Com. v. Scott, K. ( 2023 )

J-S17006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAIJIN XAVIER SCOTT :
:
Appellant : No. 634 WDA 2022
Appeal from the Judgment of Sentence Entered November 22, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004375-2018
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 12, 2023
Kaijin Xavier Scott appeals from the judgment of sentence, entered in
the Court of Common Pleas of Allegheny County, after he was convicted by a
jury of second-degree murder,1 robbery,2 conspiracy to commit robbery,3 and
tampering with/fabricating physical evidence.4 After careful review, we affirm.
Scott was charged as a co-conspirator in the February 22, 2018 shooting
death of Keiauna Davis. Scott’s co-conspirator, Dane Taylor, fatally shot Davis
after struggling with her to steal her purse. Scott drove the get-away car
____________________________________________
1 18 Pa.C.S.A. § 2502(b).
2 Id. at § 3701.
3 Id. at § 903.
4 Id. at § 4910(1).
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after Taylor shot the victim twice. The trial court recounted the underlying
facts of the alleged conspiracy as follows:
[O]n the morning of February 22, 2018, Keiauna Davis was
working at the Dollar General store in Wilkinsburg. This was one
of two jobs held by [] Davis, who was a single mother to two
children under the age of six. During her shift, Ms. Davis’s
grandmother, Linda Wilson, delivered [cash in the amount of]
approximately $3,000[.00] to her, which represented her tax
return. []Davis, who relied on public transportation or family
members to drive her to and from work, was planning to shop for
a car after work that day and to buy party supplies for her
daughter’s upcoming birthday.
Laya Whitley, who only started working at the Dollar General the
day before, became aware of this money and texted Dane Taylor
of the same. The text exchanges were presented through several
exhibits and were read [into the record] by Allegheny County
Police Detective Laurie McKee. On February 22, 2018[,] the
following exchange occurred:
Whitley: “Guess what?” (11:25 a.m.)
Taylor: “Wat.” (11:31 a.m.)
Whitley: "This girl at my job brought 7 bands to work. Ain't
that some shit?" (11:31 a.m.)
Taylor: “It's a go. Delete all dez [sic] texts.” (12:48 p.m.)
Whitley: “They been gone.” (1:26 p.m.)
Taylor: “Ite” (1:27 p.m.)
Each of these messages from Whitley’s phone showed evidence of
having been deleted.
Shortly after Whitely told Taylor about [] Davis’s money, phone
records offered at trial established that [Scott] and Taylor began
communicating. The phone records for [] Whitley, [] Taylor, and
[Scott] revealed the date and time of the communications but not
the content.
These exhibits illustrated that a call was placed by Taylor to
[Scott] on February 22, 2018[,] at 12:01 p.m.[,] lasting one
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minute and nineteen seconds; followed by a call from [Scott] to
Taylor at 12:03 p.m. The records evidenced two more calls from
[Scott] to Taylor at 1:55 p.m. and again at 2:29 p.m. [Scott] and
Taylor also communicated by text message a total of 18 times
between 12:00 p.m. and 2:30 p.m.
Video surveillance from inside the Dollar General showed that []
Davis secured the money in the [m]anager’s office during her
shift, and later retrieved the money along with her personal
belongings at the end of her shift. She then proceeded to the
counter to make some purchases at the register manned by
Whitley. [Scott], who had already picked up [] Taylor, was parked
in the rear lot of the Dollar General. Exterior surveillance footage
then shows [] Davis exit at 2:36 p.m. Thereafter, [Scott] and
Taylor leave the parking lot and drive onto Laketon Avenue. The
events that followed, including [] Davis walking on Laketon
Avenue, up to and including her murder, were captured on a
residential surveillance camera. The entire event, beginning when
[Scott] parked the vehicle until he drove away from the scene,
was less than one minute.
[Scott] and Taylor knew who [] Davis was based on the physical
description provided by [] Whitley. Therefore, once they located
her walking on Laketon Avenue, [Scott] drove past her, and
parked the car along the sidewalk. [Scott] then exited the car and
bent down near the rear driver’s side tire. As [] Davis walked
alongside the passenger side of the vehicle, Taylor open[ed] the
front passenger door and jump[ed] out of the car. [] Davis
immediately r[an] and [wa]s chased by Taylor into an abandoned
lot where she physically struggle[d] with him over her purse. At
this time, [] Davis is on the ground with Taylor standing over her,
and [Scott] is standing in the street beside the vehicle. After
several seconds of wrestling over the purse to no avail, Taylor
sho[t] at [] Davis two times. The first shot missed, and the second
shot struck her in the right hip, later resulting in her death. At the
time of the shooting, [Scott] quickly moved to the front of the
vehicle and then seconds later he walked back to the driver’s door
and reentered the car.
Surveillance continued to capture the events which showed Taylor
take the purse from a now[-]injured [] Davis. Taylor can be seen
running back to the car at which time he tossed the purse inside
through the open passenger door to [Scott], who [wa]s now
seated in the driver’s seat. Taylor then returned to the location
of [] Davis to retrieve an item which was later determined to be
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his phone. As Taylor entered the passenger door, the purse [wa]s
thrown out of the open door by [Scott] and [wa]s caught on a
nearby tree, where it was later retrieved by police. [Scott]
immediately drove away from the scene with Taylor as [] Davis
continued to struggle on the ground, having been critically
wounded by the gunshot. The surveillance footage recorded []
Davis’s last living moments as she crawled to the sidewalk and
attempted to wave at passing cars for help. Eventually, a
passerby stopped and called for help as evidenced by the response
of both police and EMS at the scene. [] Davis was transported to
a local hospital[,] where she was pronounced dead at 3:39 p.m.
on February 22, 2018.
At trial[,] the Commonwealth presented testimony from Dr. Todd
Luckasevic, a forensic pathologist with the Allegheny County
Office of the Medical Examiner. He testified that [] Davis, a 27-
year-old African American female, died from a gunshot wound to
her pelvis. D[octor] Luckasevic stated that the bullet entered
through the outside of her right thigh. He described it as a contact
wound, directing the jury to the photographic evidence which
showed soot on her skin, as well as a muzzle imprint abrasion,
and an abrasion consistent with the recoil spring of a firearm. He
explained to the jury that the bullet took a trajectory from right
to left and back to front, severing two major arteries and
fracturing her hip bone before exiting out her inner thigh.
Following the homicide, [Scott] and Taylor were captured on video
arriving at 2215 Wilner Drive, the residence of [] Whitley.
The next day, on February 23, 2018, the vehicle operated by
[Scott] was recovered in Penn Hills. This same day, police made
contact with [Scott] at his residence in Turtle Creek and he
indicated he wished to talk with Allegheny County detectives who
were investigating the homicide of [] Davis. County detectives
responded to [Scott’s] residence, and he voluntarily accompanied
the detectives to Allegheny County police headquarters for an
interview. The nine-hour interview was recorded and played for
the jury.
During the course of the interview[, Scott’s] statements as to the
events of February 22, 2018[,] changed multiple times. Initially,
he told police that he gave a jitney ride to an unknown person.
Then [Scott] stated that during the drive to the Dollar General in
Wilkinsburg, he learned that this individual knew both [Scott’s]
brother and mother and went by the name “D Low.” [Scott] stated
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that after arriving at the location, “D Low” robbed him at gunpoint,
and continued to keep him at gunpoint as he threatened to hurt
[Scott’s] mother if [Scott] didn’t do what he said. [Scott] told
detectives that it was out of fear for his life and his mother’s, that
he complied with the step-by-step instructions given by “D Low”
regarding where to drive and what to do. [Scott] stated that “D
Low” directed him to drive past [] Davis who was walking on the
sidewalk, and then park along the street ahead of her. [Scott]
was then ordered out of the car by Taylor and told to pretend that
he was having car trouble. As [] Davis walked by the passenger
door, “D Low” got out of the car and began to struggle with Ms.
Davis over her purse. During the struggle, [Scott] heard two
gunshots. The first did not strike [] Davis but the second one did.
“D Low” then removed the purse from [] Davis, ran back to the
car, threw the purse inside, and ordered [Scott] to “get it,” which
[Scott] assumed meant money. At “D Low’s” instruction, [Scott]
then threw the purse out of the vehicle and drove away with “D
Low” in the car. Still under “D Low’s” direction, [Scott] drove a
few blocks away where he then dropped off “D Low.” Prior to
exiting the vehicle, "D Low" made another threat against [Scott’s]
mother. From there, [Scott] re-counted that he drove to his
residence in Turtle Creek and then downtown to get his phone
fixed.
[Scott’s] story then shifted as to how he initially encountered “D
Low,” who he still maintained he did not know. He now explained
that he was looking to buy marijuana when he came across “D
Low” and that their interaction then turned into a jitney ride. He
maintained[,] however[,] that his actions once they got to the
Dollar General were all forced under gunpoint.
Several hours into the interview police began talking about []
Whitley, prompting another revision by [Scott] as to the events of
February 22, 2018. He now admitted that the person he drove to
the Dollar General was not a stranger, or a person known as “D
Low,” but a man named “H.D.” He also divulged he knew the
purpose of the trip to the Dollar General was to allow “H.D.” to get
money, and disclosed that a girl inside the store told “H.D” that a
female co-worker with red hair had $7,000. [Scott] also admitted
that he had contact with “H.D.” after the shooting. Specifically,
that he picked up “H.D.” that night and took him to Whitley’s
residence in the East Hills section of Pittsburgh and messaged with
“H.D.” through Facebook.
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A forensic download of [Scott’s] phone confirmed these Facebook
messages[,] which occurred from 7:23 p.m. on February 22,
2018[,] through 1:13 p.m. on February 23, 2018. Throughout the
messaging[, Scott] and Taylor refer to each other as “bro,”
“"homie,” “dude[,]” and “cuhs,” which [i]s known [to be] short for
[“]cousin.[”] The initial message came from [Scott] asking Taylor
what he was doing. The two messaged about someone who died
in Wilkinsburg, referencing a single mom. [Scott] also stated
that[] “she was cute” and “lmao” which stands for “laughing my
ass off.” Taylor responded that [Scott] is disgusting and “lol”
which stands for “laughing out loud.” Taylor messaged [Scott]
that he heard that the [police] had the car color but not the plate
and [Scott] referenced that the story was on the news. The two
continued to talk about football and splitting a jitney to go out that
night. The messages ceased around 10:21 p.m. on February 22,
2018[,] and resumed in the early morning hours of February 23,
2018, when Taylor messaged [Scott] that he, “[p]assed out and
woke up early.” They then engaged in talks about what they were
doing that morning. At 10:40 a.m., [Scott] messaged Taylor that
the police were at his house [and told] Taylor that he had been
robbed the night before and was scared. The records revealed
that Taylor continued to message [Scott] between 11:21 a.m.
until 1:13 p.m., with no response from [Scott].
At this time and day, 1:13 p.m. on February 23, 2018, [Scott]
was at Allegheny County headquarters[,] where his recitation of
the events of February 22, 2018[,] continued to evolve. Police
asked [Scott] if he received any money from the robbery and he
pointedly denied that he had. However, this statement quickly
changed. First, he disclosed that he was offered money but
refused it. Shortly thereafter, he admitted that there was $700-
$800 in a bag located in a bedroom closet, however it was H.D.’s
money that [Scott] was instructed to keep at his house and not
touch.
During the interview [Scott] agreed to give police his cell phone
and his password to allow for a forensic download. From this
download, a string of text messages w[as] discovered between
[Scott] and Whitley that occurred after the murder on February
22, 2018[,] between 6:06 p.m. and 6:13 p.m.
[Scott]: “It's Rod Drey.” “How are you doing?” (6:06 p.m.)
Whitley: “Lol. I am ite. Where you from?” (6:11 p.m.)
[Scott]: “Homewood. Where you from?” (6:12 p.m.)
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Whitley: “I’m from the hill G block to be exact. Lol. And I
say show b-c that my second hood.” (6:12 p.m.)
[Scott]: “Lol. I see. WYM. (Known as “what you mean”)
That is cool doe. How old are you?” (6:12 p.m.)
During the investigation police returned to [Scott’s] residence in
Turtle Creek[,] where they encountered his girlfriend[,] India
McDonald. [] McDonald lived with [Scott] and provided police with
consent to search the residence. During the search, police seized
two cell phones that were subsequently submitted for a forensic
download. Afterward, detectives transported [] McDonald to her
parents’ residence in Wilkinsburg. During the ride [] McDonald
advised them that she had money she wanted to turn over to the
police. [] McDonald then entered her parents’ residence and
returned to the detective’s vehicle with $669. She explained that
she was giving it to them because she received it from [Scott],
who told her it was proceeds from a robbery that had been
committed the night before.
At trial, [Scott] testified on his own behalf. He stated that he
accepted a Facebook request from [] Taylor for a jitney ride,
explaining that he knew of him peripherally because Taylor was
friends with Scott’s brother and that his nickname was H.D. He
described exchanging multiple phone calls and text messages with
Taylor prior to picking him up on Ray Street in Wilkinsburg. After
picking him up, Taylor told him to drive to the Dollar General store
and to back into a parking spot in the back lot. [Scott] then left
the car to urinate outside an abandoned building while Taylor
remained inside the vehicle. When [Scott] returned to the car,
Taylor was now wearing a face mask and had a gun out and
ordered [Scott] to shut the door. According to [Scott], Taylor told
him that he needed this money and that [Scott] was going to do
what he said. Although [Scott] described that Taylor was aiming
the gun in his direction, he denied that he was being held at
gunpoint. Despite telling the jury he was not under threat, [Scott]
testified he did what Taylor wanted and repeatedly asked him not
to shoot him.
[Scott] testified that he exited the parking lot. At this time[,]
Taylor instructed him to drive past the female with red hair and
park along the street. [There]after, [Scott] was ordered out of
the car and instructed to act like he was fixing something on the
car. According to [Scott], Taylor threatened to shoot [Scott] if he
tried to run away. [Scott] felt like his life was in danger and told
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the jury he did as he was instructed. Consistent with the video
evidence, [Scott] described that Taylor jumped out of the car as
[] Davis walked by and immediately began to tussle with her over
her purse. [Scott] then heard one gunshot and started to run
towards the victim when a second gunshot stopped him in his
tracks. [Scott] got back into the car at Taylor's instruction. Taylor
then threw the purse at him and ordered him to take out the
money. [Scott] removed the money and then threw the purse
out the window.[5] [Scott] explained that Taylor still had the gun
out when he told [Scott] to drive away, further instructing him to
drive to [Scott’s] house. Once inside the house, Taylor, who was
still holding the gun, ordered [Scott] to hide some of the money
upstairs. [Scott] told the jury that Taylor followed him upstairs
and watched him hide the money in a closet. Taylor then told
[Scott] where to drop him off and threatened to “off” him and his
brother if he called the police. [Scott] explained that it was fear
for himself and his family that kept him from calling 911 or the
police. He described how he then drove around for a bit when he
remembered that he needed to go downtown and pick up his
phone. Thereafter[, Scott] received a call from Taylor demanding
that [Scott] come pick him up. [Scott] complied and drove Taylor
to the East Hills residence of [] Whitley. [Scott] maintained that
he had never met Whitely prior to this. He said that they
exchanged telephone numbers because he wanted to make sure
he had Whitley’s phone number so if he talked to the police he
could give them her information. He further explained that he
messaged with Taylor after the shooting, as part of a plan he and
his wife concocted in an effort to get Taylor to his house so they
could call the police.
[Scott] admitted on cross[-]examination that he was not truthful
with the detectives during his interview when he denied knowing
[] Taylor, however, he continued to deny any advanced knowledge
that Taylor was going to rob [] Davis.
____________________________________________
5 Video footage shows Scott throw the victim’s purse out of the open
passenger-side door and into a nearby tree. The court found that Scott’s
actions supported the jury’s verdict that Scott discarded the victim’s purse
with the intent to prevent its accessibility for any future investigation,
resulting in Scott’s conviction for tampering with evidence. Critically, Scott
testified at trial that he threw the victim’s purse to get rid of it because he was
concerned it may have had his DNA and/or fingerprints on it. N.T. Jury Trial,
8/26/21, at 409-10.
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[Scott] also offered three character witnesses[,] who testified that
[Scott] had a good reputation for peacefulness and non-violence
in the community.
