J-S06005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
                          v.              :
                                          :
                                          :
 BRANDON MEADE                            :
                                          :
                                          :    No. 3322 EDA 2016
                    Appellant

         Appeal from the Judgment of Sentence September 27, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011126-2015

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

MEMORANDUM BY BOWES, J.:                               FILED JUNE 18, 2018

       Brandon Meade appeals from his judgment of sentence of life

imprisonment without parole imposed after a jury convicted him of first-

degree murder and possession of an instrument of crime (“PIC”). We affirm.

       The trial court offered the following summary of the evidence admitted

at trial.

             On August 31, 2015, [Appellant] shot the decedent, Agatha
       Hall, his girlfriend, one time in the head, killing her and staging
       the death to appear as a suicide.

             Agatha Badio is the decedent’s aunt. She testified that the
       decedent, a Liberian refugee, was born in Ghana and moved to
       the United States in 2005 when she was twelve. She first lived
       with her grandmother in Minnesota before moving to Philadelphia
       to start the 10th grade and live with one of Badio’s brothers, the
       decedent’s uncle. Badio had spoken with the decedent for the last
       time a few days before her murder and testified that she was
       planning to come to Minnesota to visit her family in the week
       following her death. According to Badio, the decedent was happy
       the last time she spoke to her and in the months preceding her
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     murder. She testified that she had received a phone call from her
     mother (the decedent’s grandmother) on August 31, 2015
     informing her that “Kiwi” (Badio’s nickname for the decedent) was
     dead. After receiving the phone call, Badio flew to Philadelphia
     from Minnesota to identify the decedent’s body.

            Robert Lay testified that he is a registered coordinator at
     Temple University. He was a friend of the decedent. They met in
     the fall of 2014 and commenced a sexual relationship which lasted
     for that semester and after which they remained friends. Lay
     described the decedent as “very bubbly . . . always smiling, always
     joking.”     After that semester, during the winter break, the
     decedent had gone to Australia to see her mother, who was ill.
     Her mother passed away during the trip. Lay kept in touch with
     the decedent while she was in Australia and testified that,
     although she was upset about her mother’s death, she was also
     relieved that her mother’s illness was over and was “back to her
     bubbly state” upon returning from the trip. Lay added that the
     decedent did not want to continue seeing him after the trip
     because she had entered into a relationship with someone else.

            Lay testified that they did have one more sexual encounter
     about a month after she started this new relationship. Two or
     three days after this encounter, he received a frantic phone call
     from the decedent. She sounded scared and worried; she told
     him that her boyfriend had gone through her text messages, and
     she kept asking if her boyfriend had tried to contact him. The
     second-to-last phone call between Lay and the decedent took
     place at the end of June, 2015. At the time of the phone call, the
     decedent seemed very happy and she said she was doing very
     well. Their final phone call was a Sunday night in late August,
     2015. Lay was returning a call from the decedent that he had
     missed the night before. She initially seemed calm but then
     started whispering “call you back, call you back” and gave Lay the
     impression that she was worried, scared, and that there was
     something wrong before she hung up. After this phone call, he
     received a phone call from the decedent’s number but it was a
     man who was yelling at him, cursing, and threatening him. Lay
     testified that: “He said ‘ni**er’ a lot. . . . He said you are the
     person who was fu**ing Agatha last year. I read your text
     messages. She is the one who sucked your d*ck . . . the male on
     the phone just kept saying I know who you are. I hope you
     graduate and move far, far away because I am going to see you
     when I see you ni**er.” The following day, upon hearing that the

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     decedent had committed suicide, Lay went to Temple Police
     Station and gave them a statement because he did not think the
     decedent had killed herself.

            Abigail Osei-Tutu was the decedent’s roommate.        She
     testified that she moved into the two-bedroom apartment where
     the murder occurred in August of 2014. Osei-Tutu told the [c]ourt
     that there was a back door leading to the outside from the
     decedent’s rear bedroom which was always locked and that it was
     only possible to open it from the inside. That back door led to a
     flight of outside steps which ended in the back yard. She also
     testified that one could lock their bedroom doors from the inside
     without a key, but you needed a key to open them from the
     outside (i.e. in the hallway).

