Com. v. Kinnard, R., II

J-A11013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

RICHARD W. KINNARD, II

Appellant No. 1296 MDA 2017

Appeal from the Judgment of Sentence Entered March 22, 2017

In the Court of Common Pleas of Lebanon County

Criminal Division at No: CP-38-CR-0000443-2016

BEFORE: STABILE, NICHOLS, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2018

Appellant, Richard W. Kinnard, II, appeals from the March 22, 2017

judgment of sentence imposing life in prison without parole for first-degree

murder. We affirm.

The trial court summarized the pertinent facts:

This case arises from events that occurred on September

19, 2015 at Vinny’s Good Time Night Club (hereafter “Vinny’s”) in

the city of Lebanon. About ten minutes before the club was

scheduled to close, a dispute erupted between [Appellant], Jared

Donovan Jones (hereafter “Jones”) and a security officer

employed by Vinny’s. The defendants were ejected from the

premises. After a short hiatus, [Appellant] returned to the

nightclub. Shots were fired. Corey Bryan (hereafter “Bryan”) was

struck and killed. Despite the fact that Vinny’s was crowded when

the shooting occurred, most patrons left the premises at or before

the arrival of police. No one professed to have seen the shooting.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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An investigation ensued. Eventually, that investigation was

chronicled in a jury trial that took place in February of 2017.

The centerpiece of the Commonwealth’s case in chief was

footage from a videotape surveillance system at Vinny’s. The

videotape showed [Appellant] and Jones engaged in an argument

with security officer Bryan. The tape also depicted [Appellant]

and Jones leaving Vinny’s and entering the parking lot. Shortly

thereafter, the video depicted [Appellant] returning to the bar

entrance. Another camera showed Bryan at the door toward

which [Appellant] had been walking. The video depicted Bryan

clutching his stomach and falling to the ground. Thereafter, most

patrons scurried away. [Appellant] was caught on video running

to a car. None of the camera views depicted the shooter or anyone

else in possession of a firearm.

Vinny’s surveillance system showed [Appellant] enter[ing] a

car in the parking lot. The car then departed the parking area and

turned north on Route 343. Shortly thereafter, North Lebanon

Township Police were called to the scene of a one-vehicle accident

north of the City of Lebanon. Sergeant Timothy Knight of the

North Lebanon Township Police Department arrived at the scene

of the crash, which was approximately two miles from Vinny’s.

When he arrived, no one was present in the vehicle. Upon

additional investigation, Sergeant Knight learned that the vehicle

was registered to [Appellant]. Blood was located throughout the

vehicle. Wedged in behind the right rear headrest was a gun.

Sergeant Knight checked the serial number of the firearm and

learned that it had been stolen. When the vehicle was

subsequently processed more completely, police also found a

payment receipt for a loan registered to [Appellant], a medical

paper pertaining to [Appellant], a letter from the Harrisburg Area

Community College addressed to Jones, an LA Fitness paper in the

name of [Appellant], a MoneyGram with [Appellant’s] name on it,

health documents from Memorial Hospital pertaining to

[Appellant], and insurance paperwork in the name of [Appellant].

The gun found inside the BMW vehicle was sent for ballistics

testing. In addition, bullets were found inside Vinny’s and a

projectile was recovered from the body of Bryan. Trooper Todd

Neumyer, a firearms expert with the Pennsylvania State Police,

testified that the bullets recovered from the body of Bryan and

Vinny’s were fired from the gun that had been located in the BMW

vehicle that crashed.

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The parties reached a stipulation that the blood recovered

from the BMW vehicle was transmitted to the Pennsylvania State

Police Crimes Laboratory for serology and DNA testing. There, a

forensic DNA scientist by the name of Sabrine Panzer-Kaelin

completed testing that revealed the existence of blood from

[Appellant] and Jones inside the crashed BMW vehicle.

Following the crash of their BMW vehicle, both Jones and

[Appellant] left the area. With respect to [Appellant], police

learned that he purchased a bus ticket to travel from York,

Pennsylvania, to Tucson, Arizona. The United States Marshals

were contacted for assistance. Eventually, the Marshalls located

[Appellant] in Tucson on January 26, 2016. […]

Following his apprehension, Jones provided a recorded

statement to police. This statement became the focus of

extensive pre-trial litigation[.] Eventually, the court crafted a

statement that could be read to the jury. This statement

incorporated some of [Appellant’s] own words and some

paraphrasing. The statement of Jones read to the jury focused

upon the conduct of Jones and not the conduct of [Appellant].

Specifically, Jones admitted that he was at Vinny’s on the night of

the murder. He admitted that he had an argument with Bryan.

He admitted that he drove the BMW vehicle belonging to William

[Appellant] away from Vinny’s. He acknowledged that he crashed

the vehicle. After regaining consciousness following the crash,

Jones acknowledged that he left the scene of the accident and that

he left Lebanon County. In the statement, Jones denied having

any knowledge or connection to the shooting death of Bryan.

Trial Court Opinion, 7/17/17, at 5-8 (record citations and some capitalization

omitted).

At the conclusion of a lengthy joint trial, the jury found Appellant guilty

of first-degree murder, third-degree murder, two counts of aggravated

assault, receiving stolen property, discharge of a firearm into an occupied

structure, flight to avoid apprehension, recklessly endangering another

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person, and six counts of conspiracy.1 Appellant filed a timely post-sentence

motion, which the trial court denied on July 17, 2017. This timely appeal

followed. Appellant raises eight assertions of error:

1. Did the Commonwealth fail to present sufficient evidence at

trial to prove beyond a reasonable doubt Appellant was the

person who shot and killed the victim[?]

2. Did the trial court err by denying [Appellant’s] pretrial motion

to sever his case from [Jones]?

3. Did the trial court err by deferring decisions regarding

[Appellant’s] motion in limine until the time of trial where the

deferment denying defense counsel’s ability to effectively

prepare for trial and Appellant’s right to a fair trial? [sic]

4. Did the trial court err by admitting prison recorded phone calls

between Charles Williams? [sic]

5. Did the collection of the prison recorded telephone calls and

visitation recordings violated [sic] the Pennsylvania Wiretap

Act and the Pennsylvania Supreme Court’s decision in

Commonwealth v. Fant[, 146 A.3d 1254 (Pa. 2016)]?

6. Did the trial court err by admitting [Appellant’s] recorded

phone calls and visitation recordings at the Lebanon County

Correctional Facility where the contents of those recorded

phone calls and visits provided the jury no relevant evidence

regarding [Appellant’s] consciousness of guilt and were

extremely prejudicial in that his conversations exposed the jury

to what sentence [Appellant] could receive if convicted,

referenced privileged plea conversations between [Appellant]

and defense counsel, and the admission of those phone calls

placed defense counsel in the impossible position of explaining

these conversations to the jury without simultaneously

divulging privileged communications between himself and

[Appellant]?

____________________________________________

1 18 Pa.C.S.A. § 2502(a) and (c), 2702, 3925, 2701.1, 5126, 2705, and 903,

respectively.

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7. Did the trial court err by admitting a letter allegedly written by

Appellant stating that [Jones] was not involved in the shooting

where Jones’ handwriting expert’s report was not based on a

valid and widely accepted scientific means of identifying a

person’s handwriting and Jared Jones’ handwriting expert’s

conclusion stated that there was only a strong possibility that

[Appellant] authored the text of the letter[?]

8. Did the trial court err by denying [Appellant’s] motion in limine

to exclude Detective Keith Uhrich’s statement that he identified

[Appellant] from the use of a JNET photograph and the

surveillance video from the night of the shootings?

Appellant’s Brief at 4-5 (reordered and some capitalization omitted).

Appellant first challenges the sufficiency of the evidence. Our standard

of review is well settled. We must determine “whether the evidence, viewed

in the light most favorable to the Commonwealth as the verdict winner,

supports the jury’s finding that every element of the offense was proven

beyond a reasonable doubt.” Commonwealth v. Hicks, 156 A.3d 1114,

1123 (Pa. 2017). “The Commonwealth may sustain this burden by wholly

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

evidence.” Id. “To obtain a first-degree murder conviction, the

Commonwealth must demonstrate that a human being was unlawfully killed,

the defendant did the killing, and the defendant acted with a specific intent to

kill.” Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).

Moreover, the jury may convict the defendant as an accomplice so long as the

facts adequately support the conclusion that he or she aided, agreed to aid,

or attempted to aid the principal in planning or committing the offense, and

acted with the intention to promote or facilitate the offense.” Id.

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In his two-paragraph argument addressing this point, Appellant notes

that no eyewitness observed him shoot Bryan, no eyewitness observed

Appellant in possession of a gun, and the surveillance footage did not capture

the shooting. Appellant does not acknowledge that the Commonwealth may

prove its case with circumstantial evidence. Commonwealth v. Brown, 23

A.3d 544, 559 (Pa. Super. 2011). The evidence summarized in the trial court’s

opinion demonstrates that the Commonwealth produced an overwhelming

body of circumstantial evidence implicating Appellant as the shooter.

Appellant’s sufficiency of the evidence argument fails.

Next, Appellant argues that the trial court erred in denying his pretrial

motion to sever his case from that of Jones.

The decision of whether to sever trials of co-defendants is

within the sound discretion of the trial court. Both this Court and

the United States Supreme Court have recognized that joint trials

of co-defendants play a crucial role in the criminal justice system.

It would impair both the efficiency and the fairness of the

criminal justice system to require ... that prosecutors bring

separate proceedings, presenting the same evidence again and

again, requiring victims and witnesses to repeat the inconvenience

(and sometimes trauma) of testifying, and randomly favoring the

last tried defendants who have the advantage of knowing the

prosecution’s case beforehand. Joint trials generally serve the

interests of justice by avoiding inconsistent verdicts and enabling

more accurate assessment of relative culpability.

Commonwealth v. Travers, 768 A.2d 845, 846–47 (Pa. 2001). Normally,

an appropriate jury instruction will suffice to address any evidence that is

admissible against one defendant and not another. Id. at 847. However, in

Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme

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Court held that the confession of a non-testifying defendant is inadmissible,

regardless of any jury instruction, if it facially incriminates a co-defendant.

Subsequently, courts have admitted such confessions if they are edited to

omit direct references to a co-defendant. For example, in Commonwealth

v. Travers, 768 A.2d 845 (Pa. 2001), the Pennsylvania Supreme Court held

that a confession edited to refer to a co-defendant as “the other man,”

accompanied by a limiting instruction, was appropriate under Bruton.

Appellant’s argument addresses the following portions of the trial court’s

summary of Jones’ statement: “Jared Jones traveled with two other guys

to Lebanon to celebrate [Jones’] birthday,” and “[d]uring the evening of

September 19, the three gentlemen ended up at Vinny’s Goodtimes club.”

Appellant’s Brief at 22 (emphasis added by Appellant). Appellant bolded the

portions that the trial court redacted to omit Appellant’s name.

We discern several fatal flaws in Appellant’s argument. First, the

statement is not facially incriminating. The fact that Jones went out Vinny’s

to celebrate his birthday with “two other guys” is not incriminating to any of

the three men. Those facts become incriminating, if at all, only when linked

with evidence that Jones was implicated in a murder that occurred at Vinny’s

that evening. Second, the redaction does not invite the jury to conclude that

Appellant was one of the “two other guys.”

