Com. v. Frierson, K.

J-A11022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KNOWLEDGE DANTE FRIERSON :

:

Appellant : No. 1241 MDA 2018

Appeal from the Judgment of Sentence Entered February 20, 2018

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

No(s): CP-41-CR-0001063-2016

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED JULY 31, 2019

Appellant, Knowledge Dante Frierson, appeals from the judgment of

sentence entered on February 20, 2018, following his jury trial convictions for

third-degree murder, aggravated assault (attempt to cause serious bodily

injury), aggravated assault (attempt to cause serious bodily injury with a

deadly weapon), possession of an instrument of crime, tampering with

physical evidence, and related firearm offenses.1 We affirm.

The trial court set forth the facts of this case as follows:

On October 13, 2015, at approximately 9:00 p.m., Keith Freeman,

Jr. (Freeman) was in his home [on Brandon Avenue in Lycoming

County] with his children. His girlfriend, Katrina Washington

(Washington), was at work. Freeman testified that his son told

Freeman that someone was at the door. Freeman did not open

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1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2702(a)(4), 907, and 4910,

respectively. At a separate bench trial following the jury trial, the trial court

also found Appellant guilty of persons not to possess a firearm and carrying a

firearm without a license. 18 Pa.C.S.A. §§ 6105 and 6106, respectively.

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the door, but he saw an individual [(Appellant)] on the front porch

[whom] he did not recognize. [Appellant] asked for a person

whose name Freeman also did not recognize. Freeman told

[Appellant] he had the wrong house, and [Appellant] walked

[away in a westerly direction].

Freeman testified that [Appellant’s] demeanor made him nervous

because [Appellant] did not look him in the eye and had his hands

in [the pockets] of his [hooded sweatshirt]. After [Appellant] left,

Freeman decided he did not want Washington to walk home from

work. Freeman called his mother and aunt and asked one of them

to pick up Washington. His aunt, Carolyn Barr (Barr), said that

she would pick up Washington. Freeman called Washington and

told her Barr would pick her up after work.

[Appellant] knocked on the door again, and Freeman told him

again that he had the wrong address. Freeman testified that

[Appellant] insisted that he had the right address and that

someone sent him. Freeman also testified that after the second

encounter, he ran upstairs and got his gun.

When Barr and Washington arrived at the house, they noticed

[Appellant] was waiting around outside the house and was staring

at them. Freeman testified that he also called his friend Tyson

Bolden (Bolden). Bolden came to Freeman’s house shortly after

Washington and Barr arrived, and Freeman believed Bolden

brought a handgun with him.

Freeman, Washington, Barr, and Bolden discussed the situation in

the house. When the time came for Barr to leave, Freeman and

Bolden decided to walk Barr back to her car. As they were walking

down the steps of the house, Freeman testified that Barr screamed

his nickname, Dump, and suddenly he and [Appellant] were face

to face. Washington, who was inside the house, also testified that

she heard Barr scream[, “]Dump[,”] followed by gunshots.

Freeman and [Appellant] struggled over [Appellant’s] gun as they

fell to the ground near the bottom of the steps, and a shot went

off. Freeman testified that he jumped off of [Appellant] and that

[Appellant] shot again. [Appellant] and Freeman then exchanged

gunfire as Freeman backed away east [] and [Appellant] headed

west []. Freeman testified that he fired about three or four shots,

and he thought [Appellant] fired about six shots. Freeman

testified that he threw his weapon into the bushes and that he saw

[Appellant] limping in an unnamed alley after the shooting

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stopped. At some point during the gunfire exchange, a bullet

struck Barr in the torso and she died soon after. Dr. Michael

Johnson (Johnson), the forensic pathologist who performed Barr’s

autopsy testified that the cause of Barr’s death was a single

gunshot wound to her abdomen. Johnson concluded that the

manner of her death was homicide.

Multiple eyewitnesses testified to the events that occurred on

October 13, 2015. Robert Smith lived on [] Cherry Street, just

around the corner from [] Brandon Avenue. At approximately

9:30 p.m. he heard between 10-12 gunshots. Smith testified that

there were one or two gunshots at first, followed by a brief pause

and then more gunshots after that, [which he described as being]

“almost like a panic fire.” He believed that the gunfire sounded

like it was coming from [two] different guns, one smaller caliber

and one slightly larger caliber. After calling 911, Smith testified

that he heard a male voice yelling for help that sounded like it was

coming from [Freeman’s street].

Kathleen Mitsdarfer (Mitsdarfer), lived [on Freeman’s street]. She

testified that she was awakened by the sound of gunfire, heard

three shots followed by a pause and then a few more. She said

the shots were coming from the west and that she looked out her

bedroom window and saw a man with a silver gun in his right hand

walking backwards in front of her house. Mitsdarfer testified that

the man did not fire the gun while she was watching, and that he

was walking quickly to the east down the middle of the street.

