J-S18004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN MAPP,

                        Appellant                  No. 2402 EDA 2013


       Appeal from the Judgment of Sentence Entered March 8, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000118-2010


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 02, 2015

     Appellant, Steven Mapp, appeals from the judgment of sentence of life

imprisonment without the possibility of parole, imposed after a jury found

him guilty of first-degree murder and related offenses. After careful review,

we affirm.

           On August 4, 2009, at approximately 11:00 p.m., Jabar
     Thomas ("Thomas") got out of a van that was parked on the
     corner of Reed Street and South Hicks Street and entered his
     mother’s home at 1413 South Hicks Street in the City of
     Philadelphia. Thomas promptly exited his mother’s home and
     got into his Nissan Maxima that was parked in front of the home.
     Moments later, co-defendants Demetrius Cox ("Cox") (a.k.a.
     "Meat”) [and Appellant] (a.k.a. "Chunky")[,] fired approximately
     nine (9) gunshots at Thomas, shooting out the windshield of the
     vehicle in the process. Cox and [Appellant] then ran toward
     Dickinson Street before cutting through an alley between South
     Hicks and 15th Street.

           Thomas was found slumped over the center console of his
     vehicle with a large wound to the back of his head. Thomas was
     put in the back of a police vehicle and taken to Thomas Jefferson
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     University Hospital. On August 7 at 1:15 p.m.[,] Thomas was
     pronounced dead from multiple gunshot wounds, the fatal wound
     being the one to the back of his head.
                                     …
     At trial, the jury heard testimony from numerous civilian
     witnesses, police officers, detectives, as well as the medical
     examiner, Dr. Collins.        Multiple witnesses testified that
     [Appellant] and Cox were part of a group of young men who had
     an ongoing rivalry over the sale of drugs with another
     neighborhood group with which Jabar Thomas was associated.
     The rivalry resulted in a number of homicides, including the
     instant murder of Jabar Thomas. The testimony of Neal Kitchen
     established that, shortly before Thomas was killed, Cox and
     [Appellant] were walking up the 1500 block of Dickinson Street
     and [Appellant] was telling people to "watch the corner." The
     testimony of Tangia Hargust[] and Raheem Hargust corroborated
     that of Neal Kitchen, affirming [Appellant]'s instruction to "watch
     the corners," and further established that Cox was telling people
     to go inside the house. The testimony of these three witnesses
     also established that one to two minutes after Cox and
     [Appellant] passed the 1500 block of Dickinson Street, numerous
     gunshots were fired and Cox and [Appellant] were subsequently
     seen running back toward Dickinson Street before cutting
     through an alley between South Hicks and 15th Street. As they
     were running by, the back of a gun was visibly protruding from
     Cox's waistband. Cox and [Appellant] were known to carry guns
     and had been saying that all of the guys from the block of South
     Hicks Street and Reed Street were "going to get theirs." In
     addition, the jury heard testimony from Nelson Jones which
     established that Thomas had gone into his mother’s home on
     South Hicks Street, exited the home shortly thereafter, and was
     shot in his car moments later. Mr. Jones’ testimony corroborated
     the identification of Cox and [Appellant] as the shooters and
     identified both Cox and [Appellant] as carrying guns.
     Additionally, he saw Cox and [Appellant] cut through an alley
     and run away from the crime scene. Mr. Jones' testimony also
     established that a few days prior to Thomas' murder, Cox had
     asked Mr. Jones how he would "get a person" to which Jones
     responded that "everybody got to go see they mom or they girl."
     Further, the jury heard testimony from Aaron Grimes which
     established that, on the day after Thomas was shot, Cox told
     Grimes that he "and another guy went down there and caught
     him and we just started letting him have it." Although Neal
     Kitchen, Raheem Hargust, Nelson Jones, and Aaron Grimes

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      disavowed many of the averments made in their respective
      statements to police, the signed statements were properly
      admitted as evidence at trial through the testimony of Detectives
      Singleton and Williams. The statements were admissible for
      their truth as prior inconsistent statements that were signed and
      adopted by the declarants.

             The jury also heard testimony from numerous members of
      the Philadelphia Police Department. Officers Dobbins, Lai, and
      Dyrda testified that, on the night Thomas was killed, they
      responded to a radio call for gunshots on the 1400 block of
      South Hicks Street.       Upon arrival, they observed Thomas
      slumped over the console of his vehicle with a gunshot wound to
      the back of his head and immediately transported him to
      Jefferson Hospital. Officers Fox and Welsh provided testimony
      regarding the ballistic evidence, specifically that nine (9) nine
      millimeter fired cartridge casings, two (2) projectiles, and one
      (1) fragment were recovered from the scene. Officer Welsh
      concluded that all nine fired cartridge casings were fired from the
      same firearm, but could not determine exactly how many
      firearms were fired when Thomas was killed.              Detectives
      Williams, Singleton and Byard all testified regarding the details
      of the investigation, providing the jury with information about
      the various persons interviewed and the statements and
      identifications given to police. Finally, Dr. Collins testimony
      established that the decedent's death was a homicide caused by
      a fatal gunshot wound to the back of the head.

