J-S07005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON JUNE WILSON                        :
                                               :
                       Appellant               :   No. 1470 EDA 2019

                 Appeal from the Order Entered April 16, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0000597-2014


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 11, 2020

        Appellant Brandon June Wilson appeals from the judgment of sentence

imposed following a retrial for third-degree murder, conspiracy, and three

counts of recklessly endangering another person (REAP).1                  Appellant

challenges the sufficiency of the evidence for both his REAP and third-degree

murder convictions.       He also raises errors in the trial court’s evidentiary

rulings, jury instructions, and his sentence. We affirm.

        The trial court summarized the facts of this matter as follows:

        On January 13, 2014, Kaylynn Bunnell and her boyfriend, Matt
        Flores, sought to buy drugs from Brandon Kravchenko. A deal
        was set up and Kravchenko put Flores in contact with a man
        named “Jordan” in the parking lot of the Big Star to buy Percocet
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(c), 903, and 2705, respectively.
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       30s.[2] During this deal, “Jordan” took Flores and Bunnell’s money
       and gave them fake drugs in return. Bunnell then called her best
       friend, Jacqueline Harrigan, to complain about the bad drug deal.
       Bruce Murray, Harrigan’s boyfriend, answered the phone and
       listened to Bunnell’s complaints. Murray then asked if Bunnell
       wanted to do anything about the drug deal and Bunnell said she
       did.

       Murray, a member of the Black P-Stone street gang, contacted
       Sirvonn Taylor, [the “amir”3] in the gang, for direction on how to
       handle the situation.       Taylor gave the go-ahead for a
       confrontation, instructing Murray to take Dyqunn Mitchell, another
       Black P-Stone, with him[.] Murray, Harrigan, and Bunnell drove
       to pick up Mitchell. [Appellant], also a Black P-Stone, was with
       Mitchell and overheard the conversation.          [Appellant] was
       subsequently asked if he also wanted to go. [Appellant] agreed
       and a loaded gun was placed in the trunk of the car.

       Upon arrival at the Kra[]vchenko residence, Bunnell and Harrigan
       knocked on the door and spoke to a man inside. The man was
       later identified as “Jordan,” the man who sold Bunnell the fake
       drugs. At that point, Murray called Taylor again. As a result of
       the conversation with Taylor, the men retrieved the gun from the
       trunk and the entire group got back in the car. [Appellant]
       instructed Bunnell to “creep” by the house and while she did that,
       [Appellant] and Mitchell shot at the Kravchenko residence. One
       of the bullets entered the bedroom window and hit Darcy
       Kravchenko [(the decedent)] in the head, causing his death
       shortly thereafter.

Trial Ct. Op., 6/27/19, at 1-2.


____________________________________________


2 Appellant’s co-defendant, Taylor, testified that “they call them Perc 30s”
because each pill is 30 milligrams. See N.T. Trial, 1/23/19 at 52.

3 Trooper Craig VanLouvender testified that Taylor “had a bunch of different
names that people would refer to him as,” including “Amir.” See N.T. Trial
1/22/19 at 219, 234. Trooper William Patton also testified that Taylor had
several names and that he was “the unquestioned leader” of the Black P-
Stones gang. See N.T. Trial, 1/23/19, at 122.



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       On March 31, 2014, the Commonwealth filed a criminal information

charging Appellant with murder, conspiracy, tampering with evidence, and

three counts of REAP.4 See Criminal Information, 3/31/14.

       On January 18, 2019, Appellant filed a motion in limine seeking to

preclude Trooper Patton from “giving prior bad act testimony about

[Appellant’s] gang affiliation, his uncharged criminal acts, and gang members

and gang activity unrelated to the crimes at issue.” Motion in Limine, 1/18/19,

at 3. In support, Appellant argued that that Trooper Patton’s expert testimony

was “irrelevant and unduly prejudicial given the limited nexus between the

[topics involving the gang and Appellant’s] alleged involvement in a

conspiracy to retaliate for a botched drug deal between [four] people with no

connection to the Black P-Stones.” Id. at 4. Appellant also sought to preclude

the Commonwealth from introducing as evidence the sawed-off shotgun that

was recovered from Appellant’s co-defendant, Mitchell, at the time of his

arrest. Id. at 5. The trial court denied Appellant’s motion on January 22,

2019. See N.T. Trial, 1/22/19, at 9.




____________________________________________


4Although the criminal information did not identify the complainant for each
count of REAP, the Commonwealth presented evidence that Kimberly
Kravechenko, Terrance Tyson, Darien Vanwert, Alyssa Kravechenko, and/or
Brandon Kravechenko were present in the trailer at the time of the shooting.
See N.T. Trial, 1/25/19, at 2.




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       On January 25, 2019, following a three-day jury trial, Appellant was

convicted of third-degree murder, conspiracy, and three counts of REAP.5,6

On April 28, 2019, the trial court sentenced Appellant to concurrent terms of

sixteen to forty years’ incarceration for both third-degree murder and

conspiracy, followed by consecutive terms of seven to eighteen months’

incarceration for each count of REAP. See N.T. Sentencing Hr’g, 4/16/19, at

23-26. The trial court also awarded Appellant credit for time served. Id. at

26.

       Appellant did not file a post-sentence motion.        On May 14, 2019,

Appellant filed a timely notice of appeal. He subsequently filed a timely court-

ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)

opinion asserting that Appellant’s claims were meritless.