Theresa Bower (Bower) lived [on Freeman’s street] close to where

the unnamed alley [was located]. She testified that she heard

gunshots and a woman screaming which caused her to look

outside. Bower testified that she saw a man running down the

alley with a gun and that he was limping.

Drew Barasky (Barasky) was living [on Freeman’s street] at the

time, and around 9:30 p.m. that night he heard gunshots. He

then saw someone limping in the alleyway as if they were hurt,

and shortly after that he heard someone screaming for help at the

side of his house. In June 2016, Barasky and [Appellant] were

both housed in the same block of the Lycoming County prison.

Barasky testified that he and [Appellant] had a brief conversation

regarding the night of the shooting. Barasky mentioned to

[Appellant] that he lived in the area [] where the shooting

occurred, and testified that [Appellant] told Barasky that

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[Appellant] “got rid of the thing in the alley,” which Barasky

understood to mean the gun.

A few months after the shooting, Bruce Huffman (Huffman)

discovered a bullet hole in a post on his back porch. Huffman lives

[in the neighborhood], and can see [Freeman’s Brandon Avenue

residence] from his back porch. Huffman testified that the hole

was on the east side of the post, and that there was a dent or

small protrusion pushing out to the west side. He also testified

that he had not heard any gunshots since the night of the shooting

before he found the bullet in his porch.

At 9:30 p.m. on October 13, 2015[,] Officer Eric Houseknecht

(Houseknecht) was dispatched to [Freeman’s street] for shots

fired and a victim on scene. Houseknecht was the first unit to

arrive at the scene and he testified that he found Barr barely

conscious and lying on the ground in front of [the subject

residence] and Washington was crying on the porch. Officer

Jordan Stoltzfus (Stoltzfus) also arrived to clear people from the

scene. Stoltzfus was told that someone was crying for help behind

a nearby residence, and he found [Appellant] lying on the ground

with a gunshot wound. Stoltzfus testified that he collected two

pairs of pants from [Appellant] that had been cut off by

[Emergency Medical Services (EMS)] and that there was blood on

the pants.

Officer Derrick Cummings (Cummings) was also called to the

scene to perform a gunshot residue (GSR) kit on [Appellant]. He

testified that he went to the ambulance to use a scanning

electronic microscopy kit (SEMS) on [Appellant] to check for

gunpowder residue. Cummings testified that the kit looks for

residue on the hands, which would be left behind if someone

shoots a weapon. Cummings received SEMS training at the

[P]olice [A]cademy, and testified that any type of fluid or blood

can cause a negative result on the test. He also stated that the

hands that are being tested should not touch anything, such as

clothing, because it could remove some of the residue. Cummings

testified that after swabbing both [of Appellant’s] hands, he placed

the swabs into the kit and sealed it. He confirmed that a proper

chain of custody was maintained and the kits are kept in a secure

location.

Officer Joseph Ananea (Ananea) processed the crime scene []. He

testified that he marked various items of interest as he did a

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walk-through of the scene. Because the outside crime scene

involved a shooting, he especially looked for ballistic evidence

such as shell casings, bullets and bullet fragments, as well as

blood. He testified that in addition to fresh pools of blood on

Brandon Avenue, he found a pool of blood in the gravel stones

where [Appellant] was found lying in the alleyway. Along the

alleyway, Ananea testified that there were drag marks and

disturbances in the gravel, as well as more blood in the stones

and bloody leaves. At the end of the bloody trial, Ananea found a

handgun in the alley next to a chain link fence. Ananea collected

blood samples, the handgun, and took photographic evidence of

the crime scene. He testified that he did not find any bullets or

casings that night, and that revolver style guns do not eject

casings, unlike semi-automatic weapons which do.

A few days later, Ananea was informed that there was a possible

bullet strike on a tree [near the crime scene]. Ananea testified

that he saw a fresh bullet strike on the eastern side of the tree

and found tiny metal fragments imbedded into the tree. The tree

was cut down in order to extract the bullet.

Lieutenant Arnold Duck (Duck) also processed the crime scene

with Officer Ananea. Duck made a map of the scene after the

walk-through and diagrammed where evidence was collected and

the markers were placed. Duck also took measurements to be

used for reconstructing the crime scene. Duck testified that the

handgun recovered from the alleyway was a Ruger revolver. All

[six] rounds had been fired, with all of the casings still intact but

no bullets in the gun. Duck also testified that there was a lot of

blood on the gun, mostly on the metal portion around the trigger

and the barrel but barely any blood on the grip itself. He testified

that he swabbed the gun for blood and DNA evidence, and that he

could not find any fingerprints on the gun.

