The opinion
J. S06044/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
OMAR TERRELL MASSENBURG, : No. 82 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, July 12, 2017,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0003449-2016
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 22, 2020
Omar Terrell Massenburg appeals from the July 12, 2017 judgment of
sentence entered by the Court of Common Pleas of Montgomery County
following his conviction of second-degree murder, firearms not to be carried
without a license, and possession of a firearm with intent to employ it
criminally.1 After careful review, we affirm.
The relevant facts and procedural history underlying
this appeal are as follows. On the evening of Friday,
March 18, 2011, appellant was a front-seat passenger
in a gray, four-door 1997 Chevrolet Malibu with tinted
windows being driven through the streets of
Norristown by his friend, Ryan Stanford Lee when they
observed seventeen-year-old [D.D.] walking home
from his girlfriend’s house along Noble Street near
West Oak Street in Norristown Borough, Montgomery
County.
1 18 Pa.C.S.A. §§ 2502(b), 6106(a)(1), and 907(b).
J. S06044/20
Although his girlfriend’s mother had offered to give
him a ride home, [D.D.] told her that he wanted to
walk because it was a nice night. His girlfriend gave
him a kiss on the cheek and hugged him before he
left. [D.D.,] a promising high school student, was
wearing a red sling backpack with an [iPod,] a
handheld Nintendo game player and his cell phone
inside, and [was] walking with earbuds in his ears
unaware of the impending danger. [D.D.’s] girlfriend
did not know of anyone that [D.D.] had problems with
and he had never mentioned appellant’s name to her.
Based on the evidence presented at trial, a jury later
determined that appellant exited the Malibu with a
.32 caliber revolver and approached the [D.D.] with
the intent of robbing him. A witness walking his dog
in that area described the encounter to police. He saw
two men struggling, more or less wrestling and kind
of on top of each other. He told police, and later the
jury, that he heard the younger man ask “why are you
doing this to me?”[] The witness heard a “pop” and
observed the young man collapse in the street.
Seconds later, he heard footsteps running away,
heard a car door slam and observed a late ‘90s silver
or gray four-door sedan pull away going eastbound on
Oak Street toward Stanbridge Street accelerating
“really fast.” Another witness who heard the gunshot
described a light gray vehicle parked on West Oak
Street at Noble Street that “sped away” from the area.
At approximately 10:06 p.m. [D.D.,] stumbling, dialed
911 on his cell phone before collapsing in the street.
At approximately 10:08 p.m., Norristown Borough
Police Officers responded to the intersection of Noble
Street and West Oak Street and found [D.D.]
unconscious, face down in a large pool of blood, in the
roadway still wearing the backpack. Doctors at
Montgomery Hospital pronounced [D.D.] dead shortly
after arrival. Dr. Paul Hoyer, a forensic pathologist,
performed an autopsy on [D.D.] on March 19, 2011.
Dr. Hoyer recovered a projectile from the body and
opined that the victim died from massive blood loss
resulting from a single gunshot wound to his left
shoulder. Dr. Hoyer ruled the manner of death a
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homicide. The evidence showed that the bullet that
killed [D.D.] was a .32 caliber Smith & Wesson fired
from a revolver that had entered downward into his
left shoulder, pierced both lungs, and rested in the
lower part of his chest, from where Dr. Hoyer was able
to retrieve it. Officers were unable to recover any
shell casings from the scene.
While responding to the scene on March 18th in an
unmarked patrol car at approximately 10:08 p.m.
with lights and siren activated and traveling on
West Elm Street, Corporal Joseph Benson observed a
late ‘90s model gray four-door sedan with tinted
windows and a dirty front passenger wheel heading
north on Stanbridge Street go through the stop sign
at Stanbridge and West Elm in front of the Corporal.
Corporal Benson described the driver as a black male,
light to medium skin, looking straight ahead as he
went through the stop sign.