Trial Court Opinion (TCO), 3/28/14, at 4-8 (footnotes omitted).

      Appellant was charged with first-degree murder, conspiracy (murder),

carrying a firearm without a license, carrying a firearm on public property in

Philadelphia, and possession of an instrument of crime.       Appellant’s joint

trial with co-defendant Cox began on January 11, 2003, and concluded when

the jury convicted Appellant of all the above-listed offenses. On March 8,

2013, the trial court sentenced Appellant to concurrent mandatory terms of

life imprisonment for first degree murder and conspiracy, and to no further

penalty for the remaining charges.     Appellant’s timely filed post-sentence

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motion was denied by operation of law on July 17, 2013. Appellant filed a

timely notice of appeal on August 15, 2013.       He filed a timely Pa.R.A.P.

1925(b) statement on September 12, 2013, and the trial court issued its

Rule 1925(a) opinion on March 28, 2014.

        Appellant now presents the following questions for our review:

          1) Whether evidence was sufficient to convict Appellant of
             [m]urder,     [c]onspiracy,  [firearms offenses],  and
             [p]ossessing an [i]nstrument of [c]rime where the only
             evidence connecting Appellant to the crime was a
             statement by the co-defendant made to another who
             testified at trial which was admitted in violation of
             Bruton[1] and inadmissible hearsay admitted through
             unreliable witness statements?

          2) Whether the trial court erred by granting the
             Commonwealth's last minute, day of trial motion to admit
             "other acts evidence" over objection by defense,
             particularly where the prosecutor misrepresented his
             provision of discovery to defense; where the probative
             value of the admitted other acts evidence was outweighed
             by its prejudicial effect on the Appellant; where the
             vastness or extent of the other acts evidence resulted in a
             trial by ambush where evidence was highly prejudicial;
             where the evidence unequivocally overshadowed the
             evidence in the underlying case; tended to confuse the
             jury; lacked a connection between the other homicides and
             the Appellant; and involved the admission of property
             receipts, 75-48s, statements, testimony from crime scene
             and warrant officers, and crime scene photos of three
             other homicides where no direct or indirect connection
             remotely indicated that [Appellant] was involved in the
             other alleged homicides?

          3) Whether prosecutorial misconduct occurred where the
             Commonwealth attorney represented that the discovery
____________________________________________


1
    Bruton v. United States, 391 U.S. 123 (1968).



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              regarding the three homicides had been provided to
              defense, when the Commonwealth failed to supply
              complete discovery prior to trial in violation of Brady[2]?

          4) Whether prosecutorial misconduct occurred where the
             attorney for the Commonwealth repeatedly introduced,
             referred to, or presented evidence either ruled inadmissible
             by the court, or agreed inadmissible among the attorneys?

          5) Whether the trial court abused its discretion by []
             permitting the statements by Commonwealth witnesses,
             Aaron Grimes and Nelson Jones, to be presented to the
             jury during deliberations resulting in undue emphasis or
             undue influence on the Commonwealth evidence
             particularly where the court declined to read the testimony
             to the jury as requested by the jury and where the
             statements were the subject of an extensive pre-trial
             motion in limine?

          6) Whether Appellant's rights to confrontation under the U.S.
             and Pennsylvania Constitutions (Amendments VI and XIV;
             Art. 1 § 9 respect[ively]) were violated where the
             Commonwealth was permitted to introduce evidence
             through police officers/personnel where their evidence
             could only be based on hearsay or information received
             from witnesses who were not present at trial and were
             unavailable for cross examination?

          7) Whether the verdicts were against the weight of the
             evidence?

          8) Whether the trial court erred in failing to grant Appellant
             appropriate credit for time served in custody while
             awaiting trial?

          9) Whether the cumulative effect of unlawfully admitted
             evidence during trial resulted in an unfair trial which
             demands the grant of a new trial?

Appellant’s Brief, at 4-6.


____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).



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                                       1.

      Appellant’s first claim concerns the sufficiency of the evidence, for

which our overarching standard of review is as follows:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      In a meandering argument, Appellant contends that his conviction was

not supported by sufficient evidence due to various inconsistencies in the

testimony and prior statements of Nelson Jones.       As a preliminary matter,

the Commonwealth asserts that Appellant has essentially waived his

sufficiency claim by failing to identify which elements of which crimes the

Commonwealth purportedly failed to prove. While we agree that Appellant

has not specifically identified any specific element for scrutiny, it is apparent

from the nature of his argument that he is challenging the sufficiency of the

evidence as it pertains to his identity as one of the victim’s killers.

Appellant’s identity as one of the victim’s assailants was a common element




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to every crime for which Appellant’s was convicted.       Thus, we reject the

Commonwealth’s waiver argument in this regard.

