J-S21014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER GARNETT,

                            Appellant                  No. 572 EDA 2015


        Appeal from the Judgment of Sentence Entered January 30, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0017981-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 10, 2016

        Appellant, Alexander Garnett, appeals from the judgment of sentence

of life imprisonment without the possibility of parole, and a consecutive term

of five to ten years’ incarceration, imposed after a jury convicted him of

first-degree murder and possession of a firearm by a person prohibited. We

affirm.

        The trial court summarized the facts and procedural history of

Appellant’s case, as follows:

        Factual Basis

             This case stems from the execution of Jasmarr Anderson, a
        young man just shy of his twenty-first birthday, by [A]ppellant,
        … which was vividly caught on the video system of the Benjamin
        Banneker Apartments in the City of Chester on July 20, 2013. As
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S21014-16


     the evidence solidly and unequivocally demonstrated, Appellant
     showed a cruel and callous disregard for life by pretending to be
     in league with Anderson when, in actuality, he was setting up his
     assassination.

           In the video, Appellant, David Colon[,]5[] and Jasmarr
     Anderson are seen walking from the front of Benjamin Banneker
     Apartments and then turning onto West Seventh Street.
     Appellant is on the outside closest to the curb line of West
     Seventh Street, Colon is in the middle and Anderson is nearest
     the apartments. Appellant slyly drops back a few steps, circles
     behind Colon and gets directly behind Anderson. Appellant’s arm
     goes up, and Anderson falls to the ground. Appellant and Colon
     are then seen running from the area.
        5
          David Colon was subsequently murdered after Jasmarr
        Anderson’s death and prior to Appellant[’s] being arrested
        on August 28, 2013.

        On the evening of July 20, 2013, at approximately 11:45
     p.m., Officer Melissa Goodman of the Chester City Police
     Department was on patrol in a marked police vehicle. While on
     patrol, Officer Goodman responded to 2101 West Seventh Street
     after receiving a call for shots fired at the Benjamin Banneker
     Apartments. Upon arrival, a male on scene relayed to her that a
     dead body was on the east side of the building. Officer Goodman
     approached the body and observed a gunshot wound to his
     head. The victim had no pulse. It was clear to her he was
     deceased. Through investigation, the young male was
     determined to be Jasmarr Anderson.

        Detective Michael Jay of the Delaware County Criminal
     Investigative Division, (CID) is assigned to the homicide unit and
     has been so employed since 2008. Detective Jay was working in
     his capacity as a homicide detective for CID on the evening of
     July 20, 2013 and responded to the Benjamin Banneker
     Apartments after the Chester Police Department requested CID's
     assistance. While on scene, Detective Jay retrieved surveillance
     footage from the manager's office in the apartment building. The
     apartment used a “multiplex” system, meaning multiple camera
     angles are shown on the screen at the same time. After viewing
     the footage and determining which camera angles would be
     relevant, Detective Jay saved the footage onto two separate
     thumb drives to bring back to the station.



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         Detective Jay along with Detective Sendak of CID went back
     to the apartment building several times in the next few days to
     retrieve more video and to take the physical-systems out of the
     office, which were eventually turned over to the forensic
     laboratory for the hard drives to be copied. In addition, Detective
     Jay contacted the New Castle County Police Department, which
     was able to assist in synchronizing the different camera angles.
     After thorough investigation, it was determined that the two
     individuals seen with the victim in the footage were Appellant
     and David Colon.7
        7
          After showing the photographs from the footage to
        several people, including Appellant's parole officer, Agent
        Donald Vaughn, the man in the video was identified as
        [Appellant].

         After several screens showing all three “hanging out[,”]
     Jasmarr Anderson’s final moments are picked up by camera
     angles eight and ten. On camera angle eight, the three begin
     walking towards Jeffrey Street and the east side of the building;
     Appellant is on the far left of Anderson. As they walk towards the
     rear of the courtyard, Appellant begins to drop back until he is
     directly behind Anderson and Colon while Colon is to Anderson's
     left. The three then walk into the view of camera angle ten. This
     angle shows Anderson on his cell phone, Colon to his left, and
     Appellant behind him. In the last frame of Anderson’s life,
     Appellant is seen directly behind him. Seconds later, Anderson is
     seen falling to the ground and Colon and Appellant are seen
     running away towards Jeffrey Street.

