J-S02035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RAYMOND HOWARD

                            Appellant                   No. 346 EDA 2016


           Appeal from the Judgment of Sentence December 18, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010746-2011
                                          CP-51-CR-001745-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                               FILED JUNE 16, 2017

       Raymond Howard appeals from the December 18, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his jury trial convictions for two counts of criminal attempt to

commit murder, two counts of aggravated assault, two counts of persons not

to possess or use firearms, and one count each of conspiracy to commit

aggravated assault, conspiracy to commit murder, carrying firearms on

public streets or public property in Philadelphia, and possession of

instrument of crime (“PIC”).1 We affirm.

       The trial court set forth the following factual history:

____________________________________________


       1
        18 Pa.C.S. §§ 901(a), 2702(a), 6105(a)(1), 903, 6108, and 907(a),
respectively. The charges stemmed from two criminal docket numbers.
J-S02035-17


           On July 11, 2011, at approximately 11:00 p.m.,
       Leonora Cusick was walking to her house from the Chinese
       store when she saw Latisha Dudley (herein “Complainant”)
       sitting on the steps of 4533 Hurley Street with two friends,
       Omar Green and William Ingram. As Ms. Cusick continued
       past the Complainant to her house . . . , [Howard] and
       “another character”, later identified as Troy Taylor, came
       out of the house across the street with a shotgun and shot
       the Complainant in the stomach.           The Complainant
       testified that Mr. Taylor said, “there the bitch go right
       there,” and gave [Howard] the shotgun before shooting
       the Complainant. When [Howard] pulled the shotgun up
       towards the Complainant he said, “bitch, you thought it
       was a joke. Shit going to get real.” The Complainant then
       yelled to Ms. Cusick, “Cookie, Cookie, he shot me. Call
       911.” [Howard] then ran back inside the house at 4526
       Hurley Street. Ms. Cusick saw blood coming out of the
       Complainant’s stomach and then went inside to call 911.2
       Ms. Cusick stated that [Howard] was wearing a “wife-
       beater and shorts.” She later saw [Howard] come back
       outside, sit next door, and “acted like he was one of the
       people that was around.”
          2
             Counsel[] stipulated to the following:          The
          Complainant was admitted to Temple University
          Hospital on July 12, 2011 with a shotgun wound to
          her stomach. She was immediately admitted to the
          ICU and underwent several surgeries, which included
          the repair of her small stomach, her small bowel, her
          sacral, and the repair of her colon. Complainant also
          underwent tracheotomy for ventilator-dependent
          respiratory failure, as she could no longer breathe on
          her own. She also had an exploratory surgery of her
          lung, upper half intestinal surgery, skin graft, and
          other surgeries. Complainant was not discharged
          until September 2, 2011.

          Officers Jason Hernandez and Officer Carl Diaz both
       responded to a radio call at around 11:30 p.m. for a
       shooting that occurred on the 4500 block of Hurley Street.
       They were first waved over to 4527 Hurley Street where
       they saw the Complainant on the sofa. At that time,
       people were pointing across the street to the house at
       4526 Hurley Street. After their conversation with the
       people on the porch of 4526 Hurley Street, they received a

                                  -2-
J-S02035-17


           radio call giving them flash information about a black male
           with a blue hat, white tank top, and dark colored jeans or
           capris. Officer Hernandez testified that there were only a
           few people outside, one of which was [Howard]. He saw
           that [Howard] met the flash information and approached
           him. The officers asked him if he had seen the shooting
           and he responded that he did not. The officers then asked
           what brought him to the block and he stated that he was
           going to visit a friend at 4526 Hurley Street. The officers
           received additional information over the radio that
           indicated that the male the officers were talking to,
           [Howard], shot the Complainant. At that point [Howard]
           was apprehended and transported to East Detectives.
           Officer Diaz testified that he later saw three shotgun shells
           on the sidewalk and one in the street in front of 4528
           Hurley Street.

