Com. v. Jones, T.

J-S52041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRISTIAN JONES :
:
Appellant : No. 1050 EDA 2019
Appeal from the Judgment of Sentence Entered March 5, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002081-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 22, 2020
Appellant, Tristian Jones, appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County following his
conviction by a jury on the charges of first-degree murder, murder of an
unborn child of the first-degree, and possession of an instrument of crime.1
After a careful review, we affirm.
The relevant facts and procedural history are as follows: On February
19, 2018, at approximately 3:20 a.m., in response to a 911 call, the police
went to the apartment of Eboney White in Cheltenham Township,
Pennsylvania. In the master bedroom, the police discovered the deceased
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 2604(a)(1), and 907(a), respectively.
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victim, Eboney White, who was eight months pregnant with Appellant’s child.
Ms. White had suffered multiple stab wounds. Ms. White’s daughters, A.G.
and E.G., were in the apartment at the time of the murder.
Based on their investigation, including statements from twelve-year-old
A.G., surveillance videos, and Appellant’s cell phone records, the police
determined that Appellant was the attacker. Accordingly, Appellant was
arrested, appointed counsel, and proceeded to a jury trial.
At the conclusion of trial, the jury convicted Appellant of the offenses
indicated supra. On March 5, 2019, the trial court sentenced Appellant to an
aggregate of life in prison.
On March 15, 2019, Appellant filed a timely, counseled post-sentence
motion, which the trial court denied on March 19, 2019. This timely, counseled
appeal followed on April 10, 2019, and all Pa.R.A.P. 1925 requirements have
been met.
On appeal, Appellant sets forth the following issues in his “Statement of
the Questions Involved” (verbatim):
1. Did the trial court err in entering judgment against Appellant
where the Commonwealth failed to present sufficient evidence
to prove that Appellant was the person who committed these
offenses?
2. Did the trial court err in denying Appellant’s post-sentence
motions where the verdict at trial was against the weight of the
evidence?
3. Did the trial court err in admitting the out-of-court statements
of A.G. where those statements were inadmissible hearsay?
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Appellant’s Brief at 7 (suggested answers omitted).2
Appellant contends the evidence was insufficient to sustain his
convictions.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) (citations
omitted).
Here, Appellant’s sufficiency argument is specific in nature as he avers
the evidence was insufficient to prove that he was, in fact, the person who
committed the crimes. As such, we need not conduct a thorough review of
the evidence to determine whether it can support a finding that all of the
elements have been met. Rather, we will focus on the specific issue raised by
____________________________________________
2 We have renumbered Appellant’s issues.
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Appellant: whether the evidence was sufficient to establish that Appellant was
the perpetrator of the crimes.
In addressing Appellant’s sufficiency of the evidence claim, the trial
court indicated the following in its Rule 1925(a) opinion:
Instantly, [Appellant] was engaged in an extra-marital affair
with Eboney White which resulted in Ms. White becoming pregnant
with a son. (N.T. Trial by Jury, 2/28/19, at 135). Ms. White was
approximately thirty-four (34) weeks pregnant at the time of the
murder. (N.T. Trial by Jury, 3/4/19, at 22). Ms. White knew
[Appellant] had not told his wife or family about these
developments and, during her conversation with [Appellant] over
text messaging, Ms. White confronted [Appellant] over his refusal
to inform his family. (See generally N.T. Trial by Jury, 2/26/19,
at 84-159). On February 8, 2018, Ms. White texted [Appellant]
an ultimatum which stated: “Anyway, I’m not looking for your
empathy. That just isn’t going to happen. I do want to let you
know that I am no longer going to be complicit in this secret you
are keeping from your family. So you have until the end of next
week for them to hear from you or they will hear it from me, and
if you don’t speak to me anymore because of it, I don’t care.” (Id.
at 107)[.] Ms. White later texted: “Clearly you care only about
your own selfish games, so I’m going to put my son first, and I
will make sure both of our families are aware of his impending
arrival.” (Id. at 108). Ms. White also informed her mother,
Ernestine Scott, on February 15, 2018, that she suspected
[Appellant] was being deceitful about the baby and was not fully
committed to the pregnancy. (N.T. Trial by Jury, 2/22/19, at 226-
28).
The arguments between Ms. White and [Appellant]
continued until February 16, 2018, at which time [Appellant]
inform[ed] Ms. White via text message that he informed his wife
and children about their relationship and the pregnancy. (N.T.
Trial by Jury, 2/26/19, at 138, 144). [Appellant] even described
the reactions of his wife and children to Ms. White. (Id. at 138,
144-45). [Appellant] also claimed that as part of this
conversation, he told his children that sex out of wedlock is a sin.
(Id. at 149-50).
On February 18, 2018, [Appellant] and Ms. White texted
each other to set up a lunch meeting for the next day in which
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their families would meet. (Id. at 155). Around midnight on
February 19, 2018, Ms. White asked if the lunch/brunch could take
place at 11:00 a.m., but [Appellant] said he would rather the
meeting take place at 1:00 p.m. (Id. at 156).
