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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARVIN ALSBROOK                            :
                                               :
                       Appellant               :   No. 1577 EDA 2018

       Appeal from the Judgment of Sentence Entered December 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006191-2014


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                               FILED MAY 5, 2020

        Marvin Alsbrook appeals from his judgment of sentence, imposed on

December 15, 2017, following a jury trial resulting in convictions for

aggravated assault, carrying firearms without a license, and carrying firearms

in public in Philadelphia.1 Alsbrook was also found guilty of possession of a

firearm by a prohibited person2 in a bifurcated bench trial. Alsbrook challenges

certain evidentiary rulings and the denial of his motion to suppress. We affirm.

        The relevant facts are as follows:

           Officer Michael Walker testified that on December 19, 2013,
           he responded to a call concerning shots fired at 3900
           Fairmount Avenue, Philadelphia, Pennsylvania. The call
           came in from a beauty salon where there were 15 to 20
           women waiting for police. Upon arriving at the scene Officer
____________________________________________


1 18 Pa.C.S.A. § 2702(a), 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108,
respectively.

2   18 Pa.C.S.A. § 6105(a)(1).
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       Walker put out a flash for “Marvin and Little Reese” who had
       allegedly been involved in the shooting based on information
       received. Officer Walker stated that he knew the individuals
       in the salon and the suspects due to daily calls. Officer
       Walker wrote in his investigation report that fired cartridge
       casings (FCC’s) were found on the north side of Fairmount
       Avenue along with a video from a nearby camera facing
       Union Street. At this point, Officer Walker also heard from
       Officer DiDomenico that Marvin Alsbrook was seen at Union
       and Mellon Streets. Officer Walker noted that bullet holes
       were found in and around a nearby house on 40th [S]treet.

       Officer Walker testified that he left the scene and went half
       a block to Union and Mellon Streets as he had previously
       observed [Alsbrook] at this location on numerous occasions.
       A number of officers were already at the location when he
       arrived and the house had been secured. Officer Walker
       testified that Detective Zerwick asked the owner if anyone
       had entered the house; she stated that no one had entered
       and gave officers consent to search the house. Officer
       Walker did not conduct the search, but remained on the
       porch to secure the property.

       On cross-examination, Officer Walker stated that he did not
       see [Alsbrook] nor a gun when he arrived at the scene, and
       that an individual in the salon who did not give their name
       told him that Marvin Alsbrook was one of the shooters.…On
       re-direct examination, Officer Walker explained that no one
       on the street wanted to cooperate with him or provide him
       with information regarding the shooting.

                                    …

       Detective Justin Falcone testified that he knew [Alsbrook]
       through dozens of past encounters and would associate the
       area of Fairmount and Union with him and that Detective
       Antonini requested that Detective Falcone review the video
       to determine if he recognized anyone. Detective Falcone
       said that he recognized [Alsbrook] instantly due to the way
       he runs, which he knew because of his many hours
       conducting surveillance on the 600 block of Union Street.
       On cross-examination, Detective Falcone asserted that he
       viewed the video on December 19, 2013 and subsequently
       emailed Detective Antonini that [Alsbrook] was the
       individual in the video on March 29, 2014.


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       Detective Richard Antonini testified that he helped to
       process the crime scene and obtain video footage of the
       crime. He explained that Detective Wilson recovered the
       video from the nearby mini-mart and that six .380 caliber
       FCC’s were recovered from the sidewalk near 3951 and
       3945 Fairmount Avenue. The video was viewed on location
       and then a search warrant for 650 Union Street was
       obtained and executed. Detective Antonini reviewed the
       search warrant to refresh his memory and clarified that the
       address was 659 Union Street. Detective Antonini testified
       that he gave [Alsbrook] Miranda warnings at Southwest
       Detectives Division and that [Alsbrook] gave a statement
       indicating that the incident was in self-defense but that he
       did not wish to “go on paper.” [Alsbrook’s] clothing was then
       collected and submitted to the forensic lab.

