J-S67039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE ANTHONY TORRES                         :
                                               :
                       Appellant               :   No. 728 MDA 2019

          Appeal from the Judgment of Sentence Entered April 9, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003002-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 27, 2020

        Appellant, Lee Anthony Torres, appeals from the judgment of sentence

entered in the Court of Common Pleas of Berks County following his conviction

by a jury on two counts of possession of a firearm prohibited, 18 Pa.C.S.A. §

6105(a)(1). After a careful review, we affirm.

        The relevant facts and procedural history have been set forth by the trial

court, in part, as follows:

              On April 26, 2017, Criminal Investigator [Matthew] Niebel
        (“C.I. Niebel”) of the Reading Police Department applied for a
        search warrant and received authorization to search the residence
        located at 1140 Green Street, Reading, Berks County,
        Pennsylvania (“Residence”). On May 2, 2017, C.I. Niebel obtained
        a second search warrant for the Residence.
              As part of his investigation into the Residence, C.I. Niebel
        interacted with a confidential source (“C.S.”) who was familiar

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S67039-19


     with the Residence. C.I. Niebel testified that he had known C.S.
     since October of 2016. C.S. had been used by the Reading Police
     Department for four years as of the search warrant application
     date. C.S. had provided information to law enforcement that had
     led to an arrest, conviction and incarceration of an individual for
     possession with intent to deliver a controlled substance.
            C.S. began providing C.I. Niebel with information about the
     Residence in March of 2017. C.S. was able to identify [Appellant]
     through a JNET photograph printed out by C.I. Niebel. C.S.
     provided C.I. Niebel with the Residence’s address and knew
     [Appellant] was on state parole. C.I. Niebel independently verified
     [Appellant’s] address. C.I. Niebel learned through JNET that the
     Residence’s address was on [Appellant’s] Pennsylvania driver’s
     license. He also discovered that the Residence’s address was
     listed as [Appellant’s] address with state parole and there was an
     active warrant for a parole violation at that address. The Reading
     Police Department record system had contact with [Appellant] in
     July of 2016 where [Appellant] provided law enforcement with the
     Residence’s address as his address.
           In March of 2017, C.S. made a controlled purchase of heroin
     from the Residence. A second controlled purchase of heroin was
     made from the Residence between April 26, 2017, and April 28,
     2017. C.S. provided information to C.I. Niebel that [Appellant]
     was in possession of at least one firearm, but this was not included
     in the affidavit of probable cause.
            The first search warrant was executed on April 28, 2017.
     Upon entry, police officers encountered [Appellant’s] girlfriend,
     Mayra Torres (“Ms. Torres”). Ms. Torres was detained, and the
     officers searched the Residence. In the dining room, officers
     located a table containing multiple items of mail addressed to
     [Appellant] and male clothing. A loaded Smith & Wesson .44
     Magnum revolver and .44 Magnum ammunition were located
     inside of a second-floor bedroom. The ammunition was found
     inside of a nightstand along with [Appellant’s] social security card
     and his parole paperwork. The Smith & Wesson revolver was
     located inside of a blue plastic tub near the nightstand and
     contained men’s clothing. Ms. Torres stated that the firearm
     belonged to [Appellant]. Ms. Torres had previously seen the
     Smith & Wesson during a time when [Appellant] had friends over
     to the Residence. Ms. Torres contacted [Appellant] and informed
     him that the police officers located the Smith & Wesson revolver.
     Nothing was located in the Residence related to the selling or


