Com. v. Holmes, J.

J-S39035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH HOLMES :
:
Appellant : No. 3734 EDA 2016
Appeal from the Judgment of Sentence April 19, 2013
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002747-2009
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 23, 2020
Joseph Holmes (Holmes) appeals nunc pro tunc from the April 19, 2013
judgment of sentence imposed by the Court of Common Pleas of Philadelphia
County (trial court) following his convictions for aggravated assault, robbery,
kidnapping, persons not to possess, conspiracy, and possession of an
instrument of crime.1 After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 2901(a)(1), 6105(a)(1), 903(a)(1),
& 907(a). Holmes was convicted following a bifurcated trial at which the trial
court sat as fact-finder for the charge of persons not to possess and the
remaining charges were adjudicated by a jury.
J-S39035-20
I.
A.
The trial court summarized the facts of this case as follows:
On October 24, 2008, [Holmes], Jennifer Konopki, Brandon Lee,
and Naimah Fisher were in [Holmes’] residence at 8064 Forrest
Avenue in Philadelphia.7 Konopki told [Holmes] and Lee that she
knew a way for them to acquire money from a man that she used
to escort who had $30,000 in his bank account. She devised a
plan to tell the man that she needed him to drive her and her son
back to their residence in Wilkes-Barre. [Holmes], Konopki, and
Lee then left the residence, but Fisher stayed at the house along
with Konopki’s child.
7 Naimah Fisher was [Holmes]’s girlfriend at the time.
Shortly thereafter, Konopki called Robert Moir (the Complainant)
on the phone. She asked him to pick her up in Philadelphia and
drive her and her baby home. The Complainant agreed to help,
and he met Konopki at 10th and Filbert Streets. Konopki entered
the Complainant’s car, but her child was not with her. Before
entering the car, she asked the Complainant to stop at a K-Mart
department store. They stopped at K-Mart where the Complainant
bought Konopki a car seat, diapers, and baby clothes. She then
asked the Complainant to drive her to 3846 North 8th Street to
pick up her baby. When they arrived at the address at about 4:30
p.m., Konopki asked the Complainant to come in to meet her
uncle. The Complainant complied. When the Complainant
entered the house, [Holmes] and Brandon Lee immediately
pushed him to the floor. One man pointed a gun at the
Complainant.21 [Holmes] and Lee then covered the
Complainant’s head with a pillowcase. [Holmes] and Lee
carried him from the first floor down to the basement.
21Both men had covered their heads with sweatshirts so
that only a section of their faces from their eyebrows to
their noses was exposed. The Complainant was unsure
whether [Holmes] or Lee held the gun.
In the basement [Holmes] and Lee took off the Complainant’s
shirt, socks, and shoes. They also tied the Complainant’s legs
to a chair, handcuffed, and gagged him. Someone hit the
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Complainant with a gun on the right side of his forehead and
punched him in the stomach. The punch was so hard that the
chair leg collapsed, and the Complainant fell to the floor.
[Holmes] and Lee shouted at the Complainant and demanded his
bankcard Personal Identification Number (PIN). Konopki then
came down to the basement and urged the Complainant to
tell [Holmes] and Lee his PIN or they would kill him. As a
result, the Complainant gave them his PIN number. As they
left the basement, one of the men told the Complainant that they
would return and cut his toes off one at a time until he gave them
his retirement fund. [Holmes], Konopki, and Lee then went
upstairs and left the house while the Complainant was still
gagged, bound to a chair, and lying on the floor.
Approximately five minutes after [Holmes], Konopki, and Lee left,
a third man, Raheem Williams, entered the basement and told the
Complainant that he would let him go. This man removed the
pillowcase from the Complainant’s head, untied his ropes and
gave him back his sweatshirt and shoes. The Complainant’s
handcuffs could not be removed since the man could not find the
handcuff key. The man then took the Complainant upstairs and
told him to leave. The Complainant called the police from a nearby
store.
At approximately 6:40 p.m., Philadelphia Police Officers Joseph
Moore and Bruce Cleaver responded to the call and found the
Complainant at the corner store bleeding from the head and back.
