Com. v. McClain, K. ( 2016 )

J-S76034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN MCCLAIN
Appellant No. 2048 EDA 2015
Appeal from the Judgment of Sentence June 1, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003983-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 09, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following Appellant’s conviction by a
jury on the charges of attempted murder, aggravated assault, firearms not
to be carried without a license, carrying firearms in public in Philadelphia,
and possession of an instrument of crime.1 Appellant contends (1) the
evidence was insufficient to sustain his convictions; (2) the jury’s verdict is
against the weight of the evidence; and (3) the trial court erred in admitting
evidence of Appellant’s video searches from the website YouTube, as well as
Detective Timothy Hartman’s narration of the searches. We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
J-S76034-16
The relevant facts and procedural history are as follows: Appellant
was arrested in connection with the attempted murder of Terell Autry, and
represented by counsel, he proceeded to a jury trial, at which numerous
witnesses testified. Specifically, Sarith To, the owner of Sunny’s Deli,
testified that, on January 12, 2014, at 12:00 a.m., he was working at the
deli when he heard eight to ten gunshots coming from the side parking lot.
N.T., 1/13/15, at 33-34. Mr. To testified that, just before the shooting,
Appellant had been in the deli. Id. at 43-44. He noted that he gave the
surveillance footage from the deli’s security cameras to the police. Id. at 48.
He indicated the footage did not capture the shooting but it did capture a
man running from the area. Id. at 54. Mr. To testified that Appellant had
been a frequent customer at the deli, but he had not seen Appellant in the
deli since the night of the shooting. Id. at 20-22, 33-34, 41-45, 53.
Terell Autry testified that he lived near the deli, and on the night in
question he went to the deli. Id. at 58-60. Therein, he saw a man named
“Twon” and noticed that another man was standing next to him. Id. at 61.
As Mr. Autry was walking through the deli’s side parking lot, he heard
gunshots coming from behind him, and he began to run without turning
around. Id. at 61-62. Mr. Autry suffered bullet wounds to his left arm and
right leg, as well as “graze wounds” to his ribs and left eye. Id. at 63-66.
He testified he heard approximately ten shots being fired at him but he did
not see who shot him. Id. at 62, 80.
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After the shooting, Mr. Autry was taken to the hospital via ambulance
and, at 1:20 a.m., he gave a statement to the police. Id. He also gave a
statement to Detective Hartman after he was released from a rehabilitation
center. Id. at 83-84. Both times, Mr. Autry indicated he did not know who
shot him. Id. at 85-86. At trial, Mr. Autry denied ever seeing Appellant
before or knowing why he would want to shoot him. Id. at 84-85. He
testified that he neither had any problems nor confrontations with Appellant.
Id. at 90. Mr. Autry indicated that, about three months prior to the instant
shooting incident, someone “shot up” his house, where he lived with his
brother, by the deli. Id. at 99. The police never discovered who was
involved in that shooting. Id.
Police Officer James Wheeler testified that, on January 12, 2014, at
12:08 a.m., he was on patrol with his partner when they received a dispatch
for “a person with a gun” near the address of the deli. Id. at 125. The
dispatcher then reported that the victim would be at a particular address,
which was the home where the victim lived with his brother near the deli.
Id.
Upon arrival, Officer Wheeler found the victim, Mr. Autry, lying on the
front porch and bleeding profusely. Id. at 127-28. Mr. Autry told the officer
he had been shot while walking in the parking lot by Sunny’s Deli. Id. at
130-31. Mr. Autry’s older brother informed the officer that, while he was on
the front porch with the victim, he had seen a black male, wearing a black
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hoodie, running southbound on the street where the Autry brothers lived.
N.T., 1/14/15, at 8, 20-22, 25, 31. This information was broadcast over the
police radio. Id. at 13.
