J-S09031-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :               IN THE SUPERIOR COURT OF
                              :                     PENNSYLVANIA
              Appellee        :
                              :
        v.                    :
                              :
ISIAH MICHAEL STEVENS,        :
                              :
              Appellant       :                No. 1109 WDA 2018

        Appeal from the Judgment of Sentence Entered July 18, 2018
              in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000473-2018

BEFORE:     PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:
FILED APRIL 25, 2019

      Isiah Michael Stevens (Appellant) appeals from the judgment of

sentence imposed after he was found guilty of three counts of robbery and

one count each of theft, recklessly endangering another person (REAP),

terroristic threats and receiving stolen property. We affirm.

            As a result of an incident that took place on February 7,
      2018, [Appellant] was arrested and charged with[, inter alia, the
      aforementioned crimes]. At trial, the testimony and evidence
      established the following.

            Yvonne Ramsey testified that she is 60 years old and works
      at a Long John Silver’s establishment in Uniontown. She had been
      employed there for over 40 years and is currently a shift manager.
      Her duties include hiring staff, making food orders, overseeing
      audits, and taking care of bank deposits.

            Ms. Ramsey knew [Appellant] because [Appellant] went to
      school with her youngest son. [Appellant] also worked at Long
      John Silver’s on two occasions. Most recently, he had worked there
      for about one year[,] from 2016 to 2017. Ms. Ramsey stated that


* Retired Senior Judge assigned to the Superior Court.
J-S09031-19

     she was the one who hired [Appellant], and that they worked side-
     by-side in the back. She even considered him a family friend.

           While working at Long John Silver’s, [Appellant] was the fry
     cook. He worked varying shifts, but normally worked from [9 a.m.
     to 4 p.m. or 4 p.m. to 11 p.m. Appellant] was terminated from
     his employment early in 2017.

           About a year after [Appellant’s employment] was
     terminated, on February 7, 2018, Ms. Ramsey arrived for work at
     about 8:45 [a.m]. She proceeded to go to the safe and set the
     safe because it has a time delay of ten minutes. She then opened
     up the different stations of Long John Silver’s. At around 9[:00
     a.m.], two other employees arrived; Ms. Ramsey let them in.

          After that, the safe started beeping-signaling it was ready-
     so Ms. Ramsey went back to the safe. She then began to count
     the money and deposit it into a red envelope. There was
     $1,090.86. She placed the red envelope into her purse and told
     her employees she was going to the bank. This was all part of her
     normal, daily routine.

           Ms. Ramsey then went to her car, which was parked in the
     drive-thru lane on the side of the restaurant[] right next to the
     exit door. She got into her car and put her purse on the passenger
     seat. The purse still contained the red envelope; the envelope
     contained the cash.

           Ms. Ramsey heard footsteps. The next thing she knew, Ms.
     Ramsey was being pushed back against her seat by [Appellant.
     Appellant] said, “Give me your fuckin’ purse.” As he reached for
     the purse, the two of them struggled briefly for control and Ms.
     Ramsey suffered a cut to her thumb. When Ms. Ramsey saw that
     [Appellant] was holding a silver, six-inch steak knife with serrated
     edges, she feared for her life and then just handed [Appellant] the
     purse. He exited the car, went around the vehicle, and started to
     run off.

           Ms. Ramsey knew who the assailant was while the heist was
     unfolding; she could see his face and his hazel eyes. She also
     knew him by the sound of his voice. [Appellant] was laying [sic]
     across her body in the car as he stretched to get the purse. His
     face was six inches from hers. Ms. Ramsey remembered
     [Appellant’s] attire that day: he was wearing a black, hooded

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     sweatshirt with the hood up, black pants, dark shoes, and a red
     belt. He also wore latex gloves.

           After [Appellant] took the purse and began running off, Ms.
     Ramsey screamed at him, “[Appellant], please don’t do this.” Ms.
     Ramsey ran back inside the store and immediately called her
     husband. She then called the police and told them what happened.
     The state police arrived. Ms. Ramsey gave a statement and told
     the investigating trooper that [Appellant] was the assailant.