Trial Court Opinion, 10/4/22, at 3-13.
After a five-day jury trial held in August 2021, Scott was found guilty of
the above-stated offenses. On November 22, 2021, the court sentenced Scott
to a mandatory sentence of life imprisonment for murder, 6-12 years of
imprisonment for robbery, and 6½ -13 years of imprisonment for conspiracy.6
The court ran the sentences consecutively, for an aggregate sentence of life,
plus 12½ -25 years’ imprisonment. Scott filed a timely post-sentence motion
and an amended nunc pro tunc7 post-sentence motion challenging the
sufficiency and weight of the evidence. On April 25, 2022, the trial court
denied the motion.
Scott filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. He raises the following
issues for our consideration:
(1) Did the trial court abuse its discretion in excluding
statements made by [] Taylor that he forced Scott to
participate in the robbery of the victim where those
statements implicated Taylor in the crimes against the
victim and crimes against Scott, and where they [were]
made under circumstances clearly corroborating their
trustworthiness and, thus, were admissible statements
against interest pursuant to Pa.R.E. 804(b)(3)?
____________________________________________
6 No further penalty was imposed on the tampering conviction.
7 Scott requested, and the trial court granted him, leave to file an
amended/supplemental post-sentence motion nunc pro tunc. See Order,
1/4/22.
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(2) Was the evidence at trial insufficient to support Scott’s
convictions for second-degree murder, robbery, and
conspiracy to commit robbery because the evidence was in
equipoise as to whether [it] required speculation to conclude
that Scott intended to rob, aided the robbery of, or agreed
to rob [] the victim, as opposed to being Taylor’s unwitting
and subsequently threat-compelled pawn?
Appellant’s Brief, at 4.
In his first issue, Scott contends that the trial court erred in not
admitting evidence of statements that Taylor made to a fellow inmate, David
Tyus, that would have been admissible as a statement against Taylor’s penal
interest. See Pa.R.E. 804(b)(3).
Under the rules of evidence,
Statement Against Interest — A statement which was at the
time of its making so far contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to subject the declaration to
civil or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the
declarant’s position would not have made the statement unless
believing it to be true. In a criminal case, a statement tending
to expose the declarant to criminal liability is not
admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Pa.R.E. 804(b)(3) (emphasis added). See also Commonwealth v. Bracero,
528 A.2d 936, 941 (Pa. 1987) (plurality opinion) (holding “declarations against
penal interest are admissible as an exception to the hearsay rule only when
there are circumstances that provide clear assurance that such declarations
are trustworthy and reliable”).
Instantly, Tyus testified that in 2018 he was cellmates in the Allegheny
County Jail with Taylor, whom he referred to as “Gusto.” Tyus testified that
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Taylor wrote down what occurred during the instant robbery and shooting,
indicating that Scott had no intent to rob the victim. Taylor asked Tyus to
give Scott this note, but Tyus explained that he did not know Scott at the time
Taylor relayed this information to him. Tyus later changed cells in jail and
was placed near Scott but never gave him the note, having thrown it away
several months before he relocated cells.
Tyus also testified that, at some point later in time, Taylor authored and
gave to Tyus a second note, which Tyus did give to Scott. That second note
also indicated that Scott did not intend to rob the victim. The defense,
however, was unable to produce this second note at the evidentiary hearing.
See N.T. Hearing, 8/26/21, at 500 (“[T]hat note is unavailable, Your Honor.”).
Tyus, however, claimed he wrote a four-page letter detailing what Taylor had
told him in August of 2018 and mailed it to Scott’s mother. Scott sought to
have Tyus testify to the substance of what was in the letter— that, in fact,
Taylor told him that he was solely responsible for robbing and killing the
victim, and that Scott was unaware of the robbery plan.
In August 2021, the trial court held a hearing, outside the presence of
the jury, on Scott’s request to admit Tyus’ four-page letter from August 2018
and to have Tyus testify regarding conversations he had with Taylor in jail.
Taylor invoked his Fifth Amendment privilege and was deemed unavailable.
See Pa.R.E. 804(b)(3). Ultimately, the court excluded the proposed testimony
on the basis that it did not deem the statements trustworthy or reliable due
to the circumstances under which they were made. Commonwealth v.
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Colon, 846 A.2d 747 (Pa. Super. 2004). Specifically, the court determined
that “there are no assurances of reliability to the jailhouse statement Dane
Taylor made to fellow inmate David Tyus” where:
• There is no corroborative evidence to establish reliability of statement;
• Both alleged notes Taylor wrote were no longer available;
• Statements were made while Taylor was incarcerated and not
spontaneously after robbery and homicide;
• There is nothing self-incriminatory about statements; and
• Statements would have been uncorroborated hearsay as Taylor not
subject to examination under oath about any claim that Scott did not
participate in robbery.
Trial Court Opinion, 10/4/22, at 22.
In Commonwealth v. Robins, 812 A.2d 514 (Pa. 2002), our Supreme
Court noted “that in every circumstance where the admission of testimony
pursuant to this [hearsay] exception is considered, corroboration independent
of the statement itself is necessary.” Id. at 525. With regard to factors that
may be helpful in determining whether a statement is independently
corroborated, the Robins Court reiterated:
[C]ourts have evaluated: the circumstances under which the
statements were uttered, including the custodial/non-custodial
aspect of the setting and the identity of the listener; the contents
of the statement, including whether the statements minimize the
responsibility of the declarant or spread or shift the blame; other
possible motivations of the declarant, including improper motive
such as to lie, curry favor, or distort the truth; the nature and
degree of the “against interest” aspect of the statements,
including the extent to which the declarant apprehends that the
making of the statement is likely to actually subject him to
criminal liability; the circumstances or events that prompted the
statements, including whether they were made with the
encouragement or at the request of a listener; the timing of the
statement in relation to events described; the declarant’s
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relationship to the defendant; and any other factors bearing upon
the reliability of the statement at issue.
Id. at 526-27.
We agree with the trial court that the evidence is inadmissible due to its
lack of independent corroboration where Taylor’s notes were unavailable or
had been thrown away, see N.T. Hearing, 8/26/21, at 500, no one witnessed
Tyus write or send his four-page letter to Scott’s mother, id. at 503; the
defense had no proof that Tyus ever mailed the letter to Scott’s mother, id.;
the information in Tyus’ letter and Taylor’s statements were “100 percent []
opposite to all of the testimony that [was] present[ed] during the course of
the trial,” id. at 505-06; and the information does not inculpate Taylor. Id.
at 506.8 Bracero, supra.
In his next issue, Scott contends the evidence was insufficient to prove
that he was guilty of second-degree murder, robbery, and conspiracy to
commit robbery.9 Specifically, Scott asserts that the evidence presented at
trial to prove that he “was an intentional participant in the plot [to rob the
____________________________________________
8 We note that the court also found the evidence inadmissible on the grounds
that a declarant’s exculpatory statement with regard to an accomplice is not
considered a statement against interest. Commonwealth v. Colon, 337
A.2d 554, 558 (Pa. 1975).
9 Scott has abandoned any claim as to the sufficiency or weight of the evidence
with regard to his tampering with evidence conviction as he has failed to argue
it in his appellate brief. See Pa.R.A.P. 2119(a), (b) (requiring properly
developed argument for each question presented including a discussion of and
citation to authorities in appellate brief); Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to Rules
of Appellate Procedure results in waiver of the underlying issue).
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victim], rather than an unwitting and, later, threat-compelled pawn,”
Appellant’s Brief, at 13, was speculative at best. “In short, the
Commonwealth’s failure to provide any evidence about how Scott came to
participate in the robbery leaves a hole in its case as to whether he intended
to do so, or, rather, was Taylor’s threat[-]compelled instrument.” Id. at 31.
We disagree.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
After reviewing the parties’ briefs, the relevant case law, and the
evidence of record, we rely upon the well-written opinion, authored by the
Honorable Bruce R. Beemer, to dispose of Scott’s sufficiency of the evidence
claims on appeal. See Trial Court Opinion, 10/4/22, at 22-34. The evidence
established, beyond a reasonable doubt, the elements for second-degree
murder, robbery, and conspiracy. We instruct the parties to attach a copy of
Judge Beemer’s decision in the event of further proceedings in the matter.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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Circulated 05/25/2023 10:35 AM
Allegheny County - Department of Court Records
Criminal Division - Filings Information
County caseID:CP-02-CR-0004375-2018(Opinion)
Case Description: COMMONWEALTH OF PENNSYLVANIA v. LNAME SCOTT
Official Docket Entry, Sort By Document Number Ascending
Document Title/Entry Filing Date
Number
1 OPINION 10/04/2022
(Index Page-1)
1-OPINION
COMMON PLEAS
IN THE COURT OF COMMON PLEAS OF
OF ALLEGHENY
ALLEGHENY COUNTY,
COUNTY, PENNSYLVANIA
PENNSYLVANIA
CRIMINAL DIVISION
CRIMINAL DIVISION
COMMONWEALTH OF
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA CP-02-CR-0004375-2018
CP-02-CR-0004375-2018
634 WDA
634 WDA2022
2022
vv..
KAIJIN XAVIER
KAIJIN XAVIER SCOTT
SCOTT
Appellant,
Appellant,
OPINION
OPINION
JUDGE BRUCE R.
JUDGE BRUCE R. BEEMER
BEEMER
served by
Copiesserved
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Michael
Michael W.W.Streily,
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Pittsburgh, PA 15219
111V
0 JO
1103 AO 1d30
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
COMMONWEAL TH OF PENNSYLVANIA CP-02-CR-0004375-2018
634 WDA 2022
WDA2022
vv..
KAIJIN XAVIER SCOTT
Appellant,
OPINION
BRUCE R. BEEMER, J.
Appellant, Kaijin Scott, appeals from the judgment of sentence order imposed after a jury
trial wherein he was found guilty of Murder of the Second Degree, 18
18 Pa.C.S. § 2502(B);
Robbery, 18
18 Pa.C.S. § 3701; Conspiracy (Robbery), 18
18 Pa.C.S. § 903; and Tampering with or
Fabricating Physical Evidence, 18
18 Pa.C.S. § 4910(1).
The trial commenced on August 23, 2021. After a five-day trial, Appellant was
2021 of the charges referenced above. On November 22, 2021, the
convicted on August 27, 2021
1, Murder of the Second Degree; 6-12 years
Court imposed a mandatory life sentence at Count 1,
Robbery;1 and at Count 3, Conspiracy (Robbery), a sentence of 6 Y2
of incarceration at Count 2, Robbery;1 ½-
13 years of incarceration. The Court ran each count consecutively for an aggregate sentence of
13
12 'A
life in prison plus 12 ½ - 25 years.
1
The sentence imposed at Count 2 Robbery was vacated during the post sentence motion hearing held on April 22,
l. Amended Order of Sentence, April 22, 2022.
2022, as it merged with Count 1.
2
On December 2, 2022, Appellant filed a timely Post Sentence Motion with a request to
·.
supplement. Upon receiving a time extension, an Amended Post Sentence Motion was filed on
March 3, 2022 challenging both the sufficiency and the weight of the evidence. The motion was
2022.2 A timely Notice of Appeal was filed on May 25, 2022, followed by a
denied on April 25, 2022.2
Concise Statement of Matters Complained of on Appeal (hereinafter Statement) on June 21,
2022. This Opinion follows.
FACTUAL BACKGROUND
The majority of evidence adduced at trial was uncontested by Appellant, including that he
was present at the time co-conspirator Dane Taylor3
Taylor' shot and killed Keiauna Davis on February
2018.4 Appellant's dispute with the Commonwealth's case centered around the reasons and
22, 2018.4
circumstances for his actions.
The Commonwealth presented evidence regarding the events leading up to Davis's death
through various witnesses. Collectively, of February 22, 2018,
Collectively, they testified that on the morning of
Keiauna Davis was working at
at the Dollar General store
store in Wilkinsburg. This was one of
of two
jobs held by Ms. Davis, who was aa single
single mother to two children under the age of
of six.5
six.' During
shift, Ms.
her shift, Ms. Davis's grandmother, Linda Wilson, delivered approximately $3,000
$3,000 to her, which
2
2 The April
The 25, 2022
April 25, 2022 order
order was
was timely inasmuch as
timely inasmuch as the
the Court
Court granted
granted Appellant's March 8,
Appellant's March 8, 2022
2022 Motion
Motion forfor
Extension of
Extension ofTime
Time toto rule
rule on
on the
the Amended
Amended PostPost Sentence
Sentence Motion.
Motion.
3 Dane Taylor was in connection
connection withwith the
the death
death ofofKeiauna Davis atat CP-02-CR-0004793-2018.
CP-02-CR-0004793-2018. On On July 16,
16,
3 Dane charged in
Taylor was charged Keiauna Davis
2019, Dane
2019, Dane Taylor entered aa guilty
Taylor entered guilty plea to Murder
plea to Murder of of the
the Third
Third Degree,
Degree, 18
18 Pa.C.S.
Pa.C.S. §2502(c);
§2502(c); Robbery,
Robbery, 18 18 Pa.C.S.
Pa.C.S.
$3701(a)(1)(); Conspiracy
§3701(a)(1)(i); Conspiracy (Robbery),
(Robbery), 18 18 Pa.C.S.
Pa.C.S. §903;
§903; and
and Violations
Violations of
of the
the Uniform
Uniform Firearms
Firearms Act
Act (VUFA),
(VUFA), 18 18
Pa.C.S. §6106.
Pa.C.S. §6106. He He was
was sentenced
sentenced in in accordance
accordance withwith aa negotiated agreement to
negotiated agreement to aa period
period of
of30-60 years of
30-60 years of
incarceration. A
incarceration. A post sentence motion
post sentence motion waswas filed
filed and
and subsequently denied by
subsequently denied by operation
operation ofof law
law on
on July
July 28,
28, 2020.
2020. OnOn
November 10,
November 10, 2020
2020 Taylor filed aa PCRA
Taylor filed PCRA petition. After an
petition. After an evidentiary
evidentiary hearing
hearing held
held on
on November
November 22, 22, 2021,
2021, the
the
Court issued
Court issued an
an order
order denying the PCRA
denying the PCRA petition on February
petition on February 17,17, 2022.
2022. No
No direct
direct appeal
appeal was
was filed.
filed.
4
Trial Transcript,
Jury Trial
Jury (J.T.) August
Transcript, (J.T.) August 23,23, 2021
2021 —-August
August 27,27, 2021,
2021, 57-64,
57-64, 96-97,
96-97, 548,548,563.
563.
5
J.T. at
5 J.T. at 69.
69.
33
retum.6 Ms. Davis, who relied on public transportation or family members to
represented her tax return.6
drive her to and from work, was planning to shop for a car after work that day and to buy party
birthday.7
supplies for her daughter's upcoming birthday.7
Whitley8, who only started working at the Dollar General the day before, became
Laya Whitley8,
same.9 The text exchanges were presented
aware of this money and texted Dane Taylor of the same.9
through several exhibits and were read by Allegheny County Police Detective Laurie McKee1.1°
McKeel."
On February 22, 2018 the following exchange occurred:
Whitley: "Guess what?" (11:25
(11 :25 a.m.)
Taylor: "Wat." (11:31
(11:31 a.m.)
Whitley: "This girl at my job brought 7 bands to work. Ain't that some shit?" (11:31
(11 :31 a.m.)
Taylor: "It's a go. Delete all dez texts." (12:48 p.m.)
Whitley: "They been gone." (1:26
( 1 :26 p.m.)
Taylor "Ite" (1:27
(1 :27 p.m.)
Each of these messages from Whitley's phone showed evidence of having been deleted."
deleted.'
Shortly after Whitely told Taylor about Ms. Davis's money, phone records offered at trial
established that Appellant and Taylor began communicating.12
communicating.' The phone records for Laya
6
6 J.T. at 68, 70-72, 82.
7
J.T. at 69-73, 82.
8
8 Laya Whitley was charged in connection with the death of Keiauna Davis at CP-02-CR-0004374-2018. On July
ofKeiauna
18 Pa.C.S. §2502(c); Robbery, 18
16, 2019, Whitley entered a guilty plea to Murder of the Third Degree, 18
16, 18 Pa.C.S.
