Com. v. Thomas, A.

J-A27038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE THOMAS :
:
Appellant : No. 2276 EDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009354-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 9, 2021
Appellant, Andre Thomas, appeals from the judgment of sentence
imposed following his convictions of murder of the first degree, attempted
murder, aggravated assault, robbery, burglary, conspiracy, carrying a firearm
without a license, and possession of an instrument of crime.1 We affirm.
The trial court summarized the factual background of this case as
follows:
Shortly before midnight on August 21, 2016, Hakeem Rahman
was home, with his wife, Shaquana Caldwell, and six children at
3730 North 7th Street in the city and county of Philadelphia.
Hakeem, Shaquana, and [Rahman’s] twelve-year-old [son] were
in the bedroom. When Shaquana opened the bedroom door she
found [] two armed men coming up the stairs inside her house.
Ms. Caldwell tried to slam the bedroom door, but [Appellant]
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. §§ 2502(a), 901(a), 2702(a), 3701(a)(1)(i), 3502(a)(1), 903,
6106(a)(1), and 907(a), respectively.
J-A27038-20
managed to get the barrel of his shotgun in the opening. Hakeem
told his wife to open the door and let them in. Appellant ran
through the open door, hit Shaquana in the head with the gun,
and demanded money from Hakeem. It was evident Mr. Rahman
knew his assailant, calling him “Dre.” In response [Appellant] told
Hakeem not to say his name. Hakeem said the name “Dre” two
more times. Rahman only had fifteen hundred dollars to turn over
to [A]ppellant, who became enraged at the paltry sum, shooting
Hakeem with the shotgun, striking his chest and injuring his
diaphragm, liver, colon and stomach. Shaquana was then shot
twice, once in the face and one in the arm. [Appellant] then stood
over Hakeem and shot again, this time striking Hakeem’s ribs,
stomach, spleen, pancreas, lungs, heart and aorta. Mr. Rahman
did not survive those two shotgun blasts. [Rahman’s] twelve-
year-old [son] was able to call 911. Officers responded and
determined that the two assailants entered through the rear of
the house, putting a chair to the back window and climbing
through. While making their escape, the assailants hid the
shotgun behind a broken door in the alley, and left a utility bag
with a box of ammunition and a hair cover in the alleyway. Video
was obtained from the neighborhood, and the cell phone of the
decedent investigated, retrieving the recent contacts and
communications. [Appellant] was identified in a photo array by
Shaquana as the individual who shot her and her husband in the
morning hours of August 22, 2016.
Trial Court Opinion, 11/12/19, at 3-4 (transcript citations omitted).
Appellant was arrested and charged on September 12, 2017, and he
proceeded to a jury trial in February 2019. On February 26, 2019, the jury
returned a guilty verdict on the above-stated charges. That same day, the
trial court sentenced Appellant to an aggregate sentence of life imprisonment
without the possibility of parole.2 Appellant filed a post-sentence motion
____________________________________________
2Appellant received a sentence of life imprisonment without the possibility of
parole for the murder offense, consecutive terms of imprisonment of 10 to 20
years for each of the attempted murder, robbery, burglary, and conspiracy
charges, and consecutive terms of imprisonment of 2 years and 6 months to
5 years for the firearms and possession of an instrument of crime convictions.
-2-
J-A27038-20
challenging the verdict, which was denied by operation of law on July 8, 2019.
Appellant thereafter filed this timely appeal.
Appellant presents the following issues on appeal:
I. Whether the trial court erred in overruling defense counsel’s
objection to the prosecutor’s closing argument wherein she
committed gross misconduct by intentionally misrepresenting the
DNA evidence depriving Appellant of a fair and impartial trial.
II. Whether the Commonwealth violated Brady when it failed to
turn over information regarding a potential second suspect,
Andrew “Dre” Davis, who matched the description of one of the
assailants.
III. Whether the evidence for First Degree Murder, Attempted
Murder, and all offenses for which Appellant was convicted is
insufficient to sustain the verdict of guilt where the
Commonwealth failed to prove identity beyond a reasonable
doubt.
IV. Whether the verdict for First Degree Murder, Attempted
Murder, and all offenses for which Appellant was convicted is
against the weight of the evidence as the evidence tending to
show identification is so unreliable the verdict could only be based
on conjecture, surmise, and emotion.
Appellant’s Brief at 6 (trial court disposition omitted).
Appellant first challenges the prosecutor’s description of the testimony
of the Commonwealth’s DNA expert during her closing argument. Our
Supreme Court has explained the applicable legal standards as follows:
To succeed on such a claim, [a defendant is] required to
demonstrate that the prosecutor’s comments violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the
Sixth Amendment right to a fair trial, or a constitutional interest
such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial. The
-3-
J-A27038-20
touchstone is the fairness of the trial, not the culpability of the
prosecutor.
A prosecutor may make fair comment on the admitted evidence
and may provide fair rebuttal to defense arguments. . . . Any
challenge to a prosecutor’s comment must be evaluated in the
context in which the comment was made.
