J-A29031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                              :           PENNSYLVANIA
             v.                               :
                                              :
RAYSHAWN WILLIAMS,                            :
                                              :
                   Appellant                  :          No. 537 WDA 2015

           Appeal from the Judgment of Sentence February 25, 2015
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0012281-2013;
                           CP-02-CR-0014922-2014

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED JANUARY 19, 2017

        Rayshawn   Williams    (“Williams”)   appeals   from   the   judgment   of

sentence entered following his conviction of first-degree murder and persons

not to possess or use a firearm.1 We vacate the judgment of sentence and

remand for a new trial.

        On July 31, 2013, at approximately 4:00 p.m., three men and the

victim, Derick Lyman (“Lyman”), argued in the hallway outside of the

apartment where Lyman lived with his girlfriend, Tayla Wright (“Wright”). In

that verbal altercation, the three men, known to Wright as “Tay Tay,” “J-

Zombie” and “Judd,” argued with Lyman about “someone’s brother getting

robbed.” Trial Court Opinion, 1/19/16, at 6 (citation omitted). Following the

argument, Tay Tay and Judd went into the apartment of Natwauna Lane



1
    18 Pa.C.S.A. §§ 2501(a), 6501(a)(1).
J-A29031-16


(“Lane”) (known to Wright by the nickname, “Nay Nay”).               Lyman and J-

Zombie walked up the street to J-Zombie’s house.                  Lyman thereafter

returned to his apartment.

      At about 5:51 p.m., Wright looked out of the window and observed

Williams approaching her apartment building.2 Shortly thereafter, Williams

knocked loudly on Wright’s apartment door. When Wright opened the door,

Williams told Wright that he was “looking for some answers,” at which time

Lyman walked into the hallway with Williams.           As she started to follow

Lyman, Wright observed Tay Tay and Judd standing with Williams, and Lane

standing in the hallway, listening to the conversation.

      Wright subsequently gathered her daughter and walked out into the

hall, in order to leave the building.     As she left, she observed Williams,

Lyman, Tay Tay, Judd and Lane standing in the hallway.               At that time,

Wright advised Lyman to go back to their apartment.

      Once outside of the apartment, and after giving her daughter to a

friend, Wright moved her vehicle from the front of the building to the back of

the building. As Wright walked back to the building’s entrance, Williams ran

past her. As Williams did so, two girls screamed, at which time Williams told

the girls, “homeys, I’m not going to shoot you.”          Wright observed that

Williams was carrying a gun in his right hand, and running with his hoodie

pulled up a “little bit over his face.” Id. (citation omitted).

2
   Wright recognized Williams as          “Ray   Ray,”    from     the   Homewood
neighborhood in which she grew up.


                                   -2-
J-A29031-16


      Wright’s mother screamed at Wright to get inside, as someone had

just been shot. Once inside, Wright found Lyman lying on the hallway floor,

near Lane’s door. Although Lyman was transported to the hospital, he died

as a result of multiple gunshot wounds.

      At the hospital, Wright spoke with Pittsburgh Police Detective Harry

Lutton (“Detective Lutton”), and identified the shooter as “Ray Ray.”

Thereafter, at police headquarters, Wright identified Williams as the

assailant, from a collection of photographs in a binder.

      Several days later, Williams was arrested. At the police station, upon

being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), Williams elected to remain silent.     However, as police detectives

were leaving the room, Williams inquired as to whether he could ask the

detectives a question.   When the detectives responded in the affirmative,

Williams stated, “[w]hat happens now?” and “what did I do?” Trial Court

Opinion, 1/19/16, at 13 (citation omitted). The detectives again explained

the allegations against Williams, to which Williams responded, “That’s not

me. Check me out. Check my charges. I’m a drug dealer. I deal drugs.”

Id.   When the detectives asked Williams about video surveillance footage,

Williams stated, “That’s it. I’m done talking.” Id.

      Williams filed pretrial suppression Motions seeking to suppress, inter

alia, his statement to police: “That’s it, I’m done talking.”   N.T. (Pretrial

Hearing), 4/16/14, at 5-7).      Williams also sought to suppress Wright’s



                                  -3-
J-A29031-16


identification of Williams from the binder of photographs.      The trial court

denied Williams’s suppression Motions.        The jury ultimately convicted

Williams of the above-described charges, after which the trial court

sentenced Williams to an aggregate prison term of life in prison. Williams

filed a Post Sentence Motion, which the trial court denied.         Thereafter,

Williams filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

      Williams presents the following claims for our review:

      I. Did the trial court err in denying the “Motion to Suppress
      Photo Array Identifications Made by [Wright,]” where the
      identification procedure was highly suggestive and the
      Commonwealth failed to establish an independent basis for []
      Wright’s identification of [] Williams?

      II. Did the trial court abuse its discretion by allowing Detective
      [Hal] Bolin [“Detective Bolin”] to impeach [Lane] with her prior
      inconsistent statements[,] where the probative value of this
      testimony was outweighed by the danger of prejudice?

      III. Did the trial court err in denying [] Williams’[s] Motion to
      Suppress statements where the Commonwealth failed to present
      any evidence at the suppression hearing to rebut [] Williams’[s]
      assertions that the statements were unconstitutionally obtained?

      IV. Did the trial court abuse its discretion by allowing the
      Commonwealth to present [] Williams’[s] post-arrest, post-
      Miranda silence as substantive evidence of guilt?

Brief for Appellant at 6 (some capitalization omitted, issues renumbered).

      Williams first claims that the trial court improperly denied his Motion to

suppress Wright’s pretrial identification of him from a binder of photographs.

Id. at 56. Williams argues that the evidence presented at the suppression



                                  -4-
J-A29031-16


hearing “undeniably established that the photograph identification procedure

was unduly suggestive.”       Id.      According to Williams, the trial court

improperly denied suppression “without hearing any evidence to establish an

independent basis for Wright’s identifications.” Id. Claiming that the photo

array was unduly suggestive, Williams states that the police presented

Williams with a binder containing two to three hundred photographs, which

were color-coded by neighborhood and identified the individuals by name.

Id. at 60-61.      Williams asserts that his name was listed under his

photograph, in the Homewood section of the binder, under the heading

“Ra[ce] Street Crips.”    Id. at 61.      In addition, Williams asserts that the

binder, the “Zone 5 Gang Book,” was unduly suggestive as it only contained

photographs of suspected gang members. Id.

      In its Opinion, the trial court set forth the appropriate law, addressed

Williams’s first claim and concluded that it lacks merit.       See Trial Court

Opinion, 1/19/16, at 20-27.         We agree with and adopt the conclusion

reached by the trial court, and affirm its resolution of Williams’s claim on this

basis. See id.

      In his second claim, Williams argues that the trial court improperly

allowed the Commonwealth to call Detective Bolin, “strictly to impeach

[Lane] with her previous inconsistent statements that [] Williams was

present in her apartment building shortly before the shooting.”         Brief for

Appellant at 65.     According to Williams, Lane’s prior statements “bore



                                    -5-
J-A29031-16


directly on the central issue at trial:      the identity of the shooter.”       Id.

Williams posits that the jury improperly used the testimony as substantive

evidence of his guilt, despite a cautionary instruction by the trial court. Id.

Williams directs our attention to case law in which testimony regarding prior

inconsistent statements was deemed too prejudicial to be admissible at trial.

Id. at 66-69.

        The trial court set forth the relevant law in its Opinion, addressed

Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion,

1/19/16, at 27-31. We agree with the sound reasoning of the trial court, as

set forth its Opinion, and affirm on this basis as to Williams’s second claim.

See id.

        In his third claim, Williams argues that the trial court improperly

denied his suppression Motion, where the Commonwealth failed to present

evidence at the hearing to rebut Williams’s claim that his statements to

police were unconstitutionally obtained.         Brief for Appellant at 29-30.

According to Williams, it was the Commonwealth’s burden to produce such

evidence at the suppression hearing. Id. at 30. Williams asserts that the

Commonwealth presented no evidence at the suppression hearing that

would     meet   this   burden   and,   therefore,   the   statements   should   be

suppressed. Id. at 32. Williams states that he preserved his challenge by

filing his Motion to suppress his statement. Id. at 31.




                                    -6-
J-A29031-16


       In its Opinion, the trial court set forth the appropriate law, addressed

Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion,

1/19/16, at 10-12.     We agree with and adopt the trial court’s reasoning.

See id. We additionally note the following.

       At the suppression hearing, the Commonwealth did not dispute

Williams’s factual basis for his suppression Motion.       The Commonwealth

agreed with the assertion in Williams’s Motion that, after police had arrested

Williams and told him of his rights pursuant to Miranda, Williams invoked

his right to remain silent.     N.T., 4/15/14, at 4-6.     The Commonwealth

agreed that Williams reinitiated questioning, after invoking Miranda, when

he asked the officers why he was going to jail.      Id.   The Commonwealth

agreed that Williams told police that he did not commit the homicide, and

that he “is a drug dealer.” Id. at 5, 6. The Commonwealth did not dispute

that the police officers then asked Williams, “What about the surveillance

video?”    Id. at 5, 6.    Finally, the Commonwealth did not dispute that

Williams told the officers that he was not going to say anything else, and

that he was done talking. Id.

       At the hearing, defense counsel and the Commonwealth disagreed as

to the application of the law to the facts, as stated by both counsel. Id. at

6-7.    Defense counsel offered no objection to the trial court hearing

argument as to the legal basis for Williams’s Motion. See id. Under these

circumstances, we agree with the suppression court’s conclusion that



                                  -7-
J-A29031-16


Williams waived his challenge to the Commonwealth’s failure to present

evidence at the suppression hearing, by failing to raise the issue before the

trial court. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for

the first time on appeal).

      Finally, Williams challenges the denial of his Motion to suppress his

post-arrest statement to police, “That’s it.        I’m done talking.”     Brief for

Appellant at 46.     Williams contends that this statement was taken in

violation of his Fifth Amendment right against self-incrimination.                Id.

Williams   argues   that     the   admission   of   this   statement   violated   his

constitutional right to remain silent under the Fifth Amendment to the United

States Constitution, and Article I, Section 9 of the Pennsylvania Constitution.

Id.

      As our Supreme Court has explained,

      questions concerning the admissibility of evidence are within the
      sound discretion of the trial court and will only be reversed upon
      a showing that the court abused its discretion. Commonwealth
      v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1027 (Pa. 2012). An
      abuse of discretion occurs where “the law is overridden or
      misapplied,   or    the   judgment       exercised   is   manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record.” Commonwealth
      v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005).
      However, to the extent the question presents as “an issue
      involving a constitutional right, it is a question of law; thus, our
      standard of review is de novo, and our scope of review is
      plenary.” Commonwealth v. Baldwin, 619 Pa. 178, 58 A.3d
      754, 762 (Pa. 2012).

Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014).




                                     -8-
J-A29031-16


     Both the United States Constitution and the Pennsylvania Constitution

protect every person against being compelled to be a witness against himself

or herself.   U.S. Const. amend. V; PA. CONST. article I, § 9.3             In

Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014), an evenly divided

Pennsylvania Supreme Court “view[ed] the drawing of an adverse inference

from a defendant’s silence to be encompassed within the right against

compelled self-incrimination.”   Id. at 450.     “[A]llowing reference to a

defendant’s silence as substantive evidence endangers the truth-determining

process[,] given our recognition that individuals accused of a crime may

remain silent for any number of reasons.”      Id.   “To violate this rule, the

testimony must clearly refer to post-arrest silence.”     Commonwealth v.

Smith, 995 A.2d 1143, 1155 (Pa. 2010).

     While we have interpreted the constitutional right against self-
     incrimination generally to prohibit prosecutors from referencing a
     defendant’s silence as substantive evidence of guilt, this Court
     has also concluded that the right against self-incrimination is not
     burdened when the reference to silence is “circumspect” and
     does not “create an inference of an admission of guilt.”
     [Commonwealth v.] DiNicola, 866 A.2d [329,] 337 [(Pa.
     2005)]. As noted above, “[e]ven an explicit reference to silence
     is not reversible error where it occurs in a context not likely to
     suggest to the jury that silence is the equivalent of a tacit
     admission of guilt.” See id. (quoting [Commonwealth v.]
     Whitney, 708 A.2d [471,] 478 [(Pa. 1998)]).

Adams, 104 A.3d at 517.

3
  In relevant part, the United States Constitution decrees that “No person …
shall be compelled in any criminal case to be a witness against himself.”
U.S. CONST. Amend. V. The Pennsylvania Constitution dictates that the
accused “cannot be compelled to give evidence against himself[.]” PA.
CONST. art. 1, § 9.


                                 -9-
J-A29031-16


      Pennsylvania Courts “have consistently regarded testimony about a

defendant’s silence as having an extremely high potential for prejudice.”

Commonwealth v. Clark, 802 A.2d 658, 661 (Pa. Super. 2002); see also

Commonwealth v. Clark, 626 A.2d 154, 158 (Pa. 1993) (recognizing that

“an impermissible reference to the accused’s post-arrest silence is innately

prejudicial.”).   Thus, “[a]n impermissible reference to an accused’s post-

arrest silence constitutes reversible error unless shown to be harmless[.]” 4

Commonwealth v. Costa, 742 A.2d 1076, 1077 (Pa. 1999).

      Upon our review of the record, we cannot conclude that the error was

harmless.    At the suppression hearing, the Commonwealth and defense

counsel agreed that



4
  “An error is harmless if it could not have contributed to the verdict, or
stated conversely, an error cannot be harmless if there is a reasonable
possibility the error might have contributed to the conviction.”
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015).               Our
Supreme Court has found harmless error where
      (1) the error did not prejudice the defendant or the prejudice
      was de minimis;

      (2) the erroneously admitted evidence was merely cumulative of
      other untainted evidence which was substantially similar to the
      erroneously admitted evidence; or

      (3) the properly admitted and uncontradicted evidence of guilt
      was so overwhelming and the prejudicial effect of the error was
      so insignificant by comparison that the error could not have
      contributed to the verdict.

