J-A05034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE BOOZER                                 :
                                               :
                       Appellant               :   No. 990 WDA 2019

         Appeal from the Judgment of Sentence Entered October 1, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0006519-2017


BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           FILED MARCH 06, 2020

        Lee Boozer (Boozer) appeals the judgment of sentence entered by the

Court of Common Pleas of Allegheny County (trial court) following a jury trial

on charges stemming from a fatal convenience store shooting. Boozer was

convicted of second-degree murder, criminal attempt to commit criminal

homicide, attempted homicide, robbery, and aggravated assault.        He was

sentenced on the second-degree murder count to a mandatory prison term of

life without the possibility of parole. He received a consecutive term of nine

to 18 years on the aggravated assault count, with no further penalty as to the

remaining convictions. On appeal, Boozer contends that he is entitled to a




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*   Retired Senior Judge assigned to the Superior Court.
J-A05034-20


new trial due to the trial court’s denial of the right to self-representation, as

well as the admission of disputed identification evidence. We affirm.

                                       I.

      Darryl Terry (Terry) was the owner of the Allendale Market located at

3333 Allendale Street in the East Sheridan section of the City of Pittsburgh.

In May 2014, a man entered Terry’s store, shot him once in the chest and

ransacked the establishment. Terry tried to flee, but he was shot four more

times in the back as he ran across the street, and after he fell to the ground,

Terry was shot twice in the head. His accumulated injuries were fatal.

      Susan Wagner (Wagner) happened to observe this shooting from her

car while driving on Allendale Street toward her mother’s nearby home.

Wagner saw the shooter running away, and she tried to position her car in a

place where she could safely call the police. As she did so, Wagner saw the

shooter enter a home located at 1107 Stanhope Street. Wagner turned onto

Stanhope Street, where the shooter came outside and accosted her,

discharging a firearm and grazing Wagner’s arm.           The shooter pursued

Wagner on foot as she turned onto Chartiers Avenue and then shot her once

in the chest. Wagner survived the attack. Police later recovered various items

from the yard of the home at 1107 Stanhope Street, including a pair of




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sunglasses bearing DNA from which Boozer could not be excluded as a

contributor.1

       The afternoon of the shooting, a man came to the home of Sarom Long

(Long) on 1308 Pritchard Street, less than a mile away from the shooting.

The man was pacing back and forth in front of the residence. Long did not

recognize the man, but her boyfriend’s brother, Matthew Sherrell, asked Long

to give the man a ride to the bus station and Long obliged. During the drive,

the man asked to be dropped off at his home, and as he got out, Long saw

blood on his hands, legs and shoes.

       During the police investigation of the shooting, Long selected a picture

of a suspect named “Emmett Reese” in a photo-array police showed her. See

Trial Transcript, at 508. Long testified that at the time, she was unsure that

the photo of Reese matched the appearance of the person she had driven on

the day of the shooting. Id. at 510.2

       Subsequently, Long texted Detective McGee a photo of Boozer,

identifying him as the man she had driven. The police soon compiled another

photo-array, and Long selected Boozer’s picture. Id. at 512. Sometime after



____________________________________________


1 In addition to Boozer, there were three other contributors of DNA found on
the sunglasses.

2 At trial, Long testified that she had never met Emmett Reese, and that
Emmett Reese was not the person she encountered at her home who had
requested a ride. See Trial Transcript, at 510.


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that, while the investigation was still underway, Boozer came back to Long’s

home and assaulted her. Id. at 528-29.

       Police also interviewed Wagner, but initially she remembered little of the

incident and could not positively identify the man who shot her. In a six-

person photo line-up, Wagner could only say that one photo resembled her

attacker, again, a man named Emmett Reese. Id. at 558-61, 575. About a

year later, police presented Wagner with a photo of Boozer and she said that

he also resembled the man who killed Terry and attempted to murder her.

Id. at 561-63.

