J-S23011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 LEYRON JOHNS                               :
                                            :
                   Appellant                :   No. 2364 EDA 2017

          Appeal from the Judgment of Sentence February 3, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007246-2015


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 18, 2018

      Leyron Johns (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County on February 3,

2017, following a bench trial. We affirm.

      Joseph Torres (“Torres”) was fatally shot on July 15, 2015, in the City

of Chester, Delaware County, Pennsylvania.        Appellant was arrested and

charged with the death of Torres on October 10, 2015.        During a police

interview on that day, Appellant confessed to killing Torres. Appellant sought

suppression of his confession by filing an omnibus pretrial motion on

March 28, 2016. Following a hearing, the trial court denied the motion. Order,

6/8/16.

      Appellant proceeded to a four-day nonjury trial in October of 2016. The

trial court found Appellant guilty of first degree murder, robbery, and


____________________________________
* Former Justice specially assigned to the Superior Court.
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possession of an instrument of crime (“PIC”).1 Verdict Slip, 10/14/16. On

February 3, 2017, the trial court sentenced Appellant to: incarceration for life

without the possibility of parole on the murder conviction; a consecutive

sentence of incarceration for seventy-two months to 144 months on the

robbery conviction; and a concurrent sentence of six months to twelve months

on the PIC conviction. Appellant filed post-sentence motions on February 13,

2017, which the trial court denied.            Order, 6/9/17.   This timely appeal

followed. Appellant and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents the following questions for review:

       1. Whether the Appellant’s confession was obtained in violation of
       his right to due process of law and against self incrimination,
       guaranteed the Appellant by the Fourth, Fifth, Sixth and
       Fourteenth Amendments to the United States Constitution and
       Article 1 Sections 8 and 9 of the Pennsylvania Constitution, where,
       under the totality of the circumstances, the confession was
       involuntary in that it was not the product of Appellant’s free will
       and unconstrained choice, but, instead, was the result of
       manipulative, coercive and overreaching interrogation by police.

       2. Whether the trial court committed legal error and abuse of its
       discretion in admitting into evidence testimony of a deputy district
       attorney regarding the agreement between the Commonwealth
       and a cooperating co-defendant, who testified in exchange for
       reduced charges.

Appellant’s Brief at 4.2

____________________________________________


1   18 Pa.C.S. §§ 2502, 3701, and 907, respectively.

2  In his Pa.R.A.P. 1925(b) statement, Appellant raised two suppression
issues, one concerning his confession and one concerning a DNA sample.
Pa.R.A.P. 1925(b) Statement, 7/31/17, at ¶¶ 1, 2. However, Appellant has



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       Appellant first argues that the trial court abused its discretion by

denying the motion to suppress because Appellant’s confession was not “the

product of Appellant’s free will but, instead, [was] obtained as a result of

coercion and overreaching by police.”            Appellant’s Brief at 19.   Appellant

“contends that the totality of the circumstances demonstrates that his

confession was not given voluntarily.”           Id. at 23.   Appellant highlights his

confinement in the holding area and the police detective’s failure to provide a

written Miranda3 form before the interview, misuse of a recording device,

falsification of evidence, coercion, and psychological manipulation. Id. at 23–

27.

             Our standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is limited to determining
       whether the factual findings are supported by the record and
       whether the legal conclusions drawn from those facts are correct.

             We may consider only the evidence of the prosecution and
       so much of the evidence for the defense as remains
       uncontradicted when read in the context of the record as a whole.
       Where the record supports the findings of the suppression court,
       we are bound by those facts and may reverse only if the court
       erred in reaching its legal conclusions based upon the facts.

             Moreover, it is within the lower court’s province to pass on
       the credibility of witnesses and determine the weight to be given
       to their testimony.




____________________________________________


not presented the DNA issue in his appellate brief; therefore, we consider that
issue abandoned and will not address it. Pa.R.A.P. 2116(a).

3   Miranda v. Arizona, 384 U.S. 436 (1966).

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           Furthermore, our Supreme Court . . . clarified that the scope
     of review of orders granting or denying motions to suppress is
     limited to the evidence presented at the suppression hearing.

