J. A11012/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
OBINA ONYIAH,                           :         No. 3010 EDA 2013
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, May 31, 2013,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0001632-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED SEPTEMBER 28, 2015

     Following a jury trial, Obina Onyiah was convicted of second-degree

murder, three counts of robbery, conspiracy to commit robbery, and a

violation of the Uniform Firearms Act. Herein, he appeals from the judgment

of sentence entered on May 31, 2013, in the Court of Common Pleas of

Philadelphia County. We affirm.

     The facts, as aptly summarized by the trial court, are as follows.

                 On Thursday, October 21, 2010, at about
           10:30 a.m., William Glatz, Margaret Colbridge,
           Eric Stiess, and Paul Brewington were all inside the
           William Glatz Jewelers’ store, located at 6435 Rising
           Sun Avenue. Mr. Glatz was the owner of this family
           establishment, which had been in business for about
           63 years. Ms. Colbridge and Mr. Stiess were both
           long-time employees who had each worked at the
           store for about 25 years.          On this morning,
           Mr. Brewington, an outside salesman, had a
           scheduled appointment to sell jewelry to Mr. Glatz.
J. A11012/15



                Appellant and Kevin Turner entered the jewelry
          store around 11:00 a.m. on October 21, 2010. They
          had been in the store days before posing as
          customers when they were really planning a robbery.
          On    that    Thursday,   Turner   and    [appellant]
          approached Ms. Colbridge and asked her to remove a
          link from Turner’s watch. Ms. Colbridge took the
          watch to Mr. Glatz, who was in the back room of the
          store. On her way to the back room, she noticed
          that Mr. Brewington had left two of his bags in the
          front of the store. She put one bag over the counter
          and dragged the other one to the back of the store.
          [Appellant] and Turner followed her as she entered
          the back room. In her testimony, Ms. Colbridge
          referred to the two men as “Fat” and “Skinny.” “Fat”
          was Kevin Turner. “Skinny” was [appellant].

                 When they reached the back room, Turner
          approached Mr. Stiess and put a gun to his head.
          Mr. Stiess complied with Turner’s order to drop
          whatever was in his hand, and dropped his gun on
          the floor. [Appellant] grabbed Ms. Colbridge and put
          a gun to her head. However, Ms. Colbridge struck
          [appellant’s] arm, knocked his gun away, and ran for
          help.     As Ms. Colbridge fled, Turner yelled to
          [appellant]: “Get her, shoot her.”         [Appellant]
          chased Ms. Colbridge, but she ran from the store
          toward the pharmacy to her left, where she asked
          the attendant to call police. [Appellant] ran across
          the street, entered a waiting vehicle parked at Argyle
          and Levick Streets and fled the scene.

                 Inside the jewelry store, Turner was holding a
          gun to Mr. Stiess’s head. Mr. Brewington had his
          hands down and his back turned to show that he was
          not a threat. Turner ordered Mr. Stiess to approach
          him, and as Mr. Stiess complied with that command,
          Mr. Glatz reached for his gun. Turner and Mr. Glatz
          then exchanged gunfire. Turner shot Mr. Glatz four
          or five times, and Mr. Glatz shot Turner.

                During the shooting, a bullet whizzed by
          Mr. Stiess’s head and another bullet nearly struck


                                  -2-
J. A11012/15


          Mr. Brewington.      When the shooting was over,
          Mr. Glatz was on the floor gasping and holding his
          chest. Turner was also on the floor, but moving
          around with a gun in his hand. Mr. Stiess picked up
          his gun from the floor and shot Turner in the head.
          He then took the gun from Turner’s hand. Despite
          their efforts, Mr. Stiess and Mr. Brewington were
          unable to revive Mr. Glatz. The men called 911 and
          police arrived within one to two minutes.

                 At   about    10:51    a.m.,   Police   Officers
          Donna Grebloski and Thomas Morrow responded to a
          radio call of robbery in progress at a jewelry store at
          6435 Rising Sun Avenue.         As Officer Grebloski
          entered the store, she saw Ms. Colbridge standing at
          the jewelry counter in a hysterical state.
          Ms. Colbridge told the officers that one of the men
          had fled from the store and requested an ambulance
          for Mr. Glatz. Mr. Stiess showed Officer Grebloski his
          gun and shouted: “I shot him. I shot him.” As the
          officers continued to the rear of the store, they saw
          Turner     lying   face     down     on    the    floor.
          Officer Grebloski also observed a gun on top of a
          table behind Turner. Mr. Glatz was lying on his back
          on the other side of a table.