Not every unwise, intemperate, or improper remark made by a
prosecutor mandates the grant of a new trial. Reversible error
occurs only when the unavoidable effect of the challenged
comments would prejudice the jurors and form in their minds a
fixed bias and hostility toward the defendant such that the jurors
could not weigh the evidence and render a true verdict.
While it is improper for a prosecutor to offer any personal opinion
as to the guilt of the defendant or the credibility of the witnesses,
it is entirely proper for the prosecutor to summarize the evidence
presented, to offer reasonable deductions and inferences from the
evidence, and to argue that the evidence establishes the
defendant’s guilt. . . . The prosecutor must be free to present his
or her arguments with logical force and vigor, and comments
representing mere oratorical flair are not objectionable.
Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014) (internal citations,
quotation marks, and brackets omitted).
At trial, Philadelphia Police Department forensic scientist Lynn
Haimowitz described her analysis of six DNA samples taken from items found
in the alley behind the victims’ house: a utility bag, a hair bonnet or “do rag,”
the shotgun determined to have been fired at Rahman and Caldwell, and live
and spent shotgun shells. N.T., 2/22/19, at 101-06. Testing showed that
Appellant was not a match for the DNA taken from the sample of the live
shotgun shells, and one of the two swabs of the shotgun was determined to
not contain enough DNA for testing. Id. at 104-06. For the remaining four
samples – from the zipper and handle of the utility bag, the sweatband of the
-4-
J-A27038-20
hair bonnet, the spent shotgun shells, and the second swab of the shotgun –
DNA from one or more individuals was present, at least one of whom was
male, and testing was inconclusive as to whether Appellant’s DNA matched
the DNA of the male individual in the samples. Id. at 103-05. Haimowitz
explained in her testimony that an inconclusive result means that there were
insufficient DNA types, or alleles, present in the samples to determine whether
the person to whom the sample is being compared is a match, but also that
that person cannot be excluded. Id. at 102-04, 107-09.
During her closing argument, the prosecutor displayed a chart from
Haimowitz’s expert report that compared the alleles detected in Appellant’s
DNA with those of the six swabbed samples. See Commonwealth Ex. 88. The
prosecutor stated:
So essentially, we have the bag swab. This bad boy swabbed
(indicating). And then we also have the hair bonnet, the cover,
the do-rag. And then the box of the shotgun shells. This was also
printed. Nothing could come back. The box is excluded.
[Haimowitz] tells you that in her report. She can say that
[Appellant] is excluded as a source of the DNA detected in the
sample and that’s the one that ends in 5-1. And that is a swab of
the 13 live 12-guage shotgun shells taken from inside that utility
bag. She can say from this alone, it’s not him. It is not him. And
she said that to a reasonable degree of scientific certainty. Now,
what she did is she showed you this graph, which is not all
inclusive, but this was the chart that she used to explain her
findings. And she explained to you that across the top are the
sample numbers. Those are the numbers that are assigned to
each of the things that were swabbed, but also the defendant.
And remember, she told you, this one here. This last one. That’s
the defendant. So as we look down this row on the right, as we
look down this row, we see what alleles the defendant has at each
of these locations. That’s what she told you. And she compared
it to all the other samples. Now the one in the middle ending in
-5-
J-A27038-20
4-9, she said that they weren’t []able to get enough DNA. So she
had no conclusion here. The one ending here in 5-1, she’s able to
say not him, not there. But with all the other samples she says
inconclusive. She told you, “I can’t say that he was not there. I
can’t say he’s there.” Which is pretty remarkable when on
the last sample, 5-1, she is able to say, [n]ot him, not there.
And why is she able to say inconclusive? Because if you look at
all the alleles he has at each of those locations and then you
compare it to the alleles on each of the samples, he wasn’t there.
Say excluded. It’s a whole lot of circles. While all she could
say is inconclusive. It’s certainly not the same word as
excluded. You weigh that evidence, you weigh those
circles, you weigh this. Those alleles at the same location
from each of those samples, you weigh that and you look
at it as, again, one more arrow pointing in the direction of
the defendant saying, yeah, Shaquana, you got it right.
N.T., 2/25/19, at 198-200 (emphasis added). Appellant preserved his
appellate issue by objecting at the conclusion of the closing argument, which
the trial court overruled. Id. at 205-06.
Appellant argues that the trial court erred when it overruled his
objection to the closing “because it was a complete mischaracterization and
misrepresentation of the DNA expert’s testimony.” Appellant’s Brief at 27.
Appellant maintains that Haimowitz did not testify that it was possible to infer
that Appellant’s DNA matched the swabbed samples simply because some of
the alleles were matching, but instead only that Appellant was not a conclusive
match to the swabbed items. Appellant also claims that the prosecutor
committed misconduct by altering the chart from the expert report comparing
Appellant’s DNA to the six samples by adding red circles around the matching
alleles that were not present when it had been previously shown to the jury.
