J-S06011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
AARON JACKSON                            :
                                         :
                  Appellant              :   No. 3844 EDA 2016

         Appeal from the Judgment of Sentence November 9, 2016
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005864-2015


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                FILED JULY 17, 2018

     Aaron Jackson appeals from the judgment of sentence of six to twelve

years imprisonment imposed following his conviction of third-degree murder

in the shooting death of Robert Dewees. We affirm.

     The trial court set forth the relevant facts as follows:

            Mr. Anthony Capetola [testified that he] rented 1113
     Hancock Street in Chester. . . . He knew the victim for 14 years
     and described him as his best friend. Mr. Capetola rented a
     room in the house to Ms. [Maria] Occhiolini. On [September 17,
     2014,] the day of the shooting[,] the victim was at Mr.
     Capetola’s house. . . . Ms. Occhiolini[,] some of her girlfriends [,
     including Melissa Shanahan, and Appellant were] there. . . . Mr.
     Capetola knew [Appellant] as a friend of Ms. Occhiolini.
     [Appellant] had been hanging around the house for a week or so
     before the shooting. . . . Mr. Capetola . . . heard arguing in the
     back room . . . about $600 and pills. Mr. Capetola recognized
     two of the voices as belonging to the victim and [Appellant]. As
     he proceeded to the back room, the arguing stopped . . . At the
     time [Javier Rodriguez], [Appellant] and the victim passed by
     Mr. Capetola into the living room. As the three men entered the
     living room Mr. Capetola heard a loud noise. He . . . saw the
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     victim down on the ground with [Appellant’s] hand around his
     legs. Mr. Capetola concluded [Appellant] had tackled the victim
     to the ground. Mr. Capetola went over to assist the victim. As
     Mr. Capetola picked up the victim he heard someone say “should
     I do it,” and then he heard [Appellant] say “yes.” Mr. Capetola
     spun around and was looking at Rodriguez’s gun. At that time
     Rodriguez shot the victim in the chest.

            Ms. Maria Occhiolini . . . [testified that on the] day before
     the shooting, . . . [she] . . . heard the victim mention that the
     next day he was getting his Percocet and Xanax prescriptions.
     [Appellant] told the victim he knew somebody that wanted to
     buy the prescriptions. The next day, the day of the shooting, . .
     . [Appellant] returned to Ms. Occhiolini’s . . . house with . . .
     Rodriguez. . . . When the victim returned to the house he told
     Ms. Occhiolini he didn’t feel comfortable selling Rodriguez any
     pills because he didn’t know who he was. . . . Ms. Occhiolini then
     told Rodriguez and [Appellant] that the victim didn’t want to do
     the transaction. . . . Ms. Occhiolini started to leave. [Appellant]
     walked in front of her like he was leaving to [sic]. Rodriguez
     came in between the two of them. Rodriguez put a .45 handgun
     to Ms. Occhiolini’s chest and attempted to rob her. [Appellant]
     told Rodriguez that Ms. Occhiolini didn’t have anything.
     Rodriguez told [Appellant] to detain Ms. Occhiolini so she
     couldn’t call the police. Ms. Occhiolini heard Rodriguez say to
     [Appellant], “should I do this?” and [Appellant] reply “yes.” . . .
     [Appellant] threw the victim onto the living room floor while
     Rodriguez was pointing the gun at him. . . . Ms. Occhiolini saw
     the victim in the living room on his back and both Rodriguez and
     [Appellant] on top of him trying to get him to release [a] Phillies
     backpack he was holding. Rodriguez proceeded to point the gun
     at the victim and shoot him. Rodriguez and [Appellant] then ran
     out of the front door with the Phillies back pack [sic].

           [Appellant] testified [that] he was a drug runner for Mr.
     Capetola and Ms. Occhiolini. He would bring people to their
     residence to buy drugs and would get a commission for doing so.
     He denied having any knowledge that Rodriguez would rob and
     shoot the victim. [Appellant] testified he knew the victim had a
     prescription for Percocet and Xanax. . . . [Appellant] admitted
     he brought Rodriguez to the residence to buy drugs, [and that
     he knew there was a possibility that Rodriguez would get the
     drugs from the victim by force (i.e., “the strong arm option”).]
     [Appellant] denied [Mr.] Capetola[’s] and [Ms.] Occhiolini[’s]

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     version of his involvement in the victim’s robbery and shooting.
     [He claimed] Rodriguez acted alone without [Appellant’s] prior
     knowledge or participation.