            Osei-Tutu testified that the condition of the decedent’s
     bedroom as shown in the photographs taken of the scene was not
     how the decedent kept it; rather, it was much too messy. The
     mirror on the wall, which was crooked, was not how the decedent
     would have left it, and there were never clothes or any other items
     on the back outside stairs until the night of the murder. She
     identified a basket on the back stairs as the decedent’s hamper.
     She had never noticed a bullet hole in the decedent’s bedroom
     wall prior to the murder. Osei-Tutu knew [Appellant] as the
     decedent’s boyfriend, whom the decedent had started dating upon
     returning from Australia in the winter of 2015.

            Osei-Tutu testified that the decedent had been considering
     marrying a friend so that he would not lose his visa, but after the
     decedent spoke to [Appellant] about it on the phone, the decedent
     spent the rest of the evening crying and very upset. Osei-Tutu
     went to the decedent’s room and found it locked, so she knocked
     and told the decedent to open her door. When the decedent
     opened her door, she was still crying and she went to her bed and
     put about five over-the-counter (i.e. Tylenol, etc) painkillers in her
     mouth and then spit them right back out. A couple of days after
     this incident, the decedent seemed normal to Osei-Tutu and was
     excited about the start of the fall semester.

           Osei-Tutu testified that on August 31, 2015, she and her
     boyfriend, Daniel Boateng, were returning to her apartment from
     a Kevin Hart show when they encountered [Appellant] opening the
     door to the vestibule (from the hallway), apparently on his way
     out of the building. He appeared startled, did not say anything to

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     Osei-Tutu or her boyfriend, turned around, and started banging
     on the decedent’s bedroom door saying: “Agatha, open the door!
     Agatha, open the door! . . . I forgot my gun in there. Agatha, if
     you don’t open the door, I’m going to get my people after you!”
     Osei-Tutu and Boateng went to the former’s room and sat on her
     bed. Within a few seconds, [Appellant] stopped banging on the
     door and, a few seconds after that, Osei-Tutu and Boateng heard
     a gunshot. After the gunshot Osei-Tutu testified that she heard
     [Appellant] start yelling “Why did she do that? Why did she do
     that? Oh my god!”

           After the gunshot, Boateng pushed Osei-Tutu into her closet
     to prevent her from leaving the apartment and possibly being
     injured. [Appellant] then came into her room, still yelling, and
     put his arms around Boateng. Boateng pushed [Appellant] away
     and Osei-Tutu ran out of the apartment when she realized
     [Appellant] did not have his gun on his person. Boateng followed
     closely behind and they ran out of the building. Osei-Tutu called
     the police to report that the decedent had shot herself because
     that was what [Appellant] told her had happened. Osei-Tutu went
     to the police station with the police that morning and gave a
     statement, which she reviewed and signed.         She gave an
     additional two statements to homicide detectives: one on
     September 9, 2015 and another on May 3, 2016.

            Daniel Boateng testified that he is the boyfriend of Abigail
     Osei-Tutu. He described the decedent as a very easy-going and
     joyful person. He knew [Appellant] to be the decedent’s boyfriend
     but, outside of the night of the murder, he had only seen him one
     other time.     Boateng testified that he and Osei-Tutu were
     returning home from a Kevin Hart show when they ran into
     [Appellant] at the 2nd interior (vestibule) door to the apartment.
     [Appellant] seemed startled and said that he had forgotten
     something in the decedent’s room and was going to walk back
     with them to get it.

           Boateng and Osei-Tutu went to Osei-Tutu’s room and closed
     the door. [Appellant] went to the decedent’s bedroom door,
     knocked loudly, and said “I forgot my gun. Open the door. I am
     going to get my people on you if you don’t open the door.”
     [Appellant] was shouting at a very high volume and Boateng never
     heard the decedent’s voice while [Appellant] was knocking on the
     door. After the door opened, Boateng heard a very slight murmur
     (the gender of which he could not determine) and then a gunshot.

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     After he heard the gunshot, Boateng pushed Osei-Tutu into her
     closet because he did not know who was shot or who had a gun
     and he did not want her to run out of the room. [Appellant] then
     came into the room and put his arms around Boateng saying “She
     killed herself!” at which point Osei-Tutu ran out of the room while
     telling Boateng to run. Boateng pushed [Appellant] away and
     followed Osei-Tutu, noticing that [Appellant] had left blood stains
     on the top of his shirt. When they exited the room [Appellant]
     was flailing on Osei-Tutu’s bed saying: “I can’t believe she did that
     to herself!”

