J-A26031-18

                                   2019 PA Super 16


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES F. NEVELS, III                     :
                                               :
                       Appellant               :   No. 1354 WDA 2017

             Appeal from the Judgment of Sentence August 25, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0011118-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:                                FILED JANUARY 18, 2019

       Charles F. Nevels, III (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of 23 crimes, including three counts of

attempted homicide,1 two counts of retaliation against a witness,2 and three

counts of aggravated arson.3 After careful review, we affirm.

       The trial court summarized the underlying facts as follows:

       Tara Jones and her husband, Darwin Jones (hereinafter “Mr. and
       Mrs. Jones”), witnessed the commission of a homicide outside
       their residence. Mr. and Mrs. Jones cooperated with police and
       the Commonwealth in identifying the shooter, Theodore Smedley
       (hereinafter “Smedley”), later testifying against Smedley before a
       grand jury.      Smedley apparently committed the murder in
       retribution for the prior shooting of his [brother], Dorian Smedley.
       Following this testimony, Smedley was charged with, inter alia,
____________________________________________


1   18 Pa.C.S.A. §§ 901(a), 2501(a).

2   18 Pa.C.S.A. § 4953(a).

3   18 Pa.C.S.A. § 3301(a.1).
J-A26031-18


       criminal homicide. Soon thereafter, Mr. and Mrs. Jones were
       victims of an arson that caused significant damage to their home
       and serious bodily harm to the Jones[es], and their daughter,
       Amanda Schmitt.

              [Appellant], Smedley’s cousin, was charged with three
       counts of criminal attempt-criminal homicide; two counts of
       intimidation of a witness/victim; eight counts of arson-death or
       bodily injury; three counts of aggravated arson; two counts of
       arson endangering property; two counts reckless burning or
       exploding; one count of risking a catastrophe; and two counts of
       retaliation against a witness/victim, all in connection with the
       arson. . . .

Trial Court Opinion, 1/25/18, at 1-2 (unnecessary capitalization omitted).

       On January 4, 2017, Appellant filed an amended motion in limine to

exclude Commonwealth evidence. Pertinently, Appellant sought to exclude

expert testimony regarding historical cell-site analysis and Appellant’s cell

phone records. The trial court granted Appellant’s request for a Frye4 hearing

because it was “unaware of any published opinions finding that the use of

historical cell[-]site analysis is generally accepted science.”   Trial Court

Opinion, 1/25/18, at 4.

       The trial court conducted the Frye hearing on April 24, 2017, and

thereafter denied Appellant’s motion to exclude the expert testimony. The

case proceeded to trial. On May 31, 2017, the jury found Appellant guilty on




____________________________________________


4  Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted by
Pennsylvania in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977),
provides that novel scientific evidence is admissible if the methodology that
underlies the evidence has general acceptance in the relevant scientific
community.

                                           -2-
J-A26031-18



all 23 counts. On August 25, 2017, the trial court sentenced Appellant to an

aggregate 62 to 124 years of incarceration.

     Appellant filed a timely post-sentence motion, which the trial court

denied on September 12, 2017. Appellant filed this timely appeal. Both the

trial court and Appellant have complied with Pennsylvania Rule of Appellate

Procedure 1925.

     On appeal, Appellant presents the following issues for review:

     I.    DID THE LOWER COURT ERR IN FINDING THAT THE
     COMMONWEALTH HAD MET ITS BURDEN OF ESTABLISHING THAT
     THE TESTIMONY OF FBI SPECIAL AGENT JOHN HAUGER,
     REGARDING CELL PHONE TRACKING, WAS GENERALLY
     ACCEPTED IN THE SCIENTIFIC OR TECHINICAL FIELD TO WHICH
     IT BELONGS, ASSUMING THAT THERE IS EVEN A SCIENTIFIC OR
     TECHNICAL FIELD TO WHICH IT BELONGS?

     II. WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER
     OF LAW AS TO THE CHARGES OF CRIMINAL ATTEMPT AT
     HOMICIDE?

     III. WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER
     OF LAW AS TO THE CHARGES OF RETALIATION AGAINST
     WITNESSES OR VICTIM (18 PA.C.S. § 4953([a])) WHERE THE
     EVIDENCE DID NOT DEMONSTRATE THAT [APPELLANT] KNEW
     THAT THE SPECIFIED VICTIMS HAD, IN FACT, BEEN A WITNESS
     OR THAT [APPELLANT] KNEW THAT THEY HAD BEEN SUCH, IN
     ORDER FOR HIM TO RETALIATE AGAINST THEM FOR SOMETHING
     DONE, SUCH AS PROVIDE TESTIMONY, AS A WITNESS IN A CIVIL
     MATTER?

     IV.  DID THE LOWER COURT ERR IN NOT GRANTING A MISTRIAL
     AFTER THE IRRELEVANT AND PREJUDICIAL TESTIMONY OF
     COMMONWEALTH WITNESS TERRI CROWLEY STATING THAT SHE
     WAS NERVOUS ABOUT TESTIFYING BECAUSE SHE DID NOT WANT
     HER SON TO END UP DEAD AFTER IMPROPERLY OVERRULING AN
     OBJECTION TO TESTIMONY ABOUT CROWLEY’S STATE OF MIND?



