J.S52003/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
KYLE REED,                                  :
                                            :
                            Appellant       :     No. 1269 EDA 2013


            Appeal from the Judgment of Sentence December 3, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0015615-2010

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED JUNE 8, 2015

        Appellant, Kyle Reed,1 appeals from the judgment of sentence of life

imprisonment entered in the Philadelphia County Court of Common Pleas

after a jury found him guilty of murder of the second degree,2 robbery,3 and

conspiracy.4 He challenges the sufficiency and weight of the evidence.5 He



*
    Former Justice specially assigned to the Superior Court.
1
  An appeal by Appellant’s codefendant, Vincent Wallace, is pending at
Commonwealth v. Wallace, 3489 EDA 2012.
2
    18 Pa.C.S. § 2502(b).
3
    18 Pa.C.S. § 3701(a)(1).
4
    18 Pa.C.S. § 903.
J. S52003/14


also filed a petition for post-submission communication6 in this Court

requesting a remand to consider his claims of newly discovered evidence.

We     affirm   the   convictions,   grant   the   petition   for    post-submission

communication, deny the petition for remand, but vacate an illegal sentence

imposed for robbery in light of the sentence for second-degree murder.

        The parties are well versed in the evidence presented against

Appellant and his codefendant, Vincent Wallace (“Codefendant”), at their

joint jury trial for the killing of Ernest Miller (“Decedent”).           By way of

background, Decedent was a retired police officer and maintained a

photography studio on the first floor of his residence on the 2600 block of

West Oakdale Avenue in the City of Philadelphia.                    According to the

Commonwealth, Appellant paid Decedent three or four years earlier to find

modelling jobs for his then girlfriend, Raffinnee Taylor, but she received no

offers.    The Commonwealth alleged Appellant, a few weeks before the

killing, learned Decedent was still in business at his home on West Oakdale

Avenue. Appellant, along with Codefendant and Michael Grant, planned to

go to Decedent’s residence recover his money from Decedent.

        On the afternoon of December 28, 2008, Appellant, Codefendant, and

Grant allegedly went to Decedent’s residence.            Although there was no


5
    We have reordered Appellant’s arguments.
6
    See Pa.R.A.P. 2501.




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indication of forced entry, a gunfight occurred on the first floor inside the

home that involved at least two firearms. Decedent and Grant suffered fatal

gunshot wounds. Codefendant suffered a gunshot wound to his pelvis.

Appellant allegedly dragged Grant from the residence, but left him outside

by the front door, and drove Codefendant to Einstein Hospital.

     Duane Tate was driving near the scene of the shooting, saw

Codefendant limping to the passenger side of a dark sedan with front-end

damage near the 2500 block of West Oakdale Avenue. N.T., 11/28/12, 178-

79. Three days after the shooting, on December 31, 2008, detectives asked

Tate to identify the driver of that vehicle from a photographic array. Id. at

187. Tate selected two pictures, one of which was Appellant.7 Id.

     None of the firearms involved in the shooting were found. No physical

evidence linked Appellant or Codefendant to the shooting.           However,

investigators obtained statements from Grant’s wife and Taylor implicating

Appellant and Codefendant.

     Appellant was charged on January 6, 2009, with homicide, robbery,

criminal conspiracy, and related offenses.     He was not located at his

residence, and the matter was referred to the fugitive squad. Appellant was


7
  Tate subsequently identified Appellant at a preliminary hearing on February
3, 2010. N.T., 11/28/12, at 182. At the time of trial, Tate was declared
unavailable and his preliminary hearing testimony was read into the record.
Id. at 173.       The trial court instructed the jury to consider Tate’s
identifications of Appellant with caution. See Commonwealth v. Kloiber,
106 A.2d 820 (Pa. 1954).



                                    -3-
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taken into custody at a residence on the 8100 block of Algon Avenue on April

20, 2009.     At the time of his arrest, police searched a bedroom of the

residence and found his identification, a “master” key for handcuffs, and a

ballistics vest.

      Appellant proceeded with Codefendant to a joint jury trial beginning

November 26, 2012. Of relevance to this appeal, the Commonwealth called

Grant’s wife, who testified that on the afternoon of December 28, 2008,

Grant told her he was “making a run with [Appellant.]” N.T., 11/26/12, at

131. Later that evening, she met Appellant in the Germantown section of

Philadelphia, and he told her there was a shootout and Grant “didn’t make it

back from this one.”   Id. at 116, 120-21. He told her Grant and another

friend were shot, Grant was dead, and the person who shot Grant was dead.