§370l(a)(l)(i); Conspiracy (Robbery), 18
§3701(a)(1)(i); 18 Pa.C.S. §903; Criminal use of Communication Facility, 18
18 Pa.C.S.
$7512(a) and Tampering with evidence, 18
§7512(a) 18 Pa.C.S. §4910 (1). She was sentenced in accordance with a negotiated
agreement to a period of 20-50 years of incarceration. No post sentence motion or direct appeal were filed. On
March 25, 2020 Whitley filed a PCRA petition. The denial of her PCRA petition was appealed and affirmed by the
Pennsylvania Superior Court. Commonwealth v. 1051 (Pa. Super. 2022); 850 WDA 2021. A
• Whitley, 273 A.3d 1051Petition for Allowance of Appeal was denied on July 5, 2022; 9191 WAL 2022.
99 J.T. at 79.
I0JT.
J.T. at 266- 272; Commonwealth Exhibit 41, 42, 45-51.
11 J.T. at 270-272.
''J.T.
J.T. at 313-316; Commonwealth Exhibit 60.
12J.T.
4
Whitley, Dane Taylor, and Appellant, revealed the date and time of the communications
communications but
but not
not
the content.'3
content.'
on February
Appellant on
These exhibits illustrated that a call was placed by Taylor to Appellant 22,
February 22,
at 12:01
2018 at 12:01 p.m. lasting one minute and
and nineteen seconds;
seconds; followed by aa call
call from
from Appellant
Appellant
at 12:03
to Taylor at 12:03 p.m. The records evidenced two more calls from Appellant to
to Taylor at
at 1:55
1 :55
and again
p.m. and again at
at 2:29
2:29 p.m. Appellant
Appellant and
and Taylor
Taylor also
also communicated
communicated by text
text message
message aa total
total of
of
18 times between 12:00
18 12:00 p.m. and 2:30 p.m.14
and 2:30 p.m.14
Video surveillance
Video surveillance from
from inside
inside the
the Dollar
Dollar General
General showed
showed that
that Ms.
Ms. Davis
Davis secured
secured the
the
money in
money in the
the Manager's
Manager's office
office during her shift,
during her shift, and
and later
later retrieved
retrieved the
the money
money along with her
along with her
personal belongings
personal belongings at
at the
the end
end of
ofher shift.15 She
her shift.15 She then
then proceeded to the
proceeded to the counter
counter to
to make
make some
some
purchases at
purchases at the
the register
register manned
manned by Whitley.' Appellant,
by Whitley.16 who had
Appellant, who had already
already picked
picked up Dane
up Dane
Taylor, was
Taylor, was parked
parked in
in the
the rear
rear lot
lot of
ofthe
the Dollar
Dollar General.
General. Exterior
Exterior surveillance
surveillance footage then
footage then
shows Keiauna
shows Keiauna Davis
Davis exit
exit at
at 2:36 p.m.17 Thereafter,
2:36 p.m.17 Thereafter, Appellant and Taylor
Appellant and leave the
Taylor leave the parking lot
parking lot
and drive
and drive onto
onto Laketon
Laketon Avenue.
A venue. The
The events
events that
that followed,
followed, including
including Ms.
Ms. Davis
Davis walking on
walking on
Laketon Avenue,
Laketon Avenue, up
up to
to and
and including her murder,
including her murder, were
were captured
captured on
on aa residential
residential surveillance
surveillance
camera.' The
camera.18 The entire
entire event,
event, beginning when Appellant
beginning when Appellant parked the vehicle
parked the vehicle until
until he
he drove
drove away
away
from the
from the scene,
scene, was
was less
less than one minute.'9
than one minute.19
and Taylor
Appellant and
Appellant knew who
Taylor knew who Keiauna
Keiauna Davis
Davis was
was based
based on
on the
the physical
physical description
description
provided by
provided by Laya
Laya Whitley. Therefore, once
Whitley. Therefore, once they
they located
located her
her walking
walking on
on Laketon
Laketon Avenue,
A venue,
drove past
Appellant drove
Appellant her, and
past her, and parked the car
parked the car along
along the
the sidewalk.
sidewalk. Appellant
Appellant then
then exited
exited the
the car
car
J.T
13J.T atat312-314;
312-314; Commonwealth
CommonwealthExhibits
Exhibits57-60.
57-60.
J.T.
14 318-322.
J.T. atat318-322.
J,T. atat82,
15ISJ.T. 82,90-92;
90-92; Commonwealth
Commonwealth Exhibit
Exhibit1.1.
JT. atat91-92.
16I6J.T. 91-92.
17J,T.
J.T. atat91.
91.
J.T. atat144-148;
18I8JT. 144-148;Commonwealth
CommonwealthExhibit
Exhibit22(audio
(audionot
notavailable).
available).
"9 CommonwealthExhibit
'Commonwealth Exhibit2,2,(Time
(TimeStamp
Stamp(T.S.)
(T.S.)6:41-7:36).
6:41-7:36).
55
and bent down near the rear driver's side tire. As Ms. Davis walked alongside the passenger side
of the vehicle, Taylor opens the front passenger door and jumps out of the car. Ms. Davis
immediately runs and is chased by Taylor into an abandoned lot where she physically struggles
with him over her purse. At this time, Ms. Davis is on the ground with Taylor standing over her,
and Appellant is standing in the street beside the vehicle. After several seconds of wrestling over
the purse to no avail, Taylor shoots at Ms. Davis two times. The first shot missed, and the
second shot struck her in the right hip, later resulting in her death. At the time of the shooting,
Appellant quickly moved to the front of the vehicle and then seconds later he walked back to the
driver's door and reentered the car.
Surveillance continued to capture the events which showed Taylor take the purse from a
now injured Keiauna Davis. Taylor can be seen running back to the car at which time he tossed
the purse inside through the open passenger door to Appellant, who is now seated in the driver's
seat. Taylor then returned to the location of Ms. Davis to retrieve an item which was later
determined to be his phone. As Taylor entered the passenger door, the purse is thrown out of the
police.?
open door by Appellant and is caught on a nearby tree, where it was later retrieved by police.20
Appellant immediately drove away from the scene with Taylor as Ms. Davis continued to
struggle on the ground, having been critically wounded by the gunshot. The surveillance footage
recorded Ms. Davis's last living moments as she crawled to the sidewalk and attempted to wave
at passing cars for help. Eventually, a passerby stopped and called for help as evidenced by the
response of both police and EMS at the scene. Ms. Davis was transported to a local hospital
2018.21
where she was pronounced dead at 3:39 p.m. on February 22, 2018.21
20 J.T. at 171; 18 and 19.
171; Commonwealth Exhibit 18 19.
2!J.T.
21 J.T. at 151.
151.
6
Luckasevic, aa forensic
At trial the Commonwealth presented testimony from Dr. Todd Luckasevic, forensic
He testified
pathologist with the Allegheny County Office of the Medical Examiner. He testified that
that
wound to
Keiauna Davis, a 27-year-old African American female, died from a gunshot wound to her
her
pelvis.22 Dr. Luckasevic stated
pelvis.22 stated that the bullet entered through the outside of
of her
her right thigh. He
thigh. He
as aa contact wound, directing the jury to the photographic evidence which
described it as which showed
showed
soot on
soot on her skin,
skin, as
as well
well as
as aa muzzle imprint abrasion, and
imprint abrasion, and an
an abrasion
abrasion consistent
consistent with
with the
the recoil
recoil
spring of
spring firearm.23 He
of aa firearm.23 He explained to the
explained to the jury that
that the
the bullet took
took aa trajectory from right to
trajectory from to left
left
and back
and back to
to front,
front, severing
severing two major arteries and
major arteries and fracturing her hip bone before exiting
fracturing her out her
exiting out her
inner thigh.24
inner thigh.?"
Following the
Following the homicide,
homicide, Appellant and Taylor
Appellant and Taylor were
were captured
captured on
on video
video arriving
arriving at
at 2215
2215
Wilner Drive,
Wilner Drive, the
the residence
residence of
ofLaya Whitley.25
Laya Whitley.25
The next
The next day,
day, on
on February 23, 2018,
February 23, 2018, the
the vehicle
vehicle operated
operated by
by Appellant was recovered
Appellant was recovered in
in
Penn Hills.
Penn Hills. This
This same
same day,
day, police made contact
police made contact with
with Appellant at his
Appellant at his residence
residence in
in Turtle
Turtle Creek
Creek
and he
and he indicated
indicated he
he wished
wished to
to talk
talk with
with Allegheny
Allegheny County detectives who
County detectives who were
were investigating the
investigating the
homicide of
homicide ofMs. Davis.26 County
Ms. Davis.26 detectives responded
County detectives to Appellant's
responded to residence, and
Appellant's residence, and he
he
voluntarily accompanied
voluntarily accompanied the
the detectives
detectives to
to Allegheny County police
Allegheny County headquarters for
police headquarters for an
an
interview.27 The
interview.27 The nine-hour
nine-hour interview
interview was
was recorded
recorded and
and played
played for
for the jury.28
the jury.28
the course
During the
During course of
ofthe
the interview
interview Appellant's
Appellant's statements
statements as
as to
to the
the events
events of
ofFebruary
February 22,
22,
2018 changed
2018 times. Initially,
multiple times.
changed multiple he told
Initially, he told police that he
police that he gave
gave aajitney
jitney ride
ride to
to an
an unknown
unknown
J.T.
J.T. atat232-234.
22 232-234.
JT. atat227-229;
2 J.T.
23 227-229; Commonwealth
Commonwealth Exhibit
Exhibit31
31 and
and32.
32.
24J.T.
24J.T. atat229-234;
229-234; Commonwealth
Commonwealth Exhibit
Exhibit33
33 and
and34.
34.
CommonwealthExhibit
25Commonwealth
25 Exhibit38.
38.
J.T. atat178,
26J.T.
26 178,197.
197.
J,T. atat179-180.
27J.T.
27 179-180.
JT. atat184-190,
28J.T.
28 184-190,199;
199;Commonwealth
CommonwealthExhibit
Exhibit27
27 and
and28.
28. By agreementthe
Byagreement thevideo
videowas
wasredacted
redactedto
toremove
removethe
the
arrestof
arrest ofAppellant andportions
Appellantand ofthe
portionsof theinterview
interviewwhen
whenpolice werenot
policewere notpresent.
present.
77
stated that during the drive
person. Then Appellant stated drive to
to the
the Dollar
Dollar General
General in
in Wilkinsburg, he
Wilkinsburg, he
brother and
learned that this individual knew both Appellant's brother and mother
mother and
and went
went by
by the
the name
name "D
"D
Appellant stated
Low". Appellant stated that
that after
after arriving at the
arriving at the location,
location, "D
"D Low"
Low" robbed
robbed him
him at
at gunpoint, and
gunpoint, and
continued to
continued to keep him
him at
at gunpoint as he
gunpoint as he threatened
threatened to
to hurt
hurt Appellant's mother if
Appellant's mother if Appellant didn't
Appellant didn't
do what
do what he
he said.29
said.? Appellant told detectives
Appellant told detectives that
that itit was
was out
out of
offear
fear for
for his
his life
life and
and his
his mother's,
mother's,
that he
that he complied with the
complied with the step-by-step instructions given
step-by-step instructions given by "D Low"
by "D Low regarding where to
regarding where to drive
drive
and what
and what to
to do.3°
do." Appellant stated that
Appellant stated that "D
"D Low"
Low" directed
directed him
him to
to drive
drive past Ms. Davis
past Ms. Davis who
who was
was
walking on
walking on the
the sidewalk,
sidewalk, and
and then
then park along the
park along the street
street ahead
ahead of
ofher.
her. Appellant was then
Appellant was then
ordered out
ordered out of
ofthe
the car
car by
by Taylor and told
Taylor and told to
to pretend that he
pretend that he was
was having trouble. 31 As
car trouble.31
having car As Ms.
Ms.
Davis walked
Davis walked by
by the
the passenger door, "D
passenger door, "D Low"
Low got out of
got out ofthe
the car
car and
and began to struggle
began to with Ms.
struggle with Ms.
Davis over
Davis over her
herpurse.
purse. During the struggle,
During the struggle, Appellant heard two
Appellant heard two gunshots. The first
gunshots. The first did
did not
not strike
strike
Ms. Davis
Ms. Davis but
but the
the second
second one
one did.
did. "D
"D Low"
Low then
then removed
removed the
the purse from Ms.
purse from Ms. Davis,
Davis, ran
ran back
back to
to
the car,
the car, threw
threw the
the purse inside, and
purse inside, and ordered
orderedAppellant to"get
Appellantto "get it",
it", which
which Appellant
Appellant assumed
assumed
meantmoney.
meant At"D
money. At Lows" instruction,
"D Low's" instruction, Appellant thenthrew
Appellantthen threwthe
thepurse
purseout
outof
ofthe
thevehicle
vehicleand
and
droveaway
drove with"D
awaywith "D Low"
Low" in
in the car.32 Still
thecar.32 Still under
under"D
"D Low's"
Low's" direction,
direction, Appellant
Appellantdrove
droveaafew
few
blocksaway
blocks wherehe
awaywhere hethen
thendropped off"D
droppedoff Low. Prior
"D Low". Priorto
to exiting thevehicle,
exitingthe vehicle,"D
"D Low"
Low"made
made
anotherthreat
another threatagainst
againstAppellant's mother. From
Appellant'smother. Fromthere,
there,Appellant
Appellantre-counted
re-countedthat
thathe
hedrove
drovetotohis
his
residencein
residence inTurtle
TurtleCreek
Creekand
andthen
thendowntown
downtowntotoget
gethis
hisphone
phonefixed.33
fixed.°
thenshifted
storythen
Appellant'sstory
Appellant's shiftedas
astotohow
howhe
heinitially
initiallyencountered
encountered"D
"DLow",
Low",who
whohe
hestill
still
maintainedhe
maintained hedid
didnot
notknow.
know. He
Henow
nowexplained thathe
explainedthat hewas
waslooking
lookingtotobuy
buymarijuana
marijuanawhen
whenhe
he
Exhibit28,
293Exhibit 28,Time
TimeStamp
Stamp(T.S.) 12:33-12:40.
(T.S.)12:33-12:40.
T.S.12:40-12:44.
3030T.S. 12:40-12:44.
T.S.12:40-12:42.
311T.S. 12:40-12:42.
1.S.12:42-12:45.
323T.S. 12:42-12:45.
33
T.S. 12:45-12:48.
T.S. 12:45-12:48.
88
came across "D Low"
Low and that their interaction then turned into a jitney ride.34
ride. He maintained
gunpoint.35
however that his actions once they got to the Dollar General were all forced under gunpoint.35
Several hours into the interview police began talking about Laya Whitley, prompting
another revision by Appellant as to the events of February 22, 2018. He now admitted that the
person he drove to the Dollar General was not a stranger, or a person known as "D Low",
Low, but a
man named "H.D." He also divulged he knew the purpose of the trip to the Dollar General was
to allow "H.D." to get money, and disclosed that a girl inside the store told "H.D" that a female
$7,000.36 Appellant also admitted that he had contact with "H.D"
co-worker with red hair had $7,000.36
after the shooting. Specifically, that that he picked up "H.D." that night and took him to
"H.D. that
Whitely's residence in the East Hills section of Pittsburgh and messaged with "H.D." through
Facebook.37
Facebook.37
A forensic download of Appellant's phone confirmed these Facebook messages which
occurred from 7:23 p.m. on February 22, 2018 through 1:13 2018.38
1:13 p.m. on February 23, 2018.38
Throughout the messaging Appellant and Taylor refer to each other as "bro", "homie", "dude"
and "cuhs", which was known as short for cousin. The initial message came from Appellant
asking Taylor what he was doing.39
doing." The two messaged about someone who died in Wilkinsburg,
referencing a single mom. Appellant also stated that, "she was cute" and "lmao" which stands
ofP." Taylor responded that Appellant is disgusting and "lol" which
for "laughing my ass off'.40
loud".41 Taylor messaged Appellant that he heard that they [police] had
stands for "laughing out loud".41
4 1:06-1:08.
T.S. 1:06-1:08.
3·1.S.
35 T.S. 2:25-2:31.
36
36 T.S.
T.S. 3:38-3:54.
37 T.S. 4:23-4:48.
J,T. at 273, 275-291; Commonwealth Exhibit 52.
3 J.T.
38
1.T. at 275.
39 J.T.
ao
«J.T.
J.T. at 279.
J.T. at 279-280
"JT.