Jennifer Jones, [Appellant’s] wife, testified that she had no
knowledge of [Appellant’s] affair with Ms. White or the fact that
he had impregnated Ms. White. (N.T. Trial by Jury, 2/27/19, [at]
52-55). [Appellant] and Ms. Jones were previously living in
separate residences due to another extra-marital affair
[Appellant] had engaged in, but [Appellant] had moved back in
and was living in Ms. Jones’ apartment at [***] Johnson Street in
Philadelphia, PA, in February 2018. (Id. at 49-52). Ms. Jones
also testified that [Appellant] had never told their children about
his relationship with Ms. White or her pregnancy. (Id.). Ms. Jones
further testified that [Appellant] had never told her about any
upcoming meeting with Ms. White in which they would figure out
how to make it work with the new child. (Id.). [Appellant’s]
father, Mason Russell Jones, also testified that [Appellant] had
never told him that he was having an extra-marital affair or that
Ms. White was pregnant with his child. When [Appellant] spoke
with his father following the murder[,] he claimed that the baby
was not his. (Id. at 28-29).
On February 17, 2018, [Appellant] met with his close friend,
Aaron Mitchum, at a bar. (Id. at 116-17). Mr. Mitchum testified
that [Appellant] indicated he was unhappy about Ms. White’s
pregnancy and that [Appellant] said he did not have a plan for
when the baby was born. (Id. at 119).
Ms. Jones informed authorities that she last saw [Appellant]
on February 18, 2018[,] at 4:30 p.m. when she went to dinner
with [Appellant’s] parents. (N.T. Trial by Jury, 2/27/19, at 60-
Commonwealth Exhibit 315). [Appellant] did not attend the
dinner and Ms. Jones stated that [Appellant] informed her that he
was going to work that night to clean buildings with a friend
named Pat Wilkerson. (Id. at 56-57). An examination by
authorities revealed [Appellant] had not worked for Pat Wilkerson
since 2017 and there were no records of [Appellant] being
employed anywhere since September 2017. (N.T. Trial by Jury,
3/4/19, at 91). The parties also stipulated that, if Pat Wilkerson
were called to testify, he would confirm the last time [Appellant]
did any work for Mr. Wilkerson was [in] June 2017 and [Appellant]
was not working for Mr. Wilkerson at any time from February 18-
19, 2018. (N.T. Trial by Jury, 2/27/19, at 114). [Appellant] did
not have the keys to Ms. Jones’ apartment, but could access
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interior parts of the apartment building. (Id. at 58-59). Ms. Jones
indicated she next saw [Appellant] at approximately 5:30 a.m. on
February 19, 2018, when she let him into her apartment after he
had called her. (Id. at 62). Ms. Jones explained that she assumed
he was returning home from work at that time as he had similar
work schedules in the past. (Id.).
On February 18, 2018, at 7:06 p.m., [Appellant] [was]
caught on surveillance cameras at a Burlington Coat Factory in the
vicinity of Ms. White’s home in Cheltenham, PA. (Id. at 134). The
Burlington Coat Factory [L]oss Prevention Officer, Kevin
Cromwell, testified that the video and the sales record indicates
[Appellant] purchased a gray hooded sweatshirt, gray
sweatpants, a knife[,] and a chopping board. (Id. at 139, 146).
Mr. Cromwell testified that the knife was silver. (Id. at 150). The
surveillance video also indicates [Appellant] was wearing tan
Timberland boots while he [was] inside [of] the Burlington Coat
Factory. (N.T. Trial by Jury, 3/4/19, at 102). [Appellant] exited
the Burlington Coat Factory at 7:23 p.m. (N.T. Trial by Jury,
2/27/19, at 140).
[Appellant] subsequently entered a Wendy’s restaurant at
7:33 p.m. (Id. at 167). Surveillance video obtained from the
Wendy’s show[s] [Appellant] wearing the same tan Timberland
boots he is seen wearing in the Burlington Coat Factory
surveillance video. (Id. at 169). [Appellant] is later seen from
surveillance video traveling on a SEPTA bus towards his home and
wearing the same tan Timberland boots. (N.T. Trial by Jury,
3/4/19, at 104). [Appellant] is also seen holding a Burlington Coat
Factory bag. (Id.).
On February 19, 2018, at approximately 3:20 a.m.,
authorities responded to Eboney White’s apartment due to a
reported argument and located Ms. White deceased inside the
master bedroom upon their arrival at the scene. (N.T. Trial by
Jury, 2/22/19, at 67-68, 80). Officers observed the victim had
sustained multiple stab wounds. (Id. at 96-97). Ms. White’s
daughters, A.G. and E.G., were present at the scene when the
police arrived. (Id. at 75, 81). Authorities spoke with A.G. who
indicated a man in a gray hooded sweatshirt and a mask had
stabbed her mother. (Id. at 171). Authorities interviewed A.G.
several hours later[,] and she again indicated a man in a gray
hooded sweatshirt and a mask had stabbed her mother. A.G. also
stated the assailant was wearing tan Timberland boots. (N.T. Trial
by Jury, 2/27/19, at 162).
