defendant’s

testimony that he thought that he was in imminent danger and acted

in self-defense.” (emphasis added)). Because the Commonwealth clearly

produced sufficient, overwhelming evidence establishing all elements of first-

degree murder beyond a reasonable doubt, his sufficiency challenge does not

merit relief.

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In his second issue, Appellant argues the jury’s verdict of guilty for first-

degree murder is against the weight of the evidence. 11 See Appellant’s Brief

at 24-27. Appellant repeats essentially the same argument he raised in

connection with his sufficiency challenge. Namely, he 1) emphasizes his trial

testimony that “he felt threatened by” the victim and “feared for his safety

prior to shooting” him, id. at 24, 27; and 2) claims “video of the incident does

not in any way rebut Appellant’s testimony that he acted in self-defense or

unreasonable self-defense.” Id. at 27. Accordingly, Appellant contends the

trial court erred in denying his post-sentence motion for a new trial. Id.

The Commonwealth counters the trial court properly exercised its

discretion in rejecting Appellant’s weight claim. See Commonwealth Brief at

32-34. “Because the evidence demonstrating that [Appellant] did not act out

of self-defense or imperfect self-defense was overwhelming, [Appellant’s

weight] claim is meritless.” Id. at 32; see also id. at 33 (correctly pointing

out “the only evidence [Appellant] proffered that he acted out of self-defense

or imperfect self-defense was his own testimony.”). According to the

Commonwealth, the “verdict did not shock the consci[ence] because the jury

accepted the objective facts rather than [Appellant’s] self-contradicting

testimony.” Id. at 34.

____________________________________________

11 Appellant preserved this issue, as required by Pa.R.Crim.P. 607, by raising

it with the trial court in a post-sentence motion. See Post-Sentence Motion,
11/20/23, ¶ 3.
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We review a trial court’s ruling on a challenge to the verdict as against

the weight of the evidence for an abuse of discretion. Banniger, 303 A.3d at

1095; see also Commonwealth v. Harrington, 262 A.3d 639, 646 (Pa.

Super. 2021) (“An abuse of discretion will not be found based on a mere error

of judgment, but rather exists where the court has reached a conclusion which

overrides or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.” (citation

omitted)).

A verdict is not contrary to the weight of the evidence
because of a conflict in testimony or because the reviewing court
on the same facts might have arrived at a different conclusion
than the fact finder. Rather, a new trial is warranted only when
the jury’s verdict is so contrary to the evidence that it shocks one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail. Where, as
here, the judge who presided at trial ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.

One of the least assailable reasons for granting or denying
a new trial is the lower court’s determination that the verdict was
or was not against the weight of the evidence and that new
process was or was not dictated by the interests of justice. Thus,
only where the facts and inferences disclose a palpable abuse of
discretion will the denial of a motion for a new trial based on the
weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (internal citations,

emphasis, and quotation marks omitted); see also Commonwealth v.

Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) (“Where issues of credibility

and weight of the evidence are concerned, it is not the function of the appellate

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court to substitute its judgment based on a cold record for that of the trial

court.”). “It is well settled that the fact-finder is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses….”

Commonwealth v. James, 297 A.3d 755, 768 (Pa. Super. 2023) (citation

omitted).

Here, the trial court opined it properly exercised its discretion in

rejecting Appellant’s weight claim, and found the guilty verdict for first-degree

murder was amply supported by the evidence and did not shock the court’s

conscience. See Trial Court Opinion, 4/15/24, at 20. We decline Appellant’s

invitation to assume the role of the fact-finder, reweigh the evidence on

appeal, and usurp the jury’s credibility determinations concerning, inter alia,

Appellant’s self-serving and self-contradictory trial testimony. Upon review,

we conclude the trial court properly exercised its discretion in denying

Appellant’s weight claim. See Commonwealth v. Scott, 146 A.3d 775, 778

(Pa. Super. 2016) (stating an appellate court will not disturb the fact-finder’s

credibility findings that are supported by evidence of record);

Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009) (holding

trial court properly exercised discretion in denying a weight challenge where

the appellant asked this Court to reweigh the evidence). Consequently,

Appellant’s second issue merits no relief.