       On appeal, Appellant raises the following issues, which we have

reordered as follows:

       1. Should [Appellant’s] convictions be vacated for evidentiary
          insufficiency where the Commonwealth (a) relied exclusively
          on “corrupt and polluted sources” to prove its homicide case
          and (b) failed to introduce evidence that anyone other than
____________________________________________


5 This was Appellant’s second jury trial. Initially, a jury convicted Appellant of
the instant charges on June 15, 2016. On appeal, this Court reversed
Appellant’s convictions and remanded the matter for a new trial. See
Commonwealth v. Wilson, 3217 EDA 2016 (Pa. Super. filed January 19,
2018) (unpublished mem.) (concluding that the trial court committed
reversible error by allowing the Commonwealth to introduce a statement that
Appellant made during plea negotiations without a valid waiver of his rights
under Pa.R.E. 410).

6 Appellant was tried separate from his co-defendants, who pled guilty prior
to trial.

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         [the decedent] was in the trailer at the time of the shooting
         with respect to REAP?

      2. Is [Appellant] entitled to a new trial in light of the trial court’s
         erroneous evidentiary rulings, including its decision to allow the
         Commonwealth to present irrelevant and prejudicial expert
         testimony about the history, organization, structure, and
         criminal activities of the Black P-Stone gang despite the limited
         nexus between the underlying drug deal and the gang?

      3. Did the trial court err in refusing Appellant’s requested jury
         instructions on (a) involuntary manslaughter (b) the “missing
         evidence” jury instruction?

      4. Did the trial court abuse its discretion by refusing to grant
         [Appellant] credit for his time served in prison and in re-
         sentencing him to an aggregate state prison sentence of 17.75
         years to 44.5 years in state prison?

Appellant’s Brief at 7-8.

      In his first claim, Appellant challenges the sufficiency of the evidence

supporting his conviction for third-degree murder.         Id. at 33.    Appellant

argues that the Commonwealth “relied almost exclusively on corrupt and

polluted sources—namely, his co-conspirators” to establish the elements of

third-degree murder. Id. Although Appellant does not specify which element

or elements the Commonwealth failed to prove, he argues that the evidence

was insufficient due to “the inherently flawed and unreliable character of [the

Commonwealth’s] witnesses.” Id.

      The Commonwealth responds that “[b]ecause the jury is free to believe

or disbelieve the evidence [presented] to them, Appellant’s claim relating to

the sufficiency of the evidence is without merit.” Commonwealth’s Brief at

33. Similarly, the trial court, after reviewing the trial record, concluded there



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was sufficient evidence for the jury to conclude that Appellant committed the

killing with malice aforethought. Trial Ct. Op. at 18.

      In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted), appeal denied, 204 A.3d 924 (Pa. 2019).

      Here, to the extent Appellant challenges his third-degree murder

conviction based on the sufficiency of the evidence generally, his claim is

waived. See Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (reiterating that an appellant’s Rule 1925(b) statement must state with

specificity the element or elements upon which the appellant alleges that the

evidence was insufficient); see also Appellant’s Rule 1925(b) Statement,

5/14/19, at 1 (arguing that the trial court “erred in concluding that the

evidence was sufficient to support Appellant’s conviction” for third-degree

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murder); see also Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa.

Super. 2008) (reiterating that “when the trial court has to guess what issues

an appellant is appealing, that is not enough for meaningful review” and

stating that a vague Rule 1925(b) statement may result in waiver, even if the

trial court correctly guesses the issues an appellant seeks to raise on appeal

(citations and quotation marks omitted)). The trial court “guessed” at the

issue and stated that there was sufficient evidence that Appellant acted with

malice. On appeal, Appellant has altered his sufficiency claim to focus on the

credibility and reliability of allegedly “corrupt” witnesses.          Under these

circumstances, we are constrained to conclude that because Appellant did not

raise this issue in his Rule 1925(b) statement, it is waived. See Pa.R.A.P.

1925(b)(4)(vii); Cannon, 954 A.2d at 1228.

      In any event, Appellant’s present appellate challenge to the credibility

or reliability of the Commonwealth’s witnesses goes to the weight, not the

sufficiency, of the evidence.    See Commonwealth v. Samuel, 102 A.3d

1001, 1005 (Pa. Super. 2014) (stating that a claim that the Commonwealth’s

evidence lacked credibility goes to the weight of the evidence).               Because

Appellant   failed   to   preserve   a   weight   claim,   it   is   waived.      See

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (stating that a

weight claim must be presented to the trial court, because appellate courts

review a trial court’s “exercise of discretion, not of the underlying question of

whether the verdict is against the weight of the evidence” (citation omitted)).

Therefore, Appellant is not entitled to relief on this issue.

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      Appellant also challenges the sufficiency of the evidence supporting his

REAP convictions. Appellant’s Brief at 31. Specifically, Appellant contends

that the Commonwealth “failed to introduce any direct evidence that [anyone]

other than [the decedent] was in the trailer at the time of the shooting.” Id.

at 31-32. Appellant asserts that, “[i]nstead, the Commonwealth relied on the

911 call from [Kimberly] Kravchenko, wherein she can be heard to say, ‘I just

heard gunshots in my house.’” Id. at 32. Appellant maintains that “[t]he 911

call is inadmissible hearsay and therefore incompetent to establish beyond a

reasonable doubt the presence of any person at the scene.” Id.

      The Commonwealth responds that “[d]uring the trial, [Appellant]

stipulated to the admission of the 911 call” in which “[Kimberly] Kravchenko

can be heard speaking to other individuals in the residence to confirm that no

one was injured when they were in the house during the drive-by shooting.”

Commonwealth’s Brief at 32.        Further, the Commonwealth asserts that

another witness “testified that she saw at least two individuals in the residence

. . . just before the drive-by shooting occurred.”         Id.   Therefore, the

Commonwealth contends that the jury heard sufficient evidence to support

Appellant’s convictions for REAP. Id. at 32-33.




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       In its Rule 1925(a) opinion, the trial court found that the Commonwealth

presented sufficient evidence to support Appellant’s REAP convictions.7        See

Trial Ct. Op. at 16-17.