                                    -3-
J-A26031-18


       V.   WAS THE SENTENCE IMPOSED UPON APPELLANT
       MANIFESTLY UNREASONABLE, WHERE SUCH WAS A SENTENCE
       OF 62 TO 124 YEARS IMPOSED ON A TWENTY-SIX (26) YEAR OLD
       MAN, FOR AN ACT, WHICH CLEARLY WARRANTED SIGNIFICANT
       PUNISHMENT, BUT ONE FOR WHICH A FAR LESSER SENTENCE
       WOULD HAVE SATISFIED THE GOALS AND PURPOSES OF
       PENNSYLVANIA SENTENCING LAW AND THE PENNSYLVANIA
       SENTENCING GUIDELINES?

Appellant’s Brief at 5-6.5

       In his first issue, Appellant challenges the trial court’s denial of his

motion in limine seeking to exclude expert testimony regarding “historical cell-

site analysis.”    Id. at 29-42.       It is well-settled that 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. Reese, 31 A.3d 708, 716 (Pa. Super. 2011) (internal

citations omitted). With regard to Frye, the Pennsylvania Supreme Court has

explained:

       [A]s to the standard of appellate review that applies to the Frye
       issue, we have stated that the admission of expert scientific
       testimony is an evidentiary matter for the trial court’s discretion
       and should not be disturbed on appeal unless the trial court
       abuses its discretion. An abuse of discretion may not be found
       merely because an appellate court might have reached a different
       conclusion, but requires a result of manifest unreasonableness, or

____________________________________________


5  Appellant’s Rule 1925(b) statement raised several errors complained of on
appeal not presented in his appellate brief. See Rule 1925(b) Statement,
10/30/17, at unnumbered 1-5. Because Appellant abandoned these claims in
his brief, we will not address them. See Appellant’s Brief at 5-6; see also
Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied,
132 S. Ct. 267 (2011) (refusing to address claim appellant raised with trial
court but subsequently abandoned in brief).


                                           -4-
J-A26031-18


      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003) (internal citations

omitted).

      Appellant claims that the trial court erred by permitting Federal Bureau

of Investigation (FBI) Special Agent John Hauger to testify about historical

cell-site analysis. Appellant’s Brief at 29. Specifically, Appellant asserts that

“‘[h]istorical cell-site analysis’ is not a reliable form of science; there is no

established methodology that yields certain results, and there is no general

acceptance from a relevant scientific or technical community for this type of

testimony.” Id. at 29-30.

      Conversely, the Commonwealth argues:

      [T]he science of phones connecting to towers when they are within
      the tower’s geographic range is not “new or novel” and th[e] use
      of the records of such connections is a generally accepted
      methodology in the field of cellular technology to determine a cell
      phone’s general location and proximity to a tower. Thus, the trial
      court did not abuse its discretion by allowing Agent Hauger to
      testify about the towers to which [A]ppellant’s phone connected
      during the early morning hours of June 21, 2015.

Commonwealth’s Brief at 21. As to its decision to deny Appellant’s motion,

the trial court explained:

      At the conclusion of the Frye [h]earing this Court determined that
      there was no evidence presented by Appellant to contradict the
      historical cell phone data produced which reflects a cell phone
      connecting to a particular cell tower, which thereby produces
      records which provide a generalized geographic area as to where
      a phone call was placed. Therefore, this Court determined that
      such data is not novel science in the cell phone record analysis
      community.


                                       -5-
J-A26031-18



Trial Court Opinion, 1/25/18, at 6. We agree.

      Pennsylvania Rule of Evidence 702 governs expert witness testimony.

It states:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

      (a) the expert’s scientific, technical, or other specialized
      knowledge is beyond that possessed by the average layperson;

      (b) the expert’s scientific, technical, or other specialized
      knowledge will help the trier of fact to understand the evidence or
      to determine a fact in issue; and

      (c) the expert’s methodology is generally accepted in the relevant
      field.

Pa.R.E. 702. “However, to be admissible under Rule 702, evidence must not

only be beyond the knowledge possessed by [a] layperson, and assist the trier

of fact to understand the evidence, but it also . . . must pass the Frye ‘general

acceptance’ test.” Commonwealth v. Walker, 92 A.3d 766, 789 (Pa. 2014).

“The Frye test provides that novel scientific evidence is admissible ‘if the

methodology that underlies the evidence has general acceptance in the

relevant scientific community.’” Id. at 789 (citing Grady, 839 A.2d at 1044).

      Our Supreme Court further explained:

      [S]cientists are in a better position to evaluate the merits of
      scientific theory and techniques than judges. With respect to
      application of the Frye standard, our Court has made it clear that
      Frye is not implicated every time science comes into the
      courtroom; rather, it applies only to proffered expert testimony
      involving novel science. Our Court has noted that a reasonably
      broad meaning should be ascribed to the term “novel,” and a Frye


                                      -6-
J-A26031-18


      hearing is warranted when a trial judge has articulable grounds to
      believe that an expert witness has not applied accepted scientific
      methodology in a conventional fashion in reaching his or her
      conclusions. Further, what constitutes novel scientific evidence is
      usually decided on a case-by-case basis as there is some flexibility
      in the construction, as science deemed novel at the outset may
      lose its novelty and become generally accepted in the scientific
      community at a later date, or the strength of the proponent’s
      proffer may affect the Frye determination.

Walker, 92 A.3d at 789-90 (internal citations and quotations omitted). As

noted by this Court, the Frye test has two components:

      First, the party opposing the evidence must show that the
      scientific evidence is “novel” by demonstrating that there is a
      legitimate dispute regarding the reliability of the expert’s
      conclusions. If the moving party has identified novel scientific
      evidence, then the proponent of the scientific evidence must show
      that the expert’s methodology has general acceptance in the
      relevant scientific community despite the legitimate dispute.

Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012) (internal

citations and quotations omitted), appeal denied, 60 A.3d 535 (Pa. 2013).