           Giselle Spencer, a close friend of the decedent, testified that
     she had known the decedent for three years. She and the
     decedent had worked together at the Wawa on 11th and Arch
     Streets. The decedent continuously told Spencer that [Appellant]
     had a temper and did not trust her. On May 29, 2015, the
     decedent called her sounding hysterical. The decedent told her
     that [Appellant] had found messages on her phone from another
     male and that they had had a big fight, after which [Appellant]
     had slammed her against a wall. The decedent asked to stay at
     Spencer’s house. Spencer testified that, while at her house, the
     decedent took a photo of the two of them and posted it to
     Instagram. The decedent told Spencer that she had to do this
     because [Appellant] would not trust that she was staying at
     Spencer’s house.

            Spencer further testified that, in the summer of 2015, she
     went to the mall with the decedent and [Appellant]. Spencer and
     the decedent were walking together and [Appellant] followed
     behind them. Two males came out of a store and made flirtatious
     remarks directed at the decedent. [Appellant] walked up and
     lifted his shirt revealing a gun to the males. The decedent asked
     Spencer to go get [Appellant] away from the males because he
     had a bad temper.

           Spencer testified that she hung out with the decedent about
     a week before she was murdered when they went to a hookah bar
     and bowling. She testified that the decedent was happy and
     excited about starting school the following week and finishing
     college.

          Officer Matthew Market of the Philadelphia Police
     Department testified that, at around 12:35 a.m. on August 31,
     2015, he received a police radio call reporting that a person had

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     been shot at the corner property at 2300 Park Avenue and York
     Street (which is East of Broad Street, just off of the Temple
     University campus). He was only a few blocks from the location
     of the murder at the time and arrived within minutes. When he
     arrived there were several men and women standing outside of
     the house in question, including Officer [Julie] Waymack, Abigail
     Osei-Tutu, Daniel Boateng, and [Appellant].

            Officer Market testified that he and Officer Waymack first
     tried the front door of the house but were informed by the people
     standing outside that they had locked themselves out. He and
     Officer Waymack then quickly went to the back of the house and
     tore down part of a stockade fence so that they could access the
     back door and get to the decedent as they did not know the extent
     of her injuries. Officer Market observed that [Appellant] was not
     helping to get into the apartment; instead he was standing in front
     of the building and yelling “Why did she do that? Why? Why?
     Why?” Officer Market found the back door unlocked and that the
     stairs leading from the door to the back yard were strewn with
     clothes and objects that appeared to have been thrown there. By
     this time [Appellant] had moved from the front of the house to 8-
     10 feet behind Officers Market and Waymack and was still acting
     hysterical.

           Officer Market testified that when he entered the apartment
     there were clothes and debris scattered around. He also noticed
     that a mirror on the wall was tilted. He pulled an Ikea-style
     dresser off of the decedent and found her in a fetal position, laying
     on her left side with a pink towel wrapped around her waist. She
     was bleeding profusely from a wound on her forehead and there
     was a pool of blood on the floor. She had no pulse. Officer Market
     found a gun with blood on it laying next to the decedent.

           Officer Market testified that the front door to the bedroom,
     which led to the first floor hallway, was locked from the inside. It
     was not a deadbolt, which requires a key to lock from the outside,
     but a door handle lock that could be locked by someone on their
     way out without a key. He found one fired cartridge casing (FCC)
     in the middle of the bed among some clothes and noticed a bullet
     hole in the wall about four feet above the bed. When [Appellant]
     was brought to the district precinct for questioning, he continued
     to act hysterical and rolled on the floor in the hallway.




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            Officer Gary Guaraldo, a member of the Crime Scene Unit,
     testified that at 1:28 p.m. on the afternoon of September 3, 2015,
     he was called by the Homicide Division and asked to process the
     scene at 2359 North Park Avenue. Officer Guaraldo testified that
     there was a bullet hole in the rear bedroom wall, 6 feet and 4
     inches from the floor. In order to find whatever bullet fragments
     may have remained, Officer Guaraldo removed the sheetrock
     around the bullet hole and removed the insulation between the
     sheetrock and the cinderblock of the exterior wall. When this
     proved fruitless, he ran a metal detector over the insulation he
     had removed and recovered the lead core and part of the copper
     jacket from the projectile.

