Com. v. Smith, K.

J-S58045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KURTAVIUS JERMON SMITH

Appellant No. 1092 WDA 2014

Appeal from the Judgment of Sentence February 25, 2014

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001172-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 09, 2015

Appellant, Kurtavius Jermon Smith, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas, following

his jury trial conviction of third degree murder.1 We affirm.

The trial court opinion sets forth the relevant facts of this appeal as

follows:

The incident giving rise to this case occurred during the

early morning hours of May 13, 2012 in Pershing Court

located in Uniontown, Fayette County, Pennsylvania. At

approximately 4:45 a.m., Officer Jamie Holland of the

Uniontown City Police Department was dispatched to the

housing complex for a report of a male lying on the ground

with possible gunshot wounds. Officer Delbert DeWitt,

who was also dispatched to the scene, had noticed a white

____________________________________________

1

18 Pa.C.S.A. § 2502(c).

_________________________

*Retired Senior Judge assigned to the Superior Court.

J-S58045-14

Jeep SUV leaving Pershing Court when he was entering it.

The vehicle’s headlights were off.

When Officer Holland arrived first, he observed a non-

responsive male with a single gunshot wound to the head.

The male was identified as Marlin Crawford (street name

“Zeus”)2 [(“Victim”)] and was pronounced dead…. The

cause of death was a gunshot wound to the head, which

went through to his skull and brain. Two firearms, two

cards with envelopes, and a red rose were found on

[Victim]. The firearms were a .357 revolver with six live

rounds in it located in [Victim’s] pocket and a fully loaded

9mm Taurus semiautomatic pistol that was partially tucked

underneath his right hip.

After receiving further information on the white Jeep’s

whereabouts, officers traveled to Millview Street in

Uniontown. The Jeep was parked in an unnamed alley,

and the hood was warm. An unidentified witness told the

officers that he observed two males exit the Jeep and

enter a residence at 20 Millview Street. The officers

approached the residence and demanded that all

occupants exit with their hands up. It took between five

and ten minutes for the first occupant to exit the residence

and an additional twenty minutes for [Appellant] and the

final remaining occupant to exit.

[Appellant] was interviewed by Captain David Rutter, who

read [Appellant] his Miranda[3] warnings. [Appellant]

acknowledged his rights and waived them. When he was

asked about the shooting, [Appellant] indicated that he

had no knowledge of the shooting, the victim, or the white

Jeep SUV in question. He was then escorted into a holding

cell while other interviews were being conducted. While in

the cell, [Appellant] asked to speak with Captain Rutter

alone. After several exchanges with Captain Rutter while

in the holding cell, [Appellant] was escorted back into the

____________________________________________

2

In the transcripts of the different proceedings in this case, Victim’s street

name is also spelled “Zuss” and “Zues.”

3

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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interview room approximately five hours after his initial

interview.

[Appellant] was again read his Miranda warnings, which

he again acknowledged and waived. [Appellant] told

Captain Rutter that his girlfriend at the time, Kimberly

Johnson, had been involved with [Victim], and he went to

[Victim’s] home in Pershing Court to confront him about

the relationship the night before the shooting. [Appellant]

said he was beating and kicking the front door, and that he

and [Victim] exchanged gunfire. [Appellant] claimed [that

he] fled the scene.

The next evening, [Appellant] said he was in Pershing

Court and saw [Victim] on the street. He indicated that he

walked over to [Victim] in order to confront him again.

This time it had to do with negative remarks [Victim]

allegedly made about [Appellant]. [Appellant] claimed

that another African-American male got in between them

and punched [Appellant] in the face. When [Appellant]

jumped to his feet, he claimed that [Victim] fired shots at

him, and he saw a gun on the ground, picked it up, and

fired at [Victim] as [Appellant] ran away. [Appellant] said

that he did not know if he had hit [Victim] because

[Appellant] was running for his life. He claimed to have

thrown the gun in a very specific area, but the officers

were unable to locate it.

Meanwhile, Captain Rutter was aware of text messages

that [Appellant] sent to Ms. Johnson, which included,

“…ima kill him thats my [fucking] word,” and he mentioned

to [Appellant] these text messages would be used against

him. [Appellant] remained in the holding cell where he

was eventually charged in connection with the shooting.

On January 3, 2013, [Appellant] and his counsel

volunteered another statement, and [Appellant] was

interviewed again by Detective Donald Gmitter at the

Fayette County District Attorney’s Office. He was read his

Miranda warnings, which he acknowledged and waived.

[Appellant] said that on the evening in question a person

named Paige Fairfax was driving the rented Jeep SUV. He

had gone to a club in Morgantown, West Virginia, and then

returned to [Jason] Miller’s home on Millview Street.

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Another individual named Deaundrey Fielder (street name

“K-Dub”) was with them and carried a 9mm semiautomatic

firearm. [Appellant] and Fielder were dropped off at the

entrance of Pershing Court in order to make a drug

purchase. It was there that they had encountered [Victim]

with some unidentified African-American males.

[Appellant] and [Victim] exchanged words and a physical

altercation between all of the men occurred. [Appellant]

saw the gun fall out of one of the men’s [waistbands] and

took it. While he was leaving, he claimed to have heard

shots but did not know who was shooting. He observed

Fielder running towards [Victim] but [Appellant] admitted

to firing some shots as he ran away.

Further, according to the latest statement: Fairfax picked

up [Appellant] and Fielder, and [Appellant] claimed to

have thrown the gun in an alley on Millview Street before

purchasing drugs elsewhere and returning to Miller’s home.

Fielder then retrieved the gun and put it, the drugs, and a

scale in the floorboard at Miller’s house.

[Appellant] was ultimately charged with [c]riminal

[h]omicide and [f]irearms not to be [c]arried without a

[l]icense. On August 10, 2012, following a Preliminary

Hearing before Magisterial District Judge Michael Metros,

all charges were bound over to the Court of Common

Pleas. Following his waiver of formal arraignment,

[Appellant] filed an Omnibus Pretrial Motion, which was

denied by the Honorable Gerald R. Solomon, Senior Judge

on March 28, 2013.

(Trial Court Opinion, filed July 7, 2014, at 2-5).4

Following a full hearing on March 27, 2013, concerning Appellant’s

omnibus pre-trial petition for writ of habeas corpus and motion to suppress

____________________________________________

4

In its statement in lieu of an opinion, filed July 29, 2014, the trial court

incorporated the content of this opinion and order denying Appellant’s post-

sentence motion as well as the suppression court’s opinion, filed on July 15,

2014, in support of the order denying Appellant’s omnibus pre-trial motion.

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statements, the court denied relief. On February 10, 2014, a jury convicted

Appellant of third degree murder and acquitted him of the firearms charge.