                Officer Grebloski requested two ambulances
          and secured the crime scene. The rescue unit did
          not transport Turner to the hospital because it
          appeared that his condition was hopeless. Mr. Glatz,
          who    was    conscious    but  unresponsive,   was
          transported to the hospital, where he underwent
          several medical procedures in an attempt to save his
          life. However, on October 21, 2010, at 11:40 a.m.,
          Mr. Glatz was pronounced dead at Albert Einstein
          Medical Center in Philadelphia.

                 Dr. Samuel Gulino, Chief Medical Examiner,
          testified at trial as the Commonwealth’s expert in
          forensic pathology.     Dr. Gulino concluded to a
          reasonable degree of medical certainty that the
          cause of Mr. Glatz’s death was one gunshot wound to
          his abdomen. He also concluded to a reasonable
          degree of medical certainty that the manner of


                                   -3-
J. A11012/15


          Mr. Glatz’s death was homicide.            Dr. Gulino
          determined that the bullet entered Mr. Glatz’s front
          abdomen and struck the large intestine, mesentery,
          pancreas, aorta, and one side of his vertebral
          column. The bullet lodged in the soft tissues on the
          left side of his back. This slightly deformed bullet
          was recovered and submitted to police. Due to
          damage to the aorta, other organs and blood
          vessels, Mr. Glatz bled internally and a significant
          amount of blood was found in his abdominal cavity.
          Dr. Gulino stated that the blood loss caused
          Mr. Glatz’s heart to stop beating, resulting in death.

                Turner sustained two gunshot wounds,
          including one to the left back of his head
          administered by Mr. Stiess.      A second gunshot
          wound was located to the left lower back, where the
          bullet travelled upward, struck his heart and left
          lung, and lodged in the left front part of his chest.
          Dr. Gulino concluded that such a wound would not
          be immediately incapacitating and that an individual
          would be able to move and speak until significant
          blood loss caused unconsciousness. In addition to
          these two gunshot wounds, Turner had one abrasion
          to the right side of his forehead and a second
          abrasion on the side of his right eye. Dr. Gulino
          concluded that these abrasions were consistent with
          Turner’s face striking the floor after he collapsed
          from being shot.

                At 1:50 p.m., Police Officer Christopher Reed
          responded to the location and processed the crime
          scene. Officer Reed found a bloody black hat with a
          red brim embossed with “New Era 59Fifty” and
          “Cincinnati Reds” in the doorway near Turner’s body.
          Officer Reed also recovered three firearms: one
          .357 caliber Smith and Wesson revolver owned by
          Mr. Glatz, one .45 semi-automatic Ruger that had
          been possessed by Turner, and one .380 Walther
          owned by Mr. Stiess. The .357 caliber Smith and
          Wesson revolver contained one 9 millimeter live
          round and four fired cartridge casings. Officer Reed
          also recovered five .45 caliber fired cartridge
          casings, one copper jacket fragment, one copper


                                  -4-
J. A11012/15


          projectile, and two other projectiles.        He later
          submitted the ballistics evidence to the Firearms
          Identification Unit. In addition to finding these fired
          cartridge casings, Officer Reed also observed several
          strike marks inside the store.

                 At trial, the parties stipulated to Police Officer
          Grandizio’s expertise in tool marking firearms
          identification and ballistics evidence. He examined
          the submitted ballistics evidence and made the
          following findings. The .45 caliber semi-automatic
          weapon fired the five spent cartridge casings. The
          .380 Walther contained one live round and one fired
          cartridge casing, and used hydroshock ammunition.
          The .357 revolver contained four fired cartridge
          casings and one live round inside the chamber.
          Further, the Commonwealth introduced a certificate
          of non-licensure, which confirmed that [appellant]
          was not licensed to carry a firearm on October 21,
          2010.

                 Officer Reed and other responding officers also
          dusted the jewelry store display cases for latent
          fingerprints and submitted them for further
          processing at the Records and Identification Unit. At
          trial, the parties stipulated to the latent fingerprint
          report prepared by Patrick Raytik, a fingerprint
          technician, who determined that the fingerprints
          could not be attributed to [appellant], Kevin Turner,
          or a third man, Jamal Hicks.

