Com. v. Perez-Rodriguez, R.

J-S24032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RAPHAEL E. PEREZ-RODRIGUEZ :

:

Appellant : No. 1381 MDA 2022

Appeal from the Judgment of Sentence Entered April 22, 2022

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

No(s): CP-06-CR-0002261-2020

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 31, 2023

Appellant, Raphael E. Perez-Rodriguez, appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County following his

conviction by a jury on the charges of first-degree murder, burglary, robbery,

aggravated assault, two counts of receiving stolen property, and two counts

of firearms not to be carried without a license.1 After a careful review, we

affirm.

The relevant facts and procedural history are as follows: The charges in

the instant matter stem from a traffic stop of Appellant, which then led to an

investigation and the arrest of Appellant for the murder of Dennis Fink (“the

____________________________________________

* Former Justice specially assigned to the Superior Court.

118 Pa.C.S.A. §§ 2502(a), 3502(a)(1)(i), 3701(a)(1)(i), 2702(a)(1), 3925,

and 6106, respectively.

J-S24032-23

Victim”), who had been stabbed to death, as well as the burglary of the

Victim’s residence.

On December 11, 2020, Appellant filed a counseled omnibus pre-trial

suppression motion wherein he sought the suppression of all evidence seized

from the Victim’s house, which is located on Tully Lane in Reading,

Pennsylvania. Appellant averred the police improperly entered and conducted

an unconstitutional warrantless search of the Victim’s house. The

Commonwealth, in response, averred Appellant lacked a reasonable

expectation of privacy in the Victim’s home. Further, the Commonwealth

asserted the police properly entered and conducted a warrantless search of

the Victim’s residence due to exigent circumstances.

On January 25, 2021, Appellant proceeded to a suppression hearing at

the commencement of which the Commonwealth moved for the transcript

from Appellant’s preliminary hearing to be marked as an exhibit, and Appellant

indicated he had no objection. N.T., 1/25/21, suppression hearing, at 4. The

Commonwealth then offered the testimony of Vincent Caruso, who is the

system administrator for the inmate telephone system at the Berks County

jail, and Berks County Detective Ivan. R. Martinez. The suppression court,

indicating it adopted the testimony and evidence from the preliminary hearing,

as well as the suppression hearing, aptly summarized the relevant evidence

as follows:

At approximately 7:40 p.m., in the evening on July 16,

2020, Officer Eric Koller of the City of Reading Police Department

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was on patrol in the 500 block of Washington Street in the City of

Reading when he observed a black Honda CRV (“the Vehicle”) with

a Minnesota license plate that appeared to be altered. N.T.,

8/26/20, preliminary hearing, at 4-5. Having noticed the allegedly

altered license plate, Officer Koller checked the registration

information electronically, which returned a result that the Vehicle

was reported stolen. Id. at 5. Officer Koller continued to follow

the Vehicle, but before he could initiate a traffic stop, the Vehicle

parked in the 100 block of North 3rd Street, whereupon the driver,

later identified as [Appellant], exited the Vehicle. Id. at 5-6.

Backup [officers] arrived shortly thereafter, and [Appellant] was

detained in handcuffs until the patrol wagon arrived, and

[Appellant] was placed therein. Id. at 7.

Loud music continued to play from a wireless speaker inside

the Vehicle, and Officer Koller reapproached the Vehicle to turn off

the music. Id. As Officer Koller reached into the Vehicle to turn

the speaker off, he noticed a small, blue, Ziplock bag containing a

white, powdery substance located in the handhold of the driver’s

side door. Id. Officer Koller recovered the bag and continued to

search the rest of the Vehicle. Id. Under the driver’s seat, Officer

Koller found two loaded handguns—a semi-automatic and a

revolver. Id. at 8. Two knives were found between the driver’s

seat and the door jamb. Id. In the cargo area, police found a rifle

and semi-automatic shotgun, as well as a bubble envelope

addressed to the Victim containing CO2 cartridges for a BB gun

and several bank cards in the Victim’s name. Id.

Officer Koller later performed a NARK-2 field test on the

suspected drugs from the vehicle, which indicated a positive result

for cocaine. Id. at 9. A [records] check also indicated that

[Appellant] did not have a valid license to carry the firearms. Id.

When [Appellant] was arrested, he was found in possession of

several personal items belonging to the Victim, including a high

school ring, an Air Force Academy graduation ring, several

wedding bands, and a tie bar. Id. at 15.

Officer Koller informed Eric Sweitzer, a criminal investigator

with the Reading Police Department (“C.I. Sweitzer”), about the

stolen Vehicle investigation and notified C.I. Sweitzer about items

found in the stolen Vehicle belonging to the Victim. Id. at 16.

C.I. Sweitzer researched the Victim’s name and found an

individual who was listed as living at the property located at **

Tully Lane in Reading, Pennsylvania (“the Property”). Id. C.I.

Sweitzer visited the Property, observed that some exterior and

interior lights were on, and then attempted to make contact with

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the owner. Id. at 17. However, C.I. Sweitzer was unsuccessful

and left his business card in the door. Id. at 18. C.I. Sweitzer

returned to the Property the next day and noticed that the

Property looked to be in exactly the same condition as the night

before, including his business card still stuck in the door. Id. C.I.

Sweitzer, along with Criminal Investigator Scott Errington, then

walked to the rear of the residence to attempt contact, but they

were unsuccessful. Id. at 19. C.I. Sweitzer then contacted the

local police department and requested an officer onsite so that a

welfare check could be performed. Id. at 20.

After the local officer arrived, C.I. Sweitzer entered the

Property through an unlocked door of the kitchen/dining room.

Id. Once inside, C.I. Sweitzer announced himself, but he found

no one was inside; however, he found a small, black dog in a cage,

alive and barking. Id. at 21. C.I. Sweitzer observed that the

cabinet doors in the kitchen were open, and the house seemed

unkempt. Id. at 21-22. Making their way through the home

looking for the Victim or anyone else, the investigators noticed

that closets were left open with lights on, and the house looked

like it had been ransacked. Id. at 22. Likewise, the garage and

basement lights were left on, and a blue Tesla vehicle was still in

the garage. Id. Sensing that something was not right, C.I.

Sweitzer was leaving the Property to contact possible family

members when he noticed a duffle bag, in which he could see,

without manipulation, a baseball cap and a glass jar containing

suspected marijuana. Id. at 22-23.

C.I. Sweitzer was unable to garner further information on

the Victim’s whereabouts from family members, so he applied for

a search warrant for the Property to retrieve the suspected

marijuana, which was then approved. Id. During the search, [the

Victim’s] decomposing body was found in the wooded area

abutting the Property. Id. at 24-25.

***

On July 16, 2020, [before the traffic stop involving

Appellant], Jeffrey Neubauer, an individual living in the same

neighborhood as the Victim, noticed a young girl with a lost dog

outside of his home. Id. at 37-38. Mr. Neubauer took the dog,

called the phone numbers on the dog’s tags, and found out the

address listed for the dog was ** Tully Lane. Id. at 38. Mr.

Neubauer and his girlfriend then traveled to the Property to return

the dog. Id. When Mr. Neubauer and his girlfriend approached

the Property, they noticed it appeared unkempt. Id. at 39. Upon

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ringing the doorbell twice and knocking on the door, a man, whom

Mr. Neubauer identified as [Appellant], answered the door

wearing cargo shorts, a muscle t-shirt, and a red-brimmed cap[.]

Id. at 39-40. [Appellant] only opened the door halfway. Id. Mr.

Neubauer did not remember whether [Appellant] answered in the

affirmative when asked whether the lost dog was his, but he

recalled [Appellant] grabbed the dog. Id. at 40. When Mr.

Neubauer’s girlfriend asked [Appellant] if he was “Dennis,”

[Appellant] responded with “Yes.” Id. at 61. Mr. Neubauer noted

that the interaction seemed odd because [Appellant] did not

appear to be happy to have his dog returned. Id. at 42. Mr.

Neubauer checked on Facebook and found that the Victim, Dennis

Fink, was actually an older white male. Id. The next day, Mr.

Neubauer was presented with a photo lineup whereupon he

identified [Appellant] as the individual he saw at the Property the

day prior. Id.

On July 17, 2020, Detective Ivan Martinez (“Detective

Martinez”), who was with the Berks County District Attorney’s

Office, was called to the Property for a body that had been found.

Id. at 46-47. Detective Martinez arrived at the Property and

proceeded to the wooded area adjacent to the rear where there

was a body lying face down and covered in brush. Id. at 47. The

body was later identified as the Victim, who was the owner the

Property. Id. at 48. The next day, after preparing a search

warrant that was approved, Detective Martinez participated in the

search of the Property, during which he observed that the home

appeared to have been ransacked. Id. at 48-49. A bag, that did

not appear to be the Victim’s, was found containing a gun, money,

and coins. Id. at 49. Also seized was the baseball cap and

suspected marijuana. Id. at 51-52.

On July 20, 2020, Detective Martinez, along with Detective

Sergeant Brett Forry, met with [Appellant] at the Berks County

Jail System for an interview. Id. at 52-53. During the interview,

[Appellant] told Detective Martinez that he came from New Jersey

to Reading because of his business, [which involved] buying and

reselling guns, coins, and other odds and ends. Id. at 53.

Initially, when Detective Martinez showed a photograph of the

Property to [Appellant], [Appellant] acted as if he did not

recognize the house. Id. at 54. When Detective Martinez

mentioned that someone could place [Appellant] at the Property,

[Appellant] admitted that he had been to the Property, but he

specified that he stopped at a yard sale and was led inside the

home by a black male, named “Bu,” and that the house looked

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ransacked when he entered. Id. at 54-55, 58. [Appellant]

described the Property with detail, including the presence and

situation of objects in the garage area. Id. at 55. [Appellant]

indicated that he had been driving around the neighborhood

looking for yard sales because he knew that rich people lived in

the area. Id. at 54. [Appellant] further told the detectives that

the items found in the Vehicle did come from the Property, but he

insisted that he had purchased the items from “Bu” for $1,500.00.

Id. at 56. [Appellant] also admitted that he had told Mr.

Neubauer’s girlfriend that he was the Victim when the dog was

returned. Id. at 57. However, [Appellant] denied ever seeing the

Victim. Id.

Detective Martinez testified at the preliminary hearing that

he had reviewed a phone call that [Appellant] placed from the

Berks County Jail on July 31, 2020, in which [Appellant] relayed a

different story regarding his involvement in the Victim’s death.

Id. at 60-62. In the phone call, [Appellant] told his mother and

sister that the Victim, who [Appellant] claimed was a marijuana

customer of [Appellant’s], owed [Appellant] money, and owed a

Mexican cartel money in relation to human trafficking of

prostitutes. Id. at 62. [Appellant] continued that the Mexican

cartel ordered him to kill the Victim or [Appellant] himself would

be killed. Id.

***

Vincent Caruso, the system administrator of the inmate

telephone system at the Berks County Jail System,…explained

that prior to an inmate making a phone call from the prison, a

message is played informing both parties that the phone call is

being recorded. N.T., 1/25/21, suppression hearing, at 8-9. Mr.

Caroso likewise stated that upon booking, prisoners are provided

with an Inmate Telephone ID Release Form (“T.I.D. Form”),

containing the prisoner’s personal identification number for phone

calls, as well as a provision indicating that phone calls are

monitored and recorded, which the prisoner then signs. Id. The

Commonwealth introduced [Appellant’s] signed T.I.D. Form,

which was printed in both English and Spanish, that [Appellant]

had signed. Id. at 9-11.

Suppression Court Opinion, filed 3/29/21, at 2-6.

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By order entered on March 29, 2021, the suppression court denied

Appellant’s omnibus pre-trial suppression motion. Thereafter, on April 18,

2022, Appellant, who was represented by counsel, proceeded to a jury trial.