             Officer Willie Roundtree testified that he and his partner,
     Officer [Jonathan] Mangual, responded to a police radio call at
     12:35 a.m. on the morning of August 31, 2015. Officer Roundtree
     testified that when he arrived on the scene, [Appellant] was
     pacing back and forth in the back yard of the property and tried
     to walk away when approached by Officers Roundtree and
     Mangual. Officer Roundtree testified that he asked [Appellant] if
     he was okay and [Appellant] said “No, that was my baby.” Officer
     Roundtree then asked if the decedent was suicidal before and
     [Appellant] said: “No, she never was. Am I able to leave? Am I
     able to leave? That was my baby. Oh my God, oh my God.”
     Officer Roundtree asked [Appellant] if he and the decedent had
     had an argument that day and [Appellant] said that they had had
     “a little argument but we was at the beach all day and it wasn’t
     nothing that serious.” When Officer Roundtree asked [Apellant]
     what the argument was about, [Appellant] said: “Oh my God, my
     baby, my baby, why would she do that to herself? Why did she
     do that to herself?” At this point Officer Roundtree’s partner
     suggested taking [Appellant] to the detectives to give a statement
     and [Appellant] threw himself on the ground and loudly said: “My
     baby, my baby. I just want to leave. I just want to go!”

           Officer Jonathan Mangual testified that [Appellant]
     repeatedly asked if he could have his gun back before being placed
     in the patrol car at the scene of the murder. In a statement of
     Officer Mangual’s which was read into the record by the
     Commonwealth, he stated that he had wanted to take [Appellant]
     to the Homicide Division because of his suspicious behavior,
     repeated requests for his gun, and his desire to get back into the
     decedent’s room to retrieve it.


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           Detective Neal Goldstein of Central Detectives testified that
     in the early morning hours of August 31, 2015, he was assigned
     to investigate the reported suicide of a young woman at 2359
     North Park Avenue. He identified photos he took of the crime
     scene when he first arrived and testified that he submitted the
     9mm FCC found on the bed to the Firearms Identification Unit. No
     suicide note was found at the scene. Detective Goldstein testified
     that the case was transferred from Central Detectives to Homicide
     on September 3, 2015.

            Detective Richard Bova testified that he interviewed
     [Appellant] at Central Detectives at 2:30 a.m. on the morning of
     August 31, 2015. After the interview [Appellant] reviewed the
     statement for errors and signed his name at the bottom.
     Detective Bova read the statement in its entirety into the record.
     In it, [Appellant] stated that the day before the murder he and
     the decedent had taken a day trip to Rehoboth Beach, Delaware
     in her car. When they returned to her apartment they got into an
     argument because he had to leave to take care of his grandfather
     and she was upset because of losing her mother earlier in the year
     and losing a cousin in Africa that week. [Appellant] stated that
     when he was leaving he ran into the decedent’s roommates on the
     way out and told them he had to go back to her room to get his
     gun. When he got to her door, the decedent kept saying that
     [Appellant] didn’t care about her. He then heard a shot and went
     into her room and found her on the ground. [Appellant] stated
     that he “grabbed her head” but otherwise did not touch her. He
     also stated that he did not touch his gun.

           Homicide detective Nathan Williams testified that he was
     assigned to investigate the suspicious death of the decedent on
     September 3, 2015 and that the decedent’s death was changed
     from the “suspicious” category to “murder” on the 14th or 15th of
     September, 2015.

           Dr. Sam Gulino, the Chief Medical Examiner for the City of
     Philadelphia, testified that the decedent was pronounced dead by
     the paramedics at 2539 North Park Avenue at 12:49 a.m. on
     August 31, 2015. After reviewing all of the files and photographs
     related to the autopsy of the decedent, Dr. Gulino testified that,
     within a reasonable degree of scientific certainty, that her cause
     of death was a gunshot wound to the head and her manner of
     death was homicide. The decedent had an entrance gunshot
     wound on her left forehead directly below the hairline and

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     surrounding the wound were multiple stippling marks, which are
     caused by particles of unburned gunpowder striking the skin when
     a gun is fired less than 2.5-3 feet from the recipient of the bullet.
     Dr. Gulino testified that the gun that fired the bullet that killed the
     decedent was fired at a distance of one to three feet from the
     decedent’s head. The bullet, in four fragments, was recovered
     from the left, back part of the decedent’s brain. The decedent had
     no drugs or alcohol in her system at the time of death. Dr. Gulino
     testified that none of the features of the decedent’s case were
     typical of a suicide and that suicidal gunshot wounds are almost
     always contact wounds, which this was not.

