J-S20021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
 CHRISTOPHER JOSEPH SMARR                    :
                                             :
                    Appellant                :       No. 1179 WDA 2018

       Appeal from the Judgment of Sentence Entered March 29, 2018
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0003415-2015


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                                 FILED JULY 03, 2019

      Christopher Joseph Smarr appeals from the judgment of sentence

entered following his convictions for first-degree murder, robbery, and related

charges.   Smarr   contends     that   the   trial    court   erred   in   allowing   a

Commonwealth witness to testify while wearing a scarf; that the court erred

in permitting testimony about a previous robbery and the deactivation of a

Facebook account without sufficiently linking these acts to Smarr; and that

incontrovertible physical facts regarding the bullet trajectory contradict the

testimony of the sole eye-witness to the shooting. We affirm.

      The Commonwealth brought charges against Smarr based on allegations

that just before midnight on March 14, 2015, he shot and killed the victim,

Brandon Gray. The shooting occurred during a robbery, as part of a “turf war”

between rival drug dealers.
J-S20021-19



      Prior to trial, the Commonwealth filed a motion seeking to introduce

testimony indicating Smarr had committed a prior, similar crime. The

Commonwealth alleged that a witness, Jeffrey Patterson, would testify that

unidentified men robbed him as he left the Garden Inn in New Stanton after

he conducted a cocaine sale. The Commonwealth stated that Patterson would

say that Smarr was present during the sale, and that Patterson’s attackers –

whose faces he did not see – warned him not to sell drugs there again. The

Commonwealth asserted that other trial testimony would establish that one

hour later, Gray also was robbed at the Garden Inn, after selling drugs to

Smarr. The Commonwealth argued that the two incidents were part of a

common scheme, plan, or design, and the testimony of the earlier robbery

was relevant to establish Smarr’s motive for the shooting and identify him as

the shooter.

      The court granted the motion, and allowed Patterson to testify. In ruling

on the motion, the court stated, “[T]he nexus is too close in time, place and

method of these two events. They are similar enough such that the evidence

should be admitted. And both are essentially drug deals and take backs.” N.T.,

Trial, 12/5/16-12/9/16, at 40-41.

      Smarr proceeded to a jury trial, and 29 witnesses testified over the

course of the five-day trial. Janay Brown, the sole eye-witness to the shooting,

appeared for trial wearing a scarf that covered her face except for her eyes.

Smarr objected, when Brown took the stand to testify, that Brown’s covering

her face prevented the jury from seeing her demeanor. The court conducted

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a short hearing, outside the presence of the jury, regarding the purpose and

necessity of the scarf. Brown stated that she is Muslim and covered her face

in observance of her religion. The court described the face covering as a

“colorful scarf” and a “winter scarf, a scarf that anybody would wear.” Id. at

95. Brown replied that her religion allows her face covering to be any color or

material, and that she does not always wear a face covering. Brown said she

wears a face covering on Fridays, when she goes to a religious service, and

“whenever [she] feels like [she] want[s] to.” Id. at 96. Brown also testified

that she was wearing the scarf in court that day out of concern for her safety.

      The court overruled the objection. The court stated,

      [A]lthough the witness [sic] or the jury is not able to see her
      mouth, they can observe her demeanor, they can observe her
      posture, they can observe the way she speaks and the manner
      that she speaks. And there is a religious issue there. I’m going to
      err on the side of protecting those religious rights.

Id. at 100-101. The court stated it would allow Smarr to question Brown

before the jury on why she was wearing the headdress.

      Brown testified that Gray was her boyfriend, and that on the date of the

murder, an acquaintance named Tammy Vrable contacted Gray and asked him

to come to the Garden Inn to sell her cocaine. When Brown and Gray arrived

at the Inn, Gray sold cocaine to both Vrable and a man known as “Jason,” who

was later identified as Mark Schofield.

      Later that same night, Vrable again contacted Gray and asked him to

come to the Garden Inn to sell her more cocaine. This time, as Gray and Brown



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were arriving at the Inn, they passed Schofield, who told them he was leaving

to make a heroin sale. Gray and Brown again met Vrable, and a young man

who called himself “Jason’s little brother.” Brown identified Smarr, in court, as

the person who had called himself “Jason’s little brother.”

      Brown testified that she stood outside the door to the hotel room while

Gray conducted the drug sale inside. After Gray reemerged, Brown and Gray

proceeded down the hallway, heard someone running behind them, and

turned around. Brown testified that Smarr pointed a gun at them and stated,

“Yo, I’m gonna need mine back.” Id. at 115, 118. After Gray responded, “I’m

not gonna give you nothing back, you’re gonna have to shoot me,” Smarr shot

him, and Gray fell to the ground. Id. at 115.