The trial court has summarized at length the testimony and evidence

offered at the jury trial. See Trial Court Opinion, filed 2/27/23, at 2-25. The

trial court has provided citations to the record for each finding, and we

conclude the findings are supported by the record. Accordingly, we adopt and

rely on the trial court’s summary.

At the conclusion of the trial, the jury convicted Appellant of the offenses

indicated supra, and on April 22, 2022, the trial court imposed an aggregate

sentence of life in prison. On May 2, 2022, Appellant filed a timely counseled

post-sentence motion seeking a judgment of acquittal on the basis the

evidence was insufficient to sustain his convictions, as well as a new trial on

the basis the jury’s verdict was against the weight of the evidence.

By order entered on August 26, 2022, the trial court denied Appellant’s

post-sentence motion, and this timely counseled appeal followed on

September 23, 2022. The trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement, Appellant timely complied, and the trial court filed a

responsive opinion on February 27, 2023.

On appeal, Appellant sets forth the following issues in his “Statement of

Questions Presented” (verbatim):

A. Whether the evidence adduced at Suppression was insufficient

to establish that [Appellant] lacked an expectation of privacy

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at the residence searched, whether an exigency existed

sufficient to justify the warrantless search subsequently

conducted, and whether the subsequently obtained Search

Warrant was obtained with probable cause based, in part, from

things observed during said warrantless search that was

illegally obtained?

B. Whether the evidence adduced at trial was insufficient to

establish beyond a reasonable doubt that Appellant committed

a premeditated, willful and deliberate killing, or an aggravated

assault, or a robbery where there was no evidence that

[Appellant] had at any time come into contact with the victim,

other than conjecture that [Appellant’s] mere presence at the

victim’s home [sic] he must have killed the victim?

C. Whether the Court erred by not granting a new trial on the

basis that the verdict of guilt for murder of the first degree was

contrary to the weight of the evidence, where there was

literally no physical or circumstantial evidence produced at

trial?

Appellant’s Brief at 10 (suggested answers omitted).

Initially, we address Appellant’s sufficiency of the evidence claim.2

Appellant contends the evidence was insufficient to sustain his convictions for

first-degree murder, aggravated assault, and robbery. Specifically, Appellant

does not dispute that someone committed these crimes against the Victim;

however, he contends there is no evidence that he was the perpetrator of the

crimes.

____________________________________________

2 For the ease of discussion, we address Appellant’s sufficiency of the evidence

and weight of the evidence claims before addressing his suppression claim

since, if Appellant should succeed on one of these claims, we need not address

his suppression claim. Commonwealth v. Shamberger, 788 A.2d 408, 412

(Pa.Super. 2001).

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Initially, we note this Court’s standard of review when considering a

challenge to the sufficiency of the evidence requires us to look at the evidence

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

determine whether the evidence presented, actual and/or circumstantial, was

sufficient to enable a fact-finder to find every element of the crime charged,

beyond a reasonable doubt. See Commonwealth v. O'Brien, 939 A.2d 912

(Pa.Super. 2007).

In applying the above test, we may not weigh the evidence

and substitute our judgment for the fact-finder. In addition, we

note that the facts and the circumstances established by the

Commonwealth need not preclude every possibility of innocence.

Any doubts regarding a defendant’s guilt may be resolved by the

fact-finder unless the evidence is so weak and inconclusive that

as a matter of law no probability of fact may be drawn from the

combined circumstances.

Id. at 913–914 (quotation omitted). The jury, as the finder of fact, is free to

believe all, some, or none of the evidence presented and is free to determine

the credibility of the witnesses. Commonwealth v. Dailey, 828 A.2d 356

(Pa.Super. 2003). In conducting review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder. Commonwealth

v. Baumgartner, 206 A.3d 11, 14-15 (Pa.Super. 2019).

As indicated supra, Appellant's argument is specific in nature. Rather

than challenge the sufficiency of the evidence to support any of the applicable

elements of the offenses, Appellant contends the evidence was insufficient to

prove that he was the person who robbed the Victim and stabbed the Victim

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to death before dumping his body in the woods behind his home.3 As such,

we need not conduct a thorough review of the evidence to determine whether

it can support a finding that all of the elements of the offenses have been

met.4 Rather, we will focus on the specific sufficiency issue raised by

Appellant: whether the evidence was sufficient to establish that Appellant was

____________________________________________

3 Appellant presents no argument challenging his convictions for burglary or

two counts of firearms not to be carried without a license. Appellant suggests

his conviction for receiving stolen property is insufficient on the basis the

Commonwealth allegedly failed to adduce evidence as to valuation. See

Appellant’s Brief at 44. However, Appellant’s one-paragraph argument

presents bald assertions without any citation to relevant authority. See id. at

44-45. Since Appellant has not properly developed this claim, we conclude it

has been waived. See Pa.R.A.P. 2119. Alternatively, the trial court has aptly

addressed and rejected Appellant’s sufficiency challenge to his conviction for

receiving stolen property, and we find no error. See Trial Court Opinion, filed

2/27/23, at 32-33.

4 The relevant criminal statutes provide:

§ 2502. Murder

(a) Murder of the first degree.--A criminal homicide constitutes

murder of the first degree when it is committed by an intentional

killing.

18 Pa.C.S.A. § 2505(a) (bold in original).

§ 3701. Robbery

(a) Offense defined.--

(1) A person is guilty of robbery if, in the course of committing a

theft, he:

(i) inflicts serious bodily injury upon another[.]

18 Pa.C.S.A. § 3701(a)(1)(i) (bold in original).

§ 2702. Aggravated assault

(a) Offense defined.--A person is guilty of aggravated assault if

he:

(1) attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of

human life[.]

18 Pa.C.S.A. § 2702(a)(1) (bold in original).

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the perpetrator of the robbery, aggravated assault, and first-degree murder

of the Victim.

This Court has recognized that:

[E]vidence of identification need not be positive and certain to

sustain a conviction. Commonwealth v. Jones, 954 A.2d 1194,

1197 (Pa.Super. 2008)[.] Although common items of clothing and

general physical characteristics are usually insufficient to support

a conviction, such evidence can be used as other circumstances

to establish the identity of a perpetrator. Commonwealth v.

Minnis, 458 A.2d 231, 233–34 (Pa.Super. 1983). Out-of-court

identifications are relevant to our review of sufficiency of the

evidence claims, particularly when they are given without

hesitation shortly after the crime while memories were fresh. Id.

at 234. Given additional evidentiary circumstances, “any

indefiniteness and uncertainty in the identification testimony goes

to its weight.” Id. at 233.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc)

(quotation marks omitted).

Here, in addressing and rejecting Appellant’s sufficiency of the evidence

claim, the trial court relevantly indicated the following:

Appellant claims that the Commonwealth failed to present

sufficient evidence that Appellant was ever at the [Tully Lane]

residence at the same time as the Victim to present such an

opportunity to commit the crimes, or that he was ever in a position

to threaten or touch the Victim personally. Appellant further

claims that no evidence or testimony eliminated the possibility of

another perpetrator having committed the crimes and that law

enforcement only investigated Appellant to the exclusion of other

possible suspects.

***

When initially stopped [in the Honda], Appellant was found

in possession of multiple items belonging to the Victim, including

the Victim’s Tesla car fob, graduation rings, laptop, wallet,

identification cards, and various credit and debit cards. After

finding these items, law enforcement proceeded to the residence,

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and when unable to make initial contact, made various attempts

to reach the Victim. Upon entering the residence, officers found

the rooms, drawers, and closets disheveled as if they had been

ransacked. Alarm panels were found ripped off of the wall and on

the floor. When they returned with a search warrant for the

residence, they discovered the Victim deceased in the [woods at

the] rear of the residence.

Dr. Hoffman concluded that the Victim died from

exsanguination and internal bleeding caused by multiple stab

wounds to the Victim’s neck and chest. Dr. Hoffman testified that

the nature and varying direction of the injuries indicated that the

bodies were in close contact and in motion, signaling a struggle

occurred during the infliction of the wounds. Further, while Dr.

Hoffman suggested that the maggot activity he observed w[as]

indicative that the Victim’s time of death was approximately thirty

to forty-hours prior to discovery, he noted that information

provided by law enforcement allowed him to narrow that period to

between 8:45 a.m. and 12:00 p.m. on July 16, 2020.

During his interview with detectives, [Appellant initially

denied recognizing the residence; however,] Appellant [then]

admitted that he had been to and was able to describe the

residence in detail. In a phone call with his sister and mother,

Appellant admitted being involved in the murder of the Victim but

claimed that the Victim purchased drugs from him[,] the Victim

was involved in human trafficking[,] and the Victim’s murder was

directed by a Mexican cartel.

Cell phone records tracked Appellant’s movements from

Paterson, New Jersey and arriving in the area of the residence

around the time of the Victim’s murder and remaining until the

afternoon. Several people observed an individual matching

Appellant’s description and clothing at or around the residence,

including several people who returned the Victim’s wandering dog

and found the individual’s response as odd or apathetic. Jeffrey

Neubauer identified Appellant as the individual he saw at the

residence when [he] was presented with a photographic array,

and he told law enforcement officers that he noticed the individual

at the residence was wearing the same branded underwear as was

later recovered from Appellant.

While no evidence was found regarding the actual murder

weapon, there was genetic evidence linked to the Victim found on

Appellant’s shoes, which were found at the residence.

Additionally, the Victim’s DNA was found on Appellant’s shirt.

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Viewing the evidence presented at trial in totality, the

Commonwealth presented sufficient evidence to place Appellant

at the residence at the time of the Victim’s murder, including cell

phone records and eyewitnesses who either identified Appellant or

described an individual matching Appellant’s description as being

present at the residence on the date of the Victim’s death and

even posing as the Victim himself. Blood and DNA evidence was

found on Appellant’s shoes and clothing. Appellant confessed to

being at the residence to law enforcement and admitted to his

sister and mother of, at least, being involved in the Victim’s

murder. Again, Dr. Hoffman’s testimony concluded that the Victim

died as a result of the stab wounds and noted that the direction

and severity of the wounds indicated a struggle. Moreover, the

location of the stab wounds to the neck and chest evinces both

malice and an intent to kill. Given the reasonable inferences that

could be drawn from the evidence presented, [the trial court]

find[s] that Appellant’s challenge[s] to the sufficiency of the

evidence to support his conviction[s] for first-degree murder[,

aggravated assault, and robbery] lack merit.

Trial Court Opinion, filed 2/27/23, at 28-30.

We agree with the trial court’s sound reasoning. As indicated supra,

“[e]vidence of identification need not be positive and certain to sustain a

conviction.” Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa.Super.

2016) (citation omitted). As our Supreme Court has held, “circumstantial

evidence is sufficient to sustain a conviction so long as the combination of the

evidence links the accused to the crime beyond a reasonable doubt.”

Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 635 (1991)

(quotation and quotation marks omitted).

In the case sub judice, the jury, as the finder of fact, heard the

testimony of all witnesses, was free to make credibility determinations, and

determined the evidence linked Appellant to the crimes beyond a reasonable

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doubt. Given our standard of review, we find no error in this regard and

conclude there is no merit to Appellant’s sufficiency of the evidence claim. See

Baumgartner, supra (setting forth this Court’s standard of review for

sufficiency of the evidence claims).

We next address Appellant’s claim that the jury’s verdicts for first-

degree murder, aggravated assault, and robbery were against the weight of

the evidence. Specifically, Appellant contends there is no credible evidence

that Appellant was the perpetrator of the crimes. He avers the jury’s

conclusion he was the perpetrator is based on mere speculation and

conjecture. Thus, he avers the jury’s verdict shocks one’s sense of justice

such that the trial court erred in failing to order a new trial.5

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

____________________________________________

5 Appellant adequately preserved his weight of the evidence claim as to his

first-degree murder, aggravated assault, and robbery convictions in the lower

court and in his Rule 1925(b) statement. See Pa.R.Crim.P. 607; Pa.R.A.P.

