J-S40004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RICHARD ALLEN COLLINS,                     :
                                               :
                      Appellant                :   No. 3249 EDA 2016

              Appeal from the Judgment of Sentence May 31, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0004658-2015


BEFORE:       OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 28, 2017

        Appellant Richard Allen Collins appeals the judgment of sentence

entered in the Court of Common Pleas of Montgomery County on May 31,

2016, following a jury trial at which time he was sentenced to a consecutive

term of life imprisonment following his convictions of first-degree murder,

conspiracy to commit first degree murder, possession with intent to deliver a

controlled substance (cocaine) and criminal conspiracy to possess a

controlled substance with the intent to deliver.1 We affirm.

        The trial court detailed the relevant facts and procedural history herein

as follows:



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 903(a)(1); 35 Pa.C.S.A. § 780-113(a)(30).
J-S40004-17


             Mariah Walton testified that she, [A]ppellant and the
     murder victim, Artie Bradley sold cocaine, crack cocaine and
     heroin from several locations in the Borough of Pottstown,
     Pennsylvania in 2014 and 2015.11 Walton narrated to the jury
     while the prosecutors showed them a sequence of still
     photographs taken from a video recording Walton had made of a
     customer buying crack cocaine from [A]ppellant, with the
     assistance of Walton and Bradley, inside an apartment at 826
     East High Street in Pottstown.12
             Walton was [A]ppellant's lover;13 and [A]ppellant and
     Bradley were "like brothers."14 Bradley's relationship with the
     other two changed for the worse after [A]ppellant and Walton
     returned from a trip in early February, 2015, to find that "there
     was $10,000 worth of heroin money missing."15 Appellant
     confronted Bradley, whose excuses were unpersuasive.16
     Appellant told Bradley he would have to pay the money back by
     way of future drug sales.17 Although [A]ppellant tried to appear
     as if he "let it go" at that, he was still angry at Bradley18 because
     (as Walton explained on cross-examination) “[t]here’s no way
     you're going to work off $10,000."19
             At approximately ten minutes before 10 p.m. on March 20,
     2015, Sergeant Brian Rathgeb of the Pottstown Borough Police
     Department and a team of other police officers searched the
     area of the 400-500 blocks of Chestnut and Walnut Streets in
     Pottstown after being dispatched to investigate reports of
     gunshots.20 They found no victim of a gunshot wound or other
     evidence of shots being fired in that area.21 At approximately
     11:30 p.m. Sergeant Rathgeb was dispatched to the nearby
     intersection of Beech and Washington Streets in Pottstown to
     investigate a call for an ambulance to treat an unresponsive
     person.22 That person--Bradley--was already dead when the
     ambulance team had arrived.23 Forensic pathologist Gregory
     McDonald, D.O., testified that he performed an autopsy of
     Bradley's remains and determined that Bradley had sustained
     seven gunshot wounds to the chest and abdomen, which caused
     fatal injuries to the lung and liver,24 which he agreed were "vital
     parts of the body."25 Mariah Walton testified,
           I was a knowing participant [in] the murder of Artie
           Bradley. I knew that [[A]ppellant] had a gun, and I
           knew he went there to get in a confrontation, and I not
           only watched him kill Artie Bradley, I drove him away
           from the crime scene and covered up for him.26
           At the time [A]ppellant and Walton decided to commit the
     murder, they had just learned that Bradley was at the home of a

                                     -2-
J-S40004-17


     mutual friend, Troy Holmes, only a few blocks from the
     apartment [A]ppellant and Walton rented at 423 East High
     Street in Pottstown.27 Appellant was expressing hostility toward
     Bradley, calling him derogatory names.28 Appellant put a gun in
     his jacket pocket and told Walton he was leaving to confront
     Bradley and would telephone her when he was ready for her to
     pick him up in her car.29 Approximately two minutes after
     [A]ppellant left, Walton drove her car to a vantage point on
     Washington Street where she could see when [A]ppellant and
     Bradley would leave the home of their mutual friend, and
     telephoned [A]ppellant to tell him she was waiting there.30
     Walton saw [A]ppellant and Bradley leave the home and cross
     the street together, then she saw [A]ppellant shoot Bradley
     twice, saw Bradley fall, and saw [A]ppellant shoot Bradley four
     more times as he lay on the ground.31 Walton put her car in
     gear, appellant got in, and the two fled to Philadelphia.32

