J. A16033/17


                              2018 PA Super 24

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
CHRISTOPHER SCOTT PATTERSON,             :         No. 1390 WDA 2016
                                         :
                        Appellant        :


          Appeal from the Judgment of Sentence, August 12, 2016,
           in the Court of Common Pleas of Westmoreland County
              Criminal Division at No. CP-65-CR-0002188-2015


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


OPINION BY FORD ELLIOTT, P.J.E.:                  FILED FEBRUARY 8, 2018

      Appellant, Christopher Scott Patterson, appeals from the August 12,

2016 judgment of sentence following his conviction of third-degree murder.

After careful review, we affirm.

      The trial court provided the following factual and procedural history:

            The charges in this case arose from the shooting
            death of Kevin Croney, the owner and operator of
            True Image Tattoo, on March 13, 2015, in the
            parking lot of the tattoo shop in New Kensington,
            Westmoreland County. The evidence presented at
            trial established that on March 13, 2015, at
            approximately 3:00 p.m., [appellant] went to the
            True Image Tattoo shop for the purpose of getting a
            laser tattoo removal treatment, as part of a series of
            treatments Mr. Croney had been providing. After
            entering the shop, [appellant] and Mr. Croney went
            upstairs to Mr. Croney’s office and when they
            returned back downstairs, they appeared to be

* Retired Senior Judge assigned to the Superior Court.
J. A16033/17


          engaged in an argument regarding money. In order
          to avoid disrupting the customers within the tattoo
          shop, both Mr. Croney and [appellant] walked
          through the back office door and out into a parking
          area situate immediately behind the building.

          [Appellant] testified that at this time, Mr. Croney
          was     getting   perturbed   because   he   wanted
          [appellant] to start paying for the laser tattoo
          removal treatments, and [appellant] was getting
          perturbed because he did not feel like he owed
          Mr. Croney any money based upon a prior
          agreement that they had made. [Appellant] then
          testified that he informed Mr. Croney that he would
          go elsewhere to finish his treatment, and he turned
          to go to his vehicle which was parked nearby in the
          parking lot approximately six feet away.         As
          [appellant] was walking towards his car, he claims
          that he was hit in the back of the head by
          Mr. Croney, and an altercation ensued.

          Mark Patrick, an employee of True Image Tattoo,
          testified that after he overheard Mr. Croney and
          [appellant] arguing, he went outside to make sure
          everything was okay. When he walked outside, he
          observed [appellant] pinning Mr. Croney up against
          the door and punching him in the face. Mr. Patrick
          attempted to defuse the situation by shoving
          [appellant] away from Mr. Croney. At this time,
          Mr. Patrick testified that the fighting could have
          stopped right there—it was broken up—Mr. Croney
          wasn’t advancing. However, despite Mr. Patrick’s
          efforts to separate Mr. Croney and [appellant],
          Mr. Patrick testified that after shoving [appellant]
          away, [appellant] began running in his direction in
          yet another attempt to get to Mr. Croney who was
          standing behind him. Mr. Patrick testified that in
          that moment he got spun around and looked up just
          in time to see [appellant] shoot Mr. Croney.

          [Appellant] testified that he shot Mr. Croney in
          self[-]defense after he observed Mr. Croney holding
          his pistol in his hand. Mr. Patrick testified that at no
          time did he see Mr. Croney pull out his gun and point


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          it at [appellant]. During the investigation, a black
          Glock 9mm pistol, later identified as belonging to
          Mr. Croney and a Smith and Wesson .38 special
          revolver belonging to [appellant] were recovered
          from the scene.

          On or about March 16, 2015, [appellant] was
          arrested and initially charged with Criminal
          Homicide.     After the preliminary hearing, the
          Criminal Homicide charge was held for court, but was
          later amended to Murder of the First Degree. The
          charge of Murder of the Third Degree was also added
          by Criminal Information. [Appellant] was charged as
          follows:

          1.    Count One: Murder of the First Degree,
                in violation of 18 Pa.C.S.A. § 2502(a).

          2.    Count Two: Murder of the Third Degree,
                in violation of 18 Pa.C.S.A. § 2502(c).

          On March 14, 2016, [appellant] proceeded to a jury
          trial before [the trial court]. During trial, [appellant]
          was represented by Attorney Patrick Thomassey.
          During the trial, the Commonwealth requested that
          the jury be given an opportunity to view the scene of
          the alleged crime. On the first day of the trial, the
          jury, counsel for the parties, [appellant], and Sheriff
          Deputies, drove to the scene of the alleged crime for
          a view of the scene. To ensure safety of all involved,
          the security of [appellant] and court personnel,
          [appellant] was handcuffed and shackled at all times
          while transported to the view and while on the scene
          of the view in the presence of the jury.

          On March 18, 2016, the jury returned a verdict of
          guilty of Murder of the Third Degree, and sentencing
          was deferred pending a Pre-Sentence Investigation.
          On July 18, 2016, [appellant] was sentenced to
          sixteen (16) to thirty-two (32) years[’] incarceration
          at the Department of Corrections and ordered to pay
          restitution in the amount of $14,050.00 to
          Mr. Croney’s family.



