Com. v. Showell, B.

J-S40043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRIAN KEITH SHOWELL :

:

Appellant : No. 2121 EDA 2023

Appeal from the Judgment of Sentence Entered August 3, 2023

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

No(s): CP-23-CR-0002477-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED FEBRUARY 21, 2025

Brian Keith Showell (“Showell”) appeals from the judgment of sentence

imposed following his convictions for five counts of attempted murder, five

counts of aggravated assault, three counts of aggravated assault of a person

less than thirteen years old, aggravated arson—person present inside

property, causing or risking catastrophe, and possessing instruments of

crime.1 We affirm.

By way of background, in the early morning hours of May 14, 2021,

Showell tried to burn down the home of Monica Griffith (“Monica”) while she

and her four children were sleeping. Police arrested Showell and charged him

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1 See 18 Pa.C.S.A. §§ 901(a), 2502(a), 2702(a)(1), 2702(a)(9),

3301(a.1)(1)(ii), 3302(b), and 907(a).

J-S40043-24

with attempted murder and related offenses. The trial court summarized the

evidence supporting Showell’s convictions as follows:

. . . [Monica] testified she was awakened by smoke

detectors shortly after midnight on May 14, 2021. After checking

on her children, she went downstairs to investigate. Initially, she

was only aware of a fire at the back door because smoke was

coming from that direction. The fire was mostly out when she

opened the door. She doused the area with water and had her

son review video footage of the back door from the surveillance

camera. [Monica] testified she clearly saw Showell in the video

setting fire to her back door. She recognized Showell because she

had known him for [seventeen] years and he is the father of her

youngest child, who was five months old at the time of the fire.

She testified Showell was married with three other children[,] and

he wanted to keep the baby a secret. She acknowledged she had

threatened to tell Showell’s wife on several occasions, but never

went through with it. The week of the fire, [Monica] received the

results from a home DNA test that showed Showell was the baby’s

father. The day of the fire, the victim gave Showell a final

ultimatum: “Either you tell your wife about the baby, or I will.”

Showell told the victim he was at work that day and got off at

11:30 p.m. The last text [Monica] sent Showell before the fire

was “I’m serious” at 11:29 p.m.

After seeing the video, [Monica] testified she tried to call

Showell and texted him that she had video cameras, to which he

replied, “I just got off.” She also called Showell’s wife and

informed her of their affair and fire. She then reported the fire to

the police.

Chester Police Officer Sean Boyd [(“Officer Boyd”)] testified

he was the first to respond to what he thought was a domestic

disturbance call and found the front door darkened with smoke

still rising from a burned carpet in front of the door. He testified

the house was filled with a decent amount of smoke everywhere

he could see. [Officer] Boyd reviewed the video, which showed a

man attempting to light the rear door on fire. The rear door still

had a fair amount of smoke coming from it. Officer Boyd got the

family out of the house and called the fire department.

Chester Detective Brian Pot [(“Detective Pot”) testified that

Monica provided him with surveillance video files from the

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incident, showing her front and rear doors. See N.T., 4/19/23, at

132-33. He further testified that Monica] identified Showell in a

photo array. [Detective Pot personally interviewed Showell after

the incident. Detective Pot] also testified he was able to identify

Showell in the surveillance video [from interviewing him after his

arrest. See id. at 136-37; 141-44. Showell’s counsel objected

arguing that the detective did not have any “personal knowledge”

of Showell on which to base his identification. Id. at 133-36. The

trial court overruled the objection and allowed the detective to

identify Showell as the person depicted in the surveillance video.

See id. at 136-37. After the trial court permitted the testimony,

Showell’s counsel did not request a curative instruction and

stated, “All right, I’m just noting my objection for the record.” Id.

at 136. Detective] Pot testified Showell provided him with the

name “Amy Manchester” as his wife’s name. His wife’s actual

name is Marena Showell. As a result of the misidentification,

[Detective] Pot was unable to interview Showell’s wife until a

month before the trial. That interview was not published to the

jury during the trial.

State Trooper Sean Maher [(“Trooper Maher”) testified as

an expert in fire investigation and evidence collection. See id. at

164-67. Trooper Maher detailed his investigation into the cause

of the May 14, 2021 fires. See id. at 171-76, 178. He] testified

that he responded to the fire and collected samples of the burned

front door carpet and rear door[, and placed the samples in sealed

paint cans for laboratory analysis. See id. at 176-180. Trooper

Maher testified that the evidence at the fire scene suggested that

a poured liquid had been set on fire. See id. at 171.] He opined

that both were set by human hands due to the absence of any

accidental causes in the area, like an electrical wire or cigarette

butt. [At the beginning of Trooper Maher’s testimony, the

Commonwealth requested permission from the trial court to

unseal the burnt carpet and wood samples recovered from the

crime scene marked as exhibits C-34 and C-35 and present them

to the jury. See id. at 162-63, 188-89. Showell’s counsel initially

objected to the Commonwealth’s request to unseal exhibits C-34

and C-35 in front of the jury, arguing that counsel “presume[d]”

that the items would “smell strongly of lighter fluid[,]” and that

the sudden smell would be unfairly prejudicial and inflammatory

to Showell. See id. at 162. The trial court overruled the objection

but noted counsel’s exception. See id. at 162-63. Exhibits C-34

and C-35 were not immediately unsealed at that time. See id.