Id. at 716 (citations omitted). The Commonwealth has the burden of
proving harmless error beyond a reasonable doubt. Id.



                                 - 10 -
J-A29031-16


      upon questioning by the police after his arrest, [Williams]
      invoked his right to remain silent. [The police officers] then told
      him, “You are going to the jail.” He expressed confusion about
      why. They again said, “Well, you are charged with a homicide.”
      [Williams] said, “No, I don’t do that. I’m a drug dealer.”

      Then they ask[ed] [Williams], “Well, what about the surveillance
      video?” He said, “I’m not saying anything else.”

N.T. (Suppression Hearing), 4/15/14, at 4-5.          The trial court denied

Williams’s Motion to suppress his statement, “I’m not saying anything else.”

Trial Court Order, 4/15/14.

      At trial, Detective Scott Evans (“Detective Evans”) testified that,

following Williams’s arrest, Williams was informed of his Miranda rights.

N.T., 11/20-21/14, at 92-93. Detective Evans testified as follows regarding

his questioning of Williams:

      Q. [The Commonwealth]: And you say you read [the Miranda
      warnings] to [Williams]. Do you read it word by word?

      A. [Detective Evans]: Yes, sir.

      Q. And do you ask him if he understands?

      A. Yes, I do.

      Q. And as you’re going through the form, did he indicate
      whether or not he understood what you were telling him?

      A. He indicated every single time that I asked him—and I asked
      him three times, “Do you understand this?” And all three times
      he responded, yes.

      Q. And there’s one last question, right?

      A. Yes.

      Q. And what was that question?


                                 - 11 -
J-A29031-16



      A. “Knowing these rights, are you willing to waive your rights
      and answer questions without the presence of a lawyer?”

      Q. And what did he say?

      A. No.

      Q. What did you do?

      A. I got up, and I was walking out of the room, and he said,
      “Can I ask you a question?” And I sat back down, and I said,
      “Sure.” And he said, “What happens now?” And I told him he
      was going to be processed on homicide charges. And he said—
      he asked me, “Well, what did I do?” And I started to explain to
      him the allegations, my understanding from what I read in the
      police reports, and that he shot and killed someone in the East
      Hills housing project in the City of Pittsburgh. And he said,
      “That’s not me. Check me out?” And I said, “Well, apparently
      there’s some video surveillance of the area where this incident
      occurred.” And he said, “Well, that’s it. I’m done. I’m done
      talking. I’m not saying anything else.”

      Q. And did you conclude the interview at that point?

      A. Yes, I did.

Id. at 93-94.

      The trial court deemed the above statement admissible, opining that

      [t]he statement at issue came on the heels of [Williams] denying
      his involvement in the homicide, and it was admitted to
      demonstrate the natural progression of the investigation and
      explain how the detectives’ interview with [Williams] concluded.
      Had it not been admitted, the jury would have been left with
      even more questions about what had transpired between the
      detectives and [Williams] during the interview. There would be
      virtually no context to explain why the interview ended after
      [Williams] had denied guilt by saying, “That’s not me. Check me
      out” after he was told that he was charged with a homicide….

Trial Court Opinion, 1/19/16, at 17.



                                 - 12 -
J-A29031-16


       However, upon review, the trial court’s view that the probative value

outweighed the potential prejudice is not supported in the record.     Police

obtained this statement after Williams’s arrest, and presumably at the

conclusion of its investigation.     When read in context, it is clear that

Williams’s final statement is a re-invocation of his constitutional privilege

against self-incrimination. Further, the statement could only be interpreted

as Williams’s recognition that video surveillance footage would incriminate

him.   The evidence was not de minimis, or cumulative of other, properly

admitted evidence.     See Poplawski, 130 A.3d at 716.           Finally, the

Commonwealth has failed to prove, beyond a reasonable doubt, that the

evidence did not contribute to the verdict. See Commonwealth v. Noel,

104 A.3d 1156, 1172 (Pa. 2014) (stating that      “the judgment of sentence

will be affirmed in spite of the error only where the reviewing court

concludes beyond a reasonable doubt that the error did not contribute to the

verdict.”).

       Here, there was no eyewitness to the shooting. Wright testified that

earlier that day, she saw that J-Zombie and Judd also possessed firearms.

N.T., 11/18-20/14, at 20-21, 230. Wright additionally testified that she did

not see Williams with a firearm as he approached her front door, or when he

was talking to Lyman prior to the shooting. Id. at 232. Lane testified that

immediately after the shooting, she saw only Lyman in the hallway outside

of her apartment. N.T., 11/20-21/14, at 181. Lane further stated that she



                                   - 13 -
J-A29031-16


did not see Williams inside of the apartment building or in the hallway prior

to the shooting.     Id. at 171.     Although the Commonwealth presented

circumstantial evidence of Williams’s guilt, we cannot conclude, beyond a

reasonable doubt that the admission of Williams’s statement did not

contribute to the verdict. See Noel, 104 A.3d at 1172.   Because we cannot

conclude that the error in admitting Williams’s statement was harmless, we

are constrained to vacate the judgment of sentence, and remand for a new

trial.

         Judgment of sentence vacated.      Case remanded for a new trial.

Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2017




                                   - 14 -
                                                                                                                      Circulated    12/27/2016    04:03 PM




                                     IN THE COURT OF COMMON PLEAS OF ALLEGHENY                                                       COUNTY.
                                                      PENNSYLVANIA


            COivH,/!ONWEALTH OF PENNSYLVANLA.,                                     CR!M!NAL             D!V!StON


                                   vs.                                             CC No.: 2013-12281
                                                                                           2014-14922



            RA YSHAWN WILLIAMS,

                                  Defendant.


                                                          OPINIO_N

                        This is a direct appeal from the judgment of sentence                            entered on February 25,

           ?O 15. follnvv1ng      the Defendant's     convictions          for First Degree              Murder and th?in~J a Person

           Not to Possc~.;s or Use a Firearm              Tflt':l   Oefenciant        was originally charged at the

           information filed at CC# 2013-1228              l with Criminal Homicide ( 18 Pa.C. S.A. 2501 (a)) and

           Person i'Jot to Possess, Use a Firearm ( 18 Pa.C.S . .A.. 6 i 05(a)( 1 )).                                The Person Not to

           f:.)ossess     charge was severed.       at lhe Defenclc.rnt's           request,        prior     to trial and proceeded

           forward at CCH 2014-14922               The Horrucide charqe was tried to a jury betvveen

          Novernt . er 18, 2014 and November :?O, 2014,                      ,vith a non-jury            trial occurring

          simultaneously on the severed Person not to Possess or Use a Firearm charge.                                                       On

          November 25, 2014, the jury convicted the Defendant of First Degree Murder, and this

          court rouno the Defendant guilty of tt1e firearm offense.                             (Jury Trial Transcript

                        '
          I, t 1ercinaiter   "Tf
                              I ") , \;' 01un1e
                                           ' · '11
                                                , , N oven1oer
                                                           -·       '-·~' . .::.~014 , p;J.· 12"'o, 1'"))
                                                                    ')r·                              ,..-:,d .    0.,n,   c::: eoruary
                                                                                                                                 '        2. 5,

          ;?O 15,   the Defendant        was sentencecJ     to lif;:; imprisonment              without           parole on the murder

          charge at CC# 2013-12281,              and he received a concurrent sentence of five (5) to ten




'!   ::
    ( 10) years of incarceration for being a Person Not to Possess at CC# 2014-14922. On

    February 25, 2015. the Defendant filed a Post-Ssntonca             Motion. which was denied on

    February 27, 2015.        This timely appeal touowed.




                On October 26, 2015, the Defendant filed his Concise Statement of Errors to be
                                                            1
    Complained of on Appeal ("Concise Statement"),              raising the following seven (7) issues

    for review:


            I.        The trial court erred in denying ~Ar. Williams' Motion to Suppress a
                      statement he made to police/detectives during a custodial
                      interrogation on .t\ugust 5, 2013. Following his arrest, Mr. Williams
                      invoked his Miranda rights and declined to speak to detectives
                     without an attorney present. Shortly thereafter Mr. '1\/illiams
                     expressed confusion over n-ie nature of his charges, at which point
                     a detective referenced video survenlance footage that captured the
                     incident. ,~.! that point, Mr. Wiiliams allegedly stated, "That's it. I'm
                     done talking." In Hie Omnibus Pretriaf Motion, trial counsel
                     specifically asserted that this statement was obtained in violation of
                     Mr. Williams right to remain silent as proviced by the 51t1 and s1n
                     a.nendments of the United States Constitution and Article       I §9 of
                     tTio PennsytvaniA Consntunon  and shoufci therefor(~ be
                      suoprcssco. Apart from lhe Assistant District Attorney's assertions
                      to the contrary, the Ccrnmonwealtn failed to present any evidence
                     to prove that this statement was constitutionally obtained. Thus,
                     tt,e Commonwealth tailed to meet its burden and the statement at
                     issue should have been suppressed

          11.          Had the Commonwealth presented evidence at the suppression
                      hearing bearing on the constitutionality of Mr. Wifliams' statement
                      (see issue "I"), the trial court nonetheless erred in denying Mr.
                      \Niliiams' Motion to Suppress this statement. Mr. Williams initially
                      invoked his Miranda rights foilowing his arrest on August 5, 2013,
                     and declined to speak with ofticers/detcctlves. Since detectives
                     continued to question Mi. Williams concerning a topic that was
                     likely to elicit an incriminating response, the statement at issue was

I
    The Defendant received three (J) extensions of time to fiie his Concise Statement
because he was awaiting          transcripts.
              obtained in violation of Mr. Wllliarns' rights under the 5th and 61h
              amendments or the United States Constitution and Article l, Section
I             9 of the Pennsylvania Constitution.

     Ill.    Even if suppression was not warranted, the trial court abused its
             discretion by allowing Mr. Wiiiiarns' statement to detectives, 'That's
             it, I'm done talking." Under Pa.R.E. 403, the probative value of this
             evidence was outvveighed by the danger of unfair prejudice to Mr.
             Williams. In ma!<ing this statement, Mr. Williams merely invoked his
             constitutional right to remain si!ent. Yet, by hearing that Mr.
             Williarns refused to speak to police when confronted with the issue
             of video surveillance footage, the jury may have considered this
             evidence of Mr. William's guilt.

     IV.      The trial court erred in denying Mr. Williams' motion to suppress
              Tayla Wright's pretrial identification and subsequent in-court
              identifications of Rayshawn Williams, which violated Mr. 'vVilliams'
              due process rights under the U.S. and Pennsylvania Constitutions.
              On July 31, 201.3, police showed Tayla Wright a police "gang book"
              containing numerous mugshots that were organized by gang
              affiliation and neighborhood. Additionally, the book displayed the
             names of the individuals depicted in the mugshots. The
             Commomvoa!th failed to prove that this id12ntificaiion procedure did
             not violate Mr. WiHiarns' due process rights. Based on the content
             and organization of tho "gang book," Tayla Wright's pretrial
             identification of Mr. Williams was the product of an unduly
             suggestive identification procedure. Moreover, the Commonwealth
            failecJ to present any evidence at the suppression hearing to
            den:onslrcite that Ms Wright's pretrial and in-court identifications of
            Mr. Wi!iiams vvere independently reliable under the factors set forth
            by the U.S. and Pennsylvarua Supreme Courts. Without any
            evidence to support H1e independent reliability of Ms. V'Jright's
            identifications, her pretrial and subsequent in-court identifications of
            Mr. 'vV!IHarnsshould have been suppressed.

    v.       The trial court abused its discretion by ailowing Detective Hal Bolin
             to impeach Natwauna Lane with statements she allegedly made
             during an interview a coup!e days earlier. Specifically, after Ms.
             Lane denied observing Mr. Williams in her apartment buildino on
             the day of the shootinq, Detective Bolin testified that Ms. Lane had
             told him that she saw Mr. Williams talking to the victim in the
            hallway shortly before the shooting. The Commonwealth
            acknowledged that these statements were strictly being offered for
            impeachment purposes, not as substantive evidence. However,
            the statements should have been prohibited under Pa.R.E. 403
            since the probative value of this evidence was outweighed by the
                                     danger of unfair prejudice. Here, the statements at issue bore
                                     directiy on the only issue at trial: the identity of the shooter. Thus,
                                    there was a great risk ihal, despite a cautionary instruction, th& jury
                                    would consider Ms. Lane's alieged statements to Detective Bolin as
                                    substantive evidence of Mr. Wiliiams' guilt.

                          VI.     Tile trial court abused its discretion in denying Mr. Williams' post
                                  sentence motion that the verdict was against the weight of the
                                  evidence. While the Commonwealth's primary witness, Tayla
                                  Wright, stated that Mr. VVilliams was present at the time of the
                                  shooting, her testimony was entireiy inconsistent and contradictory,
                                  and therefore unworthy of belief. Although Ms. Wright identified Mr.
                                  Williams as the parson who appeared to be shooting into the
                                  apartment building, Ms. Wright also stated that Rayshawn W1!1iams-
                                  whom she identified as wearino red -· had already left the
                                  building/area some time before the shooting. See N.T., Vol. I,
                                  11/18-20/14. p. 180. Ms. Wright's testimony was critical to the
                                  Commonwealth's case as she was the only[) who testified to
                                 personally observing Mr. Williams at her apartment building with the
                                 victim shortly before the incident. Additionally, while Narwauna
!""".-,,.·.' ·
  •,.'<
  .....
  -:-;~;
t:!:1                            Lane testified that the individual in tile surveillance video "looks like
                                 nay Hay," she stated that sl1e never saw Mr. Williams at tt1e
                                 apartment building on the day of the shooting. As such, the
                                 Cornmonwe alth's evidence was so unreliable, incredible, and
                                 contradictory   that the jury's guiity verdict should shock the
                                 conscience    of this Honorable Court.