      Consistent with the foregoing authority and our careful review of the

record, we find that the trial court did not abuse its discretion in permitting

Special Agent Hauger to testify about the science of historical cell-cite analysis

and the “pinging” of Appellant’s cell phone.       As Appellant was the party

opposing the admission of this evidence, at the time of his challenge, Appellant

had the burden of “show[ing] that the scientific evidence is novel by

demonstrating that there is a legitimate dispute regarding the reliability of the

expert’s conclusions.” See id. Appellant failed to satisfy this burden. See

Trial Court Opinion, 1/25/18, at 4-5. Appellant presented no evidence at the


                                      -7-
J-A26031-18


hearing in support of the existence of a legitimate dispute regarding the

novelty of historical cell-site analysis; in fact, Special Agent Hauger was the

only witness to testify at the Frye hearing.       See N.T., 4/24/17, at 1-69.

Appellant’s failure to identify historical cell-site analysis – in any respect – as

novel scientific evidence, combined with the strength of the Commonwealth’s

proffer, see id., supports the trial court’s ruling. We write further in response

to the trial court’s observation that this Court has not issued a published

opinion addressing the admissibility of historical cell-site analysis.

      Federal “[d]istrict courts that have been called upon to decide whether

to admit historical cell-site analysis have almost universally done so.” United

States v. Hill, 818 F.3d 289, 297 (7th Cir. 2016) (citing United States v.

Jones, 918 F.Supp.2d 1, 5 (D.D.C. 2013) (collecting cases)). Likewise, other




                                       -8-
J-A26031-18


state courts, including Illinois,6 Maryland,7 New York,8 and Washington,9 have

permitted the introduction of historical cell-site analysis to establish a cell

phone’s generalized geographic location without requiring the satisfaction of

the second component of the Frye test.10

       In Pennsylvania, this Court has affirmed a trial court’s determination

that historical cell-site analysis was not novel under the Frye test, but has

done so in non-precedential unpublished memoranda. See Commonwealth

v. Baker, 454 MDA 2016 (Pa. Super. Aug. 1, 2017) (unpublished



____________________________________________


6 People v. Fountain, 62 N.E.3d 1107, 1124 (Ill. App. Ct. 2016) (“Regardless
whether historical cell site evidence is scientific, the use of cell phone location
records to determine the general location of a cell phone is not ‘new’ or ‘novel’
and has been widely accepted as reliable by numerous courts throughout the
nation.”).

7 Stevenson v. State, 112 A.3d 959, 967 (Md. Ct. Spec. App. 2015) (“The
cell phone location evidence at issue here is not novel scientific evidence, so
Frye [] is not applicable.”).

8  People v. Littlejohn, 112 A.D.3d 67, 73 (N.Y. App. Div. 2013) (“[T]he
Supreme Court properly denied his request for a Frye hearing with regard to
this evidence, since the expert testimony proffered by the prosecution did not
concern a novel scientific theory, technique, or procedure, but instead
involved deductions made from cell phone site data in a manner consistent
with a generally accepted scientific process.”).

9 State v. Ramirez, 425 P.3d 534, 543 (Wash. Ct. App. 2018) (“With respect
to the Frye standard, cell site location testimony is not novel; it is widely
accepted throughout the country.”).

10   “If the moving party has identified novel scientific evidence, then the
proponent of the scientific evidence must show that the expert’s methodology
has general acceptance in the relevant scientific community despite the
legitimate dispute.” Foley, 38 A.3d at 888.

                                           -9-
J-A26031-18


memorandum at 24-28); Commonwealth v. Watson, 900 MDA 2013 (Pa.

Super. Aug. 11, 2014) (unpublished memorandum at 9-11).               But see

Superior   Court   Operating    Procedure     §   65.37(A)   (“An   unpublished

memorandum decision shall not be relied upon or cited by a Court or a party

in any other action or proceeding[.]”).

       More generally, we have affirmed a trial court’s decision to qualify an

expert in the area of historical cell-site analysis.   See Commonwealth v.

Latham, 2702 EDA 2010 (Pa. Super. Mar. 17, 2014) (unpublished

memorandum at 5-6); Commonwealth v. Page, 2625 EDA 2010 (Pa. Super.

Mar. 7, 2014) (unpublished memorandum at 5); Commonwealth v. Walker,

630 EDA 2010 (Pa. Super. Jul. 14, 2017) (unpublished memorandum at 9-

10).   We have also upheld convictions in cases where expert testimony

regarding historical cell-site analysis has been introduced into evidence.

Commonwealth v. Cooley, 3474 EDA 2016 (Pa. Super. Mar. 28, 2018)

(unpublished memorandum); Commonwealth v. Gooden, 3506 EDA 2016

(Pa. Super. Apr. 18, 2018) (unpublished memorandum); Commonwealth v.

Heyward, 1408 EDA 2015 (Pa. Super. Jul. 22, 2016) (unpublished

memorandum); Commonwealth v. Smith, 3884 EDA 2016 (Pa. Super. Apr.

16, 2018) (unpublished memorandum); Commonwealth v. Wicker, 819

EDA 2014 (Pa. Super. Aug. 13, 2015) (unpublished memorandum); and

Commonwealth v. Davis, 3194 EDA 2015 (Pa. Super. Nov. 2, 2016)

(unpublished memorandum).


                                     - 10 -
J-A26031-18


      The absence of precedential case law has no effect on scientific

evidence’s novelty. Commonwealth v. Safka, 95 A.3d 304, 308 (Pa. Super.

