Com. v. Gethers, G. ( 2023 )

J-S03020-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERARD GETHERS :
:
Appellant : No. 912 EDA 2022
Appeal from the Judgment of Sentence Entered February 3, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000845-2021
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 23, 2023
Gerard Gethers (Appellant) appeals from the judgment of sentence
imposed in the Montgomery County Court of Common Pleas following his jury
conviction of first-degree murder1 and related charges for the November 3,
2020, shooting death of Jerry White. On appeal, he challenges three
evidentiary rulings, as well as the sufficiency and weight of the evidence
supporting his convictions. As we discuss infra, we vacate the sentence
imposed on Appellant’s firearms conviction and remand for resentencing on
the offense; in all other respects, we affirm.
____________________________________________
1 18 Pa.C.S. § 2502(a).
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I. FACTS & PROCEDURAL HISTORY
The trial court summarized the evidence presented at Appellant’s jury
trial as follows:
[Appellant] shot and killed Jerry White on November 3,
2020, at approximately 3:35 p.m., in front of West Cali Tattoo at
518 West Marshall Street in Norristown, Montgomery County. At
the time, White was the sole eyewitness against [Appellant] in a
pending[, unrelated] aggravated assault case, a fact known to
[Appellant] when he killed White.
In the aftermath of the shooting of White, law enforcement
collected video surveillance from more than a dozen nearby
businesses and residences, constituting hours of footage from
both before and after the shooting. The footage, when viewed in
chronological order, showed [Appellant] leave a residence at 518
West Lafayette Street in Norristown at approximately 3:24 p.m.
He was wearing a black Nike jacket with a zipper front. He had
the hood pulled tight around his face and was wearing a “Covid”
mask. He also wore black pants with three stripes down the side
and white high top sneakers.3
__________
3Further analysis of the surveillance video footage would
reveal that [Appellant] wore a large-faced watch on his left wrist
and had a distinctive tattoo on his left hand.
_________
The surveillance footage showed [Appellant] walk from West
Lafayette Street to the corner of Chain and Marshall Streets. At
the time, White and four other males4 were standing nearby,
outside of West Cali Tattoo. Rather than continue to walk toward
them, thereby being seen, [Appellant] turned around and went
back down Chain Street, then up Haws Alley, which runs behind
West Marshall Street. [Appellant] came back around to West
Marshall Street at 3:35 p.m., such that the was able to approach
the males more surreptitiously.5 He then pulled out a .380 caliber
pistol and fired three shots in the direction of White. The four
other males standing nearby scattered, but White, having been
hit by at least two of the bullets, took a few steps before collapsing
into the street, almost being struck by a passing vehicle. White
suffered gunshot wounds to his left armpit, left forearm and back.
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The bullet that entered White’s back pierced several organs and
his aorta, resulting in White’s rapid death.
__________
4Jayden Guidici, Quadir Miller, Stephon Windbush and an
unidentified bystander.
5 Norristown Police Detective Brian Saxon testified that he
is familiar with the route [Appellant] walked from West Lafayette
Street to the tattoo shop and that it is reasonable given the pace
observed that . . . it would take approximately 11 minutes.
__________
After firing the fatal shots, [Appellant] returned on foot to
the West Lafayette Street residence he had left earlier in the
afternoon. Nearby surveillance footage showed him follow a
woman into the residence at 3:41 p.m.6
__________
6 Detective Saxon testified that [Appellant] took a more
direct route back to West Lafayette Street and that it was
reasonable for this return trip to take about six minutes. The
woman who entered the residence with [Appellant] would be
identified as Jackie McNelly, who lives at the property. She
testified that [Appellant] is a family friend who came to her house
on the afternoon of the day of the shooting. [Appellant] left for a
while and returned later that afternoon. She identified [Appellant]
as the man who followed her into her house. At some point during
her encounter with [Appellant] that day, McNelly saw him sitting
in a black four-door vehicle, which was parked in an alley near her
house. Surveillance video of [Appellant] outside of McNelly’s
house, compared with footage of the shooter, not only showed
similar clothing but also revealed an identical scuff mark on the
right sneaker and identical sneaker tread.
__________
No one at the scene of the shooting identified the shooter.
Detective Charles Leeds of the Norristown Police Department
immediately thought of [Appellant], however, upon hearing that
White had been killed. Detective Leeds had known White for many
years and knew he was an eyewitness against [Appellant] in
connection with [Appellant’s] alleged non-fatal shooting of Rodney
Harris on May 12, 2019, in Norristown.7 Because Harris had
refused to cooperate with police after he had been shot, White
was the lone witness against [Appellant]. Indeed, [Appellant] was
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charged with aggravated assault for the shooting of Harris after
White had identified [him] from a photo array and had given a
statement to police. [Appellant] was arrested in that case in
October 2019 and held on cash bail. At his preliminary hearing
on November 6, 2019, he learned that White, whom [Appellant]
knew as “Spider,” was a witness against him.
__________
7 A subsequent check of law enforcement databases
indicated that White, at the time of his death, was not involved as
a party or a witness in any other criminal cases pending in
Norristown or Philadelphia.
__________
The following day, during a recorded prison telephone call,
the person speaking with [Appellant] asked when [Appellant]
would get his discovery so he could find out who was snitching.
[Appellant] responded that he had found out the day before and
that he was going to “pin” that person. In a second prison.
telephone call that same day, [Appellant] referenced “Spider,” and
described him as hanging out at the tattoo shop all the time. He
also said that the person “would be gone” if [Appellant] ever
caught him.
