J-A07033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
            Appellee                           :
                                               :
            v.                                 :
                                               :
MATTHEW EBO,                                   :
                                               :
            Appellant                          :      No. 92 WDA 2016

           Appeal from the Judgment of Sentence November 28, 2012
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002821-2012

BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                           FILED JUNE 21, 2017

        Matthew Ebo (Appellant) appeals from the judgment of sentence

imposed following his conviction for first-degree homicide and related

offenses.    We affirm Appellant’s convictions, but vacate his judgment of

sentence and remand for resentencing.

        Because we write only for the parties, a full recitation of the facts is

unnecessary.       Relevant   to   this   appeal,   Appellant   and   co-defendant

Thaddaeus Crumbley (Crumbley) (collectively, the co-defendants), were

tried jointly in the Court of Common Pleas of Allegheny County on charges

related to the May 16, 2011 shooting death of Todd Mattox. A jury found

both men guilty of first-degree homicide; robbery - serious bodily injury;

robbery of a motor vehicle; two violations of the Uniform Firearms Act:

carrying a firearm without a license and possession of firearms by a


*
    Retired Senior Judge assigned to the Superior Court.
J-A07033-17


prohibited person; conspiracy to commit criminal homicide; and conspiracy

to commit robbery - serious bodily injury. On November 28, 2012, during

the joint sentencing hearing, Appellant was sentenced to a term of life

imprisonment for his homicide conviction, and an aggregate term of 46 to 92

years of consecutive imprisonment on the remaining counts.           Relevant

herein, as part of the aggregate sentence, the trial court imposed

consecutive ten-to-20-year sentences at count three (robbery of a motor

vehicle) and count six (conspiracy to commit robbery - serious bodily injury).

      On November 30, 2012, Appellant’s trial counsel moved to withdraw

from representation. The trial court granted this request by order dated

December 12, 2012. After being appointed by the court, appellate counsel

from the Allegheny County Public Defender’s Office filed an emergency

petition for leave to file post-sentence motions nunc pro tunc, which was

granted.   Appellant’s post-sentence motion was subsequently denied by

operation of law on June 26, 2013.

      On July 25, 2013, counsel timely filed a notice of appeal to this Court,

which was docketed at 1194 WDA 2013. However, before the appeal was

heard, counsel filed an application for remand based upon a claim of after-

discovered evidence. This Court granted counsel’s request and ordered the




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J-A07033-17


trial court to conduct a hearing to determine whether Appellant’s claim

merited a new trial.1

      On October 29, 2015, the trial court held a joint hearing on the co-

defendants’ claims of after-discovered evidence.     On December 22, 2015,

the trial court denied the requested relief. Appellant filed timely a notice of

appeal, and both Appellant and the trial court have complied with the

mandates of Pa.R.A.P. 1925.

      Appellant raises four issues for our review.

      I.     Did the trial court abuse its discretion in failing to award
             [Appellant] a new trial based upon the recantation of the
             sole witness connecti[ng] him to the crime?

      II.    Was the evidence that [Crumbley] was involved in gun
             violence and possessed a firearm two weeks after the
             homicide inadmissible evidence of other bad acts and was
             it completely irrelevant to whether [Appellant] was
             involved in the homicide when the subsequent incident had
             no connection to [Appellant]?

      III.   Should identification evidence have been suppressed when
             the highly suggestive pre[-]trial identification procedure
             tainted the main eyewitness’[s] in-court identification of
             [Appellant]?



1
  Crumbley’s case followed a similar post-trial trajectory. Crumbley, through
counsel, timely filed a notice of appeal after the November 28, 2012
sentencing. His appeal was docketed at 1997 WDA 2012. On January 5,
2015, while Crumbley’s case was pending on appeal before this Court, his
counsel filed a petition for remand on the basis of after-discovered evidence.
This Court initially denied Crumbley’s request, as well as his request for
reconsideration of the same, and oral argument was scheduled for August
11, 2015. However, on August 11, 2015, before argument occurred, this
Court remanded Crumbley’s case for an evidentiary hearing on the after-
discovered evidence claim.


                                     -3-
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      IV.   Was the trial court’s imposition of sentence under the
            unconstitutional statute, 18 Pa.C.S. § 9712, illegal when
            the factfinder never found the facts necessary beyond a
            reasonable doubt for the imposition of the mandatory
            minimum sentence?

Appellant’s Brief at 12 (unnecessary capitalization and trial court answers

omitted).

      Appellant first claims that the trial court erred in denying his motion

for a new trial based on after-discovered evidence. Appellant’s Brief at 27-

39. We address this claim mindful of the following.

             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) (citation

omitted).

      The after-discovered evidence at issue is the unsworn statement of

eyewitness Saday Robinson in which she recanted her pre-trial and in-court

identification of the co-defendants. The certified record shows the following.

The May 16, 2011 shooting that resulted in Mattox’s death occurred outside

of Robinson’s apartment. Robinson was presented with a number of photo

arrays following the shooting, but did not identify Appellant as one of the

shooters until July of 2012.    At trial, Robinson made a positive in-court


                                     -4-
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identification of both co-defendants, and noted that it was fear of retaliation

that prevented her from identifying the men in the initial photo arrays.

Robinson was cross-examined extensively as to the credibility of her

identification.

      In 2014, after both co-defendants had been sentenced, Robinson was

interviewed by a defense investigator.         This interview was recorded in

writing and on video; however, Robinson was not sworn, nor did she give

the statement under penalty of perjury. Robinson told the investigator that

she did not witness the shooting, that her trial testimony was fabricated, and

that her identification of the co-defendants was coerced by the police.

      Robinson was called to testify at the October 29, 2015 evidentiary

hearing. At that time, she recanted her statements to the investigator and

claimed that her 2014 recorded statement was untruthful. When asked why

she lied, she explained that she had been threatened by persons close to

Appellant and Crumbley and had been offered a large sum of money to

recant her trial testimony.   However, Robinson affirmed at the evidentiary

hearing that she was telling the truth when she identified Appellant and

Crumbley as the shooters during their trial.

      Appellant argues that he met his burden under Rivera and is entitled

to a new trial based on Robinson’s statement to the defense investigator

because (1) the evidence of her recantation could not have been obtained

before the conclusion of trial, (2) the evidence is not corroborative or



                                     -5-
J-A07033-17


cumulative, (3) the evidence would not be used solely for the purposes of

impeachment, and (4) the recantation is of such “immense importance” that

a new outcome would have resulted had the jury been permitted to hear it.

Appellant’s Brief at 27-32.

      As our Supreme Court has explained,

      [r]ecantation testimony is extremely unreliable. When the
      recantation involves an admission of perjury, it is the least
      reliable form of proof. The trial court has the responsibility of
      judging the credibility of the recantation. Unless the trial court is
      satisfied that the recantation is true, it should deny a new trial.
      An appellate court may not disturb the trial court’s determination
      absent a clear abuse of discretion.

Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997) (citations

omitted).

      Here, the trial court determined that a new trial was not warranted

because, at the evidentiary hearing on the co-defendants’ claims of after-

discovered evidence, Robinson “credibly recanted her unsworn recantation

statements” made to the investigator. Trial Court Opinion, 12/22/2015, at 5.

In so holding, the court found credible Robinson’s explanation for why she

made false statements to the investigator only to later recant those

statements at the hearing. Id. The court explained as follows.

            As noted by the parties, [] Robinson provided testimony at
      the October 29, 2015 evidentiary hearing, during which she
      recanted the statements that she had made to [the] defense
      investigator … in videotaped and handwritten form. The
      videotaped and handwritten statements served as the
      recantation evidence upon which the defendants have relied in
      seeking a new trial based on after-discovered [] evidence. It
      should be noted that [] Robinson never took an oath to tell the


                                      -6-
J-A07033-17


     truth prior to giving the videotaped statement and did not write
     the handwritten statement under penalty of perjury. During her
     testimony at the October 29, 2015 hearing, Ms. Robinson
     explained that the statements that she had made in video and
     written form were untruthful. She explained that she had lied to
     [the] defense investigator … because she had been threatened
     by people associated with the defendants. Additionally, she had
     been offered a substantial sum of money -- $25,000 -- to recant
     her trial testimony.

            The court paid extremely close attention to [] Robinson’s
     demeanor throughout the evidentiary hearing, and it finds highly
     credible her explanation for why she initially attempted to recant
     her trial testimony to [the] defense investigator…. [] Robinson
     acknowledged that she is in fear for her life from the defendants.
     Her fear is due, in part, to her knowledge of the reputation of
     the defendants, their friends, associates and families, as well as
     the events she herself witnessed. She indicated, convincingly,
     that she would rather have lied than lost her life. [] Robinson
     was in fear from the defendants, given that people associated
     with them kept finding her despite several moves. Further, she
     testified credibly that she believed that, if she cooperated with
     the defense efforts, she would be left alone by the defendants.
     The court also found highly credible her explanation for why she
     recanted her post-trial recantation statements during the
     evidentiary hearing. [] Robinson indicated that she did not want
     guilty people to be let out of jail and that the defendants
     deserved to be in jail for what they had done. [] Robinson did
     not waver in her testimony at the evidentiary hearing and was
     adamant that her post-trial recantation statements were made
     out of fear and not as a result of any crisis of conscience that
     she was experiencing as to the certainty of her observations. At
     the October 29, 2015 hearing, [] Robinson very clearly,
     convincingly, and without hesitation, identified the defendants as
     the perpetrators of the murder. It must be noted that this was
     the second time that she made her identification of the
     defendants as murderers in a courtroom, in the presence of the
     defendants and under oath.

           This court had the benefit of sitting through the original
     homicide trial, and it observed firsthand [] Robinson’s demeanor
     when she provided her eyewitness account of the brutal murder
     and identified the defendants as the perpetrators. [] Robinson
     shook uncontrollably throughout her testimony and was clearly


                                   -7-
J-A07033-17


      frightened to be involved in the case. As the Commonwealth
      noted in its brief, [] Robinson had nothing to gain and everything
      to lose by testifying against the defendants during the homicide
      trial. This holds equally true with regard to her testimony at the
      evidentiary hearing related to her supposed recantation. []
      Robinson has nothing to gain and everything to lose by recanting
      the unsworn recantation statements[.] She continues to place
      herself in danger of retribution by maintaining her position that
      the defendants were the perpetrators of the murder, which
      makes her identification testimony all the more credible. The fact
      that she maintains her identification of the defendants as
      murderers when under oath and forced to confront them face-to-
      face, and in light of her fear of the defendants based on their
      reputations, threats made to her, and her inability to remain
      hidden, makes [] Robinson’s identification ring with truthfulness
      and credibility.

             Accordingly, after taking into account the strength of []
      Robinson’s identification testimony at trial and after finding []
      Robinson’s testimony at the evidentiary hearing credible in all
      respects, this court finds that a new trial is not warranted under
      these circumstances. Given that [] Robinson has consistently
      identified the defendants while under oath, and given that her
      identification testimony has been very credible each time, the
      court does not find that the purported recantation evidence
      would “likely result in a different verdict if a new trial were
      granted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.
      Super. 2010).

Trial Court Opinion, 12/22/2015, at 2-4 (unnecessary capitalization omitted;

emphasis in original).

      Based on our thorough review of the record, we conclude that the trial

court did not abuse its discretion in determining that the unsworn statement

offered to the defense investigator was not credible, and that Robinson had

fabricated the statements out of fear of the co-defendants and their

associates. Importantly, we agree that Appellant’s argument fails as to the

fourth prong of the applicable test. When presented with the purported


                                    -8-
J-A07033-17


recantation testimony, the circumstances surrounding Robinson’s statement

to the defense investigator, and Robinson’s later recantation of those

statements under oath, it is unlikely that the verdict would be rendered in

Appellant’s favor. As such, the trial court did not err in denying Appellant a

new trial based upon this evidence.

