J-A06002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER LEE SCHWENK                    :
                                               :
                       Appellant               :   No. 1912 MDA 2017

             Appeal from the Judgment of Sentence October 8, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000656-2014


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 06, 2019

        Christopher Lee Schwenk appeals from the judgment of sentence

imposed on October 8, 2015, in the Court of Common Pleas of York County

following his conviction by jury of third-degree murder.1 The jury acquitted

him of first-degree murder and voluntary manslaughter. Schwenk received a

sentence of 20 to 40 years’ incarceration. In this timely appeal, Schwenk

raises four issues: (1) the trial judge erred in failing to recuse himself based

on repeated conflicts with defense counsel; (2) the trial court erred in denying

Schwenk’s motion to suppress evidence as untimely; (3) the trial court erred

in failing to preclude the statements of Roque Castro, a witness to the crime

who did not testify at trial, as hearsay; and (4) the trial court erred in failing

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2502(c).
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to grant a new trial or dismissal based upon the insufficiency of the evidence.

After a thorough review of the submissions by the parties, relevant law, and

the certified record, we affirm.

       For a full recitation of the underlying facts of this matter, we refer to

and incorporate pages 4 – 15 of the trial court’s Pa.R.A.P. 1925(a) opinion,

dated April 5, 2018. For ease of reference, we note the following.

       In the early morning hours of November 6, 2013, Ashley Rodriguez got

into an altercation with Eddie Gallon.2          Schwenk, a current paramour of

Rodriguez, came to her aid.           Gallon left the scene but returned shortly

thereafter and threw a rock through one of Rodriguez’s mother’s windows.

Schwenk obtained Rodriguez’s 9mm Smith and Wesson semi-automatic

handgun, chased Gallon for a brief distance and fired seven shots at him. All

the bullets missed the intended target, but one of them struck the victim,

Monique Nixon, who died from the gunshot wound.

       When the police arrived at the scene of the crime, Roque Castro

informed them he witnessed a black male attempting to pick up shell casings

before running into a nearby apartment. He also informed the police he heard

an argument and glass breaking at that apartment prior to hearing gunshots.

       The police recovered several 9mm shell casings from the crime scene.

Detective First Class Jeffrey Spence was the detective supervisor for the crime

____________________________________________


2The nature of their relationship is not clear. Gallon testified he and Rodriguez
were in an ongoing, though tumultuous, relationship while Rodriguez testified
the relationship had ended sometime earlier.

                                           -2-
J-A06002-19



and sought to enter the apartment indicated by Castro. Rodriquez answered

the door and refused warrantless entry to the police. After 10 to 20 minutes

passed, Detective Spence believed the situation had become unsafe. He then

decided to, and did, enter the apartment without a warrant. Inside, Schwenk

was found, naked on the bed.       A 9mm Smith & Wesson semi-automatic

weapon was also located near the bed.          Subsequent forensic analysis

determined the fatal bullet and the shell casings found at the crime scene were

all fired by the handgun found in the Rodriguez apartment. Forensic analysis

also determined Ashley Rodriguez’s DNA was on the handgun, but Schwenk’s

DNA was not. However, Schwenk had gunshot residue on his hands, while

Rodriguez did not.

      Although all inhabitants of the apartment were taken into custody for

questioning, only Schwenk was ultimately arrested.      While in custody and

awaiting trial, a jailhouse informant told the authorities Schwenk had admitted

to the shooting, claimed to have had sex with Rodriguez after the shooting,

and that Rodriguez had taken the handgun, wiped it off and hidden it in the

bedroom, where it was ultimately found.

      No witnesses to the surrounding events claimed to have seen Rodriguez

pursue Gallon or shoot at him.




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       Schwenk’s first claim is the trial judge erred in failing to recuse himself

after a series of conflicts between the judge and defense counsel. 3 Initially,

we note,

       Our standard of review of a trial court’s determination not to
       recuse from hearing a case is exceptionally deferential. We
       recognize that our trial judges are “honorable, fair and
       competent,” and although we employ an abuse of discretion
       standard, we do so recognizing that the judge himself is best
       qualified to gauge his ability to preside impartially. Bonds, 890
       A.2d at 418 (citing Commonwealth v. Abu-Jamal, 553 Pa. 485,
       720 A.2d 79, 89 (1998)).

           The party who asserts that a trial judge should recuse
           bears the burden of setting forth specific evidence of bias,
           prejudice, or unfairness. See Commonwealth v. Perry,
           468 Pa. 515, 364 A.2d 312, 318 (1976). “Furthermore, a
           decision by the trial court against whom the plea of
           prejudice is made will not be disturbed absent an abuse of
           discretion.” Commonwealth v. Buehl, 540 Pa. 493, 658
           A.2d 771, 782 (1995).

       Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super.
       2000). See also Commonwealth v. Tedford, 598 Pa. 639, 713,
       960 A.2d 1, 55-56 (2008). (“[I]t is the burden of the party
       requesting recusal ‘to produce evidence establishing bias,
       prejudice or unfairness which raises a substantial doubt as to the
       jurist's ability to preside impartially.’ ”).

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009).

       Although Appellant’s brief mainly addresses confrontational encounters

between defense counsel and the trial judge, the only request we can find for

for recusal was made pre-trial resulting from the denial of a motion for

____________________________________________


3 The trial judge, the Honorable Thomas H. Kelley, retired in October, 2015,
shortly after sentencing Schwenk. The Honorable Harry M. Ness was assigned
to this case thereafter.

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continuance. At the final pre-trial conference on July 16, 2015, the trial judge

denied Schwenk’s counsel’s request for a continuance.         Schwenk was not

present in the courtroom.       Trial counsel noted that Schwenk would be

concerned regarding the trial judge’s ability to be fair and impartial, a concern

the trial judge found to be meritless. Nonetheless, trial counsel stated the

recusal issue would be raised again prior to trial when Schwenk was present.

On July 20, 2015, this exchange took place:

              [Defense Counsel]: Yes, Your Honor. Again, last week we
      had raised some motions, and Your Honor did deny them. I did
      explain what occurred to Mr. Schwenk. Mr. Schwenk is concerned
      about Your Honor’s ability to be fair and impartial and act without
      animosity, even if it’s towards Defense Counsel, and he does
      believe that that is going to prevent him from being or having a
      fair trial and exercising full due process, so he is asking Your Honor
      to recuse himself, yourself.

             I do have a case here which does speak to if there’s even –
      first of all, if there is actual animosity, then there should be
      recusal, and even if there’s a perception of it, then there should
      be recusal to affect the fair administration of justice as well as
      respect, maintaining the respect for the impartiality of the Courts.
      So I do have that case, I can pass up to Your Honor.