                        Vil.     Tl,e trial court abused its discretion by allowinfl Detective Lutton to
                                 testify to Tayta \t'./right's hearsay statements shortly after the
                                 shooting. i'J.T., Vol. I, pp. 291-295.                                                               Wl1iie the Court admitted this
                                 testimony as prior consistent statements, such testimony was
                                inadmissible under Pa.R.E. 613(c) as Detective Lutton - not Tayla
                                Wrigt1t - \VJS the witness who 1,2s!ifi,c"d to the prior consistent
                                    .. o······..-::1,n·;'"'l".l.(!!.
                                j··t·'t(."                       "' ..). -,~~-11--    ..-lo/.,....~,      ..... ) ~oll_._+ . ..... J /ILf-h.('.l cooos.no
                                                                          r r u.ro , \..Jc...1t;;:1,.:-:t..       v ·_,,0c,          \ 11,..:..                       . . . . . . ~. y II\ VJ.JS ntJt •
                                                                                                                                                  ~..,,....:,.)~,= 18 t-Jc.l,             1
                                given an opportunity to cross-examine tr,(': witness about tht:?
                                statements. Pa.R.E. 613(c). Moreover. this constituted hearsay
                                under Pa.R.E. 801. Since no exception to the hearsay rules
                                applied, the statements were Inadmissible under Pa.R.E. 802.

                                (Concise Statement, pp. 3-6).




                    The Defenc!ant's            all2gaiions                  of error are without merit.                                       For the reasons                          that

                 follow, the verdicts and sentences shou!d be upheld.
                    t.       FACTUAL BAC~GRQ..illiQ.


                         On July 31. 2013, at approximately 6:20 p.rn., Derrick Lyman, also known as
                                                                                                              ''
               "Ricky," was murdered in the hailway of his apartment buiiding minutes 1atter he was
                                                                                                              !

               seen and heard having a conversation with the Defendant outside of                       hii apartment.
                                                                                                              I
I    "'        (Jury Trial Transcript, Volume !, ("TT 1 ") 11/18/14-11/20/14, pp. 139, 146-49, 175-76,
                                                                                                              I
                                                                                                              i
               178-79, 189). Ricky resided with his giilfriend, Tayla Wright, In Apartment F of the
                                                                                                              I
               building located at 2103 Park Hill Drive.               (TT 1, pp. 139, 145, 189, 243).!




                                                                                                          !
                         At approximately 5:51 p.m. on the day of his murder, Ms. Wright was in her
                                                                                                          '

               apartment with the victim, Ricky, and her dauqhter, Tyra. As she was looking through

               her window, which faced the building's front entrance,                 Ms. Wright savv the Defendant

               aoproacn tile apartment              buiiding.   (Tr 1, pp. 150.. 51, 175-177, r.:02-03) .. Ms. 1/v'right

               immediately recognized the Defendant as "Ray Ray" -- someone she knew from th1:-1

               r·{ornev·-10(::,c! nei[!hb(Hh()<)d     where she grt~vv up. (TT ·1. pp. 147. 209, 267). /\!though t\-1s.

               Wright dio not know the Defendant's rear name or know l1irn on a personal level. she

               knew him "throuqh friends Gnd farnily members." and she "knew him to see him."                         (TT t ,

               pp. 14 7, 251-52).




                         Shortiy after Ms. Wright saw the Defendant approach the building, she heard

               someone banging "real[!y] loud and real[ly] hard" on her door, which made her feel

               "uncomfortable."        (T] .. 1, pp. 146-48. 150, 154, 209, 226, 243). She asked who was at

         ·,:
               th(·: ccor. and she heard someone say, "it's I] Ray Hay." (TT 1, pp. 147, 226). Ms.
..        ;
i.:.:.


                                                                         r:
                                                                         ,J
I-
,
          Wrigh: opened                                                    her door,                        saw the Def1-rndan!,                                       and asked him why he was banging on her


I         door. (TI 1, p. i48). The Defendant recognized Ms Wright ;1nd looked shocked to see

          her. (TT 1. pp. 148, 244, 267).                                                                                             He told her that he was una . .vare that she lived at that

I         apartment.                                      (TT 1. pp. 148, 227, 267).                                                                 Ms. Wright asked the Defendant who he was

          looking tor, and the Defendant                                                                                         told her that he came to the apartment because he was

          "looking                             for sorne answers."                                                       (TT 1, pp. 148,                              234, 243, 267).                                    At that point,                                    the victim,

          flicky, walked out into ths hallway to speak with the Defendant.                                                                                                                                                        (TT 1, pp. 148 50,

          152).




                                       rvls. Wrigt1t r,ec:1rd the Defendant                                                                           ask Ricky "what is going on" and whether Ricky



                                                                    incident                                                     1J
      ..,.r:·:: '., i· r I:;- ~J,.., to
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     between Ricky and three (3) men known as "Tay Tay," "Zombie,"                                                                                                                                                                and "Judd."                                     (TT 1, pp.

          i ,H, 148-49,                                      188,                 190-91,                    199). Ricky, Tay Tay, Zombie,                                                                     and Judd were in the hallway

     out;icie cf Ms. VVright's                                                                      apartment at around                                         4 p.m. that day, and they wf::re overheard

     hnving                           ,1       loud verbal altercation                                                           about "someone's                                   bmtl1e;· getting robbed."                                                               (TT 1, pp.

        a· 1
     ],;U,                    I
                            'tit,
                                           J    • ---
                                                ]/j(j,                gn "' '1(.
                                                                    1.~-..1-::;1,t:    ""' ,-,,
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                                                                                                                               .. c:.-1'-t/,     I 1.,,,,,
                                                                                                                                             \'-Ju,y                     T---1
                                                                                                                                                                           11la1                 ·,·.-----·
                                                                                                                                                                                                 l1a11:,C1ip11           '
                                                                                                                                                                                                                              VU.te.\') 1u1··-1- ")
                                                                                                                                                                                                                              Vol                r.:,pp.                                                   ',·n
                                                                                                                                                                                                                                                                                                           1::Jo-


     66).              Tay Tay and Judd subsequently                                                                                          went into the apartment of their friend "Nay Nay"

     (N3twauna                                    Lane), whlte Hicky and Zombie walked up the street to Zombie's house.                                                                                                                                                                                         (TT

     1, pp                  144·45,                                190, 203-05, 223, 225, 233).                                                                Ricky had returned to the apartment                                                                                               he

     sh,.r2d                      with Ms. Wright shortly before                                                                              the Defendant                               started                banging                 on the apartment

     door                 1.., -r·r1 , p.                          -1 'HJ
                                                                       ,,. .•        _,, . .,-. ·34 •
                                                                                     ?1·~                        238)            .
I                                 Ms. Wright heard Ricky explain to the Defendant                                                                         that he did not have a problem


I      with Tay Tay or Judd, and he told the Defendant that "sornothinq                                                                                                             happened earlier with

       Zombie,"                      Ricky's friend                        (TT 1, pp. 148 ·50, 190. 222, 267).                                                        Ms. Wright was preparing

       to walk out into the hallway                                                with Ricky and                     tr,e       Defendant,                    but, as she looked                                      outside of

      her door, she saw Tay Tay and Judd standing with the Defendant.                                                                                                                   (TT 1, pp. 149-50,

       152-53,                     178, 229-30,                    235).           Ms. Wright also saw Nay Nay (Ms. Lane) standing in the

      hallway                      listening           to the conversation.                            (TT 1, pp. 149, 152, 178, 229, 235).                                                                   Ms. Wright

      knew that Ms. Lane was her next-door                                                                 neighbor,                 but she did not know her personally.

     (TT 1. pp. 145, 192, 195).




                            tv1s. Wright returned to h,2r apartment and shut the door. However,                                                                                                         she then

    decided                       to take her daughter                             across ti·ie street to Ms. Wright's mother's                                                                    house because

    she had a "funny"                                    feeling about                the situation                    and feit uncomfortable.                                           (TT 1, pp.                        150,



         ")' v. q,r)..,
    O_.311...             ,.._f
                          ,,.      men
                                     , ,,   (H'   ,   h.:.:·r· ''.!'·"\/~., out
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                                                                                                                    •    .._.    ,   ·,   -,,,,.~)>)   D,·,·
                                                                                                                                                       ,     r·kv~,   '111L·,
                                                                                                                                                                         , •::...   victim
                                                                                                                                                                                       . .,   1.
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                                                                                                                                                                                                     tvc1:·
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                                                                                                                                                                                                                              ,:.      ,1
                                                                                                                                                                                                                                            .. io:J




    JudcJ as Ms. Wright                                     left the building                  witn her daughter.                                      Ms. Wright told Hicxy to go back

    into their apartment                                    because he did not "have anything                                                          to do with what happened"

    earlier               in the day witn Zombie.                                    (TT 1, pp. 153-54, 209).                                           Despite Ms. Wright's                                       request,

    n,cky                 did not go back into tr1Ei apartment.                                                 (TT ·1, p. 154) .




                                                                                                                 .,
                                                                                                                 i
I..                   On her ·Nay out of the building,                                               Ms. Wright saw a friend who agreed to walk her

        daughter across the stroe! to Ms. Wright's mother's house.                                                                                       (TI 1, p. 153). Ms. Vvright

        stopped in tl1e parking lot in front of the building and spoke with a woman named

        Brittany,           who also had just exited the building.                                                         (TT 1, pp. 154-57,                      179, 247).      As they


I.
 .      were tatking                  in the parking                          lot, the women saw Tay Tay and Judd leave the building,                                                         get

        into a vehicle                   that had just pulled up, and drive avvay.                                                       (TT 1, pp. 155-56); (TT 2, p. 182).

       At this point, Ms. Wright decided to move her vehicle from the front to the back of the

       building because she was worried about something happening                                                                                            to her car.       (TT 1, pp.

       156-5/, 241-42).




                      rv1s. Wright was V':afking                                     back towards                  tr;e t)iJilcLng aftei moving                           her car when

      she saw the Defendant                                      run past her and heard two (2) girls scream at the sight of him.

      (TT 1. pp. 157-58,                             185).           fv1s. Wright heard the Defendant ye!I to the two gir!s,                                                      "homeys,

      i'r:1
                            .
              not going to snoot you. ., 1·---·
                                            I 1
                                                · 1 • pp .. t :::i-~...,-::i~
                                                                           ,..0
                                                                                                                   •.
                                                                                                                        18- o, ,:-:t1c
                                                                                                                               . . ,_,.\ 1.       Tl
                                                                                                                                                  •    ,1e t\NO
                                                                                                                                                                   ,
                                                                                                                                                                   1,2) girls appeared

      frightened and were rnoving out of the Defendant's                                                                         way.         (TT 1, p. i58).               Ms. \//right

             th
      Sd'.\/ ~;   al· r tf·..   1e
                                     n    ,r ··,·
                                     !.JS,t;'.H.J..: -•-,,1t
                                                         ... ,   ·\.I(.~(,,
                                                                  ,··i·-      ··a··· -11y:11v·=-a d- ..,,
                                                                                                     u,ctl__. ,K'~t.tlt
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                                                                                                                           lll
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      hcodie pulied up a "litHe bit over his face."                                                       err 1,           pp. 158-59,                 182, H34-85,          187-88).      She

      was able to recognize                                  the Defendant                     because             his hoocie was falling                           off of his face as

      he was running.                          (TT I, pp. 159,                        185).




                  !V1s. Wri;Jht did not hear or see the actual st,ooting take place because                                                                                     she ,;,;as

      moving her vehicle: and the music in her car nad been playing at a loucl volume.                                                                                              (TT 1,
               p. 160).        However, as the Defendant ran past her with the gun, Ms. \Nright heard her

               mother screaming at her to get inside of the building because a sheeting had just

               occurred         (TT 1, p. 160).    At this point, everything "clicked," and Ms. 'Wright reared !hat

               something had happened to Ricl,y.                (TT 1, p. 160}.    She ran back into her apartment

I »JI
         .
               building and saw Ricky lying on the floor near Ms. Lane's door, unresponsive.                                  (TT 1,

               pp. 160-61, 187).         Paramedics eventually arrived and transported                Ricky to Presbyterian

               Hospital        (TT 1, pp. 162-63).     While at the hospital with Ricky's family, Ms. Wright


I   .
    .         learned      that Ricky had died after sustaining           multipk~ gunshot wounds        to      his trunk and

              forearm.         (TI 1, pp. 51-62, i63).




                         \;\lili!e stil1 at 1r·1e hospital, Ms Wright spoke with Detective Harry Lutton                      and told
f!:::~
tJ
ED            r1irn thal   a   person named Hay Ray shot Hicky. (TT ·1, pp. 164-65,               269, 295).           She

~             aJreed to accompany            the detectives     to police headquarters     in order to identify              the
i,
             she conf:rmerJ to the officers that she wou:c b,'? able to identify               Hay Fiay if she saw his

             face again.        (TT 1, pp. 165, 170,     1   72, 295).   Ms. Wright was shown a binder fillecl v11it11

             photographs         and was asked 1f she recognized           the shooter in any of the pictures.                  (TT 1,

             pp. 166-67,        170, 297)     While lookinq at the pictures in the book,        she recognized                the

             Defendant's         face and identified   him as the shooter.        (TT 1 pp 167 171 ?5,1·t
                                                                                       )   '      1      I   -     I
                                                                                                                       ?t::A
                                                                                                                         V •1
                                                                                                                       .._      I
                                                                                                                                    ?OR.
                                                                                                                                    •-   .._, ..,,J




             300).   The Defendant          was appreriended      five (5) days later, after initiaily attempting to

             fiee from     tile officers who were executing his arrest warrant.            (TI 2), pp. 78, 81-84,                   86,

             88).
       I.           IL


                          l\. This court did not abuse Its discretion In admitting the Defendant'a
                              statements into evidence because they were Iawtully obtained and their
                              probative value was not outweighed by the danger of unfair prejudice
                                  under Pa. R. E. 403.