       On cross-examination, Detective Antonini testified that (1)
       he did not arrive on the scene immediately, (2) a gun nor
       bullets were ever recovered during the search, (3) the only
       evidence related to the shooting found at 659 Union Street
       was [Alsbrook], and (4) [Alsbrook’s] statement was not
       recorded. Detective Antonini also testified that to the best
       of his recollection, the clothing in the case came from
       outside [Alsbrook’s] cell at Southwest Detectives, but that
       he previously testified that Officers McCleod and Walker had
       recovered clothing from 659 Union Street. In any event, the
       clothing, a green polo shirt and an Abercrombie sweatshirt,
       was placed on Property Receipt 3135187 and submitted for
       forensic testing. Detective Antonini asserted that he did not
       test [Alsbrook’s] hands because of the lapse in time
       between the shooting and [Alsbrook’s] appearance at the
       police station. But that, based on his experience, clothing
       would take in the gun shot residue.…Detective Antonini also
       clarified that he advised [Alsbrook] of his rights, told him
       the potential charges against him, and asked him if he
       wished to make a statement, to which [Alsbrook] refused
       and replied that he had acted in self-defense.

                                    …

       [T]he Commonwealth called expert witness and forensic
       scientist Gamal Emira, who tested [Alsbrook’s] clothing for
       gunshot residue. He testified that of the eight gunshot
       residue tests that were conducted on [Alsbrook’s] green


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         polo shirt and sweatshirt, all came back positive for gunshot
         residue.

Trial Court Opinion, 2/8/19, at 2-8 (internal citations to the trial transcript

omitted).

      Prior to trial, on November 28, 2016, the trial court denied Alsbrook’s

motion to suppress his alleged statements that he made to Detective Antonini

after his arrest, stating “it was self-defense.” The matter proceeded to trial

from October 11 to 17, 2017, after which Alsbrook was found guilty as above.

The court later sentenced Alsbrook to an aggregate term of seven to 14 years

in prison. Alsbrook filed a motion for reconsideration of sentence, which the

court denied. This timely appeal followed.

      Alsbrook raises three issues for our review:

         1. Did the trial court err, abuse its discretion, and/or make
            a mistake of law when it denied Appellant’s objection to
            Detective Falcone’s testimony about the way the
            Appellant ran?

         2. Did the trial court err, abuse its discretion, and/or make
            a mistake of law when it allowed the Commonwealth to
            introduce expert testimony from the Commonwealth’s
            gunshot expert after the Commonwealth failed to
            disclose discovery containing this expert’s scientific
            laboratory reports prior to the commencement of trial
            and their case-in-chief which were required disclosures?

         3. Did the trial court err, abuse its discretion, and/or make
            a mistake of law when it issued an order and denied
            Appellant’s Motion to Suppress alleged statements made
            to Detective Antonini?

Alsbrook’s Br. at 2.




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      Alsbrook first contends that the trial court erred when it allowed

Detective Falcone to testify about Alsbrook’s running style. Alsbrook’s Br. at

17. Alsbrook argues that although Detective Falcone identified Alsbrook based

on his running style after reviewing the surveillance video, “[i]t strains

credibility, that [Detective Falcone] could immediately know a masked

individual was [Alsbrook] but could not see another person discharging a

firearm.” Id. at 20. Alsbrook further argues that this testimony prejudiced the

jury because the “implication is that [Alsbrook] was being surveilled for hours

in relation to numerous on-going drug sales/distribution investigations.” Id.

According to Alsbrook, Detective Falcone’s statement had no objective basis

and was used to bias Alsbrook. Id. at 21.

      It is well-settled that “[t]he admission of evidence is a matter vested in

the sound discretion of the trial court, whose decision thereon can only be

reversed by this Court upon a showing of an abuse of discretion.”

Commonwealth v. Jones, 683 A.2d 1181, 1193 (Pa. 1996). “The threshold

inquiry with the admission of evidence is whether the evidence is relevant.”

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.Super. 2013) (citation

omitted). Generally, “all relevant evidence, i.e., evidence which tends to make

the existence or non-existence of a material fact more or less probable, is

admissible, subject to the prejudice/probative value weighing which attends

all decisions upon admissibility.” Commonwealth v. Dillon, 925 A.2d 131,

136 (Pa. 2007). In assessing whether certain evidence should be admitted,

“the trial court must weigh the relevance and probative value of such evidence

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against the prejudicial impact of that evidence.” Jones, 683 A.2d at 1193.