In his third issue, Appellant claims the trial court unlawfully deprived

him of his right to be physically present for trial. See Appellant’s Brief at 12-

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14. Although Appellant concedes he “had engaged in courtroom misconduct

previously,” id. at 12, he maintains “there was minimal misconduct in the

second trial and denial of the right to be present and testify before the jury

prejudiced Appellant.” Id. According to Appellant, “[t]he trial court abused

its discretion and Appellant was harmed because the jury could only assume

that Appellant was guilty because he could not even be in the courtroom.” Id.

at 14; see also id. (“Alternative measures were not adequately considered.”).

The Commonwealth conversely argues the trial court did not violate

Appellant’s right to be physically present during trial, as he had forfeited this

non-absolute right due to his repeated courtroom misconduct. See

Commonwealth Brief at 16-21.

[Appellant’s] egregiously disruptive, violent, and threatening
behavior, even after [a] warning from the [trial] court, fully
supported the trial court’s conclusion that [Appellant] had
forfeited his right to be present. Given [Appellant’s] behavior
throughout his case, it was exceedingly likely that that he would
again engage in threatening or disruptive behavior before the jury
if permitted to testify in-person. Thus, the court fashioned a
reasonable alternative that preserved [Appellant’s] rights to
testify. Accordingly, neither his right to be present nor his right
to testify were violated.

Id. at 16. The Commonwealth points out Appellant “cites no authority to

suggest that a court must overlook the prior behavior of a defendant after

that very behavior led to a mistrial.” Id. at 18.

It is well-settled that “[a] criminal defendant has both a rule-based right

to be present for trial, Pa.R.Crim.P. 602, as well as a constitutional right.”

Commonwealth v. Tejada, 188 A.3d 1288, 1293 (Pa. Super. 2018); see

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also Commonwealth v. Kelly, 78 A.3d 1136, 1141 (Pa. Super. 2013)

(explaining the constitutional right). However, this right is not absolute.

Tejada, 188 A.3d at 1293.

[A] defendant can lose his right to be present at trial if, after he
has been warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with
him in the courtroom.

Id. (citation omitted); see also Commonwealth v. Baldwin, 58 A.3d 754,

764 (Pa. 2012) (stating while a defendant has the right to testify, this right

“is not without parameters, and cannot be used as a vehicle for a defendant

to obviate the rules of trial procedure and evidence.”). “[A] judge has the

responsibility and authority to maintain in the courtroom the appropriate

atmosphere for the fair and orderly disposition of the issues presented.”

Commonwealth v. Chester, 587 A.2d 1367, 1379 (Pa. 1991).

Here, the trial court opined it did not violate Appellant’s rights or err in

ruling he had forfeited his right to give live trial testimony:

[Appellant] forfeited his right to be present through his disorderly,
disruptive and disrespectful behavior. [Appellant] was originally
represented by privately retained counsel, Allan Sagot, Esquire,
who moved to withdraw after claiming [Appellant] failed to pay
him. [Appellant’s] next four appointed attorneys all withdrew due
to [Appellant’s] behavior. Attorney Deborah Nixon complained of
hostile telephone calls from [Appellant] in which [Appellant]
screamed, used profanity, threatened “to sabotage” her, and
stated there would be a “gang war” with her. N.T., 8/26/19, at
15-20. Attorney Benjamin Cooper, the next to serve, withdrew
after [Appellant] accused him of collaborating with the prosecution
and filed a complaint about him with the FBI. … Attorney Eileen

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Hurley, who took over next, withdrew after [Appellant] made
threats against her.