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           On July 26, 2016, Attorney Thomas Will formally
           entered his appearance on behalf of [appellant]. On
           the same day, [appellant] timely filed post-sentence
           motions. A hearing on the post-sentence motions
           was held on September 1, 2016, at which time, all
           post-sentence    motions    were     denied.      On
           September 14, 2016, [appellant] filed a timely
           Notice of Appeal to the Pennsylvania Superior Court.
           On September 16, 2016, [the trial court] ordered
           [appellant] to file a Concise Statement of Errors
           Complained of on Appeal within twenty-one (21)
           days. On October 5, 2016, [appellant] filed said
           statement and raised eleven issues.

Trial court opinion, 11/1/16 at 1-4 (citations to record omitted).    The trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 1, 2016.

     Appellant raises the following issues for our review:

           I.     Whether the Trial Court erred and denied
                  [a]ppellant’s U.S. Constitutional rights under
                  the Fifth, Sixth, and Fourteenth Amendments
                  when it permitted the jury to view [appellant]
                  shackled and restrained while on view at the
                  scene of the incident?

           II.    Whether the Trial Court erred when it directly
                  informed the jury that [appellant] was
                  incarcerated and not afforded bail as a result of
                  the incident in question?

           III.   Whether the Trial Court erred when it
                  permitted the Commonwealth to begin its case
                  at the scene of the incident without any prior
                  testimony or other presented evidence?

           IV.    Whether the Trial Court erred when it denied
                  [a]ppellant’s Motions for Acquittal?

           V.     Whether the evidence presented was sufficient
                  to convict [appellant] of homicide in the third
                  degree?



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            VI.    Whether      the    Commonwealth   presented
                   sufficient evidence to prove that [appellant]
                   did not act in self-defense?

            VII.   Whether the Trial Court erred when it denied
                   [appellant’s]   Post    Sentence   Motion   of
                   Acquittal/Arrest of Judgement and Modification
                   to a Conviction of Voluntary Manslaughter?

            VIII. Whether the Trial Court erred when it denied
                  [appellant’s]   Post   Sentence Motion   for
                  Modification of Sentence?

            IX.    Whether the Trial Court erred when it Denied
                   [appellant’s] Post Sentence Motion for New
                   Trial?

            X.     Whether the Trial Court Erred when it
                   permitted the Commonwealth to present
                   evidence of telephone recordings within the
                   Westmoreland County Correctional Facility?

            XI.    Whether the Trial Court erred when it did not
                   allow the jury to review transcripts of
                   [appellant’s] testimony during deliberation?

Appellant’s brief at 5.

                                      I.

      In his first issue for our review, appellant avers that the trial court

erred by permitting the jury to view appellant in shackles during the view of

the crime scene at the beginning of the trial.   Specifically, appellant avers

that the trial court failed to consider any alternative measures to restrain

and/or “immediately subdue” appellant following an “adverse incident,” thus

abusing its discretion. (See id. at 31.) We disagree.

            It is well settled under common law and the
            Constitution that, part and parcel of the concept of a


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            fair trial, is a defendant’s right to be permitted to
            appear free from shackles or other physical
            restraint—this right, however, is not absolute.
            Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa.
            1992). Circumstances that have justified the use of
            restraint include where a defendant disrupts the
            proceedings, when there is danger of an escape, and
            where the court believes that an unrestrained
            defendant may attack others. Id. Proper security
            measures are within the sound discretion of the trial
            court, and, thus, will not be disturbed absent an
            abuse of that discretion.        Commonwealth v.
            Patterson, 308 A.2d 90 (Pa. 1973).

In re F.C. III, 2 A.3d 1201, 1222 (Pa. 2010). Our cases have defined an

abuse of discretion as, “. . . not merely an error of judgment but involves

misapplication or overriding the law or the exercise of a manifestly

unreasonable judgment passed upon partiality, prejudice or ill will.”

Commonwealth v. L.P., 137 A.3d 629, 635 (Pa.Super. 2016), quoting

Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa.Super. 2010) (citations

omitted).

      Appellant cites a litany of cases from the Supreme Court of the United

States discussing the appearance of a criminal defendant during trial and the

prejudicial effect that a defendant’s appearance may have on a jury.      See

Estelle v. Williams, 425 U.S. 501, 512 (1976) (holding that a defendant

cannot be compelled to “stand trial before a jury while dressed in identifiable

prison clothes”); Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating that

shackling and gagging a defendant is “something of an affront to the []

dignity and decorum of the judicial proceedings,” and the use of shackles



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could “have a significant effect on the jury’s feelings about the defendant”);

Holbrook v. Flynn, 475 U.S. 560, 571 (1986) (finding that four uniformed

and armed police officers sitting in the front row of the gallery directly

behind the defendant did not deny the defendant a fair trial); Deck v.

Missouri, 544 U.S. 622, 627 (2005) (gathering cases stating that “trial

courts may not shackle defendants routinely, but only if there is a particular

reason to do so”).

