# Commonwealth v. McGriff > Superior Court of Pennsylvania · April 21, 2017 · 2017 Pa. Super. 118 URL: https://www.frixlaw.com/law-library/cases/4162315 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Rudolph MCGRIFF, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** April 21, 2017 - **Citations:** 2017 Pa. Super. 118; 160 A.3d 863; 2017 Pa. Super. LEXIS 288; 2017 WL 1424438 - **Precedential status:** Published - **Opinion:** Opinion by Stevens - **Judges:** Panella, Lazarus, Stevens, Geroff - **Cited by:** 58 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4162315 ## How later opinions describe it (automated extraction) - finding that appellant waived appellate review, although he lodged an anticipatory objection prior to the Commonwealth's calling of witnesses in connection with hfo motion in limine, counsel failed to make a timely and specific objection to. their testimony at the time tha.t i… - applying Pa.R.E. 103 and noting that “a motion in limine may preserve an objection for appeal without any need to renew the objection at trial, but only if the trial court clearly and definitively rules on the motion. . . . [o]nce the trial court enters a definitive ruling on … - concluding challenges to the admissibility of evidence were waived when the appellant did not make timely and specific objections in the trial court - finding that, although McGriff lodged an anticipatory objection in his motion in limine, he failed to make a specific objection at the time the testimony was offered at trial - stating: “Consistent with [Rule 103], a motion in limine may preserve an objection for appeal without any need to renew the objection at trial, but only if the trial court clearly and definitively rules on the motion” ## Opinion text J-A08037-17 2017 PA Super 118 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUDOLPH MCGRIFF : : Appellant : No. 9 EDA 2016 Appeal from the Judgment of Sentence July 1, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002445-2014 BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.* OPINION BY STEVENS, P.J.E.: FILED APRIL 21, 2017 Rudolph McGriff (hereinafter “Appellant”) appeals the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on July 1, 2015, at which time he was sentenced to life imprisonment without the possibility of parole following his conviction of first-degree murder along with concurrent prison terms of two and one half (2 ½) years to five (5) years for his related firearms convictions. We affirm. Appellant was convicted of murdering his estranged girlfriend (hereinafter “the victim”). As the trial court set forth a comprehensive recitation of the facts developed at trial in its Pa.R.A.P. 1925(a) Opinion, we ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A08037-17 will not duplicate it herein but, instead, adopt the trial court’s summary for purposes of this appeal. See Trial Court Opinion, filed 4/5/16, at 2-48.1 On July 1, 2015, the jury found defendant guilty of First-Degree Murder, Firearms not to be carried without a license, Carrying firearms on public streets in Philadelphia, and Possessing instruments of crime, 2 and the trial court sentenced Appellant to an aggregate term of life imprisonment. N.T., 7/1/15, 9, 16-17. Appellant filed a post-sentence motion on July 6, 2015, and the trial court denied the same on December 1, 2015. On December 22, 2015, Appellant filed a timely notice of appeal. On January 12, 2016, the trial court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b), and Appellant complied on February 10, 2016. In his brief, Appellant presents the following Statement of the Questions Involved: 1. Did the trial court abuse its discretion in permitting the prosecutor to present evidence that [ ] Appellant had repeatedly refused to come in to the police office and talk to the detectives who were investigating the homicide in this case while at the same time prohibiting the defense from presenting the testimony of [ ] Appellant’s attorney, Anthony Petrone, Esquire, who had instructed [ ] Appellant not to talk to the police? 2. Did the trial court abuse its discretion in refusing to permit the defense to call witnesses to inform the jury that the victim may have ____________________________________________ 1 We direct the parties to attach a copy of the trial court opinion in the event of further proceedings in this matter. 2 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), respectively. -2- J-A08037-17 been slain in response to her participation in a scheme of armed robberies at that location? Brief for Appellant at 3. Appellant’s first issue as it is developed in his appellate brief requires a threefold analysis. Appellant first asserts the trial court denied him his federal and state constitutional rights to due process and a fair trial when it erroneously permitted the prosecution to elicit repeatedly that Appellant had failed to meet with detectives of the Philadelphia Police Department Homicide Unit. Before we address the merits of this portion of Appellant's initial claim, we first must determine whether Appellant properly has preserved the issue for our consideration, for it is well-settled that a party must make a timely and specific objection at trial, and the failure to do so results in waiver of that issue on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to preserve an issue for review, a party must make a timely and specific objection at trial, for this Court will not consider claim on appeal not called to trial court’s attention at a time purported error could have been corrected). Pa.R.E. 103 addresses rulings on evidence and requires a contemporaneous objection in order to preserve a claim of error in the admission of evidence. The Rule reads in relevant part as follows: (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only: -3- J-A08037-17 (1) if the ruling admits evidence, a party, on the record: (A) makes a timely objection, motion to strike, or motion in limine; and (B) states the specific ground, unless it was apparent from the context. . . . Pa.R.E. 103(a). “Consistent with ... Pa.R.E. 103(a), a motion in limine may preserve an objection for appeal without any need to renew the objection at trial, but only if the trial court clearly and definitively rules on the motion.” Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.Super. 2011) (citations omitted), appeal denied, ___ Pa. ____, 49 A.3d 441 (2012). Once the trial court enters a definitive ruling on the record, either prior to or during trial, “a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Pa.R.E. 103(b). Prior to trial, a hearing was held before the trial court at which time Appellant presented argument pertaining to his motion in limine “to preclude statements and comments by the DA in opening and closing and in the presentation of evidence that would in any way imply that [Appellant] is guilty because of pre-arrest silence.” Defense counsel further explained generally that “[t]he proffered testimony in this case is that the police asked family members of the decedent to have [Appellant] contact them and give them statements.” Specifically, counsel referenced what the victim’s “brother” and “sister” “might” say, and anticipated the Commonwealth would argue “that his failure to go to the police is an implication of guilt.” N.T., 6/17/15, at 5, 8-9. -4- J-A08037-17 Notably, defense counsel later clarified that while the Commonwealth “can present the evidence,” it would be improper to argue this failure reflects a consciousness of guilt. N.T., 6/17/15, at 17. Counsel further explained the basis for his objection as follows: [Defense Counsel]: I object to any statements by the brother and sister, evidence that they asked him to go to the police, and then any testimony from any police officer as to whether or not he actually went to the police