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     distribution of narcotics. The Smith & Wesson revolver was
     previously reported as stolen.
           [Appellant] was not present at the Residence when the
     search warrant was executed but [he] was located at 845 Weiser
     Street. [Appellant] was taken into custody and was in possession
     of a black smartphone….C.I. Niebel looked at [Appellant’s]
     smartphone. C.I. Niebel discovered the following text
     conversation took place on [Appellant’s] smartphone:
                3/27/17: [Appellant] had a text conversation
          with an individual identified as “Stink” regarding the
          acquisition of a .22 caliber firearm and ammunition.
          [Appellant] arranged for the .22 caliber firearm to be
          dropped off at the Residence with Ms. Torres. “Stink”
          sent a text message at the end of the conversation
          stating that [Ms. Torres] received the .22 caliber
          firearm.
                4/15/17: [Appellant] sent a text message to Ms.
          Torres stating “There’s another bigger gun under the
          cushions.”
                4/28/17: [Appellant] received a text message
          from 484-721-**** stating “Mayra said they only got
          the big gun where is the 22.” [Appellant] responded
          with “don’t worry about the fu**ing gun.”
                5/1/17: [Ms. Torres] received a Facebook
          message from “Bussa Buss Down” asking “so what is
          he booked 4.” [Ms. Torres] responded with “I guess
          the drug sale.” [Appellant] then sent a message to
          “Bussa Buss Down” stating “they found a gun in my
          crib.” “Bussa Buss Down” responded with “Damn.
          Black oR [sic] Silver gun?” A response was sent
          stating “Silver old one.”
            The messages in [Appellant’s] smartphone indicated that
     there was a second firearm present at the Residence. However,
     [Appellant’s] smartphone was remotely locked from an outside
     location before any evidence was able to be extracted. On May 2,
     2017, C.I. Niebel obtained a second search warrant for the
     Residence and located ammunition for a .22 caliber firearm in the
     same nightstand as the .44 caliber ammunition. A partially loaded
     .22 caliber semiautomatic handgun was located in a box in the
     rear yard. Ms. Torres stated that the firearm belonged to
     [Appellant].


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J-S67039-19


Trial Court Opinion, filed 6/26/19, at 3-6 (footnotes and citations to record

omitted).

       Appellant was charged with various offenses, and the trial court

appointed counsel to represent Appellant. Appellant filed numerous pro se

motions, including a motion to suppress the evidence seized by the police from

the Residence.1 Further, on November 15, 2018, Appellant filed a motion to

proceed pro se, and following a colloquy, the trial court granted Appellant’s

request. However, the trial court appointed John A. Fielding, III, as standby

counsel.

       Following a hearing, by order and opinion entered on January 9, 2019,

the trial court denied Appellant’s suppression motion.2 Thereafter, Appellant

proceeded to a jury trial with standby counsel. At trial, the Commonwealth

offered the testimony of C.I. Niebel and Ms. Torres. Specifically, C.I. Niebel



____________________________________________


1 In his motion to suppress, Appellant presented the following claims: (1) the
police searched the Residence without a valid search warrant, probable cause,
or voluntary consent; and (2) the police violated the “knock and announce
rule” when they entered the premises. See Motion to Suppress, filed 8/21/17.
In his supplemental motion to suppress, Appellant presented three claims: (1)
the search warrants for the Residence were overly broad in that they merely
listed general items to be seized; (2) the first search warrant was not
supported by probable cause; and (3) the affiant made deliberate
misrepresentations in the affidavit of probable cause with regard to alleged
drug activities/investigations occurring at the Residence. See Supplemental
Motion to Suppress, filed 6/28/18.

2In the January 9, 2019, order, the trial court disposed of twenty-four pro se
motions/requests, which had been filed by Appellant.


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testified that, when he and his fellow officers executed the first search warrant

on April 28, 2017, Ms. Torres was the only person inside of the Residence.

N.T., 3/18/19, at 44. C.I. Niebel testified the police discovered multiple pieces

of mail addressed to Appellant, as well as men’s clothing, on the dining room

table. Id. at 46. One of the pieces of mail was from the state parole office.

Id. at 47.

      C.I. Niebel further testified the police found in the bedroom a .44

Magnum revolver and ammunition for the revolver, as well as Appellant’s

social security card and parole paperwork.       Id. at 48.    Specifically, the

ammunition, card, and paperwork were found in a nightstand drawer while

the revolver was found in a blue plastic tub that was on the ground near the

nightstand. Id. at 48-49. The blue plastic tub also contained men’s clothing.

Id. at 49.

      C.I. Niebel testified the initial search warrant included the search of

Appellant’s person, and when Appellant was arrested on Weiser Street after

the initial search warrant had been executed at the Residence, the police

searched him. Id. at 52. This search of Appellant’s person revealed a black

smartphone.    Id. at 53.    C.I. Niebel confirmed that, after reviewing the

smartphone’s text messages, which indicated a second firearm was in the

Residence, the police secured a second search warrant, which they executed

at the Residence on May 2, 2017. Id. The police discovered ammunition for

a .22 caliber handgun in the bedroom’s nightstand, as well as a partially


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loaded .22 caliber handgun in a box of Christmas lights, which was sitting on

top of a trashcan in the rear yard. Id. at 57-59. Ms. Torres stated that the

gun belonged to Appellant. Id.

