J-S66021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEVON O. SHEALEY

                            Appellant                 No. 186 WDA 2015


          Appeal from the Judgment of Sentence Entered July 17, 2014
                In the Court of Common Pleas of Beaver County
                  Criminal Division at No: CP-04-CR-2117-2012


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 24, 2016

        Appellant, Devon O. Shealey, appeals from the judgment of sentence

entered in the Court of Common Pleas of Beaver County following

Appellant’s conviction for, inter alia, two counts of second degree murder,

two counts of robbery, four counts of kidnapping, four counts of unlawful

restraint, and possession with intent to deliver marijuana.1 Upon review, we

affirm.

        The charges against Appellant stem from the invasion of the home and

shooting deaths of Richard Harper and his wife Demetria Harper committed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from both his judgment of sentence and the
order of the trial court denying his post-sentence motion. As our caption
reflects, Appellant properly appeals from his judgment of sentence.
J-S66021-15



by Appellant and co-defendant Robert L. Burgess (Burgess) on June 30,

2008.     The shootings occurred in the presence of the Harpers’ two minor

daughters, ages 10 and 8. As summarized by the trial court,

        In the spring of 2008, Demetria and Margarette (Nay Nay)
        Moore (Moore) became acquainted through the activities of their
        respective children as residents in the same Second Avenue,
        Beaver Falls neighborhood, and over time, became close friends.
        The Harper family had relocated to Beaver Falls from El Paso,
        Texas. Moore had been familiar with the co-defendant, Burgess,
        since attending high school, lost touch with him through the
        years and resumed their relationship in 2007. Burgess lived on
        Letsche Street in the North Side section of Pittsburgh. Moore
        introduced Demetria to Burgess when Demetria transported
        Moore to the Burgess residence in early June, 2008. On at least
        two additional occasions, Demetria drove Moore to the Burgess
        home within a week or two of the first visit, during which
        [Appellant] was present.          Demetria was introduced to
        [Appellant], also known as "D", through Burgess. At one of the
        meetings, Demetria advised [Appellant] and Burgess that she
        could obtain marijuana for an attractive price in El Paso, which
        prompted discussions among Demetria, [Appellant], Burgess and
        Moore and led to a plan by which [Appellant] and Burgess would
        front funds to Demetria for her to travel to El Paso, obtain
        marijuana and mail it to an address provided by Burgess. To
        assure Demetria’s participation in the plan, a copy of Demetria’s
        identification card, which included her address, was made by
        Burgess on a copier at his residence. On June 25, 2008, Moore
        drove Demetria to the Burgess residence where Demetria
        purchased a round trip airline ticket online utilizing the computer
        of Burgess by which Demetria would travel from Pittsburgh to El
        Paso and return to Pittsburgh. Moore then transported Demetria
        to her home in Beaver Falls where she packed a suitcase and
        was taken by Moore to the Pittsburgh International Airport.
        Upon arriving at the airport, Demetria and Moore met Burgess
        and another unidentified individual. Burgess provided Demetria
        with $1,500.00 in funds to purchase marijuana in Texas.
        Demetria departed thereafter and arrived in El Paso later that
        day. After several days of negotiations, Demetria, by way of
        arrangements made through LaDon Williams (Williams), a friend
        of Demetria in El Paso, she purchased four pounds of marijuana


                                       -2-
J-S66021-15


     for $800.00. The marijuana had an odor of gasoline, and
     Demetria and Williams attempted to remove the odor by way of
     a process of boiling vegetables in a pot while holding the
     marijuana above the steam that was generated. While in Texas
     from June 25, 2008, through June 29, 2008, Demetria remained
     in constant contact with Moore, who was in the presence of and
     staying at the residence of Burgess.      [Appellant] was also
     present at the Burgess home during this time. Moore, at the
     direction and insistence of Burgess, sent numerous text
     messages to Demetria inquiring as to the progress of her efforts
     to obtain the marijuana.       After acquiring the marijuana,
     Demetria falsely forwarded a text message to Moore that
     Demetria had been stopped by the police at a checkpoint, had
     been arrested and the marijuana confiscated, when in fact, she
     had the marijuana mailed to her home in Beaver Falls.
     According to Moore, Burgess doubted Demetria’s truthfulness.
     Prior to Demetria returning to Pittsburgh, [Appellant] and
     Burgess drove to Baltimore, Maryland to visit Burgess’ girlfriend,
     Antoinette Smothers (Smothers). Demetria returned home from
     Texas on June 29, 2008. Upon observing a package being
     delivered to the Harper residence on June 30, 2008, Moore
     telephoned Burgess while he was in Baltimore to report the
     delivery.    Immediately thereafter, [Appellant] and Burgess
     departed Baltimore and returned to Pittsburgh in the early
     evening hours. Later that same night, [Appellant] and Burgess
     traveled to Beaver Falls, entered the Harper home wearing
     masks completely covering their faces, gloves and dark clothing
     and confronted Demetria and Richard at gun point in their
     second floor bedroom while the two children were present and
     demanded the return of the money previously provided and/or
     the marijuana. Demetria advised that the marijuana was in a
     box in the bedroom to which Burgess replied that they had no
     interest in the box. Demetria and Richard were taken to the
     basement at gunpoint and hog-tied by the hands and feet from
     behind with an electrical cord from a vacuum sweeper. The
     children were then escorted from the second floor bedroom to
     the basement and placed in a furnace room a short distance
     away from their parents whom they observed bound and face
     down on the basement floor. Shortly thereafter, [Appellant]
     shot Richard in the head and Burgess shot Demetria in the head.
     The children heard the two shots from their location in the
     furnace room and also their father groaning from his wound.
     [Appellant] and Burgess removed the box containing the
     marijuana and departed returning to Pittsburgh. The children