Commonwealth v. Williams, 176 A.3d 298, 315–316 (Pa. Super. 2017)

(internal formatting, quotation marks, and citations omitted).

     Regarding the voluntariness of a confession, we have stated:

     “It is well-established that when a defendant alleges that his
     confession was involuntary, the inquiry becomes not whether the
     defendant would have confessed without interrogation, but
     whether the interrogation was so manipulative or coercive that it
     deprived the defendant of his ability to make a free and
     unconstrained decision to confess.”          Commonwealth v.
     Yandamuri, ––– Pa. ––––, 159 A.3d 503, 525 (2017) (internal
     citations omitted). Voluntariness is the touchstone inquiry when
     deciding a motion to suppress a confession, and voluntariness is
     determined upon review of the totality of the circumstances.
     Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 882
     (1998). In assessing the totality of the circumstances, the
     suppression court should consider: “the duration and means of the
     interrogation; the defendant’s physical and psychological state;
     the conditions attendant to the detention; the attitude exhibited
     by the police during the interrogation; and all other factors that
     could drain a person’s ability to resist suggestion and coercion.”
     Yandamuri, 159 A.3d at 525.

Commonwealth v. Fitzpatrick, ___ A.3d ___, 2018 PA Super 55, at *5 (Pa.

Super. filed March 14, 2018). Additional relevant factors include:

     the accused’s age and level of education and experience; his
     extent of previous experience with the police; whether the
     accused was advised of his constitutional rights; whether he was
     injured, ill, drugged, or intoxicated when he confessed; whether
     he was deprived of food, sleep or medical attention, and whether
     he was abused or threatened with abuse.

Yandamuri, 159 A.3d at 525 (citation omitted).             Furthermore, the

Pennsylvania Supreme Court has found that the use of artifice or intentional


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misrepresentations to obtain a confession is insufficient to make an otherwise

voluntary confession inadmissible “where the deception does not produce an

untrustworthy    confession    or   offend    basic   notions    of   fairness.”

Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994).

     In an effort to facilitate effective appellate review of Appellant’s

suppression issue, the trial court provided the following findings of fact and

conclusions of law:

                              Findings of Fact

     1.   Detective Adam Sendek, currently of the Delaware County
          Criminal Investigation Division (hereinafter “CID”), has been
          with CID for 16 years. Prior to his position within the Homicide
          Squad of CID, Detective Sendek was a police officer with the
          Chester Police Department for 30 years and 3 months. N.T.,
          5/6/16, p. 15. Detective Sendek has advised suspects of their
          Miranda warnings many times5 over the course of his career.
          Id. at 15.

                  5  Detective Sendek approximated that he has
                  administered Miranda warnings “a thousand
                  plus” times. N.T., 5/6/17, p. 15.

     2.   Detective Sendek was assigned to investigate the shooting of
          Joseph Torres on July 27, 2015 in the City of Chester along
          with Patrick Mullen from the City of Chester Police
          Department. Id. at 15-16.

     3.   On October 10, 2015, after he learned that the Appellant had
          been arrested, Detective Sendek went to the Chester Police
          Station. Id. at 16. He arrived at approximately 8:30 P.M. Id.

     4.   When he arrived, the Appellant was in the holding cell area of
          the police station, which is located on the ground floor of the
          police station. Id. at 17. The Appellant was sitting on a bench.
          Id. at 17.




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     5.   Detective Sendek approached the Appellant and took him
          from the cell block to an interview room on the third floor of
          the police station. Id. at 17. The Appellant was handcuffed.
          Id. [at 18.]

     6.   Corporal Carey of the Chester Police Department
          accompanied Detective Sendek and was present during the
          interview of the Appellant.

     7.   When they reached the room, Detective Sendek removed the
          handcuffs from the Appellant’s hands and explained that he
          was under arrest for the murder of Joseph Torres. Id. at 18.

     8.   Detective Sendek then read the complaint and affidavit of
          probable cause to the Appellant. Id. at 18.

     9.   Detective Sendek turned on a digital recorder and read the
          Miranda warnings to the Appellant from a printed card. Id. at
          19-20. See also Commonwealth Exhibit CS-1. Specifically,
          Detective Sendek advised the Appellant that he had the right
          to remain silent, that anything he told him could be used
          against him in court, that he had the right to have an attorney
          present during questioning, and that if he could not afford an
          attorney that one would be provided for him free of charge.
          Id. at 24.

