Commonwealth v. Kennedy ( 2016 )

J-S70011-16
2016 PA Super 273COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
UNIQUE S. KENNEDY
Appellant No. 680 EDA 2015
Appeal from the Judgment of Sentence February 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012026-2013
BEFORE: OLSON, OTT and MUSMANNO, JJ.
OPINION BY OLSON, J.: FILED DECEMBER 06, 2016
Appellant, Unique S. Kennedy, appeals from the judgment of sentence
entered on February 20, 2015. In this case, we consider whether the trial
court abused its discretion in admitting lay opinion testimony from a crime
scene investigator regarding bullet trajectory. After careful consideration,
we hold that the trial court did not abuse its discretion by admitting the lay
opinion testimony. We also clarify the interaction between Pennsylvania
Rules of Evidence 404(a)(2)(A) (defense introduction of evidence of a
pertinent character trait) and 608(a) (admission of evidence of witness’
character for truthfulness to counter attack). Based upon our analysis, we
conclude that the trial court properly excluded evidence relating to
Appellant’s truthfulness. As we also find Appellant is not entitled to relief on
his remaining claims, we affirm.
We have summarized the factual background of this case as follows:
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These charges arose out of a dispute over a woman that both
[Appellant’s co-defendant, Stephon Harris (“Harris”),] and the
decedent had an interest in. On July 9, 2013, at approximately
9:45 p.m., John Anderson (“Anderson”) was shot and killed in
the entryway of his apartment. The entryway at this location
had a street entrance door and a second door that led up to the
single, second floor apartment that Anderson shared with
Naheem Hines (“Hines”), and Mohamad Khardani (“Khardani”).
Khardani owned the building that housed the apartment, and a
pizza shop located below the apartment where Khardani worked.
Earlier that day, Anderson had exchanged a series of text
messages and phone calls with [Harris’ girlfriend] when [Harris]
intercepted his girlfriend’s phone call and spoke directly to
Anderson. An argument ensued over the phone and Anderson
said, “I’m at 72nd, do what you gotta do.” [Harris] was visiting
his friend Davon Kennedy (“Davon”) and Davon’s cousin[,
Appellant,] when he recounted the argument that he had with
Anderson over the phone. [Harris] said that “Anderson needed
to go.” The three men walked to a store then [Harris] and
[Appellant] told Davon they would catch up with him later, and
walked away together.
That evening, Hines was returning to the apartment when he
saw two males who appeared to be attempting to open the
apartment’s street level entry door. Though the males were
unfamiliar to Hines, he was later able to identify [Appellant] as
one of the males. As Hines approached, the two males drifted
away from the apartment door and towards the pizza shop.
Hines asked Khardani, who was working in the pizza shop at the
time, if he knew the two males. Khardani recognized [Harris] as
a repeat customer of the pizza shop and greeted him. . . .
Khardani did not recognize [Appellant].
[Appellant] asked Hines whether Anderson was at home and said
“Ace” was looking for him. Hines replied that he did not know
but would check when he went upstairs. Upon arriving upstairs,
Hines learned that Anderson was indeed at home along with
Tanesha Brooks-Mapp (“Brooks-Mapp”). Hines delivered the
message that there were two males downstairs who were
looking for Anderson. Hines, Brooks-Mapp[,] and Anderson went
downstairs to the main entry of the apartment. Anderson was
unarmed. As soon as Anderson began to open the interior door,
five to six gunshots rang out and Anderson fell to the floor in the
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doorway of the apartment. Hines was able to see that
[Appellant] was the shooter and saw the two males with whom
he had spoken earlier running across the street, away from the
scene of the shooting. Khardani was inside of the pizza shop
when he heard shots. Khardani looked up to see [Harris] and
the male he was with running from the scene and Anderson lying
on the ground.
Commonwealth v. Harris, 2016 WL 6649244, *1 (Pa. Super. Nov. 10,
2016) (unpublished memorandum) (internal alterations, ellipses, and
citation omitted).