                                   -3-
J-S66021-15


     remained in the furnace room the entire night until
     approximately 11:00 a.m. on July 1, 2008, when their aunt,
     Joanne Vaughn (Vaughn), the sister of Richard, arrived at the
     house after spotting Richard’s vehicle outside the residence at a
     time when he should have been at work. Richard and Demetria
     were deceased when discovered by Vaughn who called police.
     Within days of the killings, Cheryl Chambers (Chambers) and her
     daughter, Rachel Harden (Harden), a girlfriend of [Appellant]
     and mother of his child, observed [Appellant] in the possession
     of marijuana with an odor of gasoline attempting to remove the
     moisture and gasoline odor of the marijuana using a hairdryer.

Trial Court Opinion (T.C.O.), 12/31/14, at 5-9.

     On July 17, 2014, the trial court sentenced Appellant to, inter alia, two

consecutive terms of life imprisonment without the possibility of parole.

Appellant timely filed a post-sentence motion.       The trial court denied

Appellant’s post-sentence motion and prepared a detailed opinion. Appellant

filed a direct appeal to this Court and, as ordered, a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Because Appellant raised the

same issues in his Rule 1925(b) statement as in his post-sentence motion,

the trial court did not write a separate Rule 1925(a) opinion.    On appeal,

Appellant repeats these assertions of error, reproduced below.

     1.    Whether the Appellant’s conviction for kidnaping [sic] in regards
           to counts 10, 11, 12, and 13 should be reversed because the
           Commonwealth failed to present sufficient evidence establishing
           either the removal of the alleged individuals a substantial
           distance from where found, or their unlawful confinement for a
           substantial period in a place of isolation?

     2.    Whether the Appellant’s conviction for unlawful restraint in
           regards to counts 26 and 27 should be reversed because the
           Commonwealth failed to present sufficient evidence establishing
           movement of the juvenile female 1/16/97, and juvenile female
           10/20/99 into a furnace room to expose the alleged individuals
           to the risk of serious bodily injury?

                                    -4-
J-S66021-15



     3.   Whether the Appellant’s conviction for possession with intent to
          deliver   marijuana    should    be   reversed     because     the
          Commonwealth failed to present sufficient evidence establishing
          evidence that the Appellant manufactured, delivered or
          possessed with the intent to deliver marijuana in the jurisdiction
          of Beaver County?

     4.   Whether the trial court erred in admitting text messages
          between the phone numbers of (678) 836-9176 belonging to
          Demitria [sic] Harper and (412) 326-5320 belonging to Cheryl
          Chambers as the Commonwealth did not authenticate the
          messages as having been sent by Appellant?

     5.   Whether the trial court erred in admitting text messages
          between the phone numbers of (678) 836-9176 belonging to
          Demitria [sic] Harper and (412) 417-1354 belonging to Margaret
          Longmire (Moore) as the texts sent by Demitria [sic] Harper
          were not in furtherance of a conspiracy with Appellant?

     6.   Whether the trial court erred in admitting evidence regarding
          Appellant’s incarceration for other crimes which unjustifiably
          blackened the character of the Appellant in the minds of the
          jury?

     7.   Whether the trial court erred in admitting testimony by Rachel
          Harden, regarding the co-defendant, Robert Burgess[’] request
          that she ask Appellant if he had been questioned by authorities
          regarding this incident as the co-defendant’s inquiry was
          completely irrelevant to the issue of Appellant’s guilt or
          innocence and the prejudicial effect far outweighed any
          probative value?

     8.   Whether the trial court erred in admitting testimony by Cheryl
          Chambers, regarding the Appellant’s involvement in her federal
          charge of obstruction of justice as this information was
          completely irrelevant to the issue of Appellant’s guilt or
          innocence and the prejudicial effect far outweighed any
          probative value?

     9.   Whether the trial court erred in ruling that Appellant’s “second
          chair” attorneys, not qualified under Rule 801 of the Rules of
          Criminal Procedure, could not participate in any cross
          examination of witnesses, thereby denying Appellant’s right to

                                  -5-
J-S66021-15


              representation under the United States Constitution and the
              Pennsylvania Constitution?

       10.    Whether the trial court erred in allowing the Commonwealth to
              amend count 28 of the criminal information to include
              convictions under 18 Pa.C.S.A. § 6105C just moments before the
              trial began and without putting the Appellant on notice of the
              expansion of this count, prejudicing his ability to prepare a
              defense?

       11.    Whether the trial court erred in not declaring a mistrial or
              striking the testimony after the Commonwealth introduced
              hearsay testimony by Margarette Moore that she knew it was an
              individual named “D’s” birthday, which was brought out
              immediately following an objection to her testifying to hearsay?