                          The Defendant's first three (3) allegations of error seek to attack the admission of

             statements that he rnade after he was taken into custody.                              The Defendant's first

             contention-·             that the Commonwealth            failed to present any evidence            to prove that his

             statements            were constitutionally       obtained    -· should be deemed              waived on appeal.

             (Concise            Sta!t)ment,      pp. 3-4).




                         The Defendant             ii!ed a motion    on April 2, 2014       seeking,   arnonq other      things,     to

            suppre as statements he rnaco to detectives on Auqust S, ?01 J, subsequent                                    to his

            arrest.       (Pretrial      Motion,     filed on 4/2/14, pp. 10-12).          In his motion,    the Defendant         stated

            Piat,     after he was arrested. he invoked                his Mirende rights and "declined            lo speak with

            officers without an attorney                 present."    (kL at     1 O).   However, in the motion, !he Oefenclan!

            immediately             conceded lhc1t he rein1tiated the conversation                with the detectives.       {Id. at

            1 O)      Wlien the Def0ndant              was informed      that he was going to be charged            with a

            homicide.        he remarked           that he was Just a cJrug dealer and that he did not do that kind of

            Uw1g.        (id )     The detectives        then asked the Defendant about the surveillance                  system at

            the apartment             buitding,    at which point the Defendant            said, "That's it. I'm done talkinq."

            (LdJ
;·.·:,;
,._.-,:
•:-:-.'i:
l,;'}




                                                                          ',v"
                           On April 15, 2014, argument              was held on the motion.             Neither     party ever

            indicated an intention, desire or n..;ed to present testimony or anything ether than !cga!

            argument           on the issue of whether tile Defendant's statements                        were admissible.         (Pretrial

            Motion ~h-=:aring,         4/15/14,       pp. 4-12).     In support of the Commonwealth's                 argument,      the

            Ass.stan:          District Attorney provided the following recitation of what transpired                           on the day

tr.··.·     of the Defendant's             arrest:
1/l
WJ
                           [The Defendant] was informed of his Miranda rights, as it were. He
                          expressed the desire not to talk with the detectives They got up to leave
                          and 11e said, "Can I ask you a question?" They said, "Okay." And he says,
                          "What is this about?" So they explained, "You are being ctiarged with a
                          homicide,"   at which point he says, "I'm not into that, I'm a drug dealer.
                          Look at my record." (The detectives] said, "What about the surveillance
                          video?" That's when [the Defendant] says again, "That's it, I'm done
                          talking."

           (Pielri.cil      fv1oticn Hearing,        4i15/14, p. 6).


                          Hie Oefen<1c1nt     never objected         to or otherwise disputed           the factual     accuracy     of

           tr,e ConHnonwe,,!ih':,             position as to his statements               or how they were obtained,            and it

          ;/,.::1'.j   clear that the .siar·ties     vvere in ngr•::e1T18nt        as to the c.rcumstancas         surroundinn ~ tt~e

          interview            (Pretrial   Motion Hearing, 4/15/14,                pp. 5·7).   The Defendant conceded             that he

          r9initiatecf        c:onversation     vvith the detectives . so the sole issue at the hearing was

          whethei           the jury shouid hear the statement,                   "That's it, I'm done talking."      (Pretrial Motion

          Hearing,          4/15/14, pp. 5-7).         The parties agreed, at least implicitly,            that an evidentiary

          hearing was unnecessary since neither party disputed                                 the facts surrounding      the

          Dcfondan!'s statements.                    The Defendant never requested an opportunity                     to question the

          detectives          as to how his statements             were obta.ned,         and he never raised an objection as

          to U1e absence            of testimony       on the issue.     Although         the Defendant     had two (2) different



                                                                          ,   '
                                                                          '
         attorneys       during the course cf his representation,             neither one - Mr. Aaron Sontz nor Ms.

         Carrie Allman        -- ever took issue with the fact that only argument was prosontsd in

         support       of the motion    "It is axiomatic that only issues raised by specific objection                in the

         trial court may be addressed on appeal." Commonweajth v. _Wi!lis, 552 A2d 682, 690

         (Pa. Super. 1988). Given the Defendant's lack of a specific objection before this court

      on this issue, the Defendant's rirsl issue should be deemed waived.
I-
.




                     The Defendant's     second allegation of error is that this court erred by denying his

      motion to suppress the statement "That is. I'm done talking," because the statement

      "was obtained in vioiation           of his constitutional       rights.''   (Concise   Statement, p. 4 ).     This

      contention is without merit.             It is weu-estabfished       that an appellate    court's "standard     of

      review         in a.ddrr:~ssing a challenge to a trial court's clenial of a suppression            motion is

     limited         to determining    whether the tactual iindings are supported by the record and

     ·./\.ihsthcr     the !e~Jdl conclusions     drawn from those facts are correct." Ccmn1on_'-/./CC1f_ttt_Y:

     Q~J~:'.'.3CJ_;?, SGO A 2cJ 102, 112 (Pa. 200<1} (citation omitted). "Where the record supports

     ihe factu,~l        findings of the iria! court, [the revievving court is} bound bv those facts and

     may reverse only if the legal conclusions                drawn therefrom are in error."            Commomvealt.r1

     v    vvells. 916 A2d 1192, 1194-95 (Pa. Super. 2007).




                    A.s an initial matter, the Defendant's characterization of how the events transpired

     is inaccurate         and misleading.      The Defendant       contends       that the statement    a! issue was

     unlc1wful!y obtained because, alter he "initially u.vokec his l'viiranda riqhts." the


                                                               !2
I
.
    ~
         "detectives continued to question"                  him ''concerning          a topic that was likely to elicit an

         incriminating       response.~        (Concise Statement. p. 4). However. this case docs not

         involve a scenario where the Defendant                     invoked his Miranda rights but was

         nevenheless         hounded by detectives              to abandon       riis rigr1ts and talk.         To the contrary, tna

         detectives      in tnis case completely            ceased all questioning               after the Defendant expressed

         his initial desire not to speak with them, and they never attempted                                 to pressure him into

         talking after his initial invocation. The detectives                    immediately          halted the conversation

         and wore preparing          to leave the interview           room when the Defendant                   stopped them and

         inquired     whether Ile could            ask them a question.         (Pretrial Motion Hearing,               4/15/14, pp.

        5 6)     The DefE-Jndant          asked,     "What is this about," and the detectives explained                      that he

        was being charged with a homicide.                      (Let at   6). The Defendant               then stated    "I'm not into

        that,   I'm a diug dealer.          Look a! rny record."          (ld. at 4-6).         The detectives      followed up his

        assertion      with ihe question,           "what about the surveillance                video."    It was at this point that

        the Defendant saicl "That's                it l'rn done talkinq."     (!.s:L   at 6).




                    "[/'.\] suppression     court reviewing       a. statement         made after thi3 defendant's           initial

        invocation      of the right to remain silent must recognize as pivotal Hie purpose tor whicn

        t11e renc~wed      interrogation      was conducted and the circumstances                         under which it

        occurred      "Common,··:calth         v. Harris. 972 A.2d 1196,               1203(Pa. Super.         2009).

        Specifically,


                judicial inquiry in each instance should focus on the circumstances
                attending the defendant's invocation of his[] right to silence, as well as the
                circumstances    attending any further attempt at questioning.  Hence, the
                test should ask wbetber the ottici«! purpose of resurning quastioning was
00
lM
                    to entice the arrestee to abandon his right to remain silent, or simply to
                    find out whether he or she had a change of mind. Only then can it be
                    concluded whether, in faci, th..-: defendant's ,;right to cut off quostionino"
                    was "scrupulously honored."

I.  .     H~rris, supra. at 1203 (quoting Commonw~_?lth                  v. Her..£Y, 599 A.2d 1321, 1325 (Pa .

          Super. 1991 )) (emphasis added). Thus, the critical inquiry in these situations is

          "whether the police fully respected [the defendant'sJ right to remain silent.                 or whether

          [H1e defendant] later waived that right." .ti.?.I!..i.~, supra, at 1204.


m
I
                    It is clear that the Defendant's statement 'Tm done talking" was not the product of

         any police-initiated      questioning.         His statement   was !he direct product of his own,

         voluntary, un-cocrced. and unprompted decision                  to reinit,ate conversation v,;ith tile

         detectives.     The "law is vve1!-sr:~ttl(sd     that a detcncant who requests counsel at any time

         during a custodial      interview 'is not subject to further interrogation          by the authorities untii

         counsel     has been made available            to him, unless the accused himself initiates further

         cornmunicetiott, exchanges, or corwersetions with the potice." Commorw,;er;!th v.

        f_Q.~_fl._C~t,. 903 A2d i 139, 1150 (Pa. 2006) (quoting !;_9w9_.!:Q~ .. Y.c_!.\[i?.QD?, 45·1 U.S. 477,




                    The detectives     "scrupulously       nonorec" his initial invocation   of his right to rema.n

        silent.    In fact. they cut off all questioning       and were wa:king out of the room         It was only

        after the detectives     began exiting      !he room that the Defendant himself stopped them.

        Tno circumstances        surrounding      the interaction demonstrate that ihe "orticial       purpose"
~
Mi
       the Defendant "had a change             of miner about speaking with them about !he incident after

      he reinitiated conversation.           After his iniiial invocation of ltAitc:1nda, the Delcndant

      expressed        his desire to reengage the detectives                and discuss       the circumstances

      surrounding       his arrest      His "I'm done talf<ingr. statement              was made after      he reinitiated

      the conversation        without     any police prompting.            Thus, this is not a case in which the

      detectives uf ailed to honor a decision to terminate questioning                        either by ref using to

      discontinue the interrogation           or by persisting         in repeated      efforts to change [the

      Ot~fendant's]      mind " Cqmrnonwe~)Jh v ... Mi.QQQ..Q[_lcl., 585 A.2d 1, 6 (Pa.                Super.       ·1990).

      Nor does this case involve a situation where,                    "from the moment [the detective]              initiated

      the conversation       with the [defendant],          [the detective]        was attempting     'to entice     the

      [defendant] to abandon his right to remain silent." .!:i~D.IY, supra, at 1325.




               Furthermore.      even if the question         about the surveillance          video   was likely to elicit

     an incnrmnaunq         response, the Defendant            at that point had t:iffectively        waived       his

     Miranda ri:.Jhts l)y changing         his mind about speaking to tile detectives                 without an

     attornev and re-inrti2,ting        conversation.       The Defendant expressed that he understood

     his rights.    which was clearlv       dernonstrateo         by his initial     and subsequent       invocations,

     and the dctecttves       had not even had an opportunity                  to leave the room before he

     questioned       them about why he was arrested.                  (Pretrial     Motion He arino, 4/15/ 14, pp. 4-

     6): (TT 2, pp. 92-93).        The Defendant also admittedly                   is no stranger   to the criminal

     justice system.      given his statement       that the detectives             should look at his criminal          record

     because       he is a cJrug dealer    and not a murderer.            (Pretrial     Motion Hearing,     4/15/14,       p. 6;




                                                                1/:,
            Accordinqly,   the totality of the circumstances           indicates   that tile Defendant

 knov,ing!y and voluntarily chose to waive his                 ,v1iranda rights aftGr his initial invocation.

 The (act that t1e changed his mind for a second time and decided                      to stop talking does

 not render his statement inadmissible under Miranda. See ~O(THnonvvearth v. Cohen,

 53 A.3d 882, 886-87 (Pa. Super. 2012); See also fdY!_ards, supra, at 1150-51. Since the

 Defendant prompted the officers into a conversation within seconds after his initial

 invocation, and since the same detectives were involved, the fact that the detectives did

 not re-f.;1irandize   him or have him till out another waiver form does not preclude a finding

of an effective     waiver    See CQ.!J.~n. supra, at 887; See also ·------------·-
                                                                    Commonwealth v.------
                                                                                     Baez, 21

/\.3d 12FJO, t 286 (Pa. Super. 2011 ).                Because the Defendant's voluntary statements

were not obtained in violation of rv1iranda, this court did not err by denying his motion to

suppress.




        1 he Defendant's      tr,irf.i a:legation      of error is that this court erred by admitting his

statement "That's      it. I'm done tatkinq" because           it violated rule Pa. R. E. 403.    (Concise

Staternenl, p 4)       The court notes that the "slandc:'1rd of review with respect to

evidentiary     ruli,igs has been long established:            The trial court's rulings will not be

disturbed     absent an abuse of discretion."            Cornmo,Jwealth     v. Einhorn,   911 A.2d 960,

9f37 (Pa. Super. 2006)       "The trial court abuses its discretion if it misapplies the law or

[rules] in a manner lacking reason."          1.9-'   at 967 (internal quotations omitted).




