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                                  2014 PA Super 224



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NASIR BUFORD,

                            Appellant                   No. 3297 EDA 2012


          Appeal from the Judgment of Sentence entered July 23, 2012,
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0007423-2011


BEFORE: ALLEN, OLSON, and OTT, JJ.

OPINION BY ALLEN, J.:                                 FILED OCTOBER 08, 2014

        Nasir Buford, (“Appellant”), appeals from the judgment of sentence

imposed following his conviction by a jury of first degree murder, possessing

an instrument of crime, and violating the Uniform Firearms Act.1 We affirm.

        The trial court provided the following background relative to this

action:

               Appellant … appeals from this Court’s judgment[] of
        sentence. Following a jury trial before this Court, Appellant was
        found guilty of first Degree Murder, 18 Pa.C.S.A. §2502(a),
        Possessing an Instrument of Crime, 18 Pa.C.S.A. §907 (PIC) and
        a Violation of the Uniform Firearms Acts, 18 Pa.C.S.A. §§6106
        (VUFA)[.] The charges stemmed from the September 18, 2010
        killing of twenty-one (21) year old Nathaniel Palmer [“decedent”]
        in an alleyway on the 1900 block of Bristol Street in Philadelphia.
____________________________________________


1
    18 Pa.C.S.A. §§2502(a), 907, and 6106, respectively.
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           Following the verdict the Court sentenced Appellant to Life
     Imprisonment for the murder conviction and lesser prison
     sentences for the remaining convictions.      [FN1: The Court
     imposed prison sentences of three and a half (3½) to seven (7)
     years for VUFA, and one (1) to two (2) years for PIC.] All
     sentences were deemed to run concurrently.         Timely Post
     Sentence motions were filed and denied. The instant timely
     appeal was filed.

Trial Court Opinion, 3/17/14, at 1.      The trial court and Appellant have

complied with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     I. Is the appellant entitled to an arrest of judgment with respect
     to his convictions for murder of the first degree, firearms not to
     be carried without a license and possessing instruments of crime
     since the evidence is insufficient to sustain the verdicts of guilt
     as the Commonwealth failed to sustain its burden of proving the
     appellant’s guilt beyond a reasonable doubt?

     II. Is the appellant entitled to a new trial as a result of the trial
     court’s error in denying his right to be present during the jury
     selection phase of the trial during which prospective juror no. 7
     was questioned?

     III. Is the appellant entitled to a new trial as a result of the trial
     court’s ruling that allowed the Commonwealth to introduce the
     preliminary hearing testimony of Yvonne Ann Henderson?

     IV. Is the appellant entitled to a new trial as a result of the trial
     court’s ruling that allowed the Commonwealth to introduce that
     portion of the preliminary hearing testimony of Yvonne Ann
     Henderson with regard to her prior statement and identification
     of a photograph of “Flip?”

     V. Is the appellant entitled to a new trial as a result of the trial
     court’s ruling that allowed the Commonwealth to present the
     testimony of Dr. Edwin Lieberman concerning the results of an
     autopsy performed by Dr. Hunt?

     VI. Is the appellant entitled to a new trial as a result of the trial
     court’s ruling that allowed the Commonwealth to introduce the



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      prior statements of Commonwealth witnesses Derrick Michael
      Jackson and Ralph Smith as substantive evidence?

      VII. Is the appellant entitled to a new trial as a result of the trial
      court’s ruling that allowed the Commonwealth to present
      testimony from Detective Joseph Bamberski with regard to the
      statement [sic] of mind and out-of-court statements made by
      unavailable witness Yvonne Ann Henderson?

Appellant’s Brief at 5-6.

      Appellant’s first issue challenges the sufficiency of the evidence

supporting his convictions. Specifically, Appellant contends:

      The Commonwealth’s evidence failed to establish the appellant’s
      identity as a shooter or as a participant in the incident resulting
      in the victim’s death … Even if the Commonwealth did, in fact,
      prove the appellant’s involvement in the crime, it failed to prove
      that the appellant acted with the specific intent to kill, malice or
      premeditation, that he fired weapon or that he was responsible
      for the victim’s death. The Commonwealth’s evidence in this
      regard was speculative, conjectural and inherently unreliable and
      did not sustain the Commonwealth’s burden beyond a
      reasonable doubt.

Appellant’s Brief at 20.

      Further, Appellant maintains:

      [T]he Commonwealth failed to sustain its burden of proving the
      appellant’s guilt of a violation of the Uniform Firearms Act, 18
      Pa.C.S.A. §6016. Barrel length is an essential element of the
      crime defined in 18 Pa.C.S.A. §6106.         In this matter, the
      Commonwealth presented absolutely no evidence to establish
      barrel length.

Id. at 25-26 (citations omitted).

      We recognize:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in


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      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. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.    In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [finder] of fact while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (citations

omitted).

      We have expressed:

      Evidence is sufficient to sustain a conviction for first-degree
      murder where the Commonwealth has established that the
      defendant acted with a specific intent to kill, that a human being
      was unlawfully killed, that the defendant committed the killing,
      and that the killing was deliberate. A specific intent to kill may
      be inferred from the defendant's use of a weapon on a vital part
      of the victim's body.

Commonwealth v. Ramos, 827 A.2d 1195, 1196 (Pa. 2003) (internal

citations omitted).

      Our crimes code defines possessing an instrument of crime as follows:

            § 907. Possessing instruments of crime




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     (a) Criminal instruments generally.--A person commits a
     misdemeanor of the first degree if he possesses any instrument
     of crime with intent to employ it criminally.



     (b)   Possession    of   weapon.--A     person    commits    a
     misdemeanor of the first degree if he possesses a firearm or
     other weapon concealed upon his person with intent to employ it
     criminally.

                                      ***

     (d) Definitions.--As used in this section, the following words
     and phrases shall have the meanings given to them in this
     subsection:

                                      ***

      “Instrument of crime.” Any of the following:

     (1) Anything specially made or specially adapted for criminal
     use.

     (2) Anything used for criminal purposes and possessed by the
     actor under circumstances not manifestly appropriate for lawful
     uses it may have.

     “Weapon.” Anything readily capable of lethal use and
     possessed under circumstances not manifestly appropriate for
     lawful uses which it may have. The term includes a firearm
     which is not loaded or lacks a clip or other component to render
     it immediately operable, and components which can readily be
     assembled into a weapon.

18 Pa.C.S.A. § 907(a)-(b), and (d).

     Moreover, the Uniform Firearms Act provides in pertinent part:

     § 6106. Firearms not to be carried without a license

     (a) Offense defined.--

     (1) Except as provided in paragraph (2), any person who carries
     a firearm in any vehicle or any person who carries a firearm
     concealed on or about his person, except in his place of abode or



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     fixed place of business, without a valid and lawfully issued
     license under this chapter commits a felony of the third degree.

     (2) A person who is otherwise eligible to possess a valid license
     under this chapter but carries a firearm in any vehicle or any
     person who carries a firearm concealed on or about his person,
     except in his place of abode or fixed place of business, without a
     valid and lawfully issued license and has not committed any
     other criminal violation commits a misdemeanor of the first
     degree.