The procedural history of this case is as follows. On September 30,
2013, the Commonwealth charged Appellant via criminal information with
first-degree murder,1 conspiracy to commit first degree murder,2 carrying a
firearm without a license,3 carrying a firearm on the streets of Philadelphia,4
possessing an instrument of crime,5 attempted murder,6 aggravated
assault,7 and recklessly endangering another person.8 On February 9, 2015,
Appellant orally moved in limine to exclude the lay opinion testimony of
1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. §§ 903, 2502.
3
18 Pa.C.S.A. § 6106(a)(1).
4
18 Pa.C.S.A. § 6708.
5
18 Pa.C.S.A. § 907(a).
6
18 Pa.C.S.A. §§ 901, 2502.
7
18 Pa.C.S.A. § 2702(a).
8
18 Pa.C.S.A. § 2705.
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Officer Jacqueline Davis, a crime scene investigator, whose proposed
testimony included her observations regarding the angle of trajectory of
bullets fired through the door of Anderson’s apartment. The trial court
denied the motion that same day.
At trial, Officer Davis opined that, based upon the bullet holes in the
door and the location of evidence inside the foyer, the apartment door was
partially open when Appellant opened fire. Appellant testified on his own
behalf, stating that he shot Anderson in self-defense. Appellant sought to
call witnesses to testify as to his character trait of truthfulness. The
Commonwealth objected to this character evidence and the trial court
sustained the Commonwealth’s objection. On February 20, 2015, a jury
found Appellant guilty of first-degree murder, conspiracy to commit first
degree murder, carrying a firearm without a license, possessing an
instrument of crime, and recklessly endangering another person. The trial
court immediately sentenced him to an aggregate term of life imprisonment
without the possibility of parole. This timely appeal followed.9
Appellant presents five issues for our review:
1. Whether the Commonwealth did not prove, by sufficient
evidence that Appellant acted with the required malice for any of
9
On July 30, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 10, 2015, Appellant filed his concise
statement. On October 30, 2015, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
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the charges and, hence, the Commonwealth has failed to prove
the elements of the crimes[ and hence a]n arrest of judgment
must be awarded[?]
2. Whether Appellant must be awarded a new trial as the [trial
c]ourt denied Appellant’s motion in limine to preclude Officer
Jacqueline Davis from providing an opinion that the front door at
the crime scene was open at the time of the shooting[?]
3. Whether Appellant must be awarded a new trial as the [trial
c]ourt precluded the introduction of defense evidence following
[Hines’ testimony?]
4. Whether Appellant must be awarded a new trial as the [trial
c]ourt precluded the introduction of character evidence[?]
5. [Whether, i]n the alternative, Appellant must be awarded a new
trial as the greater weight of the evidence does not support the
verdict. . . ?
Appellant’s Brief at 3.10
Appellant’s first issue challenges the sufficiency of the evidence.11
“Whether sufficient evidence exists to support the verdict is a question of
law; our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation
omitted). “In assessing Appellant’s sufficiency challenge, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
10
We have re-numbered the issues for ease of disposition.
11
Contrary to the trial court contention, there is no need to preserve a
challenge to the sufficiency of the evidence prior to filing a concise
statement. See Pa.R.Crim.P. 606 cmt. (“The defendant may also raise [a
challenge the sufficiency of the evidence] for the first time on appeal under
[Pennsylvania Rule of Criminal Procedure 606](A)(7).”).
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therefrom, the trier of fact could have found that the Commonwealth proved
[each] element of the crime beyond a reasonable doubt.” Commonwealth
v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). “The
evidence need not preclude every possibility of innocence and the fact-finder
is free to believe all, part, or none of the evidence presented.”
Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation
omitted).
Appellant argues that there was insufficient evidence to convict him of
first-degree murder. In order to convict a defendant of first-degree murder,
“the Commonwealth must [] demonstrate[] that[ ] a human being was
unlawfully killed, the defendant perpetrated the killing, and the defendant
acted with malice and a specific intent to kill.” Commonwealth v. Ovalles,
144 A.3d 957, 969 (Pa. Super. 2016) (internal quotation marks and citation
omitted).