2014). The determination of whether certain technology is “novel” scientific

evidence “turns on whether there is a legitimate dispute regarding the

reliability of the expert’s conclusions, which is not necessarily related to the

newness of the technology used in developing the conclusions.” Id. at 307-

308 (internal citation omitted). Further:

      [N]ovelty is not restricted to new science, and even bedrock
      scientific principles may be subject to a Frye analysis if those
      principles become disputed.       Conversely, where there is no
      dispute, Frye should be construed narrowly so as not to impede
      admissibility of evidence that will aid the trier of fact in the search
      for truth.

Foley, 38 A.3d at 888 (internal citation and quotations omitted).

      Instantly, Special Agent Hauger testified that historical cell-site analysis

is conducted primarily by the FBI’s Cellular Analysis Survey Team (CAST),

which formed in 2009 and now includes 60 law enforcement members across

the country who are specifically trained by the cell phone companies’

engineers to analyze their customers’ cell phone records. N.T., 4/24/17, at

5-6. Special Agent Hauger – who is a CAST member – explained that the cell

phone companies make their cell tower databases available to CAST for use

in historical cell-site analysis. CAST performs historical cell-site analysis to

aid in criminal prosecutions, the exoneration of potential suspects, and the

locating of kidnapping victims. Id. at 18-20. In addition to attending an initial

six-week training program, CAST members attend yearly training at which cell



                                      - 11 -
J-A26031-18



phone companies update CAST members on evolving cell phone technology.

N.T., 5/25/17, at 707. At trial, Mr. Joseph Sierra, a custodian of records for

the T-Mobile cell phone company, corroborated the testimony of Special Agent

Hauger regarding CAST. N.T., 5/25/17, at 659-693. Mr. Sierra testified that

T-Mobile “no longer” provides the company’s engineers to testify in court

proceedings, and instead “teaches and trains” the FBI CAST group, and when

the company receives requests for expert testimony regarding historical cell-

site analysis, they refer the inquiries to the FBI CAST Group. Id. at 692-693.

      Special Agent Hauger further testified that every time someone places

a call or sends a text message using a cell phone, the company providing the

cellular service to that phone records the usage.       N.T., 5/25/17, at 709.

Companies record the number making the call, the number called, the date

and time the call occurs, the duration of the call, and the particular cell tower,

and/or sector of that tower, to which the cell phone connects. Id. Cell phone

companies maintain records for various reasons, including billing. Id. Special

Agent Hauger described historical cell-site analysis as the process of analyzing

records maintained by the cellular service companies to plot on a map what

tower(s) and sector(s) a phone used to connect to the provider’s network. Id.

at 708-709. The data is used to determine a cell phone’s general geographic

location at the time the phone was used to place a call or send a text message.

Id.

      We note the detail with which Special Agent Hauger testified:


                                     - 12 -
J-A26031-18


      [COMMONWEALTH]:            Can you explain to the jury what exactly
      historical cell site analysis is?

      [SPECIAL AGENT HAUGER]: Sure. Every time you use your
      phone, any time anybody uses your phone for a call, text
      message, that sort of thing, that’s recorded by the cell phone
      companies. What number you called, what number called you,
      the date and time that happened, the duration of the call, and
      what tower or sector the phone chose to make the initial
      connection.

                Those are housed at the cell phone companies, they keep
      track of it for various reasons, most importantly to bill you
      accurately. So when they produce a line that has a tower list, or
      it has a tower where the phone connected, I take a tower list that
      is provided by the company, marry it up to the tower list and a
      call detail record, and plot on a map where that call was, or what
      tower and sector that phone used to connect to the network.

                It’s very important to know that despite what you may
      have seen in the movies or on Netflix or whatever, you can’t tell
      the location, the exact location of where a phone was in time,
      historically. So I can’t tell you if the phone was at the corner of
      Grant Street and you know, a particular street at any given time.
      I can’t say it was 123 Main Street at some point in time; but I can
      say that it used a particular tower and sector.

N.T., 5/25/17, at 708-710.

      To reiterate, historical cell-site analysis is the process of analyzing

records maintained by cellular service companies to make a general

geographic determination of what tower(s) and/or sector(s) a phone used to

connect to a provider’s network. Upon review, we conclude that there exists

no legitimate dispute regarding the reliability of historical cell-site analysis,

and we therefore construe Frye “narrowly so as not to impede [the]

admissibility of” the Commonwealth’s historical cell-site analysis evidence.

See Foley, 38 A.3d at 888.      Accordingly, we hold that scientific evidence


                                     - 13 -
J-A26031-18



concerning historical cell-site analysis is not novel, and its admissibility is not

subject to the requirements of Frye. Appellant’s first issue is without merit.

      In his second issue, Appellant challenges the sufficiency of evidence as

to his three attempted homicide convictions. In reviewing the sufficiency of

evidence:

      A claim challenging the evidence is a question of law. 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. . . . When
      reviewing a sufficiency claim the court is required to view the
      evidence in the light most favorable to the verdict winner giving
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003) (internal

citations omitted). “In conducting our review, we consider all of the evidence

actually admitted at trial and do not review a diminished record.” Id.

      Appellant alleges that “[t]he evidence was insufficient as to the charges

of [c]riminal [a]ttempt – [h]omicide (18 Pa.C.S.[A.] § 901(a)) because

Appellant lacked the requisite specific intent.”        Appellant’s Brief at 42.

Appellant argues that because the basis for his attempted homicide

convictions was criminal activity involving arson, an enumerated crime for

purposes of felony murder, he cannot be convicted of attempted homicide

based on the intent required for second-degree murder.             Id. at 44-45.

Further, Appellant argues that the “evidence was insufficient to show that

Appellant had the intent to kill by lighting a fire.” Id. at 45.



