J-S76004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

 RASHAWN DONTE AUSTIN,

                            Appellant                 No. 1536 WDA 2017


          Appeal from the Judgment of Sentence Entered April 18, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007243-2015


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 28, 2019

         Appellant, Rashawn Donte Austin, appeals from the judgment of

sentence of 17-40 years’ incarceration, imposed after he was convicted of

third-degree murder and firearm offenses. Appellant challenges the weight

and sufficiency of the evidence supporting his conviction. After careful review,

we affirm.

         The trial court provided the following summary of the facts adduced at

trial:
               A [n]on-[j]ury trial commenced on January 17, 2017 and
         concluded on January 20, 2017.        The Commonwealth was
         represented by Assistant District Attorney Jonathan Fodi.
         [Appellant] was represented by Ralph Karsh, Esquire.

               Prior to testimony, the Commonwealth placed a [s]tipulation
         on the record as to the cause and manner of death of the victim
         Derrick Owens via a report from the County of Allegheny Medical
         Examiner’s Office, at Case No. 15COR03389. On April 25, 2015,
         the victim Derrick Owens was examined by Dr. Kenneth Howard
J-S76004-18


     Clark, associate medical examiner. The opinion of the associate
     medical examiner was that Derrick Owens, a 30 year old African
     American male, died as a result of a gunshot wound to the trunk.
     The final pathological diagnosis was a penetrating gunshot wound
     of the right upper arm, reentry into the right upper lateral chest.
     The manner of death was ruled a homicide. The shooting of
     Derrick Owens occurred on the evening of April 24, 2015, when it
     was dark.

           The Commonwealth’s first witness was Detective Judd
     Emery. Detective Emery had been employed by the City of
     Pittsburgh Police for 16 years. He was assigned to the violent
     crimes unit, homicide office, and was working in that capacity at
     the time of this homicide in April of 2015. Detective Emery was
     assigned to investigate the death of Derrick Owens. He arrived at
     the scene with his partner, Detective Bolin, and observed Mr.
     Owens lying in the driver’s side area of a white SUV in the 1300
     block of Columbus Avenue. According to Detective Emery, this
     block is located in the Manchester area of the City of Pittsburgh.
     The medics arrived shortly before Detective Emery and had
     already pronounced Mr. Owens deceased.

           Detective Emery located a female, Sidney Smith, in the front
     passenger seat and two males in the backseat, Mark Kelly and a
     Mr. Williams (he was not 100% sure of the names of the male
     passengers).    The detective was aware of a civilian in the
     neighborhood who was taking pictures, Christopher Litherland.
     The Mobile Crime Unit arrived at the scene and Detective Emery
     directed them to take pictures and measurements.

           Sidney Smith was called as a witness on behalf of the
     Commonwealth. She recalled on April 24, 2015[,] being with
     Derrick Owens. Ms. Smith had only known him for a few months,
     but she liked him, and thought he was her boyfriend. However,
     after the shooting, she found out he was married. On that
     evening, at approximately 8 or 9 p.m., she was with Derrick and
     two of his friends parked on Columbus Street.

           Ms. Smith stated[:] “We were driving around and we
     stopped at Shamrock on Western Avenue and me and him [victim
     Derrick Owens] grabbed a 40 ounce … of Olde English. It’s a
     beer.” Ms. Smith further testified[:] “We just got one to share …
     I took a couple of sips before everything happened.” Ms. Smith
     did not remember the back seat occupant rolling blunts, “but she
     wasn’t getting high, I don’t get high.”


                                    -2-
J-S76004-18


            While Ms. Smith was in the passenger seat, with victim
     Derrick Owens in the driver’s seat and Mr. Owens’ two friends in
     the back seat, Mr. Owens got out of the vehicle to stretch. As Mr.
     Owens got out, the driver door remained open and he was talking
     to all of the people in the vehicle.

            According to Ms. Smith, a gentleman walked up toward the
     car and she identified [Appellant], in the [c]ourtroom, as the
     individual she saw walking up that night. She indicated the
     shooter walked up very smooth and calm. She observed him pull
     out a silver gun and point it at Mr. Owens’ left side and shoot him
     twice. Mr. Owens then yelled that he was shot and he fell into the
     car. At first, Ms. Smith thought it was a joke but locked her eyes
     with the shooter then saw him walk away like a “smooth criminal.”
     Mr. Owens’ whole upper body fell into her lap and she observed
     blood coming out of his mouth. When Ms. Smith locked eyes with
     the shooter, he was close to her. Ms. Smith was able to describe
     that the shooter was wearing a light tan letterman jacket with
     sport patches. She called 911 and waited for the police to arrive.
     The shooter walked towards the back of the vehicle and the two
     people in the car ran away.

            When the police arrived, she told them that someone came
     toward the truck and shot Mr. Owens. She told the police if she
     saw the shooter again she could identify him. The night of the
     shooting, the police officers took her to headquarters and showed
     her a photo array. It took Ms. Smith some time, but she
     eventually circled a photograph. She told the officers she wasn’t
     real sure if that person was the shooter. A few days later, on May
     28, the police brought Ms. Smith back in to look at a second photo
     array. She looked at the second array for approximately 10
     minutes; selected and circled an individual on the array; signed
     and initialed her pick; and told the officers she was very positive
     this individual was the shooter.        She once again identified
     [Appellant], in the [c]ourtroom, as the shooter she observed that
     night.

           On cross-examination, she denied that the shooter wore a
     hoodie and again stated that the shooter was wearing a light tan
     letterman jacket. She also testified that the shooter was clean[-
     ]shaven. On cross-examination, the following exchange with Ms.
     Smith occurred:

        BY MR. KARSH:



                                    -3-
J-S76004-18


           Q. If [Appellant] had a beard, just like he has now, on
           the night of the shooting, he couldn’t have been the
           shooter, right?

           A. That is true. But he wasn’t caught that night.

           When questioned about whether it was dark on the street,
     Ms. Smith responded[:] “But I do recall it being bright enough that
     I can see.” Ms. Smith further testified on cross-examination that
     she was approximately five feet from the shooter when he came
     upon the victim and she did not see any tattoos on him.

            Regarding the identification of [Appellant] pursuant to the
     photo arrays, Commonwealth Exhibit 16 was the first photo
     Sidney Smith circled on the evening of the shooting. While she
     circled a photograph, she told the detective, “I wasn’t real sure.”
     The circled photograph, Commonwealth Exhibit 16, was identified
     as a photo of Mandol Ruggs by Detective Emery. Commonwealth
     Exhibit 17 was the photo array shown to Sidney Smith on April
     28, 2015[,] at which time she circled the photo of [Appellant] as
     the shooter.

            Detective Emery testified the procedures of the Pittsburgh
     Bureau of Police, for photo array presentation[,] utilize a double
     blind procedure. Because of his knowledge of the investigation,
     he will develop a suspect. Either he or his partner will develop a
     photo array. The photo array will be shown to the witness by an
     officer not involved in the investigation so as not to contaminate
     or taint the photo array. On cross[-]examination, Detective
     Emery testified the first photo array, Commonwealth Exhibit 16,
     was shown by Detective Schanck while Commonwealth Exhibit 17
     was presented by Detective Hanlon. Neither Detective Schanck
     nor Detective Hanlon had any involvement in the investigation.

           On cross-examination, Attorney Karsh showed Detective
     Emery Commonwealth’s Exhibit 16 containing the photo of Mandol
     Ruggs. Detective Emery agreed Mandol Ruggs is a light skinned
     African-American male and Attorney Karsh’s client, [Appellant], is
     medium toned if not dark toned. Detective Emery took exception
     with Attorney Karsh’s conclusion, “Is it fair to say these guys don’t
     look alike?” Detective Emery stated “they both have full faces
     Yes. They both look alike. Obviously they have a different skin
     tone.”

          Detective Emery obtained an arrest warrant for [Appellant]
     based upon the identification by Sidney Smith and his

                                     -4-
J-S76004-18


     investigation.    After obtaining the Arrest Warrant, Detective
     Emery spoke with Traylon Austin at her residence in the 3800
     block of California Avenue. Detective Emery went to the residence
     of Traylon Austin looking for [Appellant]. Eventually, with the
     assistance of the Fugitive Task Force, Detective Emery found
     [Appellant] in Room 441 of the In Town Suites on May 7, 2015.
     Detective Emery obtained a search warrant to search the hotel
     room. [Appellant] was alone in the hotel room. A cell phone was
     found on [his] person and a second cell phone was recovered from
     the hotel room. [Appellant] told Detective Emery he had been
     staying at the In Towne Suites (Hotel) for a month.