Earlier that evening appellant, with [Mr.] Lee driving,
and another friend, Steven Jackson in the back seat,
had also fired shots from a handgun out of the gray
four-door Malibu with tinted windows at one
Khalil (“Batman”) Byrd [(“Mr. Byrd”)].
On March 26, 2011, appellant and [Mr.] Lee gave
statements to police in which appellant eventually
admitted that they had been driving around
Norristown in [Mr.] Lee’s sister’s 1997 gray, four-door
Chevrolet Malibu with tinted windows on Friday night,
March 18, 2011. Both appellant and [Mr.] Lee initially
gave false statements and were subsequently charged
with unsworn falsification to authorities in addition to
recklessly endangering another person, a firearms
violation and tampering with physical evidence.
Appellant admittedly lied to the detectives in his first
statement because “[he] didn’t want to get wrapped
up in this murder.” Appellant identified [Mr.] Lee as
the driver of the Malibu. According to appellant, he
was wearing gloves when he shot at [Mr. Byrd].
During his subsequent statement to the detectives,
appellant agreed to show them where he had
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discarded the gun. Appellant described the gun as an
“oldish looking”, small caliber, black revolver.
Approximately ten (10) law enforcement officers
combed Martin Luther King Park on the east side of
Norristown for three (3) to four (4) hours searching
for the firearm to no avail. Law enforcement officers
also conducted a search with appellant’s consent of
his residence on March 27, 2011. Although officers
recovered a black holster, a box of Remington
12-guage shotgun shells, a .25-caliber single unfired
bullet, and a black plastic box containing
five .22-caliber unfired bullets, they recovered no
firearms of any kind. Various witnesses later gave
statements to law enforcement and testified at trial
that appellant had assured them that others had
successfully disposed of the gun. Law enforcement
officers never recovered the weapon used to kill
[D.D.]
Appellant and [Mr.] Lee both entered guilty pleas to
charges related to providing false statements to law
enforcement as well as to the shooting incident
involving Khalil Byrd in 2011 and 2012, respectively.
The Montgomery County Detective Bureau and the
Norristown Borough Police Department worked as a
team to investigate the [D.D.] homicide, led by
Detective Todd Richard of the Homicide Unit of the
Montgomery County Detective Bureau and Detective
Adam Schurr of the Norristown Borough Police
Department. Following years of diligent police work,
officers arrested appellant on March 16, 2016, and
[Mr.] Lee on July 15, 2016, for the murder of [D.D.]
Francis Genovese, Esquire filed several pretrial
motions on behalf of appellant. The Commonwealth
also filed several pretrial motions. The [trial court]
heard argument on those motions on March 29, 2017.
Specifically, [appellant] sought to preclude the
admission of statements, testimony or any other
evidence in the Commonwealth’s case in chief
1) regarding his alleged involvement in or affiliation
with the “Oak and Smith” gang, 2) regarding his
conviction for offenses charged in connection with the
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shooting of [Mr. Byrd] as other crimes, wrongs or
acts, 3) regarding his recorded statements to
confidential informants concerning the shooting of
[Mr.] Byrd and 4) regarding the written statement
made by Defendant’s co-conspirator, [Mr.] Lee, to
detectives on March 26, 2011.
ADA Lauren Heron argued that the admission of the
statements and consensual wire transcripts regarding
the shooting at [Mr.] Byrd was necessary and relevant
to show identity, opportunity and context for the
Commonwealth’s theory of the killing of Dawkins.
Additionally, counsel for the Commonwealth
asserted[] [Mr.] Lee’s lies in his original statement
support a conspiracy between the two, an agreement
to lie about what they were doing that night.
Attorney Genovese successfully argued for the
preclusion of reference to any alleged gang activity.
This court determined that the evidence regarding the
shooting at [Mr. Byrd] that night was relevant and,
after conducting the required balancing test,
admissible under, inter alia, the “identity’’ and
“opportunity” exceptions under Pa.R.E. 404(b)(2).
The [trial] court issued its orders on the pretrial
motions and scheduled appellant’s trial to begin on
Monday, April 10, 2017.