At a bail hearing on July 31, 2020, [Appellant’s] then-
attorney argued in favor of his release by suggesting the case was
weak because, inter alia, someone identified as “Spider” was the
only witness against [Appellant]. [Appellant] was released on bail
that day, but reincarcerated on September 1, 2020. He was
released again, this time on house arrest with electronic
monitoring, on October 8, 2020, and eventually began working at
a local Wendy’s restaurant. He did not appear for his scheduled
shifts, however, on November 2 and November 3, 2020.
Electronic monitoring also showed [Appellant] did not return to his
residence by the approved time of 2:00 a.m., on November 3.8
_________
8 [Appellant] subsequently removed his electronic
monitoring device and was not wearing it when he was arrested
in this case.
__________
Instead, [Appellant] arrived at some point on November 2
to the Lafayette Hill, Montgomery County, home of Demesha
Bruce, the mother of his young child. Bruce saw [Appellant]
driving a black car that day and believed it to be a Cadillac.
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[Appellant] left Bruce’s house on the morning of November 3 and
arrived at McNelly’s house at approximately 2:52 p.m. He then
left McNelly’s house on foot at 3:24 p.m. The shooting occurred
at 3:35 p.m., and [Appellant] reentered McNelly’s house at
approximately 3:41 p.m. The black Cadillac drove away from the
area at 3:46 p.m. [Appellant] then returned in the vehicle9 to
Bruce’s house around 5:50 p.m.10
__________
9 Law enforcement subsequently located the black Cadillac
in Bucks County. The vehicle was registered to Todd Green, who
previously had agreed to sell the vehicle to [Appellant] and had
allowed [Appellant] to have possession of it. A subsequent search
of the vehicle revealed [Appellant’s] Wendy’s uniform.
10During police questioning, Bruce identified [Appellant]
from still photos of surveillance footage and indicated that
[Appellant] had a similar looking jacket, pants, sneakers and
watch. Law enforcement obtained a video Bruce had received on
her cell phone from [Appellant] on October 13, 2020, which
showed [him] wearing a similar jacket as the shooter and bearing
a similar tattoo on his left hand. They were aware from
[Appellant’s] arrest in the underlying aggravated assault case that
[Appellant] had a distinctive tattoo on his left hand. A still photo
of [Appellant] taken in August 2020 and retrieved from Bruce’s
cell phone depicted him wearing pants and sneakers similar to
those worn by the shooter.
Trial Ct. Op., 6/2/22, at 1-6 (record citations & some footnotes omitted). The
Commonwealth also presented the following evidence regarding Appellant’s
actions after the shooting:
[Appellant] walked out of Bruce’s residence in Lafayette Hill in the
early morning hours of November 4 and the Cadillac is seen
driving away. At approximately 5:45 a.m. that same morning, a
black Cadillac is seen parked in front of 1225 Route 313 in Bucks
County. Around the same time and near the same location,
[Appellant] got into a white van and drove to the Cadillac. He
stopped briefly to retrieve some items before getting back in the
van and driving to Norristown. At approximately 6:45 a.m.,
[Appellant] parked the van in the same general area as where the
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Cadillac had been parked in Norristown the day before and entered
McNelly’s house.
Id. at 10-11 (record citations omitted).
Appellant was subsequently arrested and charged with first-degree
murder, third-degree murder, intimidation of a witness (two counts),
retaliation against a witness, persons not to possess firearms, possession of a
firearm without a license, possessing an instrument of crime (PIC), and
recklessly endangering another person (REAP) (four counts).2
On May 24, 2021, the Commonwealth filed a motion in limine seeking
to introduce, at trial, evidence of Appellant’s prior bad acts pursuant to Pa.R.E.
404(b).3 First, the Commonwealth sought to present evidence Appellant was
charged with aggravated assault for an unrelated shooting, and that the victim
herein, White, was the sole witness against Appellant in that pending
proceeding. It requested the court admit the following evidence: (1)
testimony of a witness who heard Appellant state he intended to “get even”
with White;4 (2) White’s written police statement in the unrelated case; (3)
testimony by detectives in the aggravated assault case confirming that White
____________________________________________
218 Pa.C.S. §§ 2502(c), 4952(a)(1), (3), 4953(a), 6105(a)(1), 6106(a)(1),
907(a), and 2705, respectively.
3 Pa.R.E. 404(b) prohibits admission of a defendant’s prior bad acts to prove
the defendant’s character, unless such evidence is admitted for other
purposes. See Pa.R.E. 404(b)(1)-(2).
4 Although the trial court subsequently ruled this evidence was admissible, the
witness in question died of an overdose before trial. See N.T., 6/9/21, at 57-
60; N.T., 1/31/22, at 12-13. Therefore, this testimony was not presented at
trial.
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identified Appellant as the shooter; and (4) testimony from Appellant’s bail
hearing in the aggravated assault case that his attorney stated the only
witness against Appellant was “Spider,” White’s nickname. See
Commonwealth’s Motion in Limine to Introduce Evidence of Appellant’s Other
Bad Acts, 5/24/21, at 15-16. The Commonwealth argued the evidence was
necessary to prove the witness intimidation and retaliation charges, and
admissible to establish Appellant’s motive for the murder and to present a
complete story of the incident, i.e., res gestae evidence. Id. at 14-15, 17.