        Detective Adam Sendak is also employed with the Delaware
     County Criminal Investigation Division Homicide Unit. In addition
     to being in CID for fourteen years, Detective Sendak spent thirty
     years with the Chester Police Department. Detective Sendak was
     away the weekend of Anderson’s murder but was assigned to be
     the lead detective on the case the following Monday.

        Detective Sendak met with [] Anderson’s family and tried to
     speak with as many people as possible, which proved difficult;
     however, this was not surprising to him. In his thirty years with
     the police department and the thousands of investigations into
     crimes in Chester, there is a fear of retaliation that often keeps
     witnesses from talking on the record. Once it was determined
     that Appellant was the person in the video and was a suspect,
     Detective Sendak prepared and executed a search warrant on


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     Appellant's Facebook account. The subscriber information is
     listed for a “cheddar bob” which the Detectives knew to be the
     Appellant’s street name. The account shows Appellant on July
     19, 2013, the day before the murder, uploading a photo wearing
     a black v-neck t-shirt and jeans, the same outfit that the
     camera[] from the apartment complex show[ed] him wearing
     the night of the murder.

        After issuing several more search warrants, and completing
     their investigation, Detective Sendak prepared an arrest warrant
     for Appellant which was approved on August 27, 2013 and
     executed the following day.

     Procedural History

           A jury trial was held on October 14 through October 16,
     2014. The Commonwealth presented several witness including:
     Officer Melissa Goodman, Officer Jeffrey Linowski, Detective
     Michael Jay, Detective John Minkus, Parole Agent Donald Vaugh,
     and Detective Adam Sendak.

            In addition to the police testimony, the Commonwealth
     also presented Shaquan Cooper who was present on the night of
     July 20, 2013 at the Benjamin Banneker Apartments. Cooper
     recalled Anderson (his brother), David Colon and Appellant
     walking around the corner of the building towards Jeffrey Street,
     Cooper heard a gunshot and immediately ran over and saw
     Anderson lying on the ground with a gunshot wound to his head.
     Eventually, in June of 2014, Cooper gave a statement to police,
     in which he detailed a conversation he had with Appellant
     roughly ten days prior to Anderson being shot in which Appellant
     told him he was going to kill his brother, Jasmarr Anderson.
     Shortly after Anderson was murdered, Cooper had another run in
     with Appellant and this time Appellant threated to kill him.

            The Commonwealth also played for the jury two separate
     phone conversations, calls that were placed by Appellant while in
     George W. Hill Correctional Facility. The first phone call played
     for the jury occurred on March 28, 2014 and the other on
     September 4, 2013. On the September 4, 2013[] call Appellant
     says: “do me a favor. There ain't no three way on this phone, is
     it. [Y]eah I figured that. Text, uh, text Bro Bro and text Teddy
     for me and tell ‘em I said everybody as far as like Brittany, uh,
     Fuzz, and all them mo’ fuckers, whoever they get at trial to
     come to court everybody gotta be like I don't remember nothin’
     or either don't come or they don't remember nothin’.”9

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          9
           The authenticity of both phone calls [was] stipulated to
          by defense counsel and entered into evidence as C45.

              The last witness presented at trial was Dr. Bennett
       Preston, a medical examiner for the County of Delaware who
       was admitted as an expert in forensic pathology. Dr. Preston
       performed the autopsy on Jasmarr Anderson and determined
       that Anderson suffered a single gunshot wound to the left back
       part of his head, about half an inch from the center of his head.
       The wound was based on close range firing, placing the gun
       within two feet of Anderson’s head. From the trajectory of the
       bullet, Dr. Preston could tell that the gun was directly behind
       Anderson’s head. Dr. Preston determined that the cause of death
       was a gunshot wound and the manner of death was homicide.

             After deliberating, the jury found Appellant guilty of
       Murder in the First Degree10 and … Possession of a Firearm [by a
       Person] Prohibited[.]11[][1] On January 30, 2015, this Court
       sentenced Appellant to life in prison without parole and a
       consecutive term of 5-10 years for the Possession of a Firearm
       [by a Person] Prohibited [conviction].
          10
               18 Pa.C.S. [§] 2502(a)
          11
               18 Pa.C.S. [§] 6105(a)(1)

Trial Court Opinion (TCO), 4/21/15, at 2-7 (internal citations to the record

and some footnotes omitted).