Police Officer Tyrone Bacon testified that he received the same radio
dispatch as Officer Wheeler, and he was the first officer in the parking lot to
search for evidence. He discovered spent casings in the middle of the
parking lot next to the deli. Id. at 49. The casings were found in an area
outside of the view covered by the deli’s security cameras, and Officer Bacon
circled the area with chalk. Id. at 57. Officer Bacon indicated that at some
point he heard the flash information of “black male with a hoodie,” as to the
description of the suspect. Id. at 75.
Detective Vincent Rimshaw testified that he was assigned to
investigate the shooting, and accordingly, at approximately 1:00 a.m. on
January 12, 2014, he went to the hospital to speak to the victim, Mr. Autry.
Id. at 79-80. Due to Mr. Autry’s injuries, the interview was brief, and Mr.
Autry was unable to tell the detective who shot him or provide a description
of the shooter. Id. at 81.
At approximately 1:45 a.m., Detective Rimshaw arrived at the parking
lot, which had already been secured by the uniformed officers, and he
recovered fifteen spent 9 millimeter cartridge casings. Id. at 80-81. The
seizure was placed on a property receipt, and the seized spent casings were
sent to the Firearm Identification Unit’s forensic laboratory for testing. Id. at
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93-96. Detective Rinshaw noted that it is not possible to lift a fingerprint
from a fired shell casing unless it is handled after it has been fired. Id. at
102-03. Detective Rimshaw noted that, after seizing the spent casings, he
reviewed the video footage from the deli’s outside surveillance camera.
From the footage, he saw no vehicles leaving the parking lot, but he noticed
a black male wearing a sweatshirt with a tiger on it. Id. at 99-101, 108.
The video showed the male with the tiger sweatshirt standing behind the
victim, and the detective considered him to be “a person of interest.” Id. at
108.
Police Officer Raymond Andrejczak, an expert in firearms identification,
testified he was given fifteen spent casings to examine. Id. at 116. He was
not given a firearm to which he could compare the fifteen spent casings;
however, he microscopically examined the fired casings and opined they
were all fired from the same firearm. Id. at 126-27. Officer Andrejczak
noted he did not examine the fired cartridge casings for fingerprints and, to
the best of his knowledge, he is unaware of any case where fingerprints
were lifted from a fired cartridge casing. Id. at 129-30.
Haim Cohen, the owner of a furniture store in Philadelphia, testified
Appellant was his employee for approximately 18 months before the
shooting occurred; however, in early February 2014, Appellant stopped
appearing for work and his telephone was disconnected. Id. at 143-44.
Prior to failing to appear for work, Appellant had been “very good” at
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communicating with Mr. Cohen. Id. at 143-46. On February 24, 2014,
Detective Hartman spoke to Mr. Cohen, who informed the detective that he
had not heard from or seen Appellant in two weeks. Id. at 145. When
shown the surveillance video from the night of the shooting at the deli, Mr.
Cohen identified Appellant as being in the video. Id. at 149-50.
Detective Ted Wolkiewicz testified that, on February 19, 2014, he was
informed that Ahmad Kidd, who was in a holding cell due to his arrest on
theft charges, asked to speak to a detective. N.T., 1/15/15/, at 25-27. Mr.
Kidd was taken to an interview room, where Detective Wolkiewicz and
Detective Craig Coulter interviewed him. Id. at 31-33. Detective Wolkiewicz
indicated that Mr. Kidd gave the following statement:
Q[:] What is your name?
A: Ahmad Kidd.
Q: You were arrested on theft charges yesterday; is that
correct?
A: Yes.
Q: You told officers you had information on a shooting that
took place on the 4800 block of North Broad Street in January of
this year; is that correct?
A: Yes.
Q: Detective Coulter and I brought you up to an interview
room. Do you still want to talk?
A: Yes. I wanted to ask if it would help me for my theft.
Q: Ahmad, I’m telling you I can’t give you any help with
any legal problem you have. That would be for your attorney to
work it out with the district attorney’s office. Do you
understand?