Second, the Commonwealth sought to introduce evidence that Appellant
was incarcerated on the unrelated aggravated assault charge from October
17, 2019, until October 8, 2020, when he was released on house arrest, and
that he absconded from supervision on November 3, 2020, the day of White’s
shooting. See Commonwealth’s Motion in Limine to Introduce Evidence of
Appellant’s Other Bad Acts at 20-21. It maintained this evidence was
admissible pursuant to the “identity, opportunity, absence of mistake or
accident, and ‘res gestae’ exceptions under Rule 404(b).” Id. at 21.
Four days later, Appellant filed a motion in limine, seeking to preclude
certain evidence, including, inter alia: (1) White’s verbal and written
statements to police in the unrelated aggravated assault case; and (2) the
Commonwealth’s edited version of the surveillance video purporting to show
the shooter’s movements, which included zooming, pausing, and captions.
See Appellant’s Motion in Limine, 5/28/21, at 2-3 (unpaginated). With regard
to White’s statements, Appellant argued that the statements constituted
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hearsay, and their admission would violate his Confrontation Clause rights
under both the United States and Pennsylvania Constitutions. See id.
The trial court conducted a pretrial hearing on June 9, 2021, to consider
the competing motions in limine. With regard to the surveillance video, the
parties agreed that the zooming and pausing of the video was admissible, so
long as the Commonwealth also showed the video at full speed and removed
all captions. See N.T., 6/9/21, at 12-13; see also Order, 1/18/22. Appellant
also orally objected to the admission of dash cam video from a van he
allegedly drove on the day after the murder. See N.T., 6/9/21, at 71-72. He
maintained the video depicted the van being driven recklessly throughout the
night. See id. The court ruled that evidence Appellant abandoned a Cadillac
(the vehicle purportedly driven by the shooter) in Bucks County, and drove
the van back to Norristown “with some of his possessions in it . . . seem[ed]
relevant and appropriate[.]” Id. at 98. However, the court questioned the
relevancy of video allegedly showing Appellant’s reckless driving and indicated
that the Commonwealth could edit out that part of the video. See id. at 97-
98.
With regard to the evidence establishing White was a witness against
Appellant in the unrelated aggravated assault case, the court found this
evidence was “extremely relevant” to establish Appellant’s motive,
identification and absence of mistake, as well as to show the “natural
development of the facts” of the case. See N.T., 6/9/21, at 96-97. The court
also determined the probative value of the evidence “highly outweigh[ed] any
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prejudicial impact[.]” Id. at 96. Thus, the court stated it intended to
“generally admit[ ]” that evidence, but wanted to further consider Appellant’s
“confrontation issue.” Id. at 97.
The case proceeded to a jury trial commencing on January 31, 2022.
Prior to the start of testimony, Appellant again challenged the relevancy of the
video evidence showing him retrieving items from the Cadillac, parked in
Bucks County, and driving back to Norristown in the van. See N.T., 1/31/22,
at 5-7. Appellant’s counsel argued that the Cadillac did not need to be a part
of the case because none of the video or witness testimony established
Appellant drove the Cadillac on the day of the shooting. See id. at 7-8. The
Commonwealth asserted, however, that the evidence concerning the Cadillac
helped corroborate the testimony of their other witnesses. Id. at 8. The court
agreed, and admitted the evidence a trial. Id.
On February 3, 2022, the jury returned a verdict of guilty on the charges
of first-degree murder, intimidation of a witness (two counts), retaliation
against a witness, PIC, possession of a firearm without a license, and REAP
(four counts). The charges of third-degree murder and persons not to possess
are firearm were nol prossed by the Commonwealth.
The trial court sentenced Appellant that same day to the mandatory
minimum term of life imprisonment.5 Appellant filed a timely post-sentence
____________________________________________
5 The court also imposed concurrent sentences of 6 to 12 years’ imprisonment
for the witness intimidation charges, 2 to 4 years’ imprisonment for retaliation
(Footnote Continued Next Page)
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motion challenging the sufficiency and weight of the evidence supporting his
convictions. The trial court denied the motion on March 2, 2022, and this
timely appeal follows.6
II. ISSUES ON APPEAL
Appellant presents five issues for our review:
1. Whether the [t]rial [c]ourt abused its discretion when it
granted the Commonwealth’s Motion in Limine to Introduce
Evidence of Appellant’s Prior Bad Acts, including evidence of
written and verbal statements of . . . White from the May 12,
2019 alleged [a]ggravated [a]ssault charges, pursuant to
Pa.R.E. 404(b)[?]
2. Whether the [t]rial [c]ourt abused its discretion when it denied
Appellant’s Motion in Limine to preclude the written and verbal
statements of . . . White in reference to the May 12, 2019
alleged [a]ggravated [a]ssault charge as hearsay in that the
____________________________________________
against a witness, 4 to 8 years’ imprisonment for the firearms offense, and 6
to 24 months’ imprisonment for each of the REAP charges.
As the trial court notes in its opinion, the sentence of 4 to 8 years’
imprisonment imposed on the charge of possession of a firearm without a
license is beyond the statutory maximum term permitted by law. See Trial
Ct. Op. at 1 n.1. Because that crime is graded as a third-degree felony, the
maximum permissible sentence is seven years’ incarceration. See 18 Pa.C.S.
§§ 1103(3), 6106(a)(1). The trial court requests this Court “amend by
agreement” the sentence imposed on the firearms offense to a term of 3 to 6
years’ imprisonment, concurrent to the life sentence for first-degree murder.
See Trial Ct. Op. at 1 n.1. Appellant “joins in this specific request of the trial
court.” Appellant’s Brief at 21 n.1. Thus, we vacate the sentence on the
firearms offense, and remand for the court to impose the new, agreed-upon
sentence.
