Com. v. McKinney, C.

J-A29018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN MCKINNEY :
:
Appellant : No. 78 MDA 2020
Appeal from the Judgment of Sentence Entered October 21, 2019,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0001113-2018.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 31, 2021
Calvin McKinney appeals from the judgment of sentence imposed
following his conviction of criminal attempt (homicide).1 We affirm.
On December 29, 2017, a shooting occurred in Harrisburg,
Pennsylvania, which caused the vehicle that Keynen Guider was driving to be
damaged by numerous bullet holes. Although Guider was unharmed in that
incident, a few days later he was shot to death. Police filed charges related
to both shootings against McKinney. On January 24, 2018, police charged him
at docket CP-22-CR-0001113-2018 with criminal attempt (criminal homicide),
recklessly endangering another person (“REAP”), firearms not to be carried
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 901(a).
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without a license, and possession of firearm prohibited. Prior to trial, the
Commonwealth withdrew the charges of REAP and firearms not to be carried,
and the charge of possession of firearm prohibited was severed.
Police simultaneously charged McKinney at docket CP-22-CR-0001117-
2018 with criminal homicide, conspiracy (criminal homicide), firearms not to
be carried without a license, and possession of a firearm prohibited. Prior to
trial, the conspiracy charge was withdrawn by the Commonwealth and the
firearms charges were also severed.
The two cases were consolidated and the matter proceeded to trial in
August 2019. The trial court set forth the factual evidence adduced at trial as
follows.
On December 27, 2017, [McKinney] and his girlfriend, Erica
Smith (hereinafter “Erica”), were at Choice Discount Outlet
located at 2408 Market Street, Harrisburg, Pennsylvania. After
exiting the convenience store, [McKinney] and Erica returned to
his vehicle and drove away. While at the red light on Market
Street, [McKinney] noticed in his rear-view mirror a male put his
hands in the air as if he was trying to get their attention. Although
neither [McKinney] nor Erica could see who the individual was,
[McKinney] thought it could have been one of his friends, so he
turned around and went back. When they returned to the parking
lot, Erica realized that the individual was Keynen Guider a/k/a
Man-Man (hereinafter “Mr. Guider” or “the victim”).
When [McKinney] pull[ed] next to him, Mr. Guider [was]
yelling about [McKinney] looking at his car. [McKinney] stated
that he did not know who he was, to which Mr. Guider responded
that [McKinney] “knows who he is.” Erica testified that
[McKinney] remained calm, but the situation was escalating
because Mr. Guider was very upset. At that point, Erica told
[McKinney] to leave. After this incident, [McKinney] called
someone to find out why Mr. Guider was so upset.
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In her statement to Detective Richard Iachini (hereinafter
“Detective Iachini”) of the City of Harrisburg Police Department on
January 7, 2018, Erica stated that she believed Mr. Guider was
driving a black vehicle. However, she did not personally see Mr.
Guider near a vehicle and was basing her answer solely on
information from [McKinney]. Additionally, she told Detective
Iachini that Mr. Guider was not threatening [McKinney].
At 12:22 P.M. on December 29, 2017, a 911 call was made
by a female stating there was a shooting near her residence.
Officer Cynthia Kreiser (hereinafter “Officer Kreiser”) of the City
of Harrisburg Police Department responded to the 1900 block of
Market Street for the aforementioned report of shots fired. Upon
arriving on the scene, Officer Kreiser testified that she was flagged
down around North 20th Street and Ethel Alley by Carla
Goicoechea (hereinafter “Ms. Goicoechea”). Ms. Goicoechea
relayed what she saw and heard, as well as provided a description
of the shooter as a skinny, light-skinned black male. Ms.
Goicoechea later provided more details about the shooter that she
remembered - a male in his early to middle 30’s, approximately
5’7” with a beard and moustache wearing a black coat, blue jeans,
and a gray beanie with a black and red ball on top.
Ms. Goicoechea testified at trial and stated that she was on
the second (2nd) floor in the front room folding laundry on her
bed when she heard gunshots and looked through the blinds on
her window. She saw two (2) vehicles - a black Chevrolet Malibu
speeding away up 20th Street and a brown Chevrolet Impala
driven by the shooter. Additionally, she watched as the shooter
ran up the street and stopped briefly in front of her home before
getting into his vehicle. Ms. Goicoechea observed the shooter’s
unobstructed face for approximately fifteen (15) seconds. She
was also able to provide the first three (3) digits of the out-of-
state license plate on the shooter’s vehicle to police.
