J-S28042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LEON L. OWENS,

                            Appellant                   No. 532 EDA 2015


            Appeal from the Judgment of Sentence October 8, 2014
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos.: CP-51-CR-0005689-2013
                           CP-51-CR-0005691-2013
                           CP-51-CR-0005701-2013


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 03, 2016

        Appellant, Leon L. Owens, appeals from the judgment of sentence

imposed pursuant to his jury conviction of murder of the third degree,

conspiracy to commit murder, and violation of the Uniform Firearms Act. We

affirm.

        The trial court aptly set forth the factual and procedural history of this

case, as follows:

              On April 11, 2012, at approximately 5:00 P.M., Markel
        Wright (Wright) was shot and killed at 53rd and Greenway
        Streets, in the City and County of Philadelphia. [Wright] was
        leaving a corner store when the Appellant and others engaged in
        a shootout on the public street.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S28042-16



             The shooting was a part of an ongoing dispute between the
       Backstreet Boys and the Greenway Boys. Earlier on the day of
       the shooting, a number of males who were associated with the
       Backstreet Boys armed themselves with guns and gathered at
       the home of Ms. Vicki Dunbar (Dunbar) at 1647 South Wilton
       Street. Appellant was present and was among the armed males.
       Terrence Matthews (Matthews) . . . placed a telephone call to
       Co-defendant Ronald Ockimey (Ockimey),[1] who lived in the
       northeast section of Philadelphia. Ockimey, who was related to
       some of the people who are a part of the Backstreet Boys,
       arrived at Dunbar’s home with a friend. Both [Ockimey] and his
       friend were armed and they joined the other males who were
       already at the Wilton Street address. One of the males at the
       house, Lonnie, told the others who were gathered that two (2)
       males from the Greenway group named Tyreek Brown (Brown) .
       . . and Tyrell Artis (Artis) . . . had guns and had been giving
       Lonnie trouble.

             Appellant said that the Backstreet group should go to
       Greenway Street and shoot Brown and Artis and shoot-up the
       rest of the block. Appellant, [] Ockimey[,] and another male
       walked to 53rd and Greenway Streets. On the way to Greenway
       Street, Appellant, Ockimey, plus the male[,] stopped inside the
       Trendsetters Bar, located at 53rd and Woodland Avenue.
       Appellant was a regular at this bar and was known to the bar
       owner, Anthony Taylor (Taylor). When the three (3) men left,
       they headed toward the intersection of 53rd and Greenway.
       Shortly after the three (3) males left the bar, Taylor heard shots
       and went outside to investigate. Taylor saw three (3) males,
       including Appellant, running down the street away from
       Greenway Street. Surveillance cameras located both inside and
       outside of the bar captured Appellant, [] Ockimey, and the third
       male entering and exiting the bar.

             Warren Stokes (Stokes) plus three (3) males, including
       Wright[,] were inside of the 8 Brothers Food Market located at
       the intersection of 53rd and Greenway Streets when Appellant,
       [] Ockimey[,] and a third male approached the intersection.
____________________________________________


1
 Ockimey has filed a separate appeal in this matter at Superior Court docket
number 452 EDA 2015.



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J-S28042-16


     Stokes exited the corner store while Wright and the two (2)
     males remained inside. Stokes was talking to someone outside
     of the store when he heard gunfire and saw Wright leave the
     store. Wright was struck by a bullet, which caused him to fall to
     the curb. Stokes went to assist [Wright] and called 911.

           Wright was pronounced dead at 6:00 P.M. at the Hospital
     of the University of Pennsylvania. An autopsy performed by
     Assistant Medical Examiner Dr. Edwin Lieberman found that
     Wright was shot one (1) time in the right flank, and the bullet
     travelled upward through his body before exiting through the
     lower left eyelid. The cause of death was found to be a single
     gunshot wound, and the manner of death was found to be
     homicide.     Seventeen (17) fired cartridge casings were
     recovered from the crime scene.

(Trial Court Opinion, 7/29/15, at 4-6) (quotation marks omitted).