       Appellant filed a timely notice of appeal, and he also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors



____________________________________________


1
   The jury’s deliberations and verdicts on Appellant’s two offenses were
bifurcated. In other words, the jury first rendered a verdict on the murder
charge and, after it convicted Appellant of that offense, it was asked to
decide the charge of possession of a firearm by a person prohibited. Before
deliberating on that offense, the jury was informed that Appellant had
stipulated that on February 20, 2008, he “was convicted of Aggravated
Assault, a felony of the first degree….” N.T. Trial, 10/16/14, at 115.



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complained of on appeal. The court filed a Rule 1925(a) opinion on April 21,

2015.

        Appellant presents the following six issues for our review, which we

have reordered for clarity and ease of disposition:

        [I.] The evidence was insufficient to sustain the verdicts of guilty
        on [m]urder in the first degree and on [possession of a firearm
        by a person prohibited] because the Commonwealth failed to
        prove beyond a reasonable doubt that Appellant possessed,
        used, manufactured, controlled, sold or transferred a firearm or
        anything that caused the death of Jasmar Anderson.

        [II.] Counsel filed a pre-trial motion to discover murder
        investigation files regarding the August 19, 2013 shooting death
        of accomplice David Colon. The [t]rial [c]ourt erred when it
        denied the motion and instead ruled that it would conduct an in
        camera examination. The [t]rial [c]ourt examined the files and
        made a determination that they included nothing exculpatory of
        Appellant.

        [III.] Appellant’s double jeopardy, former jeopardy and
        compulsory joinder rights were violated when the [t]rial [c]ourt
        bifurcated [the possession of a firearm by a person prohibited
        charge] from the balance of the charges and took separate
        verdicts. Appellant’s sentence on this charge should be vacated.

        [IV.] The General Assembly, rather than the courts, determines
        what new procedures must be created in order to insure fair
        trials. Sending a jury out a second time is a new procedure,
        therefore the five to ten year consecutive sentence on [the
        possession of a firearm by a person prohibited charge] should be
        vacated. The life without parole sentence on [m]urder should be
        vacated because the sentencing scheme is disturbed.

        [V.] The [t]rial [c]ourt abused its discretion when it overruled
        the defense objection to characterization by the prosecution
        witness of behavior depicted in the video in spite of the [c]ourt’s
        prior ruling.

        [VI.] The [t]rial [c]ourt abused its discretion when it overruled
        the defense objection challenging a hypothetical question which
        had no basis in fact in the record.

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Appellant’s Brief at 7-8.

      Appellant first contends that the evidence was insufficient to sustain

his convictions.   In Commonwealth v. Lambert, 795 A.2d 1010 (Pa.

Super. 2002), we set forth our standard of review of such a claim, stating:

      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
      that of 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
      trier 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.

Id. at 1014 (citations and internal quotation marks omitted).

      Appellant challenges his convictions of first-degree murder and

possession of a firearm by a person prohibited.

      To find a defendant guilty of first-degree murder a jury must find
      that the Commonwealth has proven that he or she unlawfully
      killed a human being and did so in an intentional, deliberate and
      premeditated manner.         It is the element of a willful,
      premeditated and deliberate intent to kill that distinguishes first-
      degree murder from all other criminal homicide. Specific intent
      to kill may be inferred from the defendant’s use of a deadly
      weapon upon a vital part[] of the victim’s body.


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Commonwealth v. Sattazahn, 763 A.2d 359, 363 (Pa. 2000). The offense

of possession of a firearm by a person prohibited is defined in 18 Pa.C.S. §

6105. This Court has explained the requirements for proving that offense,

stating:

      In order to obtain a conviction under 18 Pa.C.S. § 6105, the
      Commonwealth must prove beyond a reasonable doubt that the
      defendant possessed a firearm and that he was convicted of an
      enumerated offense that prohibits him from possessing, using,
      controlling, or transferring a firearm. The term “firearm” is
      defined in that section as any weapon that is “designed to or
      may readily be converted to expel any projectile by the action of
      an explosive or the frame or receiver of any such weapon.” 18
      Pa.C.S. § 6105(i).

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009).