            THE COURT: Okay. Okay. All right, well, I’m aware of the
      case law. Under the circumstances – and I know that this matter
      was initially raised at the conclusion of last week’s hearing, it was
      raised for the first time. When was an information filed in this
      case? I shouldn’t say information, Complaint.

              [Prosecutor]: The formal arraignment was on March 3,
      2014.

            THE COURT: Okay. Well, I note that it was raised last week
      for the first time. The formal arraignment was March of 2014, a
      year and four months ago. We’ve had a number of hearings,
      status conferences, et cetera.


                                      -5-
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            I denied Counsel’s request for a continuance in part. Well,
      I guess the request for the continuance was in toto, but I did
      conduct a hearing as to the basis for the continuance request. At
      the conclusion of that hearing was the first time that it [recusal]
      was raised by Defense Counsel, and that is not indicative of any
      animosity. It just simply means that I found that the request for
      continuance was patently without merit.

           So motion to recuse is denied. The Court can be fair and
      impartial. The Court directs no animosity towards either Defense
      Counsel or the Defendant.

N.T. Vol. 1, 7/20-21/2015, at 5-7.

      Although there are vague references to prior adverse rulings, the only

issue brought before the trial court was the denial of a motion for continuance

that was raised mere days before the trial was scheduled to start. After being

asked to recuse, the trial court properly explained that an adverse ruling on

the merits was not indicative of animosity and that the trial judge could be

both fair and impartial. We have reviewed the certified record including the

relevant notes of testimony and see no evidence that the trial court bore

animosity to the defendant or defense counsel in the denial of the motion for

continuance. Accordingly, there was no abuse of discretion in denying the

motion for recusal.

      On July 22, 2015, after contentious exchanges between the trial judge

and defense counsel, a hearing was held in chambers during which defense

counsel was told not to continually question the trial court’s rulings in front of

the jury. In doing so, the trial judge reminded defense counsel she had, in a

prior trial, told the jury the trial judge had ruled incorrectly, and that such



                                      -6-
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behavior was inappropriate and would not be tolerated.          The notes of

testimony contain the following:

            THE COURT: […] for instance, yesterday, I told you twice
     that I had ruled. You continued to argue with me. You asked me
     to approach sidebar. I denied that request because my ruling was
     clear, it was unambiguous, and it was a solid ruling.

            You had asked the same question a multitude of times. I
     understand that you were dissatisfied with the answer, but that
     was the answer you got, okay. I think, to the extent possible, I
     clarified the issue for you, and you continued to argue with me,
     finally saying in front of the Jury, “Are you cutting me off?” I had
     ruled, and I had told you I had ruled. I asked you to move on,
     and you made the statement.

           You can’t question my rulings. As soon as I’ve ruled, I’ve
     ruled. I have never ever experienced this before except with you.
     For instance, the time I told you I had ruled, you turned to the
     Jury and said I was wrong. You told the Jury after I advised
     them –

           [Defense Counsel]: Was this this trial or another trial?

           THE COURT: No, it’s another trial, but I’m telling you as an
     example of my experience. You are not doing your client any
     service. You are to argue to me, not with me, okay. It’s
     completely inappropriate, and you do not have the last word when
     I’ve ruled, okay. I have the last rule – word. I rule after I’ve
     heard argument from both sides, okay.

           And as I said, it doesn’t do your client any service to have
     you engaging me rather than abiding by my rulings, okay,
     because ultimately I’ve told them, and I’m going to tell them
     again that I am the person who determines what the law is. So,
     in that capacity, when I rule, you have to abide by that, okay. The
     inference to the Jury is either, A, that I’m wrong, in which case
     you have the appellate process, or, B, that somehow there’s
     something different than my determination, that being your
     determination, okay.




                                    -7-
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              So as I told you yesterday, I had warned you concerning
      contempt. If, after I’ve ruled, you question one of my rulings, I
      will find you in contempt. We’ll come back here and I’ll make that
      determination, okay. There’s no question in my mind. This isn’t
      open to discussion.

            [Defense Counsel]: So there’s nothing I can say on the
      record you’re saying?

            THE COURT: That’s not what I’m saying at all. I’m saying
      you can – here’s how I do it. This is the accepted practice. You
      object or counsel for the Commonwealth objects. I ask for a
      response, okay, from either side, whomever the responding
      person is.

            As soon as I’ve heard that, if I don’t ask additional
      questions, I will tell you, as I did yesterday on two separate
      occasions within the same objection, I’ve ruled. As soon as I’ve
      ruled, I’ve ruled. Your opportunity to offer anything to me is when
      I say, response, or when I say, if you’re objecting, basis for the
      objections, okay. We don’t supplement things with ongoing
      arguments. You put forth your best argument and I rule, okay.

            This is not – this is not Greek. This is readily apparent from
      how things work, how I was trained, how everyone else who goes
      to law school was trained, okay. If you have an issue with one of
      my rulings, you are to appeal my ruling to the Superior Court.
      That is your avenue for redress under the circumstances.

N.T. Trial, Vol. 2, 7/22/2015, at 3-6.

      Further,

             THE COURT: […] So you make your objections or you
      respond to your objections unless it’s patently obvious from the
      record that something is objectionable. On a number of occasions
      yesterday, I didn’t even ask the Commonwealth for a response to
      your objection to leading questions. The one instance was where
      I wanted to hone the issue in, and I said I’m going to allow it,
      okay. I don’t need to hear argument on a leading question. I’m
      listening to the questioning and I’m listening to the responses,
      okay.




                                     -8-
J-A06002-19


           All I’m telling you is, when I rule, regardless, I’ve ruled.
     There’s no question. There’s no additional argument if I haven’t
     asked for argument, okay. You can at any point in time respond
     or state the basis for an objection if you’re objecting, okay.

           Are there any questions from the Commonwealth?

           [Prosecutor]: No, Your Honor.

           [Defense Counsel]: Well, I just want to say on the record
     that this is actually why we asked you to recuse yourself because,
     again, you’re bringing up some long other time at trial. I haven’t
     been in trial in front of you in years.

           THE COURT: No, I’m giving you an example.

           [Defense Counsel]: If I can just state – finish. And, you
     know, when you do make your rulings, it’s not just a neutral
     ruling. You know, you’re gesturing, I mean, you’re almost red in
     the face.

           THE COURT: I’m going to deny that on the record. I’m not
     going to allow you to supplement this at all. You’re testifying at
     this point.