A: Okay. I was wondering.
Q: Do you still want to discuss information about the
shooting incident?
A: Okay. I can tell you.
Q: What do you want to say?
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A: I know about the shooting at Sunny’s Deli on Broad
Street.
Q[:] There was an incident at 4838 North Broad Street on
January 12, 2014, that was reported at about 12:09 a.m. It
occurred outside of Sunny’s Deli. Is that the incident?
***
A: Yes. Kevin shot a dude in the parking lot.
Q: Before we proceed, I would like to show you a video
from inside of the deli. Would you like to watch?
A: Yes.
Id. at 34-36 (quotation marks omitted).
Detective Wolkiewicz testified that he, along with Detective Coulter
and Detective Hartman, showed Mr. Kidd the surveillance video footage from
Sunny’s Deli. Id. at 37. Thereafter, Detective Wolkiewicz restarted the
interview, and Mr. Kidd gave the following statement:
Q: Ahmad, Detective Hartman just showed you video
footage of the inside of Sunny’s Deli. Did you get a good look?
A: Yes. I seen [sic] me, then I seen [sic] Kev come in,
then I saw Twan. Donny walked in too.
Q: Did you recognize the first male who walked up while
you were at the window?
A: I know him because I sell a little weed sometimes. He
bought weed from me. I don’t know his name, but I know his
brother. They both live on Carlisle Street.
Q: You identified Kev as a male wearing the sweatshirt
with a design on the front, is that right?
A: Yes. That’s definitely him.
Q: The video shows Kev walk out the door immediately
behind a male who was shot; is that right?
A: Yes. You can see it’s just a guy, then Kev.
Q: How positive are you about the male being known to
you as “Kev?” Are you positive it’s him?
A: Yes. You can see it’s him. I know Kev for like ten
years. I see him a lot. I see him all the time.
Q: When did you last see Kev?
A: This is Wednesday. I seen [sic] him, like Monday, two
days ago.
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Q: What would make you think Kev was responsible for
shooting that man?
***
A: About two days after, or maybe the very next day, I
talked to Kev and he told me he shot the dude.
Q: Do you remember the conversation?
A: I said the cops was [sic] there and Pop, he owned the
deli, told me they had a picture, but he wasn’t there and didn’t
know anybody. I seen [sic] that, then I called Kev. I told him
what Pop told me. Kev told me he wasn’t playing. He said, ‘I
shot that motherfucker to protect mine.’
***
Q: What does all that mean?
A: There had been a beef going on between Kev and his
boys and Rell’s older brother. His name might be Tommy. They
live together on Loudon Street next to Twan.
Q: Who is Rell?
A: A guy who got shot in the lot. They told me his name
[is] “Rill” or “Rell.” I don’t know him.
Q: You identified the man in the video as “Kev.” Do you
know him?
A: I don’t know his name. I know him for ten years. I
only know him as Kev.
Q: If I show you a photo, could you identify him?
A: That’s him in the movie. I see him most every day.
Id. at 37-40 (quotation marks omitted).
Detective Wolkiewicz testified that, at this point, he showed Mr. Kidd
numerous photographs, and the statement continued as follows:
Q[:] I’m showing you a photo. Do you know this person?
A: Yes. That’s Kev. He’s in the film and he’s the one who
told me he shot that guy.
Q: Is there any doubt?
A: You keep asking me. I know the guy. I see him all the
time. In the movie when he walked up on me, he asked me if
I’m cool. I was drinking that night. I told him I’m cool. And
when we talked on the phone, I wasn’t high or drunk, it was the
next day.
Q: Did Kev tell you anything else about the actual shooting
incident in that lot—in the lot?
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A: No. He just said he shot the guy and he had to do it
because of 15th Street. It was payback. He thanked me for
letting him know the cops was [sic] around.
Q: Detective Coulter is showing you a photo. Do you know
this person?
A: That’s Donny. He[’s] in the movie at the deli.
