J-S66031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAKE KNIGHT,

                            Appellant                 No. 379 WDA 2017


          Appeal from the Judgment of Sentence November 17, 2016
              in the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0006386-2014


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 29, 2017

        Appellant, Jake Knight, appeals from the judgment of sentence

imposed after his jury conviction of second degree murder, conspiracy to

commit burglary, burglary, and three counts of recklessly endangering

another person.1 We affirm.

        We take the following facts and procedural history from the trial

court’s May 8, 2017 opinion and our independent review of the certified

record.

              On the evening of April 10, 2014, Tailyn Howard and
        Janelle Jones invited Lee Williams, Wesley Francis, and Roneka
        Baker to their apartment (17H) in Hawkins Village, in the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(b), 903, 3502(a)(1), and 2705, respectively.
J-S66031-17


     Borough of Rankin, Allegheny County. (See N.T. Trial Volume I,
     August 23-24, 2016, at 48; N.T. Trial Volume II, August 25-26,
     2016, at 354-55, 415-16, 433). Francis and Baker arrived
     together, but Baker left shortly thereafter to check on her
     children in another apartment in Hawkins Village. Once Williams
     arrived, he, Francis, Howard, and Jones sat in the living room
     with the front door open, awaiting Baker’s return. (See N.T.
     Trial Volume II, at 356, 416-17, 434, 436-37).

            At approximately 8:00 P.M., Appellant and another
     individual entered Building 17, each armed with a gun, and each
     wearing a half-mask and all-black clothing. They ran up the
     staircase to Apartment 17H, and stood in the entrance to the
     living room. (See N.T. Trial Volume I, at 47[-48]; N.T. Trial,
     Volume II, at 356, 358-59, 364, 417-19, 437-39). Appellant
     and his accomplice pointed their guns at the individuals in the
     living room, and Appellant commanded them to “lay down.”
     (N.T. Trial Volume II, at 360, 419-20). Williams and Francis
     stood up and told the masked intruders to “get the [F] out,” but
     Appellant and his accomplice remained in the apartment with
     their guns pointed at Francis, Williams, Jones, and Howard. (Id.
     at 361; see id. at 421).

           Williams picked up the coffee table that was in the middle
     of the room, and threw it towards Appellant and his accomplice.
     At the same time, Williams, Francis, Howard, and Jones fled
     towards the rear of the apartment, and Appellant shot Williams
     in the chest. Francis and Howard ran into separate bedrooms,
     and Jones ran into the laundry room; they closed their
     respective doors and hid. Wounded by the gunshot, Williams
     managed to run into the bathroom and close the door. (See
     N.T. Trial Volume I, at 63, 320; N.T. Trial Volume II, at 362-63,
     365-66, 398, 400-402, 421-22, 440).

           Appellant and his accomplice immediately fled from
     Building 17 and ran to the rear of Building 35. Appellant resided
     in Apartment 35B with his mother, who was known in the
     neighborhood as Miss Roxie. (See N.T. Trial Volume I, at 48,
     80; N.T. Trial Volume II, at 422-23, 441).

           After Appellant and his accomplice fled, Williams, Francis,
     Howard, and Jones slowly emerged from their hiding spots.
     Williams was bleeding profusely, and collapsed as he made his
     way into the kitchen. Francis, Jones, and Howard attempted to

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     stop the bleeding, but Williams continued to bleed profusely as
     he lay on the kitchen floor, choking on his own blood. (See N.T.
     Trial, Volume I, at 63; N.T. Trial Volume II, at 363, 366, 441).
     Francis called 911, and paramedics arrived shortly thereafter.
     [In the ambulance, Williams died from gunshot wounds to the
     chest. (See N.T. Volume II, at 367, 441)].

            Police officers from the Allegheny Housing Authority and
     detectives from the Allegheny County Police Homicide Division
     responded to the scene and canvassed the area for the two
     masked gunmen.         During their search, they recovered two
     firearms beneath the rear steps to Building 35, one Glock Model
     31 .357 pistol and one Kel-Tec Model P-11 9mm Luger caliber
     pistol, each with a partially loaded magazine, and each with a
     cartridge in the chamber. (See N.T. Trial Volume I, at 48, 56,
     80, 82, 85, 134-35). The firearms were not there when Chief
     Mike Vogel of the Allegheny County Housing Authority searched
     under the same steps earlier in the day while on routine patrol.
     (See id. at 93-95).