and any argument that the fact that he didn’t go to the police is consciousness of guilt because the police were the ones that asked the family to tell him to come to them. Id. at 20. In response, the Commonwealth represented it would limit its questioning of members of the victim’s family to their “voluntary conversations” with Appellant to establish a course of conduct whereby Appellant repeatedly lied to and concealed information from them. Id. at 12-17, 21-23. The Commonwealth maintained that such references would be used not to establish Appellant had been hiding from police, but rather to show the credibility of other statements he made in those conversations. The Commonwealth further suggested that if the trial court and defense counsel agreed, the trial court may provide a “cautionary instruction that this evidence on this statement is coming in for the context of [the jury] to determine the credibility of the other statements in that conversation.” N.T., 6/17/15, at 20-23. Counsel did not object to the presentation of such testimony for this limited purpose. -5- J-A08037-17 Following a brief recess, the trial court reached the following conclusion: My view is basically that I agree with the Commonwealth in this matter. I do not review it—I do not review it as a pre-arrest silence situation. The conversations that will be testified to by family members with [Appellant] on the day that the victim’s body was found and for the period thereafter when they urged him to go to speak to police, that doesn’t amount in my mind to pre-arrest silence and so I will deny your motion. Id. at 25. Once again, counsel did not object to the family members’ testimony for this specified, limited purpose. In his brief, Appellant presents the following summary of the trial testimony of three witnesses, Pricilla Jessie, the victim’s sister, Aiking Jessie, the victim’s brother, and Naneke Green, the victim’s cousin: At trial, Pricilla Jessie, the victim’s sister, testified for the prosecution that after the homicide, she asked [] Appellant to go and meet with the assigned detectives and that [ ] Appellant said that he would, “but he never went” (N.T. 6/18/15, 122). Aiking Jessie, the victim’s brother, testified for the prosecution that he also asked [ ] Appellant to talk to the police on several occasions after the mother of his sister, and [ ] Appellant said he would do so (N.T. 6/18/15, 165, 166). Mr. Jessie testified that when he subsequently asked [ ] Appellant again if he was going to talk to the police, [] Appellant said that he would not (N.T. 6/18/15, 168). Finally, Neneke Green, the victim’s cousin, testified for the prosecution that [ ] Appellant also told her that he was going to talk to the detectives (N.T. 6/23/15, 147). Brief for Appellant at 10. Appellant maintains the Commonwealth was “repeatedly permitted over defense objection” to present the aforementioned testimony. -6- J-A08037-17 Appellant’s Brief at 8, 11. However, as stated previously, defense counsel admitted the Commonwealth could present the evidence, so long as it did not argue it established Appellant’s consciousness of guilt, and our review of the certified record reflects that at no time did counsel place a specific objection on the record following the testimony of any of the aforementioned witnesses in this regard. We conclude that, although he lodged an anticipatory objection prior to the Commonwealth’s calling of the victim’s brother and sister to testify in connection with his motion in limine, counsel failed to make a timely and specific objection to their testimony on constitutional grounds at the time that it was actually proffered. Moreover, counsel did not specifically reference Ms. Green in his argument on June 17, 2015, at all and failed to object following her trial testimony. Accordingly, we find Appellant has waived for appellate review any constitutional challenge to the testimony. 3 ____________________________________________ 3 Even if Appellant properly had preserved this issue for review during trial, his failure to conclude for “strategic reasons” that he did not wish the trial court to provide an instruction stressing that Appellant had a right to remain silent precludes his attempt to claim on appeal he had been prejudiced. See Commonwealth v. Norman, 549 A.2d 981, 986 (Pa.Super. 1988) (en banc) (“[w]hen counsel chooses to refuse appropriate curative instructions for legitimate tactical reason, the defense may not plead prejudice on appeal”). In addition, Appellant does not develop an argument in his appellate brief with proper citation to authority as to how the statements of family members impinged upon his constitutional right against self- incrimination. Indeed, our Supreme Court has held otherwise. See Commonwealth v. Dinicola, 581 Pa. 550, 563, 866 A.2d 329, 337 (2005) (concluding a mere reference to a defendant’s pre-arrest silence does not (Footnote Continued Next Page) -7- J-A08037-17 However, Appellant did object prior to the Commonwealth’s calling of Detective Edward Toliver to rebut counsel’s statement to another officer that “Nobody cared enough to get a search warrant.” N.T., 6/24/15, at 8-9. The Commonwealth indicated that while it had not intended to call Detective Toliver to testify regarding the conversation Appellant had had with him on April 7, 2013, it felt the need to question Detective Tolliver in response to Appellant’s questioning of “a number of witnesses as to the [D]etective not serving a search warrant on [Appellant’s] home and even went so far as to say to Officer Flager, ‘nobody cared.’” N.T., 6/24/15, at 4. As stated previously, our Supreme Court has held that “a mere reference to pre-arrest silence does not constitute reversible error where the prosecution does not exploit the defendant’s silence as a tacit admission of guilt.” Commonwealth v. Adams, 628 Pa. 600, 601, 104 A.3d 511, 513 (2014) (Opinion Announcing the Judgment of the Court) citing Commonwealth v. DiNicola, supra; Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998).4 In doing so, the plurality in Adams stated that _______________________ (Footnote Continued) necessarily impinge constitutional rights when guilt is not implied and “[e]ven explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt”). See id (citation omitted). As such, this claim is also waived for lack of development. See Commonwealth v. Spotz, 610 Pa. 17, 157, 18 A.3d 244, 327 (2011). 4 Of the five justices deciding Adams, three agreed that the reference to appellant's pre-arrest silence during the police investigation did not impinge on the defendant's constitutional rights. Among the three was then-Chief (Footnote Continued Next Page) -8- J-A08037-17 “[w]hile we have interpreted the constitutional right against self- incrimination generally to prohibit prosecutors from referencing a defendant's silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is ‘circumspect’ and does not ‘create an inference of an admission of guilt.’” Id., 628 Pa. at 609, 104 A.3d at 517 (citation omitted). Moreover, our Supreme Court held in DiNicola, that the prosecution could use a defendant's pre-arrest silence not only to impeach a defendant's testimony but also as a fair response to defense arguments. Id. 581 Pa. at 562, 866 A.2d at 336, (finding that “[s]ince the trooper’s investigation was obviously limited by [defendant’s] decision to reject the request for an interview, we find that the Commonwealth’s elicitation of the trooper’s testimony regarding this fact constituted fair response”). The admissibility of testimony for purposes of fair response, where there is an appropriate objection thereto, is subject to the trial court’s evaluation of probative value versus prejudicial effect under Pa.R.A.P. 403. DiNicola, 581 Pa. at 561, 866 A.2d 336. _______________________ (Footnote Continued) Justice