      These cases miss the mark.         While all these cases address the

appearance of a criminal defendant in the presence of the jury, they also all

address the defendant’s appearance within a courtroom setting and do not

address the logistical concerns that accompany a view of the crime scene.

Whether it is within the sound discretion of the trial court to require a

criminal defendant to appear at a view of the crime scene while shackled is

an issue of first impression in Pennsylvania.

      Several other jurisdictions, however, have addressed the shackling of

a criminal defendant during a view of the crime scene. The Supreme Court

of California1 held that the trial court did not abuse its discretion when it

ordered the defendants to be shackled during a view of the crime scene

because the trial court determined that “the danger of flight or escape was



1
  It has been longstanding law in California that a defendant must be
permitted to attend a jury view of the crime scene. People v. Bush, 10 P.
169, 175 (Cal. 1886), cited by People v. Garcia, 115 P.3d 1191, 1203 (Cal.
2005).


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greater outside the courtroom,” even if a defendant did not have a history of

violence. People v. Hardy, 825 P.2d 781, 837 (Cal. 1992), cert. denied,

506 U.S. 987 (1992). See also People v. Roberts, 826 P.2d 274, 291-292

(Cal. 1992), cert. denied, 506 U.S. 964 (1992), citing People v. Mallory,

365 N.W.2d 673, 683 (Mich. 1984) (agreeing with the Supreme Court of

Michigan’s2 holding that a court may “exercise discretion to require the

restraining of a defendant at a jury view outside the courtroom ‘on the basis

of . . . other manifest circumstances.’”).

      In State v. Hightower, 661 A.2d 948, 957 (R.I. 1995), the Supreme

Court of Rhode Island3 ordered that if the defendant were to attend a

viewing of the crime scene, he would have to be shackled at the discretion of

the marshals responsible for security outside the courtroom.      The court

found that there was no abuse of discretion when the trial judge acted solely

on the advice of marshals or deputy sheriffs in order to determine “what is

necessary for the security of the participants in a trial whether in a



2
  In Michigan, a criminal defendant charged with a felony is required to be
“personally present during the trial.” Mich. Comp. Laws § 768.3. The
Supreme Court of Michigan has long held that a criminal defendant has the
right to accompany a jury to a view of the crime scene. People v.
Auerbach, 141 N.W. 869, 877 (Mich. 1913).
3
  Unlike California and Michigan, Rhode Island does not recognize the right
of a criminal defendant to be present for a jury view of the crime scene
because the defendant’s “participation at the view would be virtually
nonexistent,” and the view does not constitute a critical stage of the trial.
Hightower, 661 A.2d at 957, citing Snyder v. Massachusetts, 291 U.S.
108 (1934).


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courtroom or outside the courtroom.” Id., citing State v. Byrnes, 433 A.2d

658, 663 (R.I. 1981).

     In Pennsylvania, a criminal defendant has a rules-based right to attend

a jury view of the crime scene.       Pa.R.Crim.P. 643(B).     Based on the

similarities with the rights afforded to criminal defendants during jury views

in California and Michigan, we find that the trial court did not abuse its

discretion when it ordered appellant to be shackled during the jury view of

the crime scene.    We further find that the trial court did not abuse its

discretion when it consulted with the Westmoreland County Sheriff’s Office

regarding logistical concerns surrounding the transportation of appellant to

the view. The trial court stated that the shackling of appellant for the view

was necessary “not only to ensure the safety of [appellant], the jurors, and

anyone else involved who would be present at the scene, but also in light of

the fact that there would be testimony offered outside and [appellant] may

have had the opportunity to flee if he was not restrained.”       (Trial court

opinion, 11/1/16 at 4.)

     The trial court’s reasoning is analogous with the rationale applied by

the Supreme Courts of California and Michigan.         In Hardy, the court

specifically cited greater danger of escape outside the courtroom when it

determined that shackling the defendant for a jury view was not an abuse of

discretion by the lower court.    Hardy, 825 P.2d at 837.       Likewise, the

Mallory court cited escape prevention as one of the only reasons to shackle



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a defendant during trial.    Mallory, 365 N.W.2d at 682, citing People v.

Duplissey, 155 N.W.2d 850, 851 (Mich. 1968).

      Finally, appellant avers that the trial court abused its discretion by

failing to “look into more creative solutions” to diminish the risk of potential

escape by appellant, while simultaneously protecting appellant’s rights.

(Appellant’s brief at 31-32.) Specifically, appellant cited various methods of

alternative    restraint   used   by    other   jurisdictions   throughout   the

Commonwealth. (Id. at 32.) A lack of creativity by the trial court, however,

does not an abuse of discretion make. The trial court did not misapply the

law, nor did it exercise a manifestly unreasonable judgment when it ordered

that appellant be shackled in order to attend the jury view.        Accordingly,

appellant’s first issue is without merit.

                                        II.