6Appellant complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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Commonwealth did not prove that said statements met the
hearsay exception of Pa.R.E. [ ] 806(b)(6)[?]
3. Whether the [t]rial [c]ourt abused its discretion when it denied
Appellant’s Oral Pre-trial Motion to exclude a portion of the
Commonwealth’s proposed video exhibit which showed a van
being driven by Appellant from Bucks County to Norristown, PA
on the day after the alleged murder as irrelevant as said portion
of the video failed to establish a material fact, make a fact at
issue more or less probable, or support a reasonable inference
supporting a material fact and the probative value of its
inclusion was outweighed by the likelihood of unfair prejudice
against Appellant[?]
4. Whether the evidence presented at trial was insufficient to
support a conviction on all charges in that there was not proof
beyond a reasonable doubt that Appellant was the individual
who shot . . . White[?]
5. Whether the [t]rial [c]ourt abused its discretion in denying
Appellant’s Post-Sentence Motion requesting a new trial as the
jury’s verdict was against the weight of the evidence in that
there was not proof beyond a reasonable doubt that Appellant
was the individual who shot . . . White[?]
Appellant’s Brief at 5-6.7
III. EVIDENTIARY RULINGS
In his first three issues, Appellant challenges the trial court’s evidentiary
rulings. When considering these claims, we must bear in mind the following:
[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. 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
____________________________________________
7 Despite being granted two extensions of time, the Commonwealth has not
filed an appellee brief in this matter.
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manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.
Commonwealth v. Dula, 262 A.3d 609, 626 (Pa. Super. 2021) (citation
omitted), appeal denied, 273 A.3d 985 (Pa. 2022).
We begin with the general rule that “[a]ll relevant evidence is
admissible[.]” Pa.R.E. 402. Evidence is deemed relevant if: “(a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”
Pa.R.E. 401(a)-(b). Regardless of relevancy, however, the Pennsylvania Rules
of Evidence generally preclude the two types of evidence alleged to be at issue
herein: (1) evidence of a defendant’s prior crimes or bad acts and (2) hearsay.
See Pa.R.E. 404(b)(1), 802.
Pa.R.E. 404(b)(1) prohibits evidence of a defendant’s prior crimes or
bad acts simply to prove their bad character. See Pa.R.E. 404(b)(1).
However, such evidence may be admissible when offered for another purpose,
such as to prove motive, intent, identity, or absence of mistake, or pursuant
to the res gestae exception, that is, where it is “part of the history of the case
and form[s] part of the natural development of the facts.” Pa.R.E. 404(b)(2);
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). “In a criminal
case, this evidence is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.” Id.Rule 802 generally precludes the admission of hearsay testimony. See
Pa.R.E. 802. Hearsay is defined as “an out of court statement offered for the
truth of the matter asserted[.]” Commonwealth v. Manivannan, 186 A.3d
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472, 482 (Pa. Super. 2018) (citation omitted). See also Pa.R.E. 801(a)-(c).
However, an out-of-court statement that is not offered for its truth, but rather
for another reason ─ such as to “establish motive” or to “complete the story”
─ is admissible as non-hearsay. See Manivannan, 186 A.3d at 482-83
(citations & quotation marks omitted). Moreover, Rule 804 provides
exceptions to the rule against hearsay when, as here, the declarant is
unavailable as a witness. See Pa.R.E. 804(a)(4) (stating “[a] declarant is
considered to be unavailable as a witness if the declarant . . . cannot be
present or testify . . . because of death”). Rule 804(b)(6) sets forth the
exception known as “forfeiture by wrongdoing.” See Pa.R.E. 804(b)(6);
Commonwealth v. Morales, 91 A.3d 80, 94 (Pa. 2014). It permits the
admission of an unavailable declarant’s statement when it is “offered against
a party that wrongfully caused . . . the declarant’s unavailability as a witness,
and did so intending that result.” Pa.R.E. 804(b)(6).
(a) Evidence related to May 2019 shooting
With these general rules in mind, we consider Appellant’s first two issues
on appeal. Both claims challenge the trial court’s pretrial ruling admitting
prior bad acts evidence related to Appellant’s purported involvement in a May
2019 shooting, including oral and written statements victim White provided to
police implicating Appellant in that crime.
First, Appellant argues the trial court abused its discretion when it
granted the Commonwealth’s motion in limine to introduce evidence of the
unrelated aggravated assault case when the Commonwealth failed to produce
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any evidence at the pretrial hearing to support that ruling. See Appellant’s
Brief at 27. Indeed, he contends that the Commonwealth sought to present,
inter alia, the following evidence at trial to prove his motive for the murder of
White was retaliation for White’s cooperation with police in the aggravated
assault case: (1) White’s written statement to police implicating Appellant as
the May 2019 shooter; and (2) the testimony of a detective confirming White
identified Appellant as the May 2019 shooter. See id. at 26. However,
Appellant argues the Commonwealth “never produced a copy of [White’s]
written statement . . . as an exhibit at the June 9, 2021, hearing[,]” nor
presented testimony from the police detective who recorded White’s
identification of Appellant.8 Id. at 27. Thus, he insists there was “insufficient
evidence presented . . . for the trial court to weigh, examine or consider”
before rendering its decision to admit this Rule 404(b) evidence. See id. at
30.