-6-
J-A27038-20
Appellant argues that he suffered prejudice because the jury was misled
to think that it could interpret DNA as a partial match based on single alleles
in common between samples and he was particularly prejudiced in light of the
weakness of Caldwell’s testimony identifying him as her attacker. Appellant
asserts that the prosecutor compounded the mischaracterization of the
evidence by improperly appealing to the jury’s emotions by stating that the
matching alleles were “one more arrow pointing in the direction of the
defendant saying, yeah, Shaquana [Caldwell], you got it right.” N.T., 2/25/19,
at 200. Appellant contends that the trial court could have ameliorated the
harm done by giving a curative instruction to the jury, advising that the
challenged statement was unsupported and that they should ignore the
mischaracterization of the evidence.
In rejecting Appellant’s argument, the trial court concluded that the
Commonwealth summarized the DNA evidence and drew reasonable
inferences therefrom “well within acceptable norms.” Trial Court Opinion,
11/12/19, at 15. The trial court determined that, viewing the closing
arguments in their totality, the prosecutor’s remarks could not have
prejudiced the jury such that it would not have rendered a true verdict. Id.
at 15-16. Furthermore, the trial court noted that it properly instructed the
jury that the arguments of counsel were not evidence and the jury was
exclusively responsible for determining the facts and weighing the evidence.
Id. at 14-16.
-7-
J-A27038-20
We agree with the trial court that the prosecutor did not commit
misconduct in her closing statement. During her direct testimony, Haimowitz
discussed the process of comparing DNA from evidence samples to reference
samples of an individual that was visually represented in the chart from her
expert report:
[W]hat we’re looking at is basically a visual representation of both
the alleles that are detected, as they are in this table, as well as
a better representation of where information might be missing.
But we’re looking at, could the alleles that were detected for these
question samples have come from this certain individual? Is there
no way they could have come from this certain individual? Is it
possible but we can’t tell for sure?
But we’re comparing alleles from one sample, to alleles from
another sample.
N.T., 2/22/19, at 108-09. Haimowitz then described the specific matching
alleles between Appellant’s DNA and the four samples with inconclusive
results:
Q. . . . So in this sample for this location, 15 and 16 indicated
over here at the laser pointer, are those the alleles the
defendant has at this location at D 3 S 1358?
A. Yes.
Q. And then for each sample, are these the alleles detected, so for
the first sample, and the next, and the next, at that same location?
A. Yes. Within the table across the row is the same location for
each sample that was tested.
Q. So in this case, in four of the samples we also see allele number
16; is that correct?
A. Yes.
Id. at 109-10 (emphasis added).
-8-
J-A27038-20
The prosecutor accurately summarized Haimowitz’s testimony,
explaining that Appellant’s DNA was not found on two of the six samples based
on a lack of sufficient DNA on one of the shotgun swabs and a non-match from
the swab of the live shotgun shells. Compare N.T., 2/22/19, at 104-06 with
N.T., 2/25/19, at 198-99. The prosecutor also accurately stated that for the
remaining four samples the results were inconclusive, echoing Haimowitz’s
statement that an inconclusive result means that Appellant’s DNA might be on
the sample but also might not be. Compare N.T., 2/22/19, at 112
(“Inconclusive is just that. For one reason or another, we just can’t tell. The
individual might be on the sample, they may not.”) with N.T., 2/25/19, at
199 (“But with all the other samples she says inconclusive. She told you, ‘I
can’t say that he was not there. I can’t say he’s there.’”).
To the extent Appellant contends that the prosecutor overemphasized
the fact that the DNA evidence did not exclude him, this was drawn directly
from Haimowitz’s testimony and further was a fair rebuttal to defense
counsel’s closing statement urging the jury to place no weight on the DNA
evidence as it does not have “anything to do with anything that’s going on in
this case.” N.T., 2/25/19, at 157. We also find the prosecutor’s statement
that the DNA evidence was “one more arrow pointing in the direction of the
defendant saying, yeah, Shaquana, you got it right” to be a reasonable
response to defense counsel repeatedly calling into question Caldwell’s
identification of Appellant as being at the scene of the crime. Id. at 152-55,
169, 200.
-9-
J-A27038-20
As she had done during Haimowitz’s direct testimony, the prosecutor in
her closing statement compared specific matching alleles in Appellant’s DNA
with those of the four inconclusive samples. Compare N.T., 2/22/19, at 108-
10 with N.T., 2/25/19, at 199. While Appellant argues on appeal that this
was an inaccurate representation of the DNA evidence, he tellingly did not
challenge Haimowitz on her testimony about the matching alleles during cross
examination. Furthermore, while Appellant challenges the use of red circles
surrounding matching alleles on the chart from Haimowitz’s expert report that
was shown to the jury during closing, he fails to explain how the circles are
distinguished from the unobjected-to use of a laser pointer to circle the
matching alleles during Haimowitz’s testimony. See N.T., 2/22/19, at 107-
09.
In any event, the trial court addressed any concern regarding the
prosecutor’s potential misrepresentation of the evidence through its
instruction both before trial and before and after the closing statements. N.T.,
2/21/19, at 31-32; N.T., 2/25/19, at 143; N.T., 2/26/19, Vol. I, at 37-39. The
trial court instructed the jury that:
When counsel makes their closing arguments, what they typically
do is review the evidence with you and ask you to draw certain
inferences from that evidence. That can be very helpful in
evaluating a case. I do need you to keep in mind, however, that
you are not bound by counsel’s recollection of the evidence, nor
are you bound by counsel’s perspective of what the evidence in
the case shows. It is your recollection of the evidence and your
recollection alone, which must guide you in your deliberations in
this case.