           On redirect, Detective Emery indicated he obtained a search
     warrant for each of the two phones: the one found in the hotel
     room and the one on [Appellant]. Detective Emery turned the
     phones over to the computer crimes detectives to perform a
     forensic download. The detective also obtained court orders to
     send to the cell phone providers to retrieve the cell phone records,
     including the dates and times of calls and texts, as well as the cell
     towers used.

           As part of the investigation, Detective Emery also had the
     opportunity to determine that [Appellant] did not have a license
     to carry a firearm and that he was a person not to possess a
     firearm. Attorney Karsh stipulated that his client did not have a
     license and was a person not to possess a firearm.

            A [s]tipulation was entered between the Commonwealth
     and Defense Counsel that: “on approximately July 21, 2014, an
     investigation was initiated for a theft perpetrated by Derrick
     Owens, the deceased in this case.”          Officer Dulski, City of
     Pittsburgh Police Department, applied for an arrest warrant for
     Derrick Owens, alleging that Mr. Owens committed the crimes of
     theft and access device fraud with the victim being Traylon Austin,
     3613 California Avenue, No. 1, Pittsburgh, PA 15212. Mr. Owens
     was charged with stealing approximately $895 from a SSI card
     that was located in the mailbox and that had been stolen.

           The Commonwealth called Christopher Litherland to testify.
     Mr. Litherland had resided in Allegheny County for approximately
     four years. Mr. Litherland was a photographer and worked with
     people of special needs. On the evening of April 24, 2015, at
     approximately 9:00 p.m., Mr. Litherland was sitting in his car in
     the Manchester neighborhood of the City trying to photograph an
     abandoned house across the street, but his view was blocked by


                                     -5-
J-S76004-18


     an SUV parked in front of said house. He observed that the “guy
     or whoever got shot” was standing outside the car talking to a
     woman inside the car. Mr. Litherland next observed the shooter
     walking slowly up the sidewalk on Fulton Street and turn onto the
     left hand side of Columbus. The shooter turned and pulled his
     hand out of his pocket with a gun and shot the victim right in the
     chest. He then watched two men get out of the backseat of the
     SUV and run away in the opposite direction of the shooter, while
     the shooter slowly walked down the side of the street after the
     shooting had occurred.

           Mr. Litherland then put his car in reverse and drove to the
     next block over to wait for the police to show. After the police
     arrived, he gave them the same description of events. When
     asked if he had a chance to see the shooter, he responded: “No.
     I could not see his face. He was wearing a hoodie, a gray hoodie
     with stripes on it and kind of darker pants. That is all I saw.” He
     could tell the shooter was a male and approximate height was
     5’9”.

           During cross-examination, Mr. Litherland recalled that the
     color of the hand of the shooter was black. He could tell the
     shooter was black from his face also. The Court questioned Mr.
     Litherland as to whether the police asked him if he could identify
     anybody if they showed him a photo array to which he responded,
     no because he had a hoodie on.

           A stipulation was reached that Commonwealth Exhibit 18,
     obtained pursuant to the search warrants executed by the
     Pittsburgh Bureau of Police, contains cell phone records obtained
     from providers T-Mobile and AT&T for cell phone numbers 412-
     733-8717 and 412-315-5195, respectively. It was stipulated the
     records were kept in the regular course of business as authentic
     business records of those providers. Mr. Karsh further added it
     was his understanding that the records provided contain no
     substance of any calls, merely the calls or texts going out, the
     time they went out and where they have been. There was no
     dispute the two cell phones were the phones seized on May 7,
     2015, from [Appellant].

            Detective Lyle Graber was examined and testified regarding
     the cell phone records for the two cell phones. After extensive
     voir dire, Detective Graber was offered as an expert in analysis of
     cellular telephone records and mapping of cell site data. Once
     Detective Graber received the information contained in


                                    -6-
J-S76004-18


     Commonwealth’s Exhibit 18, he prepared a report and power
     point. Commonwealth’s Exhibit 19 is the power point prepared by
     Detective Graber. During Detective Graber’s testimony, the slides
     which were contained in Commonwealth Exhibit 19 were marked
     Commonwealth Exhibits 20 through 52. The Court admitted
     Commonwealth Exhibits 19 through 52.

            Essentially, Detective Graber explained a cell phone
     communicates with a cell tower or cell site. A cell tower is divided
     into three sections with each section having its own antenna
     covering approximately 120 degrees, comprising 360 degrees for
     the three sections. For a call to be ongoing, the cellphone has to
     interact or communicate with a cell tower/site.         When the
     cellphone is moving or the user is traveling using the cell phone,
     different cell towers/sites will be utilized. As the cellphone is
     moving, the system is engineered to hand off the call to the next
     cell tower/site that has the strongest signal.

            Detective Graber analyzed the cell detail records for the two
     cellphones, one of which was on [Appellant]’s person and the
     other in the hotel room occupied solely by [him]. Detective
     Graber explained the Cellular Call Detail Records (CDR) contain
     basic information such as, the target number, i.e.[,] the number
     in question, date, time, the duration of the call, the number called
     or calling the target number and the direction of the call. Direction
     of the call means whether it is an outgoing call from the target
     number or an incoming call to the target number. The CDR may
     also contain cell site information which includes identification of
     cell site and/or sites through which the communication is routed,
     cell site identifiers, location of cell site by latitude, longitude or
     closest address and the cell sector azimuth.

           Detective Graber testified the one phone number was a
     Metro PCS telephone number serviced by the T-Mobile network
     while the other phone number was a Tracfone wireless serviced
     by the AT&T network.

             Detective Graber testified the time of a call becomes
     important in light of the time of the homicide at or around 9:00
     p.m. on April 24, 2015. Detective Graber identified a call from the
     Tracfone serviced by the AT&T network at 9:00 p.m. on April 24,
     2015. With regard to the 9:00 p.m. call on April 24, 2015, the
     records establish the cell site utilized, the physical location of the
     cell site designated by latitude and longitude and the sector of the
     cell tower used for the communication. Similar information for the


                                     -7-
J-S76004-18


     T-Mobile cellphone provided the cell site and location for a specific
     call. The only difference in the records is that the T-Mobile records
     do not provide the azimuth information which prevents
     determining which of the three sectors on the cell tower the cell
     utilized.

           Detective Graber testified about cell site mapping. As the
     homicide occurred on April 24, 2015 at approximately 9:00 p.m.,
     Detective Graber tracked the cell phones for the period of one
     hour before the homicide and one hour after the homicide, a time
     range between 8:00 p.m. and 10:00 p.m. In addition, Detective
     Graber also tracked the site of the homicide [(]1307 Columbus
     Avenue, Pittsburgh, PA 15233[)], as well as the hotel in the North
     Hills where [Appellant] was arrested [(]4595 McKnight Road,
     Pittsburgh, PA 15237[)].

            The first call tracked was at 8:08 p.m. It was an incoming
     call to the T-Mobile phone. The cell site utilized for the call was
     north of the city and shooting site, and just south of the 4549
     McKnight Road address for the motel. The next three calls were
     outgoing calls between 8:10 p.m. and 8:36 p.m. for the T-Mobile
     phone. The cell sites utilized for these calls were south of the
     initial cell sites moving in a direction towards the city. Two
     additional calls were identified between 8:41 p.m. and 8:44
     p.m.—one call incoming and the other outgoing from the T-Mobile
     cell. Again, for these calls the cell site was in or around the City
     of Pittsburgh Downtown/Northside/West area.

            At 8:57 p.m., very close to the time of the homicide, there
     was an outgoing call from the T-Mobile phone indicating a cell site
     in or around the City of Pittsburgh Downtown Northside/West area
     in close proximity to the shooting site of 1307 Columbus Avenue,
     Pittsburgh, PA 15233.

          Detective Graber testified at 9:00 p.m. there was both an
     incoming call to the T-Mobile phone and an incoming text to the
     phone utilizing the AT&T cell network. This again shows cell site
     usage in close proximity to the address of the homicide. Detective
     Graber tracked the 8:57 p.m. T-Mobile outgoing call and the 9:00
     p.m. AT&T incoming call to the cell site in close proximity to the
     address of the shooting.

           In response to the [c]ourt’s questioning, Detective Graber
     indicated that the two phones could have been utilized by one
     person with each phone utilizing a different cell site in close
     proximity.