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Later that day, a forensic interview was conducted with A.G.
at a child advocacy center named Mission Kids. (N.T. Trial by Jury,
2/25/19, at 107). During the interview, A.G. stated that [at]
approximately 2:00 a.m. she saw a man in the doorway of her
mother’s bedroom who she thought may be [Appellant]. (Id. at
112-13-Commonwealth Exhibit 330-(b)). A.G. subsequently
described that the individual she had observed had a similar build,
stance[,] and mannerisms as [Appellant]. (Id.). She specifically
described the build as medium and the height as 6’2”. (Id. at
113). A.G. stated that she had previously seen [Appellant] inside
their apartment late at night. (Commonwealth Exhibit 330-(b)).
A.G. indicated she subsequently went back to sleep and, around
2:45 a.m., she heard screaming emanating from her mother’s
bedroom. (Id.). Upon entering the bedroom, A.G. observed that
the man she had seen earlier was stabbing her mother. (Id.).
A.G. stated the male was wearing a gray sweat suit set, which
included gray sweatpants, a gray sweatshirt, a hood, and a black
mask with words. (Id.). A.G. also stated the man was wearing
brown Timberland boots. (Id.). A.G. indicated that she screamed
at the assailant to stop hurting her mother, and he lunged at her
with a knife in his hand. (Id.). A.G. subsequently retreated to
her bathroom where she called 911. (Id.).
A.G. subsequently took part in a second interview at Mission
Kids on March 17, 2018. (N.T. Trial by Jury, 2/22/19, at 115).
During this interview, A.G. provided more details which she had
remembered, including the fact that she observed the assailant
leaning against the wall in the same manner that [Appellant]
would stand against the wall at the opening to the kitchen while
he was watching her mother cook. (N.T. Trial by Jury, 2/22/19-
Commonwealth Exhibit 331-(c)). A.G. also referenced how the
assailant’s body frame matched [Appellant’s] build. (Id.).
During her testimony at trial, A.G. restated this description
of the events she witnessed on the night of the murder. (See
generally N.T. Trial by Jury, 2/22/19, at 9-59). A.G. also
indicated the knife she observed the assailant using was silver and
small to medium in size. (Id. at 37). A.G. further indicated that
the assailant’s body frame was different from her father, David
Gardner’s, body frame. (Id. at 57). A.G. testified that she had
no doubt that [Appellant] was the one she saw murdering her
mom on February 18, 2018. (Id. at 58).
Bryant McKay, [Jr.], an individual who knew [Appellant]
from his childhood[,] testified that he was visiting his girlfriend at
the [same apartment complex where Ms. Jones lived] on February
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18, 2018. (N.T. Trial by Jury, 2/27/19, at 176, 179). Mr. McKay
explained that at approximately 1:15 a.m. he went to the “C”
building laundry room to put his clothes in the dryer. (Id. at 181).
Mr. McKay recalled that no one else was present in the laundry
room at that time. (Id.). Mr. McKay stated that he returned to
the laundry room at 4:40 a.m. to retrieve his clothes from the
dryer. (Id. at 182, 188). When Mr. McKay entered the laundry
room, he observed [Appellant] bent over the sink with the water
running. (Id. at 182). Mr. McKay described [Appellant] as
“aggressively cleaning himself.” (Id. at 183). Mr. McKay asked
[Appellant] if he was alright and [Appellant] replied “yea, yea,
yea, I’m cool, I’m cool,” but continued to aggressively wash
himself at the sink. (Id. at 184). [Appellant] had his shirt up and
was washing his body. (Id.).
Ernestine Scott received the news in the early morning
hours on February 19, 2018, indicating her daughter had been
murdered. (N.T. Trial by Jury, 2/22/19, at 240). Ms. Scott
contacted [Appellant’s] parents about the news and informed
them that Ms. White was carrying [Appellant’s] child. (Id. at
241). [Appellant’s] parents did not seem to know about the
pregnancy at this time. (Id.). Ms. Scott asked [Appellant’s]
parents to have [Appellant] call her. (Id. at 244). [Appellant]
eventually called Ms. Scott back and after she informed him of the
news [Appellant] immediately blamed David Gardner, the father
of Ms. White’s children. (Id. at 244-45). Ms. Scott also informed
[Appellant] that he needed to call the police. (Id. at 245).
[Appellant] reached out to authorities at 8:43 a.m. on
February 19, 2018, and subsequently met with them. (N.T. Trial
by Jury, 3/4/19, at 63). During the meeting, [Appellant]
accompanied authorities to his home and provided them with
clothes he claimed to have been wearing on February 18, 2018.
(Id. at 64). This clothing included a pair of black Timberland
boots, a pair of jeans, a maroon t-shirt, and a gray thermal shirt.
