J-A01002-16

                                  2016 PA Super 38

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

RASHEEN J. BROWN

                            Appellant                   No. 3047 EDA 2013


                    Appeal from the Order October 30, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002569-2012


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                          FILED FEBRUARY 17, 2016

        Appellant Rasheen J. Brown appeals the judgment of sentence entered

by the Honorable Glenn B. Bronson of the Court of Common Pleas of

Philadelphia County after a jury convicted Appellant of first-degree murder,

conspiracy to commit murder, possession of a firearm by a prohibited

person, carrying a firearm on a public street or public property in

Philadelphia, and possessing an instrument of crime.1 Appellant alleges that

(1) his convictions are against the weight of the evidence, (2) the trial court

abused its discretion in various evidentiary decisions, (3) the prosecutor

made improper statements in closing argument, (4) the trial court gave an

erroneous jury instruction, and (5) after-discovered evidence entitles him to

a new trial. After careful review, we affirm.
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 903, 6105(a)(1), 6108, and 907, respectively.



*Former Justice specially assigned to the Superior Court.
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      On October 17, 2011, shortly before midnight, Akkier McKinney (“the

victim”) and a man identified by the nickname “Sheed” began to argue on

the sidewalk in front of El Ran’s Bar in the Frankford section of Philadelphia.

The victim accused Sheed of being disrespectful and asked Sheed to step

into the street to fight.   Sheed responded to the victim: “I don’t do this

fighting, I play with guns.” N.T., 6/20/13, at 160.

      Witnesses began to gather outside the bar as the two men continued

their heated exchange.       Four of Sheed’s friends, including Appellant,

Christopher Graham, Alan Jackson, and an unidentified man in a gray hoodie

came out of the bar to help Sheed. After Sheed told Appellant to “get the

.40,” Appellant walked off with Graham and the man in the hoodie. Id. at

21. Sheed and Jackson continued to argue with the victim, who was now

sitting in the driver’s seat of his vehicle.    Shortly thereafter, Appellant

returned to the scene in a silver car, exited the vehicle, and approached the

victim’s vehicle. Looking at Sheed and Appellant, the victim stated “Oh, I

see how you all trying to do.” Id. at 162. Once Sheed yelled “light him the

fuck up,” Appellant fired his weapon at the victim several times. Id.

      William Fowler, the bartender at El Ran’s Bar, who had observed the

altercation and shooting, ran back into the bar for cover. Once the shooting

ceased, Fowler exited the bar and found the victim alive, twitching with

broken glass in his eyes from the shattered driver’s side window of his

vehicle.   Fowler contacted the police, who transported the victim to the

hospital, where he was pronounced dead.        The victim sustained gunshot

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wounds to the head, abdomen, and thigh. Officers retrieved five .40 caliber

Smith & Wesson cartridge casings from the crime scene. Fowler and another

eyewitness, Lalana Brown, gave statements to the police about the shooting.

Fowler was able to identify Appellant, who he knew, as the shooter.

      Police also questioned Graham, who told police he had not witnessed

the shooting but heard gunshots from around the street corner.         Graham

indicated he called Appellant’s cell phone repeatedly, but was unable to

reach him.    However, the morning after the shooting, Graham met with

Appellant and asked what had happened to the victim.         Appellant laughed

and replied, “he’s done, it’s over, finito.”   Id. at 22.   After police showed

Graham still photographs taken from the bar’s surveillance video, Graham

identified Appellant as being present at the shooting.

      Appellant proceeded to a jury trial that commenced on June 18, 2013.

During trial, the Commonwealth called Fowler, Brown, and Graham to

testify, but all three witnesses recanted their accounts of the crime. Brown

and Graham claimed to have been intoxicated when they gave their initial

statements to police and were uncooperative with the prosecutor on direct

examination. Fowler alleged that the police coerced his written statement as

he was not given anything to drink for twelve hours and asserted the officers

punched and slapped him until he identified Appellant as the shooter. The

Commonwealth introduced into evidence Fowler, Brown, and Graham’s initial

accounts of the shooting as prior inconsistent statements.