                                     -8-
J-S76004-18


           Shortly after the shooting occurred in the area of 1307
     Columbus Avenue, Detective Graber testified there was an
     outgoing call from the T-Mobile phone. Pursuant to cell site
     mapping, cell towers north of the city were utilized for the call.
     The final three calls were for the T-Mobile phone between 9:52
     p.m. and 9:54 p.m., one an incoming call and two outgoing calls.
     Again, mapping depicted cell sites utilized north of the City of
     Pittsburgh in or around the area of the motel at 4595 McKnight
     Road, Pittsburgh, PA 15237—the site of [Appellant]’s arrest.

            After the [c]ourt denied [Appellant]’s Motion for Judgment
     of Acquittal, Attorney Karsh offered [Defense] Exhibits A and B.
     The Exhibits were admitted. [Defense] Exhibit A is a photograph
     of [Appellant] taken at the time of intake at the Allegheny County
     Jail on August 27, 2014. [Defense] Exhibit B is a photograph of
     [Appellant] on the date of his arrest on May 8, 2015[,] upon intake
     at the Allegheny County Jail. Both photos depict [Appellant] with
     a full beard as stated by Attorney Karsh.

            In addition, Jazmen Washington was called as a defense
     witness. Ms. Washington testified that she had known [Appellant]
     for eight years. [He] is the father of her child. She stated that
     for as long as she had known [Appellant], he has always had a
     beard.

           [Appellant] introduced an undated photograph of [him]
     holding his daughter. In the photo, [Appellant] has a beard and
     Ms. Washington believed that the photo was taken in February
     2015. From January until the beginning of May of 2015, Ms.
     Washington testified that on the occasions when she saw
     [Appellant], he always had a beard. She indicated that sometimes
     [Appellant] stayed with her in the West End of Pittsburgh and
     other times he stayed at the In Town Suites, a hotel on McKnight
     Road.

           On cross-examination, Ms. Washington admitted that there
     were times she didn’t see [Appellant] for a couple of weeks and
     was not aware of his whereabouts. Ms. Washington stated when
     asked about the frequency of sightings, she replied: “No. I see
     him sometimes. Then I don’t. See him sometimes. Then I don’t.”

Trial Court Opinion (TCO), 6/13/18, at 4-21 (citations omitted).




                                    -9-
J-S76004-18



      The Commonwealth charged Appellant with criminal homicide, 18

Pa.C.S. § 2501(a); person not to possess a firearm, 18 Pa.C.S. § 6105; and

carrying a firearm without a license, 18 Pa.C.S. § 6106. After a non-jury trial

held on January 17-20, 2017, the trial court found Appellant guilty of third

degree murder and both firearm offenses.       On April 18, 2017, the court

sentenced Appellant to 17-40 years’ incarceration for third degree murder,

and to no further penalty at the remaining counts.

      Appellant filed a timely post-sentence motion, which was denied by the

court on September 20, 2017; he then filed a timely notice of appeal on

October 20, 2017. Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b)

statement on December 4, 2017.       The trial court issued its Rule 1925(a)

opinion on June 13, 2018.

      Appellant now presents the following questions for our review:

       I.   Was the evidence insufficient to sustain the verdict of
            murder of the third degree when: S[i]dney Smith’s
            identification evidence was inherently unreliable; her
            testimony     and    Mr.   Litherland’s   testimony   were
            contradictory; there was no physical evidence linking
            [Appellant] to the crime; a recovered cell phone was not in
            [Appellant]’s name, and the hotel room in which the cell
            phone was found was not in [Appellant]’s name?

      II.   Was the verdict contrary to the weight of the evidence when
            there was no physical evidence linking [Appellant] to the
            crime and Ms. Smith’s testimony was contradictory and she
            initially selected someone else from a photo array?

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

      After a thorough review of the record, Appellant’s brief, the applicable



                                    - 10 -
J-S76004-18



law, and the comprehensive and well-reasoned opinion of the Honorable Philip

A. Ignelzi, we conclude that there is no merit to Appellant’s claims on appeal,

and do so based on the reasons set forth in that opinion. See TCO at 21-33

(rejecting Appellant’s sufficiency-of-the-evidence claim); at 33-35 (rejecting

Appellant’s weight-of-the-evidence claim).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2019




                                    - 11 -
                                Received 10/1/2018 8:48:56 AMCirculated
                                                              Superior Court Western
                                                                        02/04/2019    District
                                                                                   12:04 PM

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  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA,               1536 WDA 2017

         v.                                 CC NO. 2015-07243

RASHAWN DONTE AUSTIN,

           DEFENDANT.


                                  OPINION


                                  FILED BY:
                                  HONORABLE PHILIP A. IGNELZI



                                 COUNSEL FOR COMMONWEALTH:

                                 Deputy District Attorney
                                 Michael Streily, Esquire
                                 401 Allegheny County Courthouse

-..
M
N
                                 436 Grant Street
                                 Pittsburgh, PA 15219

                                 COUNSEL FOR DEFENDANT:

                                Christine M. Selden, Esquire
                                Assistant Public Defender
                                Appellate Counsel
                                400 County Office Building
                                542 Forbes Avenue
                                Pittsburgh, PA 15219


                   APPENDIX A
  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                  CRIMINAL DIVISION



  COMMONWEALTH OF PENNSYLVANIA                        1536 WDA 2017


               v.                                     CC NO. 2015-07243


  RASHAWN DONTE AUSTIN,


                 DEFENDANT.




                                      OPINION

 lgnelzi, J.

                               PROCEDURAL HISTORY

       By Criminal Information filed at CC 2015-07243 on May 7, 2015, Rashawn

Donte Austin ("Defendant11) was charged with: Count 1- Criminal Homicide (18 Pa.

C.S. § 2501(A); Count 2 - Persons Not to Possess a Firearm (18 Pa. C.S.A. § 6105

(a)(l)); and Count 3 - Carrying a Firearm Without a License (18 Pa. C.S.A. §

6106(a)(1)).


      The Defendant, represented by Ralph Karsh, Esquire elected to proceed to a

non-jury trial commencing January 17, 2017 before this Court. Non-Jury Trial

Transcript {TT}, Volume I (Vol.), January 17, 2017, p. 4, I. 5 through p. 7, I. 17. At

                                          1
  the conclusion of the nonjury trial, this Court found defendant guilty on all counts:

  Count 1 - with Criminal Homicide replaced by Murder of the Third Degree; Count 2

  - Possession of a Firearm Prohibited; and Count 3 - Firearms not to be Carried

  without a License. IT, Vol. Ill, dated January 20, 2017 at 4, I. 1-18.


        The Defendant requested a pre-sentence report and sentencing occurred on

 April 18, 2017.   As to Count 1 - Murder of the Third Degree, Defendant was

 sentenced to confinement for a minimum period seventeen (17) years and a

 maximum period of forty (40) years.          As to Counts 2 and 3, there was a

 determination of guilt without further penalty.


       On April 27, 2018, Christopher Urbano, Esquire filed post-trial motions on

 behalf of Mr. Austin: an Omnibus Post-Sentence Motion; a Motion for Leave to

File Supplemental Post-Sentence Motion; and a Motion for Extension of Time to

Decide Motions.      On May 2, 2017, this Court granted the Motion to File

Supplemental Post-Sentence Motion and further granted the request for a thirty

day extension beyond the 120 day period of Pa.R.Crim.P. 720 (B)(3)(a). On August

8, 2017, Mr. Urbano filed a Motion to Withdraw as counsel, which this Court

granted and thereupon appointed the Office of the Public Defender to represent

Mr. Austin.



                                         2
      As newly appointed counsel had neither the transcripts nor the trial file, no

additional post-sentence motion could be filed within the one-time exception

permitted under Pa.R.Crim.P. 720{8)(3)(b). On September 20, 2017, this Court

denied the pending post-sentence motions. On October 20, 2017, the Defendant,

through Christine M. Selden, Esquire, filed a timely Notice of Appeal. On October

23, 2017, this Court filed its 1925(b) Order requiring a Concise Statement of Errors

to be filed within 21 days. Counsel was granted one extension of time to file the

Concise Statement, and it was filed on December 4, 2017.


                      STATEMENT OF ERRORS ON APPEAL

     Defendant asserts two issues on appeal:

     A. The evidence was insufficient to sustain the verdict of murder of
         the third degree when: Sydney Smith's identification evidence was
         inherently unreliable, especially since her testimony under oath at
         the preliminary hearing differed substantially from her trial
        testimony; she originally testified that the shooter was beardless
        and did not have tattoos; she had been drinking an alcoholic
        beverage; she selected someone else in the first photo array. Her
        testimony was contradictory to the testimony of witness, Mr.
        Litherland, on the clothing and actions of both the victim and the
        shooter; there was no physical evidence linking Mr. Austin to the
       crime; a recovered cell phone was not in Mr. Austin's name; the
       hotel room in which the cell phone was located was not in Mr.
       Austin's name; and there was no motive.