Appellant’s Brief at 6-8.

       Appellant first argues that there was insufficient evidence to prove,

beyond a reasonable doubt, that he kidnapped Demetria and Richard Harper,

and their two children.        Appellant’s Brief at 13-14.   Appellant specifically

argues that no evidence was introduced to establish that his movement of

the victims “placed the family in isolation or increased their risk of harm” as

required by 18 Pa.C.S.A. § 2901. Appellant’s Brief at 14. Appellant claims

that this is demonstrated by the fact that the victims were found “by the

very first person who came to the door of their home the next morning.”

Appellant’s Brief at 15.2

____________________________________________


2
  Within Appellant’s first issue, he alleges that “[t]he verdict in regards to
Counts 10, 11, 12, and 13 was against the weight of the evidence produced
at trial in that Demetria Harper, Richard Harper, juvenile female (7/16/97),
and juvenile female (10/29/99) were only moved from the first floor of their
residence to the basement of their residence.” Appellant’s Brief at 14. This
is Appellant’s only mention that the verdict is against the weight of the
(Footnote Continued Next Page)


                                           -6-
J-S66021-15



      The Pennsylvania Crimes Code defines the offense of kidnapping as

follows.

      Offense defined.—Except as provided in subsection (a.1), a person is
      guilty of kidnapping if he unlawfully removes another a substantial
      distance under the circumstances from the place where he is found, or
      if he unlawfully confines another for a substantial period in a place of
      isolation, with any of the following intentions:

      (1) To hold for ransom or reward, or as a shield or hostage.

      (2) To facilitate commission of any felony or flight thereafter.

      (3) To inflict bodily injury on or to terrorize the victim or another.

      (4) To interfere with the performance by public officials of any
      governmental or political function.

18 Pa.C.S.A. § 2901(a). Our Supreme Court has clarified that, “for purposes

of Pennsylvania’s kidnapping statute, a ‘place of isolation’ is not geographic

in nature, but contemplates the confinement of a victim where he or she is

separated from the normal protections of society in a fashion that makes

discovery or rescue unlikely.” Commonwealth v. Rushing, 99 A.3d 416,

425 (Pa. 2014).




                       _______________________
(Footnote Continued)

evidence.    Further, Appellant only makes sufficiency of the evidence
arguments. Accordingly, we view his first issue as solely addressing the
sufficiency of the evidence.    Nevertheless, the trial court adequately
addresses Appellant’s bald weight of the evidence claim in its opinion. See
T.C.O., 12/31/14, at 17-19.




                                            -7-
J-S66021-15



       The trial court, mindful of the applicable standard of review3,

addressed Appellant’s sufficiency of the evidence argument as follows:

       [Appellant]’s position that the movement of the entire family
       from the second floor to the basement did not increase the risk
       of harm when the parents were hog-tied and shot to death in the
       basement, and the children being placed in fear through the use
       of weapons, observing their parents bound and lying on the
       basement floor, forced into the furnace room and then hearing
       the shots that killed their parents, is simply inconsistent with the
       facts.    Far from being incidental to the other crimes,
       [Appellant]’s confinement of the victims was, as in Rushing,
____________________________________________


3
 In reviewing a claim of the insufficiency of the evidence, the court is guided
by the well–established principles summarized in Commonwealth v.
Gooding, 818 A.2d 546, 549 (Pa. Super. 2003)(citing Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)), as follows:

       The standard we apply in reviewing the insufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the 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
       trier of fact while passing upon the credibility of witnesses and
       the weight of the evidence produced, is free to believe all, part
       or none of the evidence.

T.C.O., 12/31/14, at 4.



                                           -8-
J-S66021-15


      supra, with the intent to commit the other crimes and to
      facilitate their escape. The court therefore finds that the
      Commonwealth sufficiently established that [Appellant] removed
      all four victims a substantial distance from the place where found
      and confined the victims for a substantial period in a place of
      isolation with the intention to inflict bodily injury on or to
      terrorize the victims.

T.C.O., 12/31/14, 15-17. Our review of the record leads us to agree with

the trial court that the Commonwealth indeed provided sufficient evidence to

prove, beyond a reasonable doubt, that Appellant kidnapped Demetria

Harper, Richard Harper, and their two children. Appellant is not entitled to

relief on his first issue.

      In his second issue, Appellant contends that the Commonwealth failed

to present sufficient evidence to convict Appellant of unlawful restraint.

Appellant argues the evidence was insufficient to convict because he moved

the children only to the furnace room to save the children from Burgess’

intention to kill them. Appellant’s Brief at 15.