                                   ***

     (e) Definitions.--

     (1) For purposes of subsection (b)(3), (4), (5), (7) and (8), the
     term “firearm” shall include any weapon which is designed to or
     may readily be converted to expel any projectile by the action of
     an explosive or the frame or receiver of the weapon.

18 Pa.C.S.A. § 6106(a)(1)-(2), (e)(1) (footnote omitted).

     Here, the trial court determined:

           The evidence, viewed in the light most favorable to the
     Commonwealth[,] was as follows: on September 18, 2010 at
     about 1:27 a.m., Philadelphia Police Officer Ernest Tolan
     responded to a radio call for a person with a gun and was the
     first arriving officer at the 1900 Block of Bonitz Street in
     Philadelphia. He parked on the corner of Wayne Avenue and
     saw the decedent lying in the middle of the street.       The
     [decedent] appeared to be shot multiple times and was
     unresponsive.     As other arriving responders tended to the
     [decedent], Officer Tolan followed the blood trail to Bristol
     Street. There, he observed buildings that had bullet damage
     and saw a car with open windows. The smell of marijuana
     emanated from inside the car. N.T. 7/18/12, 80-90.

           Dr. Edwin Lieberman testified that the [decedent] suffered
     three (3) gunshot wounds and also suffered blunt force trauma.
     One bullet entered the [decedent's] right shoulder and exited his
     back.    That wound did not cause any significant trauma.
     Another bullet entered the [decedent's] back and exited the right
     shoulder. This shot caused a small fracture to the [decedent’s]


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     arm. The third shot entered the [decedent’s] chest piercing his
     lung. This shot caused severe blood loss which resulted in the
     [decedent's] death. All shots were from a distance greater than
     two and a half (2½) feet. Medical evidence could not determine
     the order of the shoots [sic]. Dr. Lieberman testified that after
     suffering these three bullet shots, a victim would have been able
     to run a distance until the loss of blood would cause the victim to
     pass out and die. The [decedent] also suffered a red abrasion
     on his right cheek, as if he had fallen. N.T. 7/18/12, 104-119.

            Derrick Michael Jackson [“Jackson”], testified that he knew
     both Appellant and the decedent. The witness was present at
     the shooting scene, socializing with friends. He testified that he
     heard two (2) shots from the alleyway. He saw the decedent
     run and collapse.      In his testimony he denied seeing the
     shooting. However, in a signed statement given to police just a
     few hours after the shooting, and introduced pursuant to
     Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) and
     Commonwealth v. Lively, 464 A.2d 7 (Pa. 1992), the witness
     gave a different version of the events. In that statement the
     witness told the detectives that Appellant, whom he knew as
     Flip, shot the decedent. He stated that prior to the shooting he
     was with the decedent, Appellant's older brother, whom he knew
     as Rafi and another person named Ralph Smith. They were
     drinking. [FN2: Fingerprints belonging to Ralph Smith and the
     decedent were obtained from cups recovered at the crime scene.
     A vodka bottle was also recovered. N.T. 7/18/12, 63-64.] The
     decedent briefly walked away into the alley to sell drugs to
     Yvonne Henderson [“Henderson”]. He then heard a "loud bang,
     bang and looked up." He saw a flash of a gun and saw Appellant
     shooting from the alley.          [FN3: At trial, the witness
     acknowledged that he identified Appellant as the shooter in his
     police statement. N.T. 7/18/12, 168.] Jackson, along with the
     others ran and he eventually saw the decedent collapse. N.T.
     7/18/12, 121- 153. (Testimony of [Jackson]); N.T. 7/19/12, 83-
     98. (Testimony of Detective John Harkins)[.]

           Ralph Smith [“Smith”] testified that he too was at the
     shooting scene, knew all the people who were at the scene but
     did not see the actual shooting.     He testified that the car
     belonged to him. This witness also gave a signed statement to
     the detectives two (2) days after the shooting.        In that
     statement he provided a much more detailed version of what he
     saw from when he first arrived at about 10 p.m. until the
     shooting three and a half (3½) hours later. Immediately before

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      the shooting he saw [Jackson] and Appellant's brother. He did
      not see Appellant. As Smith approached them, he saw the
      decedent walking towards the alley with [Henderson]. Gunshots
      rang out shortly thereafter and he, along with the others fled.
      N.T. 7/18/12, 185-226. (Testimony of [Smith]); N.T. 7/19/12,
      140-158. (Testimony of Detective Levy Morton)[.]

             [Henderson] died before the trial.          However her
      preliminary hearing testimony was read to the jury.
      [Henderson], who lived down the block from Appellant[,]
      testified that she went to the alley to purchase drugs. She saw
      the decedent standing by a car and gave him $10. She saw
      Appellant pointing. Appellant turned and with an outstretched
      arm started shooting at the decedent.         The decedent ran,
      knocking down [Henderson]. When she eventually got up the
      decedent was gone. N.T. 7/19/12, 25-36.

             Crime Scene Police Officer Edward Fidler was dispatched to
      Bristol Street, which faced the alley way. He noticed bullet
      strike marks and holes outside 1912 Bristol [S]treet. Inside he
      recovered two (2) bullets. N.T. 7/19/12, 5-14. Police Officer
      Edward Nelson, a firearms expert examined the two recovered
      bullets. Although he was unable to determine whether they
      were fired from the same gun, he was able to determine that
      both were consistent with being fired from a revolver [FN5:
      Significantly, no shell casings were found at the shooting
      scene.], both had a similar pattern of lands and grooves, and
      both were of similar caliber. N.T. 7/19/12, 52-66. Stipulated
      evidence proved that Appellant was not licensed to carry a
      firearm. [FN6: N.T. 7/19/12, 171.]

Trial Court Opinion, 3/17/14, at 2-5.

      Our review of the record confirms the trial court’s recitation of the

facts and evidence adduced at trial, and supports the trial court’s

determination that there was sufficient evidence to support Appellant’s

convictions.

      Contrary to Appellant’s contention, the Commonwealth’s evidence was

sufficient to establish that Appellant shot the decedent.       Henderson’s


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preliminary hearing testimony was read to the jury as discussed more fully

below.   N.T., 7/19/12, at 25-49.       Henderson identified Appellant, her

neighbor, as the decedent’s shooter. Id. at 28-31. At trial, Jackson testified

that he had recently reviewed the statement that he provided to law

enforcement following the shooting.     N.T., 7/18/12, at 129, 131.    Jackson

“recall[ed] [that] that’s what [he] told the Homicide detectives back on

September 18, 2010[.]”       Id. at 129.    Jackson further testified that he

“signed that statement” along with the photographs that he was shown by

law enforcement.    Id. at 131. Jackson confirmed that in his statement to

law enforcement in the hours following the shooting, he stated that he

witnessed Appellant shoot decedent, and provided a description of Appellant.

Id. at 134-135.

      Dr. Lieberman, a medical examiner with 22 years of experience,

testified that he had reviewed “the medical examiner’s case file [regarding

decedent’s autopsy] … the photographs taken during the autopsy, the actual

clothing worn by the decedent, as well as other records contained in the

file.” Id. at 105-106. Dr. Lieberman provided expert medical testimony that

the decedent sustained three gunshot wounds to his right shoulder, his back,

and his lung. Id. at 109-118. Dr. Lieberman further testified that Appellant

“died as a result of the gunshot wounds.” Id. at 118.