On May 9, 2022, [Appellant’s] initial jury trial began before
the Honorable Barbara McDermott. [Attorney] Yacoubian …
represented [Appellant]. Based upon [Appellant’s] long history of
issues with prior counsel, the court asked [Appellant] if he was
ready to proceed with [Attorney] Yacoubian representing him.
N.T., 5/9/22, at 12-14. [Appellant] confirmed that he was ready
to proceed. Id. After the jury was sworn in, as [Appellant had]
entered his not guilty plea, [Appellant] stated that [Attorney]
Yacoubian was “railroading” him and had not subpoenaed
witnesses. Id. at 40-42. The court cleared the jurors from the
courtroom. Id. At that time, [Appellant] warned [Attorney]
Yacoubian not to “play with [him].” Id. at 41-42. [Attorney]
Yacoubian asked [Appellant] if [Appellant] was threating him, to
which [Appellant] responded, “I said don't play with me.” Id. The
court then warned [Appellant] that if he had another outburst he
would be removed from the courtroom. Id. at 42-43. [Appellant]
confirmed he understood the warning. Id. at 44-46.

Two days later, on May 11, 2022, as the Commonwealth
called its first witness of the day’s proceedings, [Appellant]
punched [Attorney] Yacoubian in the face. N.T., 5/11/22, at
14-16. The court immediately removed the jurors from the
courtroom and sent them to the courtroom next door. Id. at 14-
19, 24. [Appellant] was removed from the courtroom by the
sheriff and placed in the lockup located in the [cell block] next to
the courtroom [(adjacency lockup)]. Id. at 17[; see also id. at
23-24 (trial court stating the configuration “of the courtroom … is
such that the cell block is immediately next to the courtroom.”).
Appellant] then began screaming from the adjacency lockup. Id.
[at 17. Appellant] accused Judge McDermott of colluding with the
District Attorney’s Office. Id. at 17-21. Moreover, [Appellant]
began threatening [Attorney] Yacoubian’s family stating, “I know
where your kids are at, George” and “I don’t know why you would
do this, George. You know I know where your fucking family lives
at, George.” Id. at 17-21. [Appellant] then began yelling juror
numbers and stating “y’all know what y’all are doing.” Id. at 22-
23. At that point, Judge McDermott had [Appellant] removed from
the adjacency lockup to the court’s main holding center. Id. at
22-26.

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Judge McDermott brought the jurors back into the
courtroom to explain the delay and then individually colloqu[i]ed
them about whether they could still be fair. Id. at 30-56. During
the individual colloquies, it became apparent that the jurors had
seen [Appellant] punch [Attorney] Yacoubian, heard [Appellant’s]
threats and shouting from the [adjacency lockup], and felt
threatened by [Appellant’s] behavior. Id. Out of fourteen jurors,
only two stated they could potentially still be fair. Id. [Attorney]
Yacoubian motioned for a mistrial and the court granted
[Attorney] Yacoubian’s motion. Id. at 19, 56-60.

At a status listing on February 16, 2023, Judge McDermott
again had to remove [Appellant] from the courtroom after
[Appellant] continued to interrupt the court and accused Judge
McDermott of lying. N.T., 2/16/23, at 27. As sheriffs removed
[Appellant], he began mouthing words and yelling obscenities at
the court. Id. at 28. A court officer reported to the court that
[Appellant] was mouthing the phrase “I will kill you” to
Judge McDermott as [Appellant] was removed from the
courtroom. Id. at 33. As sheriffs removed [Appellant] from the
adjacency lockup to the main holding center located in the
basement of the courthouse, [Appellant] threatened Judge
McDermott again by stating “[b]itch, you’ve got something to
worry about, not the lawyer.” Id. at 34-35. Based upon this
behavior, Judge McDermott recused herself from the case and the
case was reassigned to the [] judge [who authored the Pa.R.A.P.
1925(a) opinion, the Honorable Glenn B. Bronson.]

On June 9, 2023, th[e trial] court issued an order, which
outlined [Appellant’s] long history of misbehavior and ordered that
[Appellant] had forfeited his right to be present for trial as well as
his right to proceed pro se. However, the court agreed to allow
[Appellant] to be present in the courthouse during his trial and
watch it via audio-visual transmission from the adjacency lockup.
The court moved [Appellant’s] trial to a larger courtroom[,] where
the adjacency lockup is located farther from the jury box so that
the jurors would not be able to hear [Appellant] if he yelled
disruptive threats as he had in the initial trial. Additionally, the
court arranged to have a camera capture a live feed of the
proceedings, which would be broadcasted directly to [Appellant]
in the adjacency lockup.