      Ms. Torres testified she lived at the Residence for approximately four

years with Appellant, who was her paramour.              Id. at 136-38.   During the

month of April 2017, Appellant was staying at the Residence mostly on

weekends because he was in a halfway house. Id. at 139.

      Ms. Torres testified she and Appellant shared a bedroom; however,

Appellant slept on the side of the bed by the nightstand from which the police

seized the .44 Magnum revolver and ammunition for the revolver, as well as

Appellant’s   social   security   card,    Appellant’s     parole   paperwork,   and

ammunition for the .22 caliber handgun. Id. at 140-41. She also testified

Appellant used the nightstand. Id. Ms. Torres indicated some of the clothes

in the blue bin belonged to her while other pieces of clothes belonged to

Appellant. Id. at 141.

      Ms. Torres testified that in March of 2017 she was walking her dog when

one of Appellant’s friends called and said he was going to drop something off

for Appellant. Id. at 144. When Ms. Torres returned to the Residence, there

was a book bag on the porch, and she carried it into the Residence. Id. On

a subsequent day, Ms. Torres came home from work, and Appellant had a

group of friends at the Residence. Id. at 145. She observed a handgun sitting




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on the arm of the sofa. Id. Ms. Torres told Appellant she wanted him to “get

rid of” the gun because she is afraid of guns. Id.

      With regard to the police executing a search warrant at the Residence

on April 28, 2017, Ms. Torres testified she was sleeping when the police

entered the Residence. Id. at 148. She confirmed the police recovered a

handgun from the bedroom; however, she denied knowing that the handgun

was there prior to the police seizing it. Id. at 149.

      Ms. Torres testified that, after the police left the residence on April 28,

2017, she called Appellant and told him the police had found a handgun. Id.

at 150. She admitted she and Appellant argued, and she became “very angry”

when Appellant asked her to retrieve one of his telephones from another

woman’s house. Id. at 150-51. She refused to do so. Id. at 151.

      Ms. Torres testified that as she was cleaning the Residence after the

police left she found a box of Christmas lights in the closet. Id. at 152. The

box felt heavy, and when she looked inside she found another handgun. Id.

Ms. Torres testified she “panicked,” carried the box containing the handgun

out to the backyard, and left the box with the rest of the trash. Id. at 153.

She confirmed that approximately one week later the police returned and

seized the handgun from the box. Id. at 153-54.

      Ms. Torres testified she did not want her own gun because she was afraid

of them. Id. at 154. She admitted that prior to the instant incidents she

would have been able to legally buy a gun if she wanted one, but she had no


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J-S67039-19


desire to do so. Id. She noted Appellant once suggested she should buy a

gun to keep in the house for protection, but she told him she did not want

one. Id. at 155.

      Ms. Torres admitted that after the police executed the first search

warrant she told one of Appellant’s friends via Facebook Messenger that the

police had found a gun and arrested Appellant. Id. at 155-56. The friend

asked “if it was a silver or black one.” Id. at 156. She told him it was “a

silver one.”   Id.

      Ms. Torres testified that, after Appellant was arrested, he called her from

prison and asked her to say the firearms belonged to her.         Id.   She also

testified she pled guilty to tampering with physical evidence in connection with

the instant matter and, consequently, she lost her job. Id. at 138, 156. She

denied ever seeing Appellant manufacturing illegal drugs in the Residence.

Id.

      At the conclusion of all testimony, the jury convicted Appellant of the

offenses indicated supra. On April 9, 2019, Appellant was sentenced to an

aggregate of ten years to twenty years in prison. On April 15, 2019, Appellant

contemporaneously filed a timely, pro se post-sentence motion, and a notice

of appeal to this Court.




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J-S67039-19


       On April 18, 2019, the trial court denied Appellant’s post-sentence

motion, in part.3 Further, on April 18, 2019, the trial court directed Appellant

to file a statement pursuant to Pa.R.A.P. 1925(b), and on April 29, 2019,

Appellant filed a pro se forty-seven page statement pursuant to Pa.R.A.P.

1925(b).4     On May 2, 2019, Appellant filed a second notice of appeal.

