The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAIJIN XAVIER SCOTT :
:
Appellant : No. 634 WDA 2022
Appeal from the Judgment of Sentence Entered November 22, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004375-2018
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 12, 2023
Kaijin Xavier Scott appeals from the judgment of sentence, entered in
the Court of Common Pleas of Allegheny County, after he was convicted by a
jury of second-degree murder,1 robbery,2 conspiracy to commit robbery,3 and
tampering with/fabricating physical evidence.4 After careful review, we affirm.
Scott was charged as a co-conspirator in the February 22, 2018 shooting
death of Keiauna Davis. Scott’s co-conspirator, Dane Taylor, fatally shot Davis
after struggling with her to steal her purse. Scott drove the get-away car
____________________________________________
1 18 Pa.C.S.A. § 2502(b).
2 Id. at § 3701.
3 Id. at § 903.
4 Id. at § 4910(1).
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after Taylor shot the victim twice. The trial court recounted the underlying
facts of the alleged conspiracy as follows:
[O]n the morning of February 22, 2018, Keiauna Davis was
working at the Dollar General store in Wilkinsburg. This was one
of two jobs held by [] Davis, who was a single mother to two
children under the age of six. During her shift, Ms. Davis’s
grandmother, Linda Wilson, delivered [cash in the amount of]
approximately $3,000[.00] to her, which represented her tax
return. []Davis, who relied on public transportation or family
members to drive her to and from work, was planning to shop for
a car after work that day and to buy party supplies for her
daughter’s upcoming birthday.
Laya Whitley, who only started working at the Dollar General the
day before, became aware of this money and texted Dane Taylor
of the same. The text exchanges were presented through several
exhibits and were read [into the record] by Allegheny County
Police Detective Laurie McKee. On February 22, 2018[,] the
following exchange occurred:
Whitley: “Guess what?” (11:25 a.m.)
Taylor: “Wat.” (11:31 a.m.)
Whitley: "This girl at my job brought 7 bands to work. Ain't
that some shit?" (11:31 a.m.)
Taylor: “It's a go. Delete all dez [sic] texts.” (12:48 p.m.)
Whitley: “They been gone.” (1:26 p.m.)
Taylor: “Ite” (1:27 p.m.)
Each of these messages from Whitley’s phone showed evidence of
having been deleted.
Shortly after Whitely told Taylor about [] Davis’s money, phone
records offered at trial established that [Scott] and Taylor began
communicating. The phone records for [] Whitley, [] Taylor, and
[Scott] revealed the date and time of the communications but not
the content.
These exhibits illustrated that a call was placed by Taylor to
[Scott] on February 22, 2018[,] at 12:01 p.m.[,] lasting one
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minute and nineteen seconds; followed by a call from [Scott] to
Taylor at 12:03 p.m. The records evidenced two more calls from
[Scott] to Taylor at 1:55 p.m. and again at 2:29 p.m. [Scott] and
Taylor also communicated by text message a total of 18 times
between 12:00 p.m. and 2:30 p.m.
Video surveillance from inside the Dollar General showed that []
Davis secured the money in the [m]anager’s office during her
shift, and later retrieved the money along with her personal
belongings at the end of her shift. She then proceeded to the
counter to make some purchases at the register manned by
Whitley. [Scott], who had already picked up [] Taylor, was parked
in the rear lot of the Dollar General. Exterior surveillance footage
then shows [] Davis exit at 2:36 p.m. Thereafter, [Scott] and
Taylor leave the parking lot and drive onto Laketon Avenue. The
events that followed, including [] Davis walking on Laketon
Avenue, up to and including her murder, were captured on a
residential surveillance camera. The entire event, beginning when
[Scott] parked the vehicle until he drove away from the scene,
was less than one minute.
[Scott] and Taylor knew who [] Davis was based on the physical
description provided by [] Whitley. Therefore, once they located
her walking on Laketon Avenue, [Scott] drove past her, and
parked the car along the sidewalk. [Scott] then exited the car and
bent down near the rear driver’s side tire. As [] Davis walked
alongside the passenger side of the vehicle, Taylor open[ed] the
front passenger door and jump[ed] out of the car. [] Davis
immediately r[an] and [wa]s chased by Taylor into an abandoned
lot where she physically struggle[d] with him over her purse. At
this time, [] Davis is on the ground with Taylor standing over her,
and [Scott] is standing in the street beside the vehicle. After
several seconds of wrestling over the purse to no avail, Taylor
sho[t] at [] Davis two times. The first shot missed, and the second
shot struck her in the right hip, later resulting in her death. At the
time of the shooting, [Scott] quickly moved to the front of the
vehicle and then seconds later he walked back to the driver’s door
and reentered the car.
Surveillance continued to capture the events which showed Taylor
take the purse from a now[-]injured [] Davis. Taylor can be seen
running back to the car at which time he tossed the purse inside
through the open passenger door to [Scott], who [wa]s now
seated in the driver’s seat. Taylor then returned to the location
of [] Davis to retrieve an item which was later determined to be
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his phone. As Taylor entered the passenger door, the purse [wa]s
thrown out of the open door by [Scott] and [wa]s caught on a
nearby tree, where it was later retrieved by police. [Scott]
immediately drove away from the scene with Taylor as [] Davis
continued to struggle on the ground, having been critically
wounded by the gunshot. The surveillance footage recorded []
Davis’s last living moments as she crawled to the sidewalk and
attempted to wave at passing cars for help. Eventually, a
passerby stopped and called for help as evidenced by the response
of both police and EMS at the scene. [] Davis was transported to
a local hospital[,] where she was pronounced dead at 3:39 p.m.
on February 22, 2018.
At trial[,] the Commonwealth presented testimony from Dr. Todd
Luckasevic, a forensic pathologist with the Allegheny County
Office of the Medical Examiner. He testified that [] Davis, a 27-
year-old African American female, died from a gunshot wound to
her pelvis. D[octor] Luckasevic stated that the bullet entered
through the outside of her right thigh. He described it as a contact
wound, directing the jury to the photographic evidence which
showed soot on her skin, as well as a muzzle imprint abrasion,
and an abrasion consistent with the recoil spring of a firearm. He
explained to the jury that the bullet took a trajectory from right
to left and back to front, severing two major arteries and
fracturing her hip bone before exiting out her inner thigh.
Following the homicide, [Scott] and Taylor were captured on video
arriving at 2215 Wilner Drive, the residence of [] Whitley.
The next day, on February 23, 2018, the vehicle operated by
[Scott] was recovered in Penn Hills. This same day, police made
contact with [Scott] at his residence in Turtle Creek and he
indicated he wished to talk with Allegheny County detectives who
were investigating the homicide of [] Davis. County detectives
responded to [Scott’s] residence, and he voluntarily accompanied
the detectives to Allegheny County police headquarters for an
interview. The nine-hour interview was recorded and played for
the jury.
During the course of the interview[, Scott’s] statements as to the
events of February 22, 2018[,] changed multiple times. Initially,
he told police that he gave a jitney ride to an unknown person.
Then [Scott] stated that during the drive to the Dollar General in
Wilkinsburg, he learned that this individual knew both [Scott’s]
brother and mother and went by the name “D Low.” [Scott] stated
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that after arriving at the location, “D Low” robbed him at gunpoint,
and continued to keep him at gunpoint as he threatened to hurt
[Scott’s] mother if [Scott] didn’t do what he said. [Scott] told
detectives that it was out of fear for his life and his mother’s, that
he complied with the step-by-step instructions given by “D Low”
regarding where to drive and what to do. [Scott] stated that “D
Low” directed him to drive past [] Davis who was walking on the
sidewalk, and then park along the street ahead of her. [Scott]
was then ordered out of the car by Taylor and told to pretend that
he was having car trouble. As [] Davis walked by the passenger
door, “D Low” got out of the car and began to struggle with Ms.
Davis over her purse. During the struggle, [Scott] heard two
gunshots. The first did not strike [] Davis but the second one did.
“D Low” then removed the purse from [] Davis, ran back to the
car, threw the purse inside, and ordered [Scott] to “get it,” which
[Scott] assumed meant money. At “D Low’s” instruction, [Scott]
then threw the purse out of the vehicle and drove away with “D
Low” in the car. Still under “D Low’s” direction, [Scott] drove a
few blocks away where he then dropped off “D Low.” Prior to
exiting the vehicle, "D Low" made another threat against [Scott’s]
mother. From there, [Scott] re-counted that he drove to his
residence in Turtle Creek and then downtown to get his phone
fixed.
[Scott’s] story then shifted as to how he initially encountered “D
Low,” who he still maintained he did not know. He now explained
that he was looking to buy marijuana when he came across “D
Low” and that their interaction then turned into a jitney ride. He
maintained[,] however[,] that his actions once they got to the
Dollar General were all forced under gunpoint.