Trial court opinion, 4/23/19 at 2-8 (extraneous capitalization and citations to
the record omitted).
Following [its] deliberations . . . , the jury convicted
appellant of second-degree murder and other offenses
as noted above on Friday, April 14, 2017. The [trial]
court deferred sentencing and directed that a
presentence investigation report and a PPI evaluation
report be obtained. The [trial] court sentenced
appellant to life imprisonment without parole on
Count 2, second degree murder, and on Count 4,
firearms not to be carried without a license and
Count 5, possession of a firearm with intent to employ
it criminally, a determination of guilt without further
penalty.
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Attorney Genovese timely filed appellant’s
post-sentence motion for relief on July 21, 2017. The
[trial] court heard argument on the motion and the
Commonwealth’s response thereto on November 29,
2017.[Footnote 4] Appellant’s counsel argued that
the Commonwealth offered insufficient evidence to
support the underlying felony of robbery to sustain the
second degree murder verdict as no item of value had
been taken from the victim, and there was no
testimony or other evidence that the struggle one
witness described as “wrestling” between [D.D.] and
another man was anything more than a mutual fight.
That witness did not testify, in fact, no witness
testified about what precipitated that struggle at the
corner of Noble and Oak Streets that night. [The trial]
court denied appellant’s post-sentence motion for
relief by order entered on December 6, 2017.
Appellant filed a timely notice of appeal on
December 29, 2017. The [trial court] directed
appellant to file a concise statement of the errors
complained of on appeal (“statement”), pursuant to
Pa.R.A.P. 1925(b) by order entered on January 5,
2018. Appellant filed his statement on January 26,
2018
[Footnote 4] The argument on appellant’s
post-trial motions was originally
scheduled on October 10, 2017.
However, it was continued at the request
of appellant’s counsel because of an
attachment to a capital case in Bucks
County.
Id. 14-15 (extraneous capitalization and citations to the record omitted). The
trial court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a) on
April 23, 2019.
Appellant raises the following issues for our review:
(a.) Did the trial court err by denying appellant’s
pretrial motion in limine to preclude the
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admission of evidence regarding appellant’s
conviction(s) for the offenses charged in
connection with the unrelated shooting of
Khalil Byrd, during the Commonwealth’s
case-in-chief?
(b.) Did the trial court err by denying appellant’s
pretrial motion in limine to preclude the
admission of evidence regarding appellant’s
statements to a confidential informant
regarding the shooting of Khalil Byrd, during the
Commonwealth’s case-in-chief?
(c.) Did the trial court err by granting the
Commonwealth’s pretrial motion in limine to
allow the admission of portions of a written
statement, made by appellant’s
non-cooperating, non-testifying co-defendant,
Ryan Lee, during the Commonwealth’s
case-in-chief?
(d.) Did the trial court err by denying [appellant’s]
post-sentence motion for a judgment of
acquittal on the charge of murder in the second
degree, for which the jury returned a guilty
verdict?
Appellant’s brief at 4 (extraneous capitalization omitted; bolding and italics
added).
In his first three issues, appellant raises allegations of trial court error
in evidentiary rulings. Appellate review of evidentiary rulings are governed
by the following standard of review:
Appellate courts review evidentiary decisions for an
abuse of discretion. Commonwealth v. Walker, []
92 A.3d 766, 772 ([Pa.] 2014) (citations omitted).
“An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
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prejudice, bias or ill-will, as shown by the evidence of
record, discretion is abused.” Id. at 772-773 (internal
quotation marks and citations omitted).
Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017), cert. denied
sub nom. Jacoby v. Pennsylvania, 139 S.Ct. 58 (2018).
In his first and second issues, appellant contends that the trial court
erred when it admitted evidence of appellant’s prior bad acts. (Appellant’s
brief at 11, 15.)
The particular Pennsylvania Rule of Evidence
governing the admission of “prior bad acts” is
Pa.R.E. 404(b) which provides, in relevant part:
(b) Other crimes, wrongs, or acts.
....