Thereafter, the trial court filed an order disposing of the remaining portions of

Appellant’s post-sentence motion, and Appellant filed a third notice of appeal

on June 6, 2019. The trial court did not order Appellant to file an additional

Rule 1925(b) statement; however, on June 26, 2019, the trial court filed a

Pa.R.A.P. 1925(a) opinion.5

____________________________________________


3 The trial court noted in its opinion that “due to a typographical error” the
trial court inadvertently ruled on only one claim raised in the post-sentence
motion and failed to rule on the remaining issues.

4 We note that Appellant’s forty-seven page Rule 1925(b) statement is not
“concise.” This Court has found waiver of all issues on appeal where an
appellant filed a redundant, non-concise, and incoherent statement. See
Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa.Super. 2008). In any event,
due to the procedural irregularities in this case, we decline to find waiver on
this basis.

5  Appellant’s initial appeal was docketed in this Court at 609 MDA 2019, and
his second notice of appeal was docketed at 728 MDA 2019. Concluding the
appeals were duplicative, we dismissed the first appeal. Moreover, Appellant’s
third notice of appeal was docketed at 919 MDA 2019; however, we dismissed
the third appeal sua sponte due to an overdue docketing statement. The
instant appeal (728 MDA 2019) was filed at a time when a portion of
Appellant’s post-sentence motion had yet to be ruled on. Thus, the instant
appeal was prematurely filed. See Commonwealth v. Chamberlain, 658
A.2d 395 (Pa.Super. 1995) (holding where timely post-sentence motions are
filed the order denying the post-sentence motions acts to finalize the



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       On appeal, Appellant sets forth the following issues in his “Statement of

the Questions Involved”:

       1) Did the trial court err when it failed to determine that the
          Appellant made a preliminary showing of Affiant’s deliberate
          misstatements at the suppression hearing?
       2) Did the Commonwealth fail in satisfying it’s [sic] burden of
          proof, production and persuasion that evidence was not
          illegally obtained from the residence, at the suppression
          hearing?
       3) Did the trial court err in failing to suppress evidence illegally
          obtained as a result of a defective search warrant?
       4) Did the trial court err when it permitted the Commonwealth to
          introduce hearsay evidence as proof of the matters asserted?
       5) Did the Commonwealth misrepresent the facts of the case to
          prejudice the jury against the Appellant?
       6) Was the weight of the evidence in favor of the Appellant and
          against his guilt?
       7) Was Mayra Torres’ testimony biased in her own self-interest,
          contradictory and coerced, thus non-admissible?
       8) Was the verdict rendered on speculation, conjecture, and false
          evidence?

Appellant’s Brief at 7 (suggested answers omitted).

       Appellant’s first, second, and third issues are intertwined and challenge

the propriety of the search warrants.          Appellant avers the affiant, C.I. Niebel,

made numerous deliberate misstatements in the affidavit of probable cause


____________________________________________


judgment of sentence). However, since the trial court subsequently entered a
final order denying Appellant’s post-sentence motion in its entirety, we will
treat the premature notice of appeal “as having been filed after entry of [an]
order denying post-sentence motions.” See Commonwealth v. Ratushny,
17 A.3d 1269, 1271 n.4 (Pa.Super. 2011).


                                          - 10 -
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for the first search warrant. Specifically, he avers C.I. Niebel made

misstatements regarding “the occurance [sic] and existence of the drug

investigation.” Appellant’s Brief at 26. Appellant also contends the first search

warrant, which was executed by the police on April 28, 2017, was overly broad

and lacking in particularity since the warrant did not state what specific cell

phone the police were permitted to seize.       Finally, he asserts the police’s

reading of the text messages, as well as examining his Facebook account as

displayed on his phone, went beyond the scope of the first search warrant.

Id. at 24. Thus, Appellant contends the suppression court erred in denying his

motion to suppress.

      Our standard of review of the denial of a motion to suppress evidence

is as follows:

            [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct.       Because the Commonwealth
      prevailed before the suppression court, we may consider only the
      evidence of the Commonwealth and so much of the evidence for
      the defense as remains uncontradicted when read in the context
      of the record as a whole. Where the suppression court’s factual
      findings are supported by the record, [the appellate court is]
      bound by [those] findings and may reverse only if the court’s legal
      conclusions are erroneous. Where...the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on [the] appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the [trial court are] subject to plenary
      review.




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Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012)

(quotation omitted).