Trial Court Opinion, 3/16/17, at 1-8 (references to the record and footnote

omitted, formatting changed).

     Appellant was arrested and charged with murder of the second degree,

murder of the third degree, robbery, and criminal conspiracy for his alleged

participation in Dewees’s murder.     Following a jury trial, Appellant was

convicted of murder of the third degree.    On November 9, 2016, the trial

court sentenced him to six to twelve years incarceration. Appellant filed a

post-sentence motion which the trial court denied.     Appellant then filed a

timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

     Appellant raises the following issues for our review:

     1. Whether the evidence presented by the Commonwealth at
        trial was insufficient to convict the Appellant beyond a
        reasonable doubt of murder of the third degree where the
        evidence was clear that Appellant was not the shooter and did
        not cause the death of the victim, and [the] jury found
        Appellant not guilty of 2nd[-]degree murder, criminal
        conspiracy to commit 2nd[-]degree murder and 3rd[-]degree
        murder[,] and robbery?

     2. Whether the trial court erred in granting the Commonwealth’s
        motion in limine prior to trial which precluded the Appellant
        from using the principal Commonwealth witness’[s] criminal
        record for impeachment purposes, specifically the arrest and
        conviction of [Mr.] Capetola for drugs, and as such was an
        abuse of the court’s discretion and denied the Appellant a fair
        trial?




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      3. Whether the trial court erred in precluding the Appellant from
         using the principal Commonwealth witness’[s] criminal record
         for impeachment purposes, specifically the arrest and
         conviction of [Mr.] Capetola for drugs, and as such was an
         abuse of discretion and denied Appellant a fair trial, where
         Commonwealth’s witness testified at trial that he did not have
         a criminal record, but that Appellant was a criminal?

      4. Whether the trial court erred in failing to grant the Appellant’s
         various motions for mistrial raised by his counsel during the
         jury trial?

Appellant’s brief at 5 (unnecessary capitalization omitted).

      In his first claim, Appellant challenges to the sufficiency of the

evidence supporting his conviction.        As a preliminary matter, when

challenging the sufficiency of the evidence on appeal, the “[a]ppellant’s

[court-ordered Pa.R.A.P. 1925(b) concise] statement must specify the

element or elements upon which the evidence was insufficient in order to

preserve the issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274,

281 (Pa.Super. 2009).     If the appellant fails to conform to the specificity

requirement, the claim is waived. Id.

      In the present case, Appellant’s 1925(b) statement merely asserts that

“[t]he evidence presented by the Commonwealth at trial was insufficient to

convict [Appellant] beyond a reasonable doubt of murder of the third degree

where the evidence was clear that [Appellant] was not the shooter and did

not cause the death of the victim, and jury found him not guilty of

2nd[-]degree murder, criminal conspiracy to commit 2nd and 3rd[-]degree

murder[,] and robbery.”    Concise Statement, 12/16/16, at unnumbered 3.


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The trial court determined that Appellant’s statement was inadequate

because he failed to specify which element of the crime that the

Commonwealth had allegedly failed to prove.         See Trial Court Opinion,

3/16/17, at 11. We agree with the trial court that Appellant’s statement of

his sufficiency claim was vague insofar as it did not specifically challenge the

evidence relating to any element of third-degree murder. However, as the

trial court addressed the claim, we decline to find waiver on this basis.

      Our standard of review of a sufficiency claim is well-settled:

            [W]e evaluate the record in the light most favorable to the
      verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty.       [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations

and quotation marks omitted).

      Additionally,

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so


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     long as the evidence adduced, accepted in the light most
     favorable to the Commonwealth, demonstrates the respective
     elements of a defendant’s crimes beyond a reasonable doubt,
     the appellant’s convictions will be upheld.

Commonwealth v. Tukhi, 149 A.3d 881, 886-87 (Pa.Super. 2016) (citation

omitted).

     Murder is defined by statute as follows:

     (a)    Murder of the first degree.--A criminal homicide
            constitutes murder of the first degree when it is committed
            by an intentional killing.

     (b)    Murder of the second degree.--A criminal homicide
            constitutes murder of the second degree when it is
            committed while defendant was engaged as a principal or
            an accomplice in the perpetration of a felony.

     (c)    Murder of the third degree.--All other kinds of murder
            shall be murder of the third degree. Murder of the third
            degree is a felony of the first degree.