1925(b). Appellant presents in his appellate brief an undeveloped weight of

the evidence claim, without citation to authority, regarding the jury’s verdict

for receiving stolen property. See Appellant’s Brief at 47. He suggests the

evidence regarding the value of the stolen items was incredible. See id. We

dispose of this claim simply by noting the jury was free to accept the

Commonwealth’s evidence regarding the value of the stolen property.

Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.Super. 2000).

Appellant has presented no weight of the evidence challenge to his convictions

for burglary and firearms not to be carried without a license.

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129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation

omitted). Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa.Super. 2000). It is well-settled that we cannot substitute our

judgment for that of the trier of fact. Talbert, supra.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

Because the trial judge has had the opportunity to hear and see

the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial

judge when reviewing a trial court’s determination that the verdict

is against the weight of the evidence. One of the least assailable

reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of

the evidence and that a new trial should be granted in the interest

of justice.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

Here, in rejecting Appellant’s weight of the evidence claim, the trial court

relevantly stated the following:

At trial, the jury heard all of the testimony and was

presented [with] the evidence. The Commonwealth presented

evidence that Appellant was stopped in a stolen vehicle with a

substantial amount of the Victim’s valuables and belongings on his

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person and in the vehicle. The jury heard evidence tracking

Appellant’s location from Paterson, New Jersey, where the vehicle

had been stolen, and to the area of the [Tully Lane] residence.

When law enforcement arrived at and later searched the

residence, they found the home ransacked and the alarm panels

ripped from the walls. The Victim’s Tesla vehicle, to which

Appellant had the fob on his person, was still in the garage. Dr.

Hoffman testified the Victim’s time of death was between 8:45

a.m. and noon on July 16, 2020, which was around the same time

that Appellant arrived and remained in the area of the residence.

Several eyewitnesses place Appellant, or at least an individual

resembling Appellant, at the residence on July 16, 2020, and even

identifying himself as the Victim. Dr. Hoffman further testified as

to the extent of the Victim’s injuries and the conclusions drawn

from both bruising and abrasions observed on the Victim, and

from the direction and severity of the stab wounds. The

Commonwealth also presented blood and DNA evidence from the

Victim found on Appellant’s sneaker and shirt. Despite Appellant’s

contention otherwise, the phone call to his mother and sister, at

a minimum, implicated Appellant in the Victim’s murder,

regardless of his various justifications or suggestion of other

unnamed individuals. Based on all of the evidence presented, it

is clear that the trial court did not abuse its discretion in denying

Appellant’s post-sentence challenge to the weight of the evidence.

The jury’s verdict indicates that they lent credibility to the

Commonwealth’s witnesses and did not choose to accept the

Defense witness’ dispute of the blood and DNA evidence. The

verdicts rendered by the jury were not against the weight of the

evidence. Further, Appellant’s attack on the deliberation period

of the jury as somehow demonstrative of a lack of diligence on the

party of the jury is absurd. The jury spent four days observing

the testimony and evidence and was properly charged by the court

in its analysis of the evidence. [The trial court] draw[s] no

inference from the fact that the jury was able to come to a decision

in what Appellant deemed a relatively short amount of time.

Therefore, [the trial court] find[s] Appellant’s claim that the court

abused its discretion as to the weight of the evidence to be without

merit.

Trial Court Opinion, filed 2/27/23, at 37.

- 16 -

J-S24032-23

We agree with the trial court’s sound reasoning, and we find no abuse

of discretion in this regard. Talbert, supra. Simply put, the jury considered

the evidence linking Appellant to the burglary and stabbing death of the

Victim. The jury found the Commonwealth’s witnesses credible while rejecting

Appellant’s witnesses and defense theories. To the extent Appellant requests

that we re-weigh the evidence and assess the credibility of the witnesses

presented at trial, we decline to do so as it is a task that is beyond our scope

of review. See Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super.

2013) (stating that “[a]n appellate court cannot substitute its judgment for

that of the finder of fact”). Thus, we find no merit to Appellant’s weight of the

evidence claim.

We next address Appellant’s suppression issue. Appellant contends the

Commonwealth bore the burden of demonstrating Appellant did not have a

legitimate expectation of privacy in the Victim’s residence and, since “[t]he

Commonwealth at [the] suppression [hearing] offered no additional evidence

or testimony regarding the defendant’s expectation of privacy, other than

admitting the transcript of the testimony taken at the preliminary hearing[,

the Commonwealth did not meet its burden].” Appellant’s Brief at 16.

In reviewing Appellant’s suppression claim, we are mindful that:

Our standard of review in addressing a challenge to a trial

court’s denial of a suppression motion is limited to determining

whether the factual findings are supported by the record and

whether the legal conclusions drawn from those facts are correct.

We are bound by the suppression court’s factual findings so long

as they are supported by the record; our standard of review on

- 17 -

J-S24032-23

questions of law is de novo. Where, as here, the defendant is

appealing the ruling of the suppression court, we may consider

only the evidence of the Commonwealth and so much of the

evidence for the defense as remains uncontradicted. Our scope

of review of suppression rulings includes only the suppression

hearing record and excludes evidence elicited at trial.

Commonwealth v. Yandamuri, 639 Pa. 100, 159 A.3d 503, 516 (2017)

(citations omitted).

Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution “guarantee individuals

freedom from unreasonable searches and seizures.” Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation omitted). In

Pennsylvania, a defendant charged with a possessory offense has “automatic

standing” to pursue a suppression motion under Rule 581.6 Commonwealth

v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009) (en banc). Nevertheless, “in

order to prevail, the defendant…must show that he had a privacy interest in

the area searched.” Id. at 434.

Our Supreme court has clarified that challenges to a defendant’s

expectation of privacy involve shifting burdens of proof. Commonwealth v.

Enimpah, 630 Pa. 357, 106 A.3d 695, 700-01 (2014). The Commonwealth

has the initial burden to “present evidence that the defendant’s constitutional

rights were not infringed.” Id. at 701. If the Commonwealth presents

evidence which shows the defendant “lacked a privacy interest, the burden

____________________________________________

6 Here, Appellant was charged with possessory offenses.

- 18 -

J-S24032-23

shifts to the defendant to demonstrate he had a reasonable expectation of

privacy in the area searched.” Id. Thereafter, it is incumbent on the

suppression court to consider all of the evidence to determine whether the

Commonwealth met its burden of production, and, if so, whether the

defendant met his burden of persuasion that he possessed a reasonable

expectation of privacy in the area searched by the police.7 See id.

“The expectation of privacy is an inquiry into the validity of the search

or seizure itself; if the defendant has no protected privacy interest, neither

the Fourth Amendment nor Article I, § 8 is implicated.” Id. at 699.

An expectation of privacy will be found to exist when the individual

exhibits an actual or subjective expectation of privacy and that

expectation is one that society is prepared to recognize as

reasonable. In determining whether a person’s expectation of

privacy is legitimate or reasonable, the totality of the

circumstances must be considered and the determination will

ultimately rest upon a balancing of the societal interests involved.

The constitutional legitimacy of an expectation of privacy is not

dependent on the subjective intent of the individual asserting the

right but on whether the expectation is reasonable in light of all

the surrounding circumstances.

____________________________________________

7 If the Commonwealth’s evidence conclusively establishes that the defendant

had no expectation of privacy in the area searched, then the Commonwealth

has met its burden of proving that the evidence was properly obtained, and

the suppression motion challenging the search must be denied. See

Enimpah, supra, 106 A.3d at 702 (noting that the Commonwealth’s burden

is “to give the [suppression] court evidence allowing” the court to conclude a

defendant lacked a reasonable expectation of privacy); Pa.R.Crim.P. 581(H)

(providing that “[t]he Commonwealth shall have the burden of going forward

with the evidence and of establishing that the challenged evidence was not

obtained in violation of the defendant’s rights”).

- 19 -

J-S24032-23

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005) (citations and

quotation marks omitted).

“[T]he Fourth Amendment does not shield only those who have title to

the searched premises.” Bostick, 958 A.2d at 552 (quotation and quotation

marks omitted). Rather, “a defendant must establish a possessory interest, a

legitimate presence, or some factor from which a reasonable and justifiable

expectation of privacy could be deduced to prove that this subjective

expectation of privacy is legitimate.” Id. (quotation and quotation marks

omitted). Thus, even if not an owner or lessee of the premises, “a defendant

who is more than a casual visitor to the...dwelling [searched by police] has

the right under the Fourth Amendment to the United States Constitution...to

challenge the search [of the dwelling] and seizure of [evidence therefrom].”

Commonwealth v. Rodriguez, 679 A.2d 1320, 1325 (Pa.Super. 1996)

(citation omitted).

Relevantly,

In Commonwealth v. Govens, 632 A.2d 1316 (Pa.Super. 1993)

(en banc), this Court reiterated that…an occupant other than the

owner or lessee of a [residence] [must] demonstrate a significant

and current interest in the searched premises in order to establish

an expectation of privacy. Govens, 632 A.2d at 1319[.] We

further stated that,

[f]actors to be considered in determining whether a

defendant has a legitimate expectation of privacy in

another person’s home include: (1) possession of a

key to the premises; (2) having unlimited access to

the premises; (3) storing of clothing or other

possessions on the premises; (4) involvement in

- 20 -

J-S24032-23

illegal activities conducted on the premises; (5) ability

to exclude other persons from the premises; and (6)

expression of a subjective expectation of privacy in

the premises.

Bostick, 958 A.2d at 553 (citation and quotation marks omitted).

Initially, Appellant contends the Commonwealth conceded and/or did

not challenge whether he had an expectation of privacy in the Victim’s home

such that his burden to rebut was never triggered. While Appellant is correct

that the Commonwealth may concede the defendant has an expectation of

privacy, or otherwise not challenge the expectation of privacy such that it

waives any objection/challenge thereto for appellate review, such did not

occur in the case sub judice. Commonwealth v. Skipper, 277 A.3d 617,

620 (Pa.Super. 2022). Rather, here, in both its response to Appellant’s pre-

trial suppression motion, as well as during the suppression hearing, the

Commonwealth specifically argued Appellant did not have an expectation of

privacy in the Victim’s home on Tully Lane. See Commonwealth Response,

filed 1/14/21, at 8-9; N.T., 1/25/21, suppression hearing, at 7.

Appellant next suggests the Commonwealth did not present any

evidence demonstrating he lacked an expectation of privacy in the home on

Tully Lane, and thus, the burden never shifted to Appellant to persuade the

suppression court he had a reasonable expectation of privacy in the searched

premises.

In rejecting Appellant’s claim, the suppression court indicated the

following:

- 21 -

J-S24032-23

[Appellant] argues that the Commonwealth has failed to

fulfill its burden of production in demonstrating that he lacked an

expectation of privacy in the [premises searched on Tully Lane].

[Appellant] notes that the Commonwealth failed to present any

further testimony or evidence, other than that which was

presented at the preliminary hearing,[8] in support of its

burden....[Appellant] concludes that his failure to establish a

reasonable expectation of privacy is inconsequential because the

Commonwealth was unsuccessful in its initial burden of

production. We disagree.