      As the trial court stated,

             The offense of unlawful restraint of a minor requires that
      the defendant knowingly restrain a person under 18 years of age
      in circumstances exposing her to risk of serious bodily injury. 18
      Pa.C.S. § 2902(b)(1). The Commonwealth is required to prove
      that the defendant placed another in actual danger of serious
      bodily injury. Commonwealth v. Schilling, 288 Pa. Super.
      359, 431 A.2d 1088 (Pa. Super. 1981). [Appellant] contends
      that testimony was elicited that in order to protect the children
      from the co-defendant’s intention to kill them, he moved them to
      the nearby furnace room in the basement so as not to expose
      them to the risk of serious bodily injury. However, as indicated
      by the court in Campbell, [509 A.2d 394 (Pa. Super. 1986)],
      the defendant’s explanation of removing the child from the zone
      of danger created by the defendant’s brother who was doing the
      shooting was for the determination of the jury, which could

                                      -9-
J-S66021-15


      believe all, part or none of the testimony. The identical rational
      [sic] is applicable in the present case with regard to [Appellant]’s
      alleged protection of the children.        As the Commonwealth
      correctly indicates in its brief, the circumstances regarding the
      potential for serious bodily injury are not limited to the events
      taking place in the basement. The testimony of the youngest
      minor victim disclosed that a gun was pointed at her head while
      on the second floor and she was told to shut up. Subsequently,
      both children were accompanied at gunpoint to the basement
      and placed in the furnace room near the area where their
      parents were lying on the floor and later shot. The bullet which
      killed Richard exited his head and was never found despite the
      thorough efforts of investigators. Viewing the above evidence in
      the light most favorable to the Commonwealth, the jury could
      have reasonably concluded that the children were exposed to the
      risk of serious bodily injury resulting from the actions of
      [Appellant] and the co-defendant.

T.C.O., 12/31/14, 19-20.      We agree with the trial court that the record

supports Appellant’s conviction for unlawful restraint. Accordingly, Appellant

is not entitled to relief on his second issue.

      Appellant’s third claim is that the Commonwealth failed to produce

sufficient evidence to prove his guilt beyond a reasonable doubt regarding

possession with the intent to deliver (PWID) marijuana in Beaver County.

Appellant’s Brief at 15-16.    Appellant alleges that the evidence presented

was connected to Allegheny County, not Beaver County. Appellant’s Brief at

16.

      Upon review, the trial court stated:

             To determine whether the Commonwealth has presented
      sufficient evidence to sustain a conviction for possession with
      intent to deliver, all of the facts and circumstances surrounding
      the possession are relevant and the elements of the crime may
      be established by circumstantial evidence. Commonwealth v.
      Little, 879 A.2d 293 (Pa. Super. 2005). The possession with
      intent to deliver can be inferred from the quantity of the drugs

                                      - 10 -
J-S66021-15


      possessed along with the other surrounding circumstances. Id.
      In the instant case, the following facts and circumstances
      provide sufficient evidence to establish that [Appellant]
      maintained possession of the marijuana with intent to deliver it
      while in Beaver County. As a result of the conspiracy between
      [Appellant], Burgess, Demetria and Moore, Demetria was
      provided with $1,500.00 in funds to travel to El Paso, Texas to
      purchase marijuana and have it sent to Pennsylvania. The plot
      was hatched when Demetria indicated to [Appellant] and co-
      defendant that she could obtain marijuana at an attractive price
      through her contacts in Texas.        Demetria provided, upon
      demand of the co-defendant, Burgess, her identification which
      was copied to indicate her trustworthiness. After arriving in
      Texas, Moore and Burgess communicated with Demetria through
      numerous text messages regarding her progress in obtaining the
      marijuana while [Appellant] was present. Demetria purchased
      four pounds of marijuana for $800.00, and with Williams,
      steamed it in an attempt to remove the gasoline odor. After
      Demetria’s return to Pennsylvania and upon the arrival of the
      package to her residence, Moore contacted Burgess to advise
      him of its delivery, and [Appellant] and Burgess immediately
      departed Baltimore and returned to Pittsburgh on June 30, 2008.
      That same night, [Appellant] and Burgess proceeded to the
      Harper residence and after killing Richard and Demetria, took
      with them the marijuana with the odor of gasoline. On or about
      July 4 or 5, 2008, [Appellant] was observed by Chambers and
      her daughter, Rachel Harden, blow-drying the marijuana
      smelling of gasoline at their residence.       The quantity of
      marijuana, taken together with the above–surrounding
      circumstances, provided sufficient evidence from which the jury
      could infer [Appellant]’s intent to possess the marijuana for
      delivery when removing it from the Harper residence in Beaver
      Falls.

T.C.O., 12/31/14, at 23-24.       Our review of the record supports the

conclusion of the trial court that sufficient evidence was presented to convict

Appellant of PWID in Beaver County. As such, Appellant is not entitled to

relief on his third issue.




                                    - 11 -
J-S66021-15



      Appellant’s fourth through ninth issues, as well as his eleventh issue,

challenge evidentiary rulings.   Our standard of review for admissibility of

evidence is well-established.

      The admission of evidence is solely within the province of the
      trial court, and a decision thereto will not be disturbed absent a
      showing of an abuse of discretion. An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias[,] or ill-will discretion . . . is abused.

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (citations and

quotation marks omitted).

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

admitting text messages between the phone numbers of (678) 836-9176

belonging to Demetria Harper and (412) 326-5320 belonging to Cheryl

Chambers.      Appellant argues that the Commonwealth did not authenticate

these messages as having been sent by Appellant, and that multiple

individuals had access to Cheryl Chambers’ phone.          Appellant therefore

argues that these text messages were improperly admitted.            Appellant’s

Brief at 16.