Duck called Agent Trent Peacock (Peacock) and advised him that

there had been a shooting. Duck also told Peacock that there

were two victims, one already deceased and the other seriously

injured in the hospital. Peacock testified that he drove straight to

the scene and met with Houseknecht and Stoltzfus. He then

proceeded to the hospital, where he came into contact with

[Appellant]. […] He testified that [Appellant’s] hands had been

bagged to protect any residue or other evidence that was on the

hands. Peacock also testified that immediately after the bags

were removed, [Appellant] stuck his hands under his hospital

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gown and wiped them. Peacock asked him to stop and [Appellant]

replied that his groin itched. Peacock asked [Appellant] if he had

handled a gun, and [Appellant] responded that he did not want to

talk to Peacock any longer. After [a] SEMS kit was completed,

Peacock delivered it to R.J. Lee Group for analysis.

Peacock testified that the investigators found that [a] resident

[on] Brandon Avenue, Shawn Silvis, had video cameras on the

front of his house, and that he was able to recover a videotape of

the events of that night. When Peacock reviewed the video, he

saw that there was a person walking backward[s] down the street

to the east with a gun. He later identified the individual as

Freeman, and Freeman initially denied that he had a gun. Freeman

later admitted to having a gun and told Peacock that he discarded

the weapon in some bushes [near the scene].

Peacock also obtained a one-foot cut section of the tree in front of

[the subject residence] that contained the embedded bullet. He

testified that he and Duck and Ananea were able to extract a

mushroomed bullet from the tree section and sent it to the

ballistics lab. He also met with Huffman to observe the bullet hole

in Huffman’s porch post. He saw that the bullet had entered from

the east side and dented the west side, and Peacock extracted the

bullet from the porch post. He testified that he believed that the

bullets found in the tree and the porch were from Freeman’s gun

because both bullets entered on the east side and were heading

west and Freeman was heading east while firing at [Appellant],

who was going west.

Peacock testified that after [investigators] evaluated the

preliminary evidence and determined that [Appellant] was a

suspect, Peacock and Agent Kontz conducted a recorded interview

of [Appellant at the Williamsport Police Station]. Peacock testified

that [Appellant] was read his Miranda[2] rights and that

[Appellant] did not appear to be under the influence of alcohol or

any substance, and that [Appellant] appeared to understand the

questions regarding his rights. Peacock also testified that no

promises were made to [Appellant] in exchange for his statement,

and that [Appellant’s] statement was voluntarily and freely given.

____________________________________________

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

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Peacock also testified that he and Agent Kontz took [Appellant]

into custody and transported him from Harrisburg to Williamsport

on the same day they interviewed [Appellant]. He testified that

he did not discuss the charges with [Appellant] prior to the

interview, that while he was taking [Appellant] into custody [he]

only told [Appellant] that his arrest [] stemm[ed] from the

shooting in which [Appellant] was injured, and that neither he nor

Agent Kontz interviewed [Appellant] while he was being

transported.

Veronica Miller (Miller), a forensic scientist at the Greensburg

Regional Laboratory, performed a DNA analysis. She testified that

she matched [Appellant’s] DNA profile to the DNA samples she

extracted from the blood stains on the Ruger revolver, the leaves

and stones from the alleyway, and the rear steps of [the subject

residence]. Miller was unable to perform a full analysis on the

sample from the grip of the gun due to the complexity of the

mixture.

Stephanie Hrico (Hrico), an employee of R.J. Lee Group’s forensic

science department, performed the GSR analysis. She testified

that she has undergone SEMS and GSR analysis training. Hrico

explained that in order for her to determine that a particle is highly

specific to the discharge of a firearm, the particle has to have the

correct chemical elements and the proper morphology. She

testified that the three elements that make up gunshot residue

are lead, barium, and antimony, and that the particle should be

round or smooth-edged due to the intense heat from the discharge

of the firearm. Hrico further explained that if a particle has all

three chemical components, then that three-component particle

is considered to be characteristic of gunshot residue. She testified

that firing a weapon can also create two and one-particle

[samples] as well, although those particles could come from other

sources.

Hrico used a scanning electron microscope to determine what

chemical elements were present and to see the actual shape of

the particles. The kits she received contained samples from

[Appellant’s] left and right palms, and the backs of his left and

right hands. Hrico testified that on the back of [Appellant’s] right

hand, she found one three-component particle that was

characteristic of gunshot residue. She also found two and

one-component particles in all [four] locations of [Appellant’s]

hands. She also testified that there are many factors that could

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remove residue from the hands, such as hand washing, running,

wiping hands off, adverse weather, and bodily fluids such as blood

and sweat.

Sergeant Elwood Spencer (Spencer), a Pennsylvania State Police

Trooper assigned to the Bureau of Forensic Services as a firearm

and tool mark examiner, provided the ballistics analysis. He

identified the handgun recovered from the alley as a Ruger

Security 6 .357 magnum caliber revolver. He testified that the

weapon was functional and had a routine trigger pull. Spencer

also testified that he recovered two discharged and mutilated

bullets, one from the tree and one from the porch post. He

concluded that the two bullets were fired from the same weapon,

but was unable to determine if they were fired from the Ruger

revolver or a different gun. Spencer also identified that although

he could not give a definitive answer as to the caliber of the

bullets, he said that the weight and morphology would make it

more likely that the caliber was .380 or .357 as opposed to a 9

mm.