      Moreover, “[a]ppellate courts are limited to reviewing only the evidence

presented at the suppression hearing when examining a ruling on a pre-trial

motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33, 35-36

(Pa.Super. 2016) (citation omitted).      Also, “[i]t is within the suppression

court’s sole province as factfinder to pass on the credibility of witnesses and

the weight to be given their testimony.” Commonwealth v. Gallagher, 896

A.2d 583, 585 (Pa.Super. 2006) (quotation marks and quotation omitted).

      Regarding    Appellant’s   claim   that   C.I.   Niebel   made   deliberate

misstatements in the affidavit of probable cause for the first search warrant,

this Court has held that “[a] search warrant is defective if the issuing authority

has not been supplied with the necessary information…[to establish that] a

fair probability exists that contraband or evidence of a crime will be found in

a particular place.” Commonwealth v. Huntington, 924 A.2d 1252, 1255

(Pa.Super. 2007) (citations omitted).     Further, “[t]he Commonwealth shall

have the burden of going forward with the evidence and of establishing that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Pa.R.Crim.P. 581(H). The standard of proof is preponderance of the

evidence. Id., cmt. “[A] defendant at a suppression hearing has the right to

test the veracity of the facts recited in the affidavit in support of probable

cause.” Commonwealth v. James, 620 Pa. 465, 69 A.3d 180, 187 (2013)


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(citation omitted).      When testing the veracity of the facts recited in the

affidavit, a defendant must make “a substantial preliminary showing [that]

the affiant knowingly and intentionally, or with reckless disregard for the truth,

included a false statement in the affidavit.” Id. at 188 (citation omitted).

       In the case sub judice, in rejecting Appellant’s claim that C.I. Niebel

made deliberate misstatements indicating drug activity was occurring and/or

being investigated as to the Residence, the suppression court stated the

following:

              [The suppression] court provided [Appellant] with the
       opportunity to cross-examine C.I. Niebel regarding the alleged
       misrepresentations. However, [Appellant] is not entitled to relief.
       [Appellant] claimed that C.I. Niebel made misrepresentations
       regarding drug activity at the Residence.            The testimony
       presented by C.I. Niebel [at the suppression hearing] established
       that two controlled purchases of heroin took place between C.S.
       and [Appellant] at the Residence. Furthermore, C.I. Niebel
       testified to the existence of C.S., the information provided by C.S.
       and described the investigation into drug sales by [Appellant] at
       the Residence. There is no evidence that C.I. Niebel made any
       misrepresentations of fact in Search Warrant #1. [Appellant’s]
       claim must fail.

Suppression Court Opinion, filed 1/9/19, at 10.

       We agree with the suppression court’s sound reasoning and find no

abuse of discretion.6 See Hoppert, supra.


____________________________________________


6 We note the suppression court has set forth in detail the averments, which
C.I. Niebel made in the affidavit of probable cause with regard to the first
search warrant. See Suppression Court Opinion, filed 1/9/19, at 2-7. Further,
the certified record contains the search warrant and accompanying affidavit
of probable cause.


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       Appellant next claims the first search warrant was overly broad and

lacking in particularity since the warrant did not state what specific cell phone

the police were permitted to seize, and, therefore, the suppression court

should have suppressed the smartphone, which the police seized from

Appellant’s person. We conclude Appellant is not entitled to relief.

       Here, as the suppression court found, the police seized the smartphone

from Appellant when he was arrested on April 28, 2017, on Weiser Street after

the police had already seized the revolver at his Residence. Suppression Court

Opinion, filed 1/9/19, at 7.        Accordingly, we conclude C.I. Niebel properly

seized the smartphone from Appellant’s person incident to his arrest. See

Commonwealth v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (explaining

probable cause to arrest and “search incident to arrest” exception).7

       Finally, Appellant asserts C.I. Niebel’s reading of the text messages, as

well as examining his Facebook account as displayed on his smartphone, went

beyond the scope of the first search warrant.

       In addressing this claim in its Rule 1925(a) opinion, the trial court

concluded Appellant waived this specific claim by failing to raise it in the court

____________________________________________


7 In any event, to the extent Appellant avers generally that the first search
warrant was “overly broad,” we agree with the suppression court that the
issue lacks merit. See Suppression Court Opinion, filed 1/9/19, at 10-13
(concluding search warrant did not authorize a sweeping search based on
generalized suspicions and included an appendix of specific items for which
the police were searching).