      For his second issue, appellant avers that the trial court erred when it

provided a curative instruction to the jury pertaining to appellant’s

incarceration and the necessity of appellant’s being restrained at the view of

the crime scene. Specifically, appellant states that “a cautionary instruction

indicat[ing] that [a]ppellant was incarcerated because of the serious nature

of the crimes charged harmed him in the minds of the jury and stripped him

of a cloak of innocence.” (Appellant’s brief at 32.)

              When reviewing jury instructions, we are governed
              by the following standard:




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               Our standard of review in assessing a
               trial court’s jury instructions is as
               follows:

                    [W]hen       evaluating       the
                    propriety of jury instructions,
                    this Court will look to the
                    instructions as a whole, and
                    not simply isolated portions,
                    to     determine       if     the
                    instructions were improper.
                    We further note that, it is an
                    unquestionable maxim of law
                    in this Commonwealth that a
                    trial   court      has      broad
                    discretion in phrasing its
                    instructions, and may choose
                    its own wording so long as
                    the      law      is      clearly,
                    adequately, and accurately
                    presented to the jury for its
                    consideration.      Only where
                    there     is  an     abuse      of
                    discretion or an inaccurate
                    statement of the law is there
                    reversible error.

               Commonwealth v. Kerrigan, 920 A.2d
               190, 198 (Pa.Super. 2007) (internal
               citations, quotation marks, and brackets
               omitted).

          Commonwealth v. Trippett, 932 A.2d 188, 200
          (Pa.Super. 2007).

               We have explained the abuse               of
               discretion standard as follows:

                    It   is   not  sufficient  to
                    persuade the appellate court
                    that it might have reached a
                    different conclusion[;] it is
                    necessary to show an actual
                    abuse of the discretionary


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                      power.        An    abuse    of
                      discretion will not be found
                      based on a mere error of
                      judgment, but rather exists
                      where the court has reached
                      a conclusion [that] overrides
                      or misapplies the law, or
                      where       the      judgment
                      exercised      is    manifestly
                      unreasonable, or the result of
                      partiality, prejudice, bias or
                      ill-will.

           Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa.
           2013), quoting Commonwealth v. Eichinger, 915
           A.2d 1122, 1140 (Pa. 2007).

Commonwealth v. Roane, 142 A.3d 79, 95-96 (Pa.Super. 2016).

     In the instant appeal, the trial court provided the jury with the

following preliminary curative instruction prior to the view of the crime

scene:

           Now I’m going to tell you at this point in time that
           [appellant] is in custody. He is presently being held
           in the Westmoreland County Prison. Homicide of the
           kind that he is charged with is a nonbailable or
           nonbondable offense in the Commonwealth of
           Pennsylvania. So there is no way in which he could
           be out of the custody of the Westmoreland County
           Prison or while here in court in the custody of the
           Westmoreland County Sheriff’s Department, and he
           remains in that custody throughout the trial.

           It is necessary that [appellant] be present at all
           proceedings, including the view of the scene. And
           during the view of the scene, [appellant] will be in
           the custody of the Westmoreland County Sheriff’s
           Department.     He will also be in what we call
           restraints. He will have shackles and handcuffs on.




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            I’m instructing you at this time that you are not to
            draw any adverse or negative inference from the fact
            that [appellant] is in the custody of the
            Westmoreland County Sheriff, or that he is generally
            being held in custody awaiting the disposition of
            these charges.     These are not matters for your
            consideration.   They are not to bear upon your
            decision in any way in this matter.        And I’m
            instructing that you are not to hold it against
            [appellant] that he will be in the custody of the
            Sheriff and in shackles and handcuffs, things which
            are beyond his control. [Appellant] is in custody
            simply because that is what is required by the laws
            of the Commonwealth of Pennsylvania, and I’m
            instructing you that you’re to make no adverse
            inference as a result of that.

Notes of testimony, 3/15/16 at 297-299.

            “The law presumes that the jury will follow the
            instructions of the court.”        Commonwealth v.
            Spotz, 896 A.2d 1191, 1224 (Pa. 2006) (citation
            omitted); see also Commonwealth v. O’Hannon,
            732 A.2d 1193, 1196 (Pa. 1999) (“Absent evidence
            to the contrary, the jury is presumed to have
            followed the trial court’s instructions.”).

Commonwealth v. Chmiel, 30 A.3d 1111, 1185 (Pa. 2011). Upon careful

review of the trial court’s instructions to the jury pertaining to the use of

shackles and handcuffs on appellant during the view of the crime scene, we

do not find any evidence that the trial court abused its discretion. Moreover,

appellant failed to demonstrate that he was prejudiced by the trial court’s

jury instructions, nor has he produced any evidence that the jury failed to

follow the trial court’s instructions.   See Commonwealth v. Cash, 137

A.3d 1262, 1272 (Pa. 2016), cert. denied, 137 S.Ct. 1202 (2017) (stating

that a defendant cannot demonstrate prejudice as a jury is presumed to


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follow the trial court’s instructions); Commonwealth v. Stokes, 839 A.2d

226, 230 (Pa. 2003), citing Commonwealth v. Baez, 720 A.2d 711, 729

(Pa. 1998), cert. denied, 528 U.S. 827 (1999).