     _____
     11
        N.T. 3-1-2016, pp. 92-93.
     12
        Id. at 94-98.
     13
        Id. at 89-90.
     14
        Id. at 100.
     15
        Id.
     16
        1d. at 101.
     17
        Id.
     18
        Id.
     19
        Id. at 160.
     20
        Id. at pp. 49-52.
     21
        Id. at 52.
     22
        Id. at 52-53.
     23
        See stipulation, N.T. 3-2-2016 ("Robin Yerger, a paramedic of
     Goodwill Ambulance, was the first responder to the murder
     scene. Artie Bradley was already dead upon her arrival.").
     24
        N.T. 3-1-2016, pp. 69-72, 81.
     25
        Id. at 79.
     26
        Id. at 144.
     27
        Id. at 117-18.
     28
        Id. at 118, 119.
     29
        Id. at 119.
     30
        Id. at 119-123
     31
        Id. at 123-24.
     32
        Id. at 124-25.


                                  -3-
J-S40004-17


Trial Court Opinion, filed 1/10/17, at 2-5.          Following a four-day trial that

commenced     on   March   1,   2016,    a    jury    convicted   Appellant   of   the

aforementioned charges, and the trial court sentenced him on May 31, 2016.

     On June 30, 2016, Appellant filed both a post-sentence motion which

the trial court denied and a timely notice of Appeal. The trial court and the

parties have complied with Pa.R.A.P. 1925, and the matter is now ripe for

consideration on appeal.

     In his brief, Appellant presents the following Statement of Questions

Involved.

     (1) Did the [t]rial [c]ourt err as a matter of law by affirming the
     jury’s finding that the Commonwealth presented sufficient
     evidence of [] Appellant’s proximity to the victim beyond mere
     presence?

     (2)(3)(4) Did the [t]rial [c]ourt err as a matter of law and as an
     abuse of discretion by allowing fabricated and inconsistent
     testimony of Ms. Mariah Walton in violation of the Joint Defense
     Agreement and allowing Mr. Jamar Holmes to testify in violation
     of the sequestration Order where the verdict was against the
     weight and sufficiency of the evidence and the Commonwealth
     failed to present sufficient evidence for the jury to find
     [Appellant] guilty of the crimes charged?

     (5) Did the [t]rial [c]ourt err as a matter of law and as an
     abuse of discretion in introducing as evidence Jury items 8-15 in
     the Commonwealth[’]s Memorandum of law filed 10/29/2015
     and ruled on by Order 01/26/2016 because they were calculated
     and improperly appealed to the sympathy and prejudice of the
     jury?

     (6) Did the [t]rial [c]ourt err as a matter of law and as an abuse
     of discretion in denying [Appellant’s] Omnibus Pretrial motion as
     it relates to identification evidence pursuant to the Order dated
     01/21/2016?


                                        -4-
J-S40004-17


Brief for Appellant at 5. We shall discuss each of these issues in turn, and in

first analyzing Appellant’s challenge to the sufficiency of the evidence, we

employ a well-settled standard of review:

           The standard we apply in reviewing the sufficiency of
           the evidence is whether viewing all the evidence
           admitted at trial in the light most favorable to the
           verdict winner, there is sufficient evidence to enable
           the fact-finder to find every element of the crime
           beyond a reasonable doubt. In applying the above test,
           we may not weigh the evidence and substitute our
           judgment for the fact-finder. In addition, we note that
           the facts and circumstances established by the
           Commonwealth need not preclude every possibility of
           innocence. Any doubts regarding a defendant's guilt
           may be resolved by the fact-finder unless the evidence
           is so weak and inconclusive that as a matter of law no
           probability of fact may be drawn from the combined
           circumstances. The Commonwealth may sustain its
           burden of proving every element of the crime beyond a
           reasonable doubt by means of wholly circumstantial
           evidence. Moreover, in applying the above test, the
           entire record must be evaluated and all evidence
           actually received must be considered. Finally, the
           finder of fact while passing upon the credibility of
           witnesses and the weight of the evidence produced, is
           free to believe all, part or none of the evidence.
      Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa.Super.
      2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856–57
      (Pa.Super. 2010)). “This standard is equally applicable to cases
      where the evidence is circumstantial rather than direct so long
      as the combination of the evidence links the accused to the
      crime beyond a reasonable doubt.” (Commonwealth v.
      Sanders, 426 Pa.Super. 362, 627 A.2d 183, 185 (1993)).
      “Although a conviction must be based on ‘more than mere
      suspicion or conjecture, the Commonwealth need not establish
      guilt to a mathematical certainty.’” Commonwealth v. Gainer,
      7 A.3d 291, 292 (Pa.Super. 2010) (quoting Commonwealth v.
      Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990)).