       However, on appeal, Appellant’s sufficiency claim is based on his own

conclusion that the Commonwealth relied on inadmissible evidence. However,

we do not review a sufficiency claim on a diminished record.                   See

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (stating that

“[i]n evaluating the sufficiency of the evidence, we do not review a diminished

record.    Rather, the law is clear that we are required to consider all the

evidence that was actually received, without consideration as to the

admissibility of that evidence or whether the trial court’s evidentiary rulings

are correct” (citation and quotation marks omitted)). The trial court properly

concluded that the Commonwealth presented sufficient evidence to support

Appellant’s convictions for REAP.8         See Trial Ct. Op. at 16-17.   Therefore,

Appellant’s claim fails. See id; see also Palmer, 192 A.3d at 89.




____________________________________________


7 Section 2705 of the Crimes Code provides that a defendant is guilty of REAP
“if he recklessly engages in conduct which places or may place another person
in danger or death or serious bodily injury.” 18 Pa.C.S. § 2705.

8We agree with the trial court’s thorough analysis and finding that there was
sufficient evidence to support Appellant’s REAP convictions. See Trial Ct. Op.
at 16-17. Therefore, even if Appellant properly challenged his conviction
based on the complete record, we would find his claim meritless.




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       In his next issue, Appellant challenges several of the trial court’s

evidentiary rulings.9 Appellant’s Brief at 20.

       The admission of evidence is committed to the sound discretion of the

trial court and our review is for an abuse of discretion. Commonwealth v.

Kane, 188 A.3d 1217, 1229 (Pa. Super. 2018). As our Supreme Court has

explained,

       [a]n appellate court will not find an abuse of discretion “based on
       a mere error of judgment, but rather . . . where the [trial] court
       has reached a conclusion which overrides or misapplies the law,
       or where the judgment exercised is manifestly unreasonable, or
       the result of partiality, prejudice, bias or ill-will.” Importantly, an
       appellate court should not find that a trial court abused its
       discretion merely because the appellate court disagrees with the
       trial court’s conclusion. Indeed, “when reviewing the trial court’s
       exercise of discretion, it is improper for an appellate court to ‘step[
       ] into the shoes’ of the trial judge and review the evidence de
       novo.”

Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019) (citations

omitted).

       Generally, “[a]ll relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not admissible.” Pa.R.E.

402. “Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. However, the trial court
____________________________________________


9  To the extent Appellant challenges expert testimony by Trooper
VanLouvender and Trooper Sebastianelli, see Appellant’s Brief at 26-28,
Appellant has waived this issue by failing to raise it in his Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4). Therefore, we decline to address this
issue on appeal.

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“may exclude relevant evidence if its probative value is outweighed by a

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

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

cumulative evidence.” Pa.R.E. 403.

                         Trooper Patton’s Testimony

      Appellant argues that the trial court erred by allowing Trooper Patton to

provide “expert testimony about the history, structure, organization, and

criminal activities of the Black P-Stone gang of which [Appellant] was

admittedly a member.” Appellant’s Brief at 20. Appellant asserts that “[t]here

is no allegation that [the decedent’s] death had anything to do with the Black

P-Stones’ involvement with prostitution, human and drug trafficking, or the

myriad of other lurid topics discussed by Trooper Patton.”     Id. at 25.   He

asserts that, “for this reason, whatever probative value Trooper Patton’s

testimony may have had as background information was vastly outweighed

by the danger that the jury would convict [Appellant] based solely on his

affiliation with Taylor and the Black P-Stones.” Id.

      The Commonwealth responds that “Trooper Patton’s testimony was two-

fold. First[,] it was permissible as expert testimony to provide information to

the jury that would be beyond the common lay person’s knowledge.”

Commonwealth’s Brief at 11. Specifically, Trooper Patton provided “necessary

clarity as to the importance of the gang before, during, and after the drive-by

shooting.” Id. at 12-13. Second, the Commonwealth asserts that Trooper

Patton’s testimony was “permissible [Rule] 404(b) evidence, offered for the

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purpose of showing Appellant’s motive, intent, and plan for committing the

drive-by shooting that caused the death of [the decedent].” Id. at 11.

     The trial court addressed Trooper Patton’s testimony as follows:

     According to the evidence presented at trial, Appellant’s gang
     affiliation prompted his entire involvement in the criminal episode
     that led to the death of [the decedent]. Furthermore, the Black
     P-Stone hierarchy and protocol dictated the level of Appellant’s
     involvement in this incident.

     Murray, a low-level Black P-Stone member, contacted Mitchell,
     another low-level Black P-Stone member, to assist him in handling
     the situation after first consulting with Taylor, a Black P-Stone
     member with a higher rank than Murray, Mitchell, or Appellant.
     Upon arrival at the Kravchenko residence and after the group
     assessed the situation, the group again contacted Taylor seeking
     guidance and asking permission for their subsequent actions.
     Evidence of Appellant’s gang involvement makes the fact of his
     participation in the drive-by more probable than without such
     evidence. Furthermore, after the criminal episode, Taylor saw
     Jacquie Harrigan while she was having a cigarette break during
     her police interview. He believed she looked nervous and was
     “snitching” about the shooting so he started calling everyone
     involved, in particular, Appellant and Mitchell, to make
     arrangements for Appellant to get out of the area and for Mitchell
     to get everything associated with the crime over to the gang’s trap
     house to get rid of it. Mitchell was arrested after leaving his
     grandmother’s house after he returned from dropping off the gun
     used in this crime at the trap house.         When Mitchell was
     apprehended, he dropped a blanket which contained a shotgun.

