Com. v. McMillan, T.

J-A05042-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYLER C. MCMILLAN :

:

Appellant : No. 167 WDA 2024

Appeal from the Judgment of Sentence Entered August 16, 2023

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

No(s): CP-37-CR-0000903-2020

BEFORE: MURRAY, J., KING, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 16, 2025

Tyler C. McMillan appeals from the judgment of sentence, entered in the

Court of Common Pleas of Lawrence County, after a jury convicted him of

criminal homicide and criminal conspiracy to commit criminal homicide.1

McMillan challenges: (1) the Commonwealth’s amendments to the

information regarding an accomplice theory of liability and the added charge

of criminal conspiracy; (2) the admission of out-of-court statements of non-

testifying co-defendants; (3) the sufficiency of the evidence for each of his

convictions; and (4) the weight of the evidence. After review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2501(a), 903.

J-A05042-25

The trial court set forth the facts and procedural history of this case as

follows:

In March of 2020, Schylore Altenburg resided [on] North Lee

Avenue[ in] New Castle[,] with his girlfriend, Colleen Gasser, their

son[,] and Colleen’s [] sister[,] Sierra Gasser.[2] On March 22,

2020, [McMillan] was visiting [the] Altenburg[-Gasser] residence

when he explained to [] Altenburg that Andre Robinson shot at

[the vehicle of] Karalinn Perrotta[, McMillan’s girlfriend. McMillan

told Altenburg] he “was going to shoot that N---a,” referring to []

Robinson.

The next day, [on March 23, 2020,] at approximately 10:00 p.m.,

[McMillan], [] Perrotta and [] Perrotta’s two children were at [the]

Altenburg[-Gasser] residence. At that time, [McMillan] showed []

Altenburg a []9-millimeter Taurus pistol with a teal handle and []

Altenburg overheard [McMillan] state[] he “was going to kill that

mother fucker” in reference to [] Robinson.

Similarly, Colleen [] testified she returned home from work that

day around 4:00 p.m. and [McMillan], [] Perrotta, Sierra[,] and []

Altenburg’s sister, Brooklyn Altenburg,[3] were present at the

residence. Those individuals were present when [Colleen] went

to bed at approximately 8:00 or 9:00 p.m.

Khalil Newman [] arrive[d] later at the residence. [McMillan], []

Perrotta, Sierra[,] and [] Newman were in the kitchen and []

Altenburg observed at least three firearms on the table. []

Altenburg explained there were conversations between [McMillan]

and [] Perrotta[,] who stated they had to clean their firearms and

get dressed in proper attire as they planned to murder []

Robinson.

Brooklyn [] testified she visited her brother[] at [the Altenburg-

Gasser] residence around 6:00 p.m. on March 23, 2020. At that

time, [] Altenburg, [] Colleen[], Sierra [], [McMillan,] and []

Perrotta were present[,] along with [] Perrotta’s two young

____________________________________________

2 We refer to Colleen Gasser and Sierra Gasser by their first names.

3 We refer to Brooklyn Altenburg by her first name and continue to refer to

Schylore Altenburg by his last name.

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children. [Brooklyn] remained downstairs to ensure [] Perrotta’s

children were alright as there were firearms present. [] Newman

[] arrive[d] at the residence later that night. [Brooklyn] recalled

seeing [McMillan], [] Perrotta, [] Newman[,] and Sierra [] making

“bombs” or “Molotov Cocktails” out of Twisted Tea bottles.

[Brooklyn] also testified she observed firearms and drugs in the

kitchen where those individuals were located. According to

[Brooklyn], [McMillan], [] Perrotta, [] Newman[,] and [Sierra] all

left the residence at the same time. [Sierra ]called [Brooklyn]

and instructed her to place the Twisted Tea bottles on the porch,

which she did. [Brooklyn] then went to sleep.

Sierra [] testified [that on a prior occasion, McMillan] and Jabril

Henley robbed [] Robinson’s friend, Chris Murphy, which

prompted [] Robinson to shoot at [] Perrotta’s vehicle with her

children present. [] Perrotta informed Sierra [] that [she] and

[McMillan] were going to kill [] Robinson before he had the chance

to kill them. [Sierra] explained she was at [the] Altenburg[-

Gasser] residence on March 23, 2020, with [McMillan], []

Perrotta[,] and [] Newman. [McMillan] then stated they were

going to kill [] Robinson as a result of the aforementioned

incidents. At some point during the late evening of March 23,

2020, or early morning hours of March 24, 2020, [] Robinson

messaged [Sierra] on Facebook inquiring about having sexual

intercourse with her. [McMillan] and Perrotta told [Sierra] to

message [Robinson] back [and] instruct[ed Sierra] on what to

say. [] Robinson then asked [Sierra] to communicate with him

via text messaging, which she did by sending the first text

message at 1:12 a.m. on March 24, 2020. [McMillan] and []

Perrotta instructed Sierra [] to message [] Robinson using an

application called “Text Now” so it could not be traced to her

phone. [Sierra] indicated they left [the] Altenburg[-Gasser]

residence several times that night, including one time to retrieve

[] Newman.

While they were [driving] in [Perrotta’s] vehicle, there were

conversations about killing [] Robinson.

Ultimately, [McMillan] and [] Perrotta decided it would be best to

wear dark clothing and turn them inside out. They drove to []

Newman’s apartment so that he could change his clothing. At that

time, [] Perrotta was driving[, McMillan] was in the front

passenger seat[,] Sierra [] was in the rear middle seat due to the

presence of a child’s car seat [on the rear driver’s side seat, and]

Newman was located on the rear passenger seat[]. They also

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drove to [] Perrotta’s house to obtain foundation to cover a tattoo

on [McMillan]’s hand.

[] Perrotta and [McMillan] urged Sierra [] to continue to message

[] Robinson and they told her what to say in those messages[,

including,] at 1:29 a.m.[,] inquiring about what vehicle []

Robinson was seated in and where he was located[,] to which []

Robinson responded he was in a red vehicle at McGrath Manor.

While they were driving around, [Sierra] saw a .45-caliber pistol

resting on [McMillan]’s lap. They drove past McGrath Manor []

and observed a vehicle matching the description provided by []

Robinson. [] Perrotta then parked the vehicle by some trees.

[McMillan] said, “We’re going to kill this mother fucker,” and he

had a firearm on his lap. [McMillan] and [] Newman exited the

vehicle and, shortly thereafter, [Sierra] heard gunshots.

[McMillan] and [] Newman returned to [Perrotta’s] vehicle and

[McMillan] stated, “We got this mother fucker.” [McMillan] also

[stated that] he shot [] Robinson in the back of the head and a

location [Sierra] could not recall.

[McMillan] and [] Perrotta then instructed [Sierra] to continue to

send messages to [] Robinson to make it appear like they had

nothing to do with the homicide. They returned to [the]

Altenburg[-Gasser] residence and [Sierra] recalled [] Newman

being anxious and having blood on his shirt. [Sierra] also testified

[] Perrotta made a comment about wanting to have sexual

intercourse with [McMillan] following the homicide.

