J-A03022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYREEK DENMARK

                            Appellant                   No. 722 EDA 2015


           Appeal from the Judgment of Sentence October 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006336-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 01, 2016

        Appellant, Tyreek Denmark, appeals from the October 10, 2014

aggregate judgment of sentence of life imprisonment without the possibility

of parole, imposed after he was found guilty of one count each of first-

degree murder and possession of an instrument of a crime (PIC).1           After

careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

                    On March 29, 2013, at approximately 11:00
              a.m., Philadelphia Police Officer Andrew Monroe and
              his partner responded to a call of domestic violence
              on the 5400 block of Regent Street in Philadelphia.
              The officers met with Erica Hood, the alleged victim
              of domestic violence.     While conducting a walk-
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1
    18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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          through of Hood’s property to secure the premises,
          Officer Monroe discovered [Appellant] hiding in the
          basement. As Hood was uncooperative with police
          officers at that time, no further action was taken by
          police. Officer Monroe observed Thyeem Snipe, the
          decedent, standing across the street as the officer
          participated in the investigation. One week prior,
          Snipe and Hood had been in a physical altercation
          with each other[,] which was broken up by police.

                 After police left the scene, [Appellant],
          Jonathan Shaw, co-defendant Paul Tucker Bennett,
          and Tyleal Denmark ([Appellant]’s cousin) were
          hanging out on Regent Street outside of Bennett’s
          home. [Appellant] and Bennett were standing on the
          porch to Bennett’s home while Tyleal and Shaw were
          located on the sidewalk. Snipe was getting on the
          porch wall outside of 5519 Regent Street, which was
          located next door to Bennett’s home.          Bennett
          appeared to hand an object to [Appellant].
          [Appellant], with a gun in his hand, approached
          Snipe and shot him multiple times. [Appellant] then
          left the scene in his car, parking it a short distance
          away.

                Snipe suffered a total of five gunshot wounds.
          Snipe was shot twice through the right of his neck,
          once in his lower right chest, once through his right
          back, and once in his right shoulder. Each of these
          gunshot wounds was fatal on its own. As a result of
          a gunshot wound to the neck, Snipe’s cerebral spinal
          cord was severed, resulting in near instantaneous
          death.

                Police Officer Monroe, who had responded to
          the earlier domestic violence call, heard the shots
          fired by [Appellant] and responded to 5519 Regent
          Street at 12:09 p.m.      Officer Monroe observed
          [Appellant] walking northbound on 55th Street
          towards Chester Avenue.      Officer Monroe further
          observed Snipe lying on the porch of 5519 Regent
          Street.




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                   Eye witness Jameel Starnes told police at the
              scene that [Appellant] was the shooter, and
              [Appellant] was taken into custody. Police never
              recovered the murder weapon.

Trial Court Opinion, 5/21/15, at 2-3 (internal citations and footnotes

omitted).

       On May 24, 2013, the Commonwealth filed an information, charging

Appellant with one count each of first-degree murder, firearms not to be

carried without a license, carrying firearms in public in Philadelphia, PIC, and

third-degree murder.2       On October 7, 2014, Appellant proceeded to a jury

trial, at the conclusion of which the jury found Appellant guilty of first-

degree murder and PIC. The third-degree murder and carrying firearms in

public in Philadelphia charges were nolle prossed, and the trial court granted

Appellant’s motion for a judgment of acquittal on the firearms not to be

carried without a license charge.              On October 10, 2014, the trial court

imposed a sentence of life imprisonment without the possibility of parole for

first-degree murder and no further penalty for PIC. Appellant filed a timely

post-sentence motion on October 20, 2014, and an untimely supplemental

post-sentence motion on October 22, 2014.                   The trial court denied




____________________________________________
2
   18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a), and 2502(c),
respectively.



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Appellant’s post-sentence motions on February 13, 2015.           On March 12,

2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following issues for our review.

              A.     [Whether       this   C]ourt    should    waive
                     [Appellant]’s failure to preserve the issue for
                     appeal because it is a novel issue, which the
                     trial attorney would not have recognized, and it
                     is an important issue that needs to be settled
                     in Pennsylvania[?]

              B.     [Whether a]n autopsy report should be
                     testimonial in Pennsylvania because 1) the
                     medical examiner is considered part of the
                     criminal investigation team and prosecution, 2)
                     the jurisdictions that find autopsy reports
                     testimonial misapply the primary purpose test,
                     and 3) finding it testimonial would be in
                     harmony with the case law regarding the
                     Pennsylvania Constitution’s [C]onfrontation
                     [C]lause[?]