When [Appellant] was stopped in a stolen vehicle with bank

cards and an envelope displaying the Victim’s name, C.I. Sweitzer

researched the Victim’s name and found that he lived at the

Property [on Tully Lane]. After a first unsuccessful attempt to

contact the Victim, C.I. Sweitzer returned the next day and, after

the arrival of local law enforcement, entered the Property in order

to perform a welfare check on the Victim. [Appellant] was not

present at the Property when law enforcement entered the

premises. Once inside, C.I. Sweitzer [noticed] the Property [was]

disheveled and appeared as if he had been ransacked. Likewise,

law enforcement observed that a blue Tesla was still parked in the

____________________________________________

8 To the extent Appellant contends the Commonwealth was not permitted to

introduce the notes of testimony from the preliminary hearing in establishing

that Appellant lacked a privacy interest in the Victim’s home, we note

Appellant has waived this claim. During the suppression hearing, the following

relevant exchange occurred:

[ADA]: Your Honor, as a preliminary matter, I have marked the

transcript from the Preliminary Hearing as Commonwealth’s

Exhibit number 1, and I would move for its admission.

THE COURT: [Defense Counsel,] do you have a position with

regard to that exhibit?

[DEFENSE COUNSEL]: No objection, Your Honor.

THE COURT: [Defense Counsel,] is that the same document that

is attached to your motion?

[DEFENSE COUNSEL]: It is, Your Honor.

THE COURT: All right. Commonwealth’s [Exhibit] 1 is admitted.

N.T., 1/25/21, suppression hearing, at 4-5 (bold added). Based on this

exchange, Appellant has waived the issue of whether the preliminary hearing

transcript was properly admitted during the suppression hearing for purposes

of establishing Appellant lacked a legitimate expectation of privacy in the

Victim’s home. See Pa.R.A.P. 302(a).

- 22 -

J-S24032-23

garage of the Property….After contacting relatives of the Victim,

who could provide no further information on the Victim’s

whereabouts, and based on his observation of suspected

marijuana [in the Property], C.I. Sweitzer applied for a search

warrant that was thereafter approved.

Jeffery Neubauer testified that he and his girlfriend returned

[a] lost dog to the Property [at or around the time of the Victim’s

death, and Appellant] answered the door and took the dog. When

asked by Mr. Neubauer’s girlfriend if he was “Dennis,” [Appellant]

replied that he was.

During a post-arrest interview with Detective Martinez,

[when Appellant was shown a photograph of the Property,]

[Appellant] initially responded that he did not recognize the

Property, but [he] eventually relented, admitting that he had been

to the Property, but stating that he was there for a yard sale

because he conducts a business where he buys and resells guns,

coins, and other odds and ends. [Appellant] claimed to

investigators that he was granted access to the Property by an

unidentified black male going by “Bu,” who then sold [Appellant]

the items later found in the stolen vehicle.

Based on the evidence and testimony provided at the

preliminary hearing [and] the pre-trial suppression hearing[,] [the

court] finds that the Commonwealth did fulfill its burden. C.I.

Sweitzer’s research indicated that the Victim resided at the

Property. There was no evidence that [Appellant] leased or that

he was licensed to occupy any portion of the Property. [Appellant]

was not found in possession of a key to the Property. When asked

about the Property, [Appellant] initially denied recognition and

then only admitted that he had been to the Property [looking for

a yard sale] to conduct limited business in purchasing items for

resale. While one may [view] [Appellant’s] actions and behavior

when Mr. Neubauer and his girlfriend returned the lost dog to the

Property as suggestive of some ability to exclude [others] from

the premises, his affirmative answer to whether he was the Victim

is a clear manifestation that any such ability was solely premised

on a falsehood. Finally, Detective Martinez testified that

[Appellant] had left a duffle bag with some shoes and a hat at the

Property, but this could hardly be construed as [Appellant] storing

clothing or other possession at the Property, but mere incidental

of the crime alleged.

The expectation of privacy must be more than simply

subjective but must be reasonable and legitimate. As the [United

- 23 -

J-S24032-23

States Supreme Court] noted in Rakas v. Illinois, 439 U.S. 128,

99 S.Ct. 421 (1978), “[a] burglar plying his trade in a summer

cabin during the off season may have a thoroughly justified

subjective expectation of privacy, but it is not one which the law

recognizes as ‘legitimate.’” Rakas, 439 U.S. at 143 n.12, 99 S.Ct.

at 430 n.12. The resolution of this issue depends upon the totality

of the circumstances and ultimately rests upon a balancing of the

societal interests involved.

Having found that the Commonwealth sufficiently satisfied

its burden, we now must assess whether [Appellant] has

presented any evidence to rebut the lack of an expectation of

privacy in the Property. As noted, [Appellant] relies [primarily]

on an argument that the Commonwealth failed its burden and

acknowledges that he has provided nothing to support his own

expectation of privacy in the Property. [Appellant] states…that

his “motion must be granted, regardless of whether he could

ultimately establish a reasonable expectation of privacy.”

[Appellant’s Suppression] Memo at 9. [The trial court] finds this

to be unconvincing.

Based upon the totality of the circumstances and balancing,

as [the trial court] must, the societal interests involved, the [trial]

court finds no evidence to demonstrate [Appellant’s] reasonable

expectation of privacy in the Property.

Suppression Court Opinion, filed 3/29/21, at 13-15 (footnote added) (some

quotation marks and quotations omitted).

We conclude the suppression court’s factual findings are supported by

the record, and we find no error in its legal analysis. Yandamuri, supra.

The suppression court properly found the Commonwealth produced evidence

demonstrating that Appellant lacked a privacy interest in the Victim’s Tully

Lane home, and Appellant did not rebut this evidence. For example, the

Commonwealth produced evidence the Victim resided in the Tully Lane home,

and Appellant had no “significant and current interest” in the home. Govens,

632 A.2d at 1319. As the suppression court determined, Appellant’s

- 24 -

J-S24032-23

connection to the home was in furtherance of committing the crimes at issue,

including the burglary and first-degree killing of the Victim. Certainly, any

privacy interest Appellant subjectively demonstrated in the Tully Lane home

for the purposes of burglarizing the home and killing the homeowner is not an

“expectation…that society is prepared to recognize as reasonable.” Viall, 890

A.2d at 422. Accordingly, we find the suppression court properly denied

Appellant’s suppression motion on the basis he did not possess a reasonable

expectation of privacy in the searched premises.9

For all of the foregoing reasons, we affirm Appellant’s judgment of

sentence. We direct the parties to attach the trial court’s February 27, 2023,

opinion in the event of further proceedings in this matter.

Affirmed.

____________________________________________

9 Appellant also contends the warrantless search of the Victim’s home was

unconstitutional, and all evidence flowing therefrom is “fruit of the poisonous

tree,” including evidence later seized upon execution of a search warrant.

However, we decline to review these issues. See Enimpah, supra, 106 A.3d

at 701-02 (indicating if the evidence of the Commonwealth, the party with the

burden of production, shows the defendant lacked a privacy interest, the

Commonwealth need prove no more).

- 25 -

J-S24032-23

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/31/2023

- 26 -

Circulated 07/18/2023 11:21 AM

COMMONWEALTH OF PENNSYLVANIA

PENNSYLVANIA IN THE COURT OF COMMON

PLEAS OF BERKS

BERMS COUNTY

: PENNSYLVANIA

PENNSYLVANIA

V. CRIMINAL DIVISION

NO. CP-06-CR-0002261-2020

RAPHAEL PEREZ-RODRIGUEZ, : M. THERESA JOHNSON,

Appellant.

Appellant. :; PRESIDENT JUDGE

1925(a) OPINION

1925() OPINION February 27, 2023

Appellant's Statement of Errors Complained of on Appeal. For the

Before the court are Appellant's

that

reasons set forth herein, we find that all alleged errors lack

lack merit.

merit

BACKGROUND AND PROCEDURAL HISTORY

FACTUAL BACKGROUND

Raphael Perez-Rodriguez

Raphael Perez-Rodriguez ("Appellant")

(Appellant") was charged with Murder of the First Degree',

Degree,

Degree'-,Murder of the Third Degree',

Murder of the Second Degree', Degree 3,Burglary',

Burglary4,Robbery',

Robbery 5,Aggravated

Assault

Assault,6,two counts of Receiving Property,

Receiving Stolen Property, two counts of Firearms Not to be

be Carried

Without aaLicense,

License s,Altered, Forged or Counterfeit Documents and Plates,

Plates", Abuse of Corpse",

Corpse °,

Possession_ of aa Controlled

Possession_of Controlled_ Substance!',

Substance ) , and

and aa summary charge of Drivers Required to

1 to be

Licensed'

Licensed!-.The charges

charges stemmed from an initial traffic

traffic .stop

stop of Appellant, which then led to an

investigation of the )murder

investigation murder of Dennis Fink ("the

("the Victim") and the burglary of the Victim's

residence.

Appellant, through

Appellant, through Adam Bompadre,

Bompadre, Esq.

Esq. ("Defense

("Defense Counsel"), filed an omnibus pretrial

seeking dismissal of the criminal information and suppression of evidence. A

motion seeking A hearing on

January 25,

the motion was held on January 25, 2021, and on March 29, 2021, this court denied the motion.

18 Pa.C.S.A. §$ 2502(a)

1 18PCS.A, 2502()

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'18Pa.C.SA. 2502(c).

$ 2502(¢)

18 Pa.C.S.A. §$ 3502(a)(1Xi)

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18 Pa.C.S.A. §$ 2702(3X1

6 18Pa.C.S.A. 2702(a)(1)

7 18 Pa.C.S.A. $3925(a)

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8 18 Pa.C.S.A. §

'1PAC.SA. 6106(a)(1)

$ 6106(a(1)

9 75 Pa.C.S.A. §

'75PA.C.SA. 7122(1)

$ 7122(1

10 18 PA.CS.A.

818 Pa.C.S.A. $ § 5510

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11 35 P.S. $

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1501(a) $10OD JOE5ID

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I

Prior to trial, the Commonwealth moved to withdraw the counts of Altered, Forged or

Counterfeit Documents and Plates, Abuse of Corpse, Possession of aaControlled Substance, and

Drivers Required to be Licensed. The court granted the dismissal.

The matter proceeded to trial on April 18, 2022. The Commonwealth first called the

Victim's son, Michael Fink, who testified that his father was aatwenty-year veteran of the United

States Air Force who lived at 88Tully Lane, in Reading, Berks County, Pennsylvania. Notes of

Testimony o£ April

Testimony of April 18-20, 2022, Trial Trial

"Trial NT."

N.T." at 105-06. Mr. Fink further noted that his

father owned aablack Porneranian

Pomeranian dog named

named "Sophie" and that he drove aaTesla Model SSelectric

N.T. at 106-07. Mr. Fink also identified various exhibits, including an Air Force

vehicle. Trial N.T,

Academy graduation

Academy graduation ring,

ring, aahigh

high school graduation ring, aawedding band, and aaturquoise belt, as

well as insurance documentation for the rings. Id. at 109-10.

Mr. Fink continued that the Victim was active on social media, especially as to the subjects

of nutrition and health, including Id. at

including on Facebook. Id, at 111-12. Mr. Fink then identified aapost that

the Victim made on July 16, 2020, at 8:37 a.m. Id. at 112.

Eric Koller, an eight-year veteran of the Reading

The Commonwealth next called Officer Erie

Police Department,

Department, who testified that on July 16, 2020, at approximately 7:40 p.m., he was on duty

. - -

in aamarked patrol

patrol vehicle when he observed a

ablack Honda CR-V with what

what. appeared to be an

altered Minnesota license plate.

altered plate. Id. at 118. Officer Koller then initiated aatraffic stop on the Honda

after running

running the registration and learning that it was reported stolen out of New Jersey. Id. at 118-

later identified as Appellant, exited the vehicle, Officer

19. After the driver of the Honda CR-V, later

Koller

Koller ordered him to the ground and waited for backup to arrive. Id. at 119. Officer Koller reached

reached

inside the Honda to turn

tuns off the stereo system, which was playing very loud music and when he

did so, he observed aasmall, blue Ziploc bag in awhite powdery

in the driver's side door containing a

substance and two knives located between the seat and the door]jamb.

doorjamb. Id. at 120.