                 Homicide        Detectives        interviewed
          Mr. Brewington, Ms. Colbridge, and Mr. Stiess, who
          each provided a statement wherein they gave an
          account of what happened inside the jewelry store
          and a description of the second perpetrator. They
          also interviewed Suzanne Duffy, who saw the second
          man flee the crime scene.          At approximately
          1:45 p.m., Detectives Lucke and Dunlap arrived and
          recovered surveillance video from three security
          cameras inside the jewelry store.         Based on
          information that Detective Lucke received from other
          detectives and witnesses at the scene, he narrowed
          his search to certain individuals and to the time


                                    -5-
J. A11012/15


          periods of October 19, 2010 between 10:30 a.m. and
          10:45 a.m., October 20, 2010 between 2:50 p.m.
          and 3:00 p.m., and October 21, 2010 between
          10:30 a.m. and 11:00 a.m.

                 Detective  Lucke    compiled  the     relevant
          timeframes chronologically into one video.        On
          October 19, 2010, at 10:30 a.m., the video
          displayed two men entering the store. One of the
          men was Turner, who was significantly taller and had
          a bigger build than the other man. The second man
          was of a thin build, had a medium brown
          complexion, and was wearing a loose reddish orange
          hoodie. At 10:39 a.m., the two men are seen exiting
          the store. On October 20, 2010, at 2:54 p.m., the
          video showed an individual entering and exiting the
          store.

                The October 21, 2010 video showed Turner
          and a tall, thin man who appeared close to Turner’s
          height.    The tall, thin man, later identified as
          [appellant], was wearing a dark hat, dark hoodie,
          dark pants, and white sneakers. The video further
          showed that Turner pulled out a large dark silver
          semi-automatic gun and [appellant] retrieved an
          item from his waistband.           It also showed
          Ms. Colbridge running toward the front door and
          [appellant] chasing her with a gun in his right hand.

                As the above transpired, a cloud of dust,
          consistent with the exchange of gunfire, appeared in
          the video. Ms. Colbridge can be seen running left
          toward the store next door, as [appellant], who
          chased her, turned right after exiting the jewelry
          store. Another employee then moved to the front
          door of the store. The video then showed activity in
          the back of the store. One man was in the back
          behind a workstation. Detective Lucke believed that
          this man was Mr. Glatz, who was shot and killed.
          Another individual fell to the floor.           When
          Detective Lucke arrived on location, he saw Turner
          lying on the floor about several feet inside the rear
          work area.



                                  -6-
J. A11012/15


                During Detective Lucke’s review of his video
          compilation, he viewed each frame and identified the
          clearest one from which to extract a still photograph.
          The best frame depicted a man wearing a dark
          hoodie and a dark fitted hat with a dark brim. The
          man had a brown complexion, full lips, and a slight
          mustache.     He did not appear to have tattoos,
          piercing, jewelry, or scars. The man carried a dark
          colored handgun.       Detective Lucke extracted a
          second frame of the man from the same angle. This
          man was later identified as [appellant].

                 On October 23, 2010, Raneisha Carter
          provided a statement to Homicide Detectives after
          viewing a newspaper article that showed the side
          profile of a man wearing a hat and a hoodie.
          Ms. Carter thought that the man depicted in the
          photograph resembled Donte Waters, her son’s
          father. On the same day that Ms. Carter identified
          Waters, detectives visited the respective homes of
          Ms. Colbridge and Mr. Stiess and interviewed them a
          second time.     After being shown a photographic
          array, Ms. Colbridge and Mr. Stiess each identified
          Waters, as a man bearing a close resemblance to the
          perpetrator.      This man had similar facial
          characteristics as [appellant] such as prominent lips
          and nose and a dark complexion. However, police
          later determined that Waters was not involved in this
          incident, and identified [appellant] as the second
          perpetrator.