      Viewing the evidence adduced at trial in the light most favorable to the

Commonwealth, the jury could have concluded that the Commonwealth

“established that [Appellant] acted with a specific intent to kill, that a human

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being was unlawfully killed, that [Appellant] committed the killing, and that

the killing was deliberate.” See Ramos, 827 A.2d at 1196. Likewise, the

jury could have concluded that Appellant’s specific intent to kill could be

inferred “from [Appellant’s] use of a weapon on a vital part of [decedent’s]

body.”    Id.   Accordingly, we find that there was sufficient evidence to

support    Appellant’s    conviction    for     first   degree      murder.       See

Commonwealth v. Johnson, 985 A.2d 915, 923 (Pa. 2009) (affirming

conviction for first degree murder where defendant was identified as person

who intentionally and deliberately shot victim multiple times causing victim’s

death).

      Further, the record viewed in the light most favorable to the

Commonwealth,      supports    Appellant’s      convictions   for    possessing    an

instrument of crime and for violating the Uniform Firearms Act.               See 18

Pa.C.S.A. §§ 907 and 6106, respectively. At trial, the jury heard testimony

that the crime scene evidence, as analyzed by firearms expert Police Officer

Nelson, involved two bullet “specimens” which were “consistent with

revolver-type ammunition.”     N.T., 7/19/12, at 55, 62. Officer Nelson based

his opinion on “the caliber, the design of the bullet, the length of it, what we

call the cannelure.      They both had a knurled cannelure[, meaning]…a

circumferential groove around it. These are things characteristic of revolver-

type ammunition.” Id. at 62. Officer Nelson showed the jury examples of a

revolver and a semi-automatic pistol. Id. at 62-63. Officer Nelson testified

that “[m]any people associate [a revolver handgun] with old western-type

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movies or older firearms.”      Id. at 63.     Moreover, Appellant’s counsel

stipulated that Appellant was not licensed to carry a firearm. Based on the

foregoing evidence viewed in the light most favorable to the Commonwealth,

the jury could have reasonably concluded that the weapon used by Appellant

to shoot the decedent was a revolver-type firearm, which Appellant was not

licensed to carry, in violation of 18 Pa.C.S.A. §§ 907 and 6106. Indeed, in

Commonwealth v. Woodbury, 477 A.2d 890 (Pa. Super. 1984), we held

that a conviction for possessing an instrument of crime can be sustained

even if it is based on circumstantial evidence. Specifically, we explained:

      The only evidence in support of the accusation of possession was
      purely circumstantial. However, once the factfinder concluded
      that the appellant was the slayer and that the death resulted
      from the infliction of a gunshot wound, the factfinder could
      logically have concluded from all of the evidence that appellant
      had possession of a gun, that the gun was an instrument
      commonly used for criminal purposes, and that his possession of
      the gun was, under the circumstances, not manifestly
      appropriate for any lawful use that the gun may have had. See
      Commonwealth v. Keaton, 276 Pa. Super. 518, 522, 419 A.2d
      578, 580 (1980), where a conviction for [possessing an
      instrument of crime] was upheld based only upon circumstantial
      evidence and with an absence of any direct evidence of actual
      physical possession of the weapon.           Therefore, appellant's
      conviction for this offense was grounded upon competent
      evidence. The evidence brought out during the course of the
      trial is sufficient to sustain both the conviction for murder in the
      third degree and the conviction for possession of an instrument
      of crime.

Id. at 893-894 (footnote omitted).      Accordingly, we find that Appellant’s

sufficiency claims are without merit.




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      Appellant’s second issue contends that he is “entitled to a new trial as

a result of the trial court’s error in denying his right to be present during the

jury selection phase of the trial during which prospective juror no. 7 was

questioned.” Appellant’s Brief at 27.

      Our Supreme Court has explained:

            The purpose of voir dire is to provide an opportunity to
      counsel to assess the qualifications of the prospective jurors to
      serve. It is therefore appropriate to use such an examination to
      disclose fixed opinions or to expose other reasons for
      disqualification. Commonwealth v. Drew, 500 Pa. 585, 588, 459
      A.2d 318, 320 (1983) (citing Commonwealth v. Johnson, 452 Pa.
      130, 305 A.2d 5 (1973)). See also Commonwealth v. Lopinson,
      427 Pa. 284, 234 A.2d 552 (1967) and Commonwealth v.
      McGrew, 375 Pa. 518, 100 A.2d 467 (1953). It is well settled
      that the sole purpose of examination of jurors under voir dire is
      to secure a competent, fair, impartial and unprejudiced jury.

Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006).

      Moreover, our Supreme Court recently observed:

            The right to trial by jury is guaranteed by the Sixth
      Amendment to the U.S. Constitution and by the Pennsylvania
      Constitution, Article I, Section 6 and Section 9. A defendant's
      right to be present at his or her trial is grounded in the
      Confrontation Clause of the Sixth Amendment and in the Due
      Process Clauses of the Fifth and Fourteenth Amendments. The
      United States Supreme Court has determined that “[o]ne of the
      most basic of the rights guaranteed by the Confrontation Clause
      is the accused's right to be present in the courtroom at every
      stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct.
      1057, 25 L.Ed.2d 353 (1970) (citing Lewis v. United States, 146
      U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)). In addition, the
      High Court “has assumed that, even in situations where the
      defendant is not actually confronting witnesses or evidence
      against him, he has a due process right to be present in his own
      person whenever his presence has a relation, reasonably
      substantial, to the fullness of his opportunity to defend against

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     the charge.... Thus, a defendant is guaranteed the right to be
     present at any stage of the criminal proceeding that is critical to
     its outcome if his presence would contribute to the fairness of
     the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107
     S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quotation marks and
     internal citation omitted).

            The High Court has explicitly affirmed that voir dire is a
     critical stage of the criminal proceeding, during which the
     defendant has a constitutional right to be present. Gomez v.
     United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d
     923 (1989) (citing Lewis, supra at 374, 13 S.Ct. 136). The
     determination that voir dire is a critical stage of trial flows
     directly from the recognition that a defendant's “life or liberty
     may depend upon the aid which, by his personal presence, he
     may give to counsel and to the court and triers in the selection
     of jurors.” Lewis, supra at 373, 13 S.Ct. 136. However, certain
     decisions regarding the conduct of voir dire are properly made
     by counsel alone. See, e.g., Gonzalez v. United States, 553 U.S.
     242, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2009) (holding that
     defense counsel may decide whether to consent to voir dire
     proceedings before a federal magistrate).

        The High Court has also stated:

        The mere occurrence of an ex parte conversation between
        a trial judge and a juror does not constitute a deprivation
        of any constitutional right.       The defense has no
        constitutional right to be present at every interaction
        between a judge and a juror, nor is there a constitutional
        right to have a court reporter transcribe every such
        communication.

     U.S. v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d
     486 (1985).