[On March 24, 2020,] Altenburg was awakened at approximately

2:00 a.m. by five or six gunshots[, and then] again at

approximately 5:00 a.m. by [McMillan and Perrotta’s] knock at the

door[.] Altenburg asked [McMillan] if everything was alright, and

[McMillan] responded by instructing [] Altenburg to turn on the

news. [Altenburg] did so and there was a [news] report about a

homicide at the parking lot of McGrath Manor.

Colleen [] woke up at approximately 5:00 a.m. to go to work when

she noticed [McMillan], [] Perrotta[,] and Sierra [] sleeping in the

living room. Colleen [] asked [McMillan] what happened and he

responded by instructing her to look on Facebook and to drive past

McGrath Manor on her way to work. [Colleen] did so and noticed

police officers present in the McGrath Manor parking lot. When

she arrived at work, [Colleen] checked Facebook and discovered

an article about a homicide at the McGrath Manor parking lot.

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* * *

[Brooklyn] was awakened by [McMillan], [] Perrotta, Sierra[,] and

[] Newman returning to the [Altenburg-Gasser] residence. []

Newman was moving frantically around the house and he had

blood on his shirt. [] Perrotta stated, “When we killed him it made

my p---y wet,” and she wanted to have sexual intercourse with

[McMillan]. The parties stipulated to the existence of a video

recording of [McMillan] and [] Perrotta having sex[,] which

occurred at 3:05 a.m. on March 24, 2020.

[On March 24, 2020, Altenburg discovered the Taurus pistol in a

cabinet in his house and removed the magazine and one bullet

from the chamber. Altenburg observed there were only three

bullets remaining in the magazine. He then placed the firearm

and magazine in a paper bag on his front porch and contacted

McMillan and Perrotta to retrieve it.]

Shortly after 3:30 a.m. on March 24, 2020, Detective Brandon

Hallowich of the New Castle Police Department received a call

concerning a deceased male from gunshot wounds in the McGrath

Manor parking lot. Upon his arrival, Detective Hallowich

discovered a maroon Chevrolet Equinox facing eastbound with its

headlights on and [] Robinson located in the driver’s seat. Police

officers discovered four spent shell casings near that vehicle.

Detective Hallowich also located two cell phones near []

Robinson[,] one containing text messages from someone

identified as “Cappn Sierra.” In addition, Detective Hallowich

spoke with Justin Baker, a resident of McGrath Manor, who

indicated he saw a Chrysler 300 vehicle[,] similar to the one driven

by [] Perrotta[,] in the area that night.

Pennsylvania State Trooper Adam Peth, who is a member of the

Forensic Service Unit, arrived at the scene at approximately 6:00

a.m. on March 24, 2020, to aid in the homicide investigation.

[Trooper Peth] spoke with Detective Hallowich and took

photographs of the scene. [Trooper Peth] observed [] Robinson

slumped back in the seat of a maroon vehicle[,] which was still

running. Trooper Peth also observed the driver’s side window was

shot out. He viewed four spent shell casings [] near the rear of

the vehicle.

On March 24, 2020, [Officer John Charmo stopped] a Chrysler 300

matching the description provided by [] Baker[.] Perrotta was

[the driver], and she was taken to the New Castle Police station.

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[Police interviewed Perrotta, who] agreed to a cell phone

extraction.

On the same date, [police provided McMillan] with his Miranda[4]

warnings and was interviewed by law enforcement. [McMillan]

provided a rendition of events[, whereby he] and [] Perrotta

arriv[ed] at [the] [Altenburg-]Gasser[] house at approximately

11:00 or 11:30 p.m. [] Perrotta and Sierra [] left shortly

thereafter to go to Giant Eagle grocery store to purchase chicken

wings. [McMillan] denied any involvement with the events leading

to [] Robinson’s homicide.

On April 1, 2020, [] Detective Hallowich, Officer Chris Bouye[,]

and Officer Brian Lombardo [interviewed McMillan, who] explained

he barely knew [] Newman as they met just 6 or 7 months ago.

When confronted with video surveillance from [] Newman’s

residence [showing Newman and McMillan leaving together],

[McMillan] stated he merely was purchasing marijuana and []

Newman did not leave with him despite the video demonstrating

otherwise. [McMillan] continued to insist he did not know anything

about the homicide.

[] Todd Luckasevic[, M.D., performed Robinson’s autopsy, which]

revealed [] Robinson suffered five gunshot wounds and the cause

of death was determined to be the result of multiple gunshot

wounds to the head, neck[,] and back.

On December 22, 2020, the Commonwealth filed an information

charging [McMillan] with criminal homicide and persons not to

possess, use, manufacture, control, sell[,] or transfer firearms.

* * *

On May 8, 2023, a jury was selected, but not sworn, in this case[,

and at that time, the Commonwealth was permitted to amend the

information to add an accomplice theory of liability to the charges.

Thereafter, McMillan filed a motion to continue the trial,] which

the court [granted]. [Additionally], the next day, the

Commonwealth filed a motion [] requesting leave to amend the

information to include the charge of criminal conspiracy to commit

criminal homicide[.]

____________________________________________

4 Miranda v. Arizona, 384 U.S. 436 (1966).

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Following [a] hearing, the court issued an order [] den[ying] the

Commonwealth’s motion[, but the court] indicated it would

reconsider the motion [] if the Commonwealth agreed to allow

[McMillan] to file a petition for writ of habeas corpus only on the

[charge of] criminal conspiracy to commit criminal homicide[,] as

[the court believed] that would have the same effect as a

preliminary hearing and would adequately protect [McMillan]’s

rights to challenge the sufficiency of the Commonwealth’s [prima

facie] evidence.

On June 2, 2023, the Commonwealth filed a motion to reconsider

[its motion to amend the information and] acknowledged

[McMillan]’s right to file a petition for writ of habeas corpus only

concerning the charge of criminal conspiracy to commit criminal

homicide. On the same date, the court issued an order granting

the Commonwealth’s motion for reconsideration and providing

[McMillan] until the close of business on June 9, 2023, to file a

petition for writ of habeas corpus[, which McMillan] filed on June

9, 2023[. The Commonwealth filed the corresponding amended

conspiracy charge after June 9, 2023, but prior to the hearing

thereon on June 21, 2023.]

* * *

[Following the hearing,] on July 6, 2023, [the court] denied

[McMillan]’s petition for writ of habeas corpus. [] [McMillan]’s trial

commenced with jury selection and opening statements by

counsel on July 17, 2023. Following the conclusion of the trial, on

July 24, 2023, the jury returned a verdict of guilty on the charges

of murder of the first degree and criminal conspiracy to commit

murder.

[The court] sentenced [McMillan] on August 14, 2023, to a term

of incarceration for the remainder of his natural life for the charge

of murder of the first degree and a [consecutive] term of

incarceration of not less than 20 years nor more than 40 years for

the charge of criminal conspiracy to commit criminal homicide.

On August 24, 2023, [McMillan] filed [a] post[-sentence]

motion[,] which [the court] denied[ on January 12, 2024].

[McMillan] filed a timely notice of appeal on January 31, 2024, and

[court-ordered] concise statement of errors complained on

appeal[.]

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Trial Court Opinion, 3/27/24, at 2-13 (footnotes and unnecessary

capitalization omitted; some paragraph breaks added).