(2) Evidence of other crimes,
wrongs, or acts may be
admitted for other purposes,
such as proof of motive,
opportunity, intent,
preparation, plan, knowledge,
identity or absence of mistake
or accident.
(3) Evidence of other crimes,
wrongs, or acts proffered
under subsection (b)(2) of
this rule may be admitted in a
criminal case only upon a
showing that the probative
value of the evidence
outweighs its potential for
prejudice.
Pa.R.E. 404(b)(1)-(3). Under this rule, the admission
of prior “bad acts” is inadmissible for the sole purpose
of proving the defendant has a bad character, or a
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“criminal propensity.” Commonwealth v. Powell, []
956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this
rule permits the admissibility of such evidence for
other relevant purposes, such as:
showing the defendant’s motive in
committing the crime on trial, the absence
of mistake or accident, a common scheme
or design, . . . to establish identity[,] [or]
where the acts were part of a chain or
sequence of events that formed the
history of the case and were part of its
natural development.
Id. However, admission for these purposes is
allowable only whenever the probative value of the
evidence exceeds its potential for prejudice.
Pa.R.E. 404(b)(3).
Commonwealth v. Briggs, 12 A.3d 291, 336-337 (Pa. 2011), cert. denied
sub nom Briggs v. Pennsylvania, 565 U.S. 889 (2011). Our supreme court
further noted that “[w]hen the trial court admits evidence of a defendant’s
other bad acts, ‘the defendant is entitled to a jury instruction that the evidence
is admissible only for a limited purpose.’” Commonwealth v. Crispell, 193
A.3d 919, 937 (Pa. 2018), quoting Commonwealth v. Solano, 129 A.3d
1156, 1178 (Pa. 2015). It is well settled that juries are presumed to follow
the trial court’s instructions. Commonwealth v. Aikens, 168 A.3d 137, 143
(Pa. 2017), citing Commonwealth v. Bullock, 913 A.2d 207, 218 (Pa. 2006),
cert. denied sub nom. Bullock v. Pennsylvania, 550 U.S. 941 (2007).
First, appellant argues that the trial court erred when it admitted
evidence of appellant’s guilty plea in connection with an unrelated shooting.
(Appellant’s brief at 11-15.) The Commonwealth avers that the prior bad acts
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evidence admitted by the trial court establishes both appellant’s identity and
the opportunity appellant had to commit the crime in the case-at-bar.
(Commonwealth’s brief at 19-24.)
As noted by the trial court,
To that end, evidence of appellant’s shooting at
[Mr.] Byrd earlier that same evening was relevant and
highly probative. Appellant’s admission that he had
been riding around in the gray, 19[9]7 Chevrolet
Malibu four-door sedan with [Mr.] Lee when he fired
shots at [Mr. Byrd] with a revolver on the west end of
Norristown on the evening of March 18, 2011,
provided a foundation which would justify an inference
by the jury that appellant was in fact the assailant who
attempted to rob and subsequently shot [D.D.] The
Commonwealth also argued that this evidence put into
context statements regarding two separate incidents
on the same night that appellant made in subsequent
conversations with cooperating witnesses.
Trial court opinion, 4/23/19 at 26-27 (extraneous capitalization omitted).
In the instant case, the record reflects that the Commonwealth
introduced the eyewitness testimony of Christopher McDonnell, who indicated
that he saw a late 1990s model silver sedan speeding down Oak Street toward
Stanbridge Street. (Notes of testimony, 4/11/17 at 89, 91-94, 107-108, 110.)
Additionally, the Commonwealth presented testimony from
Jenna Wenger Decembrino, who testified that she observed a light gray older
model sedan parked on Oak Street. (Notes of testimony, 4/13/17 at 28, 30.)
Ms. Decembrino testified further that approximately one minute after she
heard a “loud bang,” she observed the light gray sedan “speed away” down
Oak Street. (Id. at 31.) Ms. Decembrino also testified that she saw the same
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car turn down Noble Street from Oak Street. (Id.) Further, both
Mr. McDonnell and Ms. Decembrino testified that they heard what they
respectively described as a “pop” and a “loud bang.” (Notes of testimony,
4/11/17 at 89-90; 4/13/17 at 28.)