           [Defense Counsel]: I want to –

           THE COURT: No, you are not going to – I’m telling you
     you’re not going to supplement the record with your own
     testimony. The reason why I responded yesterday – or today with
     the example is because I needed to provide you an example with
     how that behavior is unacceptable, okay. I am referring to
     something before because it’s an example, and I’m also referring
     to what occurred yesterday when you’re questioning my ruling,
     including for instance, during voir dire. You asked a completely
     inappropriate question, and four people responded. You asked
     does anyone not wish to be here, and four people responded and
     raised their hand.     I interrupted and said, that is not an
     appropriate question. It is not. It is obviously an inappropriate
     question, and, thereafter, you turned to the Jury and said, well, I
     usually get jokes out of that question. I don’t need your editorial
     responses.

           [Defense Counsel]: But, Your Honor, actually –

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J-A06002-19



               THE COURT: No, that’s it. I’ve advised you. Katie [court
         reporter], we’re off the record at this point.

Id. at 7-10.

         The trial court appears to have accepted statement on July 22, 2015

(“this is actually why we asked you to recuse yourself”) as a second formal

request for recusal, based upon the trial court having commented on prior

problems with Defense Counsel.         Unfortunately, when denying the second

request for recusal, the trial court did not affirmatively reassert the ability to

remain fair and impartial and did not specifically deny animosity toward

defense counsel or Schwenk. Nonetheless, the judge assigned to this matter

following the retirement of the original trial judge accurately noted the

certified record did not reflect improperly prejudicial actions taken by that

judge during trial.     The original trial judge ruled against Schwenk and the

Commonwealth. We note that the trial judge may have exhibited frustration

with defense counsel over the continuing refusal to accept rulings and move

on, but such frustrations do not equate to the inability to preside over the trial

in an impartial manner. Accordingly, Schwenk is not entitled to relief on this

issue.

         Next, Schwenk argues the trial court erred in failing to consider and rule

upon his motion to suppress evidence based upon his claim the warrantless

search of Rodriquez’s home was illegal. It is important to note the trial court

denied the motion on the purely procedural ground that it was untimely.

Therefore,


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J-A06002-19


      The interpretation of procedural rules is a question of law, so our
      standard of review is de novo and our scope of review is plenary.
      Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910, 913
      (2008).

      The rules for interpreting a Rule of Criminal Procedure in this Court
      are well established:

         When we interpret our Rules of Criminal Procedure, we
         employ the same principles employed in the interpretation
         of statutes. Pa.R.Crim.P. 101(C); Commonwealth v.
         Cooper, 611 Pa. 437, 27 A.3d 994, 1003 (2011). The
         object of interpretation of the criminal rules “is to ascertain
         and effectuate the intention” of our Supreme Court, as the
         rule-issuing body. “Every [rule] shall be construed, if
         possible, to give effect to all its provisions.” 1 Pa.C.S. §
         1921(a). “When the words of a [rule] are clear and free
         from all ambiguity, the letter of it is not to be disregarded
         under the pretext of pursuing its spirit.” 1 Pa.C.S. §
         1921(b).

      Commonwealth v. Noel, 53 A.3d 848, 855 (Pa. Super. 2012).

Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa. Super. 2006).

      It is undisputed that a motion to suppress evidence is subject to

Pa.R.Crim.P. 578 and 579. Rule 578 states:

      Unless otherwise required in the interests of justice, all pretrial
      requests for relief shall be included in one omnibus motion.

Pa.R.Crim.P. 578.    The comments to the rule specifically list a motion for

suppression of evidence as being appropriate for inclusion in the omnibus

pretrial motion.

      Rule 579 states, in relevant part:

      Except as otherwise provided in these rules, the omnibus pretrial
      motion for relief shall be filed and served within 30 days after
      arraignment, unless opportunity therefor did not exist, or the
      defendant or defense attorney, or the attorney for the


                                     - 11 -
J-A06002-19


         Commonwealth, was not aware of the grounds for the motion, or
         unless the time for filing has been extended by the court for cause
         shown.

Pa.R.Crim.P. 579.

         Schwenk was originally represented by different counsel than who tried

his case. He was arraigned on March 3, 2014. Original counsel did not file an

omnibus pre-trial motion. Original counsel was replaced by trial counsel on

November 21, 2014.           Trial counsel ultimately filed an omnibus pre-trial

motion, including the suppression issue, on December 22, 2014, more than

eight months late. However, the trial court refused to consider the motion

due to its untimely filing.

         The rule is clear, unless the opportunity to file the motion did not exist

or the grounds for the motion were unknown, a motion for suppression of

evidence SHALL be filed within 30 days of arraignment. There is nothing in

the certified record indicating that there existed no opportunity to file the

motion or that the alleged grounds for relief were unknown, nor does appellate

counsel make such claim. While the trial court could have entertained the

motion in the interests of justice, there is no requirement that the court do

so. Accordingly, having followed the rule, the trial court did not err in refusing

to hear the motion to suppress,4 and Schwenk is not entitled to relief on this

issue.




____________________________________________


4 Appellate counsel concedes in Schwenk’s brief that this issue may be
properly pursued in the context of a PCRA petition. Schwenk’s Brief at 23.

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      In his third claim, Schwenk argues the trial court erred in failing to

suppress the statements of Roque Castro as inadmissible hearsay. This claim

is meritless.

      Under the Pennsylvania Rules of Evidence, hearsay is defined as:

      [A] statement that (1) the declarant does not make while
      testifying at the current trial or hearing; and (2) a party offers in
      evidence to prove the truth of the matter asserted in the
      statement.

Pa.R.E. 801.

      Several witnesses from the police department testified that Roque

Castro informed them he witnessed a black male attempting to pick up shell

casings from the street and that the person had run into a specific apartment.

This information led the police to Rodriguez’s apartment where Schwenk was

ultimately located.    When this testimony was offered, counsel dutifully

objected to its admission as hearsay.          Each time, the Commonwealth

responded that the information was not being offered for the truth of the

statement, but rather to show why the police acted in the way they did. The

fact that the statements made by Castro were not admitted into evidence to

prove the truth of the matter asserted removes those statements from the

definition of hearsay. The trial court explained this limitation to the jury.

           [Defense Counsel]: I’m going to object, Your Honor.
      Hearsay.

            THE COURT: Okay. Response?




                                      - 13 -
J-A06002-19


           [Prosecutor]: I would note that we’re offering it solely for
     the effect of the listener, not for the truth of the matter asserted,
     so what he did with the information he received.