[Appellant’s] trial began with jury selection on November
13, 2023, under the aforementioned restrictions. The next day,

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just minutes after the jury was sworn in as the court gave
preliminary instructions, [Appellant] began yelling from the
adjacency lockup. N.T., 11/14/23, at 14. Unfortunately, even in
the larger courtroom, [Appellant] was able to yell loud enough to
be heard by the jurors. The court immediately removed the jurors
from the courtroom. Id. As the court heard argument from
counsel regarding whether [Appellant] could remain in the
adjacency [lockup] going forward, [Appellant] continuously yelled
from the adjacency [lockup] and disrupted the proceedings. Id.
at 14-21. At that point, the court ruled that [Appellant] had
forfeited his right to be present in the adjacency [lockup] with a
live feed of the proceedings. Id. at 15-20. The court had
[Appellant] removed from the adjacency lockup to the court’s
main holding center. Id. at 21-22. Once [Appellant] was
removed, the jurors were brought back to the courtroom. Id. at
24. After consulting with both defense counsel and the assistant
district attorney, the court informed the jurors that “[w]e did have
a slight disturbance, which has been rectified, so we’re going to
continue on now with our trial.” Id. at 22-24.

Therefore, [Appellant’s] long history of outrageous
behavior necessitated a trial in absentia. In [Appellant’s] first
trial, he physically assaulted [Attorney Yacoubian] in full view of
the jury and then threatened jurors …, which caused a mistrial.
At a later status hearing, [Appellant] threatened to kill the [Judge]
McDermott, which caused Judge McDermott to recuse herself from
the case. After the case was reassigned …, the [trial] court
attempted to make every accommodation to balance
[Appellant’s] right to be present with the need to try the
case fairly. Even under such accommodations, [Appellant]
still could not maintain proper decorum and had to be
removed in order to prevent another mistrial. Since
[Appellant] forfeited his right to be present through his behavior
in the courtroom, the court did not err in barring [Appellant] from
the courtroom during his trial. See Tejada, 188 A.3d at 1293-
94.

Trial Court Opinion, 4/15/24, at 7-11 (emphasis added; some citations and

capitalization modified).

The trial court continued:

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Additionally, having forfeited his right to be present in the
courtroom, [Appellant] necessarily forfeited his right to testify in
front of the jury. Nonetheless, the [trial c]ourt permitted
[Appellant] to testify by recorded trial deposition, which obviated
the concern that [Appellant] would misbehave in order to cause
another mistrial. [Appellant’s] testimony was taken in a manner
similar to a Pa.R.Crim.P. 500 preservation hearing. 12
[Appellant’s] testimony was recorded on video in the courtroom.
All parties were situated exactly as they would have been at trial,
with the sole exception that the jury was not present. Both the
attorney for the Commonwealth as well as defense counsel
conducted the questioning…. Furthermore, the [c]ourt did not
require the [Appellant] to decide whether to testify until after the
Commonwealth had rested.

Id. at 11-12 (footnote added).

Our review discloses the trial court’s cogent reasoning is supported by

the law and the record, and we agree with its conclusion. See id. at 7-12;

see also Tejada, 188 A.3d at 1293.

Moreover, Appellant cannot show prejudice, as the trial court issued

several cautionary instructions to the jury regarding Appellant testifying by

video in lieu of live testimony. Specifically, prior to jury selection, the court

instructed as follows:

The defendant in this case, ladies and gentlemen, is
[Appellant]. And as you folks can see he is not here in this
courtroom. He is, however, able to see and hear everything that
is going on during this trial through an audio-visual system that
we have set up here in this courtroom.