Appellant further argues that the evidence at issue was of “minimal
probative value,” and was “clearly outweighed by its prejudicial impact upon
the [j]ury.” (Appellant’s brief at 14.)
Here, the record reflects that the trial court provided the following
cautionary instruction to the jury:
Members of the jury, I want to read to you now what
is called a limit[ing] instruction before Lieutenant
McGowan testifies any further, because his testimony,
as I’m told by counsel, will involve what this limiting
instruction covers.
You are about to hear evidence that [appellant] has
previously pled guilty to criminal offenses that arose
from his shooting at [Mr.] Byrd on March 18, 2011.
Some of this evidence will be in the form of recorded
conversations between [appellant] and cooperating
witnesses. [Appellant] is not now being tried for those
crimes. So he is not being tried for the [Mr.] Byrd
shooting.
I want to caution you -- and this is very important --
that the evidence is being admitted only for the limited
purpose of establishing [appellant’s] identity as the
perpetrator of and/or his opportunity to commit the
crimes for which he is now being tried, should you
choose to accept it as such, and providing the context
and completeness with respect to the recorded
conversations.
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Again, I caution you that this evidence is being
admitted only for those limited purposes and not for
any other purpose whatsoever.
Notes of testimony, 4/11/17 at 214-215.
During its charge to the jury, the trial court again reminded the jury of
the limits of the prior bad acts evidence:
The fourth cautionary or limiting instruction had to do
with the admission of evidence regarding [appellant’s]
criminal conduct and conviction related to the
shootings at [Mr.] Byrd on March 18, 2011. You heard
evidence that [appellant] previously pled guilty to
criminal offenses that arose from the shooting at
[Mr.] Byrd on March 18, 2011. Some of this evidence
was in the form of recorded conversations between
[appellant] and cooperating witnesses. [Appellant] is
not on trial for those crimes now, and his guilty plea
has previously occurred. So I want to caution you that
this evidence is being admitted only for the limited
purpose of establishing [appellant’s] identity as the
perpetrator of and/or his opportunity to commit the
crimes for which he is now being tried, should you
choose to accept it; and second, to provide context
and completeness with respect to the recorded
conversations. So again, I caution you that this
evidence is being admitted only for those limited
purposes and not for any other purpose.
Notes of testimony, 4/14/17 at 157-158.
Based on our review of the record, we find that the trial court did not
abuse its discretion when it permitted the Commonwealth to introduce
evidence of appellant’s guilty plea relating to the case involving Mr. Byrd.
Indeed, as noted in detail supra, the Commonwealth demonstrated that the
prior bad acts evidence established appellant’s identity and opportunity
pursuant to Rule 404(b). Because the trial court instructed the jury twice that
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the evidence of appellant’s guilty plea in the unrelated crime could not be used
in determining appellant’s guilt with regard to the crime in the case-at-bar,
we hold that the probative value of the evidence presented by the
Commonwealth exceeded its potential for prejudice. Pa.R.E. 404(b)(3);
Briggs, 12 A.3d at 336-337; Aikens, 168 A.3d at 143. Accordingly,
appellant’s first issue is without merit.
Second, appellant avers that the trial court erred when it denied
appellant’s motion in limine to preclude admission of appellant’s recorded
statements to a confidential informant later identified as Jason Brown, while
both men were incarcerated at the Montgomery County Correctional Facility.
(Appellant’s brief at 15.) Specifically, appellant alleges that the trial court
erred when it admitted an audio recording and a written transcript of a
conversation between appellant and Mr. Brown. (Id. at 16.)
Appellant argues that evidence is of minimal probative value because of
the excessive background noise present in the audio recording and because
“[Mr.] Brown continuously jumps back and forth between the subjects of the
shooting of [Mr.] Byrd and the shooting of [D.D.] within the conversation.