            Ms. Ann Marie Barnes, Firearms Examiner with the
     Philadelphia Police Department, testified that she conducted
     examinations of the bullet fragments removed from the
     decedent’s skull, the projectile fragments found in the decedent’s
     bedroom wall, the FCC recovered from the decedent’s bed, and
     [Appellant]’s 9mm handgun.          Based upon her microscopic
     investigations, Ms. Barnes determined that the bullet fragments
     found in the decedent’s skull and the FCC found on the decedent’s
     bed were fired from [Appellant]’s 9mm Ruger gun. The bullet
     from the wall and the bullet recovered from the decedent both had
     full metal jackets made from copper alloy material. The shot that
     killed the decedent was fired from a distance of fifteen (15) to
     twenty-two (22) inches from her head. After determining that
     distance based on the stippling and the medical examiner’s report,
     Ms. Barnes also physically confirmed the results by measuring the
     body of the decedent at the Medical Examiner’s office.

            Ms. Barnes testified that the ejection port on [Appellant’s]
     gun was on the right side, meaning that the FCCs would discharge
     to the right of the person holding the gun. If [Appellant] was
     standing above the decedent when he fired the gun at her, the
     FCC would have likely discharged onto the bed, which is where it
     was found. Ms. Barnes took distance determination test shots
     with [Appellant’s] 9mm Ruger gun at distances of 4, 6, 8, 10, 12,
     14, 16, 18, 20, 22, and 24 inches in order to determine the
     distance of the muzzle of the gun from the decedent. Ms. Barnes
     discussed the results of each distance determination test
     individually to emphasize to the jury how anything below 15
     inches distance from the muzzle of the gun to the decedent’s head
     would not have matched the diameter and particulate matter
     density of the stippling pattern on the decedent’s head. The 18
     to 22 inch distance determination range was the closet match to

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      the stippling pattern on the decedent’s head. Ms. Barnes testified
      that, after examining the body of the decedent, she determined
      that the farthest distance the decedent could have possibly held
      the muzzle of the gun from her head, when considering the
      decedent’s arm length, was between 13.75 and 14 inches.

Trial Court Opinion, 6/13/17, at 2-16 (footnote and citations omitted).

      Upon this evidence, a jury convicted Appellant of murder in the first

degree and PIC.      He was sentenced on September 27, 2016, to life

imprisonment without the possibility of parole for the murder conviction, and

no further penalty on the PIC.        Appellant filed an untimely post-sentence

motion on October 11, 2016, and a timely notice of appeal on October 18,

2016. On November 28, 2016, the trial court entered an order denying the

post-sentence motion.    Following the appointment of new counsel for the

appeal, both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents to this Court the following questions, which we have

re-ordered for ease of disposition.

      I.    Whether the evidence was insufficient to sustain verdicts of
            first[-]degree murder and PIC because even after giving the
            Commonwealth the benefit of viewing the evidence in a light
            most favorable to it as the verdict winner the
            Commonwealth did not prove beyond a reasonable doubt
            that the Appellant possessed the necessary malice for
            murder or that he possessed the firearm with the intent to
            employ it criminally.

      II.   Whether the verdict for murder was against the weight and
            credibility of the evidence and shocks one’s sense of justice
            where there was evidence of the victim’s depressed state
            due to the loss of her mother, where there was evidence
            that the victim had previously attempted suicide and where
            the evidence was slight and incredible and was rebutted that
            the Appellant had staged a scene to cover up a murder.

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      III.   Whether the court erred when it admitted evidence of the
             Appellant’s prior alleged gun incident at the King of Prussia
             Mall under Rule 404(b) as a relevant bad act to prove the
             motive of jealousy where the evidence was more prejudicial
             than probative because the alleged brandishing of the gun
             was not directed toward the victim and was not probative of
             the Appellant’s having possessed the necessary malice for
             murder.