- 10 -
J-A27038-20
N.T., 2/25/19, at 143. The trial court further emphasized that the jury was
“the sole judges of the facts and the credibility and the weight of the evidence”
and it was “not required to accept the arguments of either lawyer.” N.T.,
2/21/19, at 31; N.T., 2/26/19, Vol. I, at 38.
In sum, we conclude that the challenged portion of the Commonwealth’s
closing argument does not warrant reversal of the verdict because it did not
form a “fixed bias and hostility toward the defendant such that the jurors could
not weigh the evidence and render a true verdict.” Burno, 94 A.3d at 974
(citation omitted). Appellant’s first appellate issue thus merits no relief.
Appellant next argues that the Commonwealth violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to turn over a photograph of an
early suspect in the case, Andrew Davis. In Brady, the United States
Supreme Court held that the prosecution’s failure to produce evidence
material to the guilt or punishment of the accused is a violation of the due
process clause of the Fourteenth Amendment. Id. at 87-91. As our Supreme
Court has explained, Brady “imposes upon a prosecutor the obligation to
disclose all favorable evidence that is material to the guilt or punishment of
an accused, even in the absence of a specific request by the accused.”
Commonwealth v. Bagnall, 235 A.3d 1075, 1085 (Pa. 2020). To establish
a violation of Brady, “a defendant has the burden to prove that: (1) the
evidence at issue was favorable to the accused, either because it is
exculpatory or because it impeaches; (2) the prosecution has suppressed the
evidence, either willfully or inadvertently; and (3) the evidence was material,
- 11 -
J-A27038-20
meaning that prejudice must have ensued.” Id. at 1086. “[N]o Brady
violation occurs where the parties had equal access to the information or if
the defendant knew or could have uncovered such evidence with reasonable
diligence.” Id. at 1091 (citation omitted).
Andrew Davis came to the attention of the police when they visited
Caldwell in the hospital after the shooting and she provided them with a piece
of paper that had been in Rahman’s wallet; the paper listed various phone
numbers that Rahman had once written down while in the process of switching
phones. N.T., 2/21/19, at 105-07. On the paper, the name “Dre” was listed
followed by a phone number. Id. at 108. Detective William Kelhower of the
Philadelphia Police Department testified that he obtained the subscriber
information for that phone number and determined that the number belonged
to Andrew Davis, who Detective Kelhower learned from Caldwell was a
childhood friend of Rahman’s living in West Philadelphia. N.T., 2/25/19, at
23-24.
Appellant argues that the Commonwealth violated Brady by not turning
over a photo of Davis, which Appellant posits the Commonwealth would have
had in its possession based upon the fact that Davis had a criminal record
from several controlled substances convictions. Appellant asserts that the
photo would have shown that Davis matched Caldwell’s initial description of
her assailant as a black man in his late thirties, with a medium build, and
approximately 5’8” tall, the description that Caldwell initially provided of her
assailant. N.T., 2/21/19, at 109. Appellant bases the assertion that Davis
- 12 -
J-A27038-20
matched Caldwell’s description on a full-body photo of Davis that Appellant
obtained through social media after trial, and which he attached to his post-
sentence motion. Appellant’s Brief at 34; Consolidated Motion and
Memorandum of Law for Reconsideration and Extraordinary Relief, 3/5/19,
Exhibit. Appellant argues that he was prejudiced by the purported Brady
violation because photos of Davis – who matched Caldwell’s description, was
involved in the drug trade, and was known as Dre – would have led the jury
to conclude that Davis was the assailant in this case, not Appellant.
We are unpersuaded by Appellant’s claim of a Brady violation in this
case. Initially, Appellant acknowledges that the Commonwealth turned over
in discovery a copy of the paper listing Davis’s phone number, the search
warrant for that number, and the cell phone records obtained through that
warrant. While Appellant asserts “[u]pon information and belief” that the
Commonwealth only provided Davis’s criminal extract on “the morning of jury
selection,” Appellant’s Brief at 33 n.6, the record is devoid of any evidence
that the Commonwealth produced the extract at this late juncture and
Appellant’s “information and belief” would not have been sufficient to meet his
burden to prove a Brady claim as to the extract. Bagnall, 235 A.3d at 1085.
Appellant also failed to show that the Commonwealth was in possession
of a photo of Davis that was exculpatory or otherwise favorable to his defense.