     The Court: Okay. Ladies and gentlemen, what’s happening is
     they’re going to ask for a statement made by another individual.
     Okay. Generally speaking, that’s called hearsay. However, there
     are certain exceptions to the hearsay rule, including when it’s
     offered to explain what the officer may have done thereafter.
     Okay. You’re not to accept the statement of the other individual,
     Mr. Roque [sic], as being true. You’re simply to accept it as to
     explain what this officer did next. Okay.

              So I’ll overrule the objection and you may proceed.

N.T. Trial, V. 1, 7/20-21/2015, p. 110.

     Additionally, defense counsel eventually agreed with this ruling.

              [Prosecutor]: … And generally, what did he [Castro] tell
     you?

          [Defense Counsel]: Objection, Your Honor. Hearsay.
     The Court: Okay. Response?

           [Prosecutor]: It will be the same thing I noted yesterday,
     not offering it for the truth of the matter asserted, but what the
     police did with that information.

              THE COURT: To explain a course of conduct?

              [Prosecutor]: Yes.

              THE COURT: Okay. Any response to that?

              [Defense Counsel]: If it’s limited to that, Your Honor.

              THE COURT: Okay. I’ll overrule the objection.

Id. at 222.




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      Because the statements complained of are not defined as hearsay and

because defense counsel ultimately agreed with the trial court’s ruling,

Schwenk is not entitled to relief on this issue.

      Finally, Schwenk argues there was insufficient evidence to support his

conviction for third-degree murder.       Basically, Schwenk argues there is so

much evidence pointing to Rodriguez as being the shooter, it renders the

evidence   against   him   insufficient    to   support   his   conviction.   The

Commonwealth has claimed this argument is waived because it was not

included in Schwenk’s Pa.R.A.P. 1925(b) statement.              Our review of the

certified record confirms the Commonwealth’s assertion.

      Schwenk filed his 1925(b) statement of matters complained of on appeal

on March 15, 2018. In it, he claimed the trial court erred in not granting a

new trial based on insufficient evidence “as proved by inconsistent verdict.”

Pa.R.A.P. 1925(b) Statement, ¶ 6. Schwenk’s current argument has nothing

to do with an inconsistent verdict; his current argument is simply an attempt

to implicate another person, specifically Ashley Rodriguez.           Because his

current argument was not raised before the trial court, it has been waived.

“Issues not included in the [1925(b)] Statement and/or not raised in

accordance with the provision of this paragraph (b)(4) are waived.”

Commonwealth v. Peralta, 173 A.3d 813, 816 (Pa. Super. 2017).

Additionally, “[o]ur rules of appellate procedure provide that ‘[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on




                                     - 15 -
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appeal.’ Pa.R.A.P. 302(a).” Commonwealth v. Smith, 206 A.3d 551, 564

(Pa. Super. 2019).

      In an abundance of caution, we note our agreement with the trial court’s

analysis of the sufficiency of the evidence, and substantively rely thereupon.

Briefly, the evidence showed, among other evidence: (a) Schwenk had

gunshot residue on his hands immediately after the shooting; (b) a man

matching his description was seen attempting to pick up shell casings at the

crime scene and subsequently ran into a nearby apartment where Schwenk

was located; (c) Schwenk was seen chasing after Gallon at which time

gunshots were heard; and (d) jailhouse informants claimed Schwenk admitted

to the shooting and sought to frame Rodriquez. There was sufficient evidence

for the jury to convict Schwenk.

      Judgment of sentence affirmed. The parties are directed to attach a

copy of the trial court opinion in the event of further proceedings.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2019




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                                                            Circulated 07/08/2019 03:07 PM




     IN THE COURT OF C01\1l.VION PLEAS OF YORK COUNTY,
                     PENNSYLVANIA

COMMONWEALTH OF                          No. CR-656·2014
PENNYSLVANIA


     v.

CHRISTOPHER LEE SCHWENK
Appellant
                 OPINION IN SUPPORT OF ORDER
                  PURSUANT TO Pa.R.A.P. 1925(a)



of Pennsylvania from the Order of October 8, 2015 Sentencing

Appellant. On December 8, 2017, Appellant's PCRA petition was

granted and restored Appellant's direct appeal rights. On December 11,

2017, Appellant filed a Notice of Appeal. Appellant then filed a

Statement of Matters Complained on March 15, 2018 after the lower

court allowed Appellant additional time in preparing the statement.

The lower court now issues this l 925(a) Opinion.

                       PROCEDURAL HISTORY

     Appellant had his formal arraignment on March 3, 2014. At this

time, Appellant was represented by court-appointed counsel, John M.
Hamme, Esquire. Sandra Thompson, Esquire then entered her

appearance on approximately November 21, 2015.

     On July 27, 2015, a week long jury trial before Honorable Thomas

H. Kelley ("trial court") concluded.

     During trial, on July 23, 2015, the trial court granted in part and

denied in part Appellant's proposed jury instructions. The trial court

denied 3 instructions: first, "Defendant's Statements or Expressions of

Willingness to Accept a Plea/Deal"; second, 2.07 "Significance of

Statements and Acts of Court and Counsel": and third, 3.21A "Failure

to Call Potential Witness."

      The jury convicted Appellant of Third Degree Murder. On October

8, 2015, Appellant was sentenced to serve 20 to 40 years imprisonment.

      Appellant was represented by Seamus D. Dubbs, Esquire for

purposes of appeal. Appellant filed a PCRA petition and hearing was

scheduled before Honorable Harry M. Ness ("the lower court"), who has

since been assigned this matter. The lower court found that Appellant's

appellate counsel was ineffective and restored Appellant's direct appeal

rights. Appellant is now represented by Christopher Moore, Esquire.




                                       2
     In his statement, Appellant alleges 6 issues to be considered by

this Court:

      1) Whether the trial court erred in denying Appellant's motion to

recuse Judge Kelley;

      2) Whether the trial court erred in denying Appellant's proposed

jury instructions;

      3) Whether the trial court erred in denying Appellant's

suppression motion as being untimely;

      4) Whether the trial court erred in admitting telephone records to

be played before the jury;

      5)Whether the trial court erred in admitting the statements of

Roque Castro as not hearsay; and

      6) Whether the trial court erred in weighing the sufficiency of the

evidence.




                                     3
                         ISSUES FOR APPEAL

           Whether the trial court erred in denying recusal when Judge
     Kelley remained impartial without bias; in denying proposed
     instructions when the standard instructions used were applicable
     and efficient; in denying a suppression motion when that motion
     was filed more than 30 days after formal arraignment; in
     admitting telephone recordings when defense did not object
     timely; in admitting out of court statements when the statements
     were used to show a course of conduct; and in weighing the
     sufficiency of the evidence when forensic records and testimony
     revealed Appellant had possession of and used the murder
     weapon.