       Nevertheless, the entirety of Appellant’s sufficiency argument is

geared toward attacking the credibility of Jones’ account of the shooting.3 It

is axiomatic that “it is within the province of the fact finder to determine the

weight to be given to the testimony and to believe all, part, or none of the

evidence.”     Commonwealth v. Moore, 648 A.2d 331, 333 (Pa. Super.

1994). Appellant’s various attacks on Jones’ credibility are directed to the

weight, rather than to the sufficiency, of the evidence.           Accordingly,

Appellant’s first claim lacks merit.

       We note that Appellant’s statement of the question involved appears to

interweave a Bruton claim with his sufficiency claim.      On its face, this is

improper under the Rules of Appellate Procedure, which dictate that “[t]he

argument shall be divided into as many parts as there are questions to be

argued[.]” Pa.R.A.P. 2119(a). Regardless, despite Appellant’s invocation of

Bruton in his statement of the question, his first argument fails to even cite

Bruton, much less discuss any relevant Bruton-related claim. Even if there

is a Bruton-related issue in this case, it is immaterial to our analysis

regarding the sufficiency of the evidence.       When reviewing a sufficiency
____________________________________________


3
 Jones’ account of the shooting derived from statements he made to police
and at Appellant’s preliminary hearing. Those pre-trial statements were
admitted into evidence as prior inconsistent statements at Appellant’s trial
because Jones had largely recanted them when called to testify.



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claim, this Court is obligated to consider “the entire record[,]” which includes

“all evidence actually received” by the factfinder. See Commonwealth v.

Gray, 867 A.2d 560, 567 (Pa. Super. 2005). Consequently, even if certain

evidence was erroneously admitted at trial, this Court must consider it for

sufficiency review purposes.

                                      2.

      Next, Appellant argues that the trial court erred when it granted the

Commonwealth’s motion to admit “other acts evidence” concerning his

involvement in an ongoing drug-related gang war.            Appellant presents

several bases for the court’s error in this regard. First, Appellant complains

that the motion to admit evidence of these acts was a form of ambush, as it

was not filed until just prior to trial. Second, Appellant argues that the court

erred because the evidence of other homicides was from police responding

to those homicides rather than by direct eyewitnesses.         Third, Appellant

contends that the other-homicide evidence was insufficiently related to his

actions in this case.

            The admission of evidence is solely within the province of
      the trial court, and a decision thereto will not be disturbed
      absent a showing of an abuse of discretion.              An abuse of
      discretion is not merely an error of judgment, but if in reaching a
      conclusion the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias[,] or ill-will discretion ... is abused.

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations and quotation marks omitted).



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       “Evidence of a crime, wrong, or other act is not admissible to prove a

person's character in order to show that on a particular occasion the person

acted in accordance with the character.” Pa.R.E. 404(b)(1). However, the

same evidence “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2).

       Appellant’s first argument concerns Rule 404(b)(3). That rule provides

that: “In a criminal case the prosecutor must provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on good

cause shown, of the general nature of any such evidence the prosecutor

intends to introduce at trial.”         Pa.R.E. 404(b)(3).      Appellant essentially

contends     that   he    was    not    afforded   sufficient   notice   because   the

Commonwealth did not file its motion until just prior to his trial.

       This claim fails, in part, on its face.        Appellant concedes that the

Commonwealth filed a pre-trial motion to seek admission of the disputed

evidence.4    Thus, there can be no dispute that the Commonwealth sought

admission of the evidence “in advance of trial[.]” Pa.R.E. 404(b)(3).


____________________________________________


4
  Appellant notes that the prosecutor appeared in court on January 7, 2013
to litigate the Commonwealth’s other-bad-acts motion. Appellant’s Brief, at
28. As noted above, Appellant’s trial did not begin until January 11, 2003.



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      However, Rule 404(b)(3) also requires that the notice given must be

reasonable. In this regard, Appellant contends that the Commonwealth “had

three and on-half years to present its motion and failed to do so until the

day the case was scheduled for trial.”    Appellant’s Brief, at 28.   Appellant

essentially claims that notice was unreasonable because he was bombarded

with a large volume of documentary evidence concerning the other

homicides on the eve of trial.

      This aspect of his claim also lacks merit. Appellant does not direct this

court’s attention to any request to postpone the trial premised upon his need

to review this evidence.    Instead, he baldly asserts that the volume of

evidence was overwhelming, without any reference to the record or other

explanation regarding how or why he was unable to efficiently deal with or

react to the evidence in question.    Relatedly, Appellant has not described

how this case would have, or even could have, transpired any differently had

he been afforded more time to review the Commonwealth’s other acts

evidence.     Reasonableness is always a contextual consideration, and

Appellant has simply failed to explain how the notice in question was

unreasonable in the circumstances of this case.

      Moreover, Appellant has not provided this Court with any authorities

which would suggest that the Commonwealth’s notice was unreasonable.

Appellant’s citation of Commonwealth v. Shelton, 640 A.2d 892 (Pa.