In her statement to police, Ms. Goicoechea stated that the
shooter was approximately 5’7”. However, Ms. Goicoechea
testified that the shooter was tall and that she was unsure of the
exact height because she was looking down from the second (2nd)
floor. When questioned, she testified that she believed 5’7” was
tall for a man. On January 15, 2018, Ms. Goicoechea met with
Detective Iachini and was shown a photo array wherein she
selected the person she believed to be the shooter. During the
trial, Ms. Goicoechea made an in-court identification of [McKinney]
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as the person she observed to be the shooter on December 29,
2017 - the same person she selected from the photo array.
We also heard testimony from Teresa Smith (hereinafter
“Teresa”), who resides at 1926 Market Street. On December 29,
2017, Teresa was bringing the recycling bins in from the street
when she heard a popping noise. She walked to the street and
saw a male in the middle of the street shooting up 20 th Street.
She did not see who he was shooting at and went inside to call
911. Once inside, Teresa looked outside, but did not get a good
look at the shooter. She only stated that the shooter was a light-
skinned African American male who got into a grayish-blue vehicle
and turned right on Ethel Alley. In her statement to police, Teresa
stated that the shooter was of average build, but since he was
bending over with the gun in both hands it was hard to tell his
exact size and height. Additionally, she told police that she was
unsure of the color of the vehicle and believed it was blue or gray.
We also heard testimony from Ariele Morrison (hereinafter
“Ms. Morrison”), Mr. Guider’s cousin, and owner of the vehicle Mr.
Guider was driving on December 29, 2017. Ms. Morrison testified
that she received a phone call from Mr. Guider on December 29,
2017 stating that her vehicle was shot up. She stated that Mr.
Guider sounded upset and informed her that the shooting occurred
near 19th and Park Street - a couple blocks from 20th and Market
Streets. Ms. Morrison met Mr. Guider after work in an alleyway
near 18th and Park Streets and drove the vehicle back to her
residence. She parked it on the sidewalk against [the] house and
Mr. Guider purchased a cover to put over it. Initially, Ms. Morrison
did not report the incident to police because Mr. Guider said he
would take care of it and filed a fraudulent claim with her
insurance company. However, when she learned that Mr. Guider
had been murdered on December 31, 2017, she called police and
reported the incident from December 29, 2017.
On January 4, 2018, forensic investigator William Kimmick
(hereinafter “Investigator Kimmick”) of the City of Harrisburg
Police Department spoke with Ms. Morrison about her vehicle that
was shot. Investigator Kimmick went out to her residence where
he was led to the vehicle parked under a tarp. He photographed
and collected evidence - there were bullet holes in the windshield,
rear window, hood, rear passenger window, and front passenger
window. Projectiles from the front passenger door and steering
wheel, as well as eleven (11) .40 caliber cartridges collected from
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the scene, were sent to the Pennsylvania State Police lab for
analysis. All eleven (11) cartridges were found south of Ethel
Alley. The cartridges were tested, and all were from .40 caliber
Smith and Wesson bullets that were discharged from the same
unknown firearm.
On December 30, 2017, Javon McKinnon a/k/a “Whoopy”
(hereinafter “Mr. McKinnon”) was visiting his mother at 1938
Brookwood Street when Mr. Guider called and asked if he wanted
to hang out. At the time, Mr. McKinnon was driving his wife’s van,
which he parked in front of his mother’s home. When Mr. Guider
arrived, Mr. McKinnon went outside and saw a darkish blue or
black vehicle pull away but was not able to see who was inside.
He subsequently told police that he believed there were two (2)
females inside the blue vehicle. Mr. Guider was driving a rented
blue Chevrolet Impala.
The two (2) females were Aja Washington (hereinafter “Ms.
Washington”) and Sharayne Cook (hereinafter “Ms. Cook”) who
testified at trial. Ms. Cook was driving Ms. Washington’s dark blue
Chevrolet Malibu with tinted windows that evening. The pair were
driving around trying to meet up with Ms. Cook’s cousin, Brittany
Jackson, and go to a couple local bars. While travelling on
Brookwood Street toward Double D’s Bar and Grill located at 564
South 19th Street, Ms. Cook saw Mr. Guider in his vehicle stopped
in the middle of [the] street and Mr. McKinnon getting into the
passenger side. At 11:47 P.M. on December 30, 2017, Ms. Cook
calls [McKinney] and has a six (6) minute conversation with him.