Ronald Castille, who, in concurrence, offered his view that reference to pre-arrest silence would not violate a defendant's constitutional rights “irrespective of whether the prosecution later exploited the reference.” See Adams, 628 Pa. at 611, 104 A.3d at 518. (Castille, J., concurring) -9- J-A08037-17 In support of its holding that its decision to permit the Commonwealth to present evidence regarding Appellant’s failure to report to the Homicide Unit for questioning did not disturb Appellant’s Fifth Amendment right against self-incrimination, the trial court stated the following: [O]n April 7, 2013, the day the decedent was killed, Detective Tolliver spoke with [Appellant] on the phone and explained to him that he was investigating the homicide and that he would like to talk to [Appellant] as part of gathering information. [Appellant], not a suspect at the time, promised that he would come to Homicide to speak to the detectives further. Almost immediately thereafter, [Appellant] reached out to his counsel, Anthony Petrone, who advised him against speaking to anyone. (N.T. Volume 1, 06/4/2015, p.10). [Appellant], therefore, insists that he simply followed his counsel’s advice, and that his Fifth Amendment rights were violated when his non-reporting to Homicide was brought to light through Detective Tolliver’s trial testimony. This court finds that in the case at bar, Detective Tolliver’s testimony offered a reasonable explanation as to why a search warrant was not served on [Appellant] in an attempt to locate the gun from which the shots were fired. As the Commonwealth correctly noted, had a search warrant been served on [Appellant], the latter would have interpreted this circumstance as him [sic] being a suspect, which would have scared him away from talking to the detectives. [Detective Tolliver’s] testimony came in, clearly, to rebut any allegations of … lazy detective work and the credibility of Detective Tolliver, when he took the witness stand, as the defense attacked Detective Tolliver’s credibility. Part of the attack on his credibility was the lack of serving a search warrant and the lack of his diligence. So it came in for that purpose and not to pierce [Appellant’s] Fifth Amendment right. (N.T. Volume, 06/26/2015, pp. 9-10). Furthermore, it was well known that [Appellant] had a lot of properties, and it wouldn’t have been obvious which property to search in the first place. The detectives were also aware that it was easy to dispose of the gun “right away.” (N.T. Vollume [sic] 1, 06/24/2015, pp. 7-8). - 10 - J-A08037-17 Upon review of the record, this court is satisfied that the evidence that [Appellant] did not follow through on his promise to come to Homicide to speak to the detectives did not imply any tacit admission of guilt by [Appellant] as it was introduced with a sole purpose of demonstrating the nature and focus of the investigation. Through his trial testimony, Detective Tolliver, whose credibility was a “linchpin” in this case (N.T. Volume 1, 06/24/2015, p. 11), offered a fair response to counter any defense allegations of his supposed lack of conscientiousness as an investigator. The reference to [Appellant’s] non-showing up at Homicide was circumspect and contextual; in no way did it create an inference of [Appellant’s] consciousness of guilt. This court, therefore, concludes that [Appellant’s] right against self- incrimination was not disturbed. No relief is due. Trial Court Opinion, filed 4/5/16, at 50-52. Upon our review of the record, we find no abuse of the trial court’s discretion. At numerous points throughout trial, Appellant criticized the police for exhibiting apathy in their investigation and highlighted the alleged lack of thoroughness they had showed in their failure to search his various properties for evidence linking him to the murder. See e.g. N.T., 6/17/15 at 91-92; 6/18/15, at 82-85; 6/22/15, at 122-23; 6/23/15, at 174-75; 6/29/15, at 31-40, 44-45. It was in response to such criticism that the trial court properly allowed Detective Tolliver’s testimony. See DiNicola, 581 Pa. at 561-62, 866 A.2d at 335-36 (Commonwealth may introduce evidence of pre-arrest silence when defense’s examination of a witness challenges the diligence of police investigation of its case). In addition, the prosecutor indicated that he had inquired as to whether Appellant wished to have the trial court provide a cautionary instruction to the jury “about how to properly use the evidence of - 11 - J-A08037-17 [Appellant] telling family members and Detective Tolliver that he would talk to the police or go down to the Homicide Division and give a statement, then never did.” The prosecutor explained he would not object to such a cautionary instruction, although defense counsel stated that for “stragetic reasons” he did not want the trial court to provide one. N.T., 6/29/15, at 4. As such, Appellant has waived any claim of purported prejudice as a result of Officer Tolliver’s testimony regarding Appellant’s pre-arrest silence for his failure to request a curative instruction. See Commonwealth v. Williams, 532 Pa. 265, 277, 615 A.2d 716, 722 (1992) (finding trial court’s instruction to jury not to draw any adverse inference from prosecutor’s comment upon defendant’s post-arrest silence during closing argument sufficient to cure any potential prejudice therefrom). Appellant also posits the trial court abused its discretion when it ruled that if he were to present testimony of his former counsel, Anthony Petrone, to establish it was he who advised Appellant not to talk to the police, the Commonwealth would be permitted to question counsel on cross- examination regarding his representation of Appellant in prior criminal homicide investigations. Brief for Appellant at 8-9, 12. Appellant stresses that as a result of this ruling, Attorney Petrone was not called to testify. A review of the record reveals Appellant mischaracterizes the trial court’s decision in this regard, for nowhere did the trial court prohibit Attorney Petrone from testifying; instead, the court indicated it would - 12 - J-A08037-17 provide the prosecution “wide latitude” in its cross-examination of counsel. N.T., 6/26/15, at 13-17. As the trial court pointed out, defense counsel agreed with its observation that any direction Attorney Petrone may have provided to Appellant not to speak with police did not necessarily mean that was, in fact, the reason he did not do so. In addition, the trial court stressed that Attorney Petrone’s testimony regarding his advice to Appellant “neither rebuts the fact that [Appellant] lied to the decedent’s family nor rebuts the reason Detective Tolliver did not serve a search warrant.” Trial Court Opinion, filed 4/5/16, at 54 (footnote omitted). As the Commonwealth asserts, the scope of cross-examination is always a matter within the trial court’s discretion. Commonwealth’s Brief at 34 citing Commonwealth v. Dowling, 778 A.2d 683, 687 (Pa.Super. 2001). Appellant’s arguments pertain only to what prejudice he surmises he “would have suffered” had Attorney Petrone testified. Brief for Appellant at 14. As such, he has failed to show, in fact, that his constitutional rights were violated or that he was prejudiced, as the cross–examination never occurred due to a strategic decision defense counsel made not to call counsel on the stand: [Defense Counsel]: And if Petrone does not testify, you’re not going to argue in any form or imply or draw reasonable inference that his not going to the police when he told Tolliver he would is consciousness of guilt or a lie or anything else, because that’s not why you introduced it? [The Prosecutor]: That’s correct. The Court: Okay. Then we’re on the same page? [Defense Counsel]: I think we are. - 13 - J-A08037-17 N.T., 6/26/15, at 16-17. In light of the foregoing, Appellant’s first issue lacks merit. In his second question presented, Appellant states the trial court denied his federal and state constitutional rights to due process and a fair trial when it prevented him from presenting testimonial evidence from Jamar Nesmith and Rasheeda Rogers. Appellant maintains their testimony would have established they, along with the victim, had been involved in a prostitution conspiracy to rob drug dealers in the vicinity wherein the victim was murdered. Although not specified in his Statement of Questions Presented, Appellant further argues in his appellate brief that the trial court abused its discretion when it excluded evidence that a BB gun had been found in the decedent’s vehicle. When considering challenges to the admissibility of evidence, we employ a well-settled standard of review: The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa.Super. 