“The court may exclude relevant evidence if its probative value is outweighed

by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403. “‘Unfair prejudice’ means a

tendency to suggest decision on an improper basis or to divert the jury’s

attention away from its duty of weighing the evidence impartially.” Pa.R.E.

403 (comment). “Exclusion is limited to evidence so prejudicial that it would

inflame the jury to make a decision based upon something other than the legal

propositions relevant to the case.” Commonwealth v. Page, 965 A.2d 1212,

1220 (Pa.Super. 2009) (citation omitted).

      At trial, Detective Falcone testified that he was asked by Detective

Antonini to review the surveillance video of the shooting to see if he recognized

anyone in the video since he frequently did surveillance in the area of the

shooting. N.T., 10/11/17, at 62-63. Detective Falcone stated that he

immediately recognized Alsbrook as the person in the video since he had

previously been in contact with Alsbrook “dozens” of times. Id. at 62-64.

When the Commonwealth asked Detective Falcone if he ever saw Alsbrook run

before, Alsbrook’s counsel objected based on relevance. Id. at 64. The

prosecutor explained that she was asking the Detective whether he had seen

Alsbrook run before to see if he could compare him to the individual that was

running in the video. Id. The trial court overruled the objection and Detective

Falcone responded as follows:

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         [Detective Falcone]: I was in narcotics surveillance, so I did
         surveillances throughout the district and I’ve done hours
         upon hours of surveillance on the 600 block of Union Street
         where I had observed Mr. Alsbrook just goofing around,
         running around with his friend, like, playing basketball and
         stuff. They used to have a basketball net out there. That’s
         the only time that comes to mind where I would have seen
         him run.

         [The Commonwealth]: And how does it compare to the
         person in the video?

         [Detective Falcone]: Everything about the way he walks, the
         way he ran, everything about it just brings me to who it
         was. It really was no question in my mind. I knew who it
         was.

Id. at 65.

      Upon review, we discern no abuse of discretion in the admission of

Detective Falcone’s testimony regarding Alsbrook’s running style. The

testimony was directly relevant to establishing the identity of the shooter in

the video. We agree with the trial court that the “subsequent questions asked

by the Commonwealth regarding whether the Detective had seen [Alsbrook]

run in the past and how it compared to the individual in the video are relevant

as they make a material fact at issue more or less likely in accordance with

Rule 403.” Trial Ct. Op., 2/8/19, at 22. Moreover, Alsbrook’s contention goes

to the weight of the testimony, not its admissibility. It was the province of the

jury to believe all, part, or none of the evidence presented and the weight to

afford the evidence. See Commonwealth v. Henkel, 938 A.2d 433, 438

(Pa.Super. 2007).




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        Further, we find that Alsbrook’s argument that Detective Falcone’s

statement was prejudicial because it implied that Alsbrook was under ongoing

surveillance for drug-related activities is without merit. The record reflects

that Detective Falcone never testified that Alsbrook was under surveillance for

any sort of criminal activity; rather, he stated that he was familiar with

Alsbrook from frequently working in Alsbrook’s neighborhood. N.T., 10/11/17,

at 62-63, 65. We agree with the trial court’s conclusion that the testimony’s

probative value significantly outweighed any alleged prejudicial effect.

Accordingly, we discern no abuse of discretion.

        Alsbrook next argues that the trial court erred when it allowed the

Commonwealth’s expert witness to testify regarding gunshot residue tests

that he conducted without first disclosing the contents to Alsbrook during pre-

trial discovery, in violation of the discovery rules and Brady.3 Alsbrook’s Br.

at 21-22. Prior to trial, the Commonwealth’s gunshot residue expert submitted

a two-page expert report to the Commonwealth, and the Commonwealth then

turned it over to Alsbrook. However, on the day the expert was expected to

testify, which was a Thursday, the Commonwealth produced the expert’s

notes, which appear to have contained the raw data upon which the expert

based his opinion. See N.T., 10/12/17, at 65-66.4 Defense counsel objected

that his strategy would have been different and he would have obtained an
____________________________________________


3   Brady v. Maryland, 373 U.S. 83 (1963).


4   See also N.T., 10/16/17, at 11.

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expert if he had known about the notes. He asked the court to delay the

expert’s testimony until the following week, so that counsel could review the

materials, and to grant him leave to move to preclude the expert’s testimony

following that review. Id. at 73-74. The court granted the requests. See id.

at 77.