Trial Court Opinion, 7/23/2018, at 2-10 (record citations omitted).

On November 2, 2017, a jury convicted Appellant of third-degree

murder, aggravated assault (attempt to cause serious bodily injury),

aggravated assault (attempt to cause serious bodily injury with a deadly

weapon), possession of an instrument of crime, and tampering with physical

evidence. In a separate bench trial following the jury’s verdict, the trial court

also convicted Appellant of persons not to possess a firearm and carrying a

firearm without a license. On February 20, 2018, the trial court imposed an

aggregate sentence of 26 to 60 years of imprisonment. This timely appeal

resulted.3

____________________________________________

3 Appellant filed a timely post-sentence motion on March 2, 2018. The trial

court had 120 days to decide the post-sentence motion, but when it failed to

decide the motion within that period, the motion was deemed denied by

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On appeal, Appellant presents the following issues for our review:

1. Whether the trial court erred in denying a motion to suppress

when [Appellant] had previously indicated to police that he did

not want to speak to them without an attorney present?

2. Whether the [trial] court erred in failing to [hold a hearing

pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir.

1923)] when there is no national standard with regard to

gunshot residue testing positive?

3. Whether the [trial] court erred in failing to give the missing

witness [jury] instruction when the witness was an eyewitness

to a homicide?

4. Whether the [trial] court erred in precluding testimony

corroborating [Appellant’s] explanation as to why he was at

[Freeman’s] residence?

5. Whether the jury’s verdict is against the weight of the

evidence?

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operation of law on July 1, 2018. See Pa.R.Crim.P. 720(B)(3)(a). When a

post-sentence motion is deemed denied, the clerk of courts enters an order

deeming the motion denied on behalf of the trial court and serves copies on

the parties. See Pa.R.Crim.P. 720(B)(3)(c). A notice of appeal must be filed

within 30 days of the entry of the order denying the post-sentence motion by

operation of law. See Pa.R.Crim.P. 720(A)(2)(b). Here, the clerk of courts

failed to enter an order disposing of Appellant’s post-sentence motion on July

1, 2018. Instead, the trial court entered an opinion and order denying relief

on July 23, 2018, outside the 120-day period, and Appellant filed a notice of

appeal within 30 days of that order. This Court has previously determined

that there is a breakdown in the judicial system when the clerk of courts fails

to enter a deemed denied order under Pa.R.Crim.P. 720 and, thus, we may

consider the merits of Appellant’s current appeal. See Commonwealth v.

Patterson, 940 A.2d 493, 498-499 (Pa. Super. 2007). After Appellant filed

his notice of appeal, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant complied timely. The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(b) on August 31, 2018, which relied upon its July 23, 2018

decision.

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6. Whether the [trial] court erred in failing to grant a hearing on

the criminal case disposition of an eyewitness that occurred

after Appellant’s verdict when testimony [adduced at

Appellant’s trial suggested the witness had no deal with

prosecutors]?

Appellant’s Brief at 4-5 (complete capitalization and suggested answers

omitted).

In his first issue presented, Appellant claims that the trial court erred in

denying his suppression motion wherein he sought to preclude statements he

made to police because he previously requested to speak with an attorney.

Appellant’s Brief at 15-19. More specifically, Appellant contends that when

Agent Peacock attempted to question him while he was hospitalized with a

gunshot wound, on October 13, 2015, the day of Barr’s shooting, Appellant

advised Agent Peacock that he wanted a lawyer, refused to answer questions,

and sought to terminate the interview. Id. at 16. Appellant points out that

“there were three [police] officers in the room [when Agent] Peacock began

questioning [Appellant].” Id. at 17. Appellant does not seek to suppress

information obtained during this encounter. Instead, he seeks to suppress

information divulged six months later, when Agent Peacock obtained an arrest

warrant, transported Appellant from Harrisburg to Williamsport, advised

Appellant of his Miranda rights, and obtained a waiver of Miranda rights from

Appellant before commencing with questions. Id. Thus, Appellant contends

that “the issue becomes whether [Agent Peacock] had the right to request a

waiver of his Fifth Amendment rights [under Miranda] knowing full well that

[Appellant] had previously exercised those rights.” Id. at 17.

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The standard of review for the denial of a motion to suppress evidence

is as follows:

An appellate court's standard of review in addressing a challenge

to the denial of a suppression motion is limited to determining

whether the suppression court's factual findings are supported by

the record and whether the legal conclusions drawn from those

facts are correct. Because the Commonwealth prevailed before the

suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as

a whole. Where the suppression court's factual findings are

supported by the record, the appellate court is bound by those

findings and may reverse only if the court's legal conclusions are

erroneous. Where ... the appeal of the determination of the

suppression court turns on allegations of legal error, the

suppression court's legal conclusions are not binding on an

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the [legal

conclusions of the trial courts] are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal

brackets and citation omitted).