                                     -5-
J-S40004-17


Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014), appeal

denied, 626 Pa. 681, 95 A.3d 275 (Table).

      While Appellant couches his initial challenge as one pertaining to the

sufficiency of the evidence to sustain his convictions, a reading of his

appellate brief reveals that he does nothing more than dispute the credibility

of the testimony presented by Ms. Walton in support of his claim.                    For

instance, Appellant stresses that less than two weeks prior to the

commencement of his jury trial, on February 18, 2016, Ms. Walton entered a

guilty plea for her involvement in Mr. Bradley’s death. Appellant states that

at trial, “Ms. Walton testified and attempted to corroborate a great deal of

evidence   proffered    by   the   Commonwealth         but    did   so    untruthfully,

inconsistently,   and   deliberately.   Specifically,    Appellant        contends   the

information concerning his involvement and his proximity to the murder was

inaccurate.” Brief for Appellant at 10.

      Appellant also points out that Ms. Walton admitted on cross-

examination to having lied to police three times and indicated that she

expected leniency as a result of having entered a guilty plea. Id. at 10-11

citing N.T. 3/1/16, at 147-48; 3/2/16, at 13-14.              As such, Appellant has

presented a challenge to the weight of the evidence, not its sufficiency. See,

e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (Pa.Super. 2008)

(an argument that the fact-finder should have credited one witness's

testimony over that of another witness goes to the weight of the evidence,


                                        -6-
J-S40004-17


not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d

710, 713–14 (Pa.Super. 2003) (a review of the sufficiency of the evidence

does not include a credibility assessment; such a claim goes to the weight of

the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (the fact-finder makes credibility determinations, and challenges to

those determinations go to the weight of the evidence, not the sufficiency of

the evidence).

      The argument portion of Appellant’s brief otherwise fails to mention,

let alone discuss, any of the elements of the various offenses of which

Appellant had been convicted for which the evidence was insufficient to

sustain the conviction. Because Appellant has failed to provide any

discussion of the sufficiency of the evidence with citation to proper legal

authority, we find this issue to be waived.       See    Commonwealth v.

Johnson, 604 Pa. 176, 191-92, 985 A.2d 915, 924 (2009) (finding claims

waived where an appellant fails to provide any discussion pertaining to it

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

meaningful fashion capable of review in his appellate brief).

      Appellant next contends the jury’s verdict was against the weight of

the evidence. Specifically, Appellant asserts the Commonwealth’s evidence

“was so meddled and inconsistent, that a new trial must be awarded.” Brief

for Appellant at 12. Appellant further maintains that the “inconsistent timing

of gunshots, the time period in finding the body and Appellant’s whereabouts


                                     -7-
J-S40004-17


before the alleged murder, were insufficient for a jury to return a verdict

against [ ] Appellant without shocking ones [sic] sense of conscience.” Id. at

12. Appellant also generally discusses what he presents as inconsistencies

in the testimony of officers and lay witnesses pertaining to the timeframe in

which the crimes occurred and the trial court’s error in permitting the

testimony of Ms. Walton and Mr. Jamal Holmes. Id. at 12-14. Specifically,

Appellant argues that despite the fact that Ms. Walton’s lack of credibility

“was fully explored” before the jury, it “shockingly” managed to return a

guilty verdict. In addition, Appellant posits the matter should be remanded

for a “curative instruction” in light of Mr. Holmes’ testimony that while he

and Appellant were being transported to the courthouse together, Appellant

had offered Mr. Holmes four thousand dollars to change his testimony. Id.

at 14.

         In considering a claim that the verdict was against the weight of the

evidence, an appellate court will not substitute its judgment for that of the

factfinder, which is free to assess the credibility of witnesses and to believe

all, part, or none of the evidence presented. Commonwealth v. DeJesus,

580 Pa. 303, 860 A.2d 102 (2004). This Court has held that:

         “[w]hen the challenge to the weight of the evidence is predicated
         on the credibility of trial testimony, our review of the trial court's
         decision is extremely limited. Generally, unless the evidence is
         so unreliable and/or contradictory as to make any verdict based
         thereon pure conjecture, these types of claims are not
         cognizable on appellate review.” Commonwealth v. Rossetti,
         863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted).
         “Moreover, where the trial court has ruled on the weight claim

                                         -8-
J-S40004-17


      below, an appellate court's role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence.” Commonwealth v. Champney, 574 Pa. 435, 832
      A.2d 403, 408 (2003). “Rather, appellate review is limited to
      whether the trial court palpably abused its discretion in ruling on
      the weight claim.” Id.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super. 2007). In

addition, this Court will not reverse a verdict unless it is so contrary to the

evidence as to shock one's sense of justice. Commonwealth v. Giordano,

121 A.3d 998, 1007 (Pa.Super. 2015).

      As a preliminary matter, we note that, generally, a challenge to the

weight of the evidence must be preserved by a motion for a new trial.