Appellant only challenges the sufficiency of the evidence relating to the
elements of malice and specific intent.12 As our Supreme Court has
12
In the argument portion of his brief, Appellant also argues that the
Commonwealth failed to disprove his self-defense theory beyond a
reasonable doubt. Cf. Commonwealth v. Rivera, 108 A.3d 779, 791 n.7
(Pa. 2014) (citation omitted) (“[T]he burden is upon the Commonwealth to
prove beyond a reasonable doubt that the defendant was not acting in self-
defense.”). This argument is waived because it was not included in the
statement of questions involved section of his brief. See Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).
(Footnote Continued Next Page)
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repeatedly held, a jury may properly infer malice and specific intent from the
fact that a victim was shot multiple times. See Commonwealth v.
Chamberlain, 30 A.3d 381, 394 (Pa. 2011) (citations omitted) (malice);
Commonwealth v. Hughes, 865 A.2d 761, 793 (Pa. 2004) (specific
intent). As noted above, Appellant shot Anderson multiple times. Thus, the
evidence was sufficient to convict Appellant of first-degree murder.
Appellant’s second, third, and fourth issues challenge the trial court’s
evidentiary rulings. We review the trial court’s evidentiary rulings for an
abuse of discretion. Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa.
Super. 2015) (citation omitted).
In his second issue, Appellant argues that the trial court erred by
allowing Officer Davis to offer a lay opinion that the door was slightly open
when Appellant shot Anderson. Officer Davis, a member of the crime scene
unit of the Philadelphia Police Department, testified that she placed rods in
the bullet holes of the door. She testified that the only logical conclusion
based upon the bullet trajectories, as determined by the rods placed in the
_______________________
(Footnote Continued)
Moreover, even if we were to reach the merits of this argument, Appellant
would not be entitled to relief. Brooks-Mapp and Hines testified that
Appellant did not shoot Anderson in self-defense. See N.T. 2/11/15, 66-68,
119; 2/12/15, 11. Furthermore, the circumstances surrounding Anderson’s
murder weigh heavily against self-defense. Harris threatened to kill
Anderson earlier in the day. Appellant and Harris then traveled to
Anderson’s apartment and shot him multiple times while he was standing in
the foyer of his apartment. This direct and circumstantial evidence was
sufficient to disprove Appellant’s self-defense theory beyond a reasonable
doubt.
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bullet holes, was that the door was slightly ajar when Appellant shot
Anderson. As the Commonwealth did not designate Officer Davis as an
expert witness, Appellant moved in limine prior to trial to bar this lay opinion
testimony. The trial court denied the motion and permitted Officer Davis’
testimony during trial.
Lay opinion testimony is governed by Pennsylvania Rule of Evidence
701, which provides that:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness[’] perception;
(b) helpful to clearly understanding the witness[’] testimony or
to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.Evid. 701.
Appellant argues that this case is governed by Commonwealth v.
Serge, 896 A.2d 1170 (Pa. 2006). According to Appellant, Serge stands for
the proposition that “[c]rime scene recreation has been thoroughly discussed
as requiring expert testimony.” Appellant’s Brief at 10. This, however, is a
misreading of our Supreme Court’s decision. Serge did not discuss whether
lay opinion testimony regarding crime scene recreation was admissible under
Rule 701 or whether it required expert testimony under Rule 702. Instead,
Serge addressed the question of whether an expert was permitted to use a
computer-generated animation when testifying under Rule 702. See Serge,
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896 A.2d at 1173. Moreover, Serge examined complex crime scene
reconstruction using a computer-generated animation. This is different than
the situation here which involved simple testimony regarding bullet
trajectory gathered as a result of sticking rods in bullet holes.
The other case cited by Appellant is likewise factually dissimilar from
the case at bar. In Commonwealth v Duffey, 548 A.2d 1178 (Pa. 1988),
a non-expert former police officer
testified that he was able to detect ‘high speed splatter’ of blood
when a victim is stabbed in a frenzy; and that the absence of
blood stains above a certain height on the bathroom wall where
the victim was stabbed indicated the absence of ‘high speed
splatter.’ From this he concluded that the victim was stabbed in
a slow and deliberate manner.