2016) citing Commonwealth v. Woodard, ___ Pa. ____, 129 A.3d 480, 494 (2015). - 14 - J-A08037-17 Initially, we note that while Appellant frames his argument pertaining to this issue in terms of the denial of his constitutional rights in his appellate brief, he did not present a constitutional challenge before the trial court either at the time of trial or in his Rule 1925(b) statement. It is well- established that “[a] party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made.” Commonwealth v. Cousar, 593 Pa. 204, 231, 928 A.2d 1025, 1041 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). If counsel states the grounds for an objection, then all other unspecified grounds are waived and cannot be raised for the first time on appeal. Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999); thus, Appellant has waived this claim for his failure to properly raise it below. See N.T., 6/17/15, at 32-36, 39-46; 6/23/15, at 180-81; Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”); Dowling, supra at 686 (finding appellant waived claim on appeal where he presented one theory in his Rule 1925(b) statement and a different one in his appellate brief). In addition, to the extent Appellant generally asserts the trial court abused its discretion in excluding the testimony of Mr. Nesmith and Ms. Rogers in his Rule 1925(b) statement and appellate brief, we find he waived this challenge for his failure to raise a timely and specific objection with the trial court. - 15 - J-A08037-17 Prior to trial, the parties presented argument on the Commonwealth’s motion to exclude the proposed testimony of Mr. Nesmith who had given a statement to a defense investigator the prior week. Positing the statement lacked proper foundation and was rife with hearsay, the Commonwealth explained that if called to testify, Mr. Nesmith would state that he had committed robberies with the victim in the past and that he received a call from someone indicating there was “a hit” on her. The Commonwealth elaborated that such evidence would be used to show there was another reason why the victim would have been in the block of Bailey Street where the murder occurred and that someone other than Appellant would have had a motive to kill her. N.T., 6/17/15, at 30-31. The Commonwealth highlighted that because there was no other evidence to corroborate Mr. Nesmith’s statements that the victim had engaged in prior robberies, such testimony would be improper under Pa.R.E. 404(b).5 ____________________________________________ 5 This rule reads, in relevant part, as follows: (b) Crimes, Wrongs or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. (Footnote Continued Next Page) - 16 - J-A08037-17 In response, Appellant averred such testimony went to the heart of his defense in that Mr. Nesmith and Ms. Rogers knew the victim well and the trio had engaged in dangerous activities as was proven by the victim’s robbery conviction. N.T., 6/17/15, at 32-35. Appellant further related that Mr. Nesmith had been shot at, proving he was the victim of a hit. Id. at 34. Appellant admitted no one ever had been arrested for shooting of Mr. Nesmith. Id. at 34-35. Following a brief recess, the trial court made the following ruling: THE COURT: I know the defense has explained to me that defense reviews this as vitally important to the defense in this case, and that may be, but the evidence lacks the proper foundation. It’s speculative. And ultimately all it proves, even if it’s true, is that it goes to character assassination of the deceased. I’m going to grant Commonwealth’s motion to preclude it. Id. at 35. Appellant did not object to the trial court’s decision at this juncture, and the trial court proceeded to consider on the record a juror issue. Thereafter, defense counsel indicated his investigator had just handed him a Facebook page belonging to Ms. Rogers. Although he admitted that prior thereto Ms. Rogers had denied any involvement in the murder, counsel maintained that the innuendo contained in the Facebook post constituted a _______________________ (Footnote Continued) Pa.R.E. 404(b)(1), (2). - 17 - J-A08037-17 clear and direct implication that Mr. Nesmith is “a rat.” Id. at 39-41. Counsel added that as he was pondering the trial court’s ruling, he remembered surveillance video of the area depicted another individual, clearly not Appellant, wearing a gray hoodie and walking down Bailey Street and returning about twenty-five minutes later not wearing the hoodie. Id. at 41-43. Counsel posited it would be fair to present this evidence, to the jury to establish another individual may have had a motive to commit the murder. Id. at 42. The Commonwealth retorted, inter alia, that the Facebook post was not authenticated and its contents were vague. Id. at 44-45. The trial court indicated that the document did not change its ruling, and Appellant, again, did not place a timely and specific objection on the record. Id. at 46. As a result, for the reasons set forth supra, Appellant has waived this issue for appellate review.6 ____________________________________________ 6 Notwithstanding, even if Appellant had preserved his claim that Mr. Nesmith and Ms. Rogers should have been permitted to testify, we would conclude that it lacks merit because the trial court properly exercised its discretion in granting the Commonwealth’s motion to exclude this proposed testimony. Appellant claims that the testimony would have tended to show the crimes of which Appellant was accused may have been committed by someone else and that it was “crucial to the defense to be able to present a basis for the jury to find that she may have been there for another purpose and that she may have suffered harm as a result of her involvement in previous criminal activity.” Brief for Appellant at 24-25. To the contrary, the mere suggestion that someone else may have had a motive to commit a crime does not constitute evidence. Commonwealth v. Foley, 38 A.3d 882, 887 (Pa.Super. 2012). Also, a review of the record reveals Appellant (Footnote Continued Next Page) - 18 - J-A08037-17 Finally, Appellant challenges the trial court’s ruling in response to the Commonwealth’s motion in limine presented during trial asking the court to preclude Appellant from introducing evidence that police had recovered a BB gun from the victim’s car after her body was found. N.T., 6/23/15, at 177. In doing so, Appellant maintains the fact that a BB gun was found in the victim’s vehicle corroborates the proposed testimony of Mr. Nesmith which would have suggested individuals in the vicinity other than Appellant could have had contact with or a motive to harm the victim. While the trial court indicated it would have permitted the admission of this evidence if Appellant had asserted he acted in self-defense, it ultimately found it “less than insignificant” and, therefore, inadmissible. N.T., 6/23/15, at 178-179. We find the trial court did not abuse its discretion in excluding this proffered _______________________ (Footnote Continued) presented no extrinsic evidence at trial to corroborate the bald allegations that the victim had been involved in prior robberies. As such, the trial court properly determined the evidence lacked a proper foundation, was speculative and, if it were admitted, “would undeniably go to character assassination of the deceased.” Trial Court Opinion, filed 5/5/16, at 57. The trial court also correctly determined that Ms. Rogers’ Facebook post and the referenced videotape were inadmissible evidence. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Pa.R.E. 801(c). Hearsay generally is inadmissible unless it falls within one of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of Evidence. Commonwealth v. Savage, 2017 WL 900023, at *4 (Pa.Super. Mar. 7, 2017). In this case, Appellant fails to argue or to point to any exception to the hearsay rule under which either Ms. Rogers’ Facebook post or the referenced videotape might fall. - 19 - J-A08037-17 evidence. Witmayer, supra. Appellant's second claim has no arguable merit. Judgment of Sentence Affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/21/2017 - 20 - Circulated 04/07/2017 03:04 PM IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION COMMONWEALTH OF CP- Sl-CR-0002445-2014 PENNSYLVANIA vs. RUDOLPH MCGRIFF SUPERIOR COURT FILED NO. 9 EDA 2016 APR - 5 2016 Criminal Appeals Unit OPINION FirstJudicial Oistrict_of PA GEROFF,J. APRIL 5, 2016 On July l , 2015, after a jury trial, the Defendant, Rudolph ("Ru»; "Rudy") McQriff, was convicted of murder of the first degree, carrying a firearm without a license, carrying a firearm on the public streets, and possessing an instrument of crime. Also on July I, 2015, this court sentenced the Defendant to a mandatory term of life imprisorunent without parole on the murder- of-the-first-degree charge. The Defendant also received concurrent sentences of two and one- half (2 Yi) to five (5) years on the charge of carrying a firearm without a license, two and one- half (2 Yi) to five (5) years on the charge of carrying a firearm on public streets, and two and one- half (2 Yi) to five (5) years on the charge of possessing an instrument of crime. (N.T. 07/01/2015, pp. 8-9; 16-17). At trial, Petitioner was represented by Richard DeSipio, Esquire. Burton A. Rose, Esquire, was subsequently retained to represent the Defendant on appeal. On December 23, 2015, the Defendant filed a Notice of Appeal. On January 12, 2016, this court ordered counsel for the Defendant to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. § 1925(b). On or about February 10, 2016, counsel for the Defendant filed a § l 925(b) Statement. In his Statement, the Defendant raises the following issues, verbatim: I. The trial court abused its discretion in permitting the prosecutor to present evidence that the Defendant had repeatedly declined to report to the Philadelphia Police Homicide Unit for questioning and ruled that the defense would not be permitted to present the testimony of attorney Anthony Petrone, Esquire who would have testified that he instructed the Defendant, who was his client, not to talk to the Homicide Unit detective which would have been crucial in countering the prosecutor's argument that the Petitioner had refused to do so as proof of the· Defendant's consciousness ofgfriH;' .. in this regard, the trial court abused its discretion in ruling that, if called to the stand, Mr. Petrone could be questioned about the Defendant's previous criminal cases, thus resulting in Mr. Petrone's not being called to testify. 2. The trial court abused its discretion in refusing to permit the defense to call witnesses such as Jamar Nesmith, who resided at 3225 N. Bailey Street, and Rasheed[a]1 Rogers to testify that the slaying of victim may 'have been .a response to her participation in a scheme with Nesmith and Rogers to commit armed robberies on Bailey Street of drug dealers, along with evidence that a BB gun was found in the victim's vehicle, to counter the Commonwealth's argument that the victim was slain by the Defendant Defendant's Statement of Errors To Be Complained of on Appeal, 02/10/2016, pp. 1-2. THE EVIDENCE The evidence adduced at trial established beyond reasonable doubt that in the early morning hours of April 7, 201_3, the Defendant shot and killed Malisha Jessie (nicknamed Lai Lai). The jury also found the evidence to be sufficient to support. the guilty verdict on the I Appellate counsel incorrectly identifies Rasheeda Rogers as Rasheed Rogers. 2 charges of carrying a firearm without a license, carrying a firearm on the public streets, and possessing an instrument of crime. Tlte Murder and Investigation Erica Burton, a friend of the decedent, testified that on April 6, 2013, she and the decedent met at about 5:00 pm and visited three different bars together. Burton stated that she and the decedent did not have "a lot" to drink that night. (N.T. Volume 1, 06/17/2015, pp. 94- 97, 99). Burton stated that at some point that evening, she received a phone call from her mother who was in the same area; they met at Germantown Avenue and Bristol Street where the : -, decedent's car was also parked at-about 2:05 am.: Burton got irt-the'car with her mother and they drove home; the decedent drove behind them. (N.T. Volume 1, 06/17/2015, p. 99). Burton expected the decedent to follow her toward Route 76; however, despite mentioning to Burton that she was going home, the decedent did not follow her to the expressway. (N.T. Volume 1, 06/17/2015, pp. 100-101). Burton noticed that it was about 2:13 or 2:15 am. (N.T. Volume 1, 06/17/2015, p. 101). "[WJhen her car turned off, I looked in my rearview and said.v'Where's Lai going," and I looked at the clock." (N.T. Volume 1, 06/17/2015, p. 101). That morning, April 7, 2013, Burton received a phone call from the decedent's son, Myzeh, who was looking for his mother. Soon thereafter, Burton was also contacted by the decedent's grandmother who informed her that she had received a visit from police with regard to "a girl with tattoos [who] had been shot in the head." (N.T. Volume 1, 06/17/2015, pp. 104- 05). 3 Immediately thereafter, Burton went to the decedent's house where she came in contact with detectives. The detectives drove her to Homicide where she gave a statement. Burton recognized the statement she gave to Detectives Edward Tolliver and Micah Spotwood on April 7, 2013 at 3:30 pm and confirmed that while at Homicide, she also identified a photograph of the decedent which the detectives showed her. (N.T. Volume 1, 06/17/2015, pp. 105-08). Lonnie Wilson testified that on Saturday, April 6, 2013, into Sunday morning, April 7, 2013, he was inside his home on the 3200 block of North Bailey Street in Philadelphia when he was awakened by the sound of two gunshots at about 2:30 am.2 He did not call the police after hearing those two gunshots; to his knowledge, no one did. He indicated that he did see the police on the block at 8:30 or 9:00 am when he came out to walk his dog. (N.T. Volume 1,.06/17/2015, . . 11"") ·p.. .., : . .. _.. - .... . ..• . ... . ·-· . . . . .. : . • • • • " ,. • •''•lo'I .:, ,. •• ~.,;._,_\ Wilson stated that he talked to a detective on location and that he also later gave a statement to Detective Brian Peters. He recognized the statement bearing his signature. (N.T. Volume 1, 06/17/2015, p. 115). Under cross-examination, Wilson explained that at about 2:30 am, he heard a female very loudly say, "No." (N.T. Volume 1, 06/17/2015, p. 116). Wilson estimated that the sound came from about six houses away .. He explained that he did not call police because "sometimes it's a common occurrence in the neighborhood if you hear gunshots. Nobody goes to the window. Nobody goes to the door. You just don't call the cops. Usually a patrol car will come by after hearing shots. But this particular night ... I didn't see any beacons." (N.T. Volume l, 06/17/2015, p. 117). 