Appellant also contends the trial court abused its discretion when it
determined that this prior bad act evidence was admissible pursuant to the
“identity” and res gestae exceptions. See Appellant’s Brief at 30, 32-33. He
insists the “identity” exception requires proof that the prior and present crime
were “so nearly identical in method as to earmark them as the handiwork of
____________________________________________
8 In fact, the only prior bad acts “evidence” the Commonwealth presented at
the pretrial hearing related to the proposed testimony of the witness who
heard Appellant state he wanted to get even with White. See N.T., 6/9/21,
at 17-48. Unfortunately, as noted above, that witness died before trial and
none of the evidence concerning her proposed testimony was admitted.
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the accused[,]” and here there was no evidence of a “signature” crime. Id.
at 30-32 (citation & quotation marks omitted). Moreover, Appellant maintains
the Commonwealth failed to establish that the May 2019 shooting “was part
of a chain, sequence, or natural development of events which formed the
history of the case” so as to satisfy the res gestae exception. Id. at 33
(quotation marks omitted). He argues the inclusion of White’s statements in
the prior shooting case was “highly prejudicial” considering “the weakness of
[White’s] identification of Appellant in [that case] and the lack of supporting
evidence to conclude he was the shooter on May 12, 2019.” Id.
In his second, related claim, Appellant contends the trial court abused
its discretion when it denied his motion in limine to preclude White’s prior
statements as hearsay. Appellant’s Brief at 33. He insists the statements
were not admissible pursuant to the “forfeiture by wrongdoing” exception at
Pa.R.E. 804(b)(6) because the Commonwealth “failed to show by a
preponderance of the evidence that [he] was involved in, or responsible, for
the procuring the unavailability of [ ] White and that [he] acted with the intent
of procuring [ ] White’s unavailability as an actual or potential witness.” Id.
at 35-36.
We conclude Appellant is entitled to no relief. First, we reject Appellant’s
argument concerning the “lack of an evidentiary record” at the pretrial
hearing. See Appellant’s Brief at 30. Appellant was well aware of White’s
written police statement implicating him in the May 2019 shooting, as well as
White’s identification of Appellant in a police photo array ─ in fact, he sought
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to preclude this same evidence in his competing motion in limine. At the
pretrial hearing, the Commonwealth detailed the evidence it sought to
introduce at trial, which included “the written statement that . . . White gave
to Norristown Police in reference to the aggravated assault case[, and]
testimony from detectives regarding . . . White picking [Appellant] out of a
photo array . . . and identifying him as the man who shot the victim” in May
2019. N.T., 6/9/21, at 78. Appellant provides no authority for his assertion
that the Commonwealth was required to introduce the statement at issue into
evidence or present the testimony of the detective at the pretrial hearing.
Further, he does not argue that the evidence the Commonwealth later
produced at trial was different than the evidence described at the pretrial
hearing. Indeed, Appellant lodged no objection when White’s written
statement was read to the jury, or when Detective Leeds testified that White
identified Appellant as the May 2019 shooter from a photo array. See N.T.,
2/1/22, at 95-105. Thus, his first argument fails.
Next, while Appellant challenges the admission of evidence concerning
his involvement in the May 2019 shooting pursuant to the identity and res
gestae exceptions, he fails to address the primary reason this evidence was
admitted ─ to establish his motive for the murder of White. At the conclusion
of the pretrial hearing, the trial court opined:
[T]he fact that [ ] White was a witness in a potential aggravated
assault case, pending aggravated assault case, is extremely
relevant and the probative value highly outweighs any prejudicial
impact to [Appellant]. Clearly, there is the importance of the
motive, to establish his motive, to establish his identification, and
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to establish absence of mistake or accident. It really is the basis
for this case in the sense that it really is the keystone of the whole
case. And the jury must hear the natural development of the facts
in this case to understand it and the res gestae part of that is
extremely important. So I’m generally admitting that.
N.T., 6/9/21, at 96-97.
We agree. White’s identification of Appellant as the May 2019 shooter,
combined with evidence that Appellant was aware White was the
Commonwealth’s only witness in that case, was relevant to establish
Appellant’s motive to murder White on the day in question. See
Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013) (prior bad
acts evidence that defendants in murder prosecution were rival drug dealers
of victims relevant to establish motive and “link[ ]” victims to defendants).
Appellant does not challenge this ruling ─ which we agree was correct ─ and,
thus, he is entitled to no relief.9
Moreover, we emphasize that Appellant was also charged with both
intimidation of a witness and retaliation against a witness because White was
a witness against Appellant in the aggravated assault case. See 18 Pa.C.S.
§§ 4952(a)(1), (3), 4953(a); Bill of Information, 4/22/21, Counts 3-5. Thus,
White’s statements to police implicating Appellant in the May 2019 shooting
were clearly relevant to prove these other charges.
____________________________________________
9 We note Appellant emphasizes the “weakness of [White’s] identification” of
him as the shooter in the May 2019 aggravated assault case. See Appellant’s
Brief at 33. However, the strength or weakness of White’s identification is
irrelevant ─ the fact that White named Appellant as the culprit provides a
motive for Appellant to seek retribution against White.
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Appellant’s hearsay argument also fails. White’s written and oral
statements to police identifying Appellant as the May 2019 shooter do not
constitute hearsay. “Generally, our appellate courts have held that out-of-
court statements by homicide victims are admissible when the statements are
relevant for some other purpose, such as proof of motive or malice.”
Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013) (en banc).
Here, the statements were not offered for their truth ─ that is, to establish
that Appellant was, in fact, the May 2019 shooter. Rather, White’s statements
were offered to establish that Appellant had a motive to murder White ─
whether true or not, White identified Appellant as the shooter in the May 2019
case and was the Commonwealth’s sole witness in that case. Thus, White’s
out-of-court statements are not hearsay.