Id. at 1186. The defendant objected to this testimony and the trial court
overruled the objection. On appeal, our Supreme Court held that this was
an error as the officer’s testimony exceeded the permissible scope of lay
opinion testimony under Rule 701 and fell within the domain of expert
testimony under Rule 702. See id.
Opinions regarding blood spatter and the specific height that blood
would reach during a violent attack are not easily reached based the witness’
perception. See Pa.R.Evid. 701(a). Instead, technical and scientific
knowledge about physiological parameters and the mechanics of blood
spatter are required for such testimony. See Pa.R.Evid. 701(c).
Furthermore, such blood spatter testimony required the officer to know what
type of stab wounds are capable of causing blood to exit the body at those
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velocities. See id. Contrast that to the type of bullet trajectory testimony
offered by Officer Davis in this case. Any individual could place a rod in a
bullet hole and discern which direction the bullet traveled. Thus, the blood
spatter testimony in Duffey is factually dissimilar to the type of bullet
trajectory testimony offered by Officer Davis in the case sub judice.
As to the question presented in this appeal, we are unaware of any
Pennsylvania cases that address whether bullet trajectory testimony is
admissible under Rule 701 or requires expert testimony under Rule 702. We
thus examine how courts in other jurisdictions have treated such bullet
trajectory evidence under similar (if not identical) rules of evidence. Cf.
In re N.M., 141 A.3d 539, 544 (Pa. Super. 2016) (decisions from other
jurisdictions are persuasive).
We find persuasive the United States Court of Appeals for the Fourth
Circuit’s decision in United States v. Beckford, 211 F.3d 1266 (table),
2000 WL 376155 (4th Cir. 2000) (per curiam). Similar to the case at bar, in
Beckford “one of the investigating detectives inserted a pencil into bullet
holes found in the [] apartment to ascertain the angle of the bullet path.
From this and crime scene photographs, the government created a
computer-generated diagram which utilized red lines to trace the bullet path
suggested by the pencil angle.” Id. at *6. The defendant objected to this
evidence arguing that the detective’s use of a pencil in the bullet holes and
photographs of the crime scene required specialized knowledge within the
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scope of Federal Rule of Evidence 702. The district court overruled the
defendant’s objection and the Fourth Circuit affirmed, holding that “the
district court reasonably concluded that the detective’s testimony concerning
his findings, as aided by the diagram, was rationally based on his
perceptions and helpful to a clear understanding of his investigation and
observations.” Id.
The case at bar is similar in that a police officer with the crime scene
unit used rods through the bullet holes in the door and evidence inside the
foyer to opine that the door was partially ajar when Appellant shot
Anderson. In other words, in both Beckford and the case at bar, the crime
scene officers used rod-like objects inserted into the bullet holes to estimate
bullet trajectory. Although in Beckford the prosecution supplemented this
testimony with a computer-generated diagram, this diagram was based
solely upon the pencil placed in the bullet holes and photographs of the
crime scene. In other words, the diagrams were just aids for the jury to
visualize the officer’s testimony. The Fourth Circuit concluded that such
reliance, by a crime scene officer, was “rationally based on the witness’[]
perception.” Fed.R.Evid. 701(a); see Pa.R.Evid. 701(a). We ascertain no
reason why the use of virtually identical perceptions in the present case
should lead to a different result.
The Colorado Court of Appeals, Division II confronted a similar issue in
Colorado v. Caldwell, 43 P.3d 663 (Colo. App. 2001). In that case,
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a former police officer, employed as a crime scene technician at
the time of the shooting, testified that after the shooting, he
photographed and collected evidence from the deputy’s patrol
car. He also testified about the appearance and location of the
two bullet holes on the outside of the car, the hole inside the
car, and the dimpling of the metal inside the car. From his own
observations and the use of a dowel and string, the technician
testified that he tracked the paths of the two bullets[.]