     Appellant would have had little, if any, reason to accompany this
     group to the Kravchenko residence and participate if not for his
     affiliation with the Black P-Stones, the hierarchy and protocol
     within the gang. Thus, the gang-related evidence has a “tendency
     to make [Appellant’s involvement] more ... probable than it would
     be without the evidence” and Appellant’s involvement is clearly a
     fact “of consequence in determining the action.” Pa.R.E. 401. . . .

     We must now determine whether this gang-related evidence is
     barred by Pennsylvania Rule of Evidence 404(b). Rule 404(b)
     generally prohibits “[e]vidence of a crime, wrong, or other act”


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     when such evidence is offered to show “that on a particular
     occasion the person acted in accordance with the character”
     shown by that crime, wrong, or other act. Pa.R.E. 404(b)(1).
     There are, however, exceptions to this general rule and “[t]his
     evidence may be admissible for another purpose, such as proving
     motive, opportunity, intent, preparation, plan, knowledge,
     identity, absence of mistake, or lack of accident.” Rule 404(b)(2).
     Courts have also recognized another exception—res gestae—to
     give essential background information to the crimes on trial. See
     Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014).
     However, even if evidence falls within one of the exceptions, the
     probative value of the evidence must outweigh its potential for
     unfair prejudice. Rule 404(b)(2). Unfair prejudice is defined as
     “a tendency to suggest decision on an improper basis or to divert
     the jury's attention away from its duty of weighing the evidence
     impartially.” Rule 403, cmt. When weighing probative value and
     unfair prejudice, we “may consider whether and how much such
     potential for unfair prejudice can be reduced by cautionary
     instructions.” Rule 404, cmt.

     All evidence against a defendant in a criminal case will be
     prejudicial. Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa.
     Super. 1996). Our determination in this context, however, must
     be whether evidence is unfairly prejudicial. Id.; see also Rule
     404(b)(2). While the trial court must exclude relevant but unfairly
     prejudicial evidence, we are “not required to sanitize the trial to
     eliminate all unpleasant facts from the jury's consideration where
     those facts form part of the history and natural development of
     the events and offenses with which [a] defendant is charged.”
     Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super.
     2004) (quotation omitted). In order for it to be excluded, relevant
     evidence must be “so prejudicial that it would inflame the jury to
     make a decision based upon something other than the legal
     propositions relevant to the case.” Id. (quotation omitted).

     As we stated above, Appellant’s movements and actions on the
     night of the drive-by shooting would make little, if no, sense
     absent the background information of gang affiliation, hierarchy,
     and protocol. The Pennsylvania Supreme Court has held that
     admission of gang affiliation is proper when the Commonwealth
     alleges conspiracy as such evidence is highly probative of the
     crime of conspiracy and goes to prove “motive, intent, plan,
     design, ill will or malice.” Appellant was charged with conspiracy.
     Proof of conspiracy under subsection (a)(1) requires a showing
     that a person intends to promote or facilitate the commission of a

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      crime and “agrees with [another] person or persons that they or
      one or more of them will engage in conduct which constitutes such
      crime or an attempt or solicitation to commit such crime.” 18 Pa.
      C.S. § 903(a)(1). Evidence of gang affiliation, hierarchy, and
      protocol shows that Appellant had the motive, intent, and plan to
      conspire with his fellow gang members to participate in the drive-
      by.   Thus, the gang-related evidence is admissible against
      Appellant under Rule 404(b).

      Finally, we do not believe that admission of highly probative gang-
      related evidence would be “so prejudicial that it would inflame the
      jury to make a decision based upon something other than the legal
      propositions relevant to the case.”        This [c]ourt issued a
      cautionary instruction to the jury regarding the evidence relating
      to Appellant’s membership in the Black P-Stone gang and the
      gang’s illegal activity. The jury was instructed that this evidence
      could only be used for the limited purpose of tending to show
      motive and modus operandi. We presume that the jury follows
      the [trial c]ourt’s instruction. Any prejudice that may arise from
      admission of this gang-related evidence would be curable through
      a cautionary jury instruction and, thus, is not unfairly prejudicial.
      See Rule 404, cmt; see also Commonwealth v. Whitfield, 419
      A.2d 27, 29 (Pa. Super. 1980) (finding a jury can be instructed
      not to assume guilt simply because of gang affiliation).

Trial Ct. Op. at 7-9 (some citations omitted).

      Based on our review of the record, we conclude that the trial court

thoroughly addressed this issue. See id. Moreover, we discern no abuse of

discretion by the trial court. See Kane, 188 A.3d at 1229. We therefore

adopt the trial court’s analysis as our own.

                           Shaye Sickles’ Testimony

      Appellant also argues that it was error for the trial court to allow Shaye

Sickles to testify regarding a purported confession by Appellant’s co-

defendant, Mitchell. Appellant’s Brief at 29. Appellant asserts that Mitchell’s

statement was “inadmissible pursuant to [Bruton v. U.S., 391 U.S. 123


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(1968),] wherein the [United States] Supreme Court held that the admission

of a non-testifying accomplice’s custodial confessions violated the defendant’s

confrontation right.” Id. Appellant further contends that Mitchell’s statement

was “inadmissible hearsay and [did] not qualify under the co-conspirator

exception because an admission of culpability would by definition be

incompatible with a statement in furtherance of the conspiracy.” Id. at 29-

30.   He also argues that “the co-conspirator exception is identified in

[Crawford v. Washington, 531 U.S. 36 (2004)] as not being a firmly rooted

exception to the hearsay rule.” Id. at 30. Appellant asserts that the trial

court “therefore erred in admitting this damning testimony into evidence at

trial.” Id. at 30.

      The Commonwealth responds that Mitchell’s statements to Sickles were

properly admitted under the co-conspirator exception to the hearsay rule.