      Brown testified that when Smarr shot Gray, they were facing each other,

and standing five feet apart. When Smarr’s counsel asked Brown, “And at no

point during this did [Gray] turn and go to run?” Brown responded, “No. There

wasn’t enough time for that. Right after [Gray] said, ‘[N]o, I’m not giving you

anything,’ he shot him and [Gray] fell to the ground.” Id. at 184. Brown stated

that she believed Gray was shot on his right side, near his armpit or rib area,

but was not sure of the exact location. She did not recall the position of Gray’s

arms during the shooting.

      Brown testified that Smarr then said to her, “[B]itch, get the fuck out of

here or I’m going to kill you too.” Id. at 115. Brown ran back to her vehicle,

called 911, and then ran back to Gray, who was lying on the ground. An

ambulance took Gray to a hospital, where he died. Brown testified that she

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gave a description of Smarr and Schofield to the police, and a few days later,

identified Smarr as the shooter in a photographic lineup.

      Following Brown’s testimony, Smarr made an oral motion for a mistrial,

arguing that Brown’s covering her face violated his right to physical face-to-

face confrontation and the federal and state constitutions. In arguing against

the motion, the prosecutor stated on the record that despite the scarf, the

jury could view Brown’s demeanor

      through her body actions, through her arm movements, her voice,
      frustration, lack of frustration, all of that came out with her when
      she testified on the stand. I think at different times on the stand
      she broke down into tears, she got upset. All that was visible. I
      even think any emotion she showed or any reaction she showed I
      think was visible to the jury.

Id. at 273. Smarr did not argue that the prosecutor mischaracterized Brown’s

emotions, but generally argued that the face covering prevented the jury from

seeing Brown’s demeanor and expression.

      The court denied the motion for a mistrial. The court said that the scarf

was “a bit transparent” and pulled tight such that the jury could adequately

judge Brown’s demeanor:

      Thinking back on what I observed yesterday, certainly she had her
      mouth covered for the most part and kept pulling on it, but most
      of her nose was exposed a lot of the time. I was sitting so close
      to her. So, you couldn’t see her mouth, but the scarf, she had it
      pulled so tight I could see her mouth. . . .

      I could see -- it wasn’t like a loose scarf. I could see the outline of
      her mouth. I could see if she was smiling or frowning. . . .

      It did seem a bit transparent. So, I don’t believe in being able to
      observe her, and Mr. Smarr, the way the courtroom is set up is


                                       -5-
J-S20021-19


      only feet from her. It’s not a distance at all. And the jury is only
      feet from her. So, I don’t believe there was any violation of the
      right to confront.

      And with regard to her religious right, yes, she did say that she
      wears the head dress when she wants to. But that’s her right;
      whenever she wants to wear her head dress, she wears her head
      dress. So, you know, I believe that’s appropriate to allow her to
      do so. And she did have the scarf on the front, but then she had
      a more formal wrap on the back of her head which would be more
      the traditional way I saw on the back.

Id. at 275-76. Smarr did not dispute the court’s statements that the scarf was

pulled tight, and was transparent, such that Brown’s mouth was essentially

visible.

      Subsequently, Dr. Cyril Wecht testified regarding Gray’s autopsy. Dr.

Wecht testified that the bullet wound was located on the right side of Gray’s

chest, near his armpit area, and that the bullet entered Gray’s right chest and

stopped in his left chest cavity. According to Dr. Wecht, the trajectory of the

bullet was “from right to left, from up downward, and a little bit from front to

back.” Id. at 304. Dr. Wecht stated that the bullet wound indicated the victim

“was either standing in a more sideward position, so to speak, as to, you, just

being face on. Or possibly turning, you know, if he sees the gun.” Id. at 306.

He testified that the wound was “pretty close” to a 90-degree angle from the

front of Gray’s body, and that it was “closer to perpendicular,” than to “head-

on.” Id. at 319. He stated that Gray might have been shot while turning his

torso away from the shooter, without moving his feet.

      The Commonwealth also presented Patterson’s testimony about the

prior robbery. He testified that at 10:30 p.m. on the date of the murder, “Rico”

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asked him to deliver cocaine to a customer at the Garden Inn. Id. at 407.

Patterson went to the Inn and sold cocaine to the customer, who he identified

as Schofield. Patterson testified that Smarr was also present during the sale,

and discussed the quality and quantity of cocaine with Schofield before

Schofield purchased the drugs from Patterson.

      Following the sale, as Patterson was leaving the Inn, he heard two

people come up behind him, felt a gun in his back, and was ordered to lie

face-down on the ground. The men took the money Schofield had given

Patterson, but intentionally returned Patterson’s car keys to him. Patterson

did not see his assailants, and testified that he did not know whether Smarr

had been one of the robbers. After the robbery, as Patterson walked away

from the hotel, he heard two people yell to him, “[D]on’t worry, dude, it’s not

you, we’re trying to make a statement to Rico.” Id. at 416. The people also

told Patterson “to stay out of this spot, it’s ours, or mine, or whoever.” Id.