      Appellant focuses the majority of his argument on challenging his

firearm offense, contending that the evidence was insufficient because there

was no gun in evidence, [and] no testimony on barrel length or

concealment….”    Appellant’s Brief at 41.   Initially, section 6105 does not

require the Commonwealth to produce the firearm possessed by the

prohibited person, nor does it require evidence that the person concealed

the weapon. See Thomas, supra. Moreover, our Supreme Court has held

that following section 6105’s amendment in 1995 to add a definition of

“firearm,” as used in that provision, barrel length is no longer an element of

an offense under section 6105.     Commonwealth v. Gillespie, 821 A.2d

1221, 1225 (Pa. 2003) (holding that under the amended version of section

6105, the definition of “firearm” in that provision “includes any weapon

capable of discharging a projectile by means of explosion, regardless of the

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weapon’s barrel length[,]” thus overruling Commonwealth v. Todd, 384

A.2d 1215 (Pa. 1978)). Accordingly, Appellant’s arguments pertaining to the

sufficiency of the evidence to sustain his conviction under section 6105 are

meritless.

      In regard to Appellant’s conviction of first-degree murder, he offers no

explicit argument regarding how the evidence was insufficient to sustain that

offense. Instead, he presents only a general challenge to the credibility of

the Commonwealth’s witnesses, which is not an appropriate challenge to the

sufficiency of the evidence.    See Appellant’s Brief at 42 (attacking the

credibility of Shaquan Cooper); Commonwealth v. Price, 616 A.2d 681,

683 (Pa. Super. 1992) (finding that a challenge to the credibility of a witness

goes to the weight, not the sufficiency, of the evidence).      Appellant also

briefly suggests that this Court should view the record in the light most

favorable to him, and conclude that the evidence demonstrated that Colon

killed Anderson.   Appellant’s Brief at 43 (stating that this panel should

conclude “that the Colon murder was likely in retaliation for Colon’s shooting

of Anderson; that the angle of the bullet that killed Anderson bears that out;

that if [Appellant] told Shaquan Cooper he was going to kill Anderson, he

may have referred to Mr. Colon’s intentions; and that if [Appellant] tried to

obstruct justice via prison telephone, he was trying to protect someone

else”). Appellant’s request disregards this Court’s standard of review, under

which we are required to view the evidence in the light most favorable to the

Commonwealth, as verdict winner. See Lambert, 795 A.2d at 1014.

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      Applying that standard, and reviewing the record of Appellant’s trial,

we are satisfied that the evidence was sufficient to convict Appellant of first-

degree murder and possession of a firearm by a person prohibited.           We

agree with the trial court’s summary of the evidence that proved both of

those crimes:

      The footage from the surveillance cameras at the Benjamin
      Banneker Apartment Buildings show Appellant, walking away
      with Anderson and Colon, at first to the left of Anderson. Then,
      Appellant begins to slow down and drop back to position himself
      directly behind the victim. As the group turns the corner, we see
      Appellant begin to raise his hand, [and] within a split second, we
      see Anderson fall to the ground. Shaquan Cooper, who was
      there that night, heard a gunshot, ran to see what was going on
      and saw Anderson’s body on the ground, with a gunshot wound
      to his head. The detectives testified that the two people walking
      with Anderson in the video were Appellant and David Colon.
      Appellant told Shaquan he was going to kill his brother, Jasmarr
      Anderson[,] and after he did, he threatened to kill Shaquan.
      Appellant did not stop there[;] he made sure to make a call
      [from prison] and let everyone know they were not to say a
      word at trial. The evidence was sufficient to sustain a conviction
      on both charges. The jury heard the evidence, that Jasmarr
      Anderson was murdered and that the cause of death was a
      gunshot wound to the head. The jury determined, after listening
      to all of the evidence, that Appellant was the one who murdered
      Jasmarr Anderson.

TCO at 9-10.

      Based on this evidence, the jury could conclude, beyond a reasonable

doubt, that Appellant killed Anderson, and did so in an intentional, deliberate

and premeditated manner.      The fact that Appellant shot Anderson in the

back of the head is enough, alone, to prove his specific intent to kill

Anderson. See Sattazahn, 763 A.2d at 363. Additionally, it is clear that



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Anderson was shot, and because the evidence was sufficient to demonstrate

that Appellant was the shooter, he was obviously in possession of a firearm.

Appellant stipulated that he had a 2008 conviction for aggravated assault,

which precludes him from possessing a firearm under 18 Pa.C.S. § 6105(b).

Consequently, the evidence was also sufficient to sustain his firearm

conviction.

      Appellant next contends that the trial court erred by denying his

pretrial motion seeking discovery of “the police file on the murder of David

Colon….”      Appellant’s Brief at 28.   “We begin by noting that decisions

involving discovery in criminal cases lie within the discretion of the trial

court.”   Commonwealth v. Smith, 955 A.2d 329, 394 (Pa. Super. 2008)

(en banc) (citation omitted). “The court’s ruling will not be reversed absent

abuse of that discretion.” Id. (citation omitted).