[McKinney’s] cell phone records show that the call hit off Tower
0594, which is .430 miles from the location of the shooting.
At 12:56 A.M. on December 31, 2017, Ashley McKinnon
(hereinafter “Mrs. McKinnon”) received a call from [McKinney]
asking if she was with Mr. McKinnon because someone had told
[McKinney] they saw Mr. McKinnon and Mr. Guider get into her
car in front of 1938 Brookwood Street. [McKinney’s] cell phone
records show that the call hit off Tower 0594, near the scene of
the homicide. Mrs. McKinnon became angry because Mr.
McKinnon was supposed to be at the hotel room with her children
so she called Mr. McKinnon and asked why he would leave them
there. After that phone call, Mr. McKinnon and Mr. Guider
continued to drive around for approximately thirty (30) more
minutes.
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When they returned to 1938 Brookwood Street, Mr.
McKinnon was getting out of Mr. Guider’s vehicle when someone
began shooting at them. Mr. McKinnon subsequently told police
that he saw two (2) shadows near his wife’s parked van. Mr.
McKinnon jumped back into Mr. Guider’s vehicle while continuing
to be shot at. He heard Mr. Guider scream and tried to grab him
while simultaneously avoiding gunfire. The next time Mr.
McKinnon looked up; the vehicle was crashing into a pole. Mr.
McKinnon jumped out of the car and ran, eventually circling back
to his mother’s residence. At the time, he did not realize that he
was shot in the leg and through his scrotum until paramedics
arrived.
At 1:28 A.M., a 911 call was made by a female stating that
a male was shot. Approximately two (2) minutes later, Officer
Angel Diaz (hereinafter “Officer Diaz”) of the City of Harrisburg
Police Department responded to 1935 Brookwood Street. Upon
arriving, he observed a green sedan parked at an awkward angle
and in contact with the vehicle behind it. Initially, Officer Diaz
believed the vehicle was empty and noticed a male further up the
street knocking on a door. Officer Diaz approached and asked if
he saw anything, the male responded no. When Officer Diaz re-
approached the green sedan, he noticed there was a male in the
driver’s seat slightly reclined and bleeding from the face. The
male was unresponsive. Officer Diaz noted that all the car doors
were closed, the car was in drive and running.
When other officers arrived on scene, Officer Diaz requested
another officer [to] locate the male he saw knocking on the door.
That individual was subsequently identified as Mr. McKinnon.
After the victim was removed from the vehicle by emergency
personnel, Officer Diaz observed a black firearm on the driver’s
side floorboard. Officer Diaz secured the gun and noted that it
was a Glock 23 .40 caliber loaded with twenty (20) live rounds
and one (1) round chambered. There were no shell casings found
inside Mr. Guider’s vehicle.
When Investigator Kimmick arrived on scene at
approximately 4:20 A.M., the scene was securely blocked off with
crime scene tape. He observed a Chevrolet Impala crashed into
a parked car in front of 1937 Brookwood Street and several items
strewn about the road. The tire marks and damage to other
vehicles [were] consistent with Mr. Guider’s vehicle travelling west
on Brookwood Street, striking a pickup truck in front of 2019
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Brookwood Street, then rolling back down through the crime
scene and coming to a rest in front of 1937 Brookwood Street.
A total of twelve (12) cartridges were collected from the
scene on December 31, 2017. Seven (7) of those cartridges came
from the same unknown firearm, and the remaining five (5) came
from a second unknown firearm. The eleven (11) cartridges
collected on December 29, 2017, and the aforementioned seven
(7) cartridges from December 31, 2017, came from the same
unknown firearm. None of the cartridges collected and tested
were from Mr. Guider’s firearm.
Detective Iachini was assigned as the lead investigator for
the homicide on December 31, 2017. He first interviewed
[McKinney’s] girlfriend, Erica, and learned about the altercation
that occurred between [McKinney] and Mr. Guider on December
27, 2017. After that interview, Detective Iachini identified
[McKinney] as a possible suspect. Within the next couple of
weeks, he interviewed Ms. Cook, Ms. Washington and Mr.
McKinnon. On January 15, 2018, Detective Iachini met with Ms.
Goicoechea and showed her a photo array that he had prepared
in advance. Ms. Goicoechea subsequently picked [McKinney] from
the photo array.