Pa.R.Crim.P. 607. The Rule provides:

      Rule 607. Challenges to the Weight of the Evidence
      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:
      (1) orally, on the record, at any time before sentencing;
      (2) by written motion at any time before sentencing; or
      (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)–(3). “As noted in the comment to Rule 607, ‘[t]he

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.’”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant's failure to avail

himself of any of the prescribed methods for presenting a weight of the

evidence issue to the trial court constitutes waiver of that claim, even if the




                                     -9-
J-S40004-17


trial   court   responds   to   the   claim    in   its   Rule     1925(a)   Opinion.

Commonwealth v. Burkett, 830 A.2d 1034, 1037 n. 3 (Pa.Super. 2003).

        Herein, Appellant preserved a challenge to the weight of the evidence

in his post-sentence motion filed on June 30, 2016. Notwithstanding, as he

did in setting forth his initial claim, Appellant conflates challenges to the

sufficiency and weight of the evidence in attempting to develop an argument

in support of his weight claim in his appellate brief.             This is evident in

Appellant’s concluding sentence pertaining to that portion of the argument

wherein Appellant states: “[v]iewing evidence in light most favorable to the

Commonwealth, Counsel respectfully requests a cursory review of the jury

verdict and that the case be remanded for a new trial.” Brief for Appellant at

14. As noted above, this standard of review is employed in an analysis of a

sufficiency of the evidence claim.     In addition, the majority of Appellant’s

argument is comprised of conclusory statements and bald allegations

unsupported by citations to proper legal authority.              As such, Appellant’s

weight claim is arguably waived for lack of proper development.                  See

Johnson, supra.

        To the extent we may view Appellant’s purported argument as

properly challenging the weight of the evidence to sustain his convictions,

upon our review of the record evidence and trial transcripts, we find this

claim merits no relief.    The trial court declined to upset the verdict of the

jury, generally noting that:


                                      - 10 -
J-S40004-17


      When [A]ppellant raised this issue in his post-sentence motion,
      the undersigned considered all evidence of record and found no
      factual basis for concluding that the jury’s verdict was contrary
      to the evidence. The evidence produced by the prosecutors in
      this case was not unusual compared to that which is produced in
      typical murder and conspiracy trials, in that some was
      inconsistent, some circumstantial, and some came from corrupt,
      biased and polluted sources.        In the typical case, such
      circumstances do not render the jury’s verdict against the weight
      of the evidence because “the trier of fact, while passing upon the
      credibility of witnesses and the weight of the evidence to be
      afforded the evidence produced is free to believe all, part or
      none of the evidence.” Commonwealth v. Grisavage, 517 A.2d
      1256, 1257 (Pa. 1986).

Trial Court Opinion, filed 1/10/17, at 9.

      Specifically, the trial court reasoned it had not erred in allowing Ms.

Walton to testify, as the evidence adduced at a hearing held on February 29,

2016, did not directly or inferentially support a conclusion that either Ms.

Walton or her counsel had exploited the joint defense agreement to

Appellant’s prejudice.   Trial Court Opinion, filed 1/10/17 at 10-11. The trial

court also found no record evidence indicated Ms. Walton or her counsel ever

provided detectives with information they had learned from Appellant or his

counsel, and Ms. Walton was questioned regarding only her first-hand

knowledge of the facts relevant to proving the elements of the crimes of

which Appellant had been charged. The trial court further noted Appellant’s

counsel subjected Ms. Walton’s counsel to a rigorous cross-examination

regarding changes in Ms. Walton’s memory of the murder weapon.          Id. at

12-14.