               Officer Jose Carta[]gena received a radio call for a
           person with a gun on the 4500 block of Hurley Street.
           Once on scene, he received a separate call for 4500 Tampa
           Street. When he arrived, he encountered Omar Green
           lying on the ground suffering from gunshot wounds.[2] He
           described a pellet wound to the right side of his face,
           bleeding from his back, and a serious wound to his inner
           thigh. Mr. Green was then transported to Temple Hospital.

              Detective [Glenn] MacClain of Special Investigations
           arrived to the 4500 block of Hurley Street at about 12:00
           midnight on July 12, 2011, with Detective Rash.[3] He
           drew the crime scene sketch and interviewed Ms. Cusick to
           identify the shooter in the photo array. She placed her
           hand over the top of the hair of [Howard] and identified
           him as the one who shot the Complainant. A search
           warrant was later conducted on 4526 Hurley Street where
           no weapon or ballistic evidence was recovered. However,
           there was an ID/paperwork present that had the name
           Lionel Tyson on it.
____________________________________________


       2
          At the time of the shooting, Green had been with Dudley on the
steps in front of Dudley’s house.
       3
           Detective Rash’s first name is not in the certified record.



                                           -3-
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             The Commonwealth next called Troy Taylor, also known
          as “Lionel Tyson”, to testify. On October 6, 2015, Mr.
          Taylor pled guilty to conspiracy to commit murder, and
          attempted murder. Mr. Taylor lived at 4526 Hurley Street
          back on July 11, 2011. Earlier in the day on July 11, 2011,
          Brian Daniels, the Complainant’s boyfriend, shot at Mr.
          Taylor. He testified that [Howard] was not at 4526 Hurley
          Street that night.      He further stated that basically
          everyone was wearing white tee shirts and tank tops the
          night of the shooting because it was summertime. Mr.
          Taylor testified that Eric Tyson - his brother - shot the
          Complainant, rather than [Howard].        His brother was
          wearing a white tank top and dark blue capris. He stated
          that [Howard] was wearing light blue shorts. Although Mr.
          Taylor said his brother was the shooter, he identified
          [Howard] at a photo array and pled guilty to facts that
          incriminate [Howard] as his co-conspirator.

             Earlier on July 11, 2011, Officer Stephan and his
          partner received a radio call for a different shooting that
          occurred on the 4500 block of Hurley Street. Their vehicle
          was the first that arrived on location. They were first met
          by Mr. Taylor who stopped them in the middle of the street
          and described the shooter as a “black male 5’8 to 5’10, 30
          to 35 years old, dark complected, heavy build, wearing a
          white tee and black pants.” The SWAT team later arrived
          on the scene and did a complete sweep of 4533 Hurley
          Street. No weapons or persons were found inside the
          residence. Mr. Taylor provided the full story of the events
          on July 10th and July 11th of 2011. He stated that he got
          into a verbal argument with a man over a parking spot on
          the street, then that man went into 4533 Hurley Street,
          and came back out with a gun. The man proceeded to
          chase him around the minivan while shooting at him. The
          man, later identified as Brian Daniels, got a few rounds off
          and then ran back into 4533 Hurley Street.

Opinion, 3/23/16, at 3-6 (“1925(a) Op.”) (internal citations omitted).

     On October 13, 2015, a jury convicted Howard of the above-mentioned

crimes.   On December 18, 2015, the trial court sentenced Howard to the

following consecutive sentences: 10 to 20 years’ incarceration for the first


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attempted murder conviction; 10 years’ probation for the second attempted

murder conviction; 10 to 20 years’ incarceration for the conviction for

conspiracy to commit murder; and 5 to 10 years’ incarceration for the

conviction for possession of firearm prohibited.4      On December 23, 2015,

Howard filed a post-sentence motion, which the trial court denied on January

4, 2016. On January 16, 2016, Howard filed a timely notice of appeal.

       Howard raises the following claims on appeal:

           I. Is [Howard] entitled to an Arrest of Judgment on all
           charges and especially with regard to Criminal Attempted
           Murder and Conspiracy to Commit Murder and where there
           is insufficient evidence to sustain the verdict?