           Article I, § 9 of the Pennsylvania Constitution and
     Pennsylvania Rule of Criminal Procedure 602 guarantee the right
     of an accused to be present in the courtroom at every stage of a
     criminal trial. Commonwealth v. Rompilla, 554 Pa. 378, 721
     A.2d 786, 793 (1998); Commonwealth v. Ford, 539 Pa. 85, 650
     A.2d 433, 440 (1994).         Rule 602(a) provides that “[t]he
     defendant shall be present at every stage of the trial including
     the impaneling of the jury....” As we have recently determined,
     this rule “plainly states that the defendant has the right to
     observe every phase of the trial, including the impaneling of the

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     jury.” Williams, supra at 618. In addition, the jury selection
     process is crucial to the preservation of the right to an impartial
     jury as guaranteed by Article I, § 9 of the Pennsylvania
     Constitution. Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d
     1101, 1102 (1987).

           However, like the U.S. Supreme Court, this Court has
     recognized that the right to be present in the courtroom during
     one's trial is not absolute.      This Court has stated that a
     “defendant's presence in chambers and at sidebar is not required
     where he is represented by counsel.” Commonwealth v. Boyle,
     498 Pa. 486, 447 A.2d 250, 253 (1982). In Boyle, the appellant
     challenged the trial court's denial of a recusal motion, citing the
     appellant's exclusion from sidebar and in-chambers conferences
     as evidence of judicial prejudice. We determined that there was
     no merit to the appellant's assertions, noting that defense
     counsel was present at the conferences and had an
     unconstrained right to confer with his client. Id. at 252–53 & n.
     7. See also Commonwealth v. Proctor, 526 Pa. 246, 585 A.2d
     454, 460 (1991) (affirming the denial of relief after the trial
     court reseated an erroneously dismissed juror, after discussion
     with counsel but outside the defendant's presence).

                                   ***

           [W]e conclude that although a defendant has the
     clear right to participate in the jury selection process, that
     right is not compromised where, as here, the defendant,
     who was in the courtroom, was not present at sidebar
     where his counsel was questioning several venirepersons
     outside the range of his hearing.             We reach this
     conclusion because, like other jurisdictions, we recognize
     that a defendant's right to participate in voir dire may be
     satisfied through procedures that both ensure the
     defendant's right to choose and be tried by a fair and
     impartial jury, yet make accommodations for trial court
     efficiency and safety, and the comfort, protection, and
     respect for the jury pool. Nothing in the federal or state
     constitutions, and nothing in Pa.R.Crim.P. 602(a),
     requires a contrary result. We recognize and reaffirm, as
     other jurisdictions have done, that trial courts are in the
     best position to determine how to proceed in each case
     and how to strike the appropriate balance. We hold that
     where some questioning of venirepersons occurs at
     sidebar and outside of the defendant's hearing, the

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     defendant's consultation with his or her counsel regarding
     these proceedings may certainly serve as an adequate
     basis upon which to conclude that the defendant's right to
     be present during jury impanelment has been respected.

Commonwealth v. Hunsberger, 58 A.3d 32, 37-40 (Pa. 2012) (footnote

omitted) (emphasis supplied).

     Appellant asserts that Hunsberger is distinguishable in this case, and

argues:

            In Hunsberger, prospective jurors were questioned in the
     defendant’s presence, but out of his hearing. The defendant
     participated in the questioning and/or selection of these
     prospective jurors since the record showed that the defendant
     consulted with the trial counsel during the questioning and
     selection of these jurors.

           In the instant matter, the appellant’s trial counsel objected
     to questioning of prospective Juror no. 7 in his absence. The
     questioning of this prospective juror did not take place in the
     appellant’s presence, but in the trial judge’s robing room out of
     the sight and hearing of the appellant. Moreover, the record
     does not reflect whether trial counsel ever consulted with the
     appellant concerning prospective Juror no. 7.

Appellant’s Brief at 31. We do not agree with Appellant.

     Our review of the record reveals that Appellant was present when the

trial court began its examination of the venirepersons.     Indeed, the trial

court personally addressed Appellant to advise him that it was the trial

court’s “practice to introduce [Appellant], as well as all counsel” to the

venirepersons. N.T., 7/16/12, at 3. Likewise, Appellant was present when

the trial court explained to the venirepersons the following courtroom

procedure:



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J-S62013-14


      [I]f for some reason, ladies and gentlemen, one of these
      questions [from the jury questionnaire] that I ask of you is
      something that you would like to discuss in private and not in
      front of the entire jury panel, then all you need to do is say that
      to the Court and then you have to give us a minute or two.
      What will then happen is we’ll go through that door to the robing
      room, the stenographer and the attorneys and I will set up; and
      then that juror will be brought to the back and questioned out of
      the hearing of the other members of the panel.

Id. at 8.

      Appellant was also present when the trial court began its examination

of prospective juror no. 7, and the potential juror revealed that her son had

been the victim of a crime involving a weapon.      Specifically, the following

exchange occurred:

      [Trial] Court: [] Juror number seven, you indicated that you or
      someone close to you had been the victim of a crime?

      Prospective Juror 7: Yes.

      [Trial] Court: The person’s relationship to you and the crime?

      Prospective Juror 7: My son.

      [Trial] Court: And what was the crime?

      Prospective Juror 7: He was robbed.

      [Trial] Court: I am sorry to hear that. Was a weapon used?

      Prospective Juror 7: He didn’t say.

      [Trial] Court: Was he injured in any way?

      Prospective Juror 7: Yes.

      [Trial] Court: How was he injured?

      Prospective Juror 7: Well, when he tried to finally get away, he
      fell and that’s when they, a gang of them had robbed him of his
      school bag, went through his pockets.



                                     - 16 -
J-S62013-14


      [Trial] Court: I am very sorry to hear that. Did he have to go to
      the hospital as a result of this?

      Prospective Juror 7: He wouldn’t tell me that.

      [Trial] Court: Now, obviously, as a mother, this is a very
      upsetting thing to happen to someone that you care about. Did
      he report this to the police?

      Prospective Juror 7: Yes.

      [Trial] Court: Was anyone ever arrested?

      Prospective Juror 7: Not that I know of.

      [Trial] Court: Now, because of this experience, do you hold any
      prejudice for or against the police department or the justice
      system as a whole because your son was th[e] victim of a
      robbery and assault and no one was ever apprehended?

      Prospective Juror 7: No.

Id. at 29-30.

      The trial court then questioned prospective juror no. 7 regarding her

“education and training past high school” and whether she had taken “any

classes that were law or law related[.]” Id. at 30. Prospective juror no. 7

asked the trial court, “can we talk in private?”    Id. at 31.   The following

discussion ensued:

      [Trial] Court: Certainly. It will just—you just have to give us a
      minute. If the stenographer will set up in the back and I will see
      counsel.

              As soon as we are set up, we will bring you into the back.
      Okay.

              ---

              (Whereupon, the following took place in the Judge’s robing
              room.)




                                     - 17 -
J-S62013-14


     [Appellant’s counsel]: I just have to note a timely objection
     because my client, he obviously can’t be present for this.

     [Trial] Court: No. In regards to the sidebars, because of the
     security, your client cannot be present. Your objection is noted
     and I would direct you to relay to him any answer to this, the
     additional questions.

           ---

           (Whereupon, prospective juror number 7 enters the robing
           room.)