***
Q[:] Why didn’t you call the police after Kev told you he
shot that man?
A[:] My mom and sisters live around there. I don’t know
what he [is] capable of doing. He could harm them or shoot
them. I was afraid. When the cops asked me last night if I had
any information, I changed my mind.
***
Q[:] Detective Coulter is showing you a photo. Do you
know this person?
A[:] That’s Donny. He[’s] in the movie at the deli.
***
Q[:] Detective Coulter is showing you a photo. Do you
know this person?
A: That’s Rell. He [is] the boy who got shot. I didn’t
know he was the one who got shot that night.
Q: Detective Coulter is showing you a photo. Do you
recognize this person?
A: That look[s] like the brother of Rell, I think. I don’t
really know him. He got his house shot up last year, same beef.
Q: Detective Coulter is showing you a photo. Do you
recognize this person?
A: That’s Twan, his name [is] Antwyone. I know him. He
lived next door to Kev on Loudon Street. I was making a
mistake when I told you Rell lived on Loudon Street. Rell and
his brother, they live on Carlisle Street. It’s Twan who lived next
door to Kev’s.
Id. at 41-45 (quotation marks omitted).
Detective Wolkiewicz noted that he typed the interview and requested
Mr. Kidd review it for accuracy. Id. at 45. He then told Mr. Kidd he could
sign it, make any changes, or even tear it up if he wished to do so. Id. at
46. Mr. Kidd signed and dated each page of the typed interview. Id.
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Detective Wolkiewicz noted that, during the interview, Mr. Kidd did not
appear to be under the influence and “there wasn’t a thing wrong with the
man.” Id. at 29. He indicated Mr. Kidd was “calm and he. . .spoke like you
would talk to somebody in a restaurant at a table. He was fine.” Id. at 61.
Detective Wolkiewicz testified that, on March 27, 2014, he and Mr.
Kidd were subpoenaed as witnesses for a grand jury, and prior to Mr. Kidd
testifying at the grand jury, he gave him the typed, signed interview to
review for accuracy. Id. at 49. Mr. Kidd never indicated he wished to make
any changes. Id. at 49-50. Detective Wolkiewicz noted that Mr. Kidd was
sober at the grand jury proceedings. Id. at 49-50.
Detective Coulter confirmed Detective Wolkiewicz’s testimony
regarding the circumstances surrounding Mr. Kidd’s statement to the
detectives on February 19, 2014. He noted he witnessed Mr. Kidd signing
and dating the typed interview. Id. at 140-41. He further noted that no
one made any promises to Mr. Kidd in exchange for the statement. Id. at
141.
Ahmad Kidd confirmed that he was placed in a holding cell following
his arrest and asked to speak to a detective. Id. at 159. As confirmed by
the surveillance videotape from Sunny’s Deli, Mr. Kidd testified he was
present at the deli on January 12, 2014. Id. at 159-60. Mr. Kidd testified
he had consumed drugs and alcohol on the night of the shooting, and he was
“probably” at the deli trying to sell marijuana. Id. at 160-61. He indicated
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he worked at the deli and, in his free time, he spent a lot of time “hanging
out” at the deli. Id. at 161-62. He admitted he had known Appellant for
five or ten years. Id. at 163.
With regard to the typed statement, which bore his signature, Mr. Kidd
testified the statement was “BS.” Id. at 180. He denied giving the
detectives any information about the shooting on the night of his arrest, and
more specifically, he denied indicating “Kev” was involved. Id. at 181-97.
He testified that he signed and dated the written statement just to get out of
the room. Id. at 190.