     10. After he had given the warnings, Detective Sendek told the
         Appellant about the evidence that the police had obtained
         during their investigation and advised the Appellant that the
         police had obtained a video surveillance from the crime scene
         and found his fingerprints in the victim’s pickup truck. Id. at
         21-22.

     11. The Appellant told Detective Sendek that his fingerprints were
         likely in the victim’s car because he had been in the truck the
         week prior, when he had helped him purchase pills in Chester.
         Id. at 22.

     12. Detective Sendek also advised the Appellant that his co-
         defendant, Ronald Myers, had made a statement to police
         implicating the Appellant in the crime. Id.

     13. The Appellant told Detective Sendek that he was at home at
         the time of the shooting and that he had an alibi. Id. at 22.

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     14. It was at this point of the interview, after speaking to the
         Appellant for about 10 minutes, that Detective Sendek
         realized that the audio recorder was not turned on. Id. at 22-
         23, 62. He noticed the “red” record[ing] light on the tape
         recorder was not illuminated. He then turned the recorder
         “on” and continued the interview. He reiterated some of the
         conversation that he had just had with the Appellant. He did
         not re-read the Miranda warnings at this time. He explained
         to the court that he restated the following: “I thought we were
         recording earlier, but apparently we had a mistake. You were
         given your Miranda warnings, correct? Yes. And after giving
         you your warnings to have an attorney present before and
         after questioning, you decided to talk to us? Yes. And I read
         the complaint to you - against you charging you with murder?
         Yes.” Id. at 27.

     15. Detective Sendek then began speaking to the Appellant
         again. This recorded interview lasted approximately 25
         minutes. Id. at 30, 63. During this interview, the Appellant
         confessed to his involvement in the homicide.

     16. The Appellant did not ask to have an attorney present and did
         not attempt to terminate the interview. Id. at 35.

     17. After the interview, Detective Sendek went over his Miranda
         rights again, using a form this time that was provided to him
         by Corporal Carey. Id. at 30, 32, 35-36; see also
         Commonwealth Exhibit CS-3. Detective Sendek explained
         that the Appellant initialed the seven questions contained on
         the form and signed it in three places. Id. at 32. The Appellant
         then asked Detective Sendek to turn on the recorder again
         and he made a second statement. This interview lasted
         approximately 2 minutes. Id. at 63.

     18. At the conclusion of the interview, Detective Sendek thanked
         the Appellant and walked him down to the cell block. Id. at
         34.

                        Conclusions of Law

     1.   When deciding a motion to suppress a confession, the
          touchstone inquiry is whether the confession was voluntary.
          Commonwealth v. Nester, 551 Pa. 157, 164, 709 A.2d 879,
          882 (1998) (citing Arizona v. Fulminante, 499 U.S. 279, 111

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          S.Ct. 1246, 113 L.Ed.2d 302 (1991); Culombe v. Connecticut,
          367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)).
          Voluntariness is determined from the totality of the
          circumstances surrounding the confession. Id. (citing
          Fulminante; Schneckloth v. Bustamonte, 412 U.S. 218, 93
          S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Jones,
          546 Pa. 161, 683 A.2d 1181 (1996)).

     2.   To be admissible, a confession must be voluntary.
          Commonwealth v. DiStefano, 782 A.2d 574, 581 (Pa. Super.
          2001).

     3.   In determining voluntariness, the court should look at “the
          duration and means of the interrogation; the physical and
          psychological state of the accused; the conditions attendant
          to the detention; the attitude of the interrogator; and any and
          all other factors that could drain a person’s ability to
          withstand suggestion and coercion.” Nester, 551 Pa. at 164.

     4.   It is the Commonwealth’s burden to prove by a
          preponderance of the evidence that the defendant’s
          confession was voluntarily made. Id.

     5.   The suppression court, which hears and evaluates the
          testimony, must determine whether the Commonwealth has
          established by a preponderance of the evidence that the
          confession was voluntary. Commonwealth v. Kichline, 468 Pa.
          265, 280, 361 A.2d 282, 290 (1976).