2 Wilson was confident about the time he heard the gunshots because he had a digital clock right by his bed. (N.T. Volume I, 06/17nOI5, p. 114). 4 Crime Scene Investigator Ronald Sirianni testified that on April 7, 2013, he was called upon to process a crime scene on the 3200 block of North Bailey Street with Police Officer Terry Tull. (N.T. Volume l , 06/17/2015, pp. 123, 125). Investigator Sirianni explained that he generated a report documenting his findings and that he collected certain items of physical evidence from the scene and placed them on Philadelphia Police Department property receipts; he also photographed the crime scene. (N.T. Volume l, 06/17/2015, p. 123). Investigator Sirianni indicated that he and Officer Tull arrived at the scene· at 8:37 am and remained on the scene until l 0:35 am. By the time they arrived at the scene, it had already been secured by the police and the crime scene tape was in place. (N.T. Volume 1, 06/17/2015, p. 125). . . ·-.. . ... - ~, :-:: .... For the benefit of the jury, Investigator Sirianni reviewed the photographs. taken on . location noting that they fairly and accurately depicted the area as it appeared upon his arrival.on location. (N.T. Volume 1, 06/17/2015, pp. 126-50). Investigator Sirianni explained that the ballistics evidence collected from the scene and marked by numbered placards contained three fired cartridge casings (FCCs), and two projectiles. (N.T. Volume l, 06/17/2015, pp. 126-27, 133-34). The ballistics evidence was packaged, numbered to correspond with the numbers on the placards, put on property receipts, and then sent to the Ballistics Unit for further identification. (N.T. Volume I, 06/17/2015, pp. 133-34). Three FCCs and two projectiles were put on Property Receipt No. 9015154. (N.T. Volume i, 06/17/2015, pp. 134-35). Investigator Sirianni indicated that there was a lot of blood around the deceased. (N.T. Volume 1, 06/17/2015, pp. 126-27). Property Receipt No. 9015155 contained a sample of the decedent's blood. (N.T. Volume 1, 06/17/2015, pp. 135-36). 5 Myzeh Jessie-Ross, thirteen at the time of the trial and eleven at the time of the decedent's death, stated that the decedent was his mother. (N.T. Volume 2, 06/18/2015, p. 12). He acknowledged the Defendant's presence in the courtroom and stated that he was his mother's boyfriend, "Ru." (N.T. Volume 2, 06/18/2015, p. 13). Myzeh noted that he lived with his mother from age seven to age nine; that he subsequently lived with his grandmother, and that starting in December 2012, when the decedent received visitation rights, he would spend weekends with her. (N.T. Volume 2, 06/18/2015, pp. 13-14) . . Myzeh indicated that he was six years old when he first met the Defendant. He noted that the Defendant was the decedent's boyfriend, though it was an on- and off-relationship, which continued up until the time of the decedent's death. Myzeh stated that he had been to the ... . Defendant'shomeoften when he lived With his mother and that that sometimes he would sperid the night at his place. Myzeh also noted that he even helped the Defendant move to his duplex in West Philadelphia. (N.T. Volume 2, 06/18/2015, pp. 15-17). Myzeh explained that he knew that the Defendant had two phones and that he saw the Defendant with his two phones when he went to the movies with him. (N.T. Volume 2, 06/18/2015, p. 18). He also acknowledged dialing the Defendant's telephone number at the decedent's request multiple times when she was driving and said that he knew the Defendant's telephone number by heart. (N.T. Volume 2, 06/18/2015, pp. 19-20). Myzeh confirmed that the weekend she died, the decedent had visitation of him and that he was going to be staying with her. On Friday, April 5th the decedent picked him up from school and he stayed at her home (where his grandmother Mary also lived). (N.T. Volume 2, 06/18/2015, p. 21-22). 6 Myzeh was awakened that night by his mother's screaming; she was on the phone with the Defendant (whom she called by name). (N.T. Volume 2, 06/18/2015, pp. 23-24). Myzeh stated that he overheard the decedent tell the Defendant that she "should have busted the windows out of his car and flattened his (car] tires when she saw ... their car out there the other day." (N.T. Volume 2, 06/18/2015, p. 24). Myzeh also added, "She said he's mad that ... she got his name covered up with a [tattoo of a) diamond on her finger and how he tnoved a girl into a house." (N.T. Volume 2, 06/18/2015, pp. 25-26). Myzeh also stated that on April 6, 20 IJ, he and the decedent attended a family gathering at her cousin's place. (N.T. Volume 2, 06/18/2015, p. 28). He noted that on the way to the cousin's place they went to Bailey Street and that he remembered that block because that was ·· where the· decedent "got killed on." (N.T. Volume 2, 06/1&/201 s·, p. 30) ... Myzeh 'stated that the decedent parked her car at the corner across the street from a store. She then took her phone and walked to the middle of the block and proceeded between the parked cars on the right side of the street; Myzeh, who remained in the car, lost sight of her for a few minutes. (N.T. Volume 2, 06/18/2015, pp. 30-31). When the decedent came back to the car, she was on the phone. Myzeh knew that the decedent was talking t 2013. On April 9, 2013, the decedent's siblings, Priscilla Jessie and Aiking Jessie came in and provided statements. (N.T. Volume I, 06n4!2015, p. 24). Detective Tolliver indicated that he received neighborhood surveys from Detectives Peters and Glenn. He also noted that he and Detective Spotwood went back to the block numerous times to canvass the neighborhood and to do their own surveys as well; they talked to about a dozen people. (N.T. Volume I, 06!24nOI5, pp. 26-27). On April 9, 2013, Detective Tolliver obtained a search warrant for the contents of the decedent's cell phone and for the phone records. Detective Tolliver explained that the other two search warrants . were . .for . . cell phone ... records of two target cell phone numbers associated with Sprint and AT&T, respectively. Based on the information he obtained through executing those search warrants, he then applied for other search warrants for additional phone numbers. Later in April, Detective Tolliver received an extraction report for the phone's contents through the Regional Computer Forensics Laboratory. (N.T. Volume 1, 06/24/2015, pp. 27-31). On April 15, 2013, Detectives Tolliver and Spotwood met Eric Wallace, whom they identified as a potential witness in the case. They knocked on his door, talked to him inside his home, and secured his agreement to come to Homicide and talk to the detectives. (N.T. Volume I, 06/24/2015, pp. 31-32). Detective Tolliver noted that while Wallace informed them that he had cancer, he assured the detectives that he would be fine without taking his medications with him. (N.T. Volume I, 06/24/2015, p. 35). Wallace told the detectives that prior to hearing gunshots, he heard an argument between a male and a female. He then went to the window and only saw a male who was walking off east 34 on Willard Street. Subsequently he said that he recognized the person; however, he was scared and did not want to identify him. (N.T. Volume 1, 06/24/2015, pp. 36-37). Detective Tolliver said that he and Wallace had lunch together and talked about a lot of different things - life, family friends, and the neighborhood; after the interview was memorialized, Wallace agreed to be videotaped and then left. (N.T. Volume l, 06/24/2015, pp. 37-40). Detective Tolliver noted that Wallace identified the Defendant on a photo array of eight males. Wallace explained to the detectives that he was introduced to the Defendant by his sister Tina, who used to live two doors away from