The Complainant’s hands were still cuffed behind his back, and his
wrists were bleeding. The Complainant told Officer Moore that he
had been kidnapped and robbed by several black males. The
Complainant also gave a description of Konopki, his car, and the
address where he had been assaulted. The officers drove the
Complainant down 3846 N. 8th Street. A few minutes later, as
the officers travelled northbound on 8th Street with the
Complainant, Officer Moore saw [Holmes], Konopki (the driver),
and Lee in the Complainant’s car traveling southbound on 8th
Street.42 After Konopki parked, the officers investigated the car
occupants. The Complainant subsequently positively identified
each as participants in the robbery and kidnapping.44 The
officers confiscated $610 from [Holmes]. The officers
confiscated four $100 ATM withdrawal receipts in the
Complainant’s name from Lee. The officers also recovered
a Tec-9 semi-automatic handgun loaded with 26 live
rounds from the trunk of the Complainant’s car. The
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Complainant identified the gun as the weapon used to beat and
rob him. Later, Fire Department personnel cut the handcuffs off
the Complainant’s wrists.
42From the time the officers met the Complainant to when
the officers saw Konopki park the Complainant’s car two
houses from the scene was about one to two minutes.
44Officer Cleaver heard the Complainant identify [Holmes],
Konopki, Lee, and his car.
At trial, Brandon Lee testified that [Holmes] did not know about
his plan to rob the Complainant, and he owned the handgun. Lee
also testified that he and three others (Killer, Blizz, and Lump)
committed the crime.
Trial Court Opinion, 3/8/18, at 2-5 (citations omitted, emphasis in original).
Holmes and Konopki were tried jointly for the above-mentioned
offenses. Prior to trial, Holmes made an oral motion to suppress the victim’s
on-scene identification of Holmes and argued that the officers did not have
probable cause to arrest him at the scene of the incident.2 At the suppression
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2 Holmes did not file a written motion to suppress in accordance with the Rules
of Criminal Procedure. See Pa.R.Crim.P. 581, 578. At the beginning of the
suppression hearing, he stated, “the Motion to Suppress will go for probable
cause to arrest as well as anything seized in the car linking him to the crimes
charged.” N.T., 10/24/12, at 8. After the testimony at the suppression
hearing, there was a lengthy discussion between the parties and the trial court
as to whether Holmes had properly raised any suppression issues related to
the identification of Holmes. Id. at 38-50. Counsel for Konopki indicated that
Holmes had adopted her written motion to suppress, which had included a
challenge to the identification. Id. at 41. Ultimately, Holmes elected to
withdraw his request to challenge the two line-ups during the suppression
hearing and proceeded to argue only that Holmes’ arrest was not supported
by probable cause because there was insufficient evidence to identify him as
one of the perpetrators of the attack. Id. at 50-53. Our review of this issue
is hampered by the fact that Holmes did not file a written motion or ensure
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hearing, Officer Joseph Moore testified that he responded to a 911 call from a
corner store and spoke to the victim, who reported that he had been attacked
by several black males in a nearby house. Officer Moore and his partner
immediately transported the victim back to the house to identify the location
of the attack. As they approached the house, they saw the victim’s car driving
towards them. The victim’s car pulled over and Holmes stepped out. Konopki
and Lee were still sitting in the vehicle. Officer Moore and his partner
immediately stopped Holmes, Konopki and Lee and the victim identified all
three individuals as involved in the attack. They were then placed under
arrest. Officer Moore testified that approximately three minutes elapsed
between when he responded to the 911 call and encountered Holmes, Lee and
Konopki.
The trial court denied the motion to suppress, but stated that it would
place its findings of fact on the record at a later time. Officer Moore and
Officer Cleaver then testified at trial that the victim had made an on-scene
identification of Holmes as one of his attackers. After the jury had begun
deliberations, the trial court placed its findings of fact and conclusions of law
on the record. The trial court found that the officers located Holmes within
____________________________________________
that a copy of Konopki’s written motion was included in the certified record on
appeal. However, when it issued its findings of fact on the suppression
motion, the trial court addressed the merits of the motion to suppress the
victim’s on-scene identification of Holmes. N.T., 11/8/12, at 106-110.