Several hours into the interview police began talking about []
Whitley, prompting another revision by [Scott] as to the events of
February 22, 2018. He now admitted that the person he drove to
the Dollar General was not a stranger, or a person known as “D
Low,” but a man named “H.D.” He also divulged he knew the
purpose of the trip to the Dollar General was to allow “H.D.” to get
money, and disclosed that a girl inside the store told “H.D” that a
female co-worker with red hair had $7,000. [Scott] also admitted
that he had contact with “H.D.” after the shooting. Specifically,
that he picked up “H.D.” that night and took him to Whitley’s
residence in the East Hills section of Pittsburgh and messaged with
“H.D.” through Facebook.
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A forensic download of [Scott’s] phone confirmed these Facebook
messages[,] which occurred from 7:23 p.m. on February 22,
2018[,] through 1:13 p.m. on February 23, 2018. Throughout the
messaging[, Scott] and Taylor refer to each other as “bro,”
“"homie,” “dude[,]” and “cuhs,” which [i]s known [to be] short for
[“]cousin.[”] The initial message came from [Scott] asking Taylor
what he was doing. The two messaged about someone who died
in Wilkinsburg, referencing a single mom. [Scott] also stated
that[] “she was cute” and “lmao” which stands for “laughing my
ass off.” Taylor responded that [Scott] is disgusting and “lol”
which stands for “laughing out loud.” Taylor messaged [Scott]
that he heard that the [police] had the car color but not the plate
and [Scott] referenced that the story was on the news. The two
continued to talk about football and splitting a jitney to go out that
night. The messages ceased around 10:21 p.m. on February 22,
2018[,] and resumed in the early morning hours of February 23,
2018, when Taylor messaged [Scott] that he, “[p]assed out and
woke up early.” They then engaged in talks about what they were
doing that morning. At 10:40 a.m., [Scott] messaged Taylor that
the police were at his house [and told] Taylor that he had been
robbed the night before and was scared. The records revealed
that Taylor continued to message [Scott] between 11:21 a.m.
until 1:13 p.m., with no response from [Scott].
At this time and day, 1:13 p.m. on February 23, 2018, [Scott]
was at Allegheny County headquarters[,] where his recitation of
the events of February 22, 2018[,] continued to evolve. Police
asked [Scott] if he received any money from the robbery and he
pointedly denied that he had. However, this statement quickly
changed. First, he disclosed that he was offered money but
refused it. Shortly thereafter, he admitted that there was $700-
$800 in a bag located in a bedroom closet, however it was H.D.’s
money that [Scott] was instructed to keep at his house and not
touch.
During the interview [Scott] agreed to give police his cell phone
and his password to allow for a forensic download. From this
download, a string of text messages w[as] discovered between
[Scott] and Whitley that occurred after the murder on February
22, 2018[,] between 6:06 p.m. and 6:13 p.m.
[Scott]: “It's Rod Drey.” “How are you doing?” (6:06 p.m.)
Whitley: “Lol. I am ite. Where you from?” (6:11 p.m.)
[Scott]: “Homewood. Where you from?” (6:12 p.m.)
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Whitley: “I’m from the hill G block to be exact. Lol. And I
say show b-c that my second hood.” (6:12 p.m.)
[Scott]: “Lol. I see. WYM. (Known as “what you mean”)
That is cool doe. How old are you?” (6:12 p.m.)
During the investigation police returned to [Scott’s] residence in
Turtle Creek[,] where they encountered his girlfriend[,] India
McDonald. [] McDonald lived with [Scott] and provided police with
consent to search the residence. During the search, police seized
two cell phones that were subsequently submitted for a forensic
download. Afterward, detectives transported [] McDonald to her
parents’ residence in Wilkinsburg. During the ride [] McDonald
advised them that she had money she wanted to turn over to the
police. [] McDonald then entered her parents’ residence and
returned to the detective’s vehicle with $669. She explained that
she was giving it to them because she received it from [Scott],
who told her it was proceeds from a robbery that had been
committed the night before.
At trial, [Scott] testified on his own behalf. He stated that he
accepted a Facebook request from [] Taylor for a jitney ride,
explaining that he knew of him peripherally because Taylor was
friends with Scott’s brother and that his nickname was H.D. He
described exchanging multiple phone calls and text messages with
Taylor prior to picking him up on Ray Street in Wilkinsburg. After
picking him up, Taylor told him to drive to the Dollar General store
and to back into a parking spot in the back lot. [Scott] then left
the car to urinate outside an abandoned building while Taylor
remained inside the vehicle. When [Scott] returned to the car,
Taylor was now wearing a face mask and had a gun out and
ordered [Scott] to shut the door. According to [Scott], Taylor told
him that he needed this money and that [Scott] was going to do
what he said. Although [Scott] described that Taylor was aiming
the gun in his direction, he denied that he was being held at
gunpoint. Despite telling the jury he was not under threat, [Scott]
testified he did what Taylor wanted and repeatedly asked him not
to shoot him.
[Scott] testified that he exited the parking lot. At this time[,]
Taylor instructed him to drive past the female with red hair and
park along the street. [There]after, [Scott] was ordered out of
the car and instructed to act like he was fixing something on the
car. According to [Scott], Taylor threatened to shoot [Scott] if he
tried to run away. [Scott] felt like his life was in danger and told
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the jury he did as he was instructed. Consistent with the video
evidence, [Scott] described that Taylor jumped out of the car as
[] Davis walked by and immediately began to tussle with her over
her purse. [Scott] then heard one gunshot and started to run
towards the victim when a second gunshot stopped him in his
tracks. [Scott] got back into the car at Taylor's instruction. Taylor
then threw the purse at him and ordered him to take out the
money. [Scott] removed the money and then threw the purse
out the window.[5] [Scott] explained that Taylor still had the gun
out when he told [Scott] to drive away, further instructing him to
drive to [Scott’s] house. Once inside the house, Taylor, who was
still holding the gun, ordered [Scott] to hide some of the money
upstairs. [Scott] told the jury that Taylor followed him upstairs
and watched him hide the money in a closet. Taylor then told
[Scott] where to drop him off and threatened to “off” him and his
brother if he called the police. [Scott] explained that it was fear
for himself and his family that kept him from calling 911 or the
police. He described how he then drove around for a bit when he
remembered that he needed to go downtown and pick up his
phone. Thereafter[, Scott] received a call from Taylor demanding
that [Scott] come pick him up. [Scott] complied and drove Taylor
to the East Hills residence of [] Whitley. [Scott] maintained that
he had never met Whitely prior to this. He said that they
exchanged telephone numbers because he wanted to make sure
he had Whitley’s phone number so if he talked to the police he
could give them her information. He further explained that he
messaged with Taylor after the shooting, as part of a plan he and
his wife concocted in an effort to get Taylor to his house so they
could call the police.
[Scott] admitted on cross[-]examination that he was not truthful
with the detectives during his interview when he denied knowing
[] Taylor, however, he continued to deny any advanced knowledge
that Taylor was going to rob [] Davis.
____________________________________________
5 Video footage shows Scott throw the victim’s purse out of the open
passenger-side door and into a nearby tree. The court found that Scott’s
actions supported the jury’s verdict that Scott discarded the victim’s purse
with the intent to prevent its accessibility for any future investigation,
resulting in Scott’s conviction for tampering with evidence. Critically, Scott
testified at trial that he threw the victim’s purse to get rid of it because he was
concerned it may have had his DNA and/or fingerprints on it. N.T. Jury Trial,
8/26/21, at 409-10.
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[Scott] also offered three character witnesses[,] who testified that
[Scott] had a good reputation for peacefulness and non-violence
in the community.
Trial Court Opinion, 10/4/22, at 3-13.
After a five-day jury trial held in August 2021, Scott was found guilty of
the above-stated offenses. On November 22, 2021, the court sentenced Scott
to a mandatory sentence of life imprisonment for murder, 6-12 years of
imprisonment for robbery, and 6½ -13 years of imprisonment for conspiracy.6
The court ran the sentences consecutively, for an aggregate sentence of life,
plus 12½ -25 years’ imprisonment. Scott filed a timely post-sentence motion
and an amended nunc pro tunc7 post-sentence motion challenging the
sufficiency and weight of the evidence. On April 25, 2022, the trial court
denied the motion.
Scott filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. He raises the following
issues for our consideration:
(1) Did the trial court abuse its discretion in excluding
statements made by [] Taylor that he forced Scott to
participate in the robbery of the victim where those
statements implicated Taylor in the crimes against the
victim and crimes against Scott, and where they [were]
made under circumstances clearly corroborating their
trustworthiness and, thus, were admissible statements
against interest pursuant to Pa.R.E. 804(b)(3)?
____________________________________________
6 No further penalty was imposed on the tampering conviction.
7 Scott requested, and the trial court granted him, leave to file an
amended/supplemental post-sentence motion nunc pro tunc. See Order,
1/4/22.