                At trial, Detective Lucke compared the still
          photograph that was extracted from the jewelry
          store surveillance video to a photograph of
          Donte Waters     taken    on   April   20,   2011.
          Detective Lucke noted that Waters had a lighter
          complexion and had distinctive tattoos on his right
          neck. Detective Lucke stated that those tattoos
          would have been shown in the surveillance video if
          Waters had been in the jewelry store. Waters’s
          height was listed as 5 feet 9 inches tall and his
          weight was 155 pounds.        Detective Lucke also
          compared the still photograph to a photograph of
          [appellant] taken on November 10, 2010. In the


                                  -7-
J. A11012/15


          November 10, 2010 photograph, [appellant]’s height
          was listed as 6 feet 3 inches and his weight was
          195 pounds.      Detective Lucke stated that the
          individuals depicted in the two photographs had
          similar facial features including the nose, the lips,
          and complexion.

                 On November 4, 2010, Donnell Cheek provided
          a statement to Detectives Cummings and Glenn.
          Mr. Cheek provided this statement after he saw a
          still photograph on television news while he was in a
          Camden County prison. He saw this photograph
          three (3) times. After he saw this still photograph,
          he called a friend and asked her to contact the news
          station. Mr. Cheek also spoke with his attorney.
          After consulting with his attorney, Mr. Cheek was
          interviewed      by    the     detectives   in   this
          case.[Footnote 1]

               [Footnote 1] On September 29, 2010,
               Mr. Cheek entered into a federal plea
               agreement and a cooperation agreement
               with the United States Attorney’s Office.
               As a result of Mr. Cheek’s cooperation in
               this case, the United States Attorney’s
               Office offered to file a motion to reduce
               his federal sentence.

                During his interview, Mr. Cheek identified
          [appellant] as the man depicted in the still
          photograph.      Mr. Cheek was shown a second
          photograph that depicted a man with an afro and a
          prominent mustache and beard and identified
          [appellant] as the man depicted therein. At trial,
          Mr. Cheek testified that he was 100 percent certain
          of his identifications of [appellant], whom he has
          known since 1997. Mr. Cheek attended the same
          school as [appellant] from middle school until the
          first year of high school, when [appellant]
          transferred to another school. The two men had
          been friends during that period and played basketball
          together. The last time that Mr. Cheek had seen
          [appellant] was sometime in 2005. From 1997 to



                                  -8-
J. A11012/15


          2005, Mr. Cheek       had   seen    [appellant]   over
          200 times.

                 On December 20, 2010, Detective Bill Urban
          conducted a lineup that included five men and
          [appellant], who was in the Number 4 position.
          Ms. Colbridge, Mr. Stiess, and Mr. Brewington were
          present and viewed the lineup. Mr. Brewington could
          not identify anyone, but he further described the
          second man as a black male in his 20s who was
          about 5 feet and 7 to 8 inches tall and had no facial
          hair and no tattoos.           Mr. Stiess immediately
          identified [appellant].       Ms. Colbridge identified
          [appellant], stating “I think it was Number 4.”
          Detective      Urban     considered     Ms. Colbridge’s
          statement to be a positive identification of
          [appellant] because she did not choose anyone else.
          At trial, Ms. Colbridge confirmed her identification of
          [appellant].

                 On November 8, 2010, at 10:10 a.m.,
          Detective Pitts interviewed Chioma Christine Onyiah,
          [appellant’s] sister, at the Homicide Unit. As a result
          of this interview, Ms. Onyiah arranged for [appellant]
          to meet her outside a McDonald’s near Bridge and
          Pratt Streets. At about 2:50 p.m., Police Officer
          Brian Ward detained [appellant] at the intersection
          of Saul Street and Cheltenham Avenue and
          transported him to the Homicide Unit.

                [Appellant] arrived at the Homicide Unit at
          about 3:20 p.m. on November 8, 2010.               At
          10:55 p.m., Detective Pitts took a verbatim
          statement from [appellant]. During this interview,
          [appellant] was in good physical condition. He did
          not appear to be under the influence of drugs or
          alcohol. [Appellant] appeared to be oriented to time
          and space, and his answers were responsive.
          [Appellant] did not appear to be sleepy. He did not
          request to use the bathroom. He did not request
          food or drink. [Appellant] spoke English and stated
          that he could read, write and understand English.
          There were no threats or promises made to



                                   -9-
J. A11012/15


          [appellant] before, during, or after the statement.
          He was not physically abused in any way.