We previously determined:

In Miranda, the United States Supreme Court established that an

accused has the right to have counsel present during custodial

interrogations under the Fifth and Fourteenth Amendments to

the United States Constitution. [Miranda,] 384 U.S. at 474. This

right to counsel is part of “a set of prophylactic measures designed

to safeguard the constitutional guarantee against

self-incrimination.” J.D.B. v. North Carolina, 564 U.S. 261, 269

(2011).

In Edwards v. Arizona, [, 451 U.S. 477 (1981),] the [United

States] Supreme Court addressed the consequences of a suspect's

invocation of the right to counsel. The Edwards court held that

“when an accused has invoked his right to have counsel present

during custodial interrogation,” police may not conduct further

interrogations “until counsel has been made available to him,

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unless the accused himself initiates further communication,

exchanges, or conversations with the police.” [Edwards,] 451

U.S. at 484–485. If police conduct further interrogations outside

the presence of counsel, “the suspect's statements are presumed

involuntary and therefore inadmissible as substantive evidence at

trial, even where the suspect executes a waiver and his

statements would be considered voluntary under traditional

standards.” McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).

To trigger these protections, a defendant's request for counsel

must be sufficiently clear “that a reasonable police officer would

understand the statement to be a request for an attorney.” Davis

[v. United States], 512 U.S. [452,] 459, [(1994)].

Commonwealth v. Champney, 161 A.3d 265, 272 (Pa. Super. 2017) (en

banc) (emphasis added); see also Commonwealth v. Woodard, 129 A.3d

480, 498 (Pa. 2015), citing McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)

(To invoke the Fifth Amendment right to counsel effectively, the accused must

make “some statement that can reasonably be construed to be an expression

of a desire for the assistance of an attorney in dealing with custodial

interrogation by the police.”) (original emphasis omitted; emphasis

supplied).

Our Supreme Court has also stated:

The United States Supreme Court has held that, before law

enforcement officers question an individual who has been in taken

into custody or has been deprived of his freedom in any significant

way, the officers must first warn the individual that he has the

right to remain silent, that anything he says can be used against

him in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

appointed. Miranda, 384 U.S. at 478–479. However, these

special procedural safeguards are required only where a

suspect is both taken into custody and subjected to

interrogation. Commonwealth v. Bland, 115 A.3d 854, 857

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(Pa. 2015) (quoting Rhode Island v. Innis, 446 U.S. 291, 300

(1980)).

Commonwealth v. Yandamuri, 159 A.3d 503, 519–520 (Pa. 2017)

(emphasis added); see also Bland, 115 A.3d at 863 (“[T]o require a

suspension of questioning by law enforcement officials on pain of an

exclusionary remedy, an invocation of the Miranda-based right to counsel

must be made upon or after actual or imminent commencement of in-

custody interrogation.”) (emphasis added).

The appropriate test for determining whether a situation involves

custodial interrogation is as follows:

The test for determining whether a suspect is being subjected to

custodial interrogation so as to necessitate Miranda warnings is

whether he is physically deprived of his freedom in any significant

way or is placed in a situation in which he reasonably believes that

his freedom of action or movement is restricted by such

interrogation.

Said another way, police detentions become custodial when,

under the totality of the circumstances, the conditions and/or

duration of the detention become so coercive as to constitute the

functional equivalent of arrest.

The factors a court utilizes to determine, under the totality of the

circumstances, whether a detention has become so coercive as to

constitute the functional equivalent of arrest include: the basis for

the detention; its length; its location; whether the suspect was

transported against his or her will, how far, and why; whether

restraints were used; whether the law enforcement officer

showed, threatened or used force; and the investigative methods

employed to confirm or dispel suspicions. The fact that a police

investigation has focused on a particular individual does not

automatically trigger custody, thus requiring Miranda warnings.

* * *

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In order to be “in custody,” a person must believe that he is not

free to leave, and in order to be considered “interrogation,” the

questioning by the police must be expected to, calculated to, or

likely to evoke admission.

Commonwealth v. Mannion, 725 A.2d 196, 200–201 (Pa. Super. 1999)

(internal citations, brackets, and some quotations omitted).

The suppression court determined that when Appellant requested an

attorney at the hospital six months prior to the interview at the Williamsport

Police station, “he was not subject to a custodial interrogation, so the

Edwards presumption would not apply[,]” but that, regardless, “a sufficient

break in custody had occurred[.]” Trial Court Opinion, 7/28/2017, at 6. For

the reasons that follow, we agree that Edwards does not apply since

Appellant was not in custody at the hospital and, hence, was not subjected to

custodial interrogation. We also agree that, even if Appellant were subject to

custodial interrogation when he initially invoked his right to counsel during his

hospital stay, the ensuing six-month period that elapsed before his next

encounter with police officials precluded application of the Edwards rule.

Because Edwards does not apply, the trial court correctly denied suppression.