By way of contrast, are the facts of Gray v. Maryland, 523 U.S. 185

(1998):

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The witness who read the confession told the jury the

confession (among other things) said,

‘Question: Who was in the group that beat [the

victim]?

‘Answer: Me, deleted, deleted, and a few other

guys.’ [we will refer to this exchange as the first

question and answer]

Why could the witness not, instead, have said:

‘Question: Who was in the group that beat [the

victim]?

‘Answer: Me and a few other guys.’ [we will

refer to this exchange as the second question and

answer]

Id. at 196 (record citation omitted). The United States Supreme Court held

the first question and answer (from the trial record) inadmissible under

Bruton. According to Gray, the use of the word “deleted” invites the jury to

conclude that a co-defendant’s name was deleted, and to rely on that fact as

evidence of the co-defendant’s guilt regardless of any jury instruction to the

contrary. The Supreme Court wrote, “Consider a simplified but typical

example, a confession that reads, ‘I, Bob Smith, along with Sam Jones, robbed

the bank.’ To replace the words ‘Sam Jones’ with an obvious blank will not

likely fool anyone.” Id. at 193. The Gray Court, however, reasoned that the

second question and answer (the Court’s own hypothetical), would not violate

Bruton, because “statements that did not refer directly to the defendant

himself and which became incriminating ‘only when linked with evidence

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introduced later at trial’” are admissible under Bruton and its progeny. Id.

(quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).

Following Gray’s example, the Pennsylvania Supreme Court in Travers

found no Bruton violation where a redacted confession referred to a co-

defendant as “the other man.”2 Id. at 851-52. “The redacted statement here

neither referred to appellant by name (the Bruton proscription) nor did it

contain an obvious indication of a deletion or an alteration that was the

functional equivalent of naming him (the Gray proscription).” Id. at 851.

“Since the statement was not powerfully incriminating on its face, the general

rule to which Bruton and Gray are a limited exception, i.e., the almost

invariable assumption of the law that jurors follow their instructions […]

applies and controls.” Id. (internal citations and quotation marks omitted).

Here, unlike Gray, the redacted portion of the confession did not answer

an incriminating question (who beat the victim?) but an innocuous one (where

and with whom did Jones go out to celebrate his birthday?). The redacted

confession became potentially incriminating only when linked to other

evidence, i.e., facts implicating Jones in a murder that occurred at Vinny’s that

night. In light of all of the foregoing, we discern no Bruton violation in the

____________________________________________

2 The co-defendant told police he drove Travers to the scene with the intent

of looking for a person with whom Travers had an argument earlier that day.

Id. at 846. The co-defendant also admitted that he knew Travers was in

possession of the gun used in the killing, and that he punched the victim and

directed Travers to shoot him. Id. References to Travers were replaced with

the “other man.” Id.

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redacted confession, and we discern no abuse of discretion in the trial court’s

denial of Appellant’s severance motion.

Next, Appellant argues the trial court erred in deferring decision on

various pre-trial motions seeking exclusion or admission of certain evidence,

because the deferral hampered the effectiveness of Appellant’s opening

statement. Appellant claims the trial court deprived him of due process, but

he cites no law pertaining to this specific issue.

A motion in limine is a pre-trial application before a trial

court made outside the presence of a jury, requesting a ruling or

order from the trial court prohibiting the opposing counsel from

referring to or offering into evidence matters so highly prejudicial

to the moving party that curative instructions cannot alleviate an

adverse effect on the jury. The purpose of a motion in limine is

twofold: 1) to provide the trial court with a pre-trial opportunity

to weigh carefully and consider potentially prejudicial and harmful

evidence; and 2) to preclude evidence from ever reaching a jury

that may prove to be so prejudicial that no instruction could cure

the harm to the defendant, thus reducing the possibility that

prejudicial error could occur at trial which would force the trial

court to either declare a mistrial in the middle of the case or grant

a new trial at its conclusion. Further, a ruling on a pre-trial motion

in limine provides counsel with a basis upon which to structure

trial strategy.

Commonwealth v. Noll, 662 A.2d 1123, 1125 (Pa. Super. 1995), appeal

denied, 673 A.2d 333 (Pa. 1996).

Nonetheless, trial courts are permitted to defer rulings.

Commonwealth v. Metier, 634 A.2d 228, 232 n.3 (Pa. Super. 1993). As

our Supreme Court has explained, in certain circumstances, a deferred ruling

is preferable:

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Here, the trial court excluded proffered testimony pre-trial

pursuant to Rule 403, a rule that, as explained infra, is generally

not susceptible to accurate pre-trial evaluation. Unlike other rules

of evidence, Rule 403 requires a trial court to weigh probative

value and prejudice—the costs and benefits of relevant evidence—

viewing it as part of a whole and not in isolation. Inherent in the

rule is the assumption that the court has an adequate record, one

that will mirror or provide great insight into what will develop at

trial. In the majority of cases, and particularly manifested in this

one, the trial court has no way of knowing beforehand exactly

what evidence will be presented at trial. Depending on the case

and the inevitable vagaries of litigation, the pre-trial record may

be entirely different than the record that eventuates as matters

unfold. Even if the evidence the parties intend to present is set,

a trial rarely follows the anticipated script. The actual value of

evidence may differ substantially from pre-trial expectations,

depending on all manner of factors, such as the availability,

appearance, memory, or demeanor of a witness, admissions on

cross-examination, the defense theory, or the defendant’s

decision whether or not to testify. Even a relatively developed

pre-trial record will be of limited utility in predicting the probative

value or prejudice a particular piece of evidence will ultimately

have.

Therefore, the ruling is better deferred until the situation is

clear, not speculative.

Commonwealth v. Hicks, 91 A.3d 47, 52–53 (Pa. 2014).

Appellant argues the trial court erred in deferring judgment on his

motion to exclude Jones’ handwriting expert, his motion to exclude testimony

regarding his gang affiliation and his motion to exclude the use of recorded

phone calls. The trial court explained that it was unable to conduct a sufficient

analysis prior to trial. Having reviewed the law, the parties’ briefs, and the

record, we reject Appellant’s argument for the reasons explained on pages

26-32 of the trial court’s July 7, 2017 opinion.

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Next, Appellant argues the trial court erred in denying Appellant’s pre-

trial motion to exclude recorded phone calls Appellant made from prison.

Detective Keith Uhrich, the Commonwealth witness who identified Appellant’s

voice in the recorded telephone call, testified that he never spoke with

Appellant. Rather, he identified the voice in the recording as consistent with

the voice in all of Appellant’s phone calls recorded while he was in prison.

In reviewing the ruling of a suppression court, our task is to

determine whether the factual findings are supported by the

record. If so, we are bound by those findings. Where, as here, it

is the Commonwealth who is appealing the decision of the

suppression court, we must consider only the evidence for the

prosecution as read in the context of the record as a whole

remains uncontradicted. Moreover, if the evidence supports the

factual findings of the suppression court, this Court will reverse

only if there is an error in the legal conclusion drawn from those

findings.

Commonwealth v. Fant, 146 A.3d 1254, 1259 (Pa. 2016). We review the

trial court’s evidentiary rulings for abuse of discretion. Commonwealth v.

Serrano, 61 A.3d 279, 290 (Pa. Super. 2013).

Rule 901 of the Pennsylvania Rules of Evidence governs the

authentication of evidence, including voice identification:

(5) Opinion About a Voice. An opinion identifying a person’s

voice—whether heard firsthand or through a mechanical or

electronic transmission or recording—based on hearing the voice

at any time under circumstances that connect it with the alleged

speaker.

Pa.R.E. 901(b)(5). “[W]hen seeking to introduce testimony as to the content

of a telephone conversation, the identity of the caller may be established by

circumstantial evidence.” Commonwealth v. Stewart, 450 A.2d 732, 733

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(Pa. Super. 1982). Thus, a person familiar with the alleged speaker’s voice

may testify as to the identity of the speaker. Commonwealth v. Carpenter,

450 A.2d 732, 733 (Pa. Super. 1982).

Nothing in Rule 901(b)(5) or our jurisprudence requires a face-to-face

conversation between the identifying witness and the alleged speaker. The

law simply requires familiarity with the alleged speaker’s voice. The trial court

explained:

Detective Uhrich testified that during the course of his

investigation, he listened to 150 telephone calls that were

intercepted from [Appellant] while he was an inmate at the

Lebanon County Prison. Detective Uhrich stated that some of

these telephone calls were twenty minutes in length[,] and that

he listened to [Appellant] telephone calls ‘for a long period of time’

extending up to one week before the date of trial. Detective

Uhrich also stated that [Appellant] repeatedly prefaced many of

his remarks with the phrase ‘Do you understand what I’m sayin’?’

Detective [Appellant] stated that during the conversation the

Commonwealth sought to admit, [Appellant’s] voice sounded

identical with the voice he heard 150 times previously[,] and

[Appellant] used the phrase ‘Do you understand what I’m sayin’?’

Trial Court Opinion, 7/7/17, at 39.

Thus, Detective Uhrich was familiar with Appellant’s voice from having

listened to 150 recordings—some of those lengthy—of a voice that he knew

to be Appellant’s. He was also familiar with Appellant’s speech patterns,

particularly a phrase that he used frequently, “do you understand what I’m

sayin?” The record supports the trial court’s findings of fact, and we discern

no legal error in its ruling.

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Next, Appellant argues that the Lebanon County prison violated the

Wiretap Act, 18 Pa.C.S.A. § 5701, et. seq., when it recorded his telephone

calls. The Wiretap Act provides in relevant part:

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

[…]

(14) An investigative officer, a law enforcement officer or

employees of a county correctional facility to intercept, record,

monitor or divulge any telephone calls[3] from or to an inmate in

a facility under the following conditions:

[…]

(B) Unless otherwise provided for in this paragraph, after

intercepting or recording an oral communication, electronic

communication or wire communication, only the superintendent,

warden or a designee of the superintendent or warden or other

chief administrative official or his or her designee, or law

enforcement officers shall have access to that recording.

18 Pa.C.S.A. § 5704(14)(B), subsequently amended, 2017 P.L. 304, No. 22,

§ 2.

Appellant argues, without citation to authority, that Detective Uhrich did

not qualify as a “designee” under § 5704(14)(B). Appellant quotes

§ 5704(14)(B) in his brief, but he omits the portion stating that law

enforcement officers may have access to a recording of a prison phone call.

Appellant’s Brief at 26.

____________________________________________

3 The General Assembly subsequently deleted the phrase “telephone calls”

and inserted “oral communications, electronic communications, or wire

communications.” 18 Pa.C.S.A. § 5704(14)(B), as amended.

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Appellant also cites Commonwealth v. Fant, 146 A.3d 1254 (Pa.

2016), for the proposition that in-person conversations between an inmate

and visitor, separated by a glass screen using and speaking to each other

using a telephone-like handset, are not subject to interception under the

Wiretap Act because they are not telephone conversations. Fant shortly

predated Appellant’s trial, and he filed a pre-trial motion to exclude the

recordings of his conversations in prison. However, Appellant fails to cite any

evidence that the recorded conversations took place in person, rather than

over a telephone line to a person outside of the prison. Indeed, his brief

specifies that the calls were to an “outside number.” Appellant’s Brief at 16.