            Officers interviewed Francis, Howard, and Jones. All three
     individuals identified Appellant as one of the masked gunmen.
     (See id. at 153-55; N.T. Trial Volume II, at 361, 367-68, 424,
     445). This information was relayed to officers on scene. (See
     N.T. Trial, Volume I, at 155). A search warrant for Appellant’s
     apartment was secured and executed at approximately 11:45
     P.M. Appellant answered the door after several minutes, and the
     officers entered the apartment to conduct the search. (See id.
     at 97-99, 104, 121, 128-29). Appellant stated that he had been
     sleeping when the officers knocked. Chief Vogel observed fresh
     condensation on the bathroom walls and water beads in the
     shower, as if someone had recently showered. (See id. at 99,
     101). Several articles of black clothing were seized, including a
     black neoprene half-mask, which was submitted to the crime lab
     for testing. (See id. at 123-25, 128).

           Appellant was detained and transported to homicide
     headquarters for an interview. (See id. at 155-56). A gunshot
     residue kit was performed on Appellant’s hands, a DNA swab
     was obtained, and his clothes were collected for testing at the
     crime lab. (See id. at 156, 161). During Appellant’s interview,
     he indicated that he had invited friends over to his apartment
     that evening, and that he was in his apartment until police
     arrived. Appellant again stated that he had taken a shower

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J-S66031-17


     earlier in the day, not that evening. When asked about the
     firearms that were found under the steps to Building 35,
     Appellant stated that they had nothing to do with him. (See id.
     at 158-60, 162-63).

            A gunshot residue kit was performed on Appellant’s hands
     and jeans. The crime lab was unable to determine whether the
     components on Appellant’s hands were gunshot residue because
     they were only single components and not characteristic
     particles, but the crime lab was able to determine that
     Appellant’s jeans were positive for gunshot residue. (See id. at
     311).

           One .357 SIG shell casing was recovered from the living
     room of Apartment 17H. It was submitted to the crime lab for
     testing, along with the recovered firearms and a deformed
     hollow point 9mm projectile recovered from Williams during
     autopsy.     The crime lab was able to determine that the
     recovered shell casing was discharged from the .357 Glock, and
     the projectile, while too damaged to make a precise match, was
     of the same class as the test projectile fired from the Glock.
     (See id. at 65, 324, 327, 337). Following a national database
     search, the Glock was also matched to a shell casing recovered
     from an incident in Hawkins Village [ten days earlier,] on March
     30, 2014. In that incident Appellant was identified as being
     involved in a shootout in Hawkins Village, and similarly removing
     a firearm from his person behind Building 35. (See N.T. Trial
     Volume II, at 347, 349, 369, 371).

(Trial Court Opinion, 5/08/17, at 6-11) (some record citation formatting

provided; footnotes, some quotation marks, and some record citations

omitted).

     On August 26, 2016, the jury convicted Appellant of the above-

mentioned charges. The court sentenced him on November 17, 2016 to a

term of life imprisonment on the second degree murder charge, plus an

aggregate sentence of not less than one nor more than two years on the

conspiracy and reckless endangerment charges, to be served concurrently.

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J-S66031-17


No further penalty was assessed on the burglary conviction. Appellant filed

timely post-sentence motions that the trial court denied on February 15,

2017. Appellant timely appealed on March 6, 2017.2

       Appellant raises three questions for our review:

       [I.] Did the [trial court] err in finding that [Appellant] has
       waived the issue of witness competency?

       [II.] Did the [t]rial [c]ourt err in allowing the Commonwealth to
       present evidence of an alleged prior bad act, when [Appellant’s]
       role in the alleged act was completely unknown, in violation of
       Pa.R.E. 404(b)?

       [III.] Did the [t]rial [c]ourt err in denying [d]efense [c]ounsel
       the opportunity to examine the source code for the “TrueAllele”
       software used to perform DNA combination analysis?

(Appellant’s Brief, at 3).

       In his first issue, Appellant argues that the trial court erred in finding

Ms. Jones and Mr. Francis were competent to testify, and that he waived this

issue on appeal.      (See id. at 12-21).        We agree with the trial court that

Appellant’s issue is waived.