                                      - 14 -
J-A26031-18


       In Pennsylvania, “[a] person commits an attempt when, with intent to

commit a specific crime, he does any act which constitutes a substantial step

towards the commission of that crime.” 18 Pa.C.S.A. § 901(a). The crime of

criminal homicide is defined as follows:

       (a) Offense defined.--A person is guilty of criminal homicide if
       he intentionally, knowingly, recklessly or negligently causes the
       death of another human being.

18 Pa.C.S.A. § 2501(a).         Therefore, “if a person takes a substantial step

toward the commission of a killing, with the specific intent in mind to commit

such an act, he may be convicted of attempted murder.” Commonwealth v.

Tucker, 143 A.3d 955, 964 (Pa. 2016) (internal citation omitted), appeal

denied, 165 A.3d 895 (Pa. 2017).

       Our review of the record confirms that the Commonwealth presented

sufficient evidence for the jury to convict Appellant of three counts of

attempted homicide. Although Appellant is correct in his assertion that arson

is a specifically enumerated crime for purposes of felony murder11, he is

incorrect that the basis for an attempted homicide conviction cannot be arson.

While malice or intent to commit the underlying felony are the requisite mens

rea requirements for second-degree murder,12 if it is established that the


____________________________________________


11   18 Pa.C.S.A. § 2502(b) (murder of the second degree).

12   “The malice or intent to commit the underlying crime is imputed to the
killing to make it second-degree murder, regardless of whether the defendant
actually intended to physically harm the victim.”       Commonwealth v.
Lambert, 795 A.2d 1010 (Pa. Super. 2002).

                                          - 15 -
J-A26031-18


perpetrator of an arson holds the specific intent to kill, depending on the

results, he may be properly convicted of either attempted homicide, or first-

degree murder.    Commonwealth v. Pierce, 786 A.2d 203, 208-210 (Pa.

2001) (setting intentional fire to an occupied residence resulting in three

deaths as the basis of defendant’s three first-degree murder convictions).

      Therefore, if there was sufficient evidence for the jury to find that

Appellant had the specific intent to kill the victims in this case, then the

convictions of attempted homicide were properly based upon Appellant’s

criminal actions involving setting fire to the victims’ residence.

      In rejecting Appellant’s sufficiency claim, the trial court recognized that

circumstantial evidence alone may support a finding of the requisite specific

intent to kill for an attempted homicide conviction.       Trial Court Opinion,

1/25/18, at 7; see Tucker, 143 A.3d at 964 (internal citation omitted) (“The

Commonwealth may establish the mens rea required for first-degree murder,

specific intent to kill, solely from circumstantial evidence.”).      The court

explained:

      The facts in this case, when viewed in the light most favorable to
      the Commonwealth, clearly support the guilty verdict on the
      charges of criminal attempt-homicide. Specifically, Appellant set
      fire to a residential home where it was established through
      circumstantial evidence that Appellant knew people resided.
      Specifically, the testimony revealed that Appellant, a cousin of
      Smedley, wanted to prevent Mr. and Mrs. Jones from testifying at
      Smedley’s murder trial. Furthermore, Appellant set the fire in the
      early morning hours when the victims were more likely to be home
      sleeping, rendering them helpless. Trial Transcript, Vol. I pp. 178
      (Firefighter James Tarbert testifying the dispatch call for the fire
      occurred at approximately 4:52 a.m.). Additionally, Appellant set

                                     - 16 -
J-A26031-18


       the fire to the residence’s entry and exit in an effort to ensure that
       Mr. and Mrs. Jones would not be able to escape the burning
       building. Trial Transcript Vol[.] I pp. 229-235.

Trial Court Opinion, 1/25/18, at 7. We agree with the trial court’s conclusion

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

supported the jury’s finding of every element of Appellant’s three attempted

homicide convictions beyond a reasonable doubt.13 See Dale, 836 A.2d at

152.

       In his third issue, Appellant alleges that there was insufficient evidence

to support his convictions of retaliation against a witness, victim, or party, as

provided in 18 Pa.C.S.A. § 4953. Appellant argues “the crime of [r]etaliation

[a]gainst [w]itness, [v]ictim or [p]arty seems to only apply to acts done to a

witness in a civil proceeding.”        Appellant’s Brief at 48.   More generically,

Appellant claims that “[t]he evidence is far from clear that Appellant knew

they had been a witness in any legal matter.” Id. at 49. The Commonwealth

“submits that the evidence supports the conclusion that both [A]ppellant and

Theodore Smedley[] knew that Mr. and Mrs. Jones had cooperated in the case

against Smedley, [and] had testified in the grand jury proceeding against him



____________________________________________


13  Although Appellant may have only held the specific intent to kill Mr. and
Mrs. Jones for their witness-roles in the criminal proceedings against his
relative, the doctrine of transferred intent permits his intent to kill the Joneses
to be transferred to Amanda Schmitt. See Commonwealth v. Gaynor, 648
A.2d 295, 299 (Pa. 1994) (affirming first-degree murder conviction where
intent to kill intended target was transferred to innocent bystanders that were
killed).

                                          - 17 -
J-A26031-18


and were scheduled to testif[y] at Smedley’s murder trial in July of 2015.”

Commonwealth’s Brief at 44. Notably, the Commonwealth concedes that the

record may not support a conviction under Section 4953. See id. at 44-45

(“[A]ppellant correctly points out that §[]4953 pertains to retaliation for

anything lawfully done in the capacity of witness, victim or party in a civil

matter. . . . Consequently, this Court may determine that the evidence was

insufficient with regard to these charges.”) (internal quotations omitted).