(Id.). During the course of this meeting, authorities received
screen shots from the Wendy’s surveillance footage for February
18, 2018, and observed that the clothing [Appellant] had provided
did not match the clothing depicted in the footage. (Id. at 67).
Authorities subsequently accompanied [Appellant] back to his
apartment, but he was unable to provide the clothes he was
wearing in the Wendy’s footage. (Id. at 67-68). [Appellant]
instead provided a pair of pink sneakers. (Id. at 68). When
authorities later obtained a search warrant for [Appellant’s]
apartment, they were unable to find any of the clothing
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[Appellant] was wearing in the Wendy’s video. (Id. at 72).
Authorities did, however, find an empty box for tan Timberland
boots. (Id.).
Authorities documented [Appellant’s] height and weight
during their meeting and noted that he was around 6’2” or 6’3”
and weighed about 220 lbs. (Id. at 80). Authorities also observed
that [Appellant] had fresh cuts on his right and middle ring fingers.
(Id. at 82). A glue like substance appeared to have been used to
seal these wounds and there was some magic marker coloring on
the wounds and on [Appellant’s] hands. (Id. at 82-83). During
this meeting, [Appellant] also provided the numbers for two (2)
cellular phones he possessed and provided written consent to
authorities to download the contents of these phones. (Id. at 90).
Upon receiving and viewing the surveillance footage from
Burlington Coat Factory, authorities procured a search warrant to
search for the items [Appellant] had purchased but were unable
to find any of these items. (Id. at 97). Authorities had previously
executed a search warrant for a gray sweatshirt and sweatpants
and were unable to find these items. (Id. at 96-97). During the
entire course of their investigation, authorities were unable to find
any of the items [Appellant] was wearing in the Wendy’s video or
the items he purchased in the Burlington Coat Factory video. (Id.
at 105, 115-16).
Jennifer Jones testified that [Appellant] owned a pair of tan
Timberland boots. (N.T. Trial by Jury, 2/27/19, at 65). Ms. Jones
further testified that she had never seen the gray sweatshirt,
knife, and cutting board [Appellant] had purchased from
Burlington Coat Factory on February 18, 2018. (Id. at 84-87).
Ms. Jones indicated that when she was with [Appellant] on
February 17 and 18, 2018, she did not notice any cuts on his
hands. (Id. at 65-66). Ms. Jones noted that this was something
she would have noticed since she is “very observant.” (Id. at 66).
[Appellant’s] friend, Aaron Mitchum, also indicated that during his
time with [Appellant] at the bar on February 17, 2018, he did not
notice any cuts on [Appellant’s] hands. (Id. at 121).
Detective William Mitchell, an expert in cell details records,
cell site tower mapping, and forensic cell phone analysis
conducted a cell site analysis of the two phones [Appellant]
provided to authorities. (N.T. Trial by Jury, 2/26/19, at 32).
Detective Mitchell found that one of [Appellant’s] cell phones was
accessing cell sites in the vicinity of the Wendy’s restaurant and
the Burlington Coat Factory on February 18, 2018, at 6:55 p.m.
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(Id. at 39-40). The phone remains in that vicinity until 8:05 p.m.,
at which time the phone accessed sites in the vicinity of
[Appellant’s] residence. (Id. at 41). This cell phone remained
using the site in this area until there is a gap in usage from 12:39
a.m. until 3:23 a.m. (Id. at 41-42). At 3:23 and 3:25 a.m., this
cell phone sent two (2) outgoing text messages to Ms. White’s cell
phone stating respectively: “Just woke back up. You up?” and
then “Just thinking. I really hope all this ends well. I don’t want
this to affect the kids negatively.” (Id. at 59). The phone
accessed a cell site in the vicinity of [Appellant’s] residence when
sending these messages. (Id. at 42-43). There is another period
of inactivity until 5:43 a.m. when this phone again sends text
messages to Ms. White’s phone. (Id. at 43). The phone is again
using cell tower sites in the vicinity of [Appellant’s] residence at
this time. (Id.). Detective Mitchell presented a video
demonstration in which he illustrated how [Appellant’s] cell phone
had the capability of prescheduling text messages to be sent at a
designated time in the future. (Id. at 45).
In the event [Appellant] did not preschedule these text
messages, authorities measured the distance between
[Appellant’s] apartment and Ms. White’s apartment to be 1.85
miles. Authorities performed an experimental walk along this
route at a “comfortable pace” on a Sunday night around 3:00 a.m.
and found it took approximately thirty-five (35) minutes. (Id. at
109). Authorities also experimented with driving the most direct
route between the two residences on a Sunday night [at] around
3:00 a.m. and found that while driving at a normal pace it took
approximately six (6) minutes. (Id.). Therefore, assuming the
murder took place [at] approximately 2:45 a.m. and [Appellant]
fled shortly afterwards, he would have had ample time to get back
to his residence and send these two text messages regardless of
his mode of travel.