Lastly, we note that the trial court provided the following limiting
instruction to the jury:
You have heard evidence to the effect that [Appellant] was
charged with aggravated assault in connection with . . . [a May
2019] shooting in Norristown.
. . . [H]e is not on trial for that. Is that understood? . . .
This evidence is before you for a limited purpose. That is,
for the purpose of tending to show motive, intent, and
identification.
This evidence must not be considered by you in any other
way that for the purpose I just stated. You must not regard this
evidence as showing that [Appellant] is a person of bad character
or criminal tendencies from which you might be inclined to infer
guilt. Is that understood?
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N.T., 2/3/22, at 75-76. A jury is “presumed to follow the court’s instruction[.]”
Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016). Thus,
Appellant’s first two evidentiary challenges fail.
(b) Video evidence regarding Cadillac
In his third issue, Appellant challenges the trial court’s evidentiary ruling
admitting the Commonwealth’s video exhibit showing Appellant retrieving
items from a black Cadillac in Bucks County, putting them in a van, and driving
the van back to the area of the murder. See Appellant’s Brief at 37. He
maintains the video was “irrelevant” because the Commonwealth failed to
prove the Cadillac was used in the commission of the murder ─ there was no
video showing Appellant driving the Cadillac to or from the murder scene. See
id. at 37-38. Appellant also insists this evidence was unfairly prejudicial. Id.
at 40.
Preliminarily, we note that Appellant’s issue as framed in his brief is
different from the claim he raised in his Pa.R.A.P. 1925(b) statement. In the
Rule 1925(b) statement, Appellant asserted the trial court abused its
discretion when it denied his oral motion “to exclude a portion of the
Commonwealth’s proposed video exhibit which shows a Cadillac being
driven from Buck County to Norristown, PA on the day after the
alleged murder as irrelevant[.]” Appellant’s Statement of Matters
Complained of on Appeal, 4/19/21, at 1 (unpaginated) (emphasis added). As
the trial court noted in its opinion, it “scoured the trial record and [did] not
recall evidence of a Cadillac being driving from Bucks County to Norristown on
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the day after the shooting.” Trial Ct. Op. at 10. As explained above, Appellant
does not elaborate on this claim in his brief, but rather, addresses a different
issue entirely, focusing on video of him retrieving items from the abandoned
Cadillac in Bucks County, putting them in a van, and driving the van back to
Norristown on the day after the murder. See Appellant’s Brief at 37. Thus,
because Appellant’s present claim was not preserved in his court-ordered Rule
1925(b) statement, it is waived for our review.10 See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Nevertheless, we note the trial court addressed the relevancy of the
evidence Appellant now challenges in its opinion. The court opined:
[E]vidence presented by the Commonwealth demonstrated that
[Appellant] walked out of Bruce’s residence in Lafayette Hill in the
early morning hours of November 4 and the Cadillac is seen
driving away. At approximately 5:45 a.m. that same morning , a
black Cadillac is seen parked in front of 1225 Route 313 in Bucks
County. Around the same time and near the same location,
____________________________________________
10 We note, too, that the issue raised in Appellant’s brief cannot be
characterized as a subsidiary issue of the claim he raised in his Rule 1925(b)
statement. See Commonwealth v. Price, 284 A.3d 165, 171 (Pa. 2022)
(explaining that in determining whether one issue is a subsidiary of another,
“the question is whether resolution of the two issues is sufficiently connected
to each other such that the resolution of one may depend in some respect
upon resolution of the other”). Indeed, in the Rule 1925(b) statement, he
challenged video evidence of “a Cadillac being driven from Bucks County to
Norristown . . . on the day after the alleged murder[,]” while in his brief, he
challenges video of him retrieving items from a Cadillac in Bucks County,
entering a van, and driving the van back to Norristown. See Appellant’s
Statement of Matters Complained of on Appeal at 1 (unpaginated); Appellant’s
Brief at 37.
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[Appellant] got into a white van and drove to the Cadillac. He
stopped briefly to retrieve some items before getting back in the
van and driving to Norristown. At approximately 6:45 a.m.,
[Appellant] parked the van in the same general area as where the
Cadillac had been parked in Norristown the day before and entered
McNelly’s house.
This evidence plainly is relevant to demonstrate
[Appellant’s] connection to the Cadillac seen in Norristown on the
day of the shooting. Additionally, and although not raised in the
oral pre-trial motion made before this court, the evidence was not
unfairly prejudicial to [Appellant] and he received a fair trial.
Trial Ct. Op. at 10-11 (record citations omitted).
We agree with the court’s analysis. Appellant asserts that any evidence
regarding the Cadillac is irrelevant because there was no video footage or
witness testimony placing him as the driver of the black Cadillac seen on
surveillance video arriving in the area of McNelly’s residence just before the
murder and leaving shortly after the murder. However, direct evidence is not
required. Rather, the Commonwealth provided circumstantial evidence
connecting Appellant to the black Cadillac, including testimony that he arrived
and left the area of the murder in a black Cadillac, and corroborating
surveillance video of that black Cadillac. See N.T., 2/1/22, at 34, 42-43
(McNelly testified Appellant was operating a black four-door car on the day of
the murder, which was parked in the alley next to her house); 168-69 (Bruce
testifying Appellant drove a black Cadillac to her residence on November 2,
2020, the day before the murder); N.T., 2/2/22, at 46-49, 54-55 (surveillance
video of the black Cadillac in the area of the murder and Bruce’s home).