              C.     [Whether a]n application of the [p]rimary
                     [p]urpose test shows that the autopsy report
                     was testimonial[?]

              D.     [Whether t]he admission of the report without
                     cross-examination resulted in harmful error
                     because, without the testimony and report,
                     there is no evidence of cause and manner of
                     death, there is no independent evidence that
                     the individual in the autopsy was Mr. Snide
                     [sic] and [A]ppellant’s defense was based upon
                     the stippling about which only the examining
                     coroner could have testified[?]

Appellant’s Brief at 8.
____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A03022-16


      On the merits, all of Appellant’s issues raise essentially one claim for

our review, whether his rights under the Confrontation Clause were violated

by the admission of an autopsy report through an expert witness who did

not perform, or observe, the autopsy. Appellant’s Brief at 11-19. However,

as noted in his first question presented, Appellant concedes that he did not

object to the admission of the expert testimony in question on any grounds,

constitutional or otherwise. Id. at 8; see also generally N.T., 10/7/14, at

150-174.

      It is axiomatic that issues not raised in the trial court may not be

raised for the first time on appeal.    Pa.R.A.P. 302(a); see also Pa.R.E.

103(a) (stating that a timely and specific objection or motion in limine is

required to preserve for appeal an issue that the trial court abused its

discretion in admitting certain evidence). This Court has consistently applied

these rules to the Confrontation Clause.    Commonwealth v. Hood, 872

A.2d 175, 184 (Pa. Super. 2005), appeal denied, 889 A.2d 88 (Pa. 2005);

see also generally Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa.

Super. 2014) (explaining that even constitutional claims can generally be

waived), appeal denied, 114 A.3d 416 (Pa. 2015).            As noted above,

Appellant has acknowledged that he did not object to the admission of the




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J-A03022-16


expert testimony in question. Appellant’s Brief at 8.4 Therefore, we deem

Appellant’s Confrontation Clause issue waived on appeal for want of

preservation in the trial court.

       In the alternative, even if we were to address the merits, Appellant

would not be entitled to relief. Here, the Commonwealth produced several

additional witnesses that confirmed that the victim in this case was Snipe

and that Snipe was shot multiple times.            Jameel Starnes testified that

Appellant had an object and pointed it at Snipe right before the shots were

fired, saw Appellant fire many shots, and found the victim after the shots

were fired. N.T., 10/8/14, at 19-24, 47. Starnes specifically identified the

victim as Snipe. Id. at 24, 47. Furthermore, Officer Monroe testified that

he discovered Snipe’s body, which had suffered multiple gunshot wounds,

and Officer Monroe specifically identified the deceased as Snipe.            N.T.,

10/7/14, at 84-85, 91.         In addition, Officer Terry Tull, testified as to the
____________________________________________
4
  Appellant’s reliance on Cagnoli v. Bonnell, 611 A.2d 1194 (Pa. 1992) and
Kemper Nat’l P & C Co. v. Smith, 615 A.2d 372 (Pa. Super. 1992) to
excuse his waiver is unconvincing. In Cagnoli, our Supreme Court held that
the appellant’s arguments were preserved because “[t]rial counsel had
neither notice nor an opportunity to research and prepare cogent legal
arguments regarding the motions that were presented the morning he was
expecting to begin trial.” Cagnoli, supra at 1196. Here, Appellant had
ample opportunity to prepare an objection or a motion in limine, as it is not
alleged that the Commonwealth surprised Appellant by calling its expert
witness. Furthermore, in Kemper, this Court simply restated the basic
principle that an appellee does not have the duty to preserve issues for
appeal when the ruling below in the trial court was in its favor. Kemper,
supra at 380-381. Here, Appellant was not the prevailing party at trial and
did have a duty to preserve issues for our review under Rule 302(a).



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condition of Snipe’s body after the shooting.    N.T., 10/8/14, at 115-119.

Therefore, even assuming arguendo that Appellant’s Confrontation Clause

rights were violated, any error was harmless beyond a reasonable doubt.

See generally Chapman v. California, 386 U.S. 18, 24 (1967).

     Based on the foregoing, we conclude Appellant’s issue on appeal is

waived for want of preservation. Additionally, even if it were preserved, any

potential error was harmless beyond a reasonable doubt. Accordingly, the

trial court’s October 10, 2014 judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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