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      At the conclusion of the trial, on June 26, 2013, a jury convicted

Appellant of the aforementioned offenses. On the same day, the trial court

imposed a mandatory life sentence for Appellant’s first-degree murder

conviction pursuant to 18 Pa.C.S.A. § 1102(a)(1).        On July 1, 2013,

Appellant filed a post-sentence motion through counsel, but subsequently

filed a petition to proceed pro se.   On September 6, 2013, the trial court

held a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713

A.2d 81 (1998), and granted Appellant leave to proceed pro se.          After

Appellant adopted the post-sentence motion previously filed by counsel, the

trial court denied the post-sentence motion on October 16, 2013. Appellant

filed this timely appeal on October 30, 2013.

      Although Appellant had been permitted to proceed pro se, Appellant

reconsidered his request and filed a motion asking to be reappointed

counsel, claiming he had been placed in a Restricted Housing Unit and had

little access to a typewriter, paper, or the materials necessary to represent

himself on appeal. On November 15, 2013, Appellant complied with the trial

court’s request to submit a Concise Statement of Errors Complained of on

Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), with

the caveat that he was never provided access to his trial transcripts and

again asked for counsel to preserve his desired claims for appeal. The trial

court filed its Rule 1925(a) opinion, finding several of Appellant’s claims

waived for lack of specificity.




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     On April 7, 2014, Appellant filed a Petition to Suspend the Filing of

Appellant’s Brief, asserting there had been a breakdown in the judicial

process as the court clerk failed to file the complete record.   On April 22,

2014, Appellant filed an Application for the Appointment of Counsel. On May

5, 2014, this Court entered a per curiam order directing the trial court to

certify and transmit a supplemental record to this Court. As Attorney Jason

Kadish entered his appearance on Appellant’s behalf on April 24, 2014, this

Court denied Appellant’s request for counsel as moot and permitted

Appellant to file an amended 1925(b) statement through counsel.

     Appellant raises six issues for our review on appeal:

     1) Whether the guilty verdicts as to the charges of murder of
        the first degree, conspiracy to commit murder of the first
        degree, possession of a firearm prohibited, carrying a firearm
        on a public street, and possessing an instrument of crime
        were against the weight of the evidence?

     2) Whether     [the]   Commonwealth  impermissibly  elicited
        testimony regarding the Appellant being in custody and
        having a prior record?

     3) Whether Philadelphia Police Detective James Dunlap was, in
        error, allowed to narrate, interpret, identify, and describe the
        events and individuals depicted in the surveillance video
        played to the jury?

        a. Whether the Commonwealth was erroneously permitted to
           play the surveillance video frame-by-frame when it was
           not provided in a frame-by-frame format in discovery and
           defense counsel lacked the ability to view the video frame-
           by-frame prior to its introduction by the Commonwealth at
           trial?




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      4) Whether the prosecutor during her closing statement,
         impermissibly argued the following thereby depriving the
         Appellant of a fair trial?

         a. Fear and intimidation were the reason for the recantations
            of several Commonwealth witnesses during their testimony
            when there existed not one iota of evidence regarding
            witness intimidation or coercion.

         b. The Appellant was “D’Bo’s brother,” and therefore, one
            would expect the Appellant to have a propensity for using
            and/or possessing firearms.

         c. Her belief/opinion that the written statements allegedly
            provided by witnesses William Fowler and Christopher
            Graham to the Philadelphia Police Department were “the
            truth.”

      5) Whether the trial court erred by erroneously instructing the
         jury as to the concept of reasonable doubt?

      6) Whether the instant matter should be remanded to the trial
         court for a hearing on after-discovered evidence.

Appellant’s Brief, at 6-7.

      Appellant first challenges the weight of the evidence supporting each

of his convictions. Our standard of review in evaluating a challenge to the

weight of the evidence is well-established:

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
      319, 744 A.2d 745, 751–52 (2000); Commonwealth v.
      Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new
      trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
      744 A.2d at 752. Rather, “the role of the trial judge is to
      determine that ‘notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’” Id. at 320,


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     744 A.2d at 752 (citation omitted). It has often been stated that
     “a new trial should be awarded when the jury's verdict is so
     contrary to the evidence as to shock one's sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

           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.          Brown, 648 A.2d at
           1189.     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. Commonwealth v. Farquharson, 467
           Pa. 50, 354 A.2d 545 (Pa. 1976). 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.

     Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
     added).

Commonwealth v. Clay, 619 Pa. 423, 431-32, 64 A.3d 1049, 1054-55

(2013).

     Appellant broadly asserts that the weight of the evidence does not

support the Commonwealth’s theory that he was the perpetrator responsible

for the victim’s death.     Appellant contends Fowler’s initial statement

identifying him as the shooter was unreliable as Fowler claims he was



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coerced into making this accusation after officers kept him at the police

station for twelve hours and subjected him to physical and psychological

abuse. As noted above, Fowler recanted at trial and denied seeing who shot

the victim. Appellant argues Fowler’s identification is contradicted by video

surveillance outside the bar which Appellant alleges shows he was across the

street from the victim’s vehicle at the time of the shooting. Appellant also

points to the testimony of Officer Raymond Andrejczak, the Commonwealth’s

ballistics expert, who opined that the shooter was likely within three to five

feet of the victim at the time of the shooting based on the location of the

recovered cartridge casings.

      As noted above, we need only assess the trial court’s exercise of

discretion in evaluating whether the jury’s decision to give more weight to

certain facts constitutes a denial of justice. The trial court determined there

were no grounds to disturb the jury’s credibility findings or reweigh the

evidence after examining all of the evidence.      In his initial statement to

police, Graham shared that Sheed directed Appellant to go “get the .40” as

Sheed was having a heated altercation with the victim.      N.T., 6/20/13, at

21. Commonwealth witness Fowler told police that Appellant returned to the

scene and opened fire on the victim after Sheed directed Appellant to “light

him the fuck up.”    Id. at 162.   Upon investigation of the scene, officers

recovered fired cartridge casings from a .40 caliber semiautomatic weapon.

      Although Appellant discounts Fowler and Graham’s statements to

police as they later recanted at trial, the jury was free to credit the

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witnesses’ prior inconsistent statements over their recantations. In a similar

case, the Pennsylvania Supreme Court held that the prior inconsistent

statements of witnesses who recanted at trial constituted sufficient evidence

to support the defendant’s murder conviction when the witnesses testified at

trial and were subject to cross-examination before a factfinder that could

reasonably   credit   the   prior   statements   over   the   witnesses’   in-court

recantations. Commonwealth v. Brown, 617 Pa. 107, 154, 52 A.3d 1139,

1168 (2012).

      Although Graham and Fowler recanted their accounts of the crime at

trial, they were subject to cross-examination before the jury and presented

explanations for making the inconsistent statements. While Graham claimed

he was intoxicated when he gave his statement to police, the interviewing

officer testified there was no indication that Graham was under the influence

of any drugs or alcohol at that time. Although Fowler alleged he was forced

to identify Appellant by the coercive and abusive environment at the police

station, officers denied any such abuse and explained Fowler could not be

interviewed for an extended period of time that evening as the department

was investigating four separate homicides. Officers noted that Fowler was

initially reluctant to give an account of the shooting, but fully cooperated

with police before trial. In his formal statement to police, Fowler admitted

he was fearful of the consequences of talking with police, indicating, “I’m

sorry I didn’t tell you guys everything the first time. I’m just scared. This is

how people get killed and I don’t want to be that guy.” N.T., 6/20/13, at 15,

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24. In addition, the prosecutor impeached Fowler’s credibility when Fowler

claimed he did not know Appellant before trial by presenting prison visitor

logs that showed that Fowler visited Appellant in prison after the shooting.

The jury had a full opportunity to observe the witnesses and assess the

credibility of their explanations for the recantations.

      Moreover, while Appellant claims that the surveillance videos outside

the bar prove he was not the shooter, the trial court explained that the

“video did not depict the shooter because of the angle of the camera [but]

showed the events leading up to the shooting and the aftermath.”           Trial

Court Opinion, 3/7/14, at 5. After reviewing all the evidence, the jury found

that the credible evidence identified Appellant as the shooter. As such, we

conclude the trial court properly exercised its discretion in finding the jury’s

verdict was not so contrary to the evidence as to shock the conscience.