                                     - 11 -
J-S40004-17


      Indeed, at the hearing, Ms. Walton’s counsel explained, inter alia, that

he and Ms. Walton never met with or discussed any trial strategies such as

potential defenses or any affirmative defenses like self-defense with

Appellant, nor did Ms. Walton’s counsel share any information with the

Commonwealth that he had learned from Appellant’s counsel as a result of a

joint defense agreement. N.T., 2/29/16, at 19-20. Counsel related that on

only one occasion he had been with Appellant’s counsel for approximately

two   hours   at   which   time   they   and   their   respective   investigators

photographed the alleged crime scene and discussed the timeline in

question. Counsel also discussed generally potential witnesses, those

individuals’ previous statements, and any possible motivation any might

have for testifying falsely. Id. at 22-26. However, once Ms. Walton advised

her counsel that she wished to cooperate with the prosecution in exchange

for a negotiated guilty plea, neither she nor counsel divulged any defense

strategies, witness issues, or other contents of their discussions to the

Commonwealth; counsel had been present at every meeting between Ms.

Walton and the Commonwealth. Id. at 28-36.

      In addition, the trial court explained its decision to permit the

testimony of Jamar Holmes regarding his knowledge of the crimes and

Appellant’s alleged attempt to bribe him as follows:

            Jamar Holmes, a cousin of Troy Holmes, testified as a
      witness for the prosecution on the third day of the trial, March 3,
      2016. In order to avoid confusion between the two witnesses in
      this discussion, the undersigned will refer to Jamar Holmes as

                                    - 12 -
J-S40004-17


     "Jamar." On direct examination, Jamar first testified about
     events that transpired only minutes before the murder: he had
     been at Troy Holmes' home with Bradley; he had left the
     premises while Bradley was still there; as he walked down the
     block he saw [A]ppellant, who[m] he knew; and the two made
     eye contact as they walked past each other.84 He then testified
     as to the events that transpired on the day before, March 2,
     2016. He stated that after sheriffs' deputies placed him on a bus
     to take him from the county prison to the courthouse,
     [A]ppellant sat next to him and offered to pay him $4,000.00 if
     he would change his anticipated testimony.85
            Jamar further testified, under oath on direct examination,
     that [A]ppellant told him that Ms. Walton had driven him to Troy
     Holmes's home, where he waited for Bradley to come outside,
     and when he came out, [A]ppellant killed him.86 If Jamar's
     account of walking past [A]ppellant on the street shortly before
     the murder had been true, then the account [A]ppellant had
     supposedly told him on the bus would have been inconsistent
     with what he saw and knew to be true. Moreover, because Jamar
     testified that he and [A]ppellant had made eye contact,
     [A]ppellant would have known that Jamar knew, or would have
     known, that the account [A]ppellant had supposedly told him on
     the bus was false. Appellant's lawyer extensively and ably
     exploited this problem with Jamar's testimony when cross-
     examining him to give the jury a reason to believe (in addition to
     the witness's convictions of multiple crimen falsi and his pending
     sentencing hearing on another crime) that he had lied --not only
     in his testimony about the night of the murder, but about
     [A]ppellant trying to bribe him to change his testimony.87
            Appellant, his lawyer, the prosecutors or the undersigned
     knew in advance that Jamar would testify that [A]ppellant
     offered him a bribe. At the end of the first day of trial, the
     undersigned learned that the sheriff's deputies who were in
     charge of transportation of [A]ppellant and several of the trial
     witnesses from the county prison to the courthouse had placed
     [A]ppellant and those witnesses on the same bus.88 In response,
     the undersigned expressly told the deputies in the courtroom to
     tell the deputies in charge of transportation not to put
     [A]ppellant and the witnesses in the same vehicle.89
     Nonetheless, to the great displeasure of the undersigned and
     counsel, on the next day the deputies in charge of transportation
     placed [A]ppellant and Jamar side-by-side on the same bus.90
     Jamar told the detectives that while on the bus [A]ppellant had
     made an incriminating statement and offered to pay him