      We now turn to Appellant’s second issue on appeal: whether the trial

court erred in denying a motion in limine, filed by Crumbley and joined by

Appellant, which sought to exclude from the co-defendants’ joint trial

evidence regarding other bad acts attributable to Crumbley. Appellant’s Brief

at 40-52.

      We provide the following background. The police recovered seven .40

caliber shell casings and two 357 Sig2 shell casings from the scene of the

May 16, 2011 shooting that resulted in the death of Mattox. Forensic testing

showed that two of the recovered .40 caliber shell casings had been fired

from one gun, while the other five had been fired from another. The

presence of the two 357 Sig shell casings recovered from the scene

evidenced the involvement of a third gun.

      On June 2, 2011, a few weeks after the Mattox shooting, Crumbley

was injured in a shootout in Swissvale, Allegheny County.         When police

arrived at that scene, they found a number of spent shell casings in and


2
 As explained during trial, “the 357 Sig caliber is a 40 caliber cartridge case
which is bottlenecked down to fit a nine millimeter [bullet].” N.T., 8/20-
9/4/2012, at 457.


                                      -9-
J-A07033-17


around the vehicle in which Crumbley had been riding. Those shell casings

were tested and determined to have come from two separate firearms: a

9mm and a .40 caliber. The 9mm casings were all determined to have been

discharged from a Ruger P89 firearm recovered from the vehicle in which

Crumbley had been riding prior to and during the June 2, 2011 shootout.

Crumbley’s blood was found on the side of the Ruger and on the barrel.

      Also present at the scene of the shootout was Asa Thompkins, who

was released after a brief detention. On June 9, 2011, Thompkins was a

passenger in a vehicle that was stopped by police. Police recovered a .40

caliber Springfield Armory pistol during a search of that vehicle.

      Three bullets were recovered from Mattox’s body during his autopsy,

two 9mm rounds and one .40 caliber. At trial, the Commonwealth’s firearms

and tool marks expert, Raymond Everett, testified that his examination of

the recovered bullets led him to conclude that the two 9mm bullets were

fired from the same gun: either a 357 or a 9mm firearm; however, no

definitive comparison could be made to any 357 or 9mm firearm tested in

connection with this case. N.T., 8/20-9/4/2012, at 460-61, 471-72. Everett

testified that the class characteristics present on the .40 caliber bullet

recovered during Mattox’s autopsy were similar to those made by Springfield

Armory brand pistols. Id. at 452-53.     Further, it was determined that the

.40 caliber casings recovered from both the May 16, 2011 homicide matched




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J-A07033-17


those recovered from the .40 caliber casings recovered from the scene of the

2011 Swissvale shootout. Id. at 451-54.

      On May 30, 2012, the Commonwealth filed notice of its intent to

present evidence, pursuant to Pa.R.E. 404(b), of Crumbley’s involvement in

the June 2, 2011 shootout. The Commonwealth averred that the Ruger and

Springfield Armory firearms associated with the June shootout linked

Crumbley to the Mattox shooting on May 16, 2011.               Thus, it sought to

introduce testimony regarding the June 2 incident at the co-defendants’ trial

in order to prove identity. While Crumbley was obviously present at the June

2 incident, Appellant was not; thus, he argued that the evidence was

prejudicial and, therefore, inadmissible against him.      Following a hearing,

the trial court ruled that the evidence was admissible at the joint trial, and

denied the motion in limine.

      “When reviewing the denial of a motion in limine, we apply an

evidentiary abuse of discretion standard of review.” Commonwealth v.

Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted).              “The

admissibility of evidence is a matter directed to the sound discretion of the

trial court, and an appellate court may reverse only upon a showing that the

trial court abused that discretion.” Id. (citation omitted).

      The crux of Appellant’s argument is that evidence recovered from the

June 2, 2011 incident involving Crumbley has no bearing on Appellant’s

identity as one of the shooters involved in the May 16, 2011 death of



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J-A07033-17


Mattox.   Appellant’s    Brief    at    46.       However,   this   argument   fails   to

acknowledge that Appellant and Crumbley were joined for trial. 3 The co-

defendants herein did not object to joinder.                 Indeed, “joint trials are

preferred where conspiracy is charged.” Commonwealth v. Housman, 986

A.2d 822, 834 (Pa. 2009) (citation omitted).

      Pennsylvania      Rule     of    Evidence     404(b)   governs   admissibility   of

evidence of other bad acts.4

             Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      However, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident. In determining whether evidence
      of other prior bad acts is admissible, the trial court is obliged to
      balance the probative value of such evidence against its
      prejudicial impact.

            The Commonwealth must prove beyond a reasonable
      doubt that a defendant has committed the particular crime of
      which he is accused, and it may not strip him of the presumption
      of innocence by proving that he has committed other criminal
      acts.

Commonwealth v. Ross, 57 A.3d 85, 98–99 (Pa. Super. 2012) (en banc)

(citations omitted).


3
   The Rules of Criminal Procedure provide that “[d]efendants charged in
separate indictments or informations may be tried together if they are
alleged to have participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or offenses.”
Pa.R.Crim.P. 582(A)(2).
4
  Rule 404(b) does not distinguish between prior and subsequent acts.
Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005).


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J-A07033-17


      Here, the trial court properly admitted the evidence related to the June

2, 2011 incident as probative of the identity of Crumbley and his

involvement in the May 16, 2011 shooting that resulted in the death of

Mattox. See Trial Court Opinion, 6/25/2014, at 23-28. Of significance, we

note that the trial court offered a limiting instruction concerning this

testimony, which was rejected by both Crumbley’s counsel and Appellant. 5

N.T., 8/20-9/4/2012, at 1318-23, 1411-12.


5
  We find instructive the following portion of Justice Saylor’s concurring and
dissenting opinion in Commonwealth v. Housman, 986 A.2d 822, 848 (Pa.
2009) (Saylor, J., concurring and dissenting).

      In Zafiro v. United States, 506 U.S. 534, 539, [] (1993), the
      high Court opined that when defendants have properly been
      joined, a district court should only grant severance if there is a
      serious risk that a joint trial “would compromise a specific trial
      right of one of the defendants, or prevent the jury from making
      a reliable judgment about guilt or innocence.” Id. at 539 [].

      The Court went on to say that where evidence is admitted at a
      joint trial that would not be admissible in a separate trial, a
      defendant might be prejudiced:

            Such a risk might occur when evidence that the jury
            should not consider against a defendant and that
            would not be admissible if a defendant were tried
            alone is admitted against a codefendant. For
            example, evidence of a codefendant's wrongdoing in
            some circumstances erroneously could lead a jury to
            conclude that a defendant was guilty. When many
            defendants are tried together in a complex case and
            they have markedly different degrees of culpability,
            this risk of prejudice is heightened. Evidence that is
            probative of a defendant's guilt but technically
            admissible only against a codefendant also might
            present a risk of prejudice. Conversely, a defendant
            might suffer prejudice if essential exculpatory


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J-A07033-17


     In light of the forgoing, following our review of the certified record, the

parties’ briefs, and the relevant law, we conclude that the opinion of the

Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes

of Appellant’s second issue and supporting arguments and evidences no

abuse of discretion or errors of law. Accordingly, we adopt section C of the

trial court’s opinion, pages 23 through 28, filed on June 25, 2014, as our

own and hold, based upon the reasons stated therein, that the trial court

committed neither an error of law nor an abuse of discretion in denying the

co-defendants’ motion in limine.

     In his third claim of error, Appellant asks this Court to consider

whether the trial court erred in failing to grant a motion, filed by Crumbley

and joined by Appellant, that sought suppression of Robinson’s pre-trial

identification of the co-defendants due to the “highly suggestive” nature of

the administered photo arrays. Appellant’s Brief at 40-63.      Appellant also


           evidence that would be available to a defendant tried
           alone were unavailable in a joint trial. The risk of
           prejudice will vary with the facts in each case, and
           district courts may find prejudice in situations not
           discussed here. When the risk of prejudice is high, a
           district court is more likely to determine that
           separate trials are necessary, but, as we indicated in
           Richardson v. Marsh, less drastic measures,
           such as limiting instructions, often will suffice
           to cure any risk of prejudice. [See 481 U.S. 200,
           107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)].

     Zafiro, 506 U.S. at 539 [] (internal citations omitted).

Housman, at 848 (emphasis added).



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J-A07033-17


argues that the suggestive pre-trial procedure tainted Robinson’s in-court

identification, and admission of both was in error. Id.

            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.

             [W]e may consider only the evidence of the prosecution
      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 record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      court erred in reaching its legal conclusions based upon the
      facts. Moreover, it is within the lower court’s province to pass on
      the credibility of witnesses and determine the weight to be given
      to their testimony.

             When determining the admissibility of identification
      testimony, this Court has held that suggestiveness in the
      identification process is a factor to be considered in determining
      the admissibility of such evidence, but suggestiveness alone
      does not warrant exclusion. A pretrial identification will not be
      suppressed as violative of due process rights unless the facts
      demonstrate that the identification procedure was so infected by
      suggestiveness as to give rise to a substantial likelihood of
      irreparable misidentification.

             Due process does not require that every pretrial
      identification of witnesses must be conducted under laboratory
      conditions of an approved lineup. In reviewing the propriety of
      identification evidence, the central inquiry is whether, under the
      totality of the circumstances, the identification was reliable.

            Additionally, the purpose of a suppression order regarding
      exclusion of identification evidence is to prevent improper police
      action. Thus, where a defendant does not show that improper
      police conduct resulted in a suggestive identification,
      suppression is not warranted.




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J-A07033-17


Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016) (citations and quotation marks omitted).

      Once more, our thorough review of the certified record, the parties’

briefs, and the relevant law leads us to conclude that the opinion of Judge

Lazzara thoroughly and correctly addresses and disposes of this issue and

evidences no abuse of discretion or errors of law.     Accordingly, we adopt

section B of the trial court’s opinion, pages 15 through 23, filed on June 25,

2014, as our own and hold, based upon the reasons stated therein, that the

trial court committed neither an error of law nor an abuse of discretion in

denying the co-defendants’ suppression motion, nor did the court err in

permitting Robinson’s in-court identification of the co-defendants.

      In his final claim of error, Appellant contends that imposition of

mandatory minimum sentences at counts three and six is illegal under

Alleyne v. United States, 133 S.Ct. 2151 (2013).6 Appellant’s Brief at 64-

67.   The Commonwealth concedes that this case must be remanded for

resentencing because the applicable statute, 42 Pa.C.S. § 9712, has been

found unconstitutional. Commonwealth’s Brief at 54; see Commonwealth

v. Newman, 99 A.3d 86, 104 (Pa. Super. 2014) (en banc) (holding the

mandatory minimum sentencing scheme under section 9712 unconstitutional

pursuant to Alleyne). See also Commonwealth v. Valentine, 101 A.3d

6
  In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155.



                                    - 16 -
J-A07033-17


801 (Pa. Super. 2014). We agree. Because section 9712 has been

invalidated by Alleyne, and Appellant is currently appealing from his

judgment of sentence, we vacate the illegal, mandatory minimum terms

imposed at counts three and six, and remand for resentencing on those

charges.

      In sum, we affirm Appellant’s convictions, but vacate his judgment of

sentence as to count three (robbery of a motor vehicle) and count six

(conspiracy to commit robbery - serious bodily injury), and remand for

resentencing. The parties shall attach a copy of the trial court’s June 25,

2014 opinion to this memorandum in the event of future proceedings.

      Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




                                  - 17 -
                                                          Circulated 05/22/2017 01:02 PM




 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION




COMMONWEALTH OF PENNSYLVANIA,                                              i1
                                                                           r
          v.                                                               m
                                                                          0
THADDEUS CRUMBLEY,

          Defendant.


COMMONWEALTH OF PENNSYLVANIA,         No. CR 2821-2012


          v.

MATTHEW EBO,                          OPINION

          Defendant.                  BETH A. LAZZARA, JUDGE
                                      Court of Common Pleas

                                      Copies Sent To:

                                      Michael W. Streily, Esquire
                                      Office of the District Attorney
                                      Allegheny County Courthouse
                                      Pittsburgh, PA 15219

                                      Sally Frick, Esquire
                                      437 Grant Street
                                      Suite 407
                                      Pittsburgh, PA 15219

                                      Jessica L. Herndon, Esquire
                                      Office of the Public Defender
                                      400 County Office Building
                                      542 Forbes Avenue
                                      Pittsburgh, PA 15219
                            THE COURT OF COMMON PLEAS
                        OF ALLEGHENY COUNTY, PENNSYLVANIA



COMMONWEAL TH OF                                   CRIMINAL DIVISION
PENNSYLVANIA,


vs.
                                                   CC: 2820-2012
THADDEUS CRUMBLEY,

                    Defendant.

COMMONWEALTH OF                                    CRIMINAL DIVISION
PENNSYLVANIA,


vs.
                                                   CC: 2821-2012
MATTHEW EBO,

                    Defendant.



                                        OPINION
        This   is    an appeal   following   the    imposition   of   sentences   to   life

imprisonment for both Defendants following a jury trial in which both Defendants

were found guilty of First Degree Murder, Robbery -- Serious Bodily Injury,

Robbery -- Motor Vehicle, Carrying a Firearm without a License, Conspiracy --

Robbery and Conspiracy - Murder. The trial occurred between Auqust 22, 2012

and September 4, 2012, and the Defendants were sentenced on November 28,

2012.    On appeal, the Defendants have raised numerous allegations of error,

which will be set forth and discussed below.          Many of the issues raised by the
Defendants are identical, which is why this court has chosen to address them in a

single opinion.


                             I.       ALLEGATIONS OF ERROR


      The Defendants have raised numerous allegations of error in their Concise

Statements of Matters Complained of on Appeal.              These are listed below, by

Defendant, and it is further noted at which section of this opinion the alleged

error is discussed.


Defendant Crumbley:


      1. The court failed to exclude the testimony of Saday Robinson due to

          alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. A.)

      2. The court failed to exclude the testimony of Saday Robinson due to

          police taint or bias in the identification. (Section Ill. B.)

      3. The court erred          in admitting   evidence of a subsequent     shooting

         involving     Defendant Crumbley, failed to give a limiting        instruction

         regarding the evidence and failed to exclude evidence relating to a

         Ruger handgun. (Section Ill. C.)

      4. The court failed to either strike a comment, or provide a curative

         instruction     related to the comment, made by the Assistant          District

         Attorney      referring to Defendant Crumbley as "the Angel of Death."

         Additionally,    Defendant Crumbley has alleged ineffective assistance of

         counsel due to his counsel's lack of objection to the comment. (Section

         Ill. D.)


                                             2
       5. The court failed to exclude testimony of certain "[allhouse" witnesses

          due to alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. E.)

       6. The court failed to give a "missing witness" instruction as to witness

          Richard Carpenter. (Section Ill. F.)

       7. The court violated     Defendant Crumbley's right to a speedy trial by

          granting a continuance on June 7, 2012 (Section Ill. G.)

      8. The evidence was insufficient to sustain the verdict. (Section Ill. H.)

      9. The verdict was against the weight of the evidence. (section Ill. H.)


Defendant Ebo:


      1. The court failed to exclude the testimony of Saday Robinson due to

         alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. A.)

      2. The court erred in admitting           evidence of a subsequent      shooting

         involving   Defendant    Crumbley, failed to give a limiting       instruction

         regarding the evidence and failed to exclude evidence relating to a

         Ruger handgun. (Section Ill. C.)

      3. The court failed to exclude the testimony of Saday Robinson due to

         police taint or bias in the identification. (Section Ill. B.)

      4. The verdict was against the weight of the evidence. (section Ill. H.)


      This court disagrees with the Defendants' allegations of error and asserts

that it has committed no errors.     This court requests that its rulings, the jury's

verdict and the sentences of the Defendants be upheld.




                                            3
                                    II.      FACTUAL BACKGROUND


          On May 16, 2011, Todd Mattox was shot to death in the parking lot of the

    Leechburg Garden apartments in Penn Hills.                     (T.R. 8/20/12, p. 240)1.         He had

    suffered three (3) gunshot wounds, two (2) to the trunk and one (1) fatal shot to

    the head. (T.R. 8/20/12, pp. 246-261, Ex. 4-16).




          An eyewitness, Saday Robinson, described the sounds of an altercation

    above her apartment in the minutes before the shooting, followed by the noise of

    people running down stairs. (T.R. 8/20/12, pp. 527-528). She then saw Mr. Mattox

    being pushed out the front door of the apartment complex by two (2) African-

American males with handguns. (T.R. 8/20/12, pp. 528-529). She was able to hear

Mr. Mattox pleading for his life, offering the two (2) males everything that he had,

and backing away from them with his hands up. (T.R. 8/20/12, pp. 529, 531). The

eyewitness described seeing a man that she later identified as Defendant Ebo

shooting at Mr. Mattox three (3) times. (T.R. 8/20/12, p, 531 ). Mr. Mattox fell to the

ground after the gunshots were fired. (T.R. 8/20/12, p. 531 ).                        The witness then

described seeing Defendant Ebo going through the pants pockets of Mr. Mattox

1
 The notation ''T.R. 8/20/12" refers to Volumes I and II of the trial transcript for August 20, 2012 through
September 4, 2012.

                                                      4
 before she saw a person that she later identified as Defendant Crumbley walk up

 to Mr. Mattox, stand over his body as it lay in the parking lot, and shoot him

 directly in the head. (T.R. 8/20/12, pp. 532-534). She then indicated that she saw

 the Defendants get into Mr. Mattox's white Nissan and speed out of the parking

 lot. (T.R. 8/20/12, p. 534). Mr. Mattox's vehicle was later found after it had been

 set on fire on Hill Street in Penn Hills. (T.R. 8/20/12, pp.757-759, 762-780, 782-787,

804, 818, 841; Ex. 58-63, Ex. 66-67).




        It should be noted that other witnesses corroborated key points contained

in Ms. Robinson's      description   of the events that night.    For example, John

Gardone also testified that Mr. Mattox was chased by two (2) African-American

males before he was shot several times in the parking lot of the Leechburg

Gardens.     (T.R. 8/20/12, pp. 591 -592). He also saw the two (2) suspects enter a

white vehicle and speed from the parking lot. (T.R. 8/20/12, pp. 492-493). Another

witness, Yurri Lewis, heard multiple shots that day, although he did not witness

the shooting.     (T.R. 8/20/12, p. 513). He did, however, see an African-American

male going through the pockets of a man lying in the parking lot of Leechburg

Garden Apartments.      (T.R. 8/20/12, p. 515).   He saw the man who had been rifling

through the victim's pockets enter a white car and speed out of the parking lot.

(T.R. 8/20/12, p. 515).    Detective Anthony Perry confirmed that the right front

pants pocket of Mr. Mattox was pulled out when he arrived at the scene. (T.R.

8/20/12, pp. 302-304, 330-334, Ex. 41). The left front pocket was in its normal

position.   (T.R. 8/20/12, pp. 302-304).

                                            5
          Despite the fact that th_ere were several eyewitnesses to the events that

occurred on May 16, 2011, none of the witnesses interviewed by either Penn Hills

police officers or Allegheny County detectives were able to positively identify the

actors.




        The Defendants became suspects in the Todd Mattox murder following a

string of events occurring over the course of the several months following the

slaying.    On June 2, 2011, Defendant Crumbley was involved in a shooting in

Swissvale, in which he was shot several times. (T.R. 8/20/12, pp. 855-858). Two

types of shell casings were recovered from the scene, including the same type of

shell casings that were found at the Todd Mattox murder scene, those being from

a .40 caliber Smith and Wesson Springfield Armory pistol. (T.R. 8/20/12, pp. 885-

886).     A friend of Defendant Crumbley's, Asa Thompkins, was present at the

scene of the shooting.     (T.R. 8/20/12, pp. 847, 852). One week later, on June 9,

2011, Asa Thompkins was pulled over for a traffic stop in South Park. (T.R. 8/3/12,

p. 20; T.R. 8/20/12, p. 1009). A Springfield Armory pistol was found under the front

passenger seat of the car, and Mr. Thompkins said that the gun was his. (T.R.

8/20/12, pp.1010-1011).




                                          6
       On September 6, 2011, Thomas Julian Brown wrote a letter from the

 Allegheny   County jail to Detective Garlicki, of. the Allegheny County police,

 asking that he be put in touch with the detective who was handling the Todd

· Mattox homicide.    (T.R. 8/20/12, p. 697).    He indicated that he was willing to

 provide information on that case. (T.R. 8/2C/12, pp. 697-698). Mr. Brown further

 indicated that he had heard, several months earlier, Defendant Crumbley saying

 that he had "smoked" Todd Mattox.          (T.R. 8/20/12, pp. 698-699).   Mr. Brown's

 cousin was Asa Thompkins, and Mr. Brown's son, Leron Brown, was a friend of

 Defendant Crumbley.      (T.R. 8/20/12, pp. 695-696). Leron Brown was found shot

 dead in January or February 2012, inside a car with Roman Herring, a cousin of

 Defendant Crumbley's, who was also found dead in that same car. (T.R. 8/20/12,

 pp. 948, 991). Roman Herring was allegedly involved in the burning of a vehicle

on Hill Street in Penn Hills. (T.R. 8/20/12, p. 945).




       Defendant Crumbley became a suspect in the Todd Mattox murder In

September 2011, after Detective Anthony Perry received a report connecting the

handguns     used in the Todd Mattox homicide with the weapons used in the

Swissvale shooting on June 2, 2011, and after witness Thomas Brown came

forward with information about the homicide.        (T.R. 8/20/11, pp. 1017, 1020, 1021,

1025). Defendant Ebo also became a suspect at that time. (T.R. 8/20/11, p. 1017).




                                            7
                                        Ill.   ARGUMENT



    A. Alleged Discovery Violation regarding Saday Robinson

        The Defendants' first allegation of error is that this court erred in admitting

the testimony       of eyewitness Saday Robinson.                The Defendants argue that the

testimony        should have been excluded as a sanction for the Commonwealth's

violation of Pa. R. Crim Proc. 573. The Defendants allege that the Commonwealth

failed to provide full and timely discovery by failing to provide information to the

Defendants regarding Ms. Robinson's "misidentification" during presentation of a

photo array.




        During testimony taken on August 21, 2012 in connection with a pre-trial

motion seeking exclusion of Ms. Robinson's identification of the Defendants on

the basis that the identification was the product of bias and taint, Ms. Robinson

indicated that, during one of the photo arrays prior to July 24, 2012, she had

pointed to a photograph and said that the individual in the photograph "looked

like"   Defendant     Ebo.     (T.R.   8/20/12, pp.        59-61).     However, this    alleged

misidentification     was not reported in any police report by either Penn Hills

officers or Allegheny County homicide detectives. (LR. 8/20/12, p. 82). After Ms.
            '"
Robinson's pretrial testimony about the alleged intentional misidentification, and

defense counsel's request for any report that detailed the misidentification, this

court    advised      the    Commonwealth          that,    if    discovery   related   to   the




                                               9
 misidentification   was not turned over to the Defendants, Ms. Hobinson would not

 be permitted to testify. (T.R. 8/20/12, p. 83).