Id. at 667. The defendant objected to this testimony arguing that the
former police officer’s testimony required an expert opinion and was not
admissible as lay opinion testimony. The trial court overruled the objection
and the defendant appealed.
The appellate court held that the trial court did not abuse its discretion
by permitting the former police officer to offer lay opinion testimony under
Colorado Rule of Evidence 701. It reasoned that the former police officer’s
testimony
included only his observations about the entry locations of the
bullets and the path they traveled inside the vehicle. Such
observations could just as easily have been made by the jury
from the photographs. No special expertise is required to look at
the hole made by the bullet and realize that it followed a
straight-line path.
Id. (citation omitted).
Although the former police officer’s testimony in Caldwell dealt with
bullet trajectory inside of a vehicle instead of through a door, we again see
no reason that the same rationale should not apply in the case at bar. As in
Caldwell, Officer Davis used rods to determine the path of the bullets
through the door and opined, based upon the bullets’ trajectory and physical
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evidence she found inside of the foyer, whether the door was open or closed
at the time Appellant shot Anderson.
The Special Court of Appeals of Maryland has reached the same
conclusion. In Prince v. Maryland, 85 A.3d 334 (Md. Ct. Spec. App. 2014),
a police officer “examined [the victim’s] car . . . and, as part of his
examination, placed ‘trajectory rods’ through the bullet holes in the car and
photographed the rods in place.” Id. at 339. At trial, the officer then
testified regarding the trajectory of the bullets as shown by the trajectory
rods in the pictures. On appeal, the defendant argued that this testimony
was inadmissible under Maryland’s version of Rule 701. The defendant
argued the evidence was solely within the purview of expert witnesses. The
appellate court rejected this argument. It reasoned that “[a] police officer
who does nothing more than observe the path of the bullet and place
trajectory rods (in the same manner as any layman could) need not qualify
as an expert to describe that process.” Id. at 348 (emphasis removed).
The situation in Prince is once again similar to the case sub judice.
Although Prince dealt with trajectory rods placed in a vehicle instead of a
door, the essence of Officer Davis’ testimony and the officer’s testimony in
Prince is the same. In both cases, the officers used rods placed in bullet
holes to determine the trajectory of the bullets – the same action a layman
would take if examining the scene of a shooting. The officers in both Prince
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and this case then relayed their findings, and opinions based thereon, to the
jury.
The idea of lay opinion testimony regarding bullet trajectory is not
new. In United States v. Pierson, 503 F.2d 173 (D.C. Cir. 1974), the
United States Court of Appeals for the District of Columbia Circuit was
presented with the question of “whether the district court abused its
discretion in permitting [a police officer] to testify regarding the direction
from which the bullet hole in the wall was fired.” Id. at 175. The defendant
objected to the admission of this lay opinion testimony and the district court
overruled the objection. The District of Columbia Circuit “agree[d] with the
district [court] that a layman, under certain circumstances can look at a
bullet hole in a wall and see whether it appears to come from one direction
or another. No special expertise is required.” Id. at 176 (internal quotation
marks omitted). The court further reasoned that:
In giving his opinion, [the officer] was merely relating
impressions resulting from his observation of the hole in the
wall. By indicating the direction from which he thought the
bullet was fired, he probably gave the jurors a clearer conception
of the nature of the bullet hole than had he attempted to
describe the features of the hole. Having observed the bullet
hole itself, he would be better qualified than the jury to draw a
conclusion regarding the direction from which the bullet was
fired.
Id. at 176-177.
The testimony by the officer in Pierson was more questionable than
Officer Davis’ testimony in this case. The officer in Pierson did not insert
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rods into the bullet holes to determine the trajectory of the bullets. Instead,
he merely used the contour of the bullet holes to determine the bullets’
trajectory. This requires more specialized knowledge than placing a rod in a
hole and then looking at the location the rod points. Thus, we ascertain no
reason why, if the officer’s testimony in Pierson was admissible under the
common law predecessor to Federal Rule of Evidence 701, Officer Davis’
testimony should be inadmissible in this case.13
We acknowledge prior case law from other jurisdictions that appears to
require expert testimony to establish bullet trajectory. Careful examination
of these cases, however, shows that they are factually and/or legally distinct
from the situations presented in Beckford, Caldwell, Prince, Pierson, and
the case sub judice. We therefore decline to hold that they are persuasive
with respect to the issue raised herein.