                                   - 13 -
J-S40004-17


     $4,000.00 if he would change his testimony.91 The detectives
     took a sworn statement from Jamar regarding [A]ppellant's
     statement and gave a copy to [A]ppellant's trial lawyer.92
            In view of the unexpected turn of events, the undersigned
     postponed the testimony of Jamar from that day until the next,
     and gave [A]ppellant's lawyer and private investigator an
     opportunity to interview other prison inmates in order to obtain,
     if possible, evidence in opposition to Jamar's anticipated
     testimony regarding the incriminating statement made by
     [A]ppellant.93 With the assistance of the sheriff and prosecutors,
     [A]ppellant's investigator ascertained the identities of the other
     inmates on the bus, interviewed them at the prison that evening,
     transcribed the notes of those interviews, and gave the notes to
     [A]ppellant's trial lawyer the next morning." The postponement
     of the testimony of Jamar, together with the notes of the
     interviews, were what enabled [A]ppellant's trial lawyer to
     thoroughly cross-examine the witness and exploit the problems
     with his testimony, as previously described. Appellant now
     claims that he was prejudiced because he lacked sufficient
     opportunity to challenge the veracity of that testimony and to
     interview others who may have been present and had personal
     knowledge of whether appellant spoke to Jamar, and if so, what
     he said. The record contradicts that claim.
            At a hearing the next morning (outside the presence of the
     jury) [A]ppellant's lawyer argued that his client had been
     severely prejudiced by the failure of the sheriff's deputies to
     follow the court order to transport [A]ppellant apart from the
     witnesses and asked that the undersigned preclude Jamar from
     testifying about the statements appellant made on the bus.95
     Appellant's lawyer moved for a mistrial,96 arguing that: the
     court's transportation order to the sheriff's deputies was
     equivalent or analogous to a sequestration order; the deputies
     had breached their obligation to follow the order; the breach
     caused [A]ppellant to sustain severe prejudice; and the
     appropriate remedy would be to preclude the Commonwealth
     from presenting evidence of the [A]ppellant's statement or to
     declare a mistrial.97 Based upon the information available at the
     time, [A]ppellant's lawyer conceded that the prosecutors did not
     breach any legal obligation,98 and based upon the same
     information the undersigned agreed. The undersigned denied
     relief and stated the reasons on the record.99
            The events that have unfolded since that time further
     support that decision. Having heard Jamar testify at trial and
     watched his demeanor, the undersigned finds his claim that

                                   - 14 -
J-S40004-17


      [A]ppellant offered to pay him to change his anticipated
      testimony to be credible. Appellant, through counsel, produced
      no evidence that Jamar, the deputies or the prosecutors offered
      him any incentive to speak to Jamar, or gave him any
      disincentive to remain silent and no such evidence has emerged
      since. Regardless of whether the transportation order is a
      sequestration order or is analogous to one, and regardless of
      whether Jamar initiated conversation with [A]ppellant, it was
      [A]ppellant who made the decision to speak to Jamar. His
      decision was not caused by coercion or deceit, but was purely
      voluntary. Any prejudice he sustained was caused by himself,
      and therefore he was not entitled to an order prohibiting the
      Commonwealth from producing evidence of his statement or
      declaring a mistrial.


      _____
      84
         N.T. March 3, 2016, pp. 63-66.
      85
         Id. at 67-70.
      86
         Id. at 68.
      87
         70-81, 88-90. The jury was free to resolve this problem, as it
      apparently did, by concluding that [A]ppellant failed to realize,
      or did not care, that he was telling Jamar Holmes something
      Jamar must have known not to be true.
      88
         N.T. March 1, 2016, pp. 182-83.
      89
         Id. at 183-84.
      90
         N.T. March 2, 2016, pp. 248-50, 334-42.
      91
         Id.
      92
         Id.
      93
         Id. at 336-39.
      94
         N.T. March 3, 2016, pp. 2-3.
      95
         N.T. March 3, 2016, pp. 2-15.
      96
         Id. at 56-57.
      97
         Id. at 6-15, 56-58.
      98
         Id. at 12-13.
      99
         Id. at 51-59.

Trial Court Opinion, filed 1/10/17, at 20-23.




                                    - 15 -
J-S40004-17


       Upon our review of the record and in light of the foregoing, we discern

no abuse of discretion in the trial court’s rejection of Appellant’s weight

claim.2

       Appellant next avers the trial court abused its discretion in allowing

“items 9-13 identified in the Commonwealth’s 10/29/2015, ‘Memorandum in

Support of Motions to Admit Other Bad Acts’ by way of Judicial Order on

01/26/2016      was    unduly    prejudicial”      and   concludes   that   “they   were