“Brady does not require the disclosure of information ‘that is not exculpatory
but might merely form the groundwork for possible arguments or defenses,’
nor does Brady require the prosecution to disclose ‘every fruitless lead’
- 13 -
J-A27038-20
considered during a criminal investigation.” Commonwealth v. Roney, 79
A.3d 595, 608 (Pa. 2013) (citation omitted). Even assuming that the
Commonwealth was in possession of a photo of Davis, which is not a part of
the record in this case, it is not at all apparent that a police photo would have
showed a similarity to Caldwell’s description of the shooter, such as by
showing his build, height, or facial hair. It is only Davis’s full body social media
photo obtained post-trial that Appellant avers as having a sufficient
resemblance to Caldwell’s description of her assailant. The Commonwealth
was not charged under Brady with disclosing information or materials that
“might merely [have] form[ed] the groundwork for [Appellant’s] possible
arguments or defenses.” Id. (citation omitted); see also Commonwealth
v. Paddy, 15 A.3d 431, 451 (Pa. 2011) (holding that police reports related to
boyfriend of victim, which the defendant claimed “would have alerted trial
counsel to the existence of an alternative theory as to who killed [the victim]
and why” were not Brady material solely because they might form the
groundwork for a potential defense). As Appellant has not demonstrated that
the Commonwealth withheld favorable evidence, he is not entitled to relief on
his Brady claim.
In his third and fourth appellate issues, Appellant challenges the
sufficiency and weight of the evidence with respect to the evidence that
identified him as Rahman’s and Caldwell’s assailant. The evidence at trial
related to the identification of Appellant as the perpetrator of the assault was
as follows. Three days after the shooting, while still in the hospital, Caldwell
- 14 -
J-A27038-20
described the shooter to police as a black man in his late thirties, with a
medium build, and approximately 5’8” tall. N.T., 2/21/19, at 109. Caldwell
identified the accomplice who remained just outside the bedroom as a black
man in his 30s, weighing approximately 250 pounds, and standing
approximately 5’6” or 5’7” tall. Id. at 110. Caldwell also told officers that
Rahman had argued on the phone about his drug-dealing business with an
individual named Dre two days prior to his murder. Id. at 79-83, 86.
On August 15, 2017, new detectives assigned to the case asked Caldwell
to participate in a double-blind photo array.3 Id. at 88; N.T., 2/25/19, at 4-
11. According to the detective who conducted the photo array, Caldwell did
not initially identify anyone on her first look through the photos, but had a
noticeable reaction when she saw Appellant in photo number three. N.T.,
2/21/19, at 89; N.T., 2/25/19, at 8-11. Caldwell then asked to see number
three again, at which point she became emotional and stated that she was
sure that Appellant was the man who caused her to live in fear since Rahman’s
murder. N.T., 2/21/19, at 89-90; N.T., 2/25/19, at 9-11.
In her interview with detectives after the photo array, Caldwell initially
stated that the individual who she identified in photo number three was the
accomplice to the shooter who remained outside the bedroom; however later
in the interview she clarified that she was previously mistaken and that the
____________________________________________
3 In a double-blind photo array, the officer conducting the identification is not
assigned to the case and has no knowledge of the incident or which individual
in the array is a suspect in the case. N.T., 2/25/19, at 5-6, 33-34.
- 15 -
J-A27038-20
individual in photo number three was the one who shot her and Rahman. N.T.,
2/21/19, at 92-94. Caldwell also informed detectives during the interview
that Rahman had gone to a McDonald’s at North Broad Street and West
Hunting Park Avenue in Philadelphia on the evening of his murder and was
upset when he returned home. Id. at 96; N.T., 2/25/19, at 16. In October
2017, Caldwell was asked to identify Appellant in an in-person lineup, but she
was unable to do so. N.T., 2/21/19, at 118-19, 174-80. Rahman’s 12-year
old son also viewed the same double-blind photo array as Caldwell and was
unable make an identification, although he confirmed to police that Rahman
referred to his assailant as Dre. N.T., 2/22/19, at 125, 128; N.T., 2/25/19,
at 34-35.
During her trial testimony, Caldwell again identified Appellant as the
individual who Rahman addressed several times as Dre and who fired the
shotgun that struck her and Rahman. N.T., 2/21/19, at 64-73. Caldwell also
identified Appellant as one of two men visible in exterior security footage taken
from a neighbor’s home; in the video, the two men entered a narrow alleyway
behind her home shortly before the time of the shooting. Id. at 90-91; N.T.,
2/22/19, at 143-47. Caldwell testified that she was able to identify Appellant
in the video because he walked with a limp as he had in her home. N.T.,
2/21/19, at 91. Caldwell further explained to the jury that, when she initially
said that Appellant was not the shooter during her August 15, 2017 interview
with police, she had confused the shooter and the accomplice in her mind
because of nervousness. Id. at 93-94. Caldwell was examined at trial
- 16 -
J-A27038-20
regarding her preliminary hearing testimony when she was asked to “look
around the courtroom” and identify her assailant and she stated only that
Appellant “appears to look like the gentleman that was in my home” and
“[a]ppears to be Dre.” Id. at 117. Caldwell reiterated that she was “100
percent” sure, both at the preliminary hearing and at trial, that Appellant was
the individual who entered her home and shot her and Rahman. Id. at 118.