      Section 4953 provides:

      (a) Offense defined.--A person commits an offense if he harms
      another by any unlawful act or engages in a course of conduct or
      repeatedly commits acts which threaten another in retaliation for
      anything lawfully done in the capacity of witness, victim or a party
      in a civil matter.

18 Pa.C.S.A. § 4953(a).

      We first address Appellant’s argument that Section 4953 is inapplicable

because the record fails to reflect that Mr. and Mrs. Jones testified in a civil

matter.   In review of Section 4953 and its application by Pennsylvania

appellate courts, both Appellant and the Commonwealth are incorrect that

Section 4953 only applies to witnesses or victims in civil matters.

      Prior to December 20, 2000, Section 4953 read: “[a] person commits

an offense if he harms another by any unlawful act in retaliation for anything

lawfully done in the capacity of witness or victim.” 18 Pa.C.S.A. § 4953(a)

(prior version). However, the current version, which took effect on December

20, 2000, added the phrase “or a party in a civil matter.” 18 Pa.C.S.A. §


                                     - 18 -
J-A26031-18


4953(a). Since coming into effect, the statute has been applied, by both the

Pennsylvania Supreme Court and this Court, to victims and witnesses in

criminal proceedings.       See, e.g., Commonwealth v. Ostrosky, 909 A.2d

1224, 1232-1233 (Pa. 2006) (holding that Section 4953 did not apply to

victims of a criminal proceeding only because a single threat did not result in

objective harm to victims); Commonwealth v. Brewer, 876 A.2d 1029 (Pa.

Super. 2005) (affirming conviction under Section 4953 of retaliation against

witnesses in a criminal proceeding), appeal denied, 887 A.2d 1239 (Pa.

2005). We therefore conclude, mindful of relevant case law and the rules of

statutory interpretation,14 that retaliation against victims or witnesses in

criminal proceedings may be properly prosecuted under Section 4953.

       With regard to Appellant’s sufficiency of the evidence claim that

Appellant was unaware that Mr. and Mrs. Jones were witnesses in the criminal

case against Smedley, the trial court explained:

       The evidence in this case, when viewed in the light most favorable
       to the Commonwealth, establishes that Mr. and Mrs. Jones
       witnessed a homicide outside their residence during the afternoon
       of March 24, 2014; that Mrs. Jones cooperated with police in
       identifying the shooter, Theodore Smedley; that Mr. and Mrs.
       Jones testified for the Commonwealth before a grand jury in the
       homicide case against Smedley; [and] that jail cell phone calls
       between Appellant and Smedley referred to Jones’ testimony and
       discussed setting the fire to [] their residence. Accordingly, the


____________________________________________


14   See 1 Pa. C.S.A. § 1921(a) (“The object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the
General Assembly. Every statute shall be construed, if possible, to give effect
to all its provisions.”).

                                          - 19 -
J-A26031-18


      evidence was sufficient to support a guilty verdict on all counts of
      . . . [r]etaliation against [w]itness or [v]ictim.

Trial Court Opinion, 1/25/18, at 8.

      We agree with the trial court’s conclusion that the evidence, viewed in

the light most favorable to the Commonwealth, supports the jury’s finding of

every element of Appellant’s convictions of retaliation against witness, victim

or party, beyond a reasonable doubt. See Dale, 836 A.2d at 152. Appellant’s

third issue lacks merit.

      Appellant’s fourth issue challenges the trial court’s denial of his motion

for mistrial.   Our standard of review of an order granting a mistrial is as

follows:

      In criminal trials, declaration of a mistrial serves to eliminate the
      negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant’s interest but, equally important, the
      public's interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably be
      said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.       Judicial discretion requires action in
      conformity with the law on facts and circumstances before the trial
      court after hearing and consideration. Consequently, the court
      abuses its discretion if, in resolving the issue for decision, it
      misapplies the law or exercises its discretion in a manner lacking
      reason.




                                      - 20 -
J-A26031-18


Commonwealth v. Baldwin, 158 A.3d 1287, 1293 (Pa. Super. 2017)

(internal citation omitted), appeal denied, 170 A.3d 992 (Pa. 2017).

      In alleging the trial court erred in denying his request for a mistrial,

Appellant argues that “[d]uring Terri Crowley’s testimony on May 25, 2017,

irrelevant and prejudicial testimony was allowed by the lower court.”

Appellant’s Brief at 50. Appellant asserts:

      [T]he testimony was irrelevant as to Appellant’s guilt in any of the
      charges lodged against him.        Not only was the testimony
      irrelevant, it was extremely prejudicial to Appellant.
      Nevertheless, the lower court allowed in the testimony and did not
      grant a mistrial. This was an error that caused harm to Appellant.

Id. Appellant takes issue with the following questioning of Terri Crowley by

the Commonwealth:

      [COMMONWEALTH]:          Ms. Crowley, were you nervous about
      coming to testify in this trial?

      [MS. CROWLEY]: Yes.

      [COMMONWEALTH]:          Were you nervous about your son, Dorian,
      coming to testify in this trial?

      [DEFENSE COUNSEL]: I am going to object. I don’t understand
      -- there is no relevance to whether she is nervous or about
      whether her son is nervous.

      [TRIAL COURT]: Overruled.

      [MS. CROWLEY]: Yes.

      [COMMONWEALTH]:         Why?

      [MS. CROWLEY]: I don’t want him to end up dead.

      [TRIAL COURT]: I am sorry, I didn’t hear?


                                     - 21 -
J-A26031-18


      [COMMONWEALTH]:         Take your time.