41
9
car color
the car color but not the plate and
and Appellant referenced that
Appellant referenced that the
the story was on
story was on the
the news.42
news. The
The
two continued
two continued to
to talk
talk about
about football
football and
and splitting
splitting aa jitney to go
jitney to out that
go out night.43 The messages
that night.43 The messages
ceased around
ceased around 10:21
10:21 p.m. on February
p.m. on 22, 2018
February 22, 2018 and
and resumed
resumed in
in the
the early
early morning hours of
morning hours
of
23, 2018,
February 23, 2018, when
when Taylor that he,
he, "[p]assed out and
"[p]assed out and woke
woke up early."
February Taylor messaged
messaged Appellant
Appellant that up early.44
They then engaged
They then in talks
engaged in talks about
about what
what they were doing
they were that morning.
doing that At 10:40
morning. At 10:40 a.m., Appellant
a.m., Appellant
messaged Taylor
messaged that the
Taylorthat the police wereat
police were at his
his house,
house, informing
informing Taylor that he
Taylorthat he had
had been
been robbed the
robbed the
beforeand
nightbefore
night andwas scared.45 The
wasscared.' Therecords
records revealed
revealed that
thatTaylor continued to
Taylorcontinued to message
message Appellant
Appellant
between11:21
between 11 :21 a.m.
a.m. until
until 1:13
1: 13 p.m., withno
p.m.,with noresponse fromAppellant.
responsefrom Appellant.
Atthis
At thistime
timeand
andday, 1:13 p.m.
day,1:13 onFebruary
p.m.on 23,2018,
February23, 2018,Appellant wasatat Allegheny
Appellantwas Allegheny
Countyheadquarters
County wherehis
headquarterswhere hisrecitation
recitationof
ofthe
theevents
eventsof
ofFebruary 22,2018
February22, 2018continued
continuedtoto evolve.
evolve.
Policeasked
Police askedAppellant
Appellantififhe
hereceived
receivedany fromthe
moneyfrom
anymoney therobbery andhe
robberyand hepointedly denied that
pointedlydenied
that
hehad.
he had. However,
However,this
thisstatement
statementquickly
quicklychanged. First,he
changed. First, hedisclosed
disclosedthat
thathe
hewas
was offered money
offered money
butrefused
but refusedit.it. Shortly thereafter,he
Shortlythereafter, headmitted
admittedthat
thatthere
therewas
was$700-$800
$700-$800ininaabag
bag located in a
located in a
bedroomcloset,
bedroom closet,however
howeverititwas
wasH.D.'s
H.D.'smoney thatAppellant
moneythat wasinstructed
Appellantwas instructedtoto keep at his house
keep at his house
andnot
and nottouch.46
touch.°
theinterview
Duringthe
During interviewAppellant agreedtotogive
Appellantagreed givepolice hiscell
policehis cellphone andhis
phoneand his password to
password to
allowfor
allow fora aforensic download.47 From
forensicdownload.47 Fromthis
thisdownload,
download,a astring
stringofoftext
textmessages were discovered
messageswere
discovered
betweenAppellant
between andWhitley
Appellantand thatoccurred
Whitleythat occurredafter
afterthe
themurder
murderononFebruary 22,2018
February22, 2018 between
between
6:06p.m.
6:06 and6:13
p.m.and p.m.."
6:13p.m..48
"It'sRod
Appellant:"It's
Appellant: RodDrey." "Howare
Drey."How areyou
youdoing?" (6:06p.m.)
doing?"(6:06 p.m.)
42 4 JT. at 280.
JT.at280.
43 4J,T.
J.T. at at 284-285.
284-285.
J.T.at at
44 J.T. 286.
286.
JT.at at
J.T.
45 4 289-291
289-291
T.S.4:55-4:58,
T.S.
46 4 4:55-4:58, 5:26-5:32,
5:26-5:32, 5:53.
5:53.
47JT. at 190-191; Commonwealth
J.T. at 190-191; Commonwealth Exhibit Exhibit
2929 and
and 30.30.Commonwealth
Commonwealth Exhibit
Exhibit 2828 (T.S.
(T.S. 1:09).
1:09).
JT. at 292; Commonwealth Exhibit
48 J.T. at 292; Commonwealth Exhibit 53.
48 53.
1010
"Lol. I am
Whitley: "Lol. am ite. Where you from?"
from?" (6:11
(6:11 p.m.)
p.m.)
Appellant: "Homewood.
"Homewood. Where you from?"
from?" (6:12
(6:12 p.m.)
p.m.)
"Im from
Whitley: "Im from the hill G
G block
block to
to be
be exact.
exact. Lol.
Lol. And
And II say
say show
show b-c
b-c that
that my
my second
second
hood." (6:12
hood." (6:12 p.m.)
p.m.)
Appellant: "Lol.
Appellant: "Lol. II see.
see. WYM.
WYM. (Known
(Known as
as "what
"what you
you mean")
mean") That
That is
is cool
cool doe.
doe. How
How old
old
are you?"
are (6:12 p.m.)
you?" (6:12 p.m.)
During the
During the investigation
investigation police returned to
police returned to Appellant's residence in
Appellant's residence in Turtle
Turtle Creek
Creek where
where
they encountered
they encountered his
his girlfriend India McDonald.
girlfriend India McDonald. Ms.
Ms. McDonald
McDonald lived
lived with
with Appellant and
Appellant and
provided police
provided with consent
police with consent to
to search
search the residence.49 During
the residence.49 the search,
During the search, police seized two
police seized two cell
cell
phones that
phones that were
were subsequently submitted for
subsequently submitted foraa forensic
forensic download.50
download." Afterward,
Afterward, detectives
detectives
Ms. McDonald
transported Ms.
transported McDonald to
to her
herparents' residence in
parents' residence in Wilkinsburg.
Wilkinsburg. During the ride
During the ride Ms.
Ms.
McDonald advised
McDonald advised them
themthat
thatshe
shehad
hadmoney shewanted
moneyshe wantedto
toturn
tumover
overto
tothe
thepolice. Ms.
police. Ms.
McDonaldthen
McDonald thenentered
enteredher
herparents' residenceand
parents' residence andreturned
returnedto
tothe
thedetective's
detective's vehicle
vehiclewith
with$669.
$669.
Sheexplained
She explainedthat
thatshe
shewas
wasgiving
givingititto
tothem
thembecause
becauseshe
shereceived
receivedititfrom
fromAppellant, whotold
Appellant,who told
herititwas
her wasproceeds fromaarobbery
proceedsfrom thathad
robberythat hadbeen
beencommitted
committedthe
thenight before.51
nightbefore.51
Attrial,
At trial,Appellant testifiedon
Appellanttestified onhis
hisown
ownbehalf
behalf. He
Hestated
statedthat
thathe
heaccepted
acceptedaaFacebook
Facebook
fromDane
requestfrom
request DaneTaylor foraajitney
Taylorfor ride,explaining
jitneyride, thathe
explainingthat heknew
knewof
ofhim
himperipherally because
peripherallybecause
wasfriends
Taylorwas
Taylor friendswith
withAppellant's brotherand
Appellant'sbrother andthat
thathis
hisnickname
nicknamewas H.D.52 He
wasH.D.52 Hedescribed
described
exchangingmultiple
exchanging multiplephone callsand
phonecalls andtext
textmessages withTaylor
messageswith Taylorprior
priortotopicking
pickinghim
himup
upon
onRay
Ray
Street Wilkinsburg.53 After
StreetininWilkinsburg.53 Afterpicking himup,
pickinghim up,Taylor toldhim
Taylortold himtotodrive
drivetotothe
theDollar
DollarGeneral
General
storeand
store andtotoback
backinto
intoaaparking spotininthe
parkingspot theback lot.54 Appellant
backlot.54 thenleft
Appellantthen leftthe
thecar
cartotourinate
urinate
49«9J.T. 241.
J.T. 241.
J,T.atat240-241.
" 50J.T. 240-241.
SJ.T. at 242-243,249;
51 J.T. at 242-243, 249;Commonwealth
CommonwealthExhibit
Exhibit39.
39.
J.T. atat392-394.
529J,T. 392-394.
53$ J.T. at 394-397.
J.T. at 394-397.
J.T.atat397-399.
54$4J.T. 397-399.
11
11
outsidean
outside anabandoned
abandoned building whileTaylor
buildingwhile remained inside
Taylorremained inside the
thevehicle.
vehicle. When hereturned
Whenhe returnedto
to
the car,
the car, Taylor
Taylorwas
was now
now wearing
wearingaa face
face mask
maskand
and had
had aa gun out and
gun out and ordered
ordered Appellant to shut
Appellant to shut
the door.55 According
the door.55 to Appellant,
According to told him
Taylor told
Appellant, Taylor him that
thathe
he needed
needed this
this money
money and
and that
that
Appellant was
Appellant was going to do
going to do what
what he
he said.
said. Although
Although Appellant described that
Appellant described that Taylor was aiming
Taylorwas aiming
the gun
the gun in
in his
his direction,
direction, he
he denied
denied that
that he
he was
was being gunpoint.56 Despite
held atat gunpoint.56
being held Despite telling the jury
telling the jury
he was
he was not
not under
under threat,
threat, Appellant testified he
Appellant testified he did
did what
what Taylor
Taylor wanted
wanted and repeatedly asked
and repeatedly asked him
him
not to
not to shoot
shoot him.57
him."
Appellant testified
Appellant testified that
that he
he exited
exited the
the parking lot. At
parking lot. At this
this time Taylor instructed
time Taylor instructed him
him to
to
drive past
drive the female
past the female with
with red
red hair
hair and
and park
park along the street.
along the street. Whereafter,
Whereafter, Appellant was ordered
Appellant was ordered
out of
out ofthe
the car
car and
and instructed
instructed to
to act
act like
like he
he was
was fixing
fixing something on the
something on the car.
car. According to
According to
Appellant, Taylor
Appellant, threatened to
Taylor threatened to shoot
shoot Appellant ifhe
Appellant if tried to
he tried to run away.58 Appellant
run away.58 like his
felt like
Appellant felt his
life was
life was in
in danger and told
danger and told the
the jury he did
jury he did as
as he
he was
was instructed.
instructed. Consistent
Consistent with
with the
the video
video
evidence, Appellant
evidence, described that
Appellant described that Taylor
Taylor jumped out of
jumped out of the
the car
car as
as Ms.
Ms. Davis
Davis walked
walked by
by and
and
immediately began
immediately to tussle
began to tussle with
with her
her over
over her
her purse.
purse. Appellant then heard
Appellant then heard one
one gunshot and
gunshot and
started to
started to run
run towards
towards the
the victim
victim when
when aa second
second gunshot
gunshot stopped him in
stopped him in his
his tracks.59
tracks." Appellant
back into
got back
got into the
the car
car at
at Taylor's instruction. Taylor
Taylor's instruction. then threw
Taylor then threw the
the purse at
at him
him and ordered him
and ordered him
to take
to take out
out the
the money.6°
money. Appellant removed the
Appellant removed the money and then
money and then threw
threw the
the purse out
out the
the
window.61 He
window.61 He explained
explained that Taylor still
still had
had the gun
gun out him to drive away,
out when he told him away, further
instructing him to drive
instructing Once inside the house, Taylor, who was still
drive to Appellant's house. Once still
the gun, ordered Appellant to hide some
holding the of the money upstairs. Appellant told the jury
some of
$5
55 J,T. at
J.T. at 399.
399.
56
56 J,T. at 400-401.
J.T. at 400-401.
1,T. at
S1 J.T.
57 at 404.
404.
JT. at
$8 J.T.
58 at 403.
403.
J,T. at
"9 J.T. at 407-408.
407-408.
60
J.T. at
J.T. at 409.
409.
J.T. at
6 J.T.
61 at 409-410.
409-410.
12
12
that Taylor followed him upstairs and watched
watched him
him hide
hide the
the money in aa closet.62
money in closet.°? Taylor then
Taylor then
where to drop him off
told Appellant where off and
and threatened
threatened to
to "off"
"off' him
him and
and his
his brother
brother if
ifhe called the
he called the
police. He
police.63 He explained
explained that
that itit was
was fear
fear for
for himself
himself and
and his
his family
family that
that kept him from
kept him from calling
calling 911
911
or the
or the police.64
police. HeHe described
described how
how he
he then
then drove
drove around
around for
for aa bit
bit when
when he
he remembered
remembered that
that he
he
needed to
needed to go
go downtown
downtown and
and pick
pick up his phone.
up his Thereafter he
phone. Thereafter he received
received aa call
call from
from Taylor
Taylor
demanding that
demanding that Appellant come pick
Appellant come him up.
pick him Appellant complied
up. Appellant and drove
complied and drove Taylor to the
Taylor to the East
East
Hills residence
Hills residence of
ofLaya Whitley.65 Appellant
Laya Whitley.65 maintained that
Appellant maintained that he
he had
had never
never met
met Whitely
Whitely prior to
prior to
this. He
this. He said
said that
that they
they exchanged
exchanged telephone numbers because
telephone numbers because he
he wanted
wanted to
to make
make sure
sure he
he had
had
Whitley's phone
Whitley's phone number
number so
so ififhe
he talked
talked to
to the
the police
police he
he could
could give them her
give them information.66 He
her information.66 He
further explained
further that he
explained that hemessaged with Taylor
messaged with afterthe
Taylorafter theshooting, as part
shooting, as ofaaplan
partof heand
planhe and his
his
wifeconcocted
wife concoctedin
inan
an effort
effortto
to get to his
Taylorto
getTaylor his house
houseso
so they could call
they could call the
the police.67
police.°
admittedon
Appellantadmitted
Appellant oncross
crossexamination
examinationthat
thathe
hewas
wasnot
nottruthful
truthfulwith
withthe
thedetectives
detectives
duringhis
during hisinterview
interviewwhen
whenhe
hedenied
deniedknowing
knowingDane
DaneTaylor,
Taylor,however,
however, he
hecontinued
continuedto
todeny
denyany
any
advancedknowledge
advanced thatTaylor
knowledgethat wasgoing
Taylorwas goingtotorob
robMs. Davis.68
Ms. Davis.68
alsooffered
Appellantalso
Appellant offeredthree
threecharacter
characterwitnesses
witnesseswho
whotestified
testifiedthat
thatAppellant hadaagood
Appellanthad good
forpeacefulness
reputationfor
reputation andnon-violence
peacefulnessand non-violenceininthe community.69
thecommunity.69
J,T.atat413-414.
6262J.T. 413-414.
J.T.atat415.
636J.T. 415.
6464J.T.
J.T.atat416.
416.
J.T.atat418.
6565J.T. 418.
66J.T. at 421-422.
66 J.T. at 421-422.
J.T.atat424-425,
67J.T. 424-425,516-517.
516-517.
6868 J,T. at 441-470.
J.T. at 441-470.
6969JT.
J.T. atat333-336,
333-336,519-521,
519-521,522-524.
522-524.
1313
MATTERS COMPLAINED
MATTERS OF ON
COMPLAINED OF APPEAL
ON APPEAL
raised seven
Appellant raised
Appellant claims of
seven claims error in
of error his Statement.
in his The first
Statement. The claims challenge
two claims
first two challenge
the Court's
the ruling on
Court's ruling the admissibility
on the admissibility of evidence. Specifically,
ofevidence. Specifically, that the Court
that the its
abused its
Court abused
discretion when
discretion allowed admission
when itit allowed ofautopsy
admission of because the
photographs because
autopsy photographs the prejudicial value
prejudicial value
outweighed the probative
outweighed the value. Next,
probative value. that the
Next, that erred when
Court erred
the Court denied admissibility
when itit denied ofaa
admissibility of
statement made
statement Dane Taylor
by Dane
made by Taylor to third party
to aa third under Pa.R.E.
party under 804(b)(3).