Based upon the description of the shooter’s vehicle,
Detective Iachini believe it was a rental and checked with
Enterprise to find out if [McKinney] had rented any cars from
them. [McKinney] rented a pepperdust metallic Chevrolet Impala
through Enterprise from December 11, 2017 through January 4,
2018. Detective Iachini was provided the rental agreement and
asked the Commonwealth to provide a photograph because he
was unsure what pepperdust metallic was. Detective Iachini was
provided with a photograph of the exact vehicle on a dealership
lot out of state. Thereafter, Detective Iachini went to a local
Chevrolet dealer, located a pepperdust metallic Impala and took
photographs of it. He testified that the vehicle looks light bronze
but could look silver or gray depending on how the sunlight hits
it.
Additionally, Detective Iachini provided [McKinney’s] cell
phone records for 717-315-4708 to Detective James Glucksman
(hereinafter “Detective Glucksman”) of the Lower Paxton
Township Police Department to conduct a historical cell analysis.
Detective Glucksman determined that from 11:32 P.M. on
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December 30, 2017 to 1:35 A.M. on December 31, 2017, all of
[McKinney’s] cell phone activity hit off of the two (2) closest
towers to the scene of the homicide - Tower 0594 (.430 miles)
and Tower 0543 (.460 miles). At 1:28 A.M. on December 31,
2017, the exact time of the 911 call that was placed, [McKinney’s]
cell phone hit off Tower 0594, which covers the entire scene of the
homicide.
Detective Glucksman also reviewed [McKinney’s] cell phone
activity from December 29, 2017 around 12:00 P.M. when the
vehicle Mr. Guider’s was driving was shot. As mentioned supra,
the 911 call came in at 12:22 P.M. Detective Glucksman
determined that [McKinney’s] cell phone hit off Tower 0084 (.497
miles from 1926 Market Street) at 12:10 P.M. At 12:20 P.M.,
[McKinney’s] cell phone hit Tower 0094 which is located along
Interstate 83 near the intersection of East Park Drive and Union
Deposit Road.
Trial Court Opinion, 3/30/20, at 4-14 (footnotes, headings, and citations to
the record omitted).
At the conclusion of trial, a jury found McKinney guilty of criminal
attempt (criminal homicide) at docket CP-22-CR-0001113-2018, but was
hung on the homicide and other charges at docket CP-22-CR-0001117-2018.
On October 21, 2019, the trial court sentenced McKinney to an aggregate term
of ten to twenty years in prison. On December 9, 2019,2 McKinney filed a
timely post-sentence motion, which was denied by the trial court on December
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2 Following a procedural history not herein relevant, McKinney failed to file a
timely post-sentence motion due to the withdraw of his private counsel and
several delays related to the appointment of a public defender. McKinney’s
post-sentence rights were reinstated nunc pro tunc, and he was ordered to
file a post-sentence motion no later than December 9, 2019.
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30, 2019. McKinney filed a timely notice of appeal. Both McKinney and the
trial court complied with Pa.R.A.P. 1925.
McKinney raises the following issues for our review:
1. Was the evidence presented at trial insufficient to sustain a
verdict of guilt where the majority of the Commonwealth’s case
was circumstantial, there was no evidence that the alleged
victim was in or near the target vehicle at the time of the
shooting, and there was insufficient evidence to prove that
[McKinney] was the shooter?
2. Whether the trial court erred by allowing the Commonwealth
to elicit testimony from Erica Smith regarding [McKinney’s]
incarceration since the offered testimony was irrelevant and
any purported probative value was far outweighed by the
prejudice caused to [McKinney] the Commonwealth [sic] to
elicit testimony regarding [McKinney’s] incarceration for the
attempt [sic] homicide and homicide charges?
3. Whether the trial court erred by allowing the Commonwealth
to introduce a photograph of a “pepperdust metallic” vehicle in
order to identify the vehicle purportedly driven by [McKinney]
during that timeframe even though the picture was not a fair
and accurate depiction of the actual vehicle driven by
[McKinney] and the photograph of a vehicle that was not
specifically identified as the actual vehicle used in the shooting?
4. Did the trial court err by failing to grant [McKinney] a new trial
on the basis that the jury’s verdict was against the weight of
the evidence; the Commonwealth’s case was purely
circumstantial, only one Commonwealth witness identified
[McKinney] after giving police an incorrect description of him,
and there was no evidence that the alleged victim was near or
in the vehicle which was the target of the shooting at the time
the incident occurred?
McKinney’s Brief at 6 (issues reordered for ease of disposition).