           II. Is [Howard] entitled to a new trial as the greater weight
           of the evidence does not support the verdict?

           III. Is [Howard] entitled to a new trial as the result of
           Court error when the Court prohibited cross-examination
           of forensic analyst Gregory Van Alstine as to his personal
           experience in successfully recovering DNA evidence from
           shotgun shells in a specific case?

           IV. Is [Howard] entitled to a new trial as the result of
           Court error where the Court prohibited cross-examination
           of Commonwealth witness Lionel Tyson as to his bias and
           prejudice?

           V. Is [Howard] entitled to a new trial as the result of Trial
           Court error where the Court made several errors with
           regard to the same issue and where the Court failed to
           give a curative instruction based on mid-trial testimony of
____________________________________________


       4
        The convictions for aggravated assault and conspiracy to commit
aggravated assault merged with the attempted murder conviction for
sentencing purposes. The trial court imposed no further penalty for the
second firearms not to be carried without a license conviction or the
convictions for carrying firearms on public streets in Philadelphia and PIC.



                                           -5-
J-S02035-17


         certain detectives that they were aware of the identity of
         certain 911 callers and where the evidence was never
         relayed to the defense?

Howard’s Br. at 3.

      Howard first challenges the sufficiency of the evidence to support his

attempted murder and conspiracy convictions.

      We apply the following standard when reviewing a sufficiency of the

evidence claim:

         [W]hether viewing all the evidence admitted at trial in the
         light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.           In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.      Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some

alterations in original).




                                     -6-
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      Howard claims the evidence was insufficient to support the attempted

murder conviction because the Commonwealth failed to establish he had a

specific intent to kill or that the shooting was premeditated.

      “A person may be convicted of attempted murder ‘if he takes a

substantial step toward the commission of a killing, with the specific intent in

mind to commit such an act.’” Commonwealth v. Jackson, 955 A.2d 441,

444 (Pa.Super. 2008) (quoting Commonwealth v. Dale, 836 A.2d 150,

152 (Pa.Super. 2003)). Further:

         “The mens rea required for first-degree murder, specific
         intent to kill, may be established solely from circumstantial
         evidence.” Commonwealth v. Schoff, 911 A.2d 147,
         160 (Pa.Super.2006). “[T]he law permits the fact finder to
         infer that one intends the natural and probable
         consequences of his acts[.]” Commonwealth v. Gease,
         548 Pa. 165, 696 A.2d 130, 133 (1997).

Id. (alterations in original). “Specific intent to kill can be inferred from the

use of a deadly weapon upon a vital part of the victim’s body.”

Commonwealth v. DeJesus, 860 A.2d 102, 106 (Pa. 2004).

      The evidence established that: Taylor had a prior argument with

Dudley and her boyfriend; Taylor gave Howard the gun and said, “there the

bitch go right there”; Howard stated, “bitch, you thought it was a joke. Shit

going to get real”; Howard fired the gun four times at Dudley and Green; a

bullet struck Dudley in the stomach; and pellets struck Green on the right

side of his face, his back, and his thigh, causing a serious wound on his inner

thigh. This evidence was sufficient to establish that Howard had a specific

intent to commit murder.     See DeJesus, 860 A.2d at 107 (“the fact that

                                     -7-
J-S02035-17



appellant shot the victim in vital body parts independently warranted the

jury finding of a specific intent to kill”); Jackson, 955 A.2d at 445 (sufficient

evidence of attempted murder where appellant ran from detective, then

turned, looked and raised his arm toward detective).5

       Howard also claims there was insufficient evidence to establish

conspiracy because the Commonwealth failed to establish there was an

agreement between Howard and Taylor.

       Criminal conspiracy is defined as follows:

           A person is guilty of conspiracy with another person or
           persons to commit a crime if with the intent of promoting
           or facilitating its commission he:

           (1) agrees with such other person or persons that they or
           one or more of them will engage in conduct which
           constitutes such crime or an attempt or solicitation to
           commit such crime; or

           (2) agrees to aid such other person or persons in the
           planning or commission of such crime or of an attempt or
           solicitation to commit such crime.