Pa.R.E. 804(b)(3).
also challenges
Appellant also
Appellant thesufficiency
challenges the ofthe
sufficiency of evidence for
the evidence the convictions.
forthe He cites
convictions. He to
cites to
In the
In Interestof
theInterest J.B., 189
ofJ.B., A.3d390
189 A.3d 2018) ininsupport
(Pa. 2018)
390(Pa. supportof hisargument
ofhis thatthe
argumentthat the
Commonwealth'sevidence
Commonwealth's insufficienttotoestablish
wasinsufficient
evidencewas intentelement
theintent
establishthe fortampering
elementfor with
tamperingwith
evidence, andininsupport
evidence,and supportof hisglobal
ofhis thatthe
argumentthat
globalargument evidencewas
theevidence insufficienttotoshow
wasinsufficient he
showhe
actedas
acted anaccomplice
asan orco-conspirator.
accompliceor Briefly,J.B.
co-conspirator. Briefly, involvedthe
J.B. involved convictionof
theconviction for
juvenilefor
ofaajuvenile
themurder
the hisstep-mother
ofhis
murderof andher
step-motherand unbornchild.
herunborn thePennsylvania
Whenthe
child. When Court
SupremeCourt
PennsylvaniaSupreme
vacated J.B.'sadjudication
vacatedJ.B.'s adjudicationfor murderbased
formurder insufficientevidence,
oninsufficient
basedon reiteratedthe
evidence,ititreiterated well-
thewell-
establishedprecedent
established precedentthat when,"the
thatwhen, trialevidence
"thetrial viewedininthe
recordviewed
evidenceofofrecord lightmost
thelight favorable
mostfavorable
totothe andall
Commonwealthand
theCommonwealth inferencesdrawn
reasonableinferences
allreasonable fromthat
drawnfrom evidenceisisonly,
thatevidence most,
only,atatmost,
consistentwith
equallyconsistent
equally innocenceasasititisiswith
defendant'sinnocence
withaadefendant's guilt,the
hisguilt,
withhis Commonwealthhas
theCommonwealth not
hasnot
sustainedits
sustained burdenofofproving
itsburden provingthe defendant'sguilt
thedefendant's beyonda areasonable
guiltbeyond reasonabledoubt." 415.
Id.atat415.
doubt."Id.
thisstandard
Applyingthis
Applying factsininJB.,
thefacts
standardtotothe theCourt
J.B.,the heldthat
Courtheld theevidence
thatthe insufficienttoto
wasinsufficient
evidencewas
establishJ.B's
establish theperson
identityasasthe
J.B'sidentity whokilled
personwho victimsbecause,
thevictims
killedthe "allreasonable
because,"all inferences
reasonableinferences
derived viewedinina alight
therefrom,viewed
derivedtherefrom, lightmost favorabletoto[the
mostfavorable Commonwealth],was,
[theCommonwealth], best,inin
was,atatbest,
suchthat
equipoise",such
equipoise", wasequally
thatititwas equallyconsistent withhim
consistentwith responsiblefor
beingresponsible
himbeing commissionofof
thecommission
forthe
the crimeasasititwas
thecrime forananunknown
wasfor party.
thirdparty.
unknownthird
1414
Lastly, Appellant asserted that the Court erred when it denied his post sentence motion
seeking a new trial wherein, he argued that the verdict was against the weight of the evidence.
ADMISSIBILITY OF EVIDENCE
The Pennsylvania Rules of Evidence define "relevant evidence" as evidence that "has any
tendency to make a fact more or less probable than it would be without the evidence" as long as
"the fact is a consequence in determining the action." Pa.R.E. 401(a)-(b). Relevant evidence is
admissible, and irrelevant evidence is inadmissible. See Pa.R.E. 402. Even relevant evidence
may be excluded if its probative value is outweighed by prejudice. See Pa.R.E. 403.
The standard of review of a trial court's evidentiary rulings is narrow, as the
admissibility of evidence is within the discretion of the trial court and will be reversed only if the
trial court has abused its discretion. Commonwealth v. Hernandez, 230 A.3d 480, 489 (Pa.
Super. 2020) (internal citations omitted). An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the
evidence or the record. Commonwealth v. Seilhammer, 862 A.2d 1263,
1263, 1270
1270 (Pa.Super. 2004).
Appellant's first evidentiary claim is that this Court erred and/or abused its discretion in
admitting autopsy photographs, arguing that they lacked any significant probative value to any
fact at issue. This claim surrounds the admissibility of seven photographs the Court permitted to
be admitted and displayed to the jury during the course of testimony of the forensic pathologist,
Dr. Todd Lukasevic. During an evidentiary hearing Appellant argued that the photographs had
uncontested." Thus, the
Davis death was uncontested.7°
no probative value as the cause and manner of Ms. Davis'
70 J.T. at 97-98.
15
15
autopsyphotos
autopsy photos are
areinflammatory andare
inflammatoryand aremore
moreprejudicial than probative.
prejudicial than The Commonwealth
probative. The Commonwealth
countered the
countered thephotos
photos were
were probative and would
probativeand would assist
assist the
thepathologist in describing
pathologistin his findings
describinghis to
findings to
jury.71
the jury.7'
the
Ifthe
If the Commonwealth
Commonwealth offers
offers photographic evidence depicting
photographic evidence an autopsy
depicting an the trial
autopsy the trial
court should
court should conduct
conduct aa two-part analysis to
two-part analysis to determine
determine whether
whether the
the evidence
evidence is
is admissible.
admissible.
First, itit should
First, should be
be determined
determined whether
whether the
the photograph is inflammatory.
photograph is Ifitit isis not,
inflammatory. If not, then
then itit
may be
may be admitted
admitted as
as long as itit is
long as is relevant
relevant and
and may assist the
may assist the jury in understanding
jury in understanding aa fact
fact at
at
issue. Ifthe
issue. If the photograph is inflammatory,
photograph is the court
inflammatory, the court must
mustthen
then determine
determinewhether
whetherthe
thepicture
picture
isis of
of such
such essential
essential evidentiary value that
evidentiary value that the
the need
need clearly
clearly outweighs the likelihood
outweighs the likelihood of
of
inflaming the
inflaming the minds
minds and
and passions
passions of
ofthe
the jurors. Commonwealth v.v. Murray,
jurors. Commonwealth 83 A.3d
Murray, 83 A.3d 137,
13 7,
157 (Pa.
157 (Pa. 2013).
2013). A
A criminal
criminal homicide
homicide trial
trial can
can be
be by its very
by its very nature
nature unpleasant, and
unpleasant, and
therefore aa disturbing
therefore disturbing image of the
image of the victim
victim should
should not
not be
be allowed
allowed to
to rule
rule the
the question of
question of
admissibility. There
admissibility. There is
is no
no need
need to
to overextend
overextend an
an attempt to sanitize
attempt to sanitize the
the evidence
evidence of
of the
the
condition of
condition ofthe
the body
body as
as to
to deprive the Commonwealth
deprive the Commonwealth of
ofopportunities ofproof
opportunities of proofin support
in support
of the
of the onerous
onerous burden
burden of
of proof beyond aa reasonable
proof beyond reasonable doubt. Commonwealth v.
doubt. Commonwealth v. Mollett,
Mollett, 55
A.3d 291A.3d 291 (Pa.Super.
(Pa.Super. 2010)
2010) (citing Commonwealth v.
(citing Commonwealth v. Tharp, 830 A.2d
Tharp, 830 A.2d 519,
519,531 (Pa. 2003).
531 (Pa. 2003).
A trial
A trial court
court abuses
abuses its
its discretion
discretion if
if itit is
is "indifferent"
"indifferent" to
to the
the photograph's prejudicial
effect, or
effect, or any
any precaution taken is
is not commensurate
commensurate with the nature of
of the scene
scene depicted.
depicted.
Commonwealth v. Ballard,
Commonwealth Ballard, 80
80 A.3d 380,
380, 393
393 (Pa.
(Pa. 2013).
2013). A photo should
should be excluded when it is
in fact
in fact inflammatory and its probative value so
so limited as to be outweighed by the prejudice. See
(Pa. Super. 1998)
Commonwealth v. LeGares, 709 A.2d 922 (Pa. ( color photos depicting the victims
1998) (color
71
71 J,T. at
J.T. at 99-100.
99-100.
16
16
headwired
head wired together
togetherafter
aftersustaining
sustainingaa20-gauge blastwere
shotgunblast
20-gaugeshotgun wereinflammatory andlacked
inflammatory and lacked
probative value
probative value as
as the
the defendant
defendant never
never contested
contested the
the death
death was
was not
not homicidal).
homicidal).
After careful
After careful consideration,
consideration, this
this Court
Court determined
detennined that
that the
the autopsy would
photographs would
autopsy photographs
assist the
assist the Commonwealth's
Commonwealth's witness,
witness, Dr.
Dr. Lukasevic,
Lukasevic, in
in describing the nature
describing the nature of
ofthe
the wounds
wounds
suffered, as
suffered, as well
well as
as explaining how he
explaining how he determined
detennined the
the entrance
entrance wound
wound indicated
indicated the
the muzzle
muzzle of
of
the firearm
the fireann was
was pressed
pressed tightly
tightly against the skin.
against the skin.
The seven
The seven photos
photos clearly had probative
clearly had value, as
probative value, as they assisted Dr.
they assisted Dr. Lukasevic
Lukasevic in
in
explaining the
explaining the nature
nature of
ofthe
the wounds,
wounds, which
which included
included aa description ofthe
description of the entrance
entrance wound
wound which
which
indicated the
indicated the muzzle
muzzle of
ofthe
the firearm
fireann was
was pressed
pressed tightly
tightly against the skin.
against the skin. Although
Although Appellant did
Appellant did
not contest
not contest that
that Dane
Dane Taylor
Taylor shot
shot and
and killed
killed Ms.
Ms. Davis
Davis while
while robbing her of
robbing her ofmoney, the photos
money, the photos
were evidence
were evidence that
that assisted
assisted Dr.
Dr. Lukasevic
Lukasevic in
in explaining the trajectory
explaining the ofthe
trajectory of the bullet
bullet through her
through her
body and
body and the
the level
level of
ofincapacitation
incapacitation that
that prevented her from
prevented her from offering
offering any further resistance.
any further resistance.
Three photographs
Three photographs depicted only clothing
depicted only that had
clothing that had been
been removed
removed from
from the
the victim
victim and
and the
the
location of
location ofthe
the bullet
bullet hole
hole and
and only
only aa small
small amount
amount of blood. 72 These
ofblood.72 These photographic exhibits were
photographic exhibits were
not inflammatory
not inflammatory and
and were
were admissible
admissible relevant
relevant evidence.
evidence. The
The remaining four autopsy
remaining four autopsy
photographs did
photographs did not
not display
display her
her face
face or
or head
head and
and the
the genitalia
genitalia region
region was
was blacked
blacked out.73
out. Two
Two of
of
these photographs were
these were close-up of the
images of
close-up images the entrance wound
wound to
to the
the left
left hip without depicting
hip without depicting
any other
any other part of body.74 The Court
of the body.74 Court did
did not deem
deem these inflammatory and
and determined
detennined that
they were
were probative. The last two photographs which showed
showed the victim from the mid-torso to
were potentially inflammatory as they displayed the abdominal area where organs
the mid-thigh, were
had been
had been removed. To minimize any impact, the Court instructed the Commonwealth to crop
72
72 J.T. at
J.T. at 101;
IOI; Commonwealth Exhibits 35-37.
7 JT. at
J.T. at 102,
102, 121.
121.
74J,T.
74 at 121;
J.T. at 121; Commonwealth
Commonwealth Exhibits 33 and 34.
17
17
outthe
out thetorso
torsososothat
thatonly
onlythe
thevictim's
victim'slower
lowerwaist
waistand
andleg areawere
legarea werevisible
visiblerelevant
relevanttotothe
the
locationofofthe
location theentrance
entranceand
andexit
exitwound.75
wound.'
Additionally,the
Additionally, theCourt
Courtprovided thefollowing
providedthe followingcautionary instructiontotothe
cautionaryinstruction thejury
jury
contemporaneouslywith
contemporaneously withthe
theadmission
admissionofofthe
theexhibits:
exhibits:
So,Ladies
So, Ladiesand
andGentleman,
Gentleman,these theseparticular
particularphotos
photosarearebeing admittedinto
beingadmitted intoevidence
evidence
forthe
for thepurpose
purposeof ofshowing
showingthe thenature
natureofofthe
thewounds
woundsthat thatwere
werereceived
receivedbybyMs.Ms.
Davisand
Davis and toto aid
aidthe
thedoctor
doctorinin explaining whathe
explainingwhat he found
foundtoto you. Several ofofthe
you. Several the
photographsmay
photographs maynotnotnecessarily
necessarilybe bepleasant
pleasanttoto look
lookat.at. But
ButI I caution
cautionyou,
you, you
you
shouldnot
should notallow
allowthat
thattotostir
stirup emotionsororprejudice
upemotions prejudiceininanyanyway.
way. Any verdictyou
Anyverdict you
ultimatelyreach
ultimately reachininthis
thiscase
casemust
mustbe bebased
basedononfactual
factualand
andfair
fairconsideration
considerationof ofall
all
of the
of the evidence
evidence and and notnot onon any passion oror prejudice
any passion against the
prejudice against the Defendant,
Defendant,
Commonwealth or
Commonwealth or anyone
anyone else else connected
connected with
with this
this case.
case. TheThe purpose
purpose ofofthethe
photographsisislimited,
photographs limited,and andyouyoushould
shouldconsider
considerthem
themonly
onlyforforthat
thatpurpose andnot
purposeand not
forany
for other."°
anyother.76
Whilefive
While fiveof
ofthe
theseven
sevenadmitted
admittedphotos containedwere
photoscontained werenot
notdeemed
deemedinflammatory,
inflammatory,the
the
Courttook
Court tookmeasures
measures to
tominimize
minimizethe
theinflammatory
inflammatoryeffect
effectof
ofthe
theother
othertwo
two photographs. The
photographs. The
Courthad
Court hadportions
portions of
ofboth
bothphotos
photos cropped to exclude
cropped to exclude the
the abdominal
abdominal cavity andonly
cavity and depictthe
only depict the
lowerbody
lower bodywhere
where the
the entrance
entrance and
and exit
exit wounds
wounds were
were located.
located. Additionally,
Additionally, aa limiting
limiting
instruction was
instruction was given to the
given to the jury
jury prior to showing
prior to showing the photographs. 77 The
the photographs.77 The instruction
instruction explained
explained
the purpose
the purpose of
ofshowing
showing the
the photographs and explained
photographs and to the
explained to the jury
jury they
they should
should not
not let
let the
the photos
photos
stir their
stir their emotions.
emotions.
Here, the
Here, the probative
probative value
value of
ofthe
the above
above described
described photographs outweighed the
photographs outweighed the prejudicial
prejudicial
value in
value in light
light of
ofthe
the protective measures and
protective measures and precautionary instruction to
precautionary instruction to the
the jury, which
which served
served
to minimize
to minimize that
that impact. Thus, the
impact. Thus, the Court
Court did
did not
not abuse
abuse its
its discretion
discretion in
in admitting
admitting the
the
into evidence.
photographs into
photographs evidence.
75 J,T. at 122; Commonwealth Exhibit 31 and 32.
75 J.T. at 122; Commonwealth Exhibit 31 and 32.
76 J.T. at 226-227.
76 J.T. at 226-227.
7 J.T. at 226-227.
77 J.T. at 226-227.
18
18
second evidentiary
Appellant's second
Appellant's issueisis that
evidentiaryissue thatthe
the court
court erred
erredwhen
whenititexcluded
excluded evidence
evidenceof
of
statements allegedly
statements made by
allegedly made co-defendant Dane
by co-defendant DaneTaylor to aa fellow
Taylor to fellow inmate,
inmate, David
David Tyus.
Tyus.
Appellant claimed
Appellant claimed this
this evidence
evidencewas
was admissible
admissibleas
as aastatement
statement against
against Taylor's
Taylor's penal interest
penal interest
pursuant to
pursuant to Pa.R.E.
Pa.R.E. 804(b)(3).
804(b)(3).
The rules
The rules of
ofevidence
evidence provide in pertinent
provide in pertinent part as follows:
part as follows:
Statement Against
Statement Interest —--A
Against Interest statement which
A statement which was
was at at the
the time
time ofofitsits making
making so so
far contrary
far to the
contrary to the declarant's
declarant's pecuniary
pecuniary or or proprietary interest, or
proprietary interest, or soso far
far tended
tended to to
the declaration
subject the
subject declaration to to civil
civil or
or criminal
criminal liability, or to
liability, or to render
render invalid
invalid aa claim
claim byby
the declarant
the declarant against another, that
against another, that aa reasonable
reasonable person
person in in the
the declarant's
declarant's position
position
would not
would not have
have made
made the
the statement
statement unless
unless believing
believing itit to
to bebe true.
true. In
In aa criminal
criminal case,
case,
aa statement
statement tending
tending to to expose
expose the the declarant
declarant toto criminal
criminal liability
liability isis not
not admissible
admissible
unless corroborating
unless corroborating circumstances
circumstances clearlyclearly indicate
indicate the the trustworthiness
trustworthiness of of the
the
statement.
statement.