     6.   In the case sub judice, the Appellant was not subjected to a
          lengthy interrogation. He was given his Miranda warnings
          prior to the commencement of the interview with Detective
          Sendek and he made it clear that he understood and was
          waiving his rights.

     7.   The Appellant was not physically coerced and was not made
          any false promises by the police. The record reflects that his
          decision to give a statement was the product of his free will
          and unconstrained choice.

     8.   The Commonwealth proved by a preponderance of the
          evidence that the Appellant’s confession was voluntary.

Trial Court Opinion, 11/8/17, at 6–9.

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      Our review of the suppression testimony confirms that the trial court’s

factual findings are supported by the record and its legal conclusions drawn

from those facts are correct. Williams, 176 A.3d at 315–316. According to

Detective Sendek, Appellant did not appear to have and did not complain of

any physical problems while in police custody. N.T., 5/6/16, at 18, 35. During

the interview process, Appellant was not handcuffed, although he was in leg

irons. Id. The interview room was approximately twenty feet by eight feet;

it had one window, a table and three or four chairs.     Id. at 40–41. Only

Detective Sendek and Corporal Carey were present in the room, and only

Corporal Cary was in uniform. Id. at 17, 35, 38.

      Detective Sendek began the interview by informing Appellant why he

was being questioned, and he read to Appellant the criminal complaint and

affidavit of probable cause. N.T., 5/6/16, at 18–19. Detective Sendek then

stated to Appellant, “[I]n order for me to talk to you, I have to give you your

rights, your [Miranda] warnings.” Id. at 20, 42. Although Detective Sendek

usually employs a Miranda waiver form, he chose to use a digital recorder

and read the Miranda warnings to Appellant from the “little blue card that

[he] would have in [his] wallet.” Id. at 19–20, 23–25, 42-43, Exhibit CS-1

(blue card).   Appellant agreed to speak with the detective.       Id. at 24.

Detective Sendek did not conduct any questioning before turning on the

recorder. Id. at 20.




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      Within ten minutes of interviewing Appellant, Detective Sendek noticed

that the recorder was not operating.    N.T., 3/6/16, at 21–22, 62–63.      He

apologized to Appellant and went “[b]ack on the record[.]”         Id. at 23.

Although Detective Sendek did not restate the Miranda warnings in their

entirety once the recorder was operating, Appellant confirmed on the record

that they had been given to him, that he agreed to talk with the detective,

and that he knew the interview was being recorded. Id. at 26–27, Exhibits

CS-2 (tape of digital recording) and CS-2A (transcript of recorded interview).

The recorded interview lasted approximately twenty-five minutes. Id. at 30.

At the conclusion of the recorded interview, Appellant initialed and signed a

written Miranda warning waiver form that Corporal Carey provided. Id. at

30, 32–35, 50–51, 62, Exhibit CS-3. Appellant then asked Detective Sendek

to go back on the record, and the detective complied.       Id. at 30–32, 60,

Exhibits CS-2 and CS-2B (transcript of second recorded interview).         The

second recorded interview lasted approximately two minutes. Id. at 34.

      Detective Sendek conceded that he confronted Appellant about the

falsity of his statements and told Appellant that the police had a witness and

video evidence which, in fact, they did not have. He also played on Appellant’s

relationship with his mother, suggesting that she would suffer emotional and

financial harm as a result of his bad decision. Id. at 54–59.

      Viewing the totality of the circumstances, we discern no basis for

Appellant’s claim that the police interrogation was so manipulative or coercive


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that it deprived Appellant of his ability to make a free and unconstrained

decision to confess. Fitzpatrick, ___ A.3d at ___, 2018 PA Super 55, at *5.