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below. We conclude Appellant did not raise the claim in either his original or

supplemental motion to suppress. Accordingly, we agree with the trial court

that Appellant waived this claim.8 See Commonwealth v. Little, 903 A.2d

1269, 1272-73 (Pa.Super. 2006) (“appellate review of an order denying

suppression is limited to examination of the precise basis under which

suppression initially was sought; no new theories of relief may be considered

on appeal”).

       In his fourth issue, Appellant contends the trial court erred in admitting

at trial several pieces of mail, which the police seized from the Residence, as

proof that he actually resided at the Residence. Specifically, Appellant

contends the sender’s placement of his name and address on the mail

constituted inadmissible hearsay.

       Assuming, arguendo, the trial court erred in admitting the mail as proof

of residence, we conclude the error was harmless. At trial, Ms. Torres testified

that Appellant was her paramour, and they resided together at the Residence.

N.T., 3/18/19, at 137-38. She specifically testified that, during April of 2017,

Appellant was in a halfway house, but he continued to live and spend his

weekends at the Residence. Accordingly, the mail was merely cumulative of

Ms. Torres’ testimony regarding the location of Appellant’s residence, and


____________________________________________


8 In any event, we agree with the trial court that the issue lacks merit. See
Trial Court Opinion, filed 6/26/19, at 8 (concluding Appellant’s cell phone and
electronic messages were included in the list of items included in the search
warrant).

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thus, any error in its admittance was harmless error. See Commonwealth

v. Watson, 945 A.2d 174, 177 (Pa.Super. 2008) (holding harmless error

exists where “the erroneously admitted evidence was merely cumulative of

other untainted evidence which was substantially similar to the erroneously

admitted evidence.”) (citation omitted)).

     In his fifth issue, Appellant contends the Commonwealth misrepresented

the facts to the jury. Specifically, he contends the prosecutor committed

misconduct during closing argument by referring to the text messages from

Appellant’s smartphone as statements of fact since the text messages were

not introduced or admitted into evidence. See Appellant’s Brief at 45.

     In reviewing claims of improper prosecutorial comments, our standard

of review “is whether the trial court abused its discretion.” Commonwealth

v. Hall, 549 Pa. 269, 701 A.2d 190, 198 (1997).

            [W]ith specific reference to a claim of prosecutorial
     misconduct in a closing statement, it is well settled that any
     challenged prosecutorial comment must not be viewed in
     isolation, but rather must be considered in the context in which it
     was offered. Our review of a prosecutor’s comment and an
     allegation of prosecutorial misconduct requires us to evaluate
     whether a defendant received a fair trial, not a perfect trial. Thus,
     it is well settled that statements made by the prosecutor to the
     jury during closing argument will not form the basis for granting
     a new trial unless the unavoidable effect of such comments would
     be to prejudice the jury, forming in their minds fixed bias and
     hostility toward the defendant so they could not weigh the
     evidence objectively and render a true verdict. The appellate
     courts have recognized that not every unwise remark by an
     attorney amounts to misconduct or warrants the grant of a new
     trial. Additionally, like the defense, the prosecution is accorded
     reasonable latitude, may employ oratorical flair in arguing its
     version of the case to the jury, and may advance arguments

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      supported by the evidence or use inferences that can reasonably
      be derived therefrom. Moreover, the prosecutor is permitted to
      fairly respond to points made in the defense’s closing, and
      therefore, a proper examination of a prosecutor’s comments in
      closing requires review of the arguments advanced by the defense
      in summation.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016) (quotation

marks, quotation, and citations omitted).

      Here, in addressing Appellant’s claim, the trial court relevantly indicated

the following:

            In the case at bar, [Appellant] raised an objection to the
      Commonwealth’s reference to the text messages retrieved from
      his smartphone during the Commonwealth’s closing argument.
      [Appellant] argued that the Commonwealth improperly referred to
      the text messages as proof of a fact even though the messages
      were not in evidence other than through the testimony of C.I.
      Niebel. [Appellant] claimed that the Commonwealth said the
      messages were recovered and implied that the text messages
      were admitted into the record. Upon review of the trial transcript,
      [Appellant] is simply incorrect. Prior to [Appellant’s] objection,
      the Commonwealth made the following statement regarding the
      text messages:
            But there’s some other circumstantial evidence that
            proves that he had the intent and the ability to control
            that firearm. Investigator Niebel testified to the text
            messages that were found on the defendant’s phone
            when he was arrested that morning. A text message
            at 8:37 saying, Mayra, said they found the revolver.
            Where is the .22? It’s an unknown person who sends
            the text message to [Appellant]. But the person says,
            where is the .22? That person knew that [Appellant]
            would know where the .22 is. They know he knew
            about the firearms. And he says, don’t worry about
            the fu**ing gun. Not only did he know where the
            firearm is, but he expressed his ability to control it by
            telling someone else, don’t worry about it.
            The Commonwealth did not make any statement to the jury
      that the text messages were recovered and admitted into the