     Accordingly, appellant’s second issue is without merit.

                                       III.

     In his third issue for our review, appellant states that the trial court

erred in permitting the view of the crime scene to take place before any

prior presentation and admission of evidence.        In presenting his issue,

appellant   relies   solely   upon   the   Supreme   Court   of   Pennsylvania’s

1949 decision in Commonwealth v. Darcy, 66 A.2d 663 (Pa. 1949), cert.

denied, 338 U.S. 862 (1949). The Darcy court, relying upon the Supreme

Court of the United States’ decision in Snyder v. Massachusetts, 291 U.S.

97 (1934), stated that:

            it was not error to point out any part or parts [of the
            crime scene.] The significance of what the jury saw
            depended entirely on the sworn testimony which
            they heard in court. For the trial judge to have
            permitted any testimony to be received, or any
            discussion to be indulged in, or any argument to be
            made during the view, would have been improper.

Darcy, 66 A.2d at 667 (emphasis in original).

     The Darcy court further stated the following:

            It may be logically argued that viewing the scene of
            the crime is not a part of the trial. A trial implies a
            contest of opposing parties in the presence of the
            judge. There is no contest between the parties when
            a viewing takes place. The trial judge may or may
            not be present, as he chooses. Yet there cannot be a


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           judicial trial without a trial judge. The attorneys for
           the respective parties are usually present but they
           take no active part. Neither can offer or object to,
           any evidence, or ask any questions. They must
           remain passive and mute. The prisoner, if present,
           must do likewise. The situation is analogous to an
           agreed-to temporary cessation of hostilities between
           opposing armies on a battlefield. During the
           cessation the soldiers of the opposing armies make
           no hostile move. A flag of truce is in the ascendant
           and is respected. In one sense the period of
           cessation of conflict may be considered a part of the
           battle; in another and stricter sense of the word it is
           not a part of the battle; the battle is temporarily
           suspended. So in viewing the scene of a crime by the
           jury the trial is temporarily suspended, for there is
           no clashing of opposing parties or opposing counsel
           and no offer of evidence or asking of questions.

Id. at 667-668 (footnote omitted).

     As referenced above, jury views are governed by Pennsylvania Rule of

Criminal Procedure 643, which requires the trial judge, the attorney for the

Commonwealth, the defendant, and the defendant’s counsel to be present

for the view.   Pa.R.Crim.P. 643(B).      The adoption of Rule 643 by our

supreme court in 1968 supersedes the analysis of the Darcy court. Indeed,

the Darcy court contemplated a jury view in which there were no

requirements for the trial judge or the defendant to be present at the view.

     We therefore find that the trial was not suspended during the jury

view, as suggested by the Darcy court, and accordingly, the trial court did

not err by accepting testimony during the view.     Appellant’s third issue is

therefore without merit.




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                                       IV.

      In his brief, appellant states that issues four through six “address the

sufficiency of the evidence presented against [appellant.]” The Pennsylvania

Rules of Appellate Procedure require an argument to “be divided into as

many parts as there are questions to be argued; . . . followed by such

discussion   and   citation   of   authorities   as   are   deemed   pertinent.”

Pa.R.A.P. 2119(a). Any claim for which an appellant fails to include “citation

to relevant authority or fails to develop the issue in any other meaningful

fashion capable of review” is waived.        Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009), cert. denied, 562 U.S. 906 (2010).

      Here, appellant does not include any discussion pertaining specifically

to his motions for acquittal. Therefore, appellant’s fourth issue is waived.

                                       V.

      In his fifth issue presented for our review, appellant avers that the

Commonwealth failed to present sufficient evidence to warrant a conviction

of third-degree murder. We disagree.

             In reviewing the sufficiency of the evidence, we view
             all evidence admitted at trial in the light most
             favorable to the Commonwealth, as verdict winner,
             to see whether there is sufficient evidence to enable
             [the fact finder] to find every element of the crime
             beyond a reasonable doubt. This standard is equally
             applicable to cases where the evidence is
             circumstantial rather than direct so long as the
             combination of the evidence links the accused to the
             crime beyond a reasonable doubt.          Although a
             conviction must be based on “more than mere



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            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

            Moreover, when reviewing the sufficiency of the
            evidence, this Court may not substitute its judgment
            for that of the fact finder; if the record contains
            support for the convictions, they may not be
            disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the finder of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      The credibility and weight of the evidence are both matters that are in

the sole purview of the jury.   Specifically, when considering whether the

evidence was sufficient to prove each element of each charge beyond a

reasonable doubt, we cannot assume the task of weighing evidence and

making independent conclusions of fact.     Commonwealth v. Lewis, 911

A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding

[an appellant’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.” Id.




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     In the instant appeal, after reviewing the evidence presented cast in

the light most favorable to the Commonwealth, as verdict winner, we find

that the evidence is sufficient to warrant the jury’s conviction for

third-degree murder.