    B. The verdict rendered was contrary to the weight of the evidence as
       the testimony of Sydney Smith was so inherently unreliable and
       contradictory that a verdict based on it amounts to no more than


                                       3
             surmise or conjecture and hence, to base a verdict on this
             identification shocks the conscience and the conviction cannot
             stand.



                                  FACTUAL HISTORY

        A Non-Jury trial commenced on January 17, 2017 and concluded on January

 20, 2017.    The Commonwealth was represented by Assistant District Attorney

 Jonathan Fodi.    The Defendant, Mr. Austin, was represented by Ralph Karsh,

 Esquire.


        Prior to testimony, the Commonwealth placed a Stipulation on the record

 as to the cause and manner of death of the victim Derrick Owens via a report from

 the County of Allegheny Medical Examiner's Office, at Case No. 15COR03389. On

April 25, 2015, the victim Derrick Owens was examined by Dr. Kenneth Howard

Clark, associate medical examiner. TT, Vol. I, at p. 8, I. 13�21. The opinion of the

associate medical examiner was that Derrick Owens, a 30 year old African American

male, died as a result of a gunshot wound to the trunk. Id. at p. 8, I. 22 through p.

9, I. 1. The final pathological diagnosis was a penetrating gunshot wound of the

right upper arm, reentry into the right upper lateral chest. Id. at p. 9, I. 2-7. The

manner of death was ruled a homicide. Id. at p. 10, I. 5-10. The shooting of Derrick




                                         4
  Owens occurred on the evening of April 24, 2015, when it was dark. Id. at p. 24, I.

  23 through p. 25, I. 5.


        The Commonwealth's first witness was Detective Judd Emery. Detective

  Emery had been employed by the City of Pittsburgh Police for 16 years. Id. at p. 10,

  I. 24 through p. 11, I. 8. He was assigned to the violent crimes unit, homicide office,

 and was working in that capacity at the time of this homicide in April of 2015. Id.

 Detective Emery was assigned to investigate the death of Derrick Owens. Id at p.

 11, I. 9-13. He arrived at the scene with his partner, Detective Bolin, and observed

 Mr. Owens lying in the driver's side area of a white SUV in the 1300 block of

 Columbus Avenue. Id. at p. 11, I. 14-19. According to Detective Emery, this block is

 located in the Manchester area of the City of Pittsburgh. Id. at p. 13, 1.7-10. The

medics arrived shortly before Detective Emery and had already pronounced Mr.

Owens deceased. Id. at p, 11, /, 20"23.


       Detective Emery located a female, Sidney Smith, in the front passenger seat

and two males in the backseat, Mark Kelly and a Mr. Williams (he was not 100%

sure of the names of the male passengers). Id. at p. 12, /. 12-17. The detective was

aware of a civilian in the neighborhood who was taking pictures, Christopher

Litherland. Id. at p. 12, I. 18-22. The Mobile Crime Unit arrived at the scene and


                                          5
 Detective Emery directed them to take pictures and measurements. Id. at p. 13, I.

 2-6.


         Sidney Smith was called as a witness on behalf of the Commonwealth. She

 recalled on April 24, 2015 being with Derrick Owens. TT, Vol. II, dated January 18,

 2017, at p. 4, I. 2-8. Ms. Smith had only known him for a few months, but she liked

 hlm, and thought he was her boyfriend. Id. at p. 4, I. 9-14 & p. 6, I. 7-13. However,

 after the shooting, she found out he was married. Id. On that evening, at

 approximately 8 or 9 p.m., she was with Derrick and two of his friends parked on

Columbus Street. Id. at p. 4, I. 15 through p. 6, I. 1.


        Ms. Smith stated "We were driving around and we stopped at Shamrock on

Western Avenue and me and him (victim Derrick Owens] grabbed a 40 ounce .... of

Olde English. It's a beer." Id. at p. 6, I. 14-23. Ms. Smith further testified "We just

got one to share .... ! took a couple of sips before everything happened." Id. at p. 7,

I. 6-14. Ms. Smith did not remember the back seat occupant rolling blunts, "but

she wasn't getting high, I don't get high." Id. at p. 23, I. 9-16.


        While Ms. Smith was in the passenger seat, with victim Derrick Owens in the

driver's seat and Mr. Owens' two friends in the back seat; Mr. Owens got out of




                                           6
 the vehicle to stretch. Id. at p.7, I. 15 through p, 8, I. 24. As Mr. Owens got out, the

 driver door remained open and he was talking to all of the people in the vehicle. Id.


        According to Ms. Smith, a gentleman walked up toward the car and she

 identified the Defendant, in the Courtroom, as the individual she saw walking up

 that night. Id. at p. 8, I. 2-16. She indicated the shooter walked up very smooth and

 calm. Id. at p. 11, I. 1-11. She observed him pull out a silver gun and point it at Mr.

 Owen's left side and shoot him twice. Id. Mr. Owens then yelled that he was shot

 and he fell into the car. Id. at p. 11, I. 12-24. At first, Ms. Smith thought it was a

joke but locked her eyes with the shooter then saw him walk away like a "smooth

criminal". Id. Mr. Owen's whole upper body fell into her lap and she observed

blood coming out of his mouth. Id. at p. 11, I. 25 through p. 12, I. 8. When Ms.

Smith locked eyes with the shooter, he was close to her. Id. at p. 12, I. 13-17. Ms.

Smith was able to describe that the shooter was wearing a light tan letterman

jacket with sport patches. Id. at p. 13, I. 6-11. She called 911 and waited for the

police to arrive. Id. at p, 14, I. 1-12. The shooter walked towards the back of the

vehicle and the two people in the car ran away. Id.


      When the police arrived, she told them that someone came toward the truck

and shot Mr. Owens. Id. at p, 14, I. 16-24. She told the police if she saw the shooter


                                          7
   again she could identify him. Id. at p. 16, I. 2-7. The night of the shooting, the police

  officers took her to headquarters and showed her a photo array. Id. at p. 16, I. 11

  through p. 17, I. 7. It took Ms. Smith some time, but she eventually circled a

  photograph. Id. at p. 17, I. 8M23. She told the officers she wasn't real sure if that

  person was the shooter. Id. A few days later, on May 28, the police brought Ms.

  Smith back in to look at a second photo array. Id. at p. 17, I. 24 through p. 19, I. 16.

 She looked at the second array for approximately 10 minutes; selected and circled

 an individual on the array; signed and initialed her pick; and told the officers she

 was very positive this individual was the shooter. Id. She once again identified the

 Defendant, in the Courtroom, as the shooter she observed that night. Id. at p. 19,

 I. 17 through p. 20, I. 6.


       On cross-examination, she denied that the shooter wore a hoodie and again

stated that the shooter was wearing a light tan letterman jacket. Id. at p. 26,      r.   1-

12. She also testified that the shooter was clean shaven. rd. at p. 31, I. 3 through

p. 32, I. 22.    On cross-examination, the following exchange with Ms. Smith

occurred:




                                          8
                BY MR. KARSH:


               Q.   If Mr. Austin had a beard, just like he has now, on
        the night of the shooting, he couldn't have been the shooter,
        right?

               A. . That is true. But he wasn't caught that night.

 Id. at p. 32, I. 14-22.

        When questioned about whether it was dark on the street, Ms. Smith

 responded "But I do recall it being bright enough that I can see." Id. At p. 27, I. 16

 through p. 28. L. 15. Ms. Smith further testified on cross-examination that she was

 approximately five feet from the shooter when he came upon the victlm and she

 did not see any tattoos on him. Id. at p. 36, I. 5 through p. 37, I. 5.


       Regarding the identification of the Defendant pursuant to the photo arrays,

Commonwealth Exhibit 16 was the first photo Sidney Smith circled on the evening

of the shooting. Id. at p. 16, I. 11 through p. 17, I. 23. While she circled a

photograph, she told the detective, "I wasn't real sure". Id. The circled photograph,

Commonwealth Exhibit 16, was identified as a photo of Manda! Ruggs by Detective

Emery. rr, Vol. I, p. 33, I. 23 through p. 34, I. 7. Commonwealth Exhibit 17 was the

photo array shown to Sidney Smith on April 28, 2015 at which time she circled the

photo of the Defendant, Rashawn Austin, as the shooter. IT, Vol. II, p. 18, I. 5

through p. 20, I. 8.
                                           9
          Detective Emery testified the procedures of the Pittsburgh Bureau of Police,

   for photo array presentation utilize a double blind procedure. TI, Vol. I, at p. 39, I.