       Boozer was not arrested in relation to this incident until June 2017,

which was shortly after his DNA was linked to the sunglasses found at 1107

Stanhope Street.3 In his recorded interview with police, Boozer admitted to

going to Terry’s store on at least one occasion. It also came out that Boozer

and Terry had both been romantically involved with the same woman, Lasawn

Sherrell (Sherrell), the sister of Matthew Sherrell. Boozer admitted that at

some point before the shooting, he had seen nude pictures of Terry on

Sherrell's phone. Police interpreted that fact as a potential motive for Boozer

to attack Terry.




____________________________________________


3 Police had also collected photographs of Boozer wearing a dark jacket and a
fisherman’s hat, taken at around the same time of the shooting. Wagner had
described the shooter as wearing a dark jacket and a fisherman’s cap.


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       Based on the evidence collected during the police investigation, Boozer

was charged with criminal homicide, robbery, criminal attempt to commit

criminal homicide, aggravated assault, possession of a firearm without a

license, and a person not to possess a firearm.4 Boozer was appointed defense

counsel and the case proceeded to trial.

       Once the 27th of 32 total trial witnesses had finished testifying, a recess

for lunch was granted, and upon returning, Boozer’s counsel informed the trial

court that Boozer had asked to represent himself. See Trial Transcript, at

695. The matter was addressed the next morning, at which point defense

counsel asked to be discharged because Boozer had threatened him with an

allusion to defense counsel’s son. Id. at 764-65.5 Boozer denied making the

threat and insisted that his counsel had failed to gather and present

exculpatory evidence. Id. at 765.

       The trial court had Boozer sworn so that a colloquy could be held to

determine if he could proceed pro se.            Id. at 766-71.   The trial court



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4 The charge of person not to possess a firearm was severed and tried in a
non-jury trial held in conjunction with the jury trial on the other charges. That
offense is not at issue in this appeal.

5 Defense counsel also requested a mistrial due to the threat, but after the
trial court denied Boozer’s request to proceed pro se, the motion was not
addressed, and defense counsel thanked the trial court for allowing him to
remain on the case. See Trial Transcript, at 770. That apparently abandoned
motion for a mistrial is not at issue in this appeal, so it merits no further
discussion here.


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questioned Boozer regarding the privileges and pitfalls of self-representation,

including the elements of the charged crimes, maximum penalties, and the

standards he would be held to as his own advocate.

        Boozer insisted that the trial should not proceed unless he was first

provided documents he claimed counsel had withheld from him. Id. at 769.

Counsel responded that the documents in question were made confidential by

court order and could not be disclosed to Boozer. Id. Boozer then asked

counsel to show him transcripts and documents concerning his alibi, such as

flight information, bank receipts and subpoenas of alibi witnesses such as

Matthew Sherrell. Id.

        Counsel said he had the documents referred to by Boozer, but indicated

that they were a “grand jury matter.” Id. at 770. Boozer protested that he

could not be ready to proceed pro se until given additional time to review

those materials: “I can’t represent myself without the information.” Id.

at 770. The trial court denied Boozer’s request and allowed defense counsel

to remain on the case, explaining that it did not appear that Boozer understood

enough of the legal issues, procedure and evidence to take on his own

defense.    Id.6    Boozer again commented that he had not “even seen the

evidence involved,” and the trial court replied that he was “not capable of

effectively representing [himself]”. Id.


____________________________________________


6   It appears that defense counsel withdrew his earlier motion to withdraw.


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      In its opinion, the trial court reasoned further that Boozer was

attempting to derail the proceedings rather than legitimately seeking to

exercise the right of self-representation:

      Boozer's conduct during the course of this particular trial indicated
      that his ultimate goal was to disrupt the process and this would
      be achieved by him representing himself. It was clear that his
      request to represent himself was not the exercise of a
      constitutionally protected right but, rather, his desire to cause a
      mistrial which would result [in] the retrial of these charges since
      it appeared that he believed that the Commonwealth had [proven]
      the charge[s] of criminal homicide and criminal attempt criminal
      homicide. While [the trial court] noted that it did not think that
      Boozer had the ability to handle this case, it was the real
      motivation of the request to represent himself that was considered
      in light of Boozer's attitude during the course of this case when he
      threatened his own counsel and continued to demand the
      introduction of irrelevant materials in an attempt to form the basis
      for a mistrial. It was abundantly clear to [the trial court] that
      there was no desire by Boozer to exercise his constitutionally
      protected right to represent himself but, rather, to provide himself
      with an opportunity to ensure that a mistrial occurred. Since [the
      trial court] viewed that Boozer's request was not legitimate, it
      denied him the right to proceed pro se.