Forensic Pathologist Khalil Wardak of the Montgomery
County Coroner’s Office testified that Ms. White died from multiple
stab wounds and [the] cause of death for the unborn child was
intrauterine death due to maternal stab wounds. (N.T. Trial by
Jury, 2/28/19, at 205-06). Dr. Wardak indicated that Ms. White
had defensive wounds which were consistent with an attempt to
block her attacker. (Id. at 211-12). Dr. Wardak testified that one
of Ms. White’s neck wounds was so deep it did not allow her brain
to receive oxygenated blood or return deoxygenated blood. (Id.
at 217). This wound cut through bone and artery. (Id. at 218).
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Dr. Wardak indicated this wound would have caused death within
one minute. (Id. at 218).
***
Dr. Wardak further testified that he examined the knife,
which authorities had purchased at the Burlington Coat Factory
[and which was an exact replica of the knife purchased by
Appellant]. [T]his knife was consistent with the stab wounds Ms.
White had sustained. (Id. at 19). Dr. Wardak also indicated that
slip injuries occur when an aggressor’s hand slips and cuts itself
on the knife. (Id. at 26). This hand slippage can occur when
there is an abundance of blood, such as in the instant matter,
which causes the knife to become slippery. (Id.). This slippage
can also occur where the aggressor stabs into bone, such as in the
instant matter, thereby causing the hand to slip and cut itself.
(Id.). Dr. Wardak concluded that [Appellant’s] hand injuries were
consistent with slip injuries and also consistent with an individual
who would be utilizing a knife similar to the one [Appellant]
purchased from Burlington Coat Factory. (Id. at 28).
With respect to David Gardner, the father of Ms. White’s
children, A.G. and E.G., he acknowledged during [his] testimony
that he had been physically abusive in the past to Ms. White in
part due to his alcoholism. (N.T. Trial by Jury, 2/25/19, at 206).
Following one of these incidents in 2017, Mr. Gardner moved to
South Carolina. (Id. at 206-07). Mr. Gardner also acknowledged
that he had a verbal confrontation with Ms. White in November
2017 when he traveled to Pennsylvania for a child support
hearing. (Id. at 207-10). Mr. Gardner insisted this confrontation
never became physical. (Id. at 210). Mr. Gardner subsequently
made the decision to move back to Pennsylvania in 2018 to be
closer to his mother and daughters. (Id. at 211).
Mr. Gardner lived with his mother, Veonda Gardner, in the
Mount Airy section of Philadelphia when he moved back to
Pennsylvania. (Id. at 216). On February 18, 2018, Mr. Gardner
spent the morning at his friend, Angela Yanni’s, house. (Id. at
212). Following his departure from Ms. Yanni’s home, Mr. Gardner
took the bus to his mother’s house and arrived at approximately
2:30 p.m. (Id. at 216, 256). Mr. Gardner stayed at this home the
rest of the evening due to a job interview he had the next morning.
(Id.). During this time period, he had dinner with his mother and
her fiancé and went upstairs to his room at approximately 8:00
p.m. to watch television and go to sleep. (Id. at 217). Mr.
Gardner’s mother and her fiancé were still in the downstairs
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portion of the house when he went to sleep. (Id.). Mr. Gardner
was awoken later in the night by phone calls to his cell phone from
his father and his uncle indicating Ms. White had been murdered.
(Id. at 220-22). Mr. Gardner subsequently received a ride from
his mother to the crime scene and gave a statement to the police.
(Id. at 224, 226). Authorities asked Mr. Gardner if they could
have his cell phone number and look at his cell phone, and he
obliged. (Id. at 227). Mr. Gardner also provided the clothing he
was wearing the night before in response to a police request.
(Id.). Mr. Gardner also allowed authorities to search his room
and take pictures of his face and body. (Id. at 227-28). As the
investigation into the murder progressed, Mr. Gardner, who had
moved to Florida in the meantime, flew up to Montgomery County
multiple times of his own free will to speak with investigators. (Id.
at 239).
Veonda Gardner testified and confirmed that Mr. Gardner
was with Ms. Yanni in the morning and early afternoon of February
18, 2018, and [he] returned home at 2:30 p.m. (Id. at 150). Ms.
Gardner also indicated Mr. Gardner had dinner with her at her
home that night and went upstairs to bed at approximately 8:00
p.m. (Id. at 150-51). Ms. Gardner stated her home is equipped
with an alarm system which has motion detectors covering the
downstairs area and, when armed, will begin beeping loudly in the
event anyone begins walking around. (Id. at 152-53). The alarm
also covered the exterior of the house and ingress/egress areas
such as the door. (Id. at 152). On the night of February 18,
2018, Ms. Gardner set the alarm at approximately 9:30 p.m. or
10:00 p.m. and went upstairs. (Id. at 153). Around 1:15 a.m.,
Ms. Gardner looked into her son’s room and saw that he was
sleeping. (Id. at 154). Following her activation of the alarm, Ms.
Gardner did not hear any beeps indicating someone was walking
around downstairs. (Id. at 156). Ms. Gardner further indicated
that no beeps from the alarm had awoken her during the night
and had the alarm beeped she would have easily been awoken
due to the volume of the system. (Id. at 173).