       It is well-settled that:

       The admission of evidence is committed to the sound discretion
       of the trial court, and a trial court’s ruling regarding the
       admission of evidence will not be disturbed on appeal unless that
       ruling reflects manifest unreasonableness, or partiality,
       prejudice, bias, or ill-will, or such lack of support to be clearly
       erroneous.
____________________________________________


2
 Pursuant to the trial court’s order, Appellant filed a timely statement of
matters complained of, on March 28, 2017. The court filed an opinion on
May 8, 2017. See Pa.R.A.P. 1925.



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J-S66031-17



Commonwealth v. Akrie, 159 A.3d 982, 986-87 (Pa. Super. 2017)

(citation omitted).

      Further:

            Consistent with . . . Pa.R.E. 103(a), a motion in limine may
      preserve an objection for appeal without any need to renew the
      objection at trial, but only if the trial court clearly and definitively
      rules on the motion. Once the trial court enters a definitive
      ruling on the record, either prior to or during trial, “a party
      need not renew an objection or offer of proof to preserve a claim
      of error for appeal.” Pa.R.E. 103(b).

Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (case

citation and most quotation marks omitted; emphasis added).

      Here, in his motion in limine, Appellant raised the issue of the

competence of Ms. Jones and Mr. Francis to testify. (See Appellant’s Motion

in Limine, 5/13/15, at 3-8). However, the docket and the record are devoid

of any ruling on the motion, and the record citation Appellant provides,

Docket Entry 10, does not contain any order or finding by the court on this

issue. (See Trial Court Docket Number CP-02-CR-0006386-2014, at 8-12).

Therefore, because the certified record does not reflect any definitive pre-

trial ruling on Appellant’s motion, Appellant was required to renew his

competency objection at trial to preserve the issue for appeal. See McGriff,

supra at 866.

            If a party is in doubt as to the competency of a witness, he
      should examine him in that regard, and the court should make a
      determination thereon preliminarily when the witness is
      produced. So, ordinarily, the competency of a [witness] is to be
      determined at the time he is offered as a witness. . . . [C]ross-

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       examination, coupled with the failure to object at any time
       during the trial, constitutes a waiver of objection as to the
       competency of [a] witness. . . .

Commonwealth v. McKinley, 123 A.2d 735, 737 (Pa. Super. 1956)

(citations and quotation marks omitted).

       Here, Appellant failed to raise any objection to the competency of Ms.

Jones and Mr. Francis when they were offered as witnesses at trial. (See

N.T. Trial Volume II, at 353, 432). He also cross-examined them both fully.

(See id. at 373-408, 412, 446-459). Therefore, we agree that Appellant’s

issue is waived.3 See McKinley, supra at 737.

____________________________________________


3
  Moreover, we note briefly that the issue would not merit relief. “The rule is
well-established in Pennsylvania that the party seeking to challenge the
competence of a witness has the burden of proving that the witness is not
competent.” Commonwealth v. Stoner, 425 A.2d 1145, 1150 (Pa. Super.
1981) (citation omitted). Appellant has not met his burden. He argues that
Ms. Jones and Mr. Francis were incompetent to testify because their
identification of who committed the shooting was speculative and unreliable
where they did not actually witness the firing occur. (See Appellant’s Brief,
at 13-18).      First, this claim goes to the weight to be afforded the
identification testimony, not its admissibility, and it was within the province
of the jury to weigh the evidence. See Commonwealth v. Orr, 38 A.3d
868, 874 (Pa. Super. 2011) (en banc), appeal denied, 54 A.3d 348 (Pa.
2012) (“[A]ny indefiniteness and uncertainty in [] identification testimony
goes to its weight.”) (citation omitted); see also Commonwealth v.
Sanchez, 36 A.3d 24, 26-27 (Pa. 2011), cert. denied, 568 U.S. 833 (2012)
(“The finder of fact—here, the jury—exclusively weighs the evidence,
assesses the credibility of witnesses, and may choose to believe all, part, or
none of the evidence.”) (citation omitted). Additionally, the trial court
instructed the jury on both witness credibility and identification testimony,
which the panel is presumed to have followed. (See N.T. Trial Volume II, at
549-54); see also Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa.
2011) (“The jury is presumed to have followed the court’s instructions.”)
(citation omitted). Therefore, the trial court did not abuse its discretion in
(Footnote Continued Next Page)