Appellant’s brief at 6.

      We begin with the law applicable to Appellant’s claim that the evidence

was insufficient to sustain his convictions.

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      Appellant was convicted of first-degree murder and PIC.

      An individual commits first-degree murder when he intentionally
      kills another human being; an intentional killing is defined as a
      willful, deliberate and premeditated killing. To sustain a conviction
      for first-degree murder, the Commonwealth must prove that: (1)
      a human being was unlawfully killed; (2) the accused was

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      responsible for the killing; and (3) the accused acted with malice
      and a specific intent to kill. A jury may infer the intent to kill
      based on the accused’s use of a deadly weapon on a vital part of
      the victim’s body.

Id. at 306-07 (internal citations and quotation marks omitted). “A person

commits a misdemeanor of the first degree if he possesses any instrument of

crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).

      Appellant argues that the Commonwealth failed to prove that he

specifically intended to kill Ms. Hall. He contends that it is “mere speculation”

how Appellant’s gun was fired in her room. Appellant’s brief at 29. He claims

that the conclusion that Ms. Hall was shot during a struggle “designed to

prevent Ms. Hall from harming herself” is just as likely an inference from the

fact that her room was in disarray as any other conclusion. Id. He notes that

the evidence of his past incidents of jealous rage were directed at others, not

at Ms. Hall. Id. Appellant avers that the fact that it was physically impossible

for Ms. Hall to have inflicted the gun wound herself “does not eliminate that

Ms. Hall was killed during a moment of heated passion.”            Id.   Further,

Appellant contends that, because the Commonwealth did not prove that he

committed the crime of murdering Ms. Hall, there was insufficient evidence to

sustain his PIC conviction, as Appellant legally owned and carried his firearm.

Id. at 30.

      Appellant’s sufficiency claim has no merit. As an initial matter, Appellant

seeks to have this Court view the evidence in the light most favorable to

himself. That is contrary to our standard of review. See Williams, supra.

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      Properly viewing the evidence in the light most favorable to the

Commonwealth, we conclude that the following evidence clearly permitted the

jury to infer that Appellant intentionally shot and killed Ms. Hall. Ms. Hall was

shot in a vital part of the body. See, e.g., Commonwealth v. Haney, 131

A.3d 24, 36 (Pa. 2015) (discussing head as vital part of the body).          Mr.

Boateng testified that he heard the door to Ms. Hall’s room open, following

Appellant’s knocking, before the shot was fired. N.T. Trial, 9/22/16, at 109.

However, Appellant told the police that he was outside of Ms. Hall’s room when

he heard the shots fired. N.T. Trial, 9/21/16, at 174. The fatal shot was fired

from fifteen to twenty-two inches away from her head, and, based upon the

length of her arms and the size of the gun, she was unable to shoot herself

from that distance. N.T. Trial, 9/23/16, at 89-90; N.T. Trial, 9/26/16, at 20-

26.

      Rather than being the product of speculation, the jury’s verdict reflects

wholly logical inferences that Appellant, angry about Ms. Hall’s relationship

with Mr. Lay, intentionally shot her in the head and then told different lies

about how it happened in an attempt to hide his guilt. As such, Appellant’s

sufficiency challenges merit no relief.

      Appellant next argues that his convictions are against the weight of the

evidence. In order to preserve a claim that the verdict was against the weight

of the evidence, a defendant must present it in a timely post-sentence motion

or raise it “orally on the record or in writing prior to sentencing.”


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Commonwealth v. Ford, 141 A.3d 547, 556 (Pa.Super. 2016). Here, as

noted above, Appellant’s post-sentence motion was not timely, and he filed

his notice of appeal before the trial court ruled upon it. Nor does the record

reveal that he raised the claim prior to sentencing. Accordingly, Appellant

waived appellate review of his weight-of-the-evidence challenge to the

verdict.   See Commonwealth v. Thompson, 93 A.3d 478, 490-91

(Pa.Super. 2014) (finding weight claim waived, although the trial court

addressed it in its Rule 1925(a) opinion, where the claim was not raised before

the appeal such that the trial court had jurisdiction to provide the relief

requested).

      Finally, we consider Appellant’s evidentiary challenge, mindful of our

standard of review.