Trial Court Opinion, 7/9/2019, at 8-9.

      At the conclusion of trial, Boozer was found guilty of the offenses

outlined above. The jury found him not guilty of possession of firearm without

a license.    Boozer's trial counsel filed a motion to withdraw after the

sentencing, and appellate counsel entered an appearance, filing an application

to reinstate Boozer's appellate rights, which the trial court granted.        Both

Boozer and the trial court complied with Pa.R.A.P. 1925.

      In his appellate brief, Boozer asserts four issues for our consideration:




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      1.     Did the Trial Court commit reversible error when it refused
      to allow Mr. Boozer the right to represent himself when it was
      clear in the record that . . . Boozer knowingly, intelligently and
      voluntary waived his right to counsel[?]

      2.    Did the Trial Court commit reversible error when it
      permitted an in court line-up to be shown to Susan Wagner [a
      shooting victim] which was extremely suggestive and
      prejudicial[?]

      3.    Did the Trial Court commit reversible error when it
      permitted Detective McGee, prior to Sarom Long's testimony, to
      instruct Long to point Boozer out and say it was him that [Long]
      drove away from the scene [of the crime?]

      4.     Was it reversible error to allow into evidence a prior
      statement of Mathew Sherrell who testified he did not remember
      the prior statement and did not want to participate in this trial
      violating Pennsylvania Rule of Evidence 804[?]


Appellant’s Brief, at 4 (renumbered). Each of those issues will be addressed

in turn below.

                                     II.

                                     A.

      The trial court did not abuse its discretion in precluding Boozer from

representing himself because the request was indisputably untimely, and

there was evidence that the request was equivocal and made for purposes of

delay.

      It is well-established that a defendant has a constitutional right to

represent himself in court. See Faretta v. California, 422 U.S. 806, 821

(1975) (recognizing that under the Sixth Amendment, the criminally accused

has a right to mount his own defense).         A defendant’s right to self-


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representation must be honored when invoked if a trial court is able to

ascertain that the defendant is knowingly, voluntarily and intelligently waiving

the constitutional right to the assistance of counsel. Id. at 835; see also

Commonwealth v. Starr, 664 A.2d 1326, 1334–35 (Pa. 1995) (outlining

waiver of counsel procedure set forth in Pa.R.Crim.P. 121).       This probing

colloquy requires the court to engage a “searching and formal inquiry” as to

“(1) whether the defendant is aware of his right to counsel or not and (2)

whether the defendant is aware of the consequences of waiving that right or

not.” Starr, 664 A.2d at 1335.

      Significantly, however, a defendant’s request to proceed pro se “must

be made timely and not for purposes of delay and must be clear and

unequivocal.” Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005). If

a defendant waits until the trial is already underway, then the request is

untimely and must be “addressed to the sound discretion of the trial court.”

Id. (quoting Commonwealth v. Owens, 436 A.2d 129, 133 n.6 (Pa. 1981));

see also Commonwealth v. El, 977 A.2d 1158, 1163-65 (Pa. 2009).

      The right to self-representation may also be waived or forfeited by

deliberately   engaging    “in   serious   and   obstructionist   misconduct.”

Commonwealth v. Tighe, No. 57 MAP 2018, at 12 (Pa. February 19, 2020)

(quoting Faretta, 422 U.S., at 834 n.46).        In the event of an untimely

invocation of the right, the protections of Faretta and the formal inquiry

discussed in Starr do not apply. See El, 977 A.2d at 1164 (“Most significant


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is the fact that with both the right to a jury trial and the right to self-

representation, there exists the potential danger of a defendant using the right

to manipulate or delay proceedings.”).