18 Pa.C.S. § 2502.

           A person may be convicted of third-degree murder where
     the murder is neither intentional nor committed during the
     perpetration of a felony, but contains the requisite malice
     aforethought. Malice consists of a wickedness of disposition,
     hardness of heart, cruelty, recklessness of consequences, and a
     mind regardless of social duty, although a particular person may
     not be intended to be injured.

Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa.Super. 1990) (internal

quotations and citations omitted). “The elements of third[-]degree murder,

as developed by case law, are a killing done with legal malice but without

specific intent to kill required in first[-]degree murder.     Malice is the

essential element of third[-]degree murder, and is the distinguishing factor



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between murder and manslaughter.”        Commonwealth v. Cruz-Centeno,

668 A.2d 536, 539 (Pa.Super. 1995).

      With respect to accomplice liability:

            A person is deemed an accomplice of a principal if “with
      the intent of promoting or facilitating the commission of the
      offense, he: (i) solicit[ed the principal] to commit it; or (ii)
      aid[ed] or agree[d] or attempt[ed] to aid such other person in
      planning or committing it.” 18 Pa.C.S. § 306; Commonwealth
      v. Spotz, . . . 716 A.2d 580, 585 ([Pa.] 1998). Accordingly, two
      prongs must be satisfied for a defendant to be found guilty as an
      “accomplice.” First, there must be evidence that the defendant
      intended to aid or promote the underlying offense. Second,
      there must be evidence that the defendant actively participated
      in the crime by soliciting, aiding, or agreeing to aid the principal.
      While these two requirements may be established by
      circumstantial evidence, a defendant cannot be an accomplice
      simply based on evidence that he knew about the crime or was
      present at the crime scene. There must be some additional
      evidence that the defendant intended to aid in the commission of
      the underlying crime, and then did or attempted to do so. With
      regard to the amount of aid, it need not be substantial so long as
      it was offered to the principal to assist him in committing or
      attempting to commit the crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) (some

citations omitted).

      Here, Appellant contends that the Commonwealth failed to prove that

he acted with the requisite level of malice necessary to support a conviction

of third-degree murder as an accomplice. He claims that he accompanied

Rodriguez to Mr. Capetola’s home solely to purchase drugs, and there is no

evidence that Appellant planned to injure or kill Dewees, or that he knew

that Rodriguez possessed a firearm.       According to Appellant, he did not

solicit, aid or encourage Rodriguez in the shooting death of Dewees.

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

Commonwealth, as the verdict winner, we conclude that a reasonable juror

could find that Appellant intended to aid, and actively aided, Rodriguez, who

shot and killed Dewees. Appellant testified that he brought Rodriguez to the

residence to buy drugs, and that he knew there was a possibility that

Rodriguez would get the drugs from the victim by force (i.e., “the strong

arm option”). N.T. Trial, 8/4/16, at 141-42. Appellant was also aware that

Rodriguez had a gun because he saw Rodriguez use it to try to rob Ms.

Occhiolini. N.T. Trial, 8/3/16, at 93. Additionally, Mr. Capetola testified that

Appellant tackled Dewees to the ground and was holding his legs when

someone asked “should I do it?” to which Appellant responded “yes”

immediately before Rodriguez shot Dewees in the chest. Id. at 13-15. Ms.

Occhiolini also testified that Appellant threw Dewees onto the living room

floor while Rodriguez was pointing the gun at him, and that both Rodriguez

and Appellant were on top of Dewees trying to get him to release the Phillies

backpack he was holding. Id. at 96-98. Ms. Occhiolini further testified that

she heard Rodriguez ask Appellant just prior to the shooting, “should I do

this?” and Appellant reply “yes.” Id. at 94.

      Based on these facts, we find the Commonwealth presented sufficient

evidence to prove that Appellant acted with the requisite malice to support

his third-degree murder conviction as an accomplice by showing a

“wickedness of disposition, hardness of heart, cruelty, recklessness of


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consequences, and a mind regardless of social duty.” Pigg, supra at 441-

42. Accordingly, we conclude that Appellant’s first issue merits no relief.

      In Appellant’s second and third issues, he challenges the trial court’s

order granting the Commonwealth’s motion in limine to preclude the use of

Mr. Capetola’s criminal record for impeachment purposes. In reviewing the

grant or denial of motions in limine, this Court applies an abuse of discretion

standard of review.    See Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa.Super. 2013). “An abuse of discretion will not be found based on a mere

error of judgment, but rather exists where the court has reached a

conclusion which overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014).

      Additionally, this Court has stated the well-established standard of

review for admission-of-evidence claims as follows:

            The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012).

      First, Appellant claims the trial court erred in precluding the use of Mr.