Mr. Kidd admitted at trial that, prior to testifying at a grand jury on
March 27, 2014, for the instant case, a detective showed him his written
statement, and he indicated he needed to make no changes. Id. at 177-78,
201. Referring to the grand jury transcript, the prosecutor asked Mr. Kidd if
he remembered testifying during the grand jury that there was a person in
Sunny’s Deli that had “[a] tiger or something” on his sweatshirt and the
person wearing the sweatshirt was “Kev.” Id. at 215-16. The prosecutor
also asked Mr. Kidd if he remembered testifying at the grand jury that “Kev
walked out behind [the victim]. . .[and] seconds, not even[,]” he heard the
gunshots. Id. at 217, 219. Further, the prosecutor asked Mr. Kidd if he
remembered testifying at the grand jury that two days after the shooting he
had a telephone conversation with Kev, who told him “I had to take care of
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mine. I handled it. I had to handle mine.” Id. at 220-223. Mr. Kidd denied
that he remembered his grand jury testimony.2 Id. at 216-219.
On cross-examination, Mr. Kidd indicated he pled guilty to aggravated
assault and burglary, and he is addicted to drugs. Id. at 232-34. He
testified that he was intoxicated at the time of the shooting, and he does not
“hang out” with Appellant. Id. at 233, 244. He also testified he has a
lengthy criminal history. Id. at 258-59.
On redirect-examination, Mr. Kidd admitted that, when he testified
before the grand jury on March 27, 2014, he was sober as he had been in
jail since February 19, 2014. Id. at 273-74.
William Sheridan, a City of Philadelphia employee who provides
community-based services, testified he provided services to Appellant,
beginning in August 2012, and Appellant lived on Loudon Street. Id. at 83-
84. He noted that Appellant was “punctual” and never missed a scheduled
meeting. Id. at 83-92. He indicated the last time he met with Appellant
____________________________________________
2
The prosecutor entered into evidence portions of Mr. Kidd’s grand jury
testimony, and the parties stipulated that, if called to testify, the
stenographer would testify that the transcript adequately reflected Mr. Kidd’s
testimony given on March 27, 2014, before the grand jury. Relevantly, the
grand jury transcript revealed Mr. Kidd testified that Appellant, to whom he
referred to as “Kev,” was at Sunny’s Deli just before the shooting; Kev was
wearing a sweatshirt decorated with a picture of a tiger; Kev left the deli
behind the victim, and seconds later, Mr. Kidd heard gunshots; Mr. Kidd
called Kev a few days after the shooting, at which time Kev said, “I had to
take care of mine. I had to handle mine[;]” and Mr. Kidd interpreted this to
mean Kev shot Mr. Autry due to a turf war with Mr. Autry’s brother. N.T.,
1/15/15, at 18-23.
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was on February 19, 2014, and although scheduled to meet, Appellant failed
to appear on March 5, 2014, without explanation. Id. at 87-92. He noted
he had Appellant’s telephone number and, when asked, he provided the
number to Detective Hartman. Id. at 86. He further noted that Detective
Hartman asked him to review video footage from January 12, 2014, and he
identified Appellant as being in the video. Id. at 90-91.
Detective Edward Davis testified he prepared an application for a
search warrant, indicating the police were looking for “[a] 9 millimeter
handgun, ammunition, a dark-colored shirt with a tiger, and sunglasses. . .A
T-Mobil cell phone, [with a particular phone number]; and a proof of
residency.” Id. at 157. The search warrant was executed on March 6,
2014, and Detective Davis seized the T-Mobil cell phone, which was listed on
the warrant. Id. at 158.
Detective Hartman testified he seized the surveillance video from
Sunny’s Deli, which had eight active cameras, on the day of the shooting.
Id. at 176-78. Detective Hartman noted the cameras showed portions of
the interior of the deli, as well as exterior portions of the surrounding area.
Id. at 184-85. Detective Hartman indicated one of the interior cameras
showed the “gentleman with the tiger sweatshirt tapped or bumped another
individual in the video and [ ] pointed at [a] person.” Id. at 43. He
continued that “[t]he individual that was being pointed at walked [ ] towards
the exit of the store. The gentleman in the tiger sweatshirt, again, appears
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to turn towards him and, again, points towards him, and then shortly after,
the gentleman in the tiger sweatshirt follows him outside.” Id. at 44.