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three minutes of receiving the radio call for the robbery and they observed
both Holmes and Konopki inside the victim’s car. The victim then immediately
identified Holmes to the officers as one of his attackers. The trial court also
considered the voice line-up, described infra, where the victim narrowed-down
the possible suspects to two individuals, including Holmes. Based on all of
these circumstances, the trial court concluded that the on-scene identification
was sufficiently reliable to submit to the jury for consideration.
At trial, the victim was questioned extensively regarding his
identification of Holmes as one of the assailants. The victim testified that the
male assailants had covered their faces such that only the area from their
eyebrows to their noses was visible. He saw the assailants briefly when he
entered the house before they placed a cover over his head, and he saw one
of the assailants again when he moved the cover to place a gag in the victim’s
mouth. Based on those instances, he identified Holmes, Lee and Konopki as
his assailants when they were found in his car. A fourth male was found hiding
inside the house where the attack took place, but the victim told officers that
this individual had not been involved in the attack.
A few weeks after the incident, the victim attended a voice line-up and
listened to several males recite lines that the assailants had used during the
attack. The victim initially asked to listen to two of the individuals a second
time, believing that the assailant was one of the two. However, after listening
to all of the voices a second time, he could not positively identify any of the
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individuals as one of the assailants. One of the two individuals he initially
thought might have been involved in the attack was Holmes. A couple of
months later, the victim attended a visual line-up in which all of the males had
their faces covered in the same manner as the assailants had on the night of
the attack. The victim was not able to identify any of his attackers in the
visual line-up. At the preliminary hearing, the victim identified Lee as one of
the attackers but was again unable to identify Holmes.
On cross-examination, the victim admitted that he could not make an
in-court identification of Holmes as one of his attackers with 100 percent
certainty, though he recalled that he was able to identify him as one of the
individuals involved when he saw Holmes immediately after the incident.3 The
victim testified that he did recognize Holmes at the time of trial because an
officer had shown him a photo of Holmes, but he did not testify as to when he
was shown that photo. He did not dispute that he was unable to identify
Holmes as one of the attackers at the voice line-up, visual line-up or
preliminary hearing. Holmes did not move for a mistrial or other form of relief
when the victim testified that he had been shown a photo of Holmes by one
of the officers. N.T., 11/5/12, at 236-37.
Additionally, Fisher testified at trial that she witnessed Konopki, Lee and
Holmes plan the kidnapping and robbery. Fisher had been dating and living
____________________________________________
3 The trial took place four years after the attack.
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with Holmes for several years at the time of the incident. On the night of the
attack, she was at his home with Holmes, Konopki and Lee, and Konopki told
them that she knew a man from Wilkes-Barre who had $30,000 in a bank
account. Konopki said that she could ask the man to meet her in Philadelphia,
and she, Holmes and Lee planned to rob him and take his money from ATM
machines. Fisher interrupted the conversation and said that the plan would
not work and they should not go through with it, and Holmes told her to mind
her own business and go upstairs. Fisher saw Holmes, Konopki and Lee leave
the house in two vehicles twenty minutes later. She next heard from Holmes
approximately two hours later when he called her and told her they had been
arrested.
Fisher spoke with Holmes and Konopki by phone and letter while they
were incarcerated. In one conversation with Konopki, they discussed whether
Holmes and Lee were likely to talk to the police about the crime. In a
conversation with Holmes, they spoke about Konopki’s release from
incarceration. Holmes stated that Konopki should talk to the victim and tell
him not to come to the trial or ask him to sign an affidavit averring that Holmes
was not involved in the attack. Holmes also sent Fisher a letter instructing
her to have someone call the victim “to send the boy a message” and tell him
“his life is on the line” before the trial date. N.T., 11/7/12, at 39. Finally,
Fisher identified the Tec-9 that had been recovered from the victim’s car at
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the time of the arrests and stated that she had seen Holmes with the weapon
in the past.
B.
Following the reception of the evidence, Holmes was found guilty of the
above-mentioned offenses. The trial court sentenced him to 10 to 20 years’
incarceration each for the counts of aggravated assault, robbery and
kidnapping, and five years’ probation for the count of persons not to possess.