Capetola’s criminal record to impeach him.      According to Appellant, seven

months after the shooting, Mr. Capetola entered a negotiated guilty plea to

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possession of a controlled substance in exchange for one year reporting

probation. Appellant contends that Mr. Capetola may have been motivated

by his negotiated plea to fabricate a claim that Appellant encouraged

Rodriguez to shoot Dewees. Appellant argues that the trial court abused its

discretion in granting the Commonwealth’s motion in limine to preclude the

introduction of Mr. Capetola’s conviction because the jury should have been

appraised of the details of Mr. Capetola’s plea agreement for impeachment

purposes.

      Pennsylvania Rule of Evidence 609(a) provides that: “[f]or the purpose

of attacking the credibility of any witness, evidence that the witness has

been convicted of a crime, whether by verdict or by plea of guilty or nolo

contendere, must be admitted if it involved dishonesty or false statement.”

It is the burden of the party seeking to introduce the crimes to demonstrate

the crimes at issue represent crimen falsi. See Commonwealth v. Davis,

17 A.3d 390, 396 (Pa.Super. 2011).

      Here,   Mr.   Capetola’s   conviction   for   possession   of   a   controlled

substance did not involve dishonesty or a false statement, and is not a

crimen falsi conviction admissible under Pa.R.E. 609.            See id. at 399

(observing that possession of a controlled substance is not crimen falsi).

Thus, the trial court had the discretion to exclude it from evidence at trial.

      Moreover, the record reveals the trial court conducted two hearings on

the Commonwealth’s motion in limine wherein it was revealed that, during


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the criminal proceedings related to his drug charge, Mr. Capetola did not

reveal to either his defense counsel or to the assistant district attorney that

he had been a witness to a murder, and, consequently, did not receive any

benefit from the Commonwealth for his plea. N.T. Pretrial, 7/25/16, at 4-6.

Thus, at the time of Mr. Capetola’s plea agreement, the Commonwealth was

unaware that he was a potential witness in an upcoming murder trial.

Further, Mr. Capetola served the entirety of his probationary sentence before

Appellant’s trial commenced.        N.T. Pretrial, 8/1/16, at 9-10; N.T. Pretrial,

7/25/16, at 6. Accordingly, we discern no abuse of discretion or error of law

by the trial court, and conclude that Appellant’s second claim warrants no

relief.

          Appellant next claims that the trial court abused its discretion when it

precluded the introduction of Mr. Capetola’s conviction to impeach his

testimony regarding his criminal record.             According to Appellant, Mr.

Capetola lied about his criminal history when he told the jury that “I don’t

sell drugs, I never did.      I don’t have a record selling drugs or whatever,

buying drugs whatever.” Appellant’s brief at 18 (citing N.T. Trial, 8/3/16, at

70-75).

          Appellant’s claim lacks merit.         Although Appellant attempts to

characterize Mr. Capetola’s testimony as perjured, the record reveals it was

not.      As Appellant points out, Mr. Capetola pled guilty to possession of

controlled substance. Therefore, Mr. Capetola truthfully told the jury that he


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had no criminal record for the sale or purchase of drugs.               Moreover,

Appellant was permitted to question Mr. Capetola at trial regarding his drug

use, and elicit his testimony that he had used drugs in the past. See N.T.,

8/3/16, at 63. Thus, we discern no abuse of discretion or error of law by the

trial court, and conclude that Appellant’s third claim is meritless.

      In his final claim, Appellant contends that the trial court erred by

denying his three motions for mistrial. We address each motion separately,

mindful of our standard of review of a court’s denial of a request for mistrial:

             A motion for a mistrial is within the discretion of the trial
      court. A mistrial upon motion of one of the parties is required
      only when an incident is of such a nature that its unavoidable
      effect is to deprive the appellant of a fair and impartial trial. It is
      within the trial court’s discretion to determine whether a
      defendant was prejudiced by the incident that is the basis of a
      motion for a mistrial. On appeal, our standard of review is
      whether the trial court abused that discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal

citations and footnote omitted).

      According to Appellant, the trial court erred by denying his first motion

for mistrial following Detective William Wright’s trial testimony that Appellant

and Rodriguez agreed to obtain Percocet pills from Dewees either by sale or,

if necessary, through a “strong arm robbery.” N.T. Trial, 8/4/16, at 57, 60.