     Following this incident, Matthews gave a statement to police in which

he confirmed that he had been at the meeting of the BackStreet Boys, which

he, Appellant, and the other gang members attended to address the issue of

Brown, Artis, and the entire rival street gang, the Greenway Boys.       (See

N.T. Trial, 6/05/14, at 53-56, 60). He told the police that Appellant urged

his fellow armed gang members to confront the men and to “shoot[] up

[Brown] and [Artis] as well as the block.” (Id. at 56; see id. at 53-56, 60).

     On June 11, 2014, the jury convicted Appellant of the aforementioned

charges.   The trial court sentenced him to an aggregate term of not less

than twenty-five nor more than fifty years’ imprisonment on October 8,

2014. Timely filed post-sentence motions were denied by operation of law




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on February 19, 2015. See Pa.R.Crim.P. 720(B)(3)(a). Appellant appealed

on February 23, 2015.2

       Appellant raises five questions for this Court’s review:

       I.    Is [Appellant] entitled to an arrest of judgment on all
       charges where the evidence as here, is insufficient to sustain the
       verdict?

       II.   Is [Appellant] entitled to a new trial on all charges where
       as here the greater weight of the evidence does not support the
       verdict?

       III. Is [Appellant] entitled to a new trial as the result of court
       error where the court failed and refused to charge on involuntary
       manslaughter and all where the charge was necessary pursuant
       to the evidence?

       IV.   Is [Appellant] entitled to a new trial where the court erred
       when it failed to give an instruction on transferred intent as it
       would apply to a fact pattern of self-defense, to wit, where
       [Appellant] acted in self-defense but an unintended person was
       shot and killed?

       V.     Is [Appellant] entitled to a new trial as the result of court
       error where the court found [] Brown to be unavailable when the
       Commonwealth had not sustained its burden of demonstrating
       same and where the record below did not reflect that a full and
       fair hearing had taken place at a preliminary hearing?

(Appellant’s Brief, at 3) (unnecessary capitalization and quotation marks

omitted).

       In his first issue, Appellant challenges the sufficiency of the evidence

supporting his convictions of murder in the third degree and conspiracy to
____________________________________________


2
 Appellant timely filed a Rule 1925(b) statement on March 23, 2015. See
Pa.R.A.P. 1925(b). The court filed an opinion on July 29, 2015. See
Pa.R.A.P. 1925(a).



                                           -4-
J-S28042-16


commit murder. (See id. at 3, 10-16). Specifically, Appellant argues that

the Commonwealth failed to prove that he was not acting in self-defense or

that there was an agreement to commit murder. (See id. at 10-16). This

issue lacks merit.

             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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted).

      “Pursuant to the Pennsylvania Crimes Code, ‘[a] person is guilty of

criminal homicide if he intentionally, knowingly, recklessly or negligently

causes   the   death   of   another   human   being.’”   Commonwealth       v.

Thompson, 106 A.3d 742, 756 (Pa. Super. 2014) (quoting 18 Pa.C.S.A. §

2501(a)). “[T]hird[-]degree murder occurs when a person commits a killing




                                      -5-
J-S28042-16


which is neither intentional nor committed during the perpetration of a

felony, but contains the requisite malice.” Id. at 757 (citation omitted).

            Malice is defined as: wickedness of disposition, hardness of
      heart, cruelty, recklessness of consequences, and a mind
      regardless of social duty, although a particular person may not
      be intended to be injured[.] Malice may be found where the
      defendant consciously disregarded an unjustified and extremely
      high risk that his actions might cause serious bodily injury.
      Malice may be inferred by considering the totality of the
      circumstances.

Id. (citations omitted).

      To establish criminal conspiracy, the Commonwealth must prove that a

defendant:

             (1) entered into an agreement to commit or aid in an
             unlawful act with another person or persons, (2) with
             a shared criminal intent and (3) an overt act was
             done in furtherance of the conspiracy.

            Circumstantial evidence may provide proof of the
      conspiracy. The conduct of the parties and the circumstances
      surrounding such conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable
      doubt. Additionally:

                    An agreement can be inferred from a variety of
             circumstances including, but not limited to, the
             relation between the parties, knowledge of and
             participation in the crime, and the circumstances and
             conduct of the parties surrounding the criminal
             episode. These factors may coalesce to establish a
             conspiratorial agreement beyond a reasonable doubt
             where one factor alone might fail.