The court sentenced Appellant on February 25, 2014, to eighteen (18) to

forty (40) years’ incarceration. On March 3, 2014, Appellant timely filed

post-sentence motions, which the court denied on July 7, 2014. Appellant

timely filed a notice of appeal on July 8, 2014. The court ordered Appellant

to file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b); and Appellant timely complied on July 9, 2014.

Appellant raises the following issues for our review:

1. [WHETHER] THE VERDICT WAS AGAINST THE WEIGHT

OF THE EVIDENCE AND THE LAW SINCE THE

COMMONWEALTH DID NOT ESTABLISH MALICE AND

WHETHER THE EVIDENCE WAS OTHERWISE INSUFFICIENT

TO SUSTAIN THE VERDICT AS THE COMMONWEALTH

FAILED TO PROVE THE CHARGE AGAINST APPELLANT

BEYOND A REASONABLE DOUBT[?]

2. WHETHER THE VERDICT WAS AGAINST THE WEIGHT

OF THE EVIDENCE AND THE LAW SINCE THE

COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT

DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE; AND

WHETHER THE COMMONWEALTH’S EVIDENCE WAS

INSUFFICIENT TO PROVE OTHERWISE BEYOND A

REASONABLE DOUBT?

3. WHETHER THE VERDICT WAS AGAINST THE WEIGHT

OF THE EVIDENCE AND THE LAW SINCE THE

COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT,

IF HE DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE, THAT

APPELLANT ACTED UNDER SUDDEN AND INTENSE

PASSION RESULTING FROM SERIOUS PROVOCATION

FROM THE VICTIM AND THE DEGREE OF CRIMINAL

HOMICIDE ONLY ROSE TO THE LEVEL OF VOLUNTARY

MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER AND

NOT TO THE LEVEL OF THIRD DEGREE [MURDER]?

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4. DID THE COURT [ERR] IN DENYING APPELLANT’S

OMNIBUS PRE-TRIAL MOTION[?]

5. DID THE COURT [ERR] IN PERMITTING THE POLICE

OFFICER [TO TESTIFY] AS TO WHAT A CONFIDENTIAL

INFORMANT DISCLOSED?

6. DID THE COURT [ERR] IN PERMITTING THE POLICE

OFFICER [TO TESTIFY] ABOUT A BULLET HOLE THAT WAS

ADMITTEDLY NOT PART OF THIS CRIME SCENE?

(Appellant’s Brief at 8).5

In issues one through three, Appellant argues the Commonwealth

failed to prove Appellant acted with malice, a necessary element of third

degree murder. Specifically, Appellant contends the Commonwealth

presented no evidence that Appellant was “the shooter.” Appellant also

states without any developed argument that the verdict was against the

weight of the evidence because his actions were justified and/or in self-

____________________________________________

5

The body of Appellant’s brief contains a duplicate issue #5, presented as

follows: Did the court [err] in permitting the police officer [to testify] as to

what witnesses, Christopher Teets and Ms. Johnson stated in an

unsubstantiated note and through unsubstantiated texts? This duplicate

issue #5 was raised in Appellant’s post-sentence motion, and the court

addressed the claim in its July 7, 2014 opinion at page 15 (reasoning that

statements in question were not hearsay; Ms. Johnson appeared at trial as

Commonwealth’s witness and authenticated text messages taken from her

phone; Appellant authored and sent those text messages, so texts were

Appellant’s own statements; likewise, note obtained from Mr. Teets was sent

to Mr. Teets from Appellant and was in Appellant’s own handwriting). This

duplicate issue #5, however, was not raised in Appellant’s Rule 1925(b)

statement or listed in the formal “Statement of Questions Involved”

(Appellant’s Brief at 8) in violation of Pa.R.A.P. 2116(a). Therefore, this

duplicate issue #5, concerning the texts and the note, is waived; and we

give it no further attention.

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defense. Appellant submits the Commonwealth’s evidence was insufficient

to establish third degree murder, and the jury’s verdict was likewise against

the weight of the evidence. Appellant concludes he is entitled to an acquittal

or, in the alternative, a new trial. We disagree.

This Court has observed:

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 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 proving

every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence.

Moreover, in applying the above test, the entire

record must be evaluated and all evidence actually

received must be considered. Finally, the [finder] 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.

The following principles apply to our review of a weight of

the evidence claim:

The 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…verdict if it is so contrary to

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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.

The Crimes Code defines murder as follows:

§ 2502. Murder.

(a) Murder of the first degree.—A criminal

homicide constitutes murder of the first degree when

it is committed by an intentional killing.

(b) Murder of the second degree.—A criminal

homicide constitutes murder of the second degree

when it is committed while defendant was engaged

as a principal or an accomplice in the perpetration of

a felony.

(c) Murder of the third degree.—All other kinds of

murder shall be murder of the third degree. Murder

of the third degree is a felony of the first degree.

* * *

18 Pa.C.S.A. § 2502(a)-(c). To establish the offense of

third degree murder, the Commonwealth need only prove

beyond a reasonable doubt that the defendant killed an

individual, with legal malice, i.e., …wickedness of

disposition, hardness of heart, wantonness, cruelty,

recklessness of consequences, or a mind lacking regard for

social duty. … Malice is established where an actor

consciously disregard[s] an unjustified and extremely high

risk that his actions might cause death or serious bodily

harm.

Commonwealth v. Devine, 26 A.3d 1139, 1145-46 (Pa.Super. 2011),

appeal denied, 615 Pa. 783, 42 A.3d 1059 (2012) (most internal citations

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and quotation marks omitted). We also observe: “A weight of the evidence

claim concedes that the evidence is sufficient to sustain the verdict, but

seeks a new trial on the ground that the evidence was so one-sided or so

weighted in favor of acquittal that a guilty verdict shocks one’s sense of

justice.” Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067

(2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1792, 188 L.Ed.2d 761

(2014).

Instantly, Appellant’s conclusory argument devoted to issues one

through three is inadequately developed, although liberally seasoned with

legal citations. Therefore, we could deem issues one through three waived

on that basis alone. See generally Commonwealth v. Palo, 24 A.3d

1050, 1057-58 (Pa.Super. 2011), appeal denied, 613 Pa. 663, 34 A.3d 828

(2011) (emphasizing need for developed, reasoned, intelligent argument

appropriate for appellate review; otherwise, issue is subject to waiver).

With respect to Appellant’s second and third issues only, he makes no

argument and cites no relevant law in his brief to support self-defense,

voluntary manslaughter, or involuntary manslaughter. Thus, Appellant

waived issues two and three on this basis as well.

Moreover, the Commonwealth produced evidence at trial for each

element of third degree murder. As the trial court stated:

Third Degree Murder

* * *

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In the instant case, the Commonwealth presented a

myriad of evidence that a reasonable jury could have

properly convicted [Appellant] of Third Degree Murder.

First, the Commonwealth had the text messages sent by

[Appellant] to Ms. Johnson. [Appellant] admitted to the

police that he was upset that Ms. Johnson, who was

[Appellant’s] girlfriend at the time, was also involved with

[Victim]. One of the text messages [Appellant] sent to Ms.