The Commonwealth unsealed exhibits C-34 and C-35 later during

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Trooper Maher's testimony and passed them around to each juror,

at which point Showell’s counsel stated, “I have no objection.” Id.

at 189-90. The record is silent as to whether any smell was

emitted when the paint cans were unsealed.]

Christina Fialkowski, a forensic scientist with [Pennsylvania

State Police (“PSP”), qualified as a fire analysis expert testified

that] she tested both samples and found they contained a

petroleum distillate akin to charcoal starter fluid.

The defense presented Marena Showell as an alibi witness.

She testified the couple were married since 2012[,] but were

separated with no hope of reconciliation by May 2021. They lived

together for financial reasons. Marena Showell testified she was

with [Showell] throughout the day on May 13[, 2021]. Around 10

p.m. they went upstairs to watch television. She testified Showell

went downstairs to the kitchen about 11 p.m. to wash dishes.

Marena Showell said she could hear her husband in the kitchen.

She admitted she could not see him until about 11:55 p.m., when

he came upstairs briefly and then returned to the kitchen. Marena

Showell testified she received a text from [Monica] at

approximately 12:09 a.m. on May 14, [2021] informing her of the

affair with her husband and the fire.

. . . Showell testified in his defense. He described how he

spent his evening. He acknowledged he was not actually at work

that day but denied being the man captured in the video or going

to [Monica’s] home that night.

[On the last day of trial, the trial court delivered its jury

instructions stating to the jury that it was solely their

“responsibility to weigh the evidence.” N.T., 4/20/23, at 66. The

trial court also explained to the jury that they were “only judges

of the facts[,]” so it was their recollection of the evidence that

controlled. Id. at 65-66. After the jury began their deliberations,

they asked to see the surveillance video. See id. at 88. The jury

had it replayed several times and many of the jurors approached

the monitor to view it in closer detail. See id. at 90-94. The jury

also asked to see Showell’s profile for comparison. See id. at 94-

95.]

Trial Court Opinion, 11/8/23, at 1-4 (unnecessary capitalization omitted).

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At the conclusion of trial, the jury convicted Showell of the above-

referenced crimes. On August 3, 2023, the trial court resentenced Showell to

an aggregate term of ten to twenty years in prison, with a concurrent term of

seven years of probation.2 Showell filed a timely notice of appeal, and both

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

Showell raises the following issues for our review:

I. Did the trial court abuse its discretion when it permitted

Detective . . . Pot to provide identification testimony that

the person depicted in a surveillance video was [Showell]?

II. Did the trial court abuse its discretion when it permitted the

Commonwealth to present and open sealed paint cans,

containing burned evidence, which included a flammable

petroleum liquid?

Showell’s Brief at 4 (unnecessary capitalization omitted).

At the outset, we note that both of Showell’s issues challenge the

admission of certain evidence at trial. In reviewing a challenge to the

admissibility of evidence, our standard of review is well-settled and very

narrow:

Questions concerning the admissibility of evidence are within the

sound discretion of the trial court and we will not reverse a trial

court’s decision concerning admissibility of evidence absent an

abuse of the trial court’s discretion. An abuse of discretion is not

merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is

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2 The trial court initially sentenced Showell to an aggregate term of ten to

twenty years in prison, with a concurrent term of twenty years of probation

on July 13, 2023. However, the Commonwealth filed a motion to modify the

sentence, which the trial court granted and resentenced Carter on August 3,

2023.

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

partiality, as shown by the evidence of record. If in reaching a

conclusion the trial court overrides or misapplies the law,

discretion is then abused and it is the duty of the appellate court

to correct the error.

Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation

omitted). “[T]he appellant sustains the ‘heavy burden’ to show that the trial

court has abused its discretion.” Commonwealth v. Christine, 125 A.3d

394, 398 (Pa. 2015) (citation omitted).