Two other witnesses testified that they recognized Appellant as having
a connection to Rahman. Jonita Boone, who was dating Rahman at the time
of his death, testified that she had seen Rahman meet Appellant twice at the
same McDonald’s on North Broad Street that Caldwell had referenced Rahman
visiting on the day of his murder. Id. at 128-34. Boone participated in a
lineup, and she identified Appellant as the Dre that Rahman had met at
McDonald’s.4 N.T., 2/21/19, at 142-43, 179-85. Sade Purnell, who had
previously been in a relationship with Rahman and who shared a child with
him, testified that she had seen Rahman meet with Appellant on two occasions
in the few months prior to his death: the first time at a gas station next to
the McDonald’s on North Broad Street and a second time outside a North
Philadelphia residence when the two had a conversation and Rahman handed
Appellant a small package. Id. at 153-57. Purnell was also with Rahman the
____________________________________________
4 Notably, while Caldwell was unable to identify Appellant and Boone did
identify Appellant at separate lineups, the officer who conducted the lineups
testified that Appellant had a different appearance at the two lineups, with his
beard only of a salt-and-pepper appearance at the first, but at the second
lineup it was fully gray. N.T., 2/21/19, at 183.
- 17 -
J-A27038-20
day before he died; Rahman had three heated phone conversations while they
were together, and Purnell heard Rahman say during one of the calls “I ain’t
f--king with Dre no more.” Id. at 158-61.
The trial court instructed the jury as follows with respect to its evaluation
of eyewitness identification testimony:
Now there’s a question of whether some of th[e witnesses’]
identifications are accurate. A victim or other witness can
sometimes make a mistake when trying to identify a criminal. If
certain factors are present, the accuracy of the identification
testimony is so doubtful that the jury must receive it with caution.
Identification testimony must be received with caution if the
witness, because of bad decision, poor lighting, or other reasons,
did not have a good opportunity to observe the criminal; if the
witness, in their testimony, is not positive as to identity; if the
witness’s testimony as to identity is weakened by qualification,
hedging, or inconsistencies in the rest of their testimony; by their
not identifying the defendant, or by identifying someone else as a
criminal before the trial.
If you believe that one or more of those factors are present, then
you must consider with caution the witness’s testimony identifying
a defendant as a person who committed the crime. If, however,
you do not believe at least one of those factors is present, then
you need not receive the testimony with caution. You may treat
it like any other testimony. You should consider all evidence
relevant to the question of who committed the crime, any
evidence of facts and circumstances from which identity or non-
identity of the criminal may be inferred. You cannot find the
defendant guilty unless you’re satisfied beyond a reasonable
doubt by all the evidence, direct and circumstantial, not only a
crime was committed, but it was the defendant who committed it.
N.T., 2/26/19, Vol. I, at 12-13.
Appellant argues that the evidence was insufficient to find him guilty
beyond a reasonable doubt of each of the charged crimes based on Caldwell’s
wavering identification of him during the preliminary hearing, her failure to
- 18 -
J-A27038-20
identify him at a lineup, and her initial failure to select Appellant from a photo
identification. Appellant asserts that he did not match Caldwell’s description
of the shooter provided to police shortly after the incident, but that if anything
he was closer to her description of the accomplice. According to Appellant,
the lack of a sufficient identification evidence undermines the reliability of the
guilty verdict because of the lack of other evidence pointing to him as the
perpetrator, including inconclusive DNA evidence from the crime scene and no
reliable forensic evidence indicating that Appellant and Rahman had previously
been in contact.5
The Commonwealth argues in response that Appellant is in essence
challenging the weight of the evidence identifying him as the individual who
shot Rahman and Caldwell, rather than the sufficiency of the identification
evidence. We agree. As our Supreme Court has explained, the distinction
____________________________________________
5 Appellant also asserts that Caldwell’s description was contradicted by that of
Rahman’s 12-year old son, who told police immediately after the incident of
the shooter being approximately 5’7” or 5’8”, of a skinny build, and wearing
all black clothing. Appellant’s Brief at 39. The boy did not testify at trial,
Appellant did not provide a citation to the portion of the trial record where this
description was reported, and we have failed to locate the boy’s description in
our review of the record. Therefore, we will not address his argument based
on this claim. See Pa.R.A.P. 2119(c) (if reference is made to evidence of
record, “the argument [section of an appellate brief] must set forth . . . a
reference to the place in the record where the matter referred to appears”);
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997) (“In a
record containing thousands of pages, this court will not search every page to
substantiate a party’s incomplete argument.”); Commonwealth v. Brown,
200 A.3d 986, 991 (Pa. Super. 2018) (appellant’s failure to properly develop
argument with citations to relevant portions of record results in waiver of
claim).
- 19 -
J-A27038-20
between a claim challenging the sufficiency of the evidence and a claim
challenging weight of the evidence is “critical”:
A claim challenging the sufficiency of the evidence, if granted,
would preclude retrial under the double jeopardy provisions of the
Fifth Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a question of
law. 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. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations, quotation marks, and footnote omitted).