The sentences were imposed consecutively for an aggregate sentence of 30
to 60 years’ incarceration followed by 5 years of probation. Holmes’s appellate
rights were twice reinstated pursuant to the Post-Conviction Relief Act,4 and
he was permitted to proceed pro se on appeal. Holmes and the trial court
have complied with Pa.R.A.P. 1925.
On appeal, Holmes raises various challenges to the admission and
reliability of the identification evidence at trial, the non-disclosure of the photo
that the victim was shown of Holmes prior to trial, the admission of Fisher’s
testimony, and the cumulative effect of those alleged errors. Additionally, he
argues that the evidence was insufficient to support his convictions, that his
convictions were against the weight of the evidence, and that he has not been
provided with the preliminary hearing transcript for use in litigating this
appeal. We now turn to the merits of these claims.
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4 42 Pa.C.S. § 9541 et seq.
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II.
Holmes’s first three issues on appeal relate to the identification
testimony and we address them together. He first argues that the trial court
abused its discretion in denying his motion to suppress the victim’s on-scene
identification, as the identification was unreliable and the circumstances
surrounding the identification were unduly suggestive. Next, he claims that
the victim’s in-court identification was tainted because an officer showed the
victim a photo of Holmes at some point prior to the trial. Finally, in what he
frames as a Brady5 claim, he argues that the Commonwealth committed
prosecutorial misconduct by failing to disclose that an officer showed the
victim a photo of Holmes prior to trial.
A.
In his challenge to the trial court’s ruling on his suppression motion,6
Holmes claims that the victim’s identification was unduly suggestive and
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5 Brady v. Maryland, 373 U.S. 83 (1963).
6 Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
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should have been suppressed because the victim did not have an adequate
opportunity to view the perpetrators during the attack, he was under
significant stress during the incident, and he initially gave officers a vague
description of the perpetrators.7 We disagree.
“In reviewing the propriety of identification evidence, the central inquiry
is whether, under the totality of the circumstances, the identification was
reliable.” Commonwealth v. Milburn, 191 A.3d 891, 899 (Pa. Super. 2018)
(citation omitted). Suppression of an identification is proper only when the
procedure is “so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Id. at 900 (citation
omitted, emphasis in original).
Suggestiveness in the identification process is but one factor to be
considered in determining the admissibility of such evidence and
will not warrant exclusion absent other factors. As this Court has
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... the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012).
7 Holmes also argues that the on-scene identification was tainted because
before the victim made the identification, he heard the officers at the scene
say that the suspects had been located inside the victim’s car. As he did not
present this argument during the suppression proceedings, it is waived.
Pa.R.A.P. 302(a); Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.
2008) (holding that legal theories that were not presented to the trial court
may not be raised for the first time on appeal).
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explained, the following factors are to be considered in
determining the propriety of admitting identification evidence:
the opportunity of the witness to view the perpetrator at the time
of the crime, the witness’ degree of attention, the accuracy of his
prior description of the perpetrator, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors.
Absent some special element of unfairness, a prompt “one on one”
identification is not so suggestive as to give rise to an irreparable
likelihood of misidentification. Indeed, we have regularly held that
a prompt one-on-one identification enhances the reliability of the
identification.
Commonwealth v. Hale, 85 A.3d 570, 574 (Pa. Super. 2014) (cleaned up).
In Hale, the defendant broke into the victim’s home, pointed a gun at
her, and forced her to put her head under a pillow and blanket before he took
her television and left the house. Id. at 572. The defendant was apprehended
approximately one hour later and detained in handcuffs while the victim was
transported to the scene. Id. The victim rejected another individual at the
scene as the perpetrator before she identified the defendant as the man who
had broken into her home. Id. We held that the trial court did not err in
denying the motion to suppress the identification, as the victim had the
opportunity to view the defendant before her head was covered, little time
passed between the incident and the identification, and the victim was certain
at the scene that the defendant was the perpetrator. Id. at 575.
Here, Officer Moore testified that he responded to a radio dispatch for a
robbery and carjacking and met the victim, who was handcuffed and bleeding.