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(2) Was the evidence at trial insufficient to support Scott’s
convictions for second-degree murder, robbery, and
conspiracy to commit robbery because the evidence was in
equipoise as to whether [it] required speculation to conclude
that Scott intended to rob, aided the robbery of, or agreed
to rob [] the victim, as opposed to being Taylor’s unwitting
and subsequently threat-compelled pawn?
Appellant’s Brief, at 4.
In his first issue, Scott contends that the trial court erred in not
admitting evidence of statements that Taylor made to a fellow inmate, David
Tyus, that would have been admissible as a statement against Taylor’s penal
interest. See Pa.R.E. 804(b)(3).
Under the rules of evidence,
Statement Against Interest — A statement which was at the
time of its making so far contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to subject the declaration to
civil or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the
declarant’s position would not have made the statement unless
believing it to be true. In a criminal case, a statement tending
to expose the declarant to criminal liability is not
admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Pa.R.E. 804(b)(3) (emphasis added). See also Commonwealth v. Bracero,
528 A.2d 936, 941 (Pa. 1987) (plurality opinion) (holding “declarations against
penal interest are admissible as an exception to the hearsay rule only when
there are circumstances that provide clear assurance that such declarations
are trustworthy and reliable”).
Instantly, Tyus testified that in 2018 he was cellmates in the Allegheny
County Jail with Taylor, whom he referred to as “Gusto.” Tyus testified that
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Taylor wrote down what occurred during the instant robbery and shooting,
indicating that Scott had no intent to rob the victim. Taylor asked Tyus to
give Scott this note, but Tyus explained that he did not know Scott at the time
Taylor relayed this information to him. Tyus later changed cells in jail and
was placed near Scott but never gave him the note, having thrown it away
several months before he relocated cells.
Tyus also testified that, at some point later in time, Taylor authored and
gave to Tyus a second note, which Tyus did give to Scott. That second note
also indicated that Scott did not intend to rob the victim. The defense,
however, was unable to produce this second note at the evidentiary hearing.
See N.T. Hearing, 8/26/21, at 500 (“[T]hat note is unavailable, Your Honor.”).
Tyus, however, claimed he wrote a four-page letter detailing what Taylor had
told him in August of 2018 and mailed it to Scott’s mother. Scott sought to
have Tyus testify to the substance of what was in the letter— that, in fact,
Taylor told him that he was solely responsible for robbing and killing the
victim, and that Scott was unaware of the robbery plan.
In August 2021, the trial court held a hearing, outside the presence of
the jury, on Scott’s request to admit Tyus’ four-page letter from August 2018
and to have Tyus testify regarding conversations he had with Taylor in jail.
Taylor invoked his Fifth Amendment privilege and was deemed unavailable.
See Pa.R.E. 804(b)(3). Ultimately, the court excluded the proposed testimony
on the basis that it did not deem the statements trustworthy or reliable due
to the circumstances under which they were made. Commonwealth v.
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Colon, 846 A.2d 747 (Pa. Super. 2004). Specifically, the court determined
that “there are no assurances of reliability to the jailhouse statement Dane
Taylor made to fellow inmate David Tyus” where:
• There is no corroborative evidence to establish reliability of statement;
• Both alleged notes Taylor wrote were no longer available;
• Statements were made while Taylor was incarcerated and not
spontaneously after robbery and homicide;
• There is nothing self-incriminatory about statements; and
• Statements would have been uncorroborated hearsay as Taylor not
subject to examination under oath about any claim that Scott did not
participate in robbery.
Trial Court Opinion, 10/4/22, at 22.
In Commonwealth v. Robins, 812 A.2d 514 (Pa. 2002), our Supreme
Court noted “that in every circumstance where the admission of testimony
pursuant to this [hearsay] exception is considered, corroboration independent
of the statement itself is necessary.” Id. at 525. With regard to factors that
may be helpful in determining whether a statement is independently
corroborated, the Robins Court reiterated:
[C]ourts have evaluated: the circumstances under which the
statements were uttered, including the custodial/non-custodial
aspect of the setting and the identity of the listener; the contents
of the statement, including whether the statements minimize the
responsibility of the declarant or spread or shift the blame; other
possible motivations of the declarant, including improper motive
such as to lie, curry favor, or distort the truth; the nature and
degree of the “against interest” aspect of the statements,
including the extent to which the declarant apprehends that the
making of the statement is likely to actually subject him to
criminal liability; the circumstances or events that prompted the
statements, including whether they were made with the
encouragement or at the request of a listener; the timing of the
statement in relation to events described; the declarant’s
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relationship to the defendant; and any other factors bearing upon
the reliability of the statement at issue.
Id. at 526-27.
We agree with the trial court that the evidence is inadmissible due to its
lack of independent corroboration where Taylor’s notes were unavailable or
had been thrown away, see N.T. Hearing, 8/26/21, at 500, no one witnessed
Tyus write or send his four-page letter to Scott’s mother, id. at 503; the
defense had no proof that Tyus ever mailed the letter to Scott’s mother, id.;
the information in Tyus’ letter and Taylor’s statements were “100 percent []
opposite to all of the testimony that [was] present[ed] during the course of
the trial,” id. at 505-06; and the information does not inculpate Taylor. Id.
at 506.8 Bracero, supra.
In his next issue, Scott contends the evidence was insufficient to prove
that he was guilty of second-degree murder, robbery, and conspiracy to
commit robbery.9 Specifically, Scott asserts that the evidence presented at
trial to prove that he “was an intentional participant in the plot [to rob the
____________________________________________
8 We note that the court also found the evidence inadmissible on the grounds
that a declarant’s exculpatory statement with regard to an accomplice is not
considered a statement against interest. Commonwealth v. Colon, 337
A.2d 554, 558 (Pa. 1975).
9 Scott has abandoned any claim as to the sufficiency or weight of the evidence
with regard to his tampering with evidence conviction as he has failed to argue
it in his appellate brief. See Pa.R.A.P. 2119(a), (b) (requiring properly
developed argument for each question presented including a discussion of and
citation to authorities in appellate brief); Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to Rules
of Appellate Procedure results in waiver of the underlying issue).
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victim], rather than an unwitting and, later, threat-compelled pawn,”
Appellant’s Brief, at 13, was speculative at best. “In short, the
Commonwealth’s failure to provide any evidence about how Scott came to
participate in the robbery leaves a hole in its case as to whether he intended
to do so, or, rather, was Taylor’s threat[-]compelled instrument.” Id. at 31.
We disagree.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
After reviewing the parties’ briefs, the relevant case law, and the
evidence of record, we rely upon the well-written opinion, authored by the
Honorable Bruce R. Beemer, to dispose of Scott’s sufficiency of the evidence
claims on appeal. See Trial Court Opinion, 10/4/22, at 22-34. The evidence
established, beyond a reasonable doubt, the elements for second-degree
murder, robbery, and conspiracy. We instruct the parties to attach a copy of
Judge Beemer’s decision in the event of further proceedings in the matter.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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Circulated 05/25/2023 10:35 AM
Allegheny County - Department of Court Records
Criminal Division - Filings Information
County caseID:CP-02-CR-0004375-2018(Opinion)
Case Description: COMMONWEALTH OF PENNSYLVANIA v. LNAME SCOTT
Official Docket Entry, Sort By Document Number Ascending
Document Title/Entry Filing Date
Number
1 OPINION 10/04/2022
(Index Page-1)
1-OPINION
COMMON PLEAS
IN THE COURT OF COMMON PLEAS OF
OF ALLEGHENY
ALLEGHENY COUNTY,
COUNTY, PENNSYLVANIA
PENNSYLVANIA
CRIMINAL DIVISION
CRIMINAL DIVISION
COMMONWEALTH OF
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA CP-02-CR-0004375-2018
CP-02-CR-0004375-2018
634 WDA
634 WDA2022
2022
vv..
KAIJIN XAVIER
KAIJIN XAVIER SCOTT
SCOTT
Appellant,
Appellant,
OPINION
OPINION
JUDGE BRUCE R.
JUDGE BRUCE R. BEEMER
BEEMER
served by
Copiesserved
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111V
0 JO
1103 AO 1d30
92lH
91 - 130VA
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Gal
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
COMMONWEAL TH OF PENNSYLVANIA CP-02-CR-0004375-2018
634 WDA 2022
WDA2022
vv..
KAIJIN XAVIER SCOTT
Appellant,
OPINION
BRUCE R. BEEMER, J.
Appellant, Kaijin Scott, appeals from the judgment of sentence order imposed after a jury
trial wherein he was found guilty of Murder of the Second Degree, 18
18 Pa.C.S. § 2502(B);
Robbery, 18
18 Pa.C.S. § 3701; Conspiracy (Robbery), 18
18 Pa.C.S. § 903; and Tampering with or
Fabricating Physical Evidence, 18
18 Pa.C.S. § 4910(1).
The trial commenced on August 23, 2021. After a five-day trial, Appellant was
2021 of the charges referenced above. On November 22, 2021, the
convicted on August 27, 2021
1, Murder of the Second Degree; 6-12 years
Court imposed a mandatory life sentence at Count 1,
Robbery;1 and at Count 3, Conspiracy (Robbery), a sentence of 6 Y2
of incarceration at Count 2, Robbery;1 ½-
13 years of incarceration. The Court ran each count consecutively for an aggregate sentence of
13
12 'A
life in prison plus 12 ½ - 25 years.