On appeal, McMillan raises the following issues for our review:

1. The court erred in allowing the Commonwealth on multiple

occasion[s] to amend the information, refile a charge of

criminal conspiracy to commit homicide[,] and orally amend

the information to include conspiracy as a theory of liability for

criminal homicide in violation of Pennsylvania Rules of Criminal

Procedure 544, 560, [and] 564[,] and in violation of

[McMillan]’s Due Process rights guaranteed by the Fifth and

Fourteenth Amendments to the Constitution of the United

States.

2. The trial court erred in admitting into evidence statements

made by a non-testifying co[-]defendant[s] in violation of

[McMillan]’s right to confrontation.

3. The Commonwealth failed to produce sufficient evidence [that

McMillan] was an accomplice.

4. The Commonwealth failed to present sufficient evidence to

convict [McMillan] of first-degree murder on a theory of

criminal conspiracy and the separate charge of criminal

conspiracy to commit murder.

5. The verdict was against the weight of the evidence.

Appellant’s Brief, at 16 (unnecessary capitalization omitted).5

In his first issue on appeal, McMillan argues two sub-issues, namely that

the court erred in permitting the Commonwealth to amend the criminal

information to include (1) an accomplice theory of liability and (2) a previously

dismissed charge of criminal conspiracy to commit criminal homicide. More

____________________________________________

5 On September 9, 2024, this Court granted McMillan’s application to exceed

the word count limit for his principal brief.

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specifically, in his first sub-issue, McMillan claims that the court erred when it

permitted the Commonwealth, on the day of jury selection, to orally amend

the information to include that “[t]he Actor did act as an accomplice in the

shooting of Andre Robinson, causing the victim’s death,” because the

Commonwealth failed to allege necessary further specific facts to support an

accomplice theory of liability, including whom McMillan aided or agreed to aid

and how that occurred and where it had initially only alleged he was the

primary actor. See Appellant’s Brief, at 40 (citing N.T. Scheduled Jury

Selection/Motions in Limine, 5/8/23, at 7-8). McMillan complains that the

Commonwealth’s theory of the case prejudiced him when it changed insofar

as McMillan was originally charged based on Newman’s testimony at the

preliminary hearing, which “categorically denied [him] acting as an

accomplice, and further specifically denied [that he had] any intention o[f]

agreeing to kill [] Robinson.”6 Id. at 41. McMillan contends that his argument

____________________________________________

6 Newman testified at the preliminary hearing that the original plan was to

spend the evening with McMillan smoking marijuana. See N.T. Preliminary

Hearing, 11/25/20, at 58, 60, 61. That night, Newman eventually agreed to

serve as a lookout while McMillan committed an arson at an unspecified

location. See id. at 60, 62, 73, 86, 92, 97. Newman further testified that the

arson never happened, and he did not know why. Instead, he, McMillan,

Perrotta, and Sierra drove around and smoked marijuana. See id. While in

the car, Newman observed Perrotta and McMillan texting on Sierra’s phone,

but he did not know who they were texting. See id. at 75. At some point in

the car, McMillan handed Newman a gun and threatened Newman to follow

him outside the car. See id. at 66. Newman testified he knew nothing about

what was going on and followed. See id. After walking through a field,

McMillan and Newman came upon a vehicle at McGrath Manor and McMillan

told Newman to shoot into the vehicle. See id. at 67-68. Newman told

(Footnote Continued Next Page)

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was prejudicially changed at trial because, originally, McMillan “was relying on

three independent witness[es] who only saw one person, described as [a] tall

dark[-]skinned male who ran with a limp, a general description that fit []

Newman [and] not [McMillan].” Id. Further, McMillan complains that the

Commonwealth’s timing of the amendment failed to provide “ample notice”

because the jury was moments from selection. Id. at 41-42. McMillan argues

that the court’s grant of a continuance after it granted the Commonwealth’s

motion to amend the information to add an accomplice theory of liability

proves that the amendment was not timely, was prejudicial, and in any event,

was both contrary to Pennsylvania Rules of Criminal Procedure and did not

cure the Commonwealth’s failure to allege the necessary facts to support the

amendment. See id. at 42-48.

Similarly, in his second sub-issue, McMillan complains that the court

erroneously granted the Commonwealth’s further request to amend the

information to include a charge of criminal conspiracy to commit criminal

____________________________________________

McMillan that he did not want to shoot, so McMillan snatched the gun out of

his hands and shot both weapons into that vehicle before the men ran away

and returned to Perrotta’s vehicle. See id. at 68-70, 101-03. Newman

testified that McMillan twice told Newman that he would kill him if Newman

told anyone about the shooting—once in the McGrath Manor parking lot and

again when the men returned to Perrotta’s vehicle. See id. at 69, 70-71, 80.

Newman further testified that McMillan arranged for him to receive a different

ride home after the shooting. See id. at 105. Newman also testified that

Robinson was his first cousin and that they had lived together weeks before

the shooting. See id. at 62, 79. Moreover, Newman testified that Robinson

had accused him on a prior occasion of shooting a gun at him, but Newman

did not know why Robinson believed that to be true. See id. at 96.

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homicide, which the court ultimately granted at trial after the close of evidence

and prior to counsel’s closing arguments. McMillan complains that the

conspiracy charge was originally dismissed at the preliminary hearing and

relies on Commonwealth v. Williams, 166 A.3d 460 (Pa. 2017), and

Pennsylvania Rules of Criminal Procedure 544 and 564, for the proposition

that a charge that was dismissed at a preliminary hearing is entitled to a new

preliminary hearing before the same magistrate. McMillan contends that the

Rules of Criminal Procedure are the only recourse available under

Pennsylvania law. See Appellant’s Brief, at 49-50. He argues that the court

erred in creating its own procedure instead of following that outlined in the

rules and by Pennsylvania case law. See id. at 51-53. McMillan further

alleges that he was prejudiced because the conspiracy amendment relieved

the Commonwealth of the duty to call Newman as an eyewitness to the

shooting.7 See id. at 54-55. Further, McMillan complains that the court’s

deadlines were prejudicial insofar as the court required McMillan to file a writ

of habeas corpus by June 9, 2023, on the charge of conspiracy to commit

homicide, but did not require the Commonwealth to file the amended

____________________________________________

7 McMillan’s allegation of prejudice is that because Newman’s out-of-court

statements are admissible since Newman is an alleged accomplice, the

amendment relieved the Commonwealth of the burden to call Newman to

testify at trial, thereby impermissibly shifting the burden to McMillan to call

Newman or establish unavailability. McMillan does not cite any case law

supporting his claim the court committed reversible error in this regard. See

Appellant’s Brief, at 54-55 (quoting N.T. Pre-trial Motions Hearing, 5/16/23,

at 10-11).

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information until June 21, 2023, which the Commonwealth filed only about an

hour before the scheduled hearing on McMillan’s writ of habeas corpus. See

id. at 57. McMillan argues that even the amended charges fail to allege a

factual basis for what constituted the overt act in furtherance of the conspiracy

or by whom that act was committed. See id. Moreover, McMillan argues that

his defense changed based on that missing information, especially since there

was no positive evidence identifying himself or Newman as the principal actor,

and there was no evidence of an agreement. See id. at 58. Finally, McMillan

argues that, because the court held off on ruling on the amendment until just

prior to his closing argument, his only opportunity to respond at that late hour

was via argument to the jury, especially where he had already rested his

evidentiary case.8 See id. at 60-61.