                       FACTUAL BACKGROUND

     At trial, Mary Sherman testified that she was delivering

newspapers in the early morning in York City on November 6, 2013

when she heard multiple gunshots and saw a body in the street.

Transcript of Trial, 7/20/2015, at 190.

     York City Police Officer Christopher Roosen testified that he

responded to a shooting at approximately 3:37 in the morning. Id. at

108. Officer Roosen testified that there was an unconscious woman

lying in the street. Id. at 109. The victim was later identified to be




                                     4
Monique Nixon. Id. at 114. Officer Roosen testified that he encountered

a Hispanic male, named Roque Castro. Id. at 110.

       Officer Roosen testified that Castro stated to Officer Roosen that

Castro saw a black male "'attempting to pick up shell casings and run

into"' a nearby apartment. Id. at 111. Castro also stated to Officer

Roosen that Castro had overheard an argument and heard glass break

at that apartment before the shooting occurred. Id. Officer Roosen

testified that the victim was laying a city block away. Id. at 115. Officer

Roosen testified that he relayed this information to his supervisor. Id.

121.

       Officer Roosen further testified that he had secured the crime

scene where 9 millimeter FC luger casings were recovered. Id. at 116.

       Detective First Class Jeffrey Spence of the York City Police

Department testified that he was the detective supervisor and oversaw

other detectives at the time of this case. Transcript of Trial, 7/22/15, at

41. Detective First Class Spence testified that he was informed to go the

apartment at 230 South Queen Street to meet Officer Roosen who had

secured the perimeter of the apartment. Id. at 42. Detective First Class

Spence testified that he spoke to Ashley Rodriguez at the apartment


                                      5
and that she would not allow the detectives to enter. Id. at 43. Detective

First Class Spence testified that he ordered everyone in the apartment

to come outside. Id. at 43.

      Detective First Class Spence testified that Ashley Rodriguez

stated to him that her friend, Appellant, was inside and could not get

him up. Id. at 44. Detective First Class Spence testified that the

detectives waited outside the door for 10 to 20 minutes and that he felt

the situation had become unsafe. Id. at 56. Detective First Class Spence

testified that he made the "command decision" to enter the apartment

and make contact with Appellant. Id. at 44.

      Detective Andy Baez of the York City Police Department testified

that he was with Detective First Class Spence when they were waiting

for Appellant to exit the apartment. Transcript of Trial, 7/21/15, at 226.

Detective Baez testified that from outside the apartment he could see

Ashley Rodriguez leaning into a bedroom from the kitchen and could

hear her talking with Appellant. Id. Detective Baez testified that when

they entered, they found Appellant naked laying on the bed. Detective

Baez testified that he handcuffed Appellant for officer safety reasons.

Id.


                                     6
     Detective Anthony Fetrow of the York City Police Department

testified he was with the other detectives at the apartment. Transcript

of Trial, 7/20/15, at 196. Detective Fetrow testified that he searched

Ashley Rodriguez's bedroom and found a 9 millimeter handgun. Id.

Detective Fetrow testified that the handgun was a Smith & Wesson

that was capable of holding 16 rounds, but was only loaded with 6

rounds. Id. at 199.

     Detective First Class Spence further testified that everyone in the

apartment was taken to the police station. Transcript of Trial, 7/22/15

at 45. Detective First Class Spencer testified that he interviewed Ashley

Rodriguez 3 times and that it was not until the third interview that

Ashley Rodriguez mentioned that there was a man named Eddie Gallon

who held a gun to her head. Id. at 62.

      The Affiant, Detective Travis Sowers of the York City Police

Department, testified that Appellant consented to collections for DNA

swabs and gunshot residue. Id. at 99. The Affiant testified that he

interviewed Appellant, Ashley Rodriguez, a man named Jose Rivera,

and his mother, Charlotte Hollinger. Id. at 98. The Affiant testified that




                                     7
everyone stated that Ashley Rodriguez did not fire the handgun. Id. at

102.

       The Affiant testified that he later interviewed Eddie Gallon and

collected DNA samples from him as well as Ashley Rodriguez. Id. at

104. The Affiant testified that he also interviewed a man named

Douglas Otteson, after an ATF firearm trace revealed Otteson to be the

original owner of the handgun. Id. at 105. The Affiant testified that

Otteson stated to the Affiant that Otteson did own the handgun and

that he sold it in 2013 to Benjamin Rodriguez for heroin. Id.

       Ashley Rodriguez testified that she was in a sexual relationship

with Appellant. Transcript of Trial, 7/20/15, at 132. Ashley Rodriguez

testified that she and Appellant were drinking and celebrating a

birthday on the night of the shooting. Id. at 127. Ashley Rodriguez

testified that she and Appellant went to McDonalds and then returned

to her mother's apartment at 230 South Queen Street. Id. at 128.

       Ashley Rodriguez testified that when she returned home, she was

approached by her ex-boyfriend, Eddie Gallon after she got out of the

car. Id. at 129. Ashley Rodriguez testified that Appellant got out of the

car when Eddie Gallon pulled a gun on Ashley Rodriguez's head. Id. at


                                     8
130. Ashley Rodriguez testified that Appellant pushed Eddie Gallon and

that a struggle ensued between Appellant and Eddie Gallon. Id. Ashley

Rodriguez testified that Appellant and Eddie Gallon went down to the

corner from where she could hear arguing and yelling, and ultimately

gunshots. Id. at 131. Ashley Rodriguez testified that she and Appellant

then proceeded into the apartment to have sex. Id. at 132. Ashley

Rodriguez testified that at some point later, the window to the living

room was broken. Id. at 157.

     Ashley Rodriguez testified that when the police arrived, Appellant

was knocked out from being drunk. Id. at 133.

     Eddie Gallon testified that at the time of the incident, Ashley

Rodriguez was her girlfriend and that she lived at his residence.

Transcript of Trial, 7/21/15, at 261. Eddie Gallon testified that on the

night of the shooting that Ashley Rodriguez kept calling him and

cursing at him. Id. Eddie Gallon testified that he walked over to Ashley

Rodriguez's mother's house when he encountered Appellant get of the

car. Id. at 262. Eddie Gallon testified that he had never seen Appellant

before. Id. at 263. Eddie Gallon testified that Appellant began arguing

with him outside of the apartment. Id. at 264.