McKinney’s first issue presents a challenge to the sufficiency of the
evidence. However, the trial court determined that the issue was waived.
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Thus, prior to analyzing the merits of McKinney’s sufficiency claim, we must
first determine whether he preserved it for our review.
In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our
Supreme Court held that if an appellant is directed to file a concise statement
of errors to be raised on appeal pursuant to Pa.R.A.P. 1925(b), “[a]ny issues
not raised in a 1925(b) statement will be deemed waived.” See also Pa.R.A.P.
1925(b)(3)(vii) (stating that “issues not included in the Statement . . . are
waived.”). Since Lord, our appellate courts have ruled that, in order to
preserve a challenge to the sufficiency of the evidence on appeal, an
appellant’s Rule 1925(b) statement must state with specificity the element or
elements upon which the appellant alleges that the evidence was insufficient.
See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).
Here, the trial court directed McKinney to file a concise statement of
errors to be raised on appeal pursuant to Pa.R.A.P. 1925(b). In his Pa.R.A.P.
1925(b) statement, McKinney framed his sufficiency claim as follows: “[t]he
evidence presented at trial was insufficient to sustain a verdict of guilt. The
only evidence presented at trial was the questionable testimony of
Commonwealth witnesses, only one of whom identified [McKinney] as the
shooter, but only after two weeks had passed.” Concise Statement at 2.
Again, the trial court concluded that that McKinney’s sufficiency challenge was
waived because he failed to specify the element or elements upon which he
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believed the evidence was insufficient in the Pa.R.A.P. 1925(b) statement.
See Trial Court Opinion, 3/30/20, at 15.3
Clearly, McKinney’s Pa.R.A.P. 1925(b) statement does not challenge the
sufficiency of the Commonwealth’s evidence regarding any specific element of
the singular crime for which he was convicted, i.e., criminal attempt
(homicide). Thus, his bald assertion that “[t]he evidence presented at trial
was insufficient to sustain a verdict of guilt,” is inadequate to raise a
sufficiency claim on appeal.
While McKinney does endeavor to present a challenge to the
Commonwealth’s evidence identifying him as the shooter, the issue, as framed
in his Pa.R.A.P. 1925(b) statement, is essentially a challenge to the weight of
the evidence rather than to the sufficiency of the evidence. In his Pa.R.A.P.
1925(b) statement, McKinney acknowledges that the Commonwealth
presented identification evidence though the testimony of one witness, but
implicitly seeks that we reassess the credibility of that witness because the
identification was “questionable,” and provided “after two weeks had passed.”
Such an assessment is beyond our purview in the context of a challenge to
the sufficiency of the evidence. See Commonwealth v. Moyer, 171 A.3d
849, 852 (Pa. Super. 2017); see also Commonwealth v. Wilson, 825 A.2d
710, 713-14 (Pa. Super. 2003).
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3The Commonwealth also contends that McKinney’s sufficiency challenge is
waived for lack of specificity in the Pa.R.A.P. 1925(b) statement.
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Any uncertainty in an eyewitness’s identification of a defendant is a
question of the weight of the evidence, not its sufficiency. See
Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006); see also
Commonwealth v. Miller, 172 A.3d 632, 643 (Pa. Super. 2017) (holding
that a “true weight of the evidence challenge concedes that sufficient evidence
exists to sustain the verdict but questions which evidence is to be believed.”).
As McKinney has raised a separate challenge to the weight of the evidence in
which he addresses, inter alia, the reliability of the Commonwealth’s
identification testimony, we will address this argument in our analysis of
McKinney’s separate weight challenge, infra.4
In his second issue, McKinney contends that the trial court abused its
discretion by permitting the Commonwealth to elicit testimony from Erica
Smith referencing his incarceration. Our standard of review is as follows:
The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 25 (Pa. Super. 2020)
(citation omitted).
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4 While McKinney attempts to raise other sufficiency claims in his appellate
brief, we will not consider them, as he did not preserve them for our review
by including them in his Pa.R.A.P. 1925(b) statement.
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Further, evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”
Pa.R.E. 401. However, “[a]lthough relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.
McKinney maintains that, during trial, the prosecutor questioned Smith
about McKinney’s telephone number and whether she knew that number had
changed following the homicide of Guider. The exchange in question consisted
of the following:
[The Prosecutor]: Yet you’re telling us that in January of 2018
you weren’t aware that [McKinney] changed his phone number
approximately three days after the homicide. Is that your
testimony?