      In this case, the trial court denied Boozer’s request to represent himself,

finding that he was unprepared to proceed, and that his invocation of the right

to self-representation was merely an attempt to disrupt the proceedings and

set up a mistrial. See Trial Court Opinion, 7/9/2019, at 8-9. The trial court

did so after Boozer’s defense counsel conveyed that he believed Boozer had

threatened him.       Moreover, Boozer’s professed reasons for seeking self-

representation – his counsel’s alleged refusal to grant him access to various

documents – could have been resolved before the trial started and certainly

before dozens of witness had already testified.

      Significantly, Boozer conditioned his readiness to proceed on having the

chance to review pieces of evidence he knew about prior to the day of trial

but which were confidential grand jury materials. Boozer informed the trial

court that he could not “represent [him]self without the information.” Trial

Transcript, at 770.

      Had the trial court acquiesced to Boozer’s request to go forward on his

own, it could have easily caused a significant delay and possibly a mistrial had

Boozer refused to continue unless given access to the confidential items.

Further, Boozer never established his right to the particular evidence he




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sought, so his conditional readiness to proceed might have never been

realized, making the request equivocal at best.

      On these facts, Boozer’s request was untimely, and conditioned on his

receipt of evidence, it appears he was not entitled to. There is ample evidence

that Boozer had an ulterior motive in seeking to represent himself. As stated

above, a defendant must timely invoke the right to self-representation, and if

he does not, a trial court may deny the request if there is evidence it was

made for purposes of delay or obstruction.        The trial court had reason to

suspect that Boozer’s 11th hour request, coupled with a threat against his

attorney, was intended to disrupt or avoid the resolution of the proceedings.

Accordingly, the trial court did not abuse its discretion in denying Boozer

control over his defense. See e.g., El, 977 A.2d at 1165 (explaining that “the

very basis for requiring a timely and unequivocal assertion of the right to

proceed pro se is to avoid manipulation and delay.”); Commonwealth v.

Dowling, 959 A.2d 910, 915 (Pa. 2008) (same); Commonwealth v.

Treiber, 874 A.2d 26, 32 (Pa. 2005) (same).

                                        B.

      As to whether the trial court erred in allowing Susan Wagner to identify

Boozer from the stand as the person who shot her, the admission of that in-

court identification is subject to the trial court’s discretion. See Pa.R.E. 611(a)

(“The court should exercise control over the mode and order of examining

witnesses and presenting evidence so as to:         (1) make those procedures


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effective for determining the truth[.]” “Admission of evidence is within the

sound discretion of the trial court and a trial court’s rulings on the admission

of evidence will not be overturned absent an abuse of discretion or

misapplication of law.” Maisano v. Avery, 204 A.3d 515, 523 (Pa. Super.

2019). “An abuse of discretion is not merely an error of judgment, but if in

reaching a conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will, as shown by the evidence or the record, discretion is abused.” Id.

      A special standard applies to the admissibility of in-court identifications

which have been tainted, pre-trial, by unduly suggestive procedures.          The

United States Supreme Court held in Neil v. Biggers, 409 U.S. 188, 199-200

(1972), that if such a taint arises, the admissibility of a subsequent in-court

identification turns on several factors, including “the opportunity of the

witness to view the criminal at the time of the crime, the witness’ degree of

attention, the accuracy of the witness’ prior description of the criminal, the

level of certainty demonstrated by the witness at the confrontation, and the

length of time between the crime and the confrontation.”               See also

Commonwealth v. Carter, 643 A.2d 61, 71 (Pa. 1994) (same).                    “In

reviewing the propriety of identification evidence, the central inquiry is

whether, under the totality of the circumstances, the identification was

reliable.” Commonwealth v. Brown, 23 A.3d 544, 558 (Pa. Super. 2011).