1994) is off-point.   In Shelton, our Supreme Court reversed a conviction

where the appellant was not given any notice of the disputed evidence—

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testimony that he had sold narcotics to an officer—until the prosecutor

mentioned    it   in   his   opening   statement   at   the   beginning   of   trial.

Furthermore, the appellant in Shelton requested, but was denied, a

continuance of the trial in light of the new information.

      Here, the disputed evidence was presented by the Commonwealth

days before Appellant’s trial began. Appellant has not directed this Court’s

attention to any portion of the record that demonstrates that he requested,

and was denied, additional time to deal with the new evidence.                 Thus,

Shelton is not on point. Consequently, we conclude that Appellant’s second

claim lacks merit.

      Regarding the manner in which such evidence was admitted, Appellant

complains that no witnesses to the other homicides offered testimony, as the

Commonwealth relied on officers who responded to those homicides.

However, Appellant fails to identify where specific evidence was admitted

over his objection in the record, and he provides no legal argument as to

why such objections should have been granted, but for the overarching claim

discussed below.       Accordingly, Appellant has waived any claims regarding

the manner in which such evidence was admitted.

      Appellant does claim, however, that none of the evidence pertaining to

the other homicides should have been admitted because such evidence was

not sufficiently related to this case.      We understand this claim to be a

challenge to the relevancy of the other-homicide evidence, as well as a

challenge to the inadmissibility of such evidence under Rule 404(b)(1).

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J-S18004-15



      Evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence.” Pa.R.E. 401(a). The trial

court found the other-homicide evidence relevant as evidence of Appellant’s

motive, which simultaneously constitutes an exception to Rule 404(b)(1)

pursuant to Rule 404(b)(2).          Rule 404(b)(2) provides that evidence of

another crime, wrong, or other act is admissible if it goes to prove motive.

      As the trial court explains:

            On appeal, [Appellant] asserts that this court erred in
      admitting police testimony and documents related to other
      homicides that resulted from the same ongoing neighborhood
      drug rivalry that motivated the instant killing of Jabar Thomas.
      This court disagrees. At trial, Cheryl Harrington and Sharon
      Brightman provided testimony describing the background of the
      neighborhood rivalry, based upon the circumstance of their own
      drug purchases from individuals associated with the two groups.
      Additionally, Officers Holmes, Peterson, and Reed testified
      regarding their involvement and the police documents in the
      related shootings of Darryl Pray and Tyrell Smack, that occurred
      within hours of one another and two weeks prior to the shooting
      of Jabar Thomas. This court permitted all of this evidence to be
      introduced at trial as evidence of motive for the shooting of
      Jabar Thomas, as this court found that the Thomas shooting
      grew out of these prior shootings, given the context of the
      ongoing neighborhood rivalry. Further, this court gave the jury
      an instruction limiting any consideration of such evidence solely
      to the evaluation of the defendant's intent or motive.
      Specifically, this court instructed the jury as follows:

         The Commonwealth is not required to prove a motive for
         the commission of the crimes charged. However, you
         should consider any evidence of motive or lack of motive.
         Knowledge of human nature tells us that an ordinary
         person is more likely to commit a crime if he or she has a
         motive than if he or she has none. You should weigh and
         consider any evidence tending to show motive or absence
         of motive along with all the other evidence in deciding
         whether each defendant is guilty or not guilty of the crimes

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           charged. It is entirely up to you to determine what weight
           should be given the evidence concerning motive. Now,
           you have heard other evidence regarding matters involving
           allegations of killings not of Jabar Thomas.       Neither
           defendant is charged with committing any crime other than
           the charges related to the killing of Jabar Thomas, and I
           will be defining these for you in a moment. You may not
           take this other evidence as a substitute for proof that
           either defendant committed the crimes charged here nor
           alleviate the Commonwealth's burden to prove each
           defendant guilty beyond a reasonable doubt of the crimes
           charged, nor may you consider it as proof that either
           defendant has a criminal personality or bad character.
           Indeed, in a moment, I will be explaining the evidence of
           good character that each defendant presented. You may
           consider the other evidence solely on the limited issue of
           either defendants intent or motive in the crimes charged
           here.42

                                        ___
      42
           N.T., 1/18/2013, at 24-25.

                                        ___

      In consideration of the close proximity of the three shootings,
      the fact that the three victims were all associated with
      neighborhood groups involved in an ongoing drug rivalry, and
      the limited purpose for which the evidence could be considered
      by the jury, this court found that the probative value of the
      evidence outweighed its potential prejudice to the defendant
      and, thus, properly permitted the evidence to be introduced at
      trial.

TCO, at 15-16.

      We agree with the trial court. The evidence in question was relevant

and   admissible    under   Rule   404(b)(2)     for   the   limited   purpose   of

demonstrating Appellant’s and his co-defendant’s motive for killing Thomas.

We find any resulting prejudice adequately mitigated by the thorough




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instruction issued by the trial court regarding that evidence.    Accordingly,

this aspect of Appellant’s second claim lacks merit.

                                      3.