1
The sentence imposed at Count 2 Robbery was vacated during the post sentence motion hearing held on April 22,
l. Amended Order of Sentence, April 22, 2022.
2022, as it merged with Count 1.
2
On December 2, 2022, Appellant filed a timely Post Sentence Motion with a request to
·.
supplement. Upon receiving a time extension, an Amended Post Sentence Motion was filed on
March 3, 2022 challenging both the sufficiency and the weight of the evidence. The motion was
2022.2 A timely Notice of Appeal was filed on May 25, 2022, followed by a
denied on April 25, 2022.2
Concise Statement of Matters Complained of on Appeal (hereinafter Statement) on June 21,
2022. This Opinion follows.
FACTUAL BACKGROUND
The majority of evidence adduced at trial was uncontested by Appellant, including that he
was present at the time co-conspirator Dane Taylor3
Taylor' shot and killed Keiauna Davis on February
2018.4 Appellant's dispute with the Commonwealth's case centered around the reasons and
22, 2018.4
circumstances for his actions.
The Commonwealth presented evidence regarding the events leading up to Davis's death
through various witnesses. Collectively, of February 22, 2018,
Collectively, they testified that on the morning of
Keiauna Davis was working at
at the Dollar General store
store in Wilkinsburg. This was one of
of two
jobs held by Ms. Davis, who was aa single
single mother to two children under the age of
of six.5
six.' During
shift, Ms.
her shift, Ms. Davis's grandmother, Linda Wilson, delivered approximately $3,000
$3,000 to her, which
2
2 The April
The 25, 2022
April 25, 2022 order
order was
was timely inasmuch as
timely inasmuch as the
the Court
Court granted
granted Appellant's March 8,
Appellant's March 8, 2022
2022 Motion
Motion forfor
Extension of
Extension ofTime
Time toto rule
rule on
on the
the Amended
Amended PostPost Sentence
Sentence Motion.
Motion.
3 Dane Taylor was in connection
connection withwith the
the death
death ofofKeiauna Davis atat CP-02-CR-0004793-2018.
CP-02-CR-0004793-2018. On On July 16,
16,
3 Dane charged in
Taylor was charged Keiauna Davis
2019, Dane
2019, Dane Taylor entered aa guilty
Taylor entered guilty plea to Murder
plea to Murder of of the
the Third
Third Degree,
Degree, 18
18 Pa.C.S.
Pa.C.S. §2502(c);
§2502(c); Robbery,
Robbery, 18 18 Pa.C.S.
Pa.C.S.
$3701(a)(1)(); Conspiracy
§3701(a)(1)(i); Conspiracy (Robbery),
(Robbery), 18 18 Pa.C.S.
Pa.C.S. §903;
§903; and
and Violations
Violations of
of the
the Uniform
Uniform Firearms
Firearms Act
Act (VUFA),
(VUFA), 18 18
Pa.C.S. §6106.
Pa.C.S. §6106. He He was
was sentenced
sentenced in in accordance
accordance withwith aa negotiated agreement to
negotiated agreement to aa period
period of
of30-60 years of
30-60 years of
incarceration. A
incarceration. A post sentence motion
post sentence motion waswas filed
filed and
and subsequently denied by
subsequently denied by operation
operation ofof law
law on
on July
July 28,
28, 2020.
2020. OnOn
November 10,
November 10, 2020
2020 Taylor filed aa PCRA
Taylor filed PCRA petition. After an
petition. After an evidentiary
evidentiary hearing
hearing held
held on
on November
November 22, 22, 2021,
2021, the
the
Court issued
Court issued an
an order
order denying the PCRA
denying the PCRA petition on February
petition on February 17,17, 2022.
2022. No
No direct
direct appeal
appeal was
was filed.
filed.
4
Trial Transcript,
Jury Trial
Jury (J.T.) August
Transcript, (J.T.) August 23,23, 2021
2021 —-August
August 27,27, 2021,
2021, 57-64,
57-64, 96-97,
96-97, 548,548,563.
563.
5
J.T. at
5 J.T. at 69.
69.
33
retum.6 Ms. Davis, who relied on public transportation or family members to
represented her tax return.6
drive her to and from work, was planning to shop for a car after work that day and to buy party
birthday.7
supplies for her daughter's upcoming birthday.7
Whitley8, who only started working at the Dollar General the day before, became
Laya Whitley8,
same.9 The text exchanges were presented
aware of this money and texted Dane Taylor of the same.9
through several exhibits and were read by Allegheny County Police Detective Laurie McKee1.1°
McKeel."
On February 22, 2018 the following exchange occurred:
Whitley: "Guess what?" (11:25
(11 :25 a.m.)
Taylor: "Wat." (11:31
(11:31 a.m.)
Whitley: "This girl at my job brought 7 bands to work. Ain't that some shit?" (11:31
(11 :31 a.m.)
Taylor: "It's a go. Delete all dez texts." (12:48 p.m.)
Whitley: "They been gone." (1:26
( 1 :26 p.m.)
Taylor "Ite" (1:27
(1 :27 p.m.)
Each of these messages from Whitley's phone showed evidence of having been deleted."
deleted.'
Shortly after Whitely told Taylor about Ms. Davis's money, phone records offered at trial
established that Appellant and Taylor began communicating.12
communicating.' The phone records for Laya
6
6 J.T. at 68, 70-72, 82.
7
J.T. at 69-73, 82.
8
8 Laya Whitley was charged in connection with the death of Keiauna Davis at CP-02-CR-0004374-2018. On July
ofKeiauna
18 Pa.C.S. §2502(c); Robbery, 18
16, 2019, Whitley entered a guilty plea to Murder of the Third Degree, 18
16, 18 Pa.C.S.
§370l(a)(l)(i); Conspiracy (Robbery), 18
§3701(a)(1)(i); 18 Pa.C.S. §903; Criminal use of Communication Facility, 18
18 Pa.C.S.
$7512(a) and Tampering with evidence, 18
§7512(a) 18 Pa.C.S. §4910 (1). She was sentenced in accordance with a negotiated
agreement to a period of 20-50 years of incarceration. No post sentence motion or direct appeal were filed. On
March 25, 2020 Whitley filed a PCRA petition. The denial of her PCRA petition was appealed and affirmed by the
Pennsylvania Superior Court. Commonwealth v. 1051 (Pa. Super. 2022); 850 WDA 2021. A
• Whitley, 273 A.3d 1051
Petition for Allowance of Appeal was denied on July 5, 2022; 9191 WAL 2022.
99 J.T. at 79.
I0JT.
J.T. at 266- 272; Commonwealth Exhibit 41, 42, 45-51.
11 J.T. at 270-272.
''J.T.
J.T. at 313-316; Commonwealth Exhibit 60.
12J.T.
4
Whitley, Dane Taylor, and Appellant, revealed the date and time of the communications
communications but
but not
not
the content.'3
content.'
on February
Appellant on
These exhibits illustrated that a call was placed by Taylor to Appellant 22,
February 22,
at 12:01
2018 at 12:01 p.m. lasting one minute and
and nineteen seconds;
seconds; followed by aa call
call from
from Appellant
Appellant
at 12:03
to Taylor at 12:03 p.m. The records evidenced two more calls from Appellant to
to Taylor at
at 1:55
1 :55
and again
p.m. and again at
at 2:29
2:29 p.m. Appellant
Appellant and
and Taylor
Taylor also
also communicated
communicated by text
text message
message aa total
total of
of
18 times between 12:00
18 12:00 p.m. and 2:30 p.m.14
and 2:30 p.m.14
Video surveillance
Video surveillance from
from inside
inside the
the Dollar
Dollar General
General showed
showed that
that Ms.
Ms. Davis
Davis secured
secured the
the
money in
money in the
the Manager's
Manager's office
office during her shift,
during her shift, and
and later
later retrieved
retrieved the
the money
money along with her
along with her
personal belongings
personal belongings at
at the
the end
end of
ofher shift.15 She
her shift.15 She then
then proceeded to the
proceeded to the counter
counter to
to make
make some
some
purchases at
purchases at the
the register
register manned
manned by Whitley.' Appellant,
by Whitley.16 who had
Appellant, who had already
already picked
picked up Dane
up Dane
Taylor, was
Taylor, was parked
parked in
in the
the rear
rear lot
lot of
ofthe
the Dollar
Dollar General.
General. Exterior
Exterior surveillance
surveillance footage then
footage then
shows Keiauna
shows Keiauna Davis
Davis exit
exit at
at 2:36 p.m.17 Thereafter,
2:36 p.m.17 Thereafter, Appellant and Taylor
Appellant and leave the
Taylor leave the parking lot
parking lot
and drive
and drive onto
onto Laketon
Laketon Avenue.