Appellant therefore cannot obtain relief under Fant. For the foregoing

reasons, we reject Appellant’s arguments under the Wiretap Act.

In his final three arguments, Appellant claims that the recorded

telephone conversations were irrelevant and therefore inadmissible; that the

trial court erred in admitting a letter allegedly written by Appellant because

Jones’ expert could not state that the signature was Appellant’s; and that the

trial court should not have permitted Detective Uhrich to identify Appellant by

comparing a JNET photo to video surveillance footage. Appellant’s Brief, at

27-28. Appellant fails to cite any pertinent legal authority or any record

evidence in support of any of these arguments, and the final two arguments

consist of a single sentence. Appellant has waived his final three arguments.

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Pa.R.A.P. 2119(b) and (c); Commonwealth v. Williams, 959 A.2d 1252,

1258 (Pa. Super. 2008).

Because we have found no merit in any of the arguments Appellant

preserved for Appellate review, we affirm the judgment of sentence. We direct

that a copy of the trial court’s July 7, 2017 opinion be filed along with this

memorandum.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/2018

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Circulated 08/31/2018 11:32 AM

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frJ7�� touiftl«SFiaoMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL

COMMONWEAL TH OF PENNSYLVANIA: NO. CP-38-CR-443-2016

VS

RICHARD W. KINNARD, II

COMMONWEALTH OF PENNSYLVANIA: NO. CP-38-CR-424-2016

vs

JARED DONOVAN JONES

APPEARANCES:

NICOLE EISENHART, Esquire For The Commonwealth

First Assistant District Attorney

MEGAN RYLAND-TANNER, Esquire

First Deputy District Attorney

IAN M. EHRGOOD, Esquire For Defendant Kinnard

JON W. ARNOLD, Esquire

NICHOLAS J. SIDELNICK, Esquire For Defendant Jones

ELIZABETH JUDD, Esquire

Opinion, Charles, J., July 17, 2017

Richard W. Kinnard, II and Jared Jones (Hereafter collectively

referred to as DEFENDANTS) were convicted of shooting and killing a

bouncer who had ejected them minutes before the Vinny's Good Times

Nightclub was scheduled to close. The trial that resulted in the

DEFENDANTS' convictions took place in February of 2017. Rarely have

we presided over any Criminal Trial that produced as many esoteric legal

issues as this one. Today, we wrll address many of those issues via

4

DEFENDANTS' Post-Sentence Motions. For reasons articulated below. we

will deny all of the DEFENDANTS' Post-Sentence Motions.

I. FACTS

Th is case arises from events that occurred on September 19,

2015 at Vinny's Good Time Night Club (hereafter, "VINNY'S") in the city of

Lebanon. About ten minutes before the club was scheduled to close, a

dispute erupted between Ric ha rd Kinn a rd, 11 (he re after 11K I NNAR D"), Jared

Donovan Jones (hereafter "JONES") and a security officer employed by

VINNY'S. The DEFENDANTS were ejected from the premises. After a short

hiatus, KINNARD returned to the nightclub. Shots were fired. Corey Bryan

(hereafter "BRYAN") was struck and killed. Despite the fact that VINNY'S

was crowded when the shooting occurred, most patrons left the premises

at or before the arrival of police. No one professed to have seen the

shooting. An investigation ensued. Eventually, that investigation was

chronicled in a jury trial that took place during February of 2017.

The centerpiece of the Commonwealth's case in chief was footage

from a videotape surveillance system at VINNY'S. The videotape showed

KINNARD and JONES engaged in an argument with security officer BRYAN.

The tape also depicted KINNARD and JONES leaving VINNY'S and entering

the parking lot. Shortly thereafter, the video depicted KINNARD returning

to the bar entrance. Another camera showed BRYAN at the door toward

5

which KINNARD had been walking. The video depicted BRYAN clutching

his stomach and falling to the ground. Thereafter, most patrons scurried

away. KN NARD was caught on video running to a car. None of the camera

views depicted the shooter or anyone else in possession of a firearm. (See,

e.g. N.T. 28-29; Exhibit 14).

VINNY'S surveillance· system showed KINNARD enter a car in the

parking lot. The car then departed the parking area and turned north on

Route 343. (See, Exhibit 14). Shortly thereafter, North Lebanon Township

Police were called to the scene of a one vehicle accident north of the City

of Lebanon. Sergeant Timothy Knight of the North Lebanon Township

Police Department arrived at the scene of the crash, which was

approximately two miles from VINNY'S. (N.T. 227). When he arrived, no

one was present in the vehicle. (N.T. 228). Upon additional investigation,

Sergeant Knight learned that the vehicle was registered to William Kinnard.

(N.T. 229). Blood was located throughout the vehicle. (N.T. 229). Wedged

in behind the right rear headrest was a gun. (N.T. 229). Sergeant Knight

checked the serial number of the firearm and learned that it had been

stolen. (N.T. 230). When the vehicle was subsequently processed more

completely, police also found a payment receipt for a loan registered to

KINNARD, a medical paper pertaining to KINNARD, a letter from the

Harrisburg Area Community College addressed to JONES, an LA Fitness

paper in the name of KINNARD, a MoneyGram with KINNARD's name on it,

6

health documents from Memorial Hospital pertaining to KINNARD, and

insurance paperwork in the name of Patty Kinnard (N.T. 256-258).

The gun found inside the BMW vehicle was sent for ballistics testing.

(N.T. 260). In addition, bullets were found inside VINNY'S and a projectile

was recovered from the body of BRYAN. (N.T. 261). Trooper Todd

Neumyer, a firearms expert with the Pennsylvania State Police, testified

that the bullets recovered from the body of BRYAN and at VINNY'S were

fired from the gun that had been located in the BMW vehicle that crashed.

(N.T. 286-287)

The parties reached a stipulation that the blood recovered from the

BMW vehicle was transmitted to the Pennsylvania State Police Crimes

Laboratory for serology and DNA testing. There, a forensic DNA scientist

by the name of Sabine Panzner-Kae lin completed testing that rev ea led the

existence of blood from KINNARD and JONES inside the crashed BMW

vehicle. (N.T. 307-309).

Following the crash of their BMW vehicle, both JONES and KINNARD

left the area. Detective Keith Uhrich chronicled the efforts made by police

to locate both men. With respect to KINNARD, police learned that he

purchased a bus ticket to travel from York, Pennsylvania, to Tucson

Arizona. (N. T. 419). The United States Mars halls were contacted for

assistance. (N. T. 419; 421 ). Eventually, the Marshalls located Kl N NARD in

Tucson on January 26, 2016. (N.T. 421-422). With respect to JONES,

7

Detective Uhrich communicated with his sister and his mother. On January

27, 2016, JONES was apprehended in Hershey, Pennsylvania. (N.T. 423).

Following his apprehension, JONES provided a recorded statement to

police. This statement became the focus of extensive pre-trial litigation

that will be chronicled within the body of this Opinion. Eventually, the Court

crafted a statement that could be read to the jury. This statement

incorporated some of JONES' own words and some paraphrasing. The

statement of JONES read to the jury focused upon the conduct of JONES

and not the conduct of KINNARD. Specifically, JONES admitted that he

was at VINNY'S on the night of the murder. He admitted that he had an

argument with BRYAN. He admitted that he drove the BMW vehicle

belonging to William Kinnard away from VINNY'S. He acknowledged that

he crashed the vehicle. After regaining consciousness following the crash.

JONES acknowledged that he left the scene of the accident and that he left

Lebanon County. In the statement. JONES denied having any knowledge

or connection to the sh coting death of BRYAN. (See, Exhibit 32: N. T. 425-

4 31)

After Kl N NARD and JON ES were apprehended by police, they were

confined at the Lebanon County Correctional Facility. The Correctional

Facility possesses a system by which telephone calls involving inmates can

be monitored and recorded. Every inmate is advised in advance that his/her

telephone calls are subject to interception and recording. (February 6, 2017

N.T. 4-6). Several telephone calls of note involving KINNARD were

8

intercepted and recorded. Specifically, the phone calls inc I uded the

following:

• On March 27, 2016, KINNARD told an unidentified female that "I got

some time to do" and the time would be measured in "years". (N. T.

433)

• On March 29, 2016, KINNARD told an unknown individual "I am

looking at some time" and he references that he will be in prison at

least ten years. He indicated that he wanted to "prepare" his family

for that reality. (N.T.433)

• On May 7, 2016, the DEFENDANT complained to an unknown female

about how the Lebanon District Attorney wanted to lock him up for

life. In that conversation, he indicated that he would take a

"reasonable" plea bargain deal. ( N. T .433)

These telephone calls were the focus of a pre-trial proceeding. On

February 6, 2017, this Court issued a nine-page Opinion. We overruled

KINNARD's objections based upon relevance and the plea bargain

privilege. A final decision regarding the phone calls was deferred until trial.

At trial, we permitted the jury to hear the phone calls and we afforded wide

latitude for the defense to explain why the statement made by KINNARD

during the telephone calls should not reflect his consciousness of guilt.

After a trial that lasted more than one week, a jury rendered numerous

verdicts. Those verdicts, and the charges to which they pertained are set

forth on the following ch arts:

9

COMMONWEALTH v , KINNARD

----- . --·-··-·····-·····--

COUNT NUMBER

------------------------------ CHARGE VERDrcr -----

' -----------·-· _F_irst De�e Murder Guilty:1 _

11 ----------�-..··- Q_�n-�piracy-First Degree Murder _ Guilty -----------

Ill A ravated Assault____ ...... G}JiltL_ _

IV Cons iracy-Aggravate_d Assault Guilty --,

y_________ __ Aggravated Ass_ault _QyJ.[!.�---·-----

-�L ··--· Cons pi ra cy-Agg r av a ted__6��-�!!_lt Gu iJJy -·--·-------,

Vl I Conspiracy-Person Not to Possess Guilty

Use, Manufacture, Control, Sell or

Transfer Firearms

----�---- .......-------t-----------··-·�---

VIII

·-·----·--···--·.... ·-·····-------·-- - Recelvin__g_ Stolen Proper_ty Guilty_ _

IX Discharge of a Firearm Into an Guilty

____________________ Occupied Stru_c_ture _

x Flight to Avoid Apprehension, Trial Guilty

·----•·•r••••··---

or Punishment

-••--�------ �-----··- -�--,.---·-·------

XI Conspiracy, Flight to Avoid Guilty

---------------------------- Apprehension, Trial or Punishment _

XI I Recklessly Endangering Another Guilty

Person --- ------------ -------------�-

XIII . - Criminal Homicide-Third Degree Guilty

Murder

---------

XIV Conspiracy, Criminal Homicide Guilty

__________________._____T_h_i_qr_ _D e g ree Mu f_d_e_r _ -�---····-··-·---------

COMMONWEAL TH v. JONES

:c·ou fit ..� url BER cH_AR GE=-- - --

· - ---------- vE RoTcT

�

I ·------- f irst_Degree Murder _ G_�U!_y__ ·

II -·-·····- Conspiracy-Ffrst R.�gree Murder Guf�t_y _

Ill 6-ggravateg__t'ssault Guilt _

__ l.Y'._______________ Conspiracy-A.9.9..!:avated Assault __ Guil _

____. t

�------

V A ravated Assault Guilty�-

VI Conspiracy-Aggravated Ass a ult -� uj!!Y_ _

VII Flight to Avoid Apprehension, Trial Guilty

--�----------- or Punishment -------+---·--------- -

VII I Conspiracy, Flight to Avoid Guilty

A rehension, Trial or Punishment -···---------

IX Criminal Homicide-Third Degree Guilty

Murder

x --------------··-----·--t- ----- ----·-------

Con spi racy, Criminal

-- -----------

Homtclde Guilty

______________________ ..IbJ rd De_g_.c�e Mu rd_�!:___ _ _ ___ j

10

The DEFENDANTS appeared for sentencing March 22, 2017. We did

our duty by imposing the mandatory life imprisonment sentence for first

degree murder for both OE FEN DAN TS. In addition, we also imposed

additional terms of imprisonment on other counts.