Commonwealth v. Jones, 874 A.2d 108, 121-22 (Pa. Super. 2005)

(citations and quotation marks omitted).




                                     -6-
J-S28042-16


     Finally, to prevail on the affirmative defense of self-defense, a

defendant must establish:

     (a) [that the defendant] reasonably believed that he was in
     imminent danger of death or serious bodily injury and that it was
     necessary to use deadly force against the victim to prevent such
     harm; (b) that the defendant was free from fault in provoking
     the difficulty which culminated in the slaying; and (c) that the
     [defendant] did not violate any duty to retreat. [See] 18
     Pa.C.S.[A.] § 505. Although the defendant has no burden to
     prove self-defense . . . before the defense is properly in issue[]
     there must be some evidence, from whatever source, to justify
     such a finding. Once the question is properly raised, the burden
     is upon the Commonwealth to prove beyond a reasonable doubt
     that the defendant was not acting in self-defense.              The
     Commonwealth sustains that burden of negation if it proves any
     of the following: that the slayer was not free from fault in
     provoking or continuing the difficulty which resulted in the
     slaying; that the slayer did not reasonably believe that [he] was
     in imminent danger of death or great bodily harm, and that it
     was necessary to kill in order to save [him]self therefrom; or
     that the slayer violated a duty to retreat or avoid the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (case

citations, quotation marks, and footnotes omitted).

     Here, in explaining its reasoning for finding the evidence sufficient to

support the third-degree murder conviction, the court explained:

           In the instant case, the Commonwealth presented
     circumstantial evidence through the testimony of its witnesses
     and surveillance video to establish that the Appellant and the
     other males conspired to commit the crime of [m]urder, and that
     Appellant violated the Uniform Firearms Act. In a statement to
     police, Matthews said that on the day of the incident Appellant
     and [] Ockimey both had guns at Dunbar’s house and were
     showing the guns to each other. (See N.T. Trial, 6/05/14, at
     53). Matthews also told police that Appellant suggested the
     group go to 53rd and Greenway Streets, and that the Appellant,
     [] Ockimey[,] and others talked about going there and shooting
     Brown, Artis[,] and shooting-up the block. (See id. at 53-56).

                                    -7-
J-S28042-16


      After Appellant made the suggestion to go confront the
      Greenway Boys and discussed it with [] Ockimey, the group then
      collectively went to [that location armed with guns].

            Taylor testified that Appellant was at the Trendsetters Bar
      with other males just prior to the shooting[.] (See id. at 198-
      99, 202). . . . Additionally, Appellant’s presence in the area was
      recorded by video surveillance cameras located at the bar[,
      which recorded him and the other males inside the bar, walking
      on 53rd Street toward Greenway, and running away after the
      shots were fired]. (See id. at 200, 202-04; N.T. Trial, 6/06/14,
      at 75). [] Ockimey admitted to shooting at Wright four to five
      (4-5) times. (See N.T. Trial, 6/06/14, at 72).

             The contents of Matthews’ statement established that
      Appellant was a conspirator in the [m]urder of [Wright].
      Appellant exhibited malice when he went to 53rd and Greenway
      to indiscriminately shoot whoever was there. This shooting on a
      public street resulted in the death of Wright and fulfilled the
      elements of [t]hird [d]egree [m]urder. . . . The jury was
      instructed that they could believe all, part, or none of the
      testimony.       After hearing the evidence presented at trial
      however, the jury proceeded to find Appellant guilty of [t]hird
      [d]egree [m]urder [and] [c]onspiracy . . . The jury was also
      instructed on [v]oluntary [m]anslaughter and self-defense, but
      they were not persuaded. Viewed in the light most favorable to
      the Commonwealth as the verdict winner, the evidence is
      sufficient to find the Appellant guilty of the aforementioned acts.

(Trial Ct. Op., at 8-9) (citation formatting and some citations provided).