Johnson said, “Lmao…then you told this nigga where im

at? Bitch yur way too much right now! Ima kill him that’s

my [fucking] word.” That message was sent on May 12,

2012 at 5:28 p.m., less than 12 hours before [Victim’s]

body was found.

Second, [Appellant] changed his version of events three

(3) different times. When Captain Rutter initially

interviewed him, [Appellant] indicated that he had no

knowledge of the shooting and had never heard the names

“Zeus” or “Marlin Crawford” in his life. [Appellant] also

gave a detailed description as to his whereabouts at the

time of the shooting.

Several hours later, [Appellant] gave Detective Rutter a

different version of events. This time, [Appellant] said

that he knew [Victim], and he was very upset that Ms.

Johnson was ‘messing with [Victim].” [Appellant] then

gave the version of the story where he went to [Victim’s]

home the night before the shooting in order to confront

him, and the two men exchanged gunfire. The two men

encountered each other the following evening, and a

physical altercation ensued with other unaffiliated parties.

The altercation ended with more gunfire, and [Appellant],

who picked up a gun off the street, returned fire as he was

running away. [Appellant] did not know if he hit [Victim],

and [Appellant] claimed to have thrown the gun in a

specific location, which the police were unable to locate.

When asked why he threw the gun, [Appellant] responded,

“Because I knew what I had done.”

Several months after the shooting, [Appellant] voluntarily

came in for questioning at the District Attorney’s Office

and gave an entirely different version of events to

Detective Gmitter. [Appellant] told the story of riding in

the white Jeep in question to Pershing Court with Fairfax

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and Fielder in order to purchase drugs. [Appellant] and

[Victim] encountered each other, and [Appellant]

attempted to “squash the bad blood between them.” A

physical altercation ensued with unaffiliated parties, and

[Appellant] picked up a gun from the ground and began

running. [Appellant] claimed to have heard shots but was

unsure of who the shooter(s) was (were) when he fired

back while still running. All [Appellant] observed was

Fielder running towards [Victim] with a gun. [Appellant]

then claimed that Fielder asked [Appellant] why he threw

the gun, and Fielder retrieved it and hid it in a floorboard

at Miller’s house. [Appellant] had no justification for not

calling the police after this had occurred.

Third, the Commonwealth presented a letter that

[Appellant] had written to a friend from prison where

[Appellant] pleaded with her to present a false account of

his whereabouts on the night of the shooting.

Commonwealth witness Diana Long had received a letter

from [Appellant] that read in relevant part:

I got my situation under control and the table is

starting to turn around now. My lawyer will be

coming to see you very soon. I need you to write

this down and remember it and tell him when he

comes. I came in your house a little bit after

two−two a.m., you let me in and went back to sleep.

You woke up at four a.m., heard the TV, came down

and turned it off. At this time, I was still on the floor

sleeping, and went back to sleep after you turned

the TV off. I will call you soon to make sure you got

this letter.

Miss you very much. Love always.

This version of events was never conveyed to police by

[Appellant] in any of the three (3) times he spoke with

them regarding this case.

Fourth, the Commonwealth presented both a conversation

between [Appellant] and Gerald Secrest and a letter

written by [Appellant] to Secrest.

Secrest described the first conversation as follows:

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[Appellant] was reading the paper after a young

male was shot here in Uniontown and he said about,

you can’t be a porch nigger, you got to be a real

nigger. His situation, as soon as he seen the guy, he

shot him…. He said about him, another fellow and

his girlfriend went that night and shot [Victim].

[Appellant] also wrote Secrest a letter from prison, which

read:

What’s up? This is Tay. I want to know what Chris

Teets tell you about my case and why is he trying to

take my life away? Whatever he said, he is lying. I

never talked to him about my case. He came to me

once on C block and asked me if I wanted him to

help with my case, and I said no, I am good because

I know he worked for the police. The only thing that

I told him was the truth, that my life was in danger

and I didn’t do it. I could have been dead right now

with my mom crying because her baby child is gone,

but God protected me. That’s why I pray to him

even right now for keeping me safe. I am thanking

him for protecting me. I am not that type of person.

The boy, Craig rug, on C block told me Chris told him

that he is going to set me up because I slapped him

when I caught him stealing out of my cell. So,

please don’t do nothing to take my life.

Finally, Secrest testified to a conversation he overheard

between [Appellant] and Teets where [Appellant] “asked

[Teets] to be an alibi for him. [Appellant] was willing to

pay [Teets].”

The decedent was killed by a gunshot to the head. There

is ample circumstantial evidence to show that [Appellant]

had motive, opportunity, and actually did fire the fatal

shot. The jury was not required to believe any of

[Appellant’s] self-serving statements.

Based on this evidence, it was reasonable that the jury

found that the Commonwealth met its burden of proof for

a Third Degree Murder conviction.

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Self-defense

Next, [Appellant] argues that the Commonwealth could not

prove that [Appellant] did not act in justifiable self-defense

when [Appellant] shot [Victim].

Under Pennsylvania law:

[§ 505. Use of force in self-protection

* * *

(b) Limitations on justifying necessity for use

of force.−

* * *]

(2) The use of deadly force is not justifiable under

this section unless the actor believes that such

force is necessary to protect himself against

death, serious bodily injury, kidnapping or sexual

intercourse compelled by force or threat; nor is it

justifiable if:

(i) the actor, with the intent of causing death

or serious bodily injury, provoked the use of

force against himself in the same encounter; or

(ii) the actor knows that he can avoid the

necessity of using such force with complete

safety by retreating, except the actor is not

obliged to retreat from his dwelling or place of

work, unless he was the initial aggressor or is

assailed in his place of work by another person

whose place of work the actor knows it to be.

* * *

18 Pa.C.S.A. § 505(b)(2)

In the instant case, the Commonwealth presented

sufficient evidence to refute that [Appellant] acted in

justifiable self-defense. First, …[Appellant] gave law

enforcement officials three (3) different versions of what

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happened on that night. Two (2) versions included

[Appellant] throwing away the gun, and one established

that [Appellant] was the initial aggressor since he claimed

to have confronted [Victim]. Second, [Appellant] sent a

text message saying that he was going to kill [Victim].

Third, [Appellant] asked different individuals to lie on his

behalf.

Based on this evidence, the jury could have found that

[Appellant] was the initial aggressor, that he was not

actually in fear, and that he failed to retreat.

Voluntary and Involuntary Manslaughter

[Appellant] argues that the Commonwealth may have been

able to establish his conduct rose to the level of Voluntary

or Involuntary Manslaughter but not Third Degree Murder.

Under the law, Voluntary Manslaughter is defined as

follows:

[§ 2503. Voluntary manslaughter

(a) General rule.―]A person who kills an individual

without lawful justification commits voluntary

manslaughter if at the time of the killing he is acting

under a sudden and intense passion resulting from

serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he

negligently or accidentally causes the death of the

individual killed.