           Ms. Ramsey testified that her purse also had her wallet,
     sunglasses, medication, and other items inside. The cost of those
     items totaled approximately $800. She never got those back.

           The Commonwealth also called Trooper Jason Ashton of the
     Pennsylvania State Police to testify. Trooper Ashton was the
     investigating officer in this case. After talking with [Ms. Ramsey],
     Trooper Ashton got an arrest warrant for [Appellant]. The Trooper
     also went to search the residence of [Appellant], located at 13
     Front Street, Apartment 3 in Dunbar, Pennsylvania.

            When he arrived at the residence, Trooper Ashton made
     contact with Ms. Ashley Breakiron, who also lived there. Ms.
     Breakiron was the girlfriend of [Appellant]. She gave written
     consent for Trooper Ashton to search the residence. Trooper
     Ashton proceeded to the kitchen where he found a variety of
     knives. There were six knives that fit into a butcher block. One
     slot in the block was missing a knife. The Trooper took pictures of
     the knife set with the missing knife.

            There was other evidence in the testimony that corroborated
     [Appellant’s] culpability in the theft. For example, Ms. Ramsey
     testified that when [Appellant] worked at Long John Silver’s, he
     worked about three feet away from where she counted and
     deposited money each morning and that he had an opportunity to
     observe her. Trooper Ashton testified that right before this
     incident, [Appellant] had a vehicle impounded. Right after the
     incident, [Appellant] was able to get his car back for $230, paid
     for with cash by Ms. Breakiron.

Trial Court Opinion, 11/13/2018, at 1-4.




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      Following a jury trial, Appellant was convicted of the abovementioned

crimes, and on July 18, 2018, the trial court sentenced Appellant to four and

one-half to nine years of incarceration. Appellant did not file a post-sentence

motion. This timely-filed appeal followed.1     On appeal, Appellant presents

one issue for our consideration: whether the trial court “erred in allowing the

Commonwealth to introduce photographs and testimony regarding a missing

knife from a knife set found in [Appellant’s girlfriend’s] residence?”2

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      Our standard of review for the admission of evidence is well-settled.

      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      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. Manivannan, 186 A.3d 472, 479-80 (Pa. Super. 2018)

(citation omitted).

      In support of his claim, Appellant sets forth the following argument in

his appellate brief.

          In the present case, the [trial c]ourt permitted the
      Commonwealth to introduce a photograph through the testimony

1
 Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.

2
  At trial, Appellant conceded that he and his girlfriend, Ms. Breakiron, lived
together at the Front Street apartment during the relevant period of time.
N.T., 7/9/2018, at 72.
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      of Trooper [] Ashton showing a missing knife from a set of six
      knives that were found in a butcher block at [Ms.] Breakiron’s
      residence. The Commonwealth through this photograph and
      testimony was attempting to draw the inference that the knife in
      the butcher block was used in the robbery. However, the
      Commonwealth provided no evidence at trial linking this missing
      knife as the weapon allegedly used in the robbery. Without such
      evidence there are countless reasons why a knife could be missing
      from a butcher block set besides the reason that the knife was
      used to commit a robbery. Therefore[, the trial court] erred in
      failing to sustain [defense counsel’s] objection that the
      photograph showing a knife missing from butcher block as
      speculative, because the Commonwealth sought to unfairly
      prejudice [Appellant] by suggesting a decision to the jury on an
      improper basis–that the missing knife was used in the robbery
      when no evidence was provided to link the missing knife to the
      weapon used in the robbery.

Appellant’s Brief at 7-8 (citation omitted).

      In this case, in its case-in-chief, the Commonwealth, during Ms.

Ramsey’s testimony, attempted to introduce photographs taken by Trooper

Ashton during his search of the apartment Appellant shared with Ms.

Breakiron.    N.T., 7/9/2018, at 34.      These three pictures included two

photographs of various-sized knives and one photograph of a butcher block

with a missing knife, all which were found in Appellant’s kitchen.          See

Commonwealth’s Exhibits 1-3.