      After our independent review of the record, we agree with the trial

court that the Commonwealth produced sufficient evidence that the armed

Appellant conspired with other individuals to ambush and shoot members of

the Greenway gang, purposely went to their suspected location, and then

fired on them, to support the elements of murder of the third degree and

conspiracy. See Harden, supra at 111.




                                     -8-
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      Moreover, Appellant’s argument that the Commonwealth failed to

provide sufficient evidence to create reasonable doubt of his self-defense

claim, (see Appellant’s Brief, at 12-15), fails where Appellant “was [not] free

from fault in provoking the difficulty which culminated in the slaying[.]”

Mouzon, supra at 740 (citations and footnote mitted). In fact, not only did

Appellant “violate[] a duty to . . . avoid the danger,” id. at 740-41 (citation

omitted), he created the situation when he conspired with others to ambush

the Greenway Boys in order to “shoot [them] and the block up,” and then

went to their location armed with guns in furtherance of the plan.       (N.T.

Trial, 6/05/14, at 53-54; see also id. at 56, 198-200; N.T. Trial, 6/06/14,

at 75, 113-16). Therefore, we conclude that the trial court properly found

that the Commonwealth provided sufficient evidence to disprove Appellant’s

claim of self-defense.   See Harden, supra at 111.      Appellant’s first issue

does not merit relief.

      In Appellant’s second issue, he maintains that the trial court erred in

denying his motion for a new trial because “the greater weight of the

evidence does not support the Commonwealth’s verdict.” (Appellant’s Brief,

at 17 (unnecessary capitalization and emphasis omitted); see id. at 17-19).

Appellant’s issue lacks merit.

      Our standard of review of a challenge to the weight of the evidence is

well-settled:

                  A verdict is not contrary to the weight of the
            evidence because of a conflict in testimony or

                                     -9-
J-S28042-16


            because the reviewing court on the same facts might
            have arrived at a different conclusion than the fact[-
            ]finder. Rather, a new trial is warranted only when
            the jury’s verdict is so contrary to the evidence that
            it shocks one’s sense of justice and the award of a
            new trial is imperative so that right may be given
            another opportunity to prevail. Where, as here, the
            judge who presided at trial ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.

           One of the least assailable reasons for granting or denying
      a new trial is the lower court’s determination that the verdict
      was or was not against the weight of the evidence and that new
      process was or was not dictated by the interests of justice.
      Thus, only where the facts and inferences disclose a palpable
      abuse of discretion will the denial of a motion for a new trial
      based on the weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa. 2014), cert. denied,

135 S.Ct. 1548 (2015) (citations omitted; emphasis in original).

      Here, Appellant has not argued or demonstrated that the trial court

palpably abused its discretion when it denied his motion for a new trial on

the basis of the weight of the evidence.     He merely claims that the trial

record “was full of discrepancies” and the jury was left to guess at what

occurred. (Appellant’s Brief, at 18). Thus, Appellant has failed to advance

an argument that invokes the appropriate standard of review.             See

Morales, supra at 91-92.

      Moreover, our independent review of the record reveals that the trial

court properly viewed the issue as one of credibility, which the jury was free


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J-S28042-16


to resolve in the Commonwealth’s favor, and determined that the verdict

“[did] not shock the conscience.”              (Trial Ct. Op., at 10; see id. at 11).

Therefore, we conclude that the trial court did not palpably abuse its

discretion in deciding the weight of the evidence issue, see Morales, supra

at 91-92, and Appellant’s second claim does not merit relief.

       In Appellant’s third and fourth issues, he argues that the trial court

erred in denying his request for an involuntary manslaughter jury instruction

and a transferred intent charge based on Commonwealth v. Fowlin, 710

A.2d 1130 (Pa. 1998).3 (See Appellant’s Brief, at 19-25). These issues are

waived.

____________________________________________


3
    In Fowlin:

       Fowlin was accosted by three men who assaulted him with
       pepper spray and simultaneously drew a handgun.       Fowlin
       assumed, with reason, that they intended to kill or seriously
       injure him.   He acted instinctively and within our law in
       defending himself.

Fowlin, supra at 1134.