                Before [appellant] provided his statement,
          Detective Pitts advised him of his Miranda rights
          and informed him that he was being questioned
          about the robbery at Glatz Jewelry Store and the
          murder of William Glatz.        Detective Pitts and
          [appellant]   then    engaged     in   an   informal
          conversation. Before the formal interview began,
          Detective Pitts again advised [appellant] of his
          Miranda rights.      On the second page of his
          statement, [appellant] stated that he understood his
          Miranda rights and voluntarily waived them.

                 In his statement, [appellant] explained that a
          week prior to the robbery, he was playing basketball
          with another male named Jamal, who proposed that
          they rob a store for quick and easy money.
          [Appellant] agreed and met Jamal in a parking lot
          near the Frankford Terminal, where he entered the
          rear passenger seat of a dark green car with tinted
          windows with Kevin Turner sitting inside. When the
          two men arrived at the jewelry store, Turner entered
          first and [appellant] followed.

                 In his statement, [appellant] further explained
          what happened inside the jewelry store on October
          21, 2010; how he chased Ms. Colbridge and how he
          fled the scene. [Appellant] also informed police that
          he discarded the hoodie, jeans and skull cap he wore
          that day, and that he left the gun in Jamal’s car.
          During this interview, [appellant] identified a
          photograph of Jamal Hicks. He identified Turner as
          “[t]he guy in the store with me.” At the end of his
          interview, [appellant] signed the appropriate form to
          indicate that he declined to have his statement
          videotaped. On November 10, 2010, at 3:15 p.m.,
          [appellant] was arrested and charged with murder,
          robbery and related offenses.

                On November 16, 2010, at 11:20 a.m., Jeremy
          Carrion provided a statement to police after he was
          contacted by the Homicide Unit.      At that time,


                                  - 10 -
J. A11012/15


            Mr. Carrion identified [appellant] from the still
            photographs and news captions from the Internet.
            Mr. Carrion also identified [appellant] at trial and
            noted that [appellant] looked the same as he did the
            last time that they met.        Jeremy Carrion knew
            [appellant] in a professional capacity from March
            2009 to July 2010. During that time, he met with
            [appellant] once or twice per month for anytime
            between five (5) minutes to one (1) hour in standard
            lighting conditions.     In fact, Mr. Carrion was
            [appellant’s] probation officer, but that fact was not
            disclosed to the jury.

                   On February 9, 2011, Ms. Colbridge identified
            [appellant] at his preliminary hearing. At trial, she
            confirmed her prior identifications of [appellant].
            Mr. Stiess also identified [appellant] at the
            preliminary hearing and at trial. Mr. Brewington did
            not testify at [appellant’s] preliminary hearing. At
            trial, he identified [appellant]. He explained that he
            was able to make this identification after he
            independently viewed videotapes of the incident.

Trial court opinion, 5/30/14 at 2-12 (citations to the record omitted).

      Appellant filed a motion to suppress his confession, contesting the

voluntariness of his confession; the Honorable Sandy L.V. Byrd denied the

motion, and a jury trial commenced on May 23, 2013. On May 31, 2013,

appellant was convicted of the above-stated offenses.           Appellant was

sentenced to life in prison without parole.     A post-sentence motion was

timely filed; on October 8, 2013, the motion was denied. A timely notice of

appeal was filed.   Appellant complied with the trial court’s order to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Thereafter, on January 15, 2014, appellant filed a motion for remand due to


                                    - 11 -
J. A11012/15


newly discovered evidence; a panel of this court denied the motion without

prejudice to appellant’s right to re-apply for such relief in appellant’s brief.

      The following issues have been presented for our review.

               I.         Were the verdicts of guilty as to 2nd degree
                          murder, three counts of robbery, conspiracy to
                          commit robbery and carrying a firearm without
                          a license against the weight of the evidence?

               II.        Did the trial court err in not striking the
                          testimony of Paul Brewington identifying the
                          appellant as one of the perpetrators of the
                          crimes?

               III.       Did the trial court err in allowing the witnesses
                          Jeremy     Car[r]ion,    Donnel     [Cheek]   and
                          Detective Thurston      Lucke    to   give   their
                          respective opinions that the pictures taken
                          f[ro]m the surveillance video of the incident
                          were pictures of the appellant?

               IV.        Is the [appellant] entitled to an evidentiary
                          hearing because of newly discovered evidence
                          that Detective Pitts and Detective Jenkins, the
                          Detectives who secured the alleged confession
                          from the appellant had one [sic] three previous
                          occasions coerced statements from murder
                          suspects?