!L_ ISSUES

Both JONES and KINNARD have raised numerous issues for our

consideration. Several issues are identical and many others intersect with

one another. That is why we have chosen to address both co-defendants'

issues within this one joint opinion. The issues we will be addressing, and

the party who raised the issue are listed below:

(A) Weight and sufficiency of evidence (JONES and KINNARD)

(B) Refusal of the Court to sever the cases against each Defendant

(JON ES and KINNARD)

(C) Voluntary Intoxication (JONES)

(0) Refusal of the Court to compel KINNARD to give handwriting

exemplar (JONES)

(E) Handwriting Authentication (KINNARD)

(F) Deferring decisions on Motion in Limine until Trial (KINNARD)

(G) Admitting recorded phone calls intercepted from prison

(KINNARD)

(H) Permitting identification of DEFENDANT from a JNET photo

(KINNARD)

11

111.

-''

DISCUSSION

A. Weight & Sufficiency of Evidence (Jones & Kinnard)

When reviewing a sufficiency of the evidence claim, we apply a two-step

inquiry. First, we consider all of the evidence in the light most favorable to

the Co mm onwealth, accepting as true al I evidence up on which the fact-

finder could have based the verdict. Second, we must ask whether that

evidence, along with all reasonable inferences to be drawn therefrom, was

sufficient to prove guilt beyond a reasonable doubt. Commonwealth v.

Azim, 459 A.2d 1244, 1246 (Pa. Su per. 1983). In passing upon the

credibility of witnesses and the weight of the evidence, the jury is at liberty

to believe all, part, or none of the evidence. Commonwealth v. Price, 610

A.2d 488 (Pa. Super. 1992). We are not to engage in post-verdict credibility

discussions, nor are we permitted to substitute our opinion regarding the

facts for that of the jury. Commonwealth v. Brown, 486 A. 2d 441 (Pa.

Su per. 19 84). If the fact-find er co u Id have reasonably determined from the

evidence that all of the necessary elements of the crime were established,

then that evidence will be deemed sufficient to support the verdict

Commonwealth v. Hopkins, supra. at 913-14. With the above in mind, we

will proceed to analyze the facts of this case and the various charges

against these Defendants.

12

Although closely related, there is a distinction between challenges to

sufficiency and lack of weight of evidence. That distinction was explained

in Commonwealth v. Whiteman, 485 A.2d 459 (Pa. Super. 1984):

A motion for new trial on grounds that the verdict is contrary to

the weight of the evidence concedes that there is sufficient

evidence to sustain the verdict but contends, nevertheless, that

the verdict is against the weight of the evidence. Whether a new

trial should be granted on grounds that the verdict is against the

weight of the evidence is addressed to the sound discretion of

the trial judge ... The test is not whether the court would have

decided the case in the same way but whether the verdict is so

contrary to the evidence as to make the award of a new trial

imperative so that right may be given another opportunity to

prevail.

Id. at page 462, citing Commonwealth v. Taylor, 471 A.2d 1228, 1229-

1230 (Pa. Super. 1984). If there is insufficient evidence to support a jury's

verdict, the double jeopardy clause of the Fifth Amendment to the United

States Constitution precludes retrial. See Commonwealth v. Whiteman,

supra, citing Hudson v. Louisiana, 450 U.S. 40, 67 L.Ed.2d 30 (S.Ct.

1981 ). On the other hand, "a new trial is a proper remedy when the verdict

is found to be against the weight of the evidence". Commonwealth v.

Whitman, supra at page 461.

The standard to be applied when assessing a challenge to the weight

of evidence imposes a "heavy burden" upon the defendant.

Commonwealth v. Staton, 1998 WL 1297080 (Pa. C.P. 1998). A jury's

verdict will be overturned only when it is "so contrary to the evidence as to

shock one's sense of justice ... " Commonwealth v. Schwartz, 615 A.2d

13

350, 361 (Pa. Super. 1992). Of course, when addressing a weight of

evidence claim, it is not our role to substitute our credibility judgment for

that of the jury. "[Credibility decisions] is a function that is solely within

the province of the finder off act which is free to believe all, pa rt or none of

the evidence." Commonwealth v. Murray, 597 A. 2d 111, 114 (Pa. Super.

1991).

In this case, the Commonwealth has presented significant evidence

that is more than sufficient to establish the DEFENDANTS' guilt. Without

being inclusive, the evidence presented by the Commonwealth included the

following:

• Video evidence that both JONES and KINNARD were present at

VINNY'S on the evening of the homicide.

• Testimony from witnesses and through videotape that an

argument ensued between JONES, KINNARD and BRYAN that

resulted in the ejection of JONES and KINNARD from VINNY'S.

• Videotape evidence revealed that JONES left VINNY'S in a

highly agitated state.

• The video depicted that JONES and KINNARD left the club and

proceeded to a car. KIN NARD then was depicted coming back

to the entrance of VIN NY' S. A separate camera depicted

BRYAN being shot at or near the time when KINNARD walked

toward the entrance.

14

• The video depicted JONES and KINNARD leaving VINNY'S and

proceeding north on Route 343.

• A BMW vehicle was involved in a one car crash approximately

2 miles to the north of VINNY'S at or near the time when police

were called to the scene of a shooting at VINNY'S.

• The occupants of the vehicle fled from the scene of the crash.

• The BMW vehicle involved in the crash was registered to William

Kinnard, who is a relative of KINNARD. Numerous documents

were found in the vehicle that linked KINNARD to it. One

document that was pertaining to JONES was also found in the

vehicle.

• Blood from both JONES and KINNARD was found inside the

vehicle.

• A gun was located inside the vehicle. Ballistics testing I inked

this gun to bullets found in VINNY'S and inside the corpse of

BRYAN.

• Following the crash of the BMW vehicle, both KINNARD and

JONES left the geographic area. KINNARD went to Arizona.

• JONES provided a statement in which he acknowledged being

present at VINNY'S, he acknowledged being involved in an

argument with BRYAN and he acknowledged driving the BMW

vehicle away from VINNY'S. In his statement, JONES also

15

admitted that he left the scene of the crash and left the Lebanon

area following the shooting.

• KINNARD made statements to numerous people in which he

acknowledged that he was facing significant time in prison. One

of the conversations included a statement by KINNARD that he

would enter a plea of guilty if he received a plea bargain that

was to his liking.

All of the above information, when viewed in the light most favorable

to the Commonwealth, is sufficient to establish the guilt of both KINNARD

and JONES. Moreover, nothing about the juries' verdict shocks our

conscience. Therefore, the DEFENDANTS' arguments based upon

sufficiency and weight of the evidence must be and are rejected.

B. Severance (Jones & Kinnard)

Both KINNARD and JONES believe that they should have been tried

separate and apart from one another. In fact, the issue of severance is one

th at Kl N NARD 's counsel raised at practically every opportunity.

KINNARD's argument in favor of severance was predicated upon a

statement provided by JONES to Police that was read in part at trial.

Kl N NARD argued that th is statement "facially incriminated" him.

(KIN NAR D's brief at page 18) We disagree both factually and legally with

KINNARD'S argument.

16

From a factual perspective, we examined carefully the statement from

JONES that we permitted the jury to hear.1 Even had KINARD's name been

emblazoned in the statement, it would not have implicated him in the crime

of homicide. JONES never described any fight or argument between

KINNARD and the victim. JONES never stated that he saw a gun or heard

any shots. He denied knowing anything at all about the hornlcide. At no

time did JONES place KINNARD in possession of a gun and at no time did

JONES label KINNARD as the trigger man. The most that could be gleaned

about "the other guy" from the statement we allowed the jury to hear was

that he arrived and left with JONES on the night of the homicide. Numerous

other witnesses also placed KINNARD at the scene and KINNARD'S

attorney never attempted to challenge that his client was present. Under

such circumstances, we do not view the statement we permitted the jury to

hear as "facially incriminating" of KINNARD.2

From a legal perspective, KINNARD himself recognized: "The

Pennsylvania Supreme Court and the United States Supreme Court have

recognized that joint trials of co-defendants play a crucial role in the

1 This statement was marked "Final Draft 1-19-2017".

2 To be sure, had we adopted the Commonwealth's position that the entire thirty-seven

page transcript be read, except that the term "the other guy" should be used in place of

KINNARD, then the statement would have been much more incriminating toward "the

other guy", especially given the nature of the questions asked by Police Officers. As it

is, our paraphrasing of JONES' statement focused on JONES' own conduct, and not that

of his co-conspirators.

17

Criminal Justice System ... " (KINNARD's brief at page 17). The

Pennsylvania Rules of Criminal Procedure permit a joint trial where the

DEFENDANTS are alleged to have participated in the same criminal event.

Pa. R. Crim. P. 582. Our Supreme Court has declared that when conspiracy

is charged, a joint trial is "preferred". Commonwealth v. King, 721 A. 2d

763, 771(Pa. 1998). In fact, our Commonwealth's highest court has stated:

"The mere fact that there is hostility between defendants, or that one

may try to save himself at the expense of the other, is in itself not

sufficient grounds to require separate trials. In fact, it has been

asserted that the fact that defendants have conflicting versions of

what took place, or the extents to which they participated in it, is a

reason for rather than against a joint trial because the truth may be

more easily determined if all are tried together." Commonwealth v.

Birdsong, 24 A. 3d 319, 336 (Pa. 2001) (citations omitted).

With the above general rule having been acknowledged, we would be

remiss if we did not recognize that "a common problem [in a joint trial]

arises in situations where evidence is admissible against one co-defendant

but inadmissible against another." Commonwealth v. Travers, 768 A. 2d

845, 846 (Pa. 2001 ). In legal parlance, this problem has been referred to

as the "Bruton Dilemma" in recognition of the key case of Bruton v. United

States, 391 U.S. 123 (1968}.