                                                         1C
                                                          ,v
             Pursuant to Pa. R. E. 403, "[oJtherNiS(~ relevant evidence may be excluded if its

     probative value is outv1eighed     by its potential for prejudice." Cornrn0(0.Jye;Jjth~

     Ar_itido_c[QJ, 84 .,.·\.3d 736, 750 (Pa. Super. 2014). '"Unfair prejudice' means a tendency    to

     suqqast decision on an improper basis or to divert the jury's attention away f rorn its duty

     of weighing the evidence impartially." Cqmmonwealth "'._....fQ.Q...Q, 965 A.2d 1212, 1220

     (Pa. Super. 2009) (quoting Pa. R. E. 403).         The Defendant argues that the probative

     value of his statement was outweighed by the danger of unfair prejudice because "the


I    jury may have considered [the statement] as evidence of the Defendant's guilt."

     (Concise Statement, p. 4). This contention has no merit under these facts.




            The statement at issue came on the heels of the Defendant        denying his

    1rlVulvement .n the homicide,     and it was admitted to demonstrate the natural progression

    of the investigation and explain how the detectives' interview with the Defendant

    conciuded. (Pretrial Motion Haarinq, 4/15/14, pp. 5-6); (TT2, pp. 92-94).       Had 1t not been

    adrnitted,   the   Jury would have been left with even more questions about what had

    transp1,eci between the detecrives arid the Defendant during the interview.       There would

    tie viriuaily no context to explain why the mrorvrew ended after the Defendant denied

    guilt by saying "That's not me. Check me out" after he was told that he was charqed

    with a homicide        Significantly, the Commonwealth did not refer to or otherwise attempt

    to exploit the Defendant's statement     in its opening or closing arguments    (Trial

    Transcript, Vol 3 ("TT 3"), 11 /25/14, pp. 3"1-40, 45-68).    The court notes that "the mere

    revelation of silence coos not establish innate prejudice," and the admission of the

    Detend.c:;nt's statement was not unf airly prejudicial in this case because it simply showed


                                                   1?
      that the Defendant                   changed         his mind about wanting to speak with the detectives                        after

      he re1nitiated            the conversation.               Cornmonw~alth        v. Di~,J:cola, 8GG A.2d 329, 3:JG 37 (Pa.

      2005).
I
                  However.            even assurninq for the sake of argument                      that admission        of tr,is

     statement           constituted              error, any error was harmless            under these facts.         This court is

     aware of the law regarding                         the general impropriety           of referring    to a defendant's          post-

     arrest silence               See e.g.,          Comrnonwe alth v. Mitchel!, 839 A.2d 202, 212-13 (Pa. 2003);

     Commonwealth                   v. Costa, 742 A.2d 1076, 10T7-78 (Pa. 1999); Commonwealth
     --- ... ----------·--·-·"----~··----------                                                           ------·-----------·---v.
     J)111:1e[, 454 .ti.?d 537, 540 (Pa. 1982).                        The concern         that forms the basis for not

     diLJwu·,g reference                to pcst-anes1           silence direct!y re!ates to thf.', potential         danger that a




     However:          any concern                that the jury in this case wou!d construe               the Dclencant's

    statement           as a tacit admission of guilt was substantially,                       if not entirely,     diminished        by




    ~1 /8 \FJa.       1998) (''E.ven              an explicit   refereru:e   to silence     is not re'..·'Grsib!r~ error where        it

    occurs in a conte:d not i:ke:y to suggest to the ;ury that siience                                   rs the equivalent of a tacit

    admission of guilt")




                 Indeed.        defense counsel engaged                  in a lengtt1y      and ihorough explanation to the

    jU0J   that the Def endaru's decision to stop talking to the police was not at all a product of

    a ouiilv mind, but rather an intelligent                        and commendable deers.on to refrain from
  speaking      any further without an attorney.                       (TT 3, pp. 38-43).            Counsel   took a moment          to

  offer the iWY '·'f rec I ega: ' acv.
                                    l c' e    11
                                                   ano exp1a1nf1(1
                                                       I       I   '      '   tina: t ,n
                                                                                      ' d' 1vli...1ua,s
                                                                                               '.J
                                                                                                 I
                                                                                                        sih oui'd never spea,< t o lh, ,e
                                                                                                                               I




  police without representation, especially if they are innocent. because the police may

  "intentionally or unintentionally misconstrue" their statements.                                    (TI 3, pp. 39-41 ).

  Counsel made clear that the Defendant was asserting his innocence and that the only

 reason he stopped talking was because he decided to simply let the process play out.

 (TI 3. pp. 39-43).          Because counsel's closing argument eHectively removed any

 impression that the Defendant fell silent because he was guilty, and because the

 prosecution never made reference to the Defendant's statement                                         in its arguments to the

 jury, any error in allowing the statement is harmless because it is unlikely that the jury

 equatf.')ci the-; Defendant's       silence with an admission of guifl.                       See ~_QQl_f:rlQ!:lY.Vealth_v.

 i:S.~.LQ:l£'. 6:·'. A.3d 1038.   1052 (Pa.        Super      2013)       (explainin•J that harmless            ~?rror analysis

 arJ~)!ies to context      of pc:,st-arrest        silence).




          Additionally,      it is unlikely that tr1e Defendant's                   statement, when viewed aqainst

tt~e eviccnce as a whole , contrit•uled                    to the verdict.         The overan case against             the

Defendant       was strong.        The jury was presented                     with testimony from a witness             who saw

the victirn and the Defendant together minutes before the shooting and who saw the

Df::fendant running away from the scene of the shooting, moments after it occurred, with

a gun in his hand.          This witness identified the Defendant to the police on the same day

as the shooting by retcrencino his nickname, and she was adamant and unwaverino in

her positive identification         of the Defendant n1mugh a photo as the perpetrator.                                 She was

also adamant and urwvavering of her identification                             of the Defendanl as the perpetrator
   during trial.                    Addltionally, the jury viewed a videotape of the perpetrator fleeing the

          ·
   shooting             scene.                   an d a t ric.!1
                                                            iend •t..l ofI              tn' t:::
                                                                                            ~        1•-'"'             a, n indicated
                                                                                                     ..Jl:,l<:'1 ...I\.dant    UI o,t: J that
                                                                                                                                          I ld 'he
                                                                                                                                               I I p"'--on
                                                                                                                                                    c;I::, ·'nI t'-e
                                                                                                                                                           U     f I



   videotape                 looked iike the Defendant.                                                      11 is certainly possible                                      that the jury was also able

  to identify               the Defendant                              from the video.




                 Accordingly,                         for all the aforementioned                                                  reasons,                    the Defendant's t11ird contention

  is without merit.




               B. The Pretrial Identification Procedure was not unduly suggestive under
                  these facts, and Tayla \Nright's pretrial ident!Ylcatkm and her in-court
                  identification did not vioi~te NH:. Detend.anrs due process rbahts
                  because the Identification was made under circumstances      that were
                        suf"ficientfy-                      reliable,


              The Defendant's                                   tourth allegation                              of error, that this court erred by not

s1..1ppr-?.ssing                 ~~11s V\liighfs pretrial                                and in-court identification of the [)efendant                                                                    1     is \JVithout

r '''""'
  {1~.,/1!     [\c
              .--,~.)       ~•o.
                        .....
                        r1v~1...~\.J.   c,   'Jr11 (.4r"~-
                                             l      ·.1nr_· ,,:.i!·,tn
                                                              ...
                                                                ,!    t.·..,
                                                                     .....     court's
                                                                                  I..      l   ...   "standard
                                                                                                      ._,.    4'        ..... 1   'Jf
                                                                                                                                  '-.      . ,,;n.,,
                                                                                                                                        ',P.
                                                                                                                                           _.-.., ..... -~,   'f' addrcssino!..; a C;..,....,11,-,ng,.,
                                                                                                                                                                I   (.J.   ~ .. ,,~ ..... ),.)   L.l   11(.l    :1..:;1;   ... ( ...   to.J ,.a
                                                                                                                                                                                                                                       ;,




tri:,i court's              de nial of a suppression motion ts l!rr1ited to deterrnining whether                                                                                                               the factual

findings            are supported                           by the record and whether the legal conclusions                                                                                      drawn from

those        facts are correct."                               O~J&2U$, supra, at 112. "Where the record supports the tactual

findings of the trial court, [the revimving                                                                  court is] bound by those facts and may reverse

only if the legal                        conclusions                         drawn therefrom are in error." We_U~. supra, at 1194-95.




                                                                                                                   20
                                        Wi:h respect to identification                                     evidence,                           our apoellate                  courts have explained                              that:


                                        [iJn raviewinq the propriety of identification evidence, the central inquiry is
                                        whether, under the totanry ot tile circumstances, the identification was
                                        reliable .... Suggestiveness in the identification process is but one factor
                                        to be considered in determining the admissibility of such evidence and will
                                    not warrant exclusion absent other factors .... [T]he following factors are
                                    to be considered in determining tile propriety of admitting identification
                                   evidence: the ooportuntry of the witness to view the perpetrator at the time
                                  of the crime, the witness' degree of attention, the accuracy of his prior
                                  description of the perpetrator, the level of certainty demonstrated at the
                                  confrontation, and the time between the crime and confrontation. The
                                  corrupting effect of the suggestive identification, if any, must be weighed

I
'.

       Commonwealth
                                  against these factors.
                                                             v. _Moye, 836 A.2d 973, 976 (Pa. Super. 2003), appeal denied, 851

       A.2d 1 <12 (Pa.                                  2004) (citations                        omitted) (emphasis                                   aodeo).




                                 Notv,ithstandmg                                  the fact that Ms. Wright knew who the Defendant was and knew

      what he looked like prior to the day of the shooting,                                                                                            the Defendant takes issue with the

      fact the! she picked out his picture in a "gang book" which was organized by

     neighborhood                                      and had the names of the individuals                                                            displayed underneath                                 thr~ pictures.

     Thr: C)i~fer:r1r1nt1s                                   contention arguably woulo have had merit if the facts involved                                                                                            a

     c'··,.,~·""l,
     -.)i.l<".,1,11~t,,-;.....   1...   :,. .Jri...,!i;i"--:,+-iori
                                        I\.J\,:."IIICIVU\I            11....;   scenario         h:1t
                                                                                  l._l1~1"-"1L.I.._..,    under
                                                                                                            11.....,....,,1   !'-11-'.'.)50
                                                                                                                              ,f,.._.     '-    ra ,,t~
                                                                                                                                                   .......tl-)c         issue
                                                                                                                                                      ~>Jl\/1'-"'1...,,•~      ......     c- '""'/'H,QU!
                                                                                                                                                                                        it~r•\tl             merit
                                                                                                                                                                                                           \11·11i.,




                           At the suppression                                        hearing held on June 8, 20i 4, it was established                                                                       that Ms.

     Vvright                spoke with Oeiective Lutton                                                  at the hospital                         and agreed to accompany                                        Detective

     Luttc,n and h.s partner to the homicide office                                                                                  This occurred                          less than two (2) hours

     after her boyfriend was murdered.                                                               (Suppression                              Hearing Transcript                           ("ST"), 6/8/14,                pp.
  4·5).                    As far as the police                              . .vere concerned,                           the shooter                    was still armed and on the

  loose.                   and the officers                        were attempting to locate a suspect                                                             (ST, pp. 8, 42). vVhen they

  arrived at the homicide office,                                                      Ms. Wri9ht told the detectives that the shooter was

 someone whom she only knew as "Ray Ray."                                                                                   (ST, pp. 7, 17, 19, 29, 41-42).                                                        She did

  not know                         nay Ray's first or last name, but she told the detectives that she had known

 him for a "couple [of) years" and knew that he was from the Homewood area where she

 was from                              (ST, pp. 7-8, 17, 19, 42).                                          Ms. Wright said that she would "definitely" be able

 to identify                        the person                   she knew as "Ray Ray" if she saw his face again, and she never

 qave any inclication                                       that sno did                      not know who the shooter was. (ST, pp. 17, 41 ).




                          since Ms. \/fright atre ady knew the Oefen,jant, tr,e detectives provided her witr1 a

 b!l,chor that containecl                                        132 photographs.                             (ST, p. 14). The spine of the binder was

captioned "Zone 5 Gang Book."                                                              and each page in the book contained eight (8) pictures

ont   n~r,·i
      ...:_...(.l\,.,11     "'!·,.,,..,
                            •.)I..~'._.,    re:-,
                                            \'._J        nn
                                                      >r''f-''    "0 1-·   ,q.g   I   Ii   •,•·~   ?4\I"    The oicture s
                                                                                                               ·-~···••       ,._.._..t._. lPPJ-f'.l_.   orcaniz ed bi· neionborno
                                                                                                                                                          ~~j._...,14-·v,._..   .'t   1-..,.l~-J~\_,,jj1•._1UL.i      ..-..d

a11ci susp•::}c!ed                           \}-:lfl0        affiliations                     Di.splayed underneath                              each of the r.•ictures was the

11;:une of the incliv1ciua1                                      shown.               (ST,           pp. 13. 24-28, .37)                         Since the \Jetectives                               Jid not

know who ··Hay Hay" was at that time, they hao no idea if the Defendant's picture would

even be contained                                      in the book                     (ST, p. 38).




                          Detective                 Lutton       instructed                        ~v1s. Wright to take her time                                 and look through                            every

single picture                             in the book.                    (ST, pp. 7-8,                    25, 31 ).       Although Ms. Wright indicated                                                     that the

Defendant                        was from Hornewoco,                                        Detective            Lutton told her not to focus 011 particu'ar
  areas because                          it was possible                                      that the Defendant                                       could have rnoved.                                      (ST. pp. 8, 25).