____________________________________________

12 Rule 500 provides, in relevant part, a trial court “may order the taking and

preserving of the testimony of any witness who may be unavailable for trial
…, or when due to exceptional circumstances, it is in the interests of justice
that the witness’ testimony be preserved.” Pa.R.Crim.P. 500(A)(1).
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In addition, he will be able to confer with his attorney,
[Attorney] Schultz, here throughout the course of this trial. Now,
the reason that we are proceeding in this fashion is not something
you should concern yourselves with. I need you folks to
understand -- and this is important -- that it is completely lawful
for us to proceed in this way under the circumstances of this case.

In addition, folks, if you are selected to be on this jury you
may not in any manner consider the fact that [Appellant] is
attending the trial through audio-visual communication
when you’re making your decision in this case. In other
words, you may not hold it against [Appellant] or against the
Commonwealth or against anybody else connected with this case.

N.T., 11/13/23, at 19-20 (emphasis added).

Moreover, the trial court questioned the prospective jurors prior to jury

selection:

Is there anybody here who believes that because
[Appellant] will be participating in this trial through audio-
visual communication and will not be here in the courtroom
that you would be unable to be a fair and an impartial juror
in this case, in other words, [Appellant’s] absence from the
courtroom would substantially interfere with or prevent you from
being a fair and an impartial juror?

Id. at 25 (emphasis added). No juror responded in the affirmative. Id.

Before Appellant’s recorded testimony was played for the reconvened

jury, the trial court again instructed the jury:

[Appellant] has decided to testify in this case, and you are
going to hear from him. However, for logistical purposes that
need not concern you, you will be hearing his testimony by way
of what we call a trial deposition, which is completely lawful in this
case. What this means is that this testimony was recorded today
after the Commonwealth presented all of its evidence and rested,
okay? That’s why we had this long break.

[Attorney] Schultz was there to ask questions on direct
examination; … the assistant district attorney[] cross-examined

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[Appellant]; and I was there to rule on any objections. And I
instruct you to consider this testimony just as if you were
sitting here live and listening to it. You may not hold it against
[Appellant] or the Commonwealth or anyone else connected with
this case that the testimony is being presented in this fashion,
okay?

N.T., 11/15/23, at 217-18 (emphasis added); see also N.T., 11/16/23, at 57-

58 (trial court’s final charge to the jury, wherein it repeated essentially the

same instructions detailed supra).13

It is well established that a jury is presumed to follow a trial court’s

instructions. Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004) (“It

is presumed the jury follows [a trial] court’s instructions.”); Commonwealth

v. Watkins, 843 A.2d 1203, 1216 (Pa. 2003) (stating a jury “is assumed to

have followed” a cautionary instruction, and such an instruction “is presumed

to be sufficient to cure any prejudice”). Based on the foregoing, there is no

merit to Appellant’s claim he was unlawfully tried in absentia.

In his fourth issue, Appellant contends the trial court erred in granting

the Commonwealth’s motion in limine and admitting inadmissible hearsay

evidence in the form of the 911 calls. See Appellant’s Brief at 14-20.

Appellant claims that a “verdict based in any material respect on inadmissible

hearsay is unreliable because inadmissible hearsay by definition is unreliable.”

____________________________________________

13 We note Attorney Schultz did not object to the trial court’s cautionary
instructions. See Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa.
Super. 2009) (“Because [a]ppellant did not object to the [trial court’s
cautionary] instruction, any claim in relation to its adequacy is waived.”)
(citations omitted).
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Id. at 19 (emphasis omitted). Appellant contends the trial court’s erroneous

ruling “caused irreparable harm to Appellant.” Id. at 20.

Appellant’s claim implicates the admissibility of evidence and the trial

court’s ruling on the Commonwealth’s motion in limine; we review such rulings

for an abuse of discretion. Commonwealth v. Mangel, 181 A.3d 1154, 1158

(Pa. Super. 2018); see also Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa. Super. 2013) (stating the “standard of review for a trial court’s

evidentiary rulings is

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10750657. Public record. Not legal advice.