      After Patterson testified, Smarr moved for a mistrial. The court stated,

“We have, for lack of a better word, a drug deal and then almost immediately

a take back before the person ever leaves the hotel. It’s the same hotel. It’s

within an hour of each other. The money is taken back. Nothing else is taken.”

Id. at 442. The court denied the motion.

      Corporal James Mazurik of the Pennsylvania State Police testified

regarding the process by which law enforcement had identified Smarr.

Corporal Mazurik testified that he reached out to Detective Tony Marcocci of

the Westmoreland County Detective Bureau to determine if he was aware of

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anyone using the nickname “Jason’s little brother.” Corporal Mazurik and

Detective Marcocci contacted several informants, who told them that “Jason’s

little brother” also went by the nickname “Boo” or “Boots,” and provided the

police with his photograph.

       Corporal Mazurik testified that, meanwhile, Trooper Teko Angeliccio had

located Schofield’s Facebook account.1 Corporal Mazurik searched through

Schofield’s Facebook friends, and found an account bearing the name “Mickey

Boot,” which had a profile picture that matched the individual in the

photograph given to the police. Corporal Mazurik testified that he accessed

the Facebook account two days after the murder, on March 16, but that the

account had been deactivated when he subsequently tried to view it.

       Smarr objected to the testimony that the Facebook account had been

deactivated. Smarr argued that the testimony was irrelevant, because there

was no evidence establishing that Smarr had deactivated the account, or why.

The court overruled the objection, but allowed Smarr to cross-examine

Corporal Mazurik on evidence establishing whether Smarr had deactivated the

account. Corporal Mazurik testified on cross-examination that he did not know

who deactivated the account.



____________________________________________


1 Facebook is a social networking website where users must provide a name
and e-mail address to establish an account. See Commonwealth v. Mangel,
181 A.3d 1154, 1159 (Pa.Super. 2018). Users may then add other users as
“friends,” post content to their account which is accessible to their friends, and
communicate with their friends through chats or messages. Id.


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       Corporal Mazurik testified that the State Police sent both the photograph

provided by the informant and the photograph retrieved from Facebook to the

McKeesport Police Department. The McKeesport Police informed the State

Police that they knew the individual in the photographs to be Smarr. Smarr

was subsequently identified in photographic lineups by Vrable; John Ely

Toman, who had been in the hotel room when Gray had sold drugs to Smarr;

Brown; and Patterson.2

       In its closing statement, the Commonwealth argued, inter alia, that

Smarr had a Facebook account, and that within days of when Trooper Mazurik

accessed it, the account was “gone.” Id. at 924-25. The Commonwealth

argued that this showed Smarr’s consciousness of guilt and indicated that he

did not want the police to find out his identity.

       During its charge to the jury, the court gave the following cautionary

instruction regarding Patterson’s testimony:

       You heard evidence tending to prove that [Smarr] participated in
       a robbery for which he is not on trial. I am speaking of the
       testimony to the effect that Jeff Patterson was robbed by two
       individuals following a drug transaction involving [Smarr]
       approximately one hour prior to the present incident. This
       evidence is before you for a limited purpose. That is for the
       purpose of tending to show the identity of the shooter, a common
       plan or scheme in both incidents, or a motive for the homicide.
       This evidence must not be considered by you in any way other
       than for that purpose I just stated. You must not regard this
       evidence as showing that the defendant is a person of bad
____________________________________________


2 Vrable, Toman, and Kristi Hay each identified Smarr at trial as the person
who called himself “James’s little brother,” who Gray had sold drugs to just
before the murder. They also testified that Smarr left the room following the
sale.

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       character or criminal tendency from which you might be inclined
       to infer guilt.

Id. at 941-42.

       The jury found Smarr guilty of first-degree murder, robbery, theft by

unlawful taking, receiving stolen property, and firearms not to be carried

without a license.3 The court sentenced Smarr to an aggregate of 45 years’ to

life imprisonment. Smarr filed post-sentence motions, including a motion for

a new trial based on the court’s evidentiary rulings and a motion for a

judgment of acquittal based on the incontrovertible physical facts rule. The

trial court denied the motions.

       Smarr filed this appeal, in which he raises the following issues:

       1. Whether the court below erred in allowing the sole eyewitness
       to testify with a face covering, thus precluding the jury from being
       able to observe her facial expressions, and denying appellant’s
       right to confront witnesses against him.

       2. Whether the court below erred in allowing Rule 404(b) bad act
       testimony of a prior robbery in which the victim therein was unable
       to identify the appellant as having participated in such robbery.