18 Pa.C.S.A. § 2503(a).

The Pennsylvania Superior Court further analyzed the

statute:

“Passion” includes any emotions of the mind that render

it incapable of reflection, such as anger, rage, sudden

resentment or terror. Once it is found that the

defendant was confronted with sufficient provocation,

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the focus shifts to the defendant’s response: did the

defendant actually act in the heat of passion when he

committed the homicide; did the provocation directly

lead to the killing of the person responsible for the

provocation, or was the individual killed negligently or

accidently in the course of the defendant’s endeavor to

kill his provoker; and was there insufficient “cooling

time,” thus preventing a reasonable [person] from

regaining his capacity to reflect.

Commonwealth v. Galloway, 485 A.2d 776, 783

(Pa.Super. 1984) (other citations omitted).

Furthermore, a person can be guilty of Voluntary

Manslaughter for what is known as “imperfect self-

defense”:

[§ 2503. Voluntary manslaughter

* * *

(b) Unreasonable belief killing justifiable.―]A

person who intentionally or knowingly kills an individual

commits voluntary manslaughter if at the time of the

killing he believes the circumstances to be such that, if

they existed, would justify the killing under Chapter 5 of

this title (relating to general principles of justification),

but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b).

Here, the jury was not persuaded by any possible

testimony regarding a killing in the heat of passion or

“imperfect self-defense.” [Appellant’s] different versions

of events, the text message, and asking others to lie for

him all refute that argument.

Furthermore, any argument that [Appellant] was angry

over an alleged affair between his girlfriend and [Victim]

also fails because even if it could be deemed adequate

provocation, [Appellant] had a more than sufficient cooling

period since the killing took place more than 24 hours after

he was made aware of the alleged affair.

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For these reasons, it was reasonable for the jury to find

[Appellant] did not commit Voluntary Manslaughter.

As to [Appellant’s] argument regarding Involuntary

Manslaughter, the [c]ourt finds this argument fails as well.

Under the law, “A person is guilty of involuntary

manslaughter when as a direct result of the doing of an

unlawful act in a reckless or grossly negligent manner, or

the doing of a lawful act in a reckless or grossly negligent

manner, he causes the death of another person.” 18

Pa.C.S.A. § 2504(a).

With the evidence that was presented to the jury, it was

reasonable for them to find that [Appellant] was much

more culpable than merely reckless or negligent when he

shot [Victim] in the head.

(Trial Court Opinion at 6-13) (most internal citations omitted). Even if

Appellant had properly preserved and presented issues one through three,

we would conclude the Commonwealth presented sufficient evidence for the

jury to find, beyond a reasonable doubt, that Appellant had fired the gun

which killed Victim, and Appellant did so with a hardness of heart or

recklessness of consequences. See 18 Pa.C.S.A. § 2502; Devine, supra.

Given the trial evidence, we would likewise see no reason to disturb the

court’s decision to deny relief on Appellant’s weight claim. See id. See

also Lyons, supra.

Appellant’s fourth issue concerns his omnibus pre-trial motion to

suppress statements he made to the police. Initially, Appellant asserts the

police arrested him without a warrant. Appellant then avers the police failed

to advise him of his Miranda rights when he was first arrested, he did not

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understand those rights when he finally received Miranda warnings, and he

was incapable of waiving those rights. Appellant claims he did not

voluntarily and understandably waive his rights or make statements to the

police. Appellant claims Captain Rutter played on Appellant’s emotions by

telling Appellant the crime scene would be tainted if Appellant did not hurry

up and give his version of the events; if it was self-defense, Appellant should

say so or the police could do nothing for Appellant. Appellant insists Captain

Rutter knew Appellant did not want to talk about the incident, but Captain

Rutter pushed Appellant for a response. Appellant concludes the court

should have suppressed Appellant’s statements under these circumstances,

and we should grant him a new trial. We disagree.

We review the denial of a suppression motion subject to the following

principles:

Our standard of review in addressing a challenge to a trial

court’s denial of a suppression motion is limited to

determining whether the factual findings are supported by

the record and whether the legal conclusions drawn from

those facts are correct.

[W]e may consider only the evidence of the

prosecution and so much of the evidence for the

defense as remains uncontradicted when read in the

context of the record as a whole. Where the record

supports the findings of the suppression court, we

are bound by those facts and may reverse only if the

court erred in reaching its legal conclusions based

upon the facts.

Commonwealth v. Hope Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008)

(en banc) (internal citations and quotation marks omitted). Further, “It is

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within the suppression court’s sole province as factfinder to pass on the

credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting

Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

Additionally:

Statements made during custodial interrogation are

presumptively involuntary, unless the accused is first

advised of [his] Miranda rights. Custodial interrogation is

questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived

of his freedom of action in any significant way. The

Miranda safeguards come into play whenever a person in

custody is subjected to either express questioning or its

functional equivalent. Thus, interrogation occurs where

the police should know that their words or actions are

reasonably likely to elicit an incriminating response from

the suspect. In evaluating whether Miranda warnings

were necessary, a court must consider the totality of the

circumstances. In conducting the inquiry, we must also

keep in mind that not every statement made by an

individual during a police encounter amounts to an

interrogation. Volunteered or spontaneous utterances by

an individual are admissible even without Miranda

warnings.

Hope Williams, supra at 30 (internal citations and quotation marks

omitted).

In response to this issue, the suppression court offered the following:

FINDINGS OF FACT

1. On May 13, 2012, Officer Matthew Painter of the

Uniontown Police department responded to the scene of an

unresponsive male and observed a single gunshot wound

to the male’s forehead.

2. As Patrolman Delbert [DeWitt] arrived on the scene,

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he observed a white Jeep SUV pull out with its headlights

turned off.

3. Chief Jason Cox, who also responded to the scene,

was given information by a confidential informant that the

shooter possibly had a nickname of “Tay,” was seen in a

white Jeep, and was staying at 20 Millview Street.

4. Chief Cox patrolled the area looking for a white Jeep

and found it in an alley north of Millview Street.

5. Together with other officers, Chief Cox proceeded to

20 Millview Street and, using a [P.A.] system, had the

occupants, including Appellant, exit the home.

6. Captain David Rutter of the Uniontown Police

department responded to the crime scene and interviewed

Appellant at 9:17 [a.m.] that same morning.

7. Appellant, who did not appear to be under the

influence of drugs or alcohol, was given his Miranda rights

by Captain Rutter and acknowledged that he understood

his rights.

8. Appellant then executed a rights waiver form.

9. The waiver of his rights was made voluntarily,

knowingly and intelligently by Appellant.

10. Appellant then made a statement in which he denied

knowing the victim, Marlon Crawford, and that he had

never heard the name “Zuss” in his life.

11. On May 13, 2012, Captain Rutter, who is certified to

conduct such test, completed a gunshot residue kit on the

hands of Appellant.