      In addressing this fourth issue, the trial court cogently stated:

            Viewing the question of the authentication of text
      messages as an issue of first impression in Pennsylvania, the
      [C]ourt in Commonwealth v. Koch, 83 A.3d 137 (Pa. Super.
      2011) concluded that electronic communications such as e-mail
      and instant messages can be authenticated within the framework




                                     - 12 -
J-S66021-15


       of Rule 901 of the Pennsylvania Rules of Evidence on a case-by-
       case basis.[4] The [C]ourt further found that e-mails and text
       messages are documents subject to the same requirements for
       authentication as non-electronic documents generally, either by
       direct proof or circumstantial evidence.     Distinguishing text
       messages from other electronic documents because they are
       sent from the cellular telephone bearing the telephone number
       identified in the text message and received on a telephone
       associated with a number to which they are transmitted, the
       court observed that the identifying information is contained in
       the text messages on the cellular telephone. The court noted,
       however, that cellular telephones are not always exclusively
       used by the person to whom the telephone number is
       assigned. . . .

             In the present case, the Commonwealth, prior to
       introducing the subject text messages, presented circumstantial
       evidence to properly authenticate the text messages on the
       Chambers/Harden cellular telephone to demonstrate that
       [Appellant] was sending and receiving text messages from
       Demetria. Moore identified [Appellant] as a participant with her,
       Burgess and Demetria in the planning stages of obtaining
       marijuana in Texas. Chambers and both her daughters, Rachel
       and Rochelle Harden, testified that they lived in the same
       building but in separate apartments and saw each other on a
       daily basis. [Appellant] was either residing with Rachel and/or in
       daily contact with the three of them. Rachel acknowledged that
       [Appellant] regularly used her cellular telephone. Chambers and
       her two daughters all testified that they never knew or had any
       contact by way of text messaging or otherwise, with Demetria.
       No evidence was presented that anyone other than [Appellant]
       and Rachel Harden used the cellular telephone.

T.C.O., 12/31/14, at 26-28. Based on the record, we find that the trial court

did not err in finding that the Commonwealth properly authenticated the text

____________________________________________


4
  “Pennsylvania Rule of Evidence 901 provides that authentication is required
prior to admission of evidence. The proponent of the evidence must
introduce sufficient evidence that the matter is what it purports to be.” Id.
at 1002; See Pa.R.E. 901(a).



                                          - 13 -
J-S66021-15



messages sent from Chambers’ telephone as sent by Appellant to Demetria

Harper. As such, the trial court did not abuse its discretion in admitting the

text messages into evidence. Appellant is not entitled to relief on this issue.

         Appellant’s fifth issue is that the trial court erred in admitting text

messages between the phone numbers of (678) 836-9176 belonging to

Demetria Harper and (412) 417-1354 belonging to Margaret Longmire

(Moore). Appellant argues that the text messages sent by Demetria Harper

to Moore were not in furtherance of the conspiracy made with Appellant.

Appellant’s Brief at 16.         Appellant claims that because Demetria had

changed her plans, she had broken from the conspiracy and, therefore, the

messages were no longer in furtherance of the conspiracy. Appellant’s Brief

at 17.

         As the trial court stated,

         [i]n addressing a defendant’s claim of withdrawal from a
         conspiracy, the [C]ourt, in Commonwealth v. Lloyd, 878 A.2d
         867, 871 (Pa. Super. 2005), set forth the following:

                   The law is equally settled that a person will not be
            considered “an accomplice in an offense committed by
            another person if he terminates his complicity prior to the
            commission of the offense and (i) wholly deprives it of
            effectiveness in the commission of the offense; or (ii) gives
            timely warning to the law enforcement authorities or
            otherwise makes proper effort to prevent the commission
            of the offense. 18 Pa.C.S.A. § 306(f)(3)(i)-(ii)(emphasis
            added). Finally, “if an individual abandons the agreement,
            the conspiracy is terminated as to him only if and when he
            advises those with whom he conspired of his abandonment
            or he informs the law enforcement authorities of the
            existence of the conspiracy and of his participation
            therein.” 18 Pa.C.S.A. § 903(g)(3) (emphasis added).

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            In the instant case, Demetria, pursuant to the conspiracy,
      purchased the marijuana in Texas with funds provided to her by
      co-conspirator, Burgess, and mailed it to her home in
      Pennsylvania.    By lying to Moore, Burgess and [Appellant],
      Demetria did not express her intention to withdraw from the
      conspiracy to acquire the marijuana. Demetria did not advise
      her co-conspirators of her abandonment or inform law
      enforcement authorities of the existence of and her participation
      in the conspiracy to acquire the. marijuana. Nor did she deprive
      the conspiracy of effectiveness in the commission of the
      acquisition of the marijuana or give timely warning to law
      enforcement authorities or make proper effort to prevent the
      commission of the offense. [Appellant] did not establish that
      Demetria withdrew from the conspiracy.

T.C.O., 12/31/14, at 36-37. Our review of the record leads us to conclude

that the trial court did not abuse its discretion in admitting these text

messages into evidence. Appellant is not entitled to relief on his fifth issue.