The officers on scene proceeded to search the Honda. Id.

proceeded to Id. Under the driver's seat, they

found two loaded handguns

handguns---

- aa9mm and aa .38 12.1. in

.38 revolver. Id. at 121. In the cargo area of the Honda,

officers found aaRemington model 742 30-06

30-06 rifle, aaWinchester 1400 semiautomatic shotgun, aa

crossbow, asword, CO2 cartridges in an envelope with the Victim's name on the label, and various

crossbow,a

debit and credit cards in the Victim's name. Id. at 122-23. Appellant was taken into custody and

the Honda was towed to the Department's sally port. Id. at 121-23.

22

Criminal Investigator Eric Sweitzer

Investigator Erie Sweitzer ("C.I.

(C.I. Sweitzer") of the Reading Police Department

next testified that

next testified that on July

July 16, 2020, Offic

16, 2020, Officer

er Koller

Koller informed him

him tthat during aatraffic stop,

hat during stop, several

C.I. Sweitzer performed some

items with the Victim's name had been located. Id. at 129-30. C.I

research

research and found

found an individual by

by the name of Dennis Fink who lived just outside the City of

Reading, in

Reading, in Bern Township. Id. at

Ber Township. at 130. CI.

C.T. Sweitzer and

and another criminal investigator, David

Lehman, then traveled to tthe

Lehman, he Victim's residence, at 88Tully Lane, Reading, Pennsylvania

Pennsylvania ("the

("the

Residence") in an attempt to make contact. Id.

Id, at 130-31.

As

As the investigators

investigators pulled

pulled into the driveway of the Residence, C.I. Sweitzer noticed that

the recycling

recycling can was located at the end of the

the driveway and that the exterior lights of the Residence

were Id. at 132. Upon

were on. Id. Upon arriving

arriving at

at the Residence, CI.

C.I. Sweitzer rang the doorbell and

and knocked

on the front door several times with no response. Id. 131. After several minutes with no

Id, at 13.

response, CI.

response, C.I. Sweitzer left his business -card in the door in the hopes that someone would contact

him. Id. at 132.

day, after receiving no contact from anyone regarding the Residence, C.I

The next day, C.I.

Sweitzer returned

retumed to the Residence, with Criminal Investigator Errington and found that his

business

business card was still stuck in the door, the recycling can was still at the edge of the driveway,

the same

the same exterior lights

lights were on,

on, and aapackage

package had been delivered. Id. at 133. C.I. Sweitzer also

garage door was slightly ajar, and he could see that there was aavehicle inside

observed that the garage

garage. Id.

the garage. Id. at 133. C.I. Sweitzer knocked on the front door several times, with no response,

133, CL

and then moved to the rear of the Residence and knocked on the rear doors, but no one answered.

134. CL.

Id. at 134. C.I. Sweitzer then began checking the

the doors and windows and found an unlocked door

through aascreened-in porch

through porch but did not proceed

proceed into the house. Id. at 135.

13 5. Instead, C.I. Sweitzer

contacted the

contacted the Bera

Bern Township

Township Police

Police Department

Department ("Bern P.D."), in

(Ber P.D."), in whose

whose jurisdiction

jurisdiction the

the

Residence was located. Id. at 135.

Once aapatrolman

Once patrolman from

from the Bern P.D. arrived, C.I. Sweitzer, along with the patrolman and

C.I. Errington,

C.I. Errington, proceeded

proceeded to open the door

to open door slightly and announced their presence. Id,

Id. at 1353)6.

135-36.

Hearing response, C.I.

Hearing no response, C.I. Sweitzer entered the Residence through the kitchen and observed aasmall

black dog

black dog in

in aacage

cage with aabowl of water and acting

acting alert and normal. C.I. Sweitzer

normal. Id. at 136. CI.

described the Residence as being

described being unkept,

unkept, with mess and clutter,

clutter, but also noted that items looked

out of place.

place. Id. C.I. Sweitzer noted that several cabinet doors in the kitchen were left open, and

33

lights were on in the closets throughout the Residence, and it appeared as if both

that the lights both the

had been gone

cabinets and the closets had gone tthrough removed. Id. at 136-37. The investigators

hrough and items removed.

moved into the garage and observed that the lights were on and aablue Tesla was parked in the

garage. Id. at

garage. at 137. CL.

C.I. Sweitzer testified that he decided to leave and try to

to locate a

a family member

of the Victim,

of Victim, but as he was leaving

leaving the Residence, he noticed aaduffle bag with aaflat brim

brim hat that

had aamarijuana

marijuana leave embroidered on the hat. Id. at 137, 144. CI.

C.I. Sweitzer said that

that the hat

caught his

caught his eye

eye because

because it did not fit

fit in with the d~cor

decor of the Residence and was not something he be

would anticipate the Victim having

would anticipate having in his

his possession.

possession. Id. Apart

Apart from the hat,

hat, CI.

C.I. Sweitzer

Sweitzer could

glass jars containing suspected marijuana. Id. at 18

also see glass 138.

C.I. Sweitzer then made attempts

CL attempts to contact family members of the Victim. Id. However,

none of the family

family members he contacted had any information on the Victim's whereabouts. Id.

C.I. Sweitzer asked that a

a further search of the Honda

Honda be

be performed and began preparing aasearch

began preparing

warrant for the duffle bag at the Residence. Id.

C.I. Sweitzer

CI Sweitzer returned later that evening with personnel from the Berks County District

Attorney's Office,

Attorney's Office, and before

before entering the Residence, he could detect the smell of decomposition

emanating from

emanating from. the wooded area behind the Residence. Id. at 139. Sergeant Schade, who

who had

accompanied C.I. Sweitzer, then

accompanied then located the Victim's

Victim's decomposing body Id.

Julie Patton next testified that in the summer of 2020, she was living with her partner, Mike

Gamber, at

Gamber, at 4

4Allison Road in Reading, Pennsylvania,

Pennsylvania, which is to Tully Lane, and that

is located next to

she knew the Victim from the neighborhood.

neighborhood. Id. at 147-48. Ms. Patton also knew that the Victim

had aasmall, black Schipperke dog.

dog. Id. at 148-49.

On the moraing

On morning of

o£ July

July 16, 2020, Ms. Patton noticed the Victim's dog running loose in the

16, 2020,Ms.

neighborhood and decided to return the dog with Mr. Gamber. Id. at 149. Arriving at the Residence

neighborhood

at approximately 9:30

at approximately 9:30 a.m., Ms.

Ms. Patton observed that the screens were open and so she began to

to

yell

yell the

the Victim's

Victim's name through

through the open

open windows. Id.

Id. at

at 149-50.

149-50. Ms. Patton rang the doorbell and

knocked on

knocked on the door, but

the door, response, and she assumed that the

but there was no response, the Victim was out looking

for the dog. Id.

the dog. Id, at 150. Ms. Patton farther

further noticed aadark SUV,

SW, that she did not recognize, parked

in the driveway

in driveway of the Residence. Id. With no answer, Ms. Patton then took

took the dog to her sister,

Marilyn

Marilyn James' house with instructions to

to see if the Victim was.home

was home later. Id. at 150-51. Ms.

44

the

Patton noted that she did not notice any yard sales occurring on the morning of July 16, 2020, and

did not see any items on the lawn of the Residence. Id. at 151

151.

Marilyn James, Ms.

Marilya James, Ms. Patton's sister and neighbor, knew the Victim from

from the neighborhood

and knew that he had aasmall, black Schipperke

Schipperke dog. Id. at 153. On July 16, 2020, while at sa

friend's house,

house, Ms. James heard from Ms. Patton regarding finding the Victim's dog and her

unsuccessful efforts to contact the Victim. Id. at 154. On her way home at

at approximately 10:00

10:90

a.m., Ms.

a.m., Ms. ,Tames stopped at the Residence to check on the Victim, but when she knocked on the

James stopped

door, an individual --— aaHispanic male with dark brown hair

door, hair - that was not the Victim answered the

door. Id. at 154-55. Ms. James described the individual as wearing aat-shirt, aamask, shorts, and

either barefooted or wearing

wearing flip

flip flops.

flops. Id. at 156. Ms. James further noted that she knew the

been aafoster parent

Victim had been teenagers, so she did not think that the individual was

parent to several teenagers,

supposed to be at the Residence. Id. She noticed that aadark SUV was parked on the side of

not supposed

the Residence. Id. at 155.

Ms. James asked the individual if the Victim's dog was missing, and the individual

answered in the affirmative.

affinnative. Id. Ms. James then retrieved the dog from her home and returned to

the Residence with the dog,

dog, and the individual took the dog from her. Id. She noted that the

eeined "`a

dog"seemed

exchange when she returned the dog "a little bit weird,"

weird," as the individual

individual only opened the

door about forty-five return of the dog. Id. at

forty-five degrees and did not seem excited or relieved at the return

157.

157. Ms. James likewise confirmed that she did not see any items on the lawn of the Residence

Resdi ence or

any yard

that any yard sales were occurring in the neighborhood. Id.

Id.

Jeffrey Neubauer testified that in July of2020,

Jeffrey of 2020, he lived with his partner, Chery!

Cheryl Takach, at

1703 Road, in Bern Township,

1703 Golf Road, Township, which is about aablock and aahalf from the

the Residence. Id.

Id. at

159-60. On the morning

159-60. morning of July

July 16,

16, 2020,

2020, Mr. Neubauer was painting

painting his front porch

porch when two

young girls approached

young girls approached him with aasmall,

small, dark-colored dog and asked if it was his dog. Id.

Id, at 160.

Mr.

Mr. Neubauer did not recognize

recognize the dog but took the dog inside and began to figure out the owner

dog based on information from the dog's

of the dog dog's collar. Id.

Id, at 160-61.

160-61. He

He was able to find out that

dog's owner lived at the Residence, and so he took

the dog's took the dog to

to the Residence. Id.

As

As Mr. Neubauer and Ms. approached the

Ms. Takach approached the Residence, Mr. Neubauer

Neubauer described the

the

grass as overgrown

grass overgrown with weeds and aaflower bed that looked unkempt. Id, at 161-62. When they

approached and knocked on the door, an individual who Mr. Neubauer described as being aatall,

approached

55

Hispanic man wearing

Hispanic wearing beige/white

beige/white cargo

cargo shorts, aatank top,

top, no shoes, and aaball cap, answered the

door. Id.

door. at 162.

Id. at 162. Mr. Neubauer

Neubauer further

further noted

noted that

that the

the individual's

individual's feet

feet appeared to

to be

be dirty

dirty and that

the individual's undergarments

undergarments were exposed,

exposed, and he could see that the brand of his underwear

Tommy Hilfiger.

was Tommy Hilfiger. Id. at 162-63. When the door opened, Mr. Neubauer

Neubauer noticed soine items on

noticed some

the floor

the floor including

including aabow

bow and

and arrow

arrow and

and aacan

can of

of Mr.

Mr. Bubbles

Bubbles bathroom

bathroom spray

spray cleaner.

cleaner. Id. at

at 164.

164.

Ms. Takach asked the

the individual dog was his and the individual

individual if the dog individual answered in the

the

affirmative. Id. at

affirmative. at 163.

163. Ms.

Ms. Takach

Takach then

then asked the

the individual if he

individual if he was Dennis and

was Dennis and he stated that

he stated that

he was. Id.

Id, at 163. Mr. Neubauer stated that he found the exchange odd as the individual did not

grateful to have

seem grateful have the dog returned

the dog retumed or even aware that the Id. at 164. The

the dog was missing. Id,

next day,

next day, in speaking with

in speaking with investigators,

investigators, Mr.