18 Pa.C.S. § 903(a). The conspiracy statute further provides:


____________________________________________


       5
         Howard does not make a separate intent to kill argument with
respect to Green. Cf. 18 Pa.C.S. § 303(b)(1) (“When intentionally or
knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the intent or the
contemplation of the actor unless: (1) the actual result differs from that
designed or contemplated as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury
or harm designed or contemplated would have been more serious or more
extensive than that caused[.]”).




                                           -8-
J-S02035-17


           No person may be convicted of conspiracy to commit a
           crime unless an overt act in pursuance of such conspiracy
           is alleged and proved to have been done by him or by a
           person with whom he conspired.

Id. § 903(e).6 This Court has stated that:

           [a]n agreement can be inferred from a variety of
           circumstances including, but not limited to, the relation
           between the parties, knowledge of and participation in the
           crime, and the circumstances and conduct of the parties
           surrounding the criminal episode. These factors may
           coalesce to establish a conspiratorial agreement beyond a
           reasonable doubt where one factor alone might fail.

Commonwealth v. Irvin, 134 A.3d 67, 76 (Pa.Super. 2016) (quoting

Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)).

       Here,    the   Commonwealth         presented   sufficient   evidence   of   an

agreement to commit murder where Taylor handed Howard a shotgun and

stated, “there the bitch go right there,” and Howard proceeded to shoot

Dudley.

       Howard next argues that the verdicts as to attempted murder and

conspiracy were against the weight of the evidence.

       This court reviews a weight of the evidence claim for an abuse of

discretion.    Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

“Because the trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give the gravest consideration to

the findings and reasons advanced by the trial judge when reviewing a trial
____________________________________________


       6
        Howard does not make a separate argument concerning the overt-
act requirement.



                                           -9-
J-S02035-17



court’s determination that the verdict is against the weight of the evidence.”

Id. at 1055.

      A trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.”      Id.   “Rather, ‘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 facts is to deny justice.’”      Id. (quoting Commonwealth v.

Widmer, 744 A.2d 745, 752 (Pa. 2000)). “[A] new trial should be awarded

when the jury’s verdict is so contrary to the evidence as to shock one’s

sense of justice and the award of a new trial is imperative so that right may

be given another opportunity to prevail.” Id. (quoting Commonwealth v.

Brown, 648 A.2d 1177, 1089 (Pa. 1994)).

      Here, the trial court found:

         [Howard] had the requisite intent for the charges at issue.
         Additionally, the Commonwealth established the required
         elements of all charges through credible witness
         testimony.    Based on the Commonwealth’s witnesses,
         [Howard] and Mr. Taylor co-conspired to shoot the
         Complainant, which resulted in serious bodily injury to her
         and Mr. Green. The verdict did not shock one’s sense of
         justice. Therefore, the verdict was not against the weight
         of evidence and [Howard] is not entitled to a new trial.

1925(a) Op. at 12-13.       We conclude the trial court did not abuse its

discretion in denying Howard’s weight of the evidence claim.

      In his third issue, Howard argues that the trial court erred because it

did not permit him to cross-examine forensic analyst Gregory Van Alstine.

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He claims that, although he stipulated to the admission of Van Alstine’s

report, the cross-examination would have revealed that the report’s

conclusions were meritless or lacked foundation.

       At trial, Howard stipulated to the admission of Van Alstine’s report:

           [Assistant District Attorney]: . . . What’s been marked,
           Your Honor, as C-25, crime scene swab, a DNA report,
           there has [been] a stipulation by a[nd] between counsel
           that if Officer Tull were called to testify, he examined those
           shotgun shells for latent prints. He was unable to find any
           latent prints on the shotgun shells. He took a DNA swab of
           all prints submitted by the defendant and he submitted it
           to the DNA Forensics Lab. The Forensics Lab then ran that
           DNA and they were unable to obtain DNA from the swabs.
           The results were either no or inconclusive for the presence
           of DNA. There is a further stipulation that that is not
           under the common results.

           THE COURT: So-stipulated, Counsel?

           [Defense Counsel]: Yes.