       3. Whether the appellant is entitled to judgment of acquittal
       pursuant to the incontrovertible physical facts rule, due to the fact
       that incontrovertible physical facts relating to the gunshot
       trajectory demonstrate that the sole eyewitness’s version of
       events could not have occurred as described.

       4. Whether the court below erred in allowing testimony that a
       Facebook page putatively belonging to [Smarr] was taken down
       shortly after the homicide to show consciousness of guilt, despite
       no evidence being presented to show that [Smarr] was the one


____________________________________________


3 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 3921(a), 3925(a), and 6106(a)(1),
respectively.

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J-S20021-19


       who took the page down, or even had any knowledge that it was
       being taken down.

Smarr’s Br. at 5-6 (suggested answers omitted).

                              I. Confrontation Clause

       Smarr argues that the court erred in allowing Brown to testify while

wearing a scarf over part of her face because this denied Smarr his right to

face-to-face confrontation under the Confrontation Clauses of the federal and

state constitutions. Smarr argues that Brown’s testimony was impermissible

under the test announced in Maryland v. Craig, 497 U.S. 836 (1990), for

two reasons. First, Brown testified she only wears the scarf on Fridays, when

she attends religious services at the Jum’ah, and whenever she feels that she

wants to; she did not testify her religion required her to wear the scarf while

testifying, and it was therefore unnecessary to allow her to do so. Second,

Smarr contends the reliability of Brown’s testimony was not otherwise

assured, as the jury were unable to clearly see Brown’s facial expressions and

thus fully assess her demeanor and credibility.4

       The United States and Pennsylvania Constitutions provide criminal

defendants the right to confront those who testify against them at trial. See

U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

____________________________________________


4 Smarr also argues that the court should not have allowed Brown to wear the
scarf due to her safety concerns, since Brown only testified to a general fear
for her safety. However, as the court did not allow Brown to wear the scarf in
order to protect her safety, and we affirm the court’s decision to allow Brown
to wear the scarf for religious reasons, we need not address this argument.



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the right . . . to be confronted with the witnesses against him”);5 Pa. Const.

Art. 1, § 9 (“In all criminal prosecutions the accused hath a right . . . to be

confronted with the witnesses against him”). The rights afforded by the two

Confrontation Clauses are coextensive. Commonwealth v. Geiger, 944 A.2d

85, 94-95, 97 n.6 (Pa.Super. 2008); accord Commonwealth v. Atkinson,

987 A.2d 743, 745 (Pa.Super. 2009).6 Whether a defendant has been denied

the right to confrontation is a question of law, over which we exercise de novo

and plenary review. Atkinson, 987 A.2d at 745.

       In Maryland v. Craig, the United States Supreme Court explained that

the right to confrontation includes the following elements: (1) the witness

testifies while face-to-face with the defendant; (2) the witness testifies under

oath and (3) under the penalty of perjury; (4) the witness is subjected to

cross-examination; and (5) the jury is able to observe the demeanor of the

witness, “thus aiding the jury in assessing his [or her] credibility.” 497 U.S. at

845-46. The Court held that the Confrontation Clause is not violated when a

defendant is denied the first element, “a physical, face-to-face confrontation

____________________________________________


5 The Confrontation Clause of the Federal Constitution is made applicable to
the states through the Due Process Clause of the Fourteenth Amendment. See
Commonwealth v. Atkinson, 987 A.2d 743, 745 n.1 (Pa.Super. 2009).

6  Previously, the Confrontation Clause of the Pennsylvania Constitution
required face-to-face confrontation. See Commonwealth v. Ludwig, 594
A.2d 281 (Pa. 1991). Pennsylvania’s Confrontation Clause was amended in
2003 to remove the reference to face-to-face confrontation and conform its
language to that of the Federal Constitution. See Commonwealth v.
Williams, 84 A.3d 680, 682 n.2 (Pa. 2014); Atkinson, 987 A.2d at 745 n.2;
Geiger, 944 A.2d at 94 n.5.

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at trial,” so long as 1) “denial of such confrontation is necessary to further an

important public policy” and 2) “the reliability of the testimony is otherwise

assured” (hereinafter, “the Craig test”). Id. at 849-50; accord Atkinson,

987 A.2d at 750.

       We conclude that Smarr has failed to establish that he was denied a

physical, face-to-face confrontation with Brown. Smarr and Brown were in the

same room, sitting within a few feet of each other, when Brown testified. Cf.