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      In his second issue, Appellant maintains that “the trial court erred in

allowing the Commonwealth to present evidence of an alleged prior bad act,

when [Appellant’s] role in the alleged act was completely unknown in

violation of Pa.R.E. 404(b).”             (Appellant’s Brief, at 18) (unnecessary

capitalization and emphasis omitted). He argues that “the suggestion that

[he] was involved in a prior shooting provides a basis for the jury to engage

in baseless speculation about [his] character.” (Id. at 21). This issue lacks

merit.

      As stated previously, the admission of evidence is in the sound

discretion of the trial court. See Akrie, supra at 986-87.

      In determining whether evidence should be admitted, the trial
      court must weigh the relevant and probative value of the
      evidence against the prejudicial impact of the evidence.
      Evidence is relevant if it logically tends to establish a material
      fact in the case or tends to support a reasonable inference
      regarding a material fact. Although a court may find that
      evidence is relevant, the court may nevertheless conclude that
      such evidence is inadmissible on account of its prejudicial
      impact.

Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal

denied, 2017 WL 3393565 (Pa. filed Aug. 8, 2017) (citation omitted).

      Pursuant to Pennsylvania Rule of Evidence 404(b)(1): “Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in


                       _______________________
(Footnote Continued)

allowing the testimony, and, even if not waived, Appellant’s first issue would
lack merit. See Akrie, supra at 986-87.



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J-S66031-17


order to show that on a particular occasion the person acted in accordance

with the character.” Pa.R.E. 404(b)(1).

     However, evidence of prior bad acts is admissible for other
     purposes, including proof of an actor’s plan or proof of his
     identity, where the probative value of the evidence outweighs its
     potential for prejudice. Pa.R.E. 404(b)(2)[,] (3). . . .

                                  *    *    *

     . . . [Rule] 404(b) is not limited to evidence of crimes that have
     been proven beyond a reasonable doubt in court.                      It
     encompasses both prior crimes and prior wrongs and acts, the
     latter of which, by their nature, often lack definitive proof. . . .

Commonwealth v. Lockcuff, 813 A.2d 857, 860-61 (Pa. Super. 2002),

appeal denied, 825 A.2d 638 (Pa. 2003) (citing Pa.R.E. 404(b)(2))

(quotation marks, case citation, and footnote omitted; emphasis in original).

“Where evidence of a defendant’s prior bad acts is admitted, the defendant

is entitled to a jury instruction that the evidence is admissible only for a

limited purpose.”   Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa.

2015) (citation omitted).

     Here, the Commonwealth introduced evidence of a March 30, 2014

shootout that involved the same firearm that was used to kill the victim, Lee

Williams, in this case. The March incident occurred only ten days prior to

the Williams shooting, and also happened at Hawkins Village.              Wesley

Francis identified Appellant as being present during the March incident, and

stated that Appellant fled to the rear of Building 35, where he dumped a

firearm and removed his mask. (See N.T. Trial Volume II, at 347, 370-71).


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After the Commonwealth presented this evidence, the trial court instructed

the jury on its limited use for the purpose of identity only. (See id. at 554).

      Based on the foregoing, we conclude the evidence of a prior bad act

properly was used where it was relevant for the limited purpose of

establishing Appellant’s identity. See Lockcuff, supra at 860-61. After the

evidence’s introduction, the trial court appropriately issued the jury an

instruction on its limited use, thus reducing the possibility that they would

“engage in baseless speculation about [Appellant’s] character.” (Appellant’s

Brief, at 21); see Solano, supra at 1178; see also Chmiel, supra at

1147. Therefore, the trial court properly exercised its discretion in allowing

the introduction of the prior bad act evidence. See Rashid, supra at 842.

Appellant’s second issue lacks merit.

      In his third claim, Appellant maintains that “the trial court erred in

denying defense counsel the opportunity to examine the source code for the

TrueAllele software used to perform DNA combination analysis.” (Appellant’s

Brief, at 21) (unnecessary capitalization, quotation marks, and emphasis

omitted). This issue lacks merit.