                                     9
     Eddie Gallon testified that he started walking away but stopped

when Appellant continued yelling at him. Id. at 267 - 268. Eddie Gallon

testified that he had walked past an older lady walking on the street.

Id. Eddie Gallon testified that he picked up a couple of rocks to throw at

Appellant, but he had lost sight of Appellant. Id. at 270. Eddie Gallon

testified that he went back to Ashley Rodriguez's mother's house and

broke a window. Id. Eddie Gallon testified that he was jogging away

when he heard gunshots, but didn't see anyone else. Id. at 271.

     Eddie Gallon testified that there was a PFA against him from

Ashley Rodriguez that had expired in September of 2013, but that their

relationship was still ongoing. Id. at 276. Eddie Gallon testified that he

did not have a gun and that he was not sure Appellant had a gun. Id at

282- 285.

      Charlotte Hollinger testified that she is the mother of Ashley

Rodriguez and that the apartment was Ashley Rodriguez's and not her

own. Transcript of Trial, 7/23/15, at 98. Hollinger testified that she was

living with Ashley Rodriguez temporarily because of prior incidents

with Eddie Gallon. Id. Hollinger testified that Eddie Gallon and Ashley

Rodriguez broke up 6 months before the shooting occurred. Id. at 100.


                                     10
Hollinger testified that Eddie Gallon had previously threatened the

whole family and had previously tormented Ashley Rodriguez. Id. at

103. Hollinger further testified that she did not hear the shooting in

question. Id. at 106.

     Jose Rivera testified that he was living with her sister, Ashley

Rodriguez, at the time of the shooting. Id. at 107. Rivera testified that

Eddie Gallon had previously flashed a gun towards him. Id. at 109.

Rivera testified that he did not hear the shooting in the question. Id. at

108. Rivera testified that he did not shoot at Eddie Gallon. Id. at 115.

     The Affiant further testified that Ashley Rodriguez told him that

she was standing by her car when the "gunshot went off." Transcript of

Trial, 7/22/15, at 123. The Affiant testified that Ashley Rodriguez never

even mentioned Eddie Gallon was at the scene in her first interview. Id.

     Douglas Otteson testified that he sold his Smith & Wesson 9

millimeter handgun to a friend of Benjamin Rodriguez. Transcript of

Trial, 7/23/15, at 18. Otteson testified that Benjamin Rodriguez helped

Otteson sell the handgun. Id. Otteson testified that he sold the handgun

to a black male, about 6 feet tall. Id. at 20. Otteson testified Benjamin

Rodriguez gave him heroin in return. Id. at 23.


                                     11
      Benjamin Rodriguez testified that his niece is Ashley Rodriguez.

Id. at 30. Benjamin Rodriguez testified that he helped Otteson sell

firearms while he sold Otteson drugs. Id. at 32.

      The Commonwealth and Appellant agreed to a stipulation that

Dr. Bollinger conducted an autopsy on the victim and determined that

the victim died from one gunshot wound. Transcript of Trial, 7/22/15, at

12.

      Officer Ryan Anderson of the York City Police Department

testified that he witnessed the autopsy and obtained the bullet.

Transcript of Trial, 7/21/17, at 251. Officer Anderson testified that the

bullet was submitted to the Pennsylvania State Police Forensic Lab for

testing. Id. at 254.

      Pennsylvania State Police Sergeant David Krumbine testified that

he performed forensic tests on the Smith & Wesson handgun, the

ammunition found inside the handgun, the bullet from the victim, and

the spent shell casings from the scene of the shooting. Id. at 316. Sgt.

Krumbine testified that the handgun was functional and capable of

firing the type of ammunition that was found. Id. at 319. Sgt. Krumbine




                                     12
testified that the spent shell casings and the bullet were fired by the

Smith & Wes son 9 millimeter handgun. Id. at 323.

     Jillian Fesolovich, a forensic biologist of NMS Labs testified that

she tested the handgun and the loaded ammunition for DNA. Id. at 330.

Fesolovich testified that Ashley Rodriguez "could not be excluded as the

potential major source contributor" to the DNA found. Id. at 332.

Fesolovich testified that a major contributor does not necessarily mean

that they were the last person to touch something. Id. at 334.

      Stephanie Horner, a forensic scientist of RJ Lee Group, testified

that she tested samples from Appellant's hands for gunshot residue. Id·

at 393. Horner testified that there was gunshot residue on these

samples. Id. at 400.

      Christopher Harris testified that he was imprisoned in the same

jail cell as Appellant in 2014. Transcript of Trial, 7/22/15, at 16. Harris

testified that Appellant told him that Appellant chased Eddie Gallon

and shot at him and then went back inside and had sex with Ashley

Rodriguez. Id. at 20. Harris testified that Appellant told him that

Ashley Rodriguez wiped the handgun clean after they had sex and then

hid the handgun. Id. at 21 - 22.


                                     13
     Brandon Dawson testified that he was imprisoned with the

Appellant and that Appellant told him that Appellant shot at Eddie

Gallon. Id. at 78. Dawson testified that Appellant wanted to

"undermine the system by having a guy by the name of Glenn Jones

come in and testify that he was at the gun range with [Appellant] that

day." Id. at 79. Dawson testified that Appellant asked Dawson to testify

and say that Benjamin Rodriguez gave the handgun to Dawson and

that Dawson sold the handgun to Ashley Rodriguez. Id. at 80. Dawson

testified that Appellant said that there was a facebook picture with

Ashely Rodriguez holding the handgun and that Appellant could frame

the shooting on her. Id. Dawson said he did agree to this and told the

authorities, which led to his current firearm charges. Id.

     Anthony Rankins testified that he met Harris while incarcerated

in the York County Prison. Id. at 141. Rankins testified he had known

Dawson for 20 years. Id. Rankins testified that Harris and Dawson

approached him with a plot to make up testimony to enable better plea

agreements. Id. Rankins testified that Dawson believed he was the

mastermind. Id. Rankins testified that he declined joining the plot. Id.

at 143. Rankins testified that he was friends with Appellant's brother.


                                    14
Id. at 146. Rankins testified that he told Appellant of this plot. Id. at

150.

       Brandon Elliot testified that he was friends with Appellant and

was incarcerated at the same time as Dawson. Transcript of Trial,

7/23/15 at 5. Elliot testified that Dawson was going around telling

everyone that he was going to "tell on people." Id. at 10.

       The Affiant further testified that he collected phone calls made by

Appellant to Maria Nicholas, who was Appellant's "baby's mom."

Transcript of Trial, 7/22/15, at 107.