  Detective Lutton was present the entire time that Ms. Wright locked through the pictures

  in the binder.                     He was confident, based on his observations                                                                                                          of her as she looked

  through the binder. that Ms. Wright was only looking at the faces of the individuals and

 not rei'!ding their names.                                                   (ST. pp. 9, 13, 18, 3 f-34).                                                       He saw Ms. Wright scrolling her

 finger across                    the faces of the individuals,                                                              and he saw that she did not rush through                                                         the

 photographs.                       (ST, pp. 9, 12, 18-19, 31 · 33).




                  Before            identifying                              the Oefenclant,                                 Ms. Wright came across the photo of a man

whom she idcint1t1od as Tay Tay, one of the individuals                                                                                                            that was present                             in tile

acartmcnt
     I • '·~:..
(_;. ~   {,L       I •
                         h•1il>-•j'
                         j
                                    .·l"
                          I LJ I • ~ ...... _Y
                                                 h~sfuro
                                                 ,,.J   -   f   •   ......
                                                                             tr,: :>--
                                                                             l ••        c;hnnhng
                                                                                         ....
                                                                                           I I"•'   ~   •• I I ••
                                                                                                                    Q('Ct •(rPd
                                                                                                                     .....    .....   • -..~-   •
                                                                                                                                                    1\1S-f   ,
                                                                                                                                                                 oo
                                                                                                                                                                 ,. .. ,-·   '
                                                                                                                                                                                 7I   ,    111)
                                                                                                                                                                                             I...J   •




the Defendant's                          face in a photo and identified                                                                   him as the shooter.                                            (ST, pp.   10- 12, 29).

,1·1e book containecl                                   only one ( 1) photograph                                                       of the Defendant,                                        and Ms. Wright identified

the Ot"'!f(~nclant                 from that photo without any hesitation                                                                                    or uncertainty.                               (ST, pp. 11-13).

The Defendant's photograph                                                               was located                         approximately                              two-thirds                       (2/3) of the way

th1ou9i1 the book,                           on the t)acksid£~                                          of the pagf1 that contained                                                       Tay Tay's picture               (ST, p

i 11·          lt should be noted that Det,=;ctive Lutton instrucled                                                                                              Ms. VVriaht
                                                                                                                                                                          ~   to continue lookmo~

through           tne rest of the book, even after Ms Wright                                                                                         identified                           the Defendant from his

photo            (ST. p 12)




                                                                                                                             23
                  Under the totality of the circumstances,               the fact that the pictures          were organized

      by gang affiliation and had the names displayed underneath them did not render the

      identification     process    unduiy suggestive         in this case because               Ms. Wiight already knew

      that u·ie Defendant       was the shooter.          Further,     the procedure            employed    was not

      de sioned
           '-"
                     to "empl1asize"    or single out" any particutar                suspect.     See ---··---·---··-····-···
                                                                                                      Commonwealth-··----··v .

      Q.~'L!.;:;, ·1 7 A .3d 390, 394 (Pa. Super. 20 t I) ("Suggestiveness                      arises whan the police

      employ an identification         procedure      tha: emphasizes              or singles-out    a suspect.").

      Moreover,       the fact that the names were displayed                  underneath         tr1e pictures was not

      problematic      in this scenario     because Ms. Wright did not know the Defendant's real

  name.




                 i+ovve ver. even assuming for the sake of arqurncnt                    that tr1e procedure       was

  unduly suggestive.           the totality of the circumstances                  show that it was not "so




2009) (noting           that "suggestiveness         alone does no! warrant excrus.on").                   Courts routinely

hove explained            that "tile central    inquiry is whether.          under the totality of the

circumstances,           the identification      was reliable."      ~!?J!..L~.    supra, at 394 (quoting      fl,1.9v2.

suoie, at 976); f!'..1ar!_§Or_1__yJ1rathwaiL~.          432 U.S.      98, 1 ·14 (1977) ("reliability         is the linchpin

111   clf3teimining     the admissibility      of identification     testimony")
                             As noted, this is not a situation where Ms. Wright only caught a brief glimpse of a

              stranqer with whom she had no prior familiarity.                          Ms. \/I/right   S3'N   tho Dotendant

             approaching her apartment building through her front window; she saw him and had a

             conversation with him as he stood in front of her door; she passed him in the hallway as

             she left t11e bui!ding with her daughter;                        she saw him running away from the building after

             the shooting, holding a gun.                       Ms. Wright had ample opportunity to observe the

             Defendant.                 Wr1en she first saw him, Ms. Wright immediately                 recognized the Defendant

             as someone                 she knew from the Homewood                  area where she had grown up. Although

             Ms. Wriaht knew that the Defendant                         was from a particular      area, she looked at ever;

            ~;1nq!e      pictuu-?        in the book anci di(J not specificalty         focus ht?r attention     on any particular




            t)elit~\..,eCJ    ··r:?ay    r~ay11    beiongcd to any particular gang, so the tact that tho book was

            orqaniz ed by               ganrJ affiliations is also of no consequence.




                        F urt/tf;rinorc           ~ Octective   Lutton was present the entire time rv1s Wright was ~JC)in9

           u1rcugr1 the binder.                   and it '/'10.s clear to him that she 'l/3S fook:ng at tr·;e faces of tr1e

           ind1viduais,           and not t1·1eil' names.          Common       sense   supports the detective's       obsorvations

           since Ms. Wright did not know the Defendant's                             real name.   Significantly,    Ms. \Vright told

           the cJ(~tectives              that she would "definitely"          be able to identify the Defendant if she sa 11 his  1




           fc1cr?   acpin,       and sh£-1 imrncdiatcly           picked   out the Defendant's      pit.;ture upon seeing it. Ms.

           \,'\'right 1dcnt:f1cd the Defendant                  as the shooter just hours after the incident          occurred.

           and she was confident                     in her identification.



·-··-·-:
L_.,
                                                                               25
                   Accordingfy,    Ms. Wright's identification           was reliable under the circumstances.

 In this court's         estimation,      the ider.tificatior. procedure uti!i2od in this case is similar to lhG

 use of a yo.1rboo!\,          which contains        photos,     names and categorizing            information     such as

 grade in school.            Courts have upheld             the use of yearbooks in identifying           perpetrators.

 See e.g., Haun v. State, 451 Ne.2d 1072,                        1075-76 (Ind.     1983);    State_1Lll:!.f!s.Y,   453

 So.2d 1234,           1;237-39    (La. App. 1. Cir.        1984); !,lnit~~L~~?.l~.$_y_,_rj_§D.!9?.Q,681 F.2d        1127,

 1132-33           (9th Cir. 1982);     Lit1L~LY.:. . .9l?le, 475 Ne.2d 677, 681-82 (Ind. 1985); Lo__.rg

 Matthews.,           23 A3d 250, 259 (Md. App. 2011 ).




            Because the pretrial           identification     was reliable, its admission         a! trial did not

violate the Defendant's                due process     rights.   P:,dditionally,   because     Ms. Wright's pretrial




v10!::ito   1110    Defondant's     due process       rights.    To that end, the court notes that, before Ms.

VVnght officia!ly ide11!disd            the Df?fendant       as "Ray nay" al !rial,    she tt,s!if:cd that she

irnrnediate!y         recognized       him when she opened her door. and that the Defendant                        also

,-ecogni?ed         har and looked shocked            to see her.     (TT 1, pp. 146-48,       156)     Ms. 'vVright t-iacJ




opcnco       her door ·-· asking him why he was banging on her door and wnv he was there,

questions          to which ho responded,         and then observ1r\J hirn a9ain as she walked past him

in the hal:way         on ner way out of the buiicJing.           (TT 1, pp. 146-48,        152-53)
               On a final note, the Defendant's             contention         that the Commonwealth         failed to

  present the testimony of Ms. Wright at the suppression hearing to demonstrate the

  reliability        of the identification    should be rejected outright and deemed                  waived.       (Concise

  Statement,           p. 4). During the suppression               hearing, defense      counsel dismissed          the need

  to have f1,,1s. Wright testify and stated that the "suppression motion is regarding the

  procedural aspects of the identification" and that he was "not so much concerned about

  the fact that she identified my ctient"                 (ST, p. 16) (emphasis           added).     Counsel explained

  that his motion was only challenging                   the procedural         aspects of the identification

 procedure            that was employed,        and he stated that "regarding             facts such as how long this

 witness        had the opportunity          to observe    the Defendant,          tba: goes beyond       the procedural

 aspects.           That goes to the weight and credibility of her identification,"                 which lie 11as no!
                                                                                                                1




 ch£iiienging           (ST, p 16).       Accordingly,     the Defendant's          contentions     that this court erred

 in nor having testimony by the witness a! the suppression                            hearing are meritle ss. and this

 court did not err          11,   df?nying the motion to suppress             her pretrial and in-court i(jentification.




           c: . .    I'his court did not abuse its discretion by afiov:.dng Detecti\le Hal ::3(:dirt tc}
                    impeach Natwauna Lane with statements she made to him days before
                    trial because the probative value 01 her prior inccnsistent statement w;.;.s
                    not outweighed by the danger of unfair prejudice under Pa. R. E. 403.



          The Defendant argues that this court abused its discretion by admitting

Natwauna i.anes prior inconsistent                  statement            because the statement was unfairly

prejudicial         under Pa. R.E. 403.        (Concise     Statement,         p. 5). As noted earlier,     a trial

court's evidentiary rulings "will not be disturbed                       absent an abuse of discretion."        Einhorn,



                                                             ....., ·7
                                                             .C: I
             supra, at 967. "The trial court abuses its discretion                       if it misapplies      !he law or [rules) in a

            manner lacking reason."                 Id. at 967 (internal     quotations omilled).            Pursuant Io Pa. R.              E
            403. "[o]thervvise           relevant     evidence      may be excluded if its probative value is outweighed

            by its potential        for prejudice."         Antidormi, supra, at 750.            However, "[e lvidence .'Vill not be
                                                                                                                                   1




            prohibited        merely because          it is harmlul     to the defendant."         Let   at 750.    Indeed,        the court

            is not "required        to sanitize the trial to eliminate          all unpleasant           facts from the jury's

            consideration          where those facts are relevant             to the issues       at hand . .        " "[E]xclusion          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 tile case." ld at 750
                                                                                                                         0




           (quoting      Cornmonwealth              v. Owens, 929 A2d 1187,             1191     (Pa. Super.       2007)).




                      1\s the Dd..=inc!ant       acxnu.,;ledges,        the centra,    issue at trial concemco                the identity

           of the shooter           Two (:::') cl,"lys rwfore Natv.;auna ("Nay Nay") Lane                   testified        at trial. she

           rnet wi!h Detective           Bolin and toid him that she saw the Defendant                      on the clay of trie

          shooting talking          to the victim      in the hallway of the apartment             building.       (TT 2, p. 260).

          Trus st::1te!neni.       was made verbally to the detective                 and was not recorded in any iashion.

          (TT 2, pp. 260, 269· 70). In lig1"1t of the inforrnafon that ,v'\s. Lane provided to th:.-J

          detective      trnrneoiately       before    trial,   the Commonwealth          chose to call ht"?r as a witness.

          The Commonwealth                  had ever; right to expect that Ms. Lane would testify consistently

          with the statement             she had made just days earlier.              (TI 2, pp. 144,       203, 208-09,           215,
1.::;
G~        221 ).    However.       when Ms. Lane took the stand and testified, she- insisted                            that she did

          not see the Def end ant in the apartment                    building on the day of the shooting.                   (TT 2, pp.

          170-72,     1s,1.1i35,    ~'40,    242, 247).         ivls. Lane was then confronted            with the prior
; . .;=

                                                                        28
                  statement made to Detective Bolin during her testimony,                                                                                             and she denied making                                     it. (Tf

                  2, pp. 202, 237-242).




                               "The general rule is that a prior inconsistent                                                                  statement                       of a declarant                   is

              aomissible to impeach the dsclarant."                                                       Commonweal!h                                     v_,_'2_rad~. 507 A.2d 66, 68 (Pa.

I ..
,;<
                  1986).        Consistent                  with the rules of evidence,                                              Ms. Lane's statement                                      was admitted                      for

             the sole purpose                    of impeachment because it did not meet the criteria for admission                                                                                                                as

             substantive            evidence                      under Pa. R.E.                        803. 1.            The court a!!owed Detective                                                Bolin to testify

             about the conversation                                 he had with Ms. Lane mere days before she testifiecJ                                                                                        because

            her statement                   was materially inconsistent                                           with her triai testimony.                                              (TT 2, pp 260, 269-




                              Contrary . to the Defendant's                                      argument,                     the probative value of Ms. Lane's                                                     ori
                                                                                                                                                                                                                     '
                                                                                                                                                                                                                         or

            incnns;stent            statement                     was not ourwciohec                                 by the dancer of unfair pre Judice                                                          The

            mconsistcncv                 related             to a key issue at trial, namely identification.                                                                            Ms. Lane's              testimony

            at trial directlv contradicted                                   the testimony                     of 1\--1s. \t./right, who testified that the Defendant

            was present             in the tlalh,vay,                         as was Ms. Lane.                                     It was vital                      for the jury to assess                          the

         crE'C1itJi!ity          of the two (2) women in order to resolve                                                                the issue of identification.                                           Ms.