           ---

     [Trial] Court: All right. So juror number seven, in regards to
     your legal training, you asked to see us at sidebar. What type of
     specialized legal training do you have?

     Prospective Juror 7: Okay. I work for the Department of
     Homeland Security, ICE, but every now and then we have to
     take training, mandatory training for our job.

     [Trial] Court: All right. So, let me ask you this, because,
     obviously you are in a high security position. I see that you
     work for deportation and removal of—this is of people involved
     as immigrants or in terrorist issues?

     Prospective Juror 7: Both.

     [Trial] Court: Both. So, obviously, you have regular contact
     with members of law enforcement both on the state, federal, and
     local issue?

     Prospective Juror 7: Yes, ma’am.

     [Trial] Court: So here is what I want to know: Because you
     work in an, obviously, very—we appreciate your, the work that
     you do.

     Prospective Juror 7: Thank you.

     [Trial] Court: Is there anything about the nature of that work
     that you think would impact your ability to be a fair juror in this
     case?

     Prospective Juror 7: No.



                                   - 18 -
J-S62013-14


      [Trial] Court: [] What I want to know is if I instruct you on the
      law and I tell you what it is, do you understand that you have to
      apply the law as I give it to you, not any law that you know,
      think you know, may have been—may have studied, tested on or
      discussed in a classroom, would you be able to follow my
      instructions on the law?

      Prospective Juror 7: Yes, uh-huh.

      [Trial] Court: Okay. And how long have you worked in your
      capacity for Homeland Security and the other agencies?

      Prospective Juror 7: I’ve been with Homeland Security for 15
      years, and the Department of Defense for 16 years.

                                   ***

      [Trial] Court:   Okay.   So, counsel, you may, if you have
      additional questions, [Appellant’s counsel], you may ask those
      questions.

      [Appellant’s counsel]: Yes. You said [you are a] deportation
      and removal assistant. If you could just elaborate a little bit
      on—

      Prospective Juror 7: Okay. That’s my title. Well, I mainly work
      in administrative, timekeeper, purchases and maybe moving
      some files every now and then. I have contact with who we
      bring in.

      [Appellant’s counsel]: Okay. That’s all.

Id. at 31-34.

      Consonant with Hunsberger, we find that the trial court was “in the

best position to determine how to proceed” regarding prospective juror no.

7’s request for a private discussion. Hunsbereger, 58 A.3d 40. We further

find that the trial court did not abuse its discretion in determining that

“because of security” Appellant would not be in the robing room.          N.T.,

7/16/12, at 31.   Moreover, Appellant’s counsel was present during the in



                                   - 19 -
J-S62013-14



camera examination of prospective juror 7, and questioned her after the trial

court concluded its own examination. Id. at 31-34. Further, while Appellant

argues that “the record does not reflect whether trial counsel ever consulted

with the appellant concerning prospective Juror no. 7,”      the record clearly

reflects that Appellant’s trial counsel was specifically “direct[ed] to relay to

[Appellant] any answer” and information received from prospective juror no.

7 during the in camera examination. Appellant’s Brief at 31; N.T., 7/16/12,

at 31.

          Appellant’s counsel was afforded “an opportunity … to assess the

qualifications of the prospective juror[] to serve.” Ellison, supra, at 423-

424.     We are not persuaded that Appellant’s absence from the in camera

examination of prospective juror no. 7 resulted in Appellant being tried

before an incompetent, unfair, partial and prejudiced jury.      Id.   Appellant

was present during the rest of the jury selection process.         Accordingly,

applying the rationale espoused by our Supreme Court in Ellison and

Hunsberger, we find that Appellant’s challenge to his absence from the in

camera examination of prospective juror no. 7 is unavailing.

         Appellant’s third and fourth claims of error challenge the admission of

Henderson’s preliminary hearing testimony, including references to the

portion of Henderson’s statement to law enforcement which “made reference

to a photographic identification of an individual known as ‘Flip,’ presumably

the appellant … [because] Henderson never indicated that ‘Flip’ was the

individual responsible for the death of the victim.” Appellant’s Brief at 33,

                                      - 20 -
J-S62013-14



45. “A ruling on the admissibility of evidence will only be reversed upon a

showing that the trial court abused its discretion.”       Commonwealth v.

Kunkle, 79 A.3d 1173, 1179 (Pa. Super. 2013) (internal citations and

quotations omitted).

     Instantly, the trial court determined:

            Appellant, under two separate theories, challenges this
     Court's ruling permitting the use of [Henderson's] preliminary
     hearing testimony. He first claims that he did not have a full and
     fair opportunity to cross examine her at the preliminary hearing.
     He also objects to the admissibility of certain portions of her
     testimony concerning a prior statement and an identification of
     Appellant's photograph. The exception to the hearsay rule which
     permits the admission of an unavailable witness's prior
     preliminary hearing testimony "is ‘predicated on the “indicia of
     reliability" normally afforded by adequate cross-examination.
     But where . . . that indicia of reliability' is lacking, the exception
     is no longer applicable." Commonwealth v. Bazemore, 614 A.2d
     684, 687 (Pa. 1992), quoting Commonwealth v. Mangini, 425
     A.2d 734, 739 (Pa. 1981).          Therefore, "in order for prior
     testimony to be admissible in a subsequent proceeding as
     substantive evidence against the accused, there must have been
     a 'full and fair opportunity to cross-examine.'" Commonwealth
     v. Thompson, 648 A.2d 315, 322 (Pa. 1994), quoting
     Commonwealth v. Bazemore, supra                   at 687.        "The
     Commonwealth may not be deprived of its ability to present
     inculpatory evidence at trial merely because the defendant,
     despite having the opportunity to do so, did not cross-examine
     the witness at the preliminary hearing stage as extensively as he
     might have done at trial." Commonwealth v. Thompson, supra
     (footnote omitted). However, where the defense, at the time of
     the preliminary hearing, was denied access to vital impeachment
     evidence, such as prior inconsistent statements of the witness or
     the witness's criminal record, a full and fair opportunity to cross-
     examine the unavailable witness may be deemed to have been
     lacking at the preliminary hearing. Commonwealth v. Smith,
     647 A.2d 907, 911-915 (Pa. Super[.] 1994).

          The record of the preliminary hearing discloses that prior
     to the preliminary hearing, counsel was provided with the

                                    - 21 -
J-S62013-14


     witness prior statement and with the witness arrest record. N.T.
     6/28/2011, 4. We reviewed the substance of the preliminary
     hearing and determined that counsel was accorded full and fair
     cross examination of the witness. We find no errors concerning
     the use of any prior statements. We also note that the witness
     knew Appellant as they lived near each other. Accordingly any
     challenge to the identification of his photo is baseless. Therefore
     Appellant's challenges to the admissibility of these [sic]
     testimony fails under both theories.

Trial Court Opinion, 3/17/14, at 6-7 (footnotes omitted).