      At a hearing conducted on Appellant’s discovery motion, his counsel

explained the basis for seeking discovery of Colon’s police file, as follows:
      [Defense Counsel]: If I may, Your Honor, the facts of this case, I
      think there’s very little dispute on the facts of this case; that
      [Appellant] and Mr. Colon were with the victim, actually walking
      along with the victim. The critical point in time comes when my
      client and Mr. Colon are literally standing side-by-side and the
      victim is standing -- not standing, but actually walking in front of
      them, they’re walking side-by-side. And then obviously the
      victim was shot and dies. Mr. Colon, I believe, Mr. Colon and
      [Appellant] were suspects in this case from the beginning. The
      case -- the evidence against [Appellant], the way I understand
      it, Judge, is a video. Having said that, though, the video doesn’t
      show a gun or the video doesn’t show a flash. The video doesn’t
      show anything other than [Appellant’s] hands moving. It’s been
      our contention, just like I think when the police were
      investigating whether it was him or Mr. Colon. Two weeks after

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        -- they never find Mr. Colon. I know at one point in time, there
        were certainly police all over Chester looking for Mr. Colon in
        regards to this homicide. Two weeks after this homicide, Mr.
        Colon is murdered.         My information, Judge, that I can’t
        substantiate it, but my information is that [Colon] was shot and
        killed in retribution for this particular case because they believe
        he shot [Anderson]. And so the investigation into Mr. Colon’s
        homicide I believe is relevant. Again, I can’t say it is because I
        haven’t seen it. But, I believe it certainly could be relevant if in
        fact there are people making those statements, they may have
        information that could lead me to witnesses that could confirm it
        was Mr. Colon who did the shooting.

N.T. Hearing, 6/12/14, at 3-4.

        In response, the Commonwealth first pointed out that it had already

provided Appellant with certain information regarding Colon’s murder, and it

argued that discovery of the entire file on Colon’s murder was not

appropriate where “[t]he David Colon murder is an ongoing[,] open

investigation.”     Id.    The Commonwealth also maintained that, “the

Commonwealth has a privilege … to conduct that investigation and there’s

certain confidential information.” Id. at 5-6. The Commonwealth assured

the court that “any exculpatory evidence would be handed over to the

[d]efense[,]” but it argued that the defense should not be allowed “to have a

fishing expedition to get the entire [file of the] ongoing investigation.” Id.

at 6.

        After the Commonwealth presented its argument, defense counsel

suggested “that the [c]ourt make an in camera review” of the Colon file, and

use the court’s discretion, “as somewhat of a neutral observer[,]” to

determine whether any information in the file was exculpatory for Appellant.



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Id. at 6. The court agreed with defense counsel’s suggestion, id. at 7, and

it ultimately reviewed the file and concluded, “after a thorough and careful

examination…[,] that nothing exculpatory existed that would warrant turning

over the file of an ongoing, open homicide investigation.” TCO at 12.

      We ascertain no abuse of discretion in the court’s ruling on Appellant’s

discovery motion. First, the court did not deny the motion outright; instead,

it accepted defense counsel’s suggestion that it review the file in camera and

determine if there was any exculpatory information that should be disclosed

to Appellant. Moreover, while Appellant challenges the court’s “fail[ure] to

place on the record [its] reasons and findings” for not turning over the entire

Colon file to Appellant, he does not point to where in the record he

requested that the court present such findings, or objected to the lack

thereof.   In any event, it was reasonable for the court not to provide an

explanation of precisely what information was contained in the file, and why

it was not exculpatory for Appellant, considering the confidential nature of

the ongoing investigation of Colon’s murder. Accordingly, Appellant’s second

issue is meritless.

      In Appellant’s third claim, he argues that his double jeopardy rights

were violated because “the jury deliberated and rendered verdicts twice[;]”

once on the murder charge and once on the section 6105 charge.