N.T., 10/9/15, at 104-05.          The Commonwealth then rested and defense

counsel moved three exhibits into evidence and stated, “[t]here is no

evidence on behalf of the defense today, Your Honor.” Id. at 109. Howard’s

appellate brief does not cite to any place in the record where the defense

asked to question Van Alstine. Because he stipulated to the report and did

not seek to examine Van Alstine at trial, Howard waived this claim.7

____________________________________________


       7
        Further, even if he had not waived this claim, we would find it lacked
merit. The trial court concluded: “It is clear that [Howard] stipulated to the
C-25 DNA report, therefore, agreeing to all the facts as proven. The proven
facts in the report are uncontested and have no need for the cross-
examination of the forensic analyst.” 1925(a) Op. at 20. We conclude the
(Footnote Continued Next Page)


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J-S02035-17



      Howard next argues the trial court erred when it prohibited cross-

examination of Taylor regarding the sentence Taylor faced pursuant to the

sentencing guidelines.

      We apply the following standard to trial court decisions regarding

limitations to cross-examinations:

          “A trial court has broad discretion to determine whether
          evidence is admissible,” and a trial court’s ruling regarding
          the admission of evidence “will not be disturbed on appeal
          unless that ruling reflects manifest unreasonableness, or
          partiality, prejudice, bias, or ill-will, or such lack of support
          to be clearly erroneous.” Commonwealth v. Huggins,
          68 A.3d 962, 966 (Pa.Super. 2013). In addition, the trial
          court has broad discretion regarding “both the scope and
          permissible limits of cross-examination.” Commonwealth
          v. Briggs, []12 A.3d 291, 335 ([Pa.] 2011). “The trial
          judge’s exercise of judgment in setting those limits will not
          be reversed in the absence of a clear abuse of that
          discretion, or an error of law.” Id.

Commonwealth v. Rosser, 135 A.3d 1077, 1087 (Pa.Super. 2016).8

      The trial court permitted Howard to cross-examine Taylor regarding his

plea agreement with the Commonwealth and his sentence, but precluded

Howard from questioning Taylor                   regarding   the   applicable   sentencing

guidelines.

                       _______________________
(Footnote Continued)

trial court did not abuse its discretion.  See Commonwealth v. Hoover,
107 A.3d 723, 729 (Pa. 2014) (determinations as to admissibility of
evidence reviewed for abuse of discretion).
      8
        Howard argues that the trial court abused its discretion by limiting
the cross-examination. He does not argue that such limitation violated his
Sixth Amendment right to confront witnesses.



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     Prior to Taylor’s testimony, the following exchange occurred:

       THE COURT: And what we do need to address is the
       maximum sentence and fines.          I don’t think that is
       necessary for the jury to know that.

       [ADA]: That’s fine.

       THE COURT: Considering we’re looking at some of those
       same charges here.

       [ADA]: The sentence that he received, Your Honor, I think
       that is admissible, Your Honor. Not the maximum, but the
       sentence that he received. I think it’s directly relevant to
       – obviously, the that he’s in, the time that he took. It’s
       not like he got out on bail because he pled guilty or that
       he walked home. I think it definitely shows how solemn
       this is as a process. It is not something somebody would
       take lightly.

       [DEFENSE COUNSEL]: I’m alright with it, Your Honor.

       THE COURT: If he’s all right with it, that’s fine.

       [DEFENSE COUNSEL]: As long as we can talk about the
       guideline being 210 months.

       THE COURT: See that’s the problem. I do not want all
       that because I don’t want that in the jury’s mind when
       they’re deliberating about what the penalty might be. And
       I think that is the problem.

       [DEFENSE COUNSEL]: Well I think the issue is he received
       a very light sentence.

       THE COURT: I think that what we can say is that he
       received a period of incarceration.

       [ADA]:    And I’m going to ask him if he’s currently
       incarcerated.

       THE COURT: That’s fine, did he receive a period [of]
       incarceration as a result of this plea. But we’re not going
       to get into the specifics.

       [DEFENSE COUNSEL]: And the fact that his sentence is 11
       years below the guidelines?