  23 through p. 40, I. 15. Because of his knowledge of the investigation, he will

  develop a suspect. Id. Either he or his partner will develop a photo array. Id. The

  photo array will be shown to the witness by an officer not involved in the

  investigation so as not to contaminate or taint the photo array. Id. On cross-

  examination, Detective Emery testified the first photo array, Commonwealth

  Exhibit 16, was shown by Detective Schanck while Commonwealth Exhibit 17 was

 presented by Detective Hanlon. Id. at p. 41, I. 15 through p. 43, I. 10. Neither

 Detective Schanck nor Detective Hanlon had any involvement in the investigation.

 Id.


        On   cross-examination,     Attorney    Karsh    showed     Detective    Emery

 Commonwealth's Exhibit 16 containing the photo of Mandol Ruggs. Id. at p. 33, I.

23 through p. 35, I. 14. Detective Emery agreed Manda! Ruggs is a light skinned

African-American male and Attorney Karsh's client, Defendant Austin, is medium

toned if not dark toned. Id. Detective Emery took exception with Attorney Karsh's

conclusion, "Is it fair to say these guys don't look alike?" Detective Emery stated

"they both have full faces ..... Yes. They both look alike. Obviously they have a

different skin tone.   11
                            Id.

                                          10
          Detective Emery obtained an arrest warrant for Defendant, Rashawn Austin,

   based upon the identification by Sydney Smith and his investigation. TT, Vol. I,

  January 17, 2017, p. 21, I. 17-21, p. 22, I. 18�24 & p. 24, I. 3-12. After obtaining the

  Arrest Warrant, Detective Emery spoke with Traylon Austin at her residence in the

  3800 block of California Avenue. Id. at p. 22, I. 4-24. Detective Emery went to the

  residence of Traylon Austin looking for Defendant Rashawn Austin. Id. Eventually,

  with the assistance of the Fugitive Task Force, Detective Emery found Defendant

 Austin in Room 441 of the In Town Suites on May 7, 2015. Id. at p. 21, I. 2 through

 p. 22, f. 3. Detective Emery obtained a search warrant to search the hotel room. Id.

 Defendant Austin was alone in the hotel room. Id. A cell phone was found on the

 Defendant's person and a second cell phone was recovered from the hotel room

 Id. Defendant Austin told Detective Emery he had been staying at the In Towne

 Suites (Hotel) for a month. Id. at p, 30, I. 13 through p. 31, I. 20.


       On redirect, Detective Emery indicated he obtained a search warrant for

each of the two phones: the one found in the hotel room and the one on Mr. Austin.

Id. at p. 40, I. 16 through p. 41, I. 9. Detective Emery turned the phones over to the

computer crimes detectives to perform a forensic download. Id. The detective also

obtained court orders to send to the cell phone providers to retrieve the cell phone




                                           11
  records, including the dates and times of calls and texts, as well as the cell towers

  used. Id.


        As part of the investigation, Detective Emery also had the opportunity to

 determine that Mr. Austin did not have a license to carry a firearm and that he was

 a person not to possess a firearm. Id. at p, 22, I. 25 through p. 24, I. 1. Attorney

 Karsh stipulated that his client did not have a license and was a person not to

 possess a firearm. Id.


       A Stipulation was entered between the Commonwealth and Defense Counsel

 that: "on approximately July 21, 2014, an investigation was initiated for a theft

 perpetrated by Derrick Owens, the deceased in this case." Id. at p, 44, I. 13 through

p. 45, I. 16. Officer Dulski, City of Pittsburgh Police Department, applied for an

arrest warrant for Derrick Owens, alleging that Mr. Owens committed the crimes

of theft and access device fraud with the victim being Traylon Austin, 3613

California Avenue, No. 1, Pittsburgh, PA 15212. Id. Mr. Owens was charged with

stealing approximately $895 from a SS! card that was located in the mailbox and

that had been stolen. Id.


      The Commonwealth called Christopher Litherland to testify, Mr. Litherland

had resided in Allegheny County for approximately four years. Id. at p. 46, I. 9-12.


                                         12
   Mr. Litherland was a photographe_r and worked with people of special needs. Id. p.

   at 46, I. 13-15. On the evening of April 24, 2015, at approximately 9:00 p.m., Mr.

   Litherland was sitting in his car in the Manchester neighborhood of the City trying

   to photograph an abandoned house across the street, but his view was blocked by

   an SUV parked in front of said house. Id. at p. 46, I. 16 through p. 47, I. 19. He

  observed that the "guy or whoever got shot" was standing outside the car talking

  to a woman inside the car. Id. at p. 48, I. 10 through p. 49, I. 16. Mr. Litherland

  next observed the shooter walking slowly up the sidewalk on Fulton Street and turn

  onto the left hand side of Columbus. Id. at p. 51, I. 21 through p. 52, I. 20. The

  shooter turned and pulled his hand out of his pocket with a gun and shot the victim

 right in the chest Id. He then watched two men get out of the backseat of the SUV

 and run away in the opposite direction of the shooter, while the shooter slowly

 walked down the side of the street after the shooting had occurred. Id. at p. 52, I.

 9 through p. 53, I. 24.


       Mr. Litherland then put his car in reverse and drove to the next block over to

wait for the police to show. Id. at p. 53, I. 25 through p. 54, I. 19. After the police

arrived, he gave them the same description of events. When asked if he had a

chance to see the shooter, he responded: "No. I could not see his face. He was

wearing a hoodie, a gray hoodie with stripes on it and kind of darker pants. That is

                                         13
   all J saw." Id. He could tell the shooter was a male and approximate height was 5'9".

  Id. at p. 54, I. 16 through p. 55, I. 18.


         During cross-examination, Mr. Litherland recalled that the color of the hand

  of the shooter was black. Id. at p. 61, I. 21 through p. 62, I. 7. He could tell the

  shooter was black from his face also. Id. at p. 69, I. 2-25. The Court questioned Mr.

  Litherland as to whether the police asked him if he could identify anybody if they

  showed him a photo array to which he responded, no because he had a hoodie on.

 Id at p. 70, I. 3-25.


       A stipulation was reached that Commonwealth Exhibit 18, obtained pursuant

 to the search warrants executed by the Pittsburgh Bureau of Police, contains cell

 phone records obtained from providers T-Mobile and AT&T for cell phone numbers

412-733-8717 and 412-315-5195, respectively. Id. at p. 59, I. 23 through p. 61, I.

17. It was stipulated the records were kept in the regular course of business as

authentic business records of those providers. Id. Mr. Karsh further added it was

his understanding that the records provided contain no substance of any calls,

merely the calls or texts going out, the time they went out and where they have

been. Id. at p. 61, I. 3-10. There was no dispute the two cell phones were the

phones seized on May 7, 2015, from Defendant Austin. Id. at p. 108, I. 11-13.


                                              14
           Detective Lyle Graber was examined and testified regarding the cell phone

   records for the two cell phones. Id. at p, 61, I. 19 through p. 112, I. 5. After

  extensive voir dire, Detective Graber was offered as an expert in analysis of cellular

  telephone records and mapping of cell site data. Id. at p. 68, I. 17-21 and p. 74, I.

  3�8.    Once    Detective    Graber     received     the    information     contained     in

  Commonwealth's Exhibit 18 he prepared a report and power point. rd. at p. 75, I.
                                 1




  11 through p. 76, I. 14. Commonwealth's Exhibit 19 is the power point prepared by

 Detective Graber. Id. at p. 76, I. 7-14. During Detective Graber's testimony, the

 slides which were contained in Commonwealth Exhibit 19 were marked

 Commonwealth Exhibits 20 through 52. Id. at p. 100, I. 22 through p. 101, I. 20. The

 Court admitted Commonwealth Exhibits 19 through 52. ld. at p. 111, I. 16w24.


         Essentially, Detective Graber explained a cell phone communicates with a

cell tower or cell site. ld. at p. 70, I. 1 through p. 72, I. 1. A cell tower is divided into

three sections with each section having its own antenna covering approximately

120 degrees, comprising 360 degrees for the three sections. Id. For a call to be

ongoing, the cellphone has to interact or communicate with a cell tower/site. Id.

When the cellphone is moving or the user is traveling using the cell phone, different

cell towers/sites will be utilized. Id. As the cellphone is moving, the system is



                                           15
  engineered to hand off the call to the next cell tower/site that has the strongest

  signal. Id.