           Our Crimes Code defines third-degree murder as
           follows:

                 [T]hird-degree murder is a killing done
                 with legal malice but without the specific
                 intent to kill required in first-degree
                 murder. Malice consists of a wickedness
                 of disposition, hardness of heart, cruelty,
                 recklessness of consequences, and a
                 mind regardless of social duty. Malice
                 exists where the principal acts in gross
                 deviation    from     the   standard     of
                 reasonable care, failing to perceive that
                 such actions might create a substantial
                 and unjustifiable risk of death or serious
                 bodily injury.

           Commonwealth v. Kellam, 719 A.2d 792, 797
           (Pa.Super. 1998) (citations and quotation marks
           omitted). Section 2301 of the Crimes Code defines
           “serious bodily injury” as “[b]odily injury which
           creates a substantial risk of death or which causes
           serious, permanent disfigurement, or protracted loss
           or impairment of the function of any bodily member
           or organ.” 18 Pa.C.S. § 2301.

Commonwealth v. Kendricks, 30 A.3d 499, 509 (Pa.Super. 2011),

appeal denied, 46 A.3d 716 (Pa. 2012).

     We agree with the trial court’s determination that, “[t]he evidence at

trial demonstrated that [appellant] intentionally pointed a deadly weapon,

namely[,] a Smith and Wesson .38 special revolver[,] at Mr. Croney and



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fired striking Mr. Croney in the head.” (Trial court opinion, 11/1/16 at 8.)

We further find that the evidence demonstrating that appellant shot

Mr. Croney in the head from a distance of several inches satisfies the malice

requirement to warrant a conviction for third-degree murder. (See notes of

testimony, 3/16/16 at 432.)       Accordingly, appellant’s fifth issue is without

merit.

                                          VI.

      In his sixth issue on appeal, appellant avers that the Commonwealth

failed to present sufficient evidence to prove that he did not act in

self-defense.

      When      a   defendant   claims    self-defense,   the   burden   is   on   the

Commonwealth to disprove the defendant’s claim beyond a reasonable

doubt.   Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012)

(citations omitted).      In order for a defendant to successfully claim

self-defense, he or she must meet the following three elements:               (1) the

defendant reasonably believed that he was in imminent danger of death or

serious bodily injury and that the use of deadly force was necessary to

prevent such harm; (2) the defendant did not provoke the incident which

resulted in the victim’s death; and (3) the defendant did not violate any duty

to retreat.     Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012)

(citations omitted). As previously noted, the Commonwealth has the burden

of disproving self-defense beyond a reasonable doubt and may do so by



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J. A16033/17


disproving any one of the three self-defense elements the defendant must

meet. Id. at 740-741.

      Here, we only need to address the second factor as discussed in

Mouzon:     whether appellant was at fault in provoking the incident that

resulted in the victim’s death. We find that the Commonwealth has proven

beyond a reasonable doubt that appellant was the aggressor in this case,

and therefore his self-defense claim must fail. As noted above, Mark Patrick

testified that he attempted to separate appellant and Mr. Croney by shoving

appellant away from Mr. Croney.       (Notes of testimony, 3/16/16 at 429.)

Mr. Patrick further testified that after he shoved appellant away from

Mr. Croney, the fighting had stopped; however, appellant, after being

shoved away, began running toward Mr. Croney, shoving Mr. Patrick aside.

(Id. at 430, 432.)    Mr. Patrick testified that he then saw appellant shoot

Mr. Croney at point-blank range.      (Id. at 432.)    Finally, Mr. Patrick also

testified that he did not see Mr. Croney aim his weapon at appellant. (Id. at

433-434.)

      For these reasons, we find that the Commonwealth has met its burden

of disproving appellant’s self-defense claim beyond a reasonable doubt and

that the evidence fully supports the jury’s guilty verdict.

                                      VII.

      In his seventh issue on appeal, appellant avers that the evidence

presented only warranted a conviction of voluntary manslaughter.         Having



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already determined that appellant waived his issues pertaining to the

sufficiency of the evidence of his third-degree murder conviction, we need

not consider appellant’s seventh issue, as the issue is moot.            See

Commonwealth v. Nava, 966 A.2d 630, 632-633 (Pa.Super. 2009),

quoting In re T.J., 699 A.2d 1311, 1313 (Pa.Super. 1997) (“A case is ‘moot’

when a determination is sought on a matter which, when rendered, cannot

have any practical effect on the existing controversy”).

      Here, given that the challenge of the sufficiency of the evidence to

support appellant’s conviction for third-degree murder has been waived, any

determination on whether appellant should have been alternatively convicted

of voluntary manslaughter cannot have any practical effect.

                                      VIII.

      In his eighth issue for our review, appellant requests that we review

his sentence imposed by the trial court.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.



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            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly   preserved    at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      The record indicates that appellant timely filed a notice of appeal and

that the issue was properly preserved in a motion to reconsider and modify

sentence.