         Lane's               statement          to Detective                        Bolin provided the jury with a proper                                                              context       in which                  to

        11-1eigh her testimony                              and determine whether she testified credibly                                                                          at trial.          Althouqh               the

        0, ereru
             i   d ant argues                    fh
                                                 il   .a \ "t'nere was a qrcat t risk
                                                                                   . I ·•.
                                                                                       mar,l  '   '!
                                                                                             cespue         ·
                                                                                                     a cautionary ·
                                                                                                                  instruction,                                                                                              the

       ;,,r-,.1
       jl...JIJ     would.I.._.. consider 1\;]S
                       J.AI          .v,\,...1        ,.,     ·         ans's
                                                                  I1..-1..,.,,..,,   8i'P  1'J':,r-J
                                                                                     · •-....:::,"-"'   st::J....T.0. fn'"('IS
                                                                                                                 V       ...._..    !,   •,,    :cir..;
                                                                                                                                                ,. .......,,   substant.vc evidence or' n.l,
                                                                                                                                                               .._     '   .    Ill'~    ...   VIV     J\_,(;          i\/1!,
.
!
.
.
      Williams' guilt," this argument relies on notl1ing but mere speculation.                                                                                                                             (Concise

      Statement, p. 5). The Cornn1onweailh never attempted lo suggest that this statement

      should be considcr"~d                                as the truth, and the Jury was instructed multiple times that it must

      not consider her statement for anylhing other than credibility purposes.                                                                                                                                Such cautionary

      instructions are routinely given, and there is no indication that jurors ignore them.




                    Indeed, at the time that the prior inconsistent statement                                                                                                    was admitted, this court

     strongly cautioned the jury that it may only consider the statement to assess the

     credibility           of the witness.                            (TT 2, p. 260).                        Specifically,                           the court provided the following

     instruction:


                 Ladies anci gentlemen of the Jury, you should be aware tha: this evidence
                 is not to be ccn~:;ic.iered t)y you for nh':: truth of the matter. fl So it's not fur
                 n-je trutn of wr.etner or not f\Jay r"Juy actually saw the defendant in the
                 hcii:wdy    ltiis testimony can only be considered by you as to th,1 c(edibi!ity
                r,f  Ms I ;c>()C, ft'J That is the only '1''3· '1' Ihat
                 .._,,   •-·       ·--.,·   ~·                 .    !,u .. vo: I can consider
                                                                   ._.,       ~      ._,      ;I [] C:o '''"U
                                                                                             ,.    ,    J~
                                                                                                       'I'                      j     ,,_,.       •;;)
                                                                                                                                                    ..      ~...._   , . ..J,   ,.-1   I   .     ...._,,


                must fo!lDV/ these instructions.       1\s J rcld you eartior, I am the judge <Jf tt1f::
                .avv. S() you must totlow that instruction It's only to b':: considered ior
                credibility. not to be considered for tile truth of what has just been stated.
                Thank you. (TT 2, p. 260).

    The cautionary                     instruction was repeated a second time du;;ng the court's ciosing chfirge

    t-'-...t.... •h,:,
                 lilG  ;, .rv (Tr 1.:.,..
                       JU}'·\  t
                                  ia] T,·3. nscriot
                                            11    1..)\..,111-.1     .. ,
                                                                            Vol I• ...~.,\   ("1.T 3")       I
                                                                                                                 1 ·1 i2c:...JI. 11
                                                                                                                       f
                                                                                                                                         c1-r ,   p ...... go,,/.         ,,;-fihe
                                                                                                                                                                            l JI.,, 1'•uty
                                                                                                                                                                                        ,~_,          i e-
                                                                                                                                                                                                      I.:,,   nr~ s . - -· -./ •.l()
                                                                                                                                                                                                              ,...J d ... tJnlt:(J



    fo!iow n·1e trial court's instructions,"                                                      and there is no articulable reason                                                           to believe that the

    Jury disregarded the court's instruction as to this matter                                                                                           Commonwealth                           v . Baez 720
                                                                                                                                                         ·---·-·-----.·~-·· · ·------·-···--------------'

    A.2d 711, 727 (Pa                            1998).
             Additionally,   the inquiry here is whether                   the statement   was "so prejudicial that it

  would inflame the jury to make a decision based upon som,Jthing other than the !oga!

  propositions relevant to the case." Antlg_qrmi, supra, at 750. The statement at issue

  was not so prejudicial so as to be inflammatory because Ms. Lane's statement did not

  place a gun in the Defendant's hand, and it did not otherwise suggest that she saw the

  Defendant participate in the shooting. In fact, the statement did not even suggest that

  Ms. Lane was present when the shooting took place.




            In fight of the cautionary instructions that were provided.                     the presumption that the

 JUf\/ adhered to these instructions,           the importance of a!!owing tr1e jury to make proper

 credibility determinations,         ano the lack of unfair prejucke, the acmisslon oi Ms. Lane's

 orior inconsistent statement as impeachment                            evidence did not violate Pa. R E. 40~l.




           D. This court did not abuse its discretion in denying the Defendant's post--
              sentence motion because the verdict did not shock the conscience



           In his sixth aiicgation    of error, the Defenciani                 contends that this court abused its

discretion in denying        his post-sentence        motion because tt1e verdict was againsi the

'NCi~Jht   of the evidence.     It is ,.vell-estat)!ishecl             that:


            the weight of the evidence is exclusively for the finder of fact who is free to
            believe all, part, or none ot the evidence and to determine the credibility of
           the witnesses. An appellate court cannot substitute its judgment for that of
           ihe finder of fact. Thus, [the appellate court] may only reverse the lower
           court's verdict if it is so contrary to the evidence as to shock one's sense
           of justice. Moreover, where the trial court has ruled on the weight claim

                                                             .... ,
                                                             ,_j   I
                          below, an appellate                                                       court's role is not to consider the underlying question
                          of whether the verdict is against the weight of the evidence. Rather,
                          appellate review is limited to whether this trial court palpably abused its
                          discretion in ruling on the weight claim.

  Cornmomvea!tt1 v. Lewis, 911 ,-\.21j 558, 565 (Pa. Super. 2006); See also
  ---------••·•--•-•-n••-·
            ..                                    M•o•••-.•••••••~•··-••••--




  Commonwealth v_SmitlJ, 861 ft.. 2d 892, 895-96 (Pa. 2004).                                                                                                  "A true 1.veigh! of the

  evidence challenge concedes that sufficient                                                                                               evidence   exists to sustain the verdict

 but questions which evidence is to be believed."                                                                                               Comrn.onwealth_v. __ Hunzer. 868

 A.2d 498. 506-507                                                   (Pa. Super. 2005).                                           However,      "[qjuestlons concerning

 inconsi.stent testimony                                                                 ... go to the credibility of witnesses"                           and ti,e court "cannot

 substitute                            its judgment for that                                                  or    the jury on issues of credibility."           Q§)_~-~..h!S,

supra, at 107; See also Commonwealth                                                                                                .'f:...Y-{lU.~1m~. 854 A.2d 440, 445 (Pa.

2004) ("ln criminal                                               proceedings,                                     the credibility of witnesses            and weight of

evidenc0                           are determinations                                                that lie solely with the trier of tact, [which) is frne to

bel
 f..• ieve
 .J   I   ,_,   'I   0    c,l1'
                          t,_j.,   ,   cart or none of !)1,, evidence ")
                                       •   "~-"       1              •         '..._.,      •   •   1 • ..,   ~     V-'   • -'   ., ·   •




                         ln determining                                   whether a trial court abused its discretion                                          in deny·ing   a weight

claim,               our Suprerne Court has noted that


                     a new trial should not be qrantad because of a mere conflict in the
                     testimony or because tht: judge on the same facts would have arrived at a
                     different conciusion. Bather. the role of the trial judge is to determine that
                     notwithstanding all the facts, certain facts are so clearly of greater weight
                     that lo ignore !hem or to give them equal weigt1t with atl the facts is to
                     deny justice. 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 imperntive so that right
                     may be given another opportunity to prevail.
       Comrnomveaith v. Clay. 64 A.3d 1049, 1054-55 (Pa. 2013) (internal quotations


I
.
:<
       and citations omitted) (emphasis added). "[Tlhe trial court's deni2I of a motion for

       a new trial based on a weight of the evidence claim is the least assailable of its

       rulings." Commonwearth                    v._ Cousar, 928 A.2d 1025, 1036 (Pa. 2007).




                      The Defendant's challenge to this court's denial of his weighi claim is

       without merit as it is based entirely on issues of witness credibility and conflicts in
I      the testimony.           The Defendant claims that the testimony of Tayla Wri9ht, the

      Commonwealth's                 central witness, was unworthy of beiief.            However.   the law is

      clear that the fact-finder                is free to be!ieve "all, part, or none of the evidence."

      V\/d1i;,irns,     supra, at 445.           This court sat through the trial and had the opportunity

      to observe the witnesses                   and their demeanor.      In this court's opinion. Tayla

      VVrigl:t was a credible             witness who never wavered in her identification of the

      Defendant          as   u-,e   shooter.     It should   be noted that this court also sat as a trier-of-

      fact, ,3n1i its dac.sion           to convict    the Def encant   of Person    Not to Possess was




     witness.




                 As recounted           above,     Ms. Wright was present during the time of the

     shootinq,         and she saw the Defendant              running   away from the building

     ir11rnediate1y       after the shooting          with a gun in his hand.    (Tlt.   pp. 157-GO,   185).

     Ms Wright testified consistently and credibly that she knew of the Defendant


                                                                   33
                    prior to the incident.                                       (TT 1, pp. i 46-47, 209, 251-52). Although she knew him




                   and came face to face witil him. (TT 1, pp. 147, 252, 267).                                                                                                      The fact that the

I                 Defendant was banging on her door, dF:manding "answers" and questioning

(j                whether Ricky had a problem with his "people" made her so uncomfortabie that
11
                  she removed her daughter from the apartment and made sure that she was away
I    .
          .
                 from the Defendant's vicinity. (TT 1, pp. 146-50, 153-54, 209, 240-41, 243, 267) .

I
~


                                      Althougll she saw two (2) other men in the hallway with the Defendant

                and Ricky before she left the budding,                                                                   she saw those men exit the building,                                                              get

                ,.nt,.:.J
                      .     . Cd(..
                            d.               , ....!U, !t,<'.
                                            of         ':,·-:,·'IV re:..-;   before
                                                                              t--:1t.)1-t.,.
                                                                                               -,-,!'/.
                                                                                               d.:        .ch-,.-"'::,--
                                                                                                           ,1 !'.}(,.., VI/~:.,/~
                                                                                                                                    1:--·d
                                                                                                                                    Ill:::::-~   ..•.
                                                                                                                                                        (-,-··;-
                                                                                                                                                        , I I
                                                                                                                                                                 ,I       ,~r·
                                                                                                                                                                          t-J:_L   1 .:.)'-2.~-~)._;,
                                                                                                                                                                                                ~,:,    1, :,::,:-
                                                                                                                                                                                                           ~~        5...,,/ )-
                                       1                                                                                                                              I



trt
fill            f\!iOmcnts                 r1t1er she got out of her car, Ms. Wright heard her mother scream Irorn

ti              across the street that a shooting had just occurred, and she irnrnediately                                                                                                                      turned
~~
$'.
.......u
               to     ~,ee the Defendant                                     running away from the building                                                  with a gun in his hand.                                          (TT

                1, pp 1 SB-60,                         184-85,                   18 7).         The Defendant                        looked so intimidating                                        running away

               from tr;e apartment                                     that he nae to reassure two gi;ls in t,is vicinity                                                                     that he was nut

               go;~g to shoot them alter they screamed                                                                       at the sight of him.                                  (TT 1. pp. 157-59,
p1~rn
@              185, 256).




,~,
tfil                          Furthermore.                             Ms Wright did not hesitate to teli the police that tho

G             D>::!ii"n(i;1nt              ,,vas the shooter                                   She irnrnedialeiy                       told n1e detf:c!ives                              that Ricky was
Li
              1,iHed by a man that she only knew as "Ray Ray", and she voluntarily                                                                                                                 agreed to


                                                                                                                               34
, .....
!'•,·:

f
,,.)
    ·:J
               go to the police station so that she could assist in the investigation. (TI 1, pp.

               165, 170, 172. 269. 295).              Ms. Wright immediately picked out !he Defendant's

               face after vievving       ovet     a hundred pictures, all within a fm,v hours after the

               shooting occurred.            (TT 1, pp. 164-67, 170-71, 218, 226, 269, 295, 301).




                          The court notes that Ms. VVrigr1t's testimony was not weakened by Ms.

              Lane's testimony at trial.            Ms. Lane testified that she was friends 1,vith Tay Tay

              and Judd, and she corroborated Ms. Wright's account that there had been an

              incident in the hallway around 4:00 p.m.                   on the   day of the shooting that involved

              Tay Tay, Judd, Zombie, and Ricky.               (TT 2. pp. 155-68).          The incident involved

              ?or<d,ie     :F1d   his suso.c.cn     that one of the men robbed his brother.          (TT 2, pp.
~~
w
!tl
              159-60,      164· 6.S)    Ms. Lane also couoborated Ms. \Nright's testimony that she

..            saw Zombie          leave the builciing after   Hli:'.:   4 p.m.   incident and that Tay Tay and
11
",.;..,;,:
             Judd !eft the 1·1ai!way and building area before the shooting occurred.                    (TT 2, p




                         Ms. Lane tesUied that she knew the Detendant,                  and she knew that he was

             friends with Tay Tay and .Judcl.            (TT2, pp. 17 t. 184, 251-52).         When confronted

             ·Nit11 the bui!ding's surveillance video. Ms. Lane immecJiately,                 and without

             hesitation. agreecl        that the person on the video "looked like Flay Flay."            (TT 2, pp.