Craig, 497 U.S. at 851 (distinguishing testimony via one-way video-

conferencing from “live, in-person testimony” and holding that former is not

face-to-face confrontation); Atkinson, 987 A.2d at 751 (holding two-way

video-conferencing not constitutionally equivalent to physical face-to-face

confrontation). In addition, Brown’s eyes were unobstructed. Cf. Craig, 497

U.S. at 851 (emphasizing one-way video-conferencing was not face-to-face

confrontation because it prevented witness from seeing defendant while

testifying); Coy v. Iowa, 487 U.S. 1012, 1014-15, 1019-20 (1988) (holding

testimony given while screen was positioned between defendant and witness

stand, preventing witness from seeing defendant, did not satisfy face-to-face

confrontation).7 No precedent has established that a witness’s clothing or
____________________________________________


7 In Coy, the Supreme Court explained that the witness’s ability to look at the
defendant and the jury’s ability to observe whether the witness does so are
paramount to face-to-face confrontation. Coy, 487 U.S. at 1019-20. The Court
observed that a witness may be less likely to lie about a defendant, or will lie
less convincingly, when in the presence of and looking upon the defendant.
Id. at 1019. The Court also noted that the trier of fact may “draw its own



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J-S20021-19



accessories renders a physical, in-court confrontation other than face-to-face,

particularly where the clothing does not obstruct the witness’s eyes, and we

decline to do so under the facts of this case. We therefore hold that Smarr’s

right to be brought face-to-face with his accuser was satisfied.8

       Even if we were to conclude that Smarr was denied face-to-face

confrontation with Brown, we would affirm the trial court’s finding that the

testimony was permissible under the Craig test. Assessing the first prong of

the test, the trial court found that allowing Brown to wear the scarf “was

necessary to further an important public policy.” Opinion and Order, 7/30/18,

at 21. The court elaborated,

       The public policy interest involved in the instant case is the
       protection of the right to freedom and free exercise of religion.
       Brown consistently testified that she wore her head scarf for
____________________________________________


conclusions” about testimony based on whether the witness looks at the
defendant or not. Id. The Court found that the screen placed between the
witness stand and the defendant “was specifically designed to enable the
complaining witnesses to avoid viewing [the defendant] as they gave their
testimony” and that “[i]t is difficult to imagine a more obvious or damaging
violation of the defendant’s right to a face-to-face encounter.” Id. at 1020
(citation omitted).

8 We note that other jurisdictions have concluded that partial face-coverings
do not undermine the face-to-face aspect of confrontation. See Morales v.
Artuz, 281 F.3d 55, 60, 61-62 (2d Cir. 2002) (finding that trial court’s decision
to allow witness to wear dark sunglasses did not diminish face-to-face
encounter under Confrontation Clause because “the obscured view of the
witness’s eyes . . . resulted in only a minimal impairment of the jurors’
opportunity to assess her credibility”); Commonwealth v. Lynch, 789
N.E.2d 1052, 1060, 1060 n.5 (Mass. 2003) (holding witness’s alleged wearing
of sunglasses would not have violated “face to face” confrontation under the
Massachusetts constitution).



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J-S20021-19


       religious purposes. Brown wore a head scarf while testifying
       during [Smarr’s] Preliminary Hearing and Trial. Although Brown
       testified that she did not always wear a head scarf, she testified
       that she wore it whenever she felt that it was appropriate.

Id.

       We find the first part of the Craig test satisfied. The court found that

protection of Brown’s ability to exercise her religion was an important public

policy,9 and, after a hearing, made a specific, individualized finding and that

allowing Brown to cover her face was necessary to further that policy. Cf. Coy,

487 U.S. at 1021 (holding right to confrontation was violated where court

failed to make individualized finding of necessity); Atkinson, 987 A.2d at 751.

       Considering the second prong of the Craig test, the trial court found

that “the reliability of Brown’s testimony was otherwise assured.” Op. and

Order at 21. Specifically, the court found the jury was amply able to observe

Brown’s demeanor. The court stated,

       . . . Brown was physically present in front of Defendant and she
       testified under oath. Brown was subject to cross-examination by
       [Smarr] and [Smarr] questioned her regarding her head scarf. The
       jury was able to sufficiently view Brown’s demeanor.9 The jury
       was located within close proximity to Brown. They were able to
       perceive Brown’s tone of voice, her gestures, and any hesitation
       she may have exhibited in answering questions. The jury was also
       able to view Brown’s eyes. Although Brown’s mouth was covered,
       her nose was exposed much of the time and her scarf was pulled
       tightly to the point where the outline of her mouth was visible.
       This Court could observe when Brown was smiling or frowning.



____________________________________________


9Smarr does not argue that protection of religion is not an important public
policy.

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J-S20021-19


       . . . Brown’s mouth and nose were the only features that may not
      have been visible to the jury. The jury was otherwise able to
      sufficiently observe Brown’s demeanor during her testimony.
      ______________________________________


         9  Defense Counsel correctly noted during trial that
         “demeanor” is defined as the “outward appearance or
         behavior, such as facial expressions, tone of voice, gestures,
         and the hesitation or readiness to answer questions.”
         Black’s Law Dictionary, 523 (Bryan A. Garner, 10th ed.
         2014).