         On the following Monday, before the expert testified, the prosecutor put

on the record an agreement between counsel to “cure” the “issue” of the

prosecution providing the notes to the defense on the preceding Thursday.

N.T., 10/16/17, at 9. The parties agreed that the prosecutor could call the

expert to the stand, but the expert could not refer to his notes during his direct

testimony and the prosecutor would not ask any questions on direct about the

notes. Id. The prosecutor also agreed to instruct the expert not to mention

the notes during his testimony. Id. However, the parties further agreed that

if defense counsel asked questions on cross that required the expert to refer

to the notes, he would then be able to refer to them. Id. Defense counsel

stated he would not ask any questions requiring the expert to do so. Id. at

10. Notably, he did not at any time dispute the prosecutor’s statement that

the parties had entered into the agreement in order to “cure” any alleged

violation. Nor did he ever say that he had had insufficient time to review the

notes or obtain an expert, or that Alsbrook sustained prejudice in any way.

         Alsbrook now argues that the Commonwealth had access to these

additional documents, or at least could have obtained them, and failed to

provide them to Alsbrook until after the trial had commenced, despite

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Alsbrook’s requests in discovery. Alsbrook’s Br. at 17, 24. According to

Alsbrook, not having these materials prejudiced him, as he was unable to

obtain an expert on such short notice and present any alternate theory,

including cross-contamination, since two detectives testified during trial that

they handled Alsbrook’s clothing without wearing protective gloves. Id. at 17,

24-25.

      The Commonwealth counters that it did not receive the expert’s

additional materials until after the trial had commenced and it immediately

provided them to Alsbrook as soon as it received them. Commonwealth’s Br.

at 12-13. The Commonwealth further argues that the trial court granted

defense counsel additional time over the weekend to review the additional

documents. Id. at 13. Moreover, the Commonwealth contends that the issue

was cured by the parties’ agreement not to mention the notes unless defense

counsel opened the door on cross-examination of the expert witness. Id.

      Pennsylvania Rule of Criminal Procedure 573(B)(1)(a) requires the

Commonwealth to disclose to the defense “[a]ny evidence favorable to the

accused that is material either to guilt or to punishment, and is within the

possession or control of the attorney for the Commonwealth.” Pa.R.Crim.P.

573(B)(1)(a). “The Commonwealth does not violate Rule 573 when it fails to

disclose to the defense evidence that it does not possess and of which it is

unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008).

      Brady held that a due process violation occurs when the prosecution

willfully or inadvertently withholds evidence favorable to a defendant.

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Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa. 2011). In order to prove

a Brady violation, “a defendant is required to demonstrate: (1) evidence was

suppressed by the Commonwealth, either willfully or inadvertently; (2) the

evidence was favorable to the defendant; and (3) the evidence was material,

in that its omission resulted in prejudice to the defendant.” Id. Prejudice

occurs in the Brady context if “the evidence suppressed [is] material to guilt

or punishment.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa.

2008).

       We do not find any reversible error. Even assuming the materials were

in the Commonwealth’s possession and control,5 Alsbrook has not shown that

they were exculpatory, and moreover, he entered into an agreement with the

prosecution to “cure” the alleged violation. He never once objected that he

ultimately had had insufficient time to prepare, and we do not see how he

could have done so, given his agreement. Further, as the trial court pointed

out, the allegedly late provision of the notes did not prevent him from

obtaining an expert. Alsbrook could have sought to obtain his own expert once

he obtained the expert’s two-page report in discovery, well in advance of trial.

Accordingly, we conclude that the trial court did not abuse its discretion.