Id. at 122-23.     He described dragging Grant down a set of stairs, but

leaving him to take the other friend to a hospital. Id. at 121-22.

      The Commonwealth also called Taylor, Appellant’s former girlfriend,

and introduced three prior statements she gave to police, two on December

30, 2008, and one on January 2, 2009.       Id. at 169-70, 188-89, 207-08;

N.T., 11/28/12, at 99-122.       As discussed in further detail below, the

Commonwealth presented Taylor’s third statement as substantive evidence

of motive—i.e., her enrollment in a modelling program run by Decedent, her

failure to obtain a modelling job, and Appellant’s statement that he intend to




                                    -4-
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see Decedent about the money he previously paid to Decedent. See N.T.,

11/28/12, at 120-21.

     On December 3, 2012, the jury found Appellant and Codefendant

guilty of second-degree murder, robbery, and conspiracy to commit robbery,

and not guilty of possessing an instrument of crime.    That same day, the

trial court imposed a sentence of life imprisonment for second-degree

murder and concurrent sentences of five to ten years’ imprisonment each for

conspiracy and robbery.

     Appellant timely filed post-sentence motions, which were denied by

operation of law on April 12, 2013, after the presiding judge retired.

Appellant filed a timely notice of appeal. An order requiring the filing of a

Pa.R.A.P. 1925(b) statement was not entered, nor was a Pa.R.A.P. 1925(a)

opinion authored. This appeal followed.

     Appellant presents two questions, which we have reordered as follows:

           Whether there was insufficient evidence to convict . . .
        Appellant of Murder in the Second Degree, Robbery and
        Conspiracy where there was an absence of evidence that .
        . . Appellant conspired, aided or encouraged the
        commission of a robbery or that a robbery was even taking
        place[?]

           Whether the adjudication of guilt is against the weight
        of the evidence and shocking to one’s sense of justice . . .
        ?

Appellant’s Brief at 6. As noted above, Appellant also raises in this Court a

claim of newly discovered evidence in a petition for remand for an

evidentiary hearing.


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      Appellant first challenges the sufficiency of the evidence.   He    asserts

the Commonwealth’s evidence failed to establish reasonable inferences he

drove Codefendant and Grant to Decedent’s residence, was armed, or was

aware Codefendant or Grant was armed. Id. at 18.          He continues, “There

[was] no evidence [he] was ever inside [Decedent’s] home,” and “the whole

theory of a robbery for $400 motive which comes from Raffinnee Taylor is

incredible.”   Id. at 18-19.   He concludes, “[T]he inferences drawn by this

jury that [he] conspired with Grant and [Codefendant] to rob [Decedent

were] unreasonable[.]” Id. at 19.    We disagree.

      Our standards of review are well settled.

         The standard we apply in reviewing the sufficiency of
         evidence is whether, viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the factfinder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for that of the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the trier of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.




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Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)

(citations and some punctuation omitted).

      However,

         [w]hile reasonable inferences must be drawn in the
         Commonwealth’s favor, the inferences must flow from
         facts and circumstances proven in the record, and must be
         of such volume and quality as to overcome the
         presumption of innocence and satisfy the jury of the
         accused's guilt beyond a reasonable doubt. The trier of
         fact cannot base a conviction on conjecture and
         speculation and a verdict which is premised on suspicion
         will fall even under the limited scrutiny of appellate review.

Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003)

(citation and some punctuation omitted).

      The elements of the relevant crimes are as follows. “Murder of the

second degree is a criminal homicide committed while a defendant was

engaged as a principal or an accomplice in the perpetration of a felony.”

Lambert, 795 A.2d at 1015 (citing 18 Pa.C.S. § 2502(b)).            The phrase

“perpetration of a felony,” in relevant part, means the act of “being an

accomplice in the commission of, or an attempt to commit, or flight after

committing or attempting to commit robbery[.]”        Id. (citing 18 Pa.C.S. §

2502(d)). “[A]n accomplice is someone who, ‘with the intent of promoting

or facilitating the commission of the offense aids or agrees or attempts to

aid [another person] in planning or committing’ the crime.”        Id. at 1024

(citing 18 Pa.C.S. § 306(c)(1)(ii)).