       Maria Nicholas testified that she is the mother of Appellant's

children. Transcript of Trial, 7/23/15 at 50. Nicholas testified that she

did not want to see Appellant get in trouble and that Appellant had not

admitted to the charges in her phone conversation. Id. at 52 - 55.




                                        15
                               DISCUSSION

              The trial court did not err because Judge Kelley was
        impartial; the necessary, standard jury instructions were used;
        the suppression motion was untimely; the objection to the
        telephone recordings was not properly preserved; the statements
        of Roque Castro were not hearsay; and there was sufficient
        evidence to convict Appellant with Third Degree Murder.


   I.      Denial of the Recusal Motion.

        The Code of Judicial Conduct states that a:

        judge shall disqualify himself or herself in any proceeding in
        which the judge's impartiality might reasonably be questioned,
        including but not limited to the following circumstances:
              (1) The judge has a personal bias or prejudice concerning a
                  party or a party's lawyer ...

PA ST CJC Rule 2.ll(A)(l).

        There is a presumption that judges are "'honorable, fair and

competent,"' and ... have the ability to determine whether they can rule

impartially and without prejudice." Commonwealth v. Druce, 589, 848

A.2d 104, 108 (Pa. 2004) (citations omitted). The moving party in a

recusal motion bears the burden of producing evidence showing bias,

prejudice, or unfairness necessitating recusal, and that the "decision by

a judge against whom a plea of prejudice is made will not be disturbed

except for an abuse of discretion." Id.


                                      16
     A judge has to determine if there is a personal bias or interest

which would preclude an impartial review. Goodheart v. Casey, 565

A.2d 757, 764 (Pa. 1989). This is a personal and unreviewable decision

that only the jurist can make. Id. A judge must also satisfy the

appearance of justice. Id.

     Appellant argues that Judge Kelley failed to be impartial and was

biased against his counsel, Sandra Thompson, Esquire. Judge Kelley

warned Thompson to not talk over him several times during status

hearings leading up to trial, however Judge Kelley stated that his pre·

trial rulings were on the merits and not indicative of any animosity ..

      While Judge Kelley later proceeded to warn Attorney Thompson

several times out of the presence of the jury, Appellant's pre·trial

motion lacked evidence of bias and prejudice to disturb the presumption

of Judge Kelley's ability to be impartial. Ultimately, no contempt

hearing was held, and Judge Kelley ruled in favor of both parties at

various times during the jury trial.

      Therefore, Judge Kelley was impartial and lacked any bias

against Appellant or Attorney Thompson to warrant a recusal.




                                       17
  II.      Denial ofAppellant's proposed jury instructions.

        The trial court denied 3 instructions: first, "Defendant's

Statements or Expressions of Willingness to Accept a Plea/Deal";

second, 2.07 "Significance of Statements and Acts of Court and

Counsel": and third, 3.21A "Failure to Call Potential Witness."

        Appellant first argues that Rule 410 of the Pennsylvania Rules of

Evidence should have been instructed to the jury in regards to

Appellant's telephone call with Maria Nicholas and their discussions of

potential plea agreements between Appellant and the Commonwealth.

Rule 410 states that evidence of participating in plea discussions is not

admissible against the defendant. Pa.R.E. Rule 410(a). Appellant freely

entered into a recorded telephone conversation with Maria Nicholas,

not with the Commonwealth for the specific purpose of plea bargaining.

See Commonwealth v. Calloway, 459 A2d 795, 801 (Pa. Super. 1983).

        Because an additional jury instruction to address how the jury

should perform its role was redundant, this proposed instruction did not

need to be granted.




                                       18
     Appellant argues that 2.07 of the standard jury instructions

should have been granted to remind the jury to not accept what

attorneys or the judge says as testimony. The jury was given this

instruction by the court when the trial began. The trial court did not

believe it was necessary to give it again after the trial, in addition to the

other numerous instructions. Because, the instruction was already

given, this proposed instruction did not need to be granted.

     Appellant argues that 3.21A of the standard jury instructions

should have been granted because of the admissibility of Roque Castro's

statements as an exception to hearsay. 3.21A requires the jury to find 3

conjunctive elements in order to draw inferences about the failure to

call a potential witness:

      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.

3.21A (Crim) Failure to Call Potential Witness, Pa. SSJI (Crim), §3.21A

(2016).

      Roque Castro's identity and address was made known to

Appellant prior to trial. The Commonwealth did not prevent Castro

from being unavailable to Appellant. Because the jury should not have

                                      19
been given the opportunity to draw any inferences, this proposed jury

instruction could not have been granted.

     Therefore, the trial court did not abuse its discretion in denying

these proposed jury instructions.




  III.    Denial ofAppellant's suppression motion.

     Unless the opportunity did not previously exist, or the interests of

justice otherwise require, a suppression motion can only be made in the

omnibus pretrial motion as set forth in Rule 578. Pa. R. Crim. P. 581(B).

If a timely motion is not made, "the issue of suppression of such

evidence shall be deemed to be waived." Id.

     The omnibus pretrial motion must be filed within 30 days after

formal arraignment, "unless opportunity therefor did not exist, or the

defendant or defense attorney, or the attorney for the Commonwealth,

was not aware of the grounds for the motion, or unless the time for

filing has been extended by the court for cause shown." Pa. R. Crim. P.

579(A).




                                    20
     Attorney Thompson filed two suppression motions as part of the

omnibus motion on December 22, 2014. Appellant's formal arraignment

occurred on March 3, 2014. The trial court did not allow a suppression

hearing on matters that involved discovery while Appellant was

previously represented by Attorney Humme. Attorney Humme did not

file the suppression motion in question within 30 days of formal

arraignment. A hearing was held on the other motions because they

involved issues that arose after Attorney Thompson entered her

appearance on behalf of Appellant.

     Nothing has been provided to show that any party or any attorney

was unaware of the grounds for a suppression motion of the initial

search at Ashley Rodriguez's apartment. Nothing has been provided

that the motion could not have been filed sooner ..

     Therefore, Appellant's motion to suppress is waived because the

motion was filed after the 30 day deadline without exception.




                                     21
  IV.     Admissibility of telephone records.

        Each error "identified in the [concise statement] will be deemed to

include every subsidiary issue contained therein which was raised in

the trial court." Pa.R.A.P. 1925. (b)(4)(v).

        Issues must be raised "prior to trial, during trial, or in a timely

post-sentence motion to be preserved for appeal." Commonwealth v.

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015).