Bruton involved an armed robbery of a post office. A postal inspector

testified that one of the co-co nsp irato rs orally confessed to him and

implicated his accomplice. In a joint trial conducted against both the

defend ant and the co-conspirator who confessed, the confession was

admitted. The United States Supreme Court reversed the conviction,

reasoning that "The introduction of [the co-conspirator's] confession posed

18

a substantial threat to Petitioner's right to confront the witnesses against

him, and this is a hazard we cannot ignore." Id at page 137.

Shortly after Bruton was decided, prosecutors attempted to avoid the

confrontation issue inherent in statements by co-conspirators by redacting

the name of the non-confessing defendant from the confession. The

efficacy of this practice made its way to the United States Supreme Court

in 1998. In Gray v. Maryland, 523 U.S. 18 5 (1998), our nation's highest

court declared that rep la cement of the non-confessing name with a neutral

pronoun such as "the other guy" was consistent with the Sixth Amendment

to the United States Constitution. However, the Court in Gray cautioned

that if a redacted statement "facially incriminates" the defendant, it could

still violate the Sixth Amendment.

Needless to say, Bruton and Gray spawned a literal library of

decisions about when and how a co-conspirator's confession can be

admitted in a joint trial. In the four decades that have transpired since

Bruton, practically every permutation of tacts pertaining to confessions of

co-defendants have been addressed by Courts across this country. In

Pennsylvania, the body of Bruton-spawned case law is about as mature as

it gets.

Our Commonwealth's highest court has repeatedly declared that when

a confession can be redacted so that it does not refer specifically to the

defendant and can retain its narrative integrity, the defendant's Sixth

Amendment right to confrontation is not violated. Commonwealth v.

19

Johnson, 378 A. 2d 859 (Pa. 1977); Commonwealth v. Wharton, 607 A.

2d 71 O; Commonwealth v. Lopez, 739 A. 2d 485 (Pa. 1999). As the

Commonwealth repeatedly argued during trial, redaction of a statement to

remove the defendant's name and refer to him merely as "the other guy" is

a practice that has been approved in our Commonwealth. Commonwealth

v. Travers, 768 A. 2d 845 (Pa. 2001 ). The mere fact that it would be

possible for the jury to speculate that the defendant was "the other guy" is

not enough to cause a violation of the Sixth Amendment. Commonwealth

v. Lopez, 739 A. 2d 485 (Pa. 1999).

In this case, the Commonwealth presented a thirty-seven (37) page

transcript from the recorded interview of Jared JONES. The Commonwealth

asked the Court to admit the statement verbatim with the exception of

redacting Mr. Kl N NARD' s name to insert "the other guy". Instead of

adopting this approach, we reviewed and summarized the statement of

Jared JONES and forwarded a copy of our work product to all counsel. The

Commonwealth consistently objected based upon the theory that the entire

statement should have been read with only Mr. KINNARD's name redacted.

Both KINNARD and JONES also objected because they found the Court's

paraphrasing of JONES' statement to be "misleading."

We considered the arguments set forth by all counsel. Letters were

written back and forth between counsel and the Court regarding the

contents of the statement. (See Gou rt Ord er of January 19, 2017 and

20

·.

attachments). From the beginning. we rejected the Commonwealth 's

request to read the entire statement.3 We also disagreed with some of the

arguments proffered by defense counsel, but we did modify what we had

initially prepared based upon other arguments presented. After proceeding

through several iterations of a Court approved statement, we ended up

sending a letter to counsel on January 19, 2017. In that letter we stated:

"At the risk of repeating myself, will not grant the

Commonwealth's request to simply insert "the other guy" in the

transcript whenever Mr. KINNARD's name is listed. I have reached

this decision for many reasons. The most important are:

(1)That much of the transcript reflects opinions of Police Officers in

the form of questions that were not adopted by Mr. JONES; and

(2) Simply inserting "the other guy" makes it too obvious that JONES

is speaking about KINNARD.

In reading Mr. Sidelnick's submission, it is obvious that what Mr.

KINNARD actually seeks is severance of his case from that of Mr.

JONES. I will not sever the two cases and allow both defendants to

point the finger at each other in absentia. It is my belief that if

separate trials were to be conducted, the truth of what occurred would

suffer. As noted above, I have employed paraphrase in an effort to

soften any link between Mr. JONES and Mr. Kl NNARD. I have done

my best to strike a balance between Mr. KINNARD's rights under

Bruton and the Commonwealth's legitimate desire to present the

essence of what Mr. JONES stated about his own conduct.

With respect to Mr. Ehrgood's comments, I find them to be largely

hyperbolic. I have read and re-read Mr. JONES' statement. I believe

that the latest draft of that statement captures the essence of what

Mr. JONES stated to Police Officers. Whenever possible, I used Mr.

JONES' own words. I do not believe that the document I drafted is

misleading.

3 There were numerous reasons for this decision. (See Court Order of January 19, 2017

and attachments.) One of the biggest reasons was the concern of the Court about the

nature of the questions asked by police that were not answered affirmatively by JONES;

the questions themselves implicated KINNARD in ways that JONES' responses did not.

21

I have heard it said by many Judges that "If everyone is unhappy,

that means the decision must be fair." In some ways, I adhere to that

precept as it relates to the statement of Jared JONES. Other than

modifying the language of the statement slightly, I stand by the

statement that I drafted. To the extent necessary, the objections

submitted by each of you are overruled." (Letter to counsel of January

19, 2017)

As is obvious, this Court expended considerable effort to strike a

balance between the Commonwealth's need to present Mr. JONES'

statement and the DEFENDANTS' stated concerns. In doing so, our goal

was to focus the statement upon JONES' own conduct without significant

emphasis upon what "the other guy" did or did not do. This task was

admittedly difficult, but after numerous iterations and consultation with all

counsel, we believe that the Final Draft dated January 19, 2017,

accomplished both goals.

In the opinion of this Court, the existence of JONES' statement cannot

and will not justify severance of a case that could result in mutual finger

pointing by defendants in separate trials. Had we severed the above-

referenced case, it would have been easy for KINNARD to point the finger

at JON ES and say ''He did it." In a separate trial, JONES could have taken

the stand and pointed to KINNARD as the trigger man. Without conclusive

video evidence and without the other defendant present to defend himself,

the truth of what occurred at VINNY'S could have been obscured. This ts

a result that this Court did not want to risk. By reaching this conclusion,

22

\

we did not err.4

C. Intoxication {Jones)

JONES argues that this Court erred by failing to instruct the jury on

the concept of Voluntary Intoxication. This is an issue that we address in

a fifteen page written opinion authored during trial on February 11, 2017.

To the extent necessary, we incorporate our February 11, 2017, opinion by

reference and rest based upon what we set forth in that opinion.

D. Handwriting Exemplars (Jones)

In his Post-Sentence Motion, JONES complains that the Court refused

his request to require that Kl NNARD provide handwriting exemplars. These

exemplars were requested because JONES wanted to introduce a letter

written by KINNARD that exculpated him. Frankly, we do not completely

understand JONES' complaint about this issue.

The issue of handwriting exemplars was first raised at a Pre-Trial

hearing _on December 19, 2016. At that time, counsel for JONES indicated

that he had hired a handwriting expert to authenticate a letter written by

KINNARD. He asked the Court to order that KINNARD prepare handwriting

exemplars. We did not immediately grant JONES' request because we were

4 Our Appellate Courts have declared that a harmless error analysis can apply in a

Bruton situation Given the non-accusatory nature of JONES' statement as it relates

to KINNARD, this case illustrates the concept that even if the Court erred, its error was

harmless because it did not impact the case presented by the Commonwealth against

KINNARD.

23

concerned about Kl N NARD's right against self-incrimination. ( 12-19-16

N.T. 20-21) During the course of conversation, we learned that the

handwriting expert could possibly produce an opinion based upon existing

documents disclosed during the course of discovery. We decided that an

attempt should be made to analyze handwriting via existing documentation

before a Court Order was entered to require action on the part of KINNARD.

The following exchange occurred:

"The Court: Okay. But before we undertake a coercive

requirement that Mr. Kinnard write out exemplars, I'm going to make

you exhaust your other options. Because if your expert can render

an opinion based upon those other letters that are not affected by any

taint whatsoever, I'm going to have her do that.

Mr. Ehrgood: That's understandable.

The Court: [If you} absolutely, positively must have the

exemplars, then I'll address it, and you may not get them. But before

we even go there, I want your expert to look at the resources that are

available right now without having to make Mr. Kinnard do anything

that could implicate himself.

Mr. Ehrgood: Understood. (12-19-16 N.T.23)"

We did not hear anything further about the handwriting expert until

the time of trial. Prior to the submission of her opinion to the jury, JONES'

expert, Sandra Miller-Raudabaugh (hereafter MILLER) was questioned

extensively about her opinion and the level of certainty that served at its

foundation. We advised the parties in advance: "In terms of her ultimate

opinion, whatever that ultimate opinion is has to be to a reasonable degree

of certainty. That is what your question has to be." (N.T. 458).

Unfortunately, we did not get an answer to that question. Therefore, after

24

extensive questioning by counsel, the Court excused the jury from the Court

Room and directly asked MILLER whether she could express an opinion

regarding the handwriting on the proffered letter "to a reasonable degree of

certainty". Because MILLER responded to this question in the affirmative,

this Court admitted the letter in evidence and permitted the jury to hear its

contents.

There are multiple reasons why JONES' argument regarding

handwriting exemplars must fail. First and foremost, we never reached a

final decision regarding JONES' request for exemplars. As highlighted in

the transcript, our decision on December 19 was to order JONES to explore

his other options. We clearly advised JONES' attorney that if he was

unsuccessful in obtaining an op inion from his expert, we would then "rev is it"

the issue. We never revisited the issue because counsel never asked us

to do so.

Even more important, the lack of handwriting exemplars ultimately

had no impact on the trial. The letter that triggered the request for

exemplars was ad'!litted at trial without the exemplars. Thus, the jury saw

and had the opportunity to consider the contents of the letter. This fact, by

itself, repudiates JONES' argument that our decision regarding handwriting

exemplars somehow requires a new trial.

25

E. Deferring Motion in Limine (Kinnard)

KINNARD proffers the creative but misplaced argument that this Court

erred by failing to immediately rule on his Motions in Limine. KINNARD

argued in his brief:

"Because the Trial Court deferred judgment and made no final

decisions regarding KlNNARD's Motions in Limine, defense counsel

was forced to give a very general opening statement with little to no

reference to facts because defense counsel did not know what

evidence would be deemed admissible at trial." (KINNARD's brief at

page 20)

The purpose of a Motion in Limine is two-fold: (1) to provide the Trial

Court with a pre-trial opportunity to weigh evidentiary objections; and (2) to

give the Trial Court the opportunity to prevent evidence from ever reaching

a jury that may prove to be so prejudicial that no instruction could cure the

harm to a defendant. See, e.g. Commonwealth v. Noll, 662 A. 2d 1123,

1125 (Pa. Super. 1995). No court is required to immediately rule on a

Motion in Limine. As our Superior Court has stated: "Although a Motion in

Li mine is generally made before trial, the Trial Court may elect to rule upon

the application at a later time." Commonwealth v. Metier, 634 A. 2d 228,

232 (N. 3) (Pa. Super. 1993 ). One Tri al Court has even declared "Plaintiff's

assertion that the Court erred in not adjudicating his Motion in Limine is

nonsense. A party does not have the right to pre-trial ruling upon legal

issues from the Trial Judge." Gillen v. Trovato, 14 Pa. D & C 5th 380 (2010).