“[T]he trial court had the opportunity to observe Appellant’s demeanor

extensively during the suppression hearing to assess whether his personality

is one likely to be overborne.” Yandamuri, 159 A.3d at 526. The entire

interview process lasted fewer than thirty minutes.     At no time during the

interviewing did Appellant refuse to speak with Detective Sendek or Corporal

Carey.   He did not ask for an attorney or attempt to end the recorded

interviews.   During the interviewing, Appellant was not harmed, injured,

drugged, or intoxicated; he was not denied food, water, or sleep. Appellant

indicated that he understood his Miranda rights when read to him by

Detective Sendek; he voluntarily signed the Miranda waiver form; and he

initiated the second recorded interview.     Nothing in Appellant’s confession

suggests that he was under compulsion to confess or that he was physically

or mentally compromised. Finally, Detective Sendek’s tactics did not amount

to manipulative or coercive conduct that deprived Appellant of his ability to

decide to confess voluntarily.    See Nester, 709 A.2d at 884 (“Not all

psychological persuasion is prohibited. Encouraging a suspect to cooperate

with the investigation and answer questions honestly is a permissible

interrogation tactic.”).   Accordingly, we conclude Appellant has failed to

establish that his confession was involuntary and should have been

suppressed.


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      Next, Appellant contends that the trial court erred by admitting the

testimony of Deputy District Attorney Stephanie Wills (“Wills”) regarding an

agreement between the Commonwealth and a cooperating co-defendant,

Ronald Myers (“Myers”), who testified in exchange for reduced charges.

Appellant’s Brief at 27. Appellant argues that “evidence of the agreement was

utilized to improperly bolster the credibility of Ronald Myers.” Id. According

to Appellant, because “[a]n express requirement of the Agreement is that

Myers testify truthfully” and Wills testified that Appellant “had done nothing

to cause the Commonwealth to void the agreement,” “the prosecutor

personally assured the trial court of the veracity of the witness.” Id. at 27,

28, 29.

      Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.       Pa.R.E. 401.   The trial court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. Pa.R.E. 403. Evidence will not be prohibited merely

because it is harmful to the defendant. Commonwealth v. Kouma, 53 A .3d

760, 770 (Pa. Super. 2012). Exclusion is limited to evidence so prejudicial

that it would inflame the jury to make a decision based upon something other

than the legal propositions relevant to the case. Id. The trial court is not


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required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged. Commonwealth v. Page, 965 A.2d 1212,

1220 (Pa. Super. 2008).

      Furthermore, the Pennsylvania Supreme Court has stated, “Improper

bolstering or vouching for a government witness occurs where the prosecutor

assures the jury that the witness is credible, and such assurance is based on

either the prosecutor’s personal knowledge or other information not contained

in the record.” Commonwealth v. Smith, 995 A.2d 1143, 1157 (Pa. 2010).

However, reference to a plea agreement that requires truthfulness does not

constitute improper vouching. Commonwealth v. Miller, 819 A.2d 504, 515

(Pa. 2002).

      The trial court disposed of this issue as follows:

             In his final issue on appeal, [Appellant] asserts that the
      court erred in permitting Deputy District Attorney Stephanie
      [Wills] to bolster Myers’ credibility during trial. The court
      respectfully submits that Appellant is not entitled to any relief on
      this claim.

            It is well established that the trial court’s decision to admit
      evidence is subject to review for an abuse of discretion.
      Commonwealth v. Dengler, 586 Pa. 54, 890 A.2d 372, 379 (2005).
      “An abuse of discretion may not be found merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be clearly
      erroneous.” Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131,
      136 (2007); Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038,
      1046 (2003).

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             At trial, Attorney Wills testified regarding the plea
      agreement that was reached between her office and the
      Appellant’s co-conspirator Ronald Myers. She explained that she
      met with Myers and his attorney and they signed an agreement
      on November 9, 2015. N.T., 10/5/16, pp. 190-[1]92. Pursuant
      to the plea agreement, Myers agreed to plead guilty to third
      degree murder, robbery, and criminal conspiracy to deliver a
      controlled substance. Id. at 191. In return, the charge of first
      degree murder was withdrawn and the Commonwealth agreed
      “that it will not make [sic] a position at sentencing . . . that
      [Myers] would enter the plea, and at the time of sentencing, the
      representative for the Commonwealth would only hand up the
      guidelines.” Id. at 192. She explained that Myers sentencing was
      deferred until after the conclusion of the Appellant’s trial and that
      her office would inform the sentencing judge that Myers had
      testified for the Commonwealth. Id. at 193.