      [MS. CROWLEY]: I said, I don’t want him to end up dead.

N.T., 5/25/17, at 615-616.

      Immediately after this testimony, defense counsel requested a sidebar

where both he and the Commonwealth argued:

      [DEFENSE COUNSEL]: I am going [to] move for a mistrial, in light
      of that her opinion would be completely irrelevant. I am going to
      move for a mistrial. That is extremely prejudicial. She is up here
      crying. I saw that coming, I objected, and now she went and said
      what she said. I am moving for a mistrial.

      [COMMONWEALTH]:         My response, your Honor, is that the
      objection was overruled, her state of mind as to -- it goes directly
      in tandem with the Facebook post that she observed, the contents
      of those Facebook posts that her son was being threatened and
      that her son was living with her at the time; that she felt
      threatened, she still came in here and testified today. Dorian
      Smedley testified under the same context yesterday that he was
      being threatened, felt threatened by [Appellant], and it’s under
      the same line of testimony that he gave yesterday.

      [TRIAL COURT]: I am going to deny the motion for mistrial.

N.T., 5/25/17, at 616-617.

      Evidence must be competent and relevant before it is admitted in a

criminal proceeding. Commonwealth v. Freidl, 834 A.2d 638 (Pa. Super.

2003). Evidence is relevant if “it has any tendency to make a fact more or

less probable than it would be without the evidence[.]”        Pa.R.E. 401(a).

However, Rule 403 states that “[t]he court may exclude relevant evidence if

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




                                     - 22 -
J-A26031-18


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

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

      In finding the evidence to be relevant, the trial court stated:

      A theme throughout this trial as presented by the Commonwealth
      was the importance of family to Appellant. Throughout the trial,
      the evidence established that Dorian Smedley and Appellant
      categorized themselves as cousins. Dorian Smedley was originally
      arrested in connection with this arson but later advised police that
      it was . . . Appellant that was responsible for it. Dorian Smedley
      subsequently testified accordingly for the Commonwealth against
      Appellant at the trial. Terri Crowley’s testimony that she was
      nervous for her son to testify is relevant because this factors into
      the jury’s findings as to the credibility of Dorian Smedley.
      Furthermore, Mrs. Crowley’s statements relate to the Facebook
      photographs on Appellant’s Facebook page depicting a memorial,
      which the Commonwealth alleges were posted by Appellant as a
      threat to Dorian Smedley for speaking to the police and providing
      Appellant’s name as the perpetrator of the fire. Accordingly, this
      Court found that the evidence was not only legally relevant but
      the admission of said statements did not deprive Appellant of a
      fair and/or impartial trial.

Trial Court Opinion, 1/25/18, at 9-10 (citation to notes of testimony omitted).

      Upon review, we discern no error in the trial court’s determination that

Ms. Crowley’s testimony was relevant to the credibility of the Commonwealth’s

key witness, Dorian Smedley, and did not deprive Appellant of a fair and

impartial trial. We further note that Ms. Crowley’s testimony was cumulative

of the evidence that Appellant was attempting to deter Dorian Smedley from

testifying. See N.T., 5/25/17, at 440, 613-15, 813-14 (evidencing Appellant’s

reaction when he encountered Smedley while they were both incarcerated,

Appellant’s threatening Facebook posts towards Smedley, and Appellant’s




                                     - 23 -
J-A26031-18


statements about Smedley when Appellant arrested). Thus, the trial court did

not abuse its discretion in denying Appellant’s motion for mistrial.

      In his fifth and final issue, Appellant challenges the discretionary aspects

of his sentence, asserting that in imposing “essentially a life sentence,” the

“sentencing court clearly let emotion overrule logic.” Appellant’s Brief at 57-

58.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,




                                     - 24 -
J-A26031-18


77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

       Here, Appellant has complied with the first three prongs of this test by

raising his discretionary sentencing claims in a timely post-sentence motion,

filing a timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 26-28. Therefore, we examine whether

Appellant presents a substantial question for review.

       Appellant argues that the trial court erred because “the sentence

imposed upon Appellant was manifestly unreasonable.” Appellant’s Brief at

57.   Specifically, he alleges “[t]he trial court did not, in imposing what is

effectively a life sentence, state sufficient reasons on the record.” Id. at 61.

This argument presents a substantial question for our review.                 See

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)

(finding a substantial question where an appellant argued the trial court did

not state on the record its reasons for sentencing).

       Because Appellant has satisfied each of the criteria for invoking our

review of his discretionary sentencing claim, we turn to the merits of his

argument.15 The relevant standard of review is as follows:

____________________________________________


15  However, we note that Appellant’s argument focusing on the disparity in
sentencing between him and Theodore Smedley, who is not his co-defendant
in the present case, is meritless. Appellant’s Brief at 59-61. The trial court
did not abuse its discretion in failing to compare Appellant’s sentence to that
of Theodore Smedley, as doing so would itself be an abuse of discretion. See



                                          - 25 -
J-A26031-18


       Sentencing is a matter vested in the sound discretion of the
       sentencing judge. The standard employed when reviewing the
       discretionary aspects of sentencing is very narrow. We may
       reverse only if the sentencing court abused its discretion or
       committed an error of law. A sentence will not be disturbed on
       appeal absent a manifest abuse of discretion. In this context, an
       abuse of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record,
       that the sentencing court ignored or misapplied the law, exercised
       its judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision. We must accord
       the sentencing court’s decision great weight because it was in the
       best position to review the defendant’s character, defiance or
       indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

       First, Appellant claims that the trial court failed to “discuss the

invidualized factors bearing on Appellant’s circumstances,” and “the trial court

imposed its sentence without really stating any reasons for the rather harsh

sentence.” Appellant’s Brief at 58, 61. “When imposing a sentence, a court

must      consider   the   factors   set       forth   in   42   Pa.C.S.A.   §   9721(b).”

Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal

denied, 963 A.2d 467 (Pa. 2008). The relevant portion of Section 9721(b)

states:

       In selecting from the alternatives set forth in subsection (a), the
       court shall follow the general principle that the sentence imposed
       should call for confinement that is consistent with the protection
       of the public, the gravity of the offense as it relates to the impact
       on the life of the victim and on the community, and the
____________________________________________


Commonwealth v. Luketic, 162 A.3d 1149, 1165 (Pa. Super. 2017) (“It . .
. is an abuse of discretion to base one defendant’s sentence on the sentence
imposed on another defendant.”) (citations omitted).

                                           - 26 -
J-A26031-18


      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

42 Pa.C.S.A. § 9721(b). In doing so, “[t]he court is not required to parrot the

words of the Sentencing Code, stating every factor that must be considered

under Section 9721(b).     However, the record as a whole must reflect due

consideration by the court of the statutory considerations.” Feucht, 955 A.2d

at 383.

      At sentencing, the trial court stated:

             I haven’t been in the criminal division as long as [counsel
      for Appellant and the Commonwealth] have been in the criminal
      division, but I will tell you that in my two brief years here, this is
      one of the hardest cases to deal with. Not hard in terms of
      imposing a penalty, but hard in terms of listening to victims come
      to trial and come to the sentencing hearing to tell me how these
      events have affected their lives. And it’s also hard to listen to
      [Appellant’s] mother and sister come in here and tell me how it’s
      affected their lives and give me the reasons and the background
      to the life of [Appellant] and the subsequent sentencing.

            You know it’s tripe because judges sit on the bench and at
      the end of the day say that there are no winners and there are no
      losers because nobody wins here, everybody loses. But to look at
      the Jones[es] and see and hear and understand how much pain
      and suffering they’ve gone through because of what you did,
      [Appellant], is extraordinary. And their lives are forever changed,
      and their lives will be lived out with the fear and the emotional
      trauma of what happened back in [June] of 2015. They will
      continue their lives, hopefully, with closure that this matter is done
      and that, hopefully, justice is served. But I would imagine that
      you, Mrs. Jones and Mr. Jones, will never go to sleep at night, and
      you, Amanda Schmitt, too, without there being a memory of what
      happened back in [June] of 2015.




                                     - 27 -
J-A26031-18


            I understand, [Appellant], that there has been a background
      of abuse and neglect but that doesn’t help the Jones[es]. That
      doesn’t help Amanda Schmitt. And it’s interesting because the
      theme of this trial, essentially, was your position that only the
      family mattered. But it’s interesting that it seemed like it was only
      your family that mattered and not anybody else’s family. It wasn’t
      the Jones[es], and it wasn’t Amanda Schmitt.

             And I agree with the Commonwealth, this is not the
      Commonwealth versus Mr. Smedley. This is your case. And you
      took the active steps on the night in question to essentially silence
      two people who had witnessed a murder. And you took those
      steps by coming up to their place of residence and attempting to
      burn down their house and kill them. I don’t know what else there
      is to say.

            I’ve considered the victim impact statements, I’ve
      considered the statements of your family members, I’ve
      considered your apology, the fact that you said you were sorry[.]

N.T., 8/25/17, at 30-32.

      Our review of the sentencing hearing, including the above remarks by

the trial court, establishes that the trial court considered the appropriate

factors and provided proper reasoning in determining Appellant’s sentence.

The trial court discussed the impact of Appellant’s actions on the victims, the

role Appellant played in the commission of the crimes, Appellant’s remorse,

and his background of abuse and neglect. Although the trial court did not

indicate at sentencing that it had reviewed a pre-sentence investigation

report, we note that one was ordered and Appellant’s sentencing was delayed

by the trial court for its preparation. See N.T., 5/31/17, at 212; Baker, 72

A.3d at 663 (“When a sentencing court has reviewed a presentence

investigation report, we presume that the court properly considered and


                                     - 28 -
J-A26031-18


weighed all relevant factors in fashioning the defendant’s sentence.”). Despite

Appellant’s arguments, the trial court, in its discretion, determined that the

gravity of the crimes necessitated a 62 to 124 year sentence. Thus, the record

reflects that the trial court weighed the appropriate factors and sufficiently

stated its reasons for sentencing on the record.

      Appellant also claims that the trial court abused its discretion for failing

to state sufficient reasons for imposing an aggravated range sentence at count

three-attempted homicide. Appellant’s Brief at 61-62. However, Appellant

incorrectly states that the standard range sentence was 78 to 96 months.

With a prior record score of three, and an offense gravity score of 14 assigned

to attempted homicide, the correct standard range sentence was 120 months

to the statutory limit (longest maximum sentence), which in this case, would

be 240 months. See 204 Pa.Code § 303.16(a). As the trial court sentenced

Appellant at count three-attempted homicide to 120 to 240 months, he

received a standard range sentence.        Thus, the trial court’s reasons for

Appellant’s sentence were appropriate and we discern no abuse of discretion.

      For the foregoing reasons, Appellant’s issues are without merit, and we

affirm the judgment of sentence.

      Judgment of Sentence affirmed.

      P.J.E. Bender joins the Opinion.

      Judge Shogan files a Dissenting Opinion.




                                     - 29 -
J-A26031-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2019




                          - 30 -