Id. at 21-22 (citations to N.T. omitted). In addition, during trial, the court

stated the scarf covering Brown’s nose and mouth was somewhat transparent.

Moreover, Smarr did not deny that the jury witnessed Brown “br[eak] down

into tears.”

      Thus, the jury could view Brown’s eyes, and to some extent, her facial

expressions; her posture, her gestures, and her body language; hear her tone

of voice, her cadence, and her hesitation; and observe any nervousness,

frustration, or hostility. We therefore hold that under the second prong of the

Craig test, the other polestars of the right to confrontation—testimony given

under oath, facing the penalty of perjury, subject to cross-examination, and

with the jury’s observation of the witness’s demeanor—were amply preserved.

Smarr’s right to confrontation under the federal and state constitutions was

not infringed, and a new trial was not warranted.

                                 II. Prior Bad Acts

      In his second issue, Smarr argues the court erred in allowing the

Commonwealth to present Patterson’s testimony that he was robbed shortly



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J-S20021-19



before Gray was murdered, as the testimony was unduly prejudicial and

irrelevant. Smarr asserts that Patterson testified Smarr was merely present

when he (Patterson) sold drugs to Smarr’s companion at the Garden Inn, and

did not testify that Smarr actually participated in the drug transaction. And,

Smarr argues, Patterson testified that he was robbed when leaving the Garden

Inn, but that he could not identify Smarr as one of his robbers. Smarr argues

that because there was no evidence linking Smarr to the robbery of Patterson,

the testimony about the robbery had negligible probative value, a high

potential for unfair prejudice, and invited speculation and conjecture on the

part of the jury.

      Our standard of review is well-settled:

      Admission of evidence is a matter within the sound discretion of
      the trial court, and will not be reversed absent a showing that the
      trial court clearly abused its discretion. Not merely an error in
      judgment, an abuse of discretion occurs when the law is
      overridden or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will,
      as shown by the evidence on record.

Commonwealth v. Cain, 29 A.3d 3, 6 (Pa.Super. 2011) (quoting

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)).

      According to Rule 404(b) of the Pennsylvania Rules of Evidence, a party

may not introduce “[e]vidence of a crime, wrong, or other act” in order “to

prove a persons’ character.” Pa.R.E. 404(b)(1). Such evidence is only

admissible for other purposes, such as to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of



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accident.” Id. at (b)(2). However, in a criminal case, evidence of prior bad

acts is admissible “only if the probative value of the evidence outweighs its

potential for unfair prejudice.” Id.

        Evidence the defendant committed both the prior and instant crimes as

part of a common scheme, plan, or design, is admissible when “the crimes are

so related that proof of one tends to prove the others.” See Commonwealth

v. Ross, 57 A.3d 85, 103 (Pa.Super. 2012) (en banc). A court should consider

the similarities between the manner in which the crimes were committed, the

purpose of the crimes, and how close they occurred in both geographic

location and time. Id. at 104; see also Commonwealth v. Weakley, 972

A.2d 1182, 1189 (Pa.Super. 2009); Commonwealth v. Judd, 897 A.2d

1224, 1232, 1232 n.6 (Pa.Super. 2006). Identicalness between the crimes

grows less important the closer in time the crimes occur. Ross, 57 A.3d at

104 n.17; Weakley, 972 A.2d at 1190.

        Evidence of a prior crime is also admissible as evidence of the

defendant’s motive to commit the instant crime, if “the crime currently being

considered grew out of or was in any way caused by the prior set of facts and

circumstances.’” Commonwealth v. Knox, 142 A.3d 863, 866-67 (Pa.Super.

2016). For example, evidence that the defendant is involved in dealing drugs

is admissible to show motive for killing a member of a rival organization. See,

e.g.,    Commonwealth       v.   Busanet,       54   A.3d   35,   61   (Pa.   2012);

Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa.Super. 2013); see also

Commonwealth v. Fletcher, 986 A.2d 759, 785 (Pa. 2009) (“When evidence

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of drug involvement is relevant to prove motive, rather than criminal

propensity, the introduction of such evidence is not improper”).