         Detective Graber analyzed the cell detail records for the two cellphones, one

 of which was on Defendant Austin's person and the other in the hotel room

 occupied solely by Defendant Austin. Detective Graber explained the Cellular Call

 Detail Records (CDR) contain basic information such as, the target number, i.e. the

 number in question, date, time, the duration of the call, the number called or

 calling the target number and the direction of the call. Id. at p. 76, I. 15 through p.

 77, I. 4 and Commonwealth Exhibit 21. Direction of the call means whether it is an

outgoing call from the target number or an incoming call to the target number. Id.

at p. 77, I. 5-8. The CDR may also contain cell site information which includes

identification of cell site and/or sites through which the communication is routed,

cell site identifiers, location of cell site by latitude, longitude or closest address and

the cell sector azimuth. Id. at p. 77, I. 9 through p. 78, I. 7 and Commonwealth

Exhibit 22.


       Detective Graber testified the one phone number was a Metro PCS

telephone number serviced by the T-Mobile network while the other phone




                                          16
  number was a Tracfone wireless serviced by the AT&T network. Id. at p. 78, J, 8

  through p. 79, I. 3 and Commonwealth Exhibit 25.


         Detective Graber testified the time of a call becomes important in light of the

  time of the homicide at or around 9:00 p.m. on April 24, 2015. Id. at p. 80, I. 18

  through p. 81, I. 9. Detective Graber identified a call from the Tracfone serviced      by

 the AT&T network at 9:00 p.m. on April 24, 2015. Id. at p. 81. With regard to the

 9:00 p.m. call on April 24, 2015, the records establish the cell site utilized, the

 physical location of the cell site designated      by latitude and longitude and the sector

 of the cell tower used for the communication. Id. at p. 82, I. 4 through p. 83, I. 16

 and Commonwealth Exhibits 29 through 35. Similar information for the T-Mobile

 cellphone provided the cell site and location for a specific call. Id. at p. 83, I. 17

through p. 85, I. 8 and Commonwealth Exhibits 36 through 39. The only difference

in the records is that the T-Mobile records do not provide the azimuth information

which prevents determining which of the three sectors on the cell tower the cell

utilized. Id. at p. 84, 1.22 through p. 85, I. 8.


       Detective Graber testified about cell site mapping. As the homicide occurred

on April 24, 2015 at approximately 9:00 p.m., Detective Graber tracked the cell

phones for the period of one hour before the homicide and one hour after the



                                            17
   homicide, a time range between 8:00 p.m. and 10:00 p.m. Id. at p. 85, I. 9-21 and

   Commonwealth Exhibits 40 through 52. In addition, Detective Graber also tracked

   the site of the homicide --1307 Columbus Avenue, Pittsburgh, PA 15233, as well as

  the hotel in the North Hills where Defendant Austin was arrested -- 4595 McKnight

  Road, Pittsburgh, PA 15237. Id. at p. 86, I. 9 through p. 87, I. 11.


         The first call tracked was at 8:08 p.m. It was an incoming call to the T-Mobi/e

  phone. Id. at p. 87, I. 13 through p. 88, I. 21. The cell site utilized for the call was

  north of the city and shooting site, and just south of the 4549 McKnight Road

 address for the motel. Id. and Commonwealth Exhibit 42. The next three calls were

 outgoing calls between 8:10 p.m. and 8:36 p.m. for the T-Mobile phone. Id. at p.

 90, I. 11 through p. 91, I. 3 and Commonwealth Exhibit 43. The cell sites utilized

 for these calls were south of the initial cell sites moving in a direction towards the

city. Id. Two additional calls were identified between 8:41 p.m. and 8:44 p.m. --

one call incoming and the other outgoing from the T-Mobi/e cell. Id. at p. 91, 1.4

through p. 92, I. 19 and Commonwealth Exhibit 44. Again, for these calls the cell

site was in or around the City of Pittsburgh Downtown/Northside/West area. Id.


      At 8:57 p.m., very close to the time of the homicide, there was an outgoing

call from the T-Mobile phone indicating a cell site in or around the City of Pittsburgh


                                          18
                                                                         Circulated 02/04/2019 12:04 PM




   Downtown Northside/West area in close proximity to the shooting site of 1307

   Columbus Avenue, Pittsburgh, PA 15233. Id. at p. 91, I. 13 through p. 92, I. 19 and

  Commonwealth Exhibit 45.


         Detective Graber testified at 9:00 p.m. there was both an incoming call to

  the T-Mobile phone and an incoming text to the phone utilizing the AT&T cell

  network. Id. at p. 92, I. 21 through p. 93, I. 20 and Commonwealth Exhibit 46. This

  again shows cell site usage in dose proximity to the address of the homicide. Id.

 Detective Graber tracked the 8:57 p.m. T-Mobile outgoing call and the 9:00 p.m.

 AT&T incoming call to the cell site in close proximity to the address of the shooting.

 Id. at p. 93, I. 21 through p. 96, I. 8 and Commonwealth Exhibit 47.


       In response to the Court's questioning, Detective Graber indicated that the

 two phones could have been utilized by one person with each phone utilizing a

different cell site in dose proximity. Id. at p. 95, I. 22 through p. 96, I. 8.


       Shortly after the shooting occurred in the area of 1307 Columbus Avenue,

Detective Graber testified there was an outgoing call from the T-Mobile phone. Id.

at p. 96, I. 10 through p. 97, I. 1 and Commonwealth Exhibit 48. Pursuant to cell

site mapping, cell towers north of the City were utilized for the call. Id. The final

three calls were for the T-Mobile phone between 9:52 p.m. and 9:54 p.m., one an


                                           19
      incoming call and two outgoing calls. Id. at p. 97, I. 3-8 and Commonwealth Exhibit

      49. Again, mapping depicted cell sites utilized north of the City of Pittsburgh in or

  around the area of the motel at 4595 McKnight Road, Pittsburgh, PA 15237 -- the

  site of Defendant Austin's arrest. Id.


           After the Court denied Defendant's Motion for Judgment of Acquittal,

  Attorney Karsh offered Defendant Exhibits A and B. The Exhibits were admitted.

  Id. at p. 114, I. 25 through p. 116, I. 16. Defendant's Exhibit A is a photograph of

 the Defendant taken at the time of intake at the Allegheny County Jail on August

 27, 2014. Id. at p. 115, I. 3-10. Defendant's Exhibit B is a photograph of the

 Defendant on the date of his arrest on May 8, 2015 upon intake at the Allegheny

 County Jail. Id. at p. 115, I. 11-14 & I. 20-21, p. 116, 1.10-14. Both photos depict the

 Defendant with a full beard as stated by Attorney Karsh. Id. at p. 115, I. 14-15.


          In addition, Jazmen Washington was called as a defense witness. Ms.

Washington testified that she had known the Defendant for eight years. The

Defendant is the father of her child. Id. at p. 117, I. 16 through p. 118, I. 3. She

stated that for as long as she had known the Defendant, he has always had a beard.

Id.




                                            20
             Defendant introduced an undated photograph of the Defendant holding his

   daughter. Defendant's Exhibit C. In the photo, the Defendant has a beard and Ms.

   Washington believed that the photo was taken in February 2015. Id. at p. 118, I. 4-

   20 and p. 120, I. 9-19. From January until the beginning of May of 2015, Ms.

  Washington testified that on the occasions when she saw the Defendant, he always

  had a beard. Id. at 118, I. 4 through p. 119, I. 16. She indicated that sometimes the

  Defendant stayed with her in the West End of Pittsburgh and other times he stayed

  at the lnTown Suites, a hotel on Mcknight Road. Id. at p. 119, I. 17 through p. 120,

  I. 3.


           On cross-examination, Ms. Washington admitted that there were times she

 didn't see the Defendant for a couple of weeks and was not aware of his

 whereabouts. Id. at p. 121, I. 5 through p. 122, I. 18. Ms. Washington stated when

 asked about the frequency of sightings, she replied: "No. I see him sometimes. Then

 I don't. See him sometimes. Then I don't." Id. at p. 121, /. 11-21.


                                         DISCUSSION

                         Statement of Errors on Appeal - lssu:e. A.

          Defendant's first alleged error on appeal is that the trial court erred in finding

Defendant guilty        of   Homicide    in   the   Third   Degree   asserting that the

Commonwealth presented insufficient evidence to sustain the verdict. Defendant

                                              21
  particularly claims as his basis the unreliable testimony of Sydney Smith; the alleged

  contradictory nature of her testimony with the testimony of Mr. Litherland; the

  absence of physical evidence linking Defendant to the crime -- that a recovered cell

  phone was not in Defendant's name nor was the hotel room in which the cell phone

  was located was not in Defendant's name; and that there was no motive. These

 contentions are without merit.