Mr. Neubauer

Neubauer was

was presented

presented with

with aaphoto array lineup

photo array lineup

and indicated on aaphotograph

photograph of Appellant.

Appellant. Id. at 165; Comm.'s Ex. IH.

11.

Timothy Koch testified that in the summer of 2020, he lived at 7

Timothy 7 Allison Road in Bern

Ber

Township, which

Township, which was

was next door to

next door to the Residence,

Residence, and

and that he knew

that he the Victim,

knew the Victim, but not that well.

but not well.

Id. at 170-71.

170.71. Mr. Koch was not aware that the Victim owned aadog but noticed

noticed, aasmall black

animal in his back yard

yard on the evening

evening of July

July 16, 2020.Id.

Id. at 171. The next morning, Mr. Koch

Koch

saw the same

saw same dog

dog loose in the neighborhood

loose in neighborhood and

and nearly

nearly ran the dog over

the dog over with

with his

his car. Id.

Id.

early evening

In the early evening of July

July 16,

16, 2020,

2020, Mr. Koch observed someone walking around the

garage of the Residence that he did not recognize. Id. at 172. Mr. Koch described the individual

garage

as aamale wearing aalight

male wearing light blue shirt. Id.

Id. Mr. Koch

Koch further stated that

that he did not

not see any items

strewn on the lawn as if aayard

yard sale were occurring on that day. Id. at 173.

Commonwealth next

The Commonwealth next called

called Officer

Officer Katelyn

Katelyn Super

Super ("Officer Super"), a

(OfSeer Super"), athree-year

three-year

veteran

veteran of the Reading Police Department,

the Reading Department, who testified that on July 16, 2020, at approximately

testified that

p.m., she was on duty

7:40 p.m., duty when

when she responded

responded to aatraffic stop

stop on aapossible stolen vehicle. Id. at

at

175-76.

175-76. When she

When she arrived

arrived on

on scene,

scene, Officer

Officer Super

Super observed

observed aablack

black Honda

Honda CR-V

CR-V with

with aa

Minnesota license

Minnesota license plate

plate that

that had

had aanumber

number that had

had been Id. at

been altered. Id, at 176.

176. Officer

Officer Super

Super was

was

tasked with

tasked photographing the

with photographing the Honda

Honda while she and

while she and Officer

Officer Koller

Koller began to search the

began to the vehicle.

vehicle. Id.

at 177.

at 177. The Commonwealth

The Commonwealth introduced

introduced photographs taken during

photographs taken during the

the search

search into evidence

into evidence

depicting items

depicting items found, including

including aabaggie

baggie containing

containing suspected narcotics,

narcotics, aaknife, aacell phone, aa

loaded Heckler

loaded and Koch

Heckler and 9mm handgun,

Koch 9mm handgun, aaloaded

loaded ..38

38 Special

Special revolver,

revolver, aabusiness

business card

card with

with the

the

Remington rifle, aaWinchester shotgun, aabox containing empty casings and

Victim's name on it, aaRemington

66

shotgun rounds,

shotgun rounds, aabag containing

containing various boxes of ammunition, aabow and arrow, and aabusiness

card from aaT-Mobile

card T-Mobile store in

in Paterson,

Paterson, New Jersey,

Jersey. Id. at

at 182.85.

182-85. The evidence

evidence was

was left

left in the

the

Honda and the vehicle

vehicle was then towed to the sally

sally port at

at City Hall with

with an officer escort to ensure

Id. at 185.

chain of custody. Id,

Ryan Solecki ("Officer

Officer Ryan Solecki"), a

("Officer Solecki"), a five-year

five-year veteran of the Reading Police

Department testified that July

Department July 16, 2020, at approximately 8.00

8:00 p.m., he was on duty when he was

dispatched to aatraffic stop

dispatched stop in progress.

progress. Id. at I88-89,

188-89. Arriving

Arriving on scene, Officer Solecki observed

aaHonda

Honda CR-V

CR-V that

that was

was being searched by

by officers

officers on

on scene,

scene, and

and he saw that

that the

the driver

driver had

had been

sitting on the sidewalk. Id. Officer Solecki described the inside of the vehicle

removed and was sitting

appearing as

appearing as if someone had

if someone had been living in

been living in the vehicle, with

the vehicle, with aalot

tot of

of objects,

objects, and

and he

he specifically

specifically

bags.. Id. at 189. After the search had been completed, Officer

remembered two Army green duffel bags.

Solecki was tasked

Solecki tasked with

with watching

watching the Honda

Honda as the towing company

the towing company hitched

hitched the

the vehicle

vehicle and then

then

following as the vehicle was

following was transported back sally port at City Hall, and

back to the sally and then secured in the

garage. Id. at

garage. at 189-90.

189-90.

Criminal, Investigator

Criminal Investigator Steve

Steve Valdez

Valdez ("C.I.

("C.I Valdez"), eight-year veteran

Valdez"), an eight-year of the

veteran of Reading

the Reading

Police Department,

Police testified that

Department, testified that on

on July

July 17,

17, 2020,

2020, he

he was

was contacted

contacted by C.T. Sweitzer

by C.I. Sweitzer to

to assist

assist in

in

investigation, and

an investigation, and to accompany

accompany Officer James Yeasted in the search of aablack

black Honda

Honda CR-V

in the

the garage

garage at

at City

City Hall.

Hal. Id. at 191-92.

Id. at 191-92. During

During this search, C.I. Valdez

Valdez found several knives,

found several knives, aa

machete,

machete, and several financial cards with the Victim's

Victim's name on them. Id. at 194-95.

194-95,

The Commonwealth next called Dr. Neil Hoffman, M.D.

M.D. ("Dr.

("Dr. Hoffman"), who was

qualified as an expert

qualified expert in the field of forensic pathology.

pathology. Id. at 211-16. Dr. Hoffman performed an

autopsy on the Victim on July 19,2020,

autopsy 19, 2020,- and produced aareport of the autopsy, which was submitted

Id., at 216-17; Comm.'s Ex. 116. Dr. Hoffman's autopsy report indicated that the

into evidence. Id.

Victim's death

Victim's death was caused by

was caused by exsanguination,

exsanguination, or

or bleeding outside of

bleeding outside of the

the body, internal

body, and internal

bleeding due to

bleeding due multiple stab wounds,

to multiple wounds, with contributory factors of

with contributory of cardiomyopathy

cardiornyopathy and

and osteopenia.

osteopenia.

Id. at 218-19.

Id. at 218-19. Dr.

Dr. Hoffman

Hoffman explained

explained that

that cardiomyopathy

cardiomyopathy is aadisease

disease with

with multiple in

multiple causes, in

which "the

which heart muscle

"the heart ceases to

muscle ceases to function

function normally and its

normally and its contraction

contraction are

are not

not as

as efficient."

efficient." Id. at

at

219. Dr. Hoffman further noted that aacontributory

contributory cause meant that the condition "didn't

the condition didn't really

start the cascade of causation in this case,

in this case, but probably means that [the

but probably [the Victim] was less able to

defend himself from the person

person who was wielding

wielding the knife or wielding the weapon," and that the

77

Victim "was less able to withstand the effects of the of those injuries that were inflicted by the

weapon." Id. Likewise, Dr. Hoffman described osteopenis

weapon." osteopenia as aacondition in which

which "the

"the bones have

protein, and where they become more easily fractured." Id. at 220. Dr.

less calcium and less protein,

Hoffman continued that the injuries

injuries he observed included stab wounds that penetrated into bone,

which then tore into the pleural cavity on the right side of the Victim's chest. Id. This

pleural cavity This "allowed

bleeding into the inside of the chest[,] which would [sic]

bleeding [sic] made it

it more immediately effective or to

disable and kill the man." Id.

Dr. Hoffman then explained

explained that generally,

generally, he will list the injuries to aavictim in order of

severity. Id.

severity. injury was aaright

I. The first injury right to left stab wound to the Victim's chest in the area above

the collar

the collar bone right side with "a

bone on the right "awound path

path that went into the

the base

base of the

the neck and then

then

behind the collar bone and sternum," and into the topmost area of the chest. Id. at 221. This jab

sliced one of the

sliced largest arteries supplying

the largest supplying blood to

to both and brain and

both the neck and and caused aacomplex

complex:

fracture to

to the collarbone and right

right first

first nib.

rib. Id. The injury would also

also result in blood from the cut

artery to

artery cavity. Id. The next wound to the Victim was aastab wound to the left front

to fill the chest cavity.

side of the

the neck

neck that punctured the Victim's

that punctured Victim's larynx and would

would have

have impeded his

his ability to

to breathe.

Id. right. Id. at 223. The third

Id, at 222-23. This wound was oriented left to right. third wound was aaslice to

the

the Victim's cheek that "perforated the very

that "perforated very thin bone of the

the maxilla."

maxilla." Id.

Id, at 224.

224. The wound was

was

deep and oriented left to right. Id.

deep

The fourth stab

stab wound was to the back of the left side of the chest and was transversely

oriented, meaning

oriented, meaning that it "went slightly

it "went slightly from left to right but upward

upward as well." Id. at 224-25. This

wound

wound fractured the Victim's tenth rib. Id. at 225. The fifth wound to the Victim was to

to the area

below

below the left collarbone. Id. at 225-26. The stab "proceeded approximately three inches down

the left side of the

the chest," and into the musculature of the chest. Id. at 226. The Victim's sixth

wound was aastab wound to the lower chest area that moves from front to back. Id. The stab sliced

between

between the sixth and seventh rib and into the pleura that lines the chest cavity but did not go into

the lung.

lung. Id. Dr. Hoffman clarified that the direction of the different wounds --— that there are

multiple angles

multiple angles and positions

positions -— is indicative of one or both bodies being in motion at the time of

infliction. Id.

ld.

explained that the injuries he observed would have resulted in both external

Dr. Hoffman explained

bleeding. Id,

and internal bleeding. Id, at 226-27. Dr. Hoffman

Hoffman also noted that there

there was blunt impact observed

8

resulting in

resulting in aafracture to the left

left forearm,

forearm, which is most commonly caused by aaperson trying to

break their

break their fall to the ground. Id. at

to the at 227.

227. Dr. Hoffman also noted

Hoffman also noted that there were

that there were abrasions

abrasions to

to the

the

hands and

hands and to the knees of the Victim. Id.

M. at 227-28. While he could not determine conclusively

which abrasions to

which to the Victim's hands may have

hands may Hoffinan stated

have been caused postmortem, Dr. Hoffman stated.that

that.

the

the knee abrasions occurred before death and were consistent with the Victim moving his legs

across aarough

across rough surface

surface as

as aaresult of either

result of either falling or being

falling or being pushed or by

pushed or having someone

by having someone on

on top

top of

of

him. Id,

him. Id. at

at 228-29. Dr. Hoffman also found abrasions on the Victim's chest that were consistent

with falling

falling or being pushed and were large areas of irregularities that would result from bushes

bushes,,

branches, or rocks. Id.

branches, or Icy. at

at 229.

229. Dr. Hoffman continued that

Hoffman continued that the

the abrasions

abrasions suggest

suggest that the

the Victim

Victim

had both

had both fallen and then was moving across aarough

was moving rough surface. Id. at 230. The Victim also had

evidence of bruising chest .and

bruising of the chest and fracturing

fracturing of ribs that "were caused by heavyweight or an

impact being

impact being placed

placed on the front of the chest or with aaheavyweight or impact

impact on the back of the

being supported by the ground." Id,

chest with the chest being Id. at 231.

Finally, Dr. Hoffman.