Appellant’s brief at 2.1

      Appellant first challenges the weight of the evidence.                   Specifically,

appellant argues he should be awarded a new trial because the evidence

establishing        his    identity   was   vague,   conflicting,   contradictory,     and



1
  Additional issues contained in his Rule 1925(b) statement have not been
presented by appellant to our court in his brief; hence, we deem them to
have been abandoned.


                                            - 12 -
J. A11012/15


impeached. (Appellant’s brief at 12.) The Commonwealth asserts that the

record reveals appellant has failed to raise this claim before the trial court

pursuant to Pa.R.Crim.P. 607.       We disagree.      A review of appellant’s

post-trial motion reveals that the second issue therein challenges the weight

of the evidence. (Docket #12.)

             Appellate review of a weight claim is a review of the
             exercise of discretion, not of the underlying question
             of whether the verdict is against the weight of the
             evidence. Because the trial judge has had the
             opportunity to hear and see the evidence presented,
             an appellate court will give the gravest consideration
             to the findings and reasons advanced by the trial
             judge when reviewing a trial court’s determination
             that the verdict is against the weight of the
             evidence. One of the least assailable reasons for
             granting or denying a new trial is the lower court’s
             conviction that the verdict was or was not against
             the weight of the evidence and that a new trial
             should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

      Appellant avers that he is 6’3” tall; he argues that because

eyewitnesses described a shorter person and the video surveillance depicted

a shorter person, it was physically impossible for him to have been the

individual in the store with Turner.    Appellant, however, ignores his own

confession    and   other   identification    testimony   introduced    by   the

Commonwealth.

      Appellant presented this argument to the jury, and the Commonwealth

addressed the apparent discrepancies as to appellant’s height.         (Notes of


                                     - 13 -
J. A11012/15


testimony, 5/31/13 at 63-73.) The trial court provided an instruction to the

jury regarding how to evaluate identification testimony. (Id. at 127-129.)

Here, the jury obviously accepted the version of the facts presented by the

Commonwealth’s witnesses.         For instance, Brewington testified that his

statement to the police regarding appellant’s height of approximately 5’7” or

5’8” was a “guesstimate”; Brewington also testified that his identification of

appellant did not waver upon knowing appellant was 6’3”.              (Notes of

testimony, 5/28/13 at 243-245.) Certainly, the jury’s verdict does not shock

one’s sense of justice. The trial court did not abuse its discretion in denying

appellant’s motion for a new trial based on the weight of the evidence.

       Next, appellant claims that the trial court abused its discretion in

refusing to strike the testimony of Paul Brewington, who failed to identify

appellant at the line-up but identified him at trial. (Appellant’s brief at 14.)

On cross-examination, Brewington testified he was able to identify appellant

after watching a YouTube video that contained footage of the robbery that

jogged his memory. Appellant argues that Brewington’s testimony violated

the “best evidence rule” because the video Brewington watched was not

admitted into evidence.

       Our standard of review is well settled. Questions of the admission and

exclusion of evidence are within the sound discretion of the trial court and

will   not   be   reversed   on   appeal   absent   an   abuse   of   discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.Super. 2003). The best



                                     - 14 -
J. A11012/15


evidence rule is embodied in Pa.R.E. 1002, which provides:                 “An original

writing, recording, or photograph is required in order to prove its content

unless these rules, other rules prescribed by the Supreme Court, or a statute

provides otherwise.”

      In   the   present      case,   the     rule   was   inapplicable   because   the

Commonwealth never attempted to establish the contents of the videotape,

and Brewington did not testify as to the contents of the video.                Rather,

Brewington’s identification was based on his direct observation of appellant

during the robbery.     Compare Commonwealth v. Lewis, 623 A.2d 355

(Pa.Super. 1993) (under best evidence rule, police officer who did not view

crime of retail theft was prohibited from testifying about what he observed

on the videotape of incident since that tape was best evidence of what

transpired), with Commonwealth v. Steward, 762 A.2d 721, 723

(Pa.Super. 2000) (best evidence rule was inapplicable where “witness

observed the theft himself and did not rely on the videotape” in describing

the incident).