      Appellant next argues that the trial court erred by admitting evidence

of Appellant’s incarceration for other crimes as testified to by Cheryl

Chambers, Isaiah Pallet, Samuel Paster, and Ryan Weyman.              Appellant

argues that admitting this evidence “unjustifiably blackened” his character in

the minds of the jury. Appellant’s Brief at 17. Appellant relies on the rule

that “[e]vidence of a defendant’s prior arrest or incarceration is generally

inadmissible because the trier of fact may infer past criminal conduct by the

defendant from such evidence.      Reversible error occurs where evidence of

prior criminal conduct unjustifiably blackens the character of a defendant in

the minds of the jury.”   Appellant’s Brief at 17 (citing Commonwealth v.

Williams, 660 A.2d 1316 (Pa. 1995) (citation omitted)).               Appellant

acknowledges that such evidence is generally admissible “where it tends to



                                     - 15 -
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establish motive, intent, absence of mistake or accident, commission of the

crime, or where it was part of a chain or sequence of events which formed

the history of the case.” Appellant’s Brief at 18 (citing Commonwealth v.

Ross, 195 A.2d 81 (Pa. 1963)).           However, Appellant claims that the

evidence regarding his incarceration for other crimes does not meet any of

the exceptions and that the defense never opened the door to allow in this

testimony. Appellant’s Brief at 18-19.

     The trial court addressed this issue as follows:

           Prior to trial, [Appellant] filed a motion to prohibit
     introduction of any evidence of [Appellant]’s incarceration for
     other crimes. The court denied [Appellant]’s motion on the basis
     of the “complete story” exception to the general proscription
     against evidence of other crimes where such evidence is part of
     the chain or sequence of events which become part of the
     history of the case and form part of the natural development of
     the facts. However, the court also prohibited the Commonwealth
     from eliciting any testimony regarding the crimes for which
     [Appellant] was incarcerated during his discussions with Paillett
     and Chambers. The conversations of [Appellant] with Paillett
     and Chambers must be viewed in the context of the relationship
     that he had with each individual.

       ....

           Evidence of distinct crimes are not admissible against a
     defendant being prosecuted for another crime solely to show his
     bad character and his propensity for committing criminal acts.
     Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 ([Pa.]
     1988) (Citations omitted). However, evidence of other crimes
     and/or violent acts may be admissible in special circumstances
     where the evidence is relevant for some other legitimate purpose
     and not merely to prejudice the defendant by showing him to be
     a person of bad character. Lark, supra, at 497 (Citations
     omitted). . . . Another “special circumstance” where evidence
     of other crimes may be relevant and admissible is where such
     evidence is part of the chain or sequence of events which

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      become part of the history of the case and form part of the
      natural development of the facts. Id. (Citation omitted). This
      “special circumstance” is also known as the “complete story”
      rationale, i.e., evidence of other criminal acts is admissible “to
      complete the story of the crime on trial by proving its immediate
      context of happenings near in time and place”. Id. (Citations
      omitted).

T.C.O., 12/31/14, at 42-44. Additionally, the trial court noted:

      Prior to Chambers and Paillett testifying, Rachel Harden testified,
      on both direct and cross-examination, that [Appellant] was in
      jail. In response to a question by the assistant district attorney
      asking if she was having telephone contact with [Appellant] at or
      around the time of meeting with the police, she responded that
      she was, and that he was in jail (T.T. Vol. V, Pg. 111). When
      asked on cross-examination whether she spoke to [Appellant]
      prior to meeting with police, she responded that she did not, and
      that he was in jail (T.T. Vol. 5, Pg. 130). In neither instance did
      defense counsel object or request a cautionary instruction.
      Thus, at the time of the testimony elicited from Chambers and
      Paillett, the jury was aware that [Appellant] had been
      incarcerated by way of the testimony of [Appellant]’s girlfriend,
      Rachel.

       ....

            Based upon the manner in which the evidence of
      [Appellant]’s incarceration was presented, the circumstances
      under which the witnesses explained their contact with
      [Appellant] while he was incarcerated so as to complete the
      natural development of the case, and the court’s cautionary
      instruction to the jury, no error occurred in the admission of this
      evidence.

T.C.O., 12/31/14, 46-47. We agree with the trial court that the contested

testimonial evidence regarding Appellant’s prior incarcerations was properly

admitted and, further, that Appellant opened the door to this testimony.

The trial court did not abuse its discretion in admitting this evidence.

Appellant is not entitled to relief on his sixth issue.


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J-S66021-15



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

admitting Rachel Harding’s testimony that the co-defendant Burgess asked

her if authorities had questioned Appellant.           Appellant argues that the

introduction of Burgess’ inquiry into whether Appellant had been questioned

by the police regarding the Harper murders “served no relevant purpose as

to Appellant’s guilt or innocence.” Appellant’s Brief at 20. Appellant claims

that because this question was allegedly asked after the events of this case

took place--according to the Commonwealth’s timeline, the sole purpose of

the statement was      to permit an inference of Appellant’s guilt. Id.