Specifically, the detective stated that “[Appellant] said if they could not get

them and pay for them there would be a possibility they could strong arm

them. So, there was an agreement they could get them either way. Strong

arm I mean forcibly taking them from him.”         Id. at 57.    Appellant claims

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that Detective Wright “in essence offered his opinion that Appellant and

[Rodriguez] had entered into a conspiracy to rob [Dewees] of his narcotics.”

Appellant’s brief at 22. Although Appellant concedes that he subsequently

testified at trial regarding the strong arm robbery option, he nevertheless

contends that he was prejudiced and denied a fair trial by the detective’s

“damning and prejudicial testimony.” Id.

        Notably, Appellant does not claim that Detective Wright’s testimony

was inadmissible. Rather, he summarily contends, without discussion of or

citation to any relevant legal authority, that he was unfairly prejudiced by it.

Without any developed discussion of why the trial court erred by considering

Detective Wright’s testimony as an admissible opinion by a lay witness, see

Pa.R.E. 701,1 Appellant has not demonstrated that the court’s decision was

an abuse of discretion.        See Pa.R.A.P. 2119(a) (stating that the parties’


____________________________________________


1   Rule 701 provides:

        If a witness is not testifying as an expert, testimony in the form
        of an opinion is limited to one that is:

        (a)   rationally based on the witness’s perception;

        (b)   helpful to clearly understanding the witness’s testimony or
              to determining a fact in issue; and

        (c) not based on scientific, technical, or other specialized
            knowledge within the scope of Rule 702.

Pa.R.E. 701



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briefs must include a discussion of each question raised on appeal and a

“citation of authorities as are deemed pertinent.”).

          Moreover, the trial court determined that, even if it erred by not

striking the detective’s testimony, Appellant suffered no prejudice because

he testified at trial that he voluntarily told police that he knew there was a

possibility that Rodriguez would get the drugs from the victim by “strong

arm.” See Trial Court Opinion, 3/16/17, at 20; see also N.T., 8/4/16, at

141-42. As we discern no abuse of discretion by the trial court, Appellant’s

challenge to the trial court’s denial of his first motion for mistrial warrants no

relief.

          Appellant next claims that the trial court erred by denying his motion

for mistrial following Detective Wright’s trial testimony that the jury should

disregard      Ms.   Shanahan’s   post-incident   statements   because    of   his

observations of her demeanor during police interviews. Appellant contends

that the detective’s statements invaded the province of the jury by

“cast[ing] a cloud over the testimony and credibility of Ms. Shanahan,” and

thereby “wholly eviscerated” Appellant’s right to a fair trial. Appellant’s brief

at 23.

          The trial court determined that no mistrial was warranted as the

detective testified to his personal observations of Ms. Shanahan’s demeanor.

See Trial Court Opinion, 3/16/17, at 18-19.            We discern no abuse of

discretion by the trial court.     See Commonwealth v. Boczkowski, 846


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A.2d 75, 97 (Pa. 2004) (holding that a lay person is permitted to testify as

to personal observations of someone’s demeanor, and to offer an opinion on

matters falling within the realm of common knowledge experience and

understanding); see also Pa.R.E. 602 (providing that a witness may testify

to matters within his personal knowledge).            Accordingly, Appellant’s

challenge to the trial court’s denial of his second motion for mistrial warrants

no relief.

      Finally, Appellant argues that the trial court erred by denying his third

motion for mistrial based on the Commonwealth’s failure to provide the

defense with a copy of Mr. Capetola’s written statement to police following a

photo array.      According to Appellant, the Commonwealth “shockingly

claimed that no statement was taken from [Mr.] Capetola coincident with the

showing of the photo array.” Appellant’s brief at 24. Appellant claims that

the Commonwealth destroyed or withheld the statement from the defense,

in   violation   of   Brady   v.   Maryland,   373   U.S.   83   (1963),    and

Commonwealth v. Cam Ly, 980 A.2d 61 (Pa. 2009).

      The trial court determined that no mistrial was warranted because no

written statement was taken from Mr. Capetola following the photo array.

See Trial Court Opinion, 3/16/17, at 18 (citing N.T. Trial, 8/3/16. At 70-75).

Based on our review, we discern no abuse of discretion by the trial court.

Appellant’s claim is based on pure conjecture, whereas the trial court was

presented with credible representations at trial that no written statement


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was made by Mr. Capetola following the photo array.          See N.T. Trial,

8/3/16. At 71, 74-75. Accordingly, Appellant’s challenge to the trial court’s

denial of his third motion for mistrial based on a suspected Brady violation

warrants no relief.

      Judgment of sentence affirmed.

      Judge Musmanno joins the memorandum

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




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