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      Conspiracy   requires   the   Commonwealth      to   establish   “that   the

defendant entered an agreement to commit or aid in an unlawful act with

another person or persons with a shared criminal intent and an overt act

was done in furtherance of the conspiracy.”        Id. at 1016 (discussing 18

Pa.C.S. § 903).

             A conspiracy is almost always proved through
         circumstantial evidence. The conduct of the parties and
         the circumstances surrounding their conduct may create a
         web of evidence linking the accused to the alleged
         conspiracy beyond a reasonable doubt. . . .

                                    *    *    *

            Among the circumstances which are relevant, but not
            sufficient by themselves, to prove a corrupt
            confederation are: (1) an association between
            alleged conspirators; (2) knowledge of the
            commission of the crime; (3) presence at the scene
            of the crime; and (4) in some situations,
            participation in the object of the conspiracy. The
            presence of such circumstances may furnish a web of
            evidence linking an accused to an alleged conspiracy
            beyond a reasonable doubt when viewed in
            conjunction with each other and in the context in
            which they occurred.

Id. (citations and some punctuation omitted).

      Under 18 Pa.C.S. § 3701, “[a] person is guilty of robbery if, in the

course of committing a theft, he . . . inflicts serious bodily injury.”        18

Pa.C.S. § 3701(a)(1)(i).      “An act shall be deemed ‘in the course of

committing a theft’ if it occurs in an attempt to commit theft or in flight after

the attempt or commission.” 18 Pa.C.S. § 3701(a)(2).




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      It is well settled that a defendant may be held criminally liable for the

conduct of others. “An accomplice is also legally accountable for the conduct

of the other person involved in committing the crimes.” Commonwealth v.

Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citing 18 Pa.C.S. § 306(b)(3)).

Furthermore, the overt act in a conspiracy need not be committed by the

defendant. Id. Rather, liability for the conspiracy extends to all actions of a

coconspirator in furtherance of the conspiracy. Id.

      As to Appellant’s claim that the jury was not entitled to credit Taylor’s

prior statements, it was within the province of the jury to believe all, part, or

none of the evidence presented, and we must draw all reasonable inferences

in favor of the Commonwealth. See Lambert, 795 A.2d at 1014. Given our

standards   of   review,   Appellant’s    arguments       regarding   Taylor’s    prior

statements go to the weight of the evidence, which we discuss below, and

do not warrant relief in the form of discharge. See id.

      As to Appellant’s contentions that the jury lacked a reasoned basis to

find he intended to rob Decedent and was merely present outside Decedent’s

residence, our review reveals the following.        Taylor testified at trial that

Appellant, Codefendant, and Grant were friends.            N.T., 11/26/12, at 154,

163-64.     The Commonwealth subsequently impeached, for substantive

purposes,   Taylor’s   testimony   with     her   prior    statements    to      police.

Specifically, in her third statement to police, she indicated that several

weeks before the shooting, Appellant learned Decedent was still in the



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photography business, became angry, and stated Decedent owed him

money.    N.T., 11/28/12, at 120.         He told Taylor he intended to “see”

Decedent. Id.     After the shooting, Appellant told her Grant, Codefendant,

and Decedent were shot. Id. at 121.

     On the afternoon before the shooting, Grant told his wife he was

“making a run” with Appellant.       N.T., 11/26/12, at 131.    The evidence

indicated that Appellant, Codefendant, and Grant thereafter approached

Decedent’s     residence   dressed   in    dark   clothes.8    Moreover,    the

Commonwealth introduced evidence suggesting that after the shooting,

Appellant drove Codefendant to a hospital parking lot, but did not

accompany him to the emergency room. Although Appellant was charged on

January 6, 2009, he was not located and arrested until April 20, 2009.

     Additionally, police also found a pair of handcuffs and a walkie-talkie at

the scene of the shooting, near where Grant was discovered.                N.T.,

11/27/12, at 9, 33. Expert testimony established at least one firearm, likely

a revolver, was used to shoot at Decedent, while Decedent fired toward the


8
  The jury was able to view Grant’s and Codefendant’s clothing from the
shooting. N.T., 11/27/12, at 36 (discussing hoody sweatshirt at scene with
bullet hole and blood matched by DNA to Grant), 152 (describing
Codefendant’s clothes as “black track suit, jacket, . . . matching pants,
black boot, [and] black hat with a ‘G’ on it”). Moreover, Taylor’s first
statement to police indicated Appellant was wearing dark jeans and a dark
shirt. N.T., 11/28/12 at 104. The Commonwealth, in closing argument,
argued the dark clothes supported its theory that Appellant “went down
there on a mission to take care of business.” N.T., 11/29/12, at 78.