“Admissibility depends on relevance and probative value. Evidence is

relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference

or presumption regarding a material fact.” Commonwealth v. Drumheller,

808 A.2d 893, 904 (Pa. 2002) (citation omitted); see also Pa.R.E. 401, 402.

In Showell’s first issue he claims that the trial court abused its discretion

by permitting Detective Pot to provide lay opinion testimony identifying him

as the individual in the surveillance footage from the back door camera of

Monica’s house. Pennsylvania Rule of Evidence 701 provides that the lay

opinion of a witness is admissible if the opinion is: rationally based on the

perception of the witness; (2) helpful to a clear understanding of the witness’s

testimony or the determination of a fact in issue; and (3) not based on

“scientific, technical, or other specialized knowledge” within the scope of Rule

702. Pa.R.E. 701.

Under appropriate circumstances, this Court has upheld decisions to

allow police to offer lay opinion testimony. See Commonwealth v. Palmer,

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192 A.3d 85 (Pa. Super. 2018) (finding detective’s lay opinion testimony

identifying Palmer as the shooter in a surveillance video to be admissible

where the identification was based upon the detective’s own perceptions from

personally viewing the video of the shooting, then comparing earlier portions

for other instances where Palmer appeared); see also Commonwealth v.

Williams, 315 A.3d 65 (Pa. Super. 2024) (unpublished memorandum at *6)

(determining that trial court did not abuse its discretion in admitting officer’s

identification of Williams from a surveillance video as his testimony was

“helpful for the jury to assess the credibility of [the victim’s] identification of

[Williams] as the shooter”).3

Showell argues that Detective Pot’s identification testimony was not

rationally based on his perception of Showell. Showell insists that Detective

Pot “did not know [Showell], nor did he have any prior interaction with [him].”

Showell’s Brief at 15. Showell maintains that Monica was the “source of

Detective Pot’s identification” and he “prepared a photo array” which included

Showell’s photo. Id. However, Showell concedes that Detective Pot directly

interacted with Showell during an interview just prior to his arrest. 4 See id.;

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3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this

Court filed after May 1, 2019, for their persuasive value).

4 We note that Detective Pot testified that he interviewed Showell following

his arrest. See N.T., 4/19/23, at 141.

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see also id. at 12 (wherein Showell acknowledges Detective Pot’s “personal

knowledge” of Showell based on “his interview with [Showell]”). 5

The trial court considered Showell’s first issue and determined that it

lacked merit. The trial court reasoned that “[h]ere, . . . [t]he witness’s

testimony was rationally based on the detective’s perception upon retrieving

and reviewing the video.” Trial Court Opinion, 11/8/23, at 14-15.

Based on our review, we discern no abuse of discretion by the trial court

in allowing Detective Pot to identify Showell as the person depicted in the

surveillance video. During Detective Pot’s testimony at trial, he stated that

he was able to identify Showell in the video because of his interactions with

Showell during his interview following his arrest. See N.T., 4/19/23, at 141,

257. Furthermore, Showell conceded that Detective Pot had “personal

knowledge” of Showell based on the detective’s “direct interaction” with

Showell during his interview. Showell’s Brief at 15. Thus, contrary to

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5 Showell additionally argues that, when his counsel objected to Detective

Pot’s identification testimony, the trial court should have provided an

instruction that the jury’s observations controlled, and that “the testimony of

a police officer should be given any more or less weight for the mere fact that

a witness is a police officer.” Showell’s Brief at 16. However, Showell

concedes that he did not raise this issue at trial or request any such instruction

from the trial court. See id. Thus, as Showell failed to raise this issue before

the trial court, he failed to preserve it for our review. See Commonwealth

v. Pressley, 887 A.2d 220, 222-23 (Pa. 2005) (holding that the failure to

request a jury instruction at the appropriate time of trial renders a complaint

about the court’s failure to issue the instruction waived on appeal); see also

Pa.R.A.P. 302(a) (providing that issues not raised in the trial court are waived

and cannot be raised for the first time on appeal).

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Showell’s assertions otherwise, the record reflects that Detective Pot’s

identification testimony was rationally based on his own perception based on

his interactions with Showell.6

In Showell’s second issue, he claims that the trial court abused its

discretion in permitting the prosecution to open the paint cans containing the

remnants of burnt carpet and wood samples recovered from the crime scene

because, although relevant, the smell emanating from such evidence was

unfairly prejudicial and inflammatory. Pursuant to our Rules of Evidence, a

court may exclude relevant evidence if its probative value is outweighed by

its potential to cause unfair prejudice. See Pa.R.E. 403. However,

“[e]vidence is not unfairly prejudicial simply because it is harmful to the

defendant’s case.” Commonwealth v. Williams, 255 A.3d 565, 576 (Pa.

Super. 2021). Rather, “‘[u]nfair prejudice’ means a tendency to suggest

decision on an improper basis or to divert the jury’s attention away from its

duty of weighing the evidence impartially.” Pa.R.E. 403, Comment; see also

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6 We note that, even if the admission of Detective Pot’s identification testimony

constituted an abuse of discretion, his testimony was merely cumulative of

Monica’s identification testimony, which Showell concedes was properly

admitted. See Showell’s Brief at 14 (stating that “[t]he trial court properly

allowed [Monica] to testify as to the identity of [Showell] in the video”).