When the admissib ilitv issue implicates a probative value versus

prejudicial effect analysis, our Commonwealth's highest court has

26

instructed that Trial Courts should wait until trial before deciding the issue.

In Commonwealth v. Hicks, 91 A. 3d 47, 52-53 (Pa. 2014), the Court

stated:

"Here, the Trial Court excluded proffered testimony pre-trial pursuant

to Rule 403, a rule that, as explained infra, is generally not

susceptible to accurate pre-trial evaluation. Unlike other Rules of

Evidence, rule 403 requires a Trial Court to weigh probative value and

prejudice - the cost and benefits of relevant evidence - reviewing it

as part of a whole and not in isolation. Inherent in the Rule is the

assumption that the Court has an adequate record, one that will mirror

or provide great insight into what will develop in trial. In the majority

of cases, and particularly manifested in this one, the Trial Court has

no way of knowing beforehand exactly what evidence will be

presented at trial. Depending on the case and the inevitable vagaries

of litigation, the pre-trial record may be entirely different than the

record that eventuates as matters unfold. Even if the evidence the

parties intend to present is set, a trial rarely follows the anticipated

script. The actual value of evidence may differ substantially from pre-

trial expectations, depending on all manner of factors, such as the

availability, appearance, memory or demeanor of a witness,

adrn iss ions on cross-examination, the defense theory, or the

defendant's decision whether or not to testify. Even a relatively

developed pre-trial record wi II be of limited utility in predicting the

probative value or prejudice a particular piece of evidence will

ultimately have. Therefore, the ruling is better deferred until the

situation is clear and not speculative." Id at page 52-53

In this case, KINNARD complains that we deferred decisions

regarding admissibility of JONES' handwriting expert, testimony of gang�

affiliation, and the Commonwealth's use of prison phone calls until the time

of trial. All of the above decision implicated a probative value versus

prejudicial effect analysis. In an opinion we authored regarding a Motion

in Umine on February 6, 2017, we wrote: "As we stated to both counsel

repeatedly, we do not have anything close to a perfect understanding of

what will be presented at this trial ... and we are not prescient." (Slip Opinion

27

at pages 8-9)5 With this in mind, we will address each of KINNARD's claims

pertaining to Motions in Limine.

1. Phone Calls

Of all the issues KINNARD believes we should have addressed prior

to trial, by far the most significant is the one involving the Commonwealth's

use of recorded phone calls from the Lebanon County Prison. With respect

to that issue, we authored a nine page written opinion prior to trial. While

KINNARD is correct that we deferred a final decision until we were able to

hear all of the evidence necessary for a probative value versus prejudicial

effect decision, KINNARD conveniently overlooks the fact that we conducted

extensive research and apprised the parties of the results of that research

before trial even began. In fact, our opinion of February 6, 2017, stated:

"We simply cannot and will not render a final decision regarding

admissibility of the Commonwealth's proffered telephone

conversations. However, we will communicate the following to all

parties:

( 1) The DEF ENDA NT's objections to the Comma nwea Ith' s proffer

based upon the plea bargain privilege and relevance are overruled.

(2) The Commonwealth will be directed to delay presentation of the

evidence regarding the intercepted prison telephone calls until the

end of its case in chief. At that time, we will conduct an argument

outside the presence of the jury regarding the probative value

versus prejudicial effect question.

5

Prior to trial, we were aware that video surveillance evidence existed of events on the

night of the homicide. However, we had not seen the video and did not know the detail

of what it depicted. Had clear video evidence existed that tled one or both of the

Defendants to the shooting that would have impacted our probative value versus

prejudicial effect analysis.

28

(3) lf we decide to admit the evidence proffered by the Commonwealth

we will afford the defense with broad latitude to educate the jury

regarding the plea agreement process, and the difficult decisions

that the process sometimes creates for defendants charged with

crimes.

(4) If the Commonwealth's evidence is admitted, we will carefully craft

instructions to the jury that outline how they can and cannot

consider the evidence contained in the telephone conversations.

Of course, we will solicit input from all counsel regarding these

instructions before they are offered." (Slip opinion at page 9)

Given that the phone call issue triggered a probative value vs. prejudicial

effect analysis, and given that the communicated our decisions about

relevance to privilege prior to trial, the Court did not err in how it addressed

the phone call issue.

2. Handwriting

With respect to the issue of JONES' handwriting expert, a discussion

commenced at a pre-trial proceeding on December 19, 2016. At that time,

JONES asked this Court to order KINNARD to provide handwriting

exemplars. In response, the following exchange occurred:

"The Court: What authority do I have to order a defendant to

provide handwriting exemplars to another defendant?

Mr. Ehrgood: I haven't - I researched that case law after

reviewing Mr. Sidelnick's motion. I haven't seen anything that says

that a defendant can't request those things. If I can subpoena

documents, if I can subpoena a person to bring documents into Court

and the Commonwealth could compel a defendant to provide a

handwriting sample, why couldn't another defense attorney?

The Court Because Mr. Kinnard has a constitutional right

against self-incrimination." (12 • 19-16 N. T. 2 0-21)

29

At the end of the discussion, the Court directed that original letters in the

possession of the D.A.'s office be provided to the DEFENDANT's expert.

The Court then stated:

"Before we undertake a coercive requirement that Mr. Kinnard write

out exemplars, l 'm going to make you exhaust your other options.

Because if your expert can render an opinion based upon those other

letters that are not affected by any taint whatsoever, I'm going to have

her do that." (12-19-16 N.T. 23)

We next encountered the handwriting issue when Kl NNARD filed a

Pre-Trial Notion. On January 20, 2017, we issued a Court Order which

read, in pertinent pa rt:

"A decision regarding the DEFENDANT's Motion to Exclude

Testimony of Sandra Miller Raudabaugh is deferred to trial as it

relates to the text of the letters marked as Q-1, Q-2 and Q-3. As it

relates to the signatures on Q-1, Q-2 and Q-3, the DEFENDANT's

Motion to Exclude Testimony of Sandra Miller Raudabaugh is denied.

In addition to the above, the Court finds DEFENDANT KINNARD's

challenge to the methodology employed by Sandra Miller Raudabaugh

to be somewhat disingenuous. By a prior proceeding, counsel for

JAR ED JON ES requested that Mr. Kl N NARD provide handwriting

exemplars to be used by Ms. Raud abaugh in her analysis. Counsel

for DEFENDANT KINNARD vehemently objected and stated that his

client could not be forced to provide handwriting exemplars. If in fact

DEFENDANT KINNARD has now changed his mind and is willing to

provide handwriting exemplars, we would direct that said exemplars

be provided immediately to Sandra Miller Raudabaugh. Providing

said exemplars would then eliminate the concerns raised by

DEFENDANT KINNARD in paragraphs 13 and 14 of his Motion."

(Court Order at pages 1-2)

This Court next met with counsel at a pre-trial proceeding on February 6,

2017. The handwriting issue was never discussed at this meeting. As far

as the Court knew, Kl NNARD could have provided handwriting exemplars

30

to MILLER and the entire issue raised in the Motion in Limine would then

have been obviated. Given this procedural posture, it would not have been

prudent for the Court to enter a pre-trial ruling regarding the handwriting

exemplars.

Eventually, the Court was required to conduct a hearing outside the

presence of the jury during the middle of trial that addressed MILLER's

opinions. It was not until this hearing occurred during trial that the Court

possessed pertinent information needed to render a final ruling. The

information disclosed by MILLER at the hearing during trial was not

available to the Court prior to trial, and it would not have been possible for

us to have rendered a decision based upon this information prior to trial.

Given the procedural posture of the handwriting issue, it would have been

neither appropriate nor possible for this Court to have entered any sort of

pre-trial ruling. s

3. Gang Affiliation

With respect to testimony of gang affiliation of the DE FEN DAN TS, this

Court entered an Order on January 20, 2017. As it related to gang

affiliation, the Order stated:

6

Following the December 19, 2016, pre-trial meeting with counsel, this Jurist embarked

upon a two-week mission trip to the country of Ecuador. The next time that the Court

met on the record with counsel was February 6, 20J7. Nothing was contained in the

record of that meeting regarding handwriting exemplars.

31

"A decision regarding DEFENDANT KINNARD's Motion to Preclude

Testimony regarding gang affiliation is deferred until the time of trial.

Without further context that can only be provided by testimony at trial,

this Court does not have enough information to ascertain whether Mr.

KINNARD's gang affiliation will or will not be relevant. Before the

Commonwealth seeks to produce evidence of Mr. KINNARD's gang

affiliation, it should approach the Bench so that the issue can be

discussed outside the presence of the jury." (Court Order at page 2)

At no time during trial did the Commonwealth seek to present information

regarding the DEFENDANTS' purported gang affiliation. Therefore, the

issue addressed in KINNARD's Motion in Limine was rendered moot.

Legally, there is no duty on the part of a court to render a pre-trial

ruling regarding Motions in Limine. Moreover, the factual evolution of this

particular trial would have rendered improvident the type of pre-trial rulings

that KINNARD now requests. With respect to the most important of the

Motions in Limine - the ones regarding the prison phone calls - KINNARD's

counsel had a written opinion by the Court that rejected his arguments

regarding relevance and the plea bargain privilege. The Court did its best

to treat all parties fairly and transparently as it relates to evidentiary

disputes. We did not abuse our discretion in the way we addressed those

issues.

F. Prison Phone Call Intercepts {Kinnard)

Considerable time was expended at trial to address the admissibility

of telephone conversations between KINNARD and friends that were

32

intercepted by staff at the Lebanon County Correction al Facility. 7 Five

separate issues have been raised by Kl NNARD regarding admissibility of

the intercepted phone calls:

(1)That the contents of the intercepted phone calls were not relevant;

(2) That the intercepted phone calls implicated the so-called plea

bargaining privilege;

(3) That the phone interception violated Pennsylvania's Wire Tap Act;

(4) That KINNARD's voice on the phone calls was not properly

authenticated; and

(5) That the probative value of the phone call information was

outweighed by its prejudicial effect.

( 1) Relevance

(2) Plea Bargain Privilege

The issues pertaining to relevance and the plea bargaining privilege

were addressed in an Opinion we authored on the first day of trial dated

February 6, 2017. We incorporate by reference what we wrote. Moreover,

7

Upon admission, every inmate at the Lebanon County Prison is told that all telephone

calls will be recorded and every inmate signs a statement fndicating awareness of that

fact. Before any telephone call is placed or received, a recording is played reminding

the inmate that the call will be recorded and is subject to monitoring. The efficacy of

this telephone monitoring practice has been approved by this Court and the

Pennsylvania Superior Court. See, e.g. Commonwealth v. Shayne Bechtel, No. 2011-

01670 (Tylwalk, PJ March 23, 2012)

33

we wish to provide some additional context to supplement what we wrote

on February 6, 2017.