[Smith]: Correct. I used the same number the entire, like, time.
[The Prosecutor]: Okay. So Sprint would be wrong? Are you
saying that you continued to utilize that phone number calling him
in January, February, and March of 2018.
[Smith]: He didn't have a phone then. He was already
incarcerated at that time.
[The Prosecutor]: We’ll talk about - And he was incarcerated on
these charges, correct? He got arrested on these charges and
obviously didn’t have a cell phone?
[Defense Counsel]: Objection, Your Honor. May we approach?
(The following discussion was held on the record at sidebar.)
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The Court: Your objection being?
[Defense Counsel]: We do everything that we can to make sure
every defendant has due process and keep out his arrest. And
here we have the Commonwealth highlighting that.
[The Prosecutor]: I didn’t highlight anything.
The Court: We try to make sure that there’s no evidence that he's
incarcerated during the course of the trial. If someone is arrested
on a homicide charge, I think most people would conclude there
would be some period of incarceration until bail was posted if that
happens. So your client’s girlfriend stated that he was
incarcerated. [The Commonwealth was] just trying to make it
clear that it was this and not something else. You’re not planning
on going any further?
[The Prosecutor]: No.
[Defense Counsel]: I note my objection for the record.
The Court. And you have an exception on the record. And I ask
that it not be emphasized any further.
N.T., 8/13/19, at 107-09.
McKinney argues that the Commonwealth intentionally sought
testimony from Smith regarding his incarceration. McKinney asserts that the
prosecutor was aware that police arrested McKinney on January 24, 2018, and
thereafter held him without bail due to the homicide charge. Nevertheless,
the prosecutor asked Smith what phone number she would use to call
McKinney in January, February and March of 2018, knowing that McKinney
was incarcerated for two thirds of the timeframe in his question. McKinney
contends that there was no way Smith’s answer would have been anything
other than McKinney was incarcerated during that time or that Smith would
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have to call him at Dauphin County Prison. McKinney argues that the
prejudicial impact of Smith’s testimony far outweighed its probative value. He
additionally claims that the prosecutor’s intentional solicitation of this
testimony was possibly the “tipping point” for the jury on the attempted
homicide charge, given that the evidence in the case was circumstantial and
the jury was hung on the homicide charge. Finally, McKinney claims that the
trail court abused its discretion in failing to provide a curative instruction to
the jury.
The trial court considered McKinney’s second issue and concluded that
it lacked merit. The trial court reasoned:
The reference to [McKinney’s] incarceration was clearly
inadvertent and not initially elicited by the Commonwealth. Once
[McKinney’s] girlfriend mentioned his incarceration, the
Commonwealth wanted to clarify that she was not referencing a
prior incarceration. Additionally, as this [c]ourt aptly stated at
trial, most people would assume that an individual charged with
homicide is incarcerated. Accordingly, this [c]ourt did not err in
overruling [McKinney’s] objection to testimony that [he] was
incarcerated because defense counsel requested no further relief.
Trial Court Opinion, 3/30/20, at 20 (emphasis in original). The trial court
additionally noted that, although defense counsel made a timely objection to
the references to McKinney’s incarceration, he did not ask for a mistrial. See
Id. at 19.
We discern no abuse of discretion by the trial court in its evidentiary
ruling. Although generally no reference may be made at trial in a criminal
case to a defendant’s arrest or incarceration for a previous crime, there is no
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rule in Pennsylvania which prohibits reference to a defendant’s incarceration
awaiting trial or arrest for the pending charges. See Commonwealth v.
Johnson, 838 A.2d 663, 680 (Pa. 2003). Nevertheless, our courts recognize
that “constant reminders” of a defendant’s incarceration may affect the jury’s
judgment and burden the defendant’s right to the presumption of innocence.
Id. at 681 (citing Estelle v. Williams, 425 U.S. 501 (1976)).
Here, the reference to McKinney’s incarcerated status was passing, and
not the type of “constant reminder” proscribed by Estelle. Moreover, the
prosecutor confirmed with Smith that the incarceration she referenced was for
the pending homicide charges, rather than an unrelated prior offense. See
Johnson, 838 A.2d at 680; see also Commonwealth v. Wilson, 649 A.2d
435, 445-46 (Pa. 1994) (concluding that testimony indicating that the
defendant was incarcerated prior to trial was not improper where the jury
could reasonably infer that the defendant’s detention was the result of the
criminal acts for which the defendant was on trial); Commonwealth v.