       Lastly, Alsbrook contends the trial court erred when it denied his motion

to suppress his alleged statements made to Detective Antonini after he was

____________________________________________


5 See Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (explaining
that materials exclusively in the possession of the police are deemed to be in
the Commonwealth’s possession for purposes of Brady but not Rule 573).

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arrested. Our standard of review of a denial of a motion to suppress evidence

is well settled:

          An appellate court’s standard of review in addressing a
          challenge to the denial of a suppression motion is limited to
          determining whether the suppression court’s factual
          findings are supported by the record and whether the legal
          conclusions drawn from those facts are correct. Because the
          Commonwealth prevailed before the suppression court, we
          may consider only the evidence of the Commonwealth and
          so much of the evidence for the defense as remains
          uncontradicted when read in the context of the record as a
          whole. Where the suppression court’s factual findings are
          supported by the record, the appellate court is bound by
          those findings and may reverse only if the court’s legal
          conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation and

brackets omitted). Further, “[i]t is within the suppression court’s sole province

as factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585

(Pa.Super. 2006) (citation omitted).

        At the suppression hearing, Detective Antonini testified that on

December 19, 2013, he arrested Alsbrook on an outstanding armed robbery

warrant. N.T., 1/12/17, at 53-54. Detective Antonini stated that he read

Alsbrook his Miranda6 rights and informed him of his right to remain silent,

his right to an attorney, and the fact that anything he said could be used

against him. Id. at 53, 55. Detective Antonini testified that Alsbrook did not


____________________________________________


6   Miranda v. Arizona, 384 U.S. 436 (1966).


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wish to provide a written statement. Id. at 55-56. He further stated that after

he read Alsbrook his Miranda rights, Alsbrook spontaneously stated that “it

was self-defense” but he “did not want to go on paper.” Id. at 56-57, 62.

Detective Antonini said that Alsbrook did not make these statements in

response to any question that he asked him. Id. at 56-57, 62-63. The

detective also testified that another detective, Detective Fife, was present

when he gave Alsbrook his Miranda rights. Id. at 60-62.

      Alsbrook argues that there is no evidence that Alsbrook understood his

Miranda warnings since they were not recorded by audio or video and

Alsbrook did not sign a Miranda waiver card. Alsbrook’s Br. at 26. Alsbrook

further asserts that Detective Antonini’s testimony about his alleged

statements was completely self-serving and was not credible because, by

Detective Antonini claiming that Alsbrook said that “it was self-defense,” it

appeared that Alsbrook implicitly admitted that he was on the scene of the

crime and involved in the shooting. Id. 26-27. As such, Alsbrook argues that

the court should have suppressed the statements. Id. at 27.

      The Commonwealth responds that there is no requirement that a

specific format must be used to effectuate the valid waiver of a suspect’s

Miranda rights. Commonwealth’s Br. at 17. The Commonwealth further

contends that Detective Antonini did not elicit Alsbrook’s statements; thus,

suppression was unwarranted. Id. at 16-17.

      Statements made during custodial interrogation are presumptively

involuntary, unless the accused is first advised of          Miranda rights.

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Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc).

However, “[v]olunteered or spontaneous utterances by an individual are

admissible even without Miranda warnings.” Id. Indeed, unsolicited remarks,

not the result of custodial interrogation, are “spontaneous, voluntary

statements not subject to suppression.” Commonwealth v. Fisher, 769 A.2d

1116, 1125 (Pa. 2001); see also Commonwealth v. Johnson, 42 A.3d

1017, 1029 (Pa. 2012) (stating that “Miranda does not preclude the

admission of spontaneous utterances”).

     Detective Antonini testified that Alsbrook spontaneously volunteered

these statements of his own free will, and not in response to any police

conduct or questioning. The suppression court was free to determine the

credibility of Detective Antonini and presumably found him to be credible.

Gallagher, 896 A.2d at 585. Indeed, Alsbrook fails to identify any police

conduct that elicited these statements. Thus, the remarks constitute mere

voluntary utterances and were properly admissible. Accordingly, the court

properly did not suppress Alsbrook’s statements to Detective Antonini.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020

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