     The record and applicable jurisprudence supports the trial court’s

admission of Henderson’s preliminary hearing testimony as substantive

evidence, which includes Henderson’s identification of Appellant in her law

enforcement statement.         At the preliminary hearing, the Commonwealth

asserted     that    Appellant’s    “[c]ounsel    has    been   provided   a   copy   of

[Henderson’s] statement, as well as her FBI [extract] for purposes of

preservation.” N.T., 6/28/11, at 4. Appellant’s counsel at the preliminary

hearing did not deny the Commonwealth’s assertion that those materials had

been provided to him.         Id.    We further note that Appellant’s preliminary

hearing counsel did not assert to the trial court that there was any

outstanding discovery which would prevent him from conducting a full and

fair cross-examination of Henderson. Id. 3-34. During direct examination,

Henderson explained that she had known Appellant, a.k.a Flip, for

approximately two to three years. Id. at 6, 13. Henderson testified that she

and Appellant live on “the same block.”             Id. at 8.    Henderson described

Appellant point and shoot at decedent. See id. at 9-11. During Henderson’s

testimony,     the    Commonwealth       provided       Henderson   with   a   copy   of

                                         - 22 -
J-S62013-14



Henderson’s statement to law enforcement “the night that this happened.”

Id. at 16-17.   The Commonwealth reiterated that Appellant’s preliminary

hearing counsel “has a copy [of Henderson’s statement to law enforcement],

as well as any relevant [FBI] extracts.” Id. at 17. Henderson testified she

had initialed and signed her statement to law enforcement, had signed a

page with Appellant’s picture and written the name “Flip” on it, and had

signed a separate document indicating she had “adopted” her statement to

law enforcement. Id. at 17-18.    Henderson admitted that the statement to

law enforcement contained her “words when [she] talked to Homicide,” and

that she told them “what [she] saw” and “who [she] saw do it.” Id. at 18-

19. Henderson denied that “anyone force[d] her to say anything[.]” Id. at

19.

      Appellant’s preliminary hearing counsel cross-examined Henderson

about 1) her being a crack addict; 2) her efforts to reach Appellant to buy

drugs from him; 3) her drug sale with decedent after she could not reach

Appellant; 4) her topics of conversation with decedent during the drug

transaction; 5) her drug and alcohol use the evening of the shooting; 6) her

vision and her use of reading glasses; 7) what Henderson heard prior to the

shooting; 8) Appellant’s position in the alley before the shooting; 9) the

lighting in the alley and Henderson’s lack of flashlight; 10) what Appellant

was wearing; 11) the length of time Appellant stood in the alley prior to the

shooting; 12) Henderson’s position in the alley prior to the shooting along

with the decedent’s position vis á vis Henderson; 13) decedent’s height; 14)

                                   - 23 -
J-S62013-14



what Henderson observed after the shooting; 15) her actions following the

shooting; 16) her failure to tell law enforcement at the crime scene that

Appellant had perpetrated the shooting; 17) and her fear of Appellant and

“everybody” following the shooting. Id. at 19-30. After the Commonwealth

re-examined Henderson, Appellant’s preliminary hearing counsel asserted to

the trial court that “[f]or the purpose of this hearing, I don’t have any

other questions.” Id. at 32 (emphasis supplied).

      At trial, Appellant’s trial counsel “stipulated … that [Henderson] is

deceased.”        N.T., 7/16/12, at 3.   The trial court colloquied Appellant

regarding this stipulation, and Appellant affirmed that he “accept[ed] that

stipulation[.]”      Id. at 4.    Accordingly, Henderson’s unavailability is

undisputed.        Appellant’s trial counsel conceded that “I have nothing to

disprove that [Appellant’s preliminary hearing counsel] did, in fact, receive

the notes of testimony” concerning Henderson. Id. at 5. In arguing against

the admission of Henderson’s preliminary hearing testimony, Appellant’s trial

counsel complained that Appellant’s preliminary hearing counsel did not

have “available to him [the] physical evidence to corroborate [Henderson’s]

statement such as her phone records where she makes reference to making

a phone call to both [Appellant] and to the decedent.” Id. Appellant’s trial

counsel further argued that Appellant’s preliminary hearing counsel did not

have “the rest of the discovery,” which deprived Appellant’s preliminary

hearing counsel from having “an idea of what other witnesses would say

comparable to [Henderson].” Id. at 5-6.

                                      - 24 -
J-S62013-14



      In admitting Henderson’s preliminary hearing testimony, the trial court

reasoned:

      The Court will note that I have read the preliminary hearing
      notes of June 28th of 2011, that there was extensive direct and
      cross [examination] of [Henderson], there was a copy of the FBI
      extract and the statement [Henderson gave to law enforcement
      [was] provided [to counsel]…[.] [S]o after review of the notes
      [of testimony,] the Court finds that there was a full and fair
      cross-examination of [Henderson], that the notes were properly
      preserved, that [Appellant] was present, and therefore, was able
      to confront the witness and consult with his attorney and that
      the Commonwealth may, in fact, use the notes of [Henderson’s]
      testimony at the trial.

Id. at 6-7.

      Based on our review of the preliminary hearing and decisional law, we

find that the trial court did not abuse its discretion in admitting at trial

Henderson’s preliminary hearing testimony, which included references to her

identification of Appellant in her law enforcement statement.             Henderson,

who had known Appellant for approximately two to three years, was clearly

unavailable, her criminal record and statement to law enforcement had been

provided      to   Appellant’s   preliminary   hearing   counsel,   and   Appellant’s

preliminary hearing counsel had a full and fair opportunity to cross-examine

Henderson.         N.T., 6/28/11, 4-32; see Commonwealth v. McCandless,

728 A.2d 713, 721 (Pa. Super. 2001) (admitting preliminary hearing

testimony of a deceased witness at a second trial regarding whom appellant

had a full and fair opportunity to cross-examine at the preliminary hearing);

see also Appellant’s Brief at 40 relying on Commonwealth v. Rodgers,


                                         - 25 -
J-S62013-14



372 A.2d 771 (Pa. 1977) (“[I]t is well settled that an unavailable witness’

prior recorded testimony from a preliminary hearing is admissible at trial and

will not offend the right of confrontation, provided the defendant had counsel

and   a   full   opportunity   to   cross-examine   that   witness   at   the   prior

proceeding.”). Therefore, we find that Appellant’s third and fourth claims of

error are without merit.

      Appellant’s fifth issue challenges the admission of Dr. Lieberman’s

testimony “since he did not perform the autopsy on the victim’s body.”

Appellant’s Brief at 47. Specifically, Appellant contends:

            Herein, Dr. Lieberman was called at trial as an expert in
      forensic pathology. He was called as a witness due to the fact
      that Dr. Hunt, the medical examiner who performed the autopsy
      was no longer employed by the Medical Examiner’s Office in
      Philadelphia and it was claimed that [Dr. Hunt] was not available
      to testify. Dr. Lieberman testified that he reviewed the file. Dr.
      Lieberman apparently agreed with the findings contained in Dr.
      Hunt’s report.

                                       ***

            Dr. Lieberman’s testimony was essentially hearsay. The
      admission of inadmissible hearsay must always equate with the
      denial of the right of confrontation. The fact that Dr. Lieberman
      was qualified and testified as an expert in forensic pathology
      does not cure the denial of the appellant’s right to confront Dr.
      Hunt.

Id. at 50. Appellant further contends that “[p]rovisions have to be made to

assure that the medical examiner who performed the autopsy is returned to

Philadelphia in the criminal prosecution.” Id. We disagree.

      In rebutting this claim of error, the trial court explained:



                                       - 26 -
J-S62013-14


            Appellant challenges the testimony of Dr. Lieberman
      because he did not conduct the actual autopsy. The autopsy
      was conducted by former Medical Examiner, Dr. Hunt, who by
      the time of trial was with the Riverside, California Medical
      Examiner's Office. N.T. 7/18/12, 105. Dr. Lieberman, who at
      the time of trial was a Philadelphia Medical Examiner for 22
      years, testified that prior to his testimony he reviewed Dr. Hunt's
      complete report, the photographs taken during the autopsy, the
      actual clothing worn by the decedent and other documents
      contained in the Medical Examiner's file. N.T. 7/18/12, 104-106.
      Contrary to Appellant's assertion, the record is clear that Dr.
      Lieberman did not simply recite the opinion of Dr. Hunt. His
      testimony was based upon his own conclusions after his own
      independent review of the file. This was demonstrated beyond
      any dispute as he found an error in Dr. H[u]nt's initial report.
      Dr. Hunt's report indicated that one of the bullet wounds
      traveled right to left. Dr. Lieberman testified that it was an error
      and that bullet traveled left to right.        N.T. 7/18/12, 109.
      Accordingly, this claim too must be rejected.

Trial Court Opinion, 3/17/14, at 7-8.      We agree with the trial court.     See

Commonwealth v. Ali, 10 A.3d 282, 306 (Pa. 2010) (post-conviction relief

for ineffective assistance of counsel denied for counsel’s failure to seek a

mistrial after medical examiner who did not author autopsy report testified;

inter alia, prior jurisprudence held that “a medical expert who did not

perform the autopsy may testify as to cause of death as long as the

testifying   expert   is   qualified    and     sufficiently   informed”)   citing

Commonwealth v. Smith, 391 A.2d 1009 (Pa.                 1978)               and

Commonwealth v. Mitchell, 570 A.2d 532 (Pa. 1990).

      Likewise, in Commonwealth v. Reed, 645 A,2d 872 (Pa. 1994), we

observed:

      Appellant contends, first, that trial counsel was ineffective for
      failing to object to the testimony of Dr. Joshua Perper, the


                                       - 27 -
J-S62013-14


       Allegheny County coroner, concerning the cause of death of the
       victim, Thomas Law. Dr. Catherine Janosz, a former employee
       of the coroner's office, performed the autopsy on the victim, and
       Dr. Perper's testimony concerning the cause of death was based
       on his review of the report of Dr. Janosz, who did not testify.
       Appellant maintains that Dr. Janosz's report was hearsay and
       that the admission of Dr. Perper's testimony as to the contents
       of that report caused appellant to be denied his right of cross-
       examination.

Reed, 645 A.2d at 880.           Relying on Mitchell, we denied post-conviction

relief for ineffective assistance of counsel, and noted:

             In Commonwealth v. Mitchell, 391 Pa. Super. 100, 570
       A.2d 532 (1990), appeal denied, 527 Pa. 599, 589 A.2d 689
       (1990), a panel of this Court considered the claim of appellant,
       who had been convicted of first degree murder, that his trial
       counsel was ineffective for failing to object to the testimony of
       the medical examiner, Dr. Catherman, concerning the manner
       and cause of the victim's death. Dr. Catherman based his
       testimony on autopsy reports prepared by Dr. Carpenter, who
       was unavailable because he had moved out of the country.
       Judge Olszewski, the author of the lead opinion, concluded that
       the testimony was properly admitted and that trial counsel was
       therefore not ineffective for failing to object to it.

Reed, supra, at 880. Given the foregoing, we find Appellant’s challenge to

the admission of Dr. Lieberman’s testimony to be unavailing.2

       Appellant’s sixth issue challenges the trial court’s admission of

Jackson’s and Smith’s prior police statements, which were inconsistent with

their trial testimony. Appellant contends:

____________________________________________


2
 The fact that the procedural posture of this direct appeal differs from the
post-conviction relief posture of Ali and Reed, supra, does not affect our
analysis.



                                          - 28 -
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      At trial, neither Jackson nor Smith claimed to have witnessed the
      shooting. Neither Jackson nor Smith adopted their statements
      as required by Lively [infra]. Moreover, the detective who
      interviewed Jackson was not call[ed] as a witness at trial since
      he was on vacation at the time. Clearly, the statements of
      Jackson and Smith could not be considered as substantive
      evidence.

Appellant’s Brief at 54. We disagree.

      Pennsylvania Rule of Evidence 803.1 governs the admission of prior

inconsistent statements, and provides in pertinent part as follows:

      Rule 803.1. Exceptions to the Rule Against Hearsay--
      Testimony of Declarant Necessary

      The following statements are not excluded by the rule against
      hearsay if the declarant testifies and is subject to cross-
      examination about the prior statement:

      (1) Prior Inconsistent Statement of Declarant-Witness. A
      prior statement by a declarant-witness that is inconsistent with
      the declarant-witness's testimony and:

      (A) was given under oath subject to the penalty of perjury at a
      trial, hearing, or other proceeding, or in a deposition;

      (B) is a writing signed and adopted by the declarant; or

      (C) is a verbatim contemporaneous electronic, audiotaped, or
      videotaped recording of an oral statement.

Pa.R.E. 803.1(1).

      Our Supreme Court explained:

            In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66
      (1986), we reconsidered the longstanding rule that prior
      inconsistent statements of a non-party witness could only be
      used to impeach the credibility of the witness, not as substantive
      evidence to prove the truth of the matters asserted therein. We
      were persuaded to adopt the developing view that such
      statements may be used as substantive evidence where the


                                    - 29 -
J-S62013-14


     declarant is   a   witness   at     trial   and   available   for   cross-
     examination.

           In Brady, the defendant was convicted of second degree
     murder, burglary and criminal mischief for the stabbing death of
     a security guard. The defendant's girlfriend, Tina Traxler, was
     interviewed by the police on the day of the murder. Traxler first
     told the police that she and the defendant were riding in a car
     that became stuck in a ditch near the manufacturing plant where
     the security guard was employed. When she accompanied the
     police to the area, however, Traxler admitted that they had
     entered the plant and that her boyfriend had stabbed the
     security guard.

           Traxler agreed to make a tape-recorded statement when
     she returned to the police station. In her recorded statement,
     she identified her boyfriend as the perpetrator of the crimes.
     She stated that they had entered the plant and that her
     boyfriend had stabbed the security guard when he surprised
     them while they were attempting to pry open a dollar bill change
     machine.

           Traxler recanted her tape-recorded statement when called
     as a witness by the Commonwealth at trial. She denied that she
     and her boyfriend had entered the plant. Traxler admitted that
     she had given the statement to the police, but explained the
     discrepancies by claiming that she was afraid of the police and
     had told them what they wanted to hear. The Commonwealth
     was permitted to introduce the tape-recorded statement as
     substantive evidence to prove the truth of the matters asserted
     and the jury was instructed that the statement could be
     considered for that purpose.