In reviewing a challenge to an amendment of the criminal charges

against the defendant, we consider:

whether the crimes specified in the original indictment or

information involve the same basic elements and evolved

out of the same factual situation as the crimes specified in

the amended indictment or information. If so, then the

defendant is deemed to have been placed on notice

regarding his alleged criminal conduct. If, however, the

amended provision alleges a different set of events, or the

elements or defenses to the amended crime are materially

different from the elements or defenses to the crime

originally charged, such that the defendant would be

____________________________________________

8 McMillan neither sought to continue/delay closing arguments, nor sought to

reopen the evidentiary record. See N.T. Jury Trial, 7/24/23, at 28-30.

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prejudiced by the change, then the amend[ment] is not

permitted.

[Also,] in reviewing a grant to amend an information, the

court will look to whether the [defendant] was fully apprised

of the factual scenario which supports the charges against

him. Where the crimes specified in the original information

involved the same [] elements and arose out of the same

factual situation as the crime added by the amendment, the

[defendant] is deemed to have been placed on notice

regarding his alleged criminal conduct and no prejudice [. .

.] results.

Further, the factors which the trial court must consider in

determining whether an amendment is prejudicial are:

(1) whether the amendment changes the factual scenario

supporting the charges; (2) whether the amendment adds

new facts previously unknown to the defendant; (3) whether

the entire factual scenario was developed during a

preliminary hearing; (4) whether the description of the

charges changed with the amendment; (5) whether a

change in defense strategy was necessitated by the

amendment; and (6) whether the timing of the

Commonwealth’s request for amendment allowed for ample

notice and preparation.

Most importantly, we emphasize that the mere possibility [that

an] amendment of [the criminal] information may result in a more

severe penalty is not, of itself, prejudice.

Commonwealth v. Mentzer, 18 A.3d 1200, 1202-03 (Pa. Super. 2011)

(citations, quotation marks, brackets, ellipsis, and unnecessary capitalization

omitted). “Further, if there is no showing of prejudice, amendment of an

information to add an additional charge is proper even on the day of trial.”

Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991).

Similarly, this Court has observed that the defendant must show

prejudice to raise a successful challenge based on an alleged violation of the

Pennsylvania Rules of Criminal Procedure:

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[w]hen dealing with alleged violations of the Rules of Criminal

Procedure, our Supreme Court has stated that, the sanction of

dismissal of criminal charges should be utilized only in the most

blatant cases. Given the public policy goal of protecting the public

from criminal conduct, a trial court should consider dismissal of

charges where the actions of the Commonwealth are egregious

and where demonstrable prejudice will be suffered by the

defendant if the charges are not dismissed. Our Court has further

held that, even in those situations where in the interests of justice

a dismissal is an appropriate consideration to remedy police or

prosecutorial misconduct, it is not employed absent a showing of

demonstrable prejudice. Dismissal in criminal cases is employed

only as a last resort, and is limited to cases of extreme and

substantial prejudice. Moreover, [. . . our] Supreme Court held

that technical violations of the rules of criminal procedure do not

automatically warrant suppression of the evidence, a lesser

sanction than dismissal.

Commonwealth v. Bowman, 840 A.2d 311, 317 (Pa. Super. 2003)

(citations, quotation marks, and footnote omitted). Indeed, this Court has

observed that “the Commonwealth’s non-compliance with Rule 544, alone,

‘does not automatically entitle a defendant to relief.’” Commonwealth v.

Davis, 242 A.3d 923, 934 (Pa. Super. 2020) (quoting Commonwealth v.

Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012)).

As it relates to McMillan’s first sub-issue, we have explained that a

person may be “held guilty as an accomplice even though charged only as a

perpetrator.” Commonwealth v. McDuffie, 466 A.2d 660, 661 (Pa. Super.

1983). Moreover, we have concluded that the Commonwealth’s opening

argument to the jury regarding an accomplice theory of liability effectuates

the required notice to the defendant as to that theory of liability. See

Commonwealth v. Potts, 566 A.2d 287, 293 (Pa. Super. 1989).

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Central to McMillan’s second sub-issue presented, Rule 544(A) specifies

the mechanism for reinstituting criminal charges:

When charges are dismissed or withdrawn at, or prior to, a

preliminary hearing, or when a grand jury declines to indict and

the complaint is dismissed, the attorney for the Commonwealth

may reinstitute the charges by approving, in writing, the re-filing

of a complaint with the issuing authority who dismissed or

permitted the withdrawal of the charges.

Pa.R.Crim.P 544(A). Also, Rule 564 provides the court with guidance on

whether to permit amendment:

The court may allow an information to be amended, provided that

the information as amended does not charge offenses arising from

a different set of events and that the amended charges are not so

materially different from the original charge that the defendant

would be unfairly prejudiced. Upon amendment, the court may

grant such postponement of trial or other relief as is necessary in

the interests of justice.

Pa.R.Crim.P 564.

Further, in connection with McMillan’s first issue, in Williams, this Court

found that the timing of the amendment to the information, which added a

harassment charge to the existing simple assault charge, unfairly prejudiced

the defendant. See Williams, 166 A.3d at 464. In Williams, the

Commonwealth’s failure to request an amendment to the information until the

beginning of trial combined with the trial court’s failure to rule on the motion

until after the conclusion of closing arguments unfairly surprised the defense,

thereby requiring dismissal of the harassment charge and conviction. See id.

Important to the result in that case, we concluded that harassment and simple

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assault are different offenses, and the timing and nature of the amendment

deprived the defense of any realistic opportunity to prepare. See id.

In Commonwealth v. DeSumma, 559 A.2d 521 (Pa. 1989), our

Supreme Court determined that the defendant suffered prejudice because the

Commonwealth’s theory added a new offense with new victims. See id. at

523. In DeSumma, at the start of trial, the defendant was only charged with

pointing a loaded gun at one person with the intent of putting that person in

fear of imminent bodily injury, but, at trial, was required to defend allegations

that he intended to put in fear of bodily injury three others who were

passengers of a vehicle. See id. at 523. See also Interest of Becker, 536

A.2d 1370, 1375 (Pa. Super. 1988) (finding prejudice because amendment

changed identity of allegedly endangered person and physical acts which

placed other persons in danger, which also caused defense theory to change).

By contrast, in Pettersen, this Court concluded there was no prejudice

necessitating dismissal. See Pettersen, 49 A.3d at 911. In Pettersen, the

defendant broke into the victim’s house, hit her in the head with a hammer in

her bedroom, stabbed her more than ten times in the chest and back, and

tried to suffocate her by placing a plastic bag over her head. See id. at 906-

07. The Commonwealth charged Pettersen with three counts of aggravated

assault and simple assault, but the magistrate dismissed two counts each of

aggravated assault and simple assault under the theory Pettersen’s acts were

a single criminal episode. See id. at 907-08. However, the Commonwealth

refiled a criminal information, charging three counts of each offense, which

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the trial court permitted, and for which Pettersen was convicted. See id. at

908. In finding that it was undisputed that the Commonwealth neglected to

follow the procedure set forth in Rule 544 when amending the charges, this

Court concluded that Pettersen nevertheless failed to show prejudice because

he was on notice of all of his acts alleged, the defense preparation for trial

was not hindered, and the Commonwealth did not add newly-alleged victims

nor distinct acts. See id. at 911.