             1 7 t , 245 ). The Detoncant          suggests that this statement is insignificant        because

             Ms. Lane's overall testimony at trial was that she did not sec the Defendant in the


                                                                          35
         apartment building            on the day of the shooting. (TT 2, pp. 170-71, 185, 198, 240,

         242, 247, 252, 30i ).             However.     as previously    discussed,     Ms. Lane's credibility      at

         trial was direcily         at issue in light of the prior inconsistent        statement   that she had

        made to Detective Bolin two (2) days before she took the stand, 1,vhere she

        admitted         that she did sec the Defendant in the apartment building on the day of

        the shooting.            (TT 2, pp. 259-60). I/Vi1ile Ms. lane's prior inconsistent statement

        could not be considered as substantive evidence, the statement served to cast

        doubt on her testimony that she did not see the Defendant on the day of the

        shooting,        particularly when considered against the fact that Ms. Wright testified

        numerous times that Ms. Lane was present in the hallway during the encounter

        l>E•twesn       n-,Ei Defendant, F1icky. Tay Tay, and Judd. (TT 1, pp. i S2-53, 17B. 181,

        229-30,      ?:35,      24:3, 261 ).




                    The court also notes that another Commonwealth                    witness, Stf.?phen

       o,o,ver. Jent CiE:d:t:11l;ty       to Ms. Wiight's    te stirnony that tho Defendant        ran out of the

       t)uilciinD    \,\lith   rus shirt pulled over his head.     Mr. Brewer was in the parking           lot at

       me time of the shooting,                and he testified lha1 he sav-: someone ffeeing from the
r~
tGi    building      with "something           white pulled over their head."    (TI 1, p. 287). As

f;~~   rccounteo above, Ms. W;ight testified that she was able to recognize the person
C.~
       who was running with the gun in his hand as tho Defendant because the hoodie

       U1at he had pu!li,·d over his face kept sliding             down. (TT 1, pp. 158-59,         184-85).

       ivL;. Wright's testimony was further bolstered                 by the video from the surveillance




                                                                 36
      camera,        from which              it is possible               lo identify the Defendanl.              and which supports

      Ms. i.;Vrighl's teslirnony of the aftermath cf the shooting,




                 While the murder weapon was never recovered                                                  and no forensic evidence

      connected        th-i:: Defend,:1nt                to tho crime.                 these facts were not, and arc not,

I     required to establish                  guilt beyond a reasonable doubt.                                 (Trial Transcript, Vol. 2,

      ("TT 2") pp. 43-47, 51, 66, 68).                                 Hie court also notes that, although                    the
I     Defendant       presented an alibi defense at trial and claimed that he was at Chuck

     E. Cheese celebrating his son's first birthday party al the time of the crime, the

     alibi was presented                   by the Oef,2.ndant's                       family members          only.   Aside from their




     the   parr/..   (-rr2
                       1     _   J   }JP   ..'71'
                                              ) ''')15
                                                  r.:- . :,    : ..·3·-,ri··}o
                                                                     i, -JL.      1
                                                                                      3')')~3c.)
                                                                                        c:« .. -.J u,.




               ;\qai:lst     ihis backdrop,                     the verdict did not, and does not, shock the

    conscience         o! this court.               \. vhich       had tho opportumry                    to listen to the witnesses and




    facts were "so clearly                  of greater              weiqht            that to ignore them or to give them equal

    weight with all the facts is to deny justice."                                         £2@:..'t.'., supra, at 1054-55.   Although

    fV1s. Wright     did not see the Defendant                                   actually puli the trigger, the circumstances

    surrounding        the incident.                and the reasonable                         inferences    drawn therefrom,

    estat!list1ed     beyond a reasonatile                            doubt that the Defendant                  i<iile(J Derrick l.yrnan.




                                                                                         37
ffl
I       It was solely the function of the jury to weigh the evidence and make credibility

       determinations.




                  The verdict ot the jurors indicates that they rejected the Defendant's alibi,

       credited Ms. Wright's testimony that the Defendant was the triggerman and

       rejected Ms. Lane's trial testimony that she did not see the Defendant on the

       scene. While there may have been a few instances in Ms. Wright's testimony

       that were unclear or inconsistent, the jury could have ver; well concluded that

       any inconsistencies       in her testimony were not necessarily a product of

       dishonesty,       bu! raPwr a result or time, trauma, faulty memory, etc.   In any event,

       !he iaw is clear that a court "cannot substitute its judament
                                                               _,    for that of the 'iurv on /




       issues of credibiliry." Q.eJg_~~s. supra, at 107.      Accordinqty, this court did not

      abuse its discretion in denying the Defendant's post-sentence motion, and this




              E. This court did not abuse its discretion by allowing Detective
                     Lutton to testify to Tayla Wright's statements made shortly after
                     the shooting.



              Finally,    the Defenclant contends that it was error for this court to allow

      Detective     Lutton to testify as to statements   that Tayta Wrigi'1t made to him on the

      same day as the shooting. (Concise Statement, pp. 5-G). This argurnent is

      witnout merit. A.s noted above, the "[a]dmission of evidence is a matter within the


                                                         38
  sound discretion of the trial court, and will not be reversed absent a showing that

  the trial court dearly abused its discretion." ConJmg_mvca!H1..Y.c..Handfreld, 34 A3d

   187; 207-08 {Pa. Super.2011).                           "Not merely an error In judgment,                                           an abuse of

  discretion         occurs      when the law is overridden or rnisappued, or the judgment

  exercised          is man.fe stly unreasonable,                   or the result of partiality,                             prejudice, bias, or

  HI-will, as shown by tile evidence on record."                                  L<;L




               The Defendant                asserts   that Ms. Wright's                   statements               were inadmissible

 because            detense counsel "was not given an opportunity to cross-examine                                                                      the

 witne ss about the statements."                       and no exceptions                        to the hearsay                     rule applied.

 (_'I~~----:
      d u,· 1 c;.
              ,.,   ·r·,.'10 pric1
                             . ior   consistent
                                     L,.,.:,,~1.. ~c;'., .statement
                                                            o~l-;, it. ~a·t   ;ec,,,c,
                                                                              ,,.J ...H.n.~.   concerns
                                                                                               ....,\) \.,..c,1 ~. Mio
                                                                                                                     ... .   11   "·,·~1-,• ,:,. .
                                                                                                                             ,,v,.'d11t


 staternc~nt         to Detective            Lutton at the hospital.              (TT t , pp. 291-95).                             Detective

 Lutton testified           th.Jt. when he arrived              a! the hospital                   to check on the condition                                  cf




inrorrnation          about what had happened to Flic:{y.                                (TT 1, p. 290).                     Ms. Wright

beQan pxr/aining               to the detective           that there had been an argument                                            outside of her

apartment           eartier that day and that her boyfriend                               Ricky had been present for the

argument.            (TT 1, pp. 291, 294).               At that point, Detective Lutton stopped                                                 her from

saying anything further ano asked if she would be amenable                                                          to speaking                      with

them at U1e hornicide                     office   (TT 1, pp. 294·95).                    Detective             Lutton testified                      that

Ms. Wright agreecl               to go to the oHice with them, and when they arrived there, Ms.

Wright       told them that a guy named "Ray nay" was tile individual                                                        who was

responsible          Ior shooting Ricky.              (TT 1, p. 295).

                                                                        ]9
'11.
1 ..
                  Oetecnve Lutton testified as to Ms. Wright's prior consistent statements

           after Ms. \/'Jright had already completed her testimony. During her direct

           examination, M:;:;. Wright recounted the argument that had taken place around 4

I          p.m. that afternoon outside of her apartment. (Tr 1, pp. 139-141, 143-45, 149).

           She also testified that she spoke with Detective Lutton at tho hospital and that

           she started to tell him what had happened. {TI 1, pp. 164-65}. Ms. Wright was

           then subjected to a lengtl,y cross-examination, during which her credibility was

       directly attacked and put at issue. (TT 1, pp. 188-262). The defense was heavily

       focused on challenging Ms. Wright's statements and the perceived

       inconsistencies in her testimony. (TT 1, pp. 193-94, 206-08, 210-212, 217-220,

       222-232. 234, 243-46).       The Defendant had ample opportunity to question her as

       to the statements she made to Detective Lutton at the hospital,         and his counsel

       certainly took advantage of the opportunity to ask her about the earlier aroument

       that occurred outside of her apartment on tr·1e day of the shooting. (TT 1, pp.

       J   88·203).




                Huie 613(c) of the Pennsylvania Rules of Evidence provides as follows:


                         Evidence of a prior consistent statement by a witness is admissible
                for r~:lkit;iiitation purposes if ttie opposing party is given an opoortonity to
                cross-exarnine the witness about the statement, and the statement is
                offered to rebut an express or implied charge of:

                        (1) fabrication, bias, improper influence or motive, or faulty memory
                and the statement was made before that which has been charged existed
                or arose; or




                                                       rlO
                    (2) having made a prior inconsistent statement, which the witness has
             denied or explained, and !11e consistent statement supports the witness' denial or

I
=
  <
             oxplanation.   Pa.R.E. 613(c} (bold in original).



                         The Defendant's cross-examination                                            of Ms. Wrighi directly put her

             credibility          at issue and highlighted                           questions regarding               faulty memory and/or

             bias    The Defendant                         had ample opportunity to cross-examine                                      ~. .fa. Wright as to

             the statements she made to Detective Lutton, and he conducted                                                               a lengthy and

            exhaustive               cross-examination of Ms. Wright.                                   Based on these facts and

            circumstances, this court did not abuse its discretion in allowing Detective Lutton

            to recount            what Ms. Wright told him at the hospital.                                      (TT1, pp. 291-295);                   See



            consrstcnt sratcmerus may be proved by the person to whom they were made in

           order to support the credibility of Hv?- witness whose testimony has been

           attacked).




                        L.~0-'"{.1\IP(
                        I,    ,., .. J~·,~,   j'.>l!f"!'.l
                                              .......... ,.o._.           '1ir)(1 Ior the
                                                             '.><:;SLJf'1···::,•'-           sake of aro:
                                                                                        ,.._._i...... -::,......, irnent
                                                                                                                     ·-  ~ 1i·,:,1 Ms•..J·V• Vvrioht's
                                                                                                                           f1,,.....           ~-;14..._:i




           statement            at the hospital should not have been admitted as a prior consistent
  .•
  ~.''
  -'·~..
   .
           statement,             the statement                  was entirely relevant to show Detective                                Lutton's        course
~d
           of conduct and to explain the steps that were undertaken                                                     in his investigation                 of

           tl,e shootmo.                 See ~-Q_fI!J.TI_Qfl_,'.{~_?JtO __y_,_~_b_mj_Q.1, 889 A2d 501, 532 (Pa. 2005)                                        ("[ljt

           is weli cst<.1blisr1ed               that certain out-of-court statements offered to explain the

           course of police conduct are admissible because they are offered not for the truth


n
1 .. - ~
t)
i.~,·:
                                                                                               ,; !
     of the matters asserted but rather to show the information       upon which police


Wg   acted.").
I


             SigniflcanHy, Ms. Wright's statements about there being an argument

     earlier that day did not refer to the Defendant or otherwise implicate the

     Defendant in any way. The statement also was not "highly incriminating" in

     nature since it did not involve "specltic assertions of criminal conduct on the part

     of tho accused." Cornpere Commonwealth. v. Palsa, 555 A.2d 808, 811 (Pa.

     1989} (statement not admissible under course of conduct exception where it

     accused the defendant of being a drug purchaser and defendant was on trial tor

     drug ottense). Ms. Wright's statement about the earlier argument "provided only

     the information necessary for a reasonable understanding of the po!ice conduct"

     and w2.s., therefore, admissible to show the detectives' course of conduct

     pcrtaininq to their investigation of the shootinq, and not to ,::.istablish H1e truth of

     the matter.   Palsa, supra, at 811. To that end, the court specifically instructed the

     jury that Ms. 1/vright's prior consistent statement was not to be considered       for the

     truth of the matter and was only relevant to help them assess her credibility. (TT

     3, p. 9i).




             Finally, the court notes that, with the exception of Ms, Wright's brief

     rEifeii3nce at the hospital to the argument that had occurred earlier that afternoon

     outside of her apartment, the statements that Detective Lutton recounted rnainty
               concerned Ms. Wright's identification of the Defendant as the shooter.

               Statements of identification are not considered                           to   be hearsay.   (TT 1, pp. 291 .

               305); See ~om_rn()nwealth               v..,_Wilson, 861 ,\.2(j 919, 929 (Pa. 2004) ("\.Yhere ..

               the prior consistent          statement        rs one of identification,          it is adrntss.ole as an

               exception to the hearsay rule ....                   "). Accordingly, for the aforementioned

               reasons, the court did not abuse its discretion in allowing Detective Lutton to

              testify as to Ms. Wright's statements.




              l I I.     CONCLUSiON


tiiu                     The Defendant's          allegations       of error are without merit. The Defendant                  waived his

~~            argurnent        regarding     the absence of testimony presented                     in support of the motion to
FJ
1-->·)
Le,




              a(_irni~:sion    cJid nor violate Pa n E: 40:3 The court did not err by d,?nying                          the motion to

             5ur.1press       f\/ls \,'\/righfs prctri2t     or in-court identiticaucn           because tt1e idcntilicat.on

             prot:edure        was not unduly suggestive,               and, even if it was, the identification           was rniiab!e.

             The court did not err by al!ovving Detective                       Bolin to imoeach       Ms. Lane with her prior

             inconsistent        statement      because        the probative value of this impeachment                  evidence   was

             not outweighed           by any unfair prejudice.            The court did not err by denying the

             0£:,fenJant's       post-sentence        motion because the verdict did not shock the conscience.

    ,,
r   -.·.'I   The court did not abuse its discretion                   by aliov1ing Detective Lutton to testify to Ms.
l]
             Wright's prior consistent statements                   because Ms. Wright's credibility            was directly
Fl.
Li           attacked.        and the statements           of idf:ntification        were not considered     hearsay.

p:1
j      ·~
Li
f···!
L.,:)
                                                                                43
      For the foregoing reasons, the verdicts and sentences in these cases shou!d bo

upheld.


                                       BY THE COURT:
