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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
JUSTIN ASAAD COOKE,                         :
                                            :
                          Appellant         :     No. 450 MDA 2016

            Appeal from the Judgment of Sentence October 15, 2015
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0000936-2015

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 11, 2017

        Appellant, Justin Asaad Cooke, appeals from the Judgment of

Sentence entered by the Dauphin County Court of Common Pleas following

his conviction by a jury of First-Degree Murder and Criminal Conspiracy.1

After careful review, we affirm.

        The relevant facts, as gleaned from the certified record and the trial

court’s Pa.R.A.P. 1925(a) Opinion, are as follows.         On May 30, 2014,

Appellant and his brother, Miles Cooke, shot and killed the victim, Ronald

McGruder, near the corner of Hanover and Cameron Streets in Harrisburg,

Pennsylvania. The following events leading up to the murder are relevant to

our review.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
J. S26029/17


     Two nights before the murder, Appellant and McGruder had gotten into

a heated argument when McGruder blamed Appellant’s brother Miles Cooke

for killing McGruder’s friend Warren Beasley in 2013.         McGruder told

Appellant that, “if you want to kill me, if you feel some type of way and you

want to do something to me, my heart is on my sleeve. So if you got to

take a shot, take a shot.” Trial Court Opinion, dated 7/19/16, at 3 n.6.

     On the night of May 29, 2014, McGruder went out drinking with his

friend James Moffitt and visited Double D’s bar. Surveillance video showed

that both Appellant and his brother Miles were at Double D’s at the same

time. The video also showed Appellant, Miles, and McGruder leave Double

D’s together and enter a tan Audi.    Appellant entered the front passenger

seat, Miles entered the driver’s seat, and McGruder entered the back seat.

The three men left Double D’s parking lot at 1:46 A.M. on May 30, 2014.

     Jasmine Bullock, an eyewitness to the murder who resided on Hanover

Street, awoke to screaming from the street and looked out her window to

see Appellant, Miles, and McGruder. She witnessed one of the men stand

over McGruder on the ground and shoot him twice in the head.          Bullock

called 911 at 1:58 A.M.   Although she could not see the faces of the two

standing men, Bullock provided clothing descriptions matching Appellant as

the shooter and Miles nearby. After the shooting, Appellant and Miles ran

toward their running car, entered the vehicle in the same positions as when

they left the bar, and drove away.



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      Appellant and Miles provided identical voluntary statements to police

shortly after the murder.     They confirmed the clothing that they were

wearing, the precise route they took after leaving the bar with McGruder,

and that they were driving a tan 2000 Audi owned by Miles’ girlfriend.

      Police arrested Miles on October 2, 2014, the day police obtained

arrest warrants for both Appellant and Miles. Police were unable to arrest

Appellant that same day after media coverage widely publicized Miles’s

arrest and the fact that they were looking for Appellant.      Police in North

Carolina arrested Appellant on October 22, 2014.2

      Appellant filed a Motion in Limine seeking to preclude evidence of

Appellant’s flight and arrest on unrelated charges in North Carolina and to

omit any jury instructions regarding flight. The trial court deferred ruling on

this Motion until hearing the evidence produced at trial.

      Appellant also filed a Motion in Limine to preclude Williams’ testimony

about McGruder’s statements, arguing that the statements were irrelevant

and constituted inadmissible hearsay.    On October 7, 2015, the trial court

conducted a hearing prior to trial.     The Commonwealth argued that this

testimony was evidence of Appellant’s motive to kill McGruder.        The trial

court denied Appellant’s Motion on October 8, 2015.

2
  Prior to his arrest, Appellant sold drugs to undercover police officers, then
refused to exit a hotel room voluntarily, and provided the false name of
Jerry Asaad Smith. After learning of Appellant’s outstanding warrant for
homicide, North Carolina police arranged for Appellant’s transport back to
Pennsylvania.



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        Appellant and Miles proceeded to a joint jury trial. The Commonwealth

presented the testimony of the eyewitness Jasmine Bullock, McGruder’s

friend James Moffitt, investigating       detectives,   a forensic   pathologist,

emergency responders, a forensic investigator, and a North Carolina

detective.    The Commonwealth also presented video surveillance evidence

from a church near the crime scene, Miles’ cell phone records, and cell

phone tower data.

        Appellant presented the testimony of Miles’s girlfriend Dorian Bradford,

a second resident, John Stoddart, who heard gunshots the night of the

murder and purportedly observed the fleeing car’s taillights, and an

investigator from the Dauphin County Public Defender’s Office.

        At the close of testimony and after permitting the testimony about

Appellant’s flight and arrest in North Carolina, the trial court provided a jury

instruction regarding flight or concealment as evidence of Appellant’s

consciousness of guilt.

        The jury convicted Appellant of First-Degree Murder and Criminal

Conspiracy. On October 15, 2015, the trial court sentenced Appellant to the

statutorily mandated term of life in prison.3    Appellant filed a timely Post-

Sentence Motion, which was denied by operation of law on February 17,

2016.



3
    42 Pa.C.S. § 9711.



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      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

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

      Appellant presents three issues for our review:

      I. Did not the lower court abuse its discretion by failing to grant
      [Appellant] a new trial on the basis that the guilty verdict was
      against the weight of the evidence when the totality of the
      evidence on the basic issues of the case was so inconsistent as
      to be irreconcilable?

      II. Did not the court err in denying [Appellant’s] Motion in Limine
      to exclude reference to the decedent’s statements by a
      Commonwealth witness when such statements should have been
      excluded as hearsay or alternatively as irrelevant?

      III. Did not the court err in denying [Appellant’s] Motion in
      Limine to exclude testimony describing [Appellant’s] purported
      flight to North Carolina and to forego any jury instruction based
      thereon relating to flight as consciousness of guilt?

Appellant’s Brief at 5 (capitalization omitted).

      Weight of the Evidence

      In his first issue, Appellant avers that the jury’s verdict was against

the weight of the evidence.        See Appellant’s Brief at 32-37.          When

considering challenges to the weight of the evidence, we apply the following

precepts:

         The weight of the evidence is exclusively for the finder of
         fact, who is free to believe all, none or some of the
         evidence and to determine the credibility of witnesses.

         Appellate review of a weight claim is a review of the
         exercise of discretion, not the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons


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         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court’s conviction that
         the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the
         interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations

omitted).

      Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague[,] and uncertain that the verdict shocks the conscience of the court.”

Talbert, supra at 546 (quotation marks and citation omitted). It is well-

settled that we cannot substitute our judgment for that of the trier of fact.

Id.

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014).

      Appellant essentially asks us to reassess the credibility of the

eyewitness and reweigh the testimony and evidence presented at trial. We

cannot and will not do so. Our review of the record shows that the evidence



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is not tenuous, vague, or uncertain, and the verdict was not so contrary to

the evidence as to shock the court’s conscience.       We, thus, conclude that

Appellant is not entitled to relief on this claim.

      Admission of Victim’s Out-of-Court Statements

      In his second claim, Appellant avers that the trial court erred in

denying his Motion in Limine to preclude certain testimony from Courtney

Williams about McGruder’s statements to Appellant before the murder.

      As described above, Williams overheard Appellant arguing with

McGruder two nights before McGruder’s murder.                McGruder blamed

Appellant’s brother Miles for killing McGruder’s friend Warren Beasley in

2013. McGruder told Appellant that, “if you want to kill me, if you feel some

type of way and you want to do something to me, my heart is on my sleeve.

So if you got to take a shot, take a shot.”          Trial Court Opinion, dated

7/19/16, at 3 n.6.

      The “[a]dmission of evidence is within the sound discretion of the trial

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

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted). “[A]n abuse of discretion is

not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will[,] or partiality, as




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shown by the evidence or the record.” Commonwealth v. Cameron, 780

A.2d 688, 692 (Pa. Super. 2001) (citation and quotation omitted).

     Relevance     is   the   threshold   for   admissibility   of     evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                  Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

     Hearsay is an out-of-court statement offered for the truth of the

matter asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls

within one of the exceptions to the hearsay rule delineated in the Rules of

Evidence. Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An

out-of-court statement is not hearsay when it has a purpose other than to

convince the fact finder of the truth of the statement[,]” such as motive or

the effect on the listener. Id. See also Daniel J. Anders, Ohlbaum on the

Pennsylvania Rules of Evidence § 801.11[1] et seq. (2017 ed. LexisNexis

Matthew Bender).




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     The trial court addressed Appellant’s hearsay challenge as follows:

     Contrary to [Appellant’s] assertions, Ms. Williams’ statements
     were not hearsay. Hearsay is an out-of-court statement offered
     to prove the truth of the matter asserted. Commonwealth v.
     Griffin, [] 515 A.2d 865, 870 ([Pa.] 1986).              When an
     extrajudicial statement is offered for a purpose other than
     providing the truth of its contents, it is not hearsay and is not
     excludable under the hearsay rule. Id. Thus, statements are
     admissible to establish ill-will or motive where they are not being
     offered for the truth of the matter asserted.                  See
     Commonwealth v. Brown, [] 648 A.2d 1177, 1182 ([Pa.]
     1994) ([o]ut-of-court statement, which was not offered for its
     truth, but only for the fact that it was made, was not
     inadmissible hearsay).22
        22
          For a complete discussion, see Commonwealth v.
        Puksar, [740 A.2d 219] ([Pa.] 1999).

     In the instant matter, the Commonwealth attempted to establish
     motive for killing Mr. McGruder by showing that there was ill-will
     between Mr. McGruder and [Appellant]. The Commonwealth did
     not offer Ms. Williams’ testimony to prove that [Appellant]
     actually committed the killing of Mr. McGruder [or that Miles
     actually killed Beasley in 2013], but to supply a motive for
     [k]illing Mr. McGruder. Accordingly, this statement (that Mr.
     McGruder and [Appellant] got into a heated discussion over the
     killing of Warren Beasley) was admissible, since it was not
     offered to prove the truth of the matter asserted, but rather to
     establish a motive for the killing[].

     Additionally, we gave the following jury instructions in regards to
     motive:

        Motive is not a part of the definition of [M]urder or any
        other crime. The Commonwealth is not required to prove
        a motive for the commission of the crime charged.
        However, you should consider the evidence of motive or
        the lack of motive.... You should weigh and consider the
        evidence tending to show motive, along with all other
        evidence in deciding whether the defendant is guilty or not
        guilty of the crime charged. It is entirely up to you to
        determine what weight should be given to the evidence
        concerning motive.


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           Now, of course there was the testimony, I believe it was
           the very first witness, Courtney Williams and that
           testimony was offered to show motive.          She had
           testified about a certain conversation she heard or
           overheard and so forth and that evidence was not
           offered to prove the truth or falsity of what
           happened with Mr. Beasle[y]’s killing. It was only
           offered to show a possible motive in the killing of Mr.
           McGruder. You are to accept that evidence only for
           that limited purpose.

      Accordingly, Ms. Williams’ testimony was not hearsay and it was
      properly admitted as evidence.

Trial Court Opinion, dated 7/19/16, at 10-11 (footnote omitted; emphasis in

original). We agree with the trial court’s assessment.

      As    noted   by   the   Commonwealth    and   the   trial   court,   the

Commonwealth did not present McGruder’s statement to demonstrate that

Miles actually shot and killed Beasley in 2013. Rather, the Commonwealth

presented the statement because it demonstrated that McGruder told

Appellant this information, and such information served as the motive for

the McGruder’s murder.     See Commonwealth v. Fisher, 681 A.2d 130,

140 (Pa. 1996), superseded on other grounds by 42 Pa.C.S. § 9711(a)

(holding that the victim’s statements about the defendant that were

communicated to the defendant were not hearsay when the statements were

offered to prove the defendant’s motive for killing the victim). We discern

no abuse of discretion or error of law.




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      Evidence of Flight to North Carolina and Concealment

      In his third claim, Appellant avers that “[t]here was an insufficient

showing that [Appellant’s] presence in the state of North Carolina could be

construed as ‘flight.’”    Appellant’s Brief at 48.   Accordingly, Appellant

contends that the trial court (1) erred in permitting this testimony, and (2)

erred in providing a jury instruction regarding flight as consciousness of

guilt. Id.

      As we have previously stated our standard of review of a trial court’s

evidentiary rulings, we need not repeat it here. We review a challenge to a

jury charge for an abuse of discretion. Commonwealth v. Greer, 951 A.2d

346, 354 (Pa. 2008).       “A jury instruction is proper if supported by the

evidence of record.”      Commonwealth v. Clark, 961 A.2d 80, 92 (Pa.

2008).

      Where “a person has reason to know he is wanted in connection with a

crime, and proceeds to flee or conceal himself from [] law enforcement

authorities, such evasive conduct is evidence of guilt and may form a basis,

in connection with other proof, from which guilt may be inferred.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 714 (Pa. Super. 2013)

(citations omitted).   “A defendant’s knowledge may be inferred from the

circumstances attendant [to] his flight.” Id. See also Commonwealth v.

Whack, 393 A.2d 417, 420 (Pa. 1978) (holding that where the defendant

was seen running from the scene of a stabbing, and was not seen again at



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his home or the places he usually frequented for approximately two months,

the evidence was sufficient to support a reasonable inference that the

defendant had deliberately attempted to conceal his whereabouts to avoid

prosecution).

        Here, the record reflects that McGruder was murdered on May 30,

2014.     Both Appellant and Miles provided statements to police shortly

thereafter in connection with the shooting, and confirmed that they were

with McGruder the night of the murder. Police arrested Miles on October 2,

2014, the same day police filed the Complaint and obtained arrest warrants

for both Appellant and Miles. Detective Iachini testified about the extensive

media coverage of Miles’s arrest, which included statements that police were

also seeking Appellant.

        On October 22, 2014, police arrested Appellant in North Carolina.

Appellant provided the North Carolina police a the false name in an attempt

to conceal his identity.

        The trial court provided the following flight instruction to the jury:

        Also, there was evidence tending to show flight or concealment.
        There was evidence indicating the testimony of police officers
        that tended to show the defendant may have attempted to flee
        from the police by leaving the Harrisburg area after the arrest
        warrants were filed in this particular case. Generally speaking,
        when a crime has been committed and a person thinks that he
        or she may be accused of committing the crime and he or she
        flees or conceals himself or herself, such flight or concealment is
        a circumstance tending to prove the person is conscious of guilt.

        Such flight or concealment does not necessarily show
        consciousness of guilt in every case. A person may flee or hide


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      for some other motive and may do so even though innocent.
      Whether the evidence of flight or concealment in this particular
      case should be looked at as tending to prove guilt depends upon
      the facts and circumstances of this case and especially upon the
      motives that may have prompted the flight or concealment. You
      may not find the defendant guilty solely on the basis of evidence
      of flight or concealment.

N.T. Trial at 448.

      Though no direct evidence was presented to establish Appellant’s

actual knowledge that he was being sought by the police for this crime, we

conclude that the above-mentioned circumstantial evidence permits a

reasonable inference that Appellant was aware that the police were looking

for him in connection with the shooting.      See Whack, supra.      Therefore,

the trial court properly exercised its discretion in admitting this evidence and

giving the jury an appropriate flight instruction.

      Judgment of Sentence affirmed.

      Judge Bowes joins the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2017




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