A venue. The
The events
events that
that followed,
followed, including
including Ms.
Ms. Davis
Davis walking on
walking on
Laketon Avenue,
Laketon Avenue, up
up to
to and
and including her murder,
including her murder, were
were captured
captured on
on aa residential
residential surveillance
surveillance
camera.' The
camera.18 The entire
entire event,
event, beginning when Appellant
beginning when Appellant parked the vehicle
parked the vehicle until
until he
he drove
drove away
away
from the
from the scene,
scene, was
was less
less than one minute.'9
than one minute.19
and Taylor
Appellant and
Appellant knew who
Taylor knew who Keiauna
Keiauna Davis
Davis was
was based
based on
on the
the physical
physical description
description
provided by
provided by Laya
Laya Whitley. Therefore, once
Whitley. Therefore, once they
they located
located her
her walking
walking on
on Laketon
Laketon Avenue,
A venue,
drove past
Appellant drove
Appellant her, and
past her, and parked the car
parked the car along
along the
the sidewalk.
sidewalk. Appellant
Appellant then
then exited
exited the
the car
car
J.T
13J.T atat312-314;
312-314; Commonwealth
CommonwealthExhibits
Exhibits57-60.
57-60.
J.T.
14 318-322.
J.T. atat318-322.
J,T. atat82,
15ISJ.T. 82,90-92;
90-92; Commonwealth
Commonwealth Exhibit
Exhibit1.1.
JT. atat91-92.
16I6J.T. 91-92.
17J,T.
J.T. atat91.
91.
J.T. atat144-148;
18I8JT. 144-148;Commonwealth
CommonwealthExhibit
Exhibit22(audio
(audionot
notavailable).
available).
"9 CommonwealthExhibit
'Commonwealth Exhibit2,2,(Time
(TimeStamp
Stamp(T.S.)
(T.S.)6:41-7:36).
6:41-7:36).
55
and bent down near the rear driver's side tire. As Ms. Davis walked alongside the passenger side
of the vehicle, Taylor opens the front passenger door and jumps out of the car. Ms. Davis
immediately runs and is chased by Taylor into an abandoned lot where she physically struggles
with him over her purse. At this time, Ms. Davis is on the ground with Taylor standing over her,
and Appellant is standing in the street beside the vehicle. After several seconds of wrestling over
the purse to no avail, Taylor shoots at Ms. Davis two times. The first shot missed, and the
second shot struck her in the right hip, later resulting in her death. At the time of the shooting,
Appellant quickly moved to the front of the vehicle and then seconds later he walked back to the
driver's door and reentered the car.
Surveillance continued to capture the events which showed Taylor take the purse from a
now injured Keiauna Davis. Taylor can be seen running back to the car at which time he tossed
the purse inside through the open passenger door to Appellant, who is now seated in the driver's
seat. Taylor then returned to the location of Ms. Davis to retrieve an item which was later
determined to be his phone. As Taylor entered the passenger door, the purse is thrown out of the
police.?
open door by Appellant and is caught on a nearby tree, where it was later retrieved by police.20
Appellant immediately drove away from the scene with Taylor as Ms. Davis continued to
struggle on the ground, having been critically wounded by the gunshot. The surveillance footage
recorded Ms. Davis's last living moments as she crawled to the sidewalk and attempted to wave
at passing cars for help. Eventually, a passerby stopped and called for help as evidenced by the
response of both police and EMS at the scene. Ms. Davis was transported to a local hospital
2018.21
where she was pronounced dead at 3:39 p.m. on February 22, 2018.21
20 J.T. at 171; 18 and 19.
171; Commonwealth Exhibit 18 19.
2!J.T.
21 J.T. at 151.
151.
6
Luckasevic, aa forensic
At trial the Commonwealth presented testimony from Dr. Todd Luckasevic, forensic
He testified
pathologist with the Allegheny County Office of the Medical Examiner. He testified that
that
wound to
Keiauna Davis, a 27-year-old African American female, died from a gunshot wound to her
her
pelvis.22 Dr. Luckasevic stated
pelvis.22 stated that the bullet entered through the outside of
of her
her right thigh. He
thigh. He
as aa contact wound, directing the jury to the photographic evidence which
described it as which showed
showed
soot on
soot on her skin,
skin, as
as well
well as
as aa muzzle imprint abrasion, and
imprint abrasion, and an
an abrasion
abrasion consistent
consistent with
with the
the recoil
recoil
spring of
spring firearm.23 He
of aa firearm.23 He explained to the
explained to the jury that
that the
the bullet took
took aa trajectory from right to
trajectory from to left
left
and back
and back to
to front,
front, severing
severing two major arteries and
major arteries and fracturing her hip bone before exiting
fracturing her out her
exiting out her
inner thigh.24
inner thigh.?"
Following the
Following the homicide,
homicide, Appellant and Taylor
Appellant and Taylor were
were captured
captured on
on video
video arriving
arriving at
at 2215
2215
Wilner Drive,
Wilner Drive, the
the residence
residence of
ofLaya Whitley.25
Laya Whitley.25
The next
The next day,
day, on
on February 23, 2018,
February 23, 2018, the
the vehicle
vehicle operated
operated by
by Appellant was recovered
Appellant was recovered in
in
Penn Hills.
Penn Hills. This
This same
same day,
day, police made contact
police made contact with
with Appellant at his
Appellant at his residence
residence in
in Turtle
Turtle Creek
Creek
and he
and he indicated
indicated he
he wished
wished to
to talk
talk with
with Allegheny
Allegheny County detectives who
County detectives who were
were investigating the
investigating the
homicide of
homicide ofMs. Davis.26 County
Ms. Davis.26 detectives responded
County detectives to Appellant's
responded to residence, and
Appellant's residence, and he
he
voluntarily accompanied
voluntarily accompanied the
the detectives
detectives to
to Allegheny County police
Allegheny County headquarters for
police headquarters for an
an
interview.27 The
interview.27 The nine-hour
nine-hour interview
interview was
was recorded
recorded and
and played
played for
for the jury.28
the jury.28
the course
During the
During course of
ofthe
the interview
interview Appellant's
Appellant's statements
statements as
as to
to the
the events
events of
ofFebruary
February 22,
22,
2018 changed
2018 times. Initially,
multiple times.
changed multiple he told
Initially, he told police that he
police that he gave
gave aajitney
jitney ride
ride to
to an
an unknown
unknown
J.T.
J.T. atat232-234.
22 232-234.
JT. atat227-229;
2 J.T.
23 227-229; Commonwealth
Commonwealth Exhibit
Exhibit31
31 and
and32.
32.
24J.T.
24J.T. atat229-234;
229-234; Commonwealth
Commonwealth Exhibit
Exhibit33
33 and
and34.
34.
CommonwealthExhibit
25Commonwealth
25 Exhibit38.
38.
J.T. atat178,
26J.T.
26 178,197.
197.
J,T. atat179-180.
27J.T.
27 179-180.
JT. atat184-190,
28J.T.
28 184-190,199;
199;Commonwealth
CommonwealthExhibit
Exhibit27
27 and
and28.
28. By agreementthe
Byagreement thevideo
videowas
wasredacted
redactedto
toremove
removethe
the
arrestof
arrest ofAppellant andportions
Appellantand ofthe
portionsof theinterview
interviewwhen
whenpolice werenot
policewere notpresent.
present.
77
stated that during the drive
person. Then Appellant stated drive to
to the
the Dollar
Dollar General
General in
in Wilkinsburg, he
Wilkinsburg, he
brother and
learned that this individual knew both Appellant's brother and mother
mother and
and went
went by
by the
the name
name "D
"D
Appellant stated
Low". Appellant stated that
that after
after arriving at the
arriving at the location,
location, "D
"D Low"
Low" robbed
robbed him
him at
at gunpoint, and
gunpoint, and
continued to
continued to keep him
him at
at gunpoint as he
gunpoint as he threatened
threatened to
to hurt
hurt Appellant's mother if
Appellant's mother if Appellant didn't
Appellant didn't
do what
do what he
he said.29
said.? Appellant told detectives
Appellant told detectives that
that itit was
was out
out of
offear
fear for
for his
his life
life and
and his
his mother's,
mother's,
that he
that he complied with the
complied with the step-by-step instructions given
step-by-step instructions given by "D Low"
by "D Low regarding where to
regarding where to drive
drive
and what
and what to
to do.3°
do." Appellant stated that
Appellant stated that "D
"D Low"
Low" directed
directed him
him to
to drive
drive past Ms. Davis
past Ms. Davis who
who was
was
walking on
walking on the
the sidewalk,
sidewalk, and
and then
then park along the
park along the street
street ahead
ahead of
ofher.
her. Appellant was then
Appellant was then
ordered out
ordered out of
ofthe
the car
car by
by Taylor and told
Taylor and told to
to pretend that he
pretend that he was
was having trouble. 31 As
car trouble.31
having car As Ms.