Commonwealth’s Brief at 25. Specifically, the Commonwealth argues that (1)

other witness testimony established that there was a conspiracy between

Mitchell and Appellant; (2) Mitchell’s statements were made in furtherance of

the conspiracy, as he made them while “attempting to avoid apprehension

and avoid any evidence of the drive-by shooting.” Id. at 26-27. Further, the

Commonwealth asserts that both Bruton and Crawford “dealt with

testimonial statements” while Mitchell’s statements were “undoubtedly non-

testimonial[,] as they were made by [Mitchell] to [Sickles, who was] his

girlfriend at the time.” Id. at 26.




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      By way of background, at trial, the Commonwealth called Shaye Sickles

to testify regarding statements that Mitchell made to her after the shooting.

N.T. Trial, 1/23/19, at 226.    Appellant objected, arguing that Mitchell’s

statements were inadmissible hearsay and that the Commonwealth was

“offering statements of a co-conspirator against [Appellant] without . . . the

opportunity [for Appellant] to cross-examine the co-conspirator.” Id. at 228.

      Over Appellant’s objection, Sickles testified that, on the day after the

shooting, Taylor called her cell phone while she was at school and instructed

her to have Mitchell “call [Taylor, then] get his gun and bring it over to the

[trap] house.”   Id. at 238-239. After Sickles relayed Taylor’s message to

Mitchell, Mitchell showed Sickles an online article about a drive-by shooting.

When Sickles asked Mitchell “if he did it,” he replied “Yeah, me and

[Appellant].” Id. at 238.

      Generally, hearsay evidence is not admissible.    See Pa.R.E. 801(c);

Pa.R.E. 802. To establish the co-conspirator exception to the hearsay rule,

the Commonwealth must prove that “(1) a conspiracy existed between

declarant and the person against whom the evidence is offered and (2) the

statement sought to be admitted was made during the course of the

conspiracy. In addition, there must be evidence other than the statement of

the co-conspirator to prove that a conspiracy existed.” Commonwealth v.

Feliciano, 67 A.3d 19, 27 (Pa. Super. 2013) (en banc) (citation omitted).

      “The Confrontation Clause in the Sixth Amendment to the United States

Constitution provides that all criminal defendants enjoy the right to confront

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and cross-examine adverse witnesses. Moreover, the exposure of a witness’

motivation in   testifying is a proper           and important function of the

constitutionally protected right of cross-examination.”     Commonwealth v.

Rosser, 135 A.3d 1077, 1087 (Pa. Super. 2016) (en banc) (citations,

quotation marks, and footnote omitted).

     In the seminal case of Bruton . . . the United States Supreme
     Court held that Bruton’s Sixth Amendment right to confront
     witnesses was violated by the introduction of statements by
     Bruton’s non-testifying co-defendant, Evans, that implicated
     Bruton by name, despite a limiting instruction from the trial court
     that Evans’ statement should be considered only against him.
     Bruton, 391 U.S. at 135-36. The Court held that, although the
     limiting instruction was given, the statements were of such a
     powerfully incriminating nature that it was unlikely that the jury
     would have followed the trial court’s instruction. Id.

                                 *       *       *

     In Crawford, the United States Supreme Court held that, when
     the prosecution seeks to introduce “testimonial” hearsay into
     evidence against a criminal defendant, the Confrontation Clause
     of the Sixth Amendment requires: (1) that the witness who made
     the statement is unavailable; and (2) that the defendant had a
     prior opportunity to cross-examine the unavailable witness.
     Crawford, 541 U.S. at 59.

                             *       *       *

     Both Crawford and Bruton define the contours of the
     Confrontation Clause of the Sixth Amendment, but they do so for
     different purposes. Crawford ensures the procedural guarantee
     of the Confrontation Clause by requiring that the reliability of
     testimonial hearsay presented against the defendant be assessed
     in a particular manner, i.e., by testing in the crucible of cross-
     examination. Crawford, 541 U.S. at 61. Bruton, and its
     progeny[,] on the other hand, act to neutralize the incriminating
     effect on the defendant of properly admitted confessions from a
     non-testifying co-defendant presented against the co-defendant
     at a joint trial. This distinction is crucial, and it arises from the

                                     - 17 -
J-S07005-20


     core concern of Bruton, i.e., a confession from a non-testifying
     co-defendant that directly incriminates the defendant in a joint
     trial is of such a powerfully incriminating nature that a jury
     instruction limiting the jury’s consideration of the confession to
     the co-defendant would be insufficient to cure the prejudice to the
     defendant from the confession’s admission at trial. Bruton, 391
     U.S. at 135-36.

Commonwealth v. Whitaker, 878 A.2d 914, 919-22 (Pa. Super. 2005)

(some citations, emphases, and footnote omitted).

     Here, the trial court addressed the applicability of the co-conspirator

hearsay exception as follows:

     As to the first requirement, there was overwhelming evidence
     presented at trial to show that a conspiracy to commit murder
     existed between all the actors involved, including the declarant,
     Mitchell, and Appellant.     There was testimony from several
     witnesses establishing that Appellant, Taylor, Murray and Mitchell,
     were all part of the Black P-Stone gang including testimony from
     Trooper Patton who conducted a thorough investigation into the
     gang. Furthermore, Appellant went with the group of fellow gang
     members to the house of Brandon Kravchenko to seek revenge
     for a bad drug deal. Appellant knew the group went to the house
     with a gun. The gang leader, Taylor, gave his permission via
     telephone for the group to do what they had to do. After receiving
     information that the house was occupied, Appellant, Murray and
     Mitchell instructed Bunnell to shut off her car lights and “slow
     down” as she approached the front of the Kravchenko residence.
     While Bunnell did so, Appellant fired shots from the open car
     window, towards the occupied residence. As a result of these
     shots being fired at the Kravchenko residence, [the decedent]
     sustained a bullet wound to the head which killed him. Further,
     after the murder, arrangements were made for Appellant to get
     out of the area and for Mitchell to get everything associated with
     the crime over to the gang’s trap house and wait there.