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front doorway of his home with a Glock-type semiautomatic pistol.       Id. at

47, N.T., 11/28/12, at 56-58.

        This circumstantial evidence, when read in a light most favorable to

the Commonwealth, sustained the following inferences.       Appellant went to

Decedent’s resident to      resolve   a perceived debt, and arranged for

Codefendant and Grant to accompany him.          Appellant, Codefendant and

Grant went to Decedent’s residence dressed in dark clothing and with at

least one firearm, a pair of handcuffs, and at least one walkie-talkie among

them. Grant entered Decedent’s residence and was mortally wounded inside

the home. Codefendant was within sufficient distance to be shot. Appellant

was aware both Grant and Codefendant were shot, dragged Grant from the

home, but left him outside the residence to assist Codefendant and flee the

scene.    Significantly, the only connection among Appellant, Codefendant,

Grant, and Decedent was Appellant’s statement to Taylor that he intended to

meet Decedent about the debt.

        Given these inferences, which were reasonable based on the totality of

the circumstances, we conclude that the jury was entitled to find (1)

Appellant promoted an attempted robbery and used Codefendant and Grant

to assist the satisfaction of the perceived debt by a show or use of force and

(2) Decedent was killed during the perpetration of the attempted robbery

Appellant promoted.     See Knox, 50 A.3d at 757; Lambert, 795 A.2d at

1016.    Thus, Appellant’s contention that the evidence only established his



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“mere presence” at the scene warrants no relief from his convictions for

conspiracy, robbery, and second-degree murder.

     Second, Appellant challenges the weight of the evidence.       He again

argues the evidence did not provide a proper basis for the jury’s findings and

suggests the evidence established only his “mere presence” near Decedent’s

home. Appellant’s Brief at 16. He further asserts the credibility of Taylor’s

prior statements were “tarnished by manipulation and treatment she

received from” her interrogators. Id. at 16-17. In sum, Appellant asserts if

the jury properly weighed evidence that the detectives coerced Taylor, the

Commonwealth’s theory of a conspiracy would fail, “tipp[ing] the balance”

toward a defense verdict. Id. at 17. We disagree.

     It is well settled that a defendant must present his challenge to the

weight of the evidence to the trial court for a review in the first instance.

See Pa.R.Crim.P. 607(A); Commonwealth v. Griffin, 65 A.3d 932, 939

(Pa. Super. 2013). Thereafter,

        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.



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Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations

omitted).

      Instantly, Appellant preserved his weight of the evidence challenge in

a timely post sentence motion. However, the trial court did not rule on the

motion before retiring.     The post-sentence motion was then denied by

operation of law, and no order for a Pa.R.A.P. 1925(b) statement was

issued.     Under these exceptional circumstances, we are constrained to

review this claim in the first instance. See Armbruster v. Horowitz, 813

A.2d 698, 705 (Pa. 2002) (holding “where a properly preserved weight of

the evidence claim is raised on appeal and the judge who presided at trial

failed to rule on the claim and is now permanently unavailable to do so, the

claim must be reviewed by the appellate tribunal in the first instance”).

      The following principles govern our review under these peculiar

circumstances.

              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


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         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.

Widmer, 744 A.2d at 751-52 (citations, some punctuation, and footnote

omitted).

      As to Appellant’s contention the jury should have disregarded Taylor’s

statements to police due to undue coercion, our review reveals the following.

One day after the shooting, on December 29, 2008, detectives obtained a

warrant to search for Decedent’s firearm at Taylor’s home.            Detective

Ohmarr Jenkins testified he served the warrant in the early morning hours of

December 30th, but did not find the firearm.      He brought Taylor to police

headquarters at approximately 7:00 or 8:00 a.m. that morning.         Although

different pairs of detectives formally interviewed Taylor on different

occasions, Detective Jenkins testified he observed or participated in all of the

interviews.

      In Taylor’s first formal statement, which was taken by Detectives

Gaines and Glenn9 at 11:55 a.m., she identified photographs of Appellant,

Codefendant and Michael Grant and noted they were all friends.            N.T.,

11/28/12, at 101, 104-05. She indicated Appellant stopped at her home in

the afternoon of December 28th and left. Id. at 103-04. He was wearing

dark jeans and a dark shirt. Id. at 104. Later that day, at 9:00 p.m., she

9
  The first names of Detectives Gaines and Glenn were not contained in the
record.




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saw Appellant in the Germantown section of Philadelphia.          Id. at 103.