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       record. In an abundance of caution, the [trial] court instructed
       the Commonwealth to make it clear that C.I. Niebel viewed the
       text messages on the cell phone. The Commonwealth continued
       with their closing argument and complied with the [trial] court’s
       instruction. Furthermore, the Commonwealth was permitted to
       reference the text messages that were testified to by C.I. Niebel.
       “[I]t is entirely proper for the prosecutor to summarize the
       evidence presented, to offer reasonable deductions and inferences
       from the evidence, and to argue that the evidence establishes the
       defendant’s guilt.” Commonwealth v. Thomas, [618 Pa. 70,]
       54 A.3d 332, 338 (2012) (citation omitted). [Appellant] is not
       entitled to relief.

Trial Court Opinion, filed 6/26/19, at 17-18 (citations to record omitted).

       We conclude the trial court did not abuse its discretion, and therefore,

we find no merit to Appellant’s claim. See Hall, supra.

       Appellant’s sixth, seventh, and eighth issues are intertwined and present

a challenge to the weight of the evidence. Specifically, Appellant contends

Ms. Torres’ testimony indicating that he owned the firearms was incredible,

thus rendering the jury’s verdicts against the weight of the evidence.9 He

contends Ms. Torres shifted the blame to him so that she would receive

leniency from the prosecution.

       When considering challenges to the weight of the evidence, we apply

the following precepts.       “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,


____________________________________________


9Appellant adequately preserved his weight claim in his post-sentence motion.
See Pa.R.Crim.P. 607(a).

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J-S67039-19


129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation

omitted). Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa.Super. 2000). It is well-settled that we cannot substitute our

judgment for that of the trier of fact. Talbert, supra.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

      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.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant 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

court.” Id. (quotation marks and quotation omitted).

      Here, in rejecting Appellant’s weight of the evidence claim, the trial court

relevantly indicated:

            In the case at bar, [Appellant] claims the verdict was against
      the weight of the evidence as there should have been no weight
      given to the testimony of Ms. Torres.          During Ms. Torres’
      testimony, she disclosed that criminal charges were brought

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       against her based on this same investigation into [Appellant] and
       that she had entered a guilty plea to the misdemeanor offense of
       tampering with physical evidence. Ms. Torres also testified that
       she was convicted for retail theft sometime prior to 2017.
       However, despite this information, the verdict was not contrary to
       the evidence as the jury was presented with a case upon which to
       convict [Appellant]. The jury evaluated the evidence, determined
       the credibility of witnesses, including Ms. Torres, and, when
       assessing the weight of the evidence, believed the evidence
       presented by the prosecution and rendered a guilty verdict.
       Therefore, the verdict was consistent with the evidence presented
       and did not shock [one’s] sense of justice.

Trial Court Opinion, filed 6/26/19, at 16.

       We conclude the trial court did not abuse its discretion in denying

Appellant’s challenge to the weight of the evidence. Talbert, supra. We note

the jury was free to determine the weight and inferences to be drawn from

Ms. Torres testimony and what impact, if any, her own criminal charges and

history had on her veracity.        To the extent Appellant requests that we re-

weigh the evidence and assess the credibility of the witnesses presented at

trial, we decline to do so as it is a task that is beyond our scope of review.

See Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013)

(stating that “[a]n appellate court cannot substitute its judgment for that of

the finder of fact”).

       For all of the aforementioned reasons, we affirm Appellant’s judgment

of sentence.10

____________________________________________


10On December 2, 2019, Appellant filed in this Court an “Application for Relief”
requesting that we not consider the Commonwealth’s brief. We grant



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       Appellant’s “Application for Relief” is granted; Judgment of Sentence is

affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/27/2020




____________________________________________


Appellant’s motion. While the cover of the Commonwealth’s brief correctly
identifies Appellant’s case, the content thereof does not pertain to Appellant’s
case. Accordingly, we decline to consider the Commonwealth’s brief in this
matter.

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