Jerry Scott, Veonda Gardner’s fiancé, also confirmed that
when he went to bed at approximately midnight, Mr. Gardner was
still inside his room. (Id. at 181). Mr. Scott testified that when
he woke up at 4:20 a.m., he walked by Mr. Gardner’s room and
observed that he was inside sleeping. (Id. at 185). Mr. Scott
indicated that he had to turn off the alarm when he went
downstairs that morning, which confirms it had been activated the
previous evening. (Id. at 188). Mr. Scott confirmed that he had
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not heard any beeping from the system overnight and the beeping
sound, which is triggered by motion in the downstairs area, would
have typically woken him up. (Id.). Mr. Scott also testified that
the alarm will be triggered when the door is ajar. (Id. at 177).
In the event the alarm was triggered, the security company would
call, but they did not receive any calls that day. (Id. at 198).
Detective Todd Richard of the Montgomery County Detective
Bureau confirmed that Mr. Gardner provided his phone number
[and] clothing, and he allowed authorities to take pictures of his
body and search his room. (N.T. Trial by Jury, 3/4/19, at 56-58).
Detective Richard indicated that he did not observe any fresh
injuries on Mr. Gardner’s hands when he spoke with him on
February 19, 2018. (Id. at 59). Detective Richard also spoke
with Ms. Yanni, Mr. Gardner’s mother, and her fiancé, and had the
opportunity to examine the cell site data for Mr. Gardner’s phone
showing the locations of his phone on February 18 and 19, 2018.
(Id. at 61). The detective testified that the information Mr.
Gardner had provided regarding his whereabouts was “perfectly
consistent” with his conversations with these individuals and his
examination of the cell site data. (Id. at 62). Detective Richard
also confirmed that Mr. Gardner’s mother did indeed have an
alarm system in her home. (Id.).
When viewed in a light most favorable to the
Commonwealth, as the verdict winner, the evidence was sufficient
to establish [Appellant] was the assailant who murdered Eboney
White [and her unborn child].
Trial Court Opinion, filed 2/3/20, at 34 -44 (footnote and bold omitted).
We agree with the trial court’s analysis in this regard, and applying the
requisite standard of review, we conclude the evidence was sufficient to
establish Appellant was the person who stabbed Ms. White. See Brooks,
supra.We specifically reject Appellant’s contention that “the Commonwealth
relied on tenuous inferences and speculation[.]” Appellant’s Brief at 25. A.G.
witnessed her pregnant mother’s murder. Her statements to authorities, as
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well as her in-court testimony identifying Appellant as her mother’s attacker,
and the extensive circumstantial evidence, sufficiently proved that Appellant
was the perpetrator of the crimes. See Commonwealth v. Chambers, 528
Pa. 558, 599 A.2d 630 (1991) (indicating circumstantial evidence alone may
be sufficient to sustain a conviction so long as the combination of the evidence
links the accused to the crime beyond a reasonable doubt).
Appellant next contends the jury’s verdict is against the weight of the
evidence. Specifically, Appellant avers A.G.’s identification of him as the
attacker is unreliable, particularly when weighed against the evidence
suggesting A.G.’s father, David Gardner, was the attacker, thus rendering the
jury’s verdict against the weight of the evidence.3
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
omitted). Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa.Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra.
____________________________________________
3 Appellant adequately preserved his weight claim in the lower court. See
Pa.R.Crim.P. 607.
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Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Here, in rejecting Appellant’s weight of the evidence claim, the trial court
relevantly indicated the following:
To the extent [Appellant] claims the identification testimony
presented by A.G. was weak, tenuous, vague, and tainted, this
claim is belied by the record. A.G. consistently stated, during
every Mission Kids interview, police interview, and trial testimony,
that the individual who was stabbing her mother was wearing a
gray hooded sweatshirt, gray sweatpants, and tan Timberland
boots. These are the same items [Appellant] was either wearing
or purchased [at the Burlington Coat Factory] on the night of the
murder. A.G. noted that the build of the assailant was similar to
[Appellant] and that he leaned against the wall in the same
manner as [Appellant]. A.G. also noted that this was not similar
to David Gardner’s build….A.G.’s growing confidence that
[Appellant] was the individual who committed these acts was due
to her having time to reflect and collect her thoughts rather than
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any undue influence placed upon her by authorities or family
members. The jury found her testimony to be credible[.]
To the extent [Appellant] contends the weight of the
evidence demonstrates David Gardner was the assailant, this
claim is also belied by the record. Mr. Gardner cooperated with
the police at every opportunity and did not have any type of
ultimatum hanging over him such as [Appellant]. Credible
evidence demonstrated Mr. Gardner was in his room at his
mother’s home at the time the murder occurred. Everything Mr.
Gardner told detectives was able to be verified, unlike the
materials [Appellant] provided to authorities.
Therefore, the verdict was not so contrary to the weight of
the evidence such that it shock one’s sense of justice.
Trial Court Opinion, filed 2/3/2020 at 46 (citation omitted).