Detective Hartman noted the video showed “the gentleman with that tiger
sweatshirt followed the other gentleman out of the store.” Id. at 44-45.
He further testified:
When I observed this video, what I appeared to see is the
person that was being pointed at left the store, went northbound
on Broad Street towards that parking lot, and turned into the
parking lot.
The person in the video with the tiger sweatshirt and
wearing the sunglasses [ ] pointed at the gentleman who left the
store, appeared to follow that gentleman out of the store,
follow[ed] him northbound on Broad Street, and turned into-into
the parking lot behind him.
Id. at 47.
Detective Hartman opined that, based on his review of the surveillance
footage, “everybody [else] was accounted for that entered that lot.” Id. at
48. That is, he testified based on what he observed on the videos, as well
as his investigation, “nobody remained in that area that wasn’t on camera
prior to the victim—or prior to that gentleman walking into the lot and the
person with the tiger sweatshirt following him into that lot.” Id. at 50. He
noted that the video showed Mr. Autry running towards Carlisle Street at the
time of the gunshots, and the area from which the fired cartridges were
recovered was in a “blind spot” of the cameras. Id. at 55. Detective
Hartman testified the video showed that, after the gunshots ended, the
person who followed Mr. Autry into the parking lot came out of the blind
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spot. Id. at 55-56. Upon reviewing the video footage after the shooting,
Detective Hartman concluded the gentleman wearing the blue sweatshirt
with the tiger on it was the suspect in the shooting. Id. at 56.
Detective Hartman testified the back portion of the parking lot has an
eight feet high chain link fence with barbed wire at the top. N.T., 1/16/15,
at 12. He noted the deli’s cameras did not cover this portion of the parking
lot where the fence is located. Id. at 13.
Detective Hartman indicated that, on February 10, 2014, he released
portions of the surveillance footage to the media, and it was placed on the
police department’s Facebook page, as well as the YouTube channel. Id. at
76. Further, Detective Hartman testified that, after the T-Mobile cell phone
was seized from Appellant’s home upon execution of the search warrant, he
provided it to the FBI’s Regional Computer Forensic Laboratory, which
provided the police with a report regarding the downloaded contents of the
cell phone. Id. at 112.
Regarding the report, Detective Hartman testified:
A: Th[ere is a] portion of the report [that] has to do with
YouTube application searches.
Q: Okay. So YouTube application, that’s if the YouTube app
was actually on that phone?
A: Correct.
Q: Okay. And the information that was stored was what
the person typed in to search in the YouTube app?
A: Correct. These are searches made in the YouTube app.
***
Q: Can you please read the date, the time, and the search
that was conducted in the YouTube app?
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A: Yes. The date and time is January 15th of 2014 at 9:16
and 22 seconds p.m., and that was the universal time. And this
is the YouTube applications and it was a search of “shoot at
Broad and Rockland.”
Q: Detective, Rockland Street, where is that in reference
to the deli?
A: Rockland Street is the first block north of the deli. . .
Th[ere] is another search that was done in the YouTube app on
1/15 of ’14 at 9:16 and 55 seconds p.m. universal time in the
YouTube application, and the search was “shooting at Broad and
Rockland.”
Q: Detective, how many days after the shooting is 1/15?
A: About three.
Q: Had you released the video to the media yet?
A: I had not. . . .February 14th, 2014, at 8:23 and 42
seconds p.m. universal time. YouTube application search,
“shooting at 4836 Broad Street.”
Q: 4836 Broad Street. What’s at that location?
A: That’s the location of the deli. . . .February 14, 2014, at
8:20 and 33 seconds p.m. universal time. YouTube application,
and the search was “aggravated assault on Broad Street.”
Q: Now, Detective. . .do you recall what size fired cartridge
casing the 15 fired cartridge casings were that were recovered in
regard to this investigation?