The victim told him that he had been attacked by several black males in black
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clothing and that they were with a white female with blonde hair named
Jennifer, who was known to the victim. He told the officers that the males
had taken his ATM card and car keys. Officer Moore and his partner
immediately put the victim in their vehicle and asked him to show them the
house where the attack had taken place, which was nearby. As they drove
down the street, the officers observed the victim’s car approaching them from
the opposite direction. The car pulled over and Holmes exited the back seat
while Lee and Konopki sat in the front. Officer Moore and his partner stopped
all three individuals and the victim identified them as his attackers.
Officer Moore recovered $610 in cash from Holmes and $991 in cash
from Lee. In addition, Lee had four ATM withdrawal receipts documenting
$100 withdrawals from the victim’s bank account. The victim’s wallet was
recovered from inside the vehicle and the officers found the Tec-9 in the trunk
of the vehicle. The victim confirmed that the Tec-9 found in the trunk of the
car had been used during the attack. Officer Moore testified that three
minutes elapsed between when he received the radio call and responded to
the scene and when they encountered the three co-defendants in the victim’s
vehicle.
We conclude that the on-scene identification was sufficiently reliable and
the trial court did not err in allowing the jury to hear this evidence. While the
victim’s head was covered during much of the attack, like the witness in Hale,
he had the opportunity to view his attackers before they covered his face. The
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victim provided the officers with a general description of his attackers before
Holmes, Lee and Konopki were apprehended, and the victim was personally
familiar with Konopki before the incident occurred. The identification took
place mere minutes after the victim was freed and the officers received the
initial report of the attack. In addition to identifying Holmes and Lee as his
attackers at the scene, the victim was able to confirm that a third black male,
who had been found hiding in the house, was not involved in the attack. Under
these circumstances, the on-scene identification was sufficiently reliable and
the trial court did not err in denying the motion to suppress.
B.
Next, Holmes contends that the victim’s in-court identification was
tainted because an officer showed the victim a photograph of Holmes at some
point prior to trial. He argues that the victim’s in-court identification violated
due process because the photo rendered the procedure unduly suggestive. As
the victim repeatedly testified at trial that he could not positively identify
Holmes as one of his attackers, this claim is meritless.
On direct examination, the victim testified that after he was picked up
by the police, he was taken to the area where the attack occurred where
officers showed him four individuals they had apprehended. The victim
testified that those individuals included Konopki, the individual who had been
hiding inside the house, and two other males. The district attorney then asked
the victim, “Now, today, again more than four years later, are you able to say
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today if anyone in the courtroom was one of the males that you were shown?”
N.T., 11/5/12, at 164. The victim then confirmed that he saw Holmes at the
time of the on-scene identification. Id. The victim did not testify as to
whether he recognized Holmes in court as one of the attackers. The victim
also testified that he was unable to identify Holmes at the visual or voice line-
ups during the course of the investigation.
On cross-examination, Holmes’ attorney asked the victim how he could
recognize Holmes at the time of trial when he was unable to identify him
during the line-ups three years prior and the following exchange occurred:
Q: But now four years later you can identify Mr. Holmes and Mr.
Holmes isn’t even wearing a hoodie. So is it that your recollection
just was so totally refreshed now?
A: I don’t know, sir.
Q: I can’t hear you, sir.
A: I don’t know, sir.
Q: You don’t know?
…
A: I was shown pictures of Mr. Holmes.
Q: When were you shown pictures of Mr. Holmes?
A: Like I saw him the night of when they brought the three men
out to — from my car. I actually saw four persons. Fourth person,
Jennifer, and the gun.
Q: We’ll get to that.
A: Okay.
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Q: But you're stating to me that some officer of the law or
someone showed you a picture of Mr. Holmes?
A: Yes.
Q: And you said, yeah, that was him?
A: I don’t remember what I said, sir.
Q: Okay. So you don’t know whether you identified him or not.
Somebody showed you a picture that was later identified as
Holmes but you don't know if that was guy in the incident, correct?
A: No, sir.
Q: All right. Because we’re only after the truth of the matter.
A: That’s all I’m here for, sir.
Q: All right. So now getting back to what I was asking you to do—
A: Yes, sir.
Q: All right. You cannot 100 percent tell this jury, tell this judge
and everybody in it, that Mr. Holmes was in that incident on
October 24th on that house on 8th Street? You can't do that; can
you?
