J-S59021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES WATSON

                            Appellant                  No. 185 EDA 2015


             Appeal from the Judgment of Sentence June 30, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006119-2013


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              Filed January 20, 2017

       Appellant, Charles Watson, appeals from the judgment of sentence

entered on June 30, 2014, following his jury trial convictions for first-degree

murder, carrying a firearm without a license, and possessing an instrument

of crime.1 Upon careful consideration, we affirm.

       The trial court briefly summarized the facts of this case as follows:

         On May 2, 2010, [Appellant] shot and killed Linwood Bowser
         (“Bowser”) while Bowser was standing with a group of
         people, including Charna Aruviereh (“Aruviereh”), near the
         corner of 28th Street and Jefferson Street in North
         Philadelphia. Immediately after [the shooting], Bowser ran
         with Aruviereh inside 2735 Jefferson Street, whereupon
         Bowser collapsed on the floor inside. Police officers quickly
         arrived on scene. One of the witnesses on scene, Edward
         Nelson, told police that two people who had witnessed the
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 6106, and 907, respectively.



*Former Justice specially assigned to the Superior Court.
J-S59021-16


        shooting had run away. The two males were apprehended
        and identified as Jamil Jackson (“Jackson”) and James
        Holley (“Holley”).        Immediately after the shooting,
        [Appellant] was not positively identified as the shooter;
        however, in the days and weeks following the shooting, the
        detectives’ investigation led them to [Appellant]. In the
        months following the homicide, Detective [John] Verrecchio
        led his team in conducting a lengthy investigation in which
        he and the other detectives interviewed witnesses to the
        events and details surrounding the shooting, including
        Aruviereh, Jackson, Holley, Kevin Cropper (“Cropper”),
        Demetrius McClennan (“McClennan”), and Estelita Maria
        Robinson (“Robinson”) and several witnesses[] made a
        positive identification of [Appellant].

Trial Court Opinion, 8/25/2015, at 3-4.

      Procedurally, the case progressed as follows:

        On June 30, 2014, the jury found [Appellant] guilty of [the
        aforementioned crimes. The trial court] sentenced
        [Appellant] to the mandatory term of life imprisonment
        without parole on the murder charge. [Appellant] received
        no further penalty on the remaining charges. On July 2,
        2014, [Appellant] file post sentence motions, which were
        denied on October 30, 2014.

        On October 30, 2014, [the trial] court received a [n]otice of
        [a]ppeal and on May 12, 2015, upon completion of the
        notes of testimony, [Appellant] was served an [o]rder
        directing him to file a concise statement of the appeal issues
        pursuant to Pa.R.A.P. 1925(b). On June 1, 2015, [the trial]
        court received [Appellant’s] 1925(b) [statement. The trial
        court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
        August 25, 2015.]

Id. at 1-2.

      On appeal, Appellant presents the following issues for our review:

        I.    Where the Commonwealth failed to file a reciprocal
              alibi notice, did the trial court abuse its discretion by
              permitting the Commonwealth to present the
              testimony of Detective Verrecchio and Brad Mitchell


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               King in rebuttal to Appellant’s alibi witnesses, to
               question said witnesses in such a manner as to
               circumvent the restrictions placed on such testimony
               by the court, and to suggest to the jury that it should
               speculate on the content of the evidence excluded by
               the court?

        II.    Should a new trial be granted because of misconduct
               during the prosecutor’s closing to the jury, which so
               affected the proceedings as to have deprived
               Appellant of his right to a fair trial and due process?

        III.   Did the trial court commit prejudicial error in
               overruling defense objection[s] to repeated testimony
               by Detective Verrecchio to the effect he had
               knowledge after unspecified investigation that other
               suspects were not guilty?

        IV.    Did the court abuse its discretion in permitting the
               prolonged display, over repeated defense objection, of
               slides of the prior statements of the Commonwealth’s
               three identification witnesses, thus unduly highlighting
               the former statements as opposed to the witnesses’
               testimony in court?

        V.     Did the trial court err by refusing Appellant’s
               requested jury instruction with respect to the
               Commonwealth’s failure to investigate his notice of
               alibi?

        VI.    Did the trial court err by        refusing Appellant’s
               requested     jury instruction     with   respect  to
               identification?

        VII.   Was the evidence so conflicting and unreliable as to
               have been insufficient to support Appellant’s
               conviction as a matter of constitutional law?

        VIII. Was the verdict against the weight of the evidence,
              given the solid and consistent alibi evidence as
              compared with conflicting and unreliable evidence
              concerning identification?

Appellant’s Brief at 3-4.