A: Yes.
Q: What were they?
A: They were all 9 millimeter. . . .Th[ere] was a search
done on 2/3/14 at 7:27 and 14 seconds p.m. universal time.
Search in the YouTube application, “how to clean a MAC-10 9
millimeter.”
Id. at 113-17.
At the conclusion of all testimony, the jury convicted Appellant of the
offenses indicated supra, and he was sentenced to an aggregate of
seventeen years to thirty-four years in prison. Appellant filed a timely,
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counseled post-sentence motion, which the trial court denied. This timely
appeal followed.3
Appellant’s first claim is that the evidence was insufficient to sustain
his convictions.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. 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
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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
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3
The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and
Appellant filed a petition for an extension of time, which the trial court
granted. The trial court directed Appellant to file his Pa.R.A.P. 1925(b)
statement by December 31, 2015. On December 28, 2015, the trial court
filed an opinion, raising and addressing various issues. On February 19,
2016, Appellant filed a counseled Pa.R.A.P. 1925(b) statement, presenting
the same issues as was addressed by the trial court in its Rule 1925(a)
opinion. To the extent Appellant’s Pa.R.A.P. 1925(b) statement was filed
late, we elect to proceed to review Appellant’s issues since the trial court has
addressed the issues in its Rule 1925(a) opinion. See Commonwealth v.
Growhowski, 980 A.2d 113 (Pa.Super. 2009).
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Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)
(citations omitted).
Here, Appellant’s sufficiency argument is specific in nature.
Specifically, he avers the evidence was insufficient to prove that he was, in
fact, the person who committed the crimes. 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 have been met. Rather, we will focus on the
specific issue raised by Appellant: whether the evidence was sufficient to
establish that Appellant was the perpetrator of the crimes.
In addressing Appellant’s sufficiency of the evidence claim, the trial
court indicated the following in its Rule 1925(a) opinion:
[Appellant] told Kidd that he shot Autry out of revenge and
to “protect” his drug turf. [Appellant’s] statements
demonstrated his consciousness of guilt[.] Further, although he
was a frequent customer of “Sunny’s Deli,” [Appellant] never
went back to the deli after the shooting. He also did not return
to his job and stopped meeting with Sheridan after police
released the video of the shooting. Finally, within days after the
shooting, [Appellant] conducted YouTube searches related to
how to clean a firearm of the same caliber as the [fired cartridge
casings] recovered by police. He also conducted YouTube
searches of the exact location of the shooting [before] the video
was released to the public.
[Appellant’s] identity was confirmed by Kidd, Sarith To,
and Sheridan who each positively identified [Appellant] as the
person wearing the tiger sweatshirt on the video. By finding
[Appellant] guilty, the jury determined that Kidd’s statement to
[the] police and his grand jury testimony were credible. In his
statement and grand jury testimony, Kidd identified [Appellant]
as the person in the tiger sweatshirt in the deli on the night of
the shooting. He further stated that he knew [Appellant] for
almost 10 years and that [Appellant] admitted during a phone
conversation that he shot Autry. Kidd also explained the motive
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for [Appellant] shooting at Autry. As such, there is no basis to
disturb the jury’s credibility determination notwithstanding the
substantial lines of impeachment and potential bias that were
the focus of Kidd’s cross-examination.
Detective Hartman’s compilation video shows [Appellant]
followed Autry out of the deli and into the parking lot. Seconds
later, several gunshots were fired and heard in the video. The
video showed Autry running toward Carlisle Street while the
gunshots were fired. The camera had a “blind spot” at the
center of the lot, exactly where 15 MAC-10 9 millimeter bullet
casings were recovered. Following the gunshots, [Appellant]
emerged from the blind spot and exited the parking lot.