Appellant’s Brief at 38.   While Appellant baldly claims “fifth amendment

double jeopardy applies[,]” he does not offer any argument or legal

authority to support this claim.    Appellant’s Brief at 38-39.   Instead, he

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focuses on contending that “the procedural elements” of his case “fall

squarely within compulsory joiner [sic] doctrine codified by [18 Pa.C.S. §§]

109 and 110.” Id. at 38. Appellant relies on the following portions of those

statutory sections:

      When a prosecution is for a violation of the same provision of the
      statutes and is based upon the same facts as a former
      prosecution, it is barred by such former prosecution under the
      following circumstances:

         …

         (3) The former prosecution resulted in a conviction. There
         is a conviction if the prosecution resulted in a judgment of
         conviction which has not been reversed or vacated, a
         verdict of guilty which has not been set aside and which is
         capable of supporting a judgment, or a plea of guilty
         accepted by the court. In the latter two cases failure to
         enter judgment must be for a reason other than a motion
         of the defendant.

18 Pa.C.S. § 109(3).

      Although a prosecution is for a violation of a different provision
      of the statutes than a former prosecution or is based on different
      facts, it is barred by such former prosecution under the following
      circumstances:

         (1) The former prosecution resulted in an acquittal or in a
         conviction as defined in section 109 of this title (relating to
         when prosecution barred by former prosecution for the
         same offense) and the subsequent prosecution is for:

             (i) any offense of which the defendant could have
             been convicted on the first prosecution;

             (ii) any offense based on the same conduct or arising
             from the same criminal episode, if such offense was
             known to the appropriate prosecuting officer at the
             time of the commencement of the first trial and
             occurred within the same judicial district as the
             former prosecution unless the court ordered a
             separate trial of the charge of such offense[.]

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18 Pa.C.S. § 110(1)(i)-(ii).

      Preliminarily, in Appellant’s Rule 1925(b) statement, he presented this

claim, as follows: “Appellant’s double jeopardy rights were violated when the

[t]rial [c]ourt bifurcated Murder in the first degree from [p]ersons not to

possess, use, manufacture, control, sell or transfer firearms.”     Pa.R.A.P.

1925(b) Statement, 4/10/15, at 1 (unnumbered).           Appellant made no

mention of 18 Pa.C.S. §§ 109 or 110 and the trial court did not address

Appellant’s argument in this regard.     Thus, his claim that the bifurcated

procedure employed by the trial court violated those statutes is waived.

See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

      Additionally, Appellant also waived his claim that his ‘double jeopardy

rights’ were violated by the bifurcation of the murder and section 6105

charges.     As the trial court pointed out, “there was no objection by trial

counsel” in this regard before the trial on the murder charge, or prior to the

jury’s second deliberation on the section 6105 violation.     Appellant even

concedes that he consented to the bifurcated proceedings. See Appellant’s

Brief at 34 (“There is no disagreement that the [t]rial [c]ourt with the

consent of all counsel bifurcated this trial.”). By not objecting at either of

these junctures, Appellant consented to the bifurcation of the charges. He




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cannot now argue that that procedure violated his double jeopardy rights. 2

See Commonwealth v. Peters, 373 A.2d 1055, 1057 (Pa. 1977) (holding

that the failure to raise a double jeopardy claim prior to the commencement

of the second trial waives that issue); see also Commonwealth v. Perillo,

626 A.2d 163, 168 n.6 (Pa. Super. 1993) (noting that in Commonwealth v.

Gilman, 401 A.2d 335 (Pa. 1979), our Supreme Court “held that a

defendant waived his claim that retrial amounted to double jeopardy

because he did not move to dismiss prior to retrial”).

       In Appellant’s next issue, he argues that the bifurcation of the

proceedings violated this Court’s holding in Commonwealth v. Valentine,

101 A.3d 801 (Pa. Super. 2014). Valentine was a decision by this Court

issued after the Supreme Court of the United States ruled, in Alleyne v.

United States, 133 S.Ct. 2151, 2163-64 (2013), that any fact that triggers

application of a mandatory minimum sentence is an element of the offense

and must be determined by the fact-finder beyond a reasonable doubt. In

light of Alleyne, the trial court in Valentine provided the jury with a special

verdict slip, asking it to determine whether the factual predicates for

imposing a mandatory minimum sentence had been proven beyond a

reasonable doubt. Valentine, 101 A.3d at 804-805. On appeal, this Court

concluded that “the trial court performed an impermissible legislative

____________________________________________


2
  We also point out that Appellant offers no meaningful argument, or citation
to any legal authority, to support his double jeopardy claim.



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function by creating a new procedure in an effort to impose the mandatory

minimum sentences in compliance with Alleyne.” Id. at 811.