       The following day, while the jury was at lunch, Assistant District Attorney

 Steven Stadtmiller indicated that, after speaking with the officers involved in the

investigation,   he was advised that the misidentification     did not occur.   (T.R.

8/20/12, pp. 152-154). Detective Hitchings, who had shown Ms. Robinson the

November 4, 2011 lineup, which was the first photo array to contain Defendant

Ebo, indicated that no identification       at all had occurred on that date.   (T.R.

8/20/12, p. 153).




       Ms. Robinson took the stand on August 22, 2012 to continue her testimony

related to the pre-trial motion.    (T.R. 8/20/12, p. 155). She again stated that she

had previously pointed to someone who looked like Defendant Ebo in a photo

array prior to July 24, 2012. (T.R. 8/20/12, pp. 166-167). Her clearest discussion of

the issue was in the following exchange with Defense Attorney Wendy Williams:


       Q.     Okay. Are you saying now that you mistakenly said that or that you

were lying under oath yesterday?


      A.      You are confusing me.


      Q.      Did that in fact occur? Did you point to somebody else and say that

this is the guy that did the crime?


                                            10
        A.     No, I said that this looks like the guy who did the crime.


        Q.     Okay. And you pointed to somebody other than Mr. Ebo and Mr.

Crumbley?


       A.      Yes.          (T.R. 8/20/12, p. 163).


Ms. Robinson also testified that the misidentification occurred when she was in a

car with Detective Perry before her grandmother died. (T.R. 8/20/12, pp. 176-177).

It should be noted that only the September 16, 2011 photo array meets all three

(3) of these criteria.      Ms. Robinson also specifically      denied that Detective

Hitchings was present during the alleged misidentification. (T.R. 8/20/12, p. 176).




       Following Ms. Robinson's        testimony, Detective Anthony Perry took the

stand and testified      regarding   the photo arrays that he had shown to Ms.

Robinson.     (T.R. 8/20/12, pp. 186-203). Detective Perry had shown Ms. Robinson

two (2) photo arrays, one in June 2011 containing Asa Thompkins (T.R. 8/20/12,

pp. 187, 189) and one in September 2011 containing Defendant Crumbley. (T.R.

8/20/12; p. 187). He did not show Ms. Robinson any photo arrays containing a

picture of Defendant Ebo.       (T.R. 8/20/12, p. 188). A photo array containing Mr.

Eba's photo was not prepared until October 2011, and that array was presented to

Ms. Robinson in November, 2011 by Detectives Hitchings and Langan.                (T.R.

8/20/12, p.    188).     Detective   Perry   emphatically   stated   that any   alleged

misidentification   by Ms. Robinson did not occur when he showed Ms. Robinson

any photo arrays.      (T.R. 8/20/12, pp. 193, 195, 196).   He clearly stated that no

                                             i1
identifications     at all were made when he presented photo arrays to her (T.R.

8/20/12, pp. 195-196), and that, had there been an identification, he would have

followed    his regimented protocol     of having her circle     or initial the person

identified. (T.R. 8/20/12, p. 193).




        Detective Steven Hitchings also provided testimony related to the issue of

a misidentification. (T.R. 8/20/12, pp. 204-207). He indicated that he showed Ms.

Robinson two (2) photo arrays on November 4, 2011, one containing a photo of

Defendant Crumbley and the other containing a photo of Defendant Ebo. (T.R.

8/20/12, p. 204). Detective Hitchings clearly indicated that Ms. Robinson made no

identifications   from either photo array and, further, that she did not indicate that

any of the photos "looked like" one of the actors. (T.R. 8/20/12, pp. 204-5, 206,

207).    In fact, he was "absolutely      sure" that no identifications   occurred on

November 4, 2011. (T.R. 8/20/12, p. 207).




        Following    the testimony    of Ms. Robinson and Detectives Perry and

Hitchings, this court found that there was conflicting evidence regarding any

alleged discovery violation and any alleged misidentification,     but stated that the

issue could be revisited later, after further development of trial testimony, if

necessary. (T.R. 8/20/12, pp. 214-215).




                                            12
        On appeal, the Defendants assert that the court erred in permitting Ms.

 Robinson to testify because the Commonwealth had not turned over police

 reports detailing a prior misidentification.          Rule 573(e} of the Pennsylvania Rules

 of Criminal      Procedure provides that, if a party has failed to comply with a

discovery request, the court may, inter elte, prohibit a party from introducing the

evidence not disclosed, or may order any other remedy that it deems just under

the circumstances.            Pa. R. Crim. P 573. The Commonwealth does not violate

Rule 573 when it fails to disclose to the defense evidence that it does not possess

and of which it is unaware. Com. v. Collins, 957 A.2d 237, 253 (Pa. 2008).




        In this case, there was no clear evidence of a discovery violation at all, let

alone one of such seriousness to justify complete exclusion of Ms. Robinson's

testimony.       There was clearly       conflicting     evidence as to whether a prior

identification    or misidentification    had even occurred.        While Ms. Robinson said

that she had pointed to someone in a photo array and said it "looked like"

Defendant Ebo, not a sing le detective who had presented a photo array to her had

any recollection      of this occurring.        Each detective was also aware of his

responsibility    to place an identification         or misidentification   in a police report.

(T.R. 8/20/12, pp. 193, 198, 205).            None of the police reports indicate any

identification    occurred.    (T.R. 8/20/12 p. 79; Ex. A, C). This court was presented

with no evidence, facts or questioning from which it could conclude that any of

the detectives testifying       during pre-trial motions or who were involved in the



                                                13
 presentation of photo arrays to Ms. Robinson had lied, hid information or were in

 any way negligent or lacking in their duties.




       In failing to find that an identification    or misidentification occurred, this

court is not indicating that it in any way disbelieved Ms. Robinson's testimony.

On the contrary, Ms. Robinson was a tremendously compelling witness, who

clearly became involved in this case against her best interests and all of the

advice of her family and friends.        It was obvious that she was terrified as she

testified during the pre-trial motion proceeding, and again when she gave her trial

testimony.     Ms. Robinson shook and trembled throughout the entirety of her

testimony.     As to the misidentification,   it is possible that she indicated to police

that someone else "looked like" Mr. Ebo. It is also possible that she remembers

thinking    that someone looked like Mr. Ebo, but did not actually verbalize that

thought     to the detectives.    Ms. Robinson even indicated at one point in her

testimony that she did not tell the officers when she picked out the wrong person,

with her answer being somewhat ambiguous as to whether she told the officers

that she had picked someone or whether she told the officers that it was the

wrong person. (T.R. 8/20/12, p. 67).          It is also possible that she mentioned

someone looking like Defendant Ebo to the detectives, but was so vague about it

that the detectives did not consider it to be an "identification" as they understand

that word. No matter what occurred at the time, there was no clear evidence of a

discovery    violation having occurred, and, therefore, this court did not err in

failin.g to exclude evidence or testimony in order to cure a non-existent violation.

                                              14
    B. Alleged Error Regarding Tainted Identification Given by Saday Robinson


          Defendant Crumbley's      second allegation of error, and Defendant Eba's

third allegation of error, is that this court erred in permitting Saday Robinson to

testify    because her identification      was the product of taint and bias.       More

specifically, the Defendants assert that her identification of them on July 24, 2012

resulted from taint, bias and influence from the media exposure related to this

case, from      information     provided   to her by neighbors or friends, and from

comments made by the police to her prior to that identification.




          Questions regarding the admission and exclusion of evidence are within

the sound discretion of the trial court and will not be reversed on appeal absent

an abuse of discretion.       Com. v. Kendricks, 30 A.3d 499, 503 (Pa. Super. 2011). An

abuse of discretion may not be found merely because an appellate court might

have reached a different conclusion, but requires a showing that the trial court's

conclusion was the result of manifest unreasonableness, or partiality, prejudice,

bias or ill-will, or such lack of support as to be clearly erroneous.            Com. v.

Brougher, 978 A.2d 373, 376 (Pa. Super. 2009).




      A photographic identification        is unduly suggestive if, under the totality of

the circumstances, the identification      procedure creates a substantial likelihood of


                                              15
 misidentification.    Com. v. DeJesus, 860 A.2d 102, 112 (Pa. 2004).            Photographs

 used in photo array line-ups are not unduly suggestive if the suspect's picture

 does not stand out more than those of the others, and the people depicted in the

 array all exhibit similar facial characteristics. Com. v. Fisher, 769 A.2d 1116, 1126

 (Pa. 2001 ). The photographs in the array should all be the same size and should

be shot against similar backgrounds.            Kendricks, supra, at 504. When an out-of-

court identification     is alleged to be tainted, an in-court identification may still

stand if, again considering the totality of the circumstances, the identification had

an   orig in sufficiently     distinguishable        to    be   purged of the primary     taint.

Kendricks, supra, at 506. The factors a court should consider in determining

whether     there was an independent            basis for identification     include:   (1) the

opportunity      of the witness to view the criminal at the time of the crime; (2) the

witness's degree of attention; (3) the accuracy of the witness's prior description

of the criminal; (4) the level of certainty demonstrated by the witness during the

confrontation; and (5) the length of time between the crime and the confrontation.

Com. v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996).




       Before Ms. Robinson testified in front of the jury at trial, this court heard

lengthy    testimony     by   her   regarding        the    circumstances   surrounding    her

identification   of the Defendants, including her interviews by police, her exposure

to media coverage of the case prior to her July 2012 identification                     of the

Defendants, and information that she may have heard in the community regarding

this murder. She was subjected to extensive cross-examination on these issues

                                                16
  by the attorneys for both Defendants.                This court ultimately ruled that Ms.

  Robinson       was permitted to testify        and that she was permitted to provide

 testimony       regarding her July 2012 identification       of the Defendants.   She was

 further permitted to make an in-court identification of the Defendants.




            The Defendants assert that several factors tainted the identification of the

 Defendants        by Ms.      Robinson,   including    media exposure, information   from

 neighbors       identifying   the alleged shooters and improper comments from the

· police.     In terms of media exposure, it is true that there was media coverage of

 this   case, which included         televised   and printed photos of the Defendants

 following their arrest, and there may have been media coverage of Mr. Crumbley

 as a result of the shooting in which he was a victim in early June 2011.               Ms.

 Robinson denied seeing any such coverage repeatedly during her testimony

 regarding the pre-trial motion in limine.




        Ms. Robinson moved from Allegheny County across the country in mid-

October 2011. (T.R. 8/20/12, pp. 41, 68). Aside from a brief return to Pittsburgh in

 November 2011 for the funeral of her grandmother, she did not return to the area

until July 2012, when· detectives asked her to return to make an identification of

the shooters. (T.R. 8/20/12, p. 42). Ms. Robinson testified that she saw no media

coverage, pictures or video of the Defendants either before she left the area or

after. (T.R. 8/20/12, p. 42). She specifically indicated that she saw no photos of


                                                 17
 Defendant Crumbley prior to being shown the first photo array in September

 2011. (T.R. 8/20/12, pp. 64, 68). She also denied seeing any media coverage from

the time of the shooting until being contacted by telephone by detectives in late

June, early July, 2012. (T.R. 8/20/12, pp. 70-71 ). She advised the detectives during

that phone contact that she had seen no media coverage ragarding the case. (T.R.