12. Later that day, at 3:04 [p.m.], Appellant was again

advised of his Miranda rights and again executed a rights

waiver form.

13. No threats, promises or other improper incentives

were made to Appellant to cause him to waive his rights

and make a statement.

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14. The waiver of his rights was made voluntarily,

knowingly and intelligently by Appellant.

15. Appellant then made a second statement in which he

stated that he confronted Zuss regarding Appellant’s

girlfriend and that they exchanged gunshots before

Appellant fled.

16. Appellant further stated that the next night he again

confronted Zuss, and that Zuss pulled a gun and started

shooting at [Appellant], causing Appellant to pick up a gun

lying on the grounds and fire it at Zuss as Appellant was

running away.

17. During the interview of Appellant, Rutter advised

[Appellant] that the police had text messages from him to

Kim Johnson.

18. With regard to the text messages, Appellant stated to

Rutter that the text “looks pretty bad” and asked if there

was “any way to make them go away.”

19. Trooper Donald Lucas, of the Pennsylvania State

Police, was given a cell phone to examine regarding this

matter and downloaded the available data from the phone.

20. The telephone number for the cell phone was 724-

963-2340.

21. On May 12, 2012, the phone received a message

from “Tay” stating, “bitch, you fuckin’ Zuss, oh you nasty

bitch, you let him nut in you, then let me fuck, you a slut.”

22. Another message was received from “Tay” that day

stating, “omg bitch, I know you didn’t let him drive my car.

I fuckin’ hate you.”

23. A third message from “Tay” was received by the

same telephone that day stating, “Imao, then you told this

nigga where I’m at. Bitch you are way too much right

now. Ima kill him. That’s my fucking word.”

* * *

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The omnibus pretrial motion of Appellant…contended that

Appellant did not knowingly, intelligently and/or voluntarily

waive his right to self-incrimination. Instantly, Appellant

made two incriminating statements, both on May 13,

2012. Captain David Rutter of the Uniontown Police

Department, after he had responded to the crime scene,

interviewed Appellant at 9:17 [a.m.] that morning.

Appellant, who did not appear to be under the influence of

drugs or alcohol, was given his Miranda rights by Captain

Rutter and acknowledged that he understood his rights.

He then executed a rights waiver form and made an

incriminating statement. Later that day, at 3:04 [p.m.]

while still in custody, Appellant was again advised of his

Miranda rights, again executed a rights waiver form and

made a second incriminating statement. No threats,

promises or other improper incentives were made to

Appellant to cause him to waive his rights and make this

second statement.

The only evidence offered at the omnibus pre-trial hearing

was that the waiver of [Appellant’s] Miranda rights was

made voluntarily, knowingly and intelligently by Appellant,

and we so found.

(Suppression Court Opinion, filed July 15, 2014, at 2-5, 9) (internal citations

omitted). We see no reason to disturb the suppression court’s decision to

deny relief on this issue. See Hope Williams, supra; Clemens, supra.

In his fifth issue, Appellant asserts the Commonwealth offered, for the

truth of the matter asserted, Chief Cox’s testimony regarding information he

received from a confidential informant (“CI”) that Appellant was the shooter.

Appellant avers this testimony was the only information that supposedly

linked Appellant to the crime. Appellant claims the Commonwealth should

have disclosed the identity of Chief Cox’s CI. Appellant complains the

Commonwealth led the trial court to believe the only reason the

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Commonwealth wanted to use information obtained from the CI was to

develop how the police learned where the white Jeep seen leaving the crime

scene could be found. Appellant insists the court told the Commonwealth

before trial that it could not offer information from the CI to name Appellant

as the shooter, and nothing happened at trial to change the court’s ruling.

Appellant contends the CI was not present at trial or subject to cross-

examination, so anything the CI reported was inadmissible hearsay.

Appellant concludes the erroneous admission of Chief Cox’s testimony

warrants a new trial. We disagree.

Initially, we observe:

Regarding the disclosure of a confidential informant, the

Pennsylvania Supreme Court has stated:

[N]o fixed rule with respect to disclosure of the

confidential informant’s identity is justifiable. The

problem is one that calls for balancing the public

interest in protecting the flow of information against

the individual’s right to prepare his defense.

Whether a proper balance renders the nondisclosure

erroneous must depend on the particular

circumstances of each case, taking into consideration

the crime charged, the possible defenses, the

possible significance of the informer’s testimony and

other relevant factors.

Commonwealth v. Bing, 551 Pa. 659, 663–64, 713 A.2d

56, 58 (1998) (internal brackets and citations omitted).

Further:

This balance is initially weighted toward the

Commonwealth, which holds a qualified privilege to

maintain an informant’s confidentiality to preserve

the public’s interest in effective law enforcement.

However, the balance tips in favor of disclosure

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where guilt is found solely on police testimony from

a single observation and testimony from a

disinterested source, such as the informant, is

available.

In re R.S., 847 A.2d 685, 688 (Pa.Super. 2004), appeal

denied, 581 Pa. 679, 863 A.2d 1148 (2004) (quoting

Commonwealth v. Belenky, 777 A.2d 483, 488

(Pa.Super. 2001)).

“However, where other corroboration of the officer's

testimony exists, disclosure of the informant's identity is

not necessarily required.” Bing, supra at 664, 713 A.2d

at 58. Moreover, a defendant must meet certain

thresholds for the court to determine whether to order the

disclosure of an informant’s identity:

Before the informant’s identity may be revealed…the

accused must show the information is material to the

defense and the request is reasonable. The

defendant need not predict exactly what the

informant will say, but [the source] must

exonerate [the defendant]. More than the

mere assertion that disclosure of the

informant's identity might be helpful is

necessary. Only after this threshold showing that

the information is material and the request is

reasonable is the trial court called upon to determine

whether the information is to be revealed.

In re R.S., supra at 688 (emphasis added).

Where the confidential informant is not a witness to the

incident at issue, the defendant must show that the

Commonwealth’s disclosure of the identity of the informant

is (1) material to his defense; (2) reasonable; and (3) in

the interests of justice.

It is important to note that the Rule [Pa.R.Crim.P.

305B(2)(d)] speaks in terms of a showing by the

defendant. These conditions cannot be assumed,

and they must be supported by evidence on the

record. It is in this context that the evidence

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presented at the hearing must be examined to

determine whether the defendant met his burden.

Commonwealth v. Hritz, 663 A.2d 775, 778 ([Pa.Super.]

1995) (quoting Commonwealth v. Novasak, 606 A.2d

477, 483 ([Pa.Super.] 1992), appeal denied, 532 Pa. 662,

616 A.2d 984 (1992)) (internal citations and footnote

omitted) (emphasis in original).

Regarding the element of materiality, the defendant must

show as a threshold matter that the informant’s identity is

germane to the defense. Commonwealth v. Heater, 899

A.2d 1126, 1130 (Pa.Super. 2006), appeal denied, 592 Pa.