In McDuffie, we concluded that, insofar as timing of an amendment to

the information, a change to the named victim, which occurred after the close

of evidence, did not cause prejudice to the defense because the

Commonwealth did not charge a new or different crime, the amendment did

not change the defense theory of the case, and McDuffie did not suffer unfair

surprise because he previously had notice of all the alleged facts. See

McDuffie, 466 A.2d at 662-63. Also, this Court observed that the

Commonwealth never expressly rejected the theory of accomplice liability in

that case. See id. at 662.

Here, as to McMillan’s first sub-issue, on the day initially scheduled for

jury selection, the Commonwealth sought to amend the information to include

an accomplice theory of liability, which the court granted. Immediately

thereafter, the court granted McMillan’s requested continuance of trial, which

trial then did not begin until several weeks later. After our review, under these

circumstances, we discern no prejudice to McMillan, especially where trial was

ultimately continued and where the Commonwealth initially charged McMillan

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with conspiracy and never changed its theory of the case that he acted in

concert with others. See McDuffie, 466 A.2d at 661. Moreover, the

Commonwealth’s amendment to the criminal information, adding an

accomplice theory of liability, could not have prejudiced McMillan because

McMillan may be found guilty as an accomplice even though only charged as

a perpetrator. See id. Further, the Commonwealth’s opening argument to

the jury regarding an accomplice theory of liability, see N.T. Jury Trial,

7/17/23, at 125, effected the required notice to McMillan. See Potts, supra.

Indeed, the defense opening statement to the jury also recognized the

Commonwealth’s accomplice theory of liability. See N.T. Jury Trial, 7/17/23,

at 132 (“And as [the Commonwealth Attorney] said, [Sierra] was an active

participant in this homicide, but you won’t hear her ever being charged with

anything. [Sierra’s] not charged as an accomplice. She’s not charged as a

criminal conspirator.”). Accordingly, we conclude that McMillan is not entitled

to any relief on his first sub-issue.

As it relates to McMillan’s second sub-issue, it is undisputed that the

Commonwealth did not follow the procedures set forth in the Pennsylvania

Rules of Criminal Procedure when it sought to amend the information to refile

McMillan’s charge of conspiracy. Nevertheless, at the June 21 hearing

scheduled for argument on McMillan’s petition for writ of habeas corpus, the

Commonwealth presented the testimony of Altenburg and Brooklyn to

establish a prima facie case of criminal conspiracy to commit criminal

homicide. Specifically, Altenberg testified that, on the night of the shooting,

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when the group was still in his home, he heard McMillan and Perrotta express

their intent to kill Robinson. See N.T. Writ of Habeas Corpus Hearing,

6/21/23, at 34. Altenburg further testified that McMillan and Perrotta were

saying that “they planned on murdering [Robinson] that night.” Id. McMillan

and Perrotta “were speaking on how they had to clean their guns and get

dressed, and they kept on saying how they had to bleach the guns.” Id. at

32. Altenburg also recalled Perrotta telling McMillan and Newman to “hurry

up” because they had “to leave soon.” Id. at 33. Moreover, Altenburg stated

that he heard Perrotta tell McMillan and Newman what clothes to wear that

night, including “black sweatpants, black sweatshirt[,] and dark tennis shoes.”

Id. at 41-42. Finally, Altenburg recalled that when the group returned to his

home later, he heard Perrotta state “that her pussy got wet when [McMillan]

killed [Robinson].” Id. at 47.

Brooklyn also testified at the habeas corpus hearing and stated that she

was at the Altenburg-Gasser residence at all relevant times. Brooklyn testified

that McMillan, Newman, Perrotta, and Sierra left the Altenburg-Gasser

residence that night at the same time together. See id. at 56. Brooklyn

noted that there were no firearms on the table in the Altenburg-Gasser

residence prior to that group of individuals arriving earlier in the evening and

that the several guns she observed on the table when the individuals were

present in the home all disappeared when the group left that night. See id.

at 63-64. When the group returned in the early morning hours, Brooklyn

heard Perrotta “sitting there talking about how [‘]when we killed him, it made

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my pussy wet,[’]” id. at 59 (emphasis in original), and that Perrotta further

stated she wanted to have sex with McMillan. Brooklyn also observed Newman

had blood spattered on his clothing and noted he was frantically trying to

address it. See id. at 57.

After our review, we agree that the Commonwealth did not follow the

procedures set forth in the rules when it sought to amend the information to

add the charge of conspiracy, but this fact alone does not entitle McMillan to

relief because he must demonstrate prejudice. See Davis, 242 A.3d at 934.

Although we acknowledge that the amended charge of conspiracy added a

new element to the charged offenses insofar as the Commonwealth was

required to prove the existence of an unlawful agreement between McMillan

and another to effectuate the homicide, we nevertheless discern no prejudice

to McMillan under the circumstances of this case, as evaluated by the factors

set forth in Mentzer, supra, because: (1) the conspiracy charge did not arise

from newly alleged events or factual scenarios; (2) throughout the case, the

Commonwealth consistently pursued a theory alleging McMillan acted in

concert with others and never expressly rejected that theory;9 (3) the entire

____________________________________________

9 McMillan complains that the Commonwealth argued at the original

preliminary hearing that “[w]e have to believe Newman,” but then changed

its theory on his credibility regarding perpetrator or accomplice liability.

Appellant’s Brief, at 46-47 (quoting N.T. Preliminary Hearing, 11/25/20, at

58). First, credibility is not at issue in preliminary hearings. See

Commonwealth v. Landis, 48 A.3d 432, 448 (Pa. Super. 2012) (en banc)

(“it is inappropriate for the trial court to make credibility determinations in

deciding whether the Commonwealth established a prima facie case”).

(Footnote Continued Next Page)

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factual scenario was developed during a hearing on McMillan’s petition for writ

of habeas corpus, which provided McMillan with the same safeguards as a

preliminary hearing;10 (4) the Commonwealth’s description of the charges did

not change with the amendment since accomplice liability was already

amended and included therein; (5) McMillan’s defense remained unaltered

insofar as he claimed the perpetrator was someone else, that he did not work

in concert with anyone, and that he did not commit the murder; and (6) the

court provided McMillan with several weeks to prepare for trial after the

hearing on McMillan’s petition for writ of habeas corpus. See Mentzer,

supra. In conclusion, we agree with the trial court that this case is governed

by Pettersen insofar as the Commonwealth failed to follow the procedure set

forth in Rule 544(A), but that failure did not prejudice McMillan. See

Pettersen, supra. See also McDuffie, supra.

In any event, even prior to the hearing on McMillan’s petition for writ of

habeas corpus, the record facts were sufficient to support the conspiracy

charge because the testimony at the original preliminary hearing established:

____________________________________________

Second, after the hearing on the writ of habeas corpus, as discussed above,

the Commonwealth presented sufficient facts from which to establish a prima

facie case for conspiracy between McMillan and each of Newman, Perrotta,

and Sierra. See Commonwealth v. Morman, 541 A.2d 356, 360 (Pa. Super.