8/20/12, pp. 158-159). She also indicated that she did not have a computer until

she started school, which did not occur until after October 2011, when she left

Pennsylvania. (T.R. 8/20/12, pp. 157-158). The credible testimony in the case was

that Ms. Robinson had seen no media coverage related to the Defendants prior to

her identification   of them in July 2012 as the shooters.        It should be noted that

Ms. Robinson testified consistently     to this lack of exposure to media coverage

during her trial testimony.   (T.R. 8/20/12, pp. 624, 626-628).




      During her pre-trial motion testimony, Ms. Robinson also addressed the

issue of whether her identifications        were the product of information         from

community members.        On the night of the murder, a neighbor indicated to Ms.

Robinson that "Mo" was the shooter. (T.R.         8/20/12, pp. 42-43). Later, a friend

named Ace told her that "Mat-Mat" was responsible. (T.R. 8/20/12, p. 58). Ms.

Robinson was clear that: she did not know Defendant Ebo to be called "Mo" prior

to the shooting (T.R. 8/20/12, pp. 42-43); she did not know anyone named "Mo"

prior to the shooting      (T.R. 8/20/12, p. 169); she never learned Defendant

Crumbley's name (T.R. 8/20/12, p. 68); she did not know Defendant Eb o's name

when she saw him at the apartment complex (T.R. 8/20/12, pp. 169-170); she did

                                           18
not know anyone named "Mat-Mat" (T.R. 8/20/12, p. 171 ); she never found out who

"Mat-Mat" was (T.R. 8/20/12, p. 71 ); and she did not know anybody named "Mo" or

"Mat-Mat" when she picked out Defendant Eba's photo. (T.R. 8/20/12, pp. 178-179).

Ms. Robinson was very clear that she selected the Defendants' photos from the

photo arrays because she saw them shoot Mr. Mattox. (T.R. 8/20/12, pp. 44, 178-

179).     Again, the credible testimony         did not support that Ms. Robinson's

identification was in any way tainted, biased or even influenced by the comments

made by her neighbor and friend.




        Lastly, the issue of whether police comments had tainted Ms. Robinson's

identification   was explored.    Ms. Robinson was contacted in late June or early

July by detectives who asked her to return to Pittsburgh to look at photo arrays.

At the time that she was contacted, she was told that two gentlemen had been

arrested (T.R. 8/20/12, pp. 182, 183) and that the detectives thought that these

men were responsible for the murder of Todd Mattox. (T.R. 8/20/12, pp. 174-175).

At no point did the detectives tell her the names of who they thought was

responsible for the shooting. (T.R. 8/20/12, p. 175). The detectives also did not

suggest who they thought was responsible for the murder when they showed Ms.

Robinson the photo arrays. (T.R. 8/20/12, p. 175). Ms. Robinson did have an

understanding that photos of the responsible people were contained in the photo

arrays that she was shown, but no detective told her that. (T.R. 8/20/12, pp. 183-

185).   Additionally,   she was unaware that a trial was scheduled to begin at the

point when the police contacted her in July, 2012. (T.R. 8/20/12, p. 183).     The

                                           19
 credible testimony eliminated from further consideration this issue of possible

taint from   police comments     in the identification   of the Defendants by Ms.

 Robinson at the photo array in July, 2012.




       Even though this court does not believe that there was any taint, bias or

suggestion   in Ms. Robinson's identifications,    the court will note that there are

strong independent bases supporting Ms. Robinson's identifications here. It has

never been disputed that Ms. Robinson's vantage point from her apartment

window gave her a clear view of Todd Mattox's murder.              Her window was

approximately 8-10 feet from the front door of the building and 70-80 feet from the

parking lot. (T.R. 8/20/12, pp. 283, 1179; Ex. 28). According to Detective Perry,

Ms. Robinso'n had the best vantage point to see the events that night.          (T.R.

8/20/12, p. 377). There were no obstructions      of her view of the parking lot from

her window. (T.R. 8/20/12, p. 167). The Defendants were only ten (10) feet away

from her during the incident, and it occurred while it was still light outside. (T.R.

8/20/12, pp. 168-169). Additionally,   she indicated that the entire incident lasted

ten (10) minutes, that she watched the entire incident, (T.R. 8/20/12, p, 178), and

she had seen both Defendants in her apartment building prior to the shooting,

(T.R. 8/20/12, pp. 44, 177-178), making them familiar to her at the time of the

shooting.




                                         20
       What Ms. Robinson witnessed was a brutal, unprovoked shooting of a man

 begging for his life, and then the execution of a wounded, fallen man. Images

 from such violent events tend to remain imprinted in one's mind, especially the

faces of the perpetrators of such a horrific event. Ms. Robinson indicated this

herself during her trial testimony, stating that the faces of the Defendants were

"stuck in her head." (T.R. 8/20/12, p. 547). While not exceptionally descriptive, Ms.

Robinson did provide relatively accurate descriptions of the two men involved in

this shooting, including skin tone, relative size and clothing.    (T.R. 8/20/12, pp.

413, 590-593, 1166-1170). Even if her identification was in some way tainted by

media coverage or comments from nelqhbors, friends or police, which this court

strongly believes is not the case, Ms. Robinson certainly had independent bases

upon which to make her July, 2012 identifications.




       Although defense counsel focused on Ms. Robinson's failure to select

either Defendant from previous photo array lineups as strong evidence that her

July, 2012 identification   must have been the product of taint or bias, this court

instead focused on Ms. Robinson's understandable fear to be a witness in this

case. Ms. Robinson was immediately interviewed after the shooting and made

herself available for questioning.   (T.R. 8/20/12, p. 540). However, even from this

beginning interaction with the police, she was afraid, telling the police officers of

her fear on the night of the shooting and inviting them into her apartment so that

she would not be seen talking with them. (T.R. 8/20/12, p. 53). As was mentioned

earlier, Ms. Robinson shook through the entirety of her testimony, both during

                                          21
the pre-trial proceedings and at trial.   Her entire demeanor reflected her fear of

 being involved in this case.




       Ms. Robinson also certainly verbalized her fear during her trial testimony,

indicating that she did not want involved in this case because of the culture in her

community that perpetuated the phrase "snitches get stitches" (T.R. 8/20/12, pp.

535-536), a sentiment echoed by another witness to the shooting, John Gard one.

(T.R. 8/20/12, pp. 493-494). Her fear throughout her involvement in the case was

clear through her actions: by her waiting until her neighbors left before she talked

to the police (T.R. 8/20/12, p. 535); by her taking the police into her apartment so

no one would see her talking to them (T.R. 8/20/12, p. 53); by only agreeing to

meet detectives elsewhere for subsequent meetings so that no one would see her

talking to them (T.R. 8/20/12, p. 583); by her testimony that she deliberately failed

to identify the Defendants in photo arrays even though she was sure that they

were there (T.R. 8/20/12, p. 552); by the fact that she told Detective Perry that she

moved because she was fearful (T.R. 8/20/12, p. 381); and by the fact that she

finally identified the Defendants only after moving across the country and being

informed that suspects were in custody.        (T.R. 8/20/12, p. 550). Ms. Robinson's

own family warned her that she should not become involved in this case for fear

that something would happen to her if she did. (T.R. 8/20/12, p. 548).




                                          22
    This court does not believe that prior failures to identify the Defendants in any

way support a contention that the identifications in July, 2012 were the result of

taint, bias or suggestion.        Rather, the prior failures to identify the Defendants

were the product of a fear so intense that Ms. Robinson exhibited physical

manltestatlons    of that fear over fifteen (15) months atter the incident that she

witnessed. This court permitted Ms. Robinson to testify at trial regarding her

eyewitness identification of the Defendants, finding that there was no media taint

and no taint from community or police sources. There was an independent basis

for her identification.     (T.R. 8/20/12, pp. 214-215). This court's ruling in this regard

is well-supported by the record and should be upheld.




   C. Alleged Error Regarding Admission of Evidence of June 2, 2011 Shooting

       Defendant Crumbley's         third   allegation   of error, and Defendant Ebo's

second, is that this court erred in admitting testimony regarding the June 2, 2011

shooting   in which Defendant Crumbley             was a victim. More specifically,    the

Defendants assert that this evidence was improperly admitted under Pa. Rule of

Evidence 404(b)(2), that this court erred in not granting the Defendants' Motion in

Limine regarding the evidence and that the court erred in not providing a limiting

instruction during trial.




      There were two (2) arguments held on the issue of the admissibility of the

June 2, 2011 shooting. The first took place on July 27, 2012, and the court ruled,

                                              23
after argument, that the subsequent shooting involving Defendant Crumbley

would be admissible as to the issue of identity only, i.e. to show that, because' the

same gun, a .40 caliber, was used in a shooting that occurred two (2) weeks after

Mr. Mattox's shooting where Defendant Crumbley was present, it is circumstantial

evidence that he was present at the Todd Mattox shooting where shell casings

from the same gun were found. (T.R. 7/27/12, pp. 58-59).




       On August 21, 2012, a second argument on the issue of the June 2, 2011

shooting took place. In this argument, the court entertained Defendants' Motion

in Umine re~arding a Ruger handgun found at the scene of the June 2, 2011

shooting in Swissvale. A Ruger handgun was found outside of the vehicle where

the shooting had occurred, and Defendant Crumbley's blood was found on it.

(T.R. 8/20/12, p. 10). Defendant Crumbley argued that the evidence of the Ruger

was irrelevant to the May 6, 2011 shooting of Todd Mattox and was prejudicial to

the Defendants in that all that it showed was that Defendant Crumbley must have

had a gun in his hand in the Swissvale shooting so he must also have had a gun

at the Todd Mattox shooting.      (T.R. 8/20/12, pp. 11, 17).   The Commonwealth

argued that photos of the Ruger showed blood on the side of the gun and the

barrel, which was identified as Defendant Crumbley's. (T.R. 8/20/12, p. 12). It was

the intention of the prosecution to argue that Defendant Crumbley had the .40

caliber gun at the time of the Swissvale shooting, providing it with circumstantial

evidence that Defendant Crumbley must have had that same gun two (2) weeks

earlier when Todd Mattox was killed.   (T.R. 8/20/12, p. 14). This court, with some

                                         24
 misgiving, ruled that evidence regarding the Ruger would be permitted, but would

be limited to the issue of identity only. (T.R. 8/20/12, p. 20).




        On August 30, 2012, counsel and this court discussed the closing jury

instructions,    including a court suggested limiting instruction based on Standard

Jury Instruction     3.08 -- Evidence of Other Offenses as Proof of Guilt.       (T.R.

8/20/12, p. 1317). Defendant Crumbley's attorney, Ms. Wendy Williams, stated that

she did not want a limiting instruction regarding the June 2, 2011 shooting. (T.R.

8/20/12, p. 1318). This court read its proposed limiting instruction to all counsel:


        I [sic] have heard evidence tending to prove that the defendant Thaddeus
        Crumbley was involved in a shooting incident for which he is not on trial.
        I'm speaking of testimony to the effect that Mr. Crumbley was involved in a
       shooting incident in Swissvale on June 2, 2011. This evidence is before
       you for a limited purpose, that is for the identity of Mr. Crumbley as a
       participant in the May 16, 2011 incident at Leechburg Gardens. This
       evidence must not be considered by you in any way other than for the
       purpose I just stated. You must not regard this evidence as showing that
       the defendant, Mr. Crumbley, is a person of bad character or criminal
       tendencies from which you might be inclined to infer guilt. (T.R. 8/20/12,
       pp. 1318-1319).
The Commonwealth         did not object to the limiting instruction,   but Defendant

Crumbley's attorney did, indicating that she would like time to think about it

overnight,     and would advise the court the next day prior to the closing

instructions    being read to the jury whether she wanted the instruction.       (T.R.

8/20/12, p. 1321).