Ms.
Davis walked
Davis walked by
by the
the passenger door, "D
passenger door, "D Low"
Low got out of
got out ofthe
the car
car and
and began to struggle
began to with Ms.
struggle with Ms.
Davis over
Davis over her
herpurse.
purse. During the struggle,
During the struggle, Appellant heard two
Appellant heard two gunshots. The first
gunshots. The first did
did not
not strike
strike
Ms. Davis
Ms. Davis but
but the
the second
second one
one did.
did. "D
"D Low"
Low then
then removed
removed the
the purse from Ms.
purse from Ms. Davis,
Davis, ran
ran back
back to
to
the car,
the car, threw
threw the
the purse inside, and
purse inside, and ordered
orderedAppellant to"get
Appellantto "get it",
it", which
which Appellant
Appellant assumed
assumed
meantmoney.
meant At"D
money. At Lows" instruction,
"D Low's" instruction, Appellant thenthrew
Appellantthen threwthe
thepurse
purseout
outof
ofthe
thevehicle
vehicleand
and
droveaway
drove with"D
awaywith "D Low"
Low" in
in the car.32 Still
thecar.32 Still under
under"D
"D Low's"
Low's" direction,
direction, Appellant
Appellantdrove
droveaafew
few
blocksaway
blocks wherehe
awaywhere hethen
thendropped off"D
droppedoff Low. Prior
"D Low". Priorto
to exiting thevehicle,
exitingthe vehicle,"D
"D Low"
Low"made
made
anotherthreat
another threatagainst
againstAppellant's mother. From
Appellant'smother. Fromthere,
there,Appellant
Appellantre-counted
re-countedthat
thathe
hedrove
drovetotohis
his
residencein
residence inTurtle
TurtleCreek
Creekand
andthen
thendowntown
downtowntotoget
gethis
hisphone
phonefixed.33
fixed.°
thenshifted
storythen
Appellant'sstory
Appellant's shiftedas
astotohow
howhe
heinitially
initiallyencountered
encountered"D
"DLow",
Low",who
whohe
hestill
still
maintainedhe
maintained hedid
didnot
notknow.
know. He
Henow
nowexplained thathe
explainedthat hewas
waslooking
lookingtotobuy
buymarijuana
marijuanawhen
whenhe
he
Exhibit28,
293Exhibit 28,Time
TimeStamp
Stamp(T.S.) 12:33-12:40.
(T.S.)12:33-12:40.
T.S.12:40-12:44.
3030T.S. 12:40-12:44.
T.S.12:40-12:42.
311T.S. 12:40-12:42.
1.S.12:42-12:45.
323T.S. 12:42-12:45.
33
T.S. 12:45-12:48.
T.S. 12:45-12:48.
88
came across "D Low"
Low and that their interaction then turned into a jitney ride.34
ride. He maintained
gunpoint.35
however that his actions once they got to the Dollar General were all forced under gunpoint.35
Several hours into the interview police began talking about Laya Whitley, prompting
another revision by Appellant as to the events of February 22, 2018. He now admitted that the
person he drove to the Dollar General was not a stranger, or a person known as "D Low",
Low, but a
man named "H.D." He also divulged he knew the purpose of the trip to the Dollar General was
to allow "H.D." to get money, and disclosed that a girl inside the store told "H.D" that a female
$7,000.36 Appellant also admitted that he had contact with "H.D"
co-worker with red hair had $7,000.36
after the shooting. Specifically, that that he picked up "H.D." that night and took him to
"H.D. that
Whitely's residence in the East Hills section of Pittsburgh and messaged with "H.D." through
Facebook.37
Facebook.37
A forensic download of Appellant's phone confirmed these Facebook messages which
occurred from 7:23 p.m. on February 22, 2018 through 1:13 2018.38
1:13 p.m. on February 23, 2018.38
Throughout the messaging Appellant and Taylor refer to each other as "bro", "homie", "dude"
and "cuhs", which was known as short for cousin. The initial message came from Appellant
asking Taylor what he was doing.39
doing." The two messaged about someone who died in Wilkinsburg,
referencing a single mom. Appellant also stated that, "she was cute" and "lmao" which stands
ofP." Taylor responded that Appellant is disgusting and "lol" which
for "laughing my ass off'.40
loud".41 Taylor messaged Appellant that he heard that they [police] had
stands for "laughing out loud".41
4 1:06-1:08.
T.S. 1:06-1:08.
3·1.S.
35 T.S. 2:25-2:31.
36
36 T.S.
T.S. 3:38-3:54.
37 T.S. 4:23-4:48.
J,T. at 273, 275-291; Commonwealth Exhibit 52.
3 J.T.
38
1.T. at 275.
39 J.T.
ao
«J.T.
J.T. at 279.
J.T. at 279-280
"JT.
41
9
car color
the car color but not the plate and
and Appellant referenced that
Appellant referenced that the
the story was on
story was on the
the news.42
news. The
The
two continued
two continued to
to talk
talk about
about football
football and
and splitting
splitting aa jitney to go
jitney to out that
go out night.43 The messages
that night.43 The messages
ceased around
ceased around 10:21
10:21 p.m. on February
p.m. on 22, 2018
February 22, 2018 and
and resumed
resumed in
in the
the early
early morning hours of
morning hours
of
23, 2018,
February 23, 2018, when
when Taylor that he,
he, "[p]assed out and
"[p]assed out and woke
woke up early."
February Taylor messaged
messaged Appellant
Appellant that up early.44
They then engaged
They then in talks
engaged in talks about
about what
what they were doing
they were that morning.
doing that At 10:40
morning. At 10:40 a.m., Appellant
a.m., Appellant
messaged Taylor
messaged that the
Taylorthat the police wereat
police were at his
his house,
house, informing
informing Taylor that he
Taylorthat he had
had been
been robbed the
robbed the
beforeand
nightbefore
night andwas scared.45 The
wasscared.' Therecords
records revealed
revealed that
thatTaylor continued to
Taylorcontinued to message
message Appellant
Appellant
between11:21
between 11 :21 a.m.
a.m. until
until 1:13
1: 13 p.m., withno
p.m.,with noresponse fromAppellant.
responsefrom Appellant.
Atthis
At thistime
timeand
andday, 1:13 p.m.
day,1:13 onFebruary
p.m.on 23,2018,
February23, 2018,Appellant wasatat Allegheny
Appellantwas Allegheny
Countyheadquarters
County wherehis
headquarterswhere hisrecitation
recitationof
ofthe
theevents
eventsof
ofFebruary 22,2018
February22, 2018continued
continuedtoto evolve.
evolve.
Policeasked
Police askedAppellant
Appellantififhe
hereceived
receivedany fromthe
moneyfrom
anymoney therobbery andhe
robberyand hepointedly denied that
pointedlydenied
that
hehad.
he had. However,
However,this
thisstatement
statementquickly
quicklychanged. First,he
changed. First, hedisclosed
disclosedthat
thathe
hewas
was offered money
offered money
butrefused
but refusedit.it. Shortly thereafter,he
Shortlythereafter, headmitted
admittedthat
thatthere
therewas
was$700-$800
$700-$800ininaabag
bag located in a
located in a
bedroomcloset,
bedroom closet,however
howeverititwas
wasH.D.'s
H.D.'smoney thatAppellant
moneythat wasinstructed
Appellantwas instructedtoto keep at his house
keep at his house
andnot
and nottouch.46
touch.°
theinterview
Duringthe
During interviewAppellant agreedtotogive
Appellantagreed givepolice hiscell
policehis cellphone andhis
phoneand his password to
password to
allowfor
allow fora aforensic download.47 From
forensicdownload.47 Fromthis
thisdownload,
download,a astring
stringofoftext
textmessages were discovered
messageswere
discovered
betweenAppellant
between andWhitley
Appellantand thatoccurred
Whitleythat occurredafter
afterthe
themurder
murderononFebruary 22,2018
February22, 2018 between
between
6:06p.m.
6:06 and6:13
p.m.and p.m.."
6:13p.m..48
"It'sRod
Appellant:"It's
Appellant: RodDrey." "Howare
Drey.""How areyou
youdoing?" (6:06p.m.)
doing?"(6:06 p.m.)
42 4 JT. at 280.
JT.at280.
43 4J,T.
J.T. at at 284-285.
284-285.
J.T.at at
44 J.T. 286.
286.
JT.at at
J.T.
45 4 289-291
289-291
T.S.4:55-4:58,
T.S.
46 4 4:55-4:58, 5:26-5:32,
5:26-5:32, 5:53.
5:53.
47JT. at 190-191; Commonwealth
J.T. at 190-191; Commonwealth Exhibit Exhibit
2929 and
and 30.30.Commonwealth
Commonwealth Exhibit
Exhibit 2828 (T.S.