As we promised in our February 6, 2017 Opinion, we afforded "broad

latitude" for the defense to educate the jury regarding the plea bargaining

process. KINNARD did just that by calling Christopher Coyle, Esquire, who

is one of the senior criminal defense lawyers in Lebanon County. Attorney

Coyle described the plea bargaining process for the jury and explained that

plea bargains afford a defendant with some assurance in terms of the

amount of time he would have to serve.

In addition, we afforded the jury with a specific instructlon regarding

the telephone calls in question. We stated:

"The second effect of consciousness of guilt the Commonwealth

has presented for your consideration involves the statement of Mr.

Kinnard to friends and family members during phone calls that were

intercepted by the prison. If you recall, Mr. Kinnard stated to

someone that he would accept a plea bargain in this case. He told

other family [members] to be prepared, that he would be facing a

lengthy period of incarceration.

The Commonwealth alleges that these statements are proof that

defendant Kinnard knew that he had done something wrong. The

Commonwealth alleges that Mr. Kinnard knew that he had been

involved in a homicide and there would be consequences to attach to

that homicide, and that is why he told family members that he was

interested in a plea bargain and that he was facing a considerable

number of years in prison.

On the other hand, the defendant argues to you that the

statements of Mr. Kinnard merely reflected the reality of the situation

confronting him. The defense points out that Mr. Kinnard was facing

various serious charges, including homicide, and that Mr. Kinnard

knew that these serious charges carried with them serious potential

penalties that could include life in prison.

34

The defense argued Mr. Kinnard was simply preparing his family

for the possibility that he would be away from them for many years.

To support this argument, the defense points out that Mr. Kinnard at

no time overtly admitted guilt during these conversations. He even

stated that it would serve justice if he won.

It is up to you and you alone to decide whether Mr. Kinnard's

statements to friends and family were in fact statements evidencing a

guilty conscious. Or whether they were statements made to family

members merely communicating the possibility of what could occur.

When you make these decisions, you must consider the content

of the statements themselves, and the context in which they were

uttered. You must also consider the testimony of Attorney Coyle, who

explained the plea bargaining process to you. You should consider

what he told you about how plea bargaining will often result in a

sentence of less than what the defendant would face if he went to trial

and lost. Because of this, people accused of crimes sometimes can

be tempted to accept a plea bargain as a sure thing instead of taking

their chances at trial and risking even harsher punishment.

These are all factors that you must consider in weighing Mr.

Kinnard's statements to his friends and family. Ultimately, you decide

whether or how Mr. Kinnard's statements should be considered." (N.T.

776-778.)

As is obvious from the above, the telephone calls presented by the

Commonwealth were not considered by the jury in a vacuum. The jury had

the benefit of detailed information from Attorney Coyle plus it had the

benefit of an instruction from the Court that outlined how the telephone

conversations could be considered by the jury. In light of everything we

articulated in our February 6, 2017 Opinion and considering everything that

occurred at trial thereafter, this Court did not err by allowing the jury to

hear KINNARD's telephone calls intercepted from the Lebanon County

Prison.

35

(3) Wire Tap Violations

KINNARD references somewhat in passing that the interception of his

telephone calls at the Lebanon County Prison violated Pennsylvania's Wire

Tapping and Electronic Surveillance Control Act. This is not an argument

that was focused upon at trial. Nevertheless, we will briefly address it.

Pennsylvania's Wiretapping and Electronic Surveillance Contra I Act

outlaws the intentional interception of a wire, electronic or oral

communication. 18 Pa. C.S.A. §5703(1 ). The purpose of Pennsylvania's

Wiretap Act is to protect private communications. Commonwealth v.

DeMarco, 578 A. 2d 942 (Pa. Super. 1960). An exception to the Act exists

when the parties to a conversation con sent to its interception. 18 Pa. C. S .A.

5704(2)(ii).

The question of whether a telephone conversation at a prison can be

lawfully recorded by police is one that has been addressed by the

Pennsylvania Supreme Court and by this Court. In Commonwealth v.

Baumhammers, 960 A. 2d 59 (Pa. 2008), our Commonwealth's highest

Court declared that when a defendant is notified that his telephone

con versa ti ons in prison cou Id be recorded, it is not unlawful for prison

officials to do just that and the subsequent recording of the conversation is

not subject to suppression.

In Commonwealth v. Shayne Bechtel, No. 201·1-01670 (Tylwalk, PJ

March 23, 2012), President Judge Tylwalk of this Court addressed the

36

lawfulness of intercepting telephone calls at the Lebanon County

Correctional Facility. In rejecting an argument by the defendant based upon

a so-called right to privacy, Judge Tylwalk wrote:

"Althouqh Bechtel raises the issue of a violation of his right to

privacy, we find no support tor his averment that he had an

expectation of privacy during his telephone calls placed from

LCCF. Exhibit # 1 clearly contains language putting inmates,

and in this case specifically, Bechtel, on notice that all

telephone calls are subject to possible monitoring and

recording. (Exhibit #1 ). In addition, at the beginning of each

call, as recorded on Exhibit #3, there is an oral admonishment

"This call may be monitored or recorded." In light of these facts,

we believe that it is disingenuous to argue that an inmate has

an expectation of privacy during telephone calls placed from

LCCF ... where there is both written notice provided to an inmate

and a computer generated message on the telephone itself

audible to both the inmate and the call's recipient, there exists

[no] expectation of privacy and no violation of Pennsylvania's

Wiretap Act."

In this case, Michael Stuckey of the Lebanon County Correctional

Facility testified in a Pre-Trial hearing conducted on the morning of the first

day of trial. Mr. Stuckey testified that he managed the prison phone system.

(N. T. 4). He testified that all inmates are advised when they enter LCC F

that their phone calls and visits will be monitored and recorded and that

each inmate signs a statement verifying his/her awareness of this policy.

(February 6, 2017 N.T. 4) Mr. Stuckey provided a copy of a document

signed by KINNARD indicating "I understand and agree that telephone calls

and visitation calls are subject to monitoring, recording and may be

37

intercepted or divulged." (February 6, 2017 N.T. 5-6)8 Clearly, any

argument made by KINNARD based upon the Wiretap Act must be rejected.

KINNARD was advised by the prison that his telephone calls and his

telephone visitations would all be recorded. He therefore had no

expectation of privacy. His argument based upon the Wiretap Act will

therefore be rejected.

(4) Voice Identification

At Trial, the Commonwealth proposed to authenticate KINNARD's

voice through the testimony of two police officers. We conducted a hearing

outside the presence of the jury to dig deeper into the voice identification.

Sergeant Jonathan Hess testified that he was one of the officers that

transported KINNARD from the location of his arrest in Arizona to

Pennsylvania. {N.T. 347). Sergeant Hess had numerous conversations

with KINNARD during this time. (N.T. 348). However, the transport

conducted by Sergeant Hess occurred approximately one year before he

listened to the intercepted telephone conversation and Sergeant Hess

acknowledged that he did not speak with KINNARD during the intervening

time period. Moreover, when Sergeant Hess was asked whether there was

8

The focus of Mr. Stuckey's testimony was upon the interception of one of KINNARD's

c o nver sations with a visitor at the Prison via the Prison visitor phone system. Mr.

Stuckey stated that "As soon as the inmate and the visitors pick up the phone, the first

thing that comes over the phones is the call will be monitored and recorded." (February

6, 2017N.T. 8). We are aware from prior proceedings that this identical admonition is

played whenever a telephone call is placed from the prison to an outside telephone line.

38

anything unusual about KINNARD's voice, he stated simply: "The thing that

sticks out to me in my mind is he's a large man. I would expect a deeper

voice out of a large man. His voice was a little bit of a higher pitch that I

would have expected from him." (N.T. 352-353). We held that Sergeant

Hess' testimony was not sufficient to authenticate KINNARD's voice on the

recorded telephone call.

The Commonwealth also presented Detective Keith Uhrich. Detective

Uhrich testified that during the course of his investigation, he listened to

150 telephone calls that were intercepted from KINNARD while he ws an

inmate at the Lebanon County Prison. (N.T. 354). Detective Uhrich stated

that some of these telephone calls were twenty minutes in length. (N.T.

363) and that he listened to KINNARD's telephone calls "for a long period

of time" extending up to one week before the date of trial. (N. T. 356).

Detective Uhrich also stated that KINNARD repeatedly prefaced many of

his remarks with the phrase "Do you understand what I'm sayln'?" Detective

Uhrich stated that during the conversation the Commonwealth sought to

admit, KINNARD's voice sounded identical with the voice he heard 150

times previously and KINNARD used the phrase "Do you understand what

I'm sa yin'?". We concluded based upon all of the above information that

Detective Uhrich 's knowledge of KIN NARD' s voice was significantly better

than was Sergeant Hess and we permitted Detective Uhrich to testify about

his identification of KINNARD's voice.

39

"It is well settled that a witness may make an identification by voice

alone." _Commonwealth v. Miller, 560 A. 2d 229 (Pa. Super. 1989). The

Court of Common Pleas of Lehigh County recently addressed a case similar

to this one where voice identification was proffered through a police officer.

In Commonwealth v. Ramos, 3 Pa. O & C 5th 514 (2008), the Court stated:

"The identity of a speaker on an audiotape may be identified by a

person who recognizes the voice on the tape recording as belonging

to a certain individual. In order to accomplish the identification in this

manner the Commonwealth must lay a foundation that the witness has

a basis for familiarity with the voice he is identifying. See, Pa. R. Ev.

901 (b)(5). See, Commonwealth v. Carpenter, 372 A. 2d 806 (Pa.

1977) (Identification by acquaintance who then passed receiver to

officer); See also, U.S. v. McCartney, 264 F. 2d 628 {71h Cir. 1959)

(Police officer can identify voice after hearing voice several times

over the telephone and talking to defendant once in person). Here,

Officer Cruz can identify the voice of the defendant on the tape

because he has heard the voice of the defendant on several

occasions. Officer Cruz overheard the defendant speak with the

confidential informant on June 20, 2006, he reviewed the tape

recording of the conversations between the defendant on the

confidential informant on several occasions and he spoke with the

defendant for thirty to forty minutes at the police station on October

11, 2006. In addition, Officer Cruz has listened to approximately

twenty telephone conversations involving the defendant from prison.

Each of these prison telephone conversations were about fifteen

minutes in length. These experiences give Officer Cruz the requisite

familiarity with the defendant's voice to offer identification testimony

at trial.

It is noteworthy th at other courts have permitted voice

identification testimony even in cases where the identifying witness

had only a very brief conversation with the accused. See, U.S. v,

Vento, 533 F. 2d 838, 864-6 5 (3rd. Cir. 1976). The frequency of the

contact between the witness and the defendant goes to the weight of

the evidence not to its admissibility. Hence, it is the province of the

jury to decide whether Officer Cruz's prior interactions with the

defendant are a sufficient basis to identify the defendant's voice." Id

at page 521.

40

The voice identification in this case by Detective Uhrich clearly meets

the standard articulated in Ramos. Accordingly, this Court did not err by

allowing Detective Uhrich to identify K/NNARD's voice.