      The admissibility of evidence is a matter addressed solely to the
      discretion of the trial court, and may be reversed only upon a
      showing that the court abused its discretion. For there to be abuse
      of discretion, the sentencing court must have ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)

(internal citations and quotation marks omitted).

      Appellant contends that the evidence that he had showed his gun to the

two men who flirted with Ms. Hall at the mall should have been excluded under

Pa.R.E. 404(b). That Rule provides as follows.

      (b) Crimes, Wrongs or Other Acts.


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      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b). “The admission of [404(b)] evidence becomes problematic

only when its prejudicial effect creates a danger that it will stir such passion

in the jury as to sweep them beyond a rational consideration of guilt or

innocence of the crime on trial.” Commonwealth v. Diehl, 140 A.3d 34, 41

(Pa.Super. 2016).

      The Commonwealth’s theory was that Appellant’s motive in killing Ms.

Hall was jealousy. Consequently, the trial court determined that “evidence of

[Appellant’s] jealously and possessiveness with regard to the decedent was

highly probative of motive.”    Trial Court Opinion, 6/13/17, at 15.         After

balancing this high probative value with the potential for unfair prejudice, the

trial court found that the evidence was admissible, explaining as follows.

      While it might seem reasonable for a boyfriend to feel jealousy as
      a reaction to two males making flirtatious remarks towards his
      girlfriend, it is completely unreasonable and beyond the norm for
      that reaction to be brandishing a weapon towards the two males.
      Evidence was presented at trial indicating that [Appellant] called
      Robert Lay from the decedent’s phone, minutes prior to the
      murder, screaming at him and threatening him. . . . The episode
      at the mall, viewed in concert with this phone call and other
      evidence of [Appellant’s] jealousy presented at trial (his angry
      reaction to the decedent being in a car with another male, the
      decedent having to post a picture to Instagram to prove she was

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      at her friend’s house), establishes jealousy as the motive for
      [Appellant’s] murder of the decedent.

Trial Court Opinion, 6/13/17, at 15-16.

      Appellant maintains that the trial court’s reasoning is flawed. Appellant

contends that the testimony of Mr. Lay, Ms. Spencer, and Ms. Osei-Tutu was

ample evidence for the Commonwealth to offer jealousy as a motive without

the prejudicial evidence of the mall incident. Appellant’s brief at 21. Further,

he argues that “[i]t does not logically follow that if Appellant had brandished

his weapon at two third parties he would necessarily use the weapon to harm

his lover in a fit of jealousy.” Id. at 21. We disagree.

      First, Appellant’s suggestion that evidence must necessarily establish a

fact to make it relevant is incorrect. To be relevant, evidence does not have

to establish a fact of consequence to an absolute certainty; rather, it need

only have “any tendency” to make the fact “more or less probable than it

would be without the evidence.” Pa.R.E. 401(a).

      Second, the evidence in question was highly probative, and not merely

cumulative of the other testimony about Appellant’s jealousy. The incident at

the mall, unlike the other evidence of Appellant’s jealousy, connects his

feelings of jealousy with his reaching for his gun. While the men at the mall

were present to be the object of Appellant’s jealous anger at the time he felt

it, Mr. Lay was not present when Appellant confronted him about his

relationship with Ms. Hall. However, Ms. Hall was there, and she was shot by

Appellant’s gun minutes after Appellant verbally assaulted Mr. Lay.

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      Third, while it certainly did not cast Appellant in a good light, the

testimony that Appellant responded to two men’s flirtations with Ms. Hall by

walking up to them and lifting his shirt to reveal his gun is not such that “its

prejudicial effect creates a danger that it will stir such passion in the jury as

to sweep them beyond a rational consideration of guilt or innocence of the

crime on trial.” Diehl, supra at 41.

      Accordingly, the trial court did not abuse its discretion in admitting the

evidence regarding Appellant’s brandishing of his gun at the mall. See, e.g.,

Commonwealth v. Arrington, 86 A.3d 831, 844 (Pa. 2014) (affirming

admission of evidence under Rule 404(b) against defendant accused of

murdering his girlfriend, that the defendant, “attacked the brothers of prior

girlfriends harmed or threatened to harm members of his girlfriend’s family or

male acquaintances that he viewed as romantic rivals”).

      For the foregoing reasons, Appellant is entitled to no relief from this

Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18



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