Horne, 89 A.3d 277, 284 (Pa. Super. 2014) (explaining that the brief mention
of the defendant’s incarceration did not unduly prejudice him, as the jury could
reasonably infer that he was incarcerated prior to trial because he was accused
of committing the robbery at issue, not some previous offense). Moreover,
defense counsel did not request either a mistrial or a curative instruction.
Thus, McKinney cannot now fault the trial court for failing to provide relief that
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he never requested. For these reasons, McKinney’s second issue merits no
relief.
In his third issue, McKinney contends that the trial court abused its
discretion by permitting the Commonwealth to introduce a photograph of a
vehicle purporting to be the same color as the vehicle McKinney was allegedly
driving on December 29, 2017. We employ the same standard of review as
indicated above regarding the admission of evidence.
McKinney argues that the trial court abused its discretion by permitting
the Commonwealth to introduce a photograph of a 2018 Chevy Impala,
purporting to be pepperdust metallic in color. McKinney points out that the
vehicle in the photograph was not the actual vehicle that he rented and drove.
While McKinney concedes that photo may be relevant, he argues that the
possibility that the photo could mislead or confuse the jury outweighed any
probative value. McKinney posits that, when the Commonwealth presents a
photograph of a vehicle that matches the description of one supposedly used
in a shooting, the jury will accept that photograph as the exact replica of the
vehicle in question and will believe that the color presented in the photograph
is the same color as that of the actual vehicle.
McKinney points out that the Commonwealth had a photograph of the
actual vehicle McKinney rented, but did not want to expend the cost of
bringing a witness from out-of-state to authenticate that photograph. Thus,
McKinney argues, he was forced to stipulate to the photo of the actual vehicle
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in order to cross-examine Detective Iachini regarding the model and color of
the vehicle. McKinney argues that, despite the stipulation by the defense to
the photograph of the actual vehicle he drove, the Commonwealth still chose
to present photographs of a vehicle that was not the vehicle in question. Thus,
he argues that “it seems clear that the Commonwealth was not introducing
the photo[s] of the miscellaneous Chevy Impala for the purposes of confusing
or misleading the jury, not to fairly and accurately represent the actual vehicle
driven by McKinney.” McKinney’s Brief at 29.
As with other evidence, a trial court has discretion to admit
demonstrative evidence, such as a photograph, if its relevance outweighs any
potential prejudice effect. Commonwealth v. Reid, 811 A.2d 530, 552 (Pa.
2002). Demonstrative evidence, however, must also be properly
authenticated by evidence sufficient to show that it is a fair and accurate
representation of what it is purported to depict. Id. (citing Pa.R.E. 901(a)).
Demonstrative evidence may be authenticated by testimony from a witness
who has knowledge of what the evidence is proclaimed to be. Id. (citing
Pa.R.E. 901(b)(1)).
Here, the color of the vehicle that the shooter was driving on December
29, 2017, was in dispute. Ms. Goicoechea testified that the shooter drove a
brown Chevrolet Impala. See N.T., 8/12/19, at 48, 74. On the other hand,
Ms. Smith told police that the shooter’s vehicle was blue or gray. See id. at
44. The Commonwealth established that, from December 11, 2017 through
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January 4, 2018, McKinney rented a 2018 Chevrolet Impala, which was
pepperdust metallic in color. See N.T., 8/13/19, at 228, 230. Thus, the color
of the rental vehicle was clearly relevant to the question of whether McKinney
was the shooter on December 29, 2017.
At trial, Detective Iachini testified that, as part of his investigation, he
went to a local Chevrolet dealership to find a 2018 pepperdust metallic
Chevrolet Impala. N.T., 8/14/19, at 456, 460. He further testified that, upon
locating such a vehicle, he took photographs of that vehicle. Id. at 460. The
prosecutor then showed Detective Iachini two photographs, and the detective
confirmed that they were the photographs that he had taken of the 2018
pepperdust metallic Chevrolet Impala at the local Chevrolet dealership. Id.
Detective Iachini testified that, while pepperdust metallic looked like a light
bronze color to him, depending on how the sun hits it, pepperdust metallic
could also look silver or gray. Id. at 460-61.
We discern no abuse of discretion by the trial court in admitting the
demonstrative photographs of a pepperdust metallic 2018 Chevrolet Impala.