      Next, Appellant asserts that a Brady violation and/or prosecutorial

misconduct occurred in the Commonwealth’s handling of the disclosure of

the other-homicide evidence pertaining to Appellant’s motive.        Appellant

contends that the related discovery promised by the prosecutor was never

provided to the defense. The trial court acknowledges that “the prosecutor’s

misrepresentations and conduct toward both the court and defense counsel

were highly inappropriate and unprofessional,” but that the court “was able

to cure the deficiencies in discovery at trial, thereby preventing prejudice

toward [Appellant] and ensuring a fair trial.” TCO, at 22.

      “Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v.

Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). “In considering this claim, our

attention is focused on whether the defendant was deprived of a fair trial,

not a perfect one.” Id. (quoting Commonwealth v. Harris, 884 A.2d 920,

927 (Pa. Super. 2005)).

             The law governing alleged Brady violations is well-settled.
      In Brady, the United States Supreme Court held that “the
      suppression by the prosecution of evidence favorable to an
      accused upon request violates due process where the evidence is
      material either to guilt or to punishment, irrespective of the good
      faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83
      S.Ct. at 1196–97. The Supreme Court subsequently held that
      the duty to disclose such evidence is applicable even if there has
      been no request by the accused, United States v. Agurs, 427

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     U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and
     that the duty may encompass impeachment evidence as well as
     directly exculpatory evidence, United States v. Bagley, 473
     U.S. 667, 676–77, 105 S.Ct. 3375, 3380–81, 87 L.Ed.2d 481
     (1985).     Furthermore, the prosecution's Brady obligation
     extends to exculpatory evidence in the files of police agencies of
     the same government bringing the prosecution.           Kyles v.
     Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 1568, 131 L.Ed.2d
     490 (1995); Commonwealth v. Burke, 566 Pa. 402, 781 A.2d
     1136, 1142 (2001).

Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005).

     Appellant contends prosecutorial misconduct occurred when the

Commonwealth committed a Brady violation. The Commonwealth argues,

however,   that   Brady    is    not   implicated   because   Appellant   has   not

demonstrated that the evidence in question is favorable to him. We agree

with the Commonwealth. In the argument portion of Appellant’s brief raising

the instant claim, Appellant only identifies the alleged Brady material as the

other-homicide evidence.        He does not specifically identify which specific

evidence was undisclosed, nor does he direct us to the portion of the record

where such materials were offered into evidence by the Commonwealth.

Thus, we have no basis upon which to evaluate whether the alleged non-

disclosures constituted evidence that could be construed as favorable to him,

whether it be directly exculpatory or useful for impeachment purposes.

Accordingly, we conclude that Appellant has failed to demonstrate that the

Commonwealth violated Brady.

     However, the trial court does acknowledge that the prosecutor

engaged in “highly inappropriate and unprofessional” conduct in the manner



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in which the Commonwealth provided discovery material to Appellant. It is,

therefore, at least plausible that Appellant could have a prosecutorial

misconduct claim based on prosecutor’s misrepresentations regardless of

whether Brady was violated. However, the trial court determined that any

resulting prejudice did not rise to the level of depriving Appellant of a fair

trial.

         “Prosecutorial misconduct will justify a new trial where the unavoidable

effect of the conduct or language was to prejudice the factfinder to the

extent that the factfinder was rendered incapable of fairly weighing the

evidence and entering an objective verdict.” Commonwealth v. Francis,

665 A.2d 821, 824 (Pa. Super. 1995).            “If the prosecutorial misconduct

contributed to the verdict, it will be deemed prejudicial and a new trial will

be required.” Id.

         Appellant does not discuss in any detail how he was prejudiced by the

prosecutor’s misconduct to an extent that deprived him of a fair trial, other

than to baldly assert that he was “the victim of a trial by ambush.”

Appellant’s Brief, at 34.     Nor does Appellant describe, identify, or explain

how the prosecutor’s (mis)behavior “contributed to the verdict.”        Francis,

665 A.2d at 824. As such, Appellant has simply failed to convince us that he

was deprived of a fair trial due to the prosecutor’s misconduct as

acknowledged by the trial court.       Accordingly, we conclude that the trial

court did not abuse its discretion when it declined to grant a mistrial on that

basis.

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                                               4.

       Next, Appellant asserts that prosecutorial misconduct occurred when

the prosecutor “repeatedly introduced, referred to, or presented evidence

either ruled inadmissible by the court, or agreed inadmissible among the

attorneys[.]” Appellant’s Brief, at 34. In the argument section of his brief

pertaining to this issue, Appellant directs our attention by reference to the

record to numerous instances of purported misconduct. However, Appellant

presents these instances of misconduct in a disjointed manner.              He

meanders from a complaint about discovery (alleging that the prosecutor

misrepresented the scope of other acts evidence that the Commonwealth

intended to present),5 to the Commonwealth’s failure to conform to specific

rulings by the court (regarding the prosecutor’s questioning of witnesses

about portions of their prior statements that were ordered redacted by the

court), to misconduct in the manner in which certain witnesses were

questioned (such as asking leading questions of witnesses’ regarding

information known to the prosecutor not to exist in the witnesses’ prior

statements, so as to suggest to the jury that the information was contained

therein).    Simply put, Appellant has failed to confine this argument to a

single or, at least, related instances of alleged misconduct.   See Pa.R.A.P.