While it is true that three police officers were present when Appellant

was questioned in his hospital room, we conclude, under a totality of the

circumstances, that the conditions and/or duration of the questioning did not

become so coercive as to constitute the functional equivalent of arrest. When

police interviewed Appellant at the hospital, they treated him as a shooting

victim, not as a suspect. There was no evidence that police restrained or

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transported Appellant against his will. In fact, Appellant voluntarily went to

the hospital to receive treatment. The police questioning was brief, there were

no threats or use of force, and Agent Peacock ended the interview immediately

upon Appellant’s invocation of counsel. See N.T., 4/17/2017, at 5-6. The

officers left the hospital (without Appellant) when the interview terminated.

Moreover, Appellant left town after receiving treatment and had no further

contact with the officers for six months. Based upon this record, we conclude

that Appellant was not in police custody when Agent Peacock briefly

questioned him at the hospital.

In addition, Appellant has not cited legal authority, and our independent

research has not revealed any, that the mere invocation of counsel during

non-custodial police questioning triggers the rule announced in Edwards, to-

wit that once an accused has been subject to custodial interrogation and has

invoked his right to counsel pursuant to Miranda, police may not conduct

further interrogations until counsel has been made available or the accused

himself initiates further communication. Since only custodial interrogation

triggers the rule announced in Edwards, and because the hospital interview

did not qualify as a custodial interrogation, the police were not barred from

later questioning Appellant without an attorney present given that he waived

his rights under Miranda.

We also agree that the six-month period between Appellant’s initial

encounter with authorities at the hospital and his later interaction with police

in Williamsport constituted a sufficient break in custody that allowed officers

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to re-approach him to secure a waiver of his Miranda rights. The United

States Supreme Court has held that the Edwards rule does not apply if a

break in custody lasting at least 14 days has occurred prior to subsequent

interrogation. See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); see also

Champney, 161 A.3d at 277-285 (discussing Edwards at length and

concluding that five-month break between initial invocation of right to counsel

and re-interrogation was sufficient to remove Edwards’ presumption of

involuntariness). Based upon the foregoing, we conclude the record supports

the denial of suppression.

In his second issue presented, Appellant contends that the trial court

erred by permitting the Commonwealth to present evidence regarding gunshot

residue without a pre-trial hearing on novel scientific evidence pursuant to

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Appellant’s Brief at

19-21. Appellant argues that “he was entitled to a Frye hearing as there is

no national standard or consensus on what qualifies as a positive result for

purposes of gunshot residue testing.” Id. at 19. Appellant posits that the

trial court agreed that there was no national standard. Id. at 20. As such,

Appellant argues that expert gunshot residue testimony “should have been

precluded [] based upon the fact that the expert could not tell whether

[Appellant] fired the weapon[; a]ll she basically could testify to was that he

was in the vicinity of a firearm being discharged.” Id. at 20-21.

Our Supreme Court has held:

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As a general rule, [an appellate court’s] standard of review of a

trial court's evidentiary ruling, including a ruling whether expert

scientific evidence is admissible against a Frye challenge, is

limited to determining whether the trial court abused its

discretion. An abuse of discretion may not be found 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. Dengler, 890 A.2d 372, 379 (Pa. 2005) (internal

citations and quotations omitted).

Moreover, the Dengler Court determined:

Admissibility of the scientific evidence depends upon the general

acceptance of its validity by those scientists active in the field to

which the evidence belongs.

* * *

The requirement of general acceptance in the scientific community

assures that those most qualified to assess the general validity of

a scientific method will have the determinative voice. Additionally,

the Frye test protects prosecution and defense alike by assuring

that a minimal reserve of experts exists who can critically examine

the validity of a scientific determination in a particular case. Since

scientific proof may in some instances assume a posture of mystic

infallibility in the eyes of a jury of laymen, the ability to produce

rebuttal experts, equally conversant with the mechanics and

methods of a particular technique, may prove to be essential.

* * *

Frye is not implicated every time science comes into the

courtroom; rather, it applies only to proffered expert testimony

involving novel science. What constitutes novel scientific evidence

has historically been decided on a case-by-case basis, and there

is some fluidity in the analysis; indeed, science deemed novel at

the outset may lose its novelty and become generally accepted in

the scientific community at a later date, or the strength of the

proponent's proffer may affect the Frye determination.

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Id. at 381-382.

Here, the trial court determined that gunshot residue testing “is not

novel and holds general acceptance in the scientific community.” Trial Court

Opinion, 7/23/2018, at 14. We agree. Appellant does not provide citation to

any Pennsylvania authority suggesting that courts have precluded gunshot

residue testing from prior trials as novel evidence under Frye. Our

independent research has not yielded any instances, either. Moreover, when

arguing for a Frye hearing, counsel for Appellant acknowledged that “gunshot

residue testing has been around for years.” N.T., 9/8/2017, at 7. As gunshot

residue testing is already scientifically established, a Frye hearing was

unwarranted and we discern no trial court error or abuse of discretion.