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       THE COURT: We are not even opening that door. He just
       received a period of incarceration. We are not even going
       there.

       [DEFENSE COUNSEL]: That is awesome impeachment that
       he got a great deal in this case, without even having to
       cooperate. I should at least be able to say that he got a
       significant reduction in the sentence.

       [ADA]: Well we can’t back-door in one thing if we are not
       letting in the other. If I can’t get in the exact time of his
       sentence, then we can’t be like he got a significant
       reduction in what he was going to receive. I mean, you’re
       right, the jury is going to have to know – if they will be
       thinking about what the penalties are going to be in this
       case, and if [defense counsel] is going to be implying that
       it is extremely high, or whatever, isn’t that the same exact
       thing that you want to heed against, actually bringing the
       guidelines in? Your Honor, so if he received a period of
       incarceration and he is currently incarcerated, I agree with
       you and think that is admissible.

                                    ...

       [DEFENSE COUNSEL]: He is asking for the polluted source
       instruction, the accomplice testimony that says you should
       take his testimony – he is asking that for his witness. I
       know when I try to impeach him about the terms of his
       sentence which is negotiated by the Commonwealth at a
       severe discount to the guidelines, that is perfectly
       relevant. If he’s going to say it’s a polluted source, I need
       to be able to say, yeah, you took a deal because it was
       really, really good.

       [ADA]: Judge, I should just say this as a brief point of
       clarification. I only included the polluted source charge
       because I felt it was applicable. . . . But if he doesn’t think
       that, and he is going to obviously waive that for appeal,
       thinks that that’s not an issue in this case, then I am
       certainly not going to ask you for a polluted source charge.

                                    ...

       THE COURT: . . . What I will allow is that we are not going
       to talk about specific numbers. You can talk about – you
       can bring in some of the information you wanted to elicit

                                   - 14 -
J-S02035-17


        about – your viewpoint on that, but [the ADA] can counter,
        but you just cannot counter with guidelines and numbers
        and things of that nature.

N.T., 10/9/15, at 7-12.

     Further, during defense counsel’s cross-examination of Taylor, the

following exchange occurred:

        Q: You were facing a lot of jail time in this case, weren’t
        you?

        A: Correct.

        Q: And you are going to be getting out in just a couple of
        years, correct?

        A: Correct.

        Q: Because you got a good deal?

        A: Correct.

        Q: And you got a good deal without even any kind of
        agreement to help the DA, correct?

        A: Correct.

        Q: So when we talk about deals, right, part of a deal is
        cutting your losses when you’re ahead, right?

        A: Yes.

        Q: So you saw an opportunity to avoid trial and make
        sure you were getting out in just a couple of years,
        correct?

        A: Correct.

        Q: If he had said you shot that girl with Elvis Presley, you
        would have said, yeah, for that deal I would have taken
        that.

        A: Correct.

N.T., 10/9/15, at 32-33.



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     Accordingly, Howard was permitted to elicit testimony that Taylor had

bias and motive to implicate Howard at his plea hearing because he received

a reduction in his sentence. We conclude the trial court did not abuse its

discretion in precluding the use of Taylor’s specific sentence and the

applicable sentencing guideline numbers.

     Finally, Howard contends the trial court erred in refusing to issue

missing witness and missing evidence instructions to the jury.     He claims

that Detective MacClain testified that the prosecution knew the names and

addresses of the 911 callers through a reverse-look-up system, but did not

provide them to the defense.     He further maintains that the prosecution

withheld information that three witnesses the police spoke with on the day of

the shooting no longer resided in Pennsylvania.

     Howard provides no citation to the record, no witness names, and cites

no case law in support of his argument.      Accordingly, he has waived this

claim. See Pa.R.A.P. 2119(a) (each portion of the argument section of brief

shall include “such discussion and citation of authorities as are deemed

pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(“[W]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”).