Thus, it is virtually impossible to tell which shooting [Mr. Brown] is referring
to at any given point in time during the conversation. (Id. at 17-18.)
As we concluded supra, the trial court did not err when it admitted
evidence of appellant’s guilty plea in connection with the shooting at Mr. Byrd,
pursuant to Pa.R.E. 404(b). We further find appellant’s argument, that it is
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“virtually impossible to tell which shooting [Mr. Brown] is referring to at any
given point in time during the conversation[,]” to be unpersuasive. (See id.
at 17-18.)
During trial, Mr. Brown provided testimony regarding his recorded
conversation with appellant while the Commonwealth played a recording of
the conversation for the jury. (Notes of testimony, 4/12/17 at 174-178.) The
Commonwealth also introduced a transcript of the recorded conversation into
evidence. (Id. at 168.) The transcript of the recorded conversation reads, in
relevant part:
[Mr. Brown]: I know you couldn’t sleep after that
n[****], you had to be tossing and turning and s[***]
[Appellant]: That s[***] really weighed on me, [t]hat
s[***] really weighed on me real s[***]. [Mr. Byrd]
kept sayin’ my name
[Mr. Brown]: You got booked for that [Mr. Byrd]
jawn[2]
[Appellant]: Yeah
[Mr. Brown]: Yo, that s[***] happen [sic] that same
night
[Appellant]: Yeah around the same time. That s[***]
was goofy. Takin[’] the burner and the work and got
a 1 to 2
[Mr. Brown]: You mean the jawn you caught the body
with
2 The Oxford Dictionary defines “jawn” as dialect chiefly used in eastern
Pennsylvania to “refer to a thing, place, person, or event that one need not or
cannot give a specific name to.” Jawn Definition, lexico.com,
https://www.lexico.com/en/definition/jawn (last visited July 24, 2020).
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[Appellant]: Naw not for the body. I did one to two
for the [Mr. Byrd] s[***]. I ended up doing two years
and s[***].
Commonwealth’s Exhibit C-73 at 5-6.
Prior to hearing evidence of the recorded conversation, the trial court
provided the following cautionary instruction to the jury:
You’re about to hear evidence of a recorded
conversation between [appellant] and the cooperating
witness. Within said conversation, you may hear
evidence that the conversation occurred while
[appellant] was incarcerated at the Montgomery
County Correctional Facility. I want to caution you
that this evidence is being admitted only for the
limited purpose of providing what we call context and
completeness with respect to the recorded
conversation and not for any other purpose. You may
not consider the fact that [appellant] was incarcerated
at the time [that] the conversation was recorded as
any evidence of guilt of the crime for which [appellant]
is now on trial.
Notes of testimony, 4/12/17 at 171. The record reflects that the trial court
repeated this instruction to the jury during its final charge. (See notes of
testimony, 4/14/17 at 156-157.)
Based on our review of the record, we find the evidence at issue to be
highly probative. Indeed, appellant directly addressed his role in the
D.D. shooting and its chronological relationship to his involvement in the
shooting of Mr. Byrd. Moreover, the trial court provided the jury with
instructions limiting the use of any references to appellant’s incarceration
within the recorded conversation. Accordingly, we hold that the probative
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value of Mr. Brown’s recorded conversation with appellant exceeds its
potential for prejudice and that the trial court did not abuse its discretion when
it admitted the recording and the accompanying transcript.
Pa.R.E. 404(b)(3); Briggs, 12 A.3d at 336-337; Aikens, 168 A.3d at 143.
Appellant’s second issue, therefore, is without merit.
In his third issue, appellant contends that the trial court erred when it
granted the Commonwealth’s motion in limine, permitting part of a written
statement made by appellant’s non-cooperating, non-testifying co-defendant,
Mr. Lee, to be admitted into evidence. (Appellant’s brief at 19-24.)
Specifically, appellant alleges that the evidence at issue was inadmissible
hearsay and that it violated appellant’s rights under the Confrontation Clause.3
(Id. at 20.)