Taylor adopted this first statement at trial. N.T., 11/26/12, at 167.

      At 4:30 p.m. that same day, Taylor gave a second statement to

Detectives Pitts10 and Jenkins. Detective Jenkins stated she was in the lobby

area on a bench and he took her to a cubicle at the “outer-part of our

office.” N.T., 11/28/12, at 109, 139-40. Taylor stated she met Appellant in

the Germantown section of Philadelphia on the evening of December 28,

2008, and drove him “around the corner.” Id. at 111.        He exited her car

and went to another car. Id. She then drove around the block and later

met Appellant where he exited her car. Id. He got back in her car and told

her Grant “got shot.”     Id.   She then drove him to another neighborhood.

Id. Taylor signed her second statement.

      On January 2, 2009, Taylor gave a third statement to Detectives Pitts

and Glenn at 8:45 p.m. N.T., 11/26/12, at 188-89, 11/28/12, at 118-19.

She indicated Decedent took pictures of her four years earlier, when she was

eighteen.   Id. at 119.   According to this statement, a “few weeks” before

Decedent’s death, she went to an audition at Decedent’s residence. Id. at

119-20.     Id. at 119-20. She recognized him and gave him a hug. Id. at

120. However, she left the audition due to the crowd and returned to her

home.     Id.   Later that day, she told Appellant she met Decedent.         Id.


10
  Detective Pitts’ first name was not contained in the record.          However,
Appellant alleges Detective James Pitts interrogated Taylor.



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Although Taylor initially denied giving these statements, she conceded their

veracity upon further confrontation by the Commonwealth.

      Furthermore, Taylor’s third statement indicated that after she told

Appellant she met Decedent, Appellant became angry, stated Decedent

owed him money, and told her he was “going to go down there to see him.”

Id.   When the detectives asked her about the meaning of Appellant’s

statements, she stated, “I think he was going to ask him for the money.

And if [Decedent] said no, [Decedent] was going to have a problem. . . .

That [Appellant] would just rob him.” Id. at 121.    She stated she believed

Appellant paid Decedent $400 or $500 to find her modeling jobs several

years earlier.   Id.   She stated that after the shooting, Appellant told her

Codefendant, Grant, and Decedent were shot. Id. Taylor signed her third

statement.

      At trial, Taylor recanted portions of her second and third statements

and stated the detectives told her what to say or typed their own words into

the statements. N.T., 11/26/12, at 168, 187, 197. On cross-examination,

she testified she was taken to the Homicide Unit on December 29, 2008, and

placed in an interview room in handcuffs. Id. at 248-49. She gave her first

statement, but was left in the room.     Id. at 252-253.   Detectives Jenkins

and Pitts, who conducted the second interview, threatened to charge her

with crimes and told her she would never see her children again. Id. at 188,

253-56. They did not offer her food, drink, water, or bathroom breaks. Id.



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at 255.    Detectives took her phone and did not let her make phone calls.

Id. at 257.    She was then detained incommunicado in the interview room

from December 29th to January 2nd. Id. at 256-57. She was only released

when her family obtained a lawyer and the lawyer arrived at the Homicide

Unit. Id. at 257. She was forced to sign her statements. Id. at 178, 257.

     Detective Jenkins testified at trial and denied Taylor was detained from

December 29th to January 2nd. N.T., 11/28/12, at 118. He explained that

although Taylor’s first written statement was dated December 29th, he

brought Taylor to the Homicide Unit at 7:00 or 8:00 a.m. on December 30th.

Id. at 100, 118.      As noted above, he testified Taylor was formally

interviewed that day at 11:55 a.m. and 4:30 p.m., and those interviews

occurred at a cubicle in the office. Detective Jenkins maintained no threats,

force, or coercion were used during any of the interviews. Id. at 114, 123.

He testified Taylor “was never handcuffed while inside the Homicide Unit at

all or being transported to Homicide.” Id. at 109.