            The standard of review applicable to denial of a discovery
      motion is whether the trial court abused its discretion. Under
      Pa.R.Crim.P. Rule 573(B)(2)(a), upon a defendant’s motion for
      pretrial discovery, the trial court “may order the Commonwealth
      to allow the defendant’s attorney to inspect and copy or
      photograph” certain requested items (enumerated in the Rule)
      “upon a showing that they are material to the preparation of the
      defense, and that the request is reasonable.”         Within the
      enumerated list of items a defendant may request is “any other
      evidence specifically identified by the defendant, provided the

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     defendant can additionally establish that its disclosure would be
     in the interests of justice.” Pa.R.Crim.P. 573(B)(2)(a)(iv).

Commonwealth v. Snell, 811 A.2d 581, 591 (Pa. Super. 2002), appeal

denied, 820 A.2d 162 (Pa. 2003) (case citation omitted).

     In this case, the trial court explains:

            Here, Appellant sought to compel discovery of the source
     code for Dr. Mark Perlin’s TrueAllele software program. This
     request was denied by the [the trial court]. Several courts of
     concurrent jurisdiction have addressed the discoverability of
     TrueAllele’s source code.       Here, [the court] relied on the
     reasoning of the Honorable Jill E. Rangos in one such case, and[,
     pursuant to Appellant’s motion,] incorporated that decision and
     record in denying Appellant’s request herein. (See Orders,
     3/28/16; Order, 4/11/16; Appellant’s Motion to Incorporate
     Proceedings into the Record, 2/18/16). In her memorandum
     opinion, Judge Rangos relied on Commonwealth v. Foley, 38
     A.3d 882 (Pa. Super. 2012), appeal denied, 60 A.3d 535 (Pa.
     2013), and held that TrueAllele was not novel science, the
     reliability of TrueAllele could be determined without the source
     code, and “the source code [was] not material to defendant’s
     ability to pursue a defense.” Commonwealth v. Robinson,
     Docket No. CC 201307777, Memorandum Order, 2/04/16, at 2.

           [The trial court] found that the source code itself was not
     material to the credibility of Dr. Perlin and the reliability of
     TrueAllele, and that those were matters properly addressed by
     cross-examination.[a] . . . See Foley, supra at 889-90 (release
     of TrueAllele’s source code is unnecessary to test its reliability,
     TrueAllele has been tested and validated without release of the
     source code, and there is no legitimate dispute over Dr. Perlin’s
     methodology).
           [a]
              At trial, Dr. Perlin explained the methodology of
           TrueAllele, and was subjected to extensive and
           thorough cross-examination on the reliability and
           testability of TrueAllele. (See N.T. Trial Volume I, at
           265-89).




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J-S66031-17


(Trial Ct. Op., at 16-17) (some record and case citation formatting

provided).

      We agree with the findings of the trial court and conclude that

Appellant failed to prove the source code was “material to the preparation of

the defense, and that [his] request [was] reasonable.” Snell, supra at 591

(citations omitted).   In fact, this Court has observed that “scientists can

validate the reliability of a computerized process even if the ‘source code’

underlying that process is not available to the public.” Foley, supra at 889.

Also, in conformity with the confrontation clause, Appellant had a full and

fair opportunity to cross-examine Dr. Perlin about the reliability of

TrueAllele.   See Commonwealth v. Wilson, 602 A.2d 1290, 1296 (Pa.

1992), cert. denied, 504 U.S. 977 (1992) (the confrontation clause

guarantees “an opportunity for effective cross-examination, not cross-

examination that is effective whatever way, and to whatever extent, the

defense might wish.”) (citation omitted).

      Accordingly, the source code for TrueAllele was not material to

Appellant’s defense and his request to compel its production was not

reasonable. See id.     Hence, the trial court did not abuse its discretion in




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denying Appellant’s motion to compel.              See Snell, supra at 591.

Appellant’s third issue lacks merit.4

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




____________________________________________


4
  Moreover, we are not legally persuaded by the cases Appellant relies on for
his confrontation clause argument. (See Appellant’s Brief, at 21-26). The
cases are not pertinent where none of them hold that a prosecution must
provide a computer source code in discovery to provide a defendant with his
confrontation clause rights. (See id. at 22-23).



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