Moreover, we emphasize the actual evidence Appellant now contests was
admitted via stipulation. The parties stipulated that: (1) before 6:00 a.m. on
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the morning after the murder, Appellant retrieved items from a black Cadillac
parked in Bucks County; (2) that Cadillac was registered to Todd Green, who
stated he agreed to sell it to Appellant and allowed Appellant to take
possession of the car; and (3) a search of the Cadillac uncovered Appellant’s
work uniform. See N.T., 2/1/22, at 232-33. Accordingly, we conclude the
trial court did not abuse its discretion when it admitted the evidence at issue.
IV. SUFFICIENCY OF THE EVIDENCE
Appellant’s fourth claim presents a challenge to the sufficiency of the
evidence supporting his convictions. Rather than addressing the individual
elements of each offense, Appellant broadly asserts there was insufficient
evidence for the jury to conclude he was the perpetrator of the crime. See
Appellant’s Brief at 41-42. He emphasizes the following: (1) the shooter,
who was masked at all times, was never positively identified by any witness;
(2) none of the shooter’s clothes, or any firearm, was recovered from
Appellant’s home or car; (3) there was no video of Appellant driving the black
Cadillac to or from Norristown on the day of the shooting; (4) the
Commonwealth’s FBI analyst could not positively match any of the evidence
from the shooting to Appellant; and (5) the only link between Appellant and
White was the May 2019 shooting, and Appellant denied his involvement in
that case. See id. 42-44. Appellant also noted that there was evidence
presented at trial that “someone else besides Appellant may have had a
motive” to harm White. See id. at 50.
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Preliminarily, we note the trial court found Appellant’s sufficiency claim
waived because his Rule 1925(b) statement did not specify “the elements of
the offenses he is challenging on appeal.” See Trial Ct. Op. at 12. Rather,
Appellant simply asserted the evidence “was insufficient to support the jury’s
verdict of guilty” on all of his charges, without providing any detail. See
Appellant’s Statement of Matters Complained of on Appeal at 2 (unpaginated).
This Court has consistently held:
[T]o “preserve a sufficiency claim, the Rule 1925(b) statement
must specify the element or elements upon which the evidence
was insufficient.” Commonwealth v. Widger, 237 A.3d 1151,
1156 (Pa. Super. 2020). If the appellant does not specify such
elements, the sufficiency claim is deemed waived.
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super.
2017).
Commonwealth v. McFarland, 278 A.3d 369, 381 (Pa. Super. 2022), appeal
denied, 2023 WL 368601 (Pa. Jan. 24, 2023). Moreover, “[s]uch specificity
is of particular importance in cases where, as here, [A]ppellant was convicted
of multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” See
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). See also
Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016) (Appellant
waived sufficiency argument challenging two counts of first-degree murder
and two firearms offenses when Rule 1925(b) statement claimed convictions
were based on “insufficient evidence because the circumstantial inferences
drawn from the evidence were unwarranted and unreliable”).
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In the present case, Appellant’s generic Rule 1925(b) statement failed
to specify which of his 10 convictions he was challenging, and, more
importantly, which elements of those convictions the Commonwealth failed to
prove. To the extent he asserts the claim he intended to raise was “clear from
both his defense put forth at trial as well as his Post-Sentence Motion[,]”11 we
remind Appellant that compliance with a court-ordered Rule 1925(b)
statement is mandatory, and the trial court is not required to scour the record
to determine Appellant’s specific claim on appeal.12 Thus, we agree with the
trial court that this issue is waived.
Nevertheless, as Appellant asserts, he did argue in his post-sentence
motion that the evidence was insufficient to prove he was the person who
shot and killed White. See Appellant’s Post-Sentence Motion, 2/11/22, at 2-
3 (unpaginated). However, even if we were to consider this claim, we would
conclude he is entitled to no relief.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
[We must determine] whether viewing all the evidence admitted
at trial in the light most favorable to the verdict winner, there is
____________________________________________
11 See Appellant’s Brief at 42 n.2.
12 We note that in his statement of questions presented in his brief, he properly
framed his sufficiency argument, claiming “there was not proof beyond a
reasonable doubt that Appellant was the individual who shot [ ] White.”
Appellant’s Brief at 6. Had he presented this claim in his Rule 1925(b)
statement, the trial court could have properly addressed the issue in its
opinion.
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sufficient evidence to enable the fact-finder to find every element
of the crime beyond a reasonable doubt. In applying [this] test,
we may not weigh the evidence and substitute our judgment for
a 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 received must be considered. Finally, the [trier] 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.
Commonwealth v. Williams, 255 A.3d 565, 578–79 (Pa. Super. 2021)
(citation omitted).
As noted above, Appellant insists there was insufficient evidence to
support the jury’s determination that he was the person who murdered White.
With regard to identification evidence, we must bear in mind the following:
In addition to proving the statutory elements of the crimes
charged beyond a reasonable doubt, the Commonwealth must
also establish the identity of the defendant as the perpetrator of
the crimes. Evidence of identification need not be positive and
certain to sustain a conviction. [A]ny indefiniteness and
uncertainty in the identification testimony goes to its weight.
Direct evidence of identity is, of course, not necessary and a
defendant may be convicted solely on circumstantial
evidence.
Commonwealth v. Strafford, 194 A.3d 168, 175–76 (Pa. Super. 2018)
(citations, quotation marks & paragraph break omitted; emphasis added).