     However, the detective conceded before the second interview, he

conducted informal verbal interactions that “went on for a couple of hours,”

but did not take written notes. Id. at 140. Additionally, he did not recall

whether Taylor asked for food, water, or a bathroom break. Id. at 110. He

did not testify he offered such comforts, but rather stated, “They just have

to ask.”    Id.   The detective testified that after taking Taylor’s second

statement on December 30th, he took her home “later that evening.” Id. at



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115.    Although Taylor’s third statement on January 2nd was transcribed at

8:45 p.m., and indicated detectives spoke to her at her home that day, the

Commonwealth adduced no evidence establishing when the detectives

arrived at her home or when she arrived at the Homicide Unit.11 Id. at 119.

       Our review reveals some incongruities and gaps in Detective Jenkins’

testimony that could raise an inference of undue coercion during the

interviews of Taylor.    Nevertheless, our responsibility is not to sit as a

thirteenth juror, but to determine whether certain facts are so clearly of

greater weight that to ignore them is to deny justice.     See Widmer, 744

A.2d at 752.     In so doing, we note Taylor essentially adopted her first

statement.    The principal allegations of Taylor’s second statement, which

discussed Appellant statements after the shooting, were corroborated by

Grant’s wife’s testimony. See N.T., 11/26/12, at 132-33; N.T., 11/28/12, at

111.     With regard to Taylor’s third statement, which provided evidence of

Appellant’s motive, the jury heard Taylor’s explanation that detectives held

her in custody for four days, threatened her, typed their own words into the

transcription of the interview, and coerced her to sign the statement. The

jury also heard Detective Jenkins’ testimony denying such conduct.

       Following our review of the record, we conclude that the reliability and

veracity of Taylor’s statement to police was an issue for the jury to resolve.


11
  As noted above, Taylor testified she was detained from December 29,
2008, to January 2, 2009.



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The questions of reliability and credibility were thoroughly presented to jury

and argued by the parties.       That the jury rejected Taylor’s allegations of

coercion was not contrary to the weight of the evidence. See Widmer, 744

A.2d at 751-52.      Furthermore, the jury’s decision to credit Taylor’s third

statement as substantive evidence of motive does not shock the conscience.

See id. Therefore, we decline to disturb the province of the jury to resolve

the issues of fact and credibility before it.

       As to Appellant’s remaining contention that the trial evidence failed to

establish more than his mere presence at the scene, our review again

reveals no basis to disturb the jury’s resolution of credibility and its findings

of fact that Appellant promoted the robbery during which Decedent was

killed. See id. Therefore, no relief is due.

       Appellant, in his petition for post-submission communication, attached

a petition for remand requesting that the trial court conduct an evidentiary

hearing to consider newly discovered evidence. In support, he alleges that

in    three   separate    cases—Commonwealth           v.   Pinkney,     51-CR-

001445602998-2009, Commonwealth v. Drayton, 51-CR-0013794-2009,

and   Commonwealth         v.   Speaks,    MC-51-CR-0046522-2009—Detective

Jenkins and Detective Pitts used improper interrogation techniques to obtain

inculpatory statements.         Appellant avers juries acquitted Pinkney and

Speaks, and the trial court suppressed Drayton’s confession based on the

use of coercive tactics. Appellant’s Pet. to Stay Proceedings & Remand to



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Trial Court for Hearing on After Discovered Evidence (“Appellant’s Pet. for

Remand”), 10/21/14, at ¶¶ 13-17.          He asserts he did not discover this

potential new evidence until the November 6, 2013 publication of a news

article during the pendency of this appeal. Id. at ¶¶ 10-18 & Ex. A (Mensah

Dean, “Same 2 cops built 3 murder cases that fell apart,” Phila. Daily News,

11/6/13         (available        at            http://articles.philly.com/2013-11-

06/news/43696858_1_nafis-pinkney-nakeisha-finks-bad-cop) (“Daily News

Article”)).   Appellant further asserts he intends to call the individuals

discussed in the article, former defendants, Nefis Pinkney and Unique

Drayton, as well as Shaquille Rainey, a relative of former defendant Speaks,

who was interrogated by the detectives. He submits Pinkney, Drayton, and

Rainey’s testimony could establish Detectives Jenkins and Pitts’ “habit” of

using coercive interrogation techniques. Id. at ¶ 22 (citing Pa.R.E. 406).

      Preliminarily, we observe Appellant’s petition for remand, presented

for the first time on appeal, is properly before this Court, since it alleges the

discovery of facts during the pendency of this appeal. See Commonwealth

v. Castro, 93 A.3d 818, 826 n.10 (Pa. 2014).               Accordingly, we grant

Appellant’s petition for post-submission communication and review the

attached petition for remand.