A: No, sir.
Q: You can’t?
A: No, sir.
Q: No, correct?
A: Yes, sir.
Q: That’s your answer?
A: Yes, sir.
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N.T., 11/5/12, at 236-37. Holmes’ attorney did not question the victim further
regarding when or in what context the officer had shown him a photo of
Holmes. The victim later confirmed that when he saw Holmes at the scene,
he told officers that he had been involved in the attack, but he was not able
to identify Holmes in the visual line-up. N.T., 11/6/12, at 62-67.
The record reflects that the victim was unable to make an in-court
identification of Holmes as one of his attackers. He testified candidly on
multiple occasions that he was not able to recognize Holmes at the preliminary
hearing, the visual line-up, the voice line-up or at trial, and he was thoroughly
cross-examined regarding the on-scene identification. While the victim stated
that an officer had shown him a photo of Holmes, he did not testify and was
not asked when this event occurred, though presumably it would have been
after Holmes was arrested. There is no support for Holmes’ argument that
the victim made a tainted in-court identification of him as a result of seeing
the photo, as the victim did not identify him in court as one of his attackers
at all. This claim is meritless.
C.
Finally, Holmes claims that the Commonwealth engaged in prosecutorial
misconduct by failing to disclose to the defense that the victim was shown a
photo of Holmes before trial. He argues that this failure constituted a Brady
violation and deprived him of due process. This claim is waived. As noted
supra, Holmes learned during cross-examination of the victim that an officer
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had shown the victim his photo at some point prior to trial. While Holmes now
contends that he was deprived of a fair trial by the non-disclosure, he did not
present this argument to the trial court or seek a continuance, mistrial or
dismissal of the charges based on the non-disclosure. Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Instead, he elected to continue with his cross-
examination of the victim and challenged the credibility of the victim’s on-
scene identification. Because Holmes did not raise his Brady claim in the trial
court, it is waived.8 Commonwealth v. Creary, 201 A.3d 749, 752-53 (Pa.
Super. 2018) (holding that the defendant waived his Brady argument by
failing to present it to the trial court).
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8 Even if Holmes had properly presented his Brady claim to the trial court, we
would conclude that no relief is due because he is unable to establish
prejudice. “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). As discussed
in Part III.B, supra, the victim was unable to identify Holmes as his attacker
at trial despite seeing the photo of Holmes beforehand. The defense
thoroughly cross-examined the victim, who admitted repeatedly that he had
never positively identified Holmes as his attacker after the night in question.
Because viewing the photo did not lead the victim to make any additional
identification of Holmes, and Holmes was able to cross-examine the victim
regarding the photo at trial, we cannot conclude that he was prejudiced when
the Commonwealth did not disclose the photo prior to trial.
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III.
Next, Holmes contends that the trial court erred by admitting Konopki’s
inculpatory statements which “collaterally incriminated” him when he was not
afforded the opportunity to cross-examine Konopki regarding those
statements.9 See Holmes’s Brief at 61-63. Holmes argues that he was
deprived of his Sixth Amendment right to confront Konopki in violation of the
principles established in Bruton v. United States, 391 U.S. 123 (1968),10
because the statements were introduced without Konopki’s testimony.
The statements at issue were admitted through Fisher’s testimony, as
the Commonwealth played tapes of the phone conversations Fisher had with
Konopki while Konopki was incarcerated. In the conversations, Konopki and
Fisher discuss the individual, who was Holmes’s cousin, who freed the victim
from his restraints and let him out of the house after the attackers had left
with his bank card and car. Fisher said that she thought Konopki might talk
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9 While Holmes and Konopki proceeded to trial together, Konopki failed to
appear on the second day of trial and was tried in absentia. See
Commonwealth v. Konopki, 1683 EDA 2013, at *3 (Pa. Super. May 21,
2015) (unpublished memorandum).
10 In Bruton, the Supreme Court held that in a joint trial, a defendant’s right
of confrontation is violated when a non-testifying co-defendant’s confession
naming the defendant as a participant in the crime was admitted into
evidence. Such a confession may be admitted into evidence only if the
confession “is altered to remove the defendant’s name and any reference to
his existence, and a proper limiting instruction is given.” Commonwealth v.