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        In his first issue presented, Appellant claims the trial court erred by

permitting the Commonwealth “to introduce rebuttal alibi testimony through

Detective Verrecchio and witness Brad Michael King [(King)]” because “the

Commonwealth defaulted on its reciprocal disclosure requirements under

Pa.R.Crim.P. 567[.]”      Id. at 17.   On November 6, 2013, Appellant filed a

notice of alibi defense pursuant to Pa.R.Crim.P. 567(A) and listed King as a

potential alibi witness for the defense. Id. at 24. At trial, Appellant called

six alibi witnesses, who claimed he was at a party watching a boxing match

across town at the time of the murder; the defense, however, did not call

King.    Id. at 13, 24.    When the Commonwealth then sought to call King,

Appellant asserted the Commonwealth did not reciprocate disclosure of the

witnesses it intended to call to disprove or discredit his alibi claims as

required under Pa.R.Crim.P. 567(C). Id. at 24.       Thus, Appellant maintains

the Commonwealth was precluded from calling King to rebut Appellant’s

alibi. Id. Appellant further claims it was trial court error to allow Detective

Verrecchio to testify and confirm that he interviewed King after someone

identified him at the murder scene. Id. Furthermore, Appellant maintains,

“the reciprocal disclosure responsibilities placed on the Commonwealth are

not mere local procedural requirements, but reflect the United States

Supreme Court’s judgment in Wardius v. Oregon, 412 U.S. 470 (1973)

that such a reciprocal requirement is required as a matter of constitutional

due process.” Id. at 30.

        In sum, Appellant argues:

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         [T]he court did fashion an intermediate sanction which (1)
         forbade Detective Verrecchio from testifying in rebuttal to
         the alibi, and (2) permitted limited evidence from [] King,
         with strong admonitions to the prosecutor not to imply to
         the jury, while attempting impeachment, that statements
         were being hidden from their view. Yet when the chips
         were down and the examinations were in progress, the
         court, by its rulings, permitted exactly what it purported to
         forbid. Detective Verrecchio was examined in such a way
         that it was plain to anyone that King had allegedly given
         him information about Appellant’s alibi. And King, in turn,
         was examined in such a way that it was plain that the
         content of that alleged information was that Appellant was
         not with King at the fight party. The fact that questions
         were couched in terms of “did you ever tell anyone” was
         completely ineffective given the surrounding questions
         focusing upon other matters that King told to Detective
         Verrecchio specifically. Finally, of course, any shreds
         remaining of the trial court’s tattered initial rulings were
         definitively removed by its failure to intervene following
         defense counsel’s objection to the prosecutor, during her
         closing, baldly and openly inviting the jury to speculate on
         what King must have told the detective.

Id. at 31-32 (citation omitted).

      The standard of review for challenges to the admissibility of evidence

is well-settled:

         The admission of evidence is solely within the discretion of
         the trial court, and a trial court's evidentiary rulings will be
         reversed on appeal only upon an abuse of that discretion.
         An abuse of discretion will not be found based on a mere
         error of judgment, but rather occurs where the court has
         reached a conclusion that overrides or misapplies the law,
         or     where   the   judgment       exercised   is    manifestly
         unreasonable, or the result of partiality, prejudice, bias or
         ill-will.

Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa. Super. 2016).




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       “Generally, an alibi is a defense that places the defendant at the

relevant time in a different place than the scene involved and so removed

therefrom as to render it impossible for him to be the guilty party.”

Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010) (internal citation

omitted). “At the core of an alibi defense is, of course, consistency between

the date and time of the crime and that of the defendant's alibi.”            Id.

Pennsylvania Rule of Criminal Procedure 5672 provides, in pertinent part:

         (A)    Notice by Defendant. A defendant who intends to
                offer the defense of alibi at trial shall file with the
                clerk of courts not later than the time required for
                filing the omnibus pretrial motion provided in Rule
                579 a notice specifying an intention to offer an alibi
                defense, and shall serve a copy of the notice and a
                certificate of service on the attorney for the
                Commonwealth.

              (1)    The notice and a certificate of service shall be
                     signed by the attorney for the defendant, or the
                     defendant if unrepresented.

              (2)    The notice shall contain specific information as to
                     the place or places where the defendant claims to
                     have been at the time of the alleged offense and
                     the names and addresses of the witnesses whom
                     the defendant intends to call in support of the
                     claim.

         (B)    Failure to File Notice.

              (1)    If the defendant fails to file and serve the notice of
                     alibi as required by this rule, the court may
____________________________________________


2
   Adopted January 27, 2006, effective August 1, 2006, Pa.R.Crim.P. 567
replaced and amended prior Rules of Criminal Procedure 305 and 573.



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                    exclude entirely any evidence offered by the
                    defendant for the purpose of proving the defense,
                    except testimony by the defendant, may grant a
                    continuance to enable the Commonwealth to
                    investigate such evidence, or may make such
                    other order as the interests of justice require.

           (2)      If the defendant omits any witness from the notice
                    of alibi, the court at trial may exclude the
                    testimony of the omitted witness, may grant a
                    continuance to enable the Commonwealth to
                    investigate the witness, or may make such other
                    order as the interests of justice require.

       (C)    Reciprocal Notice of Witnesses. Within 10 days
              after receipt of the defendant's notice of defense of
              alibi, or within such other time as allowed by the court
              upon      cause    shown,     the  attorney    for    the
              Commonwealth shall file and serve upon defendant's
              attorney, or the defendant if unrepresented, written
              notice of the names and addresses of all witnesses the
              attorney for the Commonwealth intends to call to
              disprove or discredit the defendant's claim of alibi.