      Given the procedural posture of this case, we follow the guidance, set

forth in Castro, that Appellant “must at the very least, describe the

evidence that will be presented at the hearing.”         See Castro, 93 A.3d at



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827; Commonwealth v. Perrin, 108 A.3d 50, 53 (Pa. Super. 2015).

“[T]he proposed new evidence must be producible and admissible.” Castro,

93 A.3d at 825 (citation and some punctuation omitted).                    However,

“newspaper articles generally do not constitute evidence, as they contain

inadmissible hearsay.”    Castro, 93 A.3d at 825 n.11 (citations omitted).

“[A]llegations in the media, whether true or false, are no more evidence

than allegations in any other out-of-court situation.” Id. at 825.

      Instantly, Appellant attached a newspaper article and set forth a

description of the evidence he intends to present at the requested

evidentiary hearing, i.e., testimony from Pinkney, Drayton, and Rainey

regarding their interrogations by Detective Jenkins and Pitts. Appellant also

attached transcripts in which Pinkney, Rainey, and Drayton testified to

coercive   conditions   attendant   to   their   interrogations,   which   included

extended detentions, the lack of food and water, shackling, and physical

attack.    We conclude this meets the minimal requirement that a petition

describe the alleged evidence he intends to present at the requested

hearing.12 See Castro, 93 A.3d at 827.


12
   We question whether, as Appellant suggests, testimony from Pickney,
Rainey, and Drayton would be admissible at trial as “habit” under Pa.R.E.
406. See Commonwealth v. Sanchez, 848 A.2d 977 (Pa. Super. 2004)
(noting two instances of forgery did not establish continuous and systematic
conduct or establish frequent conduct involving a mundane matter). At this
preliminary review of Appellant’s petition for remand, however, we decline to
deny relief based upon a rigorous analysis of the admissibility of his proffer.
See Castro, 93 A.3d at 827.



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     The following principles govern our review of the merits of Appellant’s

request for an evidentiary hearing.

            To warrant relief, after-discovered evidence must meet
        a four-prong test: (1) the evidence could not have been
        obtained before the conclusion of the trial by reasonable
        diligence; (2) the evidence is not merely corroborative or
        cumulative; (3) the evidence will not be used solely for
        purposes of impeachment; and (4) the evidence is of such
        a nature and character that a different outcome is likely.
        At an evidentiary hearing, an appellant must show by a
        preponderance of the evidence that each of these factors
        has been met in order for a new trial to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citations

omitted).

     In Rivera, this Court determined that a newspaper article—which was

published during the pendency of the defendant’s appeal—disclosing the

arrest of a Commonwealth’s laboratory technician for stealing evidence,

constituted a claim of newly discovered evidence warranting an evidentiary

hearing. Id. at 357. The Rivera Court reasoned:

        [W]e find it unlikely that [the defendant] could have
        discovered [the technician’s] alleged criminal activities
        before his trial ended in October of 2005. Consequently,
        this after-discovered evidence is neither corroborative
        nor cumulative since at no time was the veracity of
        [the technician’s] testimony questioned at trial; to
        the contrary, both the [defendant] and the prosecution
        stipulated that [the technician] would state at court that
        the bag recovered in relation to this particular crime
        contained 137.5 grams of cocaine. Who knows whether
        this was or was not a truthful rendition of her “so-called”
        expert opinion. Moreover, the after-discovered evidence
        does much more than simply impeach the testimony of
        [technician], it calls into serious question the type and



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         amount of drug upon which [the defendant’s] conviction
         and sentence is based.

Id. at 359 (citation omitted) (emphasis added).

      Instantly, Appellant’s proffer is, in many respects, similar to Rivera.

Appellant raises an inference of repeated official misconduct implicating

fundamental fairness.      Moreover, the nature of Appellant’s allegations

regarding the treatment of Taylor, as well as the attendant lack of policies

addressing the possibility of abuse during interrogations and interviews is

troubling.13   Nevertheless, our review reveals significant legal distinctions

between the instant case and Rivera.