779, 926 A.2d 973 [] (2007). Evidence is “relevant and

material to the defense if it tends to show that a specific

crime of which a defendant stands accused was committed

by someone else.” Novasak, supra. The record must

disclose a reasonable possibility that the information

sought will materially aid the defendant in presenting his

defense and is not obtainable from another source. Hritz,

supra at 780 (emphasis in original).

Commonwealth v. King, 932 A.2d 948, 952-53 (Pa.Super. 2007).

Pennsylvania Rule of Evidence 801 defines hearsay as follows:

Rule 801. Definitions That Apply to This Article

(a) Statement. “Statement” means a person’s oral

assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made

the statement.

(c) Hearsay. “Hearsay” means a statement that

(1) the declarant does not make while testifying at the

current trial or hearing; and

(2) a party offers in evidence to prove the truth of the

matter asserted in the statement.

Pa.R.E. 801.

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The hearsay rule provides that evidence of a declarant’s

out-of-court statements is generally inadmissible because

such evidence lacks guarantees of trustworthiness

fundamental to the Anglo–American system of

jurisprudence. [T]he focus of the Confrontation Clause is

testimonial hearsay. However, when a hearsay statement

is offered for a purpose other than proving the truth of its

contents, it is not hearsay and is not excludable under the

hearsay rule. [T]he [Court in Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)]

makes clear that even the use of testimonial statements is

not barred by the Confrontation Clause for purposes other

than establishing the truth of the matter asserted. In any

event, it is a long standing rule of jurisprudence that an

out-of-court statement offered to explain a course of

conduct is not hearsay.

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa.Super. 2006), appeal

denied, 591 Pa. 671, 916 A.2d 1101 (2007) (most internal citation ans

quotation marks omitted). See also Commonwealth v. Johnson, 615 Pa.

354, 386, 42 A.3d 1017, 1035 (2012), cert. denied, ___ U.S. ___, 133 S.Ct.

1795, 185 L.Ed.2d 818 (2013) (quoting Commonwealth v. Rega, 593 Pa.

659, 693-94, 933 A.2d 997, 1017 (2007), cert. denied, 552 U.S. 1316, 128

S.Ct. 1879, 170 L.Ed.2d 755 (2008) (stating: “[A]ny out-of-court statement

offered not for its truth but to explain the [witness’] course of conduct is not

hearsay)); Commonwealth v. Smith, 378 A.2d 1015, 1017 (1977) (stating

trooper’s testimony in bookmaking prosecution, concerning informant’s

statement that trooper could place bets by calling specific telephone

number, was not hearsay, as it was offered to explain trooper’s subsequent

actions; statement was not offered to show it was true, but only that it was

said).

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Instantly, on the fourth day of the jury trial, the court convened an “in

camera” proceeding to determine whether to disclose the identity of Chief

Cox’s CI. Chief Cox testified that the CI had provided reliable information to

the police over the past six or seven years, that there were few CIs in

Pershing Court, and that the culture and atmosphere of the environment

would result in physical threats and physical harm to the CI, if his identity

were disclosed. The jury heard none of this testimony. In response to this

claim, the trial court said:

Appellant argues that the [c]ourt erred in allowing

testimony regarding what the [CI] disclosed to the police.

The [c]ourt is unclear of [Appellant’s] argument here

because there is no testimony presented in front of the

jury on the CI. An “in camera” proceeding was held with

Chief Jason Cox and Detective Gmitter. The [c]ourt did

not require the Commonwealth to reveal the identity of the

CI due to credible threats to [the CI’s] personal safety. …

* * *

Here, [Appellant] did not meet the threshold which

required disclosure of the CI. Chief Cox had conveyed the

CI’s statements to Detective Gmitter in the very early

stages of the investigation. That information led police to

[Appellant], but based on what additional evidence

revealed, the investigation would have led police to

[Appellant] regardless of whether a CI was involved.

The [c]ourt found that the threats against the CI were

credible since Pershing Court is one of the highest crime

areas in the county, and the [c]ourt has presided over

innumerable violent criminal cases [which] have occurred

there. The [c]ourt is also aware that police experience

great difficulty obtaining information from witnesses to

these crimes due to fear of and/or actual threats of bodily

harm or death. The Defense did not demonstrate a

genuine need for the CI’s identity, and there was a

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legitimate reason to continue to withhold that information.

(Trial Court Opinion at 13-14) (most internal citations omitted). We see no

reason to disturb the trial court’s decision to deny disclosure of the identity

of the CI.

Regarding Chief Cox’s trial testimony, nothing in the record indicates

Chief Cox was permitted to identify Appellant as the shooter based on

information obtained from the CI. At trial, the following took place away

from the jury:

SIDE-BAR CONFERENCE

DEFENSE COUNSEL: Much of Chief Cox’s testimony could

be hearsay, and I am going to ask the [c]ourt to−well, I

want to make a note that I will be objecting to hearsay

and I want to do it before the jury hears it.

COMMONWEALTH: I don’t believe that there is any

hearsay, Judge. The substance of Chief Cox’s testimony is

that once receiving information of the white Jeep, he

received information from a confidential informant that the

Jeep could be at 20 Millview Street, and he responded to

that location and in fact found the Jeep, so I think that

that is just a part of the res gestae. It is not being

offer[ed] for the truth. It is just why he went to 20

Millview.

DEFENSE COUNSEL: Your Honor, in additional to that, in

Chief Cox’s statement, he said that there was other

information that is incriminating, which…includes the fact

that the defendant was in the white Jeep, and that it was

at the scene.

COMMONWEALTH: The specific information received from

the confidential informant was that Tay and K-Dub were

involved and they left in a white Jeep and they were at 20

Millview Street.

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DEFENSE COUNSEL: And that is hearsay.

COMMONWEALTH: And it was based on that information

that he went to 20 Millview Street and found both the

white Jeep and the occupants.

THE COURT: Well, in the absence of an

identification of [the] confidential informant, you can’t use

that information at all other than to say that [the police]

learned of the location of the white Jeep and they went to

20 Millview, and anything that led up to that at this point is

hearsay unless you come up with another way to get it in.

COMMONWEALTH: Okay.

DEFENSE COUNSEL: Thank you, Your Honor.

(AT THIS TIME, THE SIDE-BAR CONFERENCE WAS

CONCLUDED)

(N.T. Trial, 2/3/14, at 63-64). The substance of Chief Cox’s testimony

before the jury was limited to his course of investigation and is, in relevant

part, as follows:

COMMONWEALTH: Chief, back on May 13, 2012, were

you on duty?

WITNESS: I was not.

COMMONWEALTH: Did you have the occasion to

investigate the matter before the [c]ourt on that date?

WITNESS: I did.

COMMONWEALTH: Can you tell us how you came

involved in that investigation?