      As the trial court notes, Appellant fails to develop this relevancy claim

adequately. T.C.O., 12/31/14, at 47. Further,

      Contrary to [Appellant]’s assertion, co-defendant Burgess’ desire
      to know whether [Appellant] had talked to police tended to
      connect him and Burgess as co-conspirators directly to the
      murders and demonstrates consciousness of guilt, as well as a
      continued attempt to conceal their participation in the killings.
      This evidence was therefore relevant to the guilt or innocence of
      [Appellant], and the probative value outweighed any prejudice to
      [Appellant].

Id., at 48-49.      Accordingly, we do not find that the trial court abused its

discretion in admitting this evidence.        Appellant is not entitled to relief on

this claim.

      In his eighth issue, Appellant contends the trial court erred in

admitting     the   testimony   of   Cheryl     Chambers    regarding   Appellant’s

involvement in her federal obstruction of justice charge.         Appellant alleges

that this testimony was irrelevant to the issue of Appellant’s guilt or


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J-S66021-15



innocence. Appellant contends that the prejudicial effect of this testimony

far outweighed its probative value. Appellant’s Brief at 20.

      The trial court addressed this claim as follows:

      During the cross-examination of Chambers, defense counsel
      questioned her extensively regarding her Federal conviction for
      obstruction of justice and the plea agreement that included her
      cooperation against [Appellant] and co-defendant Burgess. The
      Commonwealth then on re-direct examination followed with an
      inquiry of the facts that led to the charge against Chambers.
      She testified that the offense resulted from [Appellant]’s request
      that she pay off the victim of a robbery with which [Appellant]
      had been charged in an effort to prevent the victim from
      testifying against [Appellant].      [Appellant] claims that the
      information     elicited  by    the    Commonwealth       regarding
      [Appellant]’s involvement in the obstruction of justice case
      against Chambers was irrelevant to the issue of [Appellant]’s
      guilt or innocence and the prejudicial effect outweighed any
      probative value. The principles discussed above relating to the
      evidence of [Appellant]’s incarceration and the defense opening
      the door into potential objectionable testimony are equally
      applicable to the above evidence. Defense counsel opened the
      door by asking Chambers about her conviction which then
      permitted the Commonwealth to further inquire as to the
      circumstances which led to the filing of the charge. In addition,
      since defense counsel attempted to impeach Chambers’
      credibility regarding her motive for testifying against [Appellant],
      the Commonwealth was properly permitted to delve into the
      circumstances of the offense.       The probative value of this
      evidence was not outweighed by any prejudice to [Appellant].

T.C.O., 12/31/14, 50-51. For the foregoing reasons, we find that the trial

court did not abuse its discretion in admitting this evidence. Appellant is not

entitled to relief on his eighth issue.

      In his ninth issue, Appellant asserts the trial court denied him his right

to representation under the United States Constitution and the Pennsylvania

Constitution by not permitting second chair counsel to participate in any

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J-S66021-15



cross-examination of witnesses.        Appellant asserts this claim despite

acknowledgment that “second chair” attorneys who do not meet the

educational and experience requirements under Pa.R.Crim.P. 801 are not

qualified to try capital cases. Nonetheless, Appellant alleges the trial court

abused its discretion by imposing a blanket rule that his “second chair”

attorneys could not participate. Appellant claims the trial court was required

to consider whether each witness would have provided only perfunctory

evidence when weighing whether Appellant’s request should be granted.

Appellant’s Brief at 21.

      Pennsylvania    Rule   of   Criminal    Procedure   801    sets   forth   the

qualifications defense counsel must meet in order to try a capital case. It is

uncontested that Appellant’s “second chair” attorneys did not meet the

criteria under this Rule. The trial court noted the following:

            The Comment to [Rule 801] further indicates that ‘The
      educational and experience requirements of the rule may not be
      waived by the trial or appellate court.’ The Comment further
      addresses a role of “second chair” attorneys: ‘An attorney may
      serve as ‘second chair’ in a capital case without meeting the
      educational or experience requirements of this rule. ‘Second
      chair’ attorneys may not have primary responsibility for the
      presentation of significant evidence or argument, but may
      present minor perfunctory evidence or argument, if deemed
      appropriate in the discretion of the court.’

            Our Supreme Court has previously held that an indigent
      defendant is entitled to free counsel but not to free counsel of
      his choice, and although the right to counsel is absolute, there is
      no absolute right to particular counsel. Commonwealth v.
      Tyler, 468 Pa. 193, 360 A.2d 617[, 619] (Pa. 1976) (Citations
      omitted).


                                     - 20 -
J-S66021-15



T.C.O., 12/31/14, at 52-53. We find that the trial court did not abuse its

discretion by not allowing Appellant’s “second chair” attorneys to cross-

examine witnesses. We note Appellant asserts this issue without citation to

any authority or without any argument as to how the denial of his choice of

counsel to present “perfunctory” evidence deprived him of a fair trial.

Appellant is not entitled to relief on his ninth issue.

      In his tenth issue, Appellant contends that the trial court erred when it

allowed the Commonwealth to amend Count 28 of its charge for persons not

to possess to include convictions under 18 Pa.C.S.A. § 6105(c) shortly

before trial. Appellant’s Brief at 22. Appellant argues that he was not put

on notice of this expansion of his charges and, therefore, his ability to

prepare a defense was impaired. Appellant notes that the trial court denied

his request for a bill of particulars and argues that, had the Commonwealth

responded to Appellant’s request for a bill of particulars, he would have been

able to prepare his defense properly and would not have been surprised by

the amendment to Count 28. Appellant’s Brief at 23.