(5.) Probative Value vs. Prejudicial Effect

Pennsylvania Rules of Evidence contains an omnibus provision

authorizing Trial Courts to employ a probative value vs. prejudicial effect

analysis with respect to controversial evidence. See, Pa. R. Ev. 403. When

an objection under Rule 403 is proffered, Trial Courts are required to

conduct a "cost and benefit" analysis that considers the entirely of the

record. Commonwealth v. Hicks, 91 A. 3d 47 (Pa. 2014).

In this case, we authored an Opinion of February 6, 2017, regarding

the Commonwealth's desire to introduce conversations from KINNARD that

were intercepted while he was an inmate at the Lebanon County

Correctional Facility. We specifically deferred a probative value vs.

prejudicial effect ruling until the time of trial. Once the Commonwealth had

presented most of its evidence, we heard argument from counsel regarding

KINNARD's Rule 403 objection. Specifically, KINNARD raised the following

allegations of prejudice:

• Possible confusion of the jury. (N.T. 370)

• Allowing the jury to hear evidence of punishment, which is ordinarily

not admissible. (N.T. 370)

41

• What KINNARD was actually communicating in the intercepted calls

was that he understood the reality of his situation; the calls were not

confessions. (N.T. 371).

Following argument by the Commonwealth, the Court rendered a decision

that allowed the tape recorded evidence to be heard by the jury. In

rendering this decision, the Court stated:

"This is not a case where we have an eyewitness - even - I take

that back. I am not going to say that. I want to say this correctly.

There were a whole bunch of eyewitnesses. But there is not anyone

who has come forward to say what they saw or that they were in a

position to see anything in terms of who shot the gun.

We don't have any eyewitnesses come in here and said, Richard

Kinnard was the shooter. The videotapes are helpful, but none of

them show the actual shooter. None of them show the gun actually

in the hands of anyone.

So what we have here is largely a case of circumstantial

evidence. In that context, I think the jury should have as many pieces

of the puzzle as they possibly can have. So I am under the

circumstances inclined to admit this evidence and allow both of you

to argue its import and its weight to the jury." (N.T. 376)

To supplement what we articulated at Trial, we will today respond to

the three specific arguments of prejudice outlined by KINNARD. Our

response is as follows:

• We do not perceive a risk of significant confusion based upon

the contents of the telephone calls. While we understand that

plea bargaining is often misunderstood by lay people, the risk

of that occurring in this case is minimal because we permitted

KINNARD to call Attorney Coyle as a witness to describe the

42

plea bargaining process and the difficult decisions that

defendants must make once a plea bargain is offered. To the

extent that the telephone calls could have created confusion,

that confusion was cert a inly ameliorated or eliminated

altogether by the testimony of Attorney Coyle.

• With respect to punishment, we do not believe that the contents

of Kl N NARD's telephone call informed the jury of anything it

already did not know. The jury knew that it was deciding a

homicide. Every citizen knows that homicide carries with it

serious consequences. Jurors likely recognized that life in

prison was among the possible consequences for a homicide.

• KINNARD's final argument of prejudice focuses upon his intent

that formed the foundation for his statements. The

Commonwealth argued that KINNARD's statements evidenced

his consciousness of guilt. KINNARD alleged that they simply

reflected an understanding of the reality of what was confronting

him. Ultimately, it was the juries' job to decide how to interpret

and weigh the information contained in the telephone calls. We

afforded the jury with an extensive instruction to assist it in

making this decision (N.T. 776-778). With this instruction, we

are confident that the jury could discern how and to what extent

the intercepted calls should or should not be considered.

43

Generally speaking, a Trial Judge is vested with broad authority to

weigh tile probative value and prejudicial effect of proffered evidence. See,

Commonwealth v. Hoover, 107 A. 3d 723 (Pa. 2014). Appellate Courts

may reverse an evidentiary ruling only when the Trial Court has "abused its

discretion". Commonwealth v, Laird, 988 A. 2d 618 (Pa. 2010). "A

determination that a Trial Court abused its discretion in making an

evidentiary ruling 'may not be made merely because an Appellate Court

might have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous."' Commonwealth v. Hoover, Supra.

at page 610, quoting Commonwealth v. Sherwood, 982 A. 2d 483 (Pa.

2009).

In the context of Rule 403, it is incumbent upon the Court to remember

that fill evidence presented by the prosecution is intended to be prejudicial

to the defense. bur Appellate Courts have often stated "Evidence will not

be prohibited merely because it is harmful to the defendant."

Commonwealth v. Dillon, 925 A. 2d 131, 141 (Pa. 2007). Rather, our

Commonwealth's highest court has described an analysis under Pa. R. Ev.

404(b) as follows:

"The probative value of the evidence might be outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the

jury, undue delay, pointlessness of presentation, or unnecessary

presentation of cumulative evidence. Pa. R. Ev. 403. The comment

to Pa. R. Ev. 403 instructs that: 'Unfair prejudice means a tendency

to suggest decision on an improper basis or to divert the jury's

attention away from its duty of weighing the evidence impartially.' Pa.

44

R. Ev. 403 comment. Additionally, when weighing the potential for

prejudice, a Trial Court may consider how a cautionary instruction

might ameliorate the prejudicial effect of the proffered evidence. Pa.

R. Ev. 404(b) comment. .. " Id at page 141

In this case, the Court undertook its duty to weigh probative value

and prejudicial effect of the intercepted telephone calls. We ruled in favor

of giving the jury "all available pieces of the puzzle" so that it could make

a decision as fair as possible under the circumstances. By so ruling, this

Court did not err.

G. Handwriting Authentication (Kinnard}

As part of his defense, JONES proffered an exculpatory letter that he

alleged was written by KINNARD. Both KINNARD and the Commonwealth

objected to the authenticity of this letter. Because of this, JONES hired

MILLER. Prior to trial, MILLER was given numerous documents known to

have been written by KINNARD9. She stated in a report that she could

positively declare that the signature on the exculpatory letter was that of

KINNARD. She also stated that there was a "strong probability" that the

rest of the letter was also written by KINNARD. Both the Commonwealth

and KINNARD objected to JONES' effort to authenticate the exculpatory

letter based upon MILLER's testimony.

9 The letters known to have been written by KINNARD included a letter identified by the

mother of one of KINNARD's children (N.T. 460-461) and numerous records from the

Lebanon County Prison. (N. T. 465,46 7-468,470-4 71 ).

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Before the exculpatory letter was admitted, the parties questioned

MIL LE R extensively about her analysis and opinion. (N. T. 4 73-515 ).

Unfortunately, MILLER refused to be tied down regarding the nature of her

opinion. After about one and one-half hours of dealing with the handwriting

authentication issue, the Court excused the jury from the Court Room and

cut to the proverbial chase by asking outside the presence of the jury:

"Q. Do you have an opinion to a reasonable degree of certainty as

to whether the totality based on everything that you've looked at

whether the author of the Q document was the author of the K

document?

A. I do.

Q. What is that opinion?

A. The K-1 writer did write it." (N.T. 522).

Following this affirmation by MILLER that her opinion was rendered to a

reasonable degree of certainty, the Court issued the following ruling:

"I will allow her to give that opinion in that way ... if you guys want to

parse words and go in and dig deeper, you can parse words and dig

deeper. The jury will determine the weight. .. I am going to rule that it

[the letter] is authentic. There is no objection as to its substance. So

it can be read. When we come back after a break, it can be read to

the jury after she renders her opinion as she has just done." (N. T.

522-523)

In order to admit any document, the moving party must prove its

authentication. The bar for establishing authentication is not difficult to

hurdle; 'To satisfy the requirement of authenticating or identifying an item

of evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is." Pa. R. Ev. 901 (a).

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Our Superior Court has stated that "The ultimate determination of

authenticity is for the jury. A proponent of a document need only present

a prima facie case of some evidence of genuineness I order to put the issue

of authenticity before the tact finders." Commonwealth v. Brooks, 508 A.

2d 316, 320 (Pa. Super. 1986). The Court in Brooks also stated:

"A document may be authenticated by direct proof, such as the

testimony of a witness who saw the author sign the document.

acknowledgment of execution by the signer, admission of authenticity

by an adverse party, or proof that the document or its signature is in

the purported author's handwriting." Id at page 318

Absent a clear abuse of discretion, a trial court's decision regarding

authenticity will not be disturbed on appeal. Commonwealth v. Davies,

811 A. 2d 600 (Pa. Super 2002).

With respect to a handwritten document, the style of an author's

handwriting can be used to authenticate the document. Experts familiar

with handwriting analysis can provide testimony to establish such

authentication. The standard is whether the expert can identify the author's

handwriting "to a reasonable degree· of certainty". See Pa. R. Ev. 702.

In tnis case, MILLER was asked by the parties about her analysis of

KINNARD's signature as well as the handwritten narrative. She was

definitively able to identify Kl N NARD' s signature on the exculpatory letter.

With respect to the remaining narrative, she simply stated that there was a

"strong probability" that Kl N NARD wrote that narrative. After a II counsel

repeatedly asked questions a bout the strength of MIL LE R's opinion, the

Court noted that counsel would not ask and/or MILLER would not answer

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the question of whether she would opine to a reasonable degree of certainty

whether the letter read as a whole (signature and narrative) was written by

KINNARD. Therefore, at a time when the jury was not in the Court Room.

the Court specifically asked this critical question. In response, MILLER

stated that she could opine that the exculpatory letter was written by

KINNARD "to a reasonable degree of certainty". Accordingly, we declared

the letter to be authentic and admitted it. By doing so, we did not err.

H. Identification using JNET photo (Kinnard)

In his brief. Kl N NARD proffers a one paragraph argument that the

Court erred by permitting Detective Keith Uhrich to testify that he identified

KINNARD by using a JNET photo. The implication of KINNARD's argument

is that the jury would realize from context that KINNARD had a prior criminal

record. Kl N NARD argues that this record shou Id not have been made

known to the jury.

We have reviewed the totality of Detective Uhrich's testimony at trial.

At no point did Detective Uhrich reference a photograph of KINNARD from

JNET. In fact, all Detective Uhrich stated to the jury is that he was able to

identify numerous people during the course of his investigation. He

mentioned "Jose LeBron, Jocelyn Colon, Joseph Guzman, Michael Rivera,

lovanni Estrada, Rose Acevedo, Richard Kinnard, Jared Jones and Jose

Rivera." (N.T. 323). He did not link any of these individuals to a photo from

JNET. Given this context, we will not spend any more time addressing

KINNARD's JNET photo issue than he did in raising it.

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IV. CONCLUSION

We freely acknowledge that this case was a challenge to try. Ari

counsel involved were capable and passionate about their respective

positions. Whenever an issue could be raised, it invariably was. Some of

these issues required us to conduct hours of research at night and during

weekends during trial. .. and one of these issues even required us to analyze

decisional precedent from as far away as California.

As much as this case presented a challenge, we are confident that in

the end, this Court was able to reach decisions that' enabled the jury to

fairly assess all available and legally permissible information. The jury

obviously considered all of this information and concluded that both

KINNARD and JONES were responsible for the murder of Corey Bryan.

Nothing that has been presented to us via Post-Sentence Motions has

caused us to second guess the decision of the jury, or any of our rulings

during Trial. We therefore deny all of the Post-Sentence Motions submitted

by the defense.

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