- 20 -
J-A27038-20
With respect to sufficiency of the evidence challenges relating to
identification issues, the “general rule [is] that any uncertainty in an
eyewitness’s identification of a defendant is a question of the weight of the
evidence, not its sufficiency.” Commonwealth v. Cain, 906 A.2d 1242, 1245
(Pa. Super. 2006) (citation omitted); see also Commonwealth v.
Valentine, 101 A.3d 801, 806 (Pa. Super. 2014). “Evidence of identification
need not be positive and certain to sustain a conviction.” Commonwealth
v. Edwards, 229 A.3d 298, 306 (Pa. Super. 2020), appeal granted on other
grounds, 237 A.3d 978 (Pa. 2020) (citation omitted).
Although common items of clothing and general physical
characteristics are usually insufficient to support a conviction,
such evidence can be used as other circumstances to establish the
identity of a perpetrator. Out-of-court identifications are relevant
to our review of sufficiency of the evidence claims, particularly
when they are given without hesitation shortly after the crime
while memories were fresh.
Id. (citation omitted).
In this appeal, Appellant acknowledges Caldwell’s in-court identification
of him as the assailant, but asks us to balance this positive identification
against other evidence, including her initial description of the assailant to
police and her failures to conclusively identify him at earlier stages of the case.
Notwithstanding the framing of the argument, this argument is, in effect, a
weight of the evidence, not a sufficiency of the evidence, challenge. See
Commonwealth v. Miller, 172 A.3d 632, 643 (Pa. Super. 2017) (“[A] true
weight of the evidence challenge concedes that sufficient evidence exists to
- 21 -
J-A27038-20
sustain the verdict but questions which evidence is to be believed.”).
Appellant also implicitly seeks that we reassess the credibility of Caldwell’s in-
court identification of Appellant, which is beyond our purview in the context
of a sufficiency of the evidence challenge. Commonwealth v. Moyer, 171
A.3d 849, 852 (Pa. Super. 2017); Commonwealth v. Wilson, 825 A.2d 710,
713-14 (Pa. Super. 2003).
Nevertheless, to the extent Appellant validly asserts a sufficiency claim
with respect to the identification evidence, his claim lacks merit. Caldwell
unequivocally testified at trial that Appellant was the man who shot her and
Rahman. Caldwell also confirmed to the jury that she had identified Appellant
as her assailant during the preliminary hearing and in the double-blind photo
array. The testimony of the detective who conducted the photo identification
supports that Caldwell selected Appellant’s photo without prompting. Caldwell
likewise viewed security footage taken shortly before the murders in the
vicinity of her home and identified Appellant in that footage.
Caldwell’s identification of Appellant was corroborated by other evidence
at trial, including the fact that Caldwell and Rahman’s son reported to police
immediately after the shooting that Rahman referred to his killer as Dre, which
is Appellant’s nickname. Detective William Kelhower testified that he
subpoenaed records from two of the cell phones that Rahman used and
learned that Rahman had exchanged texts with a phone registered to
Demetrius Jackson in the two weeks in which Rahman accused Jackson of
being a “slime ball,” having “disrespected” Rahman, and stated “[w]hen I see
- 22 -
J-A27038-20
you, it’s beef, just know that.” N.T., 2/25/19, at 19-27; see also
Commonwealth Ex. 69. Detective Kelhower later discovered that Appellant
was Jackson’s nephew’s step-father and Appellant showed up as also being a
resident on a public record report of Jackson’s home address. N.T., 2/25/19,
at 21-22, 29-31. Finally, two other witnesses testified at trial that they saw
Appellant and Rahman together in the months preceding the murder at a
location Rahman had visited on the evening he was killed, and one of those
witnesses testified that she heard Rahman say on the telephone “I ain’t
f--king with Dre no more” the day before his murder. N.T., 2/21/19, at 161.
Viewed in the light most favorable to the Commonwealth, this evidence was
clearly sufficient evidence at trial to identify Appellant as the perpetrator of
the crimes of which he was convicted.
Turning to Appellant’s weight of the evidence challenge, our “appellate
review of a weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the verdict is
against the weight of the evidence.” Commonwealth v. Rosser, 135 A.3d
1077, 1090 (Pa. Super. 2016) (en banc) (citation omitted). When the trial
court finds that the verdict is not against the weight of the evidence, “we must
give the gravest consideration to the trial court’s conclusion because it is the
trial court, and not the appellate court, that ‘had the opportunity to see and
hear the evidence presented.’” Commonwealth v. Cramer, 195 A.3d 594,
601 (Pa. Super. 2018) (citation omitted). “[A] defendant will only prevail on
a challenge to the weight of the evidence when the evidence is ‘so tenuous,
- 23 -
J-A27038-20
vague and uncertain that the verdict shocks the conscience of the court.’” Id.(citation omitted).
Appellant argues that the verdict was against the weight of the evidence
based upon “weak and inconclusive identification testimony.” Appellant’s Brief
at 41. In particular, Appellant focuses on the “highly suspect circumstances”
relating to the August 2017 photo array identification in which Caldwell first
responded in the negative when viewing photograph number 3 – Appellant –
and she only claimed that Appellant was her attacker after a second review of
the photos. Id. Appellant also highlights Caldwell’s videotaped interview that
was conducted directly after the photo array and played for the jury, in which
Caldwell initially told detectives that the individual she saw in photograph
number 3 was not the individual who shot her, but rather his accomplice who
remained outside the bedroom. It was only upon resuming the interview
following a short break when Caldwell and both detectives left the room that
Caldwell stated that Appellant was her attacker.