        The Superior Court has articulated the standard of review when an appeal

 questions the sufficiency of the evidence. The Court must view all evidence

 admitted at trial in the light most favorable to the Commonwealth, as verdict

 winner, and must determine if the evidence is sufficient to allow the fact-finder to

 conclude that every element of the crime has been established beyond a

 reasonable doubt. Commonwealth v. Hartle, 894 A.2d 800, 803-04 (Pa. Super.

2006). Upon review, the Court may not substitute its judgment for that of the fact-

finder; "if the record contains support for the convictions, they may not be

disturbed." Id. at 804.


      Defendant argues that the evidence cannot support his conviction of murder

in the third degree because Sydney Smith was not a credible witness. Defendant

alleges that Ms. Smith's identification evidence was inherently unreliable; that she



                                        22
   had been drinking an alcoholic beverage on the night of the incident; that her

   preliminary hearing testimony differed substantially from her trial testimony in that

  she originally testified that the shooter was beardless and had no tattoos; that she

  selected a different person in the first photo array; and that her testimony

  contradicted the testimony of Mr. Litherland as to the clothing and actions of the

  victim and shooter. Likewise, Defense counsel argues that there was no physical

  evidence linking Mr. Austin to the crime. Defendant asserts that the recovered cell

 phone was not in his name; that the hotel room where the cell phone was

 recovered was not in his name; and that there was no motive established.


       When determining sufficiency of the evidence,               "[tlhe facts   and

 circumstances established by the Commonwealth 'need not be absolutely

 incompatible with a defendant's innocence, but the question of any doubt is for

the [fact-finder] unless evidence be so weak and inconclusive that as a matter of

law no probability can be drawn from the combined circumstances."

Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa. 1988}i quoting

Commonwealth v. Sullivan, 371 A.2d 468, 478 (Pa. Super. 1977). Further, the fact-

finder may believe some, all or none of the evidence. Hattie. supra, 894 A.2d at

804.



                                         23
         Reviewing the evidence in the light most favorable to the Commonwealth as

  the verdict winner, the testimony of the witnesses establish the sufficiency of the

  Commonwealth's case. The record, taken as a whole, establishes that the

  witnesses' testimony were not as contradictory as the Defendant would have us

  believe.


        Taken as a part of the whole, Mr. Litherland testified that he saw the

 shooting. Although Mr. Litherland could not see the shooter's face because it was

 covered by a gray hoodie, IT, Volume I, at p. 54, I. 22-24, he could tell that the

 shooter was a male, approximately 5'9", Id. at p, 55, I. 10, and that the color of the

 shooter's hand was black. Id. at p. 62, I. 5-16. Mr. Litherland observed that the

 shooter was not running but was just walking slowly, Id. at p. 52, I. 11-13, when he

[the shooter] turned and pulled a gun out of his pocket and shot him [the victim]

right in the chest. Id. at p. 52, I. 13-17. Mr. Litherland heard one shot fired which

was approximately 15 feet away. Id. at p. 53, I. 2-3 and p. 55, I. 4-7.


      As another part of the entire record, Sydney Smith testified that she was with

the victim and two of his friends sitting in a parked SUV on Columbus Street. TT,

Volume II, at p. 4, I. 15 through p. 5, I. 6. While the victim Derrick Owens was

standing outside the vehicle with the driver's door open, Ms. Smith observed a man


                                         24
   walk up to the vehicle in a very smooth and calm manner and pull out a silver gun,

  shooting the victim in the left side two times. Id. at p. 11, I. 5-8. Ms. Smith identified

  the man as the Defendant in the Courtroom. Id. at p. 8, I. 6-11. In furtherance of

  her identification, Ms. Smith had locked eyes with the shooter as he slowly walked

  away, and she indicated he was close to her. Id. at 11. She described the shooter

  as wearing a light tan letterman jacket with sport patches. Id. at p, 13, I. 7-11. Ms.

 Smith called 911, Id. at p. 14, I. 2, and upon speaking to police officers, she felt she

 could identify the shooter if she saw him again. Id. at p. 16, I. 1-4.


        On the night of the shooting, police officers showed Ms. Smith a photo array

 and after a while, she circled a photo but told the officers she wasn't certain that

 he was the shooter. Id. at 16, I. 11 through p.17, I. 23. However, about four days

 later, the police brought her into headquarters to view a second photo array. Id. at

p. 18, I. 5-12. This time, Ms. Smith selected and circled a photo, signed and initialed

her pick, and told the officers she was very positive that this photo identified the

shooter. Id. at p. 19, I. 5-16.


      On cross-examination, Ms. Smith consistent with her preliminary hearing

testimony, stated that the shooter was not wearing a hoodie, Id. at p. 26, I. 7-8,




                                          25
  and was clean shaven. Id. at p. 30, I. 23 through p. 31, I. 31. She did not contradict

  herself.


        Regarding Defendant Austin's contention that Ms. Smith "had been drinking

  an alcoholic beverage" inferring that it may have affected her identification of the

  Defendant, there is absolutely no merit to this argument. As set forth in the Factual

  History section above, Ms. Smith had a couple of sips from a forty-ounce beer.

 Additionally, Ms. Smith did not smoke marijuana nor "get high". There is no

 evidence that Ms. Smith was impaired in any way, shape, or form.


       Taking the record as whole, although Mr. Litherland testified he could not

 see the shooter's face because he recalled the shooter wearing a hoodie, it is

 noteworthy that he was parked across the street and was not nearly as close to the

shooter as Ms. Smith. Ms. Smith was closer in proximity having "locked eyes" with

the Defendant to make a more specific identification.


       The Defendant asserts that the existence of his beard upon arrest is

exculpatory. To the contrary, the shooting took place on April 24, 2015 and the

Defendant, Rashawn Austin was not arrested until May 7, 2015. Notwithstanding

Defendant's Exhibit B -- a May 8, 2015 Allegheny County Jail intake photograph of

the Defendant with a beard, Id. at p. 115, I. 11-21 and p. 116, I. 10-16, -- there is


                                         26
  no doubt Defendant Austin could grow a beard in fourteen days from the date of

  the shooting on April 24, 2015 through May 8, 2015. This practical point was

  emphasized by the Commonwealth in closing argument. Id. at p. 134, I. 6-15.


        Defendant seeks to bolster his misidentification defense by asserting that

 "she [Ms. Smith] originally testified that the shooter was beardless and did not have

 tattoos." However, Ms. Smith never stated the shooter "did not have tattoos". To

 be succinct, Ms. Smith stated that she "didn't see any tattoos." Id. at p. 34, I. 12-

 14. A fair reading of Ms. Smith's testimony on this matter leads one to conclude

 she was looking at the shooter's face, not his neck or elsewhere. Id. at p. 32, I. 24

 through p. 34, I. 14. Moreover, the photographs introduced by Defendant Austin,

Defendant's Exhibits A, Band C corroborate Ms. Smith's testimony that she did not

see any tattoos on his face. In fact, the Defendant did not have a tattoo on his face.

While Defendant's Exhibit A depicts a tattoo on Defendant Austin's neck area, there

is no tattoo on his face. In addition, Defendant's Exhibit B and C do not visibly

depict the neck tattoo because of the positioning of Defendant's head in the

photographs.


      Based upon the identification by Sydney Smith and his investigation,

Detective Emery obtained an arrest warrant for Defendant, Rashawn Austin. n,


                                        27
  Vol. I, January 17, 2017, p. 21, I. 17-21, p. 22, J. 18-24 & p. 24, I. 3-12. After

  obtaining the Arrest Warrant, Detective Emery spoke with Traylon Austin at her

  residence in the 3800 block of California Avenue. Id. at p. 22, I. 4-24. As a result,

  Detective Emery went to the residence of Traylon Austin looking for Defendant

 Rashawn Austin. Id. Eventually, with the assistance of the Fugitive Task Force,

 Detective Emery found Defendant Austin in Room 441 of the In Town Suites on May

 7, 2015. Id. at p. 21, I. 2 through p. 22, I. 3. Detective Emery obtained a search

 warrant to search the hotel room. Id. Upon executing the warrant, Defendant

 Austin was located alone in the hotel room with a cell phone on his person, and a

 second cell phone was recovered from the same room Id.


        Thereafter, Detective Emery obtained a search warrant for each of the two

phones and turned the phones over to the computer crimes detectives to perform

a forensic download. Id at p. 40, l. 16 through p. 41, I. 9. Detective Emery also

obtained court orders to retrieve the cell phone records from the phone providers,

including the dates and times of calls and texts, as well as the cell tower locations

used. Id.