     As to the second requirement, Shaye Sickles was contacted by
     Sirvonn Taylor at school the morning after the murder of [the
     decedent] so that she could relay a message to or get him in
     contact with her boyfriend, Dygunn Mitchell. Taylor told Sickles
     that he had just left the police station and that Mitchell was to go

                                    - 18 -
J-S07005-20


      to his grandmother’s house, get everything out of it and meet
      Taylor at the gang’s trap house. When Sickles made contact with
      Mitchell at school, he showed her a newspaper article of the drive-
      by shooting and death of [the decedent]. Sickles asked Mitchell if
      he was the one who did it to which Mitchell responded “Yeah. Me
      and B’zah.” Sickles related that “B’zah” was Appellant’s nickname
      in school. Mitchell then told Sickles that he was leaving school,
      going to his grandmother’s house and then over to the trap house
      on Second street. Sickles testified that what Taylor meant by get
      everything out of Mitchell’s grandmother’s house was for Mitchell
      to get the gun and bring it to the trap house which is what she
      told Mitchell. After school was over, Sickles stated that she and a
      friend went to Mitchell’s grandmother’s house but he was not there
      so they went to the trap house on Second Street and found
      Mitchell at the residence. These statements were in furtherance
      of the conspiracy because Sickles was given specific instructions
      from Taylor to relay to Mitchell regarding the crime and what to
      do with the evidence related to the crime.

      Therefore, all requirements for this exception to the hearsay rule
      were met and Sickles’ testimony regarding her interaction with
      Mitchell and his statements was admissible pursuant to Pa.R.E.
      803(25)(E).

Trial Ct. Op. at 11-12 (citations omitted).

      Based on our review of the record, we discern no abuse of discretion or

error of law by the trial court. See Kane, 188 A.3d at 1229. The trial court

properly analyzed the applicability of the hearsay exception for statements by

a co-conspirator, and we therefore adopt the trial court’s analysis on that issue

as our own. See Trial Ct. Op. at 11-12.

      In addressing Appellant’s Sixth Amendment claim, the trial court relied

on Crawford. Id. at 13. The trial court found that Mitchell’s statements were

non-testimonial, as they

      were not made under circumstances that would lead an objective
      witness reasonably to believe that the statement would be


                                     - 19 -
J-S07005-20


      available for use at a later trial. Sickles began the conversation
      by relaying a message from one of Mitchell’s co-conspirators who
      was trying to help Mitchell get rid of the evidence associated with
      the crime. Further, Mitchell showed Sickles the newspaper article
      about the shooting and stated that he and Appellant were
      responsible so Sickles understood the context of what Taylor told
      her over the phone. Sickles was also Mitchell’s girlfriend at the
      time[,] which would make one believe Mitchell was even less likely
      to believe any statements made would be later used at trial. The
      testimony presented by Sickles from her conversation with
      Mitchell resembles a casual remark to an acquaintance more so
      than a formal statement to a government officer, which the
      Crawford court determined to be more consistent with
      nontestimonial.

      Mitchell’s statements and the conversation between Mitchell and
      Sickles were “nontestimonial,” therefore; the Confrontation
      Clause does not bar their admission so long as the statements fall
      within a firmly rooted hearsay exception or contain particularized
      guarantees of trustworthiness. As discussed above, we find that
      Mitchell’s statements were properly admitted under the co-
      conspirator exception to the hearsay rule pursuant to Pa.R.E.
      803(25)(E). Accordingly, as the statements fall within a firmly
      rooted hearsay exception, we find that the Confrontation Clause
      does not bar their admission.

      Thus, Appellant’s assertion of error as to Shaye Sickles’ testimony
      about a statement by alleged co-conspirator Dygunn Mitchell is
      without merit.

Id. at 13-14.

      To the extent Appellant argues that Mitchell’s statement violated his

rights under the Confrontation Clause, we agree with the trial court that he is

not entitled to relief.   As noted previously, Appellant objected to Mitchell’s

statement on the basis that he did not have an opportunity to cross-examine

Mitchell at trial. See N.T. Trial, 1/23/19, at 228. Given the relief requested

by Appellant, the trial court properly applied Crawford, which “ensures the

procedural guarantee of the Confrontation Clause by requiring that the

                                      - 20 -
J-S07005-20



reliability of testimonial hearsay presented against the defendant be assessed

. . . [through] cross examination.” Whitaker, 878 A.2d at 922 (emphasis

omitted).   Further, the trial court properly addressed the non-testimonial

nature of Mitchell’s statement and properly found that Crawford did not bar

its admission at trial. See Trial Ct. Op. at 13-14. We therefore adopt the trial

court’s analysis on that issue as our own. Id.

      Finally, although Appellant references Bruton, he fails to explain how it

applies in the instant case. See Commonwealth v. Johnson, 985 A.2d 915,

924 (Pa. 2009) (stating that “where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is waived.”

(citations omitted)).    Therefore, we could find Appellant’s claim waived.

Nonetheless, because Appellant was not tried jointly with Mitchell, we

conclude that Appellant’s passing reference to Bruton does not merit relief.

See Commonwealth v. McCrae, 832 A.2d 1026, 1038 (Pa. 2003) (stating

that Bruton requires redaction “only in the context that gave rise to the

decision, i.e., the introduction of a powerfully incriminating statement made

by a non-testifying co-defendant at a joint trial.” (citations omitted)).

Accordingly, Appellant is not entitled to relief.