(T.S. 1:09).
1:09).
JT. at 292; Commonwealth Exhibit
48 J.T. at 292; Commonwealth Exhibit 53.
48 53.
1010
"Lol. I am
Whitley: "Lol. am ite. Where you from?"
from?" (6:11
(6:11 p.m.)
p.m.)
Appellant: "Homewood.
"Homewood. Where you from?"
from?" (6:12
(6:12 p.m.)
p.m.)
"Im from
Whitley: "Im from the hill G
G block
block to
to be
be exact.
exact. Lol.
Lol. And
And II say
say show
show b-c
b-c that
that my
my second
second
hood." (6:12
hood." (6:12 p.m.)
p.m.)
Appellant: "Lol.
Appellant: "Lol. II see.
see. WYM.
WYM. (Known
(Known as
as "what
"what you
you mean")
mean") That
That is
is cool
cool doe.
doe. How
How old
old
are you?"
are (6:12 p.m.)
you?" (6:12 p.m.)
During the
During the investigation
investigation police returned to
police returned to Appellant's residence in
Appellant's residence in Turtle
Turtle Creek
Creek where
where
they encountered
they encountered his
his girlfriend India McDonald.
girlfriend India McDonald. Ms.
Ms. McDonald
McDonald lived
lived with
with Appellant and
Appellant and
provided police
provided with consent
police with consent to
to search
search the residence.49 During
the residence.49 the search,
During the search, police seized two
police seized two cell
cell
phones that
phones that were
were subsequently submitted for
subsequently submitted foraa forensic
forensic download.50
download." Afterward,
Afterward, detectives
detectives
Ms. McDonald
transported Ms.
transported McDonald to
to her
herparents' residence in
parents' residence in Wilkinsburg.
Wilkinsburg. During the ride
During the ride Ms.
Ms.
McDonald advised
McDonald advised them
themthat
thatshe
shehad
hadmoney shewanted
moneyshe wantedto
toturn
tumover
overto
tothe
thepolice. Ms.
police. Ms.
McDonaldthen
McDonald thenentered
enteredher
herparents' residenceand
parents' residence andreturned
returnedto
tothe
thedetective's
detective's vehicle
vehiclewith
with$669.
$669.
Sheexplained
She explainedthat
thatshe
shewas
wasgiving
givingititto
tothem
thembecause
becauseshe
shereceived
receivedititfrom
fromAppellant, whotold
Appellant,who told
herititwas
her wasproceeds fromaarobbery
proceedsfrom thathad
robberythat hadbeen
beencommitted
committedthe
thenight before.51
nightbefore.51
Attrial,
At trial,Appellant testifiedon
Appellanttestified onhis
hisown
ownbehalf
behalf. He
Hestated
statedthat
thathe
heaccepted
acceptedaaFacebook
fromDane
requestfrom
request DaneTaylor foraajitney
Taylorfor ride,explaining
jitneyride, thathe
explainingthat heknew
knewof
ofhim
himperipherally because
peripherallybecause
wasfriends
Taylorwas
Taylor friendswith
withAppellant's brotherand
Appellant'sbrother andthat
thathis
hisnickname
nicknamewas H.D.52 He
wasH.D.52 Hedescribed
described
exchangingmultiple
exchanging multiplephone callsand
phonecalls andtext
textmessages withTaylor
messageswith Taylorprior
priortotopicking
pickinghim
himup
upon
onRay
Ray
Street Wilkinsburg.53 After
StreetininWilkinsburg.53 Afterpicking himup,
pickinghim up,Taylor toldhim
Taylortold himtotodrive
drivetotothe
theDollar
DollarGeneral
General
storeand
store andtotoback
backinto
intoaaparking spotininthe
parkingspot theback lot.54 Appellant
backlot.54 thenleft
Appellantthen leftthe
thecar
cartotourinate
urinate
49«9J.T. 241.
J.T. 241.
J,T.atat240-241.
" 50J.T. 240-241.
SJ.T. at 242-243,249;
51 J.T. at 242-243, 249;Commonwealth
CommonwealthExhibit
Exhibit39.
39.
J.T. atat392-394.
529J,T. 392-394.
53$ J.T. at 394-397.
J.T. at 394-397.
J.T.atat397-399.
54$4J.T. 397-399.
11
11
outsidean
outside anabandoned
abandoned building whileTaylor
buildingwhile remained inside
Taylorremained inside the
thevehicle.
vehicle. When hereturned
Whenhe returnedto
to
the car,
the car, Taylor
Taylorwas
was now
now wearing
wearingaa face
face mask
maskand
and had
had aa gun out and
gun out and ordered
ordered Appellant to shut
Appellant to shut
the door.55 According
the door.55 to Appellant,
According to told him
Taylor told
Appellant, Taylor him that
thathe
he needed
needed this
this money
money and
and that
that
Appellant was
Appellant was going to do
going to do what
what he
he said.
said. Although
Although Appellant described that
Appellant described that Taylor was aiming
Taylorwas aiming
the gun
the gun in
in his
his direction,
direction, he
he denied
denied that
that he
he was
was being gunpoint.56 Despite
held atat gunpoint.56
being held Despite telling the jury
telling the jury
he was
he was not
not under
under threat,
threat, Appellant testified he
Appellant testified he did
did what
what Taylor
Taylor wanted
wanted and repeatedly asked
and repeatedly asked him
him
not to
not to shoot
shoot him.57
him."
Appellant testified
Appellant testified that
that he
he exited
exited the
the parking lot. At
parking lot. At this
this time Taylor instructed
time Taylor instructed him
him to
to
drive past
drive the female
past the female with
with red
red hair
hair and
and park
park along the street.
along the street. Whereafter,
Whereafter, Appellant was ordered
Appellant was ordered
out of
out ofthe
the car
car and
and instructed
instructed to
to act
act like
like he
he was
was fixing
fixing something on the
something on the car.
car. According to
According to
Appellant, Taylor
Appellant, threatened to
Taylor threatened to shoot
shoot Appellant ifhe
Appellant if tried to
he tried to run away.58 Appellant
run away.58 like his
felt like
Appellant felt his
life was
life was in
in danger and told
danger and told the
the jury he did
jury he did as
as he
he was
was instructed.
instructed. Consistent
Consistent with
with the
the video
video
evidence, Appellant
evidence, described that
Appellant described that Taylor
Taylor jumped out of
jumped out of the
the car
car as
as Ms.
Ms. Davis
Davis walked
walked by
by and
and
immediately began
immediately to tussle
began to tussle with
with her
her over
over her
her purse.
purse. Appellant then heard
Appellant then heard one
one gunshot and
gunshot and
started to
started to run
run towards
towards the
the victim
victim when
when aa second
second gunshot
gunshot stopped him in
stopped him in his
his tracks.59
tracks." Appellant
back into
got back
got into the
the car
car at
at Taylor's instruction. Taylor
Taylor's instruction. then threw
Taylor then threw the
the purse at
at him
him and ordered him
and ordered him
to take
to take out
out the
the money.6°
money. Appellant removed the
Appellant removed the money and then
money and then threw
threw the
the purse out
out the
the
window.61 He
window.61 He explained
explained that Taylor still
still had
had the gun
gun out him to drive away,
out when he told him away, further
instructing him to drive
instructing Once inside the house, Taylor, who was still
drive to Appellant's house. Once still
the gun, ordered Appellant to hide some
holding the of the money upstairs. Appellant told the jury
some of
$5
55 J,T. at
J.T. at 399.
399.
56
56 J,T. at 400-401.
J.T. at 400-401.
1,T. at
S1 J.T.
57 at 404.
404.
JT. at
$8 J.T.
58 at 403.
403.
J,T. at
"9 J.T. at 407-408.
407-408.
60
J.T. at
J.T. at 409.
409.
J.T. at
6 J.T.
61 at 409-410.
409-410.