____________________________________________


2
   To the extent Appellant asks this Court to remand the matter for a
“curative instruction,” a review of the record reveals Appellant did not object
to or request a curative instruction following Mr. Jamal’s testimony at the
time of trial. N.T., 3/3/16, at 67-70, 90; N.T., 3/4/16, at 2-75. “Issues not
raised in the [trial] court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). In addition, “it is axiomatic that issues are
preserved when objections are made timely to the error or offense.”
Commonwealth v. Baumhammers, 599 Pa. 1, 24, 57, 960 A.2d 59, 73
(2008). “The purpose of contemporaneous objection requirements
respecting trial-related issues is to allow the court to take corrective
measures and, thereby, to conserve limited judicial resources.”
Commonwealth v. Sanchez, 614 Pa. 1, 31, 36 A.3d 24, 42 (2011). “[A]
party may not remain silent and afterwards complain of matters which, if
erroneous, the court would have corrected.” Commonwealth v. Strunk,
953 A.2d 577, 579 (Pa.Super. 2008). Therefore, Appellant has waived this
request for failure to make a timely and specific objection on the record. See
Commonwealth v. Wholaver, 605 Pa. 325, 340, 989 A.2d 883, 892
(2010) (where trial counsel objected to the admission of evidence but did
not request a limiting instruction, the issue of trial court error for not giving
such instruction is waived); Commonwealth v. Bryant, 579 Pa. 119, 141,
855 A.2d 726, 739 (2004) (failure to request cautionary instruction upon
introduction of evidence constitutes waiver of claim of trial court error in
failing to issue cautionary instruction);Commonwealth v. Bell, 562 A.2d
849, 853 (Pa.Super.1989) (“Where counsel fails to request a mistrial when
the alleged prejudicial event occurs, the issue is not preserved for appellate
review.”).




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J-S40004-17


calculated and did appeal improperly to the sympathy and prejudice of the

jury.” Brief for Appellant at 14.      Our standard of review of Appellant's claims

regarding the admissibility of evidence is well-settled:

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

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

(citation omitted).

       Despite requesting that this Court make “a cursory review of items 9-

13” and subsequently remand for a new trial, Appellant’s only specific

reference to “items 9-13” is the following sentence:

             As it relates to Ms. Esther Saunders and Mr. Herbierto
       Delmor[a]l, Appellant contends their individual statements were
       offered on an improper basis that causally diverted, the jury’s
       attention away from its duty of weighing the evidence
       impartially. Because the jury focused on [A]ppellant’s past acts,
       they were unable [to] weigh evidence impartially, resulting in
       the allowance of unduly prejudicial evidence. (quotation marks
       and citation omitted).

Brief for Appellant at 15.3
____________________________________________


3
  Ms. Saunders knew Appellant and Mr. Bradley and testified Appellant had
accused Mr. Bradley of stealing money obtained from the sale of drugs and
that he had threatened Mr. Bradley. N.T., 3/2/16, at 197-98. Mr. Bradley
instructed Ms. Saunders as to the type of funeral he wanted should he die
and provided her with various names and phone numbers which he jotted
down in her presence. Id. at 200-02. Mr. Delmoral admitted he had
(Footnote Continued Next Page)


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J-S40004-17



      Appellant utterly failed to develop how the probative value of these

vaguely referenced statements was outweighed by the potential for unfair

prejudice under the Pennsylvania Rules of Evidence or to illustrate how he

reached his bald conclusion that “[b]ecause the jury focused on [A]ppellant’s

past acts, they were unable [to] weigh evidence impartially, resulting in the

allowance of unduly prejudicial evidence.” Brief for Appellant at 15.       Thus,

we find this issue waived for lack of development. See Johnson, supra.



                       _______________________
(Footnote Continued)

purchased heroin and cocaine from Mr. Bradley and that he had stolen drugs
from him as well. Mr. Delmoral stated Appellant pursued and beat him to
retaliate. Id. at 119-24. He also had purchased drugs from Ms. Walton and
saw her counting money. Id. at 127-28.
       Pennsylvania Rule of Evidence 404(b) entitled Crimes, Wrongs or
Other Acts, provides in relevant part that:

       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person's character in order to show
      that on a particular occasion the person acted in accordance with
      the character.
      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b). The trial court determined the foregoing evidence was
admissible at trial to show the course of events that led to the crimes with
which Appellant had been charged. Specifically, the trial court found the
evidence probative of Appellant’s motive to shoot Mr. Bradley and
circumstantial evidence of his specific intent to act in concert with Ms.
Walton and to kill Mr. Bradley. Trial Court Opinion, filed 1/10/17, at 25-27.




                                           - 18 -
J-S40004-17



      Finally, Appellant challenges the in-court identification of him by Mr.

Steven Corey and Ms. Mary Ellen Gibson. In doing so, Appellant avers the

trial court erred in failing to suppress an out-of-court photo array prior to

trial because the identification procedure had been unduly suggestive and,

therefore, illegal. Appellant asserts “the pictures included in the photo array

were inconsistent. Although all eight photographs depicted all black males,

the photographs were inconsistent in that they were photographs of males of

varying age, some had facial hair while others did not, some were bald while

others were not and the skin tones were varying.” Brief for Appellant at 16.

Appellant concludes that “[p]resuming that the photo array identification

procedure was illegal and therefore inadmissible, Appellant’s in-court

identification by Mr. Steven Corey and Ms. Mary Ellen Gibson requires

review.” Id.