      Here, Brewington personally observed and testified about appellant’s

actions, and the best evidence rule was not offended.              “An opportunity to

observe, even for a limited moment, can form an independent basis for an

in-court identification[.]”     Commonwealth v. Baker, 614 A.2d 663, 669

(Pa. 1992). Thus, although Brewington saw appellant for a brief moment,

he had sufficient time to view appellant during the commission of the crime.



                                            - 15 -
J. A11012/15


The video merely jogged his memory of the events he had witnessed, and he

was able to identify appellant at trial.

      Furthermore, we agree with the Commonwealth that appellant could

not have been prejudiced by any such error. The Commonwealth has the

burden of establishing that an error is harmless beyond a reasonable doubt.

Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). “[A]n error cannot be

held harmless unless the appellate court determines that the error could not

have contributed to the verdict.” Id. at 164. An error is harmless where:

            (1) the error did not prejudice the [appellant] or the
            prejudice was de minimis; or (2) the erroneously
            admitted evidence was merely cumulative of other,
            untainted evidence which was substantially similar to
            the erroneously admitted evidence; or (3) the
            properly admitted and uncontradicted evidence of
            guilt was so overwhelming and the prejudicial effect
            of the error was so insignificant by comparison that
            the error could not have contributed to the verdict.

Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992) (citations omitted).

      In the case sub judice, we find any such error would have been

de minimis.        Defense    counsel      aggressively   attacked   Brewington’s

identification testimony, and the court instructed the jurors to view it with

caution.   The overwhelming evidence against appellant included his own

confession, the testimony of two other eyewitnesses, and the surveillance

video that captured the robbery.      We cannot find that the outcome would

have changed if Brewington’s testimony had been stricken.




                                      - 16 -
J. A11012/15


      The third issue presented is whether the trial court abused its

discretion by allowing two people who knew him to identify him as one of the

robbers in the surveillance video.        We find no error with the trial court’s

holding. After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to the questions raised on appeal. The

trial court’s opinion, filed on May 30, 2014, comprehensively discusses and

properly disposes of the question presented, and we affirm on that basis.

(See trial court opinion, 5/31/14 at 16-18.)

      In    his   final   claim,   appellant   asserts   that   Detective   Pitts   and

Detective Jenkins, the detectives who secured the alleged confession from

appellant, had on three previous occasions coerced statements from murder

suspects.    Appellant seeks a remand to the trial court for a hearing on

alleged after-discovered evidence under Pennsylvania Rule of Criminal

Procedure 702(C), which we assume reflects a transposition of digits, and

that appellant, in fact, intended to cite Rule 720(C).

      Rule 720(C) provides that “[a] post-sentence motion for a new trial on

the ground of after-discovered evidence must be filed in writing promptly

after such discovery.” (Emphasis added.) We have held that such a claim

may be raised for the first time on direct appeal.              Commonwealth v.

Rivera, 939 A.2d 355, 358 (Pa.Super. 2007). We conclude, however, that

appellant’s proffer is insufficient to warrant a remand.



                                         - 17 -
J. A11012/15


             The four-prong test for awarding a new trial because
             of after-discovered evidence is well settled. The
             evidence: (1) could not have been obtained prior to
             trial by exercising reasonable diligence; (2) is not
             merely corroborative or cumulative; (3) will not be
             used solely to impeach a witness’s credibility; and
             (4) would likely result in a different verdict.

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).

      Appellant’s   assertions   are   insufficient   to   meet   the   benchmarks

necessary to warrant a new trial based upon after-discovered evidence.

Appellant neglects to explain when he obtained the information alleged or

how he could not have obtained the evidence prior to trial by exercising due

diligence.   Appellant does not explain any time-frame regarding when

Nafis Pinkey, Amin Speaks, or Unique Drayton’s cases were decided. Thus,

we cannot find that appellant has complied with the prompt filing

requirement.    C.f. Commonwealth v. Trinidad, 90 A.3d 721 (Pa.Super.

2014) (defendant’s post-sentence motion based on alleged newly discovered

evidence was filed promptly after discovery of the evidence where defendant

filed post-sentence motion within seven days of receiving an affidavit from a

witness stating that he was a witness to the crime and had exculpatory

evidence to offer on behalf of defendant).




                                       - 18 -
J. A11012/15


     Judgment of sentence affirmed.

     Judge Wecht joins the Memorandum.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn,Esq.
Prothonotary

Date: 9/28/2015




                                  - 19 -