      Appellant failed to include a Rule 2119(f) statement in his brief, and

the Commonwealth has likewise failed to object to the lack of a Rule 2119(f)


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J. A16033/17


statement. Since the requirement of such a statement is procedural and not

jurisdictional, “the Commonwealth’s failure to object to or otherwise assert

the defect in the form of Appellant’s brief has resulted in a waiver of the

defect.”    Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super. 2003)

(citations omitted); see also Commonwealth v. Brougher, 978 A.2d 373,

375 (Pa.Super. 2009) (failure of the appellant to comply with Rule 2119(f),

where the Commonwealth does not object to statement’s absence, does not

compel waiver).        Therefore, we must determine whether there is a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court. Whether an issue raises a substantial

question     is   a    determination     made      on     a    case-by-case     basis.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (citation

omitted).

      A substantial question is raised when an appellant “advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”    Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(citation omitted).

      In    the   instant   appeal,   appellant   fails   to   meet   either   of   the

requirements for a substantial question.           Specifically, appellant fails to

articulate how the trial judge’s sentence is inconsistent with any aspect of



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J. A16033/17


the Sentencing Code. As we stated in Commonwealth v. Disalvo, 70 A.3d

900 (Pa.Super. 2013),

            “this [c]ourt has held on numerous occasions that a
            claim of inadequate consideration of mitigating
            factors does not raise a substantial question for our
            review.” See also Commonwealth v. Kraft, 737
            A.2d 755, 757 (Pa.Super. 1999), appeal denied,
            747 A.2d 366 (Pa. 1999) (determining appellant’s
            claim that sentence of incarceration for DUS violation
            was excessive because sentencing court failed to
            adequately consider certain mitigating factors did not
            raise substantial question).

Id. at 903, quoting Commonwealth v. Downing, 990 A.2d 788, 794

(Pa.Super. 2010) (citations omitted)

      Here, appellant avers that the trial court failed to fully consider

mitigating factors such as appellant’s age, prior record score, lack of violent

tendencies prior to the shooting, and appellant’s belief that his life was in

danger.   Moreover, in its Rule 1925(a) opinion, the trial court explicitly

stated that it took into account the pre-sentence investigation, as well as

appellant’s mitigating factors when deciding his sentence. (See trial court

opinion, 11/1/16 at 10-11.) As our cases clearly indicate, this does not rise

to the level of a substantial question, and we thus cannot consider

appellant’s eighth issue on its merits.

                                       IX.

      In his ninth issue on appeal, appellant avers that the first eight issues

raised, when viewed in the aggregate, “create an accumulation of prejudices




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that necessitate a new trial.” (Appellant’s brief at 42.) We have repeatedly

held that:

             an appellant cannot bootstrap a series of meritless
             claims into a cumulative claim of error.       See
             Commonwealth v. Rolan, 964 A.2d 398, 411
             (Pa.Super. 2008) (“No number of failed claims may
             collectively attain merit if they could not do so
             individually.”)    (quoting   Commonwealth       v.
             Williams, 615 A.2d 716, 722 (Pa. 1992)) (emphasis
             in original).

Commonwealth v. Kearney, 92 A.3d 51, 62 (Pa.Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2014).        Accordingly, appellant’s ninth issue is

without merit.

                                       X.

      For his tenth issue raised for our review, appellant avers that the trial

court erred by permitting “the use of prison telephone conversations during

the   cross-examination    of   [appellant.]”     (Appellant’s   brief   at   42.)

Additionally, appellant alleges that the trial court erred because it stated that

a court order was not necessary to obtain the recordings.          This claim is

without merit.

             We have explained:

                  [Our] standard of review for a trial
                  court’s evidentiary rulings is narrow. The
                  admissibility of evidence is solely within
                  the discretion of the trial court and will
                  be reversed only if the trial court has
                  abused its discretion.       An abuse of
                  discretion is not merely an error of
                  judgment, but is rather the overriding or
                  misapplication of the law, or the exercise


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J. A16033/17


                of   judgment       that    is    manifestly
                unreasonable, or the result of bias,
                prejudice, ill-will or partiality, as shown
                by the evidence of record.

          Commonwealth v. Mendez, 74 A.3d 256, 260
          (Pa.Super. 2013) (internal quotations and citations
          omitted). Moreover, “[t]o constitute reversible error,
          an evidentiary ruling must not only be erroneous,
          but also harmful or prejudicial to the complaining
          party. Commonwealth v. Lopez, 57 A.3d 74, 81
          (Pa.Super. 2012) (internal quotations and citations
          omitted).

          Interpreting the language of Pennsylvania’s Wiretap
          Act is a pure question of law and thus demands a de
          novo standard of review.        Commonwealth v.
          Deck, 954 A.2d 603, 606 (Pa.Super. 2008).

          As our Supreme Court explained, “Pennsylvania’s
          Wiretap Act is generally modeled after the federal
          analogue, 18 U.S.C. §§ 2510-2520. The federal
          legislation authorizes states to adopt coordinate
          statutes permitting the interception of wire, oral, or
          electronic communications and to grant greater, but
          not lesser, protection than that available under
          federal law.” Commonwealth v. Spangler, 570
          Pa. 226, 809 A.2d 234, 237 (2002) (internal citations
          omitted). Further, since Pennsylvania’s Wiretap Act
          “emphasizes the protection of privacy,” “the
          provisions of the Wiretap Act [must be] strictly
          construed.” Id.