Markman, 916 A.2d 586, 601 (Pa. 2007). The alteration or redaction must
not be in such a manner that it “clearly refers to the defendant.” Id.- 19 -
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to the police about the events, but said that Holmes and Lee would not talk to
the police. In another call, Konopki told Fisher that she and Holmes did not
say anything that would get Lee in trouble.
Again, this argument is waived. First, Holmes did not object to Fisher’s
testimony at the time of trial. While counsel for Konopki sought to exclude
the phone calls on other grounds prior to and during trial, Holmes did not
present his Confrontation Clause argument to the trial court or object to the
admission of the phone call on any other ground. Thus, he failed to preserve
this issue for appeal. Pa.R.A.P. 302(a). Second, while Holmes included a
challenge to Fisher’s testimony in his concise statement pursuant to Pa.R.A.P.
1925(b), he did not raise a challenge to the admission of Konopki’s statements
as a violation of his Confrontation Clause rights. See Appellant’s Pa.R.A.P.
1925(b) Concise Statement of Matters Complained of on Appeal, 11/14/17, at
1-2. Because the argument he presents on appeal was not preserved in his
concise statement, it is waived. Pa.R.A.P. 1925(b)(4)(vii).11
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11Nonetheless, we note that Konopki’s statements in the taped conversations
with Fisher were non-testimonial. The principle in Bruton protects the
accused’s right under the Confrontation Clause to cross-examine his accusers.
However, the United States Supreme Court has held that the Confrontation
Clause’s protections apply to testimonial statements, not non-testimonial
statements. Crawford v. Washington, 541 U.S. 36, 51-52, 68 (2004). The
“core class of testimonial statements” includes statements in “affidavits,
depositions, prior testimony at a preliminary hearing, before a grand jury, or
at a former trial, or given during police interrogations,” but also includes
statements made for the primary purpose of investigating a crime or collecting
evidence for future prosecution. See Commonwealth v. Abrue, 11 A.3d
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IV.
Next, Holmes contends that the cumulative prejudice of the alleged
errors addressed in Parts III and IV, supra, deprived him of a fair trial. As we
have determined that all of these alleged errors are waived or meritless, we
need not consider this claim further.
V.
We address Holmes’ next two claims together. First, Holmes asserts
that the evidence was insufficient to support his convictions because the
evidence did not establish beyond a reasonable doubt that he was one of the
individuals involved in the attack. In the alternative, he argues that his
convictions were against the weight of the evidence. Both claims are waived.
As the trial court noted in its opinion, when raising a challenge to the
sufficiency of the evidence, an appellant’s concise statement must identify the
specific element of the crime that he alleges was not proven at trial. Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Hoffman, 198 A.3d 1112, 1125 (Pa.
Super. 2018). “Such specificity is of particular importance in cases where, as
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484, 491-92 (Pa. Super. 2010) (quoting Crawford, supra). Konopki’s
statements made in casual conversation with Fisher were non-testimonial and,
thus, their admission was governed by the rules of evidence, not the
Confrontation Clause. See Crawford, supra, at 51 (“An accuser who makes
a formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.”). As a
result, Holmes’ argument that the statements were inadmissible pursuant to
Bruton has no merit.
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here, the [a]ppellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond a reasonable
doubt.” Hoffman, supra (citation omitted; alteration in original).
Holmes included a boilerplate challenge to the sufficiency of the
evidence in his concise statement that did not alert the trial court that his
challenge was based on the sufficiency of the identification evidence. See
Appellant’s Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on
Appeal, 11/14/17, at 1 (“Whether the [e]vidence introduced against appellant
during his trial was [s]ufficient to establish beyond a reasonable doubt the
charge(s) for which he was held for court to answer?”). The trial court
nonetheless attempted to address the merits of Holmes’ claim in its opinion,
but because Holmes did not clarify that he was challenging the evidence that
supported his identification, its analysis was confined to discussing the
evidence that supported the substantive elements of each offense. Trial Court
Opinion, 3/8/18, at 6-11. Because Holmes’ challenge was not preserved in
his concise statement, this argument is waived.12
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12Even if Holmes had not waived appellate review of this argument, we would
conclude that the evidence at trial was sufficient to establish Holmes’
participation in the crimes.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
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Holmes also raises a challenge to the weight of the evidence to support
his convictions. A challenge to the weight of the evidence must be raised in
the trial court through a motion for new trial. Pa.R.Crim.P. 607(A). “Appellate
review of a weight of the evidence claim is limited to a review of the judge’s
exercise of discretion.” Id., cmt (citing Commonwealth v. Widmer, 689
A.2d 211 (Pa. 1997); Commonwealth v. Brown, 648 A.2d 1177, 1189-92
(Pa. 1994)). Our review of the record confirms that while Holmes filed a post-
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established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.