2119(a) (“[t]he argument shall be divided into as many parts as there are

____________________________________________


5
  This aspect of Appellant’s fourth claim is largely indistinguishable from his
third claim.



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questions to be argued[.]”)   Indeed, “when defects in a brief impede our

ability to conduct meaningful appellate review, we may dismiss the appeal

entirely or find certain issues to be waived.”    Commonwealth v. Hardy,

918 A.2d 766, 771 (Pa. Super. 2007); see also Pa.R.A.P. 2101.

      Moreover, the Commonwealth contends that Appellant waived these

various claims because he “did not did not make his mistrial motion until the

end of trial.   To preserve an argument that the trial court abused its

discretion in not granting a mistrial, [Appellant] was required to not only to

raise contemporaneous objections but to timely request a mistrial when

those objections were sustained.” Commonwealth’s Brief, at 24. We agree.

      In Commonwealth v. Brown, 467 A.2d 393 (Pa. 1976), the

appellant objected to prosecutorial misconduct.       The trial court sustained

the objection, and issued instructions to the prosecutor to “stay away from

that area of argument.”    Id. at 396.       However, the appellant requested

neither a mistrial nor a curative instruction.    Consequently, our Supreme

Court determined that the appellant had waived appellate review of his

prosecutorial misconduct claim.

      The same circumstances are present in the instant case.        Following

each instance of misconduct, the trial court sustained Appellant’s objections.

Appellant did not contemporaneously request a mistrial or otherwise seek

curative instructions. Consequently, these individual claims of prosecutorial

misconduct have been waived.




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      Nevertheless, were we able to reach the merits of these claims, the

diligent efforts of the trial court demonstrate that no relief would be

warranted.     The   trial   court   adequately   addressed   these   claims   of

prosecutorial misconduct in its Rule 1925(a) opinion.      See TCO, at 21-29.

Therein, the court acknowledged the various instances of misconduct, and

demonstrated by extensive citations to the record that the “court responded

to the objections of defense counsel and, in correcting the prosecutor’s

missteps, was able to ensure that [Appellant] received a fair trial.” TCO, at

29.   Thus, were they not waived, we would find that these prosecutorial

misconduct claims lack merit for the reasons set forth in the well-reasoned

opinion of the trial court, and that Appellant was not denied a fair trial as a

result of the prosecutor’s misdeeds. Accordingly, the trial court would not

have abused its discretion in declining contemporaneous requests for

mistrial had they been timely made.

                                        5.

      In Appellant’s fifth claim of error, he asserts that the trial court abused

its discretion when it permitted the jury, during its deliberations, to review

the written statements of witnesses Aaron Grimes and Nelson Jones.             As

previously noted, the statements in question were admitted as prior

inconsistent statements of both Grimes and Jones, who, when called to

testify in this case, recanted their previous statements implicating Appellant

and his codefendant in the murder of Jabar Thomas.




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      “[W]hether an exhibit should be allowed to go out with the jury during

deliberation is within the discretion of the trial judge, and such decision will

not be overturned absent an abuse of discretion.”            Commonwealth v.

Dupre, 866 A.2d 1089, 1102 (Pa. Super. 2005). However, this discretion is

limited by the Pennsylvania Rules of Criminal Procedure, which dictate that,

“[u]pon retiring, the jury may take with it such exhibits as the trial judge

deems proper,” subject to several exceptions.       Pa.R.Crim.P. 646(A).       Rule

646(C) prohibits the jury from reviewing during deliberations:

      (1) a transcript of any trial testimony;

      (2) a copy of any written or otherwise recorded confession by
      the defendant;

      (3) a copy of the information or indictment; and

      (4) except as       provided   in   paragraph   (B),    written   jury
      instructions.

Pa.R.Crim.P. 646(C).

      Appellant does not contend that the exhibits in question are prohibited

by Rule 646(C).      Instead, he complains that the trial court “changed its

original ruling that the witness[es’] statements would not be presented to

the jury, to permitting them to view the redacted statements….” Appellant’s

Brief, at 42.   Appellant believes the court abused its discretion in this regard

because the jury “would put undue and unjust emphasis on the statement[s]

where there had been substantial testimony from each of the witnesses

which would not be reviewed by the jury[,]” and because “[t]he extent of

the redactions” might invite the jury “to fill in the reacted portions of the


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statement[s]” with content and or conclusions “not in evidence.” Appellant’s

Brief, at 43.