          Our interpretation of the Wiretap Act necessarily
          begins with the statutory language.

          The    Wiretap     Act   prohibits   the    intentional
          interception, disclosure, or use of a “wire, electronic
          or oral communication.”       18 Pa.C.S.A. § 5703.
          However, the Wiretap Act contains enumerated
          “exceptions to [the] prohibition of interception and
          disclosure of communications.” In relevant part,
          18 Pa.C.S.A. § 5704 declares:



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J. A16033/17



               It shall not be unlawful and no prior
               court approval shall be required under
               this chapter for:

                 ...

                 (14) An investigative officer, a law
                 enforcement officer or employees of
                 a county correctional facility to
                 intercept, record, monitor or divulge
                 any telephone calls from or to an
                 inmate in a facility under the
                 following conditions:

                   (i) The county correctional
                   facility shall adhere to the
                   following     procedures      and
                   restrictions when intercepting,
                   recording,      monitoring     or
                   divulging any telephone calls
                   from or to an inmate in a county
                   correctional facility as provided
                   for by this paragraph:

                       (A)         Before         the
                       implementation       of   this
                       paragraph, all inmates of
                       the facility shall be notified
                       in writing that, as of the
                       effective    date    of   this
                       paragraph, their telephone
                       conversations      may      be
                       intercepted,        recorded,
                       monitored or divulged.

                       (B)    Unless     otherwise
                       provided    for    in   this
                       paragraph,             after
                       intercepting or recording a
                       telephone     conversation,
                       only the superintendent,
                       warden or a designee of
                       the    superintendent     or


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J. A16033/17


                     warden or other chief
                     administrative official or
                     his or her designee, or law
                     enforcement officers shall
                     have    access    to   that
                     recording.

                     (C) The contents of an
                     intercepted and recorded
                     telephone       conversation
                     shall be divulged only as is
                     necessary to safeguard the
                     orderly operation of the
                     facility, in response to a
                     court order or in the
                     prosecution               or
                     investigation of any crime.

                   (ii) So as to safeguard the
                   attorney-client privilege, the
                   county correctional facility shall
                   not intercept, record, monitor or
                   divulge     any     conversation
                   between an inmate and an
                   attorney.

                   (iii) Persons who are calling into
                   a facility to speak to an inmate
                   shall be notified that the call
                   may be recorded or monitored.

                   (iv) The superintendent, warden
                   or     a   designee       of     the
                   superintendent or warden or
                   other     chief       administrative
                   official    of       the     county
                   correctional      system       shall
                   promulgate       guidelines       to
                   implement the provisions of this
                   paragraph          for       county
                   correctional facilities.

               18 Pa.C.S.A. § 5704.



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J. A16033/17


Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).

      In his severely limited argument, appellant does not allege any

violations of the Pennsylvania Wiretap Act. Indeed, appellant does aver that

the recordings of his telephone conversations were obtained without a court

order.   This argument is wholly without merit.            A plain reading of the

Pennsylvania Wiretap Act explicitly reflects that it shall not be unlawful, and

no court order is required for a county correctional facility to intercept,

record, monitor, and/or divulge most inmate telephone conversations for the

prosecution of any crime. 18 Pa.C.S.A. § 5704(14)(i)(C). We therefore find

that appellant’s tenth issue is without merit.

                                          XI.

      In his final issue for our review, appellant avers that the trial court

erred when it did not permit the jury to review transcripts of appellant’s

testimony during deliberations. As noted by appellant, a jury, “in order to

refresh [its] recollection, [may request] a reading of a portion of the

testimony actually given at the trial[;] it is [then] a matter within the

discretion   of   the   trial   court   whether   to   grant   such   [a]   request.”

Commonwealth v. Peterman, 244 A.2d 723, 726 (Pa. 1968); see also

Commonwealth v. Johnson, 838 A.2d 663, 677 (Pa. 2003), cert. denied,

543 U.S. 1008 (2004).

      Aside from a bald allegation that the estimated hour that was required

to produce a transcript of appellant’s testimony, “which in the [trial] court’s



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eyes was too long in a murder trial deliberation,” appellant fails to allege any

abuse of discretion on the part of the trial court. (See appellant’s brief at

44.) Additionally, the trial court stated it its Rule 1925(a) opinion that it was

concerned having a portion of appellant’s testimony re-read to the jury

would not provide the jury with “the same benefit of observing [appellant] or

his demeanor or the manner in which [appellant] testified.”         (Trial court

opinion, 1/1/16 at 13.)

      We therefore find that the trial court did not abuse its discretion when

it denied the jury’s request to review the transcripts of appellant’s trial

testimony during deliberations.     Accordingly, appellant’s claim is without

merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/8/2018




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