      Second, Appellant asserts the prosecutor improperly elicited evidence

that Appellant was incarcerated when cross-examining Graham.           The trial

court found the Commonwealth properly attempted to impeach Graham

following his assertion that he never knew Appellant by pointing out that

prison logs showed Graham visited Appellant in prison:

         [Prosecutor:] Do you remember visiting [Appellant] while he
         was in custody prior to this case?

         [Graham:] I don’t remember.

         [Defense counsel:] Objection.




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         [Prosecutor:] I’m sorry. When he was in custody since his
         arrest for this case is what I meant.

         [Trial Court:] Yes, yes.

         [Prosecutor:] Prior to your testimony is what I meant.

         [Trial Court:] Ok.

         [Graham:] I don’t know. I don’t remember that.

N.T., 6/19/13, at 203-204. Appellant also takes issue with the fact that the

prosecutor mentioned Appellant’s inmate number in an attempt to refresh

Graham’s memory that he signed a prison log to visit Appellant before trial.

      Appellant’s claim fails as the prosecutor did not suggest Appellant had

been incarcerated for another crime, but clarified Appellant was in custody

for the instant charges.      To further ensure that these comments did not

cause any confusion, the trial court instructed the jury that they were to

consider the evidence that Graham visited Appellant in prison for the sole

issue of whether Graham contacted Appellant before trial and cautioned the

jury that they should not draw any adverse inference against Appellant

based on his arrest in this case. Id. at 207. As a result, Appellant is not

entitled to relief on this claim.

      Third,   Appellant   argues   that   the   trial   court   erred   in   allowing

Philadelphia Police Detective James Dunlap to narrate and describe events

and individuals in the surveillance video that was played to the jury.             In

addition, Appellant claims that the Commonwealth should not have been




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allowed to play the video frame by frame as the defense lacked the ability to

view the video in this manner before its admission at trial.

      In reviewing a challenge to the admissibility of evidence, we note that

such matters are within the sound discretion of the trial court and thus, we

“will reverse the trial court's decision only if the appellant sustains the heavy

burden   to    show   that   the   trial   court   has   abused   its   discretion.”

Commonwealth v. Christine, ___Pa.___, 125 A.3d 394, 398 (2015)

(citation omitted).

            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 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.

Id. (citation omitted).

      Pennsylvania Rule of Evidence 701 provides a lay witness may offer

opinion testimony as long as the opinion is “(a) rationally based on the

witness's perception; (b) helpful to clearly understanding the witness's

testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.”

Pa.R.E. 701.

      After allowing the Commonwealth to present the surveillance video to

the jury, the trial court permitted Detective Dunlap to give limited testimony

to direct the jury’s attention to specific images depicted in the video. When


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defense counsel objected to Detective Dunlap’s identification of an individual

in the video, the trial court sustained the objection, prohibited Detective

Dunlap from speculating as to the identities of individuals seen in the

footage, and instructed the jury that their own observations controlled. The

trial court allowed Detective Dunlap to describe images on the video and call

attention to specific portions of the video. Accordingly, the trial court found

Detective Dunlap’s commentary was rationally based on his observations

and assisted the jury in keeping track of the various individuals appearing on

the video.2       We conclude the trial court acted within its discretion in

allowing Detective Dunlap to offer his observations to assist the jury.

       Likewise, Appellant’s claim that the Commonwealth should not have

been permitted to show the surveillance video frame by frame is also

without merit. As the Commonwealth complied with discovery in providing

the defense with the video before trial, Appellant has not established that

the Commonwealth was responsible for the defense’s failure to review the

video at different speeds. The prosecution presented the video in a manner

that was helpful to the jury to better visualize the events that occurred the

night of the shooting. See Commonwealth v. Jordan, 619 Pa. 513, 534,

65 A.3d 318, 330 (2013) (concluding the trial court properly exercised its

discretion in allowing the prosecutor to show the surveillance video in slow

____________________________________________


2
  Appellant does not contend Detective Dunlap’s testimony was based on
scientific, technical, or other specialized knowledge.



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motion). As a result, the trial court did not abuse its discretion in allowing

the jury to view the video frame by frame.

      Fourth, Appellant argues that the trial court should have granted a

mistrial as the prosecutor committed misconduct with respect to three

comments she made during closing argument. In reviewing the denial of a

motion for a mistrial, we evaluate whether the trial court abused its

discretion.   Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa.Super.