Pa.R.E. 804(b)(3).
Pa.R.E. 804(b)(3).
At trial,
At trial, the
the Court
Court conducted
conducted an
an evidentiary
evidentiary hearing outside the
hearing outside the presence ofthe
presence of the jury.
to call
sought to
Appellant sought
Appellant call Dane
Dane Taylor to question
Taylor to him about
question him about statements
statements he
he purportedly made to
purportedly made to
inmate David
inmate David Tyus
Tyus that
that were
were exculpatory as to
exculpatory as Appellant.78 Alternatively,
to Appellant.78 Alternatively, Appellant
Appellant offered
offered
from David
testimony from
testimony David Tyus
Tyus regarding conversations he
any conversations
regarding any he had
had with
with Taylor
Taylor at
at the
the Allegheny
Allegheny
Jail relative
County Jail
County relative to
to Appellant's
Appellant's participation. The Commonwealth
participation. The Commonwealth sought
sought to
to exclude
exclude the
the
on the basis
proposed testimony on basis that itit was
was not
not against interest, and
against Taylor's penal interest, and itit did
did not
not
contain sufficient
contain sufficient indicia
indicia of
of reliability as
as there were no corroborating circumstances that would
corroborating circumstances
indicate the trustworthiness of
indicate of the statement.79
statement."
7
78 asserted his
Taylor asserted
Taylor Fifth Amendment privilege through counsel, Marco Attisano, and thus was deemed by the
his Fifth
parties and the
parties and the Court
Court to
to be unavailable pursuant to Pa.R.E. 804(b)(3). At the time of Appellant's trial Taylor had a
be
pending PCRA
pending wherein he sought to withdraw his plea of guilty to Third Degree Murder, Robbery, and
PCRA petition wherein
Criminal Conspiracy due
Criminal to alleged ineffective assistance of counsel. The petition was subsequently denied
due to
an evidentiary hearing on February 17,
following an
following 17, 2022. No appeal has been filed.
Commonwealth Motion in Limine filed on August 18,
79 Commonwealth
79 18, 2021.
19
19
Tyus testified that in 2018 he was cellmates with Dane Taylor who he referred to as
"Gusto"." He stated that Taylor wrote down his "life story" and an explanation of what
"Gusto".8°
occurred during the robbery and shooting indicating that Appellant had no intent to rob the
case.81 Taylor asked him to get this note to Appellant. Tyus explained that he did
victim in the case.81
him.82 Tyus
not know Appellant or Ms. Davis at the time Taylor relayed this information to him.82
Appellant.83 He further
switched pods in the Allegheny County Jail and was placed near Appellant.83
explained that although Taylor had provided him this handwritten note with his life story and an
explanation of how Appellant was not involved with the robbery, he nevertheless threw the note
pod.84
away because it was several months before he actually located Appellant on the pod.84
Tyus further explained that at some time later Taylor authored a second note and gave it
second note to Appellant, but the defense was unable to produce
to Tyus. He then provided this second
it at the evidentiary hearing."
hearing. He then claimed he wrote a four page letter detailing what Taylor
of 2018
had told him in August of mom.86 Appellant sought to have
2018 and mailed it to Appellant's mom.86
Tyus testify to the substance
substance of
of what was in the letter, that in fact Taylor told him that he was
solely responsible for robbing and
solely and killing Ms. Davis, and
and that Appellant was unaware of
of the
robbery plan.
accused has
An accused has aa fundamental right to present defense evidence so
so long as it is relevant
and not
and not excluded by an established rule of
by an of evidence. Commonwealth v. Seibert,
Seibert, 799 A.2d 54,
54, 67
(Pa. Super.
(Pa. In this
2002). In
Super. 2002). this instance,
instance, before the hearsay statement
statement of
of what Taylor told Tyus can be
JT. at
"80 J.T. at 493-494.
493 -494.
"'JT. at 494.
J.T. at 494.
J.T. at
$2 J.T.
82 at 495.
495.
3JT.
83 at 497.
J.T. at 497.
4JT.
84 at 497-498.
J.T. at 497-498.
J,T. at
85 J.T.
85 at 498-500.
498-500.
86J,T. at 491-493.
86 J.T. at 491-493. TheThe letter
letter was
was admitted
admitted forfor purposes of the
purposes of the hearing
hearing as
as Defendant
Defendant Exhibit
Exhibit A.
A. No
No evidence
evidence was
was
presented to
presented to establish
establish when
when in fact the
in fact the note
note was
was written
written by
by Tyus.
Tyus.
20
20
admitted under Rule 804(b)(3) it must be shown the statement was made under circumstances
that provide considerable assurance of its reliability. Commonwealth v. Colon, 846 A.2d 747 (Pa.
Super 2004). In addition, any statement would need to actually be against the penal interest of
the individual who purportedly uttered it. Our Supreme Court has held that a confession or
statement which exculpates a declarant's accomplices is not a statement against interest because
it does not subject the declarant to any additional crime or punishment. Commonwealth v. Colon,
337 A.2d 554, 558 (Pa. 1975).
1975).
The reliability of a declarant's statement that is arguably against penal interest may be
established through the circumstances in which the statement was given. See Chambers v.
(1973). In Chambers, another person confessed multiple times to a
Mississippi, 410 U.S. 284 (1973).
murder for which Chambers was standing
standing trial. This person confessed to three known associates
shortly after the murder and explained he had fired the gun that killed the victim. He further
shortly
sworn confession to attorneys who were representing Chambers. The trial court excluded
gave a sworn
statement and
each statement and the United States
States Supreme
Supreme Court held the Due Process Clause of
of the United
States Constitution
States Constitution requires aa defendant be afforded
afforded the right to present such
such evidence if
if the
statements are
statements are made under circumstances that provide considerable assurance of
of their reliability.
at 300.
410 U.S. at 300. The Supreme Court found an
Supreme Court an assurance
assurance of
ofreliability in Chambers as follows:
reliability in
Each ofof(confessor's)
(confessor's) confessions was was made spontaneously acquaintance
spontaneously to a close acquaintance
after the
shortly after
shortly the murder
murder occurred.
occurred. Second,
Second, each
each one
one was
was corroborated
corroborated by somesome
other evidence
other evidence inin the
the case....Third,
case .... Third, ...
... each
each confession
confession here was
was in
in aa very real sense
sense
self-incriminatory and
self-incriminatory and unquestionably against interest. Finally, if
against interest. if there was any
any
about the
question about
question the truthfulness
truthfulness ofof the
the extrajudicial
extrajudicial statements,
statements, (the
(the confessor)
confessor) was
in the
present in the courtroom
courtroom andand waswas under
under oath.
oath.
Id. at
Id. at 300-301.
300-301.
Based on
Based on the
the above
above circumstances,
circumstances, the
the Supreme Court found
Supreme Court found the
the mechanistic
mechanistic application
application of
of
rules of
Mississippi's rules
Mississippi's of evidence
evidence deprived Chambers of
deprived Chambers of his
his right
right to
to due
due process
process of
oflaw.
law.
21
21
statement
judice, there are no assurances of reliability to the jailhouse statement
In the case sub Judice,
Dane Taylor made to fellow inmate David Tyus. There is no corroborative evidence to establish
of the statement, and in fact both alleged statements authored by Taylor himself
the reliability of himself
available. The statement
were no longer available. statement was made while Taylor was incarcerated and
and not
not
spontaneously shortly
spontaneously after the robbery and
shortly after and homicide. There is nothing self-incriminatory and
self-incriminatory and
interest about
against interest
unquestionably against about aa statement
statement that
that seeks
seeks to
to exculpate
exculpate Appellant from
Appellant from
in the
participation in
participation the robbery of
of Ms.
Ms. Davis.
Davis. Taylor would not have been subject
Taylor would subject to
to examination
examination
under oath
under oath about
about any claim that
any claim that Appellant did not
Appellant did not participate in
in the
the robbery.
robbery. Tyus would simply
Tyus would simply
have taken
have taken the
the witness
witness stand
stand and
and offered
offered an
an uncorroborated
uncorroborated hearsay
hearsay statement
statement made
made by
by Taylor
Taylor
seeking to
seeking to exculpate
exculpate Appellant. As the
Appellant. As the proposed testimony is
proposed testimony is aa far
far different
different factual
factual scenario
scenario
from the
from the type offered in
type offered in Chambers
Chambers (both in its
(both in its lack
lack of
ofassurance
assurance of
of reliability and its
reliability and its failure
failure to
to
as aa statement
qualify as
qualify statement against the declarant's
against the declarant's interest),
interest), this
this Court
Court did
did not
not err
err in
in excluding
excluding itit
to Pa.R.E.
pursuant to
pursuant Pa.R.E. 804(b)(3).
804(b)(3).
SUFFICIENCY OF
SUFFICIENCY OF THE
THE EVIDENCE
EVIDENCE
The applicable
The standard for
applicable standard for assessing
assessing aa challenge to the
challenge to the sufficiency
sufficiency of
ofthe
the evidence
evidence is
is
whether, viewing
whether, all the
viewing all the evidence
evidence admitted
admitted at
at trial
trial in
in the
the light
light most
most favorable
favorable to
to the
the verdict
verdict
winner, there
winner, there is
is sufficient
sufficient evidence
evidence to
to enable
enable the
the factfinder
factfinder to
to find
find every
every element
element of
ofthe
the crime
crime
beyond aa reasonable
beyond reasonable doubt.
doubt. Commonwealth
Commonwealth v.v. Johnson,
Johnson, 236
236 A.3d
A.3d 1141,
1141, 1151-1152
1151-1152 (Pa.
(Pa. Super.
Super.
The Commonwealth
2020). The
2020). Commonwealth isis not
not burdened
burdened with
with precluding every possibility
precluding every ofinnocence.
possibility of innocence.
Commonwealth v.v. Shaw,
Commonwealth Shaw, 203
203 A.3d
A.3d 281,
281,284 (Pa. Super.
284 (Pa. 2019). Moreover,
Super. 2019). Moreover, the
the Commonwealth
Commonwealth
sustain its
maysustain
may its burden
burdenof
ofproving
proving every elementof
every element ofthe
the crime
crimebeyond
beyond aa reasonable
reasonable doubt
doubt by
by
means of
means ofwholly circumstantial evidence.
wholly circumstantial evidence. Id. Whenthe
Id. When the evidence
evidence isis circumstantial
circumstantial rather
ratherthan
than
22
22
direct,ititisissufficient
direct, sufficientwhen
whenaacombination
combinationof
ofthe
theevidence
evidencelinks
linksthe
theaccused
accusedtotothe
thecrime
crimebeyond
beyondaa
reasonabledoubt.
reasonable doubt.Commonwealth
Commonwealthv.v. Cassidy, 668A.2d
Cassidy,668 A.2d1143,
1143,1144
1144(Pa.
(Pa.Super. 1995).
Super.1995).
InInaccordance
accordancewith
withthe
theabove
abovestandard,
standard,ititisisnecessary
necessarytotoreview
reviewthe
therelevant
relevantstatutory law
statutorylaw
withrespect
with respecttotoAppellant's
Appellant'sarguments
argumentsthat
thatthe
theevidence
evidencewas
wasinsufficient
insufficienttotosustain
sustainhis
his
convictionsfor
convictions forconspiracy,
conspiracy,robbery,
robbery,second-degree murder,and
second-degreemurder, andtampering withevidence.
tamperingwith evidence.
CONSPIRACYTO
CONSPIRACY TOCOMMIT
COMMITROBBERY
ROBBERY
Conspiracyisisdefined
Conspiracy definedinin18 Pa.c.S. §$ 903,
18 Pa.C.S. 903, ininrelevant
relevantpart, asfollows:
part,as follows:
(a)Definition
(a) Definitionof ofconspiracy.
conspiracy. AAperson
personisisguilty
guiltyofofconspiracy
conspiracywith withanother
anotherperson
personor orpersons
persons
to commit
to commitaacrimecrimeififwith
withthe
theintent
intentofofpromoting
promotingor orfacilitating
facilitatingitsitscommission
commissionhe: he:
(1) agrees
(1) agrees with
withsuch
suchother
otherperson
personor orpersons thatthey
personsthat theyororone
oneorormore
moreof ofthem
themwill
will engage
engage
in conduct
in conduct which
which constitutes
constitutessuch
suchcrime
crimeor oran
anattempt
attemptor orsolicitation
solicitationtoto commit
commitsuch
such
crime; or
crime; or
(2) agrees
(2) agrees to
to aid
aidsuch
suchother
otherperson
personor orpersons
persons inin the
theplanning
planningor orcommission
commissionof ofsuch
such
crime or
crime orof
ofan
an attempt
attempt oror solicitation
solicitation to
to commit
commitsuchsuch crime....
crime ....
(e) Overt
(e) Overt Act.
Act. NoNo person
person may
may be be convicted
convicted of ofconspiracy
conspiracy to to commit
commit aacrime
crime unless
unless an
an overt
overt
act in
act in pursuance
pursuance of ofsuch
such conspiracy
conspiracy isis alleged and proved
alleged and proved to to have
have been
been done
done by him or
by him orby
by aa
person with
person with whom
whom he he conspired.
conspired.
18 Pa.C.S. §$ 903.
18 Pa.C.S. 903.
The Court
The Court in
in Commonwealth
Commonwealth v.v. Lambert, 795 A.2d
Lambert, 795 A.2d 10101010 (Pa.
(Pa. Super.
Super. 2002),
2002), thoroughly
thoroughly
discussed the
discussed the necessary
necessary components to establish
components to establish conspiracy.
conspiracy.
A conviction
A conviction forfor criminal
criminal conspiracy,
conspiracy, 18 Pa.C.S.A. §$ 903,
18 Pa.C.S.A. 903, is
is sustained
sustained where
where the
the
Commonwealth establishes
Commonwealth establishes that
that the
the defendant
defendant entered
entered anan agreement
agreement to to commit
commit or or
aid in
aid in an
an unlawful
unlawful act
act with
with another
another person
person or or persons with aa shared
persons with shared criminal
criminal intent
intent
and an
and an overt
overt act
act was
was done
done inin furtherance
furtherance of of the
the conspiracy. Commonwealth v.v.
conspiracy. Commonwealth
546 Pa.
Rios, 546
Rios, Pa. 271,
271,684 A.2d 1025,
684 A.2d 1025, 1030
1030 (1996),
(1996), cert.
cert. denied, 520 U.S.
denied, 520 U.S. 1231,
1231, 117
117
S.Ct. 1825,
S.Ct. 1825, 137
137 L.Ed.2d
L.Ed.2d 1032
1032 (1997),
(1997), citing Pa.C.S.A. §§ 903.
18 Pa.C.S.A.
citing 18 903.
The essence
The essence of
of aa criminal
criminal conspiracy is the
conspiracy is the common
common understanding that aa particular
understanding that
criminal objective
criminal objective is is to
to be
be accomplished. Commonwealth v. Keefer, 338
accomplished. Commonwealth 338 Pa. Super.
Super.
184, 487
184, 487 A.2d
A.2d 915,915, 918
918 (1985). association with the
(1985). Mere association the perpetrators, mere
at the
presence at
presence the scene,
scene, oror mere
mere knowledge of of the crime is insufficient. Id. Rather,
23
the Commonwealth must prove that the defendant defendant shared
shared the
the criminal
criminal
• "an active participant
intent, i.e., that the Appellant was "an participant in in the
the criminal
criminal enterprise
enterprise
and that he had knowledge of
and of the conspiratorial
conspiratorial agreement."
agreement." Hennigan, 753 at
Hennigan, 753 at 253.
253.
commit the overt
The defendant does not need to commit overt act;
act; aa co-conspirator
co-conspirator may commit
may commit
the overt
the overt act.
act. Commonwealth
Commonwealth v. Johnson, 719 719 A.2d
A.2d 778,
778, 784
784 (Pa.
(Pa. Super.