      Rule 564 of the Pennsylvania Rules of Criminal Procedure provides that

“[t]he court may allow an information to be amended when there is a defect

in form, the description of the offense(s), the description of any person or

any property, or the date charged, provided the information as amended

does not charge an additional or different offense.”      Pa.R.Crim.P. 564.   In

addressing this claim, the trial court, after noting the criteria to be




                                      - 21 -
J-S66021-15



considered when ruling upon whether an amendment should be allowed,

held:

              [Appellant] was initially charged in the information at
        Count 28 with violation of the Pennsylvania Uniform Firearms
        Act, 18 Pa.C.S. § 6105(b), person not to possess firearm, after
        having previously been adjudicated as a juvenile of aggravated
        assault and robbery, which are specifically enumerated offenses
        prohibiting a person from possessing a firearm. Prior to trial, the
        Commonwealth requested and the court granted, over
        [Appellant]’s objection, an amendment to Count 28 to include 18
        Pa.C.S. § 6105(c), based on [Appellant]’s conviction for
        possession with intent to deliver five grams of crack cocaine. . . .

         ....

              In the present case, the crime specified in the original
        information contained the same basic elements and evolved from
        the same factual situation as the crime in the amended
        information, and therefore, [Appellant] was placed on notice of
        the alleged criminal conduct, i.e., person not to possess a
        firearm, and was not prejudiced by the amendment. In addition,
        [Appellant] failed to allege that the amended information
        required a change in any defense strategy. The court further
        notes that [Appellant] makes no argument with respect to
        [Appellant]’s conviction pursuant to 18 Pa.C.S. § 6105(b), thus
        demonstrating the absence of any prejudice.

T.C.O., 12/31/14, 54-57. Upon review, we do not find any error on the part

of the trial court in permitting the amendment. Appellant has not

demonstrated that he suffered prejudice because of the amendment. See

Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 2011) (Appellant

not entitled to relief where he was not prejudiced by amendment).              We

therefore deny relief to Appellant on this tenth issue.

        In his eleventh and final issue, Appellant asserts that the trial court

erred by not declaring a mistrial after Commonwealth witness Margarette

                                       - 22 -
J-S66021-15



Moore testified to a discussion she heard between Demetria Harper and an

individual known as “D” that it was “D’s” birthday. Appellant claims this was

inadmissible hearsay and that the trial court should have declared a mistrial.

Appellant’s Brief at 23-24.

      It appears that Appellant’s objection is to the following testimony

wherein Moore testified that “D,” later identified as Appellant, indicated he

was excited about his birthday.

      Q: Okay. And was there any other discussion between Mr.
      Burgess, D, and Demetria around that time?

      A: No, they was just conversating. He was excited, something
      about his birthday, and he was leaving.

N.T. Jury Trial, 6/18/14, at 23. In responding to this claim, the trial court

stated:.

             [Appellant]’s objection as to hearsay is unfounded because
      [Appellant]’s statement regarding his birthday was an admission
      by a party opponent as defined in Rule 803(25)(A) of the
      Pennsylvania Rules of Evidence as an exception to the hearsay
      rule. Party admissions are not subject to the hearsay exclusion,
      because it is fair in an adversary system that a party’s prior
      statements be used against him if they are inconsistent with his
      position at trial. Commonwealth v. Edwards, Pa. 151, 903
      A.2d 1139, 1157-1158 (Pa. 2006).            In criminal cases, a
      defendant’s out-of-court statements are party admissions and
      are exceptions to the hearsay rule. Id.

            The court concludes that Moore’s testimony as to her
      observations of [Appellant] and the statements he made
      regarding his birthday and leaving were properly admitted, and
      therefore, neither a mistrial nor striking them from the record
      was warranted.      The court further notes that during the
      subsequent testimony of [Appellant]’s girlfriend, Rachel Harden,
      she, in answer to a question posed by the assistant district


                                    - 23 -
J-S66021-15


      attorney, advised that [Appellant]’s birthday was June 23, to
      which no objection was raised by defense counsel.

T.C.O., 12/31/14, at 58-59. We find no abuse of discretion on the part of

the trial court in declining to grant a mistrial based upon this evidentiary

objection.   We note in passing that while Appellant raised this issue on

appeal, Appellant completely fails to explain why this alleged error, even if

inadmissible hearsay (which we find it was not), was prejudicial enough to

warrant a mistrial. Appellant is not entitled to relief on this final claim.

       After careful review of the parties’ briefs, the certified record on

appeal, and relevant case law, we conclude that the trial court’s opinion,

authored by Judge John P. Dohanich, cogently disposes of all of Appellant’s

issues.   We therefore affirm the trial court’s judgment of sentence, and

adopt the well-reasoned opinion of the trial court as the decision of this

Court. We direct that a copy of the trial court’s December 31, 2014 opinion

be attached to any future filings in this case.

      Judgment of sentence affirmed.

      Judge Olson joins this memorandum.

      Judge Strassburger files a concurring memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016

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