For example, in McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014), the
United States Court of Appeals for the First Circuit held that photographs of
bullet holes in a windshield were insufficient, without expert testimony, to
prove that police shot through the windshield at an angle. See id. at 26-27.
13
Federal Rule of Evidence 701 was proposed in 1972 and that proposal was
pending before Congress when Pierson was decided. See Federal Rules of
Evidence, H.R. 5463, 93rd Cong. (as passed by House, Feb. 6, 1974). Thus,
although Pierson was decided based upon federal common law, the pending
rules proposal played a role in the District of Columbia Circuit’s
interpretation of that common law. This is evidenced by its citation to
McCormick on Evidence, § 11 (1972). In that section, McCormick de facto
cited to proposed Rule 701. See id. at p.25, n.32.
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Noticeably absent from McGrath is any discussion of whether lay opinion
testimony from a crime scene officer is admissible under Federal Rule of
Evidence 701. Instead, in McGrath the plaintiff relied solely upon
photographs of the bullet riddled windshield. Furthermore, the photographs
did not include rods through the bullet holes to show their trajectory. The
only testimony in McGrath was from a defense expert witness who stated
that the bullet trajectories could not be determined based upon the
photographic evidence. See id. at 27. Thus, although McGrath held that
expert testimony is required for proof of bullet trajectory, it did so in a fact-
specific context not present in the instant case.
Also, in Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007), the
United States Court of Appeals for the Fifth Circuit held that a police officer’s
assurances that his law enforcement experience rendered him capable of
offering an expert opinion regarding bullet trajectory were insufficient under
Federal Rule of Evidence 702. Id. at 318. Again, as in McGrath,
Hathaway did not discuss whether a crime scene unit member can offer lay
opinion testimony under Federal Rule of Evidence 701. Instead, because of
the procedural posture of the case, the Fifth Circuit in Hathaway focused on
whether the police officer’s methodology was sufficient to satisfy the expert
witness requirements of Rule 702. Moreover, in Hathaway the bullet holes
in question were not in a door or windshield, instead they were in a human
body. See id. The main focus of the police officer’s testimony was on the
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location of the shell casings and the lack of bullet holes in certain parts of
the subject vehicle. See id. Finally, like in McGrath, there were no rods or
sticks placed through the bullet holes in Hathaway. Thus, Hathaway is
both legally and factually dissimilar to the case sub judice.
The four cases most factually and legally similar to the case at bar,
Beckford, Caldwell, Prince, and Pierson, held that the lay opinion
testimony as to bullet trajectory was admissible under analogues to
Pennsylvania Rule of Evidence 701. We find the rationale in these four cases
all compelling for the reasons set forth above. Moreover, as discussed
above, McGrath and Hathaway are legally and factually distinguishable
from the situation presented in this case.
Appellant points to various testimony and evidence that an expert
could have provided if called at trial and why that testimony and evidence is
superior to that provided by Officer Davis. For example, he avers that an
expert witness from the Philadelphia Police Department’s Firearms
Identification Unit could have used the EVI-PAQ Laser Trajectory Kit in order
to offer more precise trajectory testimony. These arguments, however, do
not go to the admissibility of Officer Davis’ testimony. Instead, they go to
the weight of the evidence. Cf. Commonwealth v. Blasioli, 713 A.2d
1117, 1123 n.15 (Pa. 1998) (argument that Pennsylvania State Police could
have used a larger database when conducting DNA testing goes to the
weight of the evidence and not to its admissibility). Accordingly, we hold
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that the trial court did not abuse its discretion in admitting Officer Davis’ lay
opinion testimony over Appellant’s objection.