Super. 1998)
1998) (en
(en
bane), appeal
banc), 559 Pa.
denied, 559
appeal denied, Pa. 689,
689, 739
739 A.2d
A.2d 1056
1056 (1999).
(1999).
A conspiracy
A conspiracy is is almost
almost always always proved circumstantial
through circumstantial
proved through
evidence. Commonwealth
evidence. Commonwealth v. v. Swerdlow,
Swerdlow, 431431 Pa.
Pa. Super.
Super. 453,
453, 636
636 A.2d
A.2d 1173,
1173, 1176
1176
(1994). "The
(1994). "The conduct
conduct ofof the
the parties and the
parties and the circumstances
circumstances surrounding
surrounding their
their
conduct may
conduct create 'a
may create 'a web
web of of evidence'
evidence' linking
linking the
the accused
accused toto the
the alleged
alleged
beyond aa reasonable
conspiracy beyond
conspiracy reasonable doubt."
doubt." Johnson, 719 A.2d
Johnson, 719 A.2d at
at 785.
785. The
The evidence
evidence
must, however,
must, however, "rise
"rise above
above mere mere suspicion
suspicion or or possibility
possibility of of guilty
guilty
collusion." Swerdlow,
collusion." 636 A.2d
Swerdlow, 636 A.2d atat 1177
1177 (citation
(citation omitted).
omitted).
This Court
This Court has
has identified
identified factors
factors to
to be
be considered:
considered:
Among the
Among the circumstances
circumstances which which are
are relevant,
relevant, butbut not
not sufficient
sufficient byby themselves,
themselves, to to
prove aa corrupt
prove confederation are:
corrupt confederation are: (1)
(1) an
an association
association between
between alleged
alleged conspirators;
conspirators;
(2) knowledge
(2) knowledge of of the
the commission
commission of of the
the crime;
crime; (3)
(3) presence
presence atat the
the scene
scene ofofthe
the
crime; and
crime; and (4) in some situations,
(4) in some situations, participation in the
participation in the object of the conspiracy.
object of the conspiracy. The The
presence of such circumstances may furnish
presence of such circumstances may furnish a web of evidencea web of evidence linking
linking an an accused
accused
to an
to an alleged
alleged conspiracy beyond aa reasonable
conspiracy beyond reasonable doubt
doubt when
when viewed
viewed in in conjunction
conjunction
with each
with each other
other and
and inin the
the context
context in in which
which they occurred. Commonwealth
they occurred. Commonwealth v.v.
Carter, 272
Carter, 272 Pa.
Pa. Super. 411,416
Super. 411, A.2d 523
416 A.2d 523 (1979).
(1979).
Commonwealth v.v. Olds,
Commonwealth 322 Pa.
Olds, 322 Pa. Super. 442, 469
Super. 442, 469 A.2d
A.2d 1072,
1072, 1075
1075 (1983).
(1983). See
See
also, Commonwealth
also, Commonwealth v.v. Azim, 313 Pa.
Azim, 313 Pa. Super.
Super. 310,
310,459 A.2d1244
459 A.2d 1244(1983).
(1983).
Once there
Once there isis evidence
evidence of ofthe
the presence
presence ofofaa conspiracy,
conspiracy, conspirators
conspirators are
are liable
liable for
for
acts
acts of
of co-conspirators
co-conspirators committed
committed in
in furtherance
furtherance of the
of the
Commonwealth v.v. Stocker,
conspiracy. Commonwealth
conspiracy. 424 Pa.
Stocker, 424 Pa. Super.
Super. 189,
189, 622
622 A.2d
A.2d 333,
333, 342
342
Even ifif the
(1993). Even
(1993). the conspirator did not
conspirator did not act
act as
as aa principal
principal inin committing
committing the the
crime,he
underlyingcrime,
underlying heisisstill
stillcriminally liablefor
criminallyliable forthe
theactions
actionsofofhis
hisco-conspirators
co-conspirators
takenininfurtherance
taken furtheranceof ofthe
theconspiracy. Commonwealthv.v.Soto,
conspiracy. Commonwealth 693A.2d
Soto, 693 A.2d226,
226,229-
229-
230 (Pa.
230 (Pa. Super. 1997),appeal
Super. 1997), 550 Pa.
denied, 550
appeal denied, Pa. 704,
704, 705
705 A.2d
A.2d 1308
1308 (1997).
(1997).SeeSee
18Pa.C.S.A.
also, 18
also, Pa.C.S.A.§§306. 306.
Thegeneral
The ruleof
general rule oflaw
law pertaining
pertaining toto the
the culpability ofconspirators
culpabilityof conspirators isis that
that each
each
individualmember
individual memberof ofthe
theconspiracy
conspiracyisiscriminally responsiblefor
criminallyresponsible forthe
theacts
actsof ofhis
hisco-
co-
committedininfurtherance
conspirators committed
conspirators furtheranceof ofthe
the conspiracy.
conspiracy. The
The co-conspirator
co-conspiratorrule rule
assigns legal
assigns legal culpability equally toto all
culpability equally all members
members of of the
the conspiracy.
conspiracy. All All co-
co-
areresponsible
conspiratorsare
conspirators foractions
responsiblefor actionsundertaken
undertakenininfurtherance
furtheranceofofthe
theconspiracy
conspiracy
24
24
regardless of
regardless oftheir
their individual
individual knowledge
knowledge ofofsuch
such actions
actions and
and regardless ofwhich
regardless of which
memberof
member ofthe
the conspiracy undertook the
conspiracy undertook theaction.
action.
Commonwealth v.v. Galindes,
Commonwealth Galindes, 786
786 A.2d
A.2d 1004,
1004, 1011
1011 (Pa.
(Pa. Super. 2001).
Super. 2001).
Thepremise
The premiseof ofthe
therule
ruleisisthat
thatthe
theconspirators
conspiratorshave haveformed
formedtogether
togetherfor foran
anunlawful
unlawful
purpose, and
purpose, and thus,
thus, they share the
they share the intent
intent to
to commit
commit any acts undertaken
any acts undertaken in in order
order toto
achieve that
achieve that purpose,
purpose, regardless
regardless of ofwhether
whether they
they actually intended any
actually intended distinct act
any distinct act
undertaken in
undertaken in furtherance
furtherance of of the
the object
object ofof the
the conspiracy.
conspiracy. ItIt isis the
the existence
existence of of
shared criminal
shared criminal intent
intent that
that"is
"is the
the sine
sine qua non of
qua non ofaa conspiracy."
conspiracy."
Commonwealth v.v. Wayne,
Commonwealth 553 Pa.
Wayne, 553 Pa. 614,
614, 720
720 A.2d
A.2d 456,
456, 463-464
463-464 (1998), cert.
(1998), cert.
denied, 528
denied, 528 U.S.
U.S. 834,
834, 120
120 S.Ct.
S.Ct. 94,
94, 145
145 L.Ed.2d
L.Ed.2d 80
80 (1999)
(1999) (citations
(citations omitted).
omitted).
Lambert, 795
Lambert, 795 A.2d
A.2d at
at 1016-1017.
1016-1017.
A review
A review of
ofthe
the record
record in
in the
the light most favorable
light most favorable to
to the
the Commonwealth
Commonwealth supports that
supports that
there was
there was an
an agreement
agreement between
between Appellant and Dane
Appellant and Dane Taylor that he
Taylor that he would
would assist
assist him
him in
in the
the
robbery of
robbery ofKeiauna
Keiauna Davis.
Davis. Phone
Phone records
records showed
showed that
that Appellant and Taylor
Appellant and Taylor began
began
communicating shortly
communicating shortly after
after Whitley informed Taylor
Whitley informed about the
Taylor about the money Ms. Davis
money Ms. Davis brought to
brought to
work. Thereafter,
work. Thereafter, Appellant
Appellant drove
drove Taylor
Taylor to
to the
the Dollar
Dollar General
General where
where Ms.
Ms. Davis
Davis was
was ending her
ending her
shift. He
shift. He and
and Taylor
Taylor waited
waited for
for her
her to
to exit
exit the
the store
store before
before pulling out of
pulling out ofthe
the parking lot and
parking lot and
following her
following her onto
onto Laketon
Laketon Avenue.
A venue. At
At this
this time
time Appellant is aware
Appellant is aware that
that Taylor,
Taylor, who
who was
was now
now
wearing aa ski
wearing ski mask,
mask, was
was armed
armed with
with aa firearm.
firearm. Appellant
Appellant positioned the
the car
car in
in advance
advance of
of Ms.
Ms.
Davis, who
Davis, who was
was walking
walking on
on the
the sidewalk.
sidewalk. Appellant to examine
Appellant pretended to examine his
his car
car as
as aa ruse so
so
could jump out
that Taylor could out of
of the
the car
car as
as Ms.
Ms. Davis approached
approached Appellant's vehicle. Appellant
remained at
at the vehicle within
within feet of
of the entire
entire incident
incident and
and watched as
as Taylor physically
struggled with Ms. Davis over her purse. After hearing gunshots, Appellant never left he
struggled
perimeter of
of the car and only re-entered the car once Taylor gained control of
of the purse.
Appellant then removed the money from the purse and threw it out the open passenger door as
Taylor returned to the scene to retrieve his dropped phone. Appellant then drove away from the
with Taylor and hours later drove Taylor to Whitley's house. Facebook records submitted
scene with
scene
25
at trial showed on-going communications with both Taylor and Whitely after the robbery and
Appellant's girlfriend provided police with nearly $700 from the $3,000 stolen from Ms. Davis.
Thus, the evidence viewed in the light most favorable to the Commonwealth, as verdict
winner, showed an association between Appellant and Taylor as well as Appellant's knowledge
that Taylor intended to rob the victim. Testimonial and video evidence confirmed Appellant's
presence at the scene of the crime and that he aided Taylor by driving him to commit the robbery
and providing his subsequent escape.
Appellant argues that this case is similar to In the Interest of J.B., because this same
evidence, even when viewed in the light most favorable to the Commonwealth, is equally
consistent with his innocence. That is simply belied by the record and was rejected by the jury
who was presented with, and instructed on, the defense of duress as offered through Appellant's
testimony.
Appellant offered an alternative explanation for the phone records and video surveillance
which unquestionably demonstrated a connection to Taylor and his presence during the
commission of the crime. Appellant offered that he became an unwilling participant after
providing Taylor a jitney ride. He testified that he acted out of fear that he or his family
members would be shot based on threats made by Taylor. However, the video evidence does not
show that Taylor ever directed the gun at Appellant. The entire incident transpired in less than
one minute. During this brief time, Appellant's movements are slow and deliberate and in
concert with Taylor and not consistent with someone under threat, or unaware of what was
happening, or that he was acting under the direction of Taylor. Moreover, Appellant continued
his association with Taylor after the robbery and murder, including driving him to Whitley's
house and messaging with him over a period of eighteen hours, referring to Taylor as "bro",
26
"homie",
"homie, and "cuhs". During these messages Appellant made disparaging comments about Ms.
Davis and discussed going out with Taylor that night. Additionally, Appellant's nine-hour
interview with police demonstrated that he was less than forthcoming regarding his knowledge
and involvement in the robbery and his association with Taylor and Whitley.
Appellant's argument that his testimony, which served to prove that he acted under
duress, and was thus equally supportive of his innocence, is without merit. A jury could
conclude beyond a reasonable doubt that Appellant was aware that Taylor planned to rob Ms.
Davis of her money and that Appellant agreed to act as his driver to aid in the commission of that
crime.
cnme.
ROBBERY
In his Statement, Appellant contends that the Commonwealth's evidence was insufficient
to support a finding that he aided Dane Taylor in the commission of the Robbery.
ofrobbery
As charged, a person is guilty of 18 Pa.C.S. §$ 3701
robbery as defined in 18 3701 if:
(a) Offense defined
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious
bodily injury;
(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt
to commit theft or in flight after the attempt or commission.
18
18 Pa.C.S. §3701(a)(1)
§3701(a)(l) and (2).
As offered in more detail above, the video evidence unquestionably established that Dane
Taylor robbed Keiauna Davis of her purse and money. Additional evidence demonstrated that
Appellant agreed to take part in the robbery, and in fact aided Taylor by driving him to and from
the scene. As a co-conspirator, Appellant is responsible for the actions of his co-conspirator
27
taken in furtherance of the conspiracy. A person who is guilty of conspiracy involving an
accomplished robbery is necessarily guilty of the robbery itself.
MURDER OF THE SECOND DEGREE
Murder of the second degree is a criminal homicide committed while a defendant was
engaged as a principal or an accomplice in the perpetration of a felony. 18
18 Pa.C.S. § 2502(b).
2502(b ).
Perpetration of a felony is further defined as:
[t]he act of the defendant in engaging in or being an accomplice in the commission
of, or an attempt to commit, or flight after committing, or attempting to commit
robbery, rape, or deviate sexual intercourse by force or threat of force, arson,
burglary or kidnapping.
18 Pa.C.S.A §$ 2502(d).
18
A person is legally liable as an accomplice when:
(1) With the intent of promoting or facilitating the commission of the offense, he: ...
(ii) aids or agrees or attempts to aid such other person in planning or committing it; ...
(d)
( d) Culpability of accomplice.—When
accomplice.-When causing a particular result is an element of an offense,
an accomplice in the conduct causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect to that result that is
ifhe
sufficient for the commission of the offense.
18
18 Pa.C.S.A. §§ 306(a), (b)(3), (c)(1)(ii)
(c)(l)(ii) and (d).
Appellant argues that the evidence was insufficient to convict him of second—degree
second-degree
murder because the Commonwealth failed to establish a conspiracy with Taylor or that he acted
as an accomplice. For the reasons stated above in the Court's analysis of the conspiracy charge
this claim is without merit.
Regarding Appellant's claim that the evidence was insufficient to establish that he
was an accomplice to the felony murder, the court again looks to the holding in Lambert.
28
The statute defining second degree murder does not require that a homicide be
foreseeable; rather, it is only necessary that the accused engaged in conduct as a
principal or an accomplice in the perpetration of a felony. Whether evidence
sufficiently indicates that a killing was in furtherance of a predicate felony can be
a difficult question. The question of whether the killing was in furtherance of the
conspiracy is a question of proof for the jury to resolve. It does not matter whether
the appellant anticipated that the victim would be killed in furtherance of the
conspiracy. Rather, the fact finder determines whether the appellant knew or
should have known that the possibility of death accompanied a dangerous
undertaking.
Lambert, 795 A.2d 1010,
1010, 1023
1023 (internal citations omitted).
The Lambert court also discussed the resulting legal responsibility of an accomplice:
The very nature of accomplice liability is that one who actively and purposefully
engages in criminal activity is criminally responsible for the criminal actions of
his/her co-conspirators which are committed in furtherance of the criminal
endeavor. [M]ere presence at the scene is insufficient to support a conviction:
evidence indicating participation in the crime is required.
Lambert, 795 A.2d at 1024
1024 (internal citations omitted).
The Court finds the holding in Commonwealth v. Pone, 251
251 A.3d 12651265 (Pa. Super. 2021)
persuasive.87 The facts and evidence in Pone are strikingly similar to the
(non-precedential) persuasive."
facts sub judice. Pone was convicted of second-degree murder, robbery, and conspiracy wherein
evidence at trial established that he traveled to the robbery scene aware that his two co-
conspirators were going to rob someone. Pone laid in wait for the victim to arrive, entered the
business where the robbery was to occur, and prevented a third party from interceding during the
robbery. It was during the robbery that the victim was shot and killed by a co-conspirator.
Surveillance footage captured Pone and the two other actors arrive in advance of the victim.
Additional footage of the robbery and shooting confirmed that Pone participated in the assault
the victim and physically blocked a third party from intervening. Pone is also seen following the
87 1, 2019 may be cited for its persuasive value. Pa.R.A.P. 126(b).
A non-precedential case decided after May 1, 126(b).
29
third party
third outside and
party outside and whereafter
whereafter he
he leaves
leaves in
in aa car
car operated by the
operated by third co-conspirator.
the third co-conspirator. During
During
••
the police
the police investigation, all three
investigation, all three actors
actors provided
provided inculpatory Pone challenged
statements. Pone
inculpatory statements. challenged the
the
ofthe
sufficiency of
sufficiency the evidence
evidence for
for his
his conviction
conviction for second-degree murder
for second-degree murder under two theories.
under two theories.