WITNESS: At approximately five a.m., I had

received a phone call at home that there had been a

shooting in the area of Pershing Court and that a male had

a gunshot, an apparent gunshot to the head and he was in

grave condition.

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COMMONWEALTH: Upon receiving that call, did you

respond to the crime scene?

WITNESS: I did.

COMMONWEALTH: What time did you arrive?

WITNESS: At approximately 5:20.

COMMONWEALTH: And, can you tell me what you

encountered upon your arrival there?

WITNESS: Um, when I arrived, [Victim] had

already been taken from the scene, and I began to speak

with the officers to gather as much intel as possible to

determine a potential suspect.

COMMONWEALTH: In your speaking to any officers

and/or other sources, did you get any information that you

used to investigate?

WITNESS: I did. I received information that the

shooter had…

DEFENSE COUNSEL: Objection.

THE COURT: Sustained. At this point, we

discussed…

COMMONWEALTH: Let me ask…

WITNESS: Yes, sir.

COMMONWEALTH: After speaking to other officers and

other sources, you were aware that there was a white Jeep

seen at the scene, correct?

WITNESS: Yes, sir.

COMMONWEALTH: Did you go about investigating the

white Jeep?

WITNESS: I did.

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COMMONWEALTH: And, after the investigation, did you

receive any information as to where the…

DEFENSE COUNSEL: Objection.

THE COURT: Did you locate the white Jeep?

WITNESS: Yes, sir.

COMMONWEALTH: Where did you locate the white Jeep?

WITNESS: In an unnamed alley north of Millview

Street.

COMMONWEALTH: Upon locating the Jeep, what did you

do?

WITNESS: I requested the assistance of other

officers.

COMMONWEALTH: Did other officers arrive at the scene

in the unnamed alley by Millview Street?

WITNESS: Yes, sir.

COMMONWEALTH: What other officers were there?

WITNESS: I believe Officer Painter, Officer

Fidazzo, Officer Miller at some point, and I don’t remember

[in] which order they arrived.

COMMONWEALTH: Did you check to see—did you check

the hood or anything to see if it had been running

recently?

WITNESS: I did. I felt the hood and it appeared

to be warm. It felt warm.

COMMONWEALTH: Once the other officers arrived on the

scene, what steps did you take?

WITNESS: The Jeep was parked at the rear of

basically like a garage apartment, so the first step we took

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was to knock on the door of that garage apartment. I

knocked on that door, encountered a male, I asked if that

was his Jeep and he advised it was not. I then asked if he

knew whose Jeep it was and he said that he did not, but

that a short time prior to our arrival, he observed the Jeep

pull up and two individuals exited and walked…

DEFENSE COUNSEL: Objection to hearsay.

THE COURT: Yeah. There is no hearsay

[exception] that I have heard to justify the chief repeating

what he was told by a witness that is not testifying.

COMMONWEALTH: Understood, Your Honor.

COMMONWEALTH: After speaking to the guy in the

garage, what did you do at that point, Chief?

WITNESS: At that point I—myself and the

officers went to the area of 20 Millview Street.

COMMONWEALTH: What did you do—strike that. First

off, where is that in relation to the unnamed alley where

you observed the Jeep at?

WITNESS: South.

COMMONWEALTH: Not that far away?

WITNESS: Less than a block.

COMMONWEALTH: And, upon going to 20 Millview, what

did you do?

WITNESS: We arrived at 20 Millview and

stationed officers on the compass points of 20 Millview

Street. At that point, I utilized a bullhorn to order any

individuals that were inside of 20 Millview Street in the

third floor apartment out.

COMMONWEALTH: What specifically did you say?

WITNESS: At that point, I believed that my initial

verbiage towards the apartment was any occupants on the

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third floor of 20 Millview Street, please exit with your

hands up.

COMMONWEALTH: And, did you receive any response to

that command?

WITNESS: After some time, yes.

COMMONWEALTH: Approximately how long after?

WITNESS: Maybe between five and ten minutes

COMMONWEALTH: And what was the response that you

got?

WITNESS: One individual exited the residence.

COMMONWEALTH: Were you able to identify that person?

WITNESS: Yes, sir.

COMMONWEALTH: Who was it?

WITNESS: His name is Jasson Miller.

COMMONWEALTH: Was Mr. Miller secured when he came

out of the residence?

WITNESS: Yes, he was.

COMMONWEALTH: Did anybody else come out of the

residence?

WITNESS: A female and two males.

COMMONWEALTH: About how long after Mr. Miller came

out?

WITNESS: I believe the female was the second

to come out, and then probably within twenty minutes or

so, the other two males exited.

COMMONWEALTH: So, four occupants in the apartment

altogether?

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WITNESS: Yes, sir.

COMMONWEALTH: Were you able to identify the female

when she came out?

WITNESS: We were.

COMMONWEALTH: And, who was she?

WITNESS: I don’t recall the name off the top of

my head.

COMMONWEALTH: What about the two males.

WITNESS: They were identified as well.

COMMONWEALTH: Do you recall who they were?

WITNESS: Deaundrey Fielder and [Appellant],

who is seated to the left of [defense counsel].

COMMONWEALTH: Your Honor, I would ask the record to

reflect that Chief Cox had identified [Appellant].

THE COURT: The record will so reflect.

COMMONWEALTH: So, Chief, how long of a timespan is

this just to give us an idea from the time that Mr. Miller

comes out until the time Mr. Fielder and [Appellant] come

out?

WITNESS: Approximately twenty minutes.

COMMONWEALTH: And, at what point did the female

come out?

WITNESS: In between. You know, maybe five to

ten minutes into an announcing and requesting that all of

the parties [exit] the residence.

COMMONWEALTH: So, shortly after Mr. Miller?

WITNESS: Yes.

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COMMONWEALTH: In the five to ten minute span after

you gave that initial command, did you give additional

commands?

WITNESS: Yes. I gave commands throughout

the duration probably every minute to two minutes.

COMMONWEALTH: And, that was similar to commands

that you gave to all occupants before the four of them

come out?

WITNESS: Yes, sir.

COMMONWEALTH: Hands up or something to that effect?

WITNESS: Yes, sir.

COMMONWEALTH: Once Mr. Fielder and [Appellant] came

out, were they secured and taken into custody?

WITNESS: They were.

COMMONWEALTH: After the two males, that being Mr.

Fielder and [Appellant], [came] out of the apartment and

were secured, what did you observe on Millview Street?

WITNESS: If you could be a little more specific?

COMMONWEALTH: Once they were taken into custody,

were they placed into a patrol vehicle?

WITNESS: Yes, they were all placed into patrol

vehicles and transferred to the Uniontown Police

Department.

COMMONWEALTH: Thank you, Chief.

COMMONWEALTH: That’s all of the questions that I have

for Chief Cox, Judge.

CROSS EXAMINATION

DEFENSE COUNSEL: Chief, you say that there were four

occupants of the house when you told them to come out of

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the house; is that correct?