        Appellant argues that the phone call between Appellant and

Maria Nicholas should not have been played to the jury. When the

Commonwealth introduced the recording, there was no objection by

Attorney Thompson. There was then a 14 minute recess without any

objections made. The entirety of the 20 minutes phone call was then

played to the jury without objection. Nothing in the record indicates

that after the trial that the jury replayed the phone call or that

Attorney Thompson objected to the jury having the phone call recording

with them for deliberations.

        Therefore, the inadmissibility of the phone call was not preserved

for appeal when Attorney Thompson failed to object.


                                        22
  V.     Admissibility of statements ofRoque Castro.

       The admissibility of evidence is held to an abuse of discretion

standard. Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003)

(citations omitted). Hearsay is a statement that the declarant does not

make while testifying at trial; and "a party offers in evidence to prove

the truth of the matter asserted in the statement." Pa.R.E. 801(c).

Testimony to prove a course of conduct is not hearsay. Id.

       Roque Castro did not testify at trial, however his testimony

directly led York City Police detectives to Ashley Rodriguez's apartment

where Appellant was located and arrested. Several officers and

detectives testified to what Castro said and to how they responded in

their investigative efforts to pursue Appellant.

       Attorney Thompson made the hearsay objection each time a

witness described this interaction with Castro. The trial court made it

clear to the jury that the testimony of Castro was to be used for only for

the limited purpose of describing why the police arrived at Ashley

Rodriguez's apartment.

       Therefore, Castro's statements were admissible as not hearsay.


                                      23
  VI.     Sufficiency of the Evidence.

     Finally, Appellant raises a sufficiency of the evidence claim. The

standard for reviewing the sufficiency of the evidence is=

      "whether viewing all the evidence admitted at trial in the light
     most favorable to the verdict winner, there is sufficient evidence to
     enable the fact-finder to find every element of the crime beyond a
     reasonable doubt."

Commonwealth v. Charlton, 902 A.2d 554, 563 (Pa. Super. 2006)

(citations omitted).

        The Commonwealth may sustain its burden of proving every

element of the crime "beyond a reasonable doubt by means of wholly

circumstantial evidence." Id.

        Murder is categorized as:

        (a) Murder of the first degree. --A criminal homicide constitutes
        murder of the first degree when it is committed by an intentional
        killing.
        (b) Murder of the second degree.--A criminal homicide constitutes
        murder of the second degree when it is committed while defendant
        was engaged as a principal or an accomplice in the perpetration of
        a felony.
        (c) Murder of the third degree. ··All other kinds of murder shall be
        murder of the third degree. Murder of the third degree is a felony
        of the first degree.

18 Pa.C.S.A. § 2502.


                                         24
     "Although the statute itself only defines third-degree murder as a

catch-all without describing the elements of the offense, third degree

murder is 'an unlawful killing with malice but without specific intent to

kill."' United States v. Marrero, 743 F.3d 389, 397 (3d Cir. 2014 quoting

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011)).

     "Malice" is defined as:

     'wickedness of disposition, hardness of heart, cruelty, recklessness
     of consequences, and a mind regardless of social duty, although a
     particular person may not be intended to be injured,' [and] malice
     may be found where the defendant consciously disregarded an
     unjustifiable and extremely high risk that his actions might cause
     serious bodily injury.

United States v. Marrero, 743 F.3d 389, 397 (3d Cir. 2014) (citations

omitted).

     The 9 millimeter Smith & Wesson handgun that fired the bullet

that killed Monique Nixon was found near Appellant in Ashley

Rodriguez's bedroom not long after the shooting. The ATF firearm trace

revealed that the handgun transferred from Douglas Otteson to his

drug dealer, Benjamin Rodriguez, and then to Benjamin Rodriguez's

niece's friend, Appellant. The gunshot residue samples were taken from

Appellant's hands not long after the shooting. While DNA evidence



                                    25
shows Ashley Rodriguez touched the handgun at some point, all the

testimonial evidence points to Appellant being the shooter.

     Ashley Rodriguez, her brother and mother, and Appellant all told

the Affiant that Ashley Rodriguez was not the shooter. Yet, no one

stated that Appellant was not the shooter.

     Ashley Rodriguez gave inconsistent accounts of Eddie Gallon

being at the scene and having a firearm. Ashley Rodriguez testified at

trial that the window breaking occurred after the shooting, while Eddie

Gallon testified that he broke the window before hearing gunshots.

Ashley Rodriguez also testified at trial that she knew Appellant had

pursued Eddie Gallon down the street and heard gunshots, then

promptly returned to her bedroom to have sex, seemingly shocked and

angered that the police show up soon afterwards. Appellant was then

found intoxicated in bed.

     The testimony of the inmates puts 2 unassociated inmates against

2 other inmates who were friends with or somehow associated with

Appellant. Overall, the 4 inmates' testimony was indicative of some sort

of cover-up plan by Appellant to shift blame on Ashley Rodriguez. The




                                   26
testimony of inmate Christopher Harris revealed an admission of guilt

by Appellant.

     All of the evidence shows that Eddie Gallon and Ashley Rodriguez

were in the process of ending a tumultuous relationship and that after a

night of drinking, Eddie Gallon attempted to confront Ashely Rodriguez

in the middle of the night. This confrontation led to Appellant

intervening against Eddie Gallon with an intense argument before

Eddie Gallon attempted to walk off. Appellant provoked Eddie Gallon to

return with a last ditch effort to give the final word by breaking a

window. This led Appellant to run outside and fire his Smith & Wesson

handgun, which he had received from Ashley's uncle, and fire it at or in

the direction of the first person he saw in the night.

      Eddie Gallon had already retreated from breaking the window

while Monique Nixon was unfortunately walking on Queen Street

where Appellant had last seen Eddie Gallon.

      Appellant escalated the argument by bringing a firearm, showing

a mindset regardless of social duty. Appellant's firing of the handgun

was reckless of the consequences of who was outside walking on the

street or who was inside any building nearby. Appellant may or may not


                                     27
have intended to shoot Eddie Gallon and most certainly did not intend

to shoot an innocent bystander. However, malice existed because

shooting into the dark was a conscious disregarded of an unjustifiable

and extremely high risk that might cause serious bodily injury in a

needless effort to escalate an argument over a woman.

     Thus, the trial court found Appellant was guilty of Third Degree

Murder with sufficient evidence beyond a reasonable doubt.




                                CONCLUSION

     In conclusion, the lower court respectfully requests that this Court

affirm the trial court's denial of Appellant's motions and affirm the trial

court's sentence.




                                  Harry M. Ness
                                  Judge of the Court of Common Pleas




                                     28