12
12
that Taylor followed him upstairs and watched
watched him
him hide
hide the
the money in aa closet.62
money in closet.°? Taylor then
Taylor then
where to drop him off
told Appellant where off and
and threatened
threatened to
to "off"
"off' him
him and
and his
his brother
brother if
ifhe called the
he called the
police. He
police.63 He explained
explained that
that itit was
was fear
fear for
for himself
himself and
and his
his family
family that
that kept him from
kept him from calling
calling 911
911
or the
or the police.64
police. HeHe described
described how
how he
he then
then drove
drove around
around for
for aa bit
bit when
when he
he remembered
remembered that
that he
he
needed to
needed to go
go downtown
downtown and
and pick
pick up his phone.
up his Thereafter he
phone. Thereafter he received
received aa call
call from
from Taylor
Taylor
demanding that
demanding that Appellant come pick
Appellant come him up.
pick him Appellant complied
up. Appellant and drove
complied and drove Taylor to the
Taylor to the East
East
Hills residence
Hills residence of
ofLaya Whitley.65 Appellant
Laya Whitley.65 maintained that
Appellant maintained that he
he had
had never
never met
met Whitely
Whitely prior to
prior to
this. He
this. He said
said that
that they
they exchanged
exchanged telephone numbers because
telephone numbers because he
he wanted
wanted to
to make
make sure
sure he
he had
had
Whitley's phone
Whitley's phone number
number so
so ififhe
he talked
talked to
to the
the police
police he
he could
could give them her
give them information.66 He
her information.66 He
further explained
further that he
explained that hemessaged with Taylor
messaged with afterthe
Taylorafter theshooting, as part
shooting, as ofaaplan
partof heand
planhe and his
his
wifeconcocted
wife concoctedin
inan
an effort
effortto
to get to his
Taylorto
getTaylor his house
houseso
so they could call
they could call the
the police.67
police.°
admittedon
Appellantadmitted
Appellant oncross
crossexamination
examinationthat
thathe
hewas
wasnot
nottruthful
truthfulwith
withthe
thedetectives
detectives
duringhis
during hisinterview
interviewwhen
whenhe
hedenied
deniedknowing
knowingDane
DaneTaylor,
Taylor,however,
however, he
hecontinued
continuedto
todeny
denyany
any
advancedknowledge
advanced thatTaylor
knowledgethat wasgoing
Taylorwas goingtotorob
robMs. Davis.68
Ms. Davis.68
alsooffered
Appellantalso
Appellant offeredthree
threecharacter
characterwitnesses
witnesseswho
whotestified
testifiedthat
thatAppellant hadaagood
Appellanthad good
forpeacefulness
reputationfor
reputation andnon-violence
peacefulnessand non-violenceininthe community.69
thecommunity.69
J,T.atat413-414.
6262J.T. 413-414.
J.T.atat415.
636J.T. 415.
6464J.T.
J.T.atat416.
416.
J.T.atat418.
6565J.T. 418.
66J.T. at 421-422.
66 J.T. at 421-422.
J.T.atat424-425,
67J.T. 424-425,516-517.
516-517.
6868 J,T. at 441-470.
J.T. at 441-470.
6969JT.
J.T. atat333-336,
333-336,519-521,
519-521,522-524.
522-524.
1313
MATTERS COMPLAINED
MATTERS OF ON
COMPLAINED OF APPEAL
ON APPEAL
raised seven
Appellant raised
Appellant claims of
seven claims error in
of error his Statement.
in his The first
Statement. The claims challenge
two claims
first two challenge
the Court's
the ruling on
Court's ruling the admissibility
on the admissibility of evidence. Specifically,
ofevidence. Specifically, that the Court
that the its
abused its
Court abused
discretion when
discretion allowed admission
when itit allowed ofautopsy
admission of because the
photographs because
autopsy photographs the prejudicial value
prejudicial value
outweighed the probative
outweighed the value. Next,
probative value. that the
Next, that erred when
Court erred
the Court denied admissibility
when itit denied ofaa
admissibility of
statement made
statement Dane Taylor
by Dane
made by Taylor to third party
to aa third under Pa.R.E.
party under 804(b)(3).
Pa.R.E. 804(b)(3).
also challenges
Appellant also
Appellant thesufficiency
challenges the ofthe
sufficiency of evidence for
the evidence the convictions.
forthe He cites
convictions. He to
cites to
In the
In Interestof
theInterest J.B., 189
ofJ.B., A.3d390
189 A.3d 2018) ininsupport
(Pa. 2018)
390(Pa. supportof hisargument
ofhis thatthe
argumentthat the
Commonwealth'sevidence
Commonwealth's insufficienttotoestablish
wasinsufficient
evidencewas intentelement
theintent
establishthe fortampering
elementfor with
tamperingwith
evidence, andininsupport
evidence,and supportof hisglobal
ofhis thatthe
argumentthat
globalargument evidencewas
theevidence insufficienttotoshow
wasinsufficient he
showhe
actedas
acted anaccomplice
asan orco-conspirator.
accompliceor Briefly,J.B.
co-conspirator. Briefly, involvedthe
J.B. involved convictionof
theconviction for
juvenilefor
ofaajuvenile
themurder
the hisstep-mother
ofhis
murderof andher
step-motherand unbornchild.
herunborn thePennsylvania
Whenthe
child. When Court
SupremeCourt
PennsylvaniaSupreme
vacated J.B.'sadjudication
vacatedJ.B.'s adjudicationfor murderbased
formurder insufficientevidence,
oninsufficient
basedon reiteratedthe
evidence,ititreiterated well-
thewell-
establishedprecedent
established precedentthat when,"the
thatwhen, trialevidence
"thetrial viewedininthe
recordviewed
evidenceofofrecord lightmost
thelight favorable
mostfavorable
totothe andall
Commonwealthand
theCommonwealth inferencesdrawn
reasonableinferences
allreasonable fromthat
drawnfrom evidenceisisonly,
thatevidence most,
only,atatmost,
consistentwith
equallyconsistent
equally innocenceasasititisiswith
defendant'sinnocence
withaadefendant's guilt,the
hisguilt,
withhis Commonwealthhas
theCommonwealth not
hasnot
sustainedits
sustained burdenofofproving
itsburden provingthe defendant'sguilt
thedefendant's beyonda areasonable
guiltbeyond reasonabledoubt." 415.
Id.atat415.
doubt."Id.
thisstandard
Applyingthis
Applying factsininJB.,
thefacts
standardtotothe theCourt
J.B.,the heldthat
Courtheld theevidence
thatthe insufficienttoto
wasinsufficient
evidencewas
establishJ.B's
establish theperson
identityasasthe
J.B'sidentity whokilled
personwho victimsbecause,
thevictims
killedthe "allreasonable
because,"all inferences
reasonableinferences
derived viewedinina alight
therefrom,viewed
derivedtherefrom, lightmost favorabletoto[the
mostfavorable Commonwealth],was,
[theCommonwealth], best,inin
was,atatbest,
suchthat
equipoise",such
equipoise", wasequally
thatititwas equallyconsistent withhim
consistentwith responsiblefor
beingresponsible
himbeing commissionofof
thecommission
forthe
the crimeasasititwas
thecrime forananunknown
wasfor party.
thirdparty.
unknownthird
1414
Lastly, Appellant asserted that the Court erred when it denied his post sentence motion
seeking a new trial wherein, he argued that the verdict was against the weight of the evidence.
ADMISSIBILITY OF EVIDENCE
The Pennsylvania Rules of Evidence define "relevant evidence" as evidence that "has any
tendency to make a fact more or less probable than it would be without the evidence" as long as
"the fact is a consequence in determining the action." Pa.R.E. 401(a)-(b). Relevant evidence is
admissible, and irrelevant evidence is inadmissible. See Pa.R.E. 402. Even relevant evidence
may be excluded if its probative value is outweighed by prejudice. See Pa.R.E. 403.
The standard of review of a trial court's evidentiary rulings is narrow, as the
admissibility of evidence is within the discretion of the trial court and will be reversed only if the
trial court has abused its discretion. Commonwealth v. Hernandez, 230 A.3d 480, 489 (Pa.
Super. 2020) (internal citations omitted). 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 is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the
evidence or the record. Commonwealth v. Seilhammer, 862 A.2d 1263,
1263, 1270
1270 (Pa.Super. 2004).
Appellant's first evidentiary claim is that this Court erred and/or abused its discretion in
admitting autopsy photographs, arguing that they lacked any significant probative value to any
fact at issue. This claim surrounds the admissibility of seven photographs the Court permitted to
be admitted and displayed to the jury during the course of testimony of the forensic pathologist,
Dr. Todd Lukasevic. During an evidentiary hearing Appellant argued that the photographs had
uncontested." Thus, the
Davis death was uncontested.7°
no probative value as the cause and manner of Ms. Davis'
70 J.T. at 97-98.
15
15
autopsyphotos
autopsy photos are
areinflammatory andare
inflammatoryand aremore
moreprejudicial than probative.
prejudicial than The Commonwealth
probative. The Commonwealth
countered the
countered thephotos
photos were
were probative and would
probativeand would assist
assist the
thepathologist in describing
pathologistin his findings
describinghis to
findings to
jury.71
the jury.7'
the
Ifthe
If the Commonwealth
Commonwealth offers
offers photographic evidence depicting
photographic evidence an autopsy
depicting an the trial
autopsy the trial
court should
court should conduct
conduct aa two-part analysis to
two-part analysis to determine
determine whether
whether the
the evidence
evidence is
is admissible.
admissible.
First, itit should
First, should be
be determined
determined whether
whether the
the photograph is inflammatory.
photograph is Ifitit isis not,
inflammatory. If not, then
then itit
may be
may be admitted
admitted as
as long as itit is
long as is relevant
relevant and
and may assist the
may assist the jury in understanding
jury in understanding aa fact
fact at
at
issue. Ifthe
issue. If the photograph is inflammatory,
photograph is the court
inflammatory, the court must
mustthen
then determine
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