1988) (in pretrial setting, focus of habeas corpus hearing is to determine

whether sufficient Commonwealth evidence exists to require defendant to be

held by government until trial; court should accept into evidence record from

preliminary hearing and any additional evidence).

10A pre-trial petition for a writ of habeas corpus is similar in purpose to a

preliminary hearing. See Morman, 541 A.2d at 360.

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(1) that police located video from Newman’s residence that was recorded on

the evening of the incident, which shows that, contrary to McMillan’s prior

claims to police (that he stayed at the Altenburg-Gasser residence at all

relevant times), Perrotta drove her Chrysler 300 to Newman’s residence and

McMillan and Newman exited the same vehicle and entered Newman’s

residence, as well as, later, shows that Newman and McMillan again exited the

vehicle, and Newman changed into dark clothing and re-entered the Chrysler

300 with McMillan after both exited Newman’s residence for the second time;

(2) that two stolen firearms were discovered at Perrotta’s residence; (3) that

McMillan and Perrotta were seen passing Sierra’s11 phone between each other

and texting on it while they were driving around on the night of the incident

prior to the shooting; (4) that police discovered text messages from Sierra’s

phone sent to the victim’s phone from the night/early morning in question,

which police characterized as messages luring the victim to the scene; (5) that

McMillan handed Newman a gun in the car and then took it back just prior to

the shooting; (6) McMillan’s statements to Newman immediately after the

shooting, including when they returned to the vehicle—made in Perrotta’s and

____________________________________________

11 We recognize that the parties referred to Sierra as a confidential informant

(CI) during the preliminary hearing, and her identity had not yet been formally

revealed to the defense at that time. Nevertheless, Sierra’s identity was not

necessary where Detective Fred Buswell testified at the preliminary hearing

that he observed the CI’s phone, which contained messages sent to Robinson

that appeared to lure Robinson to the scene of the crime and Newman testified

that he saw Perrotta and McMillan both passing the CI’s phone to each other

and texting on it, though Newman did not know the intended recipient of the

messages. See N.T. Preliminary Hearing 11/25/20, at 36-37, 75.

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Sierra’s presence—that if Newman told anyone about the shooting, McMillan

would kill him; and (7) that McMillan arranged a different ride for Newman to

get home after the shooting. Accordingly, we conclude that McMillan is not

entitled to any relief on his first issue on appeal where we are unable to discern

any unfair surprise or unfair prejudice to McMillan. See Mentzer, supra; cf.

Williams, supra.

In his second issue on appeal, McMillan argues that the trial court erred

in admitting into evidence the out-of-court statements of non-testifying co-

defendants Newman and Perrotta, in violation of his Sixth Amendment right

to confrontation. See Appellant’s Brief, at 61. More specifically, during trial,

the trial court admitted Perrotta’s and Newman’s statements pursuant to the

co-conspirator exception to the hearsay rule. See Pa.R.E. 803(25)(E).

Nevertheless, in his brief, McMillan fails to: (1) specifically identify which of

Perrotta’s and Newman’s statements admitted at trial are now the subject of

his challenge on appeal; (2) cite to relevant case law beyond mere boilerplate

statements of law; and (3) apply the law to the facts of McMillan’s case. Under

these circumstances, our review is hindered by McMillan’s omissions, and we

must find waiver, as explained below.

Appellate claims must be properly developed with citations to authority

and the record, or they will be deemed waived:

The Rules of Appellate Procedure require that appellants

adequately develop each issue raised with discussion of pertinent

facts and pertinent authority. See Pa.R.A.P. 2119. It is not this

Court’s responsibility to comb through the record seeking the

factual underpinnings of an appellant’s claim. [See]

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Commonwealth v. Mulholland, [702 A.2d 1027, 1034 n.5 (Pa.

1997)]. Further, this Court will not become counsel for an

appellant and develop arguments on an appellant’s behalf. [See]

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006).

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014).

After our review, we find that McMillan’s failure to adhere to our

appellate rules impedes this Court’s meaningful review because he has failed

to identify the challenged evidence, cite to the record and to relevant authority

beyond boilerplate statements of law, and apply that law to the facts of his

case. Therefore, we find this claim waived. See Samuel, supra; see also

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived”). Accordingly, we conclude that

McMillan’s second issue on appeal is waived.12

In his third and fourth issues on appeal, McMillan challenges the

sufficiency of the evidence. Our well-settled standard of review for challenges

to the sufficiency of the evidence is as follows:

the standard we apply in reviewing the sufficiency of the evidence

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

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond

____________________________________________

12 For instance, because McMillan has failed to identify which statements are

at issue, we cannot reach the merits of his claim since we are not able to

review whether those complained-of statements are testimonial. See

Commonwealth v. Cheng Jie Lu, 223 A.3d 260, 265 (Pa. Super. 2019)

(success of appellant’s Confrontation Clause argument turns on whether co-

conspirator’s statement to police was testimonial).

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a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for 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. The Commonwealth

may sustain its burden of proof of proving every element of the

crime beyond a reasonable doubt by means of wholly

circumstantial evidence. [Moreover], in applying the above test,

the entire record must be evaluated and all the evidence actually

received must be considered. Finally, the trier of fact while

passing upon the credibility of witnesses and the weight of the

evidence produced, is free to believe all, part[,] or none of the

evidence.

Commonwealth v. Kim, 888 A.2d 847, 851-52 (Pa. Super. 2005) (citation

and brackets omitted).

In his third issue on appeal, McMillan claims that the Commonwealth

failed to establish sufficient evidence that he acted as an accomplice because

the testimony of three independent witnesses at trial demonstrated there was

only one person at the scene after the shooting, who did not match McMillan’s

physical description. See Appellant’s Brief, at 68. McMillan further notes that

each of the three witnesses’ testimony described Newman’s physical

description, rather than his own. See id. McMillan argues that there was no

evidence he solicited anyone to commit the homicide and no evidence that he

aided, or agreed, or attempted to aid others in planning and committing the

homicide. See id. at 70. We disagree.

By statute, Pennsylvania defines accomplice liability as follows:

(c) Accomplice defined. — A person is an accomplice of another

person in the commission of an offense if:

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(1) with the intent of promoting or facilitating the

commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person

in planning or committing it; or

(2) his conduct is expressly declared by law to establish his

complicity.

(d) Culpability of accomplice. — When causing a particular result

is an element of an offense, an accomplice in the conduct causing

such result is an accomplice in the commission of that offense, if

he acts with the kind of culpability, if any, with respect to that

result that is sufficient for the commission of the offense.

* * *

(f) Exceptions. — Unless otherwise provided by this title or by the

law defining the offense, a person is not an accomplice in an

offense committed by another person if:

(1) he is a victim of that offense;

(2) the offense is so defined that his conduct is inevitably

incident to its commission; or

(3) he terminates his complicity prior to the commission of

the offense and:

(i) wholly deprives it of effectiveness in the

commission of the offense; or

(ii) gives timely warning to the law enforcement

authorities or otherwise makes proper effort to

prevent the commission of the offense.