2015).

      [i]t is well settled that a prosecutor has considerable latitude
      during closing arguments and his arguments are fair if they are
      supported by the evidence or use inferences that can reasonably
      be derived from the evidence. Further, prosecutorial misconduct
      does not take place unless the unavoidable effect of the
      comments at issue was to prejudice the jurors by forming in
      their minds a fixed bias and hostility toward the defendant, thus
      impeding their ability to weigh the evidence objectively and
      render a true verdict. Prosecutorial misconduct is evaluated
      under a harmless error standard.

Id.   (citations omitted).   “Not every unwise, intemperate, or improper

remark made by a prosecutor mandates the grant of a new trial.”

Commonwealth v. Watkins, ___Pa.___, 108 A.3d 692, 720-21 (2014). A

mistrial is “required only when an incident is of such a nature that its

unavoidable effect is to deprive the appellant of a fair and impartial trial.”

Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015).        Moreover, a trial court

may issue curative instructions to remove taint unless after a review of all

the circumstances it determines that a curative instruction would be

insufficient, warranting the extreme remedy of a mistrial. Id.


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      Appellant argues that it was improper for the prosecution to speculate

on the reasons for the Commonwealth’s witnesses to recant their original

statements to police and suggest that they were fearful of identifying

Appellant in the courtroom.        However, the record shows that Fowler

admitted his fear of cooperating with the police in his initial statement,

indicating, “I’m sorry I didn’t tell you guys everything the first time. I’m just

scared. This is how people get killed and I don’t want to be that guy.” N.T.

6/20/13, at 15, 24. As such, we agree with the trial court that it was a fair

inference to expect that Fowler and Graham, who lived in the same

neighborhood as Appellant, would be concerned about the consequences of

giving testimony in open court identifying Appellant as the shooter. Further,

the prosecutor did not suggest that Appellant had threatened the witnesses

but merely offered fear as a possible explanation for the witnesses’

recantation of their original statements implicating Appellant in the shooting.

As a result, no further review of this claim is warranted.

      In addition, Appellant argues that he is entitled to a new trial as the

prosecutor suggested in closing argument that Appellant had a propensity to

handle firearms. The relevant comments are as follows:

      [Prosecutor:] You also got to hear a little bit about this
      defendant’s family, that he is D’Bo’s brother. D’Bo also uses
      guns, also shoots at people, and also hangs around the same
      neighborhood. So what do we know about that? That he may be
      more familiar because his brother is familiar with guns.

      [Defense Counsel:] Objection.



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N.T. 6/25/13, at 79-80. The trial court immediately sustained the objection,

stating, “I don’t recall evidence of what actually happened, who was arrested

and charged but I think the evidence was that the charge was dropped so I’ll

sustain the objection.” Id. at 80.

      Defense counsel did not make a more specific objection or request any

further action on the part of the trial court, allowing the prosecutor to

continue with her closing argument. As Appellant did not specifically request

a mistrial or a curative instruction, his argument is waived on appeal.

Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013) (noting

that “[e]ven where a defendant objects to specific conduct, the failure to

request a remedy such as a mistrial or curative instruction is sufficient to

constitute waiver”).

      Appellant also claims in a one-sentence argument that the prosecutor

improperly offered her personal opinion that the written statements Fowler

and Graham gave to police were the truth. Appellant failed to preserve this

claim for appeal as he did not object to the prosecutor’s statement at trial

and raises this argument for the first time on appeal. See Pa.R.A.P. 302(a)

(stating “issues not raised in trial court are waived and cannot be raised for

first time on appeal”). Accordingly, we find this argument waived.

      In his fifth claim of error, Appellant argues that the trial court

erroneously instructed the jury as to the concept of reasonable doubt. The

trial court acknowledges it misspoke when it made the following statement:




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      [s]o to summarize, it is the Commonwealth that has the burden
      of proof and must proof [sic] the defendant guilty beyond a
      reasonable doubt. If the defendant has met that burden, then
      the defendant is no longer presumed to be innocent and you
      should find him guilty. On the other hand, if the Commonwealth
      has not met that burden, then you must find him not guilty.

N.T., 6/25/13, at 91 (emphasis added).