                                           25
         The following day, during Defendant Crumbley's closing argument, his

 attorney,     Ms. Williams, addressed the June 2, 2011 shooting at length and

 reiterated the defense position that he was nothing more than a victim in that

shooting.       (T.R. 8/20/12, pp. 1363-1368). This court then again discussed its

proposed limiting instruction with counsel outside the presence of the jury. (T.R.

8/20/12, p. 1411 ). Counsel for both Defendants agreed that they did not want the

limiting instruction read to the jury. (T.R. 8/20/12, p. 1411). As such, this court did

not give a limiting instruction in its closing charge to the jury.




       A trial court's decision to grant or deny a Motion in limine is subject to an

evidentiary abuse of discretion standard of review. Com. v. Reese, 31 A.3d 708,

715 (Pa. Super. 2011 ). Admission of evidence is within the sound discretion of

the trial court and will be reversed only upon a showing that the trial court clearly

abused       its discretion.   Com. v. Drumheller, 808 A.2d 893, 904 (Pa. 2002).

Admissibility     depends on relevance and probative value. IQ. Evidence is relevant

if it tends to establish a material fact in the case, tends to make a fact at issue

more or less probable, or supports         a reasonable inference or presumption

regarding a material fact. .Lg.




      Evidence of other crimes may be admitted for other relevant purposes,

such as "proof of motive, opportunity,          intent, preparation, plan, knowledge,

identity or absence of mistake or accident," though such evidence should only be


                                           26
 admitted     if the probative value of the evidence outweighs its potential for

 prejudice.    Pa. R.E. 404(b)(2)-(3), Com. v. Tedford, 960 A.2d 1, 37 (Pa. 2008). The

 particular prejudice that Rule 404(b)(3) seeks to prevent is the misuse of other-

 offense evidence. Specifically, the rule is designed to generally eliminate other-

 offense evidence, unless admissible for some specific purpose as indicated

 above, so that jurors do not convict a defendant simply because they perceive

 that the defendant has a bad character or a propensity to commit crimes. Reese,

 supra, at 723. Evidence that the defendant possessed a device or instrument that

 could have been the murder weapon is admissible. See Com. v. Miller, 897 A.2d

 1281 (Pa. Super. 2006). Evidence will not be prohibited merely because it is

. harmful to the defendant.    Com. v. Dillon, 925 A.2d 131, 141 (Pa. 2007). When

 other-offense evidence is admitted, the Defendant is entitled to request a jury

 instruction explaining to the jury that the specific evidence was only admitted for

 a limited purpose. Com. v. Billa, 555 A.2d 835, 841-842 (Pa. 1989). The trial court

 is permitted to use its own form of expression to explain difficult legal concepts

to the jury. Com. v. Spotz, 759 A.2d 1280, 1287 (Pa. 2000).




       Here, the evidence regarding the shooting         on June 2, 2011 and the

presence      of the Ruger handgun      were properly admitted.      While certainly

prejudicial to the Defendants, as all evidence tends to be, the evidence of the

subsequent     bad acts was relevant to make a fact in the case, i.e., whether

Defendant Crumbley was present at the scene of the Todd Mattox murder two (2)

weeks earlier, more or less probable.     The evidence also was relevant to support

                                           27
 the inference that Defendant Crumbley was in possession of the .40 caliber gun

 used in Mr. Mattox's murder. Clearly, the evidence of the June        2nd   shooting is not

 dispositive     of these issues, but there is no requirement in the law that the

 evidence of other bad acts be dispositive on some disputed issue. The jurors

had the        opportunity   to hear. effective    cross-examination    on the evidence

presented, as well as hear the informed arguments of all counsel on the relevance

of the subsequent shooting.




         The fact that the jurors found the Defendants guilty of all charges does not

mean that they misused the evidence of the June            2nd   shooting.    Certainly, the

strength and compelling nature of the eyewitness testimony from the time of Mr.

Mattox's murder led more to the verdict than evidence of this subsequent event.

This court committed no error in the admission of this evidence.




   D. Error Reaarding "Angel     of Death" Comment in Commonwealth'sclosing
         Defendant Crumbley's fourth allegation ~f error is that this court failed to

strike   the "Angel of Death" comment             made by Assistant     District Attorney

Stadtmiller in his closing, and that this court failed to give a curative instruction

to the jury regarding this same comment. On appeal, Defendant Crumbley also

asserts that he was denied effective assistance of counsel when his attorney

failed to object to the comment or request a curative instruction.



                                            28
       In his closing on behalf of the Commonwealth, Assistant District Attorney

 Steven Stadtmiller made the following statement: "She (Saday Robinson) wasn't

afraid to say that and describe him (Matthew Ebo), but that angel of death over

there, Thaddeus Crumbley, with his hood up, that has what it takes to walk up to

a man, stand over him and blow his brains out, she wasn't as hot on identifying."

(T.R. 8/20/12, p. 1437).   No objection was made by either defense attorney at the

time that the comment was made or immediately following the Commonwealth's

closing. In fact, this issue was not raised at all until Defendant Crumbley's Post-

Trial Motion.




       A prosecutor must have reasonable latitude to present his case to the jury,

and he must be free to present his arguments with "logical force and vigor." Com.

v. D'Amato, 526 A.2d 300, 309 (Pa. 1987).      Comments by a prosecutor do not

constitute   reversible error 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 that they could not weigh the evidence objectively and

render a true verdict." & The prejudicial effect of the prosecutor's remarks must

be evaluated in the context in which they occurred. Id.    When no objection has

been made to the allegedly improper comments, the trial court has been deprived

of its opportunity   to rule on the propriety of the comments and then render

cautionary instructions to cure any potentially prejudicial impact. ~ at 312. The



                                         29
 reviewing   court      must assess counsel's           performance in failing to make an

objection    or request other relief by examining the effectiveness of counsel's

representation.       Id.     Specifically,    the trial court should examine whether the

objection or. request would have had arguable merit, and, if so, whether counsel

had any reasonable basis to not make the objection, which would further his

client's interests.     kL.   The court should also consider whether the omission by

counsel could have prejudiced the defendant. Id.




       It must first be noted that Assistant District Attorney Stadtmiller's comment

was a brief, isolated statement.              The language quoted above was the only such

reference to the "Angel of Death" or anything that could be construed to be

Biblical in nature made during the Commonwealth's closing or, as a matter of

fact, at any time during the trial. Assistant District Attorney Stadtmiller certainly

did not attach this phrase to Defendant Crumbley's name at each mention of him

or refer to Defendant Crumbley by this phrase instead of using his name. Given

the context of the single use of the phrase, this court does not deem its use in

this instance to be improper, inflammatory or unduly prejudicial.           This court did

not err by failing to sua sponte give a curative instruction.        This court was never

asked to give such an instruction, and so did not do so. Throughout the closings

by the Defendants and the Commonwealth,                   numerous sidebars were held to

address statements made by counsel (T.R. 8/20/12, pp. 1369-1370, 1386-1388,

1394-1395), and, at one point, this court gave a curative instruction to address an

improper comment by Defendant Crumbley's counsel. (T.R.                  8/20/12, p. 1396).

                                                   30
-,
 )




     Counsel for all parties were certainly aware that this court would hear them on

     any objection and was willing to provide curative instructions to the jury.




            Further, this court does not believe that Ms. Wendy Williams, Defendant

     Crumbley's counsel, was in any way ineffective for failing to object or request a

     curative instruction.   Had Ms. Williams did as Defendant Crumbley now suggests,

     she would have been calling attention to a phrase that most people in the

     courtroom never registered in their minds, given the brevity of the mention. Had

     she objected and requested a curative instruction, this court would have been

     forced to repeat the phrase in order to tell the jury to disregard it. This would

     have done nothing more than increase the impact of the comment and lodge it

     more firmly in the jurors'   minds.   Counsel for Defendant Crumbley is very a

     experienced and skilled trial lawyer, and she is most certainly not ineffective in

     this court's eyes for allowing a comment to pass essentially unnoticed and

     unregarded, as opposed to drawing significantly more attention to it. It must also

     be noted that this court, in its opening comments and closing instructions to the

     jury, advised the members of the jury on several occasions that the arguments of

     counsel are not evidence. (T.H. 8/20/12, pp. 101-102, 1455).       The jurors were

     certainly aware that Mr. Stadtmiller's    singular comment regarding Defendant

     Crumbley was no more than passionate, and perhaps overstated, argument.




                                              31
       This court did not err in regard to this single comment made by the

Assistant     District Attorney.   This court neither struck the comment nor gave a

curative    instruction,   because neither was requested.              Defendant Crumbley's

attorney was not ineffective.        She made a judgment call that was in the best

interest of her client to not call attention to the phrase. This court should be

upheld in this regard.




   E. Alleged Discovery Violations regarding "Jeimouse" Witnesses


       Defendant Crumbley's fifth allegation of error is that this court erred in

permitting jailhouse informants to testify without the Commonwealth delivering

timely discovery in violation of Pa. R. Crim. Proc. 573. This allegation of error

pertains    specifically   to   discovery   involving       "[ailhouse" witnesses·    Richard

Carpenter and Thomas Julian Brown.




      Defendant Crumbley filed a discovery motion on June 8, 2012, which was

argued before this court on July 27, 2012.                 During this motion, Defendant

Crumbley      requested    additional   information        regarding    Richard   Carpenter's

involvement     in the witness protection       program.      At that time, Detective Perry

answered defense counsel's         questions        regarding the details of this program.

(T.R. 7/27/12, pp. 30-32).      This appears to have satisfied Defendant Crumbley's

discovery     request regarding     the witness        protection   program as no further

requests were made regarding this subject.

                                               32
       Discovery issues were raised again by Defendant Crumbley on the morning

of   August 22, 2012, prior to the beginning of the jury trial.     Defense counsel

requested additional discovery on Thomas Julian Brown (T.R. 8/20/12, pp. 84-87,

88-89) and Richard Carpenter (T.R. 8/20/12, pp. 87-88). This court advised the

Commonwealth that, if this discovery was not provided to the Defendants, these

witnesses would not be permitted to testify.     (T.R. 8/20/12, pp. 88-89). Later that

same afternoon, on August 22, 2012, Defendant Crumbley again raised issues

regarding discovery requests not being provided to the defense, specifically in

relation to Mr. Brown's testimony in other cases on behalf of the Commonwealth.

(T.R. 8/20/12, pp. 216-219).    This court advised the Commonwealth that this

discovery   would have to be provided to the Defendants prior to Mr. Brown

testifying at trial. (T.R. 8/20/12, p. 219). Counsel received the requested discovery

the following day, on August 23, 2012. (T.R. 8/20/12, p. 326).




      Mr. Brown took the witness stand and began his testimony on August 24, ·

2012. On August 28, 2012, after Mr. Brown's first day of testimony, Defendant

Crumbley requested additional discovery related to Mr. Brown, including records

from his prior criminal cases and detainers related to those cases. (T.R. 8/20/12,

pp. 753-755). The Commonwealth        indicated that it did not have these records,

and this court instructed the Commonwealth to provide whatever it had related to

Defendant Crumbley's request to the Defendants. (T.R. 8/20/12, p. 754).     It should


                                          33
 be noted that Mr. Carpenter ultimately failed to appear for trial and did not testify.

Thus, any allegations of error to exclude his testimony are moot.




       Despite these alleged discovery             issues, defense counsel conducted a

thorough     cross-examination        of a variety      of witnesses    regarding   Richard

Carpenter and Thomas Brown.              For example, Detective Perry was questioned

extensively regarding money paid to Richard Carpenter as part of the witness

protection    program.      (T.R.     8/20/12, pp.     1026-1044, 1037-1040, 1041-1043).