      At the time the jury made the request for the statements, the court

understood that two objections were being made by the defense to the

admission of those previously admitted exhibits: first, that the previous

ruling of the court had been not to permit the jury to review the statements

during deliberations, and second, that there was an issue regarding the form

of the statements available to present to the jury. The latter objection arose

because the defense was not confident that the redacted statements

available to present to the jury were the same versions that had been

admitted   into   evidence,   because   multiple   versions   of   the   redacted

statements had been circulated between the attorneys and the court.

      Regarding the first objection, the trial court indicated that: “[t]he

reason that I don’t send them [witnesses’ statements] back just regularly is

I don’t believe that the jury has time to sift through all the evidence,

particularly in a case that’s lasted this long.    Now that the jury has been

deliberating for however long, in theory that reason for not sending them

back is gone.” N.T., 1/22/13, at 25.     After days of deliberation, the jurors

decided that it was critical to their determination of guilt, innocence, or the

degree of guilt, that they review the prior inconsistent statements of Jones

and Grimes. The trial court’s reasoning for excluding the statements from

the jury’s deliberations—ostensibly to prevent them from being overwhelmed




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by the volume of evidence presented—was no longer valid. We ascertain no

abuse of discretion in this regard.

      The second objection, pertaining to the form of the statements, has

been waived for our review. Defense counsel was permitted to examine the

documents before they were given to the jury in order to ensure that all

proper redactions were made before the statements were given to the jury

as per its request. After Appellant’s counsel was afforded that opportunity,

there were no further objections lodged or instructions requested. As such,

Appellant’s objection to the form of the documents was effectively sustained

and Appellant has not preserved any additional objection to the form of

those documents.     See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

      Appellant also claims the jury was likely to place undue emphasis on

the statements because the jury did not also receive for review the

testimony of Nelson Jones and Aaron Grimes recanting those statements

because the Court “declined to read the testimony to the jury as requested

by the jury[.]”   Appellant’s Brief, at 42.    Appellant’s formulation of the

purported error that occurred misconstrues the record, as is explained by

the trial court. The trial court, referring to the sequence of jury questions it

received in regard to the statements, explained:

      The jury questions clearly show that the jury first asked for the
      statements of Nelson Jones and Aaron Grimes and were initially
      told that they would have to rely on their recollection. After
      further deliberations, the jury then requested the court
      transcripts of Nelson Jones and Aaron Grimes and were

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     instructed that the court could not provide them with the written
     transcripts, but could have the testimony read back,
     acknowledging the lengthy preparation that would be required.
     The jury indicated that they were interested in hearing the
     testimony, but two hours later, sent a second request for the
     statements of Nelson Jones and Aaron Grimes. This court then
     inquired if the statements were requested instead of or in
     addition to the rereading of the testimony and the jury indicated
     that they preferred to have the statements instead of the
     testimony. In consideration of these multiple, specific requests
     for witness statements over the course of two days of
     deliberation, this court properly permitted the statements of
     Nelson Jones and Aaron Grimes to go back to the jury with the
     necessary redactions, pursuant to this courts evidentiary rulings
     throughout the trial.

TCO, at 30-31.

     We agree with the trial court that it did not refuse to allow the jury to

review Jones’ and Grimes’ testimony; to the contrary, the trial court asked

the jury if it wanted to review that testimony (by having it read back to the

jury), and the jury declined to hear it. This was not a situation where the

court permitted the jury to review the witnesses’ statements while

simultaneously refusing to give the jury access to the testimony recanting

those statements. The jurors were informed on multiple occasions that the

pertinent testimony could be read back to them, but they ultimately refused.

Their refusal occurred in a context where the primary focus of Appellant’s

closing argument pertained to the credibility of those statements in light of

the in-court recantations. Thus, we have no doubt that the jury understood

the context of the statements they asked to review.          Accordingly, we

conclude the trial court did not abuse its discretion when it permitted the




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jurors, as per their specific request, and after days of prior deliberation, to

review the statements of Jones and Grimes.

                                      6.

      Next, Appellant contends that his confrontation clause rights under

both the state and federal constitutions were violated when the trial court

admitted the other-homicide evidence through the testimony of several

Commonwealth’s witnesses.       In Appellant’s nearly seven-page argument

presenting this claim, he does not cite to a single portion of the record

wherein such evidence was received by the court. Accordingly, we conclude

that this claim is waived.   See Commonwealth v. Rozanski, 433 A.2d

1382, 1390 (Pa. Super. 1981) (holding claim of error was waived when the

“appellant … failed to cite to the record, advising us either at what point in

the trial the asserted objectionable use of the evidence occurred, or in what

manner his objection was preserved for appellate review.”).

                                      7.

      Next, Appellant claims the verdict was against the weight of the

evidence.

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege


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      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      “notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.”

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

citations omitted).

      [W]hen reviewing a weight of the evidence claim, an appellate
      court's role is not to consider the underlying question of whether
      the verdict is against the weight of the evidence. Rather,
      appellate review is limited to whether the trial court palpably
      abused its discretion in ruling on the weight claim. A true weight
      of the evidence challenge concedes that sufficient evidence
      exists to sustain the verdict but questions which evidence is to
      be believed. We also observe that [i]n criminal proceedings, the
      credibility of witnesses and weight of evidence are
      determinations that lie solely with the trier of fact, [which] is
      free to believe all, part, or none of the evidence.

Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (internal

citations and quotation marks omitted).

      Appellant articulates his weight-of-the-evidence claim as follows:

      Appellant withstood a jury trial where the prosecutor and the
      court were constantly at odds with each other; where the
      prosecutor and the co-defense counsel were constantly at odds
      with each other; where the prosecutor repeatedly disobeyed the
      orders of the court that certain evidence was inadmissible by
      asking questions related to redacted or sustained evidence;
      where the prosecutor repeatedly made inappropriate comments
      in the presence of the jury; where inadmissible hearsay
      testimony was admitted through witness statements where the
      contents of the evidence was inadmissible, unreliable, and
      prejudicial; where the court admitted other acts evidence in
      violation of the rule that evidence shall not be admitted where its
      prejudicial affect outweighs it probative value; where the trial
      court erred in failing to grant a mistrial when Appellant suffered
      prejudice when the Commonwealth was permitted to disclosed

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      the incarceration status of the [c]o-[d]efendant's father during
      the trial specifically where the co-defendant's statement
      implicating Appellant was not properly redacted; and where
      other acts evidence was admitted that did not connect []
      Appellant or his co-defendant to commission of the other three
      homicides.

Appellant’s Brief, at 54-55.

      As the trial court correctly notes, Appellant waived this claim by failing

to raise it with adequate specificity in his Rule 1925(b) concise statement.

In that statement, Appellant inquired only: “Whether the verdicts were

against the weight of the evidence?” Appellant’s Rule 1925(b) Statement, at

2 ¶ 3.   This court has routinely found similar bald assertions in 1925(b)

statement waived for lack of specificity.     See Commonwealth v. Seibert,

799 A.2d 54, 62 (Pa. Super. 2002) (holding weight claim waived where the

appellant baldly asserted in his Rule 1925(b) statement that “[t]he verdict of

the jury was against the weight of the credible evidence as to all of the

charges.”).

      In any event, it is apparent that Appellant’s argument does not adhere

to the proper form of a weight-of-the-evidence claim.       Instead, Appellant

offers a smorgasbord of evidentiary and prosecutorial misconduct claims

already addressed in this memorandum to suggest the unreliability of the

Commonwealth’s evidence.       Therefore, we also conclude in the alternative

that Appellant’s weight claim lacks merit on its face.

                                      8.

      Next, Appellant complains that he was not afforded the appropriate

amount of time-credit towards his sentence for the time he spent in pre-trial

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incarceration. Specifically, Appellant contends he is entitled to 1,291 days

credit for the time he spent in custody from his arrest on August 25, 2009,

until he was sentenced on March 8, 2013.

       In its Rule 1925(a) opinion, the trial court indicates that it “confirmed

that   [Appellant]      received     the       proper   time   credit”   and   attached

documentation indicating as much. See TCO, at 40 (citing TCO, Exhibit B,

at 1). Therein, the trial court provides a form provided by the court to the

Superintendent of Pennsylvania’s State Correctional Institutions indicating

that Appellant is to be afforded time-credit for the period of time from

“08/28/09” to “03/08/13[.]” TCO, Exhibit B, at 1.

       Appellant’s purported arrest date of August 25, 2009 conflicts with the

beginning date of the time-credit afforded by the trial court of August 28,

2009. However, our review of the certified record indicates that Appellant

was arrested on the charges for which he was convicted in this case on

August 28, 2009.6 Accordingly, we conclude that Appellant was afforded the

appropriate amount of credit for time served in pre-trial and pre-sentence

custody. Thus, his claim lacks merit.

                                               9.


____________________________________________


6
  We note that the record does indicate that Appellant was initially taken into
custody on August 25, 2009 on narcotics charges not related to the instant
case. Appellant has not provided any argument why he should be afforded
time-credit towards his convictions in this case for time spent in custody for
an unrelated offense.



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      Finally, Appellant asserts that “the cumulative effect of unlawfully

admitted [evidence] during trial resulted in an unfair trial which demands

the grant of a new trial.”      Appellant’s Brief, at 56.   Essentially, Appellant

argues that, even if he is not entitled to relief on the multiple allegations of

evidentiary error and prosecutorial misconduct addressed above, he is

entitled to a new trial due to the cumulative effect of these purported errors.

      However, Appellant has failed to successfully assert any claims of

error, and as to claims of prosecutorial misconduct, we found those claims to

have been waived, lacking in merit, or that Appellant failed to demonstrate

that he had been denied a fair trial due to the misconduct. As our Supreme

Court has stated, “[i]t is settled … that no number of failed claims may

collectively   attain   merit    if   they   could   not    do   so   individually.”

Commonwealth v. Freeman, 827 A.2d 385, 416 (Pa. 2003) (internal

quotations omitted). Accordingly, Appellant’s final claim also lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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