We conclude the trial court did not abuse its discretion in denying
Appellant’s challenge to the weight of the evidence. Talbert, supra. We note
the jury was free to determine the weight to be given to A.G.’s testimony, as
well as reject Appellant’s theory that David Gardner was the perpetrator. To
the extent Appellant requests that we re-weigh the evidence and assess the
credibility of the witnesses presented at trial, we decline to do so as it is a
task that is beyond our scope of review. See Commonwealth v. Collins, 70
A.3d 1245, 1251 (Pa.Super. 2013) (stating that “[a]n appellate court cannot
substitute its judgment for that of the finder of fact”). Accordingly, we find
no merit to Appellant’s weight of the evidence claim.
In his final claim, Appellant contends the trial court erred in admitting
A.G.’s out-of-court statements, including the written statements A.G. made in
her diary, the oral statements A.G. made to the child forensic interview
specialist at Mission Kids, and the oral statements A.G. made to her
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grandmother (Ernestine Scott). Appellant contends A.G.’s out-of-court
statements were inadmissible hearsay not subject to an exception, and
therefore, the trial court erred in admitting the statements.
Initially, we note:
The standard of review employed when faced with a challenge to
the trial court’s decision as to whether or not to admit evidence is
well settled. Questions concerning the admissibility of evidence
lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court’s decision absent a clear abuse
of discretion. Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa.Super. 2010) (citations
omitted).
“Generally, an out-of-court statement is inadmissible at trial unless it
falls into one of the exceptions to the hearsay rule.” Commonwealth v.
Hunzer, 868 A.2d 498, 510 (Pa.Super. 2005). See also Pa.R.E. 801(c)(1)
(defining “hearsay” as statement that “(1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement”), 803 (“Hearsay is
not admissible except as provided by these rules, by other rules prescribed by
the Pennsylvania Supreme Court, or by statute.”).
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In the case sub judice, the trial court determined that A.G.’s out-of-
court statements were admissible under the Tender Years Hearsay Act.4
Pennsylvania’s Tender Years Hearsay statute relevantly provides the
following:
§5985.1. Admissibility of certain statements
(a) General rule.--
(1) An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 12 years of age or
younger, describing any of the offenses enumerated..., not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(1)(i)-(ii)(A)-(B) (bold in original).
Here, there is no dispute that A.G. was twelve years old when she made
the challenged out-of-court statements, Appellant’s charged crimes were
enumerated under the Tender Years statute, A.G. testified at trial, and A.G.’s
statements were relevant. See 42 Pa.C.S.A. § 5985.1. Rather, Appellant
contends the trial court erred in concluding “that the time, content and
____________________________________________
4We note the Commonwealth filed a pre-trial petition seeking to admit A.G.’s
out-of-court statements under the Tender Years Hearsay Act, and following a
hearing, the trial court granted the petition.
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circumstances of the statement[s] provide sufficient indicia of reliability[.]”
42 Pa.C.S.A. § 5985.1(a)(1)(i).
Our Supreme Court has relevantly held:
The “admissibility of this type of hearsay is determined by
assessing the particularized guarantees of trustworthiness
surrounding the circumstances under which the statements were
uttered to the person who is testifying. To determine whether a
child’s out-of-court statements are admissible under the [Tender
Years Hearsay Act],
a trial court must assess the relevancy of the
statements and their reliability in accordance with the
test enunciated in Idaho v. Wright.[5] Although the
test is not exclusive, the most obvious factors to be
considered include the spontaneity of the statements,
consistency in repetition, the mental state of the
declarant, use of terms unexpected in children of that
age and the lack of a motive to fabricate.
Commonwealth v. Walter, 625 Pa. 522, 93 A.3d 442, 451 (2014) (quotation
marks and quotation omitted) (footnote added).
Here, in determining there was sufficient indicia of reliability to permit
the admittance of A.G.’s out-of-court statements, which indicated Appellant
was the person who killed Ms. White,6 the trial court relevantly stated the
following:
____________________________________________
5 Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).
6 Regarding A.G.’s out-of-court statements, which she made in her diary and
to the forensic examiner at Mission Kids, Appellant avers generally that A.G.’s
statements regarding the build and mannerisms of her mother’s attacker had
insufficient indicia of reliability. Regarding A.G.’s out-of-court statements,
which she made to her grandmother, Appellant contends A.G.’s specific
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[T]he court held a hearing on the Tender Years exception.
During the hearing, testimony revealed that A.G., the victim’s
twelve-year-old daughter, made a 911 call to police on February
19, 2018, to report a stabbing at her apartment on Maher Way in
Elkins Park. (N.T. Hearing on Tender Years, 2/14/19, at 14).
When police arrived at the scene at approximately 3:20 a.m., they
located A.G. hiding in the bathroom of the apartment and found
the [sic] A.G.’s mother stabbed to death inside the apartment.
(Id. at 14). A.G. informed the police at the scene that a man
wearing a gray sweatshirt and mask had stabbed her mother. (Id.
at 21).