           We held that the tape-recorded statement was properly
     admitted as substantive evidence because the statement was
     rendered under highly reliable circumstances assuring that it was
     voluntarily given.    Furthermore, the witness was subject to
     cross-examination as to the validity of each statement. The jury
     had the opportunity to observe the demeanor of the witness and
     to assess her credibility.

            We did not address in Brady under what circumstances a
     prior inconsistent statement would be considered highly reliable
     so as to render the statement admissible as substantive
     evidence.      The issue was subsequently addressed in
     Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). We

                                       - 30 -
J-S62013-14


     held that a prior inconsistent statement by a non-party witness
     shall be used as substantive evidence only when it was given
     under oath at a formal legal proceeding, or the statement was
     reduced to a writing signed and adopted by the declarant, or the
     statement was recorded verbatim contemporaneously with the
     making of the statement.

                                   ***

           [] By restricting such use of prior inconsistent statements
     to those given under oath at a formal proceeding, or reduced to
     a writing signed and adopted by the witness, or which are
     contemporaneous verbatim recordings of a witness's statements,
     we intended “to ensure that only those hearsay declarations that
     are demonstrably reliable and trustworthy [will be] considered as
     substantive evidence....” 530 Pa. at 471, 610 A.2d at 10.

Commonwealth v. Wilson, 707 A.2d 1114, 1115-1117 (Pa. 1998).

     In admitting the prior inconsistent statements of trial witnesses who

recanted their prior statements in a first degree murder trial, our Supreme

Court reasoned:

           Our Court has, thus, fully embraced the view that it is the
     finder-of-fact's ability to make in-person observations of the
     witness at the time of trial, as he or she explains the reasons for
     the prior statement, which is most crucial to its assessment of
     the witness's credibility. We have determined that it is the
     “great engine of cross examination” which furnishes the best
     method by which the witness's motives for changing his or her
     story, from that given previously, may be fully and thoroughly
     explored, and, correspondingly, it is the best means to furnish
     the finder-of-fact with a sound basis by which it may discern
     which of the two tales told by the witness is worthy of belief.

                                   ***

           Our Court's decision in Brady, … acknowledges the
     practical reality that, for the trial process to function in the
     manner it was intended, i.e., as a vehicle for the discovery of
     truth, prior inconsistent statements of a testifying witness
     bearing on the matter in controversy are valid probative
     evidence that the finder-of-fact should not only be permitted to

                                   - 31 -
J-S62013-14


     hear, but also, vitally necessary for it to consider if it is to render
     a sound ultimate decision.

                                     ***

            [S]ince the out-of-court statements of Garvin, Lawrence
     and Lanier to the police were reduced to writing, and each of
     these individuals, by their own admission, signed every page of
     their statements and, also, the attestation statements at the end
     which declared that the information in the statements was
     accurate, all three statements were properly admitted as
     substantive evidence under Pa.R.E. 803.1(1). Garvin, Lawrence
     and Lanier were thoroughly tested through cross-examination at
     Appellant's trial, so that the jury had the opportunity to observe
     these witnesses as they repudiated their out-of-court
     statements, and to assess the credibility of their explanations for
     the repudiations. Further, the three out-of-court statements
     were fundamentally consistent with one another in recounting
     the same narrative of the manner in which the shooting
     transpired and in describing similar essential details; thus, they
     were not so patently unreliable so as to render a jury verdict
     based upon them one of pure conjecture.

Commonwealth v. Brown, 52 A.3d 1139, 1169-1171 (Pa. 2012).

     Here, as the trial court correctly observed, “both statements properly

were admitted pursuant to Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986)

and Commonwealth v. Lively, 464 A.2d 7 (Pa. 1992).” Trial Court Opinion,

3/17/14, at 8. Pursuant to Pa.R.E. 803.1(1)(b), and consonant with Wilson

and Brown, supra, Jackson’s and Smith’s prior statements to law

enforcement, which were inconsistent with their trial testimony, were not

“excluded by the rule against hearsay” because both declarants testified at

trial and were subject to cross-examination, and their prior inconsistent

statements    were   “writing[s]   signed     and   adopted   by”   them.      See

Commonwealth v. Jones, 644 A.2d 177, 180 (Pa. Super. 1994) (affirming


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admission of prior inconsistent statement of trial witness as substantive

evidence because, inter alia, “the statement had been given by [trial

witness] twelve days after the shooting of [decedent], at a time when the

events had been fresh in the witness's mind and when it had been less likely

that the witness had any motive for falsification”).

      Appellant’s seventh and final issue claims the trial court erred in

allowing Detective Bamberski to testify regarding the state of mind and

hearsay statements of Henderson.        See Appellant’s Brief at 56.   The trial

court opined:

      Appellant mischaracterizes a small portion of Detective
      Bamberski's testimony concerning [Henderson's] demeanor at
      the preliminary hearing and alleges reversible error claiming that
      such testimony was incompetent and constituted inadmissible
      hearsay. Contrary to Appellant's claim, the Court limited the use
      of the testimony to relevant, non-hearsay issues. It sustained
      defense counsel's first objection and cautioned the jury as to the
      limited use of the testimony. We explained our reasoning at the
      time it occurred and we rely upon that reasoning expressed in
      the notes of testimony. See N.T. 7/20/12, 19-24.

Trial Court Opinion, 3/17/14, at 8.

      Based on our review of the record, we find that the trial court did not

abuse its discretion in admitting the challenged portions of Detective

Bamberski’s testimony. Detective Bamberski testified that Henderson “was

afraid” on the day of her testimony at the preliminary hearing because

“there had been some intimidation.” N.T., 7/19/12, at 19. The trial court

sustained Appellant’s counsel’s objection and instructed the jury as follows:




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      [L]adies and gentlemen, obviously, [Henderson] is not here to
      testify today. The detective may have that information but,
      obviously, it’s hearsay. You’re not to consider it. You are to
      disregard that.

Id.   While the trial court precluded Detective Bamberski from testifying

about what Henderson “said to [Detective Bamberski],” the trial court ruled

that Detective Bamberski could “describe what [he] observed about her

demeanor in the courtroom, how she conducted herself, or anything else

that would be a direct observation.” Id. at 20. Detective Bamberski testified

that Henderson’s demeanor at the preliminary hearing “was fearful…for her

safety.” Id. at 23. Detective Bamberski further stated that Henderson “was

sober. She was not someone who was abusing narcotics at that point.” Id.

We discern no trial court error of law or abuse of discretion in admitting this

testimony. See Johnson, 838 A.2d at 673 (deeming a witness’ testimony

“not hearsay, since it does not involve an extrajudicial statement, but rather

an observation based on [witness’] personal knowledge”).        Moreover, the

trial court’s contemporaneous cautionary instruction to the jury ordering

them to disregard hearsay testimony weighs against a finding of error. See

Commonwealth v. Walter, 849 A.2d 265, 270 (Pa. 2004) (internal citation

omitted) (“In a jury trial where the jury is instructed to disregard the

information which was improperly brought to its attention, the impact of an

error may be minimized so as to render it harmless.”).




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     In sum, viewing the evidence in the light most favorable to the

Commonwealth, and finding no trial court error of law or abuse of discretion,

we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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