(g) Prosecution of accomplice only. — An accomplice may be

convicted on proof of the commission of the offense and of his

complicity therein, though the person claimed to have committed

the offense has not been prosecuted or convicted or has been

convicted of a different offense or degree of offense or has an

immunity to prosecution or conviction or has been acquitted.

18 Pa.C.S. § 306.

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This Court has previously interpreted Section 306 accomplice liability as

requiring a showing the defendant actively participated in the crime and

intended to aid or promote the underlying offense to establish guilt:

An accomplice is equally criminally liable for the acts of another if

he acts with the intent of promoting or facilitating the commission

of an offense and agrees, aids, or attempts to aid such other

person in either planning or committing that offense. Therefore,

the Commonwealth must present evidence capable of establishing

not only that the defendant actively participated in the crime, but

also that he intended to aid or promote the underlying offense.

Commonwealth v. Toritto, 67 A.3d 29, 34 (Pa. Super. 2013) (en banc)

(citations and quotation marks omitted). “The amount of aid need not be

substantial so long as it was offered to the principal to assist him in committing

or attempting to commit the crime.” Id. at 35 (citation and quotation marks

omitted). Nevertheless, “[a] defendant cannot be an accomplice simply based

on evidence that he knew about the crime or was present at the scene.” Id.

To sustain a conviction for first-degree murder under an accomplice

theory of liability, “the Commonwealth is required to establish a specific intent

to kill. A defendant cannot be convicted of first-degree murder under a

vicarious liability theory, such as accomplice or conspiratorial liability, unless

the fact-finder determines, upon proof beyond a reasonable doubt, that the

defendant personally harbored a specific intent to kill.” Commonwealth v.

Jordan, 212 A.3d 91, 95 (Pa. Super. 2019) (citations, quotation marks, and

brackets omitted).

Here, first, we observe that McMillan’s claims go to the credibility of the

independent witnesses and the weight that should be afforded their testimony,

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rather than to the issue of sufficiency. See Commonwealth v. Wilson, 825

A.2d 710, 713-14 (Pa. Super. 2003) (review of sufficiency of evidence does

not include credibility assessment, which goes to weight of evidence); see

also Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997)

(fact-finder makes credibility determinations and challenges to those

determinations go to weight of evidence, not sufficiency). Second, when

properly considered under our standard of review, viewing the record as a

whole in the light most favorable to the Commonwealth, we conclude that

there was ample evidence supporting an accomplice theory of liability,

including: (a) McMillan told Altenburg that he intended to kill Robinson; (b)

McMillan was present with Newman, Perrotta, Sierra, and several firearms, at

the Altenburg-Gasser residence the following day when he again discussed his

intent in killing Robinson; (c) Perrotta discussed with McMillan the need to

clean the firearms and change clothes; (d) McMillan was with Newman when

Newman changed his clothes into an all-black outfit and both men then

entered Perrotta’s vehicle; (e) McMillan and Perrotta instructed Sierra what to

text Robinson, and how to do so, while driving in Perrotta’s vehicle, which

caused Robinson to wait for Sierra at the scene of the eventual homicide; (f)

McMillan and Newman both left Perrotta’s vehicle together near the location

of the shooting, prior to the shooting, with firearms, and both returned

together after the shooting; (g) after the shooting, McMillan made

incriminating statements about the shooting when he returned to Perrotta’s

car as well as when he directed Altenburg and Colleen to look at the news

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when they asked what was going on; (h) McMillan and Perrotta prepared a

sex tape as an alibi to the shooting; (i) Perrotta made incriminating

statements about killing Robinson after his death; and (j) a recording of

McMillan’s phone call from jail, admitting to threatening a witness. See

Jordan, supra (evidence sufficient to convict for first-degree murder under

accomplice theory of liability where evidence established defendant: was seen

with co-conspirator for some time both leading up to shooting and shortly

before shooting, took gun after shooting and hid it, had motive and intent to

kill, had knowledge of victim’s location, and supplied gun to co-conspirator).

Accordingly, we conclude there was sufficient evidence to support McMillan’s

conviction for first-degree murder under an accomplice theory of lability. See

Kim, 888 A.2d at 851-52; 18 Pa.C.S. § 306.

In his fourth issue on appeal, McMillan argues that there was insufficient

evidence to convict him of criminal conspiracy to commit criminal homicide.

See Appellant’s Brief at 77-78. Specifically, McMillan claims that there was

insufficient evidence of any overt act made in furtherance of the conspiracy to

commit Robinson’s murder. See id. at 79-80. Further, McMillan contends

that the Commonwealth failed to prove the identity of the shooter, failed to

prove that the shooter was one of the named co-conspirators, and thus the

jury was forced to impermissibly speculate as to that issue. See id. at 81-82.

We disagree.

“To sustain a criminal conspiracy conviction, the Commonwealth must

establish a defendant entered into an agreement to commit or aid in an

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unlawful act with another person or persons, with a shared criminal intent,

and an overt act was done in the conspiracy’s furtherance.” Commonwealth

v. Weimer, 977 A.2d 1103, 1105-06 (Pa. 2009). “The overt act need not

accomplish the crime—it need only be in furtherance thereof. In fact, no crime

at all need be accomplished for the conspiracy to be committed.” Id.

After review, we conclude that all of the sufficient evidence that supports

an accomplice theory of liability, as set forth above, also supports McMillan’s

criminal conspiracy conviction, especially where the overt acts in furtherance

of the conspiracy included McMillan’s preparation, such as directing Sierra

what to tell Robinson and how she should tell him, as well as riding to McGrath

Manor with Perrotta and exiting the vehicle with a firearm in hand, with

Newman. See Kim, 888 A.2d at 851-52; 18 Pa.C.S. § 903. See also Jordan,

212 A.3d at 96 (“The substantive crime of [c]onspiracy overlaps to a

significant if not complete degree with conspiratorial liability since an

agreement is a necessary component of both.”).

Finally, in his fifth issue on appeal, McMillan challenges the weight of the

evidence. Specifically, McMillan argues that Sierra, by her inconsistent,

vague, and contradictory testimony, shifted responsibility for the crime away

from herself, insofar as she was the one who initially contacted Robinson by

text messaging, “It’s Sierra.” Appellant’s Brief, at 84. McMillan further points

to texts between Perrotta and Sierra wherein, at 12:45 a.m., Perrotta asks,

“What’s taking so long[?]” to which Sierra responded, “Waiting on this bitch,”

thereby clearly indicating Sierra and Perrotta were not together at that time.

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Further, McMillan relies on the three independent witnesses who observed only

one individual—who matched Newman’s physical description—shooting and

fleeing the scene. See id. at 85. Finally, the murder weapon was never

recovered, and McMillan argues that Sierra testified she observed him with a

.45 caliber firearm in his lap, but the evidence demonstrated that Robinson

was shot by a 9-millimeter caliber firearm, and the Taurus firearm was

specifically ruled out as the murder weapon. See id. at 86. McMillan is not

entitled to any relief on this final claim.

Our well-settled standard of review for a challenge to the weight of the

evidence is as follows:

[T]he weight of the evidence is exclusively for the finder of fact

who is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses. An [appellate] court

cannot substitute its judgment for that of the finder of fact[,] thus,

we may only reverse the [trial] court’s verdict if it is so [contrary]

to the evidence as to shock one’s sense of justice. Moreover,

where the trial court has 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.