The Commonwealth avers that the statement at issue was not offered
for the truth of the matter asserted, thereby rendering the rule against
hearsay irrelevant in this context. (Commonwealth’s brief at 30.) Specifically,
the Commonwealth argues that the statement from Mr. Lee attempted to
provide an alibi for both himself and appellant. (Id.)
3 Appellant’s brief does not include any discussion of the Confrontation Clause,
or how it applies in the instant case. Accordingly, appellant waives any
Confrontation Clause claim. See Commonwealth v. Charleston, 94 A.3d
1012, 1022 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014),
quoting Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super.
2007), appeal denied, 982 A.2d 509 (Pa. 2009) (“We shall not develop an
argument for [the appellant], nor shall we scour the record to find evidence
to support an argument; consequently, we deem this issue waived.” (brackets
in original)).
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The Pennsylvania Rules of Evidence prohibit the admission of hearsay
evidence, except as provided by the Rules. Pa.R.E. 802. Our cases define
hearsay as “an out-of-court statement offered to prove the truth of the matter
asserted in the statement.” Commonwealth v. Kuder, 62 A.3d 1038, 1055
(Pa.Super. 2013), appeal denied, 114 A.3d 416 (Pa. 2015), citing
Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999), cert. denied
sub nom. Puksar v. Pennsylvania, 531 U.S. 829 (2000).
Here, the record reflects that the evidence at issue was not introduced
to prove the truth of the matter asserted within the statement; therefore, the
rule against hearsay and its exceptions do not apply in this instant case.
Indeed, the trial court instructed the jury as follows:
Members of the jury, you may remember yesterday
that I provided you with a cautionary instruction and
told you that certain evidence was being admitted for
a limited purpose. Before we hear any more
testimony from this witness, I also want to give you
an instruction as follows:
You are about to hear evidence that [Mr.] Lee gave a
written statement to Detectives Bandy and Schurr on
March 26, 2011. I want to caution you that this
evidence is not being admitted to prove the truth of
the contents of that statement; rather, it is being
admitted only for a limited purpose of establishing by
circumstantial evidence the existence of the alleged
conspiracy between [Mr.] Lee and [appellant], should
you choose to accept it as such.
Again, I caution you that this evidence is being
admitted only for that limited purpose and not for any
other purpose.
Notes of testimony, 4/12/17 at 45.
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Accordingly, appellant’s third issue is without merit.
In his fourth issue, appellant appears to raise a sufficiency of the
evidence claim. Specifically, appellant contends that the trial court erred when
it denied appellant’s post-sentence motion for a judgment of acquittal for the
second-degree murder charge because the Commonwealth failed to establish
beyond a reasonable doubt that a robbery took place. (Appellant’s brief
at 27.)
The Pennsylvania Rules of Appellate Procedure require an appellant to
“concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge” within the
concise statement of errors complained of on appeal.
Pa.R.A.P. 1925(b)(4)(ii). Pennsylvania courts have consistently held that for
sufficiency of the evidence challenges, an appellant’s Rule 1925(b) statement
“needs to specify the element or elements upon which the evidence was
insufficient.” Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super.
2015), quoting Commonwealth v. Williams, 959 A.2d 1252, 1257
(Pa.Super. 2008) (citation omitted). Failure to do so results in waiver of the
issue on appeal. Id.
Here, similar to the defendant in Tyack, appellant provides a boilerplate
Rule 1925(b) statement, averring as follows: “Did the Trial Court err by
Denying [Appellant’s] Post-sentence Motion for a Judgment of Acquittal on the
charge of Murder in the Second Degree, for which the Jury returned a guilty
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J. S06044/20
verdict?” (Appellant’s Rule 1925(b) statement, 1/26/18 at ¶ IV; see also
Tyack, 128 A.3d at 260.) Appellant failed to specify any element upon which
the Commonwealth’s evidence was insufficient. Accordingly, appellant’s
fourth issue is waived on appeal.
Judgment of sentence affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 9/22/2020
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