                         Mitchell’s Sawed-off Shotgun

      Appellant next argues that the trial court erred by “allowing the

Commonwealth to introduce into evidence a sawed-off shotgun possessed by

[Mitchell] at the time of his arrest.” Appellant’s Brief at 30. Appellant asserts

                                      - 21 -
J-S07005-20



that “[t]here was no indication that this weapon was fired during the drive-by

or had any connection to the shooting” and, therefore, it was inadmissible.

Id. Further, he claims that admitting the gun “in a homicide trial where the

Commonwealth has not produced the murder weapon can only be regarded

as highly prejudicial.     This is particularly true where, as here, the

Commonwealth had other means to establish [Appellant’s] membership in the

Black P-Stones gang.” Id. at 31.

      The Commonwealth responds that the shotgun “was properly admitted

as relevant evidence for the charge of conspiracy.” Commonwealth’s Brief at

28.   Specifically, the Commonwealth contends that “Mitchell’s attempt to

dispose of the sawed-off shotgun prior to his apprehension was similar to his

disposal of the murder weapon at the ‘trap house’ as instructed by [Taylor].

This was a continuation of the conspiracy and cover-up of the crime

committed” and “also tended to corroborate the Commonwealth’s [Rule

404(b)] evidence addressing the P-Stones and the availability of ‘gang

property,’ particularly firearms.” Id. at 30.

      The trial court addressed Appellant’s claim as follows:

      [T]he sawed-off shotgun found on Dygunn Mitchell is relevant to
      show how the people who participated and knew about the
      criminal episode were associated, including the gang structure,
      and how they attempted to get rid of all potential evidence that
      could connect them or the gang to illicit activity. Therefore, this
      evidence also tends to show that Appellant’s involvement was
      more probable than it would be without the evidence. Thus,
      evidence of Black P-Stone hierarchy and protocol, Appellant’s
      affiliation with the gang, and the sawed-off shotgun found on
      Dygunn Mitchell’s person is relevant.


                                     - 22 -
J-S07005-20



Trial Ct. Op. at 7.

      Based on our review, we conclude that the trial court thoroughly

addressed this issue. See id. Moreover, we discern no abuse of discretion or

error of law by the trial court. See Kane, 188 A.3d at 1229. We therefore

adopt the trial court’s analysis as our own.

      In Appellant’s next issue, he argues that the trial court erred by denying

his request for a jury instruction on involuntary manslaughter. Appellant’s

Brief at 43. Appellant notes that he “was charged with criminal homicide,

which includes involuntary manslaughter.”          Id.   He asserts that “[t]he

Commonwealth did not withdraw the involuntary [manslaughter] charge, [and

it] was therefore an issue in the case.” Id.

      The Commonwealth responds that there was no evidence that could

reasonably     support   a    conviction     for   involuntary   manslaughter.

Commonwealth’s Brief at 39.        Further, the Commonwealth notes that

Appellant “failed to put forth any reasonable suggestion in his brief or when

he requested the instruction that an involuntary manslaughter instruction”

was warranted. Id. at 42. Therefore, the Commonwealth contends that the

trial court properly denied Appellant’s request. Id.

      When reviewing a challenge to jury instructions, this Court will “reverse

a [trial] court’s decision only when it abused its discretion or committed an

error of law.” Commonwealth v. Galvin, 985 A.2d 783, 799 (Pa. Super.

2009) (citation omitted). When a trial court refuses to deliver a specific jury

instruction, “it is the function of this Court to determine whether the record

                                    - 23 -
J-S07005-20



supports the trial court’s decision.”   Commonwealth v. Buterbaugh, 91

A.3d 1247, 1257 (Pa. Super. 2014) (en banc) (citation and quotation marks

omitted). “[T]he relevant inquiry for this Court . . . is whether such charge

was warranted by the evidence in the case.” Commonwealth v. Baker, 963

A.2d 495, 506 (Pa. Super. 2008) (citation and quotation marks omitted).

      Trial courts are not to instruct a jury on legal principles that are not

applicable to the facts presented at trial because such instructions are likely

to confuse jurors and place obstacles in the path of a just verdict.      See

Commonwealth v. Taylor, 876 A.2d 916, 925 (Pa. 2005).             Therefore, a

defendant must establish that the trial evidence would have reasonably

supported a verdict based on the desired charge, and may not claim

entitlement to an instruction that is not supported by the evidence presented

at trial. Id. at 925-26.

      Additionally, “[u]nder Pennsylvania law, a homicide defendant is entitled

to a charge on involuntary or voluntary manslaughter only if the evidence

adduced at trial would reasonably support a verdict on such a charge.”

Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 1996) (citations

omitted). “In other words, a trial court can give a manslaughter instruction

only when there is evidence tending to show that the defendant is not guilty

of the crime of murder but is guilty of the lesser crime of manslaughter.” Id.

(citation omitted).   “In determining whether the evidence would support a

manslaughter charge, we must view the evidence in the light most favorable

to the defendant.” Id. (citation omitted).

                                    - 24 -
J-S07005-20



         Here, in its Rule 1925(a) opinion, the trial court addressed Appellant’s

claim as follows:

         The Pennsylvania Supreme Court has defined involuntary
         manslaughter as the killing of another without malice and
         unintentionally, in doing some unlawful act not amount to a felony
         or naturally tending to cause death or great bodily harm. [Here,
         t]he facts in evidence at trial did not reasonably support a finding
         of involuntary manslaughter. See Commonwealth v. Rogers,
         615 A.2d 55, 61-62 (Pa. Super. 1992) (finding that an involuntary
         manslaughter charge was unwarranted where the evidence
         showed that the defendant had “fir[ed] the entire magazine of his
         weapon into an occupied vehicle,” despite the defendant’s
         statement that he shot above the car so that no one would be hit).