      As Appellant concedes, this argument is also waived as Appellant did

not object to the instruction before the trial court, who could have easily

corrected the misstatement before the jury.        Moreover, any confusion

caused by this remark would have caused minimal prejudice as the trial

court repeatedly emphasized in its instructions at the beginning and

conclusion of the trial that the Commonwealth had the burden of proving

Appellant guilty beyond a reasonable doubt.      As a result, we decline to

review this claim further.

      Lastly, Appellant claims this Court should remand to the trial court for

a hearing on after-discovered evidence.      Appellant offers two newspaper

articles concerning possible misconduct on the part of Philadelphia Police

Detectives Ronald Dove and James Pitts, who took the statements of Brown

and Fowler, who later recanted at trial in this case.   One article from the

Philadelphia Inquirer, dated November 21, 2013, reports that Detective

Dove was suspended from his duties pending an internal investigation into

allegations that Dove covering up homicides connected to his girlfriend, Erica




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Sanchez.3      The other article from the Philadelphia Daily News, dated

November 6, 2013, discusses              three     unrelated criminal cases where

defendants claimed that Detective Pitts employed aggressive interrogation

tactics to coerce them into giving false statements.

       To warrant a new trial based on after-discovered evidence, the

appellant must show that 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, 625 Pa. 582, 588, 93 A.3d 818, 821 (2014)

(quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292

(2008)). In addition, “the proposed new evidence must be producible and

admissible.” Commonwealth v. Chamberlain, 612 Pa. 107, 164, 30 A.3d

381, 414 (2011) (citation omitted).

       We acknowledge that in Castro, our Supreme Court held that

allegations in a newspaper article “do not constitute evidence” and thus,

were not sufficient to support a motion for an evidentiary hearing or a new

trial. The Supreme Court specifically stated:



____________________________________________


3
   See Mike Newall and Aubrey Whelan, “Homicide detective under
investigation to be fired,” Philadelphia Inquirer, Nov. 10, 2013; Mensah M.
Dean, “Same 2 Cops Built 3 Murder Cases that Fell Apart,” Philadelphia
Daily News, Nov. 6, 2013.



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      [a]llegations in the media, whether true or false, are no more
      evidence than allegations in any other out-of-court situation.
      Nothing in these allegations even read in the broadest sense,
      can be described as “evidence,” and references to the officer
      being under investigation for misconduct contains no information
      regarding what evidence existed to substantiate this averment.
      One cannot glean from these bald allegations what evidence of
      misconduct appellee intended to produce at the hearing.

Castro, 625 Pa. at 595, 93 A.3d at 825. As “an evidentiary hearing is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim,” the Supreme Court concluded that Castro

“needed to do more than present an article pointing to allegations that if

true have the potential to aid his cause; he needed to clearly articulate in his

motion what evidence he would present to meet the test.” Id. at 598-99,

93 A.3d at 828.

      With respect to the allegations regarding Detective Dove, Appellant

solely relies on the newspaper article reporting on Dove’s possible

misconduct and does not articulate what evidence he would present at the

evidentiary hearing on remand.         In accordance with Castro, the article

concerning Detective Dove does not constitute after-discovered evidence

that entitles Appellant to a new trial.

      With respect to Appellant’s allegations that Detective Pitts coerced

Fowler   into   making   a   false   identification,   Appellant   referenced   the

aforementioned newspaper article and argues that he would subpoena the

testimony of three individuals, Nafis Pinkney, Shaquille Rainey, and Unique

Drayton, all of whom claimed that Detective Pitts used aggressive and



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violent tactics to pressure them into making false statements in murder

investigations.

      However, even assuming such testimony is producible and admissible

at an evidentiary hearing, these statements would solely be used to impeach

Detective Pitts’s credibility. The proposed witnesses, if available to testify,

would allege that Detective Pitts committed misconduct in coercing their

statements in other murder cases, but none of the witnesses can provide

any new evidence concerning his conduct in this case.      As such, Appellant

has not shown that he is entitled to a new trial by presenting after-

discovered evidence that will not be used solely to impeach a witness's

credibility as required by Castro. Id. at 588, 93 A.3d at 821. Accordingly,

we deny Appellant’s motion for an evidentiary hearing on his proposed after-

discovered evidence.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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