Assistant District Attorney Mark Tranqullll, who was called as a Commonwealth

witness regarding Richard Carpenter's detainer on a Judge Cashman case, was

also subjected     to a thorough       cross-examination      by defense counsel.      (T.R.

8/20/12, pp. 1117-1132, 1142-1148). Mr. Tranquilli, now Judge Tranquilli, was also

questioned    at length regarding Thomas Brown's involvement as a witness in

other criminal cases. (T.R. 8/20/12, pp. 1132-1142). Defendant Crumbley called as

a witness     Assistant    District    Attorney      Christopher   Stone to discuss     Mr.

Carpenter's sentence on the Judge Cashman case (T.R. 8/20/12, pp. 1219-1236),

and he also called Thomas Brown's probation officer, Robert Tutko, who provided

detailed information on his dealings with Mr. Brown, including the detainers that

he had and the terms of his probation.       (T.R. 8/20/12, pp. 1187-1216).




      As     was   previously    stated,   questions      regarding    the admission   and

exclusion of evidence are within the sound discretion of the trial court and will

                                              34
not be reversed on appeal absent an abuse of discretion.        Kendricks, supra, at

503. An abuse of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a showing that the trial

court's conclusion   was the result of manifest unreasonableness, or partiality,

prejudice, bias or ill-will, or such lack of support as to be clearly erroneous.

Brougher, supra at 376. Rule 573(e) provides that, if a party has failed to comply

with a discovery     request, the court    may, inter alia, prohibit   a party from

introducing   the evidence not disclosed, or may order any other remedy that it

deems just under the circumstances.        Pa. R. Crim. P 573. The Commonwealth

does not violate Rule 573 when it fails to disclose to the defense evidence that it

does not possess and of which it is unaware. Collins, supra, at 253.




      Furthermore, a discovery violation does not automatically warrant relief in

the form of a new trial. Com. v. Jones, 668 A.2d 491, 513 (Pa. 1995). A defendant

seeking relief from a discovery violation must demonstrate prejudice.       Com. v.

Hood, 872 A.2d 175, 181 (Pa. Super. 2005). Courts have held that discovery turned

over the day prior to trial is nonetheless     admissible if the defendant is not

otherwise prejudiced by the delay. See Jones, supra; Co_m. v. Boring, 684 A. 2d

561 (Pa. Super. 1996); Com. v. Gordon, 528 A.2d 631 (Pa. Super. 1987).




      Here, the appropriate   remedy for any discovery violations        was not to

exclude the testimony    of either witness.    All information possessed by the


                                          35
 Commonwealth       was turned over to the Defendants, albeit late.          The defense

 attorneys    never complained     that they had insufficient      time to review the

 information, nor did they request additional time to do so. This court certainly

would have granted any such requests.            The attorneys for the Defendants were

able to thoroughly      question   all witnesses      after receiving this    information.

Additionally,   given the lengthy and thorough cross-examlnatlons            of Mr. Brown

and witnesses having knowledge of Mr. Brown, as well as the ability to call

witnesses with knowledge of Mr. Brown on behalf of the Defendants, any delay in

turning over discovery certainly did not hamper or adversely impact the defense

in this case.       Not every discovery      violation justifies exclusion     of witness

testimony.      This court   ensured    that discovery     was turned   over, and the

Defendants ability to effectively cross-examine and present witness testimony

was not impeded by any delays.           This court committed no error in failing to

exclude Mr. Brown's testimony.




   F. Alleged Error for Failure to Give a Missing Witness Charge


         Defendant Crumbley's sixth allegation of error is that this court erred in

failing to charge the jury on the missing witness instruction           with regard to

Richard Carpenter. Defendant Crumbley also asserts that, in its closing charge to

the jury, this court committed         error by mentioning     "testimony"    by Richard

Carpenter even though Mr. Carpenter never appeared and never took the witness

stand.



                                            36
       The missing witness adverse inference rule provides that, when a potential

witness is available to only one of the parties to a trial, and it appears that the

witness has special information material to the issues at trial, and the witness's

testimony would not merely be cumulative, if such party does not produce the

testimony     of this witness, the jury may draw an inference that the witness's

testimony     would have been unfavorable           to the party having control of the

witness. Com. v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).




       The missing witness instruction        should not be given every time that a

witness     does not testify.     In fact,        our appellate   courts   have set forth

circumstances under which the missing witness instruction should not be given,

including circumstances where: (1) the witness is so hostile or prejudiced against

the party expected to call him that there is a small possibility              of obtaining

unbiased truth; (2) the testimony of such a witness is comparatively unimportant,

cumulative,    or inferior to that already presented; (3) the uncalled witness is

equally available to both parties; (4) there is a satisfactory explanation as to why

the party failed to call such a witness; (5) the witness is not available or not within

the control of the party against whom the negative inference is desired; and (6)

the testimony    of the uncalled witness is not within the scope of the natural

interest of the party failing to produce him. Com. v. Evans, 664 A.2d 570, 573-574

(Pa. Super. 1995). The relevant inquiry in reviewing a trial court's failure to give a



                                             37
jury instruction    is whether such charge was warranted by the evidence in the

case.      Boyle, supra, at 639. If the instruction     proffered is inapplicable and

improper, the court should not charge on it. lg.




         In the case at issue, Detective Perry provided testimony during cross-

examination by Defendant Crumbley's attorney that Richard Carpenter positively

identified the Defendants in photo arrays on December 5, 2011. (T.R. 8/20/12, pp.

364-365).      This identification   led to the arrest of Defendant Crumbley on

December 7, 2011. (T.R. 8/20/12, p. 366). Carpenter was in jail when he became a

witness in this case, and he is identified as Witness #1 in the Affidavit of Probable

Cause.      (T.R. 8/20/12, pp. 367, 373).   Mr. Carpenter never appeared to testify

during the trial, despite being served with a subpoena. (T.R. 8/20/12, pp. 324-325).

In fact, a bench warrant was issued due to his failure to appear. (T.R. 8/20/12, p.

325). Although he was referenced many times throughout the trial by all parties,

he was unable to be located by the Commonwealth and would not answer phone

calls to determine his whereabouts.     (T.R. 8/20/12, p. 325).




         Before discussion of the closing charge, Ms. Wil Iiams requested, on behalf

of Defendant Crumbley, that Standard Criminal Jury Charge 3.21A be given by the

court.    As proposed by Defendant Crumbley, the missing witness instruction

wou Id have read as follows:




                                            38
        3.21A (Crim)        FAILURE TO CALL POTENTIAL WITNESS
               1.    There is a question about what weight, if any, you should give
               to the failure of the Commonwealth to call Richard Carpenter as a
               witness.

               2.    If three factors are present, and there is no satisfactory
               explanation for a party's failure to call a potential witness, the jury is
               allowed to draw a common-sense inference that his testimony would
               have been unfavorable to that party. The three necessary factors are:
               First, the person is available to that party only and not to the other;
               Second, it appears the person has special information material to the
               issue; and                                                 ·

               Third, the person's testimony would not be merely cumulative.
              3.    Therefore, if you find these three factors present, and there is
              no satisfactory explanation for the Commonwealth's failure to call
              Richard Carpenter to testify, you may infer, if you choose to do so,
              that his testimony       would have been unfavorable to the
              Commonwealth.




       During discussion      of the closing jury instructions,       this court advised

counsel that it would not give Standard Criminal Jury Instruction 3.21 A in regards

to Richard Carpenter, reasoning that it was not an accurate representation of the

situation   involving Mr. Carpenter.     The Commonwealth did not fail to call Mr.

Carpenter as a witness.        The Commonwealth,        rather, could not locate him

because     he failed   to comply    with   his subpoena.     (T.R.   8/20/12, p. 1310).

Additionally, this court believed that the charge, if given, would have required the

jury to speculate as to whether the criteria in the charge had been met since no

information   was provided to the jury regarding the first factor in the charge.

There was no testimony or discussion         from which the jury could find that Mr.

Carpenter was available only to the Commonwealth.          While certainly it was in the
 Commonwealth's interest to call Mr. Carpenter as a witness in its case, there was

 nothing to preclude or prohibit the defense from contacting and/or calling Mr.

 Carpenter as far as this court is aware. The situation that was presented to the

court regarding the missing witness charge was squarely addressed in Evans,

supra, and Boyle, supra.


       Additionally,    to assert the    missing   witness   instruction   against the

Commonwealth, not only must the witness be solely and only available to the

Commonwealth,      but none of the other exceptions above must apply. Com. v.

Culmer, 604 A.2d 1090, 1098 (Pa. Super. 1992). As was stated previously, there

was no evidence that Mr. Carpenter was only available as a witness to the

Commonwealth.          Even if it is the case that he was only available to the

Commonwealth, another exception applies, namely, that there is a satisfactory

explanation   as to why the Commonwealth           failed to call the witness.     The

Commonwealth was unable to call Mr. Carpenter because he failed to appear

pursuant to his subpoena, which resulted in a bench warrant being issued for his

arrest. Thus, the court did not err in refusing to charge the jury with the missing

witness instruction.




      As to the Defendant's assertion that this court referred to Mr. Carpenter's

testimony in its closing, this court read the following instruction to the jury:


      You have heard evidence that some of the witnesses- John Gardone- they
      have been convicted of crimes. John Gardone was convicted of the crime
      of theft by unlawful taking; Richard Carpenter was adjudicated delinquent
      for burglary and Thomas Julian Brown pied guilty to theft by unlawful

                                          40
         taking and has been convicted of theft by unlawful taking and burglary.
         The only purpose for which you may consider this evidence of prior
         conviction is deciding whether or not to believe all or part of the testimony
         of John Gardone, Richard Carpenter or Thomas Julian Brown. In doing so,
         you may consider the type of crime committed and how it may effect the
         likelihood that John Gardone, Richard Carpenter or Thomas Julian Brown
         have testified truthfully in this case. (T.R. 8/20/12, pp. 1470).




         Mr.   Carpenter   himself   did not testify   in this     case.   However, his

identification   of the Defendants as the shooters in this case was testified to by

Detective Perry under cross-examination          by Defendant Crumbley's        attorney.

(T.R. 8/20/12, pp. 364-367). When Detective Perry was recalled to the stand on

August     29, 2012, he was extensively         questioned   again regarding     Richard

Carpenter by both defense attorneys and the Commonwealth on re-direct.              (T.R.

8/20/12, pp. 1026-1034, 1043~1044, 1037-1040, 1041-1043).          Mr. Carpenter was also

discussed extensively by Assistant District Attorneys Mark Tranquilli and Chris

Stone, especially in regard to his criminal record.     Defense witness Rachel Bundy

also testified with regard to Richard Carpenter; stating that he could not have

witnessed the shooting.     (T.R. 8/20/12, pp. 127, 1273, 1275).




       Given all of the testimony with regard to Richard Carpenter, which included

his identification   of the Defendants, the jurors were placed in a position where

they cou Id be required to evaluate Mr. Carpenter's credibility, even though he did

not testify himself. Because of this potential issue with Mr. Carpenter's credibility

and the extensive discussion of his criminal record, this court believed it to be

most prudent to include him in the afore-mentioned charge.             If this mention of

                                           41
 "testimony" with regard to Richard Carpenter was error, it was clearly harmless

 error, as everyone involved in this matter was aware that Richard Carpenter had

 not actually testified.       The harmless error doctrine reflects the reality that the

accused is entitled to a fair trial, not a perfect trial. Reese, supra, at 719.




    G. Alleged Error with Regard to Granting a Continuance.


       Defendant Crumbley's seventh allegation of error is that he was denied his

right to a speedy trial when th is court granted the Commonwealth's request for a

postponement on June 8, 2012 due to the unavailability of several Commonwealth

witnesses.     The Defendant asserts that the Commonwealth did not show due

diligence in bringing the case to trial, and he was prejudiced because Saday

Robinson identified the Defendants subsequent to this postponement.