       The Pennsylvania Supreme Court held:

             Because the crimes with which Fowlin was charged[,
       reckless endangerment and aggravated assault,] require proof of
       recklessness, and because . . . a claim of self-defense, if
       believed, negates any element of recklessness, Fowlin, a fortiori,
       cannot be found to have been reckless, for the Commonwealth
       admits that his actions were justified. If he cannot be held to
       have been reckless, he cannot be convicted of aggravated
       assault or reckless endangerment. . . .

(Footnote Continued Next Page)


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      “A specific and timely objection must be made to preserve a challenge

to a particular jury instruction.            Failure to do so results in waiver.”

Commonwealth v. Moury, 992 A.2d 163, 178 (Pa. Super. 2010) (citations

omitted). “[T]he mere submission and subsequent denial of proposed points

for charge that are inconsistent with or omitted from the instructions

actually given will not suffice to preserve an issue, absent a specific

objection or exception to the charge or the trial court’s ruling respecting the

points.”    Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015)

(citation omitted); see also Pa.R.Crim.P. 603, 647(C).

      In this case, when the trial court denied Appellant’s request for an

involuntary manslaughter instruction and a charge based on Fowlin, he

failed to object. (See N.T. Trial, 6/06/14, at 219-20; N.T. Trial, 6/10/14, at




                       _______________________
(Footnote Continued)

Fowlin, supra at 1133.           The Court limited its holding, however, by
observing:

      [I]f the victim acts outside of the parameters established by the
      law, then his act is not justified and he may be prosecuted for
      injury to bystanders or others which he may inflict. . . . If . . .
      [he] did not reasonably believe deadly force was necessary; he
      provoked the incident, or he could retreat with safety, then his
      use of deadly force in self-defense was not justifiable and he
      may be prosecuted for injuries or death he inflicts on the
      assailants or on bystanders. . . .

Id. at 1134.




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211, 275-76). Therefore these issues are waived.4, 5 See Hitcho, supra at

756; Moury, supra at 178.

       In his fifth issue, Appellant claims that “[t]he [t]rial [c]ourt . . . erred

when it permitted the testimony of a witness who it apparently believed was

unavailable[,]     but   where     there       was   no   showing   of   same   by   the

Commonwealth.”        (Appellant’s Brief, at 29).         Specifically, Appellant argues

that the trial court erred in finding that the Commonwealth made a good

faith effort to locate Brown. (See id. at 25-29). Appellant’s issue does not

merit relief.
____________________________________________


4
  We also observe that Appellant’s Rule 1925(b) statement did not raise an
issue alleging trial court error in denying his request for the involuntary
manslaughter instruction.      (See Appellant’s Rule 1925(b) Statement,
3/23/15, at 1-4). Accordingly, we deem Appellant’s fourth issue waived on
this basis as well, and we lack the authority to review it.            See
Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014); see also Pa.R.A.P. 1925(b)(4)(vii).
5
   Moreover, based on our independent review of Fowlin and this case,
including the trial court’s jury charge, we would conclude that it did not
abuse its discretion or commit an error of law in denying Appellant’s jury
instruction requests. See Commonwealth v. Johnson, 107 A.3d 52, 89
(Pa. 2014), cert. denied, 136 S.Ct. 43 (2015) (“A trial court’s denial of a
request for a jury instruction is disturbed on appeal only if there was an
abuse of discretion or an error of law.”) (citation omitted). The evidence
produced did not support an involuntary manslaughter charge. Also, the
trial court properly found that Appellant’s attempt to create a jury instruction
on the basis that Fowlin somehow negated his liability for third degree
murder was unavailing where the holding in Fowlin applied to a victim who
acted recklessly in justifiable self-defense, not to an active participant who
acted with malice and provoked the incident. (See N.T. Trial, 6/10/14, at
207-11); see also Fowlin, supra at 1134. Therefore, even if properly
preserved, this argument would not merit relief.




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      Our standard of review of this matter is well-settled. “It is within the

discretion of the trial court to determine what constitutes a good faith effort

to locate a missing witness, and the decision of the court will not be

overturned absent an abuse of discretion.”      Commonwealth v. Douglas,

737 A.2d 1188, 1196 (Pa. 1999), cert. denied, 530 U.S. 1216 (2000)

(citations omitted).