Wallace two years earlier. Detective Tolliver indicated that at no point did Wallace say that he needed any medication or that he needed to leave the interview room; Iie never refused to sign anything and willingly agreed to. be videotaped. (N.T. Volume 1, 06/24/2015, pp. 46-47, 55). Detective Tolliver confirmed that despite being subpoenaed to appear at the preliminary hearing on December 18, 2013, Wallace never did so. Although Detectives Griffin and Centeno were searching for him, they were unable to locate him. (N.T. Volume 1, 06/24/2015, p. 57). Detective Tolliver also noted that on February 25, 2014, Detective Centeno picked up · Wallace and brought him to court for a preliminary hearing. Prior to taking the witness stand that morning, Wallace told Detective Tolliver that "people don't want him to testify." Detective Tolliver offered to move Wallace if he felt that he was in any danger but Wallace never took advantage of those offers. Detective Tolliver noted that Wallace told him that he was threatened but he never mentioned who had threatened him. (N.T. Volume 1, 06/24/2015, pp. 57-58). Detective Tolliver confirmed that he had applied for multiple search warrants to access cell phone records for the decedent's iphone and for other target phone numbers associated with 35 this .. case. . He acknowledged that he received the Regional Computer Forensic Laboratory (RCFL) extraction reportfor the decedent's phone and looked through the contents of the phone, and that he also looked at the messages from the phones belonging to the Defendant; he noted the abundance oftext messages. (N.T. Volume I, 06/24/2015, pp. 63-65; 67-72). Detective Tolliver also confirmed that he looked at each frame of a surveillance video from a store on the corner of Bailey Street and Allegheny A venue. The video from the afternoon of Saturday, April 6, 2013, showed the decedent driving up on Bailey Street in her cat, parking her car, getting out of the car, and walking north on Bailey Street while talking on a cell phone, then coming back to the car and taking off. Approximately a half-hour later, the video showed the Defendant walking south on Bailey Street, going inside the store, leaving the store, and · proceeding to go east on Allegheny A venue. The cell phone records showed 'that 'starting at 4: l 3 pm, during the time period observed on the video, several phone calJs were made from the decedent's cell phone to the Defendant's cell phone. (N.T. Volume 1, 06/24/2015, pp. 74, 77-79, 82-83). For the benefit of the jury, Detective Tolliver went through the text messages exchanged between the decedent and the Defendant over a period of time. (N.T. Volume 1, 06/24/2015, pp. 88-102; N.T. Volume 1, 06/25/2015, pp. 26-34, 37). Detective Tolliver explained that as the next step of their investigation, he and Detective Spotwood tracked down Femi Johnson, who was staying at the Defendant's place on North Bailey Street. Unable to locate her at the residence, they found out where she worked; on May 29, 2013, Detectives Tolliver and Spotwood went to the school in Southwest Philadelphia where Johnson was a teacher. (N.T. Volume l, 06/25/2015, p. 37). 36 When Detectives Tolliver and Spotwood explained the reason of their visit to Johnson, she produced a business card of an attorney, Dennis Cogan (she explained that she had received the card fromthe Defendant). (N.T. Volume l, 06/25/201'5, p. 40). The detectives told her that she had the right to have an attorney but that they were "just investigating a homicide that happened two doors away from [her] house" and wanted to talk to her .to find out if she knew anything. (N.T. Volume l, 06/25/2015, p. 41). Detective Tolliver stated that Johnson, who was never a suspect, agreed to go to Homicide where they took an interview from her. (N.T. Volume l, 06/25/2015, pp. 41-42). Detective Tolliver noted that Johnson was "very vague, very' evasive" when answering all of the detectives' questions. (N.T. Volume l, 06/25/2015, p. 42). She confirmed that she was at home at the time of the shooting and that she transported the Defendant's phones to the Defendant early in the morning. (N.T. Volume l , 06/25/2015, p. 45); Detective Tolliver also noted that guns can be disposed of easily and that in his experience as a detective and police officer it was rare that guns could be retrieved after some time had passed. After talking to his supervisors and his partner, they decided against serving a search warrant at the North Bailey location: "[W]e felt like we would be tipping our hand a little bit if we served a search warrant, especially at this location .... " (N.T. Volume l, 06/25/2015, pp. 49-50). He was also waiting for the Defendant to follow up on his promise to come in and talk to Detective Tolliver. (N.T. Volume l, 06/25/2015, p. 50f In her statement, Johnson identified Charles Bonner, in addition to the Defendant and the decedent. After receiving Johnson's statement, Detectives Tolliver and Spotwood found out Bonner's whereabouts, and on June 6, 2013, they brought him into Homicide for an interview. (N.T. Volume 1, 06/25/2015, pp. 50-52). 37 Detective Tolliver noted that Bonner, who was cooperative, mentioned that he and the Defendant had attended a hair show-together on April 61h and that around 2:00 am on-April 7, 2013, the Defendant arrived at his house. He indicated that shortly thereafter, the Defendant's acquaintance, a girl, came to the house with his two phones which he had left at his residence. (N.T. Volume I, 06/25/2015, pp. 53.:65). Detective Tolliver stated that about a week or two after their initial encounter with Johnson, he and Detective Spotwood returned to her house. She was at home and after they told her that they wanted to talk to her again at Homicide, she refused to go with them; instead, she provided them with the name of her attorney, Raymond Driscoll. Following that encounter with Johnson, they reached out to Mr. Driscoll; they had no further conversations with Johnson, but a grand jury investigation was conducted. (N.T. Volume I, 06/25/20i5, pp. 66-69). Detective Tolliver explained that they executed search warrants on Johnson's phones. He also indicated that following the receipt of the alibi notice filed by defense counsel on May 8, 2015, he arranged additional search warrants - for AT&T and Sprint for phone numbers belonging to the Defendant and for the phone records ofNekeisha Gay-McGriff, the Defendant's wife. (N.T. Volume I, 06/25/2015, pp. 69, 81-83). Detective Tolliver also sent search warrants to Facebook for Instagram accounts. (N.T. Volume I, 06/25/2015, pp. 86-87).14 Detective James Dunlap testified that he was called upon by Detective Tolliver to retrieve certain video surveillance in this case and that he was able to obtain video surveillance from a 14 The Instagram accounts were tagged on the bottom of the photograph of the screen shot provided by Ms. Jessie, the decedent's sister. (N.T. Volume 1, 06/25/2015, pp. 86-87). 