         Here, Appellant joined [his four co-defendants] voluntarily in
         order to confront the individual who sold the fake drugs to Bunnell.
         Appellant did so knowing that [his co-defendant,] Mitchell[,] was
         taking a gun to the scene. Moreover, there was ample testimony
         that, at the scene, Appellant purposefully fired that gun at a
         residence known to him to be occupied.[10] Thus, a charge on
         involuntary manslaughter was unwarranted as the facts developed
         at trial did not support such a charge.

Trial Ct. Op. at 20-21.

         Based on our review of the record, we discern no error of law or abuse

of discretion by the trial court. See Galvin, 985 A.2d at 799. As noted by

the trial court, there was no evidence that could reasonably support a verdict

for involuntary manslaughter. See Soltis, 687 A.2d at 1141. Therefore, the

trial court properly declined Appellant’s request for a jury instruction on that

basis.

____________________________________________


10 Further, the trial court explained that the evidence at trial was “sufficient
for the jury to have found beyond a reasonable doubt that Appellant
committed a killing with malice aforethought.” Trial Ct. Op. at 18.

                                          - 25 -
J-S07005-20



      In his next claim, Appellant argues the trial court erred by failing to

instruct the jury that it could draw an adverse inference from the

Commonwealth’s failure to introduce certain items into evidence. Appellant’s

Brief at 44. Specifically, Appellant argues the following:

      [The trial court] erred in refusing [Appellant’s] request for the
      “missing evidence” instruction concerning physical items seized
      from Terrance Tyson and the members of the Kravchenko family,
      and telephones seized from various residences.                The
      Commonwealth did not test all this information, which could have
      yielded information about [Appellant’s] involvement with the
      Black P-Stones.

      The jury was entitled to consider whether the Commonwealth had
      deliberately withheld this information in an attempt to conceal
      information from the jury. [The trial court’s] failure to instruct the
      jury on this charge was therefore in error.

Id.

      The Commonwealth responds that “Appellant puts forth no basis for a

reasonable belief that there would be anything of relevance” on the phones

that could have been used as evidence at trial. Commonwealth’s Brief at 44.

      Pennsylvania Suggested Standard Criminal Jury Instruction 3.21B

provides that “the jury is allowed to draw a common-sense inference that [an]

item would have been evidence unfavorable to that party” when “there is no

satisfactory explanation for [that] party’s failure to produce an item,” and (1)

“the item is available to that party and not to the other”; (2) “it appears the

item contains or shows special information material to the issue;” and (3) “the

item would not be merely cumulative evidence.” Pa. SSJI (Crim) § 3.21B(2).

      Here, the trial court addressed Appellant’s claim as follows:


                                     - 26 -
J-S07005-20


       A missing evidence charge is not meant to be given when there is
       a generalized allegation that a party did not present some
       evidence that may bear on an issue in the case. Indeed, where
       evidence or a witness is available to both sides to present at trial,
       that one side does not present said evidence or witness does not
       render it “missing.” Appellant’s trial did not reveal any specific
       document, item, or witness that was only available to the
       Commonwealth and not to the defense. Thus, the missing
       evidence charge requested by Appellant was irrelevant to the
       issues presented at trial and inappropriate.

Trial Ct. Op. at 19-20.

       Based on our review, discern no abuse of discretion or error of law by

the trial court. See Galvin, 985 A.2d at 799. As noted by the trial court,

Appellant failed to establish that there was any “missing evidence” that was

only available to the Commonwealth.                Therefore, the trial court properly

denied Appellant’s request.

       Finally, we address Appellant’s sentencing claim.11           Appellant argues

that the trial court abused its “discretion by imposing a sentence that

guarantees that [Appellant] will be an old man by the time he gets out of

prison.” Appellant’s Brief at 46. He also asserts that the trial court failed to

consider Appellant’s mitigating circumstances.              Id. at 47.    Further, he

contends that the “sentence ignores [Appellant’s] zero prior record score and
____________________________________________


11 Although Appellant challenged the trial court’s award of time credit in his
statement of questions, he does not address the issue in his brief. Therefore,
he has abandoned the issue on appeal. Nonetheless, the trial court thoroughly
addressed this issue in its Rule 1925(a) opinion. See Trial Ct. Op. at 22-23.
Therefore, to the extent this issue relates to the legality of Appellant’s
sentence, we adopt the trial court’s analysis as our own.                     See
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (stating that
a trial court’s failure to award credit for time served implicates the legality of
a sentence).

                                          - 27 -
J-S07005-20



fails to account for the significantly reduced sentences of his co-defendants.”

Id. at 47.    Finally, he claims that the trial court’s “failure to consider

Appellant’s mitigating circumstances, in conjunction with [the trial court’s]

decision to impose consecutive sentences for each REAP conviction, raises a

‘substantial question’ for appellate review.” Id. at 46.

      The Commonwealth responds that the trial court’s sentence “was well-

reasoned and within the standard guidelines.” Commonwealth’s Brief at 44.

Further, the Commonwealth contends that the trial court considered all of the

evidence presented by both parties, and properly exercised its discretion in

fashioning Appellant’s sentence. Id. at 47-48.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Before reaching the merits of such

claims, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
      2119(f)] concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of
      sentence; and (4) whether the concise statement raises a
      substantial question that the sentence is inappropriate under the
      sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted).

      “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.



                                    - 28 -
J-S07005-20



Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)

(stating that “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”).

       Here, Appellant waived his discretionary sentencing claim by failing to

raise it at sentencing or in a post-sentence motion. See Corley, 31 A.3d at

296. Therefore, it is waived.12

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/20




____________________________________________


12Even if Appellant had properly preserved his sentencing claim, we would
conclude that it lacks merit for the reasons set forth in the trial court’s opinion.
See Trial Ct. Op. at 23-24.

                                          - 29 -