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      In this case, Wagner admitted to having trouble remembering the

shooting and the face of the perpetrator when she was initially interviewed by

police. See Trial Transcript, at 557-59, 574-76. Wagner testified on direct

examination that at that time she was shown the first array of six photos, she

did not remember identifying anyone.

      Sometime later, Wagner was shown a photo of Boozer, who she also

believed “resembled” the shooter.     Then, at trial, the Commonwealth had

Wagner evaluate from the stand each photo she had previously been shown.

Wagner confirmed that the first six photos did not depict her assailant. She

was then shown the seventh photo (of Boozer), which she had said resembled

the shooter, and she testified that she was “certain” of his identity as the man

who attacked her. Id. at 563.

      The defense objected that it was unduly suggestive for the prosecution

to stage a line-up in front of the jury. The Commonwealth countered that

having Wagner identify Boozer, to the exclusion of the other individuals in the

photo array, was necessary to rebut Boozer’s defense that someone else

committed the subject crimes.

      Although the trial court overruled the objection, defense counsel was

allowed   to   cross-examine   Wagner    on   the   out-of-court   and   in-court

identifications. She admitted that she had told police at one point that Emmett

Reese resembled the shooter. However, Wagner testified that there was only




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a “slim” possibility of her identifying Reese as the shooter if he were also

present in the courtroom. Id. at 592-94.

      Boozer now argues pursuant to Biggers that the trial court erred in

allowing Wagner to identify him in court because it resulted from suggestive

and prejudicial procedures employed before and during the trial.             See

Appellant’s Brief, at 19-26. He contends that Wagner’s earlier uncertainty of

the shooter’s identity and Boozer’s presence in the courtroom made Wagner’s

identification improper because it was so strongly suggested by the prosecutor

who she should identify.

      Contrary to Boozer’s claims, this case is not governed by Biggers, and

the procedures used to elicit the in-court identification were also not so unduly

suggestive as to render it inadmissible. Wagner viewed photo arrays prior to

trial and told police that Boozer and one other individual resembled the person

who shot her. There appears to be nothing suggestive or unduly prejudicial

about those out-of-court identifications, and Boozer does not contend that

there was. Accordingly, the Biggers analysis does not apply because it is not

asserted here that an improper pre-trial identification tainted the identification

Wagner made at trial. See Commonwealth v. Johnson, 542 Pa. 384, 668

A.2d 97, 103 (1995) (“Because the out-of-court identifications were not

tainted, we need not address [the] appellant’s argument that the in-court

identifications lacked an independent basis [for its admissibility].”).




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        Boozer’s central contention, rather, is that having Wagner view photos

from an array while Boozer was present in court prompted her to identify

Boozer as the culprit. Clearly, Boozer’s presence alone did not render the in-

court identification inadmissible or preclude Wagner from attempting to

identify him. By that logic, all in-court identifications would be inadmissible.

See Commonwealth v. Santiago, 209 A.3d 912 (Pa. 2019) (the presence

of the defendant at trial is “never suppressible”).

        The admission of the in-court identification was, therefore, subject to

the trial court’s discretion. Since the outcome of the trial in this case hinged

on proof of the shooter’s identity, Wagner’s in-court identification was highly

relevant, despite her admitted memory lapses in the past. To the extent that

Wagner’s testimony or the procedures used to elicit the in-court identification

were irregular, it was a matter of weight for the jury.               See e.g.,

Commonwealth v. Kyle, 533 A.2d 120, 132 (Pa. Super. 1987) (the

discrepancies between an initial description and the person identified in a

photo     array   concern    “credibility,”    not    “undue   suggestiveness”);

Commonwealth v. Zabala, 449 A.2d 583, 587 (Pa. Super. 1982) (the fact

that a witness “could not previously identify [an] appellant does not render

[his or her] in-court identification any less admissible.      The fact that [the

witness] could not identify [the defendant] earlier is relevant only to the

weight and credibility of [his or her] testimony.”). In view of the totality of




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the circumstances, the trial court did not abuse its discretion in ruling that

Wagner’s in-court identification was admissible.