Appellant’s argument focuses on the lack of a positive identification that
he was the masked shooter, the lack of any evidence definitively connecting
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him to the crime, and the possibility of an alternate suspect. See Appellant’s
Brief at 42-44, 50. However, as summarized by the trial court in its opinion,
the circumstantial evidence presented by the Commonwealth was more than
sufficient to support Appellant’s convictions. See Trial Ct. Op. at 1-6.
Appellant had a motive to shoot White, was identified by witnesses as being
near the scene of the crime at the time of the crime, generally matched the
description of the masked shooter and was known to have a tattoo similar to
the shooter’s, failed to report to work on the day of the shooting and was
subsequently arrested without his ankle monitor, and was connected to a
black Cadillac similar to a vehicle present near the scene of the crime.
Moreover, we note Appellant emphasizes that the Commonwealth’s FBI
forensic analyst, George Skaluba, could not definitively match the jacket worn
by the shooter, the tattoo on the shooter’s arm, or the Cadillac seen on
surveillance video to a jacket owned by Appellant, Appellant’s tattoo, and the
Cadillac recovered in Bucks County. See Appellant’s Brief at 48. However,
he fails to acknowledge that the analyst was unable to do so based on the
quality of the images he examined, and, in fact, testified he also could not
eliminate any of the matches. See N.T., 2/1/22, at 269-72, 279-80.
Furthermore, the evidence suggesting another person may have had a motive
to murder White was rejected by the jury, as was its prerogative. See
Williams, 255 A.3d at 579. Thus, even if Appellant’s sufficiency claim was
not waived, we would conclude he is entitled to no relief.
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V. WEIGHT OF THE EVIDENCE
In his final claim, Appellant contends the verdicts were against the
weight of the evidence presented at trial.13 He argues the evidence identifying
him as White’s murderer was “tenuous, vague and uncertain.” Appellant’s
Brief at 52. He details testimony and evidence supporting his assertion that
he was not the shooter, which he claims the trial court “failed to adequately
address.” Id. at 52-53. See also id. at 53-63 (none of the witnesses to the
shooting identified Appellant, or saw a tattoo on his hand; the detective who
compiled the video of the shooter’s path thought the shooter was not wearing
a mask when he left the West Lafayette residence; the evidence demonstrated
the shooter could have been aiming at any of the witnesses and not White;
McNelly’s testimony was “filled with contradictions;” White’s identification of
Appellant as the May 2019 shoot was “extremely weak;” Bruce did not
recognize Appellant in any photos obtained from the video footage; no
firearm, or clothing worn by the shooter was recovered from the Cadillac; the
Commonwealth’s expert analyst could not conclude definitively that the jacket
worn by the shooter matched a jacked owned by Appellant, the tattoo seen
on the shooter matched Appellant’s tattoo, or that the Cadillac in the videos
matched a Cadillac sold to Appellant; and there was evidence White’s murder
____________________________________________
13Appellant preserved his weight of the evidence claim in a timely filed post-
sentence motion. See Pa.R.Crim.P. 607(A)(3).
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could have been related to his drug dealing or threatening texts he had
received a month before the murder).
Our review of a weight of the evidence claim is well-established:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the fact[s], certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence.
Williams, 255 A.3d at 580 (citation omitted & paragraph break added).
In rejecting Appellant’s weight of the evidence claim, the trial court
opined:
[T]he evidence . . . amply supports the jury’s verdict and does not
shock the conscience of this court, which presided over the jury
trial. Rather, the overwhelming evidence presented by the
Commonwealth demonstrates [Appellant] went to the tattoo
parlor on West Marshall Street where he knew White hung out,
and killed White by shooting him in vital areas of the body with an
unlicensed firearm. At the time, [Appellant] knew White was the
lone eyewitness against him in a pending aggravated assault case.
As a result of [Appellant] killing White, the charges in that
underlying case remain unresolved. [Appellant] also recklessly
endangered the four others who were standing near White when
[Appellant] fired three bullets at him.
Trial Ct. Op. at 13.
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Upon our review, we detect no abuse of discretion in the trial court’s
ruling denying Appellant’s weight of the evidence challenge. As explained
supra, our review is limited to whether the trial court abused its discretion in
determining the jury’s verdict did not shock the court’s conscience. See
Williams, 255 A.3d at 580. Appellant fails to convince this Court otherwise.
His summary of the evidence focuses solely on testimony which appears to
support his assertion that the identity of the shooter could not be determined
beyond a reasonable doubt. However, he ignores the substantial
circumstantial evidence connecting him to the crime. The jury, as fact finder,
was the sole judge of credibility, and was free to believe all, some or none of
the evidence presented. See id. at 578-79, 580. In its discretion, the jury
credited the circumstantial evidence presented by the Commonwealth which
led to the identification of Appellant as the culprit. See Strafford, 194 A.3d
at 175-76 (“Direct evidence of identity is, of course, not necessary and a
defendant may be convicted solely on circumstantial evidence.”). Neither the
jury’s verdict, nor the trial court’s denial of Appellant’s weight claim, shock’s
the conscience. Thus, Appellant is entitled to no relief.
VI. CONCLUSION
As noted supra, both Appellant and the trial court agree that the
sentence imposed on Appellant’s firearms offense is illegal. See supra n.5.
Accordingly, we vacate the judgment of sentence imposed on Appellant’s
conviction of possession of a firearm without a license, and remand for
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resentencing on that offense. In all other respects, we affirm the judgment
of sentence.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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