WITNESS: Yes.

DEFENSE COUNSEL: Okay. The first one was a person

named Jasson Miller?

WITNESS: Yes.

DEFENSE COUNSEL: The second person that came out was

a female?

WITNESS: Yes.

DEFENSE COUNSEL: You don’t remember [her] name?

WITNESS: No, sir.

DEFENSE COUNSEL: Was it—would you remember if it was

Ms. Fairfax?

WITNESS: Yes, it was.

DEFENSE COUNSEL: And, her first name?

WITNESS: Jessica.

DEFENSE COUNSEL: It was Ms. Fairfax?

WITNESS: Yes, sir.

DEFENSE COUNSEL: Now, after that, Mr. Fielder and

[Appellant] come out. Did [they] come out together?

WITNESS: I don’t remember.

DEFENSE COUNSEL: And, do you remember Mr. Fielder?

WITNESS: Um, I may or may not.

DEFENSE COUNSEL: Was he taken into custody?

DEFENSE COUNSEL: Do you know whether either of the

males, or any of the three males were in a relationship

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with the female?

WITNESS: I don’t.

DEFENSE COUNSEL: Who owned the Jeep?

WITNESS: I am not sure.

DEFENSE COUNSEL: Do you know who was driving the

Jeep?

WITNESS: I didn’t observe anyone driving the

Jeep.

DEFENSE COUNSEL: Okay. In your information did you

find out who had been driving?

WITNESS: I did not.

DEFENSE COUNSEL: Did you find out who had been

occupants in the car?

WITNESS: I did not.

DEFENSE COUNSEL: Okay. That’s all I have. Thank you.

COMMONWEALTH: No redirect, Your Honor.

THE COURT: You can step down Chief Cox.

WITNESS: Thank you, Your Honor.

(N.T. Trial, 2/3/14, at 64-72). As the trial transcript makes clear, there was

no testimony presented in front of the jury on the CI’s information that

would constitute inadmissible hearsay. Additionally, at no time did Chief Cox

identify Appellant as the shooter, based on information obtained from the CI.

Therefore, nothing in the record indicates the jury verdict was compromised

by inadmissible hearsay as Appellant has alleged. Thus, this issue merits no

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relief.

In his last issue, Appellant complains the court allowed evidence

concerning a bullet hole near the crime scene that did not relate to the

homicide at issue. Appellant insists the evidence was irrelevant to the

charges against him. Appellant avers the bullet hole was placed more than a

day before the homicide at issue. Appellant submits the evidence admitted

was pure speculation in an attempt to bolster the Commonwealth’s case with

“outrageous information.” Appellant concludes the court erred in admitting

this evidence, which only clouded the matter and warrants relief. We cannot

agree.

The general standard of review for admission of evidence is as follows:

Admission of evidence is within the sound discretion

of the trial court and will be reversed only upon a

showing that the trial court clearly abused its

discretion. 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.

* * *

Judicial discretion requires action in conformity with

law, upon facts and circumstances judicially before

the court, after hearing and due consideration. An

abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is

overridden or misapplied or the judgment exercised

is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will, as shown by the evidence

or the record, discretion is abused.

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Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa.Super. 2006) (en

banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007) (internal citations

omitted). Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).

The Pennsylvania Rules of Evidence provide:

Rule 401. Definition of “relevant evidence”

“Relevant evidence” means evidence having any tendency

to make the existence of any fact that is of consequence to

the determination of the action more probable or less

probable than it would be without the evidence.

Pa.R.E. 401. Rule 402 states:

Rule 402. General Admissibility of Relevant

Evidence

All relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not

admissible.

Comment: Pa.R.E. 402 differs from F.R.E. 402. The

Federal Rule specifically enumerates the various sources

of federal rule-making power. Pa.R.E. 402 substitutes

the phrase “by law.”

Pa.R.E. 402 states a fundamental concept of the law of

evidence. Relevant evidence is admissible; evidence

that is not relevant is not admissible. This concept is

modified by the exceptions clause of the rule,

which states another fundamental principle of

evidentiary law—relevant evidence may be

excluded by operation of constitutional law, by

statute, by these rules, by other rules

promulgated by the Supreme Court or by rules of

evidence created by case law.

* * *

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Pa.R.E. 402 (emphasis added). In other words, evidence that is relevant to

an issue in a particular case can still be incompetent and therefore

inadmissible because one or more established rules of evidence preclude its

admission. Id. See also Commonwealth v. Paddy, 569 Pa. 47, 70–71,

800 A.2d 294, 308 (2002) (stating: “Evidence that is relevant may

nevertheless be inadmissible if it violates a rule of competency…”).

Trial judges generally enjoy broad discretion regarding the

admission of potentially misleading or confusing evidence.

Trial judges also have the authority to exclude relevant

evidence if its probative value is substantially outweighed

by the danger of unfair prejudice or confusion.

Furthermore, the function of the trial court is to balance

the alleged prejudicial effect of the evidence against its

probative value, and it is not for an appellate court to

usurp that function.

Commonwealth v. Parker, 882 A.2d 488, 492 (Pa.Super. 2005), affirmed

on other grounds, 591 Pa. 526, 919 A.2d 943 (2007) (internal citations

omitted).

Instantly, the Commonwealth offered into evidence a picture of the

crime scene that showed a bullet hole near the crime scene from the day

before the shooting. Ms. Robinson, who was Victim’s girlfriend at the time of

the homicide, testified that on the night before the shooting, she heard

gunshots and she saw men running away from the scene. She said before

that incident, she had not heard gunshots fired for as long as she could

remember. Further, in his second written statement to the police, Appellant

admitted he had exchanged gunfire with Victim the night before the

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homicide and confronted him again on the night of the shooting. As a result,

the trial court reasoned:

Ms. Robinson, [Victim’s] girlfriend, was shown photos of

the crime scene that depicted two bullet entries into her

home in Pershing Court. One of the bullet holes was from

May 13, 2012, while the other was from May 12, 2012.

Ms. Robinson testified that she heard a “loud commotion”

on May 12 that included gunshots, but she was unable to

identify any of the men involved. The [c]ourt permitted

this testimony due to the close proximity of the shootings

in this case and to demonstrate the amount of gunfire that

occurs in Pershing Court on any given day.

[Appellant] himself claimed in one of his statements that

there was a shooting in this area on May 12.

(Trial Court Opinion at 16). The evidence served to dispel any possible

argument that the bullet holes came from a firefight between Appellant and

Victim in which Appellant was acting in self-defense. Instead, the homicide

occurred during an ambush in which Appellant killed Victim. This bullet-hole

evidence was therefore relevant and met the threshold requirement of

admissibility. Moreover, the evidence was not so unduly prejudicial as to call

the jury’s verdict into question. Thus, we see no reason to disturb the

court’s decision to admit the bullet-hole evidence at trial. Based upon the

foregoing, we affirm.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015

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