      Rule 404(b) applies only not only to evidence of prior criminal

convictions, but to any evidence of prior crimes, wrongs, or acts committed

by the defendant, regardless of whether the evidence constitutes “definitive

proof” that the defendant committed them. Commonwealth v. Lockcuff,

813 A.2d 857, 861 (Pa.Super. 2002); see also Commonwealth v. Young,

989 A.2d 920, 926 (Pa.Super. 2010). Such evidence is therefore admissible

so long as the Commonwealth presents substantial evidence that defendant

committed the prior bad act. Commonwealth v. Odum, 584 A.2d 953, 956

(Pa.Super. 1990). Where the prior bad act did not result in a criminal

conviction, direct testimony from the alleged victim may constitute substantial

evidence that the defendant committed the crime, and the potential for

prejudice tempered by cross-examination. Commonwealth v. Ardinger,

839 A.2d 1143 (Pa.Super. 2003). Potential for undue prejudice may also be

ameliorated or cured by a cautionary jury instruction. Commonwealth v.

Hairston, 84 A.3d 657, 666-67 (Pa. 2014).

      In its opinion and order denying Smarr’s post-sentence motion for a new

trial, the court explained that the evidence related to the robbery of Patterson

was relevant to prove the murder because the two crimes

      were sufficiently similar in time, place, and matter. The robbery
      of Patterson occurred approximately one (1) hour prior to the
      robbery of victim on March 14, 2015. Both robberies occurred at
      the Garden Inn under similar circumstances. While at the Garden
      Inn, Patterson and [Gray] sold drugs in a room in which [Smarr]

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J-S20021-19


      was present. After Patterson and [Gray] left the room, they were
      both confronted from behind by an individual with a firearm. The
      individual attempted to rob Patterson and [Gray]. The robberies
      were committed due to a “turf war.” Based on the aforementioned
      factors, it is clear that the evidence was admitted to prove that
      [Smarr] was the individual who had committed the robbery, he
      was located inside of the Garden Inn prior to [Gray]’s robbery,
      [Smarr]’s motive for committing the robbery was a “turf war,” and
      [Smarr] engaged in a common scheme, plan, or design when he
      committed the robberies because they involve substantially
      similar circumstances.

Op. and Order at 24-25 (citations omitted). The court also noted that it

instructed the jury not to consider the evidence as proof of Smarr’s character.

      The court did not abuse its discretion in admitting the testimony related

to the robbery of Patterson. The evidence was highly probative, as the two

crimes were committed in a similar manner, for a similar purpose, had similar

victims, and occurred close in time and place. Although Smarr was not charged

with robbing Patterson, details related to that robbery corroborated the other

evidence proffered by the Commonwealth regarding the turf war going on

between rival drug dealers at the Garden Inn that night and established that

Smarr, at the very least, had been involved in multiple drug sales that formed

part of the conflict. Moreover, any potential prejudice was tempered by the

fact that Patterson himself testified as to the robbery, and Smarr was able to

cross-examine him on the fact that he could not identify Smarr as his robber.

The court’s cautionary instruction further ameliorated any potential prejudice.

Thus, we affirm the court’s orders admitting the evidence and denying the

request for a new trial.



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                   III. Incontrovertible Physical Facts

      Smarr next argues that the court erred in denying his motion for

acquittal on the basis of the incontrovertible physical facts rule. Smarr claims

that Dr. Wecht, who performed the autopsy on Gray, testified that the bullet

entered Gray near his right armpit and traveled toward his left side, thus

establishing that Gray was shot from the side at nearly a 90-degree angle.

Smarr asserts that the physical fact of the bullet trajectory contradicted

Brown’s testimony that Smarr shot Gray while they were facing each other,

and that Gray had not turned away from Smarr before being shot. Smarr

argues that the alleged contradiction renders the evidence insufficient to

support the murder charge.

      The incontrovertible physical facts rule implicates the sufficiency of the

evidence. See Commonwealth v. Widmer, 744 A.2d 745, 752 & n.4 (Pa.

2000). We thus employ a de novo standard of review. Commonwealth v.

Hall, 199 A.3d 954, 960 (Pa.Super. 2018).

      According to the incontrovertible physical facts rule, “where the

testimony of a witness is contradicted by incontrovertible physical facts, the

testimony of such witness cannot be accepted, it being either mistaken or

false, and a verdict based on it will not be sustained.” Commonwealth v.

Newman, 470 A.2d 976, 979 (Pa.Super. 1984) (quoting Lamp v.

Pennsylvania R.R., 158 A. 269, 271 (Pa. 1931)). The purpose of the rule is

to allow courts to disregard “that which is contrary to human experience and

the laws of nature, or which they judicially know to be incredible.” Id. (quoting

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J-S20021-19



Lamp, 158 A. at 271). The rule has no application unless “the facts are

positive, clear, indisputable, and certain.” Id.10 Notably, the rule does not

require the jury to reject the portions of the witness’s testimony that remain

uncontradicted. Id.