In its view, the relevance of the photographs to show the color of the vehicle
that McKinney was driving on December 29, 2017, outweighed any potential
prejudicial effect. See Reid, 811 A.2d at 552. The rental agreement was
admitted into evidence and specified that McKinney had rented a 2018
Chevrolet Impala that was pepperdust metallic in color. Detective Iachini
authenticated the photographs by testifying that they were the photographs
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that he had taken of a pepperdust metallic 2018 Chevrolet Impala at a local
dealership. McKinney stipulated to the admission of a photograph of the actual
pepperdust metallic 2018 Chevrolet Impala that McKinney rented; however,
he does not claim that color varied between the two vehicles depicted in the
photographs such that the jury could be misled or confused. Nor does
McKinney explain how he was in any way prejudiced by the admission of the
two photographs taken by Detective Iachini. Thus, his third claim warrants
no relief.5
In his final issue, McKinney contends that the verdict of guilt was against
the weight of the evidence. The following legal principles apply when a
challenge to the weight of the evidence supporting a conviction is presented
to the trial court:
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
____________________________________________
5 The trial court concluded that McKinney’s third issue was waived because
defense counsel stipulated to the admission of the photograph of the actual
vehicle that McKinney rented. See Trial Court Opinion, 3/30/20, at 20-21.
However, on appeal, McKinney’s challenges the admission of the
demonstrative photographs taken by Detective Iachini of the 2018 pepperdust
metallic Chevy Impala. We cannot agree that defense counsel’s stipulation to
a different photograph constitutes waiver of his challenge to the photographs
here in question.
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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) (citations,
footnotes and quotation marks omitted). Thus, to allow an appellant “to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
[trial] court.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.
2016) (internal citation omitted).
An appellate court’s standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original, internal citations omitted).
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McKinney argues that the verdict was against the weight of the evidence
because the Commonwealth’s case was purely circumstantial. McKinney
points out that only one Commonwealth witness identified him in a photo array
two weeks after giving police an incorrect description of him. Further,
McKinney avers that there was no evidence that Guider was in the vehicle
which was the target of the shooting at the time the incident occurred.
McKinney maintains that although Guider told Morrison that her vehicle had
been shot up, there was no testimony that he told her that he was in the
vehicle at the time of the shooting.
McKinney also points to the inconsistencies in Goicocchea’s testimony.
Goicocchea identified the shooter as no more than five feet, seven inches;
however, McKinney was identified as being six feet, four inches. McKinney
claims that Goicocchea erroneously testified that she only spoke to police
when they came to her door, and gave the impression during trial that she did
not call the police or desire to speak with them. McKinney argues that her
testimony was contradicted by Officer Kreiser, who indicated that when she
arrived at the scene of the shooting, Goicocchea was outside her house and
flagged Officer Kreiser down in order to give a statement. McKinney claims
that Goicocchea also testified that the victim’s vehicle was a black Chevy
Malibu, but the actual car that sustained damage during the shooting was a
Kia Optima.
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The trial court considered McKinney’s weight challenge and concluded
that the verdict of guilt did not shock its conscience. The trial court reasoned:
In the present case, the weight of the evidence supports the
jury’s findings. . . . [T]he evidence overwhelmingly demonstrates
that [McKinney] had a specific intent to kill Mr. Guider, took
substantial steps in completing that goal on December 29, 2017,
and ultimately succeeded on December 31, 2017. There is an
eyewitness to the shooting on December 29, 2017, who was able
to identify [McKinney] in a photo array, as well as in-court during
trial. Furthermore, Ms. Morrison testified that Mr. Guider was
driving her vehicle on December 29, 2017, when it was shot at,
and ultimately provided her vehicle to police to process for
evidence. Accordingly, the verdict was not contrary to the weight
of the evidence to the degree of shocking one’s conscience.
Therefore, this [c]ourt did not err in denying [McKinney’s] post-
sentence motion for a new trial based on a challenge to the weight
of the evidence.
Trial Court Opinion, 3/30/20, at 18-19.
As discussed above, we give the gravest consideration to the findings
and reasons advanced by the trial court when reviewing its determination that
the verdict is not against the weight of the evidence. In this matter, we
discern no abuse of discretion by the trial court in arriving at its determination
that the verdict of guilt for criminal attempt (homicide) did not shock its
conscious. Although the evidence of McKinney’s guilt was largely
circumstantial, it was nevertheless overwhelming. Accordingly, McKinney’s
weight challenge merits no relief.
As none of McKinney’s issues entitles him to relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2021
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