      Before Ms. Ramsey viewed the photographs, Appellant requested a

sidebar discussion, which the trial court allowed. Appellant explained to the

trial court that the “photographs were taken from [Ms. Breakiron’s] residence.

Th[e Commonwealth] is trying to allege that a knife was missing from the set.

It’s purely speculative … [Ms. Breakiron has not] testified a knife was missing.”


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N.T., 7/9/2018, at 35.    Appellant then told the trial court “[m]y objection

would be that there is no foundation,” i.e., the photographs could not be

introduced during Ms. Ramsey’s testimony because a proper foundation had

yet to be established. Id. at 36. The Commonwealth and Appellant set forth

their respective arguments.

      Ultimately, the trial court determined that the Commonwealth would not

be allowed to present the photographs through Ms. Ramsey, agreeing with

Appellant that the Commonwealth could not “lay a foundation through [Ms.

Ramsey] as a witness.” Additionally, the trial court determined that it was

“more appropriate to raise [this] circumstantial evidence through” Trooper

Ashton’s testimony. Id. at 37. Appellant did not raise any further objections.

      The sidebar conversation concluded with a brief discussion regarding

what Trooper Ashton could testify to with respect to the photographs. Among

other things, the trial court agreed with Appellant that Trooper Ashton was

prohibited from stating definitively that a knife was “missing.” Id. at 38. The

trial court also made it clear that Appellant could cross-examine Trooper

Ashton to “dispel the inference that may be made” from the introduction of

this evidence. Id. Appellant did not object to the trial court’s ruling regarding

the Commonwealth’s ability to introduce the photographs through Trooper

Ashton’s testimony.

      Trial continued and upon the conclusion of Ms. Ramsey’s testimony, the

Commonwealth called Trooper Ashton to the stand.           The Commonwealth


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questioned Trooper Ashton about the search of Appellant’s apartment and the

discovery he made in the kitchen with respect to the butcher block. Id. at

51-52. Then, the Commonwealth introduced photographs taken by Trooper

Ashton, including one that showed the butcher block with one empty slot and

another that showed several knives, some of which were identical matches to

one another. Id. at 52-53. Trooper Ashton explained that he had searched

the kitchen and was unable to find the knife that fit into the empty slot. Id.

at 51. Regarding this evidence and its purported connection to the robbery,

Trooper Ashton testified, inter alia, that he showed the photographs to Ms.

Ramsey who immediately recognized one of the knives.         Id. at 55.   The

photographs were later admitted into evidence and published to the jury. Id.

at 56. No objection was made.

      Upon review of the transcript from Appellant’s trial, it is clear that

Appellant’s counsel did not object during Trooper Ashton’s testimony nor did

he object to the introduction of any photograph presented to Trooper Ashton

or its subsequent admission into evidence. Id. at 56. “We have long held

that [f]ailure to raise a contemporaneous objection to the evidence at trial

waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d 704,

713 (Pa. Super. 2013) (citations and quotation marks omitted). Here, we find

that by failing to lodge contemporaneous objections at the time Trooper

Ashton made the purportedly objectionable statements or at the time the

photographs were introduced through the Trooper’s testimony, Appellant


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waived his claim on appeal. See Commonwealth v. Cornelius, 180 A.3d

1256, 1261–62 (Pa. Super. 2018) (finding claim challenging denial of motion

for mistrial waived where defense counsel failed to object at the time the

alleged prejudicial statement was made);         see also Commonwealth v.

Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely

and specific objection before the trial court at the appropriate stage of the

proceedings will result in waiver of the issue.”).

      Even if we were to reach the merits of Appellant’s claim, he would not

prevail on appeal. Here, the trial court found “[t]he photograph of the knife

set was relevant, was not unduly prejudicial to [] Appellant, and was properly

authenticated.” Trial Court Opinion, 11/13/2018, at 7.        In support of its

findings, the trial court set forth the following.