Accordingly, any possible error in the admission of the detective’s testimony

would have been harmless, since it was cumulative to other evidence that

Showell conceded was properly admitted. See Commonwealth v. Murray,

248 A.3d 557, 576 (Pa. Super. 2021) (reaffirming that, “[w]e may consider

error harmless only where . . . the erroneously admitted evidence was merely

cumulative of other, untainted evidence which was substantially similar to the

erroneously admitted evidence) (citation omitted).

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Commonwealth v. Gonzalez, 112 A.3d 1232, 1238 (Pa. Super. 2015)

(stating that “[b]ecause all relevant Commonwealth evidence is meant to

prejudice a defendant, exclusion is limited to evidence so prejudicial that it

would inflame the jury to make a decision based upon something other than

the legal propositions relevant to the case”). Furthermore, the trial court is

not “required to sanitize the trial to eliminate all unpleasant facts from the

jury’s consideration” where the evidence is relevant to defendant’s guilt.

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (citation

omitted).

Showell argues that the trial court abused its discretion by allowing the

Commonwealth to unseal the paint cans in front of the jury which contained

burnt carpet and wood samples recovered from the crime scene. Showell

notes that his counsel objected to the potential smell that might be emitted if

the paint cans were permitted to be opened. Specifically, Showell was

concerned that the smell of lighter fluid by the jury could have a prejudicial

effect on his case. See Showell’s Brief at 18. Showell points out that both

paints cans “literally passed under the noses of the [j]ury;” however, Showell

acknowledges that “[t]he record is silent as to the extent [the paint cans]

smelled of lighter fluid . . ..” Id.7

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7 Showell additionally maintains that, although the paint cans and the evidence

they contained were relevant, the act of opening the paint cans was

“needlessly cumulative” because the Commonwealth had already introduced

(Footnote Continued Next Page)

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The trial court considered Showell’s second issue and determined that it

lacked merit. The court reasoned:

[E]vidence of the burned items from the victims front and back

door [we]re clearly admissible. The fact that they had a chemical

smell when unsealed did not prejudice [Showell] in the least.

[Showell’s] defense was that he was not there, he did not set the

fire[s], it was someone else. . . . Based on his defense, [Showell]

is unable to prove the court abused its discretion in allowing this

evidence.

Trial Court Opinion, 11/8/23 at 15-16.

Based on our review, we discern no abuse of discretion by the trial court

in permitting the prosecution to unseal the paint cans containing burned items

from the crime scene. Initially, we note that the record is silent as to whether

any smell did, in fact, emanate from the paint cans after they were unsealed.

Defense counsel did not create a record regarding any such smell, and instead

stated “I have no objection” when the Commonwealth passed the unsealed

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thirty-five photos and two videos of the fire scene. Showell’s Brief at 19.

However, our review of the record reveals that Showell failed to raise any

objection to the opening of the paint cans on this basis. See Commonwealth

v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (holding that a party must

make timely and specific objection at trial to preserve issue for appellate

review); see also Pa.R.A.P. 302(a). Accordingly, the failure by Showell’s

counsel to raise a timely objection on the basis that this evidence was

cumulative results in waiver for purposes of appellate review. Furthermore,

we define cumulative evidence as “additional evidence of the same character

as existing evidence and that supports a fact established by the existing

evidence.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa.

Super.2007) (quoting Black's Law Dictionary, Seventh Edition, at 577), appeal

denied, 944 A.2d 756 (Pa. 2008). However, as in this case, “[e]vidence that

strengthens or bolsters existing evidence is corroborative evidence; we have

previously explained that corroborative evidence is not cumulative evidence.”

See id.

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paint cans to the jury. N.T., 4/19/23, at 189-90. Thus, this Court is unable

to meaningfully consider what smell, if any, was emitted from the unsealed

paint cans. In any event, even assuming that a smell emanated from the

paint cans, we discern no basis to fault the trial court’s determination that the

probative value of the evidence outweighed any prejudice Showell may have

suffered from the smell. Given that intent was an element of aggravated

arson—person present inside property, the use of an accelerant such as lighter

fluid, was highly relevant to the question of whether Showell deliberately and

intentionally attempted to set the house on fire. See Pa.C.S.A.

3301(a.1)(1)(ii). The trial court was not required to sanitize the evidence

admitted at trial to Showell’s benefit. See Hairston, 84 A.3d at 666 (citation

omitted). Thus, after a careful review of the record, we conclude that Showell

failed to show that the trial court abused its discretion in allowing the

Commonwealth to unseal the paint cans containing burnt carpet and wood

samples in front of the jury.

For the foregoing reasons, we determine Showell is not entitled to relief

on any of his issues. We thus affirm the judgment of sentence.

Judgment of sentence affirmed.

Date: 2/21/2025

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