Finally, Hoffman described that the Victim's body

body was

was in aa state of moderate

decomposition and that there was extensive maggot

decomposition activity in many of the wounds. Id. at 231-32.

maggot activity

Based on the maggot

Based on activity, and other information

maggot activity, regarding body and scene conditions, Dr.

information regarding

Hoffinan opined that the Victim's

Hoffman opined death occurred approximately

Victim's death approximately 30

30 to

to 48

48 hours prior

prior to the

to the

discovery of the body.

discovery body. Id. at 233. Dr.

Dr. Hoffman postulated, based in part on information provided

postulated, base

by law

by law enforcement,

enforcement, that the time of death of the Victim was between 845

8:45 a.m. and 12:00 p.m. on

12.00p.m.

July 16,2020.Id.

July 16, 2020. Id. Moreover,

Moreover, toxicology indicated "negative for various drugs or substances

toxicology results indicated

of abuse." Icl.

Id. at 234.

Dr. Hoffman

Dr. Hoffinan acknowledged

acknowledged on cross-examination that he was

was not provided any of the

knives

knives from

from the Victim's' home to compare

compare against

against the stab wounds. Id. at 245. However, Dr.

Hoffman concluded that the stab wounds were caused by

Hoffman by "a

"a sharp-edged instrument like aaknife.

It had

It had aablade length on the order of three inches.

blade length inches, The blade width was approximately one half

Id. at 246.

inches long." Id,

Sarah Kase,

Sarah Kase, aaserologist

serologist with

with the Bethlehem

Bethlehem Crime

Crime Lab of

of the Pennsylvania State

the Pennsylvania State Police,

Police,

next testified that

next testified that she "analyze[s]

"analyze[s] items of evidence

items of evidence in serology for

in serology for the presence of

the presence of body fluids;

fluids;

mainly bloods,

mainly semen, saliva,

bloods, semen, saliva, feces, and urine," and that she "prepare[s] probative samples for

99

DNA and have those sent to the DNA lab. Id. at 248. She also noted that she will examine hairs

to determine whether they are animal or human. Id.

Ms. Kase then testified to the report that she authored regarding various items of evidence

that were collected and sent to her for testing and analysis. Id. at 249-50; Comm.'s Ex. 119. Ms.

Kase first concluded that aaswab from

from the basement sliding glass door of the Residence and aadried

sample from

blood sample from. the Victim were not processed for serology and were repackaged solely for

DNA

DNA testing. at 253.

testing. Id. at 253. Ms. Kase next concluded that chemical testing

testing indicated the presence of

blood on the Victim's left-hand fingernail. Id. at 254. On the Victim's

Victim's right-hand fingernail

sample, there was insufficient quantity

sample, quantity of the sample to conduct testing as to the identification of

blood,

blood, but debris. Id. at 257-58.

but Ms. Kase did identify insect-like debris.

Ms. Kase concluded that a

a black and orange face mask found at the Residence was tested

and confirmed the presence

presence of saliva on the mask. Id. at 258. Ms. Kase testified that there was an

insufficient quantity

insufficient quantity of

of aasample

sample on

on aapair

pair of

of blue and black

blue and black gloves

gloves to

to conduct confirmatory

confirmatory testing

testing

for blood and the sample was

was packaged 25.9. There were blood stains identified

packaged for return. Id. at 259.

on the heel and bottom left side and shoelaces of aaleft foot Adidas Boost sneaker and samples

samples.

analysis. Id. at 259-60. No blood was detected on the blade or

were swabbed and sent for DNA analysis.

handle.of

handle of aakitchen

kitchen knife, aafolding another knife that were collected, but swabs were

folding knife, and anoter

made and forwarded for DNA analysis. Id. at 260-61. Chemical testing indicated the presence of

blood was detected on the zipper

zipper area, front leg area, and back right pocket of Appellant's shorts,

but there was an insufficient quantity

quantity of the sample to conduct further testing for identification. Id.

at 261. Chemical testing

testing on aablue Versace shirt

shirt likewise indicated the presence of blood on the

outside front and inside left sleeve cuff, but the sample was insufficient for identification of blood.

Id. at 262. Kase explained

Ms. Kase explained that even where there was an insufficient sample for blood

identification, the samples

identification, samples were repackaged

repackaged and forwarded

forwarded as DNA testing and analysis may still

be

be performed

performed on the sample. Id.

Officer James Yeasted,

Yeasted, aaten-year

ten-year veteran of the Reading Police Department

Department testified

testified that

that

he is detailed to the

the crime scene unit, which

which entails processing evidence and responding to major

homicide and shootings

homicide and shootings cases,

cases. Id. at 273-74. On July 17, 2020, Officer Yeasted was

was contacted by

C.I. Sweitzer

CL Sweitzer regarding

regarding an

an ongoing

ongoing investigation and requested

investigation and Officer Yeasted

requested Officer Yeasted to

to assist

assist in

in

conducting aasearch of aaHonda CR-V. Id.

conducting Id. at 274. Officer Yeasted and Criminal Investigator Steve

10

Valdez conducted the search

search, of the Honda. Id. Officer Yeasted described the

Ofieer the protocol of the

search, including

search, taking photographs

including taking photographs of the exterior beginning at the driver's side and then

proceeding and do

proceeding counterclockwise around the vehicle and do the same thing

thing again with the doors to the

vehicle opened. Id. Once photographs

vehicle opened. photographs are taken, collection of evidence will begin. Id. at 275.

Officer Yeasted described the interior of the Honda as being very cluttered. Id.

Id, The

Commonwealth then introduced photographs

Commonwealth photographs taken during the search of the Honda. Id,

Id. at 277;

Exs. 39-103.

Comm.'s Exs, 39-103. During

During the search of the Office Yeasted testified that they found

the Honda, Ofice

one knife underneath the driver's side seat,

seat, and another jammed in the side, aapurple Metro T-

Mobile

Mobile bag

bag in the rear driver's side, aagreen

green military style bag in the passenger rear seat, aacell

phone

phone in the center console area, aapicture of an Egyptian frame on the rear passenger floor. Id. at

278-79;

278-79; Comm.'s Exs. A metal

Es. 41-47. A metal box was found on the front passenger seat,

seat, which contained

various papers and coins. Id.

Id, at 279; Comm.'s Exs. 49-50.

laptops were

Boxes of ammunition and two laptops were found

found on the rear

rear seat, with laptops

with one of the laptops

having aasticker

having sticker with the Victim's name

name on it. Id,

Id. at 280; Comm.'s Exs. 56.-60.

56-60. AA beige pouch was

found

found in

in the interior of the driver's side door that contained aakey holder with the Victim's name

on it. Id,

on Id. at 281;

281; Comm.'s Exs. 63-64. In the same door pocket, Officer

officer Yeasted located a

a rifle

cartridge and aaspent

cartridge spent cartridge

cartridge underneath the driver's side seat. Id,

Id. at 281-82; Comm.'s Ex. 66,

68. Business

68. Business cards with the Victim's name and address on them were located in

in the driver's side

door as well. Id. at 282; Comet's. Exs. 69-70.

282; Comm's. 69-70. A

A machete in aasheath was found on the floor of the

front driver's side area. Id.; Comm.'s Exs. 71-72.

In

In the

the rear hatch trunk of the Honda were found aanight stick with baton, aawooden model

plane,

plane, aadigital

digital camera,

camera, and aamanilla envelope

envelope with the Victim's name printed on the side. Id. at

at

282-83; Comm.'s Exs.

282-83; 73-78. Inside of the envelope were found three credit cards and aadebit

Exs, 73.78.

card with the Victim's name on them and CO2 cartridges. Id. at 283-84; Comm.'s Ex. 79-81. A

card A

carpet knife,

carpet knife, two arrows, aasword, and aacrossbow were also found in the trunk,

trunk. Id. at 284-85;

Comm.'s Exs. 83.89.

83-89. Two

Two bags

bags -— one red and one tan -— were found

found in the trunk of the Honda. Id

Id.

at 285-86;

at 285-86; Comm.'s Exe.

Exs. 92-92.

92-92. A

A box

box found was

was- found in the rear

rear passenger side that

that contained

contained

pistol magazines and shotgun cartridges. Id. at 286; Comm.'s Exs. 93-94.

two pistol

I1

11

A notebook found in the front passenger

A passenger glove box included the Victim's name inside. Id.

at 286;

286; Comm.'s Exs. 95-96. On the floor of the front passenger area was aaBlue Cross'Blue

Cross/Blue Shield

of Texas card with the

the Victim's name on it.

it. Id.; Comm.'s Ex$.

Exs. 100-01.

Officer Yeasted testified that two days later, on July 19, 2020, he met with Detectives

Martinez,

Martinez, Shade, and Rentschler of the Berks County Detectives Office, and Bern

Ber Township

Sergeant Brett Forry

Detective Sergeant Fony in the evidence section. Id. at 287-88. At that time,

time, the three

three knives

found in the Honda were relinquished into the control of the detectives. Id.

On July 28, 2020, Officer Yeasted examined the

the contents of the bags found in the Honda.

Id. at 294. In the red bag, Officer Yeasted found aahatchet, first aid kit, cell phone, flip phone,

binoculars, several wristwatches, and two compasses.

compasses. Id. at 295; Comm.'s Ex. 105. Miscellaneous

items, including aatoy airplane, two straight-edge knives, and three folding knives, were found in

the beige

beige bag retrieved from the Honda. Id. Exs. 106-107.

Id, at 295; Comm.'s EKs. 106-1 ,

07. In the

the green duffel

bag

bag with the Victim's last name on it were found various boxes of firearm ammunition, television

remotes, and toy

toy planes. Cormn.'s Exs. 108-110. On August 5, 2020, Officer Yeasted

planes. Id. at 296; Comm.'s

and his supervisor met with Detectives Martinez and Shade at the evidence section to transfer all

items collected as evidence from the Honda. Id. at 297-98.

Officer Yeasted further described two cell phones

phones that were found during the search of the

Honda. Id. at 299-300. The first was aagray LG cell phone that was found on the front dash of the

phone tbat

Id, at 299, 303; Comm.'s Ex. 236. The second was aablack cell phone with aagray cover

Honda. Id.

that was found on the two cup

cup holders attached to the center console of the Honda. Id. at 300, 303;

Comm.'s Ex. 237.

Fasolka ("Sergeant

Sergeant Andrew Fasolka Fasolka"), a

("Sergeant Fasolka"), asix-year veteran of the Berks County

Sheriffs Department,

Sheriff's Department, testified that on July 16, 2020, he was working in the booking center of the

Sherriff soffice when Appellant

Sheriff's Appellant was processed through. Id,

Id. at 307-09; Comm.'s Ex. 122. Sergeant

Fasolka continued that,

that, as part

part of the booking

booking process, an inventory was taken of the personal

Appellant had

items Appellant had on his person,

person, which

which included aabelt, aawatch, four rings, four necklaces, one

hat,

hat, one toilet cleaner pack,

pack, one lighter,

lighter, one MP3 player, one set

set of keys, miscellaneous papers,

pin, and

one tie pin, and $15.25

$ 15.25 in cash and coins. Id. at 309; Comm.'s Ex. 122.

Sergeant Gerardo Vega

Sergeant Vega ("Sergeant

("Sergeant Vega"),

Vega"), aathirty-year law enforcement veteran, and aa

detective with County Detectives' Office testified that on July 17, 2020, he

with the Berks County he responded

12

to

to aacall at 88Tully

Tully Lane in Bern.