       The trial for the Defendants was scheduled to begin on June 7, 2012. On

June 7,      counsel     for   Defendant   Ebo, Mr.   Randall McKinney,     submitted   a

postponement, stating that he was not prepared to begin trial and had not had an

opportunity    to review all of the discovery         that he had received from the

Commonwealth.          (T.R. 6/7/12, p. 3). Counsel for Defendant Crumbley objected to

the postponement because he was prepared to proceed to trial. (T.R. 6/7/12, pp.


                                              42
3-5). The Commonwealth consented to the postponement.           (T.R. 6/7/12, p. 5). On

June 8, 2012, counsel for Defendant Ebo withdrew his request for a continuance,

prompting      the Commonwealth       to ask for a continuance because it needed

additional    time to locate three (3) essential Commonwealth witnesses.           (LR.

6/8/12, pp. 2~3). Both Defendants objected to the Commonwealth's request for a

postponement, as they indicated that they were both ready to proceed, despite

the fact that Defendant Ebo claimed that he was not ready to proceed just the day

before, and that the 180 days to bring an incarcerated defendant to trial,

mandated by Pa. R. Crim. Proc. 600, would run on June 17, 2012. (T.R. 6/8/12, p.

5).




       This court granted the postponement        due to the fact that the missing

Commonwealth witnesses were essential to the Commonwealth's presentation of

its case. This court then scheduled a new trial date, as well as set dates for jury

selection, pre-trial motions and a status conference.       (T.R. 6/8/12, p. 7).   Both

Defendants indicated that they would be filing bond motions given that the new

trial date was beyond 180 days. (T. R. 6/8/12, p. 5).




      On June 13, 2012, this court held a bail hearing. The Defendants asserted

that the Commonwealth did not exercise due diligence in locating the missing

witnesses     that necessitated   the postponement      on June 8, 2012.     Detective

Anthony      Perry of the Allegheny    County Police, homicide division,      testified


                                           43
 regarding his efforts to locate two missing Commonwealth witnesses, Saday

 Robinson and Yurri Lewis. (T.R. 6/13/12, pp. 30-38). Detective Perry stated that,

 on May 22, 2011, he had been given subpoenas for witnesses in advance of trial

 and began serving the subpoenas on May 24, 2012.          (T.R. 6/13/12, pp. 33, 35).

 Trial preparation interviews were scheduled for May 30, 2012, e.nd Detective Perry

was unable to serve the subpoenas for Ms. Robinson and Mr. Lewis by that time.

 (T.R. 6/13/12, pp. 31, 34).




         Detective Perry testified   regarding his methods for locating witnesses,

which began with checking the addresses on driver's licenses for witnesses and

speaking with neighbors.       (T.R. 6/13/12, p. 32). He also searched the Allegheny

County jail search screen and public assistance records.       (T.R. 6/13/12, pp. 31,

38).    Despite using these search methods, Detective Perry was unable to locate

the witnesses.     (T.R. 6/13/12, pp. 31, 32). With regard to Yurri Lewis, Detective

Perry also went to his address on three (3) separate occasions, but could not

locate Mr. Lewis. (T.R. 6/13/12, p. 38).   During his search for Saday Robinson, he

went to at least four (4) addresses, but cou Id not find her. (T.R. 6/13/12, pp. 31,

38). One address was abandoned and several were vacant. (T.R. 6/13/12, pp. 31,

38).    He visited many of the addresses on more than one occasion, and he left

business cards with people who might have contact with either witness. (T.R.

6/13/12, pp. 36-38). Detective Perry continued to look for both witnesses for the

entire period between May 24, 2012 and the date of the bail hearing on June 13,

2012.    (T.R. 6/13/12, pp. 32, 33-35). In fact, Detective Perry was finally able to

                                           44
 reach Ms. Robinson and speak with her on the night before this bail hearing.

 (T.R. 6/13/12, p. 33).   This court denied the Defendant's request for bond and

found that the Commonwealth had exercised due diligence in attempting to find

the Commonwealth witnesses. (T.R. 6/13/12, p. 43).




       Ru le 600 serves two equally important functions: (1) the protection of the

accused's speedy trial rights, and (2) the protection of society. Com. v. Hunt, 858

A.2d 1238 (Pa. Super. 2004).      In determining whether an accused's       right to a .

speedy trial has been violated, consideration must be given to society's right to

effective prosecution of criminal cases, both to restrain the guilty of crime and to

deter those contemplating it. Id.    However, the administrative mandate of Rule

600 was not designed to insulate the criminally           accused from good faith

prosecution delayed through no fault of the Commonwealth. 1..Q..




      An appellate court's standard of review in evaluating Rule 600 issues is

whether the trial court abused its discretion.   Com. v. McNear, 852 A.2d 401, 404

(Pa. Super. 2004). The proper scope of review in determining the propriety of the

trial court's ruling is limited to the evidence on the record of the Rule 600

evidentiary hearing and the findings of the lower court.       lg.   In reviewing the

determination of the hearing court, an appellate court must view the facts in the

light most favorable to the prevailing party.    Id. Due diligence is a fact-specific

concept that is determined on a case-by-case basis. Id. Due diligence does not


                                         45
 require   perfect vigilance    and punctilious   care, but rather a showing by the

· Commonwealth that a reasonable effort has been put forth . .Lg.




       While a mere assertion by the Commonwealth that a witness is unavailable

does not establish due diligence, the unavailability of a witness is a relevant

factor in determining whether a. continuance should be granted. Com. v. Ehredt,

401 A.2d 358, 360-361 (Pa. 1979). Mere assertions of due diligence and unproven

facts do not establish cause for an extension.       Com. v. Tyler, 555 A.2d 232, 234-

235 (Pa. Super. 1989). Rather, the Commonwealth makes a reasonable effort to

locate a witness and insure his presence at trial when the Commonwealth

demonstrates that it has used several methods to locate a witness and subpoena

him for trial. See Tyler, supra.




       In this case, Detective Perry put forth reasonable efforts to locate the

essential witnesses.    He visited the last known addresses of the witnesses on

multiple   occasions.     He     checked   the addresses    against   driver   licensing

information.   He spoke to neighbors about the witnesses' whereabouts.          He also

checked public records.        While Detective Perry perhaps could have done more,

this court found that his efforts were reasonable, and this court's findings of fact

should not be disturbed on appeal.




                                            46
    H. Allegations that the Verdict Was Against the Weight of the Evidence and

         Insufficient to Sustain a Conviction.


         The Defendants' final allegations of error are that there was insufficient

evidence to sustain the verdict and that the verdict was against the weight of the

evidence.




         The standard of review regarding claims of insufficiency of the evidence is

well-settled.    In reviewing the sufficiency of the evidence, the appellate court

must determine       whether the evidence admitted at trial, and all reasonable

inferences      drawn   therefrom,     viewed         in   the   light   most favorable   to the

Commonwealth as the verdict winner, is sufficient to prove every element of the

offense beyond a reasonable doubt. Com. v. Jones, 954 A.2d 1194 (Pa. Super.

2008).    An appellate court may not re-weigh the evidence and substitute its

judgment for that of the fact-finder. J..g. The weight of the evidence is exclusively

for the finder of fact, who is free to believe all, part or none of the evidence and to

determine the credibility of the witnesses. When evidence conflicts, it is the sole

province of the fact finder to determine credibility and to believe all, part or none

of the evidence. Com. v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). An appellate

court may only reverse the lower court's verdict if it is so contrary to the evidence

as to shock one's sense of justice. Com. v. Hunzer, 868 A.2d 498, 506 (Pa. Super.

2005). Any question of doubt is for the fact-finder unless the evidence is so weak




                                                 47
 and inconclusive that, as a matter of law, no probability of fact can be drawn from

 the combined circumstances. Com. v. Perez, 931 A.2d 703 (Pa. Super. 2007).




        There is no requirement that the Commonwealth prove a homicide charge

 by direct evidence;    indeed, in many instances, no witnesses are available to

describe    the incident which resulted in the death of the victim. Rather the

Commonwealth       may prove the homicide by circumstantial evidence.         Com. v.

Smith, 568 A.2d 600, 602 (Pa. 1989).




       Here, the jury found the Defendants guilty of all charges after hearing both

direct and circumstantial    evidence of the Defendants' involvement in .the brutal

murder of Todd Mattox. Although the Defendants attempt to argue that there was

no direct evidence implicating them in Mr. Mattox's murder, the jury clearly found

the testimony of Saday Robinson to be compelling. She was an eyewitness to the

events of May 16, 2011, and she was able to describe what she saw and heard to

the jury in great detail. (T.R. 8/20/12, 525-644).    Even though defense counsel

enqaqsd     in a lengthy cross-examination     of Ms. Robinson in an attempt to

discredit        '
            her and sully her credibility, the jury chose to believe her version of

what happened that day, which is within their province. (T. R. 8/20/12, pp. 561-637,

641-647). As this court stated earlier, Ms. Robinson was a compelling witness. It

certainly does not shock this court's conscience or sense of justice that the

jurors found her credible.   In fact, this court found her to be credible and truthful



                                          48
)




    as well. Her testimony, alone, when believed, is sufficient evidence to uphold this
)
    verdict.   It should also be noted that there were witnesses              present who

    corroborated Ms. Robinson's testimony, thereby lending it even more credibility.

    See Trial Court Opinion, II. Factual Background, p. 5.




           In addition to the testimony of Ms. Robinson, the jury heard testimony

    regarding the eyewitness identification        of Richard Carpenter. (T.R. 8/20/12, pp.

    365-366). The jurors also listened to the testimony of Mr. Thomas Brown, another

    fearfu I witness   (T.R. 8/20/12, pp. 673-676), who heard Defendant Crumbley

    essentially admitting to the murder of Todd Mattox (T.R. 8/20/12, pp. 698-699), and

    who identified Defendant Ebo as "Mat-Mat." (T.R. 8/20/12, p. 748). They heard the

    testimony of Anthony Snyder, who identified "Mat-Mat" as Defendant Ebo (T.R.

    8/20/12, p. 657), and who had previously told detectives that the victim had told

    him that he was going to see Mat-Mat just prior to the shooting. (T.R. 8/20/12, pp.

    657-661). The jurors heard Ms. Robinson relate that she had been told by "Ace"

    that Mat-Mat was involved in the shootings. (T.R. 8/20/12, pp. 601-603). The jurors

    also had evidence of the presence of the murder weapon at the scene of a

    shooting involving Defendant Crumbley two (2) weeks later. (T.R. 8/20/12, 885,

    927-928, 1011, 1017).




          While it is true that no forensic evidence linked the Defendants to this

    murder, that fact does not mean that the evidence presented at trial was


                                              49
 the scene of a shooting involving Defendant Crumbley two (2) weeks later. (T.R.

 8/20/12, 885, 927-928, 1011, 1017).




          While it is true that no forensic evidence linked the Defendants to this murder,

that fact does not mean that the evidence presented at trial was insufficient to sustain

the convictions here. It is often the case that forensic evidence is lacking at the scene

of a crime. Here the jury had the powerful and compelling testimony of a frightened

eyewitness, as well as circumstantial evidence supporting that testimony. The jury's

verdict was well-supported by the evidence in the case, and it should be upheld on

appeal.




                                       IV.     Conclusion


   This court committed no errors during this trial. Its rulings should be upheld. The

jury's verdict was well-supported by the evidence, and its verdict should also be upheld.

The Defendants' request for a new trial should be denied, and the verdict and

sentencing in this case should be affirmed.




                                             Date




                                              47