      Pursuant to 42 Pa.C.S.A. Section 5917:

      Whenever any person has been examined as a witness, either
      for the Commonwealth or for the defense, in any criminal
      proceeding conducted in or before a court of record, and the
      defendant has been present and has had an opportunity to
      examine or cross-examine, if such witness afterwards . . .
      cannot be found, . . . notes of his examination shall be
      competent evidence upon a subsequent trial of the same
      criminal issue. . . .

42 Pa.C.S.A. § 5917; see also Pa.R.E. 804.

      “A witness who cannot be found at the time of trial will be deemed

unavailable only if a good-faith effort to locate the witness and compel his

attendance at trial has failed.”     Commonwealth v. Cruz-Centeno, 668

A.2d 536, 541 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996).

(citations and internal quotation marks omitted). Further, “[t]he extent to

which the Commonwealth must go in order to produce an absent witness is a

question of reasonableness.”       Id. (citation and internal quotation marks

omitted).

      In this case, the trial court addressed this issue as follows:




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              A full hearing was conducted prior to granting the
       Commonwealth’s          unavailability   motion      wherein      the
       Commonwealth presented four (4) witnesses who each
       confirmed that Brown could not be located. (See N.T. Trial,
       6/09/14, at 15-56). Although Brown attended the first day of
       trial, he failed to attend the balance of trial. (See id. at 17, 20).
       A bench warrant was issued by [the trial c]ourt[,] which was
       distributed to tactical teams where Brown lived, 12th District
       personnel, and the Criminal Intelligence Unit. (See id. at 26-
       27). Brown’s cell phone was tracked by [global positioning
       system (GPS) satellites] with negative results, the area hospitals
       and Medical Examiner’s Office were checked, and Brown’s
       mother testified that a police officer visited [and searched] her
       home looking for Brown almost every day. (See id. at 27-28,
       38). The [trial c]ourt was satisfied that the Commonwealth put
       forth good faith efforts to locate Brown, to no avail. Brown’s
       statement was thereafter admitted because Appellant’s prior
       counsel had an adequate opportunity to cross-examine Brown at
       the [p]reliminary [h]earing.[6] At that time, Brown was also
       cross-examined by [] Ockimey’s counsel as well.

(Trial Ct. Op., at 12-13) (citation formatting and some citations provided;

some citations omitted).

       Our independent review of the record supports the findings of the trial

court and its determination that the Commonwealth proved that it made a

good faith effort to locate Brown.             The Commonwealth presented the

testimony of multiple witnesses who testified that several police officers, law
____________________________________________


6
  Appellant does not argue that the court erred in finding that he had a full
and fair opportunity to cross-examine Brown at the preliminary hearing,
although phrased that way in his statement of questions involved. (See
Appellant’s Brief, at 3, 25-29). Therefore, any challenge on this basis is
waived and we decline to address it. See Commonwealth v. Hawkins,
810 A.2d 668, 672 (Pa. Super. 2002), appeal denied, 827 A.2d 430 (Pa.
2003) (waiving and declining to review issue raised in statement of
questions involved where not addressed in argument section of brief).




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J-S28042-16


enforcement units, and GPS satellites were involved in the search for

Brown.7    Therefore, we conclude that the trial court properly exercised its

discretion when it granted the Commonwealth’s motion in limine and found

that Brown was unavailable to testify at trial. See Douglas, supra at 1196;

see also Cruz-Centeno, supra at 541.               Appellant’s fifth issue does   not

merit relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




____________________________________________


7
  Further, Appellant’s argument that Brown, as a “lay person” did not realize
the trial subpoena was “ongoing” lacks merit. (Appellant’s Brief, at 28). We
first observe that whether Brown knew the nature of the subpoena is
immaterial to the question of whether the Commonwealth made reasonable
good faith efforts in locating him. Moreover, the record reflects that the
Commonwealth’s counsel testified that, on the first day of trial, she told
Brown the subpoena was continuing and that he was to appear every day
unless she expressly advised him otherwise. (See N.T. Trial, 6/09/14, at
18); (Appellant’s Brief, at 28). Therefore, this argument is belied by the
record.



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