      Appellant contends that, “Valentine is not limited to Alleyne

mandatory minimum maladies but its holding applies to any effort a [t]rial

[c]ourt makes to legislate a new procedure from the bench.”        Appellant’s

Brief at 36 (citation omitted). We disagree. In Valentine, the language of

the statute at issue, a mandatory minimum sentencing provision, declared

that the court must determine, by a preponderance of the evidence, the fact

triggering application of the mandatory minimum sentence. See 42 Pa.C.S.

§ 9713(c).    In attempting to satisfy Alleyne, the trial court in Valentine

had contravened the explicit procedure set forth by the legislature in section

9713(c), and created a new procedure of presenting the triggering fact to

the jury on the verdict slip. In reversing the trial court in Valentine, this

Court carefully limited our language to situations involving Alleyne and

mandatory minimum sentencing provisions.       See Valentine, 101 A.3d at

811 (“We find that it is manifestly the province of the General Assembly to

determine what new procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania following Alleyne.”; “[T]he

trial court performed an impermissible legislative function by creating a new

procedure in an effort to impose the mandatory minimum sentences in

compliance with Alleyne.”) (emphasis added).

      For these reasons, we disagree with Appellant that Valentine extends

to the circumstances of this case. Here, there was no mandatory minimum

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sentence or Alleyne issue and, therefore, Appellant’s claim that Valentine

applies is meritless on its face.        Furthermore, unlike the trial court in

Valentine, the court in this case did not contravene any statutory language

when it bifurcated Appellant’s murder and section 6105 charges.              Indeed,

the trial court employed a bifurcated procedure not only with the consent of

Appellant, but also to avoid any prejudice he might suffer from the jury’s

being informed of his prior aggravated assault conviction.              Accordingly,

Appellant’s fourth claim is meritless.

        In Appellant’s fifth issue, he contends that the trial court abused its

discretion when it permitted Detective Jay to testify about “behavior

depicted in the video” of the shooting. Appellant’s Brief at 40. Initially, we

note:

        The standard of review employed when faced with a challenge to
        the trial court's decision as to whether or not to admit evidence
        is well settled. Questions concerning the admissibility of evidence
        lie within the sound discretion of the trial court, and a reviewing
        court will not reverse the trial court's decision absent a clear
        abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498
        (Pa. Super. 2005). Abuse of discretion is not merely an error of
        judgment, but rather where the judgment is manifestly
        unreasonable or where the law is not applied or where the record
        shows that the action is a result of partiality, prejudice, bias or ill
        will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted).

        Appellant’s entire argument in support of his fifth claim consists of the

following paragraph:



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              Before Detective Jay testified to authenticate a video of the
      shooting the [c]ourt ruled as follows: “(Defense Counsel) …, I’m
      going to allow Detective Jay to testify as to what he observes on
      the video. He will not be allowed to say -- identify the shooter
      or anything. If he sees the arm being raised, he can interpret
      [and] you can cross-examine him on it. That’s where we are.”
      But the video quality was bad and the prosecutor needed
      Detective Jay to say that it showed [Appellant] moving toward
      Mr. Anderson. The trial court may have let the video speak for
      itself.

Appellant’s Brief at 40.      Appellant’s underdeveloped argument, which

contains no citation to the record or to any legal authority, waives this issue

for our review.   See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.

Super. 2007) (noting that the “brief must support the claims with pertinent

discussion, with references to the record and with citations to legal

authorities” and that “when defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived”).

      Finally, in Appellant’s sixth issue, he contends that the trial court

abused its discretion by allowing the Commonwealth to ask the pathologist,

Dr. Bennet Preston, the following hypothetical question:

      [The Commonwealth:] Doctor, the injuries you described, if I’m
      an individual and I’m the shooter, I’m holding a gun behind
      someone’s head and the victim’s head is in front of me and it is
      slightly turned to the left, would I see a similar result?

N.T. Trial, 10/16/14, at 26. Defense counsel objected, stating, “[t]here’s no

facts in evidence.   It’s not in his report.”    Id.   The court overruled the

objection and the doctor answered the hypothetical question, as follows:



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J-S21014-16


       [Dr. Preston:] In a hypothetical like I said, as I said before, I can
       only tell you where the gun was. Now if I’m walking[,] for
       argument sake[,] and the person, whoever that person was, is
       behind me and I’m walking like this and I turn slightly like this to
       the side and the guy, whoever the person was, shot me like this
       you would get the same trajectory.

Id. at 27.