First, that
First, that he
he was
was not
not physically present at
physically present the time
at the time the victim was
the victim was killed, and second
killed, and second that
that
he abandoned
he abandoned the
the conspiracy. Pone's convictions
conspiracy. Pone's were affirmed
convictions were affirmed on appeal, with
on appeal, with the
the Court
Court
having concluded
having concluded that
that he
he was
was liable
liable as
as an accomplice. The
an accomplice. Pennsylvania Superior
The Pennsylvania Superior Court
Court noted
noted
that "absence
that "absence or
or presence at the
presence at the scene"
scene" is
is aa factor,
factor, and not dispositive,
and not regarding accomplice
dispositive, regarding accomplice
Pone, 251
liability. Pone,
liability. 251 A.3d
A.3d 1265,
1265, citing Commonwealth v.v. Gross,
citing Commonwealth Gross, 101
101 A.3d 28,35 (Pa.
A.3d 28,35 (Pa. 2014).
2014).
Second, the
Second, the facts
facts supported that Pone's
supported that Pone's conduct aided in
conduct aided in the
the commission
commission of the underlying
ofthe underlying
and specific
robbery, and specific to
to his claim,
claim, found
found that
that he
he took
took no actions to
no actions to abandon the conspiracy.
abandon the conspiracy.
Here, Appellant
Here, Appellant drove
drove Taylor to the
Taylor to scene, waited
the scene, waited during the commission
during the commission of the robbery,
of the robbery,
and enabled
and enabled his flight
flight afterwards.
afterwards. As
As discussed above, the
discussed above, the Court
Court found this evidence
found this evidence sufficient
sufficient
to support
support aa jury's conclusion
conclusion that
that Appellant aided Taylor
Appellant aided Taylor in
in the
the robbery of Ms.
robbery of Ms. Davis.
Davis.
Appellant drove Taylor to
to the
the victim's workplace and
victim's workplace and waited
waited in the parking lot for her
in the to leave.
her to leave.
Appellant then drove past Ms. Davis as
Appellant as she
she walked home
home and car in
and positioned his car in advance
advance of
of
of this crime, Appellant created aa ruse to facilitate Taylor's surprise
her. In furtherance of attack on
surprise attack on
served as
the victim. The video, which served as direct evidence of showed that
of the robbery, unmistakably showed
shot at Ms. Davis,
struggle with Ms. Davis over her purse. Taylor shot
Taylor began a physical struggle Davis, not
subsequently fatal gunshot
second and subsequently
struggle. It was the second
once, but twice during this struggle. gunshot that
allowed Taylor to physically overcome her and complete the robbery by taking the purse.
shooting, took the money
Appellant waited outside the vehicle, watched the robbery and the shooting,
scene. Thus, Appellant was more than
from Ms. Davis's purse, and drove Taylor away from the scene.
merely present at the scene of the crime. Legal precedent has held that culpability for murder is
30
not limited to the killer in cases of felony murder but is imputed to "all participants in the felony,
«
including the getaway driver." Lambert A.2d at 1023.
1023. Here, the evidence is sufficient that
Appellant participated and aided Taylor, and therefore, he is legally responsible as an accomplice
for Taylor's crimes, which included the murder of Keiauna Davis.
TAMPERING WITH PHYSICAL EVIDENCE
In his last sufficiency claim, Appellant alleges that the Commonwealth's evidence failed
to prove that he intended to impair the availability of any items for the investigation.
18 Pa.C.S. §$ 4910, in relevant part, as a
Tampering with physical evidence is defined in 18
person who believing that an official proceeding or investigation is pending or about to be
instituted: "alters, destroys, conceals or removes any record, document or thing with intent to
18 Pa.C.S. §$ 4910(1).
impair its verity or availability in such proceeding or investigation." 18
Appellant's actions, which were captured on video, show him throw the victim's purse
out the open passenger door and into a nearby tree. The sequence of the events leading up to,
during and after Appellant's act supports the jury's verdict that he discarded the victim's purse
with the intent to prevent its accessibility for any future investigation. No less significant were
Appellant's own words at trial, wherein he explained that he threw the purse to get rid of it
it.88
because he was concerned it may have had his DNA and/or fingerprints on it.88
Therefore, after viewing all the evidence admitted at trial in the light most favorable to
the verdict, the evidence was sufficient to support the conviction for tampering with evidence.
88 J.T.
J,T. at 409-410.
31
31
WEIGHTOF
WEIGHT OFTHE
THEEVIDENCE
EVIDENCE
•
AAchallenge
challengeasastotothe
theweight
weightofofthe
theevidence,
evidence,"concedes
"concedesthat
thatsufficient
sufficientevidence
evidencewas
was
adducedtotoconvict
adduced convictthe
thedefendant
defendantbut
butthat
thatthe
theverdict
verdictmust
mustnevertheless
neverthelessbe
beoverturned
overturnedbecause
because
theevidence
the evidencewas
wasuntrustworthy andunreliable."
untrustworthyand unreliable."Commonwealth
Commonwealthv.v.Gaskins, 692A.2d
Gaskins,692 A.2d224,
224,228
228
(Pa.Super.
(Pa. 1997).
Super.1997).
AAclaim
claimalleging
allegingthetheverdict
verdictwas
wasagainst
againstthe theweight
weightof ofthe
theevidence
evidenceisis
addressedtotothe
addressed thediscretion
discretionof ofthe
thetrial
trialcourt.
court.Accordingly,
Accordingly,an anappellate court
appellatecourt
reviewsthe
reviews theexercise
exerciseof ofthe
thetrial
trialcourt's
court'sdiscretion;
discretion;ititdoes
doesnot
notanswer
answerfor foritself
itself
whetherthe
whether theverdict
verdictwaswasagainst
againstthetheweight
weightof ofthe evidence.ItItisiswell
theevidence. wellsettled
settledthat
that
the[fact-finder]
the [fact-finder]isisfree
freetotobelieve
believeall,
all,part, ornone
part,or noneof ofthe
theevidence
evidenceand andtoto
determinethe
determine thecredibility
credibilityof ofthe
thewitnesses,
witnesses,and andaanew newtrial
trialbased
basedon onaaweight
weightof of
theevidence
the evidenceclaim
claimisisonly
onlywarranted
warrantedwhere
wherethe the[factfinder's]
[factfinder's]verdict
verdictisissosocontrary
contrary
totothe
theevidence
evidencethat thatititshocks
shocksone's
one'ssense
senseof ofjustice. Indetermining
justice. In whetherthis
determiningwhether this
standardhas
standard hasbeen
beenmet,met,appellate reviewisislimited
appellatereview limitedtotowhether
whetherthe thetrial
trialjudge's
judge's
discretionwas
discretion wasproperly exercised, and
properlyexercised, andrelief
reliefwill
will only
onlybe begranted wherethe
grantedwhere thefacts
facts
andinferences
and inferencesof ofrecord
recorddisclose
discloseaapalpable
palpableabuseabuseof ofdiscretion.
discretion.
Commonwealth v.v. Landis,
Commonwealth 89 A.3d
Landis, 89 A.3d 694,
694,699 (Pa. Super.
699 (Pa. 2014)(citation
Super. 2014) (citationomitted).
omitted).
Appellatereview
Appellate review ofofaaweight
weightclaim
claim isisaa review
reviewof ofthe
the exercise
exerciseof discretion, not
ofdiscretion, notofof
the underlying
the underlyingquestion
question ofofwhether
whether the the verdict
verdict isis against
against the the weight
weightof the
ofthe
evidence. Brown,
evidence. 648 A.2d
Brown, 648 A.2d atat 1189.
1189. Because
Because the the trial
trial judge
judge hashas had
had the
the
opportunity to
opportunity to hear
hear and
and see
see the
the evidence
evidence presented,
presented, an an appellate court will
appellate court will give
give
the gravest
the gravest consideration
consideration to to the
the findings
findings andand reasons
reasons advanced
advanced by the trial
by the trial judge
judge
when reviewing
when reviewing aa trial
trial court's
court's determination
determination that that the
the verdict
verdict is is against
against thethe weight
weight
ofthe
of the evidence.
evidence. Commonwealth
Commonwealth v.v. Farquharson,
Farquharson, 467 467 Pa.Pa. 50,
50,354 A.2d 545354 A.2d 545
(Pa.1976). One
(Pa.1976). One ofofthe
the least
least assailable
assailable reasons
reasons for for granting
granting or or denying
denying aa newnew trial
trial
is the
is the lower
lower court's
court's conviction
conviction thatthat the
the verdict
verdict was
was oror was
was notnot against the weight
against the weight
ofthe
of the evidence
evidence and
and that
that aa new
new trial
trial should
should bebe granted
granted in in the
the interest
interest of
ofjustice.
560 Pa.
Widmer, 560
Widmer, Pa. at
at 321-22,
321-22, 744
744 A.2d
A.2d at
at 753
753 (emphasis
(emphasis added).
added).
This does
This does not
not mean
mean that
that the the exercise
exercise of
ofdiscretion
discretion byby the
the trial
trial court
court in
in granting
granting or
or
denying aa motion
denying motion for
for a'a' new
new trial
trial based
based on
on aa challenge
challenge to to the
the weight
weight ofof the
the
evidence is
evidence is unfettered.
unfettered. In In describing the limits
describing the limits of
of aa trial
trial court's
court's discretion,
discretion, we
we
have explained:
have explained:
The term
The term "discretion"
"discretion" imports the exercise
imports the exercise of
of judgment, wisdom and skill so as to
reach aa dispassionate
reach dispassionate conclusion
conclusion within
within the
the framework of
of the law, and is not
32
32
exercised for
exercised forthe
the purpose
purpose of ofgiving effect to
giving effect to the
thewill
will of
ofthe
thejudge. Discretion must
judge. Discretion must
• be exercised
be exercised onon the
the foundation
foundation of ofreason,
reason, asas opposed
opposed toto prejudice,
prejudice, personal
personal
motivations, caprice
motivations, caprice ororarbitrary actions. Discretion
arbitrary actions. Discretion isis abused
abused where
where thethe course
course
pursued represents
pursued represents notnot merely
merely an an error
error of
ofjudgment,
judgment, but but where
where thethe judgment
judgment isis
manifestly unreasonable
manifestly unreasonable or orwhere
where thethe law
law isis not
not applied orwhere
applied or where the
the record
record
shows that
shows that the
the action
action isis aa result
result of
ofpartiality,
partiality, prejudice, bias or
prejudice, bias or ill-will.
Commonwealth v.v. Clay,
Commonwealth 64 A.3d
Clay, 64 A.3d 1049,
1049, 1055
1055 (Pa.
(Pa. 2013).
2013).
ItIt isis this
this Court's
Court's position that this
position that this claim
claim isis waived
waived for
for vagueness.
vagueness. Appellant's claim does
Appellant's claim does
not specify
not specify which
which evidence
evidence over
over the
the course
course of
ofthe
the four-day
four-day trial
trial which
which included:
included: eleven
eleven witnesses
witnesses
and sixty-one
and sixty-one exhibits
exhibits from
from the
the Commonwealth,
Commonwealth, and
and four
four witnesses
witnesses and
and four
four exhibits
exhibits from
from the
the
defense, deserved
defense, deserved little
little or
or no
no weight. Furthermore, even
weight. Furthermore, even in
in its
its most
most generous
generous interpretation, this
interpretation, this
claim as
claim as framed
framed is
is irrelevant
irrelevant to
to the
the charge oftampering
charge of with evidence,
tampering with evidence, which
which Appellant includes
Appellant includes
in his
in his request
request for
for aa new
new trial.
trial. Moreover,
Moreover, even
even if
ifthe
the Court
Court were
were to
to read
read Appellant's
Appellant's post-sentence
post-sentence
motion in
motion in tandem
tandem with
with the
the Concise
Concise Statement,
Statement, the
the Court
Court is
is left
left without
without an
an understanding of
understanding of
Appellant's weight
Appellant's weight claim.
claim. This
This is
is because
because the
the claim
claim as
as raised
raised in
in the
the post-sentence motion
post-sentence motion
conflates sufficiency
conflates sufficiency of
of the
the evidence
evidence and
and weight. As noted
weight. As noted above,
above, aa weight claim concedes
weight claim concedes that
that
the evidence
the evidence was
was sufficient.
sufficient. However,
However, in
in the
the Appellant's motion he
Appellant's post-sentence motion he argued that
argued that
the verdicts
the verdicts were
were against the weight
against the of the
weight of the evidence
evidence because
because the
the Commonwealth
Commonwealth offered
offered "scant"
"scant"
evidence and/or
evidence and/or there
there was
was aa "lack
"lack of
of evidence"
evidence" of
of aa conspiracy. Attacking the
conspiracy. Attacking the quantity of
of the
the
evidence is
evidence is contrary
contrary to aa concession
concession that the evidence was sufficient.
sufficient. Thus, the
the Court
Court is in no
no
better position to assess
assess Appellant's weight
weight claim
claim even with the benefit of
of the previous motion
that was designed to preserve the claim. See
See Commonwealth v. Rogers, 250
250 A.3d 12091209 (Pa.
(Pa.
2021) (Pennsylvania Supreme Court held that an appellant's weight claim was not waived for
(Pennsylvania Supreme
at the intermediary level, when, despite the exceedingly brief nature of the concise
vagueness at
the post-sentence motion articulated the evidentiary-weight claim at some length, such
statement, the
statement,
that the
that the trial
trial level court was able to address the claim in its opinion.)
33
•
To the
To the extent
extent that
that this
this is
is reviewable
reviewable on
on the
the merits,
merits, the
the record
record does
does not
not support that the
support that the
court abused
court abused its
its discretion
discretion when
when itit denied
denied Appellant's for aa new
request for
Appellant's request new trial.
trial. The
The
Commonwealth's evidence
Commonwealth's evidence was
was both
both direct
direct and
and circumstantial
circumstantial in
in demonstrating
demonstrating Appellant's
Appellant's
participation in
participation in the
the robbery that led
robbery that led to
to the
the senseless
senseless death
death of
ofMs.
Ms. Davis.
Davis. That Appellant was
That Appellant was not
not
the trigger
the trigger man
man nor
nor responsible for the
responsible for the actual
actual robbery ofMs.
robbery of Ms. Davis
Davis is
is irrelevant
irrelevant to
to the verdict of
the verdict of
murder of
murder ofthe
the second
second degree as he
degree as he is
is equally liable as
equally liable as an
an accomplice and as
accomplice and as aa co-conspirator of
co-conspirator of
the robbery.
the robbery.
The jury had
The had an
an opportunity to fairly
opportunity to assess the
fairly assess the credibility
credibility of
ofall
all the
the witnesses
witnesses and
and
evidence, including
evidence, including Appellant's
Appellant's videotaped interview wherein
police interview
videotaped police wherein he
he repeatedly made false
repeatedly made false
claims regarding his
claims and participation. ItIt is
his knowledge and is important to reiterate
important to reiterate that the Appellant
that the Appellant
did not
did not dispute
dispute his participation in
in this
this crime,
crime, as
as the
the majority
majority of
of itit was captured on
was captured on video.
video. Thus,
Thus,
was presented with
the jury was with two
two different
different versions
versions for
for his
his actions,
actions, Appellant's and the
Appellant's and the
Commonwealth's. As
Commonwealth's. As stated
stated above,
above, the
the factfinder
factfinder is
is free
free to
to believe,
believe, all,
all, some,
some, or
or none of the
none of the
testimony that he
simply rejected Appellant's testimony
evidence. The jury simply acted under duress
he acted duress while
while under
threat from Dane Taylor, in
in light of the Commonwealth.
of the credible evidence produced by the Commonwealth. "In
"In
order for aa defendant to prevail on evidence, the evidence
of the evidence,
on aa challenge to the weight of evidence must
be so
so tenuous, vague and
and uncertain that the verdict shocks conscience of
shocks the conscience of the court."
court."
213 A.3d 290, 305
Commonwealth v. Mikitiuk, 213 305 (Pa. Super. 2019) citing Commonwealth v.
(Pa. Super.
129 A.3d 536,
Talbert, 129 (Pa. Super. 2015). The record does not support
536, 546 (Pa. such aa conclusion.
support such
of sentence
stated in this Opinion, the judgment of
For all the reasons stated should be
sentence should
AFFIRMED.
34