      As discussed above, the reliability and accuracy of Taylor’s statements

were presented to the jury, with Taylor alleging the use of coercive tactics

by Detectives Jenkins and Pitts, and Detective Jenkins denying Taylor’s

allegations. Appellant had ample opportunity to develop the allegations of

abuse through cross-examination of Taylor and Detective Jenkins. Thus, we

are constrained to conclude that Appellant’s proffer of evidence that Pinkney,

Speaks, Drayton alleged or suffered similar abuse as Taylor would be

cumulative of the evidence presented at trial.    See id. at 359 (noting, in

Rivera, that technician’s opinion was not challenged at time of trial).


13
   We note the Philadelphia Police Department has sought to change its
policies regarding interview/interrogation techniques. David Gambacorta,
“Philly police to adopt sweeping interrogation reforms come Jan. 1,” Phila.
Daily News, 12/20/13 (available at http://articles.philly.com/2013-12-
20/news/45381242_1_detectives-new-policy-aclu).



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Moreover, under the circumstances of this case, the proffer would be offered

to     bolster   Taylor’s   testimony    while        impeaching    Jenkins’   testimony.

Furthermore, to the extent Appellant seeks discovery of Internal Affairs

reports, such a request for additional information does not establish his right

to an evidentiary hearing.       Thus, we are compelled to conclude Appellant’s

proffers do not merit a further evidentiary hearing.               Accordingly, we deny

Appellant’s petition for remand.

        Lastly, although not raised by the parties, we observe the trial court

sentenced Appellant to a term of life imprisonment for second-degree

murder and five to ten years’ imprisonment for robbery. It is well settled

that we may raise legality of sentence issues sua sponte. Commonwealth

v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

        We note there is a common law history requiring robbery be merged

with     second-degree      murder      at     sentencing.         See   id.   (overruling

Commonwealth v. Sparrow, 370 A.2d 712 (Pa. 1977), and holding

robbery is “constituent offense” of second-degree murder and thus “same

offense” under double jeopardy test in Blockburger v. United States, 284

U.S. 299 (1932)). However, the General Assembly, effective February 2003,

created a statutory merger provision, which states, “No crimes shall merge

for sentencing purposes unless the crimes arise from a single criminal act

and all of the statutory elements of one offense are included in the statutory

elements of the other offense.” 42 Pa.C.S. § 9765. Section 9765 reflects a



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“strict     elements   approach,”    which     “preclude[s]   the   courts     of   this

Commonwealth from merging sentences for two offenses that are based on

a single criminal act unless all of the statutory elements of one of the

offenses      are   included   in   the    statutory   elements     of   the   other.”

Commonwealth v. Baldwin, 985 A.2d 830, (Pa. 2009); Commonwealth

v. Quintua, 56 A.3d 399, 402 (Pa. Super. 2012).

          In Baldwin, the Pennsylvania Supreme Court observed:

            Labels, such as “pure elements test” and “strict elements
            approach,” have often led to greater mischief.          For
            example, in Whalen [v. United States, 445 U.S. 684,
            (1980)], the United States Supreme Court struggled to
            determine whether a felony murder conviction merged
            with a conviction for the underlying felony where a felony
            murder conviction could hinge on any one of six
            enumerated offenses. A “strict elements approach,”
            which does not consider the offenses as charged and
            proven in each particular case, invariably leads to
            the conclusion that the crimes do not merge.
            Nevertheless, a majority of the Court, relying on
            Blockburger (often used synonymously with “strict
            elements approach”) held that the two convictions merged
            for sentencing. In this regard, the Court demonstrated a
            recognition that examination of the elements of the crimes
            as charged is sometimes necessary, especially when
            dealing with an offense that can be proven in alternate
            ways.

Baldwin, 985 A.2d at 837 n.6 (emphasis added).

          It is clear Section 9765 has disrupted at least some of the prior

decisional law regarding merger. See Commonwealth v. Quintua, 56 A.3d

at 402 (holding burglary and criminal trespass do not merge).                However,

Tarver’s analysis was based on a strict elements approach rooted in



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Blockburger, which, in turn, reflects principles similar to those adopted by

the General Assembly when enacting Section 9765. See Baldwin, 985 A.2d

at 837 n.6.       Thus, Tarver remains binding authority on this Court.

Accordingly, we agree with the parties that Appellant’s conviction for murder

of the second degree and robbery merge, and vacate the sentence for

robbery.    Because our decision does not affect the aggregate sentence, a

remand     for   resentencing   is   unnecessary.   See   Commonwealth v.

Henderson, 938 A.2d 1063, 1067-68 (Pa. Super. 2007).

     Judgment of sentence affirmed in part. Sentence for robbery vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015




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