In his third issue, Appellant argues that the trial court erred by
sustaining the Commonwealth’s objection to the admission of photographs of
buildings surrounding the crime scene. This argument is waived. The
photographs Appellant argues were improperly excluded by the trial court
are not included in the certified record. The only description of the
photographs is in Appellant’s brief before this Court. It is well-settled,
however, that “this Court may consider only the facts that have been duly
certified in the record when deciding an appeal.” PHH Mortgage Corp. v.
Powell, 100 A.3d 611, 614 (Pa. Super. 2014), citing Pa.R.A.P. 1921 Note.
Moreover, “it is Appellant’s responsibility to ensure that this Court has the
complete record necessary to properly review a claim.” Commonwealth v.
Tucker, 143 A.3d 955, 963 (Pa. Super. 2016) (internal quotation marks and
citation omitted).
In Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super. 1997), aff’d,
738 A.2d 993 (Pa. 1999), the defendant argued that the trial court erred by
failing to sustain his objection to the admission of photographs. This Court
found the issue waived because of the defendant’s failure to ensure the
photographs were included in the certified record. See id. at 836.
Similarly, in Commonwealth v. Lassen, 659 A.2d 999 (Pa. Super. 1995),
abrogated on other grounds, Commonwealth v. Stultz, 114 A.3d 865, 882
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(Pa. Super. 2015), the defendant argued that the trial court erred by
admitting photographs of the victim’s injuries. This Court found the issue
waived because the defendant failed to include the photographs in the
certified record. See id. at 1008. “In this case, Appellant has failed to
provide the necessary [photographs] for review. Because our review of the
issue is dependent upon materials that are not provided in the certified
record, we cannot consider this claim. Thus, this claim is waived.”
Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa. Super. 2009),
appeal denied, 985 A.2d 219 (Pa. 2009).14
In his fourth issue, Appellant argues that the trial court erred by
precluding testimony regarding his character trait of honesty. Appellant
argues that his trait of being honest was admissible pursuant to
Pennsylvania Rule of Evidence 404(a)(2)(A), which provides that “a
defendant may offer evidence of the defendant’s pertinent trait[.]”
Pa.R.Evid. 404(A)(2)(A). Appellant argues that evidence of honesty was
14
To the extent that Appellant argues that the actual photographs are
unnecessary for our review of his claim, we reject this argument. It is well-
settled that this Court may affirm a trial court’s ruling on any basis. See In
re A.G.C., 142 A.3d 102, 110 n.6 (Pa. Super. 2016) (citation omitted). It is
impossible to determine if the photographs were inadmissible under another
rule without the photographs in question. Appellant’s omission of the
photographs from the certified record thereby hampers appellate review.
Thus, even if the trial court sustained the Commonwealth’s objection under
Pennsylvania Rule of Criminal Procedure 573, and it is unclear from the
record if that was the basis for the trial court’s ruling, N.T., 2/11/15, at 154,
Appellant was required to ensure the photographs were included in the
certified record.
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pertinent because the case against him essentially tested whether his self-
defense testimony was truthful or whether Hines’ and Brooks-Mapp’s
testimony was truthful. The Commonwealth, on the other hand, argues that
Appellant’s character evidence was barred by Pennsylvania Rule of Evidence
608, which provides that “evidence of [a witness’] truthful character is
admissible only after the witness[’] character for truthfulness has been
attacked.” Pa.R.Evid. 608(a).
In support of his argument, Appellant cites Commonwealth v.
Harris, 785 A.2d 998 (Pa. Super. 2001). In Harris, this Court stated that
“in a case where there are only two direct witnesses involved, credibility of
the witnesses is of paramount importance, and character evidence is critical
to the jury’s determination of credibility.” Id. at 1000, citing
Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992). Appellant
argues that Harris and Weiss apply in this case because there were only
three witnesses to Anderson’s murder – Hines, Brooks-Mapp, and himself.
He contends that this case depended upon whether the jury believed Hines’
and Brooks-Mapp’s account of the shooting, in which Appellant did not act in
self-defense, or believed Appellant’s account of the shooting, in which he
acted in self-defense.