Commonwealth v. Cox, 785 MDA 2018, at *4 (Pa. Super. April 22, 2020)
(citation omitted). Holmes’ argument is based on the assumption that a
victim’s identification testimony is necessary to obtain a conviction. Such a
rule would preclude prosecution of the many crimes committed without
eyewitnesses. The Commonwealth may meet its burden of establishing the
identity of a perpetrator through other forms of evidence, including
circumstantial evidence. Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa.
Super. 2012) (citation omitted). Here, Holmes was found minutes after the
attack riding in the victim’s stolen vehicle with Konopki, who the victim knew
to be involved in his attack, and Lee, who had ATM receipts associated with
the victim’s bank account on his person. The Commonwealth presented
testimony from Fisher that she witnessed the three individuals planning to
attack the victim and steal his bankcard, ultimately aiming to empty his
retirement account of approximately $30,000. Fisher also confirmed that she
had seen Holmes use the type of gun that was used in the attack on a prior
occasion. The home where the attack took place belonged to one of Holmes’
cousins. Finally, Holmes sent letters to Fisher from jail urging her to find
someone to intimidate the victim into not coming to trial. Under all of these
circumstances, the jury was entitled to conclude beyond a reasonable doubt
that Holmes had participated in the crimes.
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sentence motion seeking reconsideration of his sentence, he did not move for
a new trial on the basis that his convictions were against the weight of the
evidence. Further, a weight claim is not preserved for review when it is
included in the appellant’s concise statement pursuant to Pa.R.A.P. 1925(b)
when the appellant failed to raise the claim in front of the trial court in an
earlier motion. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.
2009). Therefore, this issue is waived.13
VI.
Finally, Holmes claims that the trial court hindered his ability to litigate
his appeal by refusing to provide him with a copy of the transcript of his
preliminary hearing.14 Holmes has submitted two previous applications to this
court requesting that we compel the trial court to provide him with the
necessary transcripts to prosecute his appeal. See Application for Stay of
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13Nonetheless, we would hold that Holmes’ convictions were not against the
weight of the evidence adduced at trial. “An allegation that the verdict is
against the weight of the evidence is addressed to the discretion of the trial
court.” Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super.
2003) (citation omitted). A new trial is appropriate only when the verdict “is
so contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citation
omitted). “[T]he evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Commonwealth v. Akhmedov,
216 A.3d 307, 326 (Pa. Super. 2019) (en banc) (citation omitted). Based on
the totality of the circumstances described in note 13, supra, the jury’s verdict
does not shock the conscience of the court.
14The preliminary hearing transcript was made part of the certified record on
appeal and we have considered it in the disposition of Holmes’ claims.
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Appeal Proceedings and Hearing Relative to Production of Documentation for
Appeal Proceedings, 7/16/18; Application for Relief, 12/24/18. We issued an
order directing the trial court to ensure that Holmes was provided with the
transcripts. Order, 8/28/18 (remanding to the trial court for 60 days and
directing that court to provide Holmes with all notes of testimony and other
documents necessary to his appeal); Order, 1/22/19 (directing trial court to
comply with previous Order). The trial court responded first by assigning
standby counsel to ensure he was provided with discovery. See Letter,
1/22/19. The trial court subsequently determined that all the requested
documents had been provided to Holmes in 2015, but the Commonwealth and
standby counsel agreed to provide Holmes with new copies of the documents.
Id. Because the trial court has concluded that Holmes was provided with a
copy of the transcript on two occasions, and the transcript was made part of
the certified record on appeal, this issue has no merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2020
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