Later that day, at approximately 9:30 a.m., a forensic
interviewer met with A.G. at a child advocacy center known as
Mission Kids. (Id. at 35). During this interview, which was
videotaped, the interviewer utilized non-leading questions to get
responses from A.G. (Id. at 32). A.G. demonstrated that she
knew the difference between the truth and a lie and demonstrated
that she could remember a past event and describe it accurately.
(Id. at 35-36). During this interview, A.G. provided a detailed
recitation of what she had observed a few hours before, including
a physical description of the man in the gray sweatshirt and mask.
(Mission Kids Interview, 2/19/18, at 9-19, 42). A.G. stated that
[at] around 2:00 a.m. she saw the man standing in the doorway
of her mother’s room and suspected it was [Appellant]. (Id. at
9). A.G. also described how the assailant was wearing brown
Timberland boots. (Id.). A.G. also discussed how her father,
David Gardner, had been abusive to her mother in the past and
talked in detail about that relationship. (Id. at 29-31).
Following her mother’s murder, A.G. moved to Texas to stay
with her grandparents and began to remember more about what
she had observed on the night of her mother’s murder. (N.T.,
Hearing on Tender Years, 2/14/19, at 76). A.G. informed her
grandmother about what she was remembering and she advised
A.G. to keep a journal and write down anything else which came
to mind about what she had observed. (Id.).
On March 17, 2018, A.G. participated in a follow-up
interview at Mission Kids. (Id. at 37). The interviewer again
presented competency questions to A.G., including whether she
____________________________________________
statement to her grandmother indicating Appellant committed the murder had
insufficient indicia of reliability. Appellant’s Brief at 22-23.
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knew the difference between the truth and a lie. (Id. at 38). The
interviewer confirmed in testimony that A.G. appeared to be “just
as bright and articulate as the first time [the interviewer] spoke
with her.” (Id.). Prior to the interview, the forensic interviewer
had been provided with entries from A.G.’s journal. (Id. at 39).
During the interview, A.G. indicated she learned [Appellant] had
been identified as a person of interest. (Id. at 40). A.G. stated
she learned this information from her grandmother, who had
learned from the police. (Mission Kids Interview, 3/17/18, at 17).
A.G. told the interviewer that she wanted to participate in a
follow-up interview because her head was “a little more clear” and
she was remembering some additional things from the last time
she spoke with the interviewer. (Id. at 3). Specifically, A.G. was
remembering some context clues which made her think
[Appellant] could have been the perpetrator. (Id.). A.G.
remembered how [Appellant] would lean up against the wall at
the opening to the kitchen while he was watching her mother
cook. (Id. at 3-4). A.G. stated that the way the assailant was
standing in the hallway on the night of the murder reminded her
of the exact way [Appellant] would stand against the wall. (Id.
at 4). A.G. also provided details regarding the night of the
murder, which were consistent with the description she had
previously provided during the February 19 interview. (See
generally id. at 9-15).
During the interview, A.G. never identified [Appellant] as
the individual who committed the murder. (N.T. Hearing on
Tender Years, 2/14/19, at 40). The interviewer testified that it
never appeared to her that A.G. was representing anything but
her own beliefs or memories. (Id.). The interviewer further
testified that she never had any sort of impression that A.G.’s
statements came from someone other than herself. (Id. at 41).
The majority of A.G.’s statements in the Mission Kids
interview and the statements she made to her grandmother about
her additional memories were admissible under the Tender Years
Act….The content and circumstances of A.G.’s
statements…provide sufficient indicia of reliability. A.G. made her
statements close in time to the event, she had a clear and
coherent mental state and provided ample detail regarding the
incident, which contains a particularized degree of
trusthworthiness. See Walter, supra. A.G. had no apparent or
obvious motive to fabricate. See id. A.G. was also very articulate
and was able to describe the incident without any prompting or
suggestive questioning. A.G. consistently described what
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occurred on the night of the murder and the fact that she
remembered additional details following the first interview was
simply the result of A.G. synthesizing context clues in the following
weeks once she had a chance to calm down[.] Lastly, A.G.
testified at the Tender Years Act hearing and at trial, and [she]
was available for cross-examination. Therefore, A.G.’s out of
court statements…were admissible under the Tender Years
Exception to the rule against hearsay.
Trial Court Opinion, filed 2/3/2020, at 14-17.
We find no abuse of discretion in this regard. See Young, supra.Specifically, the trial court properly examined the trustworthiness of A.G.’s
out-of-court statements. In so doing, the trial court considered the
spontaneity of A.G.’s statements, her consistency in making her statements,
her mental state, and her lack of a motive to fabricate. See Walter, supra.Further, there is no indication A.G. used terms unexpected of a child her age.
See id.Simply put, the trial court did not abuse its discretion in concluding the
time, content, and circumstances of A.G.’s statements provide sufficient
indicia of reliability so that the statements were admissible under the Tender
Years Hearsay Act.
For all of the foregoing reasons, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2020
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