Kim, 888 A.2d at 851 (citations, quotation marks, and ellipses omitted).

Indeed, “[a]ppellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against the

weight of the evidence.” Commonwealth v. Rogers, 259 A.3d 539, 541 (Pa.

Super. 2021) (citation, quotation marks, and emphasis omitted). The trial

court’s determination that the verdict was or was not against the weight of

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the evidence is “[o]ne of the least assailable” trial court rulings.

Commonwealth v. Widmer, 744 A.2d at 745, 753 (Pa. 2000).

Here, the trial court denied McMillan’s challenge to the weight of the

evidence and set forth the following reasons therefore:

[McMillan] contends the Commonwealth verdict was against the

weight of the evidence as the Commonwealth failed to produce

credible evidence of [] Robinson contacting Sierra[,] which

allegedly prompted the conspiracy. Moreover, [McMillan] claims

the Commonwealth failed to produce sufficient evidence to sustain

a verdict of guilty for [his] conspiracy [conviction] as there was

no evidence of any conversation and/or agreement between

[McMillan] and [] Newman. Likewise, [McMilan] asserts the

verdict of guilty for conspiracy was against the weight of the

evidence as the only evidence the Commonwealth produced was

[that McMillan was] present at the crime scene and had mere

knowledge.

[The court set forth the applicable law governing sufficiency of and

weight of the evidence claims.]

[Here,] the Commonwealth presented the testimony of Altenburg,

who stated [that McMillan] was at [the Altenburg-Gasser]

residence on March 22, 2020, when [McMillan] explained [that]

Robinson [previously] shot at [] Perrotta’s vehicle. [McMillan]

then stated he was going to kill [] Robinson as a result of a feud

[that] was ongoing between [McMillan], [] Perrotta[,] and []

Robinson. The next day, [McMillan] returned to [the] Altenburg[-

Gasser] residence along with [] Perrotta, Sierra[,] and []

Newman. [McMillan] again said they were going to kill []

Robinson. [McMillan] and [] Perrotta were making plans to kill []

Robinson[,] which included having firearms present, intending to

clean those firearms, making “Molotov Cocktails,” and changing

clothing to wear darker colors to conceal themselves. Moreover,

there was video surveillance at [] Newman’s residence

demonstrating he went there to change into darker clothing prior

to the homicide.

First, [McMillan] contends there was no credible evidence []

Robinson contacted [Sierra] prior to the homicide. According to

the testimony of Sierra[,] Robinson sent her a message on

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Facebook indicating he desired to have sexual intercourse with

her. Upon learning of that message, [McMillan] and [] Perrotta

urged [Sierra] to continue speaking with him along with

instructing [Sierra] on what to say. When [] Robinson wished to

communicate with [Sierra] via text messaging, [McMillan] and []

Perrotta ordered her to install a messaging application, “Text

Now,” which could not be traced to her phone. Ultimately, the

text messaging between [Sierra] and [] Robinson led to []

Robinson informing [Sierra] he was seated in a red vehicle parked

at McGrath Manor. At trial, the Commonwealth presented the text

messages on the “Text Now” application as Commonwealth’s

Exhibit 50, which were discovered on [] Robinson’s cell phone

between [] Robinson and someone with the username “Cappn

Sierra.” [McMillan] did not object to [the introduction of] those

messages[.] Sierra [] testified she was the individual in that text

message conversation who was identified as “Cappn Sierra.” [The

court found sufficient evidence to establish there were

communications between Sierra and Robinson prior to the

homicide, including on Facebook.]

[McMillan] further asserts those text messages prompted the

conspiracy. However, the evidence at trial indicates the

conspiracy was prompted by an ongoing dispute between

[McMillan], [] Perrotta[,] and [] Robinson[,] which pr[e]ceeded

the text messages. In fact, [McMillan] made statements

indicating his intention to kill [] Robinson prior to the

commencement of the text messages. The evidence presented

demonstrates the text messages exchanged by [Sierra] and []

Robinson were utilized to locate [] Robinson.

Using the information from the text messages between []

Robinson and [Sierra], [] Perrotta drove her vehicle past McGrath

Manor where they located [] Robinson’s vehicle. While they were

riding in [] Perrotta’s vehicle, [Sierra] observed a .45-caliber pistol

on [McMillan’]s lap. [] Perrotta then parked the vehicle by some

trees up the street from McGrath Manor. [McMillan] said, “We’re

going to kill this mother fucker,” [when] he had a firearm on his

lap. [McMillan] and [] Newman exited the vehicle and, shortly

thereafter, [Sierra] heard gunshots. [McMillan] and [] Newman

returned to the vehicle and [McMillan] stated, “We got this mother

fucker.” [McMillan] also [stated] he shot [] Robinson in the back

of the head and a location [Sierra] could not recall.

Subsequently, they returned to [the] Altenburg[-Gasser]

residence and [] Newman appeared to be anxious while having

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what appeared to be blood spatter on his shirt. [] Altenburg asked

what happened and [McMillan] instructed him to turn on the news.

Altenburg did so and the news was reporting about a homicide at

the McGrath Manor parking lot. [] Perrotta stated, “When we

killed him it made my p---y wet,” and she wanted to have sexual

intercourse with [McMillan].

[The court found the above evidence was sufficient to sustain

McMillan’s conviction for first-degree murder based on an

accomplice liability theory.]

[Also, t]he aforementioned evidence demonstrates the verdict of

guilty concerning the charge of first-degree murder was not

against the weight of the evidence. The Commonwealth

demonstrated [McMillan] had the specific intent to kill [] Robinson

through his direct statements made in the presence of several

individuals. Moreover, the Commonwealth presented evidence

demonstrating [McMillan] was an active participant in the events

and preparations leading to [] Robinson’s death. Hence, the

verdict rendered by the jury of guilty concerning the charge of

first-degree murder was not against the weight of the evidence.

[The court found the Commonwealth presented sufficient evidence

to sustain a conviction for first-degree murder based upon an

accomplice theory of liability and the separate offense of criminal

conspiracy to commit criminal homicide.]

Correspondingly, the aforementioned evidence indicates the

verdict of guilty rendered by the jury pertaining to the charge of

criminal conspiracy to commit criminal homicide is not against the

weight of the evidence. The testimony demonstrated [McMillan]

entered into an agreement with [] Perrotta, [] Newman[,] and

[Sierra] to kill [] Robinson. They took numerous steps in

furtherance of that conspiracy and, ultimately, killed [] Robinson

while he was seated in his vehicle. [McMillan] was an active

participant in every aspect of this conspiracy as he engaged in the

planning, preparation[,] and was present when the fatal gunshots

were discharged. Thus, the verdict of guilty regarding the charges

of first-degree murder and criminal conspiracy to commit criminal

homicide are not against the weight of the evidence.

Trial Court Opinion, 3/27/24, at 25-36 (unnecessary capitalization omitted).

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After our review of the record and the trial court’s application of the

relevant law to the facts of McMillan’s case, we cannot conclude that the court

abused its discretion in finding that the jury’s verdict was not against the

weight of the evidence. See Kim, 888 A.2d at 851. Accordingly, we affirm.

Judgment of sentence affirmed.

DATE: 5/16/2025

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