In his third issue presented, Appellant claims the trial court erred by

failing to issue a “missing witness” jury instruction regarding a purported

eyewitness to the crimes, Tyson Bowman,4 who did not testify at trial.

Appellant’s Brief at 21-24. Appellant argues that Bowman’s testimony was

important and not cumulative. Id. at 23. Appellant maintains that the

uncalled witness was not accessible to him and essentially under the

Commonwealth’s control. Id. at 23-24. Thus, he claims he was entitled to

a jury instruction regarding a missing witness.

____________________________________________

4 As explained below, the purported witness’ name was in contention.

Appellant claims the alleged witness’ last name is “Bowman;” the

Commonwealth and the trial court refer to him as “Bolden.”

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“[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Leaner, 202 A.3d 749, 782–783 (Pa. Super. 2019)

(citation omitted). This Court has stated:

The trial court is not required to give every charge that is

requested by the parties and its refusal to give a requested charge

does not require reversal unless the [a]ppellant was prejudiced by

that refusal.

A missing witness instruction may be given in limited

circumstances. When a potential witness is available to only one

of the parties to a trial, it appears this witness has special

information material to the issue, and this person's testimony

would not merely be cumulative, then if such party does not

produce the testimony of this witness, the jury may draw an

inference that it would have been unfavorable. However, this

Court has clarified at least six circumstances where a party is not

entitled to the missing witness adverse inference instruction:

1. The witness is so hostile or prejudiced against the party

expected to call him that there is a small possibility of

obtaining unbiased truth;

2. The testimony of such a witness is comparatively

unimportant, cumulative, or inferior to that already

presented;

3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the party

failed to call such a witness;

5. The witness is not available or not within the control of

the party against whom the negative inference is desired;

and

6. The testimony of the uncalled witness is not within the

scope of the natural interest of the party failing to produce

him.

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Commonwealth v. Miller, 172 A.3d 632, 645–646 (Pa. Super. 2017)

(internal citations and quotations omitted).

Here, the trial court explained:

The Commonwealth has been unable to locate Bolden, and has

neither had the opportunity to interview nor speak with him. Any

attempts to locate Bolden have undoubtedly been complicated by

the fact that there has been a debate over what the missing

witness’s name actually is. Freeman, Bolden’s friend, initially

provided the name Bowman and then later said the name was

Bolden. Freeman’s girlfriend, Washington, also had trouble

remembering the last name while she was testifying.

Furthermore, the [trial c]ourt [found] that this witness was equally

available (or unavailable) to both parties, and that furthermore,

[Appellant] has not shown that the testimony of this witness would

have provide[d] information or insight that would have not been

merely cumulative.

Trial Court Opinion, 7/23/2018, at 12.

Upon review, we discern no trial court error or abuse of discretion in

denying Appellant’s request for a missing witness jury instruction. Appellant

does not challenge the determination that the purported witness could not be

located. As such, the witness was unavailable to both the Commonwealth and

Appellant. Moreover, Appellant merely speculates as to the nature of the

alleged missing witness’ testimony. Hence, there was no evidence that the

purported testimony would not have been cumulative. As such, Appellant’s

third issue lacks merit.

In his fourth issue, Appellant argues that the trial court erred in

precluding him from calling Gregory Smith to testify at trial. Smith was the

landlord of the property where the shooting occurred. Appellant’s Brief at

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24-26. Appellant proffered that the landlord would testify that a family, with

a son who was about the same age as Appellant, lived in the duplex next door

to Freeman a year or two before the crimes. Id. at 24-25. Appellant claims

that the property owner’s testimony would have corroborated his own

testimony that “his reason for knocking on [Freeman’s] door and being in that

location was to stay with a friend [named] Craig.” Id. at 25. Appellant notes

that the landlord could not specifically recall the boy’s name who allegedly

lived next door to Freeman and, as such, the trial court precluded Appellant

from calling the landlord as a witness. Id. at 25. Appellant claims it was trial

court error to preclude the proffered testimony.

On a challenge to a trial court's evidentiary ruling, our standard of

review is one of deference:

The admissibility of evidence is solely within the discretion of the

trial court and will be reversed only if the trial court has abused

its discretion. An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or

the result of bias, prejudice, ill-will or partiality, as shown by the

evidence of record.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012).

Herein, the trial court determined:

[Appellant] claimed that [the landlord’s] testimony would support

[Appellant’s] testimony that he was looking for a friend [] named

‘Craig’ or ‘Greg’ when he went to Freeman’s home[.] However,

the relevancy of this testimony was not clear to the [trial c]ourt,

because the residential lease does not identify the young male [for

whom Appellant was allegedly searching]. Furthermore, [the

landlord] did not recall the boy’s name. Without additional specific

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information, the [trial c]ourt precluded [the] landlord [] from

testifying.

Trial Court Opinion, 7/23/2018, at 11-12.