       Here, even assuming Dr. Wecht’s testimony that Gray’s bullet wound

established that he was shot more from the side than the front constituted an

“incontrovertible physical fact” under the rule (which we do not so hold), this

testimony did not directly contradict Brown’s testimony regarding the

shooting. Brown was never specifically asked whether Gray was standing at

an angle when facing his shooter. Although Smarr’s counsel asked Brown, “did

[Gray] turn and go to run?,” and Brown responded “No. There wasn’t enough

time for that,” Brown was responding to a compound question, and therefore

may have been responding to whether Gray had tried to run away and not

addressing whether Gray had been turning or standing at an angle. Brown

also testified that she could not remember how Gray’s arms were positioned

when he was shot, and testified that Gray was shot near his right armpit. Dr.

Wecht testified that Gray may have turned without even moving his feet.

       Given the foregoing, we conclude that Dr. Wecht’s testimony regarding

the bullet trajectory did not expose Brown’s minimal testimony regarding

____________________________________________


10 See also Mike’s Sign Co. v. Dep’t of Transp., 642 A.2d 634, 637
(Pa.Cmwlth.Ct. 1994) (“[W]here the Court cannot say as a matter of law that
the testimony of a witness is contrary to scientific principles or the laws of
nature, the question of the conflict in the evidence is still for the fact-finder to
resolve” (emphasis omitted)).

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J-S20021-19



Gray’s positioning when he was shot as “contrary to human experience and

the laws of nature.” Newman, 470 A.2d at 979. Any conflict in the evidence

regarding the manner in which Gray was shot was therefore a matter of weight

and credibility of evidence, and a question properly placed before the jury.

Moreover, even if the court had stricken Brown’s testimony regarding the

exact position in which Gray was standing in relation to his shooter at the time

he was shot, the rest of Brown’s testimony, which the jury clearly credited,

established that Smarr was the shooter. We thus affirm the trial court’s denial

of a judgment of acquittal.

                            IV. Consciousness of Guilt

       In his final issue, Smarr argues the trial court erred in denying his

objection to Corporal Mazurik’s testimony regarding the deactivation of

Smarr’s purported Facebook account.11 Smarr argues there was no evidence

that he had caused the account to be deactivated, and that consciousness of

guilt cannot be demonstrated through the actions of third parties unless there

is evidence that those actions are attributable to the defendant.12
____________________________________________


11 Smarr does not argue that the testimony that Corporal Mazurik viewed a
Facebook account showing Smarr’s photo and nickname was irrelevant or
inadmissible.

12  Smarr tangentially argues that the evidence of deactivation lacked
authentication. Prior to Corporal Mazurik’s testimony, Smarr argued that the
photographic evidence obtained from Facebook was overly prejudicial and
lacked authentication. The court excluded the photographic evidence, finding
that it was overly prejudicial, but permitted the testimony regarding the
police’s viewing of the Facebook account as relevant to establish the course



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       “When a person knows that he is wanted in connection with a criminal

investigation, and flees or conceals himself, such conduct is admissible as

evidence of consciousness of guilt.” Commonwealth v. Hudson, 955 A.2d

1031, 1036 (Pa.Super. 2008). “‘Concealment’ . . . connotes an attempt to hide

or avoid recognition.” Commonwealth v. Bruce, 717 A.2d 1033, 1038

(Pa.Super. 1998). As stated above, we will not reverse a trial court’s ruling on

an evidentiary matter absent an abuse of discretion. Cain, 29 A.3d at 6.

       Corporal Mazurik testified on direct examination that he had been unable

to view the Facebook account bearing Smarr’s likeness and nickname

subsequent to his first viewing because it appeared to be deactivated. On

cross-examination, Corporal Mazurik testified that he did not know, and had

no way of knowing, whether Smarr himself had deactivated the account. He

also testified that he did not know whether the account had been deactivated

in an effort to hide Smarr’s identity by the police, and no other evidence

established that Smarr had attempted to conceal his identity in the days

following the murder.

       As Corporal Mazurik did not indicate that a third party was responsible

for deactivating the account, we reject Smarr’s argument that the

Commonwealth was required to establish that Smarr was responsible for the




____________________________________________


of conduct of the officers. As the only evidence that a Facebook account
existed and was deactivated was through the oral testimony of Corporal
Mazurik, we find Smarr’s argument related to authentication misplaced.

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J-S20021-19



deactivation to a greater degree than that which applies to the admissibility

of any other evidence of a defendant’s actions.

      Moreover, we conclude the evidence was unlikely to cause undue

prejudice. The jury was aware that there was no more than an inference that

Smarr had deactivated the account himself, or that he had done so to evade

capture. In addition, the testimony regarding the deactivation of the Facebook

account was not inflammatory, and constituted only a minor part of the

evidence against Smarr and formed only a minor part of the Commonwealth’s

closing argument. We conclude the trial court did not err in overruling Smarr’s

objection to the testimony.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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