      Taking the record as a whole, the Defendant's argument that there is no

physical evidence linking Defendant Austin to the crime is fallacious. Defendant



                                        28
  Austin's argument disregards the existence of inculpatory physical evidence in

  conjunction with the powerful incriminating circumstantial evidence in the

  Commonwealth's favor.


        Addressing first the cell phones, the only person at the In Towne Suites Hotel

  in room 441 was Defendant Austin on May 7, 2015 at the time of his arrest. Id. at

 p. 21, I. 2 through p. 22, I. 3. Admittedly, neither cell phone was registered to

 Defendant Austin. However, one phone was on his person and the other was in

 hotel room 441 -- which was only occupied by Defendant Austin. Id. Defendant

 Austin admitted he had been staying at the In Towne Suites Hotel for a month. Id.

 at p. 30, I. 13 through p. 31, I. 20. This Court draws the reasonable inference that

 Defendant Austin either directly possessed or constructively possessed both cell

 phones, any information on the cell phones, and the logistical data derived

therefrom.


      Detective Graber analyzed the cell detail records for the two cellphones, one

of which was on Defendant Austin's person and the other in the hotel room

occupied solely by Defendant Austin. Detective Graber explained the Cellular Call

Detail Records (CDR) contain basic information such as, the target number, i.e. the

number in question, date, time, the duration of the call, the number called or



                                        29
  calling the target number and the direction of the call. Id. at p. 76, I. 15 through p.

  77, I. 4 and Commonwealth Exhibit 21.


        Detective Graber testified about cell site mapping. The homicide occurred

 at approximately 9:00 p.m. on April 24, 2015, and Detective Graber tracked the

 cell phones for the period of one hour before the homicide and one hour after the

 homicide, a time range between 8:00 p.m. and 10:00 p.m. Id. at p. 85, I. 9-21 and

 Commonwealth Exhibits 40 through 52. Along with identifying the time of 9:00

 p.m. on April 24, 2015, he also located 1307 Columbus Avenue, Pittsburgh, PA

 15233 the site of the homicide, as well as the hotel in the North Hills where

 Defendant Austin was arrested, 4595 McKnight Road, Pittsburgh, PA 15237. Id. at

p. 86, I. 9 through p. 87, I. 11.


      As set forth in the cell phone analysis detailed in the Factual History above,

the Commonwealth established three key pieces of physical circumstantial

evidence. First, within the hour before the homicide, i.e. between 8:00 p.m. and

9:00 p.m., on April 24, 2015, the phones are in the vicinity of In Towne Suites and

they were moving south toward the area of the homicide. Second, at the time of

the homicide both phones are in close proximity to the area of the homicide.

Finally, after the homicide occurs at a minimum the T-Mobile phone was tracked



                                         30
  moving north of the homicide scene toward the area of 4549 McKnight Road,

  Pittsburgh, PA 15237. Coincidentally, 4549 McKnight Road is the address for the In

  Towne Suites Hotel where Defendant Austin was residing on the date of the

  homicide by his own admission. Clearly, this is relevant circumstantial evidence

 tying Defendant Austin to the homicide.


       A Stipulation was placed before the Court that on July 21, 2014, an

 investigation was initiated for a theft perpetrated by Derrick Owens (the victim

 herein) and he was charged with stealing approximately $895.00 from an SSI card

 located in the mailbox of victim, Traylon Austin.   n, Vol. I, at p. 44, I. 13 through p.
 45, I. 16. The address identlfled for Tray/on Austin was 3613 California Avenue,

Pittsburgh, PA 15212. Id.


      After Detective Emery obtained an arrest warrant for Defendant Rashawn

Austin, he went to the residence of Traylon Austin looking for Defendant Rash awn

Austin on California Avenue.   rd. at p.   22, I. 4-24.   Detective Emery spoke with

Traylon Austin at her residence attempting to execute the arrest warrant for

Defendant Rashawn Austin.        Detective Emery stated, "At her residence on

California Avenue.   I don't know the exact. I believe in the 3800 block."            Id.




                                           31
  Detective Emery was obviously referring to the address of Traylon Austin at 3613

  California as stipulated by Attorney Karsh.


        The Commonwealth did not establish the relationship, if any, between

  Defendant Rashawn Austin and Traylon Austin.           However, the evidence did

 establish two important facts. Both individuals, Rashawn and Traylon possessed

 the identical last name - Austin.     Detective Emery possessed information that

 Defendant Rashawn Austin either lived at the residence of Traylon Austin or, in the

 alternative, Traylon Austin possessed information as to the whereabouts of

 Defendant Rahawn Austin. Regardless of which inference is correct, the evidence

 establishes a link or connection between Defendant Rashawn Austin and Traylon

Austin. This also established a link or connection between Defendant Rashawn

Austin and the victim Derrick Owens. The relationship, link, and/or connection

among Defendant Rashawn Austin, Traylon Austin, and victim Derrick Owens may

be the motive for Defendant Rashawn Austin shooting and killing victim Derrick

Ownens (i.e., victim Derrick Owens stole from Traylon Austin, a person associated

in some manner with Defendant Rashawn Austin).


      The record, taken as a whole, contains support for the convictions and should

not be disturbed on appeal. This Court acted within its discretion in finding that the



                                         32
  evidence proved beyond a reasonable doubt that the Defendant was guilty of

  Murder in the Third Degree. In light of the nature of the shooting, the court could

  have convicted Defendant Austin of Murder in the First Degree since a general

 charge of Criminal Homicide was charged in the Information under 18 Pa. CS.A.

 Section 250l{a). However, the court gave Defendant Austin the benefit of the

 doubt in light of where the bullet initially entered the decedent's right upper arm

 arguably a non- vital area of the body. TT, VoJ. 11 at p. 112, I. 12 through p. 113, 1.

 4 and p. 140, I. 8 through p. 141, I. 15 and Commonwealth Exhibit 53.


                      Statement of Errors on App�al - 1.ssue B

       The Defendant's second alleged error on appeal is that the trial court

reached a verdict that was contrary to the weight of the evidence in finding Mr.

Austin guilty of Third Degree Murder due to the unreliable and contradictory

testimony of Sydney Smith. A verdict based upon her testimony amounts to no

more than surmise or conjecture. However, this assertion offers Defendant no

greater refuge than his prior claim. The determination of whether a verdict is

against the weight of the evidence is governed by the following standard:

            The weight of the evidence is exclusively for the finder of
            fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its


                                         33
               judgment for that of the finder of fact. Thus, we may only
               reserve the lower court's verdict if It so contrary to the
               evidence as to shock one's sense of justice.

  Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).


        With respect to a weight challenge based on the credibility of witness

 testimony, the Superior Court has held:


              When the challenge to the weight of the evidence is
              predicated on the credibility of trial testimony, our review
              of the trial court's decision is extremely limited.
              Generally, unless the evidence is so unreliable and/or
              contradictory as to make any verdict based thereon pure
             conjecture, these types of claims are not cognizable on
             appellate review. Moreover, where the trial court has
             ruled on the weight claim below, an appellate court's rule
             is not to consider the underlying question of whether the
             verdict is against the weight of the evidence. Rather,
             appellate review is limited to whether the trial court
             culpably abused its discretion in ruling on a weight claim.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007), quoting

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004).


      Further, a challenge to the weight of the evidence concedes that sufficient

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

believed. Commonwealth v. Char/ton, 902 A.2d 554, 561 (Pa. Super. 2006). A new

trial should not be granted because of a mere conflict in the testimony or because

                                         34
  the judge on the same facts would have arrived at a different conclusion.

  Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). When a defendant claims that

 a verdict is against the weight of the evidence, the role of the trial judge is to

 determine that notwithstanding all the facts, certain facts are so clearly of greater

 weight that to ignore them, or to give them equal weight with all the other facts, is

 to deny justice. Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) appeal

 denied, 62 A.3d 378 (Pa. 2013).


       This Court's finding that Sydney Smith was a credible witness is supported by

the evidence of record, as fully set forth above in Discussion A. Specifically, Ms.

Smith identified the shooter based on the time when their eyes locked immediately

after the shooting; she was very close to the shooter; and was able to see his face.

The circumstantial evidence of the phones location at or near the time of the

shooting corroborates the testimony of Sydney Smith. The verdict was not contrary

to the weight of the evidence and the conviction should stand.




                                        35
                                CONCLUSION

Based on the foregoing, the judgment of sentence should be AFFIRMED.




                                   36