We reject this argument because Harris and Weis did not address the
right of an accused, who testifies on his or her own behalf, to call witnesses
to testify as to his or her truthfulness. Instead, this Court has stated that,
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when truthfulness is not relevant to the underlying criminal offense, a
defendant may only call witnesses to testify as to his or her truthfulness
when (a) he or she chooses to testify on his or her own behalf, and (b) the
Commonwealth attacks the defendant’s truthfulness through either cross-
examination or by other witness’ testimony. See Commonwealth v.
Minich, 4 A.3d 1063, 1070 (Pa. Super. 2010) (citation omitted). Thus, this
Court has held that “where the prosecution has merely introduced evidence
denying or contradicting the facts to which the defendant testified, but has
not assailed the defendant’s community reputation for truthfulness
generally, evidence of the defendant’s alleged reputation for truthfulness is
not admissible.” Commonwealth v. Constant, 925 A.2d 810, 823 (Pa.
Super. 2007), overruled on other grounds, Commonwealth v. Minnis, 83
A.3d 1047 (Pa. Super. 2014) (en banc) (citation omitted) (citation omitted).
In other words, Rule 608(a) permits a testifying defendant to call
witnesses to testify as to his or her truthful character whenever the
Commonwealth attacks his or her general reputation for truthfulness during
trial. Conversely, Rule 404(A)(2)(a) permits a defendant (testifying or non-
testifying) to call witnesses to testify as to his or her truthful character when
the defendant’s reputation for truthfulness is pertinent to the underlying
criminal offense, e.g, perjury. In this case, Appellant does not argue that
the Commonwealth attacked his general reputation for truthfulness and our
review of the record reveals no such attack on his general reputation for
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honesty. Thus, Appellant was not entitled to call witnesses to testify to his
truthfulness under Rule 608(a).
As Appellant was not entitled to call witnesses to testify as to his
truthfulness under Rule 608(a), we turn to whether Appellant was entitled to
call witnesses to testify as to his truthfulness under Rule 404(a)(2)(A). In
that respect, we find instructive our Supreme Court’s decision in
Commonwealth v. Puksar, 951 A.2d 267 (Pa. 2008). In that case, the
defendant argued that his trial counsel was ineffective for failing to call a
character witness to testify regarding his trait of honesty. Our Supreme
Court stated that “evidence of one’s reputation for honesty would have been
irrelevant in a murder prosecution, since murder does not implicate the
character trait of honesty.” Id. at 281 n.7. Similarly, this Court has stated
that, “[i]t is irrelevant to show the defendant’s reputation . . . for honesty
and integrity in a murder prosecution[.]” Commonwealth v. Fawcett, 443
A.2d 1172, 1175 n.3 (Pa. Super. 1982) (internal quotation marks and
citation omitted). Appellant was therefore not entitled to call witnesses to
testify as to his character under Rule 404(a)(2)(A). Accordingly, the trial
court did not err by sustaining the Commonwealth’s objection to this
character evidence.
In his final issue, Appellant challenges the weight of the evidence.
This argument is waived. “A weight of the evidence claim must be
preserved either in a post-sentence motion, by a written motion before
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sentencing, or orally prior to sentencing.” Commonwealth v. Thompson,
93 A.3d 478, 490 (Pa. Super. 2014) (internal alteration and citations
omitted). In this case, Appellant did not file a post-sentence motion or a
written motion prior to sentencing. Moreover, Appellant did not preserve the
issue orally prior to sentencing. See N.T., 2/20/15, at 11-13. Accordingly,
Appellant has waived his challenge to the weight of the evidence.
In sum, we hold that the trial court did not abuse its discretion in
admitting Officer Davis’ lay opinion testimony as it related to bullet
trajectory. The trial court properly sustained the Commonwealth’s objection
to witnesses testifying about Appellant’s truthfulness as Appellant was not
entitled to call such witnesses under Rule 404(a)(2)(A) or Rule 608(a). As
we also conclude Appellant is not entitled to relief on his remaining claims of
error, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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