     Further, even if Howard had not waived the claim, we would conclude

that it lacks merit.    It appears Howard requested a missing witness

instruction because the Commonwealth did not call Omar Green, Maria

                                    - 16 -
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Rodriguez, or Xavier Cotto and a missing evidence or witness instruction

because he first learned that that the police department performed a reverse

look-up on the telephone numbers that called 911 on the night of the

incident during Detective MacClain’s testimony.9 N.T., 10/9/15, at 88-100.

       “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 2009).

       A missing witness adverse inference instruction states:

           When a potential witness is available to only one of the
           parties to a trial, and it appears this witness has special
           information material to the issue, and this person’s
           testimony would not merely be cumulative, then if such
           party does not produce the testimony of this witness, the
           jury may draw an inference that it would have been
           unfavorable.

____________________________________________


       9
      Detective MacClain testified that another detective called the phone
numbers who had called 911. He stated that the detective

           called the other numbers back, but we did not get
           anybody. Some we left messages, which is common.
           Sometimes we leave a message . . . and they don’t call
           back, or they call back. I believe [Cusick] was the only
           one that was contacted and maybe one other person that
           said they heard shots.

N.T., 10/8/15, at 190-91. Further, Detective MacClain testified that there
was a bench warrant out for Green’s arrest, id. at 176, and, on cross-
examination stated that Green was in “Georgia, North Carolina, or
something like that” and “[t]here are other witnesses” in Georgia too, id. at
196.



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Commonwealth v. Evans, 664 A.2d 570, 573 (Pa.Super. 1995) (quoting

Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983)). Similarly,

a missing evidence instruction is appropriate “where evidence which would

properly be part of a case is within the control of the party in whose interest

it would naturally be to produce it, and, without satisfactory explanation he

fails to do so, the jury may draw an inference that it would be unfavorable to

him.”        Clark v. Phila. Coll. of Osteopathic Med., 693 A.2d 202, 204

(Pa.Super. 1997) (quoting Haas v. Kasnot, 92 A.2d 171, 173 (1952)).

        This Court has stated:

             [F]or the “missing witness” adverse inference rule to be
             invoked against the Commonwealth, the witness must
             be available only to the Commonwealth and no other
             exceptions must apply. In order to determine whether
             a witness was “available” to a party, the trial court must
             ascertain whether the witness was “peculiarly within the
             knowledge and reach” of one party.

Evans, 664 A.2d at 574 (citations omitted).

        As to the information regarding the 911 callers, the trial court noted

that         “[t]he   Commonwealth             point[ed]   to   Pa.R.Crim.P.   Rule

573[(B)(2)](a)(i),[10] arguing that the names and addresses of witnesses are
____________________________________________


        10
             Pennsylvania Rule of Criminal Procedure 573(B)(2)(a)(i) provides:

             (a) In all court cases, except as otherwise provided in
             Rules 230 (Disclosure of Testimony Before Investigating
             Grand Jury) and 556.10 (Secrecy; Disclosure), if the
             defendant files a motion for pretrial discovery, the court
             may order the Commonwealth to allow the defendant’s
             attorney to inspect and copy or photograph any of the
(Footnote Continued Next Page)


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J-S02035-17



discretionary discovery” and argued that Howard never requested the

information. 1925(a) Op. at 23. Further, as to the missing witnesses, the

trial court noted that the Commonwealth searched for Green, Rodriguez, and

Cotto, “in good faith . . . only to find that they were in Atlanta.” Id.

      The trial court concluded that no missing witness or evidence

instructions were needed, reasoning that “missing witness and missing

evidence instructions only apply when certain evidence is in exclusive control

of the Commonwealth and when they fail to produce them or they withhold

them from counsel.”           Id.     Further, it found that a missing evidence

instruction would insinuate that the Commonwealth is purposely withholding

evidence, which was not proper here because the Commonwealth acted in

good faith in attempting to locate the witnesses. Id.

      We agree and conclude that the trial court did not err in refusing to

issue missing witness and missing evidence jury instructions.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

          following requested items, upon a showing that they are
          material to the preparation of the defense, and that the
          request is reasonable:

          (i) the names and addresses of eyewitnesses; . . .

Pa.R.Crim.P. 573(B)(2)(a)(i).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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