Ber Township, Berks County, where he was briefed as to attempts to

ascertain items

ascertain items in the stolen vehicle that Appellant

Appellant was driving at the time of his arrest. Id. at 311-

12. Sergeant

12. Sergeant Vega

Vega proceeded

proceeded to

to.the SherriffsOffice where he seized the clothing

the Berks County Sheriffs

that Appellant

that Appellant was

was wearing

wearing at the

the time of his arrest for evidence purposes. Id. at 312. At

At the time,

Sergeant Vega

Sergeant Vega tools photographs depicting

took photographs depicting Appellant in

in the clothing that was later seized. Id. at

313-14; 240. The clothing

313-14; Comm.'s Ex. 240, clothing seized included aablack muscle shirt, aapair

pair of tan/beige

tan/beige

shorts, aapair

shorts, flip flops,

pair of flip flops, and later,

later, aapair light blue Tommy Hilfiger underwear. Id. at 313-18.

pair of light

On August

On August 11, 2020, after applying

11, 2020, applying for

for and receiving aasearch warrant, Sergeant Vega

proceeded to the Berks County

proceeded County Jail System

System (`BCJS"),

(BCJS"), where Appellant was being held, and seized

the items that were collected upon

the upon his arrest. Id. at 321. Sergeant Vega specified that one of the

rings seized was an Air Force graduation

rings graduation ring

ring and another was aahigh school graduation ring, along

with aaU.S. Air Force hat. Id,

Id. at 323-24. The set

set of keys seized from Appellant included key fobs

for aaFord and aaTesla motor

motor vehicle. at 326. Sergeant Vega further

vehicle, Id. at further noted

noted that

that while

while the device

seized was listed as an MP3 player,

seized player, it was actually aarecorder. Id. at 329. Sergeant Vega stated

stated

that the Tesla key

that key fob was transferred to Detective Martinez to determine whether the fob was

associated with the Tesla at the Victim's Residence. Id. at 331. Sergeant Vega observed that they

did activate the Tesla at the Residence. Id.

lsam Al-Barghouthy testified that around July 14, 2020, he

Isam A!-Barghouthy he lived

lived at 14 River Road,

Road,

Elmwood Park, New Jersey, and that he owned aa2011 Honda CR-V and aa2006 Toyota Camry.

Id. 338-39. Mr.

Id, at 338.-39. Mr. Al-Barghouthy

A!-Barghouthy stated that he purchased the Honda approximately six to eight

months

months prior placed his

prior in New York and that he placed his Minnesota

Minnesota license

license plates Id. at

plates on the Honda. Id. at.

339. Mr.

339. Mr. A-Barghouthy

Al-Barghouthy had

had lived

lived in

in Minnesota for

for seventeen years had planned on moving

years and had

back, so he registered

back, registered the Honda in Minnesota. 339-40. On the evening of July 14, 2020,

Minnesota, Id. at 339-40,

Mr. Al-Barghouthy

Mr. Al-Barghouthy came home late and parked

parked the Honda, which his son had just cleaned, in his

driveway. Id. at

driveway. at 340. The next moming,

morning, on July 15, 2020, he noticed that the Honda was gone and

immediately reported

immediately reported it stolen. Id. at

at 340-41. Mr. Al-Barghouthy

Al-Barghouthy also testified that the license

testified that

plate

plate that he had on the Honda ended in aa9. Id. Al-Barghouthy stated that when he

Id, at 341. Mr. AF-Barghouthy

last drove the Honda,

Honda, there were no weapons, including firearms or knives, inside of the vehicle.

Id. at 341-32.

13

of 2020, she resided in Lancaster County, Pennsylvania,

Anne Traceski testified that in July of2020,

with her husband, Thomas, and her son,

son, Nathan. Id. at 344-45. Ms. Traceski stated that she was

unfamiliar with the Residence and did not know the Victim. Id. at 345. In October of 2021, the

County Detectives' Office contacted Ms. Traceski regarding the faet

Berks County fact that her Google

account had appeared in aasearch warrant. M.

had appeared Id. at 344. Ms.

Ms. Traceski testified that on July 16, 2020,

walking the

she had been walking the trails around the Reading Museum

the Reading at 345-46. After

Museum with her son. Id. at

walking

walking the trail,

trail, Ms.

Ms. Traceski and her son went

her son eat at

went to eat at Elevation Burger. Id,

Elevation Burger. Id. at

at 346.

346.

Sergeant Albert Schade

Sergeant Schade ("Sergeant

("Sergeant Schade"), aatwenty-three-year veteran of the Berks

Berks

County Forensic Services Unit,

County Unit, testified that on July 17, 2020, he

he proceeded to the

the Residence with

regarding the investigation

C.I. Sweitzer regarding investigation of recovered property.

property. Id. at 349.50,

349-50. Upon arrival, they

proceeded door, where Sergeant

proceeded to the back door, Sergeant Schade stated that he "smelled something

decomposing in

decomposing the back."

in the back." Id. at

at 350.

350. As

As aaresult

result.of detecting the

of detecting the odor,

odor, Sergeant

Sergeant Schade

Schade and

and C.I

C.I.

Sweitzer started

Sweitzer started down

down aafoot trail in the back

trail in back yard

yard that

that led

led toward the river.

toward the at 351.

river. Id. at 351. They

They located

located

along the left side of the trail situated approximately ten feet from the property

the Victim's body along

and about

line and about ninety-six

ninety-six feet from

from the Residence.

Residence. Id,

Id. at

at 351-52.

351-52. Once

Once the

the Victim's

Victim's body was

was

located, Sergeant

located, Sergeant Schade

Schade called

called Lieutenant

Lieutenant Shenk

Shenk and

and had

had the

the Reading Police contact

Reading Police contact the Berks

Berks

Coroner. Id.

County Coroner. Id. at 352.

at 352.

Sergeant Schade described the body

Sergeant body as being by bamboo and indicated that there

being covered by

had been

had been significant

significant insect

insect damage

damage to

to the

the face and chest. Id. To

face and To identify

identify the

the body, they

they took

took aa

print of the Victim's right

print right thumb that was later verified through aafingerprint card from the

Victim's military

military service. Id. at 351-52. The Victim's body was then removed from the Residence.

Id. at 352.

Sergeant Schade

Sergeant Schade retumed

returned to

to the

the Residence

Residence on

on July

July 18,

18, 2020,

2020, for processing of

for processing of the

the scene.

scene.

Id. at

Id. at 357.

357. Sergeant

Sergeant Schade

Schade described

described the Residence

Residence to be unkempt

unkempt and stated that

that it

it looked as if

if

it had not been cleaned in aawhile. Id. Further, Sergeant

Sergeant Schade noted that the Residence appeared

to

to have been ransacked

have been ransacked with dresser drawers

with dresser drawers pulled out and

pulled out and items

items thrown on the

thrown on the floor

floor in

in the

the

bedrooms. Id. at 357.58.

bedrooms. Id, 357-58. Sergeant

Sergeant Schade testified that while processing the

while processing the scene, he

he did not find

find

blood evidence

blood evidence inside

inside of

of the

the Residence. Id. at

at 358-59. While outside

358-59. While outside of

of the

the Residence, Sergeant

Residence, Sergeant

Schade observed that aagarden

garden hose on the steps

steps that was leaking. Id,

Id. at 361. During Sergeant

testimony, the Commonwealth presented

Schade's testimony, presented photographs that he

he took during his processing

14

scene while Sergeant

of the scene Sergeant Schade narrated the descriptions of the

the descriptions the photographs.

photographs. Id. at 359-73;

Comi-

n.'s Exs. 150-234,

Comm.'s 150-234. When asked what he was specifically

specifically looking

looking f

for

ro during his walkthrough,

Sergeant Schade responded:

Sergeant responded: "I

I was

was looking

looking for anything broken, furniture that was

for anything was out of place,

place,

or IIwas looking for

was looking for blood. So IIdidn't

didn't know if he was shot or whatever,

whatever, So IIwas looking

looking for

casings, I

casings, I was looking

looking for anything

anything that would have given

given me aasign

sign of where the homicide actually

happened." Id.

happened." Sergeant Schade continued that he had not found anything of interest.

Id, at 373-74. Sergeant

374.

Id. at 374,

Sergeant Schade testified that he collected aapair

Sergeant pair of Adidas Boost shoes and the black and

orange facemask

orange faceinask from the Residence. 375-77. After learning

Residence. Id. at 375.-77, learning of the autopsy results, Sergeant

Schade returned to the

the Residence to search for possible knives, but no weapons were found at the

Residence. Id. at 379-81,

379-81. Furthermore, no indicia of blood was found at the Residence. Id. at 381.

Sergeant Schade also met with Officer Yeasted

Sergeant YYeasted and collected

collected the evidence retrieved from the

379-80.

search of the Honda. Id. at 379.80.

July 23, 2020, Sergeant

On July Sergeant Schade, along

along with Detective Rentschler, conducted aasearch

of the Honda at the forensics lab garage.

garage. Id.

Id, at 383-84. During.the

During the search of the Honda, they

collected aablue Versace shirt, which Sergeant

Sergeant Schade believed might

might had blood evidence on it, aa

bag containing

Metro T-Mobile bag containing various items belonging

belonging to the registered owner of the Honda, and

the registered

aapaper

paper receipt

receipt for Appellant

Appellant for an LG Aristo

Aristo_4 phone activated on July 15, 2020. Id. at 385-

4 cell phone

86.

Kyle Rentschler ("Detective

Detective Kyle (Detective Rentschler"), aatwo-year veteran of the Berks

Berks

County Detective's Officer who has been in law enforcement for twenty-two years, testified that

County

July 17,

on July 2020, he was called to the Residence by

17, 2020, Sergeant Schade to process the crime scene.

by Sergeant

at 399.

Id. at Detective Rentschler

399. Detective Rentschler took

took photographs

photographs at

at the

the Residence along with

Residence along Sergeant Schade.

with Sergeant Schade.

Id. at 401-02. Detective Rentschler also assisted in sealing

sealing the Victim's body in

in the body bag and

noted that the Victim's left wrist was either dislocated or broken. Id. at 404.

The next

The next day,

day, on

on July

July 18, 2020, Detective

18, 2020, Detective Rentschler

Rentschler returned

returned to the Residence

to the Residence with

with

Sergeant Schade and took further photographs

Sergeant photographs of the Residence. Id. at 404-07. Included therein

were photographs panel and door chime that were ripped

photographs of the alarm panel ripped off of the wall and laying

on the floor. Id. at 406-07; Comm.'s Exs. 261-265. While at the Residence, Detective Rentschler

noted that

noted that the

the garage

garage doors

doors were

were unlatched

unlatched so

so that

that the

the doors

doors could

could be

be opened

opened freely,

freely. Id. at

at 408-09.

408-09.

15

Detective Rentschler further observed tthat

hat the Residence appeared very messy and dirty and that

it looked like items had been rummaged

it rummaged through, that closets and drawers

drawers were opened, and clothes

409. Detective Rentschler also pulled aapartial palmprint and swabbed

were strewn about. Id at 409,

DNA from aasliding

sliding glass

glass door in the

the basement. Id. at 410

410.

July 19,

On July 19, 2020,

2020, Detective Rentschler returned to the Residence with Sergeant Schade to

search for blood or other related evidence. Id.

Id. at 411. However, they found no such evidence. Id.

Id.

Detective Rentschler also

Detective Rentschler also participated

participated in

in the

the search

search of

of the

the Honda

Honda during

during which

which he collected the

he collected

blue Versace shirt with suspected blood on it. Id. at 412-13.

On July

On July 21, 2020, Detective Rentschler, along with Sergeant Schade, reviewed and took

farther photographs

further photographs of the collected evidence .form the Residence and the Honda at the forensic

science unit. Id. at 414. A Baylor

414. A Baylor college

college of medicine bag was recovered from the kitchen at

at the

Residence that contained aapair

pair of Adidas sneakers, aapiece of scuba gear, binoculars, aasock, aacell

phone,

phone, aaCrown Royal

Royal bag,

bag, a

a possible

possible hard drive, and aabottle of suspected marijuana. Id. at 415-

16: Detective Rentschler took aacloser photograph

16. photograph of

of suspected blood

blood on the heel

hee

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