       Appellant contends that this hypothetical question and response by Dr.

Preston was improper because it was based on a fact not in evidence or

contained in the doctor’s report, i.e., that the victim’s head was turned

slightly to the left. He argues that the admission of this evidence prejudiced

him    because,     before    Dr.   Preston    answered   the   hypothetical,   “the

uncontroverted scientific evidence pointed to Mr. Colon” as being the

shooter.3 Appellant’s Brief at 24. He maintains that the doctor’s response to

the hypothetical tended “to prove that the shot could have come from

[Appellant’s] angle[,]” a fact which, according to Appellant, no other

evidence demonstrated. Id. at 23.

       We need not assess whether it was error for the court to admit the

Commonwealth’s hypothetical question and Dr. Preston’s answer.              Even if

this evidence was improper, we agree with the Commonwealth that the error

of admitting it was harmless. See Commonwealth’s Brief at 19.

       “The harmless error doctrine, as adopted in Pennsylvania,
       reflects the reality that the accused is entitled to a fair trial, not
       a perfect trial.” Commonwealth v. Rasheed, 536 Pa. 567, 640
____________________________________________


3
  We point out that Appellant does not cite to what portion(s) of the record
contains the ‘uncontroverted scientific evidence’ that Colon was the shooter.



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J-S21014-16


     A.2d 896, 898 (1994); Commonwealth v. Story, 476 Pa. 391,
     383 A.2d 155 (1978). We have described the proper analysis as
     follows:

        Harmless error exists if the record demonstrates either:
        (1) the error did not prejudice the defendant or the
        prejudice was de minimis; or (2) the erroneously admitted
        evidence was merely cumulative of other untainted
        evidence which was substantially similar to the erroneously
        admitted evidence; or (3) the properly admitted and
        uncontradicted evidence of guilt was so overwhelming and
        the prejudicial effect of the error was so insignificant by
        comparison that the error could not have contributed to
        the verdict.

     Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 507
     (1997); Commonwealth v. Williams, 524 Pa. 404, 573 A.2d
     536 (1990).

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014).

     Here, we conclude that any prejudicial effect of the admission of the

hypothetical question and Dr. Preston’s response was insignificant in

comparison to the evidence establishing Appellant’s guilt. Notably, after Dr.

Preston answered the hypothetical question set forth supra, he was asked a

second hypothetical question (without objection by the defense), and

answered as follows:

     [The Commonwealth:] And if someone was standing -- if the
     shooter was standing on your left, completely on your left, and
     had made a similar shooting, how would the victim’s head have
     to be positioned?

     [Dr. Preston:] Then the gun, like I said, was directly at the head
     then the head would have to be turned a little bit like this and
     then to get that trajectory the head would have to be turned
     slightly to right to get that trajectory.

N.T. Trial, 10/16/14, at 27. Essentially, these two hypotheticals inferred to

the jury that if the victim’s head was turned to the left, it supported that

                                   - 21 -
J-S21014-16



Appellant was the shooter, and if the victim’s head was turned to the right,

Colon could have been the shooter.        However, the Commonwealth did not

attempt to prove which way the victim’s head was turned; thus, the doctor’s

responses to the hypothetical questions were not especially compelling

evidence regarding the guilt of either Appellant or Colon.

      Consequently, the prejudicial impact of the first hypothetical question,

and Dr. Preston’s answer, was minimal, at best, and the evidence supporting

Appellant’s guilt clearly overcame that prejudice.        Specifically, the video

from the apartment complex showed Appellant’s positioning himself directly

behind Anderson, and raising his arm immediately before Anderson fell to

the ground.     Dr. Preston testified that the gun that killed Anderson was

pointed at the back of Anderson’s head and slightly to the left, which

supported that Appellant, who was standing behind the victim, fired the

weapon.    The Commonwealth also presented a witness, Shaquan Cooper,

who testified that Appellant had threatened to kill Anderson not long before

the murder.     Finally, the Commonwealth proffered evidence of phone calls

Appellant made from prison in which he attempted to convince witnesses not

to appear for trial, or to testify that they did not remember anything about

the shooting.    All of this evidence, taken together, was ample proof that

Appellant committed the murder, and clearly outweighed any prejudicial

impact    caused   by   Dr.   Preston’s   response   to   the   Commonwealth’s

hypothetical question. Accordingly, Appellant’s final issue is meritless.

      Judgment of sentence affirmed.

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J-S21014-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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