We discern no error or abuse of discretion. Here, the relevancy of the

proposed evidence was unclear. The landlord was uncertain regarding key

elements of Appellant’s proffer. Moreover, even if Appellant were looking for

a person his age at the duplex next to Freeman’s residence, Appellant has not

explained how it would have exculpated him from shooting the victim or

materially aided his defense. Appellant’s purported reason for being in the

location was irrelevant as to whether Appellant was the perpetrator of the

crimes. Accordingly, the trial court did not abuse its discretion in precluding

the landlord from testifying.

In his fifth issue on appeal, Appellant argues that the jury’s verdict was

against the weight of the evidence presented at trial. Appellant’s Brief at

26-28. Appellant claims that, “there were a minimum of four individuals

present when the victim was accidentally shot and killed.” Id. at 26.

Appellant claims that the evidence presented at trial showed that two people,

other than defendant, had firearms. Id. at 26-27. He contends that “[o]ther

than Freeman, none of the Commonwealth witnesses were able to identify

[Appellant] as the shooter or as possessing a weapon.” Id. at 27. Appellant

asserts that the Commonwealth failed to establish the trajectory of the fatal

bullet and offered gunshot residue evidence as proof that Appellant was in the

vicinity of a fired weapon, but failed to prove that he was the actual shooter.

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Id. at 27. Appellant claims that the Commonwealth’s presentation of evidence

that Appellant’s DNA was found on the barrel of the recovered .357 mm

revolver “was consistent with [his] testimony that he grabbed the gun as

Freeman was attempting to shoot him.” Id. at 27. As such, Appellant

contends that “[w]ithout any ballistic support, there is no evidence to convict

[Appellant] of third[-]degree murder and aggravated assault with possession

of an instrument of crime.” Id. at 28.

An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge has

had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings

and reasons advanced by the trial judge when reviewing a trial

court's determination that the verdict is against the weight of the

evidence. One of the least assailable reasons for granting or

denying a new trial is the lower court's conviction that the verdict

was or was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

Commonwealth v. Thomas, 194 A.3d 159, 168 (Pa. Super. 2018) (citation

omitted).

On Appellant’s weight of the evidence claim, the trial court concluded:

[T]he jury appropriately weighed the testimony of various

witnesses and [] the jury’s verdict is a reasonable application of

[law to] the facts. […] The jury’s decision to consider the

testimony of Freeman, multiple eyewitnesses, and law

enforcement officials [as] more credible than the testimony of

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[Appellant] is within the jury’s purview as the trier of fact.

Therefore, the [trial c]ourt found that the jury’s verdict was not

inconsistent or contrary to the weight of the evidence, and did not

grant a new trial.

Trial Court Opinion, 7/23/2018, at 17.

Here, while Appellant assails the ballistic evidence and DNA evidence

presented at trial as inadequate, he disregards the eyewitness testimony,

video surveillance footage, and his recorded confession to police that was also

presented at trial. Based on the record before us, we discern no abuse of

discretion or error of law in denying relief on Appellant’s weight of the evidence

claim.

In his final issue presented, Appellant argues that the trial court erred

by failing to grant him a hearing regarding the subsequent criminal case

against Commonwealth witness, Keith Freeman. Appellant’s Brief at 28-29.

Appellant notes that, at trial, Freeman admitted that he faced criminal charges

arising from this incident, but denied receiving any promises from the

Commonwealth in exchange for his testimony. Id. at 28. Appellant contends

that, after trial, he “discovered that the charges against Keith Freeman were

nol prosed.” Id. Thus, Appellant argues that the trial court erred by denying

relief when “[c]ounsel sought a hearing to obtain information as to when the

deal was made with Freeman and whether his [trial] testimony was inaccurate

in that there was a no deal promised to him in exchange for his testimony.”

Id. at 28-29. Appellant concludes, “that this is an issue that goes to

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[Freeman’s] credibility and would have been something the jury should have

had an opportunity to hear.” Id. at 29.

This Court previously decided:

A trial court may grant a post-sentence [m]otion for a [n]ew [t]rial

based on after-discovered evidence if the appellant shows by a

preponderance of the evidence that the after-discovered evidence

(1) could not have been obtained prior to trial by exercising

reasonable diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach a

witness's credibility; and (4) would likely result in a different

verdict.

Commonwealth v. Griffin, 137 A.3d 605, 608 (Pa. Super. 2016) (internal

citation omitted) (emphasis added).5

Here, Appellant sought the proposed after-discovered evidence to

challenge Freeman’s credibility by alluding to a possible motive for testimony

favorable to the Commonwealth. However, an appellant seeking a new trial

must demonstrate that he will not use the alleged after-discovered evidence

“solely to impeach a witness’s credibility.” Id. As such, we discern no trial

court abuse of discretion or error of law in denying Appellant’s

after-discovered evidence claim.

Judgment of sentence affirmed.

____________________________________________

5 We note that Appellant does not provide any citations to legal authority on

this issue. We could find the issue waived, but decline to do so because our

judicial review is unhampered by the omission.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2019

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