             The court submits that this testimony was relevant to show
      any motivation that Myers may have had for testifying at trial and
      implicating the Appellant in the homicide of Torres. Attorney Wills
      explained to the court that while the Appellant was promised that
      the Commonwealth would inform the sentencing court that he
      cooperated at trial by testifying as a Commonwealth witness, he
      was not necessarily promised any leniency or given any other
      assurances by their office. This court submits that it did not abuse
      its discretion in admitting this evidence.

Trial Court Opinion, 11/8/17, at 11–12.

      Upon review of the certified record, we discern no abuse of the trial

court’s discretion in admitting Wills’ testimony.    We recall that this was a

nonjury trial; therefore, the trial court sat as the fact finder.             See

Commonwealth v. Myers, 722 A.2d 649, 651–652 (Pa. 1998) (citing

Commonwealth of Pennsylvania, DoTv. O'Connell, 555 A.2d 873 (Pa.

1989) (“As long as sufficient evidence exists in the record which is adequate

to support the finding found by the trial court, as factfinder, we are precluded

from overturning that finding and must affirm, thereby paying the proper

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deference due to the factfinder who heard the witnesses testify and was in the

sole position to observe the demeanor of the witnesses and assess their

credibility.”)).

       Here, Myers informed the trial court that, pursuant to the open plea

agreement, he was required to testify on behalf of the Commonwealth. N.T.,

10/4/16, at 161; Exhibit C-65 (Myers’ plea agreement).4 He then implicated

Appellant in the murder of Torres. Id. at 164–205. In turn, Wills did not offer

her personal opinion about Myers’ veracity; she indicated only that Myers was

required to cooperate.       N.T., 10/5/16, at 185–188.    In fact, the following

excerpt reveals that Wills avoided any suggestion that Myers testified

truthfully:

       [PROSECUTOR]: And does that agreement generally set out what
       is expected of Mr. Myers in relation to his cooperation in this
       prosecution against his Co-Defendant?

       A      Yes.

       Q   And has Ronald Myers done anything to cause the
       Commonwealth to void its agreement with Mr. Myers?

                                          * * *

       [DEFENSE COUNSEL]: Objection.

       THE COURT:       I’ll allow it. Your objection’s overruled subject to
       what we talked about sidebar. The [c]ourt knows your concern.



____________________________________________


4  We note that Commonwealth Exhibit C-65, Myers’ plea agreement, is not
included in the certified record. Therefore, we restrict our analysis of this
issue to a consideration of Wills’ testimony.

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      [WITNESS]:        The agreement specifically lays out that it’s up
      to—it’s the Commonwealth’s prerogative to make a determination
      if there’s been any deviation from the agreement that Mr. Myers
      entered into, and there’s been nothing that he has done differently
      than what’s been expected of him outlined in this agreement.

N.T., 10/5/16, at 193.        Even on cross-examination, Wills offered no

assessment of Myers’ credibility; she explained that he was to cooperate,

which he did:

      [DEFENSE COUNSEL]: Right. But if he doesn’t testify against
      [Appellant], second-degree murder’s not getting withdrawn, is it?

      A     The agreement lays out his continued cooperation in this
      case, and obviously that was part of -- as he’s been called as a
      witness in this case, so he did testify in this case.

      Q     So the answer is yes, part of the agreement, part of his
      obligation in order to get second-degree murder withdrawn was
      that he testify against [Appellant]. Is that right?

      A     The agreement lays out that he continues to cooperate in
      exchange for those three charges and the second-degree murder
      being withdrawn. It doesn’t outline in there that he will be called
      as a witness. It outlines that he’ll be continued [sic] cooperating,
      and –-

      Q     If he refuses to testify, the deal’s off, isn’t it?

      A     That would be not cooperating.

Id. at 194–195.

      We conclude that Wills did not bolster Myers’ testimony by assuring the

fact finder that Myers was credible based on her personal knowledge or

evidence not contained in the record. Smith, 995 A.2d at 1157. Rather, she

informed the trial court that Myers was required to cooperate and that he did.

Nor did Wills’ testimony invade the fact finder’s credibility determining

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function. The trial court still had to determine whether the evidence presented

at trial was reliable, including Myers’ testimony implicating Appellant and Wills’

testimony about the plea agreement.        Appellant’s contrary claim does not

warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/18




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