38 store at the northeast corner of North Bailey and Allegheny Streets. (N.T. Volume l, 06/25/2015, pp. 163-66).15' Detective Dunlap also noted that a week or two after the incident, he was asked to take a look at the decedent's phone. (N.T. Volume l , 06/25/2015, p. l68). There were seven pictures on that phone which were brought to his attention. " ... I explained the time they were taken and the actual longitude and latitude of where they were taken." (N.T. Volume l, 06/25/2015, p. 168). He took the phone to a private company, Cornerstone Forensic, and they performed an extraction and provided Detective Dunlap with a copy of their extraction work. (N.T. Volume I, 06/25/2015, p. 169). Detective Dunlap compared the photographs which he had against the photographs from the extraction, and found-that they were exactly the same; he was able to see when" the images were taken, down to a second. (N.T. Volume 1, 06/25/2015, p. 169). For the benefit of the jury, Detective Dunlap reviewed the photographs and their metadata. The photographs were taken on the 3200 Block of Bailey Street and its vicinity. The data was consistent with. both the extraction done by the Regional Criminal Forensic Laboratories of the FBI as well as by Cornerstone Forensics. (N.T. Volume 1, 06/25/2015, pp. 174-76, 181). One of the photographs showed a piece of mail addressed to "Femi Johnson or current resident, 3229 North Bailey Street, Philadelphia, PA 19129." (N.T. Volume I, 06/25/2015, p. 175). There were also photographs of a silver Mercedes taken on April l, 2013, at 3 :45 am. (N.T. Volume I, 06/25/2015, pp. 176-79). Detective DunJap stated that the car had a Pennsylvania tag, which enabled him to perform the BMV check; the check established that the ,.s Detective Dunlap explained that they had ten working cameras, including two exterior cameras, and that he succeeded in offloading those cameras. (N.T. Volume I, 06/25/2015, p. 166). 39 Defendant was the owner of the vehicle. (N.T. Volume l, 06/25/2015, p. 178). The decedent took her last photograph on her cell phone on April 7, 2013, at 2:23 am, around the comer from Bailey Street. (N.T. Volume I, 06/25/2015, p. 180). Detective Dunlap also shared his presentation report which showed the Defendant's and Johnson's color-coded phone records reflecting who was calling whom, what time, and from what location. (N.T. Volume I, 06/25/2015, pp. 181-82). Johnson received a phone caU from the Defendant at 2:54 am on April 7 from the 3229 Bailey Street to 5332 Poplar Street location. (N.T. Volume 1, 06/25/2015, p. 183). Detective Dunlap explained that, according to Google Maps, the distance between those two locations was 6.4 miles. It took about 16 minutes to get to the Poplar Street location, meaning that the start of the travel time was roughly af2:38 am. (N.T. Volume l, 06/25/2015, p. 184). Detective Dunlap also mentioned that after taking a photograph of the envelope with Johnson's name on it, the decedent made multiple phone calls to Johnson blocking her phone number ahead of making those calls. (N.T. Volume 1, 06/25/2015, pp. 187-92). Nekeisha Gay-McGriff testified for the defense as an alibi witness. She stated that she and the Defendant were married for nine years and that they had two minor children. (N.T. Volume 1, 06/26/2015, p. 32). She explained that they lived in Columbia, South Carolina, where they moved in order to raise their children and start a business. (N.T. Volume l, 06/26/2015, p. 33).16 Gay-McGriff indicated that on April 5, 2013, she drove with her two daughters to Philadelphia to visit her mother. She initially stated that the Defendant usually stayed at Bailey Street when they were visiting and that he probably stayed there that time as well, and not at her 16 Gay-McGriff conceded that they did not start any business there, (N.T. Volume I, 06fl.6fl.O 15, p. 33). 40 mother's house; moments later, however, she stated that she believed that the Defendant, in fact, spent the night with her on April 5. (N.T. Volume 1, 06/26/2015, pp. 35-36). Gay-McGriff stated that on April 61h, they went to visit the Defendant's mother. The Defendant drove the family there in Gay-McGriff's truck. (N.T. Volume I, 06/26/2015, p. 37). Gay-McGriff noted that she spent the afternoon with her family but that the Defendant was out and she was not sure what he was doing. Gay-McGriff had a problem with the truck which she stated was leaking oil. The Defendant "got the car fixed before [they] got on the road." (N.T. Volume l, 06/26/2015, pp. 38-39). Gay-McGriff noted that the Defendant picked them up from his mother's house at about 5 or 5:30 pm and dropped them off at her mother's house at about 6:30 or 7 pm. (N.T. Volume l, · · · · 06/26/2015, p. 39). Gay-Mcflriff explained that they needed lo get some test and finish packing to be able to get on the road at about l :00 am. (N.T. Volume l, 06/26/2015, p. 40).'7 Gay-McGriff indicated that the Defendant contacted her again by phone at about 12:30 am; he asked her if she was ready to get on the road. He called her about ten minutes later to inform her that he had arrived. (N.T. Volume l , 06/26/2015, pp. 42-43). Gay-McGriff stated that although the Defendant was not drunk, she could smell alcohol on his breath. Having concluded that it would be unsafe for the Defendant to drive, she sat at the wheel and dropped the Defendant off on Bailey Street. (N.T. Volume 1, 06/26/2015, p. 47).18 On the way there, he said that he was going to walk the dog and freshen up and go out with some friends. (N.T. Volume 1, 06/26/2015, p. 47). 17 She explained that she wanted to leave that night so that her older daughter could have some rest on Sunday before returning to school on Monday. (N.T. Volume I, 06/26/20 I 5, p. 40). "Gay-McGriffstated that she was unaware if anyone was staying at that address. (N.T. Volume I, 06/26/2015, p. 47). 41 Gay-McGriff explained that she stopped at a gas station; she then went inside the mini mart and she called the Defendant (who, according to her, was sitting with their children in the car) to see if he wanted anything from the mini mart. (N.T. Volume 1, 06/26/2015, p. 48). She then returned to Bailey Street; she parked at 26'11 Street closer to Willard Street not on Bailey Street because "it's only one-side parking and there's never any parking." (N.T. Volume 1, 06/26/2015, p. 50). The Defendant came back to the car in about 15 to 20 minutes; she did not observe any difference in his demeanor; there were no scratch marks on him and no blood on his clothes. (N.T. Volume 1, 06/26/2015, pp. 50-51). She gave the Defendant a ride, which took about 15 minutes; she recalled that they arrived in West Philadelphia but she did not know the name of the friend the Defendant was visiting.· Gay... McGriff stated that she had' never met Charles Bonner and that she did not see him that night; she just dropped off the Defendant then proceeded to get on the road to South Carolina. (N.T. Volume l, 06/26/2015, pp. 51-52). Under cross-examination, Gay-McGriff noted that while she did not know the decedent personally, she knew of her from the Defendant who informed Gay-McGriff when they were separated that he and the decedent were in a relationship. (N.T. Volume 1, 06/26/2015, p. 55). (Gay-McGriff and the Defendant were separated for about a year.) Gay-Mcflriff was already in South Carolina when the Defendnat informed her that the decedent was killed. Gay-McGriff learned that the Defenant was a suspect in this murder when· FBI agents came to the house. The Defendant did not tell her that he was a suspect but told her that he was asked to come down and speak to the detectives. She stated that she did not give the FBI agents his phone number but that she said that she would relay to him their message that there was a warrant out for his arrest. (N.T. Volume 1, 06/26/2015, pp. 56, 58-59). 42 Gay-McGriff stated that she never contacted police to tell them that she was with the Defendant that night; she explained that she wanted to talk to her lawyer first. She confirmed that she had a degree in criminal justice and that she had worked in the criminal justice system for almost a decade. (N.T. Volume l , 06/26/2015, pp. 61, 65). Gay-McGriff confirmed that no one asked her to take a signed statement about her whereabouts for the day. (N.T. Volume I, 06/26/2015, p. 66). Ronald Felder testified that he was a licensed private investigator and that he had been working on this case for about a month. One of the pieces of discovery he reviewed was a surveillance video from a store on the comer of Bailey and Allegheny Streets. Specifically, he looked at a segment provided in discovery from 12:00 am to 3:00 am from both of the camera . 'angles. Fot ·cfi