Although there is a “blind spot” in the video of the parking lot,
Detective Hartman testified extensively about how the eight
videos would have captured any person or vehicle that entered
or exited the parking lot at the time of the shooting; the actual
video only showed two people entering and exiting the parking
lot at the time of the shooting: Autry and [Appellant]. Detective
Hartman also testified that it was impossible for any person to
enter or exit the parking lot other than from the sidewalk on
Broad Street or Carlisle Street. Finally, police officers who
secured the scene immediately after the shooting testified that
no one was hiding inside or under any of the vehicles in the
parking lot.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed 12/28/15, at 17-18 (citation
omitted).
We agree with the trial court’s analysis in this regard and, applying the
requisite standard of review, we conclude the evidence was sufficient to
establish Appellant was the person who shot Mr. Autry. See Brooks,
supra.We acknowledge, as Appellant points out on appeal, that the
Commonwealth offered no witness or video footage of Appellant actually
shooting at Autry, and thus, the evidence supporting Appellant’s identity as
the perpetrator was circumstantial. However, as our Supreme Court has
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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). Simply put, the
evidence was sufficient to prove Appellant shot Mr. Autry.
Appellant’s next claim is the jury’s verdict is against the weight of the
evidence. More specifically he alleges the Commonwealth’s case-in-chief
relied “heavily” on the testimony of Mr. Kidd, who was not credible. The
Commonwealth advocates waiver of this claim and, for the reasons set forth
infra, we agree Appellant has waived the claim for appellate review.
“[I]t is well settled that this Court cannot entertain, in the first
instance, a request for a new trial based upon a claim that the verdict is
against the weight of the evidence.” Commonwealth v. Holley, 945 A.2d
241, 245-46 (Pa.Super. 2008); Pa.R.Crim.P. 607(A). Rather, a challenge to
the weight of the evidence must be presented “(1) orally, on the record, at
any time before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A).
Moreover, presenting a challenge to the weight of the evidence for the first
time in a Rule 1925(b) statement does not preserve the issue for appellate
review, even in instances where the trial court addresses the merits of the
claim in its Rule 1925(a) opinion. See Commonwealth v. Burkett, 830
A.2d 1034 (Pa.Super. 2003).
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Here, while Appellant filed a timely post-sentence motion, he did not
include therein a weight of the evidence claim. Moreover, he did not raise
the issue orally or by written motion before sentencing. Accordingly, he has
waived his challenge to the weight of the evidence. Pa.R.Crim.P. 607(A).
Appellant’s final claim is the trial court erred in admitting evidence
regarding Appellant’s YouTube searches, as well as Detective Hartman’s
narration of the searches.4 Specifically, Appellant contends the evidence
should have been excluded under Pa.R.E. 403.
Initially, we note that the “[a]dmission of evidence is within the sound
discretion of the trial court and will be reversed only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. Tyson, 119
A.3d 353, 357-58 (Pa.Super. 2015) (en banc) (quotations and quotation
marks omitted). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Harris, 884 A.2d 920, 924 (Pa.Super. 2005).
Pursuant to Pa.R.E. 403, “[t]he court may exclude relevant evidence if
its probative value is outweighed by a danger of one or more of the
____________________________________________
4
We note the record reflects Appellant properly objected to the evidence
and narration at trial. N.T., 1/16/15, at 118.
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following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.”
In the case sub judice, Appellant does not dispute that the evidence of
his YouTube searches, as well as Detective Hartman’s narration of the
searches, was relevant. See Appellant’s Brief at 25. Rather, he baldly
asserts “its probative value is far outweighed by the danger of unfair
prejudice and misleading the jury.” Appellant’s Brief at 25. Aside from this
bald assertion, however, Appellant has not developed his argument further.
His argument, spanning less than one page, does not permit meaningful
review, and we decline to develop the argument for Appellant.
Commonwealth v. Kane, 10 A.3d 327 (Pa.Super. 2010). Accordingly, his
issue is waived on this basis. See Pa.R.A.P. 2119.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2016
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