       (D)    Failure to File Reciprocal Notice.

           (1)      If the attorney for the Commonwealth fails to file
                    and serve a list of its witnesses required by this
                    rule, the court may exclude any evidence offered
                    by the Commonwealth for the purpose of
                    disproving the alibi defense, may grant a
                    continuance to enable the defense to investigate
                    such evidence, or may make such other order as
                    the interests of justice require.

           (2)      If the attorney for the Commonwealth omits a
                    witness from the list of its witnesses required by
                    paragraph (C), the court at trial may exclude the
                    testimony of the omitted witness, may grant a
                    continuance to enable the defense to investigate
                    the witness, or may make such other order as the
                    interests of justice require.

Pa.R.Crim.P. 567.


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     The United States Supreme Court has provided guidance regarding

alibi reciprocity in Wardius v. Oregon, 412 U.S. 470 (1973), a case cited

by Appellant and referenced specifically in Rule 567.      The Wardius Court

determined:

        Notice-of-alibi rules, now in use in a large and growing
        number of States, are based on the proposition that the
        ends of justice will best be served by a system of liberal
        discovery which gives both parties the maximum possible
        amount of information with which to prepare their cases and
        thereby reduces the possibility of surprise at trial. The
        growth of such discovery devices is a salutary development
        which, by increasing the evidence available to both parties,
        enhances the fairness of the adversary system. As we
        [have] recognized [], nothing in the Due Process Clause
        precludes States from experimenting with systems of broad
        discovery designed to achieve these goals. The adversary
        system of trial is hardly an end in itself; it is not yet a poker
        game in which players enjoy an absolute right always to
        conceal their cards until played. We find ample room in that
        system, at least as far as due process is concerned, for (a
        rule) which is designed to enhance the search for truth in
        the criminal trial by insuring both the defendant and the
        State ample opportunity to investigate certain facts crucial
        to the determination of guilt or innocence.

        Although the Due Process Clause has little to say regarding
        the amount of discovery which the parties must be afforded,
        it does speak to the balance of forces between the accused
        and his accuser.

                            *         *            *

        [W]e do hold that in the absence of a strong showing of
        state interests to the contrary, discovery must be a two-way
        street. The State may not insist that trials be run as a
        search for truth so far as defense witnesses are concerned,
        while maintaining poker game secrecy for its own
        witnesses. It is fundamentally unfair to require a defendant
        to divulge the details of his own case while at the same time


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         subjecting him to the hazard of surprise concerning
         refutation of the very pieces of evidence which he disclosed
         to the State.

Wardius, 412 U.S. at 473–476 (internal citations, quotations, and footnotes

omitted).

     Bearing in mind the salient principle stressed in Wardius, that alibi

discovery must be a two-way street, this Court previously determined that

courts should not read the reciprocal alibi notice rule in overly technical

terms.   For example, in Commonwealth v. Nieves, 582 A.2d 341 (Pa.

Super. 1990),

         [t]he trial court found that [Nieves] was well aware of the
         evidence to be presented to rebut his alibi claim, and that
         the technical error of the Commonwealth in not submitting a
         list with the complainant’s name and the name of the police
         officer to whom prior inconsistent statements had been
         made by [Nieves] was harmless. [Nieves] was aware that
         the victim would contradict his alibi claim, and he was
         provided with copies of the police reports which recorded his
         prior inconsistent statements during informal discovery.
         […] The trial court found the purpose of the [reciprocal
         notice of alibi rule] to have been fulfilled despite a technical
         violation of its letter, and concluded that no relief was
         appropriate. [This Court] agree[d].

Nieves, 582 A.2d at 349 (emphasis in original).

     In this case, the trial court concluded:

         King had been present at the trial, under subpoena [by
         Appellant], and had been interviewed by both the
         Commonwealth and defense. Under these circumstances,
         [the trial court] allowed the Commonwealth to call King,
         with limitations on the Commonwealth’s inquiry. [The trial
         court] did not allow the Commonwealth to again call
         Detective Verrecchio to present King’s statement as
         substantive evidence.


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                           *         *           *

        During the rebuttal examinations of both Detective
        Verrecchio and King, [the trial] court limited the scope of
        the Commonwealth’s direct examination to exclude any
        extrinsic evidence of the conversation between Detective
        Verrecchio and King regarding [Appellant’s] alibi. Moreover,
        [the trial] court excluded impeachment testimony of
        Detective Verrecchio regarding King’s statements. Further,
        [the trial] court permitted defense counsel to interview King
        prior to rebuttal testimony on two occasions, one of which
        was declined.      No information that the Commonwealth
        should have provided [Appellant] in reciprocal prevented
        [Appellant] from mounting his alibi defense. As such, [the
        trial] court [determined it] acted according to the letter and
        spirit of Rule 567 regarding the Commonwealth’s failure to
        disclose.

Trial Court Opinion, 8/25/2015, at 6-7 (record citations omitted).

      Upon review, we discern no abuse of discretion or error of law.