             [I]n Commonwealth v. Miller, 897 A.2d 1281, 1287-88
      (Pa. Super. [] 2006), th[is Court] upheld the admission of
      photographs of a knife set with a knife missing [in Miller’s murder
      trial]. In Miller, during the execution of a search warrant, police
      discovered a knife set in the trunk of [Miller’s] vehicle; one of the
      knives was missing. Police took photographs of the incomplete
      knife set. The knife set and the photographs of the knife set were
      admitted as exhibit at trial, used as circumstantial evidence that
      [Miller] committed [the] murder with the missing knife. In holding
      that the evidence was admissible, th[is Court] stated[ the
      following.]

           Clearly, testimony presented with regard to a knife set,
      minus one, found in the trunk of [Miller’s] car, was relevant, to
      show that [Miller] was in possession of a knife [that] could have
      been one of the murder weapons.

            The issue at hand is analogous to that in Miller. Here, Ms.
      Ramsey testified to being robbed at knifepoint by [Appellant]. She
      described the knife in detail, saying that it was a silver, six-inch

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      blade with serrated edges. When Trooper Ashton searched
      [Appellant’s] kitchen, the [T]rooper found a knife set and butcher
      block for the knives. All of the knives were located expect for one.
      Further, the Trooper testified he looked everywhere in the kitchen-
      the sink, the drawers- for the missing knife that would have fit
      with the knife set. He did not find it. The Trooper also testified
      that the knife missing from the set should have been a six-inch
      blade.

            Like Miller, the absence of one of the knives in [Appellant’s]
      kitchen makes it more or less probable that the missing knife was
      used in the commission of the robbery. It is up to the jury to
      determine the weight and credibility of that evidence.

                                        ***

            There was also no unfair prejudice to Appellant in the
      admission of the photograph of the knife set. There is nothing
      inherently disturbing about a kitchen knife set that would inflame
      the minds and passions of a jury.

Trial Court Opinion, 11/13/2018, at 6-7 (citations omitted).

      Our review of the certified record and applicable case law supports the

trial court’s determination. “Evidence is relevant if: (a) it has any tendency

to make a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.” Pa.R.E. 401.

      The fact the accused had a weapon or implement suitable to the
      commission of the crime charged, such as a knife ... is always a
      proper ingredient of the case for the prosecution. [Our Supreme
      Court] has repeatedly held that the prosecution need not establish
      that a particular weapon was actually used in the commission of a
      crime in order for it to be admissible at trial. The only burden on
      the prosecution is to lay a foundation that would justify an
      inference by the finder of fact of the likelihood that the weapon
      was used in the commission of the crime. Moreover, the admission
      of such demonstrative evidence is a matter within the discretion
      of the trial judge and, absent an abuse of his discretion, his
      decision must stand.


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Commonwealth v. Lee, 662 A.2d 645, 652 (Pa. 1995) (citations and

quotation marks omitted).

      In this case, the evidence presented at trial established that Ms. Ramsey

was robbed at knifepoint by an assailant she immediately identified as

Appellant, who was wielding a six-inch serrated knife. N.T., 7/9/2018, at 30-

32. While searching the kitchen in Appellant’s apartment shortly after the

robbery, Trooper Ashton found a knife set with one knife unaccounted for. Id.

at 51-53. Trooper Ashton opined that the missing knife would have a six-inch

blade and would match other knives found in the kitchen. Id. at 54. Trooper

Ashton testified that despite his search of Appellant’s kitchen, he was unable

to find the missing knife. Id. Notably, Trooper Ashton testified that after

taking pictures of the knives and the knife set, he showed the photographs to

Ms. Ramsey, who “immediately” pointed to one of the knives. Id. at 55.

      In light of the foregoing testimony, we find the Commonwealth laid a

proper foundation to justify the inference that the knife used in the robbery

by Appellant was the missing knife from the set, and as such, determine that

the photographs of the knives and the knife set constituted relevant

circumstantial evidence. Therefore, we conclude that the trial court did not

abuse its discretion in allowing the photographs to be entered into evidence.

Accordingly, Appellant is not entitled to relief from this Court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019




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