                                               C.

       Boozer next argues that Sarom Long should have been excluded as a

witness at trial on the ground that Detective McGee advised her just before

testifying to identify Boozer.         Prior to the subject shooting, Long knew

Detective McGee personally through mutual acquaintances and prior cases.

During Long’s testimony, she recounted driving Boozer out of town right after

the shooting occurred, and she was certain she knew who he was. From our

review of the record, the trial court did not err in permitting Long to testify to

that effect, notwithstanding her inadvisable conversation with Detective

McGee.7

       The facts relevant to this issue are as follows. During a recess from

trial, defense counsel overheard Detective McGee speaking with Long in a

hallway within the courthouse. Defense counsel immediately reported to the

trial court that the officer was overheard instructing Long to identify Boozer in

court as the perpetrator. Defense counsel moved for a mistrial, and the trial

court then took testimony outside the presence of the jury in order to question

Long and Detective McGee about their exchange. See Trial Transcript, at 237-

44, 245-56.


____________________________________________


7 The standards of admissibility discussed above in Part II.B. are applicable to
this issue.

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      Detective McGee explained to the trial court that he had been

acquainted with Long from previous cases. Long sat next to Detective McGee

on a bench in the courthouse hallway and told him that she was afraid of

seeing Boozer in the courtroom because of his violent nature.         Detective

McGee said he knew how nervous Long could get before testifying, so he tried

to give her encouragement:

      What happened was we were talking. She said “Is he going to be
      in there when I testify.” I said yes. She said, “I don't want to see
      him. I’m afraid of him. I don’t want to be in the same room with
      him.” I said that he has a constitutional right to be in the same
      room with you while you’re testifying against him. And if he’s not
      in the room, it violates his constitutional rights. At which time,
      she said, “Well, he violated my constitutional rights when he came
      to my house and beat me up.” I said, “Well, at this point it’s your
      turn to do what you have to do. When you see him in the
      courtroom and tell your story, point to him and say this is the
      person that did it.”

Id. at 242.

      Long testified that Detective McGee had not influenced her testimony in

any way. She also corroborated Detective McGee’s account about what he

had told her. Id. at 246-47. On cross-examination before the jury, Long

testified that she had falsely told police she had given a ride to Emmett Reese,

but that she was sure it was Boozer who she drove away from the crime scene.

Defense counsel also had ample opportunity to impeach Long’s testimony

based on her earlier representations and the improper exchange with

Detective McGee. Thus, under the circumstances, the testimony was not the




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product of unduly suggestive procedures, and the trial court did not abuse its

discretion in permitting Long to identify Boozer.

                                      D.

      Finally, the trial court did not err in admitting into evidence prior

recorded statements that Matthew Sherrell had made to police regarding

Boozer’s activities on the day that Terrell and Wagner were shot.      Boozer

objected to those recorded statements on hearsay grounds, and the trial court

overruled the objection, finding that the witness claimed to have no

recollection of what he had said, satisfying an exception to the hearsay rule.

See Trial Transcript, at 883-84.

      The statements were admissible under Pa.R.E. 803.1(4)(C), which

permitted the Commonwealth to introduce prior statements “by a declarant-

witness who testifies to an inability to remember the subject matter of the

statement,” as long as the statement “is a verbatim contemporaneous electric

recording of an oral statement.”

      Sherrell was called to testify at Boozer’s trial involuntarily, and he

repeatedly invoked the right to remain silent, saying he did not want to be

involved in the case. When the trial court attempted to compel him to testify

about what he told police in a recorded interview, Sherrell claimed that he

could not answer any such questions because he could not remember the

conversation. See Trial Transcript, at 871-75, 881.




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     These circumstances satisfy the requirements for admission outlined in

Pa.R.E. 803.1(4)(C) because Sherrell adamantly denied having the ability to

remember the subject matter of a statement which was electronically recorded

contemporaneously with its utterance.       Thus, none of Boozer’s appellate

claims has merit, and the subject order on review must stand.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2020




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