      Our standard of review of this issue is as follows:

            When reviewing the propriety of a suppression order, an
      appellate court is required to determine whether the record
      supports the suppression court's factual findings and whether
      the inferences and legal conclusions drawn by the suppression
      court from those findings are appropriate. Where the record
      supports the factual findings of the suppression court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error. However, where the
      appeal of the determination of the suppression court turns on
      allegations of legal error, the suppression court's conclusions of
      law are not binding on an appellate court, whose duty it is to
      determine if the suppression court properly applied the law to
      the facts.
            Whether an out of court identification is to be suppressed
      as unreliable, and therefore violative of due process, is
      determined     from    the    totality of    the   circumstances.


                                    - 19 -
J-S40004-17


      Suggestiveness in the identification process is a factor to be
      considered in determining the admissibility of such evidence, but
      suggestiveness alone does not warrant exclusion. Identification
      evidence will not be suppressed unless the facts demonstrate
      that the identification procedure was so impermissibly suggestive
      as to give rise to a very substantial likelihood of irreparable
      misidentification. Photographs used in line-ups are not unduly
      suggestive if the suspect's picture does not stand out more than
      the others, and the people depicted all exhibit similar facial
      characteristics. Commonwealth v. Fulmore, 25 A.3d 340, 346
      (Pa.Super. 2011) (internal citations and quotation marks
      omitted). Moreover, our scope of review from a suppression
      ruling is limited to the evidentiary record that was created at the
      suppression hearing. In re L.J., 622 Pa. 126, 148, 79 A.3d 1073,
      1086 (2013).


Commonwealth v. Stiles, 143 A.3d 968, 978 (Pa.Super 2016), appeal

denied Commonwealth v. Stiles, 2016 WL 7106404 (Pa. Dec. 6, 2016)

(Table).

      Although   Appellant   asserts    the     photographic   array   was   unduly

suggestive, he failed to ensure that the certified record contained a copy of

the photo array in question, despite the fact that our analysis of this issue

requires a review of it; therefore, he has waived a challenge to the trial

court’s denial of his motion to suppress the same. See Commonwealth v.

Martz, 926 A.2d 514, 525 (Pa.Super. 2007), appeal denied, 596 Pa. 704,

940 A.2d 363, (2008) (finding issue challenging suppression of photo array

waived where appellant failed to ensure the original record certified for

appeal contained sufficient information to conduct a proper review). See

also Stiles, supra.




                                       - 20 -
J-S40004-17


        Appellant’s remaining challenge to the in-court identification of

Appellant by Mr. Corey and Ms. Gibson is based upon each witness’s alleged

“limited    exposure”    to   Appellant        outside   of   the   courtroom   and   the

“significant” period of time which lapsed between the murder and the

commencement of trial, the fact that neither witnessed the “crime,” and that

Appellant was the only individual seated next to defense counsel at trial.

Brief for Appellant at 16-17.

        To the contrary, Mr. Corey testified he worked as a maintenance man

and lived in the same apartment building as Appellant whom he knew as

“B.” N.T., 3/2/16, at 163-64. Mr. Corey also indicated he was in Appellant’s

room when he saw Appellant in possession of a .380 caliber handgun. 4 Id. at

165-67. Additionally, Ms. Gibson identified Appellant in the courtroom. She

explained she knew Appellant as “Bub,” through her acquaintance with Ms.

Walton and had been in the company of Ms. Walton, Appellant and Mr.

Bradley on the night of the murder. N.T., 3/2/15, at 234-41.

        Appellant did not object to either witness’s identification of Appellant

at trial.   In addition, aside from bald allegations to the contrary, Appellant

has failed to show that these in-court identifications were somehow

suggestive. See Commonwealth v. Wade, 33 A.3d 108, 114 (Pa.Super.

2011) (stating a witness’s in-court identification may be admissible despite

____________________________________________


4
    The murder weapon was a .380 caliber handgun.



                                          - 21 -
J-S40004-17


the   inadmissibility     of   a   pre-trial   identification   where   the   in-court

identification is not tainted by the previous identification). Thus, Appellant's

final issue fails.

       Judgment of sentence affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2017




____________________________________________


5
  In its Rule 1925(a) Opinion, the trial court found no merit to any of
Appellant’s claims. However, “[t]his Court is not bound by the rationale of
the trial court, and we may affirm the trial court on any basis.”
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa.Super. 2013).




                                          - 22 -