Appellant further argues that his identity as the perpetrator of the attack
was cast into doubt by Caldwell’s description provided to officers in the
immediate aftermath of the incident of the attacker as several inches taller
and at least a decade and a half younger than Appellant. Appellant
additionally cites Caldwell’s preliminary hearing testimony, in which she
testified that Appellant only “appears” to be her assailant rather than that he
in fact was her assailant. N.T., 2/21/19, at 117. While Appellant
acknowledges that Caldwell’s identification of him was definite at trial, he
- 24 -
J-A27038-20
contends that the previous unreliable and inconsistent identifications
nevertheless render the jury’s verdict unreliable.
In addressing Appellant’s weight of the evidence challenge, the trial
court concluded that, after its thorough review of the record, “the verdict was
not so contrary to the evidence as to shock one’s sense of justice, nor was it
so tenuous, vague and uncertain that it shocks the conscience of the court.”
Trial Court Opinion, 11/12/19, at 12. “To the contrary,” the court continued,
“the evidence in this case was compelling and substantial, and strongly
supported the verdict.” Id. Therefore, the trial court found the weight of the
evidence claim to be without merit. Id.Upon review, we do not discern an abuse of discretion by the trial court
in rejecting Appellant’s weight of the evidence claim. Appellant essentially
requests that we reassess the credibility of Caldwell’s testimony identifying
him as the perpetrator of the attack on her and Rahman. However, we cannot
do so as resolving issues related to credibility and conflicting evidence were
matters solely entrusted to the jury as the trier of fact. Cramer, 195 A.3d at
600. That is particularly true here where the trial court properly instructed
the jury that they must treat with caution the testimony identifying Appellant
as the individual who committed the charged criminal acts if that testimony
demonstrated any indicia of unreliability. N.T., 2/26/19, Vol. I, at 12-13; see
Commonwealth v. Johnson, 139 A.3d 1257, 1280 (Pa. 2016) (describing
the necessary elements of a jury instruction as to the reliability of eyewitness
- 25 -
J-A27038-20
identification testimony, commonly known as a Kloiber instruction,
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954)).
In any event, we agree with the trial court that Caldwell’s testimony was
not “so tenuous, vague and uncertain that the verdict shocks the conscience.”
Cramer, 195 A.3d at 601 (citation omitted). Regarding the double blind photo
array identification, both Caldwell and the detective who showed Caldwell the
photos testified that she looked through all of the photos once, then asked to
look at Appellant’s photo a second time, at which point she told the detective
she was “100 percent sure” that Appellant was her attacker. N.T., 2/21/19,
at 89-90; see also N.T., 2/25/19, at 8-11. Rather than seemingly being
conducted under “highly suspect circumstances,” as Appellant contends,
Appellant’s Brief at 41, the jury could have merely interpreted Caldwell as
taking her time during the photo identification to ensure that she did not
hastily identify the wrong individual.
Furthermore, while she initially told detectives during a subsequent
interview that Appellant was the individual who remained on the stairs outside
the bedroom, Caldwell explained to the jury that she was “nervous” to speak
about the incident and at first “mixed up” the shooter and the accomplice.
N.T., 2/21/19, at 92-94. Caldwell testified that she quickly realized her
mistake during a break in the interview and clarified to the detectives when
the interview resumed that Appellant was in fact the shooter and not the
accomplice. Id. at 93. In any event, the video of the interview was played
- 26 -
J-A27038-20
at trial, allowing the jury the opportunity to assess her credibility. Id. at 94;
Commonwealth Ex. 101.
In addition, any uncertainty in Caldwell’s identification of Appellant prior
to trial must be balanced against Caldwell’s conclusive statements at trial that
Appellant was the perpetrator of the attack. Caldwell definitively testified that
Appellant was the individual who entered her home and shot her and Rahman.
N.T., 2/21/19, at 64-73, 118. Caldwell also explained to the jury that she was
equally certain that Appellant was the shooter when she was asked to identify
him at the preliminary hearing. Id. at 117-18. Furthermore, Caldwell viewed
the security video taken outside her home and testified that Appellant was
visible in the footage based on his limp, which she also observed when he was
inside her house. Id. at 90-91. In light of the certain trial identification, and
the other corroborating evidence such as the contemporaneous reports that
Rahman addressed his killer using Appellant’s nickname of Dre and the
testimony of two witnesses that Appellant and Rahman had business dealings
in the months prior to his death, we are not persuaded that the jury’s reliance
on Caldwell’s identification to convict Appellant shocks the conscience.
Because Appellant has failed to establish the trial court abused its
discretion in denying his weight of the evidence claim, his final appellate
argument merits no relief.
Judgment of sentence affirmed.
- 27 -
J-A27038-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/09/2021
- 28 -