Appellant listed King as a defense alibi witness prior to trial.         N.T.,

6/25/2014, at 71; N.T., 6/26/2014, at 17. Early in the murder investigation,

police received photographs of King and Appellant and, when asked about

the photographs, King made oral statements to police about the incident in

question.   N.T., 6/25/2014, at 44-47.   Appellant does not dispute that he

was aware of King’s alleged statements to police prior to trial.     Moreover,

the trial court permitted defense counsel two opportunities to interview King

regarding the substance of his testimony prior to taking the stand.      N.T.,

6/26/2014, at 17-24, 29-30.

      Based upon all of the foregoing, we discern no abuse of discretion or

error of law.   Rule 567 was designed to enhance the search for truth by


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insuring both Appellant and the Commonwealth ample opportunities to

investigate certain facts crucial to the determination of guilt or innocence.

Wardius, 412 U.S. at 474.              To accomplish this task, Rule 567 affords

discretion to the trial court in confronting the various situations presented at

trial. For example, Rule 567 repeatedly authorizes the trial court to impose

sanctions for recalcitrant behavior, but does not compel any particular

course of action in such instances.            See Pa.R.Crim.P. 567(B)(1) and (2).

Appellant was well aware of the evidence the Commonwealth sought to

present because he listed King himself.            Nieves, 582 A.2d at 349.        The

Commonwealth’s technical error in not submitting King’s name on a

reciprocal alibi notice list was harmless, because the purpose of Rule 567

was fulfilled.     Id.    As such, Appellant is not entitled to relief on his first

claims.

      Next, Appellant argues he is entitled to a new trial because the

Commonwealth         engaged      in   prosecutorial   misconduct      during   closing

argument. Appellant’s Brief at 33-38. More specifically, Appellant contends

that the Commonwealth’s closing argument:                    (1) suggested Detective

Verrecchio was testifying as a rebuttal witness despite the trial court’s prior

limitations   on    his    testimony;    (2)    personally   vouched    for   Detective

Verrecchio’s truthfulness and called upon the authority of the court to vouch

for the unreliability of recanting witnesses; and (3) “invited speculation as to




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the contents of statements by [] King which had been specifically excluded

from evidence.” Id. at 34.

     This Court previously determined:

        It is well[-]settled that a prosecutor has considerable
        latitude during closing arguments and his arguments are
        fair if they are supported by the evidence or use inferences
        that can reasonably be derived from the evidence. Further,
        prosecutorial misconduct does not take place unless the
        unavoidable effect of the comments at issue was to
        prejudice the jurors by forming in their minds a fixed bias
        and hostility toward the defendant, thus impeding their
        ability to weigh the evidence objectively and render a true
        verdict.

        In determining whether the prosecutor engaged in
        misconduct, we must keep in mind that comments made by
        a prosecutor must be examined within the context of
        defense counsel's conduct. It is well[-]settled that the
        prosecutor may fairly respond to points made in the defense
        closing. Moreover, prosecutorial misconduct will not be
        found where comments were based on the evidence or
        proper inferences therefrom or were only oratorical flair.

                             *       *            *

        It is settled that it is improper for a prosecutor to express a
        personal belief as to the credibility of the defendant or other
        witnesses. However, the prosecutor may comment on the
        credibility of witnesses. Further, a prosecutor is allowed to
        respond to defense arguments with logical force and vigor.
        If defense counsel has attacked the credibility of witnesses
        in closing, the prosecutor may present argument addressing
        the witnesses' credibility.

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (internal

citations and quotations omitted).

     “[T]he trial court is vested with discretion to grant a mistrial whenever

the alleged prejudicial event may reasonably be said to deprive the

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defendant of a fair and impartial trial.” Id. at 1019. The trial “court must

discern whether misconduct or prejudicial error actually occurred, and if so,

... assess the degree of any resulting prejudice.”       Id.    “Our review [] is

[then] constrained to determining whether the court abused its discretion.”

Id.

         Here, the trial court determined:

           The remarks were made in fair response to the defense set
           forth by [Appellant] in his cross-examination of
           identification witnesses and direct examination of alibi
           witnesses. The prosecutor discussed the development of
           the investigation taken by Detective Verrecchio, which led
           to identifying [Appellant] as the shooter. Moreover, defense
           counsel opened the door to the Commonwealth’s remarks
           by describing the examination of [] King as “some last ditch
           effort somehow reaching the bottom of the barrel.” As
           such, the prosecutor’s remarks were proper argument which
           did not constitute reversible error. Further, [the trial] court
           found that the remarks were not a deliberate attempt to
           destroy the jury’s objectivity, but rather a synopsis of
           Detective Verrecchio’s testimony.           As such, the
           Commonwealth’s argument was proper[.]

Trial Court Opinion, 8/25/2015, at 11-12 (record citation omitted).

         Upon review, we agree. The credibility of identification testimony and

the thoroughness of the ongoing police investigation were fundamental to

the instant case and both parties argued that they were searching for the

truth.     Here, the Commonwealth’s isolated closing comments were fair

response to Appellant’s suggestion that certain witnesses, who initially

identified Appellant as the shooter to police, later recanted. Appellant also

suggested during closing that calling King was a last ditch effort in the


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Commonwealth’s investigation and the Commonwealth was permitted

latitude to respond. The Commonwealth’s passing references to the search

for truth was not deliberately made to destroy the jury’s objectivity. Hence,

we discern no abuse of discretion or trial court error.

     Next, Appellant contends that Detective Verrecchio “was permitted,

over defense objection, to testify obliquely to the contents of other

witnesses’ statements and to the fact that other suspects had supposedly

been cleared of involvement.”     Appellant’s Brief at 39.   More specifically,

Appellant claims it was trial court error to allow Detective Verrecchio to

testify that the police investigated two suspects, Jamil Jackson and Shawn

Hamilton, and concluded that they were not involved in the instant crime.

Id. at 39-42. Appellant claims the testimony “went far beyond what was

necessary to explain the course of investigation by police, and indeed, was

clearly offered for the truth of [Detective Verrecchio’s] conclusion that

certain suspects were in fact innocent.” Id. at 42-43.

      “[I]t is well established that certain out-of-court statements offered to

explain the course of police conduct are admissible because they are offered

not for the truth of the matters asserted but rather to show the information

upon which police acted.” Commonwealth v. Chmiel, 889 A.2d 501, 532

(Pa. 2005), citing Commonwealth v. Jones, 658 A.2d 746, 751 (Pa.

1995). “The trial court, in exercising discretion over the admission of such

statements, must balance the prosecution's need for the statements against


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any prejudice arising therefrom.” Id. at 533. When a defendant challenges

the competency of a police investigation, it opens the door for the

prosecution to provide extensive testimony explaining the course of the

investigation.   Id.    Moreover, our Supreme Court has found police

investigation testimony proper when it merely repeats matters covered by

another testifying witness. Id.

      In this case, there is no question that Appellant, at trial, attacked the

adequacy of the lengthy police investigation.      The trial court found that

police testimony regarding the course of the investigation “was necessary to

explain why [Appellant] was not immediately identified as the shooter and

why his arrest did not come until October 2012[,]” over two years after the

murder. Trial Court Opinion, 8/25/2015, at 18-19. We agree. Initially we

note that Jamil Jackson testified in his own right at trial; therefore, we

discern no abuse of discretion, or prejudice to Appellant, in allowing police to

testify regarding their interview with Jackson.     With regard to Detective

Verrecchio’s interview of Shawn Hamilton, upon review of the trial

transcripts, the Commonwealth specifically tailored its line of questioning to

avoid the actual content of Hamilton’s statement. N.T., 6/24/2014, at 149-

150. It was only upon defense counsel’s cross-examination that Detective

Verrecchio revealed the substance of the Hamilton interview.          Hamilton,

imprisoned on other murder charges, told police that he shot the victim in

this case, but he could not provide specifics or details about the murder and


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“then admitted he was fabricating the story […] to help out a friend.” Id. at

226.     Because Appellant, not the Commonwealth, elicited the now-

challenged testimony explaining the course of the police investigation, we

discern no trial court error or abuse of discretion.

       In his fourth issue presented, Appellant argues the trial court abused

its discretion in permitting the prolonged display of prior statements to

police made by three identification witnesses, Cropper, Aruviereh, and

Jackson.    Appellant’s Brief at 43.    Appellant posits it was an abuse of

discretion to permit “the Commonwealth to display the projected images of

these out of court statements at length during the Commonwealth’s

examination of these witnesses as on cross[-examination] and again,

redundantly, during the examinations of [the investigating detectives] who

were called upon to testify to the taking of the statements.”        Id. at 44.

Appellant claims, “[t]he prominent and prolonged visual display of the prior

statements unduly emphasized [them] in contrast to the in-court testimony

of the witnesses, intruded on the fact-finding function of the jury, and

deprived [Appellant] of his right to a fair trial under the due process clause.”

Id.

       As previously stated, “the admission of evidence is solely within the

discretion of the trial court, and a trial court's evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion.” Witmayer, 144

A.3d at 949. Our Supreme Court has determined:


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        There are three basic types of evidence that are admitted
        into court: (1) testimonial evidence; (2) documentary
        evidence; and (3) demonstrative evidence. Presently, at
        issue is demonstrative evidence, which is tendered for the
        purpose of rendering other evidence more comprehensible
        to the trier of fact. As in the admission of any other
        evidence, a trial court may admit demonstrative evidence
        whose relevance outweighs any potential prejudicial effect.
        The offering party must authenticate such evidence. The
        requirement of authentication or identification as a condition
        precedent to admissibility is satisfied by evidence sufficient
        to support a finding that the matter in question is what its
        proponent claims. Demonstrative evidence may be
        authenticated by testimony from a witness who has
        knowledge that a matter is what it is claimed to be.
        Demonstrative evidence such as photographs, motion
        pictures, diagrams, and models have long been permitted to
        be entered into evidence provided that the demonstrative
        evidence fairly and accurately represents that which it
        purports to depict.

        The overriding principle in determining if any evidence,
        including demonstrative, should be admitted involves a
        weighing of the probative value versus prejudicial effect. We
        have held that the trial court must decide first if the
        evidence is relevant and, if so, whether its probative value
        outweighs its prejudicial effect. This Commonwealth defines
        relevant evidence as having any tendency to make the
        existence of any fact that is of consequence to the
        determination of the action more probable or less probable
        than it would be without the evidence. Relevant evidence
        may nevertheless be excluded if its probative value is
        outweighed by the danger of unfair prejudice, confusion of
        the issues, or misleading the jury, or by considerations of
        undue delay, waste of time, or needless presentation of
        cumulative evidence.

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006) (internal

citations and quotations omitted).

     Here, the trial court concluded:




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        Witnesses Aruviereh, Jackson and Cropper were permitted
        to reference their prior statements to police during the
        course of their testimony.      The witnesses subsequently
        explained in whole and denied in part these statements,
        after which defense counsel was permitted to question each
        witness. The display of the witnesses’ prior inconsistent
        statements served as a piece of demonstrative evidence to
        aid the fact finder in determining the truthfulness and
        veracity of the witnesses’ testimony.       [The trial] court
        determined that the probative value of the displaying the
        prior inconsistent statements was not outweighed by any
        unfair prejudice to [Appellant], as the documents on display
        were exact replicas of the witnesses’ statements. Further,
        all three witnesses were able to authenticate the prior
        statements as original copies. Thus, the witnesses’ prior
        inconsistent statements were properly presented at trial.

Trial Court Opinion, 8/25/2015, at 16.

      Appellant admits that he “does not challenge the admissibility of these

statements, but rather the emphasis with which they were displayed.”

Appellant’s Brief at 44. Thus, Appellant only claims that the unfair prejudice

of visually displaying the statements outweighed the probative value of

those statements. We disagree. Both parties used the projected statements

in questioning the witnesses.         Appellant was able to highlight the

inconsistencies in the witnesses’ written statements, just the same as the

Commonwealth.      Accordingly, we conclude that there was no prejudice to

Appellant. As such, Appellant’s fourth issue lacks merit.

      Appellant’s fifth and sixth issues assert the trial court erred by refusing

Appellant’s requested jury instructions. “[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

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committed an error of law.” Commonwealth v. Galvin, 985 A.2d 783,

798–799 (Pa. 2009).     When reviewing a challenge to instructions given to

the jury,

        the reviewing court must consider the charge as a whole to
        determine if the charge was inadequate, erroneous, or
        prejudicial. The trial court has broad discretion in phrasing
        its instructions, and may choose its own wording so long as
        the law is clearly, adequately, and accurately presented to
        the jury for its consideration. A new trial is required on
        account of an erroneous jury instruction only if the
        instruction under review contained fundamental error,
        misled, or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (internal

citations and quotations omitted).

      In his fifth issue presented, Appellant contends that despite filing his

notice of alibi defense seven months before trial, “the Commonwealth failed

to investigate the alibi witnesses named, six of whom testified at trial for

[Appellant].”   Appellant’s Brief at 46.      As such, Appellant requested an

instruction that the jury could consider the foregoing in determining whether

the Commonwealth proved their case beyond a reasonable doubt. Id. at 47.

      In this case, the trial court concluded it “provided standard instructions

regarding [Appellant’s] alibi defense that clearly and accurately presented

the legal concepts to the jury, including reasonable doubt.”        Trial Court

Opinion, 8/25/2015, at 21.       The trial court further stated that “[t]he

Commonwealth’s investigation, or lack thereof, with regard to [] alibi, was

for the argument of counsel and not for a charge from the court.” Id. Upon


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review, we agree with the trial court’s analysis. Appellant requested that the

trial court instruct the jury that the Commonwealth’s failure to investigate

Appellant’s alibi witnesses could be considered by the jury in determining

reasonable doubt. Instead, the trial court included standard jury instructions

regarding alibi witnesses and reasonable doubt.        N.T., 6/26/2014, at 150-

152, 171-172.    The trial court clearly, adequately, and accurately presented

the law regarding alibis to the jury. We discern no error.

      In his sixth issue presented, Appellant, citing our Supreme Court’s

2014 decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014),

argues the trial court failed to modify the standard jury instruction regarding

identification as set forth in Commonwealth v. Kloiber, 106 A.2d 820 (Pa.

1954), “to take into account the potential effects of weapons focus, stress or

the suggestiveness inherent in being presented with a photo array without

first being cautioned the perpetrator may or may not be included in the

display.”   Appellant’s Brief at 50-51.    Thus, Appellant maintains the trial

court erred when it refused to charge the jury with his written, proposed

instruction on identification “taken from Connecticut and New Jersey

practice, as the analysis of these jurisdictions’ case law figured prominently

in the Walker opinion.”       Id. at 51.       Accordingly, Appellant posits that

“[s]ince identification was the core issue in the case, [the trial court’s refusal

to issue Appellant’s suggested charge,] was [] highly prejudicial and should

warrant a new trial.” Id. at 53.


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      “A defendant is entitled to a Kloiber instruction where a witness: (1)

was not in a position to clearly observe the defendant, or is not positive as

to identity; (2) equivocated on the identification; or (3) failed to identify the

defendant on prior occasions.”      Commonwealth v. Johnson, 139 A.3d

1257, 1281 (Pa. 2016) (internal citation omitted). In Walker, our Supreme

Court granted allocatur to determine “whether a trial court may, in its

discretion, permit expert testimony in the area of eyewitness identification,

and [to] reconsider [Pennsylvania’s] current decisional law which absolutely

bans such expert testimony.” Walker, 92 A.3d 766, 769 (Pa. 2014). The

majority in Walker, “reject[ed] reliance upon cross-examination and closing

arguments as sufficient to convey to the jury the possible factors impacting

eyewitness identification and as justification for an absolute bar of such

expert testimony, and recognize[d] the potential advantages of expert

testimony as a means to assist the jury where mistaken identity is a

possibility.”   Id. at 786.   The Walker majority further stated “a Kloiber

instruction would not serve as a sufficient reason to deny categorically the

use of expert testimony” because “factors such as cross-racial identification,

weapons focus, stress, or correlation between confidence and accuracy of

identification are divorced from the compromised position of the witness, his

or her lack of positive identification, or any expressed qualification of

statements regarding identification.”   The Walker majority also responded

to Chief Justice Castille’s dissent in that case, wherein he “suggest[ed]


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unspecified revision to the existing Kloiber instruction[,]” which the Walker

majority    rejected,    because     “such     revisions   would   entail   a   complete

remaking, rather than a mere reworking, of the instruction.” Id.

       Based upon all of the foregoing, we initially reject Appellant’s

suggestion that the Walker decision required the trial court to modify the

Kloiber jury instruction.        Instead, Walker permitted Appellant to utilize

expert testimony regarding identification. Moreover, upon review, the trial

court did give a modified jury instruction on identification, utilizing the

standard Kloiber charge, but also incorporating the factors from the Walker

decision.   The trial court asked the jury to consider whether identification

witnesses were in a position to observe the crimes, aware of the commission

of crime, distracted by a weapon, under stress, personally biased, or

influenced by the way in which police used a photo-array. N.T., 6/27/2014,

at 164-168. We discern no abuse of discretion or error of law.

       In his seventh allegation of error, Appellant claims the Commonwealth

failed to present sufficient evidence to support his first-degree murder

conviction.3    Appellant argues that, “all three identifications [of Appellant]

were repudiated at trial.” Appellant’s Brief at 55.           Thus, Appellant posits,

“the jury’s choice among the various in- and out-of-court statements of the

____________________________________________


3
    Appellant did not challenge his weapon convictions in his Rule 1925(b)
statement or specifically in his appellate brief. Therefore, we will constrain
our sufficiency review to Appellant’s murder conviction.



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witnesses could not be made without resorting to conjecture.” Id. at 56-57.

In turn, Appellant avers the Commonwealth did not prove his conviction

beyond a reasonable doubt. Id. at 57.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether 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.

        In order for a jury to find a defendant guilty of murder of
        the first degree, the Commonwealth must prove, beyond a
        reasonable doubt, that a human being was lawfully killed,
        that the accused was responsible for the killing, and that
        the accused acted with a specific intent to kill.

Commonwealth v. Talbert, 129 A.3d 536, 542–543 (Pa. Super. 2015)

(internal citations and quotations omitted).

      We previously determined:


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        Evidence of identification need not be positive and certain to
        sustain a conviction. Although common items of clothing
        and general physical characteristics are usually insufficient
        to support a conviction, such evidence can be used as other
        circumstances to establish the identity of a perpetrator.
        Out-of-court identifications are relevant to our review of
        sufficiency of the evidence claims, particularly when they
        are given without hesitation shortly after the crime while
        memories were fresh. Given additional evidentiary
        circumstances, any indefiniteness and uncertainty in the
        identification testimony goes to its weight.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc).

     Moreover, our Supreme Court has concluded that

        criminal convictions which rest only on prior inconsistent
        statements of witnesses who testify at trial do not constitute
        a deprivation of a defendant's right to due process of law,
        as long as the prior inconsistent statements, taken as a
        whole, establish every element of the offense charged
        beyond a reasonable doubt, and the finder-of-fact could
        reasonably have relied upon them in arriving at its decision.
        Prior inconsistent statements, which meet the requirements
        for admissibility under Pennsylvania law, must, therefore,
        be considered by a reviewing court in the same manner as
        any other type of validly admitted evidence when
        determining if sufficient evidence exists to sustain a criminal
        conviction.

Commonwealth v. Brown, 52 A.3d 1139, 1171 (Pa. 2012).

     Here, the trial court determined there was sufficient evidence to

support Appellant’s murder conviction, stating:

        At trial, the jury heard testimony from witnesses []
        Aruviereh, [] Jackson, and [] Cropper, numerous police
        officers and detectives, as well as medical examiner Dr.
        [Edwin] Lieberman.       The testimony of eyewitnesses
        Aruviereh and Jackson established that, on the evening of
        May 2, 2010, Bowser and a group of people were outside
        [of] 2735 Jefferson Street, near the intersection with 28 th
        Street.    Both Aruviereh and Jackson saw [Appellant]

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J-S59021-16


       approach the corner of 28th Street and Jefferson Street
       carrying a plastic shopping bag and moments later saw him
       shooting a gun towards Bowser.           Aruviereh identified
       [Appellant] as the shooter in her February 7, 2011
       statement to police. [] Jackson identified [Appellant] as the
       shooter in his February 22, 2012 statement to police.

       The testimony of [] Cropper corroborated that of Aruviereh
       and Jackson with regard to the date, time, and location of
       the shooting as well as [Appellant’s] possession of a plastic
       shopping bag at the time of the shooting.           Cropper’s
       testimony further established that [Appellant] fled the scene
       via 28th Street and that [Appellant] placed a firearm inside
       the plastic shopping bag after the shooting.         Although
       Aruviereh, Jackson, and Cropper disavowed ma[n]y of the
       averments made in their statements to police, their signed
       statements were properly admitted as evidence at trial
       through the respective testimony of Detective Verrecchio
       and Detective Lucke. These statements were admissible for
       their truth as prior inconsistent statements that were signed
       and adopted by the declarants.

       The testimony of [a responding police officer] and the
       firearms examiner Officer [Jesus] Cruz confirmed that four
       fired cartridge were recovered from Jefferson Street near its
       intersection with 28th Street and that all four casings were
       .390/.9 millimeter caliber and fired from the same firearm.
       Additionally, Dr. Lieberman’s testimony established that the
       victim sustained a single gunshot wound to his left chest
       which subsequently penetrated his left lung, pulmonary
       artery, aorta, and right lung.       Dr. Lieberman further
       testified that the victim’s death was caused by the fatal
       gunshot wound.

       In consideration of the evidence presented at trial, as
       discussed above, [the trial court] found that the evidence
       supported the jury’s finding that [Appellant] killed Bowser
       with the specific intent to kill and with malice. As such, [the
       trial court], in view of all the evidence admitted at trial in
       the light most favorable to the Commonwealth, []
       determined that the evidence was sufficient to enable the
       jury to find, beyond a reasonable doubt, that [Appellant]
       was guilty of [m]urder of the [f]irst[-]degree.


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J-S59021-16


Trial Court Opinion, 8/25/2015, at 25-26 (internal citation omitted).

      Upon review, we agree with the trial court’s assessment.             The

Commonwealth presented written and signed eyewitness statements made

to police identifying Appellant as the shooter.         While their recorded

statements may have differed from their trial testimony, the jury was free to

believe all, part or some of the evidence presented.           Moreover, any

uncertainty in the witnesses identifications goes to the weight of the

evidence presented, not the sufficiency. The eyewitnesses told police that

Appellant pulled a firearm out of a plastic shopping bag, stepped toward the

victim and fired, and then put the firearm back in the bag and fled. Police

recovered four fired bullet casings at the scene.     The medical testimony

confirmed that the victim died as the result of a gunshot to the chest. Our

Supreme Court previously concluded that the deliberate and repeated use of

a firearm to shoot a victim in the chest or abdomen establishes his specific

intent to kill.   See Commonwealth v. Padilla, 80 A.3d 1238, 1244 (Pa.

2013).    When the evidence is viewed in the light most favorable to the

Commonwealth, as our standard requires, we discern sufficient evidence to

support Appellant’s first-degree murder conviction.

      Finally, in his last issue presented, Appellant claims the verdict was

against the weight of the evidence presented at trial.     Appellant’s Brief at

57-58. Appellant argues that between the speculative eyewitnesses and his

six alibi witnesses, the “alibi testimony was so clearly of greater weight that


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to ignore it or give it merely equal weight constituted a denial of justice.”

Id. at 58.

      We review this claim under the following standard:

        An appellate court's standard of review when presented with
        a weight of the evidence claim is distinct from the standard
        of review applied by the trial court. Appellate review of a
        weight claim is a review of the exercise of discretion, not of
        the underlying question of whether the verdict is against the
        weight of the evidence. In order for an appellant to prevail
        on a challenge to the weight of the evidence, the evidence
        must be so tenuous, vague and uncertain that the verdict
        shocks the conscience of the court.

Commonwealth v. Smith, 146 A.3d 257, 264–265 (Pa. Super. 2016)

(internal citations omitted).

      We discern no abuse of discretion. The verdict does not shock one’s

conscience.    The jury was permitted to make factual determinations

regarding any inconsistencies in testimony.      We also agree with the trial

court that “the jury heard testimony from [police] and [the medical

examiner] that corroborated the eye-witnesses[’] collective account of the

shooting[.]” Id. The physical evidence recovered at the scene revealed that

a single shooter killed the victim.    Moreover, the jury was free to wholly

reject the testimony of Appellant’s six proffered alibi witnesses.    Thus, we

discern no abuse of discretion by the trial court in denying